The Law Society of Upper Canada and Ontario's Lawyers, 1797-1997 [1 ed.] 9781442623378, 9781442654990

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The Law Society of Upper Canada AND ONTARIO'S LAWYERS

17974997 IN JULY 1797, TEN OF THE FIFTEEN LAWYERS IN Upper Canada gathered at Wilson's Hotel in Niagara-on-the-Lake to establish the Law Society of Upper Canada. Half of them were under thirty; the youngest was nineteen. The organization they were founding, a professional organization with statutory authority to control its membership and govern its own affairs, had no parallel anywhere else in the common-law world. Although the society did not meet again for over two years, it survived as the governing body of Ontario's lawyers and as a model for the governance of lawyers elsewhere in Canada. Today's Law Society of Upper Canada, with more than 25,000 members, is one of Ontario's most powerful institutions and it has influenced the province's politics, business, and society for two hundred years. Christopher Moore, in this history marking the society's bicentenary, begins by examining the unprecedented step taken by those barely qualified lawyers in 1797. He describes the evolution of the Law Society and the legal profession from the days of barristers ranging the backwoods on horseback, through the reforms of the late nineteenth century, the period of reaction between the two world wars, and the tremendous postwar growth in the legal profession, to the long struggle for women and minorities to gain acceptance as lawyers. Taking readers behind the wrought-iron fence and stately lawns of the society's home at Osgoode Hall in Toronto, Moore brings the story right down to the present, describing how, in the 19905, questions of governance, the problem of legal aid, and the cost of practice insurance triggered a series of crises that have rocked the Law Society to its foundations. This is the first comprehensive history of the Law Society, and Christopher Moore has had full access to the society's two hundred years of records. Scholarly, entertaining, rich in personalities, and enlivened with more than 100 illustrations, this is an illuminating account of the Law Society for lawyers and for all those interested in the history and governance of this most influential of professions. CHRISTOPHER MOORE was raised in Vancouver, the son of the senior court reporter for British Columbia's Department of the Attorney General. He began his career as a historian with the publication of Louisbourg Portraits, which won a Governor General's award for literature. His more recent books include The Loyalists and, as co-author, The Story of Canada, a history for young people. He writes a regular column on history and historians in The Beaver magazine.

CHRISTOPHER MOORE

THE LAW SOCIETY OF UPPER CANADA AND ONTARIO'S LAWYERS

1797-1997 University of Toronto Press Toronto Buffalo London

©Christopher Moore Editorial Ltd. First published 1997 by University of Toronto Press Incorporated Toronto Buffalo London Printed in Canada ISBN 0-8020-4127-2 Printed on acid-free paper

Canadian Cataloguing in Publication Data Moore, Christopher The Law Society of Upper Canada and Ontario's lawyers, 1797-1997 Includes index. ISBN 0-8020-4127-2 1. Law Society of Upper Canada - History. 2. Lawyers - Ontario History. I. Title. KE361.O5M66 1997 KF334.ZB3M66 1997

340'.06'0713

C96-932260-7

PICTURE CREDITS: Illustrations come from the Archives of the Law Society of Upper Canada, with the following exceptions: Archives of Ontario: 31, 122 Baldwin Room, Metro Toronto Public Library: 67, 68, 69, 82, 112 Ontario Black History Society: 178 The Law Times: 287, 311, 316, 334, 338, 342 FACING TITLE PAGE: The seal of the Law Society of Upper Canada, adopted a year after incorporation in 1822. It includes Hercules, representing legal might, and the female figure of justice. The motto on the ribbon, 'Magna charta Angliae,' associates the Law Society with one of the great documents of the English legal tradition.

Contents Preface CHAPTER ONE

Becoming Learned and Honourable, 1797-1822

CHAPTER TWO

Lawyers for the Emerging Giant, 1822-1871

CHAPTER THREE

A New Profession, 1871-1914 CHAPTER FOUR

The Last Patricians, 1914-1950 CHAPTER FIVE

A New Agenda, 1950-1970 CHAPTER SIX

7 11 65 135 187 235

Questions of Control, 1970-1997

281

Appendices 1 Speaking the Language of Osgoode Hall 2 Treasurers of the Law Society, 1797-1997 3 Tables: Law Society Annual Dues and Fees, 1887-1995

341 343 345 347

Acknowledgments

351

Notes

353

Index

383

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Preface

L

.T IS AN AUGUST INSTITUTION. IT INHABITS PREMISES it built decades before Confederation, and it can trace its origins even farther back, to the eighteenth century. The portrait-lined walls and gated lawns of Osgoode Hall evoke a venerable dignity to which few Canadian institutions even aspire. Confident authority and discreet influence both seem natural in such surroundings. So a survey of the stately premises, the centuries of uninterrupted existence, even the antiquity of its very name, are starting places for every account of the Law Society of Upper Canada. But in the late twentieth century, augustness scarcely guarantees respect. As this history was being written, the Law Society and the legal profession of Ontario could not keep out of the headlines. Crises over legal aid, the society's fees and dues, and sensational discipline cases merged into a larger debate over the meaning of professional self-government in a time of competition and commerce. In that atmosphere, the Law Society's age, like its fabled wine cellar, could be wielded as an accusation as often as it was saluted as an achievement. A two-hundredth anniversary could be a weakness to deride instead of an achievement to honour, if age confirmed that the institution was wedded to its past and its privileges and had outlived its usefulness. Yet this book remains a history, not simply a background to current events at the Law Society of Upper Canada. The eighteenth and nineteenth century history of the society is worth attention, and not simply to celebrate longevity. In any time or place, it has been said, the essential question about the legal profession is 'What do lawyers do and what services do they provide to society?' To observe from the 1990s how different lawyers' work and society's expectations were in the early nineteenth century - or in the early twentieth - opens fresh perspectives on today's profession, and I have given a good deal of space to matters far removed from the concerns that dominate on the eve of the twenty-first century. Still, because the book aspires to cover the experience of the Law Society of Upper Canada down to the present, it carries through to the issues and crises which surround the profession and the Law Society in the 1990s. I have written about both remote arid recent history with an independence that deserves some comment. This is a commissioned book. It began when the Law Society of Upper Canada invited me to write a history to mark 7

its 1997 bicentennial. In time (and with legal advice), we signed an agreement that gave me unrestricted access to the archives of the Law Society, itself an unprecedented step, and full responsibility for the text of the book. (Had the Law Society seriously objected to what I wrote, it could have disassociated itself from the book, which I would ultimately have been free to publish elsewhere.) I regard these terms as a model for any commissioned history, and I can say that the Law Society lived up to the spirit as well as the letter of the agreement. Even when I sought advice, Law Society benchers and staff strove to avoid seeming to influence my account. If some readers find my account of the Law Society too kind - and given the vigour of some of its critics, some must -1 hope they will dispute my judgment rather than the integrity of the book's commissioning. Still, for its commission, the Law Society got sustained attention to its history. I felt no obligation to draft a brief for the defence, but I worked to understand and explain the actions and motives of the Law Society, more than those of its critics, its clients, or its counterparts. Although it notes the exchanges of influence between Ontario's legal profession and its counterparts across Canada and throughout the common law world, this is not really a comparative history. Based largely on the Law Society's own archives, it inevitably considers what the Law Society itself was thinking and doing, more than the thoughts or actions of those with whom it dealt. With two centuries of issues and personalities to explore, it often synthesizes complicated and little-studied issues into a paragraph or two. Readers may find fewer lurid stories than they expect. Many histories of lawyers are histories of famous court cases, but judicial history is almost entirely absent here. The Law Society's discipline archives were available to me, but there is relatively little here on the case law of individual cases. However, I have tried to observe the history of Ontario lawyers: who lawyers were, how they ran their practices, and what the province expected of lawyers, from the days of horseback barristers ranging the backwoods to the megafirm mergers of the 1990s. The Law Society has been based in Toronto since before the city was called Toronto, and for much of the province's history about half its lawyers have practised here. I have tried to make clear that not all lawyers (or even all benchers) come from Toronto, but Toronto, its concerns, and its law firms loom large in any Law Society history. Similarly, I have tried to note how and why women and minorities were absent from the first century of the legal profession in Ontario and scarce in most of the second, as well as their new prominence in recent decades. Nevertheless, their long absence means that 8

characterizations here, like the portraits at Osgoode Hall, are mostly of men. If the history of the Law Society had to be divided into just two periods, they would be its first one hundred and fifty years and its most recent fifty. Today's lawyers and the contemporary Law Society have grown as remote from their counterparts early in the twentieth century as those were remote from the eighteenth-century founders. Yet while everything has changed, a striking continuity remains. The Law Society Act of 1797 created something new in the world - a profession empowered by legislative statute to control entry to its ranks, define its standards, and police its monopoly of practice. Two hundred years later, the powers, limits, and responsibilities of self-government remain the central preoccupation of the Law Society of Upper Canada. To examine how self-government came about and what it led to, the place to start is in 1797.

9

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CHAPTER ONE

Becoming Learned and Honourable,

1797-1822

'... to form themselves into a Society to be called the "Law Society of Upper Canada" as well for the establishing of order amongst themselves, as for the purpose of securing to the Province and the Profession a learned and Honorable body to assist their fellow subjects as occasion may require and to support and maintain the constitution of the said Province/

- The Law Society Act, 1797

Wilson's Hotel by Dyce Saunders. This view of the building where the founding benchers met is hypothetical neither the site nor the look of the building is known with certainty.

A

LT THE BEGINNING IT WAS DECEPTIVELY simple. At eleven in the morning on Monday, 17 July 1797, the first day of Trinity term in the legal calendar, ten lawyers gathered at Wilson's Hotel in the town that is now Niagara-on-the-Lake, Ontario, and was then Newark, Upper Canada. The ten, two-thirds of all the lawyers then practising in the colony, had come together to found the Law Society of Upper Canada. They were a diverse group. John White, the attorney general of Upper Canada, was the only London-trained barrister among them. Robert Gray, the solicitor general, had at least studied some law in Montreal, and Bartholomew Beardsley had articled formally in a New Brunswick legal office. The other seven lawyers had more tenuous credentials. They were gentlemen settled in the colony who in recent years had been made lawyers by executive decree. Though they were professional brethren and associates in the embryonic ruling elite of the new colony (indeed, half of these lawyers were officials in the colonial administration), they shared some of the diversity of their fellow colonists. Broad differences in Becoming Learned and Honourable, 1797-1822

13

1797

Though its list of lawyers begins in 1797, the Law Society's roll of members was not compiled until 1833.

background and expectation separated an English barrister like John White, a Highland soldier like Allan McLean, a son of the Virginia plantation gentry like Christopher Robinson, and a Dutch-American Loyalist from the New York frontier like Nicholas Hagerman, who was said to come in from his plough to dispense legal advice to his fellow villagers of Adolphustown. In 1797, it seemed to go against the trend of history to be seeking the extension of British legal traditions. The British Empire, rocked by the secession of the United States of America in 1783, was now also challenged by the revolutionary ideology and revolutionary armies of France. In 1797, naval victory at Cape St Vincent averted the threat of England's invasion by France, but new dangers loomed in the rise of Napoleon Bonaparte. Nevertheless, Upper Canada, just five years old and with barely 25,000 settlers, was assertively British, and its lawyers practised within a legal regime unrepentantly rooted in the long tradition of English government and English law. They were a mostly youthful group. At thirty-six, White was among the older men, for half the group were not yet past thirty, and William Powell was only nineteen. Yet six of the ten would be dead within a decade of this meeting: White shot dead in a duel, Gray and Angus Macdonell drowned together while travelling on legal business, Robinson and Powell of illness, and James Clark in alcoholic disgrace. None of the others would wield lasting influence in the Law Society, although the then-youthful sons of Robinson and Hagerman would, as (less directly) would young Powell's father, the long-lived judge William Dummer Powell. At Wilson's Hotel that morning, John White took charge. As attorney general, he had precedence over the other nine, and in any case he could claim superior dignity as the only lawyer present who was a barrister of England's hallowed Inns of Court. White opened the proceedings, moving that Bartholomew Beardsley, newly arrived from New Brunswick and hence the group's most junior member, should read the piece of legislation that had brought

14

The Law Society of Upper Canada

them together, 'An Act for the better regulating the Practice of the Law/1 Beardsley duly read the act, which had been passed at the June sittings of the House of Assembly and Legislative Council of Upper Canada and proclaimed (in the absence of Lieutenant-Governor John Graves Simcoe) by administrator Peter Russell It offered ringing phrases about the value of forming a society of lawyers 'as well for the establishing of order among themselves, as for the purpose of securing to the Province and the Profession a learned and Honorable body to assist their fellow subjects as occasion may require and to support and maintain the constitution of the said Province/ Then the act got down to specifics. It authorized the legal practitioners of Upper Canada to gather together and form the Law Society of Upper Canada. It even specified that they were to meet in Newark on this particular day, just two weeks after the proclamation of the law. (Since the colony's high court sat at Newark, there was good reason to expect much of the Upper Canadian bar to be on hand on the first day of its quarterly term.) It authorized the new society to appoint its senior members as governors or 'benchers/ and to make rules for its own government. It gave members of the society the monopoly of practice at the bar of His Majesty's courts in Upper Canada. It authorized the society to accept as members lawyers who had qualified elsewhere and students who conformed to the stipulations of the act and to regulations the society would establish. After Beardsley read the act, the lawyers did as it instructed. In a series of resolutions moved by White, they formed the Law Society of Upper Canada. They designated the six senior lawyers as its first benchers. They named John White the first treasurer. They set the first Law Society fees. With each resolution passed unanimously, the work of the first meeting of the Law Society of Upper Canada was done.* Brief as it was, this first meeting of the Law Society had made large and lasting claims. The ten lawyers had declared the legal profession's authority to govern itself, and they had established the organization with which to do so. Henceforth, anyone who wished to practise law in Ontario would need to earn - and retain - the

Becoming Learned and Honourable, 1797-1822

15

:

Apparently uncertain of the members' call dates, the minute-taker omitted the name of the sixth founding bencher. In 1832 convocation declared that Christopher Robinson was entitled to the honour, but it appears Timothy Thompson's seniority gave him a better claim.

Beginning with this page from 17 July 1797, the Minutes of Convocation record two centuries of benchers' deliberations. The first volume reports all the benchers' meetings from 1797 to 1835. In the 1990s, a single meeting often fills an entire volume.

sanction of the Law Society of Upper Canada. Simultaneously, the new society laid claim to the monopoly of legal practice in Ontario. Whatever was defined as lawyers1 work would be the preserve of the Law Society's members. The first Law Society gathering effectively set out the enduring concerns of the society: the education of lawyers, professional standards, and the professional monopoly. Over the next two hundred years, legal education would take many different forms, but the training required of lawyers would always be defined by the Law Society - indeed, would remain one of its constant preoccupations. Similarly, the behaviour expected of members of the profession would be transformed almost beyond recognition over two centuries, but the society would continue to proclaim and enforce its standards of professional behaviour. And although what constituted lawyers* work has never ceased to change, the society would continue to defend the professional monopoly of lawyers' work. Apparently satisfied with the accomplishments of the brief morning meeting, the lawyers adjourned. It is not certain that they took away any sense of the historical importance of what they had done. That day, John White wrote a letter to a legal friend in England, and he made no mention of the morning's work. And the new society was in no haste to meet again - it would be more than two years before another meeting was convened. The lawyers had met in late morning at an inn, however, so before going their separate ways, the ten founding members may well have moved from the first benchers' meeting to the first benchers' luncheon, provided by Mr Wilson, the innkeeper.^ They left behind, unacknowledged, a mystery. For this Law Society of Upper Canada was something new in the world. In Britain, barristers governed themselves, but that was a matter of traditional usages inherited from the remote past, and those usages had not migrated to Britain's overseas colonies. Wherever courts had been established in the British Empire, judges (usually the chief justice) supervised the legal profession. Only in the mid-nineteenth century would judges and legislatures begin to transfer that authority to organizations of lawyers, and as a rule they did so only where the legal community was well established, well organized, and assertive about its need to govern itself. As late as 1830, the Privy

16

The Law Society of Upper Canada

Council declared that in every British colony, lawyers were governed by the chief justice. By contrast, Upper Canada was transferring authority to its legal profession half a century before the trend towards professional autonomy took hold in the English-speaking world, and long before the local legal profession was either organized or powerful. What the lawyers did at Newark that morning was unorthodox and virtually without precedent. Anyone steeped in the jealously guarded traditions of the English common law should have found the whole transaction repugnant. This oddity was not discussed at the founding meeting of the Law Society of Upper Canada. Nor had it been addressed in the enabling legislation that empowered the lawyers to meet. Indeed, the foundation of the Law Society went almost unremarked in the official correspondence, private letters, and periodical press of the day. The records of the day, that is, leave no clear statement of the motives that caused the Law Society to be founded. Lawyers and students-at-law, the membership of the Law Society of Upper Canada for two hundred years, have mostly taken the motives behind their society's foundation for granted. Historians have been hardly more curious. But on the two-hundredth anniversary of the Law Society, the first large question that needs to be posed is why it was founded at all. There had been law, and even lawyers, in Ontario before the foundation of the Law Society of Upper Canada or of Upper Canada itself. The nations of the Native peoples, who had been established in Ontario since it emerged from under the ice some ten thousand years earlier, had well-established procedures to maintain order, mediate disputes, and control wrongdoers. In 1797 aboriginal law still prevailed in most of what is now Ontario. French and later British law held sway only in territory formally ceded to the Crown. The zeal of Upper Canada's administrators to extend the range of ceded territory, in fact, was matched by their reluctance to apply British law in regions not yet ceded to the Crown. As a result, Native authority and Native law remained unchallenged in most

Becoming Learned and Honourable, 1797-1822

17

A LEGAL FRAMEWORK FOR UPPER CANADA

of what is now Ontario at the time the Law Society was founded. The law of France had touched Ontario, though slightly. Before the conquest, the law of New France applied to the handful of forts and scattering of settlements at places like Cataraqui, Niagara, Detroit, and Michilimackinac. In 1763, the Treaty of Paris, which ended the war of the conquest, declared that English law would henceforth operate in Quebec, as the new British colony on the St Lawrence was renamed. Nevertheless, Quebec quickly acquired a hybrid legal regime. First informally and then by act of Parliament, the British governors made concessions to traditional French practices. They authorized the application of French civil law alongside English criminal law, and they recognized the right of Roman Catholics to practise law in Quebec. (This recognition was continued in Upper Canada, and it was no small concession. In proudly Protestant Britain, would-be lawyers were required to declare on oath that they rejected the Catholic doctrine of transubstantiation. One of the founding members of the Law Society of Upper Canada, however, was a Catholic, Angus Macdonell, who swore a barrister's oath that did not offend his religion.) In 1774, when Britain enlarged the boundaries of Quebec to include most of the drainage basin of the Great Lakes, Quebec's hybrid legal regime was extended to the colonial settlements of what is now Ontario. At first that meant only a few fur traders and a handful of farm families around Detroit. Then in 1783 came recognition of the independence of the United States - and of the permanent presence in the colony of Quebec of some ten thousand Loyalist refugees from the Thirteen Colonies, many of whom soon moved upriver to found new communities in what is now Ontario. These American Loyalists, exiles for the sake of their British allegiance, had not expected to live under French civil law. Well-connected and with strong claims upon the gratitude of the British Crown, they began agitating almost at once for an end to this anomaly. Nevertheless, until 1792, the founders of English-speaking Ontario and their lawyers were governed from Quebec City by a regime designed to maintain British control over a French population. There was no law society in British Quebec. In the early years of the British colony, as in its French predecessor, a lawyer was whomever the governor declared to be a lawyer. In 1785, the gov18

The Law Society of Upper Canada

ernor, at the lawyers1 request, decreed that henceforth lawyers would be required to serve articles and demonstrate their fitness to the courts, which held the power to call to the bar and to set standards of conduct. The earliest lawyers of Ontario, therefore, looked to the courts for their right to practise and to the law offices of Montreal for their professional training, which encompassed French civil law as well as British criminal procedure. Such was the experience of the first identified lawyer to practise in Ontario, Walter Roe. Roe trained in Montreal, was called to the bar in 1789, and practised in the largely francophone communities around Detroit until his death in 1801. During his twelve years of practice, however, Roe's hybrid French-English legal world was eclipsed which is perhaps why he was one of the five Upper Canadian lawyers who were not present at the founding of the Law Society, and indeed why he never attended any of its meetings.^ The transformation of the French-English legal hybrid into a wholly British legal community between 1791 and 1797 began with John Graves Simcoe, Upper Canada's first lieutenant-governor. A soldier of the Empire by career and by temperament, Simcoe dreamed of being the instrument by which the lost American colonies would be returned to their allegiance. Though that aspiration may have been extreme, he was perfectly attuned to British policy in his determination to apply 'free, honourable British government and a pure administration of its laws' in the colony that was being entrusted to him. Seeking how best to administer the North American colonies that remained British, British policy makers had concluded that a key cause of the American Revolution lay in the excessive power, and consequent sense of independent authority, wielded by the colonial legislatures of the Thirteen Colonies. British authority was thought to have lost respect, not because it had been despotically powerful, but because it had been weak to the point of irrelevance.^ By 1791 Britain had largely conceded the pre-revolutionary American claim that colonials were entitled to the same political rights as Britons. But how was Britain to give colonials 'the rights of Englishmen' without seeing them drift into independence? The answer was enshrined in the Constitutional Act of that year, which established Upper and Lower Canada and provided them with new institutions of government. The colonies would have elected Becoming Learned and Honourable, 1797-1822

19

John Graves Simcoe, soldier, statesman, and LieutenantGovernor of Upper Canada, 1792-8, might have been a barrister instead. In his youth, he was briefly enrolled as a student^at-lavj of Lincoln s Inn.

William Osgoode. The youthful bachelor Chief Justice of Upper Canada (1792-4) established the judicial structures in which the first lawyers of Upper Canada would practise.

assemblies, but these would be balanced by powerful governors and the councils they appointed. These institutions, however, were only the first step. In the long run, the way to keep the colonies loyal and British was to create in them societies like Britain's, where longestablished patterns of deference would buttress the political power of local rulers much like Britain's. It was Simcoe's faith, and that of the authors of the act which founded Upper Canada, that proper institutions would bring into being that kind of British society in British North America. 'Attention should be paid/ Simcoe urged shortly before leaving for North America, 'that British customs, manners, and principles in the most trivial as well as serious matters should be promoted and inculcated to obtain their due ascendancy, to assimilate the colony with the parent state, and to bear insensibly all their habitual influence in the support of that British Constitution which has been so wisely extended to that country/ Simcoe believed, in effect, that by duplicating British institutions in its colonies, one could re-create British society itself, and so infuse a lasting commitment to Britain, its monarchy, and its empire.^ Regarding the institutions of the law, Simcoe was content to leave the details to others, although in his youth he had briefly been enrolled at the Inns of Court. When he drafted a list of the elements of government required for his new colony, he listed English law only seventh, and his comments under that heading were brief. 'The placing [of] so respectable a Man as Mr Osgoode at the Head of the Law Department leaves me with nothing to desire on that subject/ he declared. The detail work, in other words, would be left to William Osgoode.^ William Osgoode came to Upper Canada as the colony's chief justice, but Simcoe was not wrong to call him 'Head of the Law Department.' In the eighteenth century, separation of the executive and the judiciary was far from total, and Osgoode was indeed Simcoe's key adviser on legal policy. As chief justice, he headed Simcoe's Executive Council and sat as speaker in the appointed upper house, the Legislative Council. He drafted much of the colony's early legislation, and the creation of legal structures for Upper Canada was mostly his work. (The attorney general, by comparison, was merely the Crown's lawyer, not a political officer. He did not need even a seat in the Assembly. )^ 20

The Law Society of Upper Canada

Osgoode, just thirty-eight when he arrived in Upper Canada in 1792, had got his job in the normal fashion: patronage. A Lincoln's Inn barrister, he had written a respected text and had some courtroom success, and he seems to have been a competent legal draftsman and administrator. He would never reach the top in England his father had been merely a prosperous tradesman - but his legal and political standing was good enough by 1791 to secure him the colonial chief justiceship. A term-of service in the colonies would guarantee both social standing and a pension to support him for the rest of his life. His commitment, in other words, was to his career rather than to Upper Canada; he never intended to stay longer than necessary. He seems to have been charming and affable, at least with those he considered his social equals, and he enjoyed the governor's confidence throughout his brief tenure in Upper Canada. But he had none of Simcoe's crusading zeal for the cause of empire. Neither personality nor length of tenure would have preserved Osgoode's name in Upper Canada had he not been the founder of its judiciary.^ When Upper Canada and Lower Canada were divided, each retained the laws of the predecessor colony of Quebec unless and until the laws were specifically changed. Chief Justice Osgoode, therefore, inherited the court structures that had evolved since the start of British rule. These he - and Simcoe - found wholly unsatisfactory. Upper Canada's local and mostly lay courts offended the Simcoe vision of purely British institutions bringing into being a British society, and their amateur simplicity was no virtue to Osgoode, a professional barrister used to the full panoply of London's law courts. Osgoode's Judicature Act of 1794 proposed formal English jurisprudence for the colony. Henceforth, the keystone of the court system would be the court of King's Bench, which would have unlimited civil and criminal jurisdiction. Its three judges, the chief justice and two puisne (i.e., junior, and pronounced 'puny') justices, would sit quarterly at the colonial capital. They would apply English law with few modifications. Osgoode acknowledged that a single court with a fixed location - the judges would travel around the province only for annual assizes - might create inconvenience, but he would not be deterred. 'Whatever difficulties or delays may proceed from resorting to a Supreme Court,' he declared, 'they will Becoming Learned and Honourable, 1797-1822

21

be more than counter-balanced by the Advantages arising from a regular and unsuspected Administration of Justice/9 Local quarter sessions would survive, as would the recently established local courts of requests and the new district courts, all staffed by lay judges and hearing all who appeared before them. But important civil and criminal matters, and all appeals from the lower courts, would be reserved for the three professional judges of King's Bench. Appeals from King's Bench would go to the governor and Executive Council, but the chief justice was president of that council. 10 Osgoode's new legal regime did not emerge unchallenged. In fact, his Judicature Act provoked the first serious opposition campaign in Upper Canada's short history and the most articulate challenge to Simcoe's belief that it was desirable, let alone possible, to give Upper Canada 'the image and transcript' of the British Constitution. The challenge came from two members of the Legislative Council, Richard Cartwright and Robert Hamilton, two prosperous and powerful merchants who also sat as judges of the Court of Common Pleas, the civil court that Osgoode's Judicature Act would abolish. When Osgoode introduced the legislation, Cartwright organized the opposition. Cartwright and Hamilton listed the delays and complications that would plague a judicial process focused on a single court, based at the capital and following the elaborate procedures of the English courts. He quoted Blackstone on the evils of justice delayed, and applauded the cheapness and simplicity of the existing courts. He argued that the new law would establish a system 'which by the expense, delays and embarrassments that must necessarily attend it, will infallibly operate as a denial of justice in nine out of ten - I had almost said ninety-nine out of a hundred - cases that our small and uncomplicated affairs are likely to produce.' In flat contradiction to Simcoe, Cartwright declared that English institutions had to be adapted to colonial realities (of which, not incidentally, leading colonials like himself and Hamilton were much better informed than newly arrived Englishmen like Simcoe or Osgoode). Instead, Cartwright urged continued reliance on simple, inexpensive local courts where lay magistrates heard the colonists present their own cases.*1 These arguments won few converts even among the elected 22

The Law Society of Upper Canada

assemblymen, who might have been expected to distrust expensive and remote courts. Cartwright and Hamilton, and merchants like them, had always been frequent plaintiffs in the Court of Common Pleas, usually pursuing their commercial debtors for payment. But the same merchants, as active and adept community leaders, were nearly automatic choices for judgeships in this lay court. Sitting as judges, Cartwright and Hamilton had consistently interpreted the loose procedural rules in their own favour. As Simcoe put it, they 'decided every cause without even the intervention of a jury/ Robert Hamilton, indeed, had made himself the largest land speculator in the colony, partly by the frequency with which he seized land from creditors on the orders of a court where he himself sat as judge. The assemblymen, who certainly represented merchants' debtors (if they were not themselves indebted to the colony's Cartwrights and Hamiltons), turned out not to share Cartwright's enthusiasm for the convenience and speed he identified in the lay courts. ^ In effect, the elected representatives turned Cartwright's arguments around. Cartwright had said British justice must be adapted to local conditions. The assemblymen declared, however, that local justice as they had experienced it was no justice at all, and they would prefer the full panoply of the law as much as Osgoode did. As Simcoe reported with satisfaction, the Assembly felt that 'a court composed of persons regularly bred to the profession of law would probably differ in their opinion from the present expositors upon the time and place of payment of their notes of hand.' Only appeals to propriety convinced the Assembly to take two days to approve the Judicature Act, instead of giving all three readings in a single day.1^ Within days of passage of his act, William Osgoode departed from the Upper Canadian scene. The chief justiceship of Lower Canada had become available, and Osgoode seized the opportunity for promotion to the larger colony, which offered better pay and greater prestige. By 1799, Osgoode was eager for home, asking that his 'service in a most severe and rigorous climate may justify his hope of obtaining through your grace's mediation such a moderate provision of his majesty's gracious bounty as may enable your memorialist to pass the remainder of his days in dutiful obedience to the king and grateful attachment to your grace in his native Becoming Learned and Honourable, 1797-1822

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country of England/ In time this wish was granted, and he returned home, not yet fifty, with a generous pension, to adopt a routine one of his friends eventually described as 'hunting, good society, and good dinners/ Osgoode expressed no further interest in Upper Canada and died as he preferred to live, 'an easy, rich, indolent bachelor/ in 1824.14 In his fight against the Judicature Act, Richard Cartwright had made himself Upper Canada's first anti-lawyer politician. The act, he cried, 'comes with all the glorious uncertainties of the law in its train, holding out wealth and distinction to the man of law, but poverty and distress to the unfortunate client/ Besides, said Cartwright, even if good lawyers could help settlers, 'the business of the country is by no means equal to support respectable characters of the profession, and the House need not be told that the understrappers of it are the greatest pest that a society could be cursed with/15 When these appeals failed to sway any votes against the act, Cartwright reconciled himself to the need to provide lawyers for Upper Canada. Indeed, two days after it passed, he himself introduced the bill which authorized the lieutenant-governor to create lawyers by executive fiat. Though the bill broke with the British tradition that lawyers should be trained by lawyers and called by judges, it was an essential complement to the Judicature Act, for the court of King's Bench could not function without lawyers to practise before it. Since there were almost no lawyers in Upper Canada, and few seemed likely to be drawn there from elsewhere, they had to be created. Cartwright himself apologized for this bill, calling it 'a miserable expedient' and joking about the beneficiaries 'who, without any previous study or training, and by the mere magic virtue of the Privy Seal, are at once to start up adepts in the science of law, and proficient in the intricate practice of Westminster Hall/ Osgoode and Simcoe, sticklers for British precedent, probably liked it no better, but everyone seems to have accepted the necessity of force-feeding a legal community into being in order to permit the court of King's Bench to function. The act passed without opposition. It gave Simcoe two years in which he could license no more than sixteen lawyers, who, it was hoped, would devote themselves to the law and develop expertise in it. Simcoe used the power to appoint men 24

The Law Society of Upper Canada

already in the royal service and leaders of local communities, often men who had already begun serving their neighbours as lay advocates in the old courts. Most of the men who would found the Law Society in 1797 became lawyers by Simcoe's authority alone.16 When Simcoe's temporary authority to license lawyers expired after two years, the ordinance of 1785 (by which lawyers who served articles and won the approval of the legal community would be called to the bar by the chief justice) was restored to force. By then, Simcoe had left the colony. In the summer of 1796, suffering from illness and perhaps also from disillusion (all his most enthusiastic statements about Upper Canada were made early in his tenure or before he arrived there), Simcoe went to Britain. While he was there his ambitions turned elsewhere, and he resigned his office in 1798. By that time the next step in developing a legal profession in Upper Canada had been taken. Upper Canada's embryo legal community might have operated indefinitely under the terms of the 1785 law. It conformed to the rule of most communities where the British legal system existed in the late eighteenth century: that is, lawyers were supervised by the courts in which they practised. The authority of judges to call to the bar and to set professional standards remained unchallenged not only in the other colonies of British North America but throughout Britain's empire and in the United States as well. Official associations of lawyers with governing authority over the profession were both superfluous and rare in 1797. Nevertheless, Upper Canada opted in that year for a new legislative initiative. In July 1797 the legislature repealed the 1785 law entirely and authorized a new governing body for lawyers, the Law Society of Upper Canada. John White has usually been identified as the prime mover of that initiative. John White, first attorney general and first treasurer of the Law Society of Upper Canada, is best known for having been shot dead in a duel provoked by his slurs on his ex-mistress and her husband. This rather disreputable death ended a not much more edifying career. White had been unsuccessful as a barrister in England and was preparing to take holy orders (which would have nullified his call to the bar) when William Osgoode, lobbied by a mutual friend, had him named attorney general of Upper Canada. The founding attorney general had few of the powers and little of the prestige that Becoming Learned and Honourable, 1797-1822

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subsequently attached to the office. He was in the shadow of both Osgoode and Simcoe, and Judge William Dummer Powell, who was one of the few trained lawyers in the province, considered him incompetent. Nevertheless, White is generally given credit for the next decisive step in shaping the Upper Canadian legal profession: the Law Society Act, with its substantial transfer of authority to the lawyers of the colony. ^ The association between White and the legislation that created the Law Society has been almost entirely conjectural. No positive evidence links White to the drafting of the act, and he held no seat in the legislature when it passed. Still, White as attorney general was the leader of the bar, and he became the first head of the new Law Society. The usual conjecture has been that he, like Simcoe and Osgoode, wished to assimilate Upper Canadian legal institutions to British precedents, and that he created the Law Society of Upper Canada in imitation of the Inns of Court where he himself had studied law. On close examination, however, it becomes less certain that White had either the influence or the inclination to remake the legal profession of the colony. By the time Simcoe and Osgoode left Upper Canada, White had been largely cut out of the circles of power. Even for legal advice the colonial administrators were more likely to turn to the judges than to their own law officer. In the last years of his life, despite his friendship with Simcoe's temporary replacement, administrator Peter Russell, White seems to have been increasingly passive, querulous, gout-ridden, and out of favour.18 More important, the society created by the act of 1797 should have offended rather than flattered White's sense of appropriate English practice. During his tenure as attorney general, White had shown no small sensitivity to the rights and privileges of the bar. Both as the Crown's lawyer and in the private practice he had begun as soon as he arrived in Upper Canada, he had been constantly in the lay courts, and his opinion of them was harshly negative. He had protested the presence of lay advocates in the pre-1794 Court of Common Pleas even when he was almost the only formally qualified lawyer available, and he wrote dismissively of the 'irregularity, prejudice, and confusion5 that prevailed there. He must have had reservations about the law which authorized the 26

The Law Society of Upper Canada

lieutenant-governor to create lawyers by decree. And the Law Society Act of 1797 should have been equally troubling.19 Despite use of traditional English terms such as 'barrister,' 'bencher,' and 'treasurer' in the legislation, the Law Society of Upper Canada was an unprecedented creation. ('Law Society' itself was used only informally in England in 1797, as a short form for The Society of Gentleman Practisers of the Law and Equity, an organization of attorneys and solicitors, not barristers.) It was simply not possible for legislative fiat to create the tradition-encrusted institutions and practices which governed English lawyers, and any good Inns of Court barrister should have been offended by the suggestion that a colonial legislature could conjure Inns and barristers out of thin air. Until the mid-nineteenth century, when other Britishderived legal communities began to transfer authority over their legal professions from chief justices to the professions themselves, the Law Society of Upper Canada had no close analogues anywhere in the world. That White was a stickler for British precedent should have militated against his supporting such an innovation.20* Not only is there nothing tangible to suggest that White drafted the Law Society Act, but in the thirty months he lived after the founding of the Law Society of Upper Canada, he seems to have been completely uninterested in it. As senior member of the profession by virtue of his office, he became the society's first treasurer and chaired its first meeting, but he did not even bother to submit the rules passed at that meeting for the judicial approval they required, and he called no more meetings during his term. The fact that White was a lone dissenter when his more active successor proposed new rules at a second meeting suggests that he was not active in drafting them. If not John White, who was the instigator of the Law Society Act? There was then no firm hand at the helm in Upper Canada. Simcoe and Osgoode had both left the colony. Peter Russell, who was acting in Simcoe's place, had no mandate (and little inclination) for bold initiatives, and Chief Justice John Elmsley was both new and already at odds with most of his new colleagues. In any case, the records of the Upper Canadian Assembly and Council which passed the Law Society Act were put to the torch along with the colonial legislature when the Americans occupied York in 1813, and no copies survive. Given the dearth of documentary eviBecoming Learned and Honourable, 1797-1822

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* In 1830 the British Privy Council, ruling on a case from Antigua, and apparently quite oblivious to the existence of the Law Society of Upper Canada, declared, 'in the colonies there are no Inns of Court [and so] advocates and attorneys have always been admitted ... by the Judges, and the Judges alone.'

dence on the matter, a better question to pursue is not who created the Law Society but why it was created. Comparison with other jurisdictions is suggestive, if only indirectly. In 1785, when the lawyers of the colony of Quebec felt threatened by unqualified practitioners, they secured an ordinance which empowered the chief justice - not the legal profession - to maintain standards and to call an appropriate number of properly qualified lawyers to the bar. This was the system which had come to prevail throughout the Thirteen Colonies during the eighteenth century, and it endured in the states of the United States after independence, where either a state chief justice or the judges of each particular court determined who became a lawyer and under what conditions. While they usually consulted the bar's unofficial leaders about the governance of the profession, American judges at the end of the eighteenth century had not delegated formal authority to them.21 In another British North American colony created out of the Loyalist migration, judicial control over the profession was accepted without legislation. When the colony of New Brunswick was established in 1784, many of the best legal minds of the Thirteen Colonies, exiled for the sake of their loyalty to the British connection, were living in the new city of Saint John and eager to take up their profession again. The first chief justice of New Brunswick was an admired New York judge, George Ludlow. One of his puisne justices, former Massachusetts attorney general James Putnam, had trained such luminaries as future President John Adams and had been called the greatest lawyer in America. The founding bar was of equivalent calibre, including several college graduates and barristers schooled at the Inns of Court. Early New Brunswick, in fact, had more superbly trained lawyers than it could ever support in the style they expected. Though they suffered in their pocketbook for being so numerous, the early New Brunswick lawyers felt perfectly secure about their professional expertise and status. As a legal community united by class, outlook, and many family ties, they were able to organize themselves for more than a generation without any rules or institutions whatsoever. Leading lawyers set the tone by informal, gentlemanly standards, relying on the chief justice to enforce propriety, if any enforcement were needed. Not until the hegemony of 28

The Law Society of Upper Canada

this legal elite faced challenge in the 1820s did New Brunswick's judges and lawyers begin to promulgate rules and institutions for governing the legal profession. In the decades when Upper Canada's Law Society was taking up the authority offered it by the 1797 act, New Brunswick's lawyers - who were not only more numerous and more influential, but by the standards of the day substantially more learned and honourable as well - were governing themselves quite happily without a governing body. The New Brunswick lawyers of 1797 did not feel deprived. On the contrary, they would not have tolerated the suggestion that a learned and honourable profession was something that had to be secured to their province. They would have insisted that one already existed, in their persons. In any case, they would have dismissed any legislative proposal which provided for anything beyond the general supervision of the chief justice (a fellow lawyer sprung from their own background) as a challenge to their dignity and an unseemly interference with the independence of the judicial system. Far from being mandatory, membership in the legal society they formed would long remain restricted to an exclusive handful of leading barristers.22 The sharp contrast of New Brunswick's experience highlights the problem with which Upper Canada was grappling. In early Upper Canada, there was no community of lawyers whose dignity was secure and whose status was beyond question. To keep up to the standards of New Brunswick or Massachusetts, let alone England, Chief Justice Elmsley or Attorney General White would have had to discountenance virtually all the practitioners in the colony and hope for a migration of gentleman lawyers to create a proper standard and train a new generation of Upper Canadians up to it. That was impossible. Not even Simcoe's passionate advocacy of Upper Canada had drawn more than a couple of lawyers to the remote backwoods, and the only lawyers coming from Britain were those tempted by the apparently lucrative sinecures of the Crown. In 1794 the Crown's officials had accepted, probably without much enthusiasm, the necessity to make legal practitioners out of the materials at hand. By 1797 the same necessity was pulling them towards the next step, no matter how unconventional (and therefore unwelcome) it seemed to them. From the viewpoint of the English barristers who were the Becoming Learned and Honourable, 1797-1822

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:

This line of argument is strengthened by the experience of the early lawyers of New South Wales, who were barred from practice by the chief justice in 1814, as soon the arrival of some English-trained lawyers seemed likely. Admittedly, the unfortunate group are a special case, for they were lawyers of whom it might be said that not only were they all crooks but they were all convicted. The early practitioners of New South Wales, in fact, were transported convicts who took up (or returned to) the law after serving their terms and receiving pardons. Neither their pardons nor their local experience, however, availed against the refusal of emigrant English lawyers to practise alongside them.

Crown's law officers in Upper Canada, the Law Society Act probably provided a way for the existing bar to pull itself up by its own bootstraps. Authorizing the lawyers to organize and govern themselves provided a way by which they might encourage each other to a gradual improvement. Attorney General White and Chief Justice Elmsley, that is, may have accepted the unusual and counter-traditional new Law Society, not as a due recognition of the learned and honourable status of the lawyers (for lawyers who enjoyed such status would have disdained legislation to say so), but as a necessary step to improve a bar barely up to their dignity. The colonial government, generally committed to the need for strict hierarchy and central control, was not much inclined to delegate power to anyone, but it evidently saw no threat in the legal community of 1797. Another motive behind the unusual step proposed in the 1797 act probably operated more insistently with the colonial lawyers than with the Crown law officers. The legal credentials of the men licensed by Simcoe were hardly secure, despite the legislative act of 1794 that authorized his actions. If a handful of English barristers came to Upper Canada and declined to practise alongside these untrained amateurs, who could say how the chief justice, himself an Inns of Court man, would respond? The 1797 act cleverly protected this first, and ill-qualified, Upper Canadian bar from being overwhelmed and dismissed by a few better-qualified legal gentlemen who might arrive from Britain, or even from other colonies.23* In almost the only contemporary comment on the 1797 act that survives, Robert Gray alluded to protection of the local practitioners as a motive for the creation of the Law Society. Gray was a wellconnected Loyalist's son who had been licensed to practise law and then made solicitor general by Simcoe. Since he held a seat in the Assembly, he provided a report to the executive on each session's legislation in the lower house. In the brief account of the Law Society Act which he included in his report in 1797, Gray quoted the act's phrases about the value to the province of a learned and honourable profession. He also sketched out a second incentive, declaring that it was 'thought advisable in some measure to restrict young men bred to the profession in other countries and provinces coming to reside in this province, in order that their admission to the bar might not operate as a hardship upon the young men educated in this province.'24 30

The Law Society of Upper Canada

Gray was touching on a subtle point of legislative drafting. On the issue of lawyers who might immigrate to the colony, the 1797 act essentially recapitulated the 1785 ordinance, which had emphatically affirmed the right of any qualified English or colonial barrister to practise in the courts of the province. The new law raised no barrier; it simply tacked on an additional requirement. In order to begin practising, the qualified immigrant barrister would now join the Law Society and conform to its rules. The 1797 act, in other words, did not change the rules for immigrant lawyers, but it changed who ruled on the cases. It raised no barrier to immigrants who might come to compete for a share of the legal business in Upper Canada, and indeed the colonial lawyers soon showed they were quite willing to admit qualified immigrants. But after 1797 the immigrant lawyer was required to have his authority to practise ratified by the Law Society of Upper Canada and had thereby to acknowledge its members' standing as equivalent to his own. The act did not curtail immigrant lawyers' right to practise. It required them merely to establish their right, and it provided membership in the Law Society as a convenient means to do so. Hence, the act neatly removed the risk that some proud barrister might persuade the chief justice that the underqualified locals were an affront to his dignity and to the court's. If these were the motives behind the 1797 act - to provide a means for the existing bar to organize and improve itself, but also to shelter its members from being superseded by better-qualified newcomers who might find the incumbents' credentials inadequate - it becomes possible to infer who were the bill's supporters. The existing bar would have reason to welcome it, but only a couple of its members were in the Assembly in 1797. However, a plan both to improve and to protect the colonial bar could also hope for the support of men of standing in the colony, men who not only needed legal services but also might see in the law a useful avenue for their sons to advance themselves. That describes almost the whole membership of the 1797 Assembly of Upper Canada, and much of the upper house too. For most senior colonial appointments, the governors still looked to Britain, leaving the colonial gentry of this frontier province with limited access to the kind of respectable and remunerative positions by which they aspired to live. The shortage of immigrant lawyers, however, had provided an opportunity for the Becoming Learned and Honourable, 1797-1822

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Robert Isaac Dey Gray. The first solicitor general of Upper Canada, Gray may have been the prime mover behind the founding of the Law Society of Upper Canada. He served as its second treasurer, 1798-1801.

colonial gentry to secure to itself the legal profession, and the 1797 act gave them the guarantees they required. Given that interpretation of the motives behind the Law Society Act, Robert Isaac Dey Gray suddenly looms large among likely proponents of the proposal to empower the lawyers. As a son of the colonial gentry, as a lawyer by executive licence, and as a member of the Assembly, he fits the profile of its most likely supporters. Moreover, Gray had substantial legal ambitions. He had learned some law in Montreal under the auspices of his godparent, merchant Isaac Ogden. Even before Simcoe licensed him to practise, he had been busy doing legal work in eastern Upper Canada, and in appointing him solicitor general in 1795, Simcoe described him as 'a young gentlemen regularly bred to that profession.' When the authorities in London questioned the need for a solicitor general in Upper Canada, however, Simcoe acknowledged that he had appointed Gray 'in hopes that the salary of solicitor general, however scanty, might have enabled him to have perfected his education by attending for two or three years at Westminster Hall, and by these means acquire the habits and character of the English bar/25 If Simcoe's offer to provide Gray with a senior government appointment as a kind of student loan had borne fruit, Gray might have become the first Upper Canadian to acquire the credentials of an English barrister. However, his father's death soon obliged Gray to forego those ambitions, leaving him particularly aware of the value of such credentials, now they were just beyond his grasp. Gray had good reason both to want some local vehicle to improve his qualifications and also to want protection against the condescension of those who had the credentials denied to him. It is not certain that Robert Gray was the prime mover in creating the Law Society in 1797. However, he certainly revived the society almost single-handedly two years later. In June 1799, when the Law Society was two years old but had apparently done nothing since its founding meeting, a would-be lawyer sought to circumvent its authority. Thomas Ward, who had been articling with Attorney General White for three years, asked the Legislative Assembly and Council to give him a licence to practise law. The assembly referred Ward's petition to a committee consisting of Gray and Timothy Thompson, the other lawyer in the Assembly.26 In the committee report he presented just two days later, on 20 32

The Law Society of Upper Canada

June 1799, Gray spoke of the Law Society as if it were an active and vigorous body, but he also took care to be deferential both to Ward and to the Assembly. Gray pointed out modestly that the house was ill-equipped for examining the credentials of lawyers, and he reminded the legislators that they had established the Law Society to handle precisely this kind of issue. Despite Ward's obvious virtues, he suggested, the house would be defeating its own intentions if it did not refer him to the institution it had established two years earlier.2? The Assembly (and the Council) accepted Gray's advice. Instead of receiving a legislative declaration of his right to practise law, Ward was referred to the Law Society - where he was admitted in due course and became a long-time practitioner and eventually a bencher. The Law Society's authority had been reaffirmed - against a challenge that had come from John White's office. It may not have been by coincidence, moreover, that within the month Gray dispatched a letter calling on his fellow lawyers to attend the Law Society's second meeting. By doing so, he probably prevented the extinction of the Law Society of Upper Canada. Robert Gray's term as treasurer was supposed to end in July 1799, and the rule of annual rotation according to seniority (as passed at Newark in 1797) would have given the treasurership to Walter Roe in faraway Sandwich on the Detroit River. Roe was not only distant, but also reducing his practice (and, it was alleged, turning to alcohol). Had responsibility for the Law Society, after its two initial years of total ineffectually, devolved to Roe, the society might well have faded away altogether. That possibility, along with the narrow escape in the Ward case, seems to have stimulated Gray to action. Despite the rule, he appropriated an extension to his term as treasurer (he would eventually complete three consecutive oneyear terms), and he at last submitted the three rules passed by the founding meeting to the King's Bench judges (whose assent to Law Society rules was required by the 1797 act). With their assent to the rules in hand, he wrote to fourteen fellow practitioners, requiring (not merely inviting) their attendance at a meeting of the Law Society 'to take into consideration the state of the said society and to make further rules and regulations for its future welfare.' Henceforth, despite a few lurches in its early years, the Law Society of Upper Canada would remain a going concern.2^ Becoming Learned and Honourable. ,1797-1822

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Robert Gray was only twenty-five when he helped found the Law Society, and only thirty-two when he died in 1804. The records reveal little of his personality or of his skills as a lawyer. But if we can judge from Simcoe's high opinion and from the political finesse he displayed, probably in planning the Law Society in 1797, certainly in reviving it in 1799, Gray might well have become a John Beverley Robinson or a William Warren Baldwin; that is, both a powerful force in the province and a recognized founder of the Law Society of Upper Canada, The Law Society of Upper Canada was founded in 1797 not so much in earnest homage to the learned and honourable condition of the profession, as in hopes of gradually bringing it up to standards other communities of lawyers took for granted. In retrospect, what is most striking is not how long that process took, but how quickly it succeeded. In 1821, in the society's twenty-fifth year, a phalanx of powerful politicians who were also Law Society benchers confidently piloted the Law Society's own amendments to the 1797 act through the Legislative Assembly and Council. During the debate, one of the lawyer-politicians, a leading barrister who had begun with no legal credentials beyond his own brains and the governor's licence, was by then confident enough in the learning and honour of his society to sneer in the house at England's revered Inns of Court.

THE ENGLISH BACKGROUND

In 1833 a committee of the Law Society of Upper Canada declared, 'this Society is to every extent an Inn of Court similar to one of the Inns of Court in the Mother Country/ Ironically, the British Privy Council had declared categorically three years earlier that there were no Inns of Court (that is, no self-governing legal professions) in the colonies. Nevertheless, the Law Society committee went on to report that in its efforts to define procedural standards for the society, it had worked 'almost entirely from first principles, having no satisfactory information as to the course adopted by the Inns of Court in the Mother Country/29 These phrases might well summarize the enduring attitude of the Law Society to British precedents. The society has always associated itself with the rich traditions of centuries of English legal practice - without being significantly constrained by them. Even 34

The Law Society of Upper Canada

English law, though its precedents were rather more binding on Upper Canadian decisions, did not come to the colony without modification. Lawyers celebrate the traditions of a common law and a legal profession that have come down intact over vast ages from the misty origins of British history. Nevertheless, the legal regime which Upper Canada inherited from Britain late in the eighteenth century was in several ways a new creation, a product of eighteenth century developments. And the Inns of Court, though they governed barristers in England as the Law Society governed lawyers in Ontario, provided a sketchy ideal rather than a practical model for Ontario's Law Society. English common law has its roots deep in antiquity, its birth linked to the beginnings of secular authority and the evolution of the nation state. Enduring legal institutions can be identified in England as early as the 1100s. The first great common law treatises, GlanviPs and Bracton's, appeared in the twelfth and thirteenth centuries, bracketing the signing in 1215 of Magna Carta, an important statement of the rule of law over the arbitrary power of the king. The fourteenth century confirmed the existence of justices of the peace, quarter sessions, the courts of King's Bench and Common Pleas, assizes, and also the legal profession and lawyers. 'Common law' has always had several meanings. For the early periods, common law often meant the secular law as opposed to ecclesiastical law. Common law has also meant the law made by judges over generations, in contrast to statute law, which is made by Parliament. And common law has also been used in juxtaposition to equity, which from the fifteenth to the nineteenth century was a separate jurisdiction associated with the court of Chancery. At the same time, however, common law has always been taken to encompass, in the words of the seventeenth-century jurist Coke, 'the principal and general law [which is] always understood ... when mention is made of the law of the land generally.' The first act of Upper Canada's first legislature was understood in this larger sense. When it introduced the English law of property and civil rights as of 15 October 1792 (the day the act was proclaimed by Simcoe) as the basis for civil law in the province, it declared that the whole English common law to that date was precedent for Upper Canada's courts. But from the start, there were Becoming Learned and Honourabk, 1797-1822

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notable differences between English and Upper Canadian legal institutions. Despite Simcoe's belief that British principles should apply 'in the most trivial as well as serious matters,' he had the poor law and the bankruptcy law omitted from the blanket importation of English law, on the grounds that neither was suitable to a frontier society. And even though Upper Canadian judges followed English precedents (even ones established long after 1792), colonial law inevitably diverged from its English root once the Upper Canadian legislature began to make new laws by statute. Upper Canada both did and did not import equity, the body of law administered in Chancery, that is, in the courts administered by the office of the Lord Chancellor of England. In the eighteenth and nineteenth centuries, the law of equity was a separate jurisdiction of the English legal regime. Theoretically, courts of equity operated on principles of fairness or natural justice rather than by the strict application of statutes or common law precedents. For instance, since the common law, which held that one either was or was not the owner of property, could recognize no intermediate interest, rules of equity rather than of common law had come to regulate mortgages and trusts, and supervision of both these matters had entered the jurisdiction of the Chancery. Injunctions, judicial guardianships, and other areas where equity principles mandated a judicial activism foreign to the common law also became Chancery mandates. On the principle of 'the chancellor's foot' (the aphorism that standards of law determined solely by the conscience of the chancellor would be no better than standards of measurement determined by the length of the chancellor's foot), Chancery law had by the eighteenth century become even more bound up by rules, precedents, and procedures than the common law. Chancery administered some vital territories of English law, yet for decades Upper Canada had no Chancery court. The lieutenantgovernor was chancellor of Upper Canada ex officio, and appointed masters in Chancery could process routine Chancery filings. But until 1837 there was no vice-chancellor, no Chancery court, and therefore (although the 1797 act gave the Law Society jurisdiction over equity lawyers) no Chancery practitioners in the province. Lacking a Chancery court, the Upper Canadian legal system was forced to improvise in those areas during its first forty years.

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The Law Society of Upper Canada

Not all the novelty in the law inherited by Upper Canada stemmed from imperfect transfer across the ocean. Much was new in England's own legal system. The eighteenth century had seen a transformation of criminal law practice in England, for instance. Until the 1730s, it was held that criminal trials involved little more than a determination of the facts. Defendants were denied legal counsel on the theory that the best possible defence was the accused's own courtroom demeanour. Criminal trials were a fast, free-form confrontation in which accusers, defendants, jury members, and judges all participated vigorously, without much preparation, and without lawyers. It was only after Crown officials began to participate directly in organizing prosecutions that defence counsel were granted a larger courtroom role. By the 1750s, a few lawyers had begun to be active in defence work, challenging judges on points of law, cross-examining witnesses, and generally developing a case for the defence to put against the prosecution's case. Though defence counsel would not have full freedom of action in the courtroom into the 1830s, the adversarial process was in effect invented in the mid-to-late eighteenth century, placing defence counsel and prosecuting lawyers at the heart of the criminal trial for the first time. William Garrow made his reputation as England's first great criminal defence lawyer in the 1780s; he seems to have coined the maxim 'Innocent until proven guilty' in the year the Constitutional Act created Upper Canada. This new prominence of criminal lawyers, which gradually reduced the accused, the judge, and the jury to more passive roles, was still new when Upper Canadian lawyers began applying it.^° The procedures of English civil law changed less during the eighteenth century. The law had, however, recently been codified by William Blackstone, a barrister of limited success but a pioneer of legal scholarship, whose Commentaries on the Laws of England appeared between 1765 and 1770. The Commentaries were intended less for legal professionals than for the educated English gentry, the men who managed estates and became justices of the peace, but Blackstone was very influential wherever lawyers were scarce. In the United States his book was 'both law school and law library' for generations of frontier lawyers, and in Upper Canada Richard Cartwright quoted Blackstone effectively when he disputed the

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official policy on the new court system. Blackstone's Commentaries was among the first volumes purchased for the new library when Osgoode Hall opened in 1832.^1 What Blackstone's Commentaries expressed most powerfully was the eighteenth-century ethos: law was fundamentally the law of property. Blackstone saw the right of property, which he famously defined as 'that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe/ as a matter of natural law, divinely ordained. He argued that the common law, and indeed civil society itself, had come into being to define and to buttress rights of property. For Blackstone it followed that the law must be made by, as well as for, property owners. He dismissed the notion that those who owned no property were entitled to participate in how society was governed.^ In Britain, the predominant property owners were the landed aristocracy. They were also the essential political class, and British law naturally expressed their interests. When William Osgoode asserted that the justice provided by courts run by gentlemen barristers would be 'unsuspected/ whereas merchant justice could never be impartial, he was expressing the belief that the aristocracy was above class and bias, and hence the natural arbiter of justice for the rest of society. Law, justice, and the protection of property were virtually all the same thing in late-eighteenth-century England and early Upper Canada. These views were age-old, of course. The law and the myth of the law had long been a vital touchstone of Englishness. Particularly since the 'Glorious Revolution' of 1688, the belief that the 'rights of Englishmen/ enshrined in and protected by the common law, were something special and unique had become an essential aspect of British patriotism. Eighteenth-century Britain prided itself on being the home of liberty, surrounded (and perennially threatened) by the tyrannical monarchies of continental Europe. Law and the rule of law were increasingly the justifying ideology of English society.^ But law was also increasingly a buttress of the property-owning elite's control. Scholars point to how property relations were transformed as eighteenth-century Britain became a commercial society and even aristocratic property owners turned to capitalist agricul38

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ture. The logic of Locke, Blackstone, and Adam Smith decreed that 'improvement' was impossible without private ownership of property, and common law judges came to agree. Hence the eighteenth century saw the rapid erosion of communal jurisdictions, rights of common pasture, and many other time-hallowed rights to use, as court rulings and laws enacted by property owners replaced them by straightforward property rights. In these matters, law was clearly a tool of repression - and seen as such by dispossessed victims who found their customary rights now dismissed in the courts of common law as illegal assaults on property rights.^4 In England, practitioners of the law had always been divided into two groups, one centred on the royal law courts of Westminster, the other spread throughout the country. Members of the first group, specializing in litigation, came to be known as barristers or advocates. Members of the second group, who focused more on the procedural steps and document-drafting that both litigation and routine estate management required, became the attorneys and solicitors. ('Solicitor' also came to be the specialized term for those lawyers qualified to practise in Chancery court, but since Chancery dealt with trusts, wills, marriage settlements, and similar vital concerns of the landed interest, there was a close association between solicitors' and attorneys' work.) The professional division between litigation and conveyancing (the courtroom lawyer and the office lawyer, that is) was firmly established in England by the late 1500s. By then barristers already enjoyed higher status than attorneys. The barristers were a small group, virtually all London-based, with a monopoly of the esoteric skills of courtroom advocacy in the royal courts. They made themselves remote from the public by accepting retainers only through attorneys. Attorneys were not only more numerous and more dispersed, but they could be seen as performing a more clerical function, both for their clients and for the barristers. Eventually, the barristers enforced a mandatory separation of the two professions. An English barrister could not be a solicitor or attorney, and a solicitor or attorney could not become a barrister. English attorneys and solicitors were loosely supervised by the courts until 1729. They came under the authority of an Attorneys and Solicitors Act in that year and did not acquire self-government until the (English) Law Society was incorporated in 1831.^5 Becoming Learned and Honourable, 1 797-1822

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;

English attorneys and solicitors were loosely supervised by the courts until 1729. They came under the authority of an Attorneys and Solicitors Act in that year and did not acquire self-government until the Law Society was incorporated in 1831.

In early times, the barristers had fought for a degree of self-government and control over entry to their profession. The legal profession had been born in the shadow of powerful royal and aristocratic patrons. To insist on a barrister's personal independence and on the autonomy of the profession as a whole probably reflected early lawyers' determination not to slip back to dependency. This need of a new and possibly fragile profession to strengthen and dignify its position also lay behind the rise of the Inns of Court as centres of legal learning and of general cultural sophistication around 1500. Barristers governed themselves through the Inns of Court. The barristers' four Inns - the Middle Temple, the Inner Temple, Lincoln's Inn, and Gray's Inn - were voluntary, unincorporated societies which made their homes in four clusters of buildings close to the royal law courts in the heart of London. Home to the bar since the fourteenth century, the Inns began as dining clubs and as hostels where aspiring barristers could live in close proximity to the courts, to each other, and to the barristers whose pupils they became. As part of the slow evolution of an independent legal profession, the members of these Inns began to take responsibility for governing and educating themselves. Without legislation or formal decree, the high court judges (themselves all drawn from the ranks of the barristers) gradually ceded supervision of the right to practise in the courts to the Inns, which became centres of legal education and arbiters of professional standards.* By the late eighteenth century, however, the Inns' distinction as centres of education was all in the past. Early in their history they had been rivals to Oxford and Cambridge, and gentlemen who never intended to practise law came to the Inns as the best possible places from which to participate in the literary and cultural life of the capital. But, as historian Wilfrid Prest explains, 'the Inns failed to enforce or even to provide a collegial atmosphere as a university might, and the inherently disorganized, uncodified state of the law prevented coherent study.'36 Once the independence and prestige of barristers was secured beyond challenge, the Inns ceased to give more than ritual attention to formal education. Gradually, they lost ground to the universities and other rival venues for educating the gentry. By the eighteenth century, the Inns maintained no entrance standard, no 40

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course of study, and no test of competence preceding call to the bar. The only requirement made of a prospective barrister during the five years he had to be enrolled as a student was to eat a certain number of dinners at his Inn. The hollowness of the education provided by the Inns of Courts exposed them to savage contempt from lovers of law and learning. Even the traditionally minded Blackstone thought the study of law should be moved to the universities. Edmund Burke, a student at the Middle Temple in the 1750s, complained that the law 'which should be the leading science in every well-ordered commonwealth remained in all the barbarism of the rudest times/ In a 1772 judgment, Lord Mansfield refused to accept legal reasoning presented from Lincoln's Inn because he knew the discussion had taken place after a dinner and therefore doubted the sobriety of all concerned. A century later, essayist Walter Bagehot, another former student of the Inns of Court, heaped scorn on their empty rituals and the 'farcicaP examinations they had recently introduced.37 In the eighteenth century, the Inns gave no more effort to their other functions than to education. As legal education in the Inns declined, most of their other functions also became vestigial. Not only was there little control of who entered the Inns and who was called to the bar, but virtually no one was ever disbarred. Far into the nineteenth century, the Inns had no rules, no procedures, and no standards to which anyone could be held - and no obvious contribution to make to the profession. Leading practitioners had ceased to seek election as benchers of the Inns of Court long before Bagehot described the benchers of Lincoln's Inn as 'old and rickety and much addicted to port wine.' All this contempt for the Inns was justified; but it could also mislead. To seek formal processes in the Inns was to misunderstand the essence of the English legal profession in the late eighteenth century: namely, that it was a profession of gentlemen. English legal gentlemen, living by a code which was imbibed from breeding and education and which needed no elaboration, understood themselves to be virtually above rules. No gentleman could be held to any pettifogging set of regulations, and anyone who would try to prove his status by reference to rules could hardly be a gentleman at all. In English society, and even more in the small world of the Becoming Learned and Honourable, 1797-1822

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English bar, it was obvious who was a gentleman, and so informal social controls served the legal profession perfectly well There was no need for disbarment procedures when the ostracism of those who breached the gentleman's code provided adequate sanction. Since non-gentlemen were unlikely to seek entry to the Inns, unlikely to be able to complete their studies, and most unlikely to succeed in practice even if called to the bar, there was no need for the ungentlemanly elaboration of entrance requirements or tests of competence to keep them out. With the independence and social standing of barristers long since secured, strenuous efforts by the Inns had become superfluous. To fulfil their functions, they needed only to be meeting places for the gentlemen of the bar. Successful barristers could esteem their Inn as such, though they learned their craft and had their success ratified elsewhere. Beneath the dinner-eating informality, furthermore, the education of English barristers was actually a rigorous and risky apprenticeship. Any man with money and breeding could join an Inn of Court, and all who remained for five years could be called to the bar. But the degree of barrister carried no guarantee of success at the English bar. The few who achieved professional success had to combine social connections and aptitude for the legal life with a great deal of hard work mastering their profession through private study, apprenticeship in chambers, and attendance at the courts. Many who attended the Inns were never called to the bar, many who were called never practised, and many who practised did not succeed. (William Osgoode and John White, in fact, had followed one common path for unsuccessful barristers, namely employment in the Crown's legal offices in the colonies.) Such a system, which condemned most entrants to professional failure despite years of preparation, could survive only when the entrants came from families with private means and were undeterred by the likelihood of never earning a living from practice. It worked well enough for eighteenth-century England, although it helped bring the Inns to crisis in the more utilitarian nineteenth.38 The Law Society of Upper Canada had cause to consider itself 'to every extent an Inn of Court/ By virtue of the 1797 act, it had acquired powers of government roughly equivalent to those the Inns enjoyed by traditional right: that is, control of legal education, call to the bar, and professional standards. And like the English 42

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Inns, the early legal community of Upper Canada espoused what has been called 'Georgian professionalism/ the belief that what defined a professional man was not skill or qualifications but status. A lawyer was a gentleman first and foremost, in Upper Canada as at Westminster. Still, despite their shared faiths, there was good reason why the Law Society of 1833 found it expedient to work out its own governing procedures, without any direct reliance on the English Inns it claimed to emulate. The English Inns, founded on the gentlemanly code, could afford to be proudly disdainful of formal procedures. They could insist, into the late nineteenth century, that they had none more onerous than obligatory dining. But the informal system by which England's barristers governed themselves could not operate in Upper Canada. The authority of Upper Canada's Law Society did not lie in traditions derived from antiquity, but derived from the specific language of a legislative act, subject to interpretation by lawyers and legislators, and from written rules and regulations which the law required the society to maintain. More important, it was never indisputable in Upper Canada who was a gentleman and hence a potential lawyer. Criteria had to be defined. Even among those conceded to be gentlemen, few Upper Canadians were so well-to-do as to be able to accept the informal English system in which the vast majority of those who undertook legal studies would never achieve financial security from practice. Here, too, Upper Canadian conditions pushed the Law Society towards predictable standards for entry and completion of legal studies. As a result, the Law Society of Upper Canada was from the beginning an organization of rules and procedures, striving to state clearly what would make likely, or bar the way to, professional standing and success. It resembled not so much the passive and contented Inns of Court of its own day as those of three hundred years earlier, when the English barristers needed active, innovative organizations to pursue the status and security they sought but had not yet achieved. Upper Canada's early lawyers still accepted gentility as the essential requirement of the lawyer. As it began to promulgate rules for entry, the Law Society wanted to identify gentlemen far more than to test for any specific legal skill or aptitude. Of course, the concept of the gentleman was absolutely gendered. To be a gentleBecoming Learned and Honourable, 1797-1822

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man and to be a professional, one required a certain independence of means and of character. Since the eighteenth century understood dependency as the essence of the female condition, the Law Society presumed it unnecessary to rule that one had to be a man to be a lawyer. But in general, Upper Canadian lawyers lived by written rules and standards. For would-be students, for call to the bar, for compliance with professional standards, the requirements were strictly laid out either in legislation or in the binding regulations passed by the Law Society and approved by the judges. Trying to make itself a society of gentlemen, the Law Society had to reject the informal procedures that had long defined the Inns of Court, It became an organization of rules at a time when its English exemplar was proudly disdainful of such arbitrary fetters. Hence, it made perfect sense for the committee to claim both that the society was an Inn of Court and that it had to shape its own procedures from first principles without reliance on the mother country. Throughout the English-speaking world, the gentlemanly ethos slowly lost some of its force during the nineteenth century. Virtually all professional organizations - and finally even the Inns of Court themselves - became governed by written rules. The process became so universal that most sociological study of the professions has taken self-government by formal regulations as an essential defining characteristic of professionalism. Nevertheless, the fact that the lawyers of Upper Canada seem to have been the When the courts and the Law Society moved to the site of Toronto in 1797, Chief Justice John Elmsley feared the population would be too small to provide juries for the high court.

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first professional community in the world authorized to govern themselves by formally promulgated rules does not mean that the province's early lawyers can or should be understood according to modern notions of professionalism. Being governed by rules so early probably eased the Ontario legal profession's transition from Georgian to modern professionalism in the later nineteenth century (when the same transformation was causing crisis for English barristers and the Inns of Court). But throughout the nineteenth century, Ontario's legal profession would still be governed as much by codes of gentility as by books of rules. The Law Society's founding meeting was the only one held in Newark. When the lawyers met there in the summer of 1797, Upper Canada's legislature and its offices of government had already begun moving to York. Chief Justice Elmsley resisted moving the court of King's Bench, fearing that the population of York was too small to supply juries (Elmsley was in any case 'nailed' to Newark by the expensive house he had purchased there on his arrival in 1796), but Attorney General White moved his office to York during 1797. The court and its lawyers eventually followed, and all subsequent meetings of the new society took place in York.39 Not that the lawyers rushed to meet again. As we have seen, the Law Society hardly existed until Robert Gray invited his fellow practitioners to consider the state of the society in 1799. This meeting, scheduled for the first day of Michaelmas term, 4 November 1799, was derailed by a procedural problem unforeseen by the first benchers' meeting. The first meeting had appointed six benchers, but the act of 1797 reserved the power of rule making to 'the society' - that is, to the full membership. During late 1799, one general meeting after another had to be adjourned without a vote for lack of a quorum. Finally, after some abortive meetings, the society passed seven new rules, including one that delegated governing authority to the benchers and set a quorum of five (later reduced to three), and another that made all members of that day into benchers. These rules received the judges' approval in January 1800. The Law Society would hold no more general meetings of the members for some 170 years.4°* Becoming Learned and Honourable, 1797-1822

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LAWYERS AND THE LAW SOCIETY, 1797-1812

Annual general meetings of the Law Society were required by revisions to the Law Society Act in 1970.

*The Barristers' Roll of the court of King's Bench, which supervised lawyers before 1797, should have been supplanted by the Law Society's own Roll of Barristers as of July 1797, but the act did not directly order the change. William Weekes was one of several who signed the King's Bench Roll after control of admittance had actually passed to the Law Society.

The only rule that provoked disagreement among the lawyers in 1799 was an apparently anodyne one about the registration of articling students. When first proposed at one of the November meetings, it met opposition from Attorney General White. Since the rule linked the requirements for students-at-law (that is, prospective barristers) and articled clerks (that is, prospective attorneys), it appears that White preferred separate requirements, presumably in anticipation of a separated profession. The Law Society approved the rule over White's opposition, but the judges of King's Bench withheld approval of this rule because of White's opposition. Six weeks later, however, White got himself shot dead. Since his passing left no benchers opposing the rule, the judges approved it. Upper Canadian practitioners retained the right to be both barrister and attorney (though the requirements were slightly different), and both branches of the profession remained under the supervision of the fledgling society.41 Once the benchers secured authority to run the Law Society, they turned to what would be the society's only real business for a couple of decades: examining and admitting new lawyers to the profession. At Easter 1801, as he neared the end of his three years as treasurer, Robert Gray proposed that Walter Butler Wilkinson be entered upon the books as the first student-at-law formally enrolled in the society. By then, however, there were already several articling students and new lawyers in Upper Canada. The first articling students of Upper Canada had been taken on by John White soon after his arrival. Several of the men made lawyers by Simcoe took on students as well. Once the society established itself as the competent authority, these students began to request the society to call them to the bar. A few qualified lawyers also arrived from elsewhere. John Woods from Lower Canada was the first of these called to the Upper Canadian bar by the Law Society. As the society began keeping its records with increasing efficiency, it acknowledged that William Weekes had been entitled to membership since 1799.* (Indeed, he had attended all the abortive general meetings of 1799, and he became a bencher by the new rules approved in 1800.) Later Wilkinson, John ten Broeck, and others who had served five years under articles before the Law Society began meeting regularly were acknowledged as barristers, not merely students, as of 1801.42 46

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The act of 1797 authorized each practitioner to have one student; but since several early lawyers had declined to practise, died, or left the province, the legal community was barely larger in 1802 than in 1797. The legislature, not entirely reconciled to the idea that the legal profession should govern itself, stepped in with a series of bills: to set court fees and to expand the jurisdiction of the lower courts where lay practitioners dominated, but also to create new lawyers by executive licence. Lawyers were scarce in the Assembly and unrepresented in the Legislative Council, but Robert Gray led rearguard actions that mitigated the impact of some of these proposals. To conciliate local complaints, he even suggested that the courts be empowered to license attorneys in districts where their scarcity was acute. In 1803, however, the legislature, citing the need to increase the number of lawyers at once, went back to the lawyer-making precedent of 1794. It authorized the lieutenant-governor to license up to six men of due probity, education, and 'condition of life to be both barristers and attorneys. Robert Gray failed to win for the Law Society the right to veto the governor's choices, but an act which authorized Law Society members to take on more articling students seemed designed to enable the legal profession to become the principal source of new lawyers. In 1812, a legislative initiative to permit the governor a third round of lawyer making would die on the order paper, and (with a few exceptions) articling under Law Society supervision would remain the norm thereafter.43 The fifteen lawyers licensed by Simcoe in 1794-6 had made curiously little impact on the legal profession. Some did not practise. Several, including Gray who did so much to put the Law Society on its feet, soon died, and most who remained somehow left little mark in the courts and on the Law Society. Perhaps they were simply too early, coming to the profession when it was still of relatively slight influence and respectability. The five men licensed by Lieutenant-Governor Hunter in 1803 were later mockingly dubbed the 'heaven-descended barristers, having sprung, Minerva-like, at once into being, in full professional maturity/ In contrast to their predecessors of 1794, however, they included two future treasurers who would have lasting impact on the society and the province. D'Arcy Boulton would become solicitor general, attorney general, a King's Bench judge, and the first Becoming Learned and Honourable, 1 797-1822

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name on William Lyon Mackenzie's tally of the infamous 'family compact/ William Warren Baldwin would become the most principled and consistent opponent of the political power of that 'compact/ an architect of constitutional change in Canada, a driving force behind the building of Osgoode Hall, and, in the opinion of the mid-century Law Society, the true father of the society,^ Some of the students who came into the Law Society in 1803 or soon after also rose to renown. John Macdonell, who would be the first colonial to become attorney general, was admitted as a student at the same meeting that called Boulton and Baldwin to the bar. During the next few years, two of Boulton's sons began serving articles, as did John Beverley Robinson and Christopher Hagerman. By the end of the society's first decade, the colonial bar and its governing body would not yet have commanded much respect from a barrister habituated to Westminster and the Inns of Court, but well-placed and well-connected colonials seem to have been concluding that a bar of substance and prominence was coming into being in Upper Canada. They were increasingly identifying the law as a career that could secure good futures for their sons and proteges. The legal community had avoided becoming focused solely on the King's Bench court at York. Simcoe had licensed lawyers in the early-settled areas around Cornwall, Kingston, and the Bay of Quinte as well as at York and Niagara, and the early lawyers had few qualms about taking whatever work came to hand. New Brunswick

EXTERIOR OF A COURT-HOUSE IN THE BACKWOODS OF CANADA

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These satirical scenes portray with some accuracy the working environment many of Upper Canada's founding barristers experienced on circuit in the early decades of the 1800s. It would be the 1840s before substantial and

INTERIOR OF A COURT-HOUSE IN THE BACKWOODS OF CANADA

imposing courthouses began to dot the landscape, but the courts sat throughout Upper Canada from early times.

A JURY IN THE BACKWOODS OF CANADA RETIRING TO DELIBERATE

solicitor general Ward Chipman once said proudly that, despite their financial hardships, no New Brunswick lawyer ever deigned to practise in the lower courts. Robert Gray, while he was solicitor general of Upper Canada, continued to appear even in the humble quarter sessions - and on at least one occasion was dismissed on a point of law by the rural JPs. Under Law Society auspices, lawyers soon took on students in all the original towns and in Brockville and Sandwich (the future Windsor), as the legal profession continued to follow the expansion of settlement across the colony.45 The decision not to prevent barristers from also being attorneys Becoming Learned and Honourable, 1797-1822

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The agency system, by which lawyers outside Toronto all had Toronto agents on whom writs and documents could be served, survived to the mid-twentieth century.

must have been crucial in this process. A Law Society member (except those few who became attorneys and not barristers) in Cornwall or Brockville could practise office law most of the year and still hope for a share of the litigation when the judges of King's Bench came to town for the assizes. Had the profession been or become separated, litigation would have remained the preserve of the specialist barristers, concentrated at the home of the court at York, Although leading litigators, mostly based in York, did go on circuit with King's Bench, they always had to face the rivalry of local men. The growth of local bars had also been assisted by rules developed by the legislature and courts that had remedied the problem of access to the high court which Richard Cartwright had highlighted in 1794* The legislature soon empowered district court offices to issue writs, instigate actions, and file proceedings for the high court, and the King's Bench judges established procedures by which York and country lawyers acted as agents for each other.* These judicial adaptations to the problems of isolation and distance assured local elites that ambitious and talented sons whom they apprenticed to the law would not necessarily be drawn away to York. At the same time, the presence of first-rank lawyers in local centres helped reinforce the prestige and power of those elites. In England at this time, nearly all barristers still lived and practised in London and travelled seasonally on circuit, and only attorneys commonly had practices anywhere but London.46 Land and its acquisition were the most significant issues of Upper Canadian government before the War of 1812, and delays or grievances over land distribution fuelled much of early politics. Land disputes also drove developments in Upper Canadian law. In English law, writs of fieri /oczas, which authorized seizures of goods to pay judgments for debt (the writ's name comes from the Latin words meaning 'that you cause to be done,' which authorized the sheriff to act), did not extend to seizures of land. Upper Canadians, however, often had few assets other than land with which to guarantee their debts, and the application of strict English law began to seem hostile to all lending. By a split decision in Bliss v Street in 1800, the judges of King's Bench ruled that a 1732 statute extending 'ft fa' writs to include seizures of land should apply in Upper

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Canada, even though that statute had application solely for the colonies and Upper Canada had adopted the law of England alone. In 1803, the legislature confirmed the judgment when it passed a new statute which authorized seizures of land, though with limits. This departure from English law probably benefited merchants and lenders significantly, freeing them to sell off - or acquire for themselves - the potentially valuable lands of their defaulting clients. However, the ruling and legislation also responded to the absence in the colony of equity law, which was better adapted than common law to governing mortgages. The absence of an Upper Canadian Chancery court to administer equity law cut both parties off from such remedies, and the revising of fieri facias procedures in common law was in some degree a substitute. It may have been less protective of mortgage debtors, but poor debtors could rarely have had access to elaborate Chancery procedures anyway, while the lenders, much more influential in Upper Canadian politics, seem to have been content with the ad hoc local adaptation.47 Within the Law Society, the sequence of treasurers soon diverged completely from the principle of annual rotation, but seniority retained some tenuous influence. Gray served three years instead of one, and he was succeeded, not by Attorney General Thomas Scott, who took precedence among Upper Canada's lawyers when he came from Britain as White's successor, but by the next in seniority, Angus Macdonell. Scott inherited the job as treasurer when Macdonell died, but his successor as attorney general, William Firth, was never treasurer, and Scott's only benchers' meeting was the one in which he handed the office over to D'Arcy Boulton.* Boulton, solicitor general since 1804, began a five-year term as treasurer, and when he became a prisoner of war in France, he was succeeded by William Warren Baldwin. Baldwin became the first (and until 1829, only) Law Society treasurer with neither official position nor length of service behind his claim. Baldwin served five years before the office reverted to Boulton, who was then attorney general. Since 1800, when one of the new rules made all society members of that date benchers, the benchers had made new benchers (other than those

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Thomas Scott may have been Ontario's first gay lawyer and attorney general. Contemporaries speculated about his relationship with Andrew Mercer, the young man he brought with him and for whom he secured several Crown appointments. Mercer died without heirs in 1871; his fortune provided for the Mercer Reformatory and other Toronto institutions.

Thomas Scott, fourth Law Society treasurer, and second attorney general and fourth chief justice of Upper Canada.

entitled by seniority) simply by agreement amongst themselves. Boulton, William Dickson, and Baldwin were the first three selected in this manner. Deference to rank and precedence surely influenced the way the early benchers selected their treasurers, but the early lawyers of Upper Canada showed no such deference to each other's persons. Indeed, they seem to have been inclined to trade pistol shots as readily as writs. John White was the first Upper Canadian lawyer to die by duelling. In his first years at Newark, White had been a close friend of the family of court official John Small, but in 1799 he declared that Mrs Small, who had been White's mistress for a time, had once been the kept woman of an English aristocrat who, when he tired of her, paid Small to marry her. As an insult to both Smalls, this was homicidally provocative. Small challenged White and shot him dead a couple of days after New Year's 1800. Like most duellists, he was tried for murder and acquitted by a judge and jury unwilling to overturn the verdict of a fairly fought duel.48 White's grim fate hardly deterred others. In 1806, William Weekes, then perhaps the most successful courtroom barrister in the province, was reproved in court by opposing counsel William Dickson for describing Lieutenant-Governor Hunter as a 'gothic barbarian.' Weekes responded with a challenge, and Dickson, who just six months earlier had become a Law Society bencher on Weekes's nomination, shot him dead. John Macdonell challenged Attorney General William Firth over the latter's remarks in court, and four years later, as attorney general, he himself was challenged for his courtroom remarks by treasurer William Baldwin. Macdonell survived both incidents. Firth, a Scottish gentleman and an English barrister, simply looked down his nose and declined the challenge of the impudent colonial. And when Macdonell refused to fire at him, Baldwin was mollified and the quarrel settled.49 Simply travelling the circuit could be dangerous, too. Treasurer Baldwin was not the only early lawyer with a tale to tell of being lost in the woods and forced to swim swollen rivers while travelling to trials. Robert Gray, whose riding and private practice were in eastern Ontario, complained about the state of the roads and the difficulty of getting to York on them. Lake travel was little safer. The great disaster of the early legal community was the sinking of the schooner Speedy in October 1804* The schooner sank without 52

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trace while carrying virtually the whole personnel of a murder trial from York to Newcastle. The twenty casualties included newly appointed King's Bench justice Thomas Cochran, and three members of the Law Society: Solicitor General Robert Gray, who was to prosecute; his student John Anderson; and treasurer Angus Macdonell. Also among the dead was the Ojibwa Ogetonicut, the accused in the case. In 1804, defendants in felony cases had no automatic right to defence counsel, but this trial had raised complex questions about the authority of Upper Canadian law over Native people. If, as some historians have speculated, Angus Macdonell was aboard as Ogetonicut's defence counsel, the case that was ended by the Speedy disaster might have been the first in which a Law Society treasurer took on a pro bono case on behalf of the profession at large. The prestige of the Upper Canadian bar and of the Law Society was growing, but the lawyers could not yet count on unquestioning acceptance either from the legislature or from lawyers bred to other standards. In 1810, the legislature felt no qualms in imposing by statute a fee schedule governing lawyers' charges for work in the court of King's Bench. This attacked the powers of the court more directly than those of the Law Society; it expressed the claim of the legislators to dictate to lawyers and judges alike. This presumption infuriated Attorney General William Firth, and he protested in the classical language of the English-trained barrister. Firth did not take his complaint to the Law Society or to the local officials (most of whom had already written him off as incompetent). He appealed directly to the Privy Council in Britain. Firth declared that the regulation of professional fees by 'the casual and disorderly mandates of a popular assembly' lessened the dignity of the courts; but his sensibilities as a barrister were equally offended. To specify barristers' fees at all, he wrote, was 'insulting and repugnant to the feelings of any professional gentleman who has had the education of a scholar and a lawyer or passed through the Academic Walks of an English University or Inns of Court as introductory to the severe studies of Westminster Hall.' Firth had been three years in Upper Canada, but he still took both the training and the etiquette of the English bar as the norm for the legal profession - as if the Law Society of Upper Canada and the norms of legal training and practice that were evolving there Becoming Learned and Honourable, 1797-1822

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King's Bench judge William Dummer Powell, an active participant in the rivalries of Upper Canada's earliest legal community, declared that attorney general and treasurer John White, 'although called to the English

Bar, had no pretensions to that character.'

were beneath his notice. It is noteworthy, however, that he sent his complaint to Britain with only a single signature besides his own. Solicitor General D'Arcy Boulton was being rather bold in sneering at the Assembly, whose 'disorderly mandates' had in fact made possible his own appointment as a lawyer just seven years before. But Boulton, who had been a student of the Inns of Court before immigrating, was still hedging his bets. Eventually he (and two of his sons) would return to the Inns of Court and seek an English call to supplement that received from the Law Society of Upper Canada.50 The Law Society did not associate itself with Firth's petition. The other local practitioners, more attuned than Firth to Upper Canadian political realities, must have been much more aware that strict reliance on the English standards enunciated by Firth would allow any emigrant British barrister to invalidate their own claims to call themselves lawyers. Ever since Robert Gray's committee report of 1799, their strategy had been, not to challenge the legislature, but to urge it instead to support its own creation, the Law Society. When they lost the skirmish over the fees bill in 1810, the local lawyers bowed to the legislative dictate until they had the power to change it a dozen years later. Firth's petition went nowhere in the Privy Council, and his presumption that British legal norms must supersede colonial practices was further undermined a year later by the choice of his successor. When Firth abandoned his job and returned to Britain without even waiting for the governor's permission, he was replaced as attorney general by a colonial. John Macdonell, just twenty-six, had grown up in Upper Canada, and his legal apprenticeship had been entirely under the supervision of the Law Society of Upper Canada, which called him to the bar in 1808. Family connections as well as talent hastened his rise; he came from the large and influential clan which dominated Glengarry County and was second cousin to the Law Society treasurer who had died aboard the Speedy. Lieutenant-Governor Gore appointed Macdonell as only an interim replacement. But Macdonell was a protege (and intended son-in-law) of Judge William Dummer Powell, who urged Gore's replacement to make the appointment permanent. Powell himself had been in Upper Canada since before it was Upper Canada and for that reason had often enough been passed over for preferment;

54

The Law Society of Upper Canada

he pushed for MacdonelPs appointment 'to retain the Honors of the profession amongst ourselves without risque of receiving from Europe Subjects often less suitable/51 Despite this triumph for the local bar, the Law Society still existed principally for the formalities of accepting students and calling them to the bar. It met quarterly, usually in the chambers of the attorney general and with a bare quorum of benchers present. Accepting students and calling them, some five years later, to the bar was the main - and often the only - business of the meetings. The Law Society could claim £5 annually from members, and £5 from students when they entered and when they were called. Given the society's growing list of members and its minimal expenses, it should have been accumulating a substantial capital if it collected the fees. When William Warren Baldwin was elected treasurer in 1811, he was instructed to 'enquire of the late treasurer or his representatives what sums of money remain in his hands belonging to the society' and vigorously to pursue all debts owing to it - a resolution that suggests no such vigour had previously been in evidence. Yet in truth the treasurers had little enough to spend the money on - which may be why the society had agreed to reduce student fees in 1808. In 1812, fifteen years after its foundation, the society owned no property, held no library, published no law reports. Studying the law was entirely a matter of personal apprenticeship in the office of a practising lawyer. The Law Society did not supervise student lawyers, and (beyond requiring the affidavit of a practising lawyer) it administered neither entrance tests nor graduation tests. It had never held a discipline or disbarment hearing, and it did not hold lawyers to any formal standards of practice. There was, therefore, not a great deal for the benchers to decide. Because of this limited and rather casually held mandate, the society was able virtually to go into abeyance during the War of 1812. A military commission ranked far above a law degree in late-eighteenth- and early-nineteenth-century society. Long before the War of 1812, militia service had been made compulsory for adult males throughout Upper Canada, and most of the aspiring gentlemen who

Becoming Learned and Honourable, 1797-1822

55

TRIUMPH

practised law had acquired militia commissions. At the outbreak of war in June 1812, therefore, virtually all the lawyers were drawn into military service. In the three years of war that followed, the lawyers' military exploits met a variety of outcomes. The most dramatic fate was acting Attorney General John Macdonell's. As lieutenant-colonel of the York militia and General Isaac Brock's aide-de-camp, Macdonell accompanied Brock on his brilliantly conceived offensives of the summer of 1812, and then was killed with him at Queenston Heights in October. Instead of completing a legal career of great promise, Macdonell achieved apotheosis as an Upper Canadian martyr; he lies buried beside his general in the Brock Monument at Queenston. The war that cut off Macdonell's promising career made Christopher Hagerman's. When war broke out, Hagerman was articling in the Kingston law office of his father, Nicholas, and he promptly gained a militia commission under his father's command. To that date, neither father nor son had achieved much prominence, either in the law or in provincial society, but during the war Christopher Hagerman attracted the notice of a sequence of British generals who passed through Kingston. He served as an aide-de-camp, saw action in several battles, was promoted to lieutenant-colonel, was mentioned in dispatches, and finally was gazetted (but never formally appointed) 'His Majesty's Council in and for the Province of Upper Canada' - in effect, the first King's Counsel in the province. Hagerman's military honours brought him prominence; and with that acquired, he built a legal and political career with the same drive and ambition that marked his military endeavours. Not every lawyer of future prominence in Upper Canada had a brilliant war record. Henry John Boulton spent the war years as a student at the Middle Temple in England, and his father the solicitor general, who had been captured in the Atlantic by a French privateer in 1810, languished in a French prison until 1813. William Dickson of Niagara and future Chief Justice James Buchanan Macaulay were for a time prisoners of the Americans. Jonas Jones, George Ridout, Levius Sherwood, and even Allan McLean, who turned sixty in 1812, were among those who held militia commissions. Even if they never took the field, most lawyers received administrative responsibilities or maintained order as magistrates. 56

The Law Society of Upper Canada

They were kept busy, evidently, for the benchers never once met between the fall of 1811 and February 1815.52 The most brilliant wartime career was indisputably John Beverley Robinson's, Robinson was a pure product of Upper Canada's Loyalist elite, steeped from childhood in its traditions. His father, of a distinguished Virginia lineage, had been drawn to Upper Canada by Governor Simcoe and had attended the founding of the Law Society before his premature death. Robinson attended John Strachan's school at Cornwall and became a protege of both the future bishop and King's Bench justice William Dummer Powell. Admitted to the Law Society in 1807, he articled in the offices of Solicitor General (and treasurer) Boulton and Attorney General Macdonell. When war broke out, his articles just short of completion, the twenty-year-old Robinson followed Macdonell and Brock to the battles of Detroit and Queenston. After Queenston, Robinson returned to York escorting prisoners and was astonished to find that Strachan and Powell had had him named to replace his late principal as (acting) attorney general. Since the Law Society was not meeting, Robinson was called to the bar by a special rule of court, and for the next two years, the law student turned law officer of the Crown did extraordinary work maintaining the apparatus of justice, prosecuting trials, and giving the authorities legal (and political) advice that was often subtle and sophisticated. Robinson's crowning achievement of the war was his prosecution of the treason trials at Ancaster in 1814. Upper Canada's government had feared (and the American army had expected) that American settlers in Upper Canada would go over en masse to the side of the invaders. This had not happened, but there were some notable desertions (including those of two members of the Assembly). In areas which came under American military control, active or passive collaboration with the invaders was common. To punish disloyalty and restore control, the military commanders of Upper Canada wanted to apply martial law to civilians and to establish special commissions to root out suspected traitors for swift, exemplary punishment. Attorney General Robinson resisted such steps, and so did the legislature. Instead, the treason laws finally passed in 1814 preserved the authority of the existing courts. Hence, when the chance arose to take action against a crowd of Becoming Learned and Honourable, 1797-1822

57

Hoppner Meyer's portrait of the young John Beverley Robinson captures the youthful confidence of the twenty-year-old law student turned attorney general. Robinson would serve three terms as Law Society treasurer before serving as Chief Justice of Upper Canada/Canada West from 1829 to 1862.

allegedly disloyal Upper Canadians captured during military skirmishes, the Crown applied the standard criminal court procedures of Upper Canada to their trials. On 23 May 1814, Attorney General Robinson had seventeen men arraigned for high treason at a special criminal assize in Ancaster. Upper Canadian justice was itself on trial at the Ancaster assize, Robinson opposed military punishment of traitors because 'the people consider them as arbitrary acts of punishment, but would not acknowledge them as the natural effects of Justice.' A successful common law trial, however, would proclaim that even in the midst of a war that had put part of the province under enemy occupation, Upper Canada remained strong enough not only to punish convicted traitors, but also to protect their rights while they stood accused. Like Osgoode in 1794, Robinson saw the advantage to be gained from 'regular and unsuspected' British jurisprudence. Although legislation permitted the trial to be moved to any district of the province, Robinson wanted the court to sit as close as possible to the scene of the disturbances.53 Through May and June, Chief Justice Scott and puisne justices Powell and Campbell held court in Ancaster's Union Hotel. Three experienced lawyers, John ten Broeck, Bartholomew Beardsley, and Thomas Ward, appeared for the defendants. (Treason was the only criminal charge in which all defendants were entitled to legal counsel, but little is known about how defence lawyers were hired or assigned; William Baldwin reported that he travelled to Ancaster but secured no briefs.) Robinson prosecuted all the cases. 'In these trials there were no Crown officers to assist me/ he later recalled with pride. 'I had no one to share the responsibility with me of Public Prosecutor, and the enemy were all the time in possession of a part of the district in which the court sat/ Of the seventeen cases, Robinson won fourteen convictions and a guilty plea against two acquittals. On 20 July 1814, the hanging of eight of the convicted men on Burlington Heights gave the proceedings the name 'the bloody assize/54 It is possible both to sympathize with the plight of the accused and to acknowledge Robinson's right to claim he had adhered to high standards of British justice. Many of the convicted men may well have been victims of circumstance, who had made desperate and perhaps almost unavoidable choices in the chaos of war and 58

The Law Society of Upper Canada

civil strife. Nevertheless, Robinson established that they had assisted the enemy and borne arms against the government of Upper Canada; the Crown could hardly fail to prosecute them without abandoning its authority to govern. 'By the ordinary course of justice/ Robinson declared later, 'by the result of fair and legal trial by juries of the country, in which the defendants had all those opportunities and advantages of defence which the law, peculiarly indulgent in such cases, has provided for them, the Government were enabled to make those examples which completely secured the province against treason and rebellion during the remainder of the war/ In Robinson's eyes, the Upper Canadian judicial system had justified itself. Under either military authority or the informal lay justice Richard Cartwright had advocated in 1794, the accused of 1814 would surely have faced rote trial and summary execution. By comparison, the system insisted on by Simcoe and Osgoode upheld the authority of the state while providing a common law trial that most observers then and since have accepted as fair.^5 After it was safely over, the War of 1812 was made into the vindication of the ideal of Upper Canada, the refuge providentially created in 1784 to shelter the King's loyal subjects and then defended by them against all odds. The courts and the lawyers of Upper Canada could claim the same vindication. The courts that had been created to help shape the colony in the image of Britain had performed their essential function under the threat of war. And they had done so with Upper Canadian lawyers, trained under the aegis of the Law Society and called to the bar by it, filling all the key roles. John Beverley Robinson was only the most striking example of how the local bar had served the province both in the field and in the courtroom. Through the war and throughout the province, the Law Society's members could claim to have kept the justice system working, even as they shouldered their gentlemanly duties as militia commanders. And this claim carried weight, not least with the Crown. In 1811, Lieutenant-Governor Gore had considered no lawyer in Upper Canada qualified to succeed William Firth as attorney general. Despite Firth's ineffectuality, Gore had wanted John Macdonell to act as attorney general only until an English barrister could be found. Yet by 1816, Upper Canadians had taken over the Becoming Learned and Honourable, 1797-1822

59

'Convocation/ from the Latin 'to call together,' is most often used for academic and ecclesiastical meetings. The Law Society of Upper Canada seems to have been the first to apply it to an organization of the bar.

offices of attorney general, solicitor general, and chief justice, and Gore, who returned to office after the conflict, had become the enthusiastic supporter of colonial appointments. From then on, the appointment of English barristers as judges and law officers became the exception rather than the rule in Upper Canada. In the aftermath of the war, the Law Society began meeting again, and it soon manifested the new confidence of its members. In the spring of 1815, the benchers gave retroactive admission as students and barristers to men who had started or completed articles during the war, and they secured quick passage of declaratory legislation to remove all doubts as to the legality of their action. In 1817, a new regulation governing calls to the bar was announced, and the next year five new benchers were appointed, followed by six more in 1820. The addition of future treasurers Henry John Boulton, Levius Sherwood, and George Ridout and of prominent benchers such as D'Arcy Boulton, Jr, Jonas Jones, Thomas Taylor, and Christopher Hagerman greatly strengthened convocation. 'Convocation' was itself new - the Law Society began to use this term for its benchers' meetings in 1820, about the same time as it assembled the records of its proceedings into the formal Minutes of Convocation still preserved today.* The society also set new educational requirements for the bar. In 1819, it established the first entrance test for aspiring students-at-law. Instead of requiring a lawyer's certification that one was 'qualified by education, principles, and habits of life,' students henceforth had to demonstrate to the benchers an acquaintance with Latin and English composition by translating an excerpt from Cicero.56 The motives for the new rule are unknown. Raising educational requirements has frequently been a way for professional organizations either to limit access to a crowded profession or to prevent 'the wrong people' from joining the charmed circle. But neither concern was being much expressed in Upper Canada at the time. Students were being enrolled at twice the pre-war pace; but as late as 1812, scarcity rather than surfeit of lawyers had been the issue, and the postwar expansion of immigration and settlement augured well for lawyers and law students. The motive may simply have been confidence that Upper Canada was now capable of providing the schooling which sons of gentlemen, and particularly aspiring lawyers, should acquire as a matter of course. The bar was already 60

The Law Society of Upper Canada

drawing students from a stratum of society able to give its sons classical schooling, who would have been sympathetic to rules which reinforced the elite status of the profession. And there also may have been a further motive in the old tension between colonial and English standards. In the years after the war, Robinson, three Boultons, and a few immigrants had returned or arrived from the Inns of Court to practise in Upper Canada. They may have set an educational standard which the local practitioners felt it wise to match, lest disdain for colonial training standards should again assert itself.57 As the Law Society achieved the end of its first quarter century, the lawyers of Upper Canada were coming to resemble the learned and honourable society they had only aspired to be in 1797. The leading lawyers came from among the leading families of the colony. They were prosperous and in some cases wealthy, and they held positions of power and influence in the colonial administration and the legislature. Many had acquired substantial properties by grant and purchase, and Robinson's Beverley House, Baldwin's Spadina, and Boulton's The Grange were among York's most imposing private estates. With students pouring in and lawyers doing well, the Law Society of Upper Canada was becoming strong and confident. In 1820, the benchers handled their first disbarment. The society had no disbarment procedures, and indeed only implicit legislative power to disbar; but when Daniel Washburn, called to the bar in 1815, became notorious for 'charges of disgraceful and highly criminal nature,' the benchers disbarred him by resolution. Since Washburn had fled across the border and did not defend himself, the society did not develop procedures for trying his case.^ The Law Society also acquired property in 1820. Leading members of the bar were coming to believe that the profession needed a home - needed, in fact, its own Inn of Court that might combine courts, lawyers' premises, student quarters, and offices for the society and a library. In the fall of the year, the benchers authorized the expenditure of up to £500 for a building (to be called "Osgoode Hall'" on land at King Street and Church which the society had apparently acquired unofficially. This acquisition started a series of building projects which would engross the benchers for most of a decade, but which made plain that the society would have to be Becoming Learned and Honourable ,1797-1822

61

reorganized in order to be able to hold and develop real estate. Late in 1821, John Beverley Robinson, member of the Legislative Assembly, attorney general, and treasurer of the Law Society, introduced a bill to amend the 1797 Law Society Act. The lawyers had already shown their new political influence. By convincing the legislators to repeal the 1810 legislation controlling court fees that Attorney General Firth had opposed with such vehemence and so ineffectually, they had restored the court's authority to control its own fees. Now they brought forward a short bill with some significant changes to the Law Society Act. The new bill proposed to incorporate the Law Society. Corporations of any kind were scarce in Upper Canada until the 1840s; each one required action by the legislature. The house was being asked for incorporation partly to legitimate (retroactively) the 1800 rules that had permitted the benchers to act on behalf of the legal profession without even submitting to elections, for it was the benchers who formed the new corporate body, even though all lawyers and students remained as members of the existing society. The bill also underlined that incorporation was intended to permit the society to hold property. A third clause concerned attorneys. Since 1797 there had been separate requirements for barristers and attorneys, but Law Society membership was required of both, and most lawyers became both. The new bill proposed to extend attorneys' articles from three to five years; but a clerk who completed articles would need only to sign the roll of attorneys of the court of King's Bench - there would no longer be any supervision by the Law Society. Such was evidently the benchers' intention. Lawyers might continue to be both barristers and attorneys, but the Law Society intended to concern itself only with their practice as barristers. The legislative debate showcased the new influence of the lawyers. Where Robert Gray had once pleaded almost alone for the Assembly's support, the amendments of 1821 were endorsed by enough benchers to form the core of a working majority in the house, and debate on the new bill was dominated by the contributions of benchers Robinson, Baldwin, Hagerman, Bidwell, and Jones. According to the journalist who produced an account of the debate, William Warren Baldwin explained, 'the object of the Law Society was to lay the foundation for a fund to erect buildings for 62

The Law Society of Upper Canada

the use of the society, where gentlemen coming from the country might have an office and library, and not be under the necessity when they came to York, with the most important affairs of the country entrusted to them, to enter into public barrooms, etc, in taverns, a most unfit place for gentlemen who pledged themselves to the interest of their clients by the most solemn oath. This bill, he thought, would add to the importance and respectability of the society.' That ambition was generally accepted, but there was opposition to the bill. In introducing it, Robinson had left the impression that it would restrict the entry of lawyers from England. Several legislators leapt to the defence of the rights of immigrant gentlemen - all seemed to accept that gentlemen were the only potential lawyers. Instead of simply pointing out that the bill really provided no new restriction on immigrant lawyers, the bencher-members gave the impression that they were no longer much in awe of their English colleagues. If the children of this country went to England and demanded admission at their bar, they would be spurned at, and kicked from the door/ said Baldwin. Jonas Jones said, 'Many were called to the bar in England who never opened a law book. Would it be justice to the gentlemen of this country to admit one of that description to come in here and practise at their bar?' But that was a side issue. The firmest opposition came from Jonas Jones's brother and fellow Assembly member Charles Jones. Charles Jones pointed out that because the bill did not limit the fees the Law Society could set, the lawyers might one day raise the fees to close off entry to the profession. 'He thought to give this power to such a society was dangerous. He wished to see the Law Society respectable, but would keep them under the laws.' John Willson supported Jones by raising another hint of monopoly. 'He was informed that the society proposed to exclude all persons not versed in Latin; he believed there were not many of the gentlemen of this society who could pretend to be versed in that learned language, and it appeared to him very hard indeed that they should exclude young gentlemen from their society for want of that qualification which they themselves did not possess.' Christopher Hagerman bulldozed that objection, declaring he had never heard it as an objection to any society, especially the law, that it was necessary to have a little learning. He and others denied Becoming Learned and Honour abk, 1797-1822

63

that the Law Society would raise fees unfairly, and they stressed that in the end the Assembly still held ultimate control through the Law Society Act. Charles Jones's amendment was defeated and the bill passed easily. A few of the founding benchers of 1797 were still practising in 182L And perhaps they smiled to see the ambitions of the founders being so handsomely fulfilled. No one in 1797 had feared that the Law Society or the lawyers were too powerful; indeed, it was almost certainly their weakness that had inspired creation of the society. But in a quarter of a century the Law Society had helped Upper Canada's lawyers to reach the point where Charles Jones could begin to think their power was dangerous. It had become prosperous, respected, influential, and securely in control of the profession. 'Learned and honourable' is the way the benchers might have put it. William Baldwin was delighted. 'He was sure that there was no society for which the country should feel so deep an interest as for the Law Society. Without it, whose property was safe? Whose life could be ably defended?'^

64

The Law Society of Upper Canada

CHAPTER TWO

Lawyers for the Emerging Giant, 1822-1871

... to claim from the people that respect and confidence which the Law Society ought to cherish as their highest honour far beyond all office all title.'

- William Warren Baldwin, 1828

In the 1820s, convocation often met to administer the Law Society's entrance exam at Russell Abbey, the law office of William Warren Baldwin near Front and Parliament streets, and 'thither all aspirants for legal honours were bound to take their way.'

T

AH! .HERE WAS A NEW ASSERTIVENESS TO THE

Law Society of Upper Canada after 1822, In 1822, when the new act made the treasurer and benchers (not the membership at large) a body corporate with full power to run the Law Society, the benchers proudly commissioned a corporate seal for the society, 'incorporated 1822,' to symbolize their new standing. Even before acquiring their new powers, the benchers had been moving away from the small numbers and limited mandate of the early years. By 1825, convocation was seeking to ensure that it had a representative from each district of the province, and by the end of 1830, ten new benchers had joined the five benchers appointed in 1818 and the six of 1820. The Law Society soon helped initiate law reporting in Upper Canada. Law reports greatly improved the sophistication of a precedent-based legal system, and in 1823 legislation enabled Upper Canada to subsidize reports of King's Bench proceedings. Although this began as a Crown project, its management was

Lawyers for the Emerging Giant, 1822-1871

67

THE RULE OF LAW

Treasurer Baldwin s donation of fifty volumes of law books to the library of newly opened Osgoode Hall was acknowledged with this parchment certificate.

largely delegated to the society. Funds for the reporter's salary came from an annual fee collected from every practising attorney, and it was the law society which collected the fee on the Crown's behalf Law reporting requires informed legal judgment in identifying and digesting the salient aspects of cases, and it seems to have been taken seriously from the start in Upper Canada. All the early reporters, beginning with bencher and Inns of Court barrister Thomas Taylor, were lawyers in or beginning careers of prominence. Since the weekly Ontario Reports is still published under the authority of the Law Society of Upper Canada (as the cover of every issue declares), Taylor's law reports initiated a publication that continues to the present. As early as 1827, after Taylor complained he was losing money, the benchers asserted their authority to raise the fee for reports. Law reporting was the first direct service that the society helped provide to the bar and courts of Ontario. Participation by the Law Society, which took over the Crown's role entirely in 1840, seems to have permitted systematic law reporting rather earlier than the legal community could have supported commercial reporting. Official reports were adopted in American states between 1814 and 1847 and by the English courts in 1865. In both cases, commercial reports had predated official ones, and in New Brunswick and Nova Scotia, the first law reports were also produced privately, in 1847 and 1853 respectively. The levy on Upper Canadian attorneys, which ensured that all who benefited from the law reports contributed to their cost of production, also gave the society a power over attorneys almost as soon as it had abandoned formal authority over them, for an attorney who failed to pay the society his law reports fee could be suspended from practice.1 Law libraries were as important to legal research as law reporting. Convocation formed a library committee in 1827, and Solicitor General Boulton, then visiting London, spent nearly £300 on books for the society that year. The society owned no property and generally met in the treasurer's law chambers, but to accommodate the library, the society had bookcases installed in a room provided to it in the York court-house. By purchase and donations, the library soon amounted to a few hundred volumes of law 68

The Law Society of Upper Canada

reports, statutes, and legal treatises, and the society distributed its first catalogue to the profession in 1829.2 The benchers also undertook the society's first review of its operating principles, putting in place the programs that would define it for more than a century. In all its intermittent rule making since 1797, convocation had never compiled its rules or established what rules were within its sole competence and which required judicial approval, and it had neglected entirely to make rules in some significant areas. Soon after being appointed a bencher in 1830, Robert Baldwin was named to chair a committee charged with examining and revising the by-laws of the society.3 Baldwin recommended a wholesale reorganization, based on a significant principle. He argued that convocation was free to pass regulations or standing orders for internal matters, so that only 'provisions for the general government of the profession at large' needed to be submitted for the judges' approval. The proposal was grounded in the language of the Law Society acts, and indeed followed an interpretation already laid down by the judges themselves. Gradually, however, the benchers would use it to erode judicial supervision by taking a broad interpretation of what constituted an internal matter. On 1 July 1831, convocation repealed all its existing rules and regulations and passed fifteen resolutions to put in place a fully revised rule book as recommended by Baldwin's by-law committee. Convocation approved publication of a 500-copy edition of the newly revised rules, which became the first effective constitution of the Society.4 Robert Baldwin and treasurer George Ridout soon moved to complement the rules with accurate rolls of the Law Society's members. They established that, due to 'the inaccurate manner in which the books of the Society appear to have been formerly kept,' there were no rolls worthy of the name. Only with the help of public records, the King's Bench rolls, and, in some cases, 'the recollection of the elder branches of the society,' was it possible to assemble comprehensive lists of those who had been the members, barristers, benchers, and treasurers of the Law Society since its foundation. Presented, corrected, and ruled official on 19 June 1832, these lists became the basis of the rolls maintained by the society ever since. The up-to-date rolls were included in The Rules of the Law Society of Lawyers for the Emerging Giant, 1822-1871

69

Robert Baldwin, by Hoppner Meyer. Printed in 1845, Meyer's lithograph suggests the scholarly, slightly priggish young Robert Baldwin when he was aide and ally to his father, treasurer William Warren Baldwin.

Upper Canada, which was distributed to the profession in 1833, Treasurer William Baldwin proudly sent copies to his colleagues at the four Inns of Court. The minutes for 3 November 1834 noted a letter of thanks from the sub-treasurer of the Middle Temple for 'the proceedings of what they may call an affiliated society in your interesting province/5 Convocation demonstrated its determination to review or establish its operating principles in 1833, when it held its second discipline hearing. In 1820, Daniel Washburn had been summarily disbarred by resolution of convocation. In 1833, however, when the court of King's Bench informed the society that it had removed James Doyle from its list of attorneys for misconduct, the society took the opportunity to consider both its authority to discipline members and the proper procedures to follow. Once again Robert Baldwin chaired the committee. He took the opportunity to lay down a firm statement that the disciplinary powers to degrade and expel were not only implicit in the Law Society Acts but also justified by the practices of the English Inns of Court, to which institutions, he argued, the Law Society of Upper Canada bore a 'minute and remarkable' similarity. With that principle established to his satisfaction, Baldwin proposed that whenever a complaint against a barrister was received and accepted, convocation should create an ad hoc committee to frame articles of impeachment. If convocation found the articles sufficient, the barrister would be summoned to defend himself against the articles, after which convocation could vote on whether to convict and what punishment to inflict.^ In the end, Doyle's case proved uncomplicated, for he refused to appear before convocation and was disbarred for non-appearance. The procedures proposed by Baldwin became the standard discipline procedure for many years. James Boulton, the son and brother of four benchers, including two treasurers, was the first barrister to contest a discipline charge before convocation. Convicted of 'unbecoming and unprofessional conduct' in 1843, he was suspended from practice for two terms (a sanction which did not prevent him from becoming a bencher in 1850)7 There was more to the reinvigorated Law Society than reports, libraries, and rule books. The 1820s had also seen the emergence of 70

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contesting factions within the society that were personified in two dominant benchers, John Beverley Robinson and William Warren Baldwin. Each man's political philosophy was also a view of the law, and each ascribed great importance to the Law Society. Each served two terms as treasurer during the decade. Working together, they pushed the 1822 amendments to the Law Society Act through the provincial parliament. They populated convocation with their colleagues and proteges, dominated its committees, and made vital contributions to the planning of Osgoode Hall. At the end of the decade they at one moment made the Law Society a cockpit for their ideological debate, and at another made common cause to carry the society forward to a new staged John Beverley Robinson, born of impeccable Loyalist lineage in the year Upper Canada was created, stood at the heart of political power in Upper Canada when that power came unashamedly from privilege and patronage. A confidant of the lieutenant-governor, he sat in the Executive and Legislative Councils, where he was both the ideologist and the tactician of the defence of the 1791 Constitution and the vision of society enshrined in it. As attorney general, he was a powerful voice in the House of Assembly. Robinson was also one of the busiest lawyers in the province, both as prosecutor for the Crown and in his private practice, and he was a popular principal for ambitious law students. In Christopher Hagerman, James Buchanan Macaulay, William Henry Draper, and no less than three sons of Judge D'Arcy Boulton, Robinson had prominent, powerful, and impeccably conservative benchers alongside him in convocation. These lawyers moved easily from their practices and convocation to the Assembly, Crown law offices, judgeships, and the councils of the governor. They were, in effect, the men of whom Lord Durham was thinking when he declared in his 1839 Report that adherents of the entrenched ruling elite he called the 'Family Compact' filled 'the bench, the magistracy ... and a great part of the legal profession' of Upper Canada. All were committed to the principle that crucial political power in Upper Canada had to rest in the hands of councillors who were appointed rather than elected and who were drawn from a narrowly defined propertied elite.9 Yet convocation had its reform caucus as well, led by William Warren Baldwin, and including his son, Robert Baldwin, George Lawyers for the Emerging Giant, 1822-1871

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William Warren Baldwin, the 'father of the society' and four times its treasurer, portrayed posthumously by Theophik Hamel in 1849. This was the first portrait commissioned by the Law Society of Upper Canada.

Ridout, John Rolph, Marshall Spring Bidwell, and James Small (the lawyer son of the man who shot founding treasurer John White, and himself a future treasurer). All benchers by 1830, these were significant figures of opposition to the governing cliques both inside and outside the legislature. They were as wealthy, as educated, as Anglican, indeed in all ways as socially and professionally prominent as the others. But in this decade Baldwin and his allies began to advocate political principles that confronted those of Robinson. Where Robinson believed the Constitution of 1791 was and had to be immutable, Baldwin argued that it could and should accommodate the changed circumstances of Upper Canada, specifically by the transfer of political power from appointed councillors to elected representatives. As a result, lawyers who sat together quarterly in convocation to run the Law Society also confronted one another with increasing bitterness in politics. For a moment, in fact, William Warren Baldwin and John Beverley Robinson made the Law Society the focus for a debate on the place of both law and the Law Society in Upper Canada. Seventeen years older than Robinson, Baldwin had been born to an Anglo-Irish gentry family in Ireland. After studying medicine in Edinburgh, he had accompanied his parents to Upper Canada in 1799. A scholarly man, rigorous in his principles, he was memorably characterized by one young lawyer as 'a haughty, prejudiced, Protestant Irish gentleman ... very rough and aristocratic/ and wonderfully set in all his notions of propriety. 'I seem to myself quite hard/ Baldwin admitted, and casual observers found him aloof and stiff-necked.10 Licensed to practise law in 1803, just four years after arriving in Upper Canada, he built a very successful law practice and became a large landowner and property developer, partly in his own right, partly through his wife's inheritances. Despite his social and professional prominence, Baldwin did not wholly accommodate to the tight familial cliques which dominated early Upper Canadian politics. Even though he believed as firmly as Robinson in social hierarchy and aristocratic privilege, he never concluded that the 1791 Constitution was either perfect or immune to revision. Largely excluded from appointive office in the years when every appointment seemed to be Robinson's to hold or to give, Baldwin focused

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on his legal practice, his business enterprises, and the Law Society. After Baldwin was elected to the Upper Canadian Assembly in 1820, he joined in a seething controversy about the rule of law in the colony. In the legislature and the popular press of the 1820s, radical critics regularly charged that the law in Upper Canada had been corrupted. The law was being used illegitimately, they declared, to uphold and enrich entrenched power and to punish the critics of power in ways that were fundamentally inconsistent with the liberties of Englishmen. The radicals recalled how Crown lawyers had exploited a technicality in the 1804 Sedition Act to exile the eccentric agitator Robert Gourlay when jurors had twice acquitted him of libel charges stemming from his criticism of the provincial authorities. They pointed to the 'aliens question,' when it seemed that the Crown's law officers, for their own political advantage, had been prepared to disenfranchise many thousands of American-born Upper Canadians. They pointed to the Randal affair, when a land developer fighting well-connected rivals in court had been destroyed by collusion between King's Bench justice D'Arcy Boulton, and his son, Solicitor General Henry John Boulton, who happened to be Randal's lawyer. (Even law students joked of the Boultons, whose rapacity was matched only by their arrogance.) They pointed to the Willis affair, when a newly appointed judge of King's Bench had been dismissed by the governor when he admitted courtroom questioning of the impartiality of the judicial system.11 Above all, the political opposition complained that Attorney General Robinson used his power over prosecutions to harass the government's critics and protect its friends. The most spectacular example of the last complaint came with the 'types riot' of 1826. When nine sons and friends of the York oligarchy smashed the print shop of radical journalist William Lyon Mackenzie, everyone knew they had acted to punish him for his insolence in printing scurrilous abuse of the ruling elite of Upper Canada. Two of the rioters were lawyers, five were law students in the offices of Robinson or Solicitor General Boulton, and bencher James Macaulay was alleged to have watched approvingly in the company of two magistrates. The law students among the rioters were soon called to the bar, and several soon received Crown appointments or

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promotions. Robinson declined to discipline or prosecute any of them. He did, however, launch a libel prosecution when another journalist criticized one of the rioters by name. The partiality of these decisions seemed proven when Mackenzie instituted a civil action and won damages of more than £600 from the rioters, who were defended by bencher Christopher Hagerman, a future solicitor general and attorney general.12 In 1828 a reform-dominated select committee of the Assembly made a stern charge that implicated the whole government, but struck most directly against the Crown's law officers, Henry Boulton and Robinson. It appears/ read the committee report, 'that some of the most daring outrages against the peace of the community have passed unprosecuted and that the persons guilty have, from their connections to high life, been promoted to the most important offices/ Attorney General Robinson and Solicitor General Henry Boulton rejected these accusations vigorously in the Assembly and in public, but Robinson took a further step. Lawyers had sat on the select committee and provided it with supportive testimony, and Robinson responded by sending a letter to all the barristers in Upper Canada, asking their opinion of the committee's charges. Accused of breaching his duty as a barrister, he was inviting the whole membership of the Law Society to render verdict.13 William Warren Baldwin was no radical; he disapproved of Mackenzie's conduct and his politics. Still, he took up Robinson's challenge, condemning his colleague on grounds of law that were also a political philosophy. In a long and detailed reply, he declared that Robinson had indeed been derelict in his duty to uphold the Constitution, not just as a Crown officer but as a member of the Law Society, for whom the obligations that flowed from the statute of 1797 and the barrister's oath were 'not merely legal wisdom but a religious obligation from morality and the true spirit of English liberty.'14 From two centuries away, the philosophical difference that set Baldwin and Robinson apart seems very small. They were both gentlemen with a deep faith in the rights and privileges of their class. Both men were loyal heirs of the Whig tradition that had dominated British political thought since the revolution of 1688 and which, for lawyers at least, had been codified in Blackstone's Commentaries. They agreed that property was the root of civil society, that proper74

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ty conferred a kind of civic virtue on those who owned it, and that only property owners had a right to participate in public life. In most of these ideas, Baldwin was far closer to Robinson than to the radical Mackenzie. Robinson, however, embraced a narrow definition of the political class. In Britain, property owners were a tiny elite of aristocrats and gentlemen, and Robinson, like Simcoe and Osgoode before him, believed that British-style government depended on bringing such a society - 'the control of numerous landlords over a grateful tenantry' - into being in Upper Canada. By birth, upbringing, and property, said Robinson, only a gentlemanly few were endowed with civic virtue, and the Constitution of 1791 explicitly reserved crucial political powers for them alone. Robinson denied having flouted the law in any of his actions; but if he had sometimes shown partiality to the virtuous against those seeking to usurp their places, he could find no wrong in that. To preserve respect and deference towards the ruling elite was to uphold the Constitution. To do otherwise, he believed, was to yield Upper Canada to the mob and to the republicans across the border.^ Baldwin's analysis was slightly but crucially different. He too linked political rights to property rights in conventional Blackstonian fashion. But Baldwin apparently concluded that property conferred civic virtue on all its holders, not merely the wealthiest and most prominent. Britain might legitimately be ruled by its small property-holding elite, but property ownership was widespread in Upper Canada, and in Baldwin's reading of constitutional law, that required a broader distribution of power in Upper Canada. Baldwin came to advocate political rights for all property owners, and that meant the government must be responsible to the Assembly, where all property owners were represented, rather than to appointive councils that represented the aristocratic few. Even though it entailed yielding political power to men who in Baldwin's eyes were not gentlemen, his faith in the virtues of property (even small holdings of property on the Upper Canadian frontier) reassured him that neither mob rule nor republicanism would ensue. For Baldwin and Robinson, the great political struggle of Upper Canada could be reduced to a lawyers' debate on how to read Blackstone on the constitutional meaning of property. But the consequences were large. In Baldwin's reading of the law, limLawyers for the Emerging Giant, 1822-1871

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iting political power to chosen representatives of the Upper Canadian elite was, strictly speaking, unconstitutional. And the partiality that Baldwin felt Robinson had shown to members of the elite was indeed the outrage that the legislative committee had claimed. Baldwin's verdict in reply to Robinson's letter to the bar was as harsh as the committee's had been. 'You fell far back from your duty/ he wrote. He declared that Robinson should have rebuked his riotous law clerks, perhaps in the presence of the Law Society. And he should have prosecuted them 'for conduct not only grossly violating the laws of the country, but also little calculated to claim from the people that respect and confidence which the Law Society should cherish as their highest honour far beyond all office all title.'16 Robinson neither replied to Baldwin's criticism nor repudiated his root belief that political authority had to be reserved for 'the most worthy, intelligent, loyal and opulent inhabitants ... of high character, of large property, and of superior information.' In 1828, Robinson's views summarized Upper Canadian political power, and even after he became chief justice of Upper Canada the next year, he remained a powerful voice of the Upper Canadian conservative tradition. But in the long run, Baldwin's arguments won out. A decade after their exchange, in the wake of the Rebellions of 1837, Robinson's immutable Constitution of 1791 was attacked by Governor General Durham, whose report on the colonies criticized the rule of appointed gentlemen. In 1841, Robinson's beloved Upper Canada was reunited with Lower Canada, and in 1848, Robinson watched as Robert Baldwin helped oversee the application of his father's principle of responsible government to the administration of the Canadas.17 What remains striking about the Robinson-Baldwin debate of 1828 is how much each defined it as an issue of law, of lawyers, and of the Law Society. Robinson sought vindication for his behaviour from his fellow lawyers, and Baldwin rebuked him precisely for failing to live up to the standards of the bar. The Law Society was important. In Upper Canada, there were few channels of dissent that were not easily subject to government pressure. Anyone, from a judge to a local clerk, who became identified as a critic of government was liable to dismissal. Journalists were effectively harassed, though not entirely controlled, by with76

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drawal of government printing work and by prosecutions for sedition or libel. Colonists seeking government patronage or public assistance for themselves or their communities understood the need to be identified as loyal supporters and clients of the government. In that climate, the independence of lawyers established by the founding of the Law Society in 1797 was crucial to the political freedom of Baldwin and other reform-minded lawyers. A call to the bar conferred an unusual degree of independence from pressure by the Crown's representatives in Upper Canada. Empowering lawyers to criticize the government and the ruling elite had certainly not been the objective when the Law Society was founded. Still, Upper Canada, where it was Robinson the attorney general who found his conduct being critically assessed by his fellow lawyers, makes a striking contrast to, for example, Prince Edward Island, where there was no Law Society and where lawyers like William Roubel and James Bardin Palmer who became critics of government found themselves being disbarred and struck from the rolls by political judges. In none of the other British North American colonies, in fact, did lawyers become more prominent in reform movements than in Upper Canada.18 Baldwin had good reason to emphasize the constitutional importance of the Law Society that protected him and other benchers and younger lawyers. As political conflict became more heated in the 1830s, Baldwin and George Ridout would be dismissed from judicial offices and Marshall Spring Bidwell denied appointment to the court of King's Bench, but the Crown could not threaten their standing (or income) as barristers. Bidwell, who responded to Robinson's 1828 petition by predicting that 'a violent struggle' would be needed to defend constitutional principles in Upper Canada, eventually became enmeshed in the revolutionary crisis of 1837, as did his fellow bencher John Rolph and young lawyers associated with each of them. It seems fair to suggest that the professional autonomy that the Law Society guaranteed - and the sense of mission that Baldwin encouraged - helped give the reform-minded lawyers the freedom to become critics and opponents of the established order.1^ Although he was the most vociferous defender of that order, John Beverley Robinson seems never to have regretted the independence of lawyers within the apparatus of state. It was, after all, Lawyers for the Emerging Giant, 1822-1871

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his willingness to place his case before the entire bar that had exposed him to Baldwin's rebuke. And on a separate question that arose about the same time, Robinson seems to have allied himself decisively with his fellow lawyers against his political confreres. This was an issue of profound significance to the future of the Law Society, for it turned on legal education and the building of Osgoode Hall. The Law Society had not rushed to buy or build once the act of 1822 authorized it to hold property. It was not until July 1825, with Dr Baldwin newly back in the treasurer's chair, that Osgoode Hall returned to its agenda, and it was April 1826 before the benchers drafted a memorial to Lieutenant-Governor Sir Peregrine Maitland, asking for a grant of Crown land in York, to relieve 'the great disadvantage they labour under by the want of buildings, wherein to transact business, collect and deposit a library, and to accommodate the youth studying the profession.'^ Both the timing and the emphasis on students were significant, for the benchers' plan put them in conflict with a prominent Upper Canadian who was John Beverley Robinson's mentor and ideological ally. In March 1826, Archdeacon John Strachan also addressed a memorial to the lieutenant-governor. The parts of it which touched on legal education were at once a lament that a landed aristocracy had failed to take root and a testimonial to the power that had passed to the legal profession in the absence of an aristocracy. Strachan wrote, 'Lawyers must, from the very nature of our political institutions - from there being no great landed proprietors - no privileged orders - become the most powerful profession and must in time possess more influence and authority than any other. They are emphatically our men of business, and must gradually engross all the colonial offices of profit and honour.' This being so, Strachan continued, it was essential that Upper Canada's students of law should 'acquire similar views and modes of thinking, and be taught by precept and example to love and venerate our parent state. It is surely of great consequence that a class of intelligent men belonging to a profession which offers the highest inducements of reputation, wealth, influence, and authority, should be actuated by sentiments and feelings of attachment to the British Empire.'21 Any proud barrister might have assented to most of this. But 78

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Strachan was proposing that the law students 'should be collected together at the University/ Strachan's brief to the lieutenant-governor was a proposal to found King's College as the first and only university in Upper Canada, and he advocated assigning legal education, and indeed 'all the branches requisite for qualifying young men for the learned professions/ to King's College, which would be run under Church of England supervision and be dedicated to the ideological commitments Strachan himself had defined for the Upper Canadian ruling elite. Strachan was not challenging the Law Society's right to call to the bar; but, to be sure of binding future lawyers to his vision of Upper Canada, he wanted all of them to receive their legal education at a university dedicated to ensuring that its graduates had what Strachan called 'confirmed principles of loyalty.' Osgoode Hall was the clearest possible statement by the Law Society that it would not yield control of student lawyers to Strachan's college - or to any non-lawyers. Once the society officially declared its intention 'to accommodate the youth studying the profession' in a building of its own, Strachan and King's College were obliged to yield. The royal charter King's received in 1827 did not include the authority to grant degrees in law, and King's admitted no students at all until 1843. Meanwhile, the Law Society had launched a career of resistance to university-controlled legal education that would withstand all challenges for 150 years.22 The new vigour that went into the society's post-1826 efforts to build Osgoode Hall as a home of lawyer-controlled legal education must have been driven in part by Strachan's challenge to that autonomy. Significantly, the building of Osgoode Hall was driven more by reform-minded lawyers than by Strachan's ideological allies. Key steps towards its construction coincided with William Baldwin's and George Ridout's terms as treasurer, lulls in activity with the terms of Robinson and Boulton. Even when the hall was under construction, benchers associated with compact toryism continued to be sceptical or opposed to it. Robinson, however, despite his close association with Strachan and his general support for King's College, was not part of the faction of convocation that resisted the hall. He provided the land on which Osgoode Hall came to be built - at a profit, but probably for less than he might otherwise have earned. He moved the successful Lawyers for the Emerging Giant, 1822-1871

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resolution of June 1828 that convocation spend up to £3000 on the building, rejecting in the process Solicitor General Boulton's proposal to spend only £700 'for a building to be used for some subordinate purpose/ After he left convocation to become chief justice, he advocated moving the superior courts to Osgoode Hall as the society wished.23 Even in the midst of their debate over legal ethics, therefore, Robinson and Baldwin made common cause to get Osgoode Hall built and to make the Law Society the nearly exclusive centre of legal education in Ontario for a century and a half Given the vigour of their political antagonism and the bluntness of Baldwin's rebuke to Robinson in 1828, the close association of Baldwin and Robinson on behalf of lawyers and of Osgoode Hall is testimony to their shared faith in the profession of law - and to the huge sense of gentlemanly propriety with which each regarded the other. But it was Baldwin whose vision of the profession most urgently depended on a hall for the lawyers. Robinson placed his faith in the Constitution of 1791 and a political system that reinforced the power and prestige of the social elite. As a critic of that system, Baldwin continued to emphasize the special role of the bar and the almost religious obligation of lawyers to uphold the Constitution by criticizing governments whose application of it became oppressive. The centrality of the Law Society to Baldwin's vision put a special burden upon him. To raise lawyers up, not only to the learned and honourable standing he and Robinson took for granted but also to the constitutional obligations which he emphasized, Baldwin had only the Law Society and Osgoode Hall.

THE BALDWINS' HALL

In May 1828 the Law Society took the plunge into property ownership. Two years earlier the benchers had asked the Crown to grant them the grounds of the burned-out legislative building on the lakefront near the foot of Parliament Street. The government offered them six acres on the site, proposing to keep four adjacent acres for an eventual court-house. Then both sides had second thoughts. The government considered using the site for a new legislative building, while the benchers began to doubt the wisdom of building in the unhealthy and increasingly unfashionable east-end location

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near the Don River marshes. Negotiations continued, but late in 1827 the society resolved to consider other sites. According to Robert Baldwin's later recollections, the benchers best acquainted with 'their guide and prototype/ the English Inns of Court, also resisted being limited to 'one building on a confined scale/ and they declined the Crown's offer.24 Having declined a six-acre grant at the southeastern corner of the city, the benchers soon bought the same acreage at the northwest corner, paying £1000 to attorney general and former treasurer John Beverley Robinson, who was present when the benchers made the unanimous decision to buy. The land where Osgoode Hall would rise was part of one of the 'park lots' which since 1793 had lined York's northern boundary along Lot (now Queen) Street. To provide country estates for the colonial gentry, the Crown had laid out these 100-acre parcels on land that stretched north to Bloor Street. This particular lot, first granted to an Anglican minister, had long belonged to the family of former Chief Justice Elmsley. In 1822 merchant and developer Alexander Wood paid £184 for a fifty-acre piece, which he sold to Robinson just three years later for £1000. After three more years, Robinson recovered his £1000 by selling the six best-located acres of the property to the Law Society. These startling price increases, which meant the park lots were at last doing what the Crown had intended in Simcoe's day, namely subsidizing the landed gentry, reflected the surging growth of York in the 1820s and 1830s, when the population was doubling every five years. (Robinson could have earned more by selling the Osgoode Hall site in several small lots, for by 1834 the Crown was getting more than £400 for single acres much farther west.) By waiting to fulfil its 1820 commitment for eight years, the Law Society had very nearly been left behind by the market.2^ Even though the benchers had to have a path paved up the track of York Street from King Street to their front door, the site was a good one. Most of the townsite south of Lot Street was already occupied, and important new developments were proceeding not far south of the Law Society's new property. Osgoode Hall was on the edge of town (indeed, just outside its northern boundary), but even in 1828 it was not remote, and it was distinctly in the path of York's growth. Events would prove that six acres were sufficient for

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A couple of decades after he built Osgoode Hall, builder John Ewart was the subject of an early daguerreotype.

all the society's ambitions, and since the Crown was still reluctant to put its courts into the lawyers' hall, the grandiose fifteen acres or more had become hard to justify. The Law Society soon moved to adorn its new property with an imposing building. In June 1828 the benchers endorsed a substantial £3000 building project over the more cautious proposal to spend only £700. Several years before, Baldwin (a self-taught architect as well as a lawyer and a doctor) had drawn plans for a complex of three linked pavilions at the Parliament Street site, in which the Law Society and the courts would each occupy a wing and lawyers' chambers would fill the central block. John Ewart, a well-established local designer and builder who had collaborated previously with Baldwin, followed a similar plan for Osgoode Hall. He began, however, with only the easternmost of the three pavilions. Instructed to have the work 'done in the plainest manner still consistent with the permanent stability of the building,' he started construction in the summer of 1829, hoping to be finished in just over a year.^6 In June 1830 the benchers, anxiously wondering how soon they could move in, appointed a committee to run the building, but they had most of a year still to wait, partly because they had approved the addition of a third storey and various other changes, including the substitution of walnut for oak as the interior trim. All the convocations of 1831 met at the Law Society library in the courthouse. The benchers took possession of Osgoode Hall in time for the first convocation of 1832. Ewart's Osgoode Hall of 1832 was a plain three-storey brick building in Regency style with few lavish touches, but from the start it was a solid, respected, admired addition to the town. Diarist James Lesslie, shown the building days after the first convocation there, admired all the workmanship and particularly the elegant Convocation Room. Retired Chief Justice Sir William Campbell, who made a special effort to visit the new building during the last frail year of his life, was similarly impressed. Robert Baldwin's investigation of the society's accounts with Ewart confirmed that he had done good work at excellent prices. Convocation's resolutions of praise and gratitude were passed to him as soon as the building opened.2? Osgoode Hall proved so satisfactory that, barely a year after its 82

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opening, the society committed itself to a second stage, adding a range of chambers running west from the first building. This time Dr Baldwin drew the plans himself, and builder John Ritchey completed the work in barely a year. By the spring of 1834, even though the government still refused to put the courts into Osgoode Hall, the society at least had its hall and chambers. It had even, for the first time, acquired a paid staff. Thomas Hill and his wife were hired as servants as soon as the hall opened, and they satisfied Dr Baldwin so well that their daughter was soon hired also. In February 1833, after a year's deliberation, convocation appointed its first secretary and librarian, choosing James Martin Cawdell, a government clerk, retired military officer, and sometime poet whose satires and lampoons had made him anathema to the ruling elite.^8 The benchers held their first convocation in Osgoode Hall, on Monday, 6 February, the first day of Hilary term of 1832, as William Warren Baldwin took up his fourth term as treasurer. The meeting should have been a celebration, but the agenda was all business, and much of it grim. As his final duty of office, outgoing treasurer George Ridout presented an alarming financial report, declaring that it was 'imperatively necessary' to deal with the society's debt. There were over £1100 of debts immediately due and payable, and the society had £20 in hand. Recklessly casual accounting, in fact, had brought on a financial crisis.2^ Osgoode Hall's two initial stages had represented a huge outlay for a society that had barely one hundred members who paid annual dues of only £2. In six years, the Law Society had spent at least £7000 for land, buildings, and furnishings at Osgoode Hall. Before it began building, the Law Society had had only occasional out-ofpocket expenses, and the treasurer had held the society's funds personally. In 1824, when Dr Baldwin succeeded Solicitor General Henry John Boulton as treasurer, Boulton had been unable to hand over the society's money, and convocation had given him two years in which to pay. After that, the society acquired a bank account and began investing its assets in Bank of Upper Canada stock.30 At the end of 1831, with the society committed to expenditures of thousands of pounds, there was still no absolute separation between the treasurer's own funds and the society's. A committee declared it would be 'highly satisfactory if not absolutely necessary that regular account books should be kept.' Even as the treasurer Lawyers for the Emerging Giant, 1822-1871

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was desperately selling stock and arranging bank loans to pay Ewart's bills, the accounts committee found itself unable to state with any precision just what funds the society had to its name.31 This massive, barely controlled spending almost put an end to Osgoode Hall. In April and again in November 1830, right in the midst of construction, benchers Hagerman and Draper revived Solicitor General Boulton's preference for a smaller, perhaps ternporary headquarters. Hagerman and Draper proposed 'disposing of "Osgoode Hall and selecting some more convenient site for the erection of buildings for the accommodation of the society/ This was apparently a serious proposal with substantial support among the benchers. The pro-Osgoode faction, with the Baldwins prominent among them, narrowly staved it off. After much discussion, the would-be sellers lost in an attempt to have the question postponed, and several of them walked out. On a motion by Robert Baldwin, those remaining swiftly passed a new rule. Its resolute declaration, 'Osgoode Hall shall be and is hereby declared to be the permanent seat of the Law Society of Upper Canada/ seemed to put the matter beyond question.32 A sizeable minority of benchers remained doubtful. Soon after Osgoode Hall opened, Ridout noted the strength of the 'sentiments of several gentlemen both for and against' the building, and he expressed his hope that its advantages would be better understood when the court of King's Bench moved in. The judges, led by Chief Justice Robinson, were eager, and the court did move in briefly, but when the new parliament buildings opened on Front Street soon after Osgoode Hall, the governor insisted the courts move there. Osgoode Hall lost both the presence of - and the rental income from - the high court for the next fifteen years.33 The society remained solvent. In 1832, the treasurer finally began to maintain formal accounts (in a leather-bound ledger purchased from Lesslie the stationer for thirty-five shillings), and in March 1833, the society's desperate appeals for bank credit gave way to more coherent long-term borrowing. That spring the Law Society sold £3000 worth of ten-year bonds, paying 6 per cent interest. Half of them were taken up by the recently arrived Blake family, whose son, William Hume Blake, a future pillar of the legal community, was soon to be admitted as a law student. In the next

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four years, the society would borrow another £1350 through bonds and debentures.3^ Routine financial management soon went far to show that the Law Society could afford to keep Osgoode Hall. During the three years of construction, no fewer than 60 students had been admitted to membership (compared to under 200 in all the society's previous history). In 1832 students paid £10 upon admission and £20 upon call, and the society earned more from admission and call fees than from the barristers' minuscule dues. Ever larger numbers of entrants could be expected as Upper Canada continued to expand, and so the society's income was certain to grow. The mortgage payments could be met.35 It was the hall itself that had created the debts. Osgoode Hall had been the focus of convocation's ambitions for years, and with barely a hundred members the society had driven itself right to the brink of bankruptcy for it. How urgently the lawyers of Upper Canada, and particularly treasurer Baldwin, felt the need to build this hall for lawyers is not explained by motives of ostentation or even by the needs of legal education and library building. The building of Osgoode Hall responded to their deep sense of what the lawyer's vocation was and how it could be engendered in those who came into the profession. Its cost was justified because it was, as much as anything, an antidote to pettifoggery, and as such worth any price. As a young man embarking on the study of the law, John Beverley Robinson had received a warning from one of his mentors, the Loyalist Anglican minister John Stuart. There is no medium in the profession you have chosen,' he was advised. 'You must either rise to eminence and respectability or sink to the level of a pettifogging attorney in some obscure part of the country.' It required a spectacular misperception of Robinson to imagine him becoming some backwoods mediocrity. Still, the Reverend Stuart was touching on one of the deepest anxieties of early-nineteenth-century lawyers: the belief that legal practice could as easily be petty and ignoble as elevating and honourable. Tettifoggery' was the name given this spectre that stalked the legal profession.36 The accusation that lawyers were petty and venal came easily

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from critics of the profession, of course. Radical journalist Francis Collins dismissed the whole Upper Canadian bar of 1827 as 'the worthless, unprincipled, ignorant, vagrant village lawyers of this province/ But it was lawyers themselves, and those who most cherished the legal profession, who waxed most eloquent about the dangers of pettifoggery. William Warren Baldwin, who worshipped the law, lamented the demeaning influence of pettifoggers who 'engaged in low practice, and were looked upon as low and vicious by the people/37 Baldwin was speaking of attorneys, not barristers, when he denounced low pettifoggers. Like most lawyers of his time, he associated the noble aspects of law with the work that barristers did. Barristers' work was learned, in that it required mastery of 'the sciences of the law' rooted in a liberal education, and it was honourable, that is, appropriate for gentlemen. Attorneys' work, by comparison, relied more on merely technical skills, so it resembled a trade more than a profession. It was not essentially gentlemanly. As Baldwin's fellow bencher William Draper put it in 1830, 'much in the business of an attorney ... is foreign to that high tone of feeling which cannot be too much cultivated at the bar.'38 Students of law quickly grasped what was fine about barristers' practice, and what was petty and befogging about the attorney's side of their chosen profession. 'No part of the profession has half the charms that the term business has,' declared Kingston law student John Cartwright (son of Richard, the one-time critic of lawyers) after observing one of the quarterly King's Bench terms at York in 1824* 'How I like to hear an argument well conducted and arranged, to see the various and ingenious methods pursued. I could listen forever and not be tired.' His friend and fellow student James Hunter Samson, on the other hand, testified to the drudgery law students endured in the office as attorneys' clerks: 'Nothing greets my eyes during the livelong day but my own handy work; my fingers go up up up down down down, etc., my head is like a clock or watch. What am I but a piece of machinery wound up and set in motion?' Boring and essentially clerical, such work wore away at the lofty self-image of the legal profession. 39 The professions were difficult to separate. Much of the income of most lawyers came from the attorney's side of their practice, that is, from property conveyancing and the drafting of procedural doc86

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uments and wills, much of which could be entrusted to unpaid or ill-paid apprentices. Still, attorneys' work was too routine, too close to the public, and too simply commercial in nature to suit gentleman barristers who believed their true vocation was advancing the common law and preserving the freedoms of Englishmen at the bar of the superior courts. As the colony and the legal profession expanded, therefore, the separation of the two professions came back into favour as a remedy for the demeaning impact of attorneys' work upon barristers. When the Law Society relinquished authority to prescribe attorneys' training and practice in 1822 and began to raise educational standards for barristers, the number of attorneys who were not called to the bar began to grow and real separation began to seem possible again.4° Absolute separation of the professions briefly loomed in 1830, when the benchers voted, after vigorous debate, that in future the Law Society would call no one to the bar who remained on the roll of attorneys. The resolution was moved by Attorney General Boulton, and its passage followed rejection of Robert Baldwin's and George Ridout's motion for committee study, evidently an attempt to derail the plan. This separation would have wrought a fundamental change in Ontario's legal profession, but the judges of King's Bench, who held veto power over Law Society rules, refused to ratify the change, probably because they felt it exceeded the powers granted to the Law Society by the acts of 1797 and 1822.41 Thereafter the tide turned, and the motive for dividing the profession began to ebb away. In the next decades, indeed, the emergence of the prosperous, pro to-industrial province of Ontario out of the backwoods frontier colony of Upper Canada would transform the nature of legal practice to such an extent that separating barristers from attorneys ceased to be an issue. Attorneys transmuted themselves into solicitors, and solicitors made themselves respected and envied, secure pillars of the legal establishment. The whole context in which the fear of pettifoggery had flourished was obliterated, and the term itself became an antique survivor from a lost age. In the earlier decades of the nineteenth century, however, separation of the professions was not the only antidote that lawyers had against pettifoggery and its dangers to their morals and their Lawyers for the Emerging Giant, 1822-1871

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status. Whatever their views on separating the professions, the early-nineteenth-century benchers worked more vigorously and consistently at improving barristers than at separating barristers' from attorneys' work. In this regard, the proper education of students-at-law was crucial, but so was the improvement of the whole profession - through discipline, through the provision of legal information, through the strengthening of professional ties that might inspire emulation of the best among lawyers. Virtually all these efforts to improve the profession were focused upon maintaining a lawyers' hall. From the 1820s through the 1860s, the struggle, first to build Osgoode Hall, then to make almost constant expansions to it - and, constantly, to pay for it - preoccupied the benchers. Osgoode Hall was worth the time and expense because the building would shape the profession that built it. It was to be the forge in which better barristers would be moulded and pettifoggery purified away. The great project associated with Osgoode Hall was the education of law students. Nine students moved into the attic of Osgoode Hall as soon as it opened, and the 'Baldwin range' that opened in 1834 was largely a student residence, though it also offered chambers for barristers. The opening of the hall went hand-in-glove with the consolidation of all the steps previously taken to ensure that barristers in Upper Canada would actually shape their students into learned and honourable members of their gentlemanly profession.^2 The benchers had enforced educational standards ever since 1820, when the benchers demanded 'proofs of a liberal education' and began to test the Latin and English competence of would-be students. This test, stiffened in 1825, was not taken lightly. Fifty years after the November day in 1828 when he came up from eastern Ontario, aged nineteen, to take the exam at treasurer Baldwin's chambers in Russell Abbey, Judge William B. Wells still recalled the 'precious state of trepidation we were in ... as the time approached for appearing before their high mightinesses the Benchers.' Thomas Taylor, who had the reputation of being 'a perfect Tartar,' missed that convocation, but Wells had to face 'the Trinity man Dr. Baldwin, the Oxford man Dr. John Rolph, and George Ridout, a graduate from Dr. Strachan's school. There could be no dodges played with these gentlemen.'43

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Wells was lucky. The benchers agreed to overlook a technical flaw in his notice of application, and a couple of law clerks help him translate his passage from Cicero. He passed on his first attempt and was admitted as a student of law. In 1830, by contrast, William Boulton found himself rejected for the insufficiency of his 'classical knowledge and general attainment/ even though he had a father, two uncles, and a grandfather among the benchers. Like many others who failed, this future mayor of Toronto was accepted on a later attempt.^ By the 1830s, the entrance exam covered Latin and English composition, history, geography, and 'the elements of Euclid/ It was not that Latin and mathematics were crucial in themselves, but mastery of such a curriculum indicated that one had a disciplined mind, a certain breadth of culture, and the time and means for thought and study. The benchers presumed that barristers must be gentlemen, and they trusted that a liberal education rooted in the classics could be taken as the mark of a gentleman. In the fluid society of Upper Canada, where no one's standing was fixed and certain, the Law Society was accepting an educational test as a test of gentility to a degree that would never have been possible in the more rigid class system inhabited by English barristers. Charles Durand, for instance, had grown up in a shanty in the woods near Ancaster, but he was a bookish boy, so while his brothers were apprenticed to trades, he went to local schools that taught 'Latin, Greek, Euclid and the lower branches of mathematics/ That schooling enabled him to pass the Law Society's entrance exam in 1831, making him, in effect, a gentleman ready to commence the study of the law. Soon after, however, he offended Dr Baldwin by uncouth behaviour: failing to doff his hat when they met on the Osgoode Hall staircase. Baldwin, one might say, was upholding the rules over his instincts. If they could pass its exams, his Law Society would grant gentlemanly standing to men whom he knew were not gentlemen.45 As plans for Osgoode Hall proceeded, the benchers instituted term keeping, which from 1828 required student barristers to assemble together at York at least four times during their apprenticeship to observe the sittings of the court of King's Bench. In 1831 the society added a final exam, in which the benchers tested candidates

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* Finding no space available in Osgoode Hall, McGregor and Macdonald rented rooms nearby.

This 1834 certificate, signed by treasurer Baldwin and secretary Cawdell, certifies that Patrick McGregor, 'gentleman,' having sat and passed the Law Society's most rigorous entrance exam, had been admitted to the times' class.

on their legal knowledge before their call to the bar. These innovations set the extent of law students' formal obligations for several decades. From the 1830s, prospective barristers had not only to remain on the society's books for five years, but also had to take substantial entrance and pre-call examinations administered by the benchers and to keep terms in York four times during their five years.46 A term of King's Bench, however, lasted only twelve days. When Patrick McGregor came up from Kingston with fellow student John A. Macdonald to keep the Easter term of 1834,* they signed in on the first day of the session, Monday, 21 April, and left for home when the court rose on Saturday, 3 May, with their first term keeping completed. Similarly, Charles Durand made a twoweek visit to the capital that year 'while spending a student's term at the Law Society.' Three more equally brief visits completed a student's term-keeping obligations.47 Legal education for most law students, therefore, remained rooted in apprenticeship and private study. One found a principal and spent five years clerking with him, learning what law one could from the work of the office and from private reading. Some principals kept their students preoccupied with profitable clerking work of the kind James Hunter Samson had found so tedious while apprenticing with Christopher Hagerman. 'I have read no law in six months and fear I shall make a poor figure when called to the bar. My only comfort is that I shall have plenty of time for improvement,' lamented Samson to fellow student Robert Baldwin in 1821. He proposed an ironic question for the law students' clubs they each attended. 'Quare: If a man knows nothing of law when he begins to study ... acquires nothing during his clerkship, what will be the quantum of his legal knowledge when called to the Bar?'48 Many students, however, made time for private study and attendance at court, and after 1831 they were spurred on by the prospect of facing the benchers in a final examination that covered the principles of the law of England, the science of special pleading, the law of evidence, the law relative to trials at nisi prius, and the practice of the courts. A conscientious principal instructed and guided his students in mastering these subjects, but at a price. 90

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Soon after his call to the bar in 1838, John Wellington Gwynne, a future justice of the Supreme Court of Canada, wrote Robert Baldwin to say that since he was unable to pay the £50 fee Baldwin would charge for entry to his chambers, he would practise elsewhere. Baldwin and other leading practitioners probably charged their students as well.49 Students were obliged to state that they had no other occupation while preparing, unpaid if not actually paying, for the bar. In 1825 John Law was told he could not be accepted as a law student until he gave up schoolmastering, but the rule was hard to enforce. In the 1830s, Charles Durand found time while working in his principal's office to write 'books on various subjects ... and a great many political letters/ and he also worked as a tax collector and census taker. Financial need kept law student William Elliott working as a school superintendent in the 1840s.50 In 1832, convocation permitted students to seek entry into their choice of Junior, Senior, or Optimes class, which had progressively higher entry requirements. No tangible benefits accrued to graduates from the higher classifications, and most students chose the easiest entrance test and accepted placement in the Junior Class. Apparently the only scholar who sought and won entry to the Optimes class during its twenty-year life was John A. Macdonald's fellow student Patrick McGregor, who despite the distinction went on to a minor legal career. The future prime minister settled for the Junior Class.^1 Ambitious law students had always exceeded the society's minimum requirements. John Cartwright of Kingston and Robert Baldwin of York became friends while keeping terms together a decade before term keeping became mandatory, and each helped establish a law students' study group. Since 1821 Baldwin had been a leader of the Juvenile Advocates' Society, an unofficial debating and tutoring club for student barristers, and Cartwright helped found a similar club in Kingston about the same time. Few communities had enough law students for such clubs, however, and even in York and Kingston, they were exclusive societies with few members. Since the Law Society Act limited lawyers to only one or two students at a time, Upper Canada did not develop the office law schools then common in the United States, where a lawyer could devote himself to teaching and support himself on student fees. Lawyers for the Emerging Giant, 1822-1871

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Most law students must have worked almost alone with their principal and studied on their own.52 In 1832, Robert Baldwin, by then a bencher, persuaded convocation to give formal authorization to study classes. With his help, a group of nine students formed the Trinity Class (so named from its start in Trinity term 1832). York law students who joined the Trinity Class met every Thursday evening to debate and study legal questions and to set themselves annual exams. Though officially sanctioned, the Trinity Class was a voluntary association. Only a minority of law students, most from prominent families, participated, and when requested to provide a paid lecturer, the benchers refused.53 The Trinity Class met in Osgoode Hall, and despite its small membership it was dear to the hearts of both Robert Baldwin, who devoted much time to it, and William Baldwin. It meshed perfectly with the Baldwins' plan that the Law Society should link formal examination requirements with gentlemanly independence and self-reliance. For Robert and William Baldwin, Osgoode Hall was above all the place where young gentlemen would devote themselves to the study of their calling in close proximity to their colleagues, their principals, and the courts. William Baldwin foresaw the hall's becoming a voluntary and self-regulating community of scholars, and during his four-year term as treasurer between 1832 and 1836, he devoted much time to minute details of hall administration. As chair of the committee of economy, which managed the building, he drafted regulations, hired staff, examined accounts, and superintended the life of the hall, all with an intensity that suggests the importance its success had for him.54 As a student residence, however, Osgoode Hall proved a cruel disappointment. Baldwin, a Victorian before Victoria, considered propriety and piety, along with learning, to be fundamental attributes of gentlemen and barristers. His son Robert, to whom he was devoted and affectionate, had been precisely that kind of youth. William's dedicated efforts to impart to young Robert his own mastery of the classics and of the law was the foundation of the closeness between them, and he seemed to have imagined a similar relationship with the young students of Osgoode Hall. But the students were not all Robert Baldwin. The wealthy, favoured, and pro-

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tected sons of the colonial elite did not come to Osgoode Hall to join a monastic temple to legal study. They intended to enjoy life. Heavy drinking, late nights, loud music, good food, and obliging servants were high on their agenda. The hall had barely opened when Dr Baldwin began to be plagued with complaints about music, drunkenness, and disrespect. In November 1832, the steward reported brawling among the boarders, and two of them were called before convocation. Baldwin took the opportunity to remind them and their fellows of convocation's 'authority over the moral conduct of the students of the laws' not just in Osgoode Hall but throughout the province. He told the students Osgoode Hall was 'an institution designed not so much for the mere personal accommodation of students and barristers but for the nobler end of elevating the character of the bar and securing by early habits of honorable and gentlemanly conduct the respect and confidence of the public.' ^5 William B. Wells wrote to his father that he was keeping away from his rowdier fellows in the hall, and 'attending to my studies as diligently as possible so as to acquit myself with credit before the benchers,' but his example was not generally followed. In May 1833 a drunken student fought with a barrister on the steps of the hall and was expelled from the building. In May 1834, when several stools were stolen from the Law Society library, in circumstances that pointed to student complicity, Dr Baldwin confronted all the students with pointed references to honour and duty. Each one, including future treasurer John Hillyard Cameron, future Supreme Court justice John Wellington Gwynne, bishop's son John Strachan, and several future benchers, denied knowing anything about it, and George Cooper 'was very forward in expressing his disapprobation of the stools.'56 The students were not shy about their own complaints. In June 1834 they protested that 'the victuals provided by the Society for their use was not such as they might reasonably expect... The meat provided them is almost uniformly of the coarsest kind and the bread sour and indigestible. The tea and coffee also are usually of a decidedly inferior quality, and the boarder in short is frequently compelled to seek a better meal elsewhere.'* Students consistently refused to accept the authority of steward Hill, whom they consid-

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* Nineteenth-century complaints about food were echoed in the 1950s and 1960s, when Osgoode Hall once again provided meals for law students.

ered a menial. George Cooper, ordered out of the hall for non-payment of rent late in 1834, complained angrily to secretary Cawdell and continued to sleep and eat in the hall57 By then Hill the steward, 'a most inoffensive man/ had had enough. In August 1834, when the new residential wing had just opened, Hill resigned, bluntly informing Baldwin that coping with the students' behaviour did not 'suit his principles or views of propriety/ and setting forth his accumulated grievances. (The gentlemen will not partake of a dish of hashed meat... Almost always the joint cooked one day leaves much for next but it will not be eaten, tho' it be ever so good. He even thinks that some little effort is made to disfigure the dish of today to prevent its appearance on the next/) Baldwin found a successor, James Reid, and gave him new powers to administer the hall, but soon Reid had complaints identical to Hill's.58 Baldwin secured new authority for the committee of economy and promulgated new rules for the residents. 'The students generally (for there are exceptions in degree) appear not to understand the distinction between this establishment and an ordinary hotel or inn/ he lamented to convocation, 'nor to appreciate the anxiety of the Benchers to secure to it that high reputation for order and decorum upon which alone its usefulness as well as its property and success depend.' The students responded with another petition, demanding more fresh foods in season, more frequent bootpolishings, and a more deferential staff.^ Baldwin answered in the name of the committee of economy, 'particularly emphasizing the unreasonableness of the society subsidizing gentlemen living in the hall, given that the capital cost of the building is not charged to the residence.' In fact, things were worse than he admitted. The residence was not merely making no contribution to its capital cost. It was actually losing money, adding to the hard-pressed society's deficit every year. Baldwin, secretary Cawdell, and the stewards experimented with new arrangements and efforts at economy. The students protested every cutback, and competition from nearby rooming houses forestalled rent increases. Baldwin grew steadily more frustrated and his tone sharper.^0 Matters came to a head in November 1835. Reid the steward, still plagued by the noise, drunkenness, and irregular hours of the boarders, confronted one young student, only to be 'called to 94

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account' by a more senior one, Walter McKenzie. Reid reported the incident to Baldwin, and Baldwin promptly sent McKenzie a curt letter ordering him to leave Osgoode Hall, as 'its regulations, so necessarily restrictive, seem inconvenient to you/ McKenzie, a lawyer in embryo, refused to go. He confronted the three benchers on the committee of economy, who happened to be the treasurer of the Law Society, the speaker of the Legislative Assembly, and the attorney general of Upper Canada. He barraged both the committee and convocation with demands to know what offence he was accused of and how he might answer the charge and clear the stain from his reputation. Dr Baldwin was obdurate. Resting on the committee's authority to decide who should and should not reside in hall, he told McKenzie he was being neither expelled from the Law Society nor dishonoured, but it was 'the will of the committee' that he should leave the hall, and there could be neither appeal nor discussion. McKenzie held out for three weeks and only left under threat of forcible removal.6* The other Osgoode residents presented their own petition, asking how they could avoid suffering McKenzie's fate when they had not been informed of his offence. This provoked Baldwin into a remarkable exposition of the patriarchal relationship he expected barristers and students-at-law to maintain. 'Need it be asked whose duty it is to preserve ... decorum and regularity in every private family? The only answer to be made is "the father's" ... Nature has placed the father in the situation of absolute governor in his own house. Precisely in such relation stands the Committee of Economy with the establishment of Osgoode Hall.' The students had no more right to debate or question the rules, Baldwin declared, than servants or children had to share in running a household. Simply obey, he told them.62 The McKenzie affair not only drove Baldwin to articulate the filial devotion he expected from barristers-in-training. It also drove him from office. Walter McKenzie sent a final appeal to convocation. The benchers declined to act on it, but Baldwin apparently felt betrayed by their decision merely to read the petition before rejecting it. He submitted his resignation on 13 February 1836. Though he was only sixty and had eight more years to live, he did not serve as treasurer again. It seems extraordinary that a squabble between a student and a Lawyers for the Emerging Giant, 1822-1871

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servant could have brought down the man who had given the society such an important place in his very busy public and private life, who had been its treasurer intermittently since 1811, and who remained its strongest pillar. But more than an administrative headache had defeated him. Baldwin had been frustrated beyond endurance by the constant reminders that his vision of Osgoode Hall as a decorous community of dedicated legal scholars was largely a chimera. In his resignation letter, Baldwin told his fellow benchers that 'elevating our Bar to congenial worth, honour and esteem in the eyes of our fellow subjects' had always been his fondest hope, and he emphasized that Osgoode Hall and its strict rules had been founded to that end and purpose. The honour of the bar had been Baldwin's touchstone in his condemnation of John Beverley Robinson's failure to discipline his riotous law students in 1828. Now the weapon he used against Robinson had turned in his hand. Just like Robinson, Baldwin found himself unable to command gentlemanly decorum from the students of law under his authority. And when convocation failed to give absolutely unconditional support to his struggle to correct their behaviour, he resigned, hoping that his successors would be more successful in attaining 'the objects of the institution.' Not only student misbehaviour had undermined the high expectations the benchers reposed in Osgoode Hall. The government still refused to allow the courts to move to the hall. The building was still losing money, and only a handful of barristers and students lived there. Most legal education still went on in private legal offices far from the hall, under regulations which had mostly been in place before it opened. What was the hall for? If the society's hall could not help to raise the bar to honour and esteem, what indeed was the purpose of the society, which Baldwin still considered, after only the provincial parliament, 'of most importance to the preservation and due administration of our constitution?' Baldwin's resignation expressed not frustration so much as despair.63 These deep questions about Osgoode Hall and the society itself were resolved neither by Baldwin's temporary replacement, his nephew Robert Baldwin Sullivan, nor by Attorney General Robert Jameson, who began a five-year term as treasurer at the end of 1836. 96

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Convocation continued to struggle with the building and its finances. Another steward quit, and the society's debt continued to mount. The Law Society's escape from these burdens came from a most unlikely source: the Upper Canadian Rebellion of 1837.64 Convocation's minutes for Monday, 4 December 1837, reveal the benchers starting Michaelmas term in the routine way, conducting the entrance and bar exams of half a dozen students and accepting notice from others seeking to take the tests. The meeting's adjournment, however, is followed in the minutes by the dramatic line: 'Mckenzie's rebellion broke out this night and in consequence of which the Convocation assembled no more this term.' In fact, routine business continued at Osgoode Hall. Even as skirmishes, truce negotiations, and troop movements swirled around Toronto in the following days, William Hume Blake was one of several law students who dropped in to file an application for call to the bar. But the benchers did not meet, and the rebellion had large implications for both the hall and the society. As the rebellion was stemmed and then crushed, the Crown soon needed additional quarters for the troops it rushed to Toronto. Soldiers began moving into Osgoode Hall on 10 December. Convocation retained its own chamber for several months, but in June 1838 the Law Society agreed to rent all of Osgoode Hall to the army. For the society it was a providential escape. The embarrassing and costly experiment in residential education was ended. The government provided convocation with rooms in the legislative building, adjacent to the courts, and the drain on the society's finances stopped. With students' fees and regimental rents flowing into its coffers, the society suddenly enjoyed a substantial income. It began to pay off its debts and build up its library. When it returned to Osgoode Hall, it would be under entirely different circumstances.^ The rebellion, however, was problematical on a different level. Barristers, those vital pillars of the Constitution, had been deeply involved in dissent and in some cases sedition. In the wake of the fighting, benchers John Rolph and Marshall Spring Bidwell fled for their lives to the United States, though Bidwell at least had played no part in the rising. The Baldwins were not entirely unsuspected, at least by Lieutenant-Governor Bond Head, who had already dismissed Dr Baldwin and George Ridout Lawyers for the Emerging Giant, 1822-1871

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from Crown appointments. Some young lawyers had been implicated. Charles Durand, an ally of Rolph's, encountered the rebels while travelling to Toronto for the Michaelmas sittings of King's Bench'. He headed back to Hamilton, gleefully urging all he met it was time to be 'up and doing/ Arrested by lawyer and militia officer Allan MacNab a few days later, Durand was prosecuted by Attorney General Hagerman for constructive treason and sentenced to death by Chief Justice Robinson. William Wells, a Bidwell protege, thought it best to flee across the St Lawrence before the Loyalists torched his home and practice in Belleville.66 Except for Bidwell, who never returned (and who became one of New York City's leading lawyers at mid-century), the dissident lawyers suffered only temporarily for being associated with rebellion. Rolph, Wells, and Durand, whose sentence had been commuted to banishment, all returned from the United States after a general amnesty. ('Are you back again?' said Chief Justice Robinson to Durand when they met in the Law Society library in 1844.) Rolph concentrated on medicine more than law, but Wells and Durand resumed practice, and in a few years Robert Baldwin secured a judicial appointment for Wells.67 The outcome of the rebellion, however, essentially closed the book on the era of John Beverley Robinson, William Warren Baldwin, and their ideas of honour and virtue. The era when law was a religious calling and pettifoggery its sin was passing as fast as the political hegemony of unelected gentlemen. The unsuccessful attempt to make the hall a law students' seminary could be abandoned, and students never again boarded in Osgoode Hall. When the hall returned to the Law Society, it would return to lawyers with few of such antique conceptions.

LAWYERS FOR THE EMERGING GIANT

The Law Society of Upper Canada barely noticed the Union of 1841, when Upper Canada became the western partner in the newly united Province of Canada. Canada West, as it was now called, had its own attorney general and solicitor general in the parliament of the United Canadas. It retained its own courts and legal system, and the powers of the Law Society were unaffected. Because the name 'Upper Canada' continued to-be used in common par-

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lance and even in legislation, the society seems never to have considered changing its name, though Upper Canada had formally ceased to exist.68 Because the union took the legislators away from Toronto, first to Kingston, later to Montreal, there was ample space for the Law Society in the Upper Canada parliament building at Front and Simcoe streets. From 1838 to 1846 the society's library shared the legislative building with the court of Queen's Bench (the Judicature Act of 1794 had made no provision for a female monarch, but the name was changed by legislation two years after Victoria ascended the throne in 1837), and after 1843 King's College also moved in. Once the legislature had gone, the society was permitted to use all the space it wished on the second floor of the building.69 All the society had lost by the union of the Canadas, in fact, was its treasurer. Robert Jameson, an English equity practitioner who was made attorney general of Upper Canada in 1833, had become treasurer in 1836 and head of the new court of Chancery the following year.* The benchers decided that as he was a judge of equity rather than common law, his appointment did not make him a visitor of the society, and so he remained its treasurer. However, Jameson became speaker of the Legislative Council as well, and when he left to take up that duty in Kingston in 1841, he resigned as treasurer and took the Chancery court with him. The Law Society protested the removal of the court from Toronto, noting the importance of keeping all the courts together close to the Law Society's large and extensive library.' In 1843 Jameson resigned his speakership (thereby virtually ending the era in which Canadian judges also held political office) and brought his court back to Toronto. By then, however, Levius Peters Sherwood, a retired Queen's Bench judge of impeccable Tory-Loyalist lineage, had been elected treasurer. ?° For the first time, the society was enjoying prosperity. In 1839 convocation instructed the treasurer to pay off the society's debentures as fast as possible, and most of the debt accumulated in the building and running of Osgoode Hall was discharged in a couple of years. Library purchases increased. With the residential program abandoned, the society's property requirements were small. A pair of rooms in the legislative building provided ample space for its sec-

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* Treasurer Robert Jameson's wife, Anna Jameson, wrote one of the best known of early Canadian travel books, Winter Studies and Summer Rambles (1838), while visiting Upper Canada, but the two were estranged, and her book barely mentions her husband or the legal community.

retary and for the Law Society library, in which convocation met. These premises seem to have been rent-free, and in 1840 the treasurer could 'congratulate the benchers on the favourable condition of the institution/71 So favourable, in fact, that the subject of selling Osgoode Hall had been mooted again. In 1838 John Godfrey Spragge, a bencher since 1835, gave notice of a motion to sell the hall Robert Baldwin drafted an eloquent speech in opposition, insisting that only Osgoode Hall could 'effect the great object of the legislature in the establishment of this society/ and that to sell it would 'subject the present benchers to the censure of their successors/ Spragge withdrew the motion before it was debated, and convocation never again considered selling Osgoode Hall72 In 1843, with the army proposing to end its five-year lease and return Osgoode Hall to the society, the benchers commissioned architect John Howard to assess the damage their building had suffered. 'The terms fair wear and tear will in no wise apply/ declared Howard. He found Osgoode Hall, particularly the chambers wing, virtually a ruin and 'swarming with bugs/ It needed new floors, ceilings, doors, and partitions, plus fresh plaster, paint, and new fences. He estimated repairs would cost more than £700. The government offered £350, and after finding it had no legal remedy against the Crown, the society settled 'regretfully' for £500.7^ The disputed liability delayed the society's return to the hall. Even when that matter was settled, there was a further delay. As the British Colonist reported, the society no sooner collected payment for 'the injuries done this beautiful building by the military than they commenced improvements instanter/ The society had a bold new scheme to transform Osgoode Hall from a student residence to a home for the courts. The Crown was at last ready to move the superior courts into Osgoode Hall, and with that expectation, convocation on 10 August 1844 approved architect Henry Bowyer Lane's plans to add the long-intended west wing and central pavilion to Osgoode Hall. Lane, a recent immigrant from Britain, had moved ahead fast on his own talents and his connections to the Boulton family. During just five years in Toronto, he designed several distinguished private residences, a new city hall and market, and several churches. The British Colonist, declaring that 'there is no city that needs a little architectural taste more than ours/ 100

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cheered his success. The new Osgoode Hall, in fact, would prove to be his masterwork.7^ Lane transformed Osgoode Hall. By adding a west wing similar to the original east wing, he created the balanced three-part facade that had been intended since the 1820s. He also reworked Baldwin's range of chambers into a central pavilion, adding an arcade and a rooftop dome, and he refurbished the front of Ewart's east wing with an elegant stone portico. Early in 1846, the Queen's Bench and Chancery courts moved into the west wing, convocation returned to the east wing, and a large new library opened on Architect Henry Bowyer Lanes additions completed the three-part fagade of Osgoode Hall in 1846. Lanes central block and its slim dome survived only until the reconstruction of i860.

the second floor of the old range of chambers, with lawyers' chambers available beneath. Ewart's modest and forthright Regency style was submerged. The facade of Osgoode Hall now expressed the revived classical language of Palladianism, which bespoke pride, dignity, affluence, and urbanity. While the work was going on, the Toronto Patriot declared that the new lawyers' hall would be 'the finest and best-situated public edifice in Toronto,' and should be renamed the Inns of Court.75 The Law Society could build on such a grand scale because at last the government was paying the bills. Chief Justice John Beverley Robinson had always supported moving the courts into Osgoode Hall, but now that the government was agreeable, he did not want the courts to be 'mere tenants at will' of the lawyers. The benchers and the Crown accepted that principle, and the government agreed to pay the Law Society £6000 (which the Crown would recover by a temporary tax on court fees) to cover the expense of reconstructing Osgoode Hall. In exchange, the society Lawyers for the Emerging Giant, 1822-1871

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agreed 'to provide fit and proper accommodation for the Superior Courts of Law and Equity for all time to come/ The residential program that had been such a vital part of Dr Baldwin's conception of Osgoode Hall had been quietly laid to rest.76 Although the courts proved more agreeable tenants than the students had ever been, the government at first seemed no easy partner. After the courts' first winter in Osgoode Hall, a Crown clerk sent the society the bill for heating the courts and judges' chambers, provoking a long wrangle before the courts agreed to provide their own firewood. Meanwhile, instead of paying in cash, the Crown had paid the society its £6000 with interest-bearing debentures. The society, its construction bills due at the Bank of Upper Canada, had to cash them at an 8 per cent discount, sacrificing almost £500. One involuntary purchaser of these debentures was the Six Nations of the Grand River. In 1847 the government took £250 from Six Nations trust funds it controlled and purchased Law Society debentures. In 1857 the Crown invested another £7000 of 'Indian monies' in a new debenture issue for construction at Osgoode Hall. In 1861, however, the Crown pocketed all funds and investments it held for the Indian Department, and the Six Nations received neither principal nor interest.77 The Canada West of the 1840s was a big, busy place. Its population was 400,000 and growing rapidly, its natural increase supplemented by the annual arrival of up to 40,000 immigrants, now mostly from Britain rather than the United States. Canada West remained an overwhelmingly agrarian society, 'a good poor man's country' for families willing to commit themselves wholeheartedly for a generation to carving farmland out of the forest. These people still found good land to clear, although settlement had expanded from the original 'front' along the St Lawrence River and Lake Ontario to cover most of southern Ontario. It had taken half a century, but Simcoe's vision of an inland empire between Lakes Ontario, Erie, and Huron was being realized. By 1840 Native land title and the legal standing of Native society had been almost entirely eclipsed in southern Ontario. Since the beginnings of British government in the region, the Crown had acknowledged its obligation to negotiate treaties with Native

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nations in order to acquire land for colonization. (Lawyers assisted the Crown in negotiating some of the later treaties and would participate in their administration throughout the century.) The treaty-making process for southern Ontario was substantially complete before 1840, however, and no nineteenth-century Ontario lawyers seem to have thought seriously of the treaties as legal agreements binding upon the governments of Ontario. Even in the most egregious examples of Crown assaults upon treaty rights, Native organizations found no support from the Ontario bar. Eminent lawyers such as Dr Baldwin and James Buchanan Macaulay participated in Bible societies to assist Native peoples to learn of Christianity, but the appropriation of Native reserve lands, funds, and political authority met no opposition from the bar - and would not for more than a century.78 In 1840, the Law Society estimated that about 148 barristers were in active practice, about a quarter of them in Toronto. The profession was growing - there were 119 students as well - but hardly so fast as the population at large. The small size of the legal community was due, not just to the limits imposed by the system of personal apprenticeship to a practising lawyer, but also to the limited market for legal services.7^ Most of the farmers of Canada West simply got along without lawyers, doing what is today considered lawyers' work by themselves or with lay help. They sought advice on legal and other matters from those who had some education and who kept a shelf of books for reference. The sons of Anglican missionary Featherstone Osier became renowned doctors and lawyers, but their father, as the only educated man in his district in the 1830s, was 'general will drawer' to the community and its doctor and dentist as well. General stores sold books of basic forms for wills, rentals, sales, and mortgages. Land routinely changed hands on a deed of bargain and sale, a handshake agreement providing for monthly payments, and an eventual visit to the registry office to transfer title. Even as transactions became more sophisticated, farmers were apt to turn, not to a member of the Law Society, but to a non-lawyer notary, an unlicensed conveyancer with a book of forms and some practical experience of land transfers, or to one of the growing number of non-barrister attorneys.80

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Before 1840, there were only a handful of corporations in Canada, each one requiring an act of the legislature to create it. Most private enterprises were small, and public administrative structures were extremely small and simple, so anything resembling corporate counsel work was scarce. For barristers, courtroom practice remained basic, though only in the superior court did the professional monopoly exclude lay advocates. Barristers, however, did not confine themselves to the courts of Toronto. Robert Baldwin Sullivan, who briefly succeeded his uncle William Baldwin as treasurer of the Law Society, left a vivid account of a young barrister's rounds in 1828, eight years before he became treasurer. Setting off on a borrowed horse from the southwestern Ontario village of Vittoria, where he had recently established his practice, Sullivan headed for the assizes at London, trailing his coat for business all the way. He offered to take a case of wife-beating to the quarter sessions, declaring 'if we do not succeed with the corrupt bunch of magistrates I intend to bring a King's Bench action ... in the cause of outraged humanity/ even though there would be no fee. On the way back from the assizes (where he found little business), Sullivan stopped at Otter Creek, hoping to collect on a bill, 'but the young lawyer much to his astonishment found that the tavern bar was more profitable than the bar of the court - a very respected man of the name of Caswell requested that I would be pleased to give him my opinion and he gave me his note for 10 dollars which is sure/ Caswell wanted Sullivan to say whether he could legally build a mill if its water would damage a neighbour's property. Water-rights questions would raise important issues in nineteenth-century law, as belief in the need to facilitate economic development confronted Blackstone's eighteenth-century belief in sacred property rights; but Sullivan stood foursquare against his client's right to flood. After giving another opinion in a dispute over an unregistered land deed, Sullivan attended a political meeting and drew up its resolutions. They offered to pay me, but I would take nothing for public business. But I flatter myself that I shall be no loser by the occasion. Indeed one man called me out and gave me all the money he had (one dollar) to retain me in a case of his.' And so the barrister proceeded, making a name, making a reputation, and collecting scattered fees in ways unthinkable to an English barrister. 104

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Sullivan also expected to do more than lawyers' work. Noting the prevalence of fever in the communities he visited, he regretted having brought no medicines with him.81 Travel seems to have been basic to an ambitious barrister's practice. James Samson's letters from the 1820s refer to the constant absences of his principal, lawyer-politician Christopher Hagerman, who followed the assizes from town to town. In the 1840s, John Hillyard Cameron also followed the courts constantly. As he built a career roughly similar to Hagerman's or Sullivan's, he wrote to his wife that 'she must be as brave hearted as though she were a soldier's instead of a lawyer's wife, and not vex or disquiet herself at separations that must every now and then occur in the varied course of a professional life.' Hillyard Cameron, who had been called to the bar at the age of twenty-one in 1838, was one of the rising young public men of Canada West. The son of an army officer, he attended Upper Canada College and became a protege of Bishop Strachan and Attorney General Henry Boulton, to whom he was both law student and son-in-law. He had been around Osgoode Hall all his adult life, as one of the obstreperous student residents there during the 1830s, as the society's first solicitor, and then as law reporter between 1840 and 1846, when he put the reports on a sound professional and commercial footing for the first time. In 1843 he defended James Boulton in the society's first contested disbarment, and he later served on the commissions that revised and consolidated the statutes of Upper Canada and the United Canadas. Relentless travel helped Cameron build a province-wide reputation. Like Sullivan, he seized on any source of briefs. Among the highlanders of Glengarry, a Scots name was sufficient, Cameron claimed, describing one case heard at Cornwall in the 1840s, where the plaintiff, the defendant, both lawyers, the sheriff, the crier, the constable, and all the jurymen were McDonells, and the Christian name of six of the twelve jurors was Donald). Fortunately, Cameron was also a welcome name. 'If I had been the head of our ancient clan instead of an offshoot, I could not have been honoured with more introductions ... and what is quite as pleasant from a legal point of view, with more retainers and enclosed fees.'82 Prominence gained from courtroom success helped Cameron win a seat in Parliament in 1846. His politics were those of the oldLawyers for the Emerging Giant, 1822-1871

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fashioned Tory gentleman, and opponents derided what they called his flutepipe voice and dancing-master platform style, but he drew strong support from the Anglican establishment (at least until a scandal erupted over his unauthorized borrowings from diocesan funds), the Orange Order, and nostalgic, nativist Upper Canadian conservatism. His appointment as solicitor general for Canada West in 1846 made him a Law Society bencher for life, though he was not yet thirty.83 Less prominent lawyers travelled less than a star litigator like Hillyard Cameron. Charles Durand opened a practice in Hamilton in 1836, got himself appointed town clerk, and 'did the town court business, collecting and suing/ But he ranged a little more widely on county business, and even a local lawyer would frequently attend King's Bench sittings in Toronto. Durand described the December 1837 trip to Toronto which entangled him, almost fatally, in Mackenzie's rebellion as 'an ordinary business one, with a carpetbag of papers and briefs to the court, expecting to spend a week in Michaelmas Term with other lawyers.'^ By the 1840s the lawyers of Canada West remained an exclusive but not entirely closed society. Family connections were strong; almost a third of nineteenth-century lawyers were the sons of professional men. Strachans, Boultons, Cartwrights, Robinsons, and Baldwins were well represented at the mid-century bar, as were immigrant gentry families, particularly Anglo-Irish gentry like the highly educated Gwynnes and Blakes, who had often arrived with the idea of becoming gentleman farmers but found the law an attractive alternative to the daunting prospect of clearing bush on the colonial frontier. After 1837, the legislature authorized the Law Society to call university graduates to the bar after three years as law students (instead of five). Few English or Scottish graduates seized the opportunity, but Dublin's Trinity College provided a steady stream of law students to Canada West.^ Nevertheless, one did not require blue blood to join and rise at the Ontario bar. John Wilson was the son of a pioneer farm family when the Law Society accepted him as a student in 1830, and his humble origin soon compelled him to fight fellow law student Robert Lyon in a duel he would have refused had his gentlemanly standing been secure. Neither his lack of social status nor his killing of Lyon kept Wilson from developing a successful legal practice or 106

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becoming a bencher in 1849, a Queen's Counsel in 1856, and a high court judge in 1863. (Wilson is said to have burst into tears the first time he sat as judge in the Brockville court-house where he had faced trial for murder after the duel.) Wilson was an early example of a century-long line of sons of prosperous but plain farmers who passed through Osgoode Hall on their way to distinguished legal careers. Sons of blacksmiths and innkeepers were infrequent, but not absent, among the students taking the society's entrance exam in its early decades.86 From opposite ends of the political spectrum, John A. Macdonald and Charles Durand, who were called to the bar on the same day in 1836, demonstrated that for a bright youth without family wealth or reliable connections, the key was to attain a classical education from studious parents or a district schoolmaster, pass the entrance exam, then find a principal and manage to support oneself through five years of apprenticeship. This path, however, was not easy to follow. The publicly supported district grammar schools, the only ones which taught a classical curriculum, took only about 300 students when the provincial population approached 400,000. Once called, lawyers had ample opportunity to have their talents recognized. The Union period brought a surge of judicial and administrative reforms, virtually all of which increased lawyers' opportunities. In 1837 the court of King's Bench had been enlarged and the court of Chancery established. In 1849 a wholesale reform produced two superior courts of common law, called the court of Queen's Bench and the Court of Common Pleas, along with Chancery, the court of equity. Each court had three judges, and the nine together formed the Court of Error and Appeal, thereby finally ending the era in which the governor's Executive Council functioned as the province's appeal court. At the same time, the old district courts were reorganized into county courts, which soon gained the authority to apply equity principles but which still ranked below the superior courts. The imposing stone court-houses built throughout Canada West in this period became lasting monuments to its expanding judicial system. With the elaboration of the courts came expanded roles for lawyers. An act of 1836 guaranteed the right to professional legal counsel in all criminal cases. Five years later, barristers secured the Lawyers for the Emerging Giant, 1822-1871

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Lawyer, bencher, politician, and judge, John Wilson overcame both humble origins and a lethal duel with a fellow law student to build a successful law career in mid-nineteenthcentury Ontario.

* In 1849 a constituent wrote to advise Robert Baldwin that a cheap and safe method of settling disputes 'and the abolishing of the exclusive privileges of the members of Osgoode Hall' would do more good for the country than any hundred pieces of legislation. Baldwin's reply is unrecorded.

monopoly of appointment as district court judges. In 1855, the first county Crown attorneys were appointed, although private barristers continued to get many Crown briefs. Soon barristers also monopolized appointments as clerks of the peace and as notaries as well The growing importance of Crown prosecutors under the supervision of the attorney general, along with the trend to appointing only barristers as judges even in the lower courts, brought new professionalism and efficiency to a world where lay prosecutors and magistrates had often been both unskilled and partisan. As lay prosecutors were crowded out by the lawyers, the state power over prosecution became almost total.87 The year 1849 also saw extensive reforms of municipal government and the incorporation of towns and counties, each of which soon required its own town or county solicitor. Lawyers found much work in elected offices as well - in 1848 more than half of Canada West's members in Parliament were lawyers (just 17 per cent of Upper Canada's legislators for the period 1792-1841 had been lawyers). 'There was a sort of notion prevalent ... that there were too many lawyers in the house and Cabinet/ said Robert Baldwin in 1850. 'All he could say was that it was the people who sent them there.1 Baldwin thought lawyers' training fitted them to public business, and there were few others 'so independent in circumstances as to be able to devote their whole time to it/ The triumph of responsible government, just two years before, had done much to restore a sense of legitimacy to the state, setting the stage for further state action which was frequently delegated to lawyers.88* The new institutions of politics and public administration made work for lawyers, but their proliferation also provoked resentment. Frequently, this resentment was aimed at the lawyers who were becoming unavoidable intermediaries between the state and the citizens. Anti-lawyer sentiment, never absent, had one of its periodic flare-ups at mid-century. Leaders of the 'clear grit' radical tradition, which revived in Canada West in the 1850s, demanded the abolition of all 'undemocratic' privileges and monopolies, including those of lawyers. The radicals called for simple, clearly codified laws and cheap, accessible courts where lawyers would be unnecessary and justice available to all. In a new era that had just overthrown the political power of entrenched privilege, such ideas resonated widely. For the first time since Richard Cartwright's anti-lawyer 108

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tirade of 1794, the legislature saw serious efforts to end the professional monopoly and strip the Law Society of its functions. But with lawyers dominating the legislature, none of these proposals could satisfy its proponents. '"Yes," echo the lawyers in the house,"' a radical newspaper said bitterly, '"we must have law reform," and forthwith a new court is created and two new judges added.'^9 Relations between barristers and attorneys had remained vexed ever since the Law Society ceded control of attorneys in 1822. Attorneys had to clerk under articles for five years, but they faced no exams on either entry or completion. As one angry barrister put it, they 'may know nothing whatever of professional duties, may in fact be grossly illiterate/ By 1840, 40 per cent of legal practitioners were attorneys who had not qualified as barristers. Barristers sneered at them as land sharks/ but barrister-attorneys felt the sting of competition from the numerous and unregulated attorneys. Attorneys even competed for advocacy work. In 1847, despite the Law Society's intervention, the chief justice affirmed the right of attorneys to practise in district courts if the local judge saw fit to hear them.90 In 1857, however, the legislature restored to the Law Society the control over attorneys it had taken away thirty-five years before. Apparently persuaded that unregulated attorneys were a threat to the public, the legislature empowered the Law Society to examine attorneys and prescribe term-keeping requirements. The society promptly added a rigorous attorneys' exam to its barristers' examinations, and it further raised the standards required of attorneys in 1868, 1872, and 1876. These steps largely eliminated the educational gap between barristers and attorneys and greatly reduced the potential for law clerks to become attorneys without training or testing. Since there was much less incentive for students to become attorneys without becoming barristers, fusion of the two professions proceeded rapidly. Since the exams were given separately, however, many students chose to put a year between them, so dates of call (as barrister) and admission (as attorney) were rarely simultaneous, and a few students still entered one branch and not the other. Recovering authority over attorneys permitted the society to re impose some control over growth in the numbers of new lawyers. 'At this rate every man, woman, and child will soon become their Lawyers for the Emerging Giant, 1822-1871

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own lawyer.' Oliver Mowat had complained as early as 1840, and by 1860 lawyers frequently declared that the profession was 'flooded.' W i t h attorneys back under Law Society control, more rigorous examinations restrained the growth without provoking much com­ plaint about abuse of the monopoly power. Otherwise, readmitting attorneys to the society seems to have been little more than an administrative problem for the Law Society. The agonized fear of pettifoggery and dishonour that had haunted the barristers of the 1820s struck no echoes i n the 1850s. I n the interim the lawyers' self-image had been transformed. I n the 1820s, courtroom litigation had been the essential work of barristers and the font of the bar's honour and pride, while the more routine and commercial work the same men might under­ take as attorneys remained slightly tainted. About the time that the court of Chancery introduced the new terms 'counsel' and 'solicitor' (as its equivalents of the common law barrister and attorney), however, relations between the two branches of the profession changed rapidly. Equity had originally been introduced into the English judicial system i n pursuit of an ideal of natural justice that sometimes seemed unattainable i n the strict requirements of the common law. (The benchers provided a nice comparison of common and equity law i n 1847 when the Crown demanded that the society pay for heating the judges' new chambers i n Osgoode H a l l . Convocation declared the claim was wrong i n law because the contract did not stipulate it, but also i n equity, because it was unreasonable and unfair.) Its openness to consideration of nat­ ural justice gave Chancery practice a certain intellectual distinc­ tion, and i n Canada West as i n England, its subtleties attracted some of the best legal minds. Chancery had long since acquired its own elaborate procedures, and cases tended to be arcane and slow and expensive. 'That's the business I like,' wrote Skeffington Connor i n an 1845 letter that reads like a source for Dickens's 1853 novel Bleak House: 'the pace slow and dignified, the pay handsome, and a gentlemanly understanding among practitioners to make it handsomer.' But Chancery was also a commercial court, and its introduction into Ontario, after long delay, may have reflected the increased size and complexity of commercial enterprise i n the colony. Chancery's 91

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jurisdiction included property mortgages, commercial contracts, business partnerships, and trusts. The meat of a Chancery practice, therefore, was often not litigation but office law reminiscent of attorneys' work - except that the clients were often businesses rather than private individuals, the issues were more complex, and the pay was better. I n the 1840s and 1850s, the attorney was reborn as the solicitor. (The Chancery legislation of 1837 had made all Upper Canadian attorneys solicitors of Chancery, and all barristers became Chancery counsel.) Putting aside the unsavoury, pettifogging asso­ ciations of the old name of attorney, the solicitor went rapidly to the top of the profession. W i t h the title of solicitor went new duties and new status for the lawyer who rarely went to court, who han­ dled elaborate contracts involving large amounts of money, and who became the legal adviser to mostly commercial clients. This emergence of the ancestor of the modern corporate lawyer went hand i n glove with the blossoming of the new title of solicitor. I n 1881, when a fusion of law and equity began i n the superior court of Ontario, 'Attorney' as a formal title would be laid to rest (along with 'counsel'). Henceforth Ontario lawyers would qualify as bar­ risters and solicitors. The vast majority of practitioners qualified as both, and the clear status distinction between the two branches of the profession was fading. 94

Legal historians have long identified a shift from the propertybased law of the eighteenth century, suited to the needs of preindustrial landed gentries, to the contract-based law of the nineteenth century, dominated by the requirements of commercial capitalism. The arrival of a Chancery court and the emergence of the solicitor were symptoms more than causes of the growing impor­ tance of commercial law i n Ontario. Still, the rapid rise of the com­ mercial solicitor, and the ease with which the pettifogging attorney was jettisoned from the consciousness of the profession i n the Union period, suggest that the new climate of commerce and eco­ nomic development was already transforming the law and the role of the lawyer. The archetype of the lawyer-statesman was no longer John Beverley Robinson but John A . Macdonald, the skilled broker rather than the patrician born to authority. A n d the typical lawyer was as likely to be a railway solicitor as a common law advocate at the Queen's Bench bar. Lawyers for the Emerging Giant,

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CEREMONIES OF PLACE

Robert Baldwin, the sickly, withdrawn, and prematurely aged treasurer of the 1850s. For this early tintype, Baldwin wears the medal of a Companion of the Bath, an honour bestowed on him in 1854.

In 1848, when Robert Baldwin became attorney general and de facto co-premier of the United Canadas with the historic mandate of implementing the responsible government he and his father had begun seeking in the 1820s, he resigned as Law Society treasurer after barely six months in that office. He had discovered that lawyer-politicians could no longer combine active politics and Law Society business the way many of his predecessors had. In late 1850, however, with the legislature newly (and briefly) back in Toronto, Baldwin accepted re-election as treasurer while still attorney general. Once again he spent only six months in the dual role, but this time it was politics he abandoned, resigning as attorney general in June 1851 and losing his legislative seat soon after. Freed from politics, Baldwin remained treasurer until his death in 1858. Thereafter, Edward Blake would be the lone exception to the unwritten rule that lawyers who sought political honours and the treasurership of the Law Society would do so at different stages of their careers.^ During his years as treasurer, Robert Baldwin showed less of the passionate energy for society business than he had shown as his father's strong right arm in the 1830s. Though he remained devoted to the society, Baldwin was often sickly and withdrawn during the 1850s. As treasurer he seems to have been 'father of the bar' (though he was only fifty-four when he died) rather than a really active leader. Even more ceremonial was the treasurership of his successor, Sir James Buchanan Macaulay, the retired chief justice of the Court of Common Pleas who had first become a bencher in 1825. Asked to complete Baldwin's term early in 1859, Macaulay was elected in his own right in November of that year - and died the same day.96 In their increasingly titular leadership, Baldwin and Macaulay could rely on a strong corps of benchers. Convocation appointed nine new benchers in 1849, fifteen more when Baldwin became treasurer, and more almost every year thereafter. Increasingly, the benchers were men of legal rather than political prominence. Men like Henry Corry Rowley Beecher of London, 'John Hawkins Hagerty, John Ogilvie Hatt of Hamilton, and David Breakenridge Read had distinguished legal and judicial careers, but they tended to be partners or associates of prominent politicians, rather than

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holding office themselves. John A. Macdonald became a bencher in 1849, but he was rarely seen around Osgoode Hall. The examination of students remained the heart of the society's work. James Cawdell, the first secretary and librarian, had died in 1842, and the society honoured his memory by paying for his tombstone. His successor, Hugh Nelson Gwynne, who abandoned his law studies to take the job, was hired not only as secretary and librarian, but also as examiner - over the objections of William Warren Baldwin, who still believed in the benchers' personal obligation to test the next generation on the practices and principles of the bar.^7 Hugh Nelson Gwynne remained at Osgoode Hall as secretary, librarian, and examiner for thirty years. Until 1872, when he died in his bachelor quarters in the east wing, he was a lion in the way of applicants for admission to the Society.' Wearing an academic gown and wig and tossing off Shakespearean references and Latin tags in a high treble voice, he terrified a generation of students, genially 'plucking' - that is, failing - any who deviated even momentarily from his Olympian standards of knowledge and deportment. 'A pretty good pluck today, Molloy,' he is recalled as saying to the Osgoode steward when a large crowd of applicants appeared, 'a pretty big pluck, there are lots of them.'98 Dr Baldwin might have come to approve of the examiner, for Gwynne matched the old treasurer's intimidating fierceness, his rigorous interrogations, and his devotion to professional self-education rooted in a firm command of classical learning. Throughout Gwynne's era, the Law Society preserved the system Dr Baldwin had put into place in the 1820s and early 1830s. The society continued to rely on examinations, based on a demanding syllabus of mostly private studies, for both entry to law studies and admission to practice." A suggestion of how easily well-educated students met the Law Society's requirements is found in a petition to convocation from Richard Lee Holland in 1842. Holland recounted the formidable course of legal studies he had undertaken while under articles. He had mastered Chitty, Blackstone, Stephens, and Selwyn, made particular studies of contract, real property, and pleading, and read widely in English and classical literature. Holland, a graduate of

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Hugh Nelson Gwynne, Law Society secretary, librarian, and examiner from 1841 to 187L Three decades of law students found him a formidable guardian of the gentlemanly standards of the legal profession.

Trinity College, Dublin, had not found these studies particularly daunting. He had completed them despite being ill for all but ten months of his years as a law student. Since he demonstrated his competence by passing the society's exams without much difficulty, the benchers accepted his petition, waived the usual time-service requirements, and called him to the bar.100 Larrett Smith, an Upper Canada College graduate who began law studies in 1839, was no more daunted than Holland, and he breezed through the entrance exam. Once accepted as a studentat-law, he could afford to buy a place in the law office of Attorney General William Henry Draper, where Draper took time to quiz him on his legal reading. Smith worked a six-day week and occasionally noted the texts he was studying, but in proper gentlemanly fashion he wore his learning lightly. He figures in his own diary mostly as a sociable young gentleman about town and seems to have been quite unintimidated by the tests required by the Law Society.101 Other prospective lawyers did not have a lifetime of gentlemanly study to prepare them for the Law Society curriculum. William Elliott, a Middlesex County farmer's son, began tutoring himself in Latin and geometry for the society's entrance exam while working as an attorney's clerk in London in the late 1840s. Once admitted as a student barrister, he had to find time in a six-day work week for 'reading carefully, taking notes, and looking them over at intervals,' as he struggled to master Blackstone, Stephens on Pleading, Chitty on Contracts, and the rest of the shelf of legal standards. Like most law students, probably, Elliott got little assistance from his principal, who kept him busy copying documents, filing pleas, and handling routine office business. He could not afford to accept an offer to article with William Hume Blake, and he even bent the rules by working as a school superintendent to support himself. Students like Elliott found the Law Society's exams much more intimidating than did graduates of Dublin's Trinity College or even Upper Canada College, and by the 1850s, examiner Gwynne was 'plucking' several of them every term.102 The Law Society could no longer run its education program without competitors or comparisons. During the 1840s, King's, Queen's, and Victoria colleges (in Toronto, Kingston, and Cobourg, respectively) had launched the university era in Ontario. 114

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The new colleges were interested in teaching law along with medicine, theology, and arts. Formal academic lectures in law began in Ontario in 1843, when King's College (which shared the old parliament building with the Law Society until 1846) appointed William Hume Blake, another Irish Trinity graduate who learned his law under the Law Society regime, as its professor of law.103 In 1846, just two years after King's granted Ontario's first university degrees, the Law Society organized a new entry classification, the University Class, for aspiring lawyers with university degrees. In the eyes of the society, however, a degree entailed added responsibility rather than exemptions. After examiner Gwynne failed one University Class applicant who had apparently imagined the Law Society's entrance exam was a mere formality for degree holders, convocation reiterated that candidates for the University Class were indeed 'subject to actual examination and will be expected to shew themselves well versed in the various subjects.'104 Soon after Blake gave up lecturing in 1847, King's cancelled its law courses. Scholarly law students responded by founding the Osgoode Club, a voluntary gathering (of law students and supportive barristers) of a kind familiar since the Juvenile Advocates' Society of the 1820s. Apart from its program of essays and debates, the Osgoode Club lobbied to have the society revive a formal lecture program to replace the King's College courses. To that end, the club attacked the long-established system of self-education. Unlike students of theology and medicine, it declared, law students were 'for the most part left to grope their way through the intricate labyrinth of legal science almost without a clue to guide their steps.' Office apprenticeship 'appears better adapted to make ... a kind of superior copying machine or an adept in chicane, or at best a mere sciolist, than a scientific lawyer.' The club asked convocation to create an improved version of the Trinity Classes that had been introduced in 1832 at Robert Baldwin's urging (except, they hastened to add, for the residence aspect - evidently the wounds from the 1836 debacle remained tender). What they wanted, in fact, was very much like a university program, in which fee-paying students were taught by hired lecturers, wrote essays and exams, and competed for prizes.10^ The thinking behind the Osgoode Club proposal was far from being generally accepted. Most law students could no more expect Lawyers for the Emerging Giant, 1822-1871

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to join such a program than to enrol at King's College, for both catered to a social and educational elite and required years of residence in Toronto. Despite the club's sneers, many lawyers also rejected the copying-machine image and continued to value both private study and office apprenticeship. They believed not only that, as bencher Adam Wilson put it, 'practice can only be learned by practise/ but that gentlemen had to take responsibility for their own education. They would have retorted to the Osgoode Club that a student who allowed himself to become a mere copying machine was not fit to become a lawyer and would be weeded out by Law Society exams that tested competence in, among other things, Blackstone's Commentaries, contracts, mercantile law, real property, equity jurisprudence, pleading, evidence, bills, the statutes of Upper Canada, and the practice of the courts.106 Nevertheless, convocation struck a committee on education, and in 1854 the Law Society established its first lectures in law. They were given at Osgoode Hall, one lecture each morning for the twelve days of a term. Since every student lawyer had to come to Toronto for four two-week terms (over five years) to observe the superior courts in session, there was little additional difficulty in requiring their attendance at daily lectures in term. The lectures were a minor concession to the advocates of schoolroom legal education. Ability to pass the examinations, rather than classroom hours, remained the essential criterion of entry to the profession.107 In 1861, the society gave its lecturers, now salaried and titled as 'Readers' (and including many leading jurists), authority to supplement the compulsory term lectures with out-of-term lectures by which students could qualify to have their term of apprenticeship reduced. Convocation also imposed the first intermediateyear exams (i.e., between the entrance and call exams) and offered cash scholarships for the best students. The society rule initiating these changes declared that what was being created was a 'Law School.'108 An occasional two-week visit to observe the courts in term at Toronto had been part of law training since 1828. As long as term keeping remained fundamental to legal studies, the addition of lectures during the brief court term was no great burden. In the 1860s, however, the lecture program was undermined when the Law Society began to abandon the term keeping requirement. By then 116

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most forms of procedure could be observed in the increasingly elaborate county courts and from the expanded superior court assizes. Toronto's courts no longer offered law students much that was unique, and complaints about the inconvenience and expense of term keeping in Toronto began to be heard on behalf of students 'from the country.' Without term keeping, compulsory lectures alone could hardly justify drawing students to Osgoode Hall, and the supplementary lectures offered between terms had long been denounced as an unfair advantage for Toronto students. In 1868, during the elimination of term keeping, convocation voted to abolish both its compulsory lectures and its supplementary programs. The first Taw School' came to an end.10^ Even when the 1860s lecture programs were most extensive, the Law Society had seen them as no more than a supplement to apprenticeship and examination. The benchers had continued to strengthen their program of examinations for both barristers and attorneys. In giving up its term>keeping and lecture requirements, the society could claim that it continued to maintain professional standards by the series of examinations it administered to every prospective lawyer, from the university graduate in Toronto to the self-educated student from a small town. This system permitted much more localized study than Osgoode Hall or any university could offer, for it still enabled men to study law anywhere there were lawyers. Law studies for the scholastically minded, meanwhile, reverted to the voluntary Osgoode Club and to university law programs, notably the bachelor and doctorate programs in civil law established at Trinity College in Toronto. The treasurer and benchers praised and supported these as worthy supplements, but the college courses earned their students no credit towards the professional requirements. More university graduates were becoming lawyers, but their legal training was almost unchanged. A century and a half later, when 'taking courses' has long been accepted as fundamental to all education, it has become difficult to take seriously the Law Society's nineteenth-century program of selfeducation by apprenticeship and private study. But the curriculum that Hugh Gwynne defended was rigorous, sophisticated, and perfectly feasible for the group from which most potential law students came, and the lawyers had little inclination to abandon it. In any Lawyers for the Emerging Giant, 1822-1871

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Newly admitted law student Charles Hoiman, photographed in 1872, holds a certificate of admission much like the

case, the Law Society held another trump card in education. No university in Ontario could match the library of Osgoode Hall, as a group of students-at-law who were also taking law classes at the university confirmed in 1852. 'While the labourer and mechanic who toil at manual labour during the day enjoy free access to their different public libraries in the evening/ they wrote mournfully, 'the student at laws in this city with an excellent library ... is debarred/ Convocation agreed to extend library hours into the evening - and introduced library fees - but, as always, access remained restricted to Law Society members.1^ The Law Society, confident in its methods, still controlled the forms of legal education as absolutely as it controlled call to the bar. The Law Society had established for the next century that an academic law degree would confer no more tangible benefits on the aspiring Ontario lawyer than any other university degree. Barristerat-law, a title conferred solely by the Law Society, remained the only credential that gave entry to the profession.

one issued to Patrick McGregor in 1834 (p. 90). As there was no law school in 1872, Holman had to pass Law Society exams, but all his studying would have been done privately.

The Union period saw the florescence of legal and Law Society ceremonial. Throughout Canada West, lawyers had established the traditional rites and ceremonies of the law with an enthusiasm that matched that of Osgoode Hall. Goderich, the county town of Huron, which had barely been founded when Osgoode Hall opened its doors, had about twenty lawyers by the end of the 1860s, including several who would earn QCs, several who would write substantial legal texts, and (after 1871) a bencher, J.S. Sinclair. There, as elsewhere, the tradition that the lawyers would host a dinner for the judge arriving to hold the assize seems to have been as old as the assize circuit itself. By the 1860s it was also understood in Goderich that a new lawyer had to 'wet his robe' by entertaining the local bar in the Huron Hotel. The bar of Huron elected a corresponding secretary and made public statements on matters of interest to the bar. As yet, however, no official ties linked local bar associations and the Law Society, and regional representation in convocation was a purely informal arrangement.1^ The society had developed rituals of its own. There had been no recorded ceremonies at the opening of Osgoode Hall in 1832. Other than Justice Powell's donation of his Inns of Court diploma and secretary CawdelPs 1835 presentation of some 'manuscripts of 118

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the great Fearne' (an admired eighteenth-century authority on the law of contingent remainders), the society in the 1830s was as free of ostentation as the stout Regency facade of its building. But Henry Bowyer Lane's new building of 1846 welcomed back a Law Society with a new interest in ceremony and tradition. Its first manifestation came when a group of lawyers privately commissioned George Theodore Berthon to paint a full-length portrait of Chief Justice John Beverley Robinson in his robes 'for the purpose of being presented to the Law Society to be placed in Osgoode Hall/ The portrait, Berthon's masterpiece, was presented just as the society reoccupied its building in June 1846, and it has occupied a place of honour in the hall for a century and a half.112 Robinson's portrait was soon joined by that of his colleague and rival William Warren Baldwin. The old treasurer had died early in 1844, and in one of its first formal resolutions of condolence, the society paid tribute to 'one of its greatest benefactors ... who had with so steady, so devoted, and so affectionate an earnestness lent all his energies to advance the learning and elevate the character of the profession of which he was a member/ Only after Robinson's portrait was hanging, however, did the society commission Theophile Hamel (who was as much the favoured reform artist as Berthon was the Tory one) to paint Dr Baldwin, 'the father of the profession/ for the Convocation Room. Thereafter, it gradually became a settled tradition to commission portraits of chief justices and treasurers.113 Between the two portrait hangings, the society held a special convocation out of term to induct its first honorary member, the newly arrived governor general, the Earl of Elgin. Thereafter, ceremonial occasions at Osgoode Hall became more frequent and more various. In 1850 the society accepted donation of a wampum belt, not in recognition of the significance of wampum in Native law and diplomacy, but merely as 'an interesting relic of the olden times.' Its minutes also began to record meetings and dinners in honour of retiring judges, prominent members, and visiting luminaries. In 1850, when the Union parliament met in Toronto, the Toronto bar hosted Canada East's lawyer-politicians to a dinner in the Osgoode library. Such events were organized as meetings of 'the bar' as a whole, but the treasurer or a senior bencher would be elected to chair the meeting, and its proceedings would be reportLawyers for the Emerging Giant, 1822-1871

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William Laird Palmer, who practised in Strathroy, was admitted as a solicitor but never called as a barrister. This is the earliest known photograph (c. I860) of an Ontario lawyer of no particular fame or prominence.

ed in convocation's minutes* In 1854, Robert Baldwin briefly stepped down from one such meeting so it could pass a resolution congratulating him on being made a Companion of the Bath, The Law Society was becoming the bar's ceremonial voice as well as its governing authority.114 There were limits, however, to the ambitions of the society to speak for the bar as a whole. In 1838, Attorney General Christopher Hagerman had introduced the title 'Queen's Counsel' to Upper Canada when he had Lieutenant-Governor Bond Head grant the honour to Allan MacNab, John Cartwright, and Henry Sherwood. The practice continued in the United Canadas, and the QC quickly became a familiar part of the Canadian legal scene. The QC, purely honorific in Canada, was from the first bestowed by the attorney general (and the party in power), not by the profession itself. It took only a few years before lawyers began to complain that 'the silk gown' had lost its dignity because of the appointment of undistinguished lawyers with political connections. But the QC had always been a political appointment; it was the bar that was failing to impose conditions upon its acceptance. In England, the Inns of Court had also confronted 'the multitudinous and indiscriminate creation of Queen's Counsel' as a tool of political patronage in the early 1850s. They reacted with unusual speed - perhaps because English QCs became benchers of their Inns, and a proliferation of QCs made the Inns' governing bodies both unwieldy and subject to packing by the government. Within about a decade, all the Inns introduced new requirements obliging English QCs never to appear in court without a junior and never to draw up legal documents of any kind. In England, therefore, the legal profession made appointment as QC a responsibility as well as an honour, one that only a rather small number of successful barristers could afford to accept.11^ The Law Society of Upper Canada may have considered putting legal honours under the profession's control. An undated draft rule of convocation, drawn up by Robert Baldwin sometime after the QC was introduced, proposed the creation of the degrees of counsel and serjeant as meritorious ranks above that of barrister. This proposal for legal honours which would be conferred by the Law Society, however, was not formally considered by convocation, and 120

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no steps were taken to impose conditions upon Queen's Counsels. Close to sixty Canada West lawyers received the appointment before Confederation. Robert Baldwin was among the first, in 1842, and during his treasurership, benchers who held QCs came to dominate convocation. Despite the society's efforts to confirm itself as the voice of the bar, it did not contest the political control of Queen's Counsel appointments.116 The great ceremonial achievement of the 1850s was the reconstruction of Osgoode Hall's central block. In 1852 the Law Society sought to reopen its 1846 covenant with the government, complaining that the cost of Henry Bowyer Lane's renovation of the hall had far exceeded the Crown's fixed contribution. By then, fortuitously, the courts had been much expanded and were in need of additional space at Osgoode Hall. Through the good offices of Attorney General John A. Macdonald, the discussions went smoothly. In 1855 the government agreed to continue its levy upon court fees, both to compensate the Law Society for its original investment and to pay for new work at Osgoode Hall.117 With this virtually open-ended funding (the £10,000 pledged by the Crown in 1855 became £50,000 or $200,000, by 1859) in hand, the Law Society happily burned the last of the debentures it had been issuing at intervals since 1833. Then it retained architects Cumberland and Storm to replace the existing centre wing, which was essentially Dr Baldwin's residence block of 1834 with Lane's embellishments of 1846. The result was a triumph. Architectural historians Anthony Adamson and Marion MacRae imagined the Architects Frederick Cumberland and W.S. Storm's reconstruction of Osgoode Hall, opened in I860.

euphoria of the benchers as 'before their dazzled eyes a portion of the garden front of Versailles seemed to be rising between the East and West Wings as the new facade of Osgoode Hall.' The hall at Lawyers for the Emerging Giant, 1822-1871

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W.S.- Storm's spectacular architectural rendering captures the sweep of the Great Library that Storm and Cumberland created for Osgoode Hall.

last acquired a distinguished central facade. The new ceremonial entrance led into a deep, two-storey rotunda of white Caen stone, around which the courts were arranged. Above the entrance, on the full length of the second floor, rode the new library, which Adamson and MacRae consider the finest formal room of nineteenth-century Ontario (though they admit that mere utility as a library had not been allowed to interfere with its loftiness and splendour).118 'It now remains/ said the Globe in February 1860, when the courts took possession of their new quarters, 'for the gentlemen of the long robe themselves to give to Osgoode Hall a more than architectural fame/ Even the Globe, the plain farmer's friend and no great admirer of lawyers, found the new building so magnificent that it presumed the society would demolish the outmoded east and west wings of humble whitewashed brick. The institutional significance of the new construction, however, was how completely it redefined Osgoode Hall. In 1834 Osgoode Hall had been entirely the Law Society's building, built and paid for by the profession and housing its offices and library, plus student rooms and barristers' chambers. In 1860, residences and chambers were gone forever, and the Law Society occupied only a small part of a building mostly paid for by the Crown. Until the society opened a full-fledged law school there three decades later, Osgoode Hall would be above all a court-house, defined and dominated by the courts that had been moving in since 1846.11^ The formal opening of the new hall took place on a wet Saturday evening, 8 September 1860, when the treasurer welcomed the young Prince of Wales, the future King Edward VII, to the new Osgoode Hall. The prince arrived to find the building's exterior outlined with illuminated gas jets. The treasurer met him at the new entrance and ushered him to a crowded reception for the bench and bar in the new rotunda. After addresses of welcome and anthems from a military band, the royal party moved upstairs to the library, where the prince and two of his party were made members of the Law Society. Then dancing began. The prince partnered the treasurer's wife and the daughters of several leaders of the bar. The 122

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Globe was amused by the sight of the lawyers dancing in their long gowns ('did the ladies ask them to dance?') and it noted how unusual was the presence of 'female frippery' in the overwhelmingly male environment of Osgoode Hall. A thousand people danced until the prince departed and the coming of the Lord's Day forced Poppenberg's band to cease playing.120 Presiding over the Law Society during these ceremonies was John Hillyard Cameron, who had been elected treasurer on Macaulay's sudden death in 1859. Cameron had also become grand master of the Orange Order in 1859. Several stages of the royal visit had already been thrown into crisis by the efforts of Orangemen to greet the Prince of Wales despite his refusal to acknowledge their order, which the imperial government considered dangerously sectarian. At Osgoode Hall, however, no mention was made of the treasurer's other role, and Cameron carried off the welcoming ceremony with his usual aplomb. His deep-dyed Toryism had already been marginalized by the more pragmatic coalitions of Macdonald and Cartier, and a British stock-exchange crash in 1857 had wiped out the fortune he had built from law practice and speculative investment and left him deep in debt for the rest of his life. But he was no paternal, semi-retired treasurer. Barely forty-two when first elected, Cameron would hold the office for an unprecedented seventeen consecutive years. Respected as a practitioner and law lecturer, he would be an active and visible leader of the bar throughout his term of office.

Railways had come to Canada West in the 1850s, and train travel extended lawyers' opportunities greatly. The leading litigators who had once followed the assizes by stagecoach and lake schooner simply extended their reach. Within a few years, the telegraph and press coverage of sensational murders would begin to bring province-wide fame to criminal defence lawyers. Even the indefatigable Charles Durand, having survived a death sentence commuted to banishment (and later a disbarring), rebuilt his Toronto-based practice of the 1850s mostly by riding the new railways out to the county courts, where he found it paid to tell rural juries he too had been raised on a farm.121 Railways transformed far more than lawyers' travel schedules. Lawyers for the Emerging Giant, 1822-1871

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John Hillyard Cameron, Law Society treasurer, 1859-76. The second-longestserving treasurer in Law Society history, Cameron sought consciously to be the leader of the Ontario bar and a role model for law students.

RAILWAYS AND SOLICITORS

They were the new business reality of mid-nineteenth-century Ontario in the midst of its explosive growth, Canada West had had no railways in 1849, when the Guarantee Act put in place the statutory framework under which railway projects could be organized and financed. By 1860 the province had 3000 km of track capitalized at $100 million. The new railways employed up to 30,000 construction labourers and 5000 permanent staff, and they already carried a million passengers a year. They wielded enormous power over the provincial economy, over the communities they promised to serve, and over the governments which encouraged them. In a society that had been almost without incorporated companies until the 1840s, railways represented the leading edge of a huge and fast-travelling wave of industrial and financial expansion.122 That wave carried the lawyers with it. 'All my politics are railways/ said lawyer-politician Sir Allan MacNab, and he might have said, 'All my legal practice, too.' Suddenly it was hard to imagine being a prominent lawyer without being a railway lawyer. There were still many competing railway companies, often small, fragile, short of capital and connections, and not yet linked irrevocably to an exclusive handful of law firms. Almost any lawyer established in local business, municipal government, and provincial politics could hope to entice some of the work of the local railway venture as the foundation of a corporate practice. Railways and other corporations with ongoing needs for legal services helped bring the multipartner law firm into being. Associations among lawyers were as old as the colony, but in the era dominated by the common law barrister, there had been few permanent clients and few large files demanding constant attention. Partnerships, once personal more than institutional, were beginning to be changed by the rise of a corporate clientele. When John W. Crawford and John Hawkins Hagerty formed a partnership in 1846, they (particularly Hagerty) seemed to be courtroom litigators of a traditional kind, though in equity rather than common law. Soon, however, they and their associates were devoting much of their time to corporate solicitorships for clients that included the Grand Trunk Railway, the Bank of Montreal, and the Cawthra family's financial empire. Enduring clients needed enduring law firms, and the Crawford, Hagerty partnership gave rise to a long124

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lived, multipartner corporate law firm, its successor firm still active a century and a half later as Eraser and Beatty.123 A new ethic of legal practice was emerging, one that had moved far from the legal community's traditional distrust of attorneys' work. The old-time barrister cherished his independence of his clients, tried to be disdainful of money matters, and focused his abilities on common law litigation. By the 1860s, however, the client rather than the courtroom was becoming the focus of many law firms' attention. Even in a rural centre like Goderich, 'money to invest' had become an important element on a successful lawyer's business card. And the solicitors who replaced the attorneys were not marginal figures viewed sceptically by the profession. They were among its wealthy, powerful, and prestigious practitioners, and they were well represented in the convocations of the Law Society. In the new era of commercial and industrial capitalism, with tantalizing possibilities of economic growth and personal wealth, lawyers who interpreted or secured legislation and drafted contracts and fiscal arrangements of growing complexity were gradually becoming vital corporate advisers, officers, and investors. In the laissez-faire environment of Canada West of the railway era, many participants felt that no harm was done if politicians and other public figures enriched themselves while contributing to economic progress. Lawyers were vigorous participants in the speculation and political intrigue of the railway boom and the general economic expansion. In 1855 a disgusted Torontonian who had taken a battering in a dispute with the Grand Trunk Railway declared that every lawyer in Toronto was in railway promoter Casimir Gzowski's pocket.12"* While this new kind of legal practice was taking shape, the Law Society was strikingly quiescent on ethical matters. The whole new style of business law in the 'golden age of contract' was outstripping the ethical canon developed in the era of the gentleman barrister, and the Law Society was not prompt in the search for a new one. Nearly all the discipline cases the benchers voted on during the 1850s were brought to them after judges of Queen's Bench suspended attorneys from practice. In 1850, when the scapegrace Charles Durand was being investigated for his criticisms of a judge, the benchers decided that an attorney's suspension by the courts did not necessarily require his suspension as a barrister. Rather, convoLawyers for the Emerging Giant, 1822-1871

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cation would consider each case on its merits. In 1859, however, soon after attorneys were restored to Law Society supervision, a new rule made such suspension automatic, and the number of discipline hearings dropped. Few of the cases judged by convocation seem to have engaged substantial issues of professional conduct or legal ethics. The possibility that new forms of legal work might require new canons of practice was not being mooted in the profession's governing body.12^ The Law Society itself was not safe from the increasingly powerful corporate loyalties of its benchers. Since the 1820s, the society had invested its capital, when it had any, in shares of the Bank of Upper Canada. By the 1860s, however, the bank was wilting under vigorous competition from the Bank of Montreal, the Bank of Toronto, and other lively new competitors. Several benchers who were also Bank of Upper Canada directors (long-time bencher Clarke Gamble was the bank's solicitor) had been liquidating their personal holdings of bank shares as it declined, but none suggested that the Law Society should do the same. Accordingly, when the bank failed in 1866, the society's nearly $12,000 investment was redeemed at only sixty cents on the dollar. Convocation's only response to the disaster was a squabble over which bencher's bank client would now benefit from the society's business. Supporters of the Commercial Bank eventually triumphed over partisans of the Bank of Montreal, the Bank of British North America, and the Bank of Toronto. Even for the benchers, it seemed, the good of the Law Society had to compete with the good of their corporate clients.12^ Treasurer Hillyard Cameron was comfortable in the new era. He was more a barrister of a traditional kind than one of the new corporate lawyers. In 1868, while grand master of the Orange Lodge, he defended, as a matter of principle and duty, the reviled Fenian who was accused of the assassination of D'Arcy McGee. In an era when business law dominated many law practices, Cameron still spoke of honour, learning, and the barrister's timeless vocation. He personified traditions of the Upper Canadian bar, although his institutional clients had included a railway, the Church of England, and the Law Society itself. Despite the active presence of liberal politicians such as Oliver Mowat, convocation was notably more 126

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conservative than it had been in the days of the Baldwin-Robinson dualism, and it re-elected Cameron as treasurer year after year. Cameron was a law professor at Toronto's Trinity College from 1852 and its chancellor from 1863, and he regarded legal education as the key work of his time as treasurer. He believed his personal example to young scholars was his most important contribution to the law. 'How anxious I have been/ he said in 1871, 'that our young men who have become students of the laws should have every opportunity of acquiring the highest legal education and of adopting the best means of fitting themselves for practice at the bar/ In 1872 Cameron seems to have been the driving force behind a new Law Society lecture program to replace the ones cancelled in 1868. This program was voluntary, however, and despite the incentive of reduced articling requirements for those who enrolled, it was not well attended. Convocation abolished it in 1876, the year Cameron died. Despite Hillyard Cameron's personal commitment both to legal education and to Trinity College, the universities still had no formal role to play in the education or accreditation of lawyers. Cameron and his fellow benchers were not in the least ashamed of this. They still saw private study and apprenticeship as the basis of professional education, and they still considered the Law Society's examinations as the crucial element of its obligations to legal education. The classroom remained only a useful supplement for unusually scholarly students, one which leading lawyers were glad to assist but to which they did not concede a central role. The benchers were proud of the Law Society's educational accomplishments. Indeed, they chose to showcase them in a petition they made to the Inns of Court in 1861. At its foundation, the Law Society had been compelled by law to accept as a member any qualified English, Scottish, Irish, or colonial barrister who wished to join. The Law Society Act of 1822 had introduced a reciprocity principle, but in ambiguous fashion. It was not clear from the phrasing of the act (or indeed from the legislative debate on it) whether the admission to practice of British barristers, or only those from elsewhere in British North America, was being made contingent upon those jurisdictions' reciprocal recognition of the Law Society's own calls to the bar. After 1822 the Law Society rigorously required reciprocity from other British North Lawyers for the Emerging Giant, 1822-1871

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American colonies, but it flinched from a confrontation with the Inns of Court. For decades after 1822, the benchers permitted all British barristers to join the society and to practise in Ontario as if similar privileges were available to Ontario's barristers who wished to practise in Britain. They were not, however. In 1844 John Wellington Gwynne, in London to study equity pleading, inquired of Lincoln's Inn about being called to the bar on the strength of his Upper Canadian call of 1837 and the reciprocity which the Law Society presumed to be mandated by the act of 1822. The Lincoln's Inn benchers told the future justice of the Supreme Court of Canada (and brother of the Law Society's examiner, Hugh Nelson Gwynne) that, while they might admit him personally, the general question of Upper Canadians' right to practise in England should be pursued by the Law Society itself. Gwynne informed convocation of these discussions when he returned to Toronto, but the society did not force the issue.12? Finally in 1861, after Gwynne had been a bencher for a dozen years, convocation drew up a formal memorial to the benchers of the four Inns of Court, requesting full reciprocity between the bars of Upper Canada and England. By then the situation had been changed by the 1859 publication of the Consolidated Statutes of Upper Canada, to which treasurer Hillyard Cameron had been a key contributor. The Consolidated Statutes broke the 1822 legislation into clauses in such a way as to state that reciprocity was required only of British North American jurisdictions and did not affect British lawyers seeking to be called to the bar of Canada West.128 The Law Society evidently accepted the new reading, for in its memorial to the Inns it no longer claimed any right to reject English barristers in the absence of reciprocity. Instead it set forth the legislative standing of the Law Society of Upper Canada and related in great detail its requirements for entry and for call, its obligatory texts and subjects, and the gradations of classes, examinations, and calls which it maintained. The memorial concluded by inviting the Inns to recognize the Upper Canadian call to the bar, in order to serve 'the advancement of the Science of Law' and to 'cement the union between Great Britain and this province.'12^ The blue-ribbon joint committee formed by the four Inns to consider this memorial was unimpressed, quickly resolving 'that the 128

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Inns of Court would not be justified in acceding to the request.' The benchers had guessed wrong. Emphasizing the Law Society's high standards and elaborate educational system in hopes of earning the respect of the venerable Inns, they probably did more to alarm and antagonize their English counterparts. For in the 1860s, the Inns of Court were at the nadir of their nineteenth-century decay. The Inns had only a very rudimentary educational program and did not test the competence of those they called to the bar. They had 'a chaotic disciplinary system with inconsistent rules/ now made worse by the collapse of the traditional barristers' circuits which had provided an informal governance. Because they did so little, the Inns could not attract leading practitioners as benchers and had fallen 'into the clutches of reactionary incompetents with time on their hands.' Lawyers and scholars derided the Inns, The Times expressed feelings 'amounting to hatred' for them, and many parliamentarians favoured their abolition. For the Inns of Court to have acknowledged the Law Society of Upper Canada on the basis of its educational achievements and its carefully .codified rules would have been, in fact, an admission of the failure of the gentlemanly informality to which the Inns themselves still clung. ^° Had the Law Society's authority to refuse to call English barristers in the absence of reciprocity been as clear in 1861 as it had seemed in 1844, the memorial to the Inns might have been more strongly phrased. But in any case the society, already becoming enamoured of its own traditions and ceremonies, was in awe of the English legal tradition and little inclined to look behind the dignified facade of the Inns. In the 1860s it would not utter the frank criticisms that had been heard from benchers in 1822, and it did not react to the snub from England. Ontario lawyers gained no right to practise in England, but until 1885 English barristers continued to be called without hindrance to the Ontario bar. The same tolerance was not extended to other Canadian provinces. In 1869 the benchers refused to call Nova Scotian James Ward to the Ontario bar, citing the Revised Statutes of Nova Scotia to show that the Nova Scotia bar was not obliged to accept an Ontario lawyer's right to practise there. Nova Scotia took heed, for Ward was back within the year, able to cite a new statute and receive his call. In 1871 New Brunswick lawyer John Hamilton Gray, a father of Confederation and former premier of Lawyers for the Emerging Giant, 1822-1871

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This photo from the early 1860s shows Cumberland and Storm's renovations completed in I860, but not the wroughtiron fence built in 1865-7.

his province, was also refused call to the Ontario bar due to lack of reciprocal recognition from New Brunswick. Gray, a member of the Nova Scotia bar as well, simply revised his application and was accepted.131 Upper and Lower Canada had established reciprocal-call privileges in 1850, and in February 1866 Attorney General George Etienne Cartier of Canada East received more dignified treatment than would be given to Gray, his fellow father of Confederation. With Attorney General Macdonald of Canada West making the introductions at a convocation that did no other business, Cartier was examined, passed, admitted, and called to the Upper Canadian bar by the treasurer. This was an honorary call. In lieu of examination, Hillyard Cameron asked Cartier which had the better legal system, Canada East or West (Cartier diplomatically recommended some combination of the two), and two days later convocation remembered to remit all member's fees due from Cartier.132 Hillyard Cameron was only a lukewarm supporter of Confederation - he claimed to want the proposal put to the voters - but Confederation scarcely affected the Law Society. Convocation did not sit between June and November in 1867 (the summertime Trinity term of the courts had recently been abolished, creating the legal profession's legendary long vacation'). When sittings resumed, the minutes made no mention of Confederation, not even noting the acquisition by the new Province of Ontario of much of the statutory authority over professional governance bequeathed from Upper Canada and Canada West. Some of Ontario's early statutes refer to 'the Law Society of Ontario,' but the society, perhaps suspecting that 'Ontario' could prove as transitory as 'Canada West,' seems no more to have considered changing its name in 1867 than it did in 1841. The benchers spent much more time in the late 1860s discussing the fence that surrounded Osgoode Hall. From the first construction of Osgoode Hall, the benchers had regretted making do with temporary wooden fences. Late in 1865, they commissioned Cumberland and Storm, the architects of the centre wing, and ironfounders William Hamilton and Son to undertake a properly dignified iron one. Theodore Berthon, the portrait artist, 130

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apparently laid out the design of the fence, though he is not credited on the surviving plans. 'Handsome or not, we are glad to see the fence approaching completion/ sniffed the Upper Canada Law Journal in May 1867. The fence was the last step in composing Osgoode Hall's presence on Queen Street, and the first since the 1830s to be paid for by the Law Society itself. It cost more than $10,000 (at four dollars to the pound sterling, not much less than the original hall). The narrow and circuitous entrances, known ever after as 'the cow gates,' were a design conceit more than a practical necessity, though as recently as 1857 the city papers had published complaints of the number of cows and pigs in the streets and the disruptions caused by 'cud-chewing quadrupeds.' Since Osgoode Hall's carefully maintained lawns, trees, and shrubbery already formed a green oasis in the city, creating some protection for them may have been thought useful as well as stylish. Elaborate fencing, however, was an attribute of every self-respecting estate in a Victorian city. The fence and gates were a statement of professional boundaries, not animal husbandry.133 In the 1860s, the opinion of the profession began to turn against the benchers' habit, unbroken since 1800, of simply inviting new members to join them whenever they felt convocation needed renewing. The principle of elective representation that was now established in political life (at least for middle-class men) was spreading to other spheres. 'Close corporations,' whose directors were not answerable to those they served, were now stigmatized as relics of the days of autocratic rule by men of presumed 'virtue.' On these grounds, lawyer and politician Matthew Crooks Cameron (no relation to the treasurer) declined appointment to convocation in 1861.134 Five years later, bencher Adam Crooks, a reformer to M.C. Cameron's extreme Toryism, raised the issue more forcefully by resigning from convocation. He had long opposed convocation's freedom to elect itself, he said, but he had tolerated the practice (and accepted appointment as a bencher in 1864) so long as those most worthy of appointment were selected. In 1866, however, the benchers decided not to appoint Edward Blake, who at thirtyLawyers for the Emerging Giant, 1822-1871

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Completed in 1867, Osgoode Hairs famous fence, with its cow gates, survives to the present day, and is recognized as one of Toronto's landmarks.

By refusing convocation s invitation to become an appointed bencher in 1861, lawyer and politician Matthew Crooks Cameron helped start the grounds well that led to the first bencher elections in 1871. Cameron was a bencher from 1871 until his appointment to the judicial bench

in 1878.

three was emerging as a leading barrister as well as head of the growing firm of Blakes. Crooks, a bencher since 1864, declared Blake's omission so outrageous that he could not remain in an appointive convocation.1^ The benchers were unmoved. They accepted Crooks's resignation and defeated a motion to make convocation elective (and another to open its proceedings to the membership). Advocates of election, however, began to petition the legislature. Sensing support in the profession and the legislature for the change, Ontario premier John Sandfield Macdonald took over a private member's bill and brought in government legislation early in 1871. Sandfield Macdonald, himself a bencher since 1849, was personally unenthusiastic about the measure. He began with a compromise bill that might have pleased the benchers, proposing that twelve benchers would be elected by the Queen's Counsels (who numbered about fifty), and only eighteen by the rest of the bar. This suggestion was hooted down, even within his own party, and Edward Blake, who by then was Ontario's opposition leader, declared he would be more honoured to be elected by the whole bar than by the silk gowns. Sandfield Macdonald yielded, and Ontario passed a simple statute terminating the life appointments of the existing benchers (except those like himself who had been appointed ex officio as Crown law officers or former judges) and empowering all members of the bar to elect thirty benchers-at-large to five-year terms. ^ Despite evident support for the measure in the profession as a whole, the benchers reacted to the 'dissolution of the corporation ... as constituted at the end of the last century' as if to the end of the world. Uncertain whether any of them would sit in convocation again, they presented a mournful address to their leader, Hillyard Cameron, lauding his achievements, particularly in legal education, and bidding him 'farewell in our old relations.' They were right, probably, to identify a fundamental change. William Warren Baldwin had once spoken of respect and confidence as the highest honours the Law Society could seek. For three-quarters of a century, the benchers had ruled by the respect they commanded as leading barristers according to an unwritten gentlemanly consensus. Henceforth, convocation's legitimacy to govern would depend on the confidence of the bar at large, as expressed in the formal voting procedures of representative democracy. 132

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In reply to the benchers' address at the close of Hilary term in February 1871, Hillyard Cameron assured them that in the election to come, 'the standards of merit and position cannot fail to be recognized by the profession at large.' Then convocation approved the financial statements from the previous year, and dissolved.^7

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CHAPTER THREE

A New Profession, 1871-1914

I object to pay a tax to maintain a library for Toronto lawyers, pay for lunches for benchers and dancing parties for Toronto swells, and get nothing for it.'

- an Ontario country lawyer, 1891

The funeral procession of the longestserving treasurer, Sir Aemilius Irving, in November 1913, following his lying in state at Osgoode Hall

M

.AKING CONVOCATION ELECTIVE produced nothing like the cataclysm the benchers had feared. Adam Crooks and Matthew Crooks Cameron, who had boycotted the non-elective convocation, and Edward Blake, the most conspicuous non-appointee, were elected, but fifteen of the nineteen incumbents who sought election in 1871 (among almost sixty candidates) were also returned. The bar seemed to share Hillyard Cameron's views on the kind of 'merit and position' that should be rewarded, for the elective bench was composed of recognized leaders of the bar much as the old self-appointed one had been. The result won the approval even of the conservative Canada Law Journal, which had opposed the whole idea of elections, fearing 'men less competent but more "popular," younger, or more pushing' might replace the advocates of a 'high standard of professional feeling and professional morality.' To its relief, the election had produced benchers almost indistinguishable from those who had previously been appointed. They immediately re-elected treasurer Hillyard Cameron, who had not needed to run in the bencher elecA New Profession, 1871-1914

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CAMERON, BLAKE, AND IRVING

As Ontario's premier and attorney general 1872-96, Oliver Mowat reshaped Canadian politics by his political and judicial campaigns for provincial rights. His influence on Law Society policy was more discreet but almost as large.

tion because his brief and distant stint as solicitor general had made him a bencher for life.1 For the next century, the Ontario bar would rather self-consciously elect the leaders of the profession rather than a representative sample of itself, and benchers would tend to be proud rather than apologetic about that fact. 'The benchers are not in truth a representative body/ said the Canada Law Journal approvingly in 1880, and unsuccessful campaigns to elect more members of the 'junior' and 'country' bars in 1886 and 1891 simply confirmed how much the bar deferred to the legal elite. In 1891, three of the largest Toronto firms, Blakes, McCarthy and Osier, and the Moss firm, provided no less than nine benchers, not far from a working majority, given the small quorum often present.2 The legal elite, furthermore, tended to be self-sustaining. Talented newcomers did occasionally build their own elite firms, but as a rule it was acceptance into an established firm that gave a lawyer access to clients, to prominent cases, to work that could carry him around the province, and to conspicuous wealth. These were the most likely ways to get one's name recognized and, since bencher elections were largely based on name recognition, convocation tended to be dominated by elite lawyers who were older, wealthier, more urban than the lawyers whom they governed, and more likely to be barristers or to come from large firms.^ 'Elite' did not necessarily mean Toronto. A proposal to elect benchers by regional constituencies had been deleted from the draft act on bencher elections, but regional representation (already strong in the old convocation) was preserved in the bencher elections. Toronto, with perhaps a quarter of the bar, was overrepresented but short of a majority in 1871 (twelve of the thirty elected benchers were Torontonians), and strong regional voices were present in all the late-nineteenth-century convocations. Constituency voting would have reduced Toronto's voting power slightly, but might not have changed convocation much, for the local stature of 'country' benchers seems to have resembled that enjoyed by Toronto benchers on the larger provincial staged Convocation remained almost as self-sustaining after 1871 as before. Vacancies, usually from deaths or judicial appointments, came up frequently, but until 1970 convocation would remain free to appoint whomever it chose to vacancies between elections. In 138

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the elections themselves, incumbents, even recently appointed ones, tended to win re-election. However, convocation was enlarged in 1912, when long-term incumbents were permitted to become life benchers. They did not lose their voting rights, but they no longer counted among the thirty elected benchers.5* The demands of non-Toronto lawyers (and also the society's sense of fiscal well-being) brought the first law associations into being in 1880. Since 1867 at least, out-of-Toronto benchers had been pointing out that they laboured 'under a great disadvantage in not being able to avail themselves of the splendid library at Osgoode Hall which has been purchased with fees imposed on the whole profession/ Finally, in 1879, convocation agreed to support local libraries as well as the one in Toronto. If lawyers in any of Ontario's thirty-seven counties incorporated local law library associations, the Law Society declared, it would contribute annual grants to assist the new bodies in building and maintaining law libraries in their county court-houses. By the end of the year, the Hamilton Law Association was incorporated and seeking a grant of $432, based on its seventy-two members. Other local associations soon followed. Twenty-one local libraries were receiving Law Society funding when chief librarian Eakins made a tour of inspection in 1896.6 Though the Law Society's support for local associations initially hinged on the need for libraries, the new groups called themselves 'Law Associations' rather than 'Law Library Associations,' and they quickly took up other activities. Groups of lawyers in local communities across the province had long been associating semiformally, and with their new institutional backbone, they could begin to advance local agendas more vigorously. When the newly formed law associations passed resolutions calling for the decentralization of the courts or legal education, they were giving the first hint of an institutional structure independent of, potentially even opposed to, the will of convocation. Though the new, elected benchers were largely the same people as the old, appointed ones, the new mandate brought with it a house-cleaning attitude. Convocation moved at once to reorganize its rules and to establish a network of standing committees (through which its business would be done for more than a century). Looking ahead to the passing of Hugh Nelson Gwynne, the elderly secretary, A New Profession, 1871-1914

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* Until 1871 all appointments to convocation were life appointments. From 1871 to 1912 the only life benchers were those who had held some office (such as attorney general) which conferred automatic membership in convocation. In 1912, benchers who had been re-elected several times became eligible for life appointments. Only after 1970 did life appointments for long service become non-voting positions.

The Library of the York County Law Association in the York County courthouse, about 1890. Too much stress cannot, 1 think, be placed on pleasant surroundings in a library,' declared the Law Society's library inspector in 1902. 'Plain walls and bare floors, with crude furniture, are conducive only in a few cases to deep study.'

When James Esten, secretary, subtreasurer, and librarian of the Law Society from 1872, died in 1892, the benchers opened a trust fund to support his widow and three underage children. Staff pensions were still far in the future.

librarian, and examiner (who died, still in office, in 1872), it established that henceforth secretaries would no longer receive the various fees which had been Gwynne's source of income. Gwynne's successor, James Esten, a high court judge's son who was secretary from 1872 until his death in 1892, was a salaried employee. The new law reports committee also sought efficiencies by appointing an editor and reducing the independence and salary of each reporter. The society also began to renegotiate its relation with the Ontario government, obtaining greater autonomy in rule making, discipline, and admissions. The society ceased to be the landlord to the courts in 1874, when it conveyed title to the central and western portions of Osgoode Hall, in which the courts were housed, to the Crown. This agreement created the first property condominium in Ontario history, and errors in its drafting required the document to be redrawn a decade later. The Crown at once began a series of expansions to provide more courtrooms and judges' chambers at the rear of the central and western wings. What architectural historian Eric Arthur has characterized as Osgoode HalPs long march toward Dundas Street' has continued ever since.7 Hillyard Cameron, after being re-elected treasurer six times by elective convocations, died suddenly in November 1876. He had

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been extravagantly honoured, most recently by the outgoing convocation of the spring of 1876, as the undisputed leader, mentor, and father of the profession, but he was only fifty-nine at his death. The society gave him a lavish funeral and elected Stephen Richards, a long-serving bencher and minor politician, to succeed him. Richards proved to be a transitional figure. He went to Europe in 1878 and stayed so long, apparently for his health, that he forfeited his seat in convocation for non-attendance. He was soon reappointed a bencher, but not as treasurer.* The new treasurer was Edward Blake. A much-respected barrister and son of the Chancery judge and law teacher William Hume Blake, Blake was a pillar of the Liberal party, and his relationship with the Law Society mirrored the return to influence of the Ontario reform tradition. Denied appointment to convocation in the heyday of Cameron, Blake had won a bencher's seat in 1871. Six months later, on the eve of becoming premier of Ontario, he resigned from convocation, and the benchers chose his brother and law partner, Samuel Hume Blake, to replace him, thereby setting the stage for an elaborate circular shuffle which would nicely demonstrate the emerging power of Ontario liberalism in law and politics. Late in 1872, Edward Blake resigned as premier to focus on national politics, and he persuaded Oliver Mowat to resign from the Chancery court to launch a twenty-five-year reign as the master of Ontario political life. Mowat's departure opened a seat on the court for Samuel Blake, who resigned from convocation to take the appointment - and was replaced there by his brother, Edward. Blake remained a bencher throughout his career in federal politics, including a term as minister of justice which made him a life bencher ex officio. Briefly out of the House of Commons when he was elected treasurer in 1879, he soon returned to Ottawa to displace Alexander Mackenzie as national Liberal leader. He remained Law Society treasurer - an absentee one, very often - throughout his seven years as leader of the opposition in Ottawa, and resigned as treasurer only after he moved to Britain in 1892. The first lawyer since the 1840s to mix high political office with leadership of the Law Society, Blake probably benefited from the new system which had shifted administrative responsibility to the new standing committees of convocation supported by the secretary. Blake, 'general-

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* Treasurer Stephen Richards, who practised in Toronto, came from a powerful Brockville family. His brothers, Albert N. Richards (a politician and lieutenant-governor of British Columbia) and William Buell Richards (Chief Justice of Canada, 1875-9) both served as benchers. John Douglas Armour, also a future justice of the Supreme Court of Canada, resigned from convocation on an unexplained point of principle between Cameron's death and Richards's election, but whether the treasurership was an issue is unknown.

Edward Blake, acclaimed the finest lawyer of his day, was founder of one of Canada's great law firms. Blake was less successful as national leader of the Liberal party, an office he held while serving as Law Society treasurer.

ly recognized as the greatest lawyer in Canada/ never quite fulfilled the high expectations held for him in politics, but the demands of politics meant he was only an intermittent presence in convocation, the symbolic leader of the bar rather than the society's day-today leader.^ The most frequent substitute for Blake during his absences from convocation was Aemilius Irving, and Irving succeeded him as treasurer in 1893. A former railway lawyer who had become the key legal adviser to Mowat's Ontario government, Irving was a colourless figure, a legal technician who had mostly advanced as a backroom adviser (though he had also prosecuted some sensational murder cases, including the Donnelly murders). A decade older than Blake, he was already seventy when he became treasurer. But he took advantage of the tradition left by Cameron and Blake that a treasurer could hold the office as long as he wished, and he stayed on and on.^ Aemilius Irving had neither the public profile nor the professional eminence of Blake or Cameron. In fact, he placed thirtieth at the bencher election after he became treasurer, and to save him from future humiliation, Premier Mowat had the Law Society Act amended to give long-serving treasurers ex officio standing. With that security, Irving became a permanent fixture 'with a plaid shawl over his shoulders, sitting in a corner of the Benchers' library near the window/ until he died in office, age ninety, in 1913. In 1906 he received a knighthood, which he declared was given as 'a recognition of the profession rather than on personal grounds/ His twentyyear term, which made him the longest-serving treasurer in Law Society history, prevented such prominent lawyers and influential

Near the end of his long term of office, treasurer Blake was honoured by his fellow benchers at an elaborate Victorian repast in the benchers' diningroom at Osgoode Hall.

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benchers as D'Alton McCarthy, Sir Allen Aylesworth, and B.B. Osier from receiving the honour, but convocation elected him unanimously each year. 10 The Blake and Irving years saw the first substantial expansions to the Law Society's own part of Osgoode Hall In 1880-2, Convocation Hall was built behind the original east wing. It was intended first as an examination room, where the society's growing number of law students could face its entrance, intermediate, call, and scholarship examinations. In 1889, with the opening of the law school, another addition behind Convocation Hall provided classrooms and a student library. In any case, Convocation Hall, with its vaulting truss ceiling, expansive dimensions, and tall windows on three sides was more than an examination room. It immediately became the dominant space in the building, and it helped restore Osgoode Hall's role as a gathering place for the profession, a role that had dwindled with the removal of lawyers' chambers in the 1860 renovations. There was a new lunchroom below Convocation Hall, and washrooms, and that 'great convenience to the profession, the telephone.' In 1876, the Canada Law Journal had regretted Built in 1882 as an examination hall, Convocation Hall also hosted ceremonial and social functions, but remained in use for lectures and exams into the 1950s.

the lack of a lunchroom, noting how lawyers who dashed over to Coleman's restaurant for a cup of coffee 'sometimes find their cases A New Profession, 1871-1914

143

struck out on their return to court/ After 1882, working lawyers could meet their fellows in the lunchroom or the basement smoking room, 'where each man had a clay pipe with his name written on it/ Osgoode Hall began to acquire its status as home to a kind of legal fraternity and men's club, as turn-of-the-century reminiscences often expressed.11 Despite the expansions to Osgoode Hall, the society's finances were secure. Members paid a solicitors' fee of $15, which covered the subscription cost of the law reports, and a barristers' fee of just $2. Until the 1890s, the largest part of the society's revenues came from law students, who paid large fees upon admittance and upon their call to the bar. The society justified these charges not as a fee for services (for students received little from the society), but rather as the investment required for entry into the existing partnership of the legal profession. The society recorded significant surpluses, and in 1912 the finance committee recommended a fee reduction, saying 'the profession ought not to be taxed to a larger extent than is necessary.' Treasurers presided year after year, and a long succession of distinguished and prosperous lawyers became benchers and passed on to judgeships. The dominant man in the profession, however, seems to have been neither the often-absent Blake nor the colourless Irving, but premier and attorney general Oliver Mowat. Mowat kept a close eye on the legal profession, and he consistently persuaded the Law Society to do his bidding more effectively than it could persuade him to endorse its agendas.12 In the records of the Law Society, the decades of Blake and Irving mostly seem as undisturbed as the reigns of Oliver Mowat and Queen Victoria. The surface placidity was misleading, however. Even in the minutes' bald summaries, a long controversy over legal education revealed underlying turmoil over a vital aspect of the governance of the profession. And, deeper down, lawyers in these decades were grappling with a fundamental redefinition of legal work and of the very meaning of the word 'professional.' What a lawyer did, what a profession was, and the role of the Law Society in interpreting both - these large matters were being transformed in the last decades of the nineteenth century and the first decade of the twentieth.

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Aeinilius Irving was undoubtedly a gentleman. Descended from a long line of military officers and son of an Upper Canadian legislative councillor, young Irving learned French and Latin from private tutors even before he started at Upper Canada College. He learned his law in the Toronto chamber of a gentleman bencher, D'Arcy Boulton's son-in-law Clarke Gamble. But while other young lawyers, like Hillyard Cameron (who was only six years older), were taking up the gentlemanly traditions of barristers in the courtrooms of Canada West, Irving did something shocking. In 1855 he moved to Hamilton and became the house lawyer for the Great Western Railway. It was a job with fine prospects. The Great Western needed masses of legal work, from getting its legislative requirements ready for the parliamentarians, to drafting financing documents, and fighting off the claims of railway accident victims. Working for the railway kept Irving busy, it gave him influence, and it honed his legal skills. But was it proper? The Upper Canada Law Journal, schooled in the notion that a gentleman and a lawyer was defined by his independence of mind and means, raised the alarm over Irving's new job. Hostile to the prospect of lawyers' becoming mere employees, it denounced the offering of salaried work to lawyers as 'a studied insult to the profession.'^ Could one accept salaried employment and be a lawyer? Irving demonstrated that one could. He spent seventeen successful years as counsel to the Great Western. By the time he moved back to Toronto to become unofficial counsel to Premier Oliver Mowat and his government, he was a QC and a bencher and on his way to the top of the profession. While the in-house counsel remained rare in the Ontario legal profession, Irving's Great Western career demonstrated conclusively that if the client and its legal needs were prestigious enough, close association with clients need not sully a lawyer's reputation. As early as the 1850s, the profession was prepared to accommodate to the new businesses emerging in the second half of the century, even if that required significant changes in what lawyers did and how they worked. In the eighteenth century, when landed wealth had been the source of wealth and power, Blackstone's law had emphasized the defence of landed property. By the mid-nineteenth century, com-

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145

ANEW PROFESSION

Aemilius Irving, railway lawyer, Liberal party confidant, and treasurer of the Law Society from 1893 to 1913.

mercial and industrial capitalism was replacing landed property as the basis of political economy throughout the Western world, and the era of property law was ceding dominance to the era of contract law. For lawyers in Ontario, as elsewhere, this meant not merely a matter of new clients and new client relationships. It meant defining a new profession. Defining 'professionalism' has become a growth industry in the world of scholarship. As sociologists of the professions have looked at the professions around them - at doctors, engineers, lawyers, accountants, even sociologists - they have identified a collection of traits that seem common to most. Professionals in the twentieth century have, or claim to have, as the basis of the service they provide, an esoteric knowledge not easily evaluated by non-members. They maintain special educational requirements and rigorous qualifications for entry. They organize themselves in professional associations and control their members by codes of practice, frequently backed by legislative authority. Above all, professions seek 'occupational autonomy/ which usually means that members of the profession expect to keep outsiders out of their affairs. This set of general observations has spawned two contested lines of argument among modern students of professionalism. One view defined professions as 'communities of competence/ accepting, on the whole, the professionals1 claim to special knowledge and their ideal of governing themselves by their own ethical standards. The opposed view described professions as 'communities of self-interest/ Sceptical of claims to esoteric knowledge and lofty ethical standards, this school saw professions as more or less explicit conspiracies to shore up the wealth, power, authority, and autonomy of professional elites - both against the public in general and against vigorous competition within the professional circle. ^ Both these scholarly schools - the one that admires professional ideals, and the one that views them as mostly a veil for concealing self-interest - developed their descriptions from observing contemporary professions. Tracing these hallmarks of professionalism back in time, they determined that the familiar professions of the twentieth century were born in the mid-to-late nineteenth century, the era which saw the birth of professional associations of accountants, dentists, doctors, pharmacists, surveyors, veterinarians, and other professionals throughout the English-speaking world. 146

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In Ontario, for instance, dentists celebrated the one-hundredth anniversary of their profession in 1968, chartered accountants and veterinarians in 1984, architects and engineers in 1989, and so on. Whether as ideal or as conspiracy, the professions, seeking occupational autonomy and market control for their members and promulgating their own educational standards and ethical codes, were a significant addition to the Ontario landscape in the decades before 1900.15 The Law Society of Upper Canada, however, fits awkwardly into this story of professions fresh-minted in the late nineteenth century. The Law Society is almost a century too old to fit the sociology of professional evolution. As we have seen, it was chartered in the eighteenth century, and it controlled entry, set educational criteria, and enforced ethical norms for lawyers long before the modern professions emerged anywhere. Fortunately, historians have modified the sociologists' presentminded definitions of professionalism, pointing out that the professions of law, medicine, and divinity, at least, are closer to a thousand than a hundred years old. These much older professions were not invented in the late nineteenth century, but they were transformed. Between about 1870 and 1920, the old-established professions migrated from 'Georgian professionalism/ in which the main obligation of a lawyer or doctor was to be a gentleman, to 'modern professionalism/ in which formal qualifications based on demonstrated expertise replaced gentlemanly worth as the primary claim of the professional. 'Our brethren in the country ... are afflicted with a plague, not of locusts, but of something almost as numerous, and, in their way, quite as destructive, to wit, "unlicensed conveyancers,"' moaned a lawyer in 1881.16 Since the foundation of Upper Canada, laymen had handled much of the real estate conveyancing, will drawing, and lower-court advocacy in rural areas unserviced by members of the Law Society. All through the late nineteenth century, however, lawyers ceased to confine themselves to the major centres and moved out into the countryside. Country towns and rural farm communities became a key source of new clients for a profession which many lawyers considered dangerously overcrowded. To secure this rural clientele for themselves, lawyers had to drive back A New Profession, 1871-1914

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* William Riddell, later a pillar of tradition as a judge and legal historian, may have entered convocation a radical. Elected from Cobourg in 1891, he immediately moved to abolish free lunches for benchers. Only three benchers supported him.

the lay advocates and conveyancers. Though they invariably portrayed themselves as struggling against upstart invaders, the lawyers were seeking to expand, rather than merely to defend, the boundaries of legal work in their battle against the conveyancer 'plague.' They got little support in this campaign from the legislature, for Oliver Mowat's government depended on southwestern Ontario farmers, who had their own urgent problems and no desire to be delivered into the lawyers' expanding monopoly. At first, the prosperous city barristers who dominated the Law Society were hardly more eager to support the hard-pressed and impecunious country lawyers against the conveyancers, and country lawyers bitterly criticized the Law Society's failure to help.* When, however, the country lawyers ceased to proclaim their monetary woes and rooted their case in the honour of the profession and the protection of the public, the appeal to professional ideals succeeded where simple selfinterest could not. By the turn of the century, the Law Society was trying to assist the fight against unlicensed practitioners - on the grounds that they were a danger to the public, and even (by their unfair competition) an incentive to unprofessional behaviour by lawyers. Gradually, by presenting the legal professional as being both more skilled and more responsible - more modern and professional - than his lay competitors, the lawyers weaned much of rural Ontario from reliance on the conveyancers, even without legislative (or Law Society) help.1? Curtis Cole, the historian of the professionalization of the Ontario bar, has also identified evidence of'modern' justifications in lawyers' new efforts to control their fees. Lawyers' fees had been supervised only by the courts, whose 'taxing masters' could review lawyers' fee claims when requested. The Law Society consistently declined to involve itself with fee scales, but the new county law associations it had helped bring into being took up the task. Starting with the Carleton County Law Association in 1899 and the Hamilton Law Association in 1908, local associations began to require their members not to undercut fixed minimum prices. To ward off charges of greed and monopoly, law associations identified these schedules of minimum fees, known as 'tariffs,' as a properly professional barrier against crass competition. Local tariffs, administered by the county law associations, remained basic to Ontario legal economics until the 1970s. They were in the pub148

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lie interest, said the law associations, as an appropriate part of professional self- regulation.18 New ideas of how a professional organization should operate also influenced the Law Society. Throughout the late nineteenth century, the society steadily extended its control over entry to the profession. Having brought the attorneys back under its authority in 1857, it raised qualifications for solicitors until something close to a general professional standard covered both barristers and solicitors. The society also lobbied more consistently to keep the legislature out of lawyer making. It had been doing this since Thomas Ward's case in 1799, of course, but by the late nineteenth century it was arguing that professional standards, not gentlemanly prerogatives, were at stake. In 1876, the society received authority to make exceptions to the requirements for admission to practice, but to its frustration, the legislature continued to pass occasional bills to have favoured individuals admitted as solicitors or called to the bar.19 Discipline in the legal profession was also transformed. Though barristers had been disbarred for ungentlemanly behaviour as early as 1820, only in 1876 had the society's disciplinary power been made explicit in the Law Society Act, and judges had continued to assert a right to discipline the solicitors enrolled by their courts. The society, in fact, had long been diffident about taking much responsibility for its members' conduct. When lawyers' misbehaviour suggested criminal responsibility or civil liability, it had tended to tell petitioners that their remedy lay with the courts.' The A New Profession, 1871-1914

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Until the 1960s, all descriptions of law offices emphasize their spartan simplicity, as suggested by the unidentified law chambers on the left, and the Toronto offices of Anglin and Mallon on the right, both photographed in the 1890s. After Francis Anglin became a judge (and eventually Chief justice of Canada) and his partner went into government, their firm evolved into the long-lived Day, Wilson partnership.

idea that a law society was or should be a policing body rooting out crooked lawyers on behalf of vulnerable clients was almost unknown for most of the nineteenth century.2^ Nevertheless, discipline procedures were revamped in the 1870s and again under discipline chair D'Alton McCarthy in the 1890s. The new tribunal was inclined less to press its own charges than to adjudicate complaints brought before it by others, and many of its early complainants were not aggrieved clients but aggrieved lawyers. In 1884, Conservative party organizer John Macdonell, attacked in Parliament by Edward Blake for padding his accounts as the Justice Department's legal agent in Toronto, retaliated by bringing a complaint of unprofessional conduct against Blake's brother and partner, Samuel Hume Blake. The discipline committee cleared Blake, and its subsequent censure of Macdonell, particularly for criticizing a brother lawyer in the press, may have helped dissuade lawyers from using discipline complaints for pursuing personal or political animosities.2* Defining appropriate professional behaviour soon became the discipline committee's crucial problem. Around 1900, the discipline committee was frequently a forum in which practitioners worked out ethical norms for the new conditions of professional work. Although details of most cases are lacking, discipline hearings frequently involved one lawyer's criticism of another for his ways of soliciting work, promoting his services, or dealing with clients with the other lawyer often vigorously defending his actions as ethical and practical. In 1903, for instance, lawyer (and bencher's son) Richard Bayly apologized to convocation for advertising himself as a specialist in succession duties, but insisted he had merely been 'experimenting with a new avenue to soliciting business.' In 1908, W.J.L. McKay, an Orangeville solicitor who had been urging CPR passengers to retain him for their railway accident claims, asked the discipline committee to see that he had been acting 'for the protection of the claimants.' In any case, he pointed out, there was no written rule of conduct or code of professional ethics proscribing what he had done, and 'it is well known that if desired many breaches of professional ethics might be discovered.' In this case, the committee reprimanded McKay for soliciting business, but in other cases the

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crucial outcome seems to have been clarification of what was appropriate practice in a changing climate.22 Prominent lawyers continued to be the subject of complaints, usually by other lawyers. T.C. Robinette, an emerging leader of the criminal defence bar, and Holford Ardagh, a future secretary of the Law Society, were among several QCs and other lawyers of evident prominence whom the discipline committee was asked to investigate. No details survive of the complaint against Robinette (who was reprimanded in 1898), but Ardagh was accused of assisting a gang's scheme to defraud the Toronto Street Railway by faked accident claims. Ardagh persuaded the benchers he had been duped by his clients and was exonerated, but in subsequent years, 'ambulance chasing' became a common accusation against minority lawyers, particularly Jews, who were said to be too zealous in pursuing liability cases.2^ The law society's new powers over discipline, and the way the discipline committee became a forum for ethical debate, reflected 'modern' ideas of how a profession should be governed and the standards it should maintain. Still, any rigid dichotomy between 'Georgian' and 'modern' professionalism would require an arbitrary forcing of the evidence. On one side of the professional transformation may have been lawyers who justified themselves by ancient norms of gentlemanly conduct, and who eventually yielded place to lawyers across the great divide who presented themselves as skilled and qualified modern professionals. But the redefinition was a process that took decades. One definition did not exclude the other, and the same individuals could subscribe to both. At the Law Society, what is notable is how easy the transformation seems to have been. Modern professional ideals proved almost fatal at the English Inns of Court. Having operated for centuries without legislative sanction, written rules, entry standards, formal curricula, or examinations, the Inns were trapped in the informal gentlemanly codes of an earlier time. Acknowledging new, utilitarian standards was wrenchingly difficult for the English barristers, and reform commissions seriously considered the abolition of the Inns. Even in other

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A turn-o/-thecentury advertisement for barristers gowns.

Canadian provinces, new concepts of professional governance demanded substantial reorganization. The New Brunswick Barristers' Society, the Barreau de Quebec, and the Nova Scotia Barristers' Society all needed legislative charters (in 1845 and subsequent years, 1849, and 1885, respectively) to remake them into professional governance bodies analogous to the Law Society. All three represented legal communities older than Ontario's, but until these changes, formal authority over the lawyers of these provinces had been vested in judges, not in the profession itself.24 That kind of reorganization proved unnecessary for the Law Society of Upper Canada. Chance, indeed, seems to have preadapted it to the evolution of modern professionalism. It had not been given legislated authority in 1797 in order to serve a modern notion of professional culture; all its early leaders intended the society to instil and uphold gentlemanly Georgian standards. But in the circumstances of Upper Canada, gentlemanly status had been difficult to define from the very start. As a result, the Law Society had at an early period adopted written rules and formal educational requirements tested by examination. The Law Society had been a society of rules even when the aim of these rules was traditional, to identify those worthy of being accepted as gentlemen. William Warren Baldwin accepted lawyers who passed the examinations as gentlemen, no matter if his instincts told him they were not. By the second half of the nineteenth century, however, what at first had merely been methods for defining gentlemanly standing namely, admittance based on proven mastery of defined skills, tested by the profession itself under legislative authority - had emerged as professional ideals in themselves. The Law Society reoriented itself to the new professional world with remarkably little stress. Few discomfiting changes were required, and the Law Society acquired the benefits of modern professionalism without abandoning the patina of dignified and gentlemanly tradition built up in its first hundred years.

NEW HORIZONS

For most of the first quarter-century after its founding in 1858, the Toronto firm of Edward and Samuel Blake was a family law business of a familiar kind, a partnership of two brothers who would recruit in-laws, sons, and grandsons. They had important corporate and 152

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institutional clients, including the City of Toronto, but the firm's early fame and prestige came from the prominence of the two founders, primarily courtroom advocates. In its twenty-fifth year, however, the firm admitted a partner whose career would help redefine what elite law firms did. Zebulon Aiton Lash, a clergyman's son, had practised in another law firm before Edward Blake recruited him to Ottawa as his deputy minister of justice in 1876. In 1881, Lash returned to Toronto and joined the Blake firm. (About the same time, Samuel Blake resigned as Chancery judge and returned to manage the firm and to regain his convocation seat.) The Blake firm launched Lash's career as the great corporate counsel of his era, and he helped make corporate law the essence of the firm's practice. Lash became best known as legal adviser to construction entrepreneurs William Mackenzie and Donald Mann, whose railway empire culminated in the Canadian Northern transcontinental system. Lash's legal advice, in fact, was credited with doing much to create the elaborate corporate structure through which Mackenzie and Mann financed their extraordinarily ambitious building program and kept it solvent until 1917 when finally the Crown absorbed the debtburdened railway into the Canadian National Railways.25 Lash eventually became a Mackenzie and Mann executive, but as a Blakes partner he was never simply a railway counsel. His speed and skill as a legal drafter and his expertise in everything from legislation to securities attracted new corporate clients to Blakes and helped put the firm at the forefront of corporate law. He became chief counsel to (and a director of) the Bank of Commerce and National Trust, he advised Canadian pioneers of the brokerage and insurance industries, and he drafted key sections of the Bank Act. Lash, indeed, became the epitome of the corporate counsel, just as Ontario corporate organization and financing was becoming sophisticated. The new kings of corporate Ontario were men like Timothy Eaton, Hart Massey, and Joseph Flavelle, traders and producers who had expanded their production and their markets as the provincial and national economy expanded. Barely a generation earlier, when businesses were still informal family partnerships, these men's predecessors would have hired lawyers occasionally, to pursue a debtor or to draft a will. But by the last decade of the century, entrepreA New Profession, 1871-1914

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One of corporate law pioneer Zebulon Aiton Lash's clients said Lash could draft legal documents 'in language which had the exactitude of a multiplication table and the clarity of a mirror.'

D'Afton McCarthy, powerful politician and founder of a great law firm, was an influential Law Society bencher from 1871 until his death in a traffic accident in 1898, aged just 61.

neurs and capitalists dealt with increasingly elaborate markets, corporate structures, financial requirements, and legislative interests. Their need for legal services had become constant, but counsel of a more general kind was just as important. Flavelle, rapidly building an elaborate financial empire from his pork-packing business, would not make a move, it was said, without Zebulon Lash at his elbow. 'You told me it was not a bare legal opinion you wanted/ said Lash of their relationship later, 'but it was my personal opinion of what it would be right for you to do/ The bills for that kind of counsel, though large and constant, had become an accepted business cost.26 As corporations began to dominate the Canadian economy, corporate practice of the kind pioneered by Lash became both a growth industry for downtown Toronto law firms and a leading source of wealth and prestige. Corporate legal work became the foundation of the steady expansion of the Blake firm and others like it. Even within the profession, however, corporate solicitors lacked the fame that still attached to the great courtroom advocates. Lash, an office lawyer with no public reputation, was appointed to fill a vacancy in convocation in 1883 (he had earlier been a Law Society lecturer and examiner) but, even with the benefit of incumbency, his seat was not entirely secure until he became a life bencher. He failed to be re-elected in 1896, the year Aemilius Irving ran thirtieth. Blakes' two great Toronto rivals, the McCarthy firm and the Osier, Hoskin & Harcourt firm, began in 1882 as a partnership, when D'Alton McCarthy and Britton Bath Osier, one from Barrie, the other from Dundas, joined forces in Toronto. As with the founders of Blakes, the two men were both well-connected litigation stars. Osier served as one of the prosecutors of Louis Kiel in 1885 and was defence counsel in many of Ontario's prominent murder trials. McCarthy was a criminal defence and appeals counsel and also a prominent Conservative politician, a constant thorn in John A. MacdonakTs side as leader of the anti-French, antiCatholic, English-rights movement of the late nineteenth century. The litigation work of both and McCarthy's political activity brought fame and respect to the firm, and both men were benchers. Like the Blake brothers, McCarthy and Osier reinforced their high-profile courtroom practices with the corporate work of skilled, if less prominent, solicitors, notably John Hoskin and Adam Creelman. Osier's brother, financier Edmund Osier, delivered the 154

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legal work of the CPR's western lands subsidiary to the firm, and many other financial and industrial corporations followed. A key McCarthy contribution was Canada Life Insurance, a growing insurance company which McCarthy's doctor brother had helped to build. The McCarthy and Osier law firm was instantly successful: profits in 1882 amounted to $55,000, and McCarthy's share gave him an annual income thirty to fifty times what a skilled worker could earn. When the second generation of McCarthys split from the McCarthy and Osier partnership in 1916, however, the secondgeneration Osiers kept most of the big corporate clients. The corporate side of McCarthy and McCarthy would depend heavily on work that came from the family insurance company until younger partners gradually rebuilt the client list.2? Another leading firm at the turn of the century, Beatty and Blackstock, also demonstrated the continuing importance of family connections in the new era of professionalism and corporate law. William Henry Beatty was the son-in-law of James Gooderham Worts, and Thomas G. Blackstock was the son-in-law of George Gooderham. As the two proprietors of the Gooderham and Worts distillery, who themselves were cousins, expanded into banking, life insurance, trust companies, and railways, their legal work made Beatty and Blackstock, with fifteen lawyers, the largest law firm in Toronto (and Canada) between 1901 and 1911. Beatty and Blackstock were perhaps too narrowly dependent on the unsensational corporate work of a single family. Neither of them served as benchers (though their firm's leading litigator, William Renwick Riddell, did), and their firm's progress levelled off with the Gooderham fortunes. After 1910 David Fasken, an aggressive young farmer's son from Elora, moved out the heirs of the founders, reoriented the firm to pursue new opportunities flowing from northern Ontario's mining boom, and laid the basis of the long-lived Faskens firm.28 The mining boom was another indication of how Ontario's economic growth was benefiting the new corporate law community of downtown Toronto. Economically dominated by agriculture as late as 1870, Ontario had by then begun tapping new industries and new resources. Pulp and paper revitalized the old lumber trade. Manufacturing plants opened in every town with a railway spur, and they developed national markets as the nation A New Profession, 1871-1914

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expanded. Toronto acquired a burgeoning financial sector, ready to exploit the new mineral discoveries of northern Ontario, the emerging market for hydro power, and other resource investments in Ontario and far beyond. Legal services were essential at every stage of this evolution. Connections of W.H. Beatty's sort were not always essential. Soon after James Day started his Toronto career in routine conveyancing and estates work, the real estate collapse of the mid1890s forced him to move back to Guelph so he could live with his parents. Reading Blackstone and the Ontario Reports on the commuter train to Toronto, he developed, almost by hazard, an interest in incorporation law, just as the Cobalt mining boom of 1902-3 meant every mining promoter putting together stock-investment This courtroom scene at Gore Bay, Manitoulin Island (left), was staged by the photographer with the help of the local lawyers and other court

officials

in 1902. The county court-house in Peterborough (right) in about 1910 is shown in another posed photograph. The court-houses were familiar not only to local lawyers but also to the Queen s Bench judges on their assize circuit around the province, and to the star litigators who followed them.

syndicates wanted to incorporate limited companies by the score. Day's theoretical enthusiasm became the foundation of a profitable legal specialty and a long-lasting Toronto firm, Day, Wilson.2^ The transformation of small-town law students and plain-spoken farmer's sons into sophisticated city lawyers was a long-standing theme in Ontario legal history, from John Wilson, the reluctant duellist of the 1830s, through to the Second World War. Its heyday seems to have come in the decades before 1900, when many bright sons of prosperous farmers were looking for opportunities, and when the educational, geographical, and class barriers to professional careers seem not to have been formidable. With surprising frequency, lawyers up from the country came to the professions via schoolteaching. W.N. Tilley, a leading litigator and Law Society treasurer of the 1930s, taught school for several years in the 1880s, and when he left for Osgoode Hall (he never went to university), the school trustees of rural Cainsville wrote that they 156

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received his resignation with regret, since 'if ever there was a person we thought was ill-conceived to be a lawyer, it would be you/ Tilley kept the letter all his life.30 Country law students did not have to become city lawyers. All the local centres, particularly the county towns, had supported lawyers since the foundation of the province. In the late nineteenth century, as lawyers moved out into smaller centres and even villages, the bread and butter of small town practices (as for most Toronto practitioners beneath the corporate elite) was minor court cases and real estate conveyancing. Estate management for a propertied class that was growing in size and in prosperity was also significant. As late as the 1930s, when trust companies were already strong rivals for lawyers' estates business, a student recalled seeing the head of the firm come in on the first raw day of winter, gleaming with satisfaction over the weather. 'I have a thousand wills in here,' he explained, 'and some of them are about to become active.'31 Successful small-town lawyers, however, were not limited to narrowly legal tasks. Because they were educated and professional, they acquired leadership roles in many civic activities. Because they were frequently prosperous, well-connected, and well-informed, they helped control business and political life. They acquired a whole range of intermediary roles: collection agent, mortgage broker, investment counsellor (and investor), town solicitor, family adviser, helpful fixer. Top lawyers were secure members of the local elites. By the early twentieth century, multigenerational family law firms like the Scotts of Ottawa, the Guthries of Guelph, the Bowlby and Clement firm of Berlin (later Kitchener), and the McDonald firm of Brantford were established at the top of the legal hierarchy in their local communities. Leaders of these firms, if they chose, could expect to be judges, mayors, corporate executives, provincial and national politicians, or Law Society benchers.32 Younger and less established lawyers, if not rich, at least were secure in their status. The family of 'Lawyer Coutts' and his wife, 'Mrs Lawyer Coutts,' who lorded over the townspeople of Alice Munro's fictional Jubilee, encapsulated the prestige of the professions and the respect given to small-town lawyers. In late-nineteenth-century Goderich, the pace of lawyers' work sped up as the seasonal assizes approached, but in the long summer vacation, A New Profession, 1871-1914

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Elliot Traver, a solicitor of Lucknow in southwestern Ontario, about the turn of the century.

offices closed early and lawyers had time for cricket and tennis. Their kind of legal career, comfortable but not lucrative, valuable but not demanding, is most visible in small-town practice, where neither courtroom stars nor corporate specialists were likely to be found, but it was common enough in the cities as well. At the end of the nineteenth century and extending into the twentieth century, only a few law firms in the largest centres had more than one or two partners. Most lawyers were solo practitioners or partnered with a relative or friend.33 Lawyers' careers remained sensitive to social and economic changes. Ontario's apparently seamless progress from an agricultural to an industrial economy, and from a mostly rural to a heavily urban society, obscures how threatening the rapid economic transition had been for many Ontarians, including lawyers. As southern Ontario ran out of cheap new land fit for wheat-growing, the 'wheat frontier' moved inexorably westward. The reorientation of rural Ontario to mixed commercial farming proved very profitable in the longer term, but many thousands of farmers' children found themselves unable to follow their parents' way of life. Rural Ontario exported many of its children to the cities in the late nineteenth century. Many others followed the farming frontier to the American Midwest or the Canadian North-West. With the Hudson's Bay Company lands acquired for Canada in 1869, with Native land treaties signed in the 1870s, and with Louis Kiel's Metis resistance overwhelmed (in 1870 and again in 1885), whole townships of southern Ontario's young people pulled up stakes and reproduced their communities on what had been Native and Metis territory.3^ Ontario's imperial progress into the west made lucrative work for Toronto corporate law firms representing national railways, merchandisers, and financiers. But individual lawyers also joined the westward migration. Leading Ontario lawyers, often Law Society benchers, played key roles in transplanting Ontario legal institutions to the west. Bencher Albert Norton Richards would have been the first attorney general of the North-West had he not been turned back by Riel's provisional government in 1869. Alexander Morris from Perth, Ontario, who became chief justice and then lieutenant-governor of Manitoba, helped impose an Ontario-derived legal system upon a province where both local custom and civil code practices from Quebec had contended for 158

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influence. Ontario benchers Edmund Burke Wood of Brantford and Lewis Wallbridge of Belleville, the next two chief justices of the new province, continued Ontario's influence on the Manitoba judiciary.^ Many Ontario lawyers went west to practise law. Ontario exported a dozen lawyers to Manitoba by 1878 and fifty-four more by 1888 (equivalent to about 7 per cent of Ontario calls to the bar in that decade, but forming a majority of the Manitoba bar at the time). Some had been well established in Ontario, like Thomas Wardlaw Taylor, a practitioner and Law Society lecturer, or David Glass, a bencher and mayor of London, who moved to Manitoba with his law-partner son in 1883. Albert E. Richards, son of former treasurer Stephen Richards, moved his practice from Brockville to Winnipeg and eventually became treasurer of the Law Society of Manitoba. John Skirving Ewart, grandson of the builder of Osgoode Hall and nephew of Oliver Mowat, moved his practice to Winnipeg in 1882 and soon became a bencher and editor of the Manitoba Law Reports. At least as often, however, emigrant lawyers were beginners looking for a foothold, like Colin Campbell, who in 1881 abandoned Port Perry, 'where everything is settled and it takes a long time to make that progress which ambitious young men are ambitious for/ Winnipeg fulfilled Campbell's ambitions; he built a leading practice, amassed a fortune, and became attorney general.^6 As Manitoba's capacity to absorb immigrant lawyers declined, Osgoode Hall graduates and restless practitioners went farther west. Aemilius Irving's son Paulus became an early judge on British Columbia's Supreme Court. Albert Norton Richards (brother to Stephen and uncle to Manitoba's Albert E.) went to British Columbia as its lieutenant-governor, but stayed on to practise law and serve as treasurer of the Law Society of British Columbia. Lyman Poore Duff left Fergus in 1894 to join several other Ontario lawyers practising in Victoria, British Columbia, where he launched the career that led him to the Supreme Court of Canada.3? For every well-connected lawyer moving in at the top of the new provinces, however, there were several seeking a fresh start. Alexander Rutherford gave up an unexceptional ten-year-old practice in Kemptville to try his luck in the North-West Territories; within a decade he was premier of the new province of Alberta. A New Profession, 1871-1914

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Lyman Duff, about the time the future Chief Justice of Canada left a smalltown law practice in Fergus, Ontario, for brighter prospects in Victoria, British Columbia.

Law cards of three Ontario firms in the late nineteenth century. 'Rat Portage* would soon be Kenora. 'Money to loan was then a common announcement on lawyers' business cards, A.C. Rutherford was soon to leave his firm and move westt where he rose to be premier of Alberta.

George Downes, after a dozen years struggling to build practices in Toronto, Stouffville, Guelph, and Palmerston, declared in 1903, 'I have the North-West fever/ and headed for Edmonton, where he was soon busy brokering southern-Ontario investments in western ventures, 'at good interest on safe investments, usually farm loans/ Several Ontario lawyers also followed the gold miners to the Klondike, where they became founders of the Yukon bar.38 John Ferguson described legal life in Kincardine around 1900 as 'fishing, tennis, pretty girls, and not much law/ until he proposed to marry the sister of Alexander Mackenzie, a local boy who had been taken into Blakes, had risen fast as a Lash protege, and spent several years running the Canadian investments in Brazil that became Brazilian Traction, later Brascan. Mackenzie insisted Ferguson had to make something of himself, and Ferguson headed for the newly founded village of Saskatoon in what was still the North-West Territories. With clients like the Bank of Commerce and MasseyHarris directed to him by his new brother-in-law, Ferguson and his partners (also migrants from Ontario) prospered as the new province of Saskatchewan grew, although Ferguson preferred horse-racing and investments over legal practice once he was well placed.^ In all the western jurisdictions, law societies began as voluntary associations of lawyers. They held no authority to call to the bar or govern the profession until they were well enough established to persuade the legislatures to transfer governing powers from the chief justice to themselves. In British Columbia, for instance, the Law Society was founded in 1869 and incorporated in 1874, but did not receive regulatory powers from the legislature until 1884. With Ontarians in at the founding of the legal professions throughout western Canada, the new governing bodies there bore distinctively Ontarian traits. All the western provinces and territories adopted the Ontario terminology of 'Law Society/ 'bencher/ 'treasurer/ and 'secretary/ and their governing bodies acquired powers and practices very similar to Ontario's. They soon diverged on many details, however, particularly on legal education, and by 160

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the early twentieth century, they were more innovative than Ontario on many professional matters. Ontarians' eagerness to migrate also helped ensure that lawyers faced few barriers to transferring between jurisdictions. In 1863 Judge Matthew Baillie Begbie's effort to keep all but 'duly educated' (i.e., English) barristers from practising in British Columbia was overruled, and national protests helped squelch protective moves in Manitoba in 1879. Within a few years, Ontario's Law Society agreed to admit lawyers called to the bar in the western provinces and territories, and reciprocity prevailed among the provinces until transfer fees began to create a barrier in the early twentieth century.40 Ontario lawyers were not looking only to the western provinces. Requests to the Law Society to assist new law associations in Timmins, Fort William, Rainy River, and Rat Portage (later Kenora) document the movement of lawyers into the north of the province. Ottawa beckoned as well. Since Confederation, there had been opportunities in legal work for the federal government, and (after 1875) in practice before the Supreme Court of Canada, where yet another of the Richards clan, William Buell Richards, became the first chief justice of Canada. Federal law began creating contact between provincial legal communities. Maritime lawyers, who had invaded the west along with their more numerous Ontario colleagues, were among the first to seize these national opportunities. Several Nova Scotian lawyers held key positions in the nineteenth-century Ministry of Justice in Ottawa, and the sons of Charles Tupper, who practised at various times in Nova Scotia, Ontario, Manitoba, and British Columbia, have been described as the country's first national law firm.41 Constitutional disputes between the new federal government and the new provinces made work for lawyers soon after Confederation. As the provincial-rights movement began to challenge John A. Macdonald's centralizing view of Confederation, Aemilius Irving and Edward Blake were among Premier Oliver Mowat's lawyers in seminal constitutional cases that pitted Ontario against the Dominion. Several of these went to the Judicial Committee of the Privy Council in London, including a late and minor one on the vexed question as to whether The Queen in Right of Ontario (that is, Oliver Mowat's government) or only The Queen in Right of Canada (Macdonald's) had the prerogative of A New Profession, 1871-1914

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creating Queen's Counsel. Mowat and his lawyers won that, as well as most of the other, more consequential cases that helped confirm the independent power of the provinces as partners rather than subordinates within Confederation. One influential theorist of the provincial-rights movement was David Mills, an Ontario journalist and Liberal politician who was also a lawyer and constitutional scholar. Though he was minister of justice under Laurier, it was in his legal writing and teaching that Mills most effectively undermined disallowance and other powers which enabled the federal government to intervene directly in provincial affairs. By helping to characterize these powers as arbitrary and hence illegitimate (despite their sanction in the British North America Act), Mills did much to provide philosophical and juridical underpinning for the political campaigns of Mowat and other provincial leaders who sought to curb Ottawa's power.^2 Mills was an example of a late-nineteenth-century generation of practitioner-scholars. The intellectual horizons of the law were expanding, but the day of the specialist legal academic had hardly arrived. John Skirving Ewart moved between work on a law text (which he hoped would make the arcane doctrine of estoppel into a cornerstone of modern law) and representing such clients as the Manitoba Catholics in the Manitoba Schools case. Augustus Lefroy, a grandson of John Beverley Robinson, wrote constitutional texts and taught law at the University of Toronto while maintaining a private practice. Even small-town lawyers, like Goderich's Malcolm Graeme Cameron, wrote legal texts on questions that interested them, and a small but thriving legal publishing industry had been operating in Toronto for some decades. It was, perhaps, another small sign of the professional ambitions of the turn-of-thecentury legal profession that liked to think of itself as learned as well as practical.^

THE LAW SCHOOL

In 1884 the gentlemanly tradition of the self-sufficient student of the law was alive and well in Lindsay, Ontario. Its epitome was Robert McLaughlin, who laboured at teaching himself the ageless principles of the law even as he learned the routines of a law office. McLaughlin, the orphan son of an unsuccessful bush farmer, had

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got himself through the local collegiate institute and taught school briefly before being accepted as a student by the Law Society in 1883. With the support of his uncle, an Anglican clergyman, he signed articles with a Lindsay lawyer, John McSneyd. McLaughlin's 1884 diary, begun three months after the start of his articles, evokes the Victorian seriousness with which a twenty-four-year-old country law student, boarding with his aunts, could lay the basis for a brighter, wider future in the law.44 A characteristic entry in McLaughlin's diary reads: 'spent day in office ... evening as usual studying law/ In the office, McLaughlin spent his time 'drawing chancery papers/ 'making bills of costs/ 'searching all the town for Nesbit's will/ 'doing a chattel mortgage and a lease/ and 'taking instruction re fee replevin suit (also cut some wood)/ He handled cases in the police court, observed divisional court and Chancery sessions, and kept the firm's accounts. McSneyd was frequently away arguing in court, making day trips to Toronto on the train, or attending on important clients at their homes. 'Spent the day writing duns/ McLaughlin wrote on 14 March, followed three days later by 'People are beginning to flock in in answer to my duns, invariably denying that they owed a cent.' McLaughlin himself had little money. He was probably not paid by McSneyd, but it was understood that as a student-at-law, he had been accepted among the town's leaders. When another local lawyer departed to practise elsewhere, McLaughlin attended a farewell banquet where 'there were about forty present of the elite of the town.' McLaughlin swam, canoed, and joined boating parties all summer, went sleighing and joined card parties in the winter, and flirted decorously with appropriate young women all year. Amid this busy public life, McLaughlin devoted himself to private study. Before breakfast, in th£ evenings, or when office work was slow, he worked through the legal classics: Anson on Contracts, Taylor's Equity, or Smith's Common Law. Partway through the year, he began studying with another law student, Robert Hall. 'Spent the evening with Hall, talking law and roaming the streets/ he wrote in June, and soon they were scheduling study sessions and setting exams for each other. McLaughlin also devoted anguished effort to the debates of the local Young Liberal Association. Struggling to make a case on the abolition of the

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Senate or whether legislators should pledge to follow their constituents1 wishes, McLaughlin honed the advocacy skills and command of public business a lawyer needed. McLaughlin's articles followed a routine Robert Baldwin would have recognized. Since after high school he never entered a classroom and never even 'kept terms' in Toronto, his legal education depended almost entirely on his own efforts. Yet the facilities for private and informal study that a small town like Lindsay offered seem to have been sufficient for a student inclined to teach himself. When he went to Toronto for the Law Society's final examinations in 1888, McLaughlin won the gold medal. He went on to build a successful practice in Lindsay and then in Toronto, and became wealthy as founder of a trust company. His son Hugh, a Law Society bencher from 1941 to 1972, succeeded him as head of the firm of McLaughlin, Macaulay and of Victoria Trust. Robert McLaughlin was among the last of the self-taught lawyers. Already, in 1880, a Toronto law student, Thomas Gorham, had used the experience of American judge and scholar Joseph Story to illustrate the frustrations of would-be lawyers daunted by the demands of private study. Story had written how, as a young student about 1800, he was instructed to master the ancient legal text called Coke on Littleton. 'After trying it day after day, I sat myself down and wept bitterly; my tears dropped upon the book and stained its pages,' said Story. Eighty years later, Gorham argued, the typical Toronto student found private reading just as unrewarding. 'What would a lecture, explaining those empty phrases, not be worth to him?' Gorham asked. He went on to demand that the benchers re-establish a law school which all law students would attend.45 Gorham was not immediately successful, but there were powerful forces on his side. Schooling was on the march everywhere. It was now university-level education that set the social and intellectual elite apart, and for lawyers not to have their own professional schooling suggested the profession might be accepting the secondrate. Elsewhere, the university was swiftly capturing important segments of legal education. In the United States, Christopher Langdell revitalized legal education in 1870, when he became dean of Harvard Law School and developed the three-year postgraduate LLB law program. Langdell declared that 'law, considered as a sci164 -

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ence, consists of certain principles or doctrines' which, he argued, could be deduced, not from textbooks, but from analysis of the leading cases. Here was the genesis of the case-study method of law teaching. Most American lawyers would continue to learn their trade far from the ivy league, but after Langdell a handful of university law schools, usually teaching by his case-study method, would produce virtually all the elite lawyers of the United States .46 The university soon became a cornerstone of legal education in much of Canada as well Lawyers in the other provinces had generally not emulated the Law Society of Upper Canada's early-nineteenth-century innovations in testing the qualifications of law students. Several decades later, as they began to consider organized classes in law, they turned to universities for help. Training in Quebec's civil law tradition had long been linked to academic study, and both Laval and McGill opened law schools in 1848. In the common law provinces, university-based legal education began in Nova Scotia. Nova Scotians, unlike their Ontario confreres, had begun attending American university law schools in significant numbers even before Langdell, and may have been predisposed to academic legal training when Dalhousie Law School opened in 1883 with a bequest from a wealthy benefactor. Initially, Dalhousie Law School had only one professor and a librarian. Most lectures were given by practitioners, and articling remained fundamental to legal training. Nevertheless, the principle that the preparation of lawyers should be entrusted to universities had been established. New Brunswick followed Nova Scotia's lead in 1892, with the foundation of a Saint John law school which was accredited by King's College of Windsor, Nova Scotia, though it was almost entirely practitioner-run. After these beginnings, the law professions of the Maritime provinces delegated increasing responsibility to the university law schools.4? In the west, many of the founding lawyers were Ontarians, but legal education did not long remain imitative of Ontario. As soon as western universities opened, they sought to build law faculties, and as early as 1885, the law degree of the University of Manitoba A New Profession, 1871-1914

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Until 1957, the Law Society held a monopoly on legal studies that led to a call to the bar, but even in the nineteenth century several Ontario universities taught law as an academic study.

entitled its holders to a two-year reduction in articles from the Law Society of Manitoba. Nova Scotian influences helped make Dalhousie Law School a model for legal education in Alberta and Saskatchewan, where a university LLB became the preferred route to a legal career by the first decades of the twentieth century. Only in British Columbia was cooperation between the law society and the university limited until after the Second World War, and that largely reflected the inability of the small, ill-funded University of British Columbia to press for more responsibility for legal education.48 Ontario's early educational achievements may actually have encouraged legal education in other provinces to move towards the universities, at least in the east. A Prince Edward Island lawyer worried in 1884 that 'Confederation and the Supreme Court of Canada bring our Maritime bars in contact with the lawyers of the upper provinces, and to hold their own, our young men require better legal training than can be got in an attorney's office/ It may have been true that the size and prosperity of the Ontario profession meant that the best of its office training could be superior to that available in Charlottetown. Few practices could have provided the opportunities the Blake firm or its Montreal and Toronto counterparts gave to a fortunate few, whether for constitutional law or corporate work. Nor was it feasible for the small legal communities and weak bar societies of the other provinces to offer elaborate lectures or even testing programs comparable to Ontario's. Within a few years of the founding of Dalhousie Law, however, some Nova Scotians felt more confident. In 1896, the school's first librarian, J.T. Bulmer, explained his efforts to form a national bar association by saying, 'there was not much use trying to raise the standard in Nova Scotia with the low averages all about us of New Brunswick, Prince Edward Island, Quebec and Ontario.'^ In Ontario, there had long been advocates of lecture programs in law as prominent as Hillyard Cameron, and many leading lawyers and influential benchers had close university affiliations as students, lecturers, and university governors. It is hard to show the late-nineteenth-century leaders of the profession in Ontario as antiuniversity or anti-learning. Yet Ontario stood aside from the increasing reliance on university law schools. The Law Society had cancelled a compulsory law lecture program in 1868 and a volun166

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tary one in 1876. Through the 1880s, examinations were once more the society's main contribution to legal education in Ontario. As in earlier times, a study club emerged to fill the void and to lobby for new initiatives. The Osgoode Hall Legal and Literary Society (OHLLS), founded in 1876 when the lecture program ended, was a students' society which organized study sessions and essay competitions. In effect, it was a larger version of the self-help society McLaughlin and Hall would create in Lindsay and in the lineage of earlier clubs, back to the Juvenile Advocates' Society of the 1820s. The benchers welcomed the new club, encouraged the founding of local versions around the province, and in 1880 instituted the annual gold medal which McLaughlin won at the bar exams of 1888. After a few years, they also reinstituted a lecture program, but one that conferred no credentials on those who attended and was entirely voluntary. Universities were free to teach law, of course, but the Law Society refused to give any official sanction to lawdegree programs in other institutions, and university law students received no special credits towards admission to practice. When, finally, the Law Society did opt for a teaching program, it chose not to turn to the university system, but to create its own law school.^0 In the 1880s, regional rivalries continued to be an obstacle to remaking legal education in Ontario. Lecture programs centred on Osgoode Hall had always caused resentment among country students and practitioners. If Osgoode Hall programs were voluntary, they gave Toronto students an advantage over others, and if compulsory, they forced country law students to travel to Toronto and deprived rural practitioners of their articling students. As a result, benchers from outside Toronto tended to be hostile to centralized education, and they had managed to kill all Osgoode-centred projects. Meanwhile benchers (particularly Toronto benchers) who favoured a unified law-teaching program effectively thwarted all attempts to accredit law-teaching programs run either by universities or by local law associations around the province.^1 Through the 1880s, the Legal and Literary Society campaigned for formal instruction in law, and the legal press took up the issue. In 1888 the Law Times tried to tweak Ontario's sense of competitiveness: 'Nova Scotia with its well-regulated and wellofficered Law School is as far ahead of Ontario in the practical education of lawyers as the province of Ontario is ahead of Nova A New Profession, 1871-1914

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When he failed an exam in 1881, law student J. Baldwin Hands gave examiner Joseph McDougall a letter that declared, Til come down handsomely if you let me through ... I have been promised a partnership here, and think of the result. Make it $100.'By making abject apologies, Hands escaped expulsion and was eventually called to the bar. He was disbarred on another matter in 1888.

Scotia in vanity and self-adulation/ While bencher committees and convocation as a whole continued to worry at the subject, the voices linking formal education with professional self-respect began to dominate, 'Apart from all questions of the practical usefulness of such courses of instruction/ the rival Canada Law Journal intoned, 'it must be obvious to all that the more scientific and the more intellectual a lawyer's training, the more keenly he will feel the noble nature of his profession when viewed aright, and the more impossible he will find it to stoop to any of these "tricks of the trade" which have sometimes in every country brought discredit and odium on its name.'^2 In fact it was by no means 'obvious to all' that classroom lecturing and ethical improvement were so directly linked, but the cause of unified professional education - or the voting power of Toronto's benchers - gradually won out.* The University of Toronto became the catalyst in 1888, when it invited the Law Society to cooperate in running the Faculty of Law which the university had recently decided to establish. The university suggested a four-year undergraduate program of lectures and articling, leading to an LLB and call to the bar. Uncertain how to react and still conscious of regional tensions, the Law Society sought opinions from all the province's universities about the Toronto proposal. The universities proved to be as divided about the nature of legal education as the profession itself. Some schools wanted the right to claim whatever Toronto received, but others were actually sceptical about vesting legal education in universities. Queen's University principal George Munro Grant, a leading educator of his day, argued vigorously that the universities' role should lie not in specialist law training but in offering its arts degree as the best preparation for legal studies. The Law Society can best assist a University by requiring university standing from candidates ... A University can best assist the Law Society by giving the most complete culture to those who intend to be candidates for the legal profession. Let each do its utmost to make improvements in its own department. '^3 Perhaps buoyed by Grant's encouragement, the benchers decided that the Ontario lawyers could indeed take charge of legal education on their own, and they founded a law school at Osgoode Hall in 1889. They had seized an opportunity almost unique to Ontario. 168

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The legal professions of the other provinces were too small, and their governing bodies too new, to be able to consider taking on the burden of managing a law school. In the United States, there were no governing bodies on the Canadian model, and education in law already ranged from prestigious Harvard to obscure commercial law colleges. Only in Ontario was there a wealthy and confident governing body, a large and prosperous profession paying mandatory fees, and a building like Osgoode Hall, intended since its beginning to be a legal seminary. The existence of Osgoode Hall was a vital factor in making classroom legal education under Law Society auspices possible, and the benchers chose to exploit that possibility. Throughout North America in the late nineteenth century, the new ideas of professionalism supported arguments that lawyers needed a more formal and more 'scientific' education. Almost everywhere, this led to close cooperation with universities, and universities gradually made the three-year LLB degree program the professional norm. But the remade professions of the late nineteenth century cherished autonomy as much as learnedness, and the belief that lawyers should also be scholars was old but far from extinct. In Ontario, where the profession had the resources to pursue its own initiatives in legal education, running its own school could be an opportunity for professional pride, not embarrassment. The Law Society founded its own law school, not out of hostility to universities, 'but to maintain the legal profession's autonomy over legal education and to justify its claim to general professional autonomy.'^ The law school at Osgoode Hall opened its doors and began its lectures in October 1889, and in succeeding years the complete three-year program was implemented, except that first year remained optional for non-Toronto students through the 1890s. Those who began legal studies with a university degree needed only three years under articles, and so they attended the school throughout their time as law students. Those without a degree, however, needed five years of apprenticeship, and they did two years of office work before coming to Osgoode Hall. Attendance for a couple of hours a day, September through April, with the rest of the day devoted to office work, was now an obligatory prerequisite to admission to the pracA New Profession, 1871-1914

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A large audience, attended the law school mock trial, 'Montmorency v Collins,' in Convocation Hall in February 1897. Costumed students played all the parts, including the female witness being sworn and the judge, who here wears a wig (although Canadian judges never did).

In 1871 the library committee gave eloquent expression to a perennial complaint: 'It is a source of great regret that many books are abstracted from the library under circumstances that preclude the idea of accident or inadvertence ... a practice which casts disgrace on the profession as well as involving unnecessary expense.'

tice of law (though in the first years large numbers of exemptions seem to have been given to out-of-town students; in 1891 only 161 of some 600 law students were in attendance at Osgoode Hall).55 From the start, Osgoode Hall offered a 'black-letter1 law curriculum intended less to encourage free-wheeling academic inquiry than to bring new generations of law students into the established tradition. The school soon acquired a library, through a bequest from Thomas Phillips Stewart, a lawyer who died at age twenty-six in 1892, but it was hardly an academic library collection. After three decades, the student collection consisted only of a few thousand volumes transferred from the Great Library, which itself, despite its name, was a practitioners1 library rapidly being dwarfed by the expanding law libraries of the elite American universities.* The texts on which the staff lectured were essentially the same ones over which Robert McLaughlin had laboured in Lindsay.56 Ontario's legal profession built its new law school almost entirely from its own resources. The founding principal of Osgoode Hall was William A. Reeve, a familiar Law Society lecturer and examiner who had also practised in Kingston, Napanee, and Toronto. The part-time staff were also practitioners, distinguished more by their connection to powerful Toronto firms than by their academic credentials. The staff, in fact, were closely supervised by the legal education committee. Within a few years, lecturer Douglas Armour (who was also the founding editor of the Law Times) was complaining in print about the insecure tenure of staff appointments, and students continued to be tested, not by the faculty, but by the law society's established examiners. Reeve was principal of the law school, but the legal education committee was its collective dean, determining all significant matters of school discipline, curriculum, and policy. Principal Reeve studied the innovations in law teaching being introduced in the American universities. He professed himself intrigued by Harvard's case-study method and stressed the need for a large scholarly library collection. But there is little sign that he tried to implement such ideas at Osgoode Hall - or that he could have persuaded the benchers to support them. In any case, his term as principal was brief, for he died suddenly in 1894, aged just fiftytwo. Convocation passed over lecturer John King (father of the future prime minister Mackenzie King) and appointed Newman 170

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Hoyles of the prestigious Moss, Hoyles & Aylesworth firm as the second principal.5? Hoyles expressed no wish to reform the Osgoode curriculum. After a tour of American universities in 1895-6, he praised the debate and dialogue which Harvard's case method produced, but he doubted it was best suited 'for making ordinary students into sound lawyers/ This was a significant point. In the stratified American legal system, Harvard could impose high standards (and high fees) in order to specialize in producing elite lawyers for the very top of the American law profession. Osgoode Hall, however, took all the law students of Ontario, training farm boys straight out of high school who would run small-town law offices as well as the favoured and educated few who would join the top firms and inherit their wealth and influence. Unless all students were of equally high calibre, Hoyles argued, the case-study method degenerated into 'a discussion between the lecturer and a select few ... from which only the participants can derive any special benefit.' According to Hoyles, in other words, eschewing Harvard's lofty academic aspirations was a realistic adaptation both to Ontario conditions and to what the Law Society would approve.58 The law school which started in 1889 did not directly impose a class barrier that would lock law more tightly into the hands of a favoured elite. The doorway to the profession remained open to high school graduates, and farmers' sons and country schoolteachers continued to enter. Becoming a lawyer probably became more expensive and more daunting, however, since it required significant tuition fees and three years in Toronto. Before the law school opened, only about a quarter of those who began legal studies held a university degree. Within a few years, half did. The growth of the profession slowed noticeably in the decades following the opening of the law school. Calls to the bar fell steadily from 1895 to 1910. Between 1881 and 1891 the Ontario profession had grown by 25 per cent. In the next decade, the growth rate was 17 per cent, still ahead of population growth in the province, but between 1901 and 1911, while the province grew rapidly, the lawyer population of Ontario actually contracted by 7 per cent. Growth resumed after the First World War, but between 1881 and 1921 the ratio of lawyers to population would hardly change.5^ Until the law school opened, the only significant controls on A New Profession, 1871-1914

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Newman Hoyles, law school principal from 1894 to 1923, believed a broad liberal arts education should precede practical training in the law. 'Remarkable is the unanimity with which leading railwaymen, bankers, and heads of the great Trust Companies insist on the disciplinary value of the classical study, and its practical value in developing character, resourcefulness, and the art of handling men,' he declared in 1918.

A gentlemanly law students' club before it became the student society of the law school, the Osgoode Hall Legal and Literary Society held an elegant dinner in 1893.

entry to the profession had been students' ability to carry the cost of articling and lawyers' willingness to take on articling students. After 1889, however, the new school's tuition fees and the obligation on non-Toronto students to support themselves in the city may have deterred some of the less well-to-do from seeking legal careers. And the declining number of new lawyers must also have been linked to a shrinking number of articling positions. By concentrating most law students in Toronto, where they were of no assistance to non-Toronto lawyers during most of the year, the law school may have deterred country lawyers from taking on students. The number of law offices in small rural communities shrank rapidly after 1900. Possibly, lowpaid secretaries with typewriters replaced unpaid articling students in more law offices, while marginal branch-office practices, once staffed by articling students, simply vanished. Until Toronto's legal population expanded (it increased from 23 per cent to 40 per cent of Ontario lawyers between 1870 and 1920), there would not be enough Toronto articling places to make up the shortfall. The shrinking of the profession went largely unnoticed and undiscussed either at the Law Society or in the legal press, but centralization of education may have been a significant contributing factor.60 Students at Osgoode Hall seem to have had school spirit even before there was a school. The Legal and Literary Society, after 1901 the official student society of the new law school, had expanded well beyond study sessions. It began to organize quarterly and annual dinners in 1884. In 1886 it founded a lawn tennis club on the west lawns of Osgoode Hall. Soon after the law school opened, the society began to host 'at homes' and 'musical-literary evenings' several times a year. All through the 1890s it urged the benchers to provide a gymnasium and athletic club on the Osgoode grounds. And in 1895 it offended them by permitting liquor to be 'introduced and consumed' at a Legal and Literary Society debate at Osgoode Hall.61 172

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The school's most startling successes were in sport. The school's black-and-white-uniformed football team, called 'the legals' or 'the legal cracks/ joined the Ontario Rugby Football League in 1891 and promptly dominated it. They had an undefeated season, beating the University of Toronto for the Ontario championship and going on to Montreal in November to win the Canadian rugby football championship for 1891. The next year they were again Ontario and Canadian rugby football champions, almost twenty years before Governor General Grey donated the cup named for him as the emblem of the championship. In less successful seasons that followed, their opponents included the Toronto Argonauts, the Ottawa Rough Riders, and the Hamilton Tigers. The Osgoode Hall hockey team was equally impressive. Osgoode helped found the Ontario Hockey Association in 1890 Duringthe 1890s, Osgoode Hall's rugby teams won national championships in games against the ancestors of the Toronto Argonauts and Hamilton Tiger-Cats.

and the College Hockey Union in 1894. The Legalites were Ontario champions in 1892 and 1894, and might have challenged the Quebec champions for the Stanley Cup had arrangements been completed before the ice melted.62 Osgoode Hall's football and hockey teams ceased to compete in organized leagues after 1898, and extracurricular activities in genA New Profession, 1871-1914

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One 1898 graduate was James Wilson Morrice, who never practised law but went immediately to Europe to launch his career as an artist. Forty years later, Morley Callaghan left Osgoode Hall and the law for Europe and a literary career. Despite such artistic alumni, evocations of Osgoode Hall in art and literature are very scarce.

eral seem to have dwindled rapidly. Students were much more strongly bound to the offices where they articled than to Osgoode Hall, where they spent only a couple of hours a day. In any case, the early achievements of the OHLLS may have owed less to the law school itself than to the sociability of society youth of the late nineteenth century. As an elite private club, the OHLLS had preceded the law school, but its clublike activities faded as the 'Legal and Lit' became the umbrella for all student activities. By 1905 Principal Hoyles was asking convocation to provide a student common room, 'something like a club for men/ to provide a gathering place for law students living in cramped boarding-houses without sitting-rooms. Even leaving aside the women students, as Hoyles clearly did, these boarding-house law students were worlds apart from, for instance, the wealthy law-student friends of 'Lally' McCarthy, son of lawyer, bencher, and politician D'Alton McCarthy and an early Osgoode Hall graduate, whose reminiscences of youth featured debutante parties, riding to hounds, and trips to Europe. Though it continued to function, the OHLLS could not overcome both the social chasms and the workplace demands that impeded the development of school spirit in the law school classes.^ In its early decades, the law school was not entirely accepted as a permanent part of Law Society activities. The only critical opinion in John Cleland Hamilton's nostalgic, sentimental, 1904 memoir, Osgoode Hall: Reminiscences of the Bench and Bar, was his suggestion that it was time to turn legal education over to the University of Toronto.* An equally bland survey of legal education in the Canadian Law Review of 1905 saluted the law school as a 'splendid' institution, but proposed its affiliation with the university, since 'the Law Society cannot expect to compete for any length of time with the provincial university.' The university itself frequently expressed interest in closer cooperation, often with the support of prominent lawyers, and even Osgoode Hall faculty.64 Nevertheless, 'Daddy' Hoyles, like treasurer Aemilius Irving and long-time librarian George Eakins, who died in office in 1914, became one of the permanent fixtures at Osgoode Hall, retiring only in 1923, when he was almost eighty. His law school long survived him. Convocation did not find the administration of a school burdensome, particularly after a series of steep fee increases around

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1905 ensured that tuition fees covered the full cost of the school. (Students' admission and call fees, charged separately, continued to be a large additional source of Law Society general revenue.) Above all, benchers continued to defend the practice-oriented legal education Hoyles's law school provided. It had been a conservative form of education when it began, and before Hoyles retired, the three-year, full-time, academic LLB program, already in use in Nova Scotia and the United States in 1889, had been endorsed by western law societies and the fledgling Canadian Bar Association. The longer the Osgoode Hall model of a lawyer-run law school survived, however, the more strongly the Law Society defended it against criticism or change.

In December 1896 the Law Society considered its approaching centenary and recommended that a memorial volume, 'giving a short historical account of the society and its members/ should be prepared. Had this centenary history, the first in a long series of abortive Law Society history projects, been written, David Breakenridge Read might well have been the author. Read, a lawyer retired from practice and from three decades as a bencher, had taken up the history of Ontario and its lawyers some years before. For his first book, The Lives of the Judges of Upper Canada and Ontario, published in 1888, Read adopted a traditional form, honouring the profession by honouring its leaders. The Law Society frequently presented Lives of the Judges as a gift and prize volume. Read on legal history was at once traditional and progressive. Osgoode Hall, he wrote proudly, 'has none of that ancient grandeur of the old Law Courts at Westminster Hall, but possesses a native freshness appropriate to a new country/ No foe of innovation, he declared approvingly in 1888 that the Law Society was about to transfer legal education to the University of Toronto. (It was not.) He celebrated all the judges as giants, yet he was proud of how the law and the legal profession had progressed in Ontario. There were few conflicts and no ruptures in his history. His modern professional lawyers of the 1890s stood serenely upon the foundations of the gentlemen barristers of the 1790s. For Read, the informal codes of gentlemanly behaviour and the rules of modern professional

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A PLACE FOR WOMEN AND MINORITIES?

qualification had meshed together and coexisted harmoniously.6^ The same sitting of convocation that considered a centenary history also ratified the last decision of more than five years of struggle and resistance to change. The Law Society that day gave final acceptance to the arrangements for Clara Brett Martin to be called to the bar. Martin became the first woman barrister not only in Ontario but anywhere under the British Crown. Her demand to be accepted into the community of lawyers had posed in the most direct way the question of whether the emerging world of professionals, who claimed to be certified and qualified on the basis of their expertise, truly was open to those who would not qualify under the old gentlemanly criteria.66 Class, rather than gender, had been the disputed boundary of gentlemanly status for most of the nineteenth century. Early on, by setting educational criteria and formal examinations as the crucial hurdle, the Law Society had declared itself open to applicants of little wealth and no social prominence as potential gentlemen and law students - if they could pass the entrance exams, survive several years without significant income, and find a lawyer willing to accept their articles. The last of these three items was the crucial one. As the experience of several of the early lawyers from the cultural and racial minorities of Ontario demonstrated, it was the profession itself, not the Law Society, which made the decisions as to who would make an appropriate law student. The vast majority of nineteenth-century Ontario lawyers were English, Scots, or Irish in origin and Protestant in religion, and they tended to take in students of their own class and kind. But from the start there had been heterogeneous elements in Upper Canadian legal society: Scots Catholic Angus Macdonell, Dutch-American Nicholas Hagerman, and Franco-Ontarian Charles Baby were early examples. Throughout the nineteenth century, successful families from outside the Anglo-Protestant mainstream were occasionally able to find articling positions for sons inclined to the law. As a result, a few German-Canadian lawyers joined leading firms in heavily German-speaking Berlin (later Kitchener) in the second half of the nineteenth century. By that time, there was also a significant francophone bar in Ottawa and eastern Ontario, with notable figures such as Napoleon Belcourt and Joseph Valin standing among the founders of the Carleton County Law Association in 176

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1888. As with the Irish and the Scots, the first entrants among these lawyers had had to win the acceptance of and find an articling principal among the Anglo-Protestant mainstream, but frequently they found clients - and took their articling students - from their own communities.^^ The first black Ontarian called to the bar apparently crossed both the formal and informal barriers to the profession with relative ease. Robert Sutherland had a most unusual background for a nineteenth-century black Ontarian. Born in Jamaica, probably of a white father, he was sent in 1849 to study at the newly founded Queen's University in Kingston and graduated with double honours in 1852. That same year, he passed the Law Society entrance exam and found an articling principal. Where and with whom he articled is not known, but for part of his time as a law student, he lived in rented chambers at Osgoode Hall. Sutherland was called to the bar in 1855 without any mention of his race ever having been made in Law Society records. Despite his academic distinction, Sutherland practised outside the mainstream legal community. He opened a practice in the small Bruce County town of Walkerton, which in the late nineteenth century had a significant black population, mostly refugees from American slavery, and he is known to have faced racist abuse during his lifetime. Sutherland died of pneumonia, aged just forty-eight, in 1878, leaving his estate to Queen's.^ It is not known if Sutherland ever had students under articles, and the second black lawyer to practise in Ontario may never have known of him. Born in Maryland in 1846, Delos Rogest Davis had come to Canada with his refugee slave parents and grew up in black communities in south-western Ontario, where he began studying law in 1871 while teaching school. He was commissioned a notary public, but he had none of the educational or social advantages of Sutherland, and he could find no lawyer who would accept him as an articling student. Finally, after eleven years, Davis petitioned the Ontario legislature, declaring 'that in consequence of prejudices against his colour and because of his being of African descent he has not articled to any attorney or solicitor, or served any articles.' The Law Society, given notice of a bill which would authorize Davis to sign the solicitors' roll if he passed the usual exam and paid the fees, protested (as it almost always did) against the legislature's usurpation of its function. It urged that all such petitioners seeking A New Profession, 1871-1914

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Delos Rogest Davis, a southwestern Ontario teacher and one of the first black lawyers in Canada, became a lawyer with the help of the Ontario legislature.

special admission to the practice of law - Davis was one of two that session - should be referred to the Law Society. But the bill passed. Davis wrote the society's exam and became a solicitor in the spring of!885.69 In 1886, Davis returned to the legislature, asking to be called as a barrister. This time the Law Society reacted more vigorously. Treasurer Edward Blake was in a delicate position. As leader of the Liberal opposition in Ottawa, Blake was the leader of the Ontario reform tradition, which in his youth, under the leadership of George Brown, had been a powerful force against slavery and in support of black refugees. Now the society of which Blake was treasurer stood publicly accused of condoning discrimination against one of them. Blake personally drafted convocation's counterpetition to the legislature. He indicated that the Law Society had been unaware of the difficulties which had led to Davis's initial petition in 1884. Noting the bigotry that had prevented Davis from serving articles in the usual fashion, Blake wrote 'that Convocation trusts that it is unnecessary to declare that it has no sympathy whatever with any such unworthy prejudices and would have been ready, had the facts been presented to it, to do anything in its power to relieve Mr. Davis from any inconveniences which he might be shown to be sustaining by reason thereof/ He went on to insist that, in any case, Davis as a duly enrolled solicitor was now entitled to write the barristers' exam at any time and that he had no need of a legislative act. In seeking the second piece of legislation, he declared, Davis was simply 'under a misconception.'^ Blake was surely protesting too much regarding Davis's inability to find an articling principal. As a nineteenth-century liberal, Blake believed in equality before the law. Still, the Law Society had always hewed to the black-letter wording of its rules. Nothing in the history of the Law Society suggests it went out seeking injustices it might remedy by special action, or that a black school teacher and would-be law student in Amherstburg should have presumed 178

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that the distant and austere Law Society would reach out to help him when not a single lawyer would. Beyond setting its exam (and fees), the Law Society seems to have been passive about who entered the profession, neither objecting to anyone who had found an articling principal, nor assisting anyone who had been screened out by that process. It was finding articles, not Law Society acceptance, that formed the crucial barrier to the profession. Once Blake had registered his protest, Davis got his bill, but he also passed the barristers' exams (as Blake said he had been free to do all along) and was called to the bar in November 1886, aged thirty-nine. Delos Davis went on to a successful practice in criminal and municipal law in south-western Ontario. He served as town and county solicitor, held municipal office, and became a King's Counsel in 1910. He also prepared the way for the next black lawyer in Ontario, his son Frederick, who articled with him, was called to the bar in 1900, and became his law partner. It was 1926 before another black Ontarian became a lawyer.71 The experience of the early Jewish lawyers of Ontario also suggests how important social standing was in overcoming ethnic and racial prejudice. Early Jewish lawyers were Canadian-born and highly educated, and they tended to article in establishment firms. Samuel King, one of the earliest Jewish lawyers in Ontario, was born in Whitby and attended the University of Toronto before studying law.* Called to the bar in 1891, King practised with his younger brother, Oscar, in a downtown firm, became a King's Counsel, and was a member of the Royal Canadian Yacht Club and other elite clubs (as well as Holy Blossom Temple). In 1963, when he was ninety-six, his secretary informed the Law Society that he was not actively practising 'but a trust account is kept for the odd mortgage payment still made through him.'72 Another early Jewish lawyer, Lionel Davis, called to the bar in 1907, practised with one of the leading establishment firms, Beatty, Blackstock, Fasken, before opening his own practice. Davis was described at his death in 1943 as a member of one of Toronto's oldest Jewish families. He had inherited the presidency of the family business, Henry Davis Company Ltd, but he maintained a law practice, appeared before the Judicial Committee of the Privy Council, and was renowned for his pro bono work. Arthur Cohen, also Toronto-born, earned two University of Toronto degrees before A New Profession, 1871-1914

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Isidore Hellmuth, called to the bar in 1877 and a bencher from 1916 until 1944, was of Jewish ancestry, but his father, a convert, was an Anglican bishop.

graduating as Osgoode HalPs gold medallist in 1906. Cohen practised with C.H. Ritchie and Michael H. Ludwig, one a bencher and the other a future treasurer, and in 1909 he was appointed one of the examiners at Osgoode Hall Law School Benjamin Luxenberg was one of the few early Jewish lawyers without a university degree, but he articled (between 1913 and 1918) with bencher and Laurier cabinet minister Sir Allen Aylesworth, who had first hired him as an office boy.73 Early Jewish lawyers certainly faced genteel as well as undisguised anti-Semitism. In 1912 the Toronto Telegram, noting two names 'from the ancient race of the twelve tribes' in the first year class at Osgoode Hall, ranked them last in social precedence while predicting they would rank first when the exam results were posted. The early-twentieth-century concern about the impact upon the legal profession of immigrants 'whose traditions and surroundings have not been similar to those of our own and the Motherland' surely included coded anti-Semitism. But the first Jews, entering the profession when the Jewish population in Canada was still very small, were assisted by their membership in an assimilated elite and probably also by the self-conscious liberalism of some elite practitioners.74 The entry into the profession of these comparatively assimilated, educated, and well-to-do Jews did not provoke the resistance that the children of Yiddish-speaking, Eastern European rag dealers and scrap merchants would later have to contend against. Jews of that class did not become lawyers at all in the decades before the First World War, and they would face enormous difficulty in subsequent decades. As with other minorities, however, the elite pioneers became a lifeline for later arrivals. Cohen and Luxenberg were particularly remembered for having providing articling positions to a younger generation of Jews shunned by the profession at large. Having been accepted by non-Jews as eligible to enter the legal profession, they could provide the same recognition to younger Jews who lacked their advantages.75 It was women, however, who posed the challenge most acutely. If they could pass the tests and meet the rules, could the Law Society accept them into the profession? Women, unlike minority men, faced a barrier at the Law Society itself.

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Osgoode Hall had long been one of the most exclusively male precincts in Ontario. Law in the nineteenth century was 'an almost perfect example of a formally patriarchal institution,' and the legal profession was no exception. In the older tradition, lawyers had to be gentlemen because gentlemen were independent, and independence was male, just as dependence and domesticity were female. As long as lawyers had to be gentlemen above all, few women ever had reason to enter the grounds of Osgoode Hall. Except for a few female servants early in the century and the wives and daughters invited on rare social occasions, almost none did. Indeed, a legend survives that the function of the famous fence and cow-gates was to prevent young women in hoop skirts from entering to pursue eligible young lawyers through the grounds.76 Clara Brett Martin, who challenged the all-male tradition of the law head-on, came from a farming family recently immigrated from Ireland, and (like all her eleven siblings) she attended university at a time when very few Canadians (and fewer Canadian women) did. She majored in mathematics at the University of Toronto and graduated in 1890. In May 1891, while working as a teacher, she applied for acceptance as a student member of the Law Society. The Law Society rejected her application.77 The rejection was formal, considered, and widely covered in the press. Convocation had referred Martin's application to a special committee, charged with considering whether the society had the authority to accept a woman applicant. Samuel Blake, who chaired the committee, reported a long tradition of English and American jurisprudence declaring that legislation referring to 'persons' did not intend women to be included under that heading. He advised that the Law Society Act, which set the criteria for 'persons' seeking to enter the profession, did not permit the society to accept women as members. After the summer break, convocation accepted this report and advised Martin to abandon her ambitions.78 Clara Brett Martin's extraordinary achievement was to overcome this ruling. Courts across Canada would support the restric-

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Clara Brett Martin overcame the resistance of the courts, the Law Society, and many lawyers to become Canada's first woman lawyer.

tive interpretation of the word 'persons' for nearly forty more years, until the Judicial Committee of the Privy Council overturned it in 1929. But Martin never approached the courts. She assembled a coalition for political action that ranged from women's suffrage groups to Premier Mowat himself. W.D. Balfour, the politician who in 1884 and 1886 had introduced the bills that assisted Delos Davis's entry to the profession, and a female suffrage supporter, introduced legislation that would have compelled the Law Society to treat women like other persons when they applied to become barristers and solicitors. The bill passed, but only by a narrow margin, and only after the legislators restricted it to admission as a solicitor and merely allowing (rather than compelling) the Law Society to admit women. Passage of the modified bill obliged convocation to discuss whether it believed women should be lawyers.^ Clara Brett Martin's application presumed that the old 'Georgian' notion of professionalism had or should be laid to rest, that the professions were communities of competence, based on expertise defined by testable criteria and that if women were capable of passing the tests and meeting the criteria, old beliefs about male prerogatives and women's spheres should have no influence. The debates in convocation demonstrated both the inroads the new image of lawyers had made, and the survival of the old tradition. Notions of professionalism were still shot through with notions of gender. In September 1892, convocation voted it was 'inexpedient' for it to exercise its new power to admit women as solicitors.8^ Once more Oliver Mowat intervened decisively in Law Society affairs. In 1889, Mowat had helped defeat a bill that would have given women the vote in Ontario, but he was ready to burnish his progressive credentials at the expense of his old colleagues in convocation. A bencher ex officio as Ontario's attorney general, Premier Mowat attended convocation on 9 December 1892 and personally moved a resolution for the admission of women. As historian Constance Backhouse has noted, the vote that followed split family members, law partners, and political confreres. 'J.K. Kerr voted against Samuel Blake, his brother-in-law, and against Clara Brett Martin. Britton Bath Osier voted with John Hoskin, his law partner, in favour of Clara Brett Martin ... D'Alton McCarthy, partner to both Osier and Hoskin, voted against. Alexander Bruce and George 182

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Ferguson Shepley, both long-time Liberals, voted against Sir Oliver Mowat, their party leader. The final count would show that eleven benchers had voted against Clara Brett Martin and twelve for her/ Clara Brett Martin was entered on the books as a student-at-law on 26 June 1893.81 Two years later, when Clara Brett Martin persuaded the legislature to permit the Law Society to admit women as barristers, the process repeated itself, with a recalcitrant Law Society, prodded by Premier Mowat's personal intervention, eventually conceding on 14 September 1896. Martin was called to the Ontario bar on 2 February 1897.82 Clara Brett Martin's victories demonstrated that new, meritocratic, qualification-based definitions of the legal profession had helped create a space in which women as lawyers had become conceivable to significant and influential sections of the legal community. Martin had advantages similar to most of the first Jews to become lawyers (and unlike them, she shared the pervasive antiSemitism of Anglo-Protestant society).* She was a university graduate of respectable family background, and leading establishment lawyers, either from personal connections or on principle, were willing to endorse Oliver Mowat's opinion that women could become lawyers and even to sign her articles. Martin articled first with William Mulock, whose daughter was a college friend of Martin's, and then with Samuel Blake. But the debate in the Law Society and the legal community also showed how powerful were gendered notions of women's sphere and women's work, even in the developing environment of modern professionalism. It had taken extraordinary pressure to muster majorities in support of her applications to convocation, and many influential benchers had been intransigently opposed. 'Nature intended women should occupy a different position to men in the community,' said bencher and politician William Meredith in the legislature, and giving them the right to practise law would be 'disastrous to their best interests.' Much of the legal press mocked the idea of women's practising law. Martin found that among her fellow students, 'I was looked on as an interloper, if not a curiosity,' and newspapers emphasized the absurdity of a woman's trying to dress and behave like a lawyer.8^ The Law Society's hard-fought concession to Clara Brett A New Profession, 1871-1914

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* In 1989 the discovery of a strongly anti-Semitic letter, written by Clara Brett Martin to the Department of the Attorney General in 1915, led the department to cancel plans to name its new office building after her.

Martin meant that after 1896 it treated women much as it treated members of minority communities who had sought entry to the legal profession; that is, it neither blocked nor facilitated their entry, but allowed its members to judge the suitability of individual applicants. Securing articles, rather than Law Society acceptance, became the vital hurdle for women that it had always been for men. Eva Maude Powley, who would be the second woman called to the bar, was admitted as a student in 1895. In the following decades, small numbers of unusually determined or wellplaced women were able to follow in Martin's path, sometimes actually articling with her. Nevertheless, most women continued to face special disadvantages. Black, Jewish, French-Canadian, or German men who became lawyers could hope that their own communities could become a source of clients, and they often drew their articling students from the same community. Once a few elite members gained entry, minority lawyers could hope to expand their numbers along with the growth of their communities. Women lawyers could not rely on women clients, however, for there were few women running businesses or even making household decisions about hiring lawyers' services, at least until the second half of the twentieth century, when divorce law, family law, and legal aid funding generated 'women's law' business. The belief that the professions were not appropriate places for women remained deeply engrained, and for almost three-quarters of a century, women would remain less than 5 per cent of Ontario's lawyers. In 1913, treasurer Aemilius Irving was ninety years old. Until the very end of his life, Irving seems to have run the business of the society himself, often with an autocratic hand. In 1907, he personally secured the abject apologies of a law reporter who had failed to attend a court session. Even admirers agreed he was an intimidating figure, and Law Society secretaries began to come and go rapidly. Wellington Ault Cameron, a well-connected young lawyer hired in 1909, left within a year to join 'one of the leading firms in the city' (McCarthy and Osier), and his successor, Duncan Donald, stayed less than two years before joining a bank.8^ Sir Aemilius Irving represented the most modern part of the nineteenth century. Irving had been a trail-breaker in his day, a 184

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model of the new lawyer as corporate adviser and governmental confidant. He had been progressive as well, advocating the end of the Supreme Court appeals to Britain in 1875, and casting a tiebreaking vote in favour of the admission of women in 1892. Yet he had never suffered for his innovations and had risen smoothly to hold the most prestigious office of the profession for longer than anyone in its history. Like its treasurer, the Law Society had also managed to adopt much of what was modern about the late nineteenth century. Between 1870 and 1900, it had developed new and modern structures of governance. It had begun to work out an innovative new disciplinary regime, and it had launched an ambitious and strikingly independent program of legal education. Without ever repudiating anything in its past or breaking from traditions it liked to trace back to distant English origins, the Law Society had made significant strides into the modern professionalism of the late nineteenth century. By the end of Irving's life, that readiness to innovate had largely ceased. It has been said that in Ontario the twentieth century hardly started until 1945, and for the first half of the twentieth century, the Law Society would mostly strive to preserve the state of modernity it had achieved in the late nineteenth, in Aemilius Irving's day. In May 1913, just when it seemed that that day might last forever, Irving admitted that 'the weight of his many years was beginning to tell on him' and proposed to retire. The benchers, however, insisting on retaining the 'prestige of his name,' re-elected him. He attended only one more convocation, and died, still treasurer, in November 1913. The Law Society organized a monumental funeral from Osgoode Hall, modelled on the one for John Hillyard Cameron in 1876.8^

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CHAPTER FOUR

The Last Patricians, 1914-1950

'We looked to the Law Society as, although small in number, a huge giant overlooking us and we had to toe the line in every respect... Young as we were, and graduates of a university, and the law school, we looked at the Law Society with some awe and the Benchers as being beings on High and to be looked at with admiration and respect and dignity, and they were very dignified gentlemen/

- bencher Nathan Strauss on his idea of the Law Society in the 1930s

WHEN THE FIRST WORLD WAR BEGAN IN August 1914, the Law Society reacted as English-speaking Canada did, with a 'ready, aye, ready' enthusiasm for the cause. Militia service had been fashionable in the peaceable Victorian years, and lawyers from socially prominent families - or seeking entry to that milieu - often held militia commissions. When war came, the amateur soldiers mobilized as speedily as their predecessors had done in 1812. The Law Society's former secretary Duncan Donald, an officer of the 48th Highland Regiment since its formation in 1891, immediately took command of a battalion of the Canadian Expeditionary Force. Malcolm Mercer, another Toronto lawyer and long-service militia soldier, was promoted to brigadier-general and given command of the whole Ontario contingent. Younger lawyers with militia connections were to be found throughout the more junior ranks of Canada's First Contingent, which sailed for Europe in October 1914, and went into the front line in March 1915. Soon after, the Law Society recorded its first death in action: Captain

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EDWARDIANS AT WAR On the hundredth anniversary of Osgoode Hall in 1932, the benchers entertained Prime Minister R.B. Bennett with all the formal elegance of the Law Society at its most prosperous and patrician.

Walter Lockhart Gordon, who had been called to the bar the previous year.1 Before the end of August 1914, Holford Ardagh and other Toronto lawyers had formed the Osgoode Hall Rifle Association to train lawyers, clerks, and law students without previous military experience. Most of the Rifle Association's training went on at the armouries just behind Osgoode Hall or at other military installations, but the association also set up a rifle range on the Osgoode Hall grounds, and the Law Society paid for rifles and ammunition and provided Convocation Hall for military lectures. Hundreds of lawyers and students received enough military training through the Rifle Association to be commissioned into the regiments being raised throughout the province.2 The Law Society's early responses to the war were conditioned by the widespread expectation of a short, heroic struggle and a quick victory. Early in 1915 the benchers ruled that any student who served overseas would be credited with having passed the year in which he had enrolled. This followed a precedent from 1885, when law students who served for a few months in the expedition against Louis RiePs North-West Rebellion were treated as if their articles had not been interrupted. Still, it was a bold break from the traditionally scrupulous adherence to the letter of the admission rules, and it would have important effects on the wartime generation of students. The society also committed its money to the struggle. Immediately after the outbreak of war, it contributed $10,000 to the Canadian Patriotic Fund, and in the years which followed there were further donations to the fund, to the Red Cross, and to charities such as 'Belgian Lawyers' Relief.' By 1917, the society had invested $70,000 in Canadian war loans.^ In the early years of the war, the record suggests excitement and resolve. Rifle Association service or, indeed, any kind of military commitment became a sure-fire excuse for students seeking a pass on a failed exam. As more and more students joined the forces, dress codes were suspended to permit them to be called to the bar in uniform. Deaths in the early fighting were noted in convocation's records with 'pro patria' epitaphs, and as late as 1917 a sonnet about the secret joy of 'strange, romantic war' (found among the effects of a dead lawyer-soldier) was formally entered into the minutes of convocation.4 190

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The mood darkened as the struggle extended, casualties mounted, and the demand for volunteers outstripped all expectations. By the end of 1915, 116 lawyers (from about 1600 in practice) and 97 students were on active service in Europe. Lawyers with militia affiliations often joined their own active-service regiments, though many of the older ones shifted to staff and training assignments in Canada. Young lawyers and students receiving officers' commissions for the first time were distributed among many infantry regiments of the Canadian Expeditionary Force, and they also turned up in the artillery, signals, the general staff, and other specialized services. Some served in the Canadian and British navies, in the Royal Flying Corps and Naval Air Service, and in British army regiments.^ Eventually, the steady roll of casualties overwhelmed the glamour of a few heroic deaths. Most of the dead were young infantry lieutenants and captains (only one in ten among lawyer casualties was a private or sergeant), but some ranked higher. Malcolm Mercer had risen to major-general when he went forward to inspect the front at Mount Sorrel on 2 June 1916 and was killed in a sudden German attack. Mercer, though he was the highest-ranking Canadian soldier to die in either world war, had been more prominent in the pre-war militia than in the legal community. A death that hit harder at the Law Society was Charles Moss's.^ In 1914, Charles Moss had been the golden youth of Ontario's legal profession. His father, Sir Charles Moss, and his uncles Sir Thomas Moss and Sir Glenholme Falconbridge had served in turn as chief justice of Ontario. The senior Mosses were sons of a Cobourg brewer, but they and their brother-in-law Falconbridge had risen high in the profession on their legal skills, on being Liberals in the era of Mowat and Laurier, and on having married into one of the Ontario legal dynasties (all three were sons-inlaw of one-time treasurer Robert Baldwin Sullivan). In the late nineteenth century, their law firm had included such benchers, judges-to-be, and legal luminaries as Sir Featherston Osier, Robert Harrison, Sir Allen Aylesworth, Walter Barwick, and Newman Hoyles. Young Charles Moss was their heir apparent. When in 1911 he became at age thirty-eight the youngest bencher in living memory, he was considered an emerging leader of both his firm (known by The Last Patricians ,1914-1950

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then as Aylesworth, Moss) and the Ontario profession. On the outbreak of war, he dropped his practice to go on active service, and in England he sought a reduction in military rank in order to go to the front more swiftly. After he died of wounds in October 1916, he became the Ontario bar's great symbol of bright promise cut off before its prime by the Great War7 The later years of the war saw sacrifices both real and symbolic in the society. Enrolment in the law school had plunged as men and women went into the services (though the number of women students saw its first significant increase in the war years, as women filled articling spaces vacated by men). A fifth of all the members had a military-service exemption from Law Society dues, and by 1918 the society felt obliged to add'a surcharge, intended to be temporary, to the fees charged to those who remained. In 1917, treasurer John Hoskin decreed that even the benchers1 luncheons would be abandoned for the duration. Commitment to the war effort was absolute. Both EnglishCanadian nationalism and imperial loyalties had been strong among Law Society leaders since the 1890s, when E.D. Armour, the constitutional law lecturer at Osgoode Hall, had been a member of D'Alton McCarthy's anti-French, English-rights party. Bencher and Ontario Liberal leader Newton Rowell was an architect of the wartime coalition which ranged English-speaking Liberals with Robert Borden's Conservatives against the mostly francophone A 1918 photograph of the Convocation Room, where benchers have met since the 1840s.

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Laurier Liberals and brought on the conscription crisis of 1917. Rowell would probably have endorsed the view of English Attorney General F.E. Smith, who told the benchers in 1918 that it was a lawyers' war/ because on its result depended 'whether or not international and public law were to survive in the world.'^ During the war, the society began using its disciplinary powers against lawyers suspected of lack of commitment to the cause. In 1918 it investigated Samuel Birnbaum, who had been called to the bar as a British subject but who was rumoured (inaccurately, the committee determined) to have sought exemption from military service as an Austrian national. More ominous was the 1916 investigation of lawyer J-A. Clermont, who stood accused of making disloyal statements and of being a supporter of journalist and politician Henri Bourassa, who campaigned against the sacrifice of Canadian lives and interests for the benefit of the British Empire (and who would be a leader against conscription in 1917). Clermont was compelled to deny before the discipline committee that he was proGerman or hostile to the Allied cause. The Law Society warned him 'to be careful in future about statements that he makes,' leaving the clear implication that it might find lack of support for the war incompatible with membership in the Law Society.^ By the end of the war, some 300 lawyers and a larger number of students had served in the forces. One hundred and thirteen were dead. Many more were wounded or shocked. Even among the healthy, many found their skills and their client base had eroded during the war, and the Law Society had little to offer them beyond tributes like that from the Prince of Wales, who visited Osgoode Hall in 1919 to salute 'the wonderful war service of this Inn.' There was also half a decade's worth of students who had had their education disrupted by the war, and for them the benchers took vigorous action.10 All through the war and long after, the benchers responded generously to veterans seeking exemptions from the regulations, including one case where the service had been in the Boer War and another where a student sought credit for time spent on the family farm replacing a brother who joined the forces and was killed in action. In 1919, the Law Society secured retroactive authority to waive school and articling requirements for veterans. Traditionally strict requirements for time under articles seem to The Last Patricians, 1914-1950

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have been abandoned, and students received one year of law school credit in recognition of their military service (but not, despite persistent legend, one year for every year of service). Additional steps helped to speed veterans through the remaining requirements. In 1919 and 1920, Osgoode Hall Law School offered summer sessions in which a school year could be completed in a few months. A student who had gone to war after one year at Osgoode Hall, for example, would be credited with having completed second year, and he or she (at least one woman got credit for military nursing service) could then complete third year in one summer and be called to the bar. Special consideration was generously provided. In 1924, for instance, a student who had been exempted from first year, promoted through second year without examination, and had failed the third-year examinations twice was recommended for call to the bar on the grounds that a war disability had rendered him 'incapable of concentrating on his studies.'11 These allowances were the most radical truncation of educational requirements in the history of the Law Society. After a couple of decades of declining calls to the bar, Osgoode Hall was suddenly crowded and busy all year round, coping with the largest classes it had ever seen. Some students who earned a fast law degree under the abbreviated postwar regime went on to successful careers - John Cartwright became chief justice of Canada - but in a few years a consensus emerged that the war-service concessions had produced too many inadequately trained, incompetent lawyers. Their difficulties may even have strengthened the conviction of postwar benchers that there could be no substitute for long apprenticeships and extensive practical training. Veterans would long continue to receive special consideration, and veterans' advocates such as Harold Foster and Hamilton 'Laddie' Cassels, both decorated war veterans, were influential in convocation beyond the end of the Second World War. Nevertheless, in the fall of 1920, after the second summerschool session, convocation suspended the veterans' blanket exemption, declaring that sufficient time had elapsed for veterans to seek to benefit from them. It was time to start moving on from war to peace.12

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George Johnston, the studious son of a Pickering cattle dealer, attended the pre-war University of Toronto, became a law student, and joined the army in 1915 while in his final year at Osgoode Hall Serving in the artillery, he was gassed and blinded at Hill 70 in 1917. After recovering his sight and being discharged and brought home, he declined immediate call to the bar and insisted on completing third-year law school. In the spring of 1919, he was called to the bar with the Osgoode Hall gold medal. The next day, he and a law school friend went out to the Danforth Road in east Toronto. They rented an office, hired a secretary, and hung out a sign. Housing tracts were springing up all through the Danforth neighbourhood, and clients poured in. One new law practice was in business. Business would be good throughout the 1920s, as the profession put the war behind it.1^ With industrial development, resource exploitation, a booming securities trade, and the rise of new fields of litigation, there was work to support new lawyers, even though the kind of work they did continued to evolve. Just before the war, the Ontario legislature had enacted the Workmen's Compensation Act (following recommendations from royal commissioner Sir William Meredith, chief justice of Ontario and former London lawyer, bencher, and opposition leader at Queen's Park). Workmen's compensation wiped out the business of employment liability litigators. Students of Toronto lawyer Thomas Phelan recall how 'his whole business disappeared overnight.' He managed, however, to build up a new specialty in negligence and motor-vehicle law.1^ The old laws on worksite injuries had exemplified nineteenthcentury beliefs about contract. Workers had been obliged to sue their employers if they sought compensation for injuries, and since they were understood to have accepted the risks of the job when they contracted to take it, powerful common law precedents limited employers' liability. Meredith's recommendations ended that regime and created the Workmen's Compensation Board to administer a fund out of which injured workers could be compensated and to which employers must contribute. The change from litigation to compensation has been seen as an example of how, in the twenti-

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LAW AND DEPRESSION

When Osgoode Hall was built, York Street was a dirt track. This is the busy streetscape of the early twentieth century.

* Sedgwick, an autodidact, compensated for his lack of formal schooling with an inexhaustible fund of literary and historical references.

eth century, contract would yield pride of place at the centre of law to legislative action and state regulation. It was, however, an early example. Most of the impact of state-made changes in law and regulation would come in the second half of the century. ^ The stagnation of lawyer numbers that had endured in Ontario since the turn of the century was temporarily broken in the 1920s. The legal population increased by a third, to about 2500, between 1921 and 1931. In the 1930s, however, the Depression would cause legal business to plunge, and there would be no growth in lawyer numbers at all.1^ Half of new Ontario lawyers in the 1920s held a university degree, when higher education was available to only 3 per cent of Canadian youth. Most university students came from professional, managerial, and business families, and most lawyers, even those who did not actually attend university, seem to have come from that milieu.1 ^ There were notable exceptions, like prominent litigator and 1960s Law Society treasurer Joseph Sedgwick, a workingclass boy who was accepted into articling on the strength of his clerical abilities and into law school on veterans' preferences.* Nevertheless, many successful lawyers who did not go to university probably could have done so had they felt the need. Neither John Blain, who swept the prizes at Osgoode Hall in 1941 and became a model corporate law solicitor during a fifty-year career at McCarthy and McCarthy, nor Cyril Carson, another future treasurer, spent a day at university, but both had middle-class backgrounds, connections, and attitudes similar to those of the university students of their day, and they successfully overcame the preference 'graduate' lawyers had for practising with other graduates.18 Coming from and passing on middle-class standards, most lawyers between the wars could hope to have a car, perhaps to employ a maid, and to secure the education of their children. Still, most practising lawyers wielded little independent economic power and commanded little wealth beyond the earnings of their practice. Lawyers' incomes resist estimation, but incomes of other professions in this era averaged less than $3000 a year, at a time when $10,000 was considered the threshold of the truly wealthy.19 One indicator of the unostentatious middle-class ambiance of most lawyers is the kind of offices in which they worked. By the standard of fifty years later, facilities were spartan. 196

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Nearly every reminiscence of the early-twentieth-century law office starts with the linoleum that covered the floor, even at elite firms. Rowell, Reid, with offices in the Wood Gundy building, had its 'penalty box/ an upholstered bench beside the switchboard operator where clients waited, but many practices provided no waiting-room at all. At Bain, Bicknell in the late 1920s, the embattled speculator Sir Henry Pellatt, builder of Casa Loma, could sometimes be seen dozing 'on the bench down at the end of the hall,' while he waited to consult James Bain. Only the principal or the partners would have private offices. Staff, students, and junior lawyers typically crowded into common space at the centre of the office; at Blakes, a single large students' desk with a row of stools became a legendary part of the furniture. Margaret Hyndman commenced her legal career in 'a very old fashioned office ... all lined with tin boxes with people's names ... painted on in black,' a decor almost identical to that of Upper Canadian law offices of a century earlier.20 Technology hardly extended beyond the telephone and a few typewriters, and many articling students found that their daily duties included tending the letterpress, an antique mechanical press that laboriously made ledger copies of the office's correspondence. Hours were rarely docketed, afternoon tea was observed in many practices, and partners' bridge at lunch-time was not unknown. On the other hand, most law practices still opened on Saturday mornings, and in some prominent firms partners' wives were expected to arrive at midday to help clean the office.21 Firms continued to rise, fall, and reinvent themselves as their personnel changed and legal markets opened or closed around them. Outside the largest centres, most firms remained family operations, sometimes extending over several generations, but with their continued existence always dependent on sons or heirs who were willing and able to maintain the practice. Larger corporate law firms also had dynastic influences, but in their histories the choice of policies that would direct a firm towards prosperity or extinction can sometimes be traced. The Falconbridge, Moss, Aylesworth firm, so prominent at the turn of the century, seems to have started so many judicial and academic careers that it lost some of its pre-eminence, although a successor firm bearing the Aylesworth name continued into the 1990s. The Last Patricians,1914-1950

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The Smith, Rae, Greer partnership, descended from nineteenthcentury patrician Larrett Smith, was still providing benchers through the Second World War, but partner bickering and alcoholism had accelerated its decline from the front rank. Rowell, Reid rose to prominence early in the century on the talents of Newton Rowell and a few others but, in the words of the company historian, 'rapid expansion of the firm's business compelled the engagement of a number of young solicitors, generally hired by Reid, not on the strength of their academic qualifications, but on the irrational basis of their family connections or their lack of unseemly ambition. "What we want," said Mr. Reid, "is cheap labour." '22 In fact, few firms hired solely for talent, and the more 'establishment1 a firm became, the more vulnerable it was to heirs and proteges who expected a large income for indiscernible contributions. John Godfrey's memoir of Campbell, Godfrey, Lewtas is scathing about the well-connected, non-productive mediocrities who had been a drain on the firm before Peter Campbell began to reorganize it. The firm of Rowell, Reid, undermined by RowelPs habit of working in isolation from the firm and by Reid's lacklustre management, fell apart soon after Rowell became a judge in 1936, though junior partners eventually rebuilt it as McMillan, Binch.2^ The decay of establishment law firms occasionally made room for new contenders. Borden and Elliot, founded in 1936, rose fast on the establishment connections of Henry Borden (a Dalhousie Law graduate, Rhodes Scholar, and nephew of wartime prime minister Sir Robert Borden) and on the driving energy of Pete Elliot, a small-town bank manager's son whose work habits and combative style became legendary. Borden and Elliot's new firm grew despite the Depression and, like the firm founded by J.S.D. Tory in 1941, expanded rapidly in the postwar years.24 Corporate clients were more than ever the basis of size, wealth, and prominence among law firms. When the Osier and McCarthy partnership, founded by two star litigators, split in 1916, the second-generation McCarthys took most of the litigation work, but the second-generation Osiers held on to most of the corporate files. However, as Beverley Matthews, one of the first of the modern 'rainmakers,' aggressively recruited new corporate accounts, the McCarthy firm worked its way back among the big three and greatly reduced its dependence on litigation.2^ 198

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Beyond the largest corporate firms and the leading litigation counsels, general practice remained the rule. Tax law was not yet so complex as to require special expertise. Few lawyers could afford to specialize in criminal law. Thomas C. Robinette, a top defence counsel until his death in 1920, never enjoyed an income to match his reputation, and Arthur Maloney, who began to specialize in criminal law in 1940, found it hard to make a living. 'I thought I would be besieged by clients, but I still only got the penniless ... Criminal law wasn't considered important/ Defending in sensational trials had long been a way to build reputations and attract business, but that field was vanishing from the large corporate firms, which 'disliked having criminals in the waiting room.'2^ For smaller firms and for most practitioners outside the large cities, the business of law remained very broadly defined. Stanley Fennell, practising in Cornwall in the 1940s, recalled when real estate agents were unknown. Vendor and purchaser together approached a lawyer, who did all the work for both sides, often without even a title search. Brokering mortgages was an essential part of this work, and earning the trust of clients was vital, given the constant conflicts of loyalty in which lawyers found themselves. Lawyers were not without competition, however. When Fennell articled in Kemptville, the small town had two law firms, but a lay conveyancer did more work than either. Unlike the conveyancers, who were in slow decline, trust companies were just emerging as competitors for the traditionally valuable work of estate management. Unlike lawyers, trust companies could advertise and offer such incentives as having wills drawn 'free' in exchange for appointment as trustee. Their emergence, an early signal of how business practices could make professional traditions obsolete, provoked furious resentment among many lawyers, aimed almost equally at the trust companies and at the Law Society, which declared itself unable to do anything about them.2? Powerful prejudices were part of the conservatism of the middleclass profession. Some traditional antipathies had eroded: despite his Protestant, Orange Order roots, Fennell practised in Cornwall with a French Canadian and an Irish Catholic. Women lawyers, particularly those with a supportive relative or family friend in the profession, seem to have been at least as well accepted in small towns as in the cities. Disfavoured minorities, however, found entry The Last Patricians ,1914-1950

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Thomas Robinette made a specialty of criminal law long before the establishment of paid legal aid.

Bora Laskin, a brilliant student at Osgoode Hall and Harvard Law School, became a law professor and eventually Chief Justice of Canada. When he graduated, no firm would hire him.

to the profession almost as difficult as in Delos Davis's day. By the 1920s and 1930s, the fiercest anti-ethnic campaign was directed against Jews, particularly against the children of the Eastern European immigrants who had been coming to Canada in growing numbers since the turn of the century. In 1918 the society required law students (not just lawyers, as before) to be British subjects, and in 1929 it made character references mandatory for prospective students. Beyond such restrictions, however, the law school and the society did not turn away applicants who met their criteria. The character reference quickly became irrelevant, and apparently neither the Law Society nor the law school maintained an anti-Jewish quota, as universities and their professional schools routinely did in this era. Though society staff occasionally tallied the number of Jewish entrants, no Jewish student of that era reported any awareness of quotas at Osgoode Hall. When Attorney General William Price complained in 1929 of 'the young Hebrew lawyer' as a cause of fraudulent bankruptcies, the Law Society responded that it would deal with specific accusations but 'could not undertake to investigate the profession/28 The Law Society evidently avoided formal discrimination, but that merely transferred the issue elsewhere. Access to law offices, rather than to the Law Society itself, still formed the crucial barrier for students, and here Jews faced massive resistance. Immigration of poor and distinctly 'foreign' Jews from Eastern Europe had given new impetus to Canadian anti-Semitism, and many lawyers and their clients were determined to keep the sons (and even more, the daughters) of rag merchants and scrap-metal dealers out of the legal profession altogether. Most Jewish lawyers of the interwar years came from families that had overcome poverty, for virtually all seem to have attended university (despite the quotas), but the prejudice endured. Bora Laskin, chief justice of Canada in the 1970s (and the son of a Thunder Bay merchant), was a brilliant student at Osgoode Hall and did graduate work at Harvard Law, but he was rejected at every law firm he approached and had to support himself doing editorial work for the law reports until he was hired to teach at the University of Toronto.2^ Other Jews managed to squeeze through cracks in the wall of prejudice. Fred Catzman described starting at the top floor of the Federal Building (on Richmond Street in downtown Toronto) and 200

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working his way down the floors of law offices, desperately seeking a chance to article, and 'getting a "No"' everywhere.30* Catzman, a university graduate and a top student at Osgoode Hall in the mid1920s, finally articled with an obscure practitioner who had been called to the bar under the First World War veterans' preferences and was nicknamed 'Necessity' - because, as the proverb says, necessity knows no law. Other Jews found articling positions with fellow Jews, with fringe practitioners, or, occasionally, with establishment firms. Mayer Lerner from London articled at Smith, Rae, Greer, and Nathan Strauss briefly articled with McLaughlin, Macaulay, the Toronto firm founded by Robert J. McLaughlin, the erstwhile Lindsay law student.31 On graduation - and Catzman recalled the difficulty of finding a bencher sponsor for his call to the bar - virtually all Jewish lawyers had to start their own practices, depending heavily on their own community for clients, and often supporting themselves by bill collecting and whatever other work they could turn up. Outside Toronto, the walls may have been less high: Mayer and Samuel Lerner in London and later Bernard Shaffer in Thunder Bay found they neither attracted all the Jewish clients nor were excluded from all non-Jewish business. In Toronto, specialization became an unintended effect of discrimination, for some Jewish lawyers found in it a way to expand their opportunities. Benjamin Luxenberg specialized in bankruptcy law, his partner, Isadore Levinter, in personal injury cases, Nathan Strauss in mechanics' liens, and others in other fields that had belonged to generalists. As their expertise gradually attracted non-Jewish clients, they broke out of some of the restrictions imposed on them - and also suggested the bright future awaiting specialist lawyers. Reflecting on his lawyer son's comparatively easier progress into the mainstream, Fred Catzman would later argue that 'xenophobia, that is, the fact that we were fairly new to the community, mainly of immigrant stock, not steeped in the culture' was the root of the problem. He believed that 'as Jews worked their way in, they became accepted on their merits.' That conviction was shared by others of his generation, and it made many of them particularly hostile to fellow Jews who took any steps that risked disbarment or censure. The route through familiarization to acceptance, however, remained long and slow.32 The Last Patricians, 1914-1950

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* Law firms in the Federal Building included: Hellmuth, Cattenach, Meredith; Day, Ferguson, Wilson; Forsyth, Martin, Common; Raymond and Honsberger; and Phelan, Richardson, as well as the offices of Clara Brett Martin and the partnership of Abraham and Samuel Cohen.

Helen Kinnear had a distinguished career as a litigator and then as a judge.

Women, too, made only slow progress towards acceptance among lawyers. Thirty years after Clara Brett Martin, two women standing proudly before their families among a crowd of graduates being sworn as solicitors were told by the presiding judge, W.A. Logie (a former bencher from Hamilton), that he did not welcome them and that he regretted the money their parents had wasted on their education. Facing resistance of this sort from family members, from male lawyers, and from potential clients, women still had substantial obstacles to overcome. From the First World War, a few women entered law school every year, but since women usually withdrew from practice (or from articles) if they married, the number of experienced practitioners did not grow proportionally. Many women practitioners agreed that, for women, law and marriage were incompatible. 'Law is hard work/ said Vera Parsons. 'I hardly think the study of law is a particularly good preliminary to marriage.'33 For women as for minorities, the greatest obstacle was finding articles. Many of the early women lawyers had lawyers or other professionals in their families and had attended university, and they used family or social connections to locate potential articling positions. Again, there were exceptions. Margaret Hyndman was a lay conveyancer's daughter who began articling while working as a legal secretary; Annie Epstein was both Jewish and working class. When mainstream practices were closed to them, they articled with other women, or with fringe practitioners or those of progressive views. Epstein articled with Jewish principals, but went into practice on her own 'because I couldn't get a job anywhere.' When women specialized, it was frequently because they were hemmed in by expectations of what kinds of legal work were suitable. Newman Hoyles, widely respected by women for his support of them during his tenure as principal of the law school, praised women for their special qualities as 'conciliators and restorers of harmony,' and many supporters of women lawyers agreed that family law was particularly appropriate to the feminine character. At the same time, the clerical assiduity required of secretaries suggested that office law, particularly if it was concerned with routine details, was also suitable for women lawyers.34 Most lawyers still considered courtroom practice particularly inappropriate for women. As John Arnup, called to the bar in 1935, recalled, the prevailing attitude of litigators was that 'women were 202

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all right to do real estate and work in trust companies and they should be kept out of litigation/ Vera Parsons, Helen Kinnear, Margaret Hyndman, and others confronted this prejudice and built notable litigation practices, but they remained rare exceptions. Osgoode Hall had no robing rooms for women until forty years after Clara Brett Martin began making court appearances. With courtroom practice - a non-elite lawyer's best route to prominence and to election to convocation - substantially closed to women, none even ran in bencher elections until 1946. That year four women ran. Three - Elizabeth Newton (the York County law librarian, 1935-57), Vera Parsons, and Margaret Hyndman - had vote totals larger than the total number of women lawyers, but none came close to election. No woman would until 1975.^5 Partners in leading firms, barons of the regional bar, and litigation stars still dominated convocation. Toronto and regional representation remained closely balanced: in the four elections of the 1920s and 1930s, the Toronto-regional ratio worked out at precisely one to one. Because deaths and appointments to the judicial bench or to life-bencher status could remove as many as half the elected benchers in any term, replacement benchers appeared regularly at the table. Since the profession rarely rejected incumbent benchers (two were defeated in 1936 and 1941, none in most years), convocation's power to make these appointments between the fixed five-year elections gave it considerable influence over its own membership. Outside Toronto, the local law associations, eager to ensure that they had a representative in convocation, ran discreet campaigns to encourage support for their chosen candidate. Toronto candidates evidently depended on their prominence and popularity and usually denied making any effort to gather votes.^6 The benchers of the early twentieth century tended, like their predecessors and many of their successors, to be prominent, wealthy members of establishment law firms and to have something like life tenure once elected to convocation. Where they differed from the late-nineteenth-century benchers was in their aversion to change. The Law Society had made significant changes between 1870 and 1914; between 1914 and 1950 it stubbornly defended virtually every one of them. What made these benchers different from their successors in the mid-to-late twentieth century, on the other hand, was their almost complete insulation from effective opposition. The The Last Patricians ,1914-1950

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Looking uncharacteristically avuncular, the cold, hard-driving litigator and Law Society treasurer (1930-5) Norman Tilley relaxes in his office near the end of his career.

last patricians liked the Law Society the way it was and hardly needed take note of those who felt differently. After Aemilius Irving, no more 'fathers of the bar' achieved anything like his length of tenure in the treasurer's chair, but only because none lived long enough. The twelve treasurers who followed him from 1913 to 1950 took office at an average age of seventy (as he had done), but none served more than five years. All the treasurers of these years were Toronto practitioners, mostly from the barrister rather than the solicitor side of the profession and mostly from familiar, establishment firms.. Descriptions of them by their colleagues and admirers, no matter how sincerely offered, tend to resemble one another. Each was saluted as a leading counsel, a brilliant courtroom advocate, a future judge, or as the head of a great firm. Notable among the interwar treasurers was Norman Tilley, long renowned as the dominant Canadian litigator of his time and from 1930 to 1935 also an active treasurer who vigorously administered the society during a change in secretaries. Notably unfortunate was Michael Ludwig, who was chosen as treasurer in October 1936 and died ten weeks later. Few of the others can be linked to significant Law Society innovations; most seem to have been elected in tribute to their long service and their legal or political prominence. Between 1916 and 1927, treasurers Osier, Harcourt, and Hoskin actually repeated the names from the title of one top firm, though in fact the Osier in question, Featherston Osier, a retired judge who became treasurer at the age of eighty-three and died in office three years later, had not been a member of the Osier firm founded by his brother Britton. Edwin Bell, who had been appointed secretary shortly before Irving's death, held the office until his own death in 1921. Anticipating the 1922 centenary of the Law Society's incorporation, he undertook to write a history for the occasion, but he left the manuscript not quite complete at his death. William Riddell, who was asked to complete it, pronounced it full of errors and started his own commemorative volume, which became The Bar and the Courts of Upper Canada, published in 1926. That book, which stops in the 1850s and covers much besides the history of the society 204

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itself, may not have satisfied some benchers. In 1928, Belleville bencher William Ponton reported making progress on his own history of the society, but no manuscript was ever delivered. Bell's draft history (an extraordinarily dry study, mostly concerned with successive revisions to the Law Society Act) still languishes unpublished in the society's archives.3? The next secretary, Bertram Holford Ardagh, came from a longestablished legal and judicial family of Barrie and Toronto. His law firm's historian recalls him as the 'sporty' member of the firm, active in society and in the militia. Returning from wartime military service as Major Ardagh, with little of his practice left, he was hired as secretary in 1922. Ardagh is not remembered as an effective secretary, and the real administrator in his time was a remarkable woman named Eileen Major Huckle.3^ Eileen Major had joined the Law Society staff as a stenographer in 1912, at the age of fifteen. She soon made herself indispensable, the first notably influential woman in the history of the organization, and she stayed for fifty years. In 1921 and again in 1933, when she was married with a young son, she served as secretary pro tern while the office was vacant. Even after Ardagh was chosen as secretary, 'she knew much more about things than he did ... She ran the place with Mr. Holford Ardagh's occasional assistance,' according to JJ. Robinette, who was a law-school student and lecturer in the late twenties and early thirties. Mrs Huckle was officially assistant secretary from 1925 to 1962, and was liked as well as respected. 'She has advised three generations of students,' said her obituary, 'and there are few lawyers in Ontario who have not at some time received her assistance.'39 The cause of modern professionalism continued to influence legal institutions. After several abortive efforts, a national organization of lawyers, the Canadian Bar Association (CBA), came into being in 1914 and soon absorbed the Ontario Bar Association, founded in 1906. In 1927 the provincial law societies formed the Conference of Governing Bodies (later the Federation of Law Societies) to improve connections among themselves. In 1922, Toronto lawyers founded the Lawyers' Club, a social and educational club in which membership was by invitation and from which non-white, nonChristian, and non-male lawyers were formally excluded. Partly in The Last Patricians, 1914-1950

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Lawyer, bencher, and judge, William Renwick Riddell was a pioneer of Canadian legal history who wrote scores of books and articles. He was a relentless collector: no ones book was safe if Riddell decided it was needed for the Riddell Canadiana Collection he established at Osgoode Hall

retaliation, Jewish lawyers formed the Reading Law Club, named in honour of the distinguished English barrister and chief justice Rufus Isaacs, Lord Reading. The Women's Law Association of Ontario had begun earlier, in 1919. The CBA, founded and led by Sir James Aikens of Winnipeg, its president until 1927, devoted itself in its early years to a crusade for higher professional standards. Aikens believed that the hallmark of a profession was its 'principled rejection of the profit motive/ and he sought nothing less than to 'create a higher type of barrister and solicitor/ The Canadian Bar Association, he argued, could serve this cause by bringing lawyers together for mutual exhortation, by seeking higher entry requirements, and by drafting and promulgating a written code of ethics for Canadian lawyers. Work on the code, which set out a lawyer's ethical obligations 'as a minister of justice, an officer of the Court, his client's advocate, and a member of an ancient, honorable and learned profession,' began at the first CBA meeting. The Canon of Ethics was formally adopted in 1920.4° Ontario lawyers and benchers were not prominent in forming the CBA or driving the development of its ethical code, but the Law Society soon adopted it. The code, like those being developed by other professions and by lawyers in other countries, served many purposes. It expressed high ethical aspirations, but historian Wesley Pue points out that it also provided 'public legitimation for a profession which wished to fix minimum fee levels and to better secure a state-created monopoly for themselves.' The code rejected commercialism largely by presuming that lawyers would work under conditions that relieved them from having to worry about money. It endorsed virtually all the standard practices of elite lawyers, while blocking potential avenues to more income (and more clients) for less established lawyers. The determination to put the code in writing also reflected mainstream lawyers' concern that women, immigrants, and others new to the profession could not be trusted to act appropriately and needed explicit instruction in the behaviour that true gentlemen and professionals adopted instinctively.41 Adoption of the code seems to have coincided with a substantial retreat from ethical discussion in the Law Society's discipline committee. Before the First World War, the committee had occasionally been a forum in which lawyers debated what behaviour was 206

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appropriate to new conditions of practice. From the 1920s, however, discipline seems to have settled into its classic form. In this era, the committee itself closely controlled the complaints process, and lawyers were rarely disbarred for anything but stealing their clients' money or for being convicted of a crimed In 1924, H.S. Osier, the most senior lawyer in Osier, Hoskin & Harcourt (also the son of recently deceased treasurer Featherston Osier and partner to his successor, Frederick Harcourt) became the subject of sensational litigation over the obligations of lawyers. Osier had incorporated a shell company which enabled American oil entrepreneurs to skim off unearned commissions and obscure the trail of bribes they paid to American government officials in the Teapot Dome' scandal. When the scandal broke, Osier stonewalled all attempts to investigate his clients' dealings. His assertion of solicitor-client privilege was overruled in the Canadian courts, yet Osier defied an American subpoena and successfully avoided testifying in the investigation of the scandal and the trials of his clients. The Canadian court hearings over Osier's disregard of the subpoena involved benchers Arthur Anglin, Newton Rowell, and Wallace Nesbitt, but the issue did not arouse the attention of the discipline committee. By then, vexed questions of how a lawyer's obligation to the interests of justice should be reconciled with obligations to clients were beyond the committee's self-defined purview.* Maintaining the confidence of clients was vital to the business of lawyers at all levels, and the historian of Osier, Hoskin & Harcourt argues that the firm probably benefited from Osier's display of absolute commitment to his clients. Despite the anticommercial idealism of the Canon of Ethics, the narrowing of the disciplinary focus to matters which might damage the profession's reputation among clients suggests that businesslike professionalism had largely supplanted the tradition of the lawyer as independent gentleman.^ The Great Depression launched by the stock market crash of 1929 hit the legal profession very unevenly. Some law firms weathered the storm quite easily. The incomes of Osier, Hoskin & Harcourt and of Blake, Cassels & Graydon hardly suffered during the 1930s, and Allan Graydon's memoir manages to suggest that he felt reports of a depression were greatly exaggerated. Securities and incorporation work might vanish, but bankruptcy practice and foreThe Last Patricians, 1914-1950

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* At least, when lawyers of Osier's status were involved. But despite much hand-wringing over the ethical shortcomings of 'ambulance-chasers' who allegedly harmed the public by aggressively (and profitably) promoting lawsuits by accident victims, the discipline committee rarely pursued this kind of activity either.

closures boomed, and both office overheads and the cost of living fell Young lawyers in leading firms often spent much of the 1930s pursuing their clients' debtors, enforcing foreclosures, and supervising the repossession of commercial stock or household furnishings* It was bleak work, but it paid.44 Elite lawyers were not automatically sheltered from the Depression. John Godfrey, Sr, a prominent civil litigation counsel and politician of the 1920s, estimated his annual income from practice fell from a princely $25,000 to $2500 between 1929 and 1933; in 1934 he was glad to accept chairmanship of the Ontario Securities Commission at a salary of .$8000. Raymond and Honsberger, a small but old and respected Toronto firm, was similarly ravaged. The partners' investments and savings were wiped out in the crash, business vanished, and the firm was reduced to fending off creditors, postponing the rent, and taking payment in kind. In 1936 the two partners divided between them as their annual income less than half the meagre $825 salary they paid their secretary. A client provided them with the only suits they owned for most of the 1930s.45 Bay Street lawyer Erel Ironside did worse. With his real estate speculations in collapse, Ironside committed suicide in 1931. The experience of less prominent lawyers seems to have been similarly mixed. Some young lawyers who had grown used to struggling in the 1920s were well prepared to cope with hard times. A young Jewish practitioner, David Goodman, running a solo practice that would eventually grow into the large Goodman and Goodman firm, continued to earn a good income; according to his son and future partner, Eddie Goodman, the family suffered no hardship during the Depression. Some small-town lawyers also did well. Howard Graham, who had opened a practice in Trenton in 1922, was doing well enough by 1933 that he considered an MP's salary of $4000 no compensation for the business he would have to give up if elected. George Johnston, on the other hand, saw the prosperity of his Danforth practice of the 1920s dissolve. We nearly starved/ he said of the 1930s. The experience reinforced his growing disillusion with legal practice, and he was delighted to snare the job of Law Society librarian in 1939.46 Lawyers in arrears for their fees (then $20 a year) sent pathetic letters to the Law Society. 'I can hardly get enough money for food 208

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and clothes,' wrote a Timmins lawyer, begging for more time, and a Windsor practitioner was reported to have abandoned his practice to take a job at a Kresge's store. The society recorded a steadily growing number of delinquent accounts. By 1936 there were almost 200 (not far short of a tenth of the membership), and half were more than a year overdue. Though suspensions for non-payment of dues were postponed over and over, a committee struck to examine the problem declared flatly that 'solicitors who allowed their fees to become in arrears to any great extent were a menace to the profession/ and the frequently issued notices threatening suspension made no concession to the times.^7 There was also a sharp increase in the exposure of thefts by lawyers from their clients. During the 1930s, the Law Society disbarred eighty-five members, almost four times the number 'struck off in the previous decade. The peak years were 1933 and 1934, and the overwhelming majority of disbarrings were for stealing from clients and related offences. Convocation acknowledged in February 1933 that 'in these times of depression ... an increase in the number of defaulting solicitors might reasonably be anticipated/ But for several years the explosion of well-publicized thefts by lawyers from their clients provoked the society to no new procedures beyond having the Canon of Ethics distributed to students.48* Facing public and legislative suggestions that lawyers should be bonded for the protection of the public, convocation in 1933 responded with an explanation of why change was neither possible nor desirable. The benchers rejected every possible innovation. The discipline process 'cannot be improved,' they declared. Auditing lawyers' accounts was 'not practicable or expedient,' and rules on the keeping of accounts could not be enforced. Bonding they found to be particularly unwise and impracticable: 'It would give rise to carelessness on the part of the clients in their dealings with solicitors; would give clients a false sense of security; would benefit the untrustworthy solicitor at the expense of those entitled to confidence; would bring about the novel result that honest solicitors would pay for the defaults of the dishonest; would impose a burden on solicitors, particularly those starting in practice, that they should not be called upon to bear; and would be wholly inconsistent with the honourable and independent position occupied by the solicitors of the Province.'49 The Last Patricians, 1914-1950

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Among the disbarred was John Mitchell, who, as 'Paddy Slater,' had written the 1933 novel The Yellow Briar, which includes a description of Osgoode Hall circa 1837. In 1935, Mitchell turned himself in to police, asking that he be charged with theft from his clients.

In 1936, however, convocation finally made one concession to the theft crisis. Noting innovations recently made by law societies of western Canada and England, the Law Society for the first time (and against strong objections from some benchers) required members to deposit monies they held for their clients into trust accounts separate from their own, and to keep records which the society could audit in suspicious cases. Audits of members' accounts were ordered in subsequent years, and in 1942 the society briefly considered hiring a full-time investigator, but auditing seems to have fallen into disuse by the 1950s.50 It cannot be said that the Depression radicalized the benchers. One casualty of the early twentieth century, in fact, seems to have been the reform tradition that had endured in convocation and perhaps in the bar at large. The political progressivism bequeathed by the Baldwins through Mowat and Blake to Irving, Aylesworth, and others seems to have ended with the appointment of treasurer (and one-time Ontario Liberal leader) Newton Rowell as chief justice of Ontario in 1936. By then there were few lawyers of political prominence among the benchers, and fewer with progressive views on legal or social issues. Social conservatives and supporters of the Conservative party were firmly in control. The average age of benchers attending convocation was about sixty-seven in 1933, though it fell to about sixty-one after the 1936 bencher election. With prohibition ended, alcohol service was restored to benchers' luncheons in 1936, and benchers could usually count on the sittings of convocation (monthly since 1910, when the old term schedule was abandoned) to end by the time lunch was served.51 Nowhere in the record is there any hint that the Law Society considered changing policies or taking special measures to respond to the social and economic crisis of the 1930s. On nearly every issue brought before them during this era, the benchers convinced themselves that significant change would be both impractical and wrong in principle. They found no grounds for combating competition from trust companies, and they restated the traditional ban on advertising. When concerned Toronto lawyers began organizing voluntary legal aid services in 1936, convocation commended the members of the junior bar 'for their public spirit and unselfish enterprise in undertaking a much needed work/ but it never considered any role for the Law Society. And, as will be seen below, the 210

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benchers became notorious above all for their opposition to the general trend towards reform of legal education processes.^2 The only substantial change of the 1930s was new construction at Osgoode Hall, begun in 1938 and paid for out of the society's handsome cash reserves. During this decade, while it was hounding destitute members for dues, the Law Society was taking in about 16 per cent more than it spent, yet no cut in member fees was discussed and student fees were increased. The society's cash reserves rose to more than half a million dollars in the mid-1930s, and the additions to Osgoode Hall cost less than half that. The new construction was primarily for the law school, where space had always been limited. The benchers agreed to provide new lecture rooms, library space, and an examination hall.^3 The additions, at the north and east of Convocation Hall, required the removal of the stained-glass window in the north wall of Convocation Hall, but they made that room, until then mostly a lecture theatre, available as a 'great halP and gathering place, and a kitchen and pantry permitted the opening of an adjacent dining-room. Also added were robing facilities for men and women, and the barristers' lounge. There seems to be no record of how struggling members of the profession reacted as their society racked up large annual surpluses and spent their dues on lounges and dining-rooms, but the lunchroom was well patronized when it opened in April 1939, and the society inaugurated student dinners and term dinners in hopes of emulating the famous dining tradition of the Inns of Court. The society also acquired new staff members in the 1930s. Secretary Holford Ardagh died in 1933 and was succeeded by W. Earl Smith, a Meaford-born lawyer who had been the law school's silver medallist in 1921 and had practised in the firm of influential bencher James Bain. Smith's appointment marked the end of Eileen Huckle's greatest influence, for Smith soon took charge of the society's affairs and proved himself a skilled administrator, diplomat, and negotiator. Smith and Huckle both stayed for some thirty years. Alfred Bennett, hired as temporary help in 1934 but soon an indispensable general assistant, stayed for forty. Long-time caretaker Tom White lived at Osgoode Hall with his family. After he complained in 1921 of the rigours of living 'in the cold, wet basement,' the society built a small cottage for him on the grounds behind The Last Patricians, 1914-1950

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Osgoode Hall Along with the law school's small staff and a handful of librarians, these individuals were virtually the entire staff of the Law Society into the 1950s.54

THE PURPOSE OF A LAW SCHOOL

When courtly, well-meaning Newman 'Daddy1 Hoyles retired as law school principal in 1923, he was revered but not regretted. Soon after he left, Shirley Denison, who had been one of his lecturers since 1910 but was soon to resign, condemned the school's weaknesses. An old-fashioned Chancery lawyer from an old Toronto family, Denison was a small, soft-spoken man with endless solicitude for students, veterans, and lawyers in difficulty; but mildness was not on show as he itemized the law school's old and cramped facilities, the lack of opportunities for personal contact among students and teachers, and the extinguishing of school pride and esprit de corps. Above all, Denison mourned the loss of the love of learning at Osgoode Hall 'We are not creating a class of lawyers who by research, study and authorship are equipped for introducing or criticizing [law] reforms in a scientific spirit,' wrote Denison.55 Denison's dissatisfaction was widely shared, and since he would become a bencher in 1931, he would be well placed to implement his views. Denison and most of the benchers of the 1920s and 1930s were heirs of the innovative moment around 1890 when the idea that the profession could run its own law school had been fresh and progressive and idealistic. They inherited the faith that the modern profession could also be a learned one and a teaching one, and that responsibility for education was an essential aspect of self-government. It was by that standard that they judged the law school and found it lacking. Like other progressives who have seen their ambitions realized, they had become deeply conservative. The changes Denison sought in 1924 and still sought as treasurer in the 1940s were intended not to create a new kind of legal education but to vindicate the promise of the 1890s. Those plans would not go unchallenged. For the next thirty years, convocation's vision of a law school as primarily a supplement to education-through-practise would be hotly contested. By the 1920s, the law school at Osgoode Hall diverged far from the standard of law schools throughout North America. It had been unorthodox even at its birth, but in the 1890s the role of universi212

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ties in professional education had still been something of an open question. In the intervening years, the academic monopoly over all forms of higher education had greatly advanced. Legal academics, foreign observers, and even other law societies and bar associations looked askance at a law school which was not a university faculty, and their views were taking root even inside Osgoode Hall. The years from 1925 to 1950 and beyond would see furious debate about the proper place to educate lawyers and about the purposes of legal education. Despite his ringing call for a law school renaissance, Shirley Denison and his brethren in convocation would spend three decades fighting mostly against changes they did not want. At first, Hoyles's successor gave hope to both sides. John Falconbridge, the son of the late Ontario chief justice Sir Glenholme Falconbridge, was a familiar and trusted part of the Toronto legal elite, a practising lawyer with no advanced degrees. But as a law school lecturer and author of texts, Falconbridge had already displayed an academic bent that found favour with university teachers (and indeed, during his tenure at Osgoode Hall Law School, he would become an influential legal scholar). As Hoyles's deputy and, since 1917, the only other full-time member of the law school staff, Falconbridge was able to make his appointment the occasion for a series of innovations which strengthened the content and improved the reputation of the law school.^ The school, which had never officially had a name, at last became Osgoode Hall Law School. Falconbridge was given the title of 'Dean' and authorized to hire more full-time teachers. He and his staff received new authority over examinations and teaching methods, and they increased the size of the student library and the range of subjects taught. The number of lecture hours was increased and courses, previously split between early morning and late afternoon, were grouped together in the morning. Convocation also agreed to raise the entrance standard significantly. In 1927, two years of university (not merely passing the first-year exams, the minimum established in 1920) became obligatory. Falconbridge was moving the school towards academic standards, and academic approval was indicated by the calibre of his appointments. The dean of Dalhousie Law School, Donald MacRae, and one of his professors, Sidney Smith, both Harvard Law graduates, soon came to teach under Falconbridge at Osgoode Hall.^7 The Last Patricians, 1914-1950

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John D. Falconbridge, a pioneer of academic legal scholarship in Canada and dean of Osgoode Hall law school, 1923-48, in his early days as a Toronto practitioner.

As this ad in the student paper, Obiter Dicta, suggests, lawyers and law students were valued clients of cafes and businesses on the streets around Osgoode Hall.

Dean Falconbridge also sought to revive the spirit of the school. With substantial new grants from convocation, the student society, temporarily renamed the Osgoode Hall Literary and Athletic Society, revived. Basketball, tennis, and hockey teams were soon active again. Debates and dances once more enlivened Convocation Hall, and Obiter Dicta, the student newspaper of Osgoode Hall Law School, began publishing in 1927. As if to prove the vitality of the student body, two of its leaders were admonished in 1929 for spending too much time on literary, social, and debating activities; they were refused special consideration for an exam both had failed. In 1930 convocation even had to order an investigation into 'certain acts of a disgraceful character' said to have occurred at the annual 'conversazione1 of the student society.^ There may have been less to these student activities than the record suggests, however. John Robinette remembered the student society of the late 1920s as 'moribund' and recalled no active teams or clubs, even though he was on the student executive. His verdict, 'we fraternized at the registry office/ was widely shared in reminiscences of other students of that era. Many students still evidently saw their workplace as the centre of their professional lives and the school as merely 'something to get through/ One student-society vice-presidency was reserved for a woman, but women's place among the students remained contested. In 1925, Margaret Hyndman bucked the tradition that women students 'declined' to join male students and their dates at the dinner-dance, but the 'Portias' were often patronized in Obiter Dicta, and in class things were not necessarily better. Helen Grossman missed lectures for several weeks in 1927 after being hit in the head by a thrown boot; she received special credit for an exam she failed as a result. As in the 1890s, school 'spirit' may have been monopolized and defined by a few 'hearties.'59 The academic facade of Osgoode Hall looked equally hollow to many concerned observers, for despite Falconbridge's innovations, Ontario remained well behind the standard of legal education elsewhere, and that standard continued to rise. The Canadian Bar Association, founded to advocate higher standards for the legal profession, placed enormous emphasis on university 214

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credentials, though not simply for their academic value. Lawyers should attend universities and university law schools less for specialist expertise, said the CBA's long-time president, Sir James Aikens, than to develop integrity, moral fibre, character, and honour. (A sceptical law student with a BA would later describe this kind of talk as 'idealism of the most ultramundane nature.')6° In its support of high academic requirements for law schools, the CBA was influenced by the American Bar Association's moves to confirm the two-tier structure of American legal education, in which the 'approved' law schools of elite universities were firmly distinguished from the rest. Other voluntary associations of lawyers, such as the new and proudly elitist Lawyers' Club of Toronto, supported the CBA initiatives.^1 The law professors from Nova Scotia and Manitoba who were the first chairmen of the CBA's education committee led the campaign against non-university and part-time programs. During the 1920s, the CBA pushed for establishment of the three-year, fulltime LLB program, followed by a year of articling, as the appropriate preparation for legal practice. It made Dalhousie Law's curriculum the approved model, but prairie law societies and law schools were just as committed to full-time, university-based law programs as the preparation for practice. A chorus of voices reminded the Ontario benchers that, despite the changes associated with Falconbridge's arrival, Osgoode Hall's program fell far short of the gathering consensus about the proper place and program for legal education.^2 One of those voices came from inside Osgoode Hall. Cecil Augustus Wright, universally known as 'Caesar,' was a brilliant, combative, and supremely self-assured young legal scholar from London, Ontario, who graduated from Osgoode Hall in 1926. John Falconbridge guided Wright to a year doing doctoral work at Harvard Law School, then brought him back to take up a teaching position at Osgoode Hall in 1927. This new member of the staff made no effort to blend into the deferential style of the school. Wright was scathingly critical of Osgoode Hall's stodgy lectures, where, he said, 'the lecturer presents in dogmatic fashion a system of rules or principles which he states to be in force.' Wright insisted that students must not simply learn the existing rules; instead they must understand the context in which law was made. To that The Last Patricians ,1914-1950

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end, he espoused the case-study method and Socratic debate rather than lecture as the way to teach law. A vigorous and colourful teacher of a kind never before seen at the law school, Wright challenged good students and was merciless with weak ones.63 Wright was no abstract theorist. He believed that the best preparation for legal practice was intellectual work in a graduateschool setting with a strong research orientation, but legal practice and preparing law students for practice remained his primary concerns. The benchers' part-time law school, intended to be mostly an adjunct to practice training, he rejected as insufficiently intellectual, but he also criticized the undergraduate Department of Law which Professor W.P.M. Kennedy was then building at the University of Toronto. Kennedy was a historian rather than a lawyer, and his intellectual virtuosity and passion for scholarship inspired a love of law in a generation of students, some of whom would be benchers by the 1950s. But Kennedy's interest was always law as an academic study, largely divorced from the problems of practice. The benchers had no fundamental complaint about Kennedy's school; it sustained their general view that university law studies were interesting and valuable, but without relevance to the needs of practising lawyers.6^ The benchers shared Wright's commitment to the needs of legal practice, but they held to the view on which the law school had been founded in 1889. In this view, law that was taught in school would always be too theoretical and too research-oriented to be adequate preparation for legal work. Convocation continued to declare the fundamental way to learn legal practice was in supervised work under practising lawyers; lectures were little more than a useful supplement. One law professor had already written dismissively that the knowledge gained by articling 'may be bounded in a nutshell and still leave infinite space,' but articling's proponents were not simply expressing anti-intellectual prejudices. Shirley Denison in 1943 praised 'the wholesome practice of taking an arts course in the true sense before studying law,' and many leading lawyers active in the Law Society and the law school also maintained strong connections with the University of Toronto and other universities.6^ Proponents of the Law Society's official view usually argued that

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lawyers should ideally acquire a sound liberal education, most likely at university, and then learn law in practice. (In fact, by the 1930s most Ontario law students did attend university first.) But if both university and practical study were not possible, only the practical part was essential. Indeed, in the view of some benchers, too much academic work had its risks. Treasurer Robert S. Robertson declared in 1937 that, after university and three years in law school, students were 'far beyond the stage of learning to do accurately and carefully the innumerable small things that fall to the lot of the young lawyer in his practice.'^6 The Depression, perhaps more than Caesar Wright or the Canadian Bar Association, forced the Law Society of Upper Canada to reconsider its educational regime. Articling remained the touchstone of the system the benchers believed in, but articling had been problematic ever since articled clerks in Upper Canadian attorneys' offices had complained of being mere copying machines. The uneven quality of articling had always been the system's most vulnerable point, since the conditions needed for good articling could rarely be guaranteed. Even defenders of the system accepted that articling under a negligent principal was demeaning and nearly worthless. Large or prominent firms were not automatically the best places to train. Several lawyers reported being well trained in the 1920s and 1930s at the litigation firm of Mason, Foulds, but articling 'didn't amount to much' at Bain, Bicknell, and as a student at Rowell, Reid, William Howland 'did the milk run, did everything, did all kinds of menial tasks.' As treasurer, Norman Tilley presided over the Law Society's defence of articling, but David Walker, a student at his firm, recalled him as a 'cold man to his juniors,' who did not want students around him. Margaret Hyndman, by contrast, articled with F.W. Wegenast, an old-fashioned sole practitioner and textbook author. She actually 'read law' with him and received an old-fashioned grounding in her profession.6? Since 1889, the requirement to attend Osgoode Hall while articling had concentrated the articling burden upon Toronto's lawyers, whether they needed students or not. As office routines changed and paid secretaries took over many routine functions, roles for students shrank. In 1928 Dalhousie Law dean John Read

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argued that articling was degenerating into 'a legal fiction/ and the Depression turned the problem into a crisis. Places for students were scarcer than ever because lawyers had little work for themselves and nothing worthwhile to give to students. Already squeezed between junior lawyers and support staff, many articling students found themselves treated 'as useless appendages/ Reminiscences of the thirties abound in memories of wasted time, of years spent fetching 'cokes and smokes/ of running errands, carrying briefcases, or simply signing sham articles where work was neither done nor expected. None of these problems was new, but Depression conditions made them epidemic, and the benchers, for whom articles were the root of legal education, could not ignore them.^8 The solution that academic-minded reformers put forward was simply to abolish articles of the traditional sort. For most legal academics, the articles crisis of the 1930s confirmed what they had always said: that articling was fundamentally unreliable and should be replaced with full-time scholarly legal studies, followed by a brief stint of orientation to practice. For the benchers, however, articling was still the fundamental part of legal education. If it was in crisis, then the pressing obligation was to fix it - even if that meant diverting attention and resources away from classroom law and the irritating professors who thought of nothing else. The Law Society's legal education committee consistently paid much more attention to the state of articles than to the advice of Falconbridge, Wright, and other advocates of university-based law schooling. Restoring the effectiveness of articles, in fact, was one of the few problems that really energized the benchers during the 1930s. A decision the Law Society made in 1931 indicated how little it felt the influence of the advocates of academic prerequisites. That October, notified by the University of Toronto that its four-year .BA had been reduced to three years, convocation reduced the Osgoode Hall entrance requirement accordingly: back to senior matriculation (equivalent to completing Grade 13 or passing firstyear university exams). Although it simply responded to a university request, this change meant repudiating the legal reformers' campaign to make two years' university experience a minimum standard across Canada. When announced, it provoked furious criticism. Legal academics, the CBA, many of the county law associations, and even the Osgoode Hall students condemned the lowering 218

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of standards. The students said it could 'only result in the gradual conversion of a learned profession into one filled with men of very limited education/69 This fear was exaggerated. For decades most law students going through Osgoode Hall had been university graduates, and even after the minimum requirement was reduced, the proportion of graduates in the law school increased sharply during the 1930s. Despite talk of an alleged 'poor boy' exemption, few Ontarians could afford the fees and costs of studying law (and the Law Society raised student fees in 1933). All the benchers had done was to reopen a door for occasional exceptional applicants who could not go to university (or chose not to). At least some benchers later argued that the step had been in keeping with the Law Society's duty to ensure that 'lawyers are not using for their own advantage the privilege of determining who may practise law.'?0 Above all, convocation maintained its faith in articling and in individual lawyers as the arbiters of entry to the profession. So long as articling remained the basis of qualification to practise law, an articling position in a lawyer's office was a more significant hurdle - and more difficult to obtain - than admission to Osgoode Hall Law School. Given the scarcity of articling positions, the change in admissions policy would bring no great surge of applicants to the school. It reaffirmed, however, that the individual lawyer, not any specific criterion advanced by the CBA and the law professors, or by the Law Society, would determine who made a suitable candidate for a legal career. The 1931 decision, which helped preserve the primacy of articling, suggested that the Law Society still took little interest in the campaign to change legal education from a regime of articles supplemented by lectures to a full-time academic program with a vestigial articling component, as advocated by the reformers. It was as if the benchers had hardly noticed what the reformers had been advocating. But the hostile reaction to their decision obliged convocation to acknowledge the breadth and depth of disaffection from its view of legal education, even though one bencher had characterized it merely as 'some agitation among the students and profession.' In the end, these protests would provoke from the benchers a more calculated rebuff.71 In response to the criticism, the Law Society appointed a speThe Last Patricians ,1914-1950

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cial committee in June 1933 to consider legal education 'in all its aspects.' The committee received submissions from the Osgoode Hall faculty, from other law societies, from students and practitioners, and from local and national law associations. Most of the briefs focused on the evils of the 1931 decision and argued for a return to higher entrance standards and for more and better academic law teaching as the long-term solution. Dean Falconbridge put the case against articles and for academic instruction politely but firmly: 'There is a danger, I submit, that the legitimate interests of the Law School may be sacrificed for the sake of a practical training in the offices which the students might not in fact obtain even if the hours at law school were reduced. On the whole, my opinion is that the number of lectures should be increased with the view of ultimately obliging students to give their whole time to the Law School during the regular sessions, and to make provision for practical training in offices after rather than before or during the Law School sessions.'72 The special committee's report, approved by convocation in February 1935, headed in exactly the opposite direction. There would be no expansion of the academic program. Classroom hours were reduced, the second morning lecture was moved to late afternoon to accommodate office schedules, and bencher authority over course content and teaching methods in the law school was reaffirmed. Admissions policy was preserved unchanged; the report regretted how a university degree had come to be valued more than experience in actual practice. The report bluntly dismissed all the academic arguments and everything John Falconbridge had instituted in his dozen years as dean of Osgoode Hall. The school was being cut back so that articling requirements could be observed scrupulously. There can ... be no difference of opinion in respect of the value and importance of proper office training and the immediate need of better measures to supply it,' said the report with serene certainty. Convocation had once more affirmed that the important problem and the potential solution lay not in the law school at all, but in articling. By comparison, all that went on inside the law school simply was not an urgent priority.^ In the years after the 1935 edict, the benchers continued to work on the problem of articling quality. In 1937, the Law Society's

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legal education committee (then chaired by Shirley Denison) considered adding a year to student requirements in order to extend time under articles. In 1939, the committee instituted an elaborate test of how effectively students were learning from their office experience. With practising lawyers acting as volunteer oral examiners, all 111 graduating students were grilled in a single weekend on their mastery of details of actual practice, such as 'knowing whether the deed in a real estate transaction needed a seal or not/ In general, the students did not do well, and their answers made clear that articling had left many with large gaps in their practical experience. Caesar Wright (who was not asked to participate) would undoubtedly have concluded that this was further proof that articling did not work and should be abandoned. The supervising benchers, however, declared that 'the first attempt to ascertain the result of training under articles is generally a success' since it helped identify what gaps in office experience they needed to address. The committee predicted that results would be better if students in offices were 'at least allowed to observe every aspect of general duties,' and if the law school teachers concentrated more on the statutes required in everyday practice.74 For those who took articling seriously, the articling system was revitalized by the Second World War almost as effectively as it had been undermined by the Depression. As students and young lawyers departed for the armed forces, the students who remained could pick and choose their articling positions. Law firms were suddenly busy and short-staffed, and they were once more eager to have students and to involve them in substantive matters of practice. They would even bend the informal rules of hiring. Alice Gordon, the first woman to work in a large downtown Toronto law practice, joined McCarthy and McCarthy in 1942. Hired on the understanding that she might not be kept on after the war, she became a partner in 1955 and finished her career there. Nothing illustrates the comfortable patrician authority of the interwar Law Society of Upper Canada better than the complacent conviction with which its 1935 decision on legal education had brushed aside the very broad consensus that defined appropriate professional education by higher admission standards, more affiliation with academic institutions, a more intellectually rigorous ped-

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agogy, and less concern with practical training. And nothing better illustrates how secure that authority was than the reaction to the Law Society's decision to dismiss academic concerns and to focus everything on the restoration of articles. Key benchers later told each other that the 1935 actions had succeeded by 'putting the control back in the hands of the Benchers where it belongs/ Indeed, reaction from the groups that had been lobbying for change was muted. Two benchers were defeated by non-benchers in the elections of 1936, but no one Caesar Wright would have considered an advocate of educational reform came into convocation, and the deferential voting patterns by which benchers had always been maintained in office did not change significantly. The county law associations, which played a significant role in electing non-Toronto benchers, made no identifiable effort to change their representatives. The CBA, whose presidents from 1927 to 1939 included Law Society treasurers Wallace Nesbitt, Newton Rowell, and Lally McCarthy, was losing the elite radicalism of its early years, and real commitment to educational reform seems to have survived only in the academically dominated legal education section. Osgoode Hall students continued to protest, but Falconbridge and Wright, obliged to accept the benchers' authority, stepped up their scholarly work and bided their time.^ In 1935, the Law Society reaffirmed that it would preserve and refresh the innovations of the 1890s. Its refusal to acknowledge that an alternate vision of professional education had swept the field nearly everywhere else endured without effective challenge for a decade, through the rest of the Depression and the whole of the Second World War. In 1944, R.S. Robertson, then chief justice of Ontario but in 1935 an influential bencher, told Caesar Wright (who had hoped to make him an ally) that 'contact with the actual conduct of real affairs is what is needed and it is what law students today do not get very much of.' Shortly afterward, the battle would be renewed.^ HOLDING BACK THE CLOCK

Days before Canada entered the Second World War, Law Society treasurer Lally McCarthy wrote to Ernest Lapointe, the minister of justice. Ottawa would need lawyers 'in the present catastrophe that has overcome us,' and McCarthy was offering his services as the 222

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government's talent spotter, 'I have the means of knowing most of the members of the profession, certainly in Ontario/ he wrote, 'and can speak with a good deal of reliability as to their character and fitness for any work that you may see fit to assign them.'??* McCarthy, elected treasurer earlier in 1939, saw himself in his new role less as an administrator than as a kind of mentor to all the lawyers in Ontario, and he revelled in it. Born to wealth and prominence as the son of D'Alton McCarthy, he had joined the family firm in 1895 as a courtroom barrister of a traditional kind. As McCarthy and McCarthy put aside its roots as a litigation house after the First World War, however, he fell out of sympathy with his McCarthy cousins and their ambitious, corporate-minded partners. In 1931, declaring that the new McCarthy offices in the Canada Life building west of Osgoode Hall were too remote, he left the firm in search of more independence to practise as he preferred.78 Briefs came in steadily, and McCarthy's fees were high. He charged $100 a day when the Ontario government had a rule against paying outside counsel more than $60, so the Attorney General's Office hired him on a five-day basis and he worked three. 'Well, he was thinking the other two,' they said, but in fact McCarthy was renowned more for his style than for depth of thought. McCarthy was 'full of wit, bright, but despised preparation,' recalled John Robinette. 'He would pick up the case a day or so before it was coming on for hearing, and have [his juniors] tell him all about it, and he would be ready.' It was said that he once began arguing the wrong side of a case, and when alerted by a junior, continued right on, saying imperturbably that that would be his opponent's argument and these were the reasons to reject it. Gregarious, civilized, never at a loss, he knew all the courtrooms of the province, and he sailed regularly on the Atlantic liners to plead Privy Council cases in London. In 1941, his last bencher election, he topped the poll. 'He liked his women and his liquor and society and he liked his law, maybe I have given that in the wrong order,' said a younger lawyer who admired him. 'He had a flair for appearance.'79 Sixty-eight when he became treasurer, McCarthy lavished that flair on the office. He invited Governor General Lord Tweedsmuir (the British lawyer-novelist John Buchan) to open the new wing of Osgoode Hall, and soon he was campaigning to have Osgoode Hall The Last Patricians, 1914-1950

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McCarthy's knowledge was tested when the Irish High Commission sought the Law Society's advice regarding Angelo J. Agro, a young Hamilton lawyer it was considering retaining. McCarthy replied that the young man in question was 'what might be described as an aggressive young Italian barrister, not very well to do but still making a living ... responsible and reliable.'

* On an earlier visit, Tweedsmuir commented on the jokes the legal profession had to endure. 'I have heard the Latin tag Nemo repente fuit turpissimus - "no one becomes very bad all at once" - translated "It takes five years to become a solicitor.'"

added to the itinerary of the royal visit of 1939.* He was unsuccessful, but he took umbrage at an aide-de-camp's suggestion that most of the bench and bar would be well placed to see the king and queen at Woodbine race track during the running of the Queen's Plate. Eager to make the Law Society more aware of its traditions, he acquired the diary of founding treasurer John White and tried to organize a reunion of the law school's first class, with Chief Justice of Canada Lyman Duff as guest of honour. He even tried to have Wyndham Lewis, then in Toronto, commissioned to paint Law Society portraits, only to be thwarted by his finance chair, Goldwin Larrett Smith, who was unwilling to pay Lewis's price (What we want is a likeness and not a work of art').80 McCarthy was only a few months into his term as treasurer when the war broke out. At Osgoode Hall, the gates were closed and guards were posted once again, much to the annoyance of working lawyers trying to get into the courts. McCarthy had to rein in his ceremonial impulse; the term dinners and 'Great Nights' he hoped to host in Convocation Hall were cancelled for the duration. Instead, he plunged into the war effort. His offer to Lapointe was perceptive; once again lawyers and the profession were going to be harnessed to the war effort, and many lawyers were recruited to Ottawa's new wartime bureaucracy. Many more, of course, joined the armed forces. Osgoode Hall soon acquired its own branch of the Canadian Officer Training Corps, through which law students took militia instruction, spent summers training with the forces at Niagara, and were commissioned on graduation. Its authorized strength eventually grew to nearly 450, but the pool of law students shrank fast; by the later years of the war there were barely 100 students at the school. Edmond Pew went directly from his call to the bar to the air force, and soon he was serving with Bomber Command in England. Gibson Gray left to navigate a frigate for the Canadian navy and received his call to the bar in absentia, with his father standing in as proxy. Walter McGregor was soon on his way to Dieppe and a prisoner-of-war camp. William Howland spent much of the war doing army staff duties in Canada, but he had orders for the invasion of Japan until the atomic bomb fell.81 As in the First World War, some lawyers rose to high rank.

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Howard Graham, a Trenton lawyer and veteran of 1914-18, commanded a brigade in Italy. Graham stayed in the army after the war (and became chief of the general staff), but other high-ranking lawyers, notably Brigadier Beverley Matthews, came back from running armies with new ideas for applying their management skills to big law firms. On the civilian side, Henry Borden became counsel to Ottawa's Department of Munitions and Supply, and younger lawyers toiled for the Wartime Prices and Trade Board and other civilian agencies. Lawyers and law students were again exempted from Law Society fees while in the forces, but convocation decided not to renew the educational exemptions granted to First World War veterans. The result was not satisfactory/ reported a committee, 'and no one having the interests of the profession at heart would wish to see similar conditions adopted now/ Eager to keep serving lawyers in touch with the profession and their professional 'home/ Osgoode Hall, the society began distributing the Armed Forces Letter to members in the services. This miscellany of case reports and legal gossip seems to have been warmly received; secretary Earl Smith read to convocation a letter of appreciation from Pilot Officer Pew in England, and then added that Pew had been killed over Berlin before his letter arrived.82 From prison camp Oflag VIIB, Major Harold Lazier sent a request through the Red Cross for law books and current law reports, so he could keep in touch with his profession. German authorities forbade the delivery of 'controversial' materials, and Ontario Reports fell into that category, but the Law Society sent him Falconbridge on Mortgages instead. Gradually, Osgoode Hall became one of the sponsors of an informal Commonwealth law school in the prison camps; Captain J.R. Turnbull of Windsor wrote his second-year exams there. Despite its eagerness to support these morale-boosting programs, convocation and the law school agreed in 1943 that there would be no short-cut summer courses for returning students.

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These discreet cards, typical of those distributed on behalf of bencher candidates, marked the limits of election campaigning in the 1930s and 1940s.

The War Memorial to the Law Society's dead of 1914-18, in the Great Library at Osgoode Hall, bears 118 names.

Instead, plans were laid for refresher courses to help lawyers return to practiced When the war finally ended, some 734 lawyers and 177 students had been on active service, substantially more than in the First World War, but there were only half as many names for the war memorial as there had been in 1918.84 Still, McCarthy's correspondence included a note of condolence to his friend and fellow bencher William Middlebro' of Owen Sound, whose lawyer son had been one of the first Law Society casualties, and the death of a son of McCarthy's cousin Frank foreshadowed the end of family control at McCarthy and McCarthy. McCarthy retired as treasurer in 1944 and gave up active practice soon after. His personal contribution to the war, meanwhile, had fulfilled his most romantic notions about the fellowship of the law. In 1940 he had helped arrange for the Law Society to offer foster homes for children of English barristers among the families of Ontario lawyers. Several hundred lawyers volunteered, and some children actually arrived before the realities of submarine warfare put a stop to evacuation by sea. McCarthy and his wife, their own children grown and gone, virtually adopted two girls from England, and the treasurer's letter file includes a sheaf of letters to their father, a London barrister posted to Edinburgh and desperate for news of them.85 Two wartime programs hinted at future innovations. The refresher lectures for returning lawyers - McCarthy was among the speakers - were considered very successful, and though they soon ended, they would be fondly recalled in the 1950s as a model for what became known as continuing legal education. Meanwhile, the Law Society encouraged a CBA initiative to organize the provision of free legal advice, first for soldiers and then, as wartime marriages became wartime divorces, to soldiers' spouses as well. This program continued for several years after the war, and for at least some around Osgoode Hall, it suggested that organized legal aid need not be so impractical as convocation had always believed. In most of their preparations for peace, however, the benchers intended not to innovate, but to preserve or to restore pre-war conditions. At first, peacetime prospects for lawyers seemed uncertain. 226

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Gibson Gray, one of the first lawyers to get out of the service, hoped to return to the litigation firm where he had articled. But Gershom Mason of Mason, Foulds was predicting 'a much worse depression' than the one that had followed the First World War, and he was not hiring. Fortunately for Gray, several partners had left the Tilley, Carson firm after W.N. Tilley died in 1941, and the firm's most promising junior, Forbes Morlock, had been killed in Normandy, so Gray launched his career there. Lawyers who returned after Gray found prospects improving rapidly, as law practices that had been short-staffed and overworked for six years developed new work.8^ Gray was among 150 veterans who took the refresher lectures the Law Society organized for lawyers returning from the armed forces. Legal education felt the impact of returning servicemen most. The number of students at Osgoode Hall shot up from 100 in September 1944 (about 325 had been the pre-war norm) to 450 in the fall of 1945, 700 in 1946, and 800 in 1947.87 Students scrambled to find articling places, and the overcrowding the law school had known before the pre-war additions returned with a vengeance. With 300 or more students in every class, and new courses in municipal and administrative law, tax law, and labour law to be squeezed into the curriculum, the classrooms and Convocation Hall were busy six days a week.88 The old problem had returned with new urgency: the benchers were determined to rejuvenate the articling regime, while the academic staff wanted more classes on academic lines. Allan Leal, then a student and later dean of the school, recalled that the 'staff was committed to a full-time school, and they had two hours a day in which to jam this in, and our principals downtown were equally demanding ... Every waking hour [was] devoted to our tasks ... there literally wasn't any other time for anything else.'89* The explosion in student numbers exposed the weaknesses of the articling system once again. Some firms took on extra students 'to help the veterans' and then had little for them to do. Others, short of juniors and support staff, were eager for cheap labour but not helpful to the students. Robert Reid, who began articling at The Last Patricians, 1914-1950

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Secretary W. Earl Smith examines the memorial to the Second World War dead in the Osgoode Hall rotunda.

* The postwar years saw many petitions from refugee European lawyers seeking to practise in Ontario, but the Law Society usually required them to requalify from the beginning.

McLaughlin, Macaulay in 1946, found 'that I was there to search titles, I wasn't there to learn anything. I was a slave for the firm and so were all the other students/ Shirley Denison may have been articling's staunchest advocate, but one student recalled, 'Denison had this very narrow practice ... I didn't think I was getting very much education/ and switched his articles elsewhere. Some students and firms resorted to sham articles. There had been complaints during the war that law school prizes were being monopolized by students who had no office obligations to distract them, and this problem continued.90 Overcrowding made headaches for students at the law school as well. Caesar Wright was undoubtedly the most imposing personality at the school, both in the classrooms and in the simmering controversy. As a teacher, he was as controversial as ever. Many students responded enthusiastically to his probing, demanding style, but others found him self-indulgent and callous. Robert Reid, who came to Osgoode Hall from the air force, found case-study classroom discussion, which Wright insisted on, simply inappropriate in classes of 350. And, like many veterans, Reid resented the staffs readiness to reduce numbers by ruthlessly failing weaker students. 'Here were the returning soldiers being slashed and routed by what looked to us to be a mean little bunch who had not seen any of the hardships we had seen during the war/ The veterans found an ally in First War veteran Hamilton Cassels, chair of convocation's legal education committee, who infuriated the faculty by approving virtually all appeals by veterans.91 Many students caught in the war between the benchers and the educational reformers kept their heads down and struggled to 'get their ticket/ but the poisoned atmosphere precluded any accommodation between the antagonists. Even Wright's allies agreed he was disrespectful of opponents and disinclined to hide his sense of intellectual superiority. The benchers, on the other hand, were less than ever willing to be instructed. War had preserved the authority of benchers who had taken charge in the 1930s and were not prepared to acknowledge any need for change. In 1944, Lally McCarthy had passed the treasurership to his contemporary Shirley Denison, who was succeeded in 1947 by the only slightly younger Gershom Mason. All were sceptical of academic theorizing and suspicious of university conspiracies to undermine professional control 228

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of legal education. Under their leadership, convocation continued to issue conservative declarations on a range of issues, from legal aid {'If a litigant has cause ... he would have little or no difficulty in obtaining the services of a solicitor to take his case') to public relations (The most effective way, if not the only way, of maintaining proper relations with the public is for the Law Society to maintain the high standing and traditions of the profession').92 There could be no productive dialogue between these benchers, who still insisted that 'there can be no difference of opinion' that articling was the most important aspect of legal education, and the academics, who declined even to argue the case for full-time schooling on the grounds that its advantages were self-evident. So Caesar Wright sneered at the 'primordial' attitudes of his employers, and the benchers replied in kind, the most vocal being a relatively new member of convocation, Michael Chitty.9^ Many of Chitty's fellow benchers considered him rather scholarly for a practitioner. A tireless reporter and editorialist on legal issues, Chitty had seen himself as an outsider and a gadfly when first elected in 1941, but his eclectic researches in the law were rooted firmly in the English educational system, where academic study and preparation for practice were divorced. In his published exchanges with Wright, Chitty adopted what had previously been a pejorative description applied to Osgoode Hall Law School by the benchers' critics, declaring defiantly that Osgoode Hall was indeed 'a trade school.' Chitty apparently meant the alternative was an impractical, theory-and-research school of the type he accused Wright of favouring. As a headline, however, it was hardly a boost to professional pride.9^ In their distrust of university education, the postwar benchers were far more isolated than they had been a decade earlier. The university in postwar Canada looked less and less like the citadel of elitist privilege that Sir James Aikens and the Lawyers' Club had cherished in the 1920s. Universities were expanding rapidly to dominate all professional training, all higher education, and virtually all routes towards middle-class entitlements. Veterans' benefits were opening universities to many 'ordinary' Canadians with no interest in their old elitism, and the emerging leaders of the 'junior' bar were often proteges of Kennedy and Wright who took for granted the value of academic credentials for lawyers. The argument that The Last Patricians, 1914-1950

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academic legal studies could be unnecessary or even harmful to lawyers had still been plausible in the 1930s (though not to the reformers), and the benchers could reasonably worry that the public might interpret the imposition of higher academic prerequisites as an abuse of Law Society powers for the benefit of a privileged minority. In the late 1940s, however, resistance to the universities' monopoly over all forms of professional education was collapsing, and it was the refusal to yield to the universities that endangered the Law Society's reputation and placed its authority in question. From 1945, a new array offerees emerged to contest the bencher version of legal education. Sidney Smith, the former law school lecturer and close friend of Caesar Wright, had returned to Ontario as president of the University of Toronto. As he told a university committee on legal education, Smith intended that 'the law school at Osgoode Hall should be absorbed/ though for the sake of negotiations he put more moderate language into the committee's official report. The premier of Ontario, George Drew, himself a lawyer, accepted Smith's urging that he should help persuade the Law Society to negotiate with the university through a joint committee. Then, in 1948, John Falconbridge announced his retirement as dean of Osgoode Hall Law School. The benchers, though they had sometimes considered firing Caesar Wright for his open criticism of their policies, acknowledged that as the dominant member of the staff, a noted scholar, and a respected legal counsel, Wright was Falconbridge's only plausible successor. Wright took office as dean in March 1948. Expecting either to make Osgoode Hall a full-time law school or to complete arrangements with the University of Toronto, he began at once to expand further the staff, the curriculum, and the school year towards these ends.^5 The benchers, however, were moving on their own initiatives. The joint committee with the University of Toronto had deadlocked, and the Law Society's own special committee on the law school, chaired by Percy Wilson, took the lead. Despite the powerful presence of Denison, Mason, and other defenders of traditional articling, the special committee demonstrated that convocation was beginning, however slowly, to entertain new ideas on legal education. When the special committee returned to convocation in January 1949, its majority report, signed by four benchers (including Hamilton Cassels, chair of the main legal education committee) 230

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was challenged by two minority dissents. Special committee chair Percy Wilson, who was one dissenter, had decided that the apprenticeship system was broken irretrievably; his minority report favoured a three-year, full-time law school much like that advocated by Wright. Park Jamieson, the other dissenting committee member, urged a longer program with time for more course work and for extensive articling.96 The majority report, however, proved to be the one with most support in convocation, and it was a very hard-line document. There was 'no fundamental difference in the situation' since the 1935 report on legal education, it declared. Its authors, led by Hamilton Cassels, agreed that the system based on articling was in trouble, but only because 'the profession had fallen down in its fundamental part in the system.' Cassels wanted no changes beyond those that would 'provide a better balanced course' by improving and expanding office-based training. Cassels's report repudiated every proposal of the reformers, and it called for more direct bencher supervision of the law school. When it and the two minority reports were presented to convocation on 20 January 1949, both minority reports were rejected. Cassels's report became Law Society policy. Dean Caesar Wright learned of the decision in the newspaper the next morning. This time the benchers could not force acquiescence on their opponents. Caesar Wright immediately resigned as dean, and virtually the whole faculty resigned along with him. Amidst a swelling controversy in which press editorials, student resolutions, and public statements by lawyers abused the 'thirty tyrants' of convocation, Wright repudiated Osgoode Hall and all it stood for. Within six weeks, newly installed as dean of law at the University of Toronto (which also hired two of his key staff members, Bora Laskin and John Willis), Wright was campaigning to have the legislature strip authority over legal education from the Law Society and transfer it to the University of Toronto. Caesar Wright's resignation was the first substantial, and greatest single, blow to the hegemony of the benchers over governance of the legal profession in Ontario. The benchers retained their authority, but they lost the unquestioning respect they had once The Last Patricians, 1914-1950

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In March 1949, Dean Caesar Wright and his staff posed for news photographers with their letter of resignation from the law school. Left to right: Stanley Edwards, John Willis, Bora Laskin, and Wright.

The newly elected treasurer Cyril Carson posed at the benchers' entrance to Osgoode Hall with his four immediate predecessors. Left to right: Shirley Denison( 1944-7), R.S. Robertson (1937-9), Carson (1950-8), the always elegant D'Alton Lally McCarthy (1939-44), and Gershom Mason (1947-50).

enjoyed* Wright, his fellow academics, and their allies in the profession were willing not merely to denounce the benchers as reactionary primitives out of touch with modern realities. Perhaps more important, they also fought a campaign that convinced the government, public opinion, and substantial segments of the legal profession that there was truth in that characterization. The almost sacrosanct authority of Osgoode Hall had at last been effectively questioned. The education crisis did not dethrone the benchers, but it cracked the extraordinary invulnerability that the Law Society had enjoyed for most of its 150 years. Over the next half-century, the Law Society actually preserved its formal authority and even expanded it into new fields, but it would never again be unchallenged. Indeed, the perception that the Law Society of Upper Canada was arrogant, out-of-touch, out-of-date, and less than entirely legitimate would gradually become its almost constant companion. The society could be said never to have recovered from this first and fundamental crisis of authority. In 1950 the Parliament of Canada, without much support from the profession in Ontario, ended appeals from the Supreme Court 232

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of Canada to the Judicial Committee of the Privy Council in London. That same year, an elaborate survey of the legal profession in Canada by the Dominion Bureau of Statistics categorized any law firm with more than four lawyers as 'large.' About the same time, a young practitioner described the offices of one of Toronto's leading firms, headed by two benchers, as looking less like a modern office than like Company B headquarters - all you needed was an empty whiskey bottle with a candle in it.' And treasurer Gershom Mason, having been carefully coerced out of his reluctance to approve a statue of a nude woman and child, authorized sculptor Cleeve Home's design for the memorial to the dead of the Second World War in the rotunda of Osgoode Hall. It could appear that the benchers and the traditionalists of the legal profession were holding the line. Appearances were deceiving.97

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CHAPTER FIVE

A New Agenda, 1950-1970

'... we now have a system of spot auditors, going around ... so that has cut down tremendously on the numbers of defalcations. And a few stiff prison terms helped/

-JJ. Robinette, 1987, recalling the 1960s

A call to the bar ceremony in Convocation Hall in the early 1950s, when the number of law school graduates was rapidly increasing.

N

EAR THE END OF THE SECOND WORLD WAR, treasurer Lally McCarthy had formed a blue-ribbon panel to consider what might befall the legal profession when the war ended. Fear of a postwar depression was pushing the Canadian state into modern economic planning on Keynesian lines, and the government had asked professional bodies to assist by surveying their own future prospects. McCarthy headed the committee, assisted by fellow bencher James McRuer, a Liberal party activist soon to be named (on McCarthy's recommendation) to the Court of Appeal, and by Clyde Auld, an Oxford-trained law professor at the University of Toronto. The report delivered by McCarthy, McRuer, and Auld is a classic in the genre of lawyers' complaints about bleak prospects. There can be no doubt that the opportunities for a young man to make a living in law today is [sic] much more limited than it was some years ago ... How many men or women after they have finished A New Agenda, 1950-1970

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ANEW

AGENDA, 1950-1957

their activities in the present war will be able to go through the necessary training to ensure their making even a reasonable living in law is a matter of conjecture ... probably law was never at a lower ebb than it is today so far as making a living ... Prospects in the legal profession at the present time do not appear to us to be very encouraging. In fact, in the opinion of some persons, the profession is already over-crowded and ... there may not be enough work for all.1 Since the government soon lost its fear of postwar recession, McCarthy's committee report went unread. This was fortunate, for its prediction was spectacularly wrong. Soon after the war, the Canadian economy began an unprecedented expansion that continued for a quarter of a century, and lawyers benefited at every step. New layers of state regulation and public administration created new business for lawyers. Industrial development on a massive scale transformed corporate law practices and invented modern labour relations. As millions of Ontarians used their new prosperity to build homes, buy cars, marry, raise families, and accumulate property and services, they made work for lawyers at every stage. As Ontario surged forward, the legal profession rode the crest of the wave. The students who poured into Osgoode Hall in the years that followed the war graduated to bright prospects. Even as thousands of new lawyers entered the profession, old fields of legal practice expanded and subdivided and new fields emerged, creating business to support the lawyers at a previously unimagined standard. Of the quarter-century from about 1950 to the mid-1970s, it might be said that never in the history of Ontario had so many lawyers made so much money with such relative ease for so long. The Law Society of Upper Canada was transformed along with the world of legal practice. In the late 1940s, the society carried out the same limited range of functions it had had since its inception: essentially admissions, discipline, law libraries and law reports, and legal education. Benchers, all male, white, and Christian, met in convocation nine times a year, wearing morning dress or directors' suits. The business of convocation rarely lasted past lunch-time. As 238

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late as 1950, the entire Law Society staff- secretariat, the library, the law school, maintenance, and groundskeeping - was only a dozen people. Change was coming fast. Within a few years of the end of the war, the benchers began to reverse positions they or their predecessors had held to stubbornly in the 1930s and 1940s, when every new initiative was both wrong in principle and impossible in practice. By the 1950s and 1960s, very little seemed impossible. The faith in long-range planning and activist administration that inspired the state's projects for postwar reconstruction had captured the Law Society as well. Without much fanfare, the benchers instituted new programs or revamped existing ones right across the spectrum of the Law Society's responsibilities. Gradually, the consequences of their choices transformed the institution. In the decades after 1950, the society began to offer services previously unknown: a legal aid program, a client compensation fund, continuing legal education, professional conduct guides, and eventually an insurance company, a public relations arm, even a museum and archives. Mirroring the expansive trend that typified governments and bureaucracies of the time, the Law Society ceased to be remote from the routine practices of most lawyers. Instead of sending in a token annual fee, lawyers found themselves increasingly taxed, regulated, documented, audited - and sometimes represented - by the Law Society. The law school and the students departed from Osgoode Hall, but even as the school left, the building had to be expanded to provide space for the society's growing staff. An organization whose staff had been numbered in single digits for a century took on hundreds of employees. The expansion of both the legal profession and the Law Society continued without significant check through four decades. Only in the 1990s did the profession and the society begin seriously to confront the limits to growth. By then the changes had been so all-encompassing that the society's 200-year history might reasonably be divided into two periods: the first 150 years, and the succeeding 50. Cyril Carson, a big man 'with great presence,' succeeded Gershom Mason on his fiftieth birthday, 18 May 1950, and began an eightANew Agenda, 1950-1970

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year term as treasurer, the longest since the days of Irving, Blake, and Cameron. Carson hardly seemed a harbinger of change. As a bencher since 1936, a partner of ex-treasurer W.N. Tilley, and one of the conservatives in the recent law school battles, Carson suggested continuity despite his relative youth. Still, the face of convocation was changing. Only one incumbent was defeated in the 1951 bencher election, but since eight moved to life-bencher status, nine new benchers joined the convocation table. (Helen Palen, twelve places short, came closer than any other woman until the 1970s.) The election also gave an unusual 'country' dominance to convocation - only twelve Toronto benchers were elected, against eighteen from out of town.^ Benchers coming to the fore included Park Jamieson and John Robinette, both first elected in 1946. Jamieson was an urbane lawyer from Sarnia who made his hotel suite, always well provided with deluxe Scotch and good food, the hospitality centre whenever lawyers gathered. An enthusiast for culture and an early board member of the Canada Council who was always immaculately dressed and rarely lacked a flower in his lapel, Jamieson was 'Canada's most eligible bachelor until it was clear he would never marry' (in John Arnup's discreet phrase). During the 1950s Jamieson would be an influential bencher as well as president of the Canadian Bar Association. His ambition to succeed Carson, however, and be the first Law Society treasurer from outside Toronto, was foiled by his contemporary, John Robinette.^ Robinette, the son of the criminal defence lawyer T.C. Robinette, had been the brightest law student of his time and a popular law school lecturer. By the time he was elected to convocation, he was becoming a leading litigator, and his part in cases such as the sensational murder trials of Evelyn Dick was making him one of Canada's best-known lawyers. Considered a voice for the younger lawyers of the 1940s, Robinette was impatient with the older benchers' ways and he was a close friend of Caesar Wright. By the 1950s he routinely topped the poll in bencher elections, and his views carried weight with the bar and the benchers.^ These two would soon be joined by John Arnup, son of a moderator of the United Church and a fast-rising civil litigator. Arnup did not run in the 1951 bencher election because his law partner, ex-treasurer Gershom Mason, was a candidate, but with Mason 240

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having become a life bencher, convocation appointed Arnup to fill a vacancy barely a year later. A small, precise, and organized man, Arnup had what one courtroom adversary called 'a highly developed sense of relevance/ and he applied it to Law Society business as well as to intricate commercial litigations. The selection of replacement benchers from the top losers of the previous election remained a guideline, rather than a binding commitment until 1970. In 1954, Robinette benefited from this loophole after he accepted a judicial appointment and then changed his mind just before being sworn in. Having been appointed a judge, however briefly, he lost his place in convocation. The benchers reappointed him to fill his own vacancy. Of the two non-candidate appointees of 1952, Arnup ran second to John Robinette in 1956, but Harold Walker of Blakes missed re-election.^ A non-bencher with much influence upon convocation was Earl Smith, who after fifteen years as secretary was a past master of the routines of convocation and the politics of the bar. A contemporary of the leading benchers of the 1950s (he had been Osgoode Hall's bronze medallist in 1921, when Carson took the gold), Smith was a trusted servant of several successive treasurers. He also wielded increasing influence behind the scenes, shaping the opinion of the bar, defining Law Society policy, and suggesting who should become benchers and treasurers. Treasurer Carson used the talents of his benchers and staff effectively. In court, he was 'a master of the set-piece' who preferred to have everything proceed according to plan; he often delegated most of the preparatory work to his associates, much as he himself had formerly 'devilled' for Tilley. These instincts for delegation and planning, rather than any specific program of his own, were the foundation of his term as treasurer. Formal and rather distant with colleagues, Carson unwound only at his Muskoka retreat with its speedboat and its dance floor 'big as a squash court,' but the authoritative direction he gave won him high praise from his successors, Robinette and Arnup, who considered him one of the great treasurers.6 The first substantial innovation of Carson's term was a system of legal aid. Despite the society's long-standing objection to anything but traditional, informal legal aid, the subject had continued to come up. The Canadian Bar Association's wartime program of legal A New Agenda, 1950-1970

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counselling to military personnel and their families had helped create a reassuring precedent. Other Canadian jurisdictions were investigating legal aid projects, and ad hoc projects on American models had emerged in several Ontario cities. In Hamilton, for instance, volunteer lawyers were assisting the local community chest organization in offering free legal services to welfare recipients. Canadian lawyers also took note of Britain's 1945 Rushcliffe Report, which had led there to a publicly funded, lawyer-run legal aid system in 1949. Meanwhile, a 1947 Canadian Bar Association resolution declared that it was 'the responsibility of the legal profession collectively' to provide legal services to those lacking the means to retain their own lawyers, and that governing bodies in each province should consider the means of discharging this responsibility.7 The Law Society responded to the CBA's urging with a special committee chaired by bencher Michael Chitty. Chitty began with the conviction that the existing pro bono services were entirely adequate, but in November 1950 his committee proposed and convocation approved the first formal, province-wide program of legal aid for needy persons.' The 1950 plan proposed that the Law Society should appoint a legal aid committee in each county and district of Ontario. Local committee members, all volunteer lawyers, would establish legal clinics at which members of the public would have their need and eligibility for legal aid assessed. These clinics could dispose of minor matters by on-the-spot advice, but approved applicants could also be referred to participating lawyers from lists maintained by the local director. Both civil and criminal matters were eligible, but only the indigent would qualify for assistance under the plan - the threshold for exclusion in 1951 was an annual income of $900. Participating lawyers received no fees, and the only paid officer of the new plan was the local director for York County, Sheriff Douglas Conover, who received a small stipend.8 The Law Society proposed to cover the plan's administrative costs from its own resources, and it held sole responsibility for the new program. Law Society secretary Earl Smith became the plan's administrator and received the additional title of provincial director of legal aid. Initially, the society did not even seek legislative authority for the plan, though when some technical details con-

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cerning court costs seemed to exceed the society's powers, enabling legislation was quickly obtained - an amendment requested by the society on 15 March 1951 received third reading on 30 March. Legal aid panels and area committees began operating that spring. Despite the country bar's opinion that legal aid was largely an urban issue, all counties and districts soon joined the plan. Some 3000 applicants, including fifteen accused murderers, were accepted in its first full year. After a decade in operation, the plan was handling about 10,000 cases a year, but its cost to the society was still barely $7000 annually (disbursements and transcript costs were largely covered by annual grants from the attorney general). There was no pay for participating lawyers.9 The 1950 legal aid plan was a very conservative form of activism. It simply institutionalized the old pro bono process by which lawyers donated legal services to impecunious citizens. The main opposition to it, in fact, came from lawyers who found such organization unnecessary. Bencher David Evans wrote from Orangeville to say he had voted for the plan because the cities might need it, but that the new system would likely not take effect

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The Law Society's first cautious venture into (unpaid) legal aid put its habitually discreet secretary, W. Earl Smith, on the frontpage. Smith held the position from 1933 to 1966.

here because most of the lawyers in this county look after this type of case' privately. A strong incentive for the Law Society's action was the conviction, expressed by Chitty's fellow committee member Gordon Conant (a former premier and attorney general), that it was 'better that the lawyers of Ontario should extend legal aid to needy persons voluntarily and under the control of their own governing body, the Law Society of Upper Canada, than at the command and under the dictates of any other governing body/10 Like the old pro bono system in which it was rooted, the 1950 legal aid plan depended on individual lawyers who donated their services. Self-interest as well as altruism drew lawyers to legal aid, for many young lawyers identified it as an aid to practice building. Barry Pepper, called to the bar in 1950, recalled how he put himself on the criminal law panel and soon found that success in legal aid cases attracted paying briefs for both defence and prosecution work, which in turn led to more lucrative civil litigation cases. In some rural counties, local solidarity encouraged the entire membership of local law associations to join the legal aid panels. Nevertheless, scarcity of volunteers was always a problem, and most who volunteered were young and inexperienced. York County, which did more than half of all legal aid business, never had more than about two hundred lawyers on its lists. As early as 1953, local director Douglas Conover complained of the 'necessity of getting more help on my criminal panel before it blows up altogether and we are faced with the problem of abandoning criminal legal aid or providing a public defender.' * * When the 1950 plan was approved, one lawyer wrote excitedly to Earl Smith, 'This venture can be the greatest step in the history of the Law Society, or it can boomerang/ The society soon came to view it as at least a substantial success. John Robinette noted Very extensive and favorable comment by the press, not only in Ontario but across Canada' - a pleasant contrast to the law school episode. The 1950 model of legal aid endured for seventeen years, and each year director Earl Smith presented convocation with a report stressing the number of cases handled, the minimal cost, the selfless contributions of lawyers, and the benefits of having the program entirely controlled by the bar. Even when the mid-1960s brought growing criticism of the pro bono system, Smith's upbeat reports

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continued to reflect the Law Society's view that its venture beyond its traditional mandate to administer a new service to the public and the profession had been reassuringly positive.12 As legal aid began, the Law Society put other new initiatives into play. March 1950 saw the birth of Law Society participation in what is now continuing legal education. The long-lived seminar series known simply as 'the March lectures' responded to demand from the profession, already struggling with the increased complexity of practice caused by new legislation and lawyers' expanding responsibilities. The Canadian Bar Association had also begun to organize legal seminars, but now the Law Society decided to offer its own lecture program over two weekends in March. The series, loosely modelled on refresher courses the Law Society had run after the war, were an immediate success, earning enthusiastic reactions from an overflow crowd. The inaugural series was 'Company Law.' Willard Estey, who attended, recalled the excitement when the Montreal lawyer and wartime mandarin Heward Stikeman 'actually got up and would take on the authorities ... He forecast most of the problems of taxation and the oncoming new tax act and everything. That really started, I think, continuing legal education.' The March lectures, soon expanded to London and Ottawa and, supplemented by lectures offered throughout the province, quickly became a Law Society institution. The blue-bound volumes of March lecture texts grew into a prestigious publication. Edson Haines, elected a bencher in 1951, became convocation's most outspoken advocate for continuing education, arguing in the 1950s for programming that became standard only a couple of decades later. ^ Another new initiative was public relations. In 1947 convocation had concluded that 'no scheme of institutional advertising or public relations publicity would be effective to improve public relations.' The public relations disaster which Caesar Wright inflicted on the society shattered that complacency. In April 1949, in the midst of the law school crisis, the society hired McKim Advertising as its publicity consultants and began to learn about courting the public through press releases and self-promotion. In 1953 convocation decided not to hire a full-time public relations officer (and it discontinued the McKim contract a year later), but soon after, the

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public relations burden on the secretary was the motive cited for hiring a deputy secretary to assist Earl Smith. ^ In early 1956, the Law Society first opened Osgoode Hall to the public, offering guided tours in association with a series of public legal forums in Convocation Hall Sponsored by the society, the Toronto Daily Star, and a network of radio stations, the initial forums on Taw and Your Home' and Taw and Your Automobile' featured prominent lawyers outlining basic legal problems. They attracted lay audiences of 1100 or more and received wide distribution in the newspaper and a province-wide network of radio stations. Such publicity successes seem to have been welcomed by even the most traditional benchers.^ Benchers were also involved with new measures of assistance to the profession. Having started a staff pension plan in 1947, the Law Society considered a group pension for all its members, though convocation finally decided that lawyers are a critical and able group of people and in such matters are apt to prefer to make their own arrangements.' Simultaneously, however, two lawyers' charities were initiated. Former treasurer Shirley .Denison, long troubled by the financial and social ruin that disbarment could inflict on a lawyer, bequeathed his estate to the Law Society to be used for the relief of indigent lawyers and their families, 'including the families of disbarred lawyers.' The $100,000 bequest, announced in September 1951, finally brought into being a Law Society Benevolent Fund (for which treasurer Denison had laid effective foundations by securing a permissive amendment to the Law Society Act in 1944). Meanwhile, a group of prominent lawyers, including several benchers, initiated a private foundation 'to afford assistance by way of gift, loan, or otherwise ... to persons in or associated with the practice of law.'16 Traditional functions of the Law Society were also adapting to new circumstances. In 1958 Michael Chitty, by then a life bencher (and almost sixty-five), persuaded his fellow benchers to hire him as editor of the Ontario law reports. Soon, however, lawyers and judges were complaining that Chitty was imposing his idiosyncratic, opinionated style on the reports and neglecting the meticulous attention to detail they required. Chitty was eased out, and the benchers agreed that it was time for professional publishers to take over. In 1960, after more than a century in the hands of Law 246

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Society editors, the reports were contracted to Cartwright Publishing, though the series remained under the general authority of the society. From Hillyard Cameron through John Robinette, editors of the law reports had often been promising practitioners as welL The ignominious end of Chitty's editorship marked the end of that tradition and, more generally, the continuing decline of the independent scholar-practitioner.1 ? The committee on unauthorized practice continued its skirmishing with trust companies eager to take away lawyers' estate management work, and with the title-insurance companies which periodically looked at the Ontario market. The perennial question of whether lawyers should be prohibited from acting for both sides in a transaction was once more debated and put aside, but the suburban development boom obliged the society to notify the expanding real estate bar that lawyers who gave commissions to agents who steered work to them would be subject to discipline. The burgeoning business of income tax provoked a new contest, this time with accountants who were cutting into what lawyers considered their own terrain. As late as 1959, the Law Society complained to the Institute of Chartered Accountants about programs that might lead the public 'to assume that chartered accountants are entitled to advise on ... the interpretation of the income tax act/18 One area where the Law Society remained conservative was in its disinclination to apply political concerns to its discipline proceedings. Despite the anti-Communist fervour of the cold war, the Law Society does not seem to have considered reviving the First World War precedent of scrutinizing the loyalty of its members, as universities and public institutions often did in the 1950s. Controversial labour lawyer J.L. Cohen, whom most mainstream lawyers would have considered a fellow-traveller if not an outright 'red,' was disbarred in 1947, but the cause was a conviction for assault (on his mistress) rather than his more political activities, and convocation granted Cohen reinstatement in 1950. It may be that the society simply perceived no threat, for radical lawyers were extremely rare. Discipline proceedings continued to emphasize theft from clients and criminal convictions as almost the only transgressions worthy of disbarment, and marginal practitioners, often from minority groups, continued to suffer a disproportionate share of disbarments.*9 A New Agenda, 1950-1970

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The most consequential discipline case of the 1950s was the disbarring of Samuel Mehr. Mehr, who had been disbarred in 1933 and reinstated in 1947, came before the discipline committee again in 1953, accused of misappropriating funds entrusted to him by the Nationalist government of China, which he had represented in a property matter. Despite his insistence that he was entitled to the money in payment for his legal services, Mehr suffered his second disbarring in January 1954* This time he appealed to the courts, alleging that the Law Society had misused its powers, particularly by refusing him permission to cross-examine discipline committee testimony. The Law Society was upheld in the Ontario Supreme Court and Court of Appeal, but in March 1955 the Supreme Court of Canada declared that the society had denied Mehr natural justice because one of the benchers who ruled on his case had not attended the whole hearing. It overturned his disbarring. After seeking legal opinions, the society decided not to initiate a new hearing on his case, the first in which a Law Society discipline decision had been subjected to judicial review. Until then, convocation had made no pretence of being a court or of following court procedure. The benchers' responsibility was to articulate the ethical standard of the profession, and having satisfied themselves that a lawyer had practised unethically, they disbarred without further ado. The Mehr judgment served notice that such was no longer acceptable. Mehr regained the right to practise (at age sixty-eight), and the first step had been taken in the gradual transformation of informal discipline hearings into a quasi-judicial tribunal.20 As the society took on new functions, its expenses began to grow. In 1951, convocation doubled members' annual dues to $40 a year. It was the first increase since 1917, and there would be another $10 increase in 1955. The staff was also starting to grow, notably when Earl Smith recruited Robert F. Reid, a lawyer and law school lecturer, as his first deputy secretary in 1955. Smith found the help of a deputy so congenial that he reconsidered his plan to retire. Thwarted, Reid returned to private practice in 1958. Meanwhile, the society and the profession shouldered a new financial commitment when convocation created a compensation fund.21 There had long been debate over the obligation to compensate victims of dishonest acts committed by professionals. If the Law 248

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Society had certified the professional integrity of those it called to the bar, was it therefore liable to citizens who were cheated by their lawyers? Among lawyers, such discussions were often spurred by public demands for state control and bonding of lawyers. As recently as 1933, the Law Society had adamantly rejected any compensation program; but by the early 1950s, the climate had changed. Once again a Canadian Bar Association resolution moved convocation to create a special committee. The compensation fund committee, chaired by Robinette, rejected convocation's 1933 verdict and gave favourable attention to recent precedents in England and elsewhere. A new sense of public relations, more than public pressure, seems to have driven the decision. Earl Smith made sure that all benchers read the declaration of T.G. Lund, his counterpart at the English law society, who wrote, Trobably the Fund has done more to assist the efforts of The Law Society to improve the public relations of the profession than any other single step which has been taken.' Robinette's committee proposed creation of a fund to compensate members of the public who sustained losses caused by dishonesty 'on those rare occasions when a solicitor defaults/22 Rejecting proposals for an insurance plan, the committee proposed a discretionary fund - nothing but a sense of obligation would require the Law Society to make any compensation payments. Convocation adopted the report in January 1953 and secured the necessary legislation in a matter of weeks. Ontario lawyers were assessed a compulsory compensation fund levy of $10 a year, and the plan began operation early in 1954* The compensation fund operated quietly in its first few years. The annual assessments quickly built up capital, and in 1956 the discipline committee approved the first compensation payments to the victims of a lawyer it had just disbarred. The fund was protected both by insurance against unexpectedly large claims and by the fact that compensation was entirely discretionary. During the 1950s, most claims were for a few thousand dollars. Annual payouts never exceeded $45,000. Nevertheless, the founding of the compensation fund in January 1953 marked a crucial moment in the transformation of the Law Society from the small, tradition-bound society it was in 1950 to the activist bureaucracy it became. The promise to compensate victims of dishonest lawyers was, in effect, a warranty for the integrity A New Agenda, 1950-1970

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of every lawyer, and it was an open-ended commitment. Eventually, that commitment would reverberate through all the society's operations. In the 1960s, when the first quarter-million-dollar claims forced the society to seek limits to its exposure, new efforts would be made to detect dishonesty and ensure integrity among members. Discipline procedures would be tightened and the keeping of trust funds regulated. Soon the Law Society would have staff investigators examining members' accounts and demanding an unheard-of level of reporting from every legal practice. New advisory services and educational programs would proliferate. Rules and standards of practice would be spelled out in baroque detail. To administer the new programs, the staff at Osgoode Hall would have to grow. So would the intrusiveness of the Law Society upon the profession and the scale of fees it would have to demand. These developments were hardly obvious in 1954. Indeed, their impact was barely visible for most of a decade. In the meantime, the Law Society had to complete the other great change set afoot during Cyril Carson's treasurership: the end of the Law Society's monopoly on legal education, which eventually meant the end of the law school at Osgoode Hall.

THE LAW SCHOOL, 1950-1967

'The benchers put a gun at Caesar Wright's head, pulled the trigger - and blew their own brains out/ The Law Society had been routed in the law school crisis of 1949. It lost not only the public relations battle, but also the deeper argument about the proper place for professional education. The debate revealed society's developing consensus that university was the only place for higher education, and the benchers' reluctance to go along with the universities' emerging monopoly simply damaged the Law Society's reputation. Their defence of tradition could not preserve the credibility of the apprenticeship model. Wright's remark 'If medical education was controlled by the medical profession as law is by the legal profession, we would be back in the days of leeches' made the front pages the day he resigned, and that interpretation overwhelmed the Law Society's efforts to put forward its own views. The law school decision and Caesar Wright's response helped fix an image of the benchers as reactionary philistines that would long endure.23

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Nevertheless, in the midst of their humiliation, the benchers managed to organize a recovery which gradually put them back in charge of the changes to come in legal education. Old loyalties, anti-academic prejudices, and disapproval of Wright's 'disloyalty' helped keep much (though certainly not all) of the bar from wholehearted support of Wright and the universities' bid to take control of legal education. A debate at the February meeting of the Ontario section of the Canadian Bar Association was overwhelmingly hostile to the benchers' position, yet in August Wright found himself ostracized at the CBA annual meeting and never again served on its committees. In the wake of the lecturers' mass resignation, the benchers moved fast, not to placate Wright, but at least to shore up their support within the profession. The benchers quickly repudiated the January resolution that had driven Wright out, recruited a replacement staff so that the law school could open its doors in the fall of 1949, and approved significant changes to legal education at Osgoode Hall.24 The change in course started when the benchers met on 17 March 1949. Wright and his staff had joined the University of Toronto a week earlier, still hoping to see the university law school - now Wright's own - displacing Osgoode Hall as the centre of legal education in Ontario. But the benchers saw things differently. Even before a committee, struck in February to canvas the profession and reappraise January's decision, reported back, the March convocation established a hiring committee to replace the faculty and started a public relations committee, the society's first ever, to put forth its side of the law school dispute. Plainly, yielding to Caesar Wright was not an option in the 'reconsidera-' tion' under way.25 April's special convocation on the law school made clear that events since 20 January had shattered bencher support for the backto-the-1930s resolution which had provoked the faculty resignations. After reviewing briefs from thirty-five county associations and more than 300 individual members, most of which called for change but still supported 'practical' education, the reappraisal committee had made Park Jamieson's lonely dissent of January into the new consensus. Jamieson had argued for a four-year program: two years of full-time study, followed by one year of office work

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under articles and one that combined lectures and articling. Rejecting with regret all hope of restoring the old days of concurrent work and study, Jamieson instead was proposing more class hours (which pleased those convinced that part-time lectures would no longer suffice) and more'office work (which pleased those convinced that practice must remain central to legal education). Jamieson's proposal became convocation's policy in April, and this time there were no dissenting minority reports. As of September 1949, Osgoode Hall, which in April had neither faculty nor curriculum, would replace three years of mostly part-time study with two years of full-time classes followed by one year of full-time articling and one of concurrent work and study. The benchers, who in January had looked back confidently to 1935's vision of learning through practice, had suddenly endorsed large changes in legal education.26 Once they decided to expand the law school's offerings, the benchers needed a staff even more urgently. They turned to their beloved England, the other jurisdiction where practice rather than academic preparation was the basis of legal training. Benchers Michael Chitty and WJ. Beaton flew to London with authority to hire a dean for the school. Although Canada was on the verge of abolishing appeals to the Privy Council, the benchers still had many professional ties to the English bar, and these provided wellplaced contacts for the emissaries. On 3 May Chitty and Beaton cabled back news of a dean who seemed to suit every requirement: a Canadian who had studied at Harvard Law and been a Rhodes Scholar at Oxford, who had practised as a barrister of the Inner Temple, and who was actually dean of law at a university. After brief discussions, Charles Ernest Smalley-Baker agreed to become the fifth head of Osgoode Hall Law School.2? Meanwhile Gershom Mason and Laddie Cassels recruited bright young practitioners from the Toronto bar to join established old hands as part-time Osgoode Hall lecturers. Dean emeritus Falconbridge, Chitty, and other familiar figures agreed to teach, as did Sydney Robins, Walter Williston, Arthur Martin, Charles Dubin, Brendan O'Brien, Willard Estey, and William Howland. All these practitioners had stellar legal careers ahead, and they would also discover that their high profile as teachers made a useful springboard when they sought election as benchers. By September, 252

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Osgoode Hall once again had a curriculum, teachers, and as many students as ever. Its swift revival gave the government sufficient reason not to intervene in the crisis, despite calls for a public inquiry which might lead to divesting the Law Society of its educational powers. The University of Toronto was also working fast to ensure that, if Osgoode Hall continued, there would be two law-teaching programs in Ontario: its own publicly funded one, staffed by legal scholars of unmatched experience and reputation and wrapped in the prestige of a great university; and the Law Society's, a self-confessed trade school, most of whose lecturers spared what time they could from busy legal practices. Upon arrival at the university, Wright had scrapped W.P.M. Kennedy's revered 'honours law' undergraduate program. To replace it, he revised the LLB program into the conventional three-year, full-time professional law school curriculum he had always wanted, and he soon built the faculty up to eight full-time law professors. The crucial requirement the university law school lacked was approval from the Law Society, so that its graduates could be called to the bar along with the society's own students. On 3 May, therefore (the very day Smalley-Baker was hired), the university officially requested the Law Society to grant its graduates an exemption from the Osgoode Hall teaching program required of all prospective lawyers.^ The university apparently made a critical misstep in comparing its program to the rapidly changing one at Osgoode Hall. It asked that its three-year LLB graduates be exempted from two ('at least two' was actually the wording of the request) of the four years in the new Osgoode Hall program. Either Wright and Sidney Smith had miscalculated the requirements, or they assumed that students would endorse a five-year university 'route' (three years in the LLB program plus two more years at Osgoode Hall) as being preferable to just four years in the benchers' 'trade school.' The power to give or withhold recognition of any program was, of course, the Law Society's trump card in legal education, yet the benchers promptly approved the two-year exemption the university requested. In fact, the university's request gave the benchers - at least those seriously committed to Jamieson's version of legal education - exactly what they wanted. Law students could now do their full-time academic work either at Osgoode (in two years) or at A New Agenda, 1950-1970

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the university (in three), after which all would go to Osgoode Hall for the two years of practice-oriented service that most benchers and much of the profession still cherished.29 This barbed acceptance of the university's request turned out to be more of an advantage for the Osgoode Hall program than the benchers may have realized. Law students, it was soon revealed, were anxious above all to get into practice. Either the reputation of the university and its faculty meant less or else Osgoode's unabashed 'trade' orientation meant more to would-be lawyers than the university strategists had believed. From September 1949 the vast majority of law students chose Osgoode Hall, rather than the university faculty of law with its 'extra' year. Osgoode Hall maintained its numbers even after 1952, when it began requiring applicants to have a university degree (unlike the university LLB program, which admitted students after two undergraduate years). Throughout the 1950s, the university's stellar law faculty had only a few score students, a small library, and isolated facilities in north Toronto (which later became Glendon College of York University). Osgoode Hall, meanwhile, had too many rather than too few students. It was still trying to squeeze 600 mostly full-time students into space for 300 part-timers. A new curriculum had to be conjured into being in months, and Dean Smalley-Baker was proving to be hardly the prize his credentials had suggested. Fiftyeight when he came to Osgoode, he had no knowledge of Canadian law or practice and little opportunity to acquire it. He was also an alcoholic who soon had to be supported with sanatorium treatments while substitutes took over his marking and then his lectures. Unable to disavow him, many benchers felt betrayed. Park Jamieson, increasingly influential as vice-chair and then chair of the legal education committee (and Canadian Bar Association president in 1954-5), came to loathe Smalley-Baker. 'Every time [Jamieson] came to town ... he would stand him in a corner and berate him like a schoolboy. He treated him like a dog,' recalled Robert Reid, deputy secretary of the Law Society and a law school lecturer.30 Willard Estey, who lectured for a year at Osgoode Hall, characterized Smalley-Baker as 'an English genteel fake.' (Estey's father remembered the augustly hyphenated English dean from his 254

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Harvard days as 'plain Joe Baker from New Brunswick.') On legal education, Estey generally shared Wright's views rather than the benchers'. He had taught law at the University of Saskatchewan before moving to Ontario and regarded Osgoode in the post-Wright year he taught there as a backward hodgepodge, 'no system, no curriculum.' As Smalley-Baker's weaknesses were exposed, intellectual Dean Charles Smalley-Baker with the replacement staff recruited to Osgoode Hall after the law school crisis of 1949. Left to right: Donald Spence, Allan Leal, John Falconbridge, Smalley-Baker, David Smout, Desmond Morton.

responsibility for the school fell to a handful of youthful full-time staff members, particularly David Smout (who had come from England with Smalley-Baker), Desmond Morton from Ireland, and two Canadians, Donald Spence and Allan Leal. Leal, a Rhodes Scholar prevented by the war from going to Oxford and a recent Osgoode Hall graduate, recalled the burden of taking on three courses in September 1950. 'Smout, Spence and I were of an age, and in late April or May I do recall watching the sun come up four mornings in a row. You worked entirely through the night and would go home and have a shower and a bit of breakfast and come back and deliver your lectures and then take a snooze in your office and then back at it to be ready for tomorrow.' In retrospect, Leal marvelled at the amount of law he had assimilated under such pressures, though that regime left no time for substantial scholarship or publication. Leal, who remained at the school for seventeen years, became vice-dean and later dean and was the driving force behind the intellectual recovery of Osgoode Hall.^1 Smalley-Baker, however, had one important contribution to make: he could play the role of a school dean to the hilt. SmalleyA New Agenda, 1950-1970

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Baker had great faith in school spirit, school ceremony, and school traditions - even instant traditions - and now that students attended full time, a program of student activities was once again possible. Students soon decided the dean was 'a bit of a joke' as a teacher, but Smalley-Baker made jovial speeches, dubbed all the classes with names (The Third Legion/ The York Volunteers/ The Eighth Dragoons'), and urged them to forge an identity for themselves. With Smalley-Baker's encouragement (and Law Society funding), the Osgoode Hall Legal and Literary Society was resuscitated. Sports teams were revived. Allan Leal, for whom a hockey scholarship had made university possible in the Depression, coached a hockey team whose players included Roy McMurtry, who much later would make Leal his deputy attorney general. Before the end of Smalley-Baker's term, Osgoode Hall had a yearbook, a law journal, and new clubs and fraternities. The dean became a popular, if comic, figure among students, and the esprit de corps he fostered encouraged students and reassured the profession. Uncomfortable comparisons with the academic standard set at the University of Toronto or Saskatchewan - or Harvard - became less urgent.^ In February 1953, university president Sidney Smith denounced the Law Society's refusal to grant Toronto graduates 'equality/ that Law school dean Smattey-Baker and lecturer Allan Leal, who doubled as hockey coach, with an Osgoode Hall team of the 1950s.

is, a further year's exemption at Osgoode Hall. But Cyril Carson replied confidently that the issue was not about years but about the principles of proper professional apprenticeship and 'the amount of 256

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time that should be spent in the actual atmosphere of Osgoode Hall and its courts and legal offices/ By then it was clear that the Law Society had staved off any immediate challenge to its control over legal education. Nevertheless, there would be no standing still In 1955, cramped for space both for the law school and for the society's growing staff, convocation created a committee on accommodations to consider a new wing for Osgoode Hall At once the committee saw that future space requirements depended on the future of the law school, and it received an expanded mandate to review both. Treasurer Carson headed the committee, but his old colleagues Denison, Cassels, Mason, and Chitty had given way to Jamieson, Robinette, Arnup, and other new faces.33 Robert Reid, secretary to the enlarged committee, recalled John Robinette telling its first meeting, 'I think we should recognize that we have won, we have won the fight with Caesar, the benchers have won ... We have survived and we can now do what we like/ Robinette's forceful statement may have been tactical, for he was a personal friend of Caesar Wright who perhaps sought to minimize Wright's threat so as to make his kind of reforms more palatable. It was true that the Law Society's authority over legal education was for the moment secure, but Robinette was one of a growing number of benchers who were ready for substantial change.3^ Now that the Osgoode Hall classroom curriculum was striving to be largely indistinguishable from an academic program, there was no longer much force to arguments that the universities should stay out of legal education. Once that conviction took hold in the profession and in convocation, the universities' full participation in Ontario legal education was virtually assured. Meanwhile, in case the benchers needed further stimulus, the responsibility for providing nearly all of Ontario's legal education grew ever more burdensome. The postwar rush had ended, but the student population had not declined. After 1952 numbers began to rise again, and the Law Society was advised that they would double before the mid-1960s.35 In October 1955, the enrolment projections convinced the soci A New Agenda, 1950-1970

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As skirmishing between the Law Society and the University of Toronto continued in 1953, students from the university law school attempted to embarrass the benchers with a protest march. Future bencher Elmer Sopha, at far left, and Jim Tory, at far right, flank several future judges and lawyers of prominence.

ety to commit itself to an expansion of Osgoode Hall For the first time in a century, the Law Society borrowed money. Finance chair John Robinette and secretary Earl Smith went nervously to the bank, fearful that a mortgage on the Hall might be demanded of them. The society's general creditworthiness prevented that, but the expansion made necessary the second fee increase in four years, and that instantly exposed the profession's own doubts about the future of the Osgoode Hall trade school Across the province, lawyers complained furiously about being taxed to support the benchers' quixotic fight against university education. An influential Ottawa lawyer and politician, Richard Bell, publicly opposed any fee increase that merely extended 'the irrationality which passes for legal education in this province/ He condemned 'the shocking travesty upon legal education' that was Osgoode Hall. The Carleton County Law Association, which would help elect Bell a bencher the following spring, opposed the new construction and called for decentralization of legal education.36 In reality, the society was building because it would need additional space whatever the fate of the law school. And key benchers were far advanced on confidential negotiations for a 'new deal' in legal education. In April 1955, Carson had invited the head of every Ontario university to dinner at Osgoode Hall and proposed to involve them in legal education. Though it took time to establish trust, further discussion showed that there were few substantial disagreements, for the Law Society was ready to give the universities all they wanted. Finally, on 18 January 1957, in a suite at the Royal York Hotel, the deal was struck.37 Just three people, all lawyers, were present at the Royal York: Park Jamieson (whose suite it was) and John Arnup for the Law Society, and Alex Corry of Queen's for the universities. Sidney Smith and Caesar Wright had seen the necessity of keeping a low profile, but in any case the hundred-year tradition of 'country' benchers resisting 'city' privileges would have precluded any special deal with the University of Toronto. Bringing in the other universities and letting their spokesmen take the lead finessed both problems, and President W.A. Mackintosh of Queen's quickly emerged as the leader among the academics. He in turn had delegated the project to Corry, a Queen's vice-president who had formerly taught law in Saskatchewan. 258

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Jamieson, Arnup, and Corry met throughout the afternoon, had dinner and some of Jamieson's Scotch, and by 10 p.m. had everything settled. Next morning Jamieson wrote out the agreement in longhand. Any Ontario university (and Osgoode Hall as well) would be able to develop a three-year, full-time LLB program, for which the prerequisite would be two undergraduate years in the liberal arts. Degrees from all LLB programs would be recognized by the Law Society, as long as they met standard criteria as to curriculum, number of qualified staff, and library collections. Graduates who wished to practise law would serve a brief period under articles between graduation and call to the bar. Osgoode vice-dean Allan Leal, a key adviser behind the scenes, had proposed a second element in the agreement. (No one seems to have sought Dean Smalley-Baker's advice.) Leal suggested supplementing articles with a program of practical training to be given by the Law Society at Osgoode Hall. 'No instruction could be given at the School which would equal that received by the students who are fortunate enough to procure good articles/ argued Leal, but not every student got good articles. He suggested that a post-LLB training program could even out the inequities that plagued the articling process.^ The social traditions at Osgoode Hall continued through the 1950s.

From this germ emerged the bar admission course, to which Corry, Jamieson, and Arnup now gave their sanction. Graduates of LLB programs at the universities (or Osgoode Hall) would serve under articles in law offices, but they would also come to Osgoode Hall for up to six months of practical training, supervised by law school faculty and practising members of the profession. This innoA New Agenda, 1950-1970

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vation satisfied the benchers' continuing requirement for practical training. It also pleased the universities, by allowing them to narrow their focus to the purely academic teaching they preferred. The bar admission course preserved for the Law Society and Osgoode Hall an ongoing role in legal education. It became the part of the 1957 agreement of which the society was most proud, and it attracted international interest. It had few precedents in the United States, where practical training requirements for lawyers were minimal, or in England, where academic law schools were still of peripheral importance. Other Canadian provinces soon began to add their own versions of the bar admission course to their articling requirements. More than 250 practising lawyers offered to become bar admission instructors, and after a few years the course director, Richard Roberts, reported, These days no one ever refuses to serve. I think this is because we were so careful in the early stages of the course to select the best possible people, so that it is now thought an honour/39 The bar admission course was not universally esteemed. Students often found instruction in details of practice to be dull and unintellectual and the teaching process a matter of rote. (One founding instructor described his methods: 'Many students had never searched a title ... "Here is a deed. My God, man, this is a deed, if you are going to be practising law!"') As specialization in the law required more material to be crammed in and new courses added, the boundary between university and bar admission subjects became blurred and sometimes contentious. There would be much tinkering with both the bar admission course and the articling regime in the years that followed. Nevertheless, the 1957 division between 'substantive law/ taught by academic LLB programs, and 'practical training/ which was the Law Society's domain, would long remain fundamental in Ontario legal education.40 The other great advantage of the 1957 agreement was the simplicity it brought to interprovincial transfers of law students. Until 1957, such transfers had been complex and unsatisfactory, and were arranged mainly upon payment of substantial transfer fees. After 1957, the Law Society of Upper Canada announced it would accept into its bar admission course students from all Canadian law schools with programs in common law which met the standards that Ontario universities had accepted. That per260

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mission was soon reciprocated, and ever since Ontario has accepted a steady net influx of law graduates from across the country seeking call to the Ontario bar. The admission of foreign lawyers remained a vexed issue throughout this era. Frustrated by the difficulties of assessing the credentials of immigrant lawyers and graduates of foreign law schools (particularly those of India and Pakistan), the Law Society's admissions committee considered admitting only lawyers from the 'white' commonwealth (Britain, Ireland, Australia, and New Zealand). After a minority report by bencher Stephen Borins condemned the discriminatory nature of this policy, however, convocation decided to oblige all immigrant lawyers to acquire Canadian law degrees. For several years, until a coherent national policy was developed by the Federation of Law Societies, the restriction on immigrant lawyers maintained by the Law Society of Upper Canada was the strictest in Canada.^1 Jamieson and Arnup had negotiated the Royal York accord with the knowledge and support of Carson's special committee, which presented their agreement to convocation on 15 February 1957. Arnup believed that 'a handful of older benchers' had misgivings, and delaying tactics were expected from Edson Haines, considered Caesar Wright's ally in convocation. But treasurer Carson controlled convocation with such authority that contrary voices had no chance to be heard. The new deal received unanimous consent. Wright was in fact delighted to learn 'the war was over.' He praised the agreement and promptly wrote Carson a magnanimous letter of congratulation. A few years later Wright sat on the platform with the benchers as his son was called to the bar. In 1967, the Law Society, now formally authorized to offer academic degrees, offered him an honorary doctor of laws from Osgoode Hall Law School as 'the architect of legal education in this province.' Wright accepted enthusiastically, but he died before the ceremony was held.42 Meanwhile the universities were moving fast on their new opportunities. The University of Toronto law school, of course, already had a program that conformed to (indeed, virtually defined) the new standard. In September 1957, the University of Ottawa's law school launched a common law program to supplement its civil law program, while Queen's, thanks to swift action by Mackintosh and Corry, managed to open a brand-new law school. Law schools .

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The new student law library at Osgoode Hall, opened in 1958, but lasted only ten years before the law school moved to York University.

at the Universities of Western Ontario and Windsor soon followed, Osgoode Hall Law School quickly refashioned its program into three academic years. The handful of law teachers who had taught at Osgoode Hall and Toronto grew rapidly into a substantial community of legal academics, and scholarly law students could reasonably aspire to academic careers as an alternative to practice. In 1960, two of these, Martin Friedland and Allan Linden, received Osgoode Hall's-first postgraduate scholarships."*3 Now it was time for a change of leadership. Each year since 1955, Cyril Carson had deferred to the insistence of other benchers that he extend his term as treasurer until the negotiations over legal education were completed. Early in January 1958, a tuxedo-clad Carson presided over the ceremonies that opened the new law school wing at the rear of Osgoode Hall. The new building was full as soon as it was open, and it was soon clear that the benchers had shown foresight in requiring that the structure be capable of carrying several extra storeys (they were added in 1990). Within months of the opening, Carson retired as treasurer and was succeeded by John Robinette.44 Under the new regime of legal education, Osgoode Hall Law School continued to educate most of Ontario's law students as well as all the bar admission candidates. (For years it bestowed as many LLBs as all the others combined.) In the long run, however, the 1957 agreement meant there was no necessity for the Law Society to run its own university-style law school. As a degree-granting institution, Osgoode Hall Law School began to receive educational subsidies after 1957, but since Ontario's education authorities were opposed in principle to single-degree institutions, there was no certainty that they would continue to fund Osgoode Hall. A non-university professional school seemed merely eccentric. With the benchers' interests increasingly focused on the bar admission program and the continuing education programs associated with it, and with Osgoode Hall once again becoming cramped as other projects demanded more space, it proved relatively easy to export the law school to York University. Once more, John Arnup proved to be the crucial facilitator. 262

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York, a newly created university in the Toronto suburbs, was anxious to acquire a professional school Lawyers on its governing board had been dropping hints about Osgoode Hall to the Law Society since the early 1960s. In January 1965 Arnup, then treasurer, consulted some key benchers and called York University's chairman, Robert Winters, at home on a Sunday afternoon. They reached agreement in a brief meeting later that day. They were prepared to agree to almost anything to get a complete law school, which was really what we were offering them/ recalled Arnup. York, blessed with seemingly unlimited public funds, agreed to spend about $6 million on a new building and a top-flight library on its new campus and to hire all the law school staff who wished to transfer. It agreed enthusiastically to take the prestigious name 'Osgoode Hall Law School' - and, less happily, to give the name back whenever the Law Society insisted. With the essentials settled, bencher William Howland and York president Murray Ross hammered out the details, which the benchers approved unanimously. The formal transfer took place on 1 July 1968.45 The Law Society seemed relieved to be free of its law school. The problems of government of our own profession are so immense, and require so many man-hours, that we simply cannot do justice to our other activities and continue to operate a law school/ declared Arnup to convocation. Spared the expense of a law school, the benchers also spared themselves the necessity of dealing with university-minded lecturers and students, just as a wave of revolt against tradition and authority swept through North American universities. By 1971 a bencher returning from a tour of Ontario law schools as if from an exploration of another planet described them as 'surprising, challenging, irritating, inspiring, shocking, helpful, enlightening' - but definitely alien to a plain working lawyer.46 Almost the only mourner for the law school at Osgoode Hall was its last dean, Allen Leal, who resigned as dean when the school prepared to move to York, joined Ontario's new Law Reform Commission, and later served as deputy attorney general of Ontario. His opposition was widely taken as unwillingness to be moved out to an upstart university in the distant suburbs, but Leal asserted a deeper concern about the relationship between academic and professional training. By 1968 there was virtually universal A New Agenda, 1950-1970

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faith that education was synonymous with professors lecturing in university classrooms. Leal, however, continued to assert that there had been something very special in having an academic law school contiguous to the courts, to other judicial institutions, and to the workplaces of thousands of lawyers. He still argued that balancing academic and practical training for lawyers was like balancing freedom and order, a permanent challenge without a solution. He was not convinced that the victory of the university model represented a conclusion of the debate. Teople who used to visit us said, "You have a God-given opportunity here," and it was true.'4?

CONSEQUENCES OF GROWTH, 1957-1970

The days of linoleum floors and hard wooden benches in lawyers' offices were fading fast. In 1962, when Osier, Hoskin moved from the Dominion Bank building to modern new premises in the Prudential building, it seemed to have found the kind of address to which a top law firm should aspire. By 1977, however, Osiers would be on the move again. Spectacular new office towers were redefining the Toronto skyline - and the aspirations of elite lawyers. McCarthy and McCarthy had moved to the new TorontoDominion Tower, where the spiral staircase linking its two floors became a legendary symbol of the new elegance of law offices. Blake, Cassels had moved to Commerce Court West, McMillan, Binch to the Royal Bank Plaza, and Eraser and Beatty to First Canadian Place (the name of the tower often suggesting a key client of the firm). For Osiers, the slightly older Prudential no longer provided the image a top firm needed to maintain. Keeping pace with the fast-rising standard in law office accommodation could mean tripling the rent, but Osiers moved to the upper floors of First Canadian Place.48 Even among elite law firms, these improvements in accommodation were a very new development; amenities such as air-conditioning had not been standard in the mid-1960s. And clients beyond the big city still looked sceptically on signs of ostentation among lawyers - or preferred to have their solicitor do their legal business in their kitchen. But larger firms, particularly 'downtown' ones serving commercial clients, found that their older premises no longer sufficed as they expanded and added on support personnel and office technology. 264

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Robert Brown, who in 1948 became the first office manager at Blake, Cassels, introduced his employer, then the largest law firm in Toronto, to portable dictating machines, electric typewriters, mechanical calculators, postage meters, and the first office photocopiers during the 1950s, and he moved the partnership into modern machine accounting in the 1960s. Some large or progressive firms also discovered the savings to be made from delegating work to specialized support staff. As late as 1967, the Law Society (which acquired its first cheque-writing machine in 1963 and its first photocopier in 1965), sent out form letters advising English solicitors' clerks considering immigration to Canada that 'law clerks are unknown in this jurisdiction ... a typical law office is composed of qualified men and stenographers/ But that year a Law Society committee found about one hundred law clerks already working for Toronto practices. A group of them, mostly trained in Britain, formed an association in Toronto late in 1967. By the early 1970s, the Law Society was advising Ontario's new community colleges on training programs for law clerks and other law-office support staff.49 Perceptive and ambitious firms were beginning to explore the art of law firm management. In an unpublished memoir, John Godfrey, of the small but long-established firm that became Campbell, Godfrey, Lewtas (and later merged to create Fasken, Campbell, Godfrey), describes introducing, early in the 1950s, the then unheard-of practice of actively recruiting top students from law school (and requiring them to do legal work, not just run messages). When the bar admission courses began, Campbell, Godfrey began paying its students' tuition fees, and other recruiting perks followed. The growing firm began defining the roles of senior and junior lawyers, and by 1965 it had instituted the policy that all qualified associates would become partners within seven (later five) years and the rest would have to leave. In each case, these innovations (often borrowed from New York practices) gave the firm a head start of several years over other Toronto firms. The key innovation, however, lay in measuring potential by law school grades rather than by social pedigree or mere intuition. Godfrey joked that he had guaranteed his career by joining a firm with brilliant principals and then stocking it with brilliant juniors. He and others noted the firm led by J.S.D. Tory as another innovator, but most law firms had hardly begun to compete for good students by the end of the 1950s.^^ A New Agenda, 1 950-1 970

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In some firms, a senior partner controlled strategic planning. At McCarthys, the senior partner in the 1950s and 1960s was Beverley Matthews, and an associate described him as spending much of his time simply thinking about the firm, the clients and the lawyers it needed, and how they could be acquired. Hal Mockridge assumed similar leadership at Osier, Hoskin, while Allan Graydon became 'the rainmaker' who drew prestige clients to Blakes. Other firms had already moved towards collegial leaderships which made management and planning the responsibility of committees elected by the partners for fixed terms. Management by elected committees became the norm for large partnerships, but the timing of such reorganizations often depended on the passing of a dominant partner or the degree of harmony within a firm. The Borden and Elliot firm completed its first formal partnership agreement relatively early, after the acrimonious split that produced Smith, Lyons in 1961. Other firms still followed an authoritative senior partner in the 1970s. By 1960, however, it was becoming clear that, whatever their formal structure, the firms that planned and managed were gaining an advantage over traditional partnerships that did not.51 It was growth in firm size that made effective management count, and growth in firm size was driven by new complexity in the law. The new Income Tax Act of 1947 and its 1952 revision had for the first time made tax planning vital to every corporate decision, and suddenly every corporate law firm needed a specialist dedicated to the arcana of the tax act. New labour legislation of 1944 and the Rand Formula of 1946 made labour-law specialists essential to firms which represented either the rapidly growing unions or the corporations which dealt with them. (In the new industrial environment, more than one old labour-relations lawyer had to be eased out by younger specialists willing to accept that unions had a right to exist and to bargain.) Corporate expansion and international investment fuelled the elaboration of securities and investment law. The spreading activities of government demanded specialists in administrative and regulatory law. Increasingly, lawyers serving big corporate clients found they could no longer be generalists. They had to specialize. They also had to associate. Big companies and institutions planning takeovers, reorganizations, or new capital projects demanded the urgent delivery of legal work spanning many legal 266

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specialties. A law firm could deliver such service only by having many lawyers spread across several departments - as Osier, Hoskin unwillingly demonstrated in the late 1950s, when it declined an opportunity to acquire Massey-Ferguson's very large account for lack of staff to handle it. In 1950, the largest firm in Canada had only twenty-four lawyers, but the size of large firms would double by 1961 and triple by 197L52 Truly explosive growth in firm size would come in the 1980s, when partnerships expanded into multinational associations with hundreds of partners. But the foundations for that growth were set in place during the 1950s and 1960s, when innovative law firms reaped benefits from becoming well-integrated partnerships of diverse legal specialists, with modernized administrative systems and newly competitive attitudes towards recruiting (and retaining) both staff and clients. As the pace of the economy quickened, so did the flow of fees to the firms best positioned to provide legal services on this new scale. Prestige offices with marble foyers and art collections were simply another attribute of this transformation. Even as they expanded and modernized, law firms resisted or yielded to innovation in other areas. At Blakes about 1950, a proposal to hire a Jewish lawyer had been dismissed as threatening 'the beginning of the end of the Blake firm/ In 1955, when Campbell, Godfrey became the first prominent Toronto firm in fifty years to hire a Jewish lawyer, John Geller, it was consciously breaking with tradition, and competing firms did not immediately imitate it. By the 1960s, however, the embargo against Jews was collapsing. Fred Catzman, the Osgoode Hall medallist who could barely find an articling position in 1929, recalled how his son Marvin, also a law school prize-winner, articled with an establishment firm, Mason, Foulds, and was offered a job there after his call to the bar in 1964. Meanwhile, small Jewish firms were becoming large and powerful in themselves. Goodman and Goodman grew along with clients like Cadillac Fairview, the small construction firm that became a property-development giant, and gradually added establishment clients such as Baton Broadcasting. By then Jewish benchers included Isadore Levinter, Sydney Robins (a Law Society lecturer and bencher election scrutineer in the early 1950s), and Nathan Strauss, elected in 1956, 1961, and 1962 respectively. In 1958 the Lawyers' Club had finally removed its ban on non-Christian memA New Agenda, 1950-1970

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bers, and it gradually absorbed the Reading Law Club that the excluded Jews had maintained since the 1930s.^ This gradual acceptance of Jews into the legal community had not yet carried over to other, still-marginal groups; the Lawyers' Club did not simultaneously remove its prohibitions on women and black members. Though the Legal and Literary Society was led in 1957 by a black, Leonard Braithwaite, and an Asian, Gerald Tsai, visible minorities had hardly registered on the legal profession's horizon. Norman Lickers of the Six Nations community near Brantford, who was called to the bar in 1938, may have been Ontario's first Native Canadian lawyer. Urged in 1964 by Native activist Kahntineta Horn to produce more Native lawyers, the Law Society promised to consult the only one it knew of - a third-year student at Osgoode Hall, Howard Staats. In the cities, however, most established ethnic communities now had their own legal firms. In the traditional way, minority firms continued to bring along students and juniors from their own communities, but such exclusivity was becoming less obligatory. Lincoln Alexander, a black Hamiltonian and future lieutenant-governor of Ontario, began his law practice in 1953 with the brother-and-sister partnership of Helen and Edward Okuloski, most of whose clients came from the Polish community of east-end Hamilton. By the late 1960s, Alexander's own Hamilton law firm, Millar, Alexander, Tokiwa, and Isaacs, had partners of white, black, Japanese, and Mohawk origins. It was the 1970s and 1980s, however, before lawyers representative of ethnic minorities began to be elected into convocation in significant numbers.^4 Women, despite individual achievements, also remained on the margins of the profession. From the 1940s through the 1960s, a handful of women were called to the Ontario bar each year. Dalhousie graduate Bertha Wilson, who joined Osier, Hoskin in 1958 and was the first woman appointed to the Supreme Court of Canada in 1982, was one of many to achieve notable careers, but no women had yet been elected to convocation (or even come close), and the conviction that women were 'okay for trust work' but inappropriate in most fields (and particularly in well-paid, prestigious, and influential ones) remained strong in the profession and among its principal clients. Fundamental change was on the horizon: between 1969 and 268

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1973, women's share of law school enrolment jumped from 11 per cent to 20 per cent (and rose to 38 per cent by the end of the decade). In 1974, Sydney Robins encouraged the society to become the first in Canada to make non-discrimination a rule of professional conduct. (The wording was soon amended to substitute 'him or her' for 'him' - after representations by a female lawyer.) Yet in the same year, benchers could still declare with apparent pride that, seventy-seven years after Clara Brett Martin began to practise, a bar of some 9000 lawyers included 468 women.55 While the profession was changing or resisting change, the Law Society was discovering the consequences of the decisions made in the Carson years. With the law school wars receding, John Robinette served as treasurer for four years, 1958-62, and was succeeded by Joe Sedgwick. To be elected treasurer remained a mark of honour and respect, and Sedgwick, a life bencher since 1956, wanted the honour as much as the job. He was a criminal defence specialist - indeed he had helped found the Advocates' Society partly to revive the ancient idea of separating barristers from solicitors. A courtroom performer with a fondness for bow-ties, Shakespearean quotations, and orotund phrases, Sedgwick was famous among the bench and bar as source and subject of countless anecdotes. He was not, however, a details man or an administrator, and his one-year term as treasurer was almost an interregnum. Some benchers considered John Arnup the real leader already, and Arnup, who had agreed not to contest Sedgwick's election if Sedgwick served only one year, succeeded him in 1963.56 Treasurers had usually responded to their election by promising to follow in the tradition of their illustrious predecessors. John Arnup arrived with an agenda. The day he was elected, he invited convocation to consider expanding to forty benchers, introducing regional representation, revising the committee structure, and attacking problems in the compensation fund. The last was the most urgent problem, for the profession had entered what Arnup later called 'the period of defalcations.'57* After a quiet start, the compensation fund had begun to be A New Agenda, 1950-1970

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The pervasive image of lawyers wearing wigs survived even in a trade publication directed at the profession itself.

* From the Latin 'to trim,' 'defalcate' by the nineteenth century meant misappropriating funds of which one has care or management.

rocked by claims on a new order of magnitude. Initially, claims had rarely amounted to more than a few thousand dollars, but the 1959 disbarring of Carl Herman provoked valid claims exceeding $100,000, enough to drain the entire fund accumulated since 1954. Convocation quickly doubled the annual fund levy to $20, but some benchers were disturbed by the implications of the case. One of Herman's victims, bilked of almost $70,000, was 'a man of substance' who acknowledged having already rebuilt his net worth to what it had been before the theft. Other victims were lending institutions. The compensation fund, some benchers said, was 'a widows' and orphans' fund,' not a guarantee for sophisticated investors who should be able to protect themselves. They wanted to put a firm cap on payments or to close the fund entirely.58 On the urging of a committee led by treasurer Robinette, convocation rejected these views. It reaffirmed that while payments were entirely discretionary, the society should attempt to pay all valid claims without regard to the circumstances of claimants. The committee also advised against limiting the amount any individual could receive. A year later, however, as other substantial defalcations were exposed, convocation decided that only in special circumstances should any claimant receive more than $25,000. (The society had carried insurance to cover payments whenever a single set of claims exceeded $50,000, but after the Herman case it could no longer get coverage.) At the same time it hiked the levy 120 per cent to $45 per lawyer per year. Within six months, however, the discipline committee was struggling with two more sets of claims, each close to a quarter of a million dollars. Assessing the claims in just one of these cases had demanded more than a hundred hours of meetings for six members of the discipline committee. Then came the Murray Gruson claims.59 Gruson had been a sole practitioner who persuaded many clients to let him invest their money - which few of them ever saw again. He was disbarred and sentenced to a long jail term in 1962. Two years later, after twenty days of hearings on the compensation claims he had provoked, the discipline committee was still in a fury. Gruson 'used his office as a solicitor and the high reputation of the profession to carry on a constant, consistent and unprincipled career of crime, fraud and deception ... He did more to deserve the contempt and to engage the shame of his profession than any 270

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lawyer who has practised in the province of Ontario ... No words can express the horror which his actions arouse. Our profession cannot afford to harbour in its honoured and noble traditions more than one Murray Gruson.'^O The compensation fund could not afford Oruson either. By October 1964 the claims he had provoked amounted to almost $475,000, and even though the new $25,000 cap on payments to individuals reduced the society's exposure to $130,000, the fund was being drained dry once again. Convocation actually debated imposing a Gruson fund - a special levy for Gruson claims - but decided instead to raise the basic compensation fund levy from $45 to $100. (At this point, the membership fee, covering all the society's other expenses, was $70.) Soon after, the benchers marked the fund's tenth anniversary, January 1965, by limiting payments to individuals to $15,000 and total payments per disbarred lawyer to $50,000. These steps finally proved sufficient. Despite further sensational disbarrings that produced big claims, the compensation fund began to grow, and the levy fell sharply in the late 1960s.61 Throughout these trials, the Law Society had maintained a relatively high level of commitment to the principle of compensation - similar funds in other jurisdictions had never paid more than $5000 to any defrauded client. But the society went further than limiting payouts and raising levies. Though the economic downturn of the period may have helped to expose them, the spate of defalcations of the early 1960s had occurred because a few lawyers had discovered how easy it was to steal from their clients. Amid general prosperity, money in unheard-of quantities was available for investment, and lawyers were still entrusted with large amounts of their clients' money on little more security than a handshake. In 1960, lawyers differed from others with similar responsibility in that their finances remained largely exempt from scrutiny. Lawyers reported to no superiors, faced no auditors, posted no bonds, filed no account statements - indeed, were subject to few controls beyond their solicitor's oath. For the profession's image and for its pocketbook, that had to change. Soon the Law Society found itself launching two large new initiatives, which might be called the audit front and the ethics front. On the audit front, the Law Society unveiled its heavy artillery on 17 March 1964. The night before, thirty-eight chartered A New Agenda, 1950-1970

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accountants had gathered at Osgoode Hall for a briefing by Robert Anderson, the Law Society's staff auditor. In the morning they began to descend on law offices. By the end of the St Patrick's Day blitz, every lawyer in east Toronto had been subjected to an unannounced, mandatory, spot audit. Two days later it was Windsor's turn. Within a year, Ottawa, Lindsay, Chatham, Kingston, Orillia, Sudbury, St Thomas, and downtown Toronto had all been hit. By the end of 1965, the 'blitz audits' had hit 60 per cent of Ontario's lawyers and targeted all the rest. The Law Society had begun putting muscle behind the solicitor's oath late in 1961, when it gave itself the power to audit lawyers' accounts, and also obliged lawyers to establish trust accounts and separate their clients' money from their own. (Similar rules passed in 1936 had evidently faded into irrelevance.) Anderson was recruited from Clarkson Gordon early in 1962 and authorized to hire a second auditor a year later. Disquieting results from their first investigations - and the ongoing compensation fund crisis - led to the blitz audits. The results of the blitz revealed just how bad the situation was. By mid-April 1964, Anderson had analysed audit reports on the first 234 law firms investigated in the blitz. He found that fully 85 per cent were deficient in their accounting; 28 per cent showed evidence of trust account shortages. As more data came in, the audit statistics improved only slightly. Most of the problems were matters of negligent bookkeeping rather than criminality, but it had become overwhelmingly clear that the legal profession was not handling clients' money in a professional manner, and in June 1965 convocation moved to impose systematic accounting on its members. Henceforth, all lawyers would be required to have their own accounts independently audited every year and to forward a copy of the auditor's statement to the society.^2 As the fallout from the defalcation crisis introduced the profession to professional accounting, convocation was moving on the ethical front as well. A standing committee on professional conduct, 'to advise members of the profession in Ontario on legal ethics,' had been created in 1959, out of the same concerns that produced the first audit rules. The committee declared that it did not intend to create a code of ethics, but merely to educate the profession by wider circulation of conduct rulings which the society 272

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had made. The first handbook, circulated to the profession in March 1964, had thirty rulings, the first of which was the Canadian Bar Association's 1920 Canon of Ethics. Other early rulings responded directly to the defalcation crisis and the new accounting rules. Acting for both sides in a mortgage transaction was declared permissible; pocketing the interest on trust accounts (where calculable) was ruled out.63 Legal ethics were not invented by the professional conduct committee, of course. The Law Society had always had the power to discipline lawyers for ethical failings. But the standards had been either unwritten or written in the most general terms. Now the Law Society was beginning to regulate behaviour as closely as it did bookkeeping. It was in the mid-1960s that the age-old understanding that lawyers should not solicit for business was transformed into an intricate catechism about all forms of publicity. The professional conduct committee issued edicts to control the typefaces on lawfirm letterheads. It regulated the size of the lettering on lawyers' signs and dictated how lawyers should list their names in the telephone directory, all in the name of 'the dignity of the profession/ In April 1967 the committee regretted ('We cannot turn back the clock') that it could not follow England and Australia in requiring lawyers to request Law Society permission every time they were to be quoted on the radio. Most of the limits on advertising that came under ferocious attack in the 1970s as irrelevant survivals from the distant past had existed in written form for less than a decade. Convocation itself may have been affected by the ethical offensive. In 1961 it took a superior court judge to task for his harsh courtroom comments about a lawyer. In 1962 it reprimanded the powerful founding chairman of Metropolitan Toronto, Frederick Gardiner (Osgoode Hall's gold medallist in 1920), for using his position to solicit legal work on his retirement from office. And in 1965, in a rare instance of venturing into ethical questions that went beyond its statutory mandate, convocation voted to deplore the continuation in office of Mr Justice Leo Landreville, who had recently been acquitted of criminal charges but whose fitness for legal or judicial rank remained hotly controversial.64 Neither ethical commandments nor audited statements could make a crooked lawyer honest, of course. Still, the imposition of modern accounting practices and the surveillance imposed on A New Agenda, 1950-1970

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* In 1967, the Law Society launched a members' magazine, the Law Society of Upper Canada Gazette. Its founding editor, lawyer John Honsberger, supplemented news and reports from the society with memoirs, anecdotes, and legal miscellany. In 1970, when a vacancy in convocation entitled him to become a bencher, Honsberger declined the appointment in order to continue editing the Gazette. He remained its editor for another twentyfive years.

lawyers' handling of client money in the early 1960s did mean that a crooked lawyer needed more ingenuity and more forged documentation than had previously been the case. The changes also forced a great deal more paperwork on the Law Society, The clerical staff of the secretariat, the audit department, and the compensation fund grew as the flow of annual account statements began. Simultaneously, the campaign on the ethics front required more staff for professional conduct and advisory services, for continuing legal education programs, and for member communications. The transformation of the Law Society from a handful of acolytes into a large bureaucracy continued apace,* The 1960s also brought a legal aid revolution. Despite secretary Earl Smith's enthusiastic annual reports, the unpaid legal aid program devised in 1950 had fallen from favour. Lawyers liked to declare that no indigent client who came to a lawyer's door was turned away, but under the charity-based system many citizens who might have benefited from legal assistance did not seek it, did not receive it, or received it insufficiently, and the system set up in 1950 had not changed that. In 1963, the Ministry of the Attorney General began to investigate how to make access to legal advice a right that would not depend on the benevolence of lawyers. Massive expansions of medicare, unemployment insurance, and welfare programs were demonstrating what activist governments could do, and within government it increasingly seemed appropriate to provide a legal aid regime on the same scale. The legal profession largely agreed, since a paid legal aid system would give potential clients access to lawyers and give lawyers increased opportunities for paid work. When John Arnup started his second year as Law Society treasurer in May 1964, he gave 'a broader base for legal aid' equal priority with 'the need to supervise solicitor accounts' in his agenda for the year.65 The creation of the new legal aid regime demonstrated the intimate ties that still connected the Law Society and the government. Bill Common, who chaired the joint committee (of the Law Society and the government) that investigated legal aid, spoke for both institutions and for the bar as well. As long-time director of prosecutions for Ontario (and assistant deputy attorney general), Common had prosecuted many thousands of cases all over Ontario.

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Fond of saying that the Crown never wins and never loses and admired for his skill and fairness in wielding the Crown's powers, Common had been a bencher since 1946. While the prestige he drew from bencher status had sometimes rankled the non-bencher deputy attorneys general to whom he reported, his close ties to the government and the Law Society made it likely that his recommendations would find favour with both.66 After consulting widely and studying other legal aid regimes (though more in Britain and Commonwealth countries than in the United States), Common sequestered himself in Toronto's Park Plaza hotel for ten days and, with commission secretary Robert Reid, wrote his report, which was issued in March 1965. The report, which endorsed almost all the proposals the Law Society had made, also pleased the government. It quickly became the basis of Ontario's new legal aid legislation, which was proclaimed in July 1966.67 The new legal aid regime adopted what became known as the judicare model and the certificate system. 'Judicare' meant that the private bar provided virtually all legal services to legal aid clients. In each judicial district, needy persons seeking legal services (in civil or criminal matters) brought their requests to the local office to be evaluated by a paid legal aid director, assisted by a voluntary board of lawyers and lay persons. When the legal aid office determined that a request met legislated criteria as to who qualified and what services would be provided, the director issued a legal aid certificate. The client took the certificate to his or her choice of lawyer (as before, there were panels of participating lawyers to choose from). After the appropriate legal services had been completed, the lawyer returned the certificate to the legal aid plan and was paid. The government had accepted the Law Society's insistence that the new regime, though funded by the state, must be run by lawyers much as the voluntary one had been. The bar of Ontario is overwhelmingly opposed to the inauguration in Ontario of a public defender system,' the Law Society had told Common's committee, and, in 1965, alternative systems, based on clinics or public defenders or rejecting Law Society control, had had little influence with Common or with the government, though they became much more prominent in a few years. As of 29 March 1967, when the plan

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began operating, the Law Society (and its new legal aid program committee) became the administrator of Ontario's new legal aid regime* In exchange for maintaining lawyer control of the plan and in keeping with the tradition of professional obligation - the Law Society agreed that lawyers would be paid reduced fees - initially, 75 per cent of the existing fee structure - for the legal aid work they did. Common later said, 'If I ever went down in history, I think probably I would like to go down as ... the father of legal aid in this province.' The Law Society and much of the bar were glad to honour him as such. Common's goal was 'to make available to the public those services of solicitor and counsel which a reasonable man would provide for himself had he sufficient means.' The plan he brought into being, which assumed that money was the only obstacle to access, provided the legal profession with expanded business while requiring very little change from it. The Law Society was crucial here, for it was its existence - as the institutional expression of an organized bar ready and able to administer the plan itself which enabled Common to head off calls for a public-defender legal aid system, which had been the only kind known to many legislators when debate on legal aid reform began.^ At the Law Society, legal aid had several fathers. Arthur Martin, a leader in criminal law and a bencher since 1956, was an influential member of Common's committee. Andrew Lawson, since 1962 a deputy to secretary Earl Smith, also played a crucial role as secretary to Common's joint committee. He travelled the province during the committee's investigations and was credited with having 'sold the profession' on its advantages. In 1965 Lawson succeeded Smith as provincial director of the old legal aid plan. After handling the transition period, he became the first full-time, paid director of the new Ontario legal aid plan. By 1968 he had a staff of 180. By then legal aid was already by far the largest (in staff and budget) of all the programs administered by the Law Society.69 John Arnup retired as treasurer in May 1966, after three years that had seen an unprecedented wave of crises and changes: the law school's move to York, the height of the defalcation crisis, the start of audits and conduct rules, the birth of the modern legal aid program. In 1968, back in his busy civil litigation practice (not that he

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had ever abandoned it - the massive Texas Gulf case, in its day the longest court case in Canadian history, kept Arnup and Robinette busy as the key adversaries from 1964 until 1968) and still an active bencher, he put his finger on what would one day be the critical issue regarding legal aid in Ontario. The new legal aid regime, Arnup emphasized, was a full-service, open-ended plan. The number of certificates issued would depend largely on demand. Though payment rates for particular legal services were fixed, total payment per certificate was determined by the extent of the work the lawyer found necessary. As a result, the cost of the certificate program could not be predicted in advance, and the plan could not be budgeted precisely. Arnup declared he was confident that the attorney general and the government of the day had accepted this regime, but he foresaw that one day a government would seek to impose a fixed budget for legal aid. Arnup understood why that would be the case, but he said firmly it was not possible. If the government was not prepared to fund the openended system, it would have to devise a new legal aid regime. 'It is not possible for the government to have this system continue to work and for the government to say to the Law Society: "In the next year your budget will be $6 million. Go and provide us with $6 million worth of legal aid." You cannot sell legal aid by the yard.'70 It would take twenty-five years (and the figures at stake would be hundreds of millions of dollars), but eventually the evolution of legal aid in Ontario would produce almost precisely the crisis Arnup had feared. Arnup's successor was his contemporary Brendan O'Brien, a quiet, compact barrister, often a counsel to other lawyers on matters of practice and ethics. Long active in the Canadian Bar Association, he was a relatively new bencher, first elected in 1959. John Robinette recalled that it was O'Brien's style as treasurer to let everyone talk and then sum up, 'and nine times out of ten he was right.'* Perhaps O'Brien's most effective contribution was the opinion letters convocation occasionally sought from him on thorny issues, in which he carefully and dispassionately set out all the alternatives in such a way that the right choices suddenly seemed easy. One such issue was the matter of interest on the trust accounts in which lawyers had been obliged to maintain their

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* Brendan O'Brien was treasurer in 1967 when Pierre Elliott Trudeau, on becoming federal minister of justice, was called to the Ontario bar. During the luncheon that followed, talk turned to travel and O'Brien recommended Tahiti, one place he had been and Trudeau had not. A couple of years later, O'Brien was to wonder if he had been an inadvertent cause of the marriage of Trudeau and Margaret Sinclair, who met in Tahiti.

clients' money since 1961. Most often an individual client's money sat only briefly in the trust account, and it was practically impossible to calculate the very small amount of interest it had earned. But with the funds of many clients constantly flowing through a single trust account, rising rates meant that these accounts were beginning to earn substantial amounts of interest income. Where was the interest to go?71 The Law Society gave and then withdrew its approval for lawyers to collect the interest for themselves, and then appointed a special committee to investigate the matter. In a 1967 letter for the committee, O'Brien sketched out how a foundation empowered to collect the interest from all the trust accounts of Ontario lawyers could use that very large pool of money to support legal aid, client compensation, legal research and education, and other causes. Consultation with the profession, however, revealed deep scepticism about such a system, and convocation contented itself with a 1969 ruling that mixed trust accounts (that is, ones pooling many clients' briefly deposited funds) had to be non-interest-bearing. It would take five more years and the successful implementation of such a system in British Columbia before the Law Foundation of Ontario came into being on the basis O'Brien had proposed.7^ During O'Brien's tenure, the Law Society backed into a program that would become large, expensive, and volatile. In the 1960s, professional liability insurance was a purely optional matter, provided by private insurers to those lawyers who chose to purchase coverage. Early in 1967, however, the society secretariat became inundated with complaints from established lawyers whose liability premiums were skyrocketing and from new lawyers who could not buy coverage at any price. The cause seemed to be an international fluctuation in the liability market, linked more to a few spectacular engineering disasters than to any activities of Ontario lawyers, but the profession looked to the Law Society as the logical agency through which to react. After mooting the creation of an agency modelled on the Canadian medical protective association, which had long defended doctors against malpractice suits, a committee headed by Toronto bencher Arthur Pattillo turned the Law Society towards a compulsory insurance system, mandated by the society but managed by a

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private insurer. There were dissenters. Gordon F. Henderson, a recently elected bencher from Ottawa and counsel to the medical protective association, pointed to the conflict between the society's disciplinary duty and the new interest it would have in resisting allegations of negligence. However, a survey of the profession, meetings with lawyers, and conferences with the county and district law associations suggested broad support within the profession for mandatory insurance.73 Despite Henderson's warning to convocation that 'there are many practical problems that arise where the association seeks to protect its members from negligence/ the insurance program went ahead. With the assistance of Peter Norman, a consultant who had recently set up insurance programs for the Alberta and British Columbia law societies, the Law Society of Upper Canada began covering all its members against liability for their errors and omissions at the start of 1971. The basic coverage was $100,000 with a $2000 deductible, and the mandatory annual premium was $110. (Law Society membership then cost $90, and the compensation fund levy stood at $30.)™ With the initiation of the errors and omissions insurance program in 1970, the Society pledged its members' money as a warranty of professional competence, analogous to the warranty against dishonesty provided by the compensation fund. And as with the compensation fund decision, it would take years for the consequences to work themselves out. Liability insurance essentially completed the process, begun with legal aid in 1950, of adding large new programs to the Law Society mandate. Collectively, the new activities had transformed the institution. They would all continue to grow in cost and staffing requirements, much as the profession itself would continue to grow both in absolute numbers and in the diversity of its members and their work. After 1970, the focus would shift from launching new programs to managing the new Law Society and confronting the increasingly divergent interests of the new profession. There was a changing of the guard as well. Brendan O'Brien, treasurer from 1966 to 1968, and his successor, William Howland (1968-70), initiated the tradition, rarely broken thereafter, that treasurers would limit themselves to two years in office. The poten-

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tial for a treasurer to shape an entire era faded. About the same time, several long-time servants of the society took their leave. Eileen Huckle, hired by the society in 1912 and several times its acting secretary, had retired in 1963 and died soon after. In 1967 came the retirements of Margaret and Lillian, 'the Misses Lennox/ who had run the barristers' dining-room for twenty-eight years and had presided over its move into Convocation Hall when the new law school building opened in 1958.75 George Johnston, for whom appointment as Law Society librarian in 1939 had brought providential release from a Depression-era law practice, retired in June 1965. Johnston was not a trained librarian, and despite its name, the Great Library was not great by comparison with the leading law school libraries of the United States or those about to develop at Ontario law schools. Essentially a practitioners' library (and paid for by the practitioners), it still depended on elderly staff who often relied as much on their memory of the collection as on its eccentric catalogues. Johnston had presided over expansion of the library's services and was an effective ambassador to local, national, and international law library networks. He had also succeeded William Riddell as the keeper of Osgoode Hall's history and lore, not only during his tenure at the library but during his long retirement^ Simultaneously with Johnston's departure, Earl Smith announced his intention to retire in mid-1966, aged seventy-three. Smith had completed thirty years as secretary of the Law Society in 1964 (and had not missed a single meeting of convocation in his first twenty-five). He was succeeded by Kenneth Jarvis who, as deputy secretary since 1958, had already assumed several of the secretary's functions. Smith, however, had been secretary in the era when the secretary could know almost the entire bar and manage almost all the activities of the society single-handed. Beneath the deference of the perfect public servant, he had long been the equal of his benchers and treasurers, many of whom had been content to leave policy as well as its implementation in his hands. No individual could ever hold so many strings again.

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CHAPTER SIX

Questions of Control, 1970-1997

The Bench is no longer a bench of notables ... Many of you were elected because you were perceived to represent elements in the profession which identified with your candidacy ... There is no longer a common culture, no longer a tradition of deference, no longer a presumption of common interest/

- Professor Harry Arthurs, September 1992

The 'lawmobile' that roved suburban Peel region testified to the new com-

mercial pressures and impulses of the profession of the 1980s.

T

JLHI . HE FIFTH LAW SOCIETY ACT, THE FIRST FULL revision since 1912, became law in 1970. It had had a long gestation. Convocation had been discussing changes it wanted made in its constitution since 1963. Nevertheless, the draft act that convocation considered in February 1968 mainly reorganized existing legislation and removed redundant or obsolete clauses. The changes proposed were neither radical nor threatening. Then came McRuer. 'We ... were almost ready to make our submissions to the legislature when the McRuer report was received/ lamented a Law Society delegation at a high-level meeting in the office of Premier John Robarts in April.1 James Chalmers McRuer, who had been a bencher and then for twenty years a judge, became Ontario's royal commissioner inquiring into civil rights in 1964, and his first report appeared in March 1968. McRuer's reports went far beyond familiar issues of individual rights. Throughout the century, governments had been delegating authority to scores of civil service agencies and administrative tribunals, all of which exercised power over the lives of citizens. Questions of Control, 1970-1997

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THE AUTHORITY CHALLENGE

James Chalmers McRuer, Law Society bencher, 1936-44, and Chief Justice of Ontario, 1945-64. McRuer's landmark report on civil rights greatly influenced the Law Society Act of 1970.

McRuer was determined that all such bodies should be guided by due process and rights of appeal, more or less the way courts were. McRuer's report provided the intellectual foundations for the 'judicialization' of the administrative process in Canada, a change so farreaching in its effects that McRuer has been called Canada's most influential non-politician lawyer,2 Professions were among the targets of McRuer's reforming zeaL He argued that the organizations governing lawyers, doctors, engineers, and other professionals had to be made more observant of due process in the exercise of their authority, more responsible to their membership, and more effectively subject to scrutiny by the legislature which empowered them. McRuer found a receptive audience at the Ministry of the Attorney General By the late 1960s, the ministry was building its own policy-planning capabilities, and it was already developing its own agenda for the professions. Even before McRuer, the attorney general had been pushing for substantial changes, and McRuer's report helped derail the Law Society's plans. No longer would the Law Society draft its own acts and expect to see them promptly passed into law.^ The new Law Society Act went through more than a dozen drafts, and particularly after McRuer, they were hotly debated. As late as August 1969, the attorney general was proposing threeyear terms for benchers, removal of the society's powers over legal education, and Crown appointment of both lay benchers and a supervisory council. Not all these ideas were pursued, but the act that became law in June 1970 effected a substantial redefinition of the society.4 Some of the changes firmly established due process and public supervisory authority over the Law Society. The long-extinct powers of the judges as Visitors' were finally expunged, but the attorney general was declared 'the guardian of the public interest' regarding the Law Society Act, with power to compel production of evidence that might be required in that role. The society's rule-making power was closely defined, and henceforth its regulations would need the assent of the lieutenant-governor-in-council. Sections on disciplinary processes were greatly expanded, and the right to appeal the society's rulings to the courts was set out in detail. The most conspicuous changes concerned elections and the electorate. Convocation was expanded from thirty to forty elected 284

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benchers, and terms of office were cut from five years to four. Vacancies between elections were henceforth to be filled from the defeated candidates in rank order, and the list of ex officio benchers was simplified. That nineteen of the thirty benchers elected in 1966 came from Toronto had helped clinch the case for regional representation. It was imposed, although the principle that every bencher should represent all members was preserved by a ballot (first proposed by Ottawa bencher Ted Beament) with two lists, one of Metro Toronto candidates, the other of candidates outside Toronto. All members could vote on both lists, and the top twenty on each were elected.^ The new act made annual general meetings of the membership obligatory. In anticipation of this requirement, the society held a general meeting in 1968, its first since 1800. For several succeeding years, annual meetings were stormy, with radical resolutions from the floor, procedural skirmishes between dissident members and the chair, and even the surreptitious presence of plainclothes policemen, recruited by a nervous treasurer to remove 'obstreperous individuals' if necessary. However, convocation soon ruled that it had the authority to regard decisions of the annual general meeting as 'persuasive but not binding/ Conflict - and attendance - at annual meetings gradually fell away.6 The act established a new ninety-member Law Society Council to monitor how the society was fulfilling its public mandate, but the council proved so unwieldy and unfocused that in 1973 its own members unanimously proposed its abolition. In 1974 an amendment killed the Law Society Council and instead authorized the provincial cabinet to appoint four lay benchers as full voting members of convocation. (Again, convocation had anticipated the change and permitted some members of the short-lived council to participate in convocation prior to the legislation.) Two of the lay benchers, Reginae Tait of Toronto and Roseanne Sutherland of Sudbury, were the first women ever to participate in governing the Law Society. Tait recalled being criticized by women lawyers who felt no woman should sit in convocation until some had actually been elected.7 Convocation had long been hostile to lay representation. 'If any lay person should serve as a bencher ... he would find the work so boring that he would soon cease to attend/ benchers told the Questions of Control, 1970-1997

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premier and attorney general in 1968, though a more serious root of opposition was the perceived threat to self-government. Nevertheless, the benchers soon came to appreciate the handful of lay appointees, particularly as it became accepted that they were independents, rather than delegates of the government which appointed them. Without a constituency or interest to represent, lay benchers tended to be drawn smoothly into the convocation process, and they often became vigorous advocates for the Law Society. Contributing fresh perspectives rather than fundamental criticisms, lay appointees soon became valued participants in convocation and useful instances of the society's openness to public scrutiny.8 In May 1971, just after the first election under the new act, the new convocation chose Sydney Robins as treasurer. Robins, a bencher since 1961 and a long-serving lecturer at the law school and the bar admission courses, had hoped to be elected the society's first Jewish treasurer a year earlier. However, G. Arthur Martin, a greatly respected barrister ten years older than Robins, also decided to seek the job, and he made a formidable candidate. In a piece of backroom diplomacy worthy of his mentor, Earl Smith, secretary Kenneth Jarvis persuaded Robins to postpone his ambitions in exchange for Martin's support one year later. As a sole practitioner without partnership income to sustain him, Martin found being the (unpaid) treasurer a serious financial hardship, and after a single year, he moved Robins's nomination. At that point, Cornwall bencher Stanley Fennell was surprised by a suggestion from a group of benchers that he oppose Robins. Fennell, who recalled the wordof-mouth campaign that had tried to prevent Isadore Levinter from becoming the first Jewish bencher in 1956, renounced the antiJewish prejudice that he identified as the root of this invitation. Robins was elected unopposed.^ A memorable event of Robins's term was the renovation of Osgoode Hall. In the mid-1960s, renovation had been far from the government's priority, and Osgoode Hall came close to having a modern office tower erected on its west lawn. Instead, the courts temporarily vacated the west side of Osgoode Hall at the end of the decade, and architects Page and Steele undertook to modernize the building while preserving (and restoring) the glories of Cumberland and Storm's 1860 design and its later additions. Simultaneous ren286

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ovations under the supervision of the society's long-time architect Arthur Heeney worked a similar transformation in the Law Society's wing. Robins, who oversaw the Law Society's part in the renovations, was elected to a third term as treasurer so he could preside with Chief Justice George Gale and Attorney General Dalton Bales under the striped awning by the front doors as Queen Elizabeth performed the ceremonial reopening of Osgoode Hall in June 1973. Following the renovation, the government and the Law Society updated the 1874 and 1885 indentures by which the Crown had assumed ownership of the western half of the building, and many of the reciprocal rights and obligations that had been established then were extinguished.10 The Law Society's decision to renovate its building had been simple in comparison with its battles over the Osgoode Hall fence. The Confederation-era iron fence with the trademark 'cow gates' had needed repairs since the late 1950s, but both the fence and the lawn it enclosed were threatened by the city's plans to widen Queen Street. Fearing expropriation, the society sought the highest possible valuations of its land, and negotiations dragged on for years. In 1966, the society offered to convey a strip of its lawns twenty-seven feet wide to the city, if the city paid for moving and renovating the fence. The city, however, grew fearful of the cost of renovation and put limits on what it would spend. During the delays, cars twice ran into the fence, a section of it blew down in a windstorm, and parts were said to be in a dangerous condition and to pose a threat to pedestrians.11 Finally, in 1973, the city abandoned its plans to widen Queen Street, putting the fate of the fence back in the Law Society's hands. That made the decision no easier. Estimates that the cost of restoration would run close to a million dollars turned some benchers towards demolition. Others were influenced by the growing sentiment that the fence was an anachronistic, elitist, exclusionary symbol of the barriers to justice. There was a long internal debate before convocation decided that restoration was not merely worthwhile but a positive obligation, to preserve the legacy of 'a handful of barristers who built this marvelous building to our great joy today,' as fence (and later finance) committee chair Barry Pepper later put it. Restoration itself took years longer than anticipated and cost about $1.5 million. By the end of the decade, howQuestions of Control, 1970-1997

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The archives that Reginae Tait inspired and the archivists it employs have been indispensable to the writing of this book.

ever, the cow gates and railings seemed safe for another century, and even the critics seemed reconciled to the preservation of the green oasis on Queen Street West.*2 The next decade saw an internal beautification project to match the fence: stained-glass windows for Convocation Hall. This was the inspiration of Reginae Tait, the lay bencher who took over a moribund committee on 'Muniments and Memorabilia' and worked tirelessly to sensitize the Law Society to the historical and architectural riches in its keeping. She persuaded convocation of the value - and necessity - of a museum and an archives for its artifacts and records.* Then she turned her attention to Convocation Hall, Osgoode Hall's central gathering place since 1882. Imposing and baronial, the room was defined by its dark wood panelling and the cold light from twin ranks of clear glass windows. 'I walked into that Convocation Hall and thought, "What a cold, drab room. We could play basketball in this room,'" said Tait. She proposed to transform the room by turning its windows into a stained-glass memorial to the heritage of the law. Facing scepticism from many benchers, Tait turned instead to the formidable networks she had developed as a long-time volunteer activist. She arranged to raise the money (roughly $30,000 per window) privately and presented convocation with a fait accompli. With advice from secretary Kenneth Jarvis and the society's new archivist, Roy Schaeffer, glassmaker Christopher Wallis of London, Ontario, designed a set of heraldic-style windows on legal themes. Donations flooded in once the first window, funded by a donation from Toronto lawyer John Honsberger, was up. Jarvis donated another, and the full set of ten was completed in 1987, at the end of Tait's term as a bencher. 'Those benchers who were very opposed, and there were several very opposed, if you talked to them now you would think they did the windows themselves/ Tait later recalled with some satisfaction. 'It has really made Convocation Hall come alive.'13 Battles over fences and walls, however long and tedious, were nevertheless trivial compared to the battering that other ramparts of Law Society authority faced during the 1970s. One of those assaults opened on 2 April 1971, when members of the society's legal aid committee read in the papers that Osgoode Hall Law School (an independent entity at York University since 1968) was 288

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opening a storefront law office which would offer free legal advice in a low-income neighbourhood of Toronto, 'Poverty law' had come to Ontario,14 Ontario's legal aid regime had been built on the premise, articulated in the 1964 Common report, that needy people would find their way to lawyers if money were provided. Poverty law, however, began with the recognition that class and cultural factors denied poor people access to justice; merely to provide payment of lawyers' bills did not address, let alone solve, those problems. Poverty law argued that legal aid had to be delivered to poor communities through community networks and agencies which integrated legal advice with other kinds of assistance offered from accessible storefront 'clinics/ Much of the theory and practice of poverty law had been worked out in American cities during the 1960s, but it remained marginal in Ontario. In 1971 professors and students at Osgoode Hall Law School, with help from the Ford Foundation and the federal Department of Health and Welfare, were ready to import it to Ontario. 'We were against this, we were violently opposed to this/ recalled Gibson Gray, a future treasurer then on the legal aid committee. 'They were ... taking work on at the clinic ... rather than having the work done by lawyers, traditional lawyers/ That summer, there were rumours that the Law Society might seek an injunction against the law school's storefront clinic, and benchers urged the professional conduct and unauthorized practice committees to investigate. It was as much the challenge to Law Society authority as the clinic itself that irked the benchers. Staff at the legal aid plan had already begun their own studies of clinics to serve depressed areas in Toronto and Ottawa, and the plan was about to approve development of four pilot-project legal clinics.15 The law school's project not only scooped the benchers - the Parkdale legal clinic opened in a storefront on Toronto's Queen Street West in the fall of 1971 - but thumbed its nose at them. Osgoode Hall Law School had turned decisively towards legal and social activism since moving to York University, and it was eager to demonstrate its new independence from convocation. Arguing that Questions of Control, 1970-1997

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Artist Christopher Wallis supervises the installation of one of the privately funded stained-glass windows which transformed Convocation Hall and quickly became a symbol of Osgoode Hall

supervising law students working in a storefront legal clinic was part of the law school's educational mandate, Dean Gerald LeDain took the position that seeking permission from (or even informing) the Law Society was unnecessary.^ The Law Society's irritation moved it to consider reclaiming the name 'Osgoode HalP from the law school, but clinical legal aid (the phrase which soon replaced 'poverty law') proved irresistible. The Law Society, able neither to prevent nor to control their emergence, soon acknowledged that clinics were no real threat to private law practice, for they usually served a different clientele and often did counselling and community organizing work that extended well beyond legal practice. A legal aid clinic, acknowledged the professional conduct committee in 1972, limits its services to those who cannot afford the normal legal fees, and in general confines its activities to those services for which a legal aid certificate would not normally issue.' Other law schools and community agencies across the province began to plan clinics. Even private firms briefly thought they might combine public service and practice building by running their own clinics. In Toronto, the firm of Cameron, Brewin & Scott opened Riverdale Legal Clinic, Thompson, Rogers opened Kensington People and the Law, and Osier, Hoskin considered a storefront branch. * ? Meanwhile, the Parkdale clinic took a tenant's battle with her landlord all the way to the Supreme Court of Canada and won. Even more consequential was the support the clinics gave to new tenant organizations and to political campaigns for affordable housing and rent control. Such initiatives exemplified the poverty-law argument that legal aid had to be expanded from traditional legal representation to enable the poor to pursue structural change. By 1975, as the federal government's pilot-project grants to Parkdale and other clinics came to an end, Attorney General John Clement began pressing the Law Society to integrate the clinics into the legal aid mainstream. It was clear that attempting to restore the monopoly of the private practice 'judicare' system would only jeopardize the Law Society's overall control of legal aid. The potential strength of that broader challenge had been shown in 1974, when Ontario appointed John Osier of the Supreme Court of Ontario to investigate the delivery of legal services to disadvantaged groups, including aboriginal communities 290

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and isolated regions. Osier's report laid the groundwork for a permanent network of Ontario legal clinics. But Osier also recommended that legal aid be transferred entirely from the Law Society to a publicly appointed board which might be more open than the lawyers to other innovations in delivery of legal services. Although the Law Society successfully resisted that proposal, support for legal clinics was clearly part of the price. Within days of the publication of Osier's findings in March 1975, the attorney general urged the Law Society to see that 'in view of the climate created by the Osier report' (which the attorney general's ministry itself had launched), it should ensure that funding for the Parkdale clinic would be provided from the provincial legal aid grant administered by the society.18 In September 1975, the benchers accepted the appointment of lay members nominated by the attorney general to the society's legal aid committee, and over the next few years the enlarged committee funded the expansion of legal clinics across the province. In 1978, a permanent clinical funding committee, with both government and Law Society nominees, took charge. Clinical legal aid had successfully established itself within the legal aid plan, with confirmed access to a share of the legal aid budget, alongside the private practice 'judicare' program preferred by most of the profession. Eventually, there were more than seventy legal clinics across Ontario, with mandates that included environment law, refugee law, and other issues well beyond the original poverty-law commitment. All the Law Society had been able to protect was its own supervision of the plan, and even that was now shared with Crown appointees. In 1982, when benchers complained of the attorney general's close supervision of clinical funding, Roy McMurtry coldly reminded them that his 'determination to keep those clinics alive by making them a part of the legal aid plan [in 1975] did not meet with a great deal of enthusiasm on the part of the legal aid committee of the Law Society,' and that his ministry's participation would continue. *9 The Osier report and clinical funding served notice that, while the Law Society might still hold the franchise for legal aid, it no longer set the agenda and would never again be able to ignore government pressure. Perhaps more consequential in the long run, however, was the evidence that legal aid was creating a commuQuestions of Control, 1970-1997

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nity of social-activist lawyers. For most of the century, the mutual embrace of the corporate sector and the legal profession had grown ever tighter, until it was routinely observed that only the wealthy could afford lawyers. With legal aid funding and legal aid clinics emerged a growing cadre of lawyers much less beholden to the interests of wealthy clients, and much more eager and able to use law as a tool for social change and social criticism. Something of the ideological diversity that the nineteenth-century gentleman lawyers had been able to indulge in began to return to the legal profession. Issues of financial control and independence were raised in a different fashion early in 1976, when the legal aid plan ran short of funds and began delaying payment to lawyers by up to six weeks. Roy McMurtry, then in the early stages of what proved to be a tenyear term as Ontario's attorney general, declared it was time to control the legal aid budget, then totalling about $25 million a year and In 1976 the benchers entertained new Attorney General Roy McMurtry at lunch in the benchers' dining-room at Osgoode Hall. McMurtry is seated at the left, with treasurer George Finlayson next to him.

growing rapidly. Fulfilling perfectly John Arnup's prediction of 1968, McMurtry said, The fundamental problem is that the plan is what bureaucrats call an "open-ended programme." The days of open-ended programmes in government are just about over.'^O The attorney general did not pursue this threat vigorously. The open-ended legal aid system survived through another two decades 292

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of steadily escalating expenditures, and McMurtry's musings about adding public defenders to the legal aid system were also sidetracked. But these reminders of the Crown's tightening leash upon the Law Society provoked conflicting responses within the organization. Secretary Kenneth Jarvis articulated the standard response, advising legal aid committee chair John Bowlby that the society would have to cooperate with restrictions on legal aid expenditures, since the alternative would be 'to relinquish the administration of the plan to direct government control/ Stuart Thorn, who had succeeded Robins as treasurer in 1974, took the opposite tack. In a private letter, Thorn urged Bowlby that governance of the profession was the Law Society's only vital function. Running a 'statefinanced welfare operation' compromised its independence, Thorn declared. 'I suggest that Law Society policy should be to effect a phased withdrawal from its present position of formal control in order to ... preserve our freedom from government intervention in our affairs.'21 Thorn's radical proposal went unheeded by the legal aid committee and convocation. He made, in some respects, an unusual treasurer. A tax specialist with Osier, Hoskin might seem the perfect establishment bencher, but Thorn had been called to the bar in Saskatchewan in 1929 and had eked out a grim decade as a salaried lawyer in his father's firm, his practice largely confined to the repossession of devastated dustbowl farms on behalf of the firm's bank clients. Thorn had escaped to the navy in 1939, then joined the Department of Finance in Ottawa and become one of the founders of the new specialty of corporate tax law. He retained, however, a touch of both prairie radicalism and plain style, and he was not averse to taking positions contrary to the conventional wisdom of the bar. In this case, however, no hint emerged that the Law Society had considered a change then endorsed only by Crown bureaucrats, law school academics, and the young radicals of the Law Union.22 Even the suggestion of withdrawal illustrated the new environment in which the benchers had to operate. Where Stuart Thorn wanted to discard legal aid in order to preserve the essentials, Jarvis and most benchers feared that if legal aid were 'lost,' like legal education, the Law Society's other powers would begin to fall like a row of dominoes. Yet even the discussion of a strategic withdrawal recQuestions of Control, 1970-1997

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ognized a new reality. Both Jarvis and Thorn were acknowledging, in their way, that the Law Society alone no longer set the agenda on legal aid and much else affecting the profession. The principle of self-government endured, but authority over the legal profession was becoming permanently subdivided.

THE MANAGEMENT DEBATE

Kenneth Jarvis, who joined the Law Society staff in 1958 and succeeded Earl Smith as secretary in 1966, was a living refutation of the idea that lawyers must be Gradgrinds lost in jargon and heaps of writs and indentures, Jarvis was a singer of professional calibre, a sculptor of renown, and a skilled photographer; he joined the Law Society staff partly because the demands of downtown law practice left him too little time for his art. Over three decades, he adapted a corner of Osgoode Hall into a studio, and graced the building with sculptures and the Law Society's Gazette with photography. Appreciative of the long traditions of the law and the history of Osgoode Hall, he sought to preserve the ceremonial dignities of the society and the profession. Jarvis also proved himself Earl Smith's apt student in the role of confidential public servant, at once deferential to convocation and a key player in its deliberations. Convinced that the principle of self-government required the Law Society's authority to be defended against all challengers, Jarvis usually advised against any steps that might be interpreted as a curtailment of its powers. By the 1970s, however, the Earl Smith role was more difficult to fill and less readily accepted. No individual could keep in touch with all the branches of the profession and fill all the needs of the Law Society. As the challenges to its authority developed, the society needed expanded research and policy-development capabilities to negotiate effectively with governments, law schools, and the profession. At the same time, managing the Law Society itself had become a different job as the organization took on programs as diverse as continuing education, member audits, liability insurance, and legal aid. Other programs that began in the 1970s and 1980s - the lawyer-referral telephone service, the advisory service on practice management, the communications department, and other professional or public services - were smaller but incremental in their effects. 294

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The staff of the society grew from 70 in 1960 to 150 in 1980 and to 275 in 1990. Member dues (fixed at $20 from 1917 to 1952) increased rapidly and regularly. From $40 in 1955, they had grown to $150 in 1971, $400 in 1981, and over $1000 in 199L In addition to the membership fee, there were separate levies for the compensation fund, for liability insurance, for county libraries (after 1984), and after 1986 to support the legal aid plan. As dues and other revenues rose, so did the annual budget. It rose above $1 million in 1971, went over $4 million in 1981, and was over $30 million by the early 1990s. The power to tax the membership ensured that the budget balanced, but the days of fat annual surpluses were long gone. Sophisticated financial controls and administrative structures were urgently needed, but the Law Society was still a deeply traditional workplace. Into the 1970s, senior staff presided daily at afternoon tea. All staff members would be invited in rotation (with junior staff expected to wash the china afterwards) to imbibe the lesson that 'it was an honour to work for the Law Society/ Comptroller Alfred Bennett, who taught that lesson, had joined the staff as a temporary assistant in 1934 and had stayed on to become the indispensable factotum everyone consulted for information that was often kept only in his head. Everyone liked Alf Bennett, but one bencher complained that until a trained financial manager was hired in 1976, the society's finances were run like a Cape Breton grocery store/ Even benchers who admired Jarvis's diplomatic skills and shared his appreciation of Law Society traditions questioned whether he had the financial and managerial know-how that was now needed.2^ The first treasurer to confront the society's management style was George Finlayson, a civil litigator from McCarthy and McCarthy, who ran for treasurer in 1978 out of an interest in administrative matters. A no-nonsense chairman whose brisk style and ready use of the gavel shocked some benchers, Finlayson privately believed that his immediate predecessors had been dominated, indeed led around by the nose/ by senior staff. 'When I took Questions of Control, 1970-1997

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Kenneth Jar vis, Law Society secretary, 1966-87, and an artist in several media, contemplates his bust of Roland Michener, the first member of the Law Society to become Governor General of Canada. Both Michener and Jarvis were appointed honorary benchers.

In 1971, the librarian of the Great Library, Rosemary McCormack, shepherded a group of benchers to a computer demonstration at Queen's University. The benchers saw these terminals in action,' they reported to convocation, 'and themselves operated one called a cathode ray tube terminal. This terminal looks like a TV set with a keyboard in front. The operator types out the information he wants and the full text of this material appears within several seconds on the screen.' The benchers had seen the future: on-line law reports.

over, the administration of the Law Society was a mess. I couldn't believe it,' he recalled. 'I got into quite a bit of head-knocking with the staffs Finlayson described the Law Society as a collection of petty empires run by 'quill-pen' accounting and private convenience. He was soon at war with Rosemary McCormack, George Johnston's successor as librarian. McCormack, the first trained librarian to run the Great Library, had done significant work in professionalizing the library and had been an early advocate of applying computers to legal research.* However, both Finlayson and Samuel Lerner, a London bencher determined to give local law associations more control over their county libraries, found she resisted their efforts to make the library more accountable to convocation, and Finlayson did all he could to hasten her 1980 retirement. Though he admired legal aid director Andrew Lawson's work in helping establish legal aid, Finlayson thought Lawson ran the plan 'like a club,' with staff who worked when they chose and little effective management. In Finlayson's view, the bar admission course had also become a private fiefdom without effective reporting systems or financial controls.2^ The heart of the Law Society, however, was the secretariat, and so the crucial rivalry of reforming treasurers was with Kenneth Jarvis. Finlayson struggled to impose his authority on the secretariat, and he bequeathed the struggle to his successor, John Bowlby, a second-generation bencher from Hamilton who was elected treasurer in 1980. The first non-Torontonian to hold the office (at least since John White in 1797), Bowlby was also the last unpaid treasurer. Much of his practice evaporated during his years as treasurer, and it was said that towards the end of his term, every person invited to convocation luncheons was someone who could assist his quest for a judicial appointment (which he indeed received a few months before his third term was due to end). Bowlby was hard drinking, plain-spoken, and hardly reverent about tradition, and his eagerness to consult the whole profession set him at odds with benchers and staff who preferred the time-honoured ways. He served three terms as treasurer, but he had almost as many detractors as supporters in convocation and was opposed all three times.26 Bowlby's informal, consultative style made a sharp contrast to

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Bert/ion's 1846 portrait of Chief Justice John Beverley Robinson has presided over the Great Library of Osgoode Hall since it opened in I860. No longer the only, or even the largest law library in Ontario, the Great Library remains the hub of a provincewide network of law libraries maintained by the Law Society and local law associations. The room itself is one of the most beautiful in Ontario.

Finlayson's brusqueness, but their relations with Law Society management were identical. Bowlby's dealings with Kenneth Jarvis may have been summed up in a 1981 memo in which Jarvis instructed the treasurer that 'expense accounts should be supported by vouchers where possible, a brief note of the purpose of the trip, and in appropriate cases the name of the person taken to lunch or to whom a disbursement ... was made/ Preserved in Bowlby's archival file, the memo is held together with tape - Bowlby had ripped it to

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pieces. Filed with it is a copy of Bowlby's reply: 'Be it known, that I as Treasurer do not intend to file vouchers in the bureaucratic manner suggested/27 Such skirmishing, however, was not the heart of the issue. In 1980 the Law Society still ran according to managerial innovations introduced by the reformist benchers of the 1870s and 1880s. In the 1870s, when the secretary was the only senior employee, the workload of the Law Society had been distributed to standing committees of convocation. By the 1970s, the number of these committees of benchers had grown to sixteen, each of which had a department of employees serving it. Within each committee, benchers and staff shared management and policy duties, and staff members reported both to the secretary and to their committees of benchers. Inevitably, lines of responsibility were blurred. When and how to make fundamental change to this structure was the responsibility of convocation, not its employees. Bowlby intended to make those fundamental changes, and he won support from a cross-section of benchers. Finance committee chair Barry Pepper shared many of Jarvis's views on the importance of Law Society tradition and had run for treasurer against both Finlayson and Bowlby, but he supported reorganization, as did a bencher who was in many ways his polar opposite, Harry Arthurs. Arthurs, the former dean of Osgoode Hall Law School and an iconoclastic critic of many professional traditions, had become a bencher in 1979. Under Bowlby he headed a committee on modernization and efficiency. Another of Bowlby's reformers, St Catharines bencher Rod Barr, was hardly a natural ally of Arthurs - 'I resent a bunch of academics setting out to reorder the profession/ he wrote in a 1980 letter to Finlayson - but he expressed the frustrations that turned self-styled pragmatists against the existing regime. 'A profession of over 12,000 lawyers is being governed by much the same machinery as existed when the profession was a fraction of its present size and before the advent of the ... things which take up so much of our time/ wrote Barr. 'Benchers are inundated with material [and] vote on matters about which they have not had time to absorb the necessary material/28 Bowlby's chosen weapon in his endeavour to redesign the Law Society was the Peat Marwick report. He had brought the manage-

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ment consultants in early in his term, in response to what he called 'concern that our administrative and executive management practices had not kept pace with the society's growth and its increasingly complex management/ Seemingly bemused by the Law Society's oddities, Peat Marwick's consultants recommended that the institution be remodelled into something like the corporations they usually advised, with a president in charge and a board of directors providing general supervision. This, however, proved too extreme for convocation. Instead, it instituted a two-headed management system, in which the secretary would be limited to 'professional' matters, with his managerial responsibilities hived off to the newly created office of under-treasurer, which was given responsibility for Law Society administration. 'It is my feeling that your society is moving into the twentieth century, albeit close to its end,' reported John Bowlby to the annual meeting in 1983.29 Bowlby's changes, however, proved less substantial than he hoped. After the first under-treasurer died within weeks of taking office in mid-1981, Colin Bennett, a retired judge and former member of Parliament, stepped in briefly to set up the office and to recruit a former deputy attorney general and deputy treasurer of Ontario, Kendall Dick, who filled the position for five years. Bennett expected the under-treasurer to be the undisputed head of Law Society administration and to function much like a civil service deputy minister, empowered both to control the staff and to offer policy advice to convocation. Indeed, when the proposal to provide a salary for treasurers was being debated about this time, the new management structure was cited as evidence that the work of treasurers and benchers would soon take much less time.30 In the end, the office of under-treasurer never became so consequential, partly because the secretary retained substantial responsibility, but mostly because the committee structure, and the direct involvement of benchers in management, remained unaffected. The Peat Marwick report had implied that convocation should become a mostly supervisory board, but convocation was actually moving into, rather than out of, micromanagement. Not only did the society have more programs to administer, but it faced new constituent pressure and greater media attention on a growing range of issues. Benchers were less, rather than more, willing or able to del-

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egate responsibility. The day of the brief monthly convocation (when 'you would finish at 11:30 and have to wait half an hour for the bar to open') was over. One initiative that helped undermine Bowlby's reform campaign was controversy over discipline procedures. Discipline cases, always time-consuming, became particularly so after the process became 'judicialized' in the 1970s. In 1972, soon after judicial review of discipline decisions was included in the new Law Society Act, the Ontario divisional court had overturned a disbarment in a ruling that obliged discipline processes to become much more like courtroom trials. The lawyer, a Queen's Counsel named Stephen French, and the Law Society fought each other through every avenue of appeal, and the case set out lasting precedents on discipline procedure. One result was a new division of responsibility for discipline. Members of the discipline committee, having heard the original case, could no longer participate in convocation's vote on their recommendation. Instead, findings were separated from sentences. In each case, a discipline panel would hear the facts and recommend a verdict, but convocation would choose the sentence. Lawyers were frequently hired to present both the prosecution and the defence case, and the traditionally informal ethical yardstick was gradually being replaced by something like courtroom rigour. By the early 1980s, when the society hired its first full-time discipline counsel, convocation's discussions of discipline cases were becoming a serious obstacle to the efficient completion of its monthly agenda. Benchers were free, if they wished, virtually to retry the committee hearing in convocation's secret sessions, and so the fate of 'a few bad apples' could preoccupy the benchers for hours. In 1981, Bowlby endorsed a proposal from benchers Harry Arthurs and Rod Barr to eliminate convocation from discipline cases altogether. They recommended that the discipline panel should include both bencher and non-bencher lawyers and that panel rulings should be reviewed by the courts, not by convocation. At this point, the drive for efficient management ran into a groundswell of concern about convocation's authority. Benchers had always taken very seriously the burden of responsibility conferred by the disbarment power. Treasurer Gibson Gray spoke for many when he recalled his first vote to disbar. 'I was con300

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vinced the judgment was right, but... walking up Simcoe Street, it really dawned on me that here was a person who was about ten years older than I was, who wasn't going to be able to practise law anymore. So it troubles you/ Treasurer William Howland called the discipline experience 'heart-rending/ and Sudbury bencher Robert Topp spoke of his respect for 'the power to take away your ticket... in my business that's the ultimate power.'3* This sense of responsibility translated easily into identification with the lawyers under scrutiny. Barrister-benchers, shaped by criminal defence work and the presumption of innocence, were particularly prone to this, sometimes to the despair of their colleagues. 'If Arthur had had his way in the period of 1955 to 1965, we would not have disbarred anyone/ recalled John Arnup of the distinguished defence counsel and civil libertarian Arthur Maloney. Several other prominent litigators had the same reputation among their confreres. Cornwall bencher Stanley Fennell believed that some of his barrister colleagues 'felt very strongly that you should not be disbarred until you had been convicted of a crime in the criminal courts.'32 Indeed, a survey leaves the clear impression that benchers often flinched from punishing flagrant misconduct, particularly after convocation began making more use of lesser sentences such as suspensions. In 1969, the discipline committee recommended disbarring a lawyer who routinely falsified mortgage documents, offered no explanation, and was evasive and uncooperative under investigation. Convocation reduced the penalty to a brief suspension. In 1973, a lawyer, having persuaded a client entrusted with family funds to lend to a holiday charter enterprise of which the lawyer was a director, told the benchers he had not realized he was doing anything wrong and was excused with a reprimand in convocation, although the client, a sheet-metal worker, lost $20,000. The following year, a lawyer who misappropriated $100,000 of clients' money and lost it in companies in which he had a personal interest declared 'he did not intend to steal the money' and was let off with a suspension.33 Discipline decisions in particular cases resist easy evaluation; mitigating circumstances known to the benchers may have justified any of these decisions. But even William Howland, who described himself as having been 'no dove' in disciplinary cases between 1961 Questions of Control, J 970-J 997

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and 1975, came to believe, after he became a judge and gained experience in the sentencing parameters of the courts, that convocation had consistently been too gentle in protecting the public against transgressing lawyers.^4 The reaction against this softness came mostly from solicitors. Solicitors, whose business depended directly on their reputation for honest treatment of clients and clients' money, often took a hard line, particularly concerning the misuse of clients' funds, which was the root of most discipline cases. But solicitors, with fewer opportunities to become well known in the profession, had usually been a minority in convocation. Nathan Strauss, prominent from long service to the Canadian Bar Association and York Law Association, considered himself virtually the only small-firm solicitor in convocation until Laura Legge won election in 1975. Legge, the first elected woman bencher, had been president of the Women's Law Association, but felt she was elected as a voice of the solicitors rather than by women (particularly as she received 1500 votes when barely 300 women voted). She saw herself as an advocate for the small-firm solicitors and the workaday profession against the elite barristers.35 An earlier proposal to reduce convocation's power over discipline had galvanized Legge to run in 1975, and in 1983 the new proposal convinced her to campaign for the treasurer's job. She and Strauss and others insisted that discipline was the fundamental bencher responsibility, not to be delegated to anyone, and they characterized the proposal to turn discipline over to the courts as simply another abdication of responsibility by those who had flinched from wielding the power to disbar vigorously enough. They got strong support from secretary Jarvis. The Law Society's key powers, he urged, were 'its powers of self-discipline and regulation and its power to prescribe educational standards. The society's grip on educational standards has been lost... Its grip on the standards of professional conduct will slip away if the proposed amendments go through.'^ In May 1983, Laura Legge succeeded Bowlby to become the first woman treasurer (a second woman bencher, Mary Weaver of Sudbury, had just been elected) and also the first treasurer to receive a stipend ($50,000, later raised to $75,000). Legge was a hard-working and widely admired treasurer, but she had not sup302

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ported the Peat Marwick proposals or the hiring of an under-treasurer, and she reversed many of Bowlby's reform plans. The proposal to remove much of the discipline burden from convocation's agenda was among the casualties. The prosperity of the 1980s assuaged several looming problems for the Law Society and the profession. The recession at the beginning of the decade, like others before it, had exposed many embezzlements by lawyers. Claims on the compensation fund soared, and the annual levy, which had been $30 a year in 1978, shot up to $100 in 1981 and $300 in 1982. Thereafter, claims fell off, and the combination of a high levy and high interest rates rapidly rebuilt the compensation fund. By the 1990s, it had a $25 million nest egg, and the levy was just one dollar. In a similar fashion, high interest rates on lawyers' trust accounts sent a flood of money into the law foundation, which collected the interest and applied it to legal aid and other causes. There was, however, another confrontation with the attorney general in 1986 over the ever-rising cost of the legal aid plan. As on previous occasions, the Law Society made some concessions but preserved both lawyer control and the open-ended, demand-driven budget of the plan. In a hotly contested decision, however, convocation agreed to charge all members, whether they did legal aid work or not, a levy of $175 to help support the plan. Prosperity also muted critical scrutiny of the errors and omissions liability insurance program during much of the 1980s, though its administration had been a constant headache since the start of the program in 1971. There had been an acrimonious split with the first insurance company, which announced termination of its coverage after just nine months (in which it collected large revenues from premiums and faced almost no claims). Several other firms came and went over the next several years. What consultant Peter Norman called the profession's 'unenviable loss record' caused constant renegotiations and regular premium hikes. By 1976, the insurance committee was reporting 'resigned acceptance' of a $400 premium. In fact, premiums rose almost tenfold in a decade, from $110 in 1971 to $1068 in 1982. Coverage, however, increased proportionally, from $50,000 to $500,000, and the general inflationary climate of the time helped to mute complaints. In 1977 the society began insuring all claims under specified dollar limits by itself - only very large claims now went forward to Questions of Control, 1970-1997

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the commercial insurance carrier. This was a first tentative step in loss prevention measures/ for it was meant to persuade members that they themselves, not some distant insurance company, were actually paying the cost of negligence claims. Practice-advisory programs, intended to help lawyers correct sloppy office practices that led to errors, had the same aim. By the 1990s, bencher committees were investigating whether imposing mandatory continuing education upon lawyers would improve professional performance enough to ease the insurance burden. The warranty against incompetence the Law Society had given to the public by its insurance program was beginning to force it to police the competence of its members more directly. But these responses were limited and cautious. Fear that private insurers would control who practised law by the premiums they set had first drawn the Law Society to initiate its liability insurance program. The society remained unwilling to encourage large differences in premiums, and it lacked the means to test directly for competence or to correlate claims histories with actual incompetence. In any case, premiums rose more slowly in the 1980s - there was Laura Legge, first woman treasurer of the Law Society, watches as bencher Barry Pepper reads the honorary call to the bar of British Prime Minister Margaret Thatcher in 1988.

actually a brief reduction in 1985 - and the incentive for loss-prevention programs became less urgent. By decade's end, annual premiums were $1544, only 50 per cent higher than in 1982, and 304

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coverage had doubled again to $1 million. The upper limit on claims covered by the Law Society itself had also steadily increased, and at the end of the decade the society decided to form its own insurance company, the Lawyers' Professional Indemnity Corporation, as the carrier of its insurance program. The cost of insurance compares most favorably with that in any other jurisdiction/ reported the insurance committee contentedly in 1988.37 In the late 1980s, both the make-up and the attitudes of convocation were evolving slowly. There were a few more women and ethnic minority benchers, and in 1985 the first francophone treasurer, Pierre Genest, whose term was cut short by a crippling stroke. A new research and planning committee, formed in 1986, began once more laying the groundwork for the kinds of structural change that had been stillborn in the Bowlby era. Nevertheless, the Law Society ended the 1980s deeply conflicted about how to achieve managerial efficiencies and without having achieved a fundamental restructuring. Kenneth Jarvis retired as secretary at the end of 1987, aged sixty-two. His authority, though challenged, had remained substantial, and he went out strong, having served six months as undertreasurer and being elected an honorary bencher on his retirement in June 1988. The convocation which made Jarvis an honorary bencher conferred the same honour on British prime minister Margaret Thatcher. Thatcher was the only non-lawyer (other than Prime Minister Mackenzie King and several members of the royal family) upon whom the Law Society had ever conferred this honour. She radiated, however, not only the Englishness that the Law Society had often cultivated, but also a combative, confident authority that a majority of its benchers admired and perhaps sought to emulate. In May 1968, William Howland, the newly elected treasurer, listed 'the need for lawyers in Ontario' among the issues he hoped to address. Howland meant not if there was a need, but how many there was a need for, and in that innocuous way, the perennial question of 'too many lawyers' returned to the agenda of the Law Society. In May 1970, a special committee recommended that 'it would be unwise to embark on a policy of numerical restriction' Questions of Control, 1970-1997

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but agreed that 'any substantial increase in numbers' might well produce an oversupply of lawyers. Membership of the Law Society was then 7375, and it would double to 15,000 by the start of the next decade.38 By the mid-seventies, articling positions were already becoming scarce* In the early eighties, the economic recession hit many lawyers hard, and they focused their resentment on the flood of new lawyers joining the market. When John Bowlby surveyed the views of the profession in 1980, 73 per cent of respondents called on the Law Society to limit entry to the practice of law. Benchers reported the number of lawyers to be their leading issue, and early in 1981 Bowlby appointed fellow Hamiltonian Roger Yachetti to lead a special bencher committee to investigate the growth in numbers. It confirmed that what the practising bar identified as a threat came from a fundamental transformation in the legal profession. Across Canada, the annual growth rate of the profession, which had been as low as 2 per cent as recently as 1968, was hitting double digits by the late 1970s. How many lawyers there were, who they were, and how the profession should respond to the new demographics had moved to the centre of the agenda, and would stay there.3^ It had begun with growth in the law schools. Entry to law school became more competitive, but most who entered graduated, and virtually all who graduated were called to the bar. Law school enrolments, not Law Society exams or access to articling positions, had become the prime determinant of lawyer numbers, and university law schools had no obvious interest in keeping their enrolments down. With universities growing rapidly, attendance at Canadian law schools also soared. Full-time enrolment at Osgoode Hall had been under 1000 even in the crowded postwar years, and after the entry of the universities into legal education in 1957, total Ontario enrolment in LLB programs stayed at just slightly over 1000 until the early 1960s. Then it grew rapidly, to 1600 in 1965, 2700 in 1970, and 3700 in 1975, after which it began to level off.*0 Almost equally striking was the changing make-up of the new legal population. Since Clara Brett Martin's call to the bar in 1897, women had remained a very small proportion of the legal profession (still just 5 per cent in 1971) and of law students (only 6 per cent in 1965). Opportunities for women remained restricted. Confronted in 1979 with data showing the particular placement 306

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difficulties of women law graduates, treasurer George Finlayson responded that giving fresh publicity to the 1974 rule against gender discrimination 'will be taken as an insult by members/ But by then women's share of the lawyer population was being transformed. Women were 11 per cent of all law students in 1969, 20 per cent in 1973, and 30 per cent in 1976. Their share thereafter grew more gradually until they were roughly as numerous as male students by the end of the 1980s. Numbers of visible minorities and hitherto unrepresented ethnic groups also grew rapidly, though apparently somewhat later and in smaller numbers.^1 The graduates of the expanded law schools began entering practice about 1970, and by the end of the decade they had doubled the size of the profession in Ontario. They constituted a young bar who, by comparison with their seniors were very numerous, highly educated, much more mixed by gender and ethnicity, and much less certain of their future financial security. This was, of course, a trend that went far beyond Ontario and the Law Society of Upper Canada. As the American legal historian Richard Abel put it in 1986, in every legal jurisdiction, 'a very small cohort of elderly white men are governing associations that deeply affect the lives of a very large younger cohort with significant female and minority membership.'^2 By the time John Bowlby became treasurer in 1980, a sharply increased population of lawyers was confronting an economy in recession (and a correspondingly reduced demand for legal services). Bowlby initially shared the view of the profession at large that there were indeed too many lawyers. Members were urging controls on entry, he said, 'not, as the cynic would quickly respond, because their purse seemed in jeopardy, but because ... the standards of professional service were threatened/ Were there indeed too many lawyers for the good of society, as the practitioners in Bowlby's survey declared? And if so, what should the Law Society do about it?43 On the first question, the instinctive 'yes' of the profession met a cool 'no' from research the Law Society commissioned from University of Toronto economist David Stager. Stager's analysis, delivered in the fall of 1981, demonstrated that throughout the Questions of Control, 1970-1997

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In 1991 retroactive LLB degrees were offered to lawyers who had been called to the bar before Osgoode Hall became a degreegranting institution in 1957. Among the 2000 recipients were (left to right) Frederick Catzman, Nathan Strauss, and Paul Martin, Sr, of the classes of

1928 and 1929.

booming postwar era until about 1970, the supply of lawyers had actually grown considerably more slowly than the demand for legal work. As a result, lawyers' relative incomes had risen steadily and remarkably in the 1950s and 1960s, Lawyers began to lose this relative advantage as the 'production' of lawyers increased during the 1970s, Stager agreed, but that merely returned them towards their traditional situation by the start of the 1980s. Stager noted that growth in law school enrolments had already largely ceased. With a stable number of graduates joining a much larger population of lawyers, the profession would not double again every decade. (In fact, the growth rate of the early 1980s proved to be lower than it had been since the 1940s.) Regarding future prospects, Stager noted that the proportion of lawyers who worked in private practice was falling sharply, from 88 per cent in 1973 to 71 per cent in 1982. Government and business were significantly expanding the range of employment options for new lawyers. Even for the traditional private-practice sector, Stager had reassuring news. His calculations suggested that, historically, each percentage point increase in gross national product produced a 2 per cent increase in demand for legal services. The solution to lawyers' troubles, Stager suggested, was recovery from the recession of the early 1980s, not limits on new lawyers.44 The Law Society, aware that the public and the government would not favour any attempt to limit admissions, accepted that analysis and put its trust in economic growth. Roger Yachetti's special committee on numbers was deeply divided, but when it reported on 27 January 1983, convocation rejected proposals to limit entry to the bar admission program and to increase the very low failure rate of students in the course. In response to the numbers crisis, it endorsed only consultation and study.45 The dissonance between the will of the profession and convocation's decision on the numbers issue had been made particularly vivid by Bowlby's determined efforts to solicit the opinions of the members through questionnaires and meetings. Lawyers who wanted protection from competition had been encouraged to articulate their views. They expected the Law Society to act for them, and that expectation grew the more the society consulted them. Convocation, however, was obliged to consider the public interest,

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not only in the abstract but in the specific form of a sceptical government, backed by public opinion, that would certainly have interpreted limits on entry as a self-serving abuse of the power of self-government. This widening gap was just one symptom of the growing complexity of the benchers' relations with their constituents. Into the 1980s, most benchers were still leaders, rather than representatives, of the profession, and benchers' deliberations had remained substantially independent of constituent pressure. Name recognition still gave prominent litigators and leaders of dominant firms an advantage in bencher elections. Nevertheless, a few new Constituencies' for benchers had developed. One was the law schools, which in the 1970s produced a series of bencher-professors, notably Stephen Borins and Harry Arthurs, who often took positions at odds with the practitioner view. And a few individuals campaigned effectively against 'the old boys' network,' the large-firm leaders and prominent litigators whom they portrayed as a self-perpetuating, unrepresentative, and insensitive ruling elite. One early and successful practitioner of the tactic of seeking election to convocation by 'running against the Law Society' was Clayton Ruby. Ruby had first come to convocation's (largely disapproving) attention in the late sixties as part of 'the Yorkville bar,' a group of lawyers and law students giving free advice to the youth of hippie-era Yorkville.* By 1977, Ruby was a bencher himself. Still colourful and anti-establishment, he at once made the secrecy of convocation an issue. News of what went on in the secrecy of convocation had always been leaked to benchers' friends, of course, but soon after his election Ruby began emerging from the convocation room to give press briefings. Outraged fellow benchers struck a special committee to defend confidentiality and set out appropriate behaviour, but they were powerless to compel secrecy. Ruby, and gradually others, continued to be quoted about the benchers' deliberations, although for ten years their urgings of an end to secrecy made no impression on policy. Ruby gradually became convocation's consummate outsider/insider, scorning the collegial tradition in dissenting press statements, yet also a pillar of the cigars-andwine old boys' club in the house committee.46 More organized campaigns for election began to emerge in the

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The leaflet announcing the Yorkville bar is wonderfully redolent of the sixties: 'Digger lawyers are now operating in Yorkville ... Do not hesitate to call when you have a really heavy bitch happening ... When you get the answering service, leave a message: name, charge, age and where The Man has you ... Now be cool, learn to recognize these lawyers and spread the word.'

1980s. The debate over numbers, and general dissatisfaction with Law Society representation, helped spur Ontario's local law associations to form the County and District Law Presidents' Association (CDLPA) in 1980. Its founding prospectus declared that since the Law Society would not lobby for lawyers, a new organization was needed 'to adequately express the opinions of the practicing bar/ Because each county or district controlled one vote in the new association, the York (that is, greater Toronto) district, with half of Ontario's lawyers but only one vote, found itself a distinct minority and eventually withdrew, ensuring that the CDLPA would speak mostly for small-town and small-firm practitioners. In that role, however, the CDLPA could Very substantially influence the election of benchers, particularly the nonToronto benchers' (as Windsor bencher Patrick Furlong put it, perhaps nervously). Despite such innovations, and despite the changing demographics of the profession, the face of convocation remained little changed by the early eighties. Senior male barristers from leading firms remained dominant. In fact, growing divisions within the profession itself seemed to preclude any form of unified action by lawyers.4? The most spectacular innovations in legal practice came in the biggest corporate law firms. In the 1970s, a firm could be one of the largest in Canada with a single office and fewer than forty lawyers. The great corporate boom of the 1980s changed that. The elaborate corporate mergers, buy-outs, and recapitalizations fed on the great expansion of international capital markets and on the ever-greater complexity of the modern corporation and the law surrounding it. Every aspect of the process required more elaborate legal advice, and that demand fuelled the rise of international corporate law megafirms. By the end of the eighties, a firm aspiring to leadership needed offices across the country and overseas, and some of them were heading towards a thousand partners. In 1986, the firm of Campbell, Godfrey, which had initiated some key innovations of law-firm management in the 1950s, merged with the older firm of Fasken, Calvin. The explanation managing partner Robert Sutherland later gave for the merger summarized where strategic management and market competition had brought the corporate law firm by the late 1980s. To survive, Sutherland argued, a corporate law firm had to be 'on the 310

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list of firms that people look at to take on these mega-projects/ the retainers from large corporate clients. When secret plans for a billion-dollar merger or recapitalization depended on accurate prediction of future court verdicts and securities-regulation rulings on scores of discrete details, corporate clients expected their law firms to deliver highly reliable legal advice very rapidly, even if that required mobilizing teams of perhaps dozens of lawyers on short notice. In Sutherland's analysis, the 100-lawyer or 125-lawyer law firm, though it was ten times the size of the large firms of a generation before, was simply not big enough to compete for these jobs - was, indeed, doomed. 'You really have to be in the top five/ he concluded, and by 1992 Fasken, Campbell, Godfrey, with 250 lawyers and two European offices, was indeed the fourth-largest Canadian law firm. Faskens, however, had mostly followed a path blazed by even larger firms. McCarthy and McCarthy had pioneered interprovincial expansion when it opened a Calgary branch in 1982 (after a court fight to overcome the objections of the Alberta Law Society). In subsequent years, it merged with a large Montreal firm to form McCarthy, Tetrault, and went on to open international branches. Osier, Hoskin absorbed a large Ottawa firm, Herridge, Tolmie, and expanded internationally, first on its own and then in association with Montreal's Ogilvy, Renault. McMillan, Binch, meanwhile, affiliated with leading firms in both Montreal and Vancouver. Would-be competitors made similar moves both in and beyond Canada.48 To maintain a place among the leaders in the 1980s, law firms competing for the retainers of large corporations grew by up to 20 per cent a year during the 1980s. They recruited promising students aggressively, raided other firms, and engineered law-firm mergers and splits. At the same time, they had to find the clients to support their growth. No longer could a 'rainmaker' expect drinks at the club to produce long-term client relationships and a free hand with regard to billing. The corporate world now had its own in-house counsel, who bargained hard over legal bills and were much more ready to change law firms frequently. Marketing departments had become essential parts of large law partnerships. The perils of failing to grow were illustrated by the firm of Day, Wilson, founded early in the century on Jimmy Day's expertise in Questions of Control, I970-1997

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The handsome premises typical of Bay Street law firms of the 1980s could not guarantee success in the turbulent 1990s. Holden, Day, Wilson dissolved in 1996, as mergers and competition left a handful of megafirms dominating the corporate law market.

the incorporation of mining companies. By 1990 Day, Wilson had merged with another prominent firm, Holden, Murdoch, but still it stalled at about fifty lawyers. In 1996, Holden, Day, Wilson went out of business. It simply dissolved, with its lawyers and staff scattering to wherever they could find places.49 The competition for growth required the big firms to put extraordinary demands upon partners and associates: to limit their practices strictly to the needs of high-paying corporate clients, to devote all their waking hours to the firm, to docket their time by tenths of hours, and above all, to rack up thousands of 'billable hours' every year. On the other hand, a successful corporate law firm paid its associates very well and dangled the even greater rewards of partnership. As a result, young corporate lawyers vied with stock traders to be the preeminent symbol of those in the driver's seat of the late-1980s fast lane. Corporate lawyers increasingly moved not just from firm to firm, but out of law firms altogether. Businesses and government had long been employers of lawyers, but in the 1980s and 1990s, even the most senior partners of corporate law firms could be tempted from law into business. In 1985, senior partner Purdy Crawford left Osier, Hoskin to become head of a client firm, Imasco. Over the next decade, one rising young partner, Brian Levitt, followed him to Imasco and another, Peter Dey, joined a bank. Other large firms also had to accept the loss of key partners to executive positions in business. As the business ethos became more deeply rooted in corporate law, the difference between law firms and business corporations was increasingly blurred.50 Also blurred was the question of whether large law firms could be effectively governed. The ethical prescriptions of the profession had always been directed at individuals, and exposure of misdeeds had often come through lawyers' constant and unavoidable dealings with other lawyers. These ethical exhortations, however, seemed hardly to apply to corporations. As the American legal scholar Richard Abel observed, 'the large firm is a powerful bureaucratic organization in its own right, jealously guarding its control over its members and remaining relatively impervious to external influ-

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ence.' The big firms had expanded beyond the boundaries of their governing bodies, and they had the resources to make their own arrangements with clients without outside scrutiny, unless firm members were prepared to put ethics ahead of self-interest and inform on their partners. ^1 Megafirms and merger-and-acquisition specialists grabbed the spotlight in the 1980s, but in fact the profession was splintering into a maze of specialties. The Canadian Constitution had been a source of litigation ever since Confederation, of course, but ratification of the Charter of Rights and Freedoms in 1982 (reflecting the vision of Pierre Trudeau, a former law professor), produced a blossoming of charter law activity. Computers, employment, malpractice, international trade, intellectual property, aboriginal land claims - every growing field of legal business seemed to be producing its specialist 'bar.' There was even a discipline bar for Law Society hearings and a liability bar dealing with its insurance company. Even in the field of corporate law, the megafirm was balanced by the boutique firm, in which a few specialists threw off the administrative burden of being partners in giant firms and offered a narrow range of legal services to a select clientele. And by the 1990s, a third of all lawyers were employed by governments, businesses, and other institutions, rather than in the private practice of law. Perhaps the most distinctive development was the expansion of the various sections of what came to be known as 'the legal aid bar.' The founders of the legal aid plan in the 1960s always declared that they had no intention of creating legal aid specialists - legal aid had been idealized as the responsibility of the profession at large. Yet even the older, unpaid scheme of the 1950s had attracted some lawyers and not others, and payment simply emphasized that process. Paid legal aid for the first time made specialization in criminal defence work feasible for significant numbers of lawyers, and a sizable criminal defence bar came into being, particularly, but not only, in Toronto. A few, the notorious 'dumptrucks/ made large incomes by doing nothing but processing large numbers of guilty pleas very rapidly and billing a flat fee to Legal Aid for each one. The criminal defence bar was vocal about the inefficiencies of the legal aid plan, particularly during the repeated funding crises that delayed their payments. As errors and omissions premiums rose, lit-

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igation specialists criticized the Law Society obligation that they participate, since most claims came from real estate transactions, and the work they did was sheltered from negligence claims. The 'other' legal aid bar was very different. The explosion in marriage breakdowns, separations, divorces, and custody battles had been making family law a growth business since the 1960s. Many family law clients, particularly single women and their children, had low incomes and were burdened with multifaceted problems that required time and personal attention from their lawyers. Lawyers, particularly socially conscious women lawyers, found in family law a field of practice where they could act on behalf of the disadvantaged. Often, however, they also found that billings did not compensate for the time demands of family practice, which became a relatively low-income, low-prestige branch of law heavily dependent on legal aid. Alongside the family lawyers were other people-oriented, socially activist, and relatively low-paid specialists, such as immigration and refugee lawyers, again heavily dependent on a legally aided clientele. Though they continued to be private practitioners, legal aid lawyers began to take on some of the attributes of public defenders: overworked, ill-paid, socially conscious, and largely if not entirely dependent on publicly funded programs that were coming under increasing constraints. The Law Society was their governing body, but the society's legal aid plan also was their prime source of income and effectively their employer. As confrontations with government over funding became more frequent in the 1980s, legal aid lawyers, concerned about their incomes and conditions of practice (and feeling largely unrepresented in convocation), found themselves increasingly frustrated by the Law Society's willingness to compromise on details of the plan for the sake of preserving the judicare model and Law Society control. Between the legal aid crusaders and the corporate law technicians, the Main Street generalist remained the most familiar lawyer to anyone who needed to buy a house, settle an estate, or defend a minor lawsuit. Growing costs of office overheads, regulatory requirements, and (even here) increased specialization meant that many of the traditional solo practices had evolved into partnerships of several lawyers. What was changing fastest for the general practitioner, however, was competition. The numbers issue was still 314

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alive for this branch of the bar, and frustration with the Law Society's refusal to take action was producing another large bloc of discontented members. As new competitors outstripped the growth of new business in their field, small practitioners were also confronted with rapid changes in the ethos of the legal profession. The resurgence of freemarket ideology in the 1970s and 1980s had found a ready echo in law. Academic law-and-economics scholars sought to analyse law and legal services by the market-oriented precepts of classical economics, while large firms with corporate clients increasingly resembled corporate bureaucracies in competitive marketplaces. At the same time, legal academics and sociologists attacked the traditional ideals of the profession, arguing that all the hallmarks of modern professionalism - elaborate entry requirements, monopolies of practice, restrictions on advertising and competition, and standards of professional conduct - were simply evidence of a favoured elite's anti-competitive self-interest. Against the challenge of 'business realities' on one hand and anti-combines legislation on the other, professional standards and professional self-regulation became increasingly beleaguered. Since the 1970s, federal combines law and provincial task forces had been forcing competition upon the service professions, including law. When combines law was extended to services in 1976, tariffs (the set fee scales by which lawyers priced their work) began to crumble. In Ontario, tariffs had long been set by local law associations in each county or district, so no direct change was required of the Law Society. As the law associations lost their ability to impose their tariffs, however, Law Society rules of conduct that had supported them (by defining price cutting as professional misconduct, for instance) had to be rewritten. Law associations which tried to preserve the tariffs in order to defend their members' incomes ran foul of the law. In 1988, the Kent and Waterloo Law Associations were convicted of breaching the Competition Act by their efforts to preserve mandatory tariffs. Proof that a fundamental change in the economics of legal practice had taken place came when the discipline committee of the Law Society reprimanded both associations for professional misconduct. Treasurer Arthur Scace's skilful negotiations, which persuaded the Competition Bureau to accept the disciplinary action in lieu of its efforts to have crippling fines Questions of Control, 1970-1997

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imposed on the two small associations, helped cement his reputation as one of the most effective managers among modern treasurers. However, after acting as treasurer during most of the term of Pierre Genest, who was disabled by ill health, Scace served only a single year, 1985-6, as treasurer in his own right.^2 Although price competition among lawyers implied advertising by lawyers, the Law Society held the line for some years against the advertising of fees. After a three-year special committee investigation, convocation voted to prohibit advertising of prices and fees in 1980 and again in 1983, but it did permit a much greater range of non-price advertising. In defence of its authority over advertising (and, implicitly, over professional conduct in general), the Law Society of Upper Canada intervened in a court case pitting the Law Society of British Columbia against Donald Jabour. Jabour had opened a law shop in North Vancouver and publicized it with flamboyant announcements of his prices for standard legal services. Jabour was supported by the federal anti-combines administration when he sought to overturn his law society's authority to sanction him for advertising his prices. With the authority to govern hanging in the balance, treasurer Finlayson went to Vancouver to testify.^ The law societies won the Jabour case at the Supreme Court of Canada in 1982, and the reasons for judgment of Willard Estey (a former Ontario bencher) were a ringing endorsation of the principle of self-government and the authority of law societies to govern the legal profession. Jabour quickly became the keystone of Law Society efforts to defend the self-government of the legal profession. Yet, despite their victory on the principle, governing bodies across Canada almost immediately yielded on the issue itself. The Law Society of Upper Canada followed the trend, voting to withdraw most of its professional conduct restrictions on advertising and other forms of business-like competition. In September 1986, it abolished all limits on lawyers' advertising, except those of good taste, honesty, and verifiability. Accepting payment by credit card, long taboo with the professional conduct committee, had been permitted since 1978. In 1984, the Law Society withdrew its opposition to incorporation by lawyers and law firms, and in 1988 approval was given for contingent fee agreements in which lawyers received not a set fee but an agreed share of any monies gained for 316

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a client in applicable areas of law. (Incorporation and contingent fees, however, required legislative changes which were not immediately forthcoming.) 54 Competition, marketing, and the quest for business efficiencies became more influential than ever throughout the profession. Large firms had already adopted the practices and values of their corporate clients. The defence bar was gradually becoming more assertive, more adept at publicity, and less deferential to received authority. Even the traditional Main Street lawyer, serving the crowded marketplace that provided private clients with home mortgages, wills, divorces, and other consumer services, had encountered competitive pressure from entrepreneurial colleagues eager to run law practices as service industries, with advertising, set prices, franchising, and computerization. Customers might find prices falling for routine home mortgages or uncontested divorces, but the expectations of comfortable, remunerative careers began to erode for practitioners in this newly competitive marketplace. The intricate controls drafted by sixties-era professional conduct committees were quickly abandoned, and the much older ethos that the law was a profession above crass commercialism and the profit motive faded with them. As disdain for touting was replaced by the need for marketing, the legal profession found it could not take for granted its insulation against competition from beyond the profession. Paralegal services began probing the borders of the professional monopoly. Since 1971, the unauthorized practice committee had had to accept the presence of 'divorce-kit' marketers and other services challenging the lawyers' monopoly on giving legal advice. The lawyers' monopoly of advocacy was also threatened. In 1987, the Law Society failed to secure a conviction of Points, a former police officer's company which offered to fight traffic tickets and other minor infractions in the lower courts. After some reflection, the Law Society decided in 1988 that although it had to accept the existence of independent paralegal services, it would take no part in their regulation and would continue to oppose their expansion.^ The more competitive, more business-oriented ethos which was coming to the fore put into question the role of governing bodies like the Law Society of Upper Canada. In 1993, the American legal scholar Robert Gordon identified two competing trends at work in Questions of Control, 1970-1997

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the law. One he defined as 'the view that even private lawyers working for private clients ought to behave as members of a public profession pursuing public values and purposes/ Against it stood 'the powerful rival position that the only proper public concern of lawyers is to avoid flat disobedience of clear positive legal and ethical rules while zealously pursuing the self-interest of their clients as those clients perceive [it]/ To the extent that the latter view prevailed, the scope of action for a self-governing professional body was sharply curtailed; indeed its raison d'etre was put in question. Even the existence of the debate weakened allegiance to the lawyer's traditional ideology. As Farb, the embattled real estate lawyer, puts it in Morley Torgov's 1990 novel, St Park's Day, The guys that wrote the [Guide to Professional Conduct] are way up there in their cozy little clubhouse dreaming ethical dreams, and Pm way down here where the shit is happening ... Pm gonna do this my way.^6 The Law Society, of course, was larger and running more programs than ever, but it was increasingly difficult to argue that it governed a unified profession. The old solicitor-barrister and Toronto-regional tensions were compounded by growing differences between other groups and caucuses, all ready to question for whose benefit the Law Society exercised its powers. Meanwhile the right, let alone the ability or the will, of law societies to judge the ethics of lawyers came under hostile scrutiny, and the idea of selfgovernment itself met increasing scepticism from a public schooled in the idea of conflict of interest and doubting any entrenched authority's high-minded claims to idealistic virtue. Whenever new levels of social complexity increase the public's dependence on lawyers' services, anti-lawyer sentiments and their offshoot, the lawyer joke, hit new peaks; but so, paradoxically, does grudging recognition of the power and influence of the lawyer. The late 1980s was such an era. In jokes, films, novels, and celebrity journalism, the lawyer was an omnipresent object of envy, admiration, and loathing. At the end of the decade, such ambivalent attention produced the hottest American pop-culture novel of the time, John Grisham's The Firm. In The Firm, a brilliant young law grad joins what he thinks is a top law firm. In fact, he has joined the Mafia - and he can't tell the difference. In wealth, influence, secrecy, and ambition, said The Firm, the two 318

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institutions were pretty much the same. Grisham's many readers found the analogy easy to accept. In the last decade before the Law Society's 1997 bicentenary, Ontario's lawyers began a revolution in how they were represented in convocation. Since the start of bencher elections in 1871, convocation had been only notionally a representative body. Members of the profession had chosen their elders and betters, rather than lawyers like themselves, to lead and govern the profession. That began to change in the mid-1980s, and it was women lawyers who made it decisive. By the 1987 Law Society elections, women were about a fifth of practising lawyers, but just three woman sat among the forty elected benchers. After the election, there were only four, but several women who fell just short of election soon came in to fill vacancies. The next elections confirmed women's new voting power. Of the eleven women among the eighty candidates of 1991, ten won election, and four stood among the top ten vote-getters. In 1995, first-time candidate Mary Eberts topped the poll, and women became a third of elected benchers - actually ahead of their proportion in the profession. By then, all the government-appointed lay benchers were women as well. The women benchers were not united by viewpoint or by background; they included law school academics and legal entrepreneurs, small-town practitioners and large-firm partners. Nevertheless, gender identity - and gender alienation - helped elect them. Some had actively solicited women's votes, but as candidates they benefited more from the spontaneous decision of many women lawyers to vote for all the women on the ballot and, often, for no one but the women. This 'plumping' gave women candidates better odds of election than men in 1991 and 1995, even while women remained a minority within the profession. For the first time, a voting label' other than seniority and prominence was actually determining bencher elections. More was at stake than gender balance. One woman who ran in 1987 recalled the issue that galvanized her: a series of decisions Questions of Control 1970-1997

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Members of an allwoman law firm, Dickson, Sachs, Appell and Beaman, in 1995. Although studies like the Law Society's Transitions report made it clear that many women continued to find themselves at a disadvantage in the profession, by the mid- 1990s, about half of law student graduates were women.

on legal aid made during the mid-1980s. Dependent on legal aid clients and vulnerable to whatever changes convocation made to the legal aid regime, she had become convinced while lobbying benchers that the typical bencher voting on her issues might never have seen a legal aid certificate in his practice. Unlike small-firm solicitors and others who had chafed at their exclusion from Law Society decision making, however, dissatisfied women were able to deliver votes to generally like-minded benchers by voting for women. As women established the new voting pattern, therefore, they were not only electing more women. They were ending the unchallenged supremacy of establishment barristers over Law Society policy. Convocation for the first time acquired a caucus of younger lawyers who were of less professional prominence than the typical bencher. They were conscious of representing less prestigious (and less remunerative) areas of practice, and they tended to be sceptical of many of the ruling assumptions of the older male benchers they had joined. The core of this new caucus was female, but more than gender divided it from the old guard. 'I was elected, I suspect, by lawyers who feel excluded by the law society and who serve clients who feel excluded from power/ said one of them, family law practitioner Carole Curtis.^ The new women benchers moved at once on gender issues. Frances Kiteley, one of the first elected of the new group, was particularly effective in making women's issues a Law Society priority. First as a subcommittee, then as a full standing committee, Kiteley's women in the legal profession committee began prodding other convocation committees to investigate gender inequities in their purview. In particular, the committee sought to entrench non-discriminatory standards in Law Society hiring, language, and service to the public. By defining all sexual harassment as professional misconduct subject to disciplinary action, it put teeth in the non-discrimination rule of 1974 (under which only one lawyer had ever been sanctioned). Other minority concerns prospered along with women's issues. The Law Society had already established a committee on French-language services, and it soon launched another on equity issues. Kiteley's committee also initiated an unprecedented study of gender issues and the changing nature of legal practice, entitled Transitions in the Ontario Legal Profession. For once, the Law 320

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Society was ahead of the trends. The Canadian Bar Association's landmark commission on gender issues, chaired by former Supreme Court justice Bertha Wilson, did not begin work until shortly after Transitions appeared in 1991.^8 Transitions introduced a new form of ethical discussion to the Law Society. It took a critical look at the gaps between male and female lawyers in income, work experience, and job satisfaction, and at how the cultures of male-oriented firms impeded the progress of women, particularly those with family commitments. Much of the report, however, made the case that while modern legal culture was particularly inhospitable to women, it was not healthy for anyone. Throughout, Transitions fleshed out its statistics with vivid quotations from lawyers ('Friends who practise law generally have similar complaints: the profession is killing the quality of their lives ... Large legal factories are turning young lawyers into billing machines ... There is never adequate time to do a comprehensive job ... The trends are destructive and dehumanizing ... Have hated my experience as a lawyer so far/) Transitions, in effect, made gender issues the vehicle for a wide-ranging critique of late-twentiethcentury professional culture. The report may have begun with gender issues, but it advocated a general transformation of the profession. The same could be said of the benchers who initiated it and of their constituency in the profession. Although women formed the most substantial reform caucus in convocation, they joined representatives of traditionally marginal viewpoints. As a founding director of the County and District Law Presidents' Association, for instance, Ottawa lawyer Abe Feinstein had long advocated root-and-branch changes to the Law Society. In November 1993, he told the association that the Law Society was like Winnie the Pooh, always being bumped downstairs on the back of his head and thinking there must be a better way, 'if only he could stop bumping for a moment and think of it.' Since 1991, however, Feinstein had ceased to be an outside critic; he was himself an elected bencher. Feinstein's experience was no longer very unusual. Running against the Law Society, long the preserve of a few high-profile gadflies, had became one of the most effective ways of getting elected to convocation. Professor Harry Arthurs (himself an ex-bencher) summed up the new voting pattern in 1992 when he told the benchers, 'Many of you were elected because you were Questions of Control, 1970-1997

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In 1991 Chief Justice of Ontario Charles Dubin and treasurer James Spence wekomed the Prince of Wales to Osgoode Hall to receive an honorary call to the bar and to launch a new program of equity scholarships.

perceived to represent elements in the profession which identified with your candidacy: as regional candidates, as progressives, as litigators, as solo practitioners, as young lawyers, as representatives of the Bay Street elite/ The splintering of the profession into organized (and often aggrieved) subgroups had finally ended the deferential voting patterns of 120 years. Convocation, as Arthurs put it, was 'no longer a bench of notables/59 The new-style convocations of the late 1980s and early 1990s developed a significant reform agenda focused on 'openness.' Even among benchers representing establishment firms, those who were inclined to open the Law Society to greater participation (by the profession and the public) became newly influential James Spence from Tory and Tory had helped steer the research and planning committee's early initiatives for change, including a study of the Law Society's public and professional communications and a program of equity scholarships for disadvantaged law students. Elected treasurer in 1990, Spence persuaded the Prince of Wales to present the first of these scholarships when he visited Osgoode Hall and became an honorary bencher in 1991.60 Spence's successor as treasurer, Allan Rock from the Fasken firm, shared the new reforming spirit. Elected to convocation in his mid-thirties in 1983, Rock had initiated the revitalization of the research and planning committee and made it the source of most of convocation's new initiatives. When in 1992 he became the youngest treasurer since Hillyard Cameron, Rock contributed his political flair to the push for wider consultation and an improved public profile for the Law Society. After just a year in office, Rock himself felt the call of wider horizons and became the first treasurer since Edward Blake to move into national politics. Unlike Blake, however, Rock resigned from convocation when he launched his campaign for public office. Elected to the House of Commons in 1993, he received Blake's old portfolio of Justice. As recently as 1985, the benchers had agreed that to act 'with one voice and one purpose,' they had to meet behind closed doors as they always had. Soon after the 1987 election, the new alignment in convocation forced a change, voting to open meetings to

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the public on an experimental basis. In April 1988, a convocation held in Ottawa became the first to be opened to the profession or the public. The experiment was soon made permanent, and it was soon applied to other society business. (Discipline hearings, as quasi-judicial forums, had already been opened to the public.) In 1992, membership in convocation committees was opened to nonbencher lawyers. Several hundred lawyers volunteered to participate, and committee work quickly became more representative of the profession.61 Electoral reform was also on the agenda. In 1990, the benchers agreed to regionalize Law Society elections beyond the Toronto-non-Toronto division legislated in 1970. The new plan, intended to create regional elections around the province, was strongly supported by non-Toronto benchers and the county law associations as a way of ensuring that benchers would be answerable to local constituencies. The plan came to be opposed with growing vigour, however, by women and minority benchers, whom it threatened with loss of their province-wide constituencies. In any case, the change required legislative action, and the day when Law Society requests were enacted swiftly into law was long over. The attorney general's ministry had its own wish list for the Law Society Act, including the power to appoint more lay benchers. In 1993, the Law Society agreed to accept ten instead of four lay benchers. Nevertheless, the amendments were left on the legislature's pending list for years.62 Even without an increase in their numbers, lay benchers were assuming new importance at the Law Society. The reform agenda called for openness in discipline and complaints procedures, and lay bencher participation became crucial to both. Once more the vexed question of whether discipline cases should involve the entire convocation was fought out, but now the emphasis moved from the responsibility of benchers to the public's insistence on open processes. In 1990, a committee on discipline procedure led by Hamilton bencher Roger Yachetti was given the mandate to 'achieve a higher level ... of public assessability and to deflect any criticism that the society acts in a closed fashion.'63 The Yachetti plan showed how lay benchers had become crucial to the Law Society's claim that the profession could discipline itself

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without neglecting the public interest* Yachetti proposed to make lay benchers mandatory participants in the panels which would authorize the laying of discipline charges. There would have to be at least one lay bencher on every three-bencher panel that would hear and rule on discipline cases, and two lay benchers in the rotating committees of convocation which would review the panel verdicts. Less than twenty years after they were first forced on a reluctant Law Society, lay benchers had become its first line of defence against the charge that committees of lawyers would always be biased in favour of their fellow lawyers.6^ As Yachetti's committee wrestled with discipline procedure, lay bencher June Callwood addressed a broader issue of public concern. A distinguished journalist, activist, and civil libertarian, Callwood had made openness to public complaint a priority since her appointment in 1987. In 1990, her special committee on complaints decried the 'unhappy state of affairs' which saw the vast majority of complaints about lawyers being dismissed by a Law Society employee as insufficiently serious to rank among the one public complaint in forty which led to a discipline inquiry. On lesser grievances, such as 'minor acts of tardiness, indifference, or sloppiness' by lawyers, the Law Society's lack of response continued to damage the reputation of both the profession and the society. The present system ... is admirable in its ponderous and judicious dignity when there is evidence of serious misconduct/ Callwood reported, 'but it is cumbersome and almost useless for most other matters.' In the wake of her report, the complaints department was put under the authority of a committee of lay benchers and reoriented to satisfy the public's demand for meaningful responses on even minor complaints and to make the process 'problem-solving rather than adversarial.' The Callwood committee also initiated creation of a professional standards department to address matters of ineffective service to the public.65 The change coalition which began to gain influence at Osgoode Hall after 1987 had defined a significant reform agenda and had pursued it with vigour. Most of the changes, however, were incremental. The new agenda presumed that if there were upper limits for an organization that had been constantly growing for some forty years, they had not yet been reached. The reformers sought mostly 324

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to expand the Law Society's scope of activity, to make the organization more responsive to the profession and the public, and to use Law Society powers in new ways. The staff and budget of the society continued to grow, and so did the level of scrutiny the society imposed upon the profession. To support it all, the dues and fees imposed on the members increased almost every year. The Law Society came to the end of the 1980s believing that most of its key programs were essentially sound. The errors and omissions insurance program had become the largest and most expensive program run by the Law Society, with annual premiums approaching $1000 per member. In 1990 the society dispensed with private insurers and formed its own insurance company, the Lawyers' Professional Indemnity Corporation. The insurance committee predicted that the new corporation would 'bring stability to the cost of insurance in the long run.' Even in 1991, when recession drove claims up by 43 per cent over 1990 and wiped out the plan's accumulated surplus in a few months, insurance chair Colin Campbell predicted prompt restoration of 'a satisfactory surplus position.'66 The legal aid plan, still government-funded and managed by the Law Society, grew just as fast, fuelled by an endlessly growing demand for subsidized legal advice. In the 1970s, the attorney general had forced the acceptance of legal clinics upon the society; and in 1986, the society obliged all members to pay a levy in support of legal aid. Despite the adjustments, the structure of legal aid remained little changed from its 1964 origins. The Law Society's new initiatives were aimed mostly at expanding legal aid services to women, refugees, and other ill-served communities. In 1991 when Attorney General Howard Hampton of Ontario's newly elected New Democratic Party government expressed concern about 'the open-ended financial commitment which arose from a demanddriven scheme,' the Law Society responded with Legal Aid on Trial, a defence of the existing system. The lawyers had turned back every previous attempt at fundamental change to legal aid, and they expected to succeed once again.6? Internal management at the Law Society likewise remained unreformed. The staff was much larger, and each department was led by qualified specialists, but the system instituted for running the Law Society in the late nineteenth century still dominated the Questions of Control, 1970-1997

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organization chart* Authority remained diffused through a hydraheaded network of bencher committees. Indeed, the activist ambitions of the new reform coalition meant that benchers were more than ever involved in management as well as policy. A fundamental optimism marked the reforms of the early 1990s. In this way, at least, the new benchers were in the same tradition as benchers back to the early 1950s, when the Law Society first began to move beyond dues of $20 a year, a handful of staff, and a carefully restricted role. New-wave or old-guard, benchers still shared a confidence that the Law Society could do more things and respond to more people, that an expanding profession supported by an expanding economy could sustain continual growth in the society's operations, and that policies of openness would preserve public acceptance of the society's status. Then came a series of disasters which suggested that the world was changing faster than the Law Society's reform agenda had allowed for. Their implications for the future of the society, and for the profession, can be explored in the minutes from three Friday convocations, one in 1989 and two in 1994. On Friday, 29 September 1989, bencher Clayton Ruby confronted convocation with a motion to deplore recent actions of the discipline committee and its chair, Toronto bencher Paul Lamek. Five members of the prestigious Toronto firm of Lang, Michener were facing Law Society discipline hearings, but Lamek had rejected staff advice that complaints be laid against four other Lang, Michener partners. One of these was Burke Doran, and Doran was also a bencher - indeed, he had been chair of discipline when the offences under investigation occurred. The press was already onto the story. Now Stephen Sherriff, a former assistant Crown attorney and for eight years senior discipline counsel to the Law Society, had resigned his job. It was his advice Lamek had rejected, and Sherriff told the press that some lawyers were escaping disciplinary charges 'because of who they are rather than the evidence.' That was the accusation that fuelled Ruby's motion.68 It was a charge that went to the heart of the Law Society mandate. Just as the agenda for openness and accountability was getting under way, a senior staff member was offering ammunition for all who had always believed that self-government was a smokescreen

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and Law Society discipline a threat only to lawyers outside the elite. Charges of 'cover-up' in the Lang, Michener investigation had already been made by an ex-partner of the firm. Now these charges were supported by a bencher as well. Lang, Michener, the partnership at the centre of the storm, was one of the megafirms of the competitive 1980s. By merging with the old-established Lash, Johnson firm, it had grown to the 200-lawyer threshold in 1986. Its discipline problem began about the same time, when it absorbed a small firm led by Martin Pilzmaker. Lang, Michener wanted Pilzmaker for his extremely profitable practice in immigration law, but much of that practice, it transpired, depended on fraudulently obtaining citizenship for wealthy non-residents and plundering their accounts as well. Once he was exposed, Pilzmaker's own disbarring was a relatively routine process, and he committed suicide before criminal proceedings against him had begun. For the Law Society's investigation of the other Lang, Michener partners, however, the issues were more complex: who at the firm had known of Pilzmaker's unethical practice, when had they known, and had they notified the Law Society in timely fashion? It was on the last count that the members of the executive committee which managed the Lang, Michener firm were called before the discipline tribunal. Pilzmaker, having committed criminal offences, would have been charged under any disciplinary regime. The other charges, however, might never have been laid under the fifty-year-old disciplinary regime in which threatening clients' trust in lawyers (usually by stealing their money) had been the only other substantial offence. Now the 'ethical economy' was changing. With discipline charges against the members of the executive committee of Lang, Michener, the Law Society was declaring to a sceptical public that it would maintain its authority over the big law factories as well as small practitioners. Charges under the 'failure to notify' rule drove home that partners in charge of large firms would be held responsible to the Law Society for the conduct of their subordinates. In the Lang, Michener case, however, that issue was complicated by the fact that when the firm finally did report Pilzmaker to the Law Society, the discipline staff promptly lost the documents and proceeded for another nineteen months as if no disclosure had been

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made. With that sorted out, five executive partners of the firm were charged, found culpable, and reprimanded for failing to give prompt notification to the Law Society, The issue of the uncharged partners, and particularly Burke Doran, remained. Sherriff, the experienced senior lawyer of the discipline staff, argued that Doran, as a bencher and chair of discipline, had failed in a special obligation to be zealous in pursuit of wrongdoing in his own firm. Lamek, the current discipline chair, held that Doran's duty was the same as every other lawyer's, and that, not being a member of the firm's executive committee when it became aware of Pilzmaker's misconduct, he bore no direct responsibility for his firm's shortcomings. In convocation, however, the crisis hinged on a third opinion. Early in the Lang, Michener investigation, the Law Society had retained David Scott, a prominent Ottawa lawyer and discipline specialist (and brother of the then attorney general, Ian Scott), as independent counsel. The press had reported that Scott, like Sherriff, had advised charging nine, not five, Lang, Michener partners, including Doran, and it drew the conclusion that Lamek alone had chosen to drop four of them from the list. It was this belief - Lamek's alleged override of independent legal counsel - that prompted Ruby's motion of censure at the convocation of September 1989. . Treasurer Lee Ferrier refused to accept Ruby's motion, declaring that discussion of it would forestall all members of convocation from ever hearing the Lang, Michener cases. It was not until January 1990, when all the cases were complete, that Lamek rose to declare the press reports were wrong and to deny that he had rejected advice from Scott. Then, with the treasurer breaking a tie, convocation authorized the engagement of the retired chief justice of Manitoba, Archibald Dewar, to investigate the whole affair. Burke Doran, a bencher since 1979, resigned from convocation.^ Dewar found no impropriety in the Lang, Michener discipline case. He questioned some procedures and was scathing about the 'bumbling, fumbling performance reflecting upon the quality of the investigation and the competence of the staff involved,' but he acknowledged the right and responsibility of the chair of the discipline committee to make the decisions he had made. Despite the uproar, he noted, the proceedings had not been challenged before any competent review authority. Dewar's report was a vindication 328

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for Lamek and the Law Society. On receiving the report, convocation immediately passed a vote of thanks to Paul Lamek. Three years later, when Allan Rock resigned the treasurership, Lamek succeeded him.70 The report hardly assuaged the Law Society's critics or ended suspicions that big firms were largely beyond disciplinary supervision. Public attacks by a bencher and a former staff member carried more weight than an unofficial opinion (from yet another lawyer) that no procedures had been violated. In any case, it was difficult for the society to mount a defence on the grounds that it had merely been incompetent, not unethical. Increasingly attuned to conflicts of interest and the abuse of authority, the public and the press were unlikely to accept that one bencher could be relied on to render judgment on the conduct of another. As long as lawyers retained the power to exculpate their fellows from suggestions of wrongdoing, the potential for accusations of bias remained. Renouncing that power, however, meant renouncing an essential aspect of self-government. The Yachetti committee proposals, which came soon after the Lang, Michener crisis, acknowledged the force of such criticisms by expanding the authority of the staff discipline counsel and making lay benchers into crucial arbiters at every step of the discipline process. Yet on discipline matters, the Law Society, like the College of Physicians and Surgeons and other self-governing authorities, would remain almost permanently on the defensive, and procedural changes would not blunt the attacks. Press reports of large firms that made private restitution to clients and avoided serious sanction, and sensational cases like that of Julius Melnitzer, a prominent London lawyer disbarred after defrauding investors and banks of millions of dollars, worked together to cement a public image of rapacious lawyers feebly regulated by their governing body. When the hearing of serious discipline charges against the prominent hockey promoter, player agent, and lawyer Alan Eagleson was repeatedly postponed over six years, critics of the society voiced their doubts as to whether the Law Society was capable of providing timely justice. On Friday, 28 October 1994, the benchers moved out of Questions of Control 1970-1997

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'Just Say No' a lapel button distributed by lawyers critical of the Law Society during the Errors and Omissions insurance crisis of 1994.

Bencher Harvey Strosberg led convocation s investigation into the huge deficits of the Law Society's insurance program in 1994.

the small convocation room, dating from 1832, where they customarily met. A crisis in errors-and-omissions - or E&O, as the profession called it - insurance had sent members' premiums soaring, and scores of angry, fearful lawyers had come to Osgoode Hall to find out how much the benchers' decisions would cost them. To accommodate them, the session had been moved into the adjacent, and much larger, Convocation Hall In previous sessions devoted to the issue, observers had come wearing buttons saying 'Just say No to E&O/ Observers have no right to speak in convocation, but they cheered loudly for sympathetic benchers who played to the gallery. This session was just as tense, but quieter, for decisions had to be made. Bencher Harvey Strosberg, chair of the insurance committee, came to the podium. A heavy-set Windsor lawyer with a reputation as a formidable litigator, Strosberg was presenting the recommendations of a special task force on the insurance crisis, and his presentation was tough and uncompromising. The subject was millions of dollars which the profession had suddenly found itself owing its insurance company.71 Strosberg stood before a stack of charts, and as he worked through them, benchers around the table began to flinch at every line as if being hit. The insurance program, comfortably in surplus in the late 1980s, had at the end of 1992 accumulated a deficit calculated at $23 million, Strosberg began. Then he worked through the problems. Calculation error, $28 million. Payout pattern error, $11 million. Other errors, $5 million, $3 million, and so on. By the end of the first chart, the corrected 1992 deficit had grown to $98 million. The second chart ('Underfunding, $18 million/ said its first line) showed the deficit rising to $131 million in 1993. The third chart, which included an ominous line saying simply 'computer error, discovered 20 October 1994: $6 million/ brought the deficit to $154 million by the middle of 1994, and it was still growing. The message was simple and, to anyone who practised law in Ontario, stunning. A financial and administrative disaster was falling upon the profession. The society's mandatory E&O program had begun in 1971 with premiums of $110 and coverage of $100,000. Premiums had grown to $1000 by 1990, but coverage had risen to $1 million, and the 330

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Law Society had proudly vested the program in its own insurance company, the Lawyers' Professional Indemnity Corporation, or LPIC. The problems had begun to pile up at the end of the 1980s, driven by the recession in real estate values, and perhaps also by the fierce price cutting among real estate lawyers. Collapsing real estate deals left clients desperate to blame someone, and claims for lawyers' real or alleged errors began to flood into LPIC. Even when individual cases could be successfully defended, their sheer volume made the insurer's costs shoot up. As rising premiums prompted closer investigation of the program, evidence of spectacular mismanagement also began to emerge. The prosperous 1980s had obscured how the insurance program had walked into nearly every management error available to it. One small, telling example was the matter of the minimum reserves, statutorily required of LPIC by the Ontario Insurance Commission. Because it collected premiums at intervals while its claim payouts were constant, LPIC had repeatedly let its reserves fluctuate below the minimums. When the exasperated regulators finally laid a charge against the corporation, senior managers sent a junior staffer to plead guilty and pay the fine, and then decided not to tell LPIC's bencher directors. The litany of multimillion-dollar misjudgments on Strosberg's charts was simply further evidence of how badly the program was run. Convocation was deeply implicated in the crisis, and not only for its failure to have scrutinized LPIC effectively. In each year of the 1990s, actuaries had given the benchers best-case and worstcase estimates of what forthcoming claims costs might be. Horrified each year at the premium increases they would have to impose on their newly awakening constituents, the benchers had consistently chosen the best-case option. Actual claims, unfortunately, usually went on to exceed the worst-case estimate. When he had the benchers reeling with the scope of the damage, Strosberg began to lay out his task force's solutions. He left it up to the profession to decide if a mandatory insurance program should continue, then ensured what the answer would be by pointing out that if they got out immediately, no private insurer would accept the whole burden and the profession would still be liable for the accumulated deficit and for past errors not yet exposed. Even if the Law Society chose to sell off the insurance business, Strosberg Questions of Control, 1970-1997

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implied, it would have to reorganize it first, and the premiums would still have to be paid. Half of Strosberg's rescue plan hinged on huge premium increases. Lawyers had grumbled at $1000 premiums a few years before; now they would pay $1100 merely as a retroactive supplement to the 1994 premium. The basic 1995 levy would be at least $5600, and for years there would be large supplementary levies to build up LPIC's capital reserves and meet other requirements. As Strosberg went through the numbers, lawyers in the audience began to calculate that, simply to open their doors, they would have to pay the Law Society close to $10,000 in dues and premiums every year. The other half of Strosberg's proposal, intended to put LPIC on a new foundation, actually had larger implications than the huge new premiums. The Law Society had begun its insurance program to prevent private insurers from determining, by whom they chose to insure, who could practise law. Differential premiums and denial of coverage went against that philosophy. While some higher premiums and deductibles had been applied to high-risk practitioners, LPIC's essential task had been to calculate the total risk and to divide it among the whole population of lawyers. The new regime proposed by Strosberg put an end to that. Transactional levies would begin to apply to procedures, most notably real estate conveyancing, that most often provoked expensive claims. More important, the new LPIC would charge sharply increased premiums to lawyers against whom claims had successfully been made. When Strosberg completed his briefing, the benchers had much to say. A frenzied search began for someone to sue and someone to fire (indeed, all the senior staff of LPIC were soon gone). A long wrangle developed over benchers' firms that earned large fees defending E&O cases, and there was vigorous protest against Strosberg's proposed levy on lawyers' gross incomes. There was much finger-pointing as to which sections of the bar were subsidizing or being subsidized by the insurance plan and other programs, and agonized pleas about the financial plight of hard-pressed young lawyers. Strosberg, however, insisted they come back to the decision at hand; his 100-page report had to be adopted or rejected. Since the new premium invoices had to go out at once, a decision was required that very day. Bitterly protesting and pleading for delay, the benchers knuckled under. 332

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Strosberg's unruffled assurance that, in the midst of chaos and crisis, his task force knew what it was doing carried the day. Convocation voted for the big premium increases and began to transform LPIC into a truly independent insurance company, run by professional insurers rather than elected lawyers. The E&O crisis provided devastating new ammunition to the critics who had long denounced the Law Society as a careless and wasteful administrator of the legal profession and its money. Yet Strosberg effectively presented his program as part of an agenda of reform. At one local meeting of the bar after another, charts at hand once more, Strosberg offered his proposals, now Law Society policy, as a businesslike attack on the mismanagement and a pragmatic solution to the debt. Lawyers who had come to the meetings looking for a bencher to string up sometimes went away relieved that someone had coherent proposals for cleaning up the mess. Some even began to speculate that sky-high liability premiums would become a grim but effective deterrent to endless expansion in the number of lawyers. Less remarked in the furor over premiums was the way the E&O crisis was redefining professional competence. The Law Society had long attempted to prevent incompetence (and the consequent E&O claims) by education, training, and advice programs. These continued to expand, but there had never been an effective sanction by which specific incompetent lawyers were actually detected and removed. Mandatory liability insurance had been conceived in 1970 as a way to protect all lawyers, and no lawyer in good standing was denied coverage. From 1971 to 1994, the Law Society's liability insurance ran on the optimistic assumption that all lawyers were competent and that they could afford to cover each other's risks more or less equally. The new LPIC promised (or threatened) to change that, not by elaborate tribunals of lawyers, but by the straightforward workings of the insurance market. Lawyers with several claims proven against them might not have their right to practise removed - but the insurance company would charge them liability premiums so high as to preclude them from continuing. Just as the cost of the compensation fund and its warranty against dishonesty had eventually forced the Law Society into much more extensive surveillance of its members' financial rectitude, the cost of the warranty against errors Questions of Control, 1970-1997

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and omissions was now going to require aggressive new sanctions against the incompetent. It would probably take a decade or so for the implications to work themselves through the legal profession, but there was reason to believe that in time LPIC's premiums would effectively disbar more lawyers than the discipline committee - and with much less palaver over ethics and procedures.

Frances Kiteley, a leader of convocation's women's caucus of the 1990s and chair of the legal aid committee during the 1994 struggles over the financing of legal aid.

On Friday, 27 June 1994, Fran Kiteley rose in Convocation Hall to present the legal aid committee's report on its negotiations with the attorney general over the financial crisis affecting the plan. It was a moment rife with irony. Kiteley was one of the feminist, family law lawyers who had become benchers in order to wrest power over the legal aid plan from prosperous barrister benchers who allegedly knew little about it. Now she was the powerful chair of the legal aid committee, frequently pointed out as the next woman treasurer, and she was returning from talks with a big-spending, socially conscious, left-wing provincial government. Yet that morning Kiteley was proposing the most radical pruning the legal aid plan had ever seen, a package of cuts that would complicate the work and reduce the income of Ontario's legal aid lawyers.72 The 1994 legal aid crisis resembled others that had periodically afflicted the plan. Simply put, the ever-rising cost of legal aid was taxing the government's willingness to pay the bills. As the plan ran short of money, it began to slow down payments to lawyers, who were forced to wait for weeks or months to have their accounts paid. The slowdown in payments (and the growing gap between legal aid payment rates and the usual fees charged by private practitioners) deterred lawyers from taking on legal aid cases, and so clients were blocked from essential legal services. In each previous crisis of this kind, the Law Society's position had been clear; it expected the government to come up with the money. In the end, each crisis had provoked some small adjustments, after which the plan had continued to grow. By 1994, the scale of the problem was new, and for months key benchers of the legal aid committee had virtually abandoned their practices as they struggled with it. Legal aid was no longer a matter of $6 million, as when it was founded, or $25 million, as during the first crisis in 1976. Legal aid's expected cost for 1995 was $285 million, some $30 million beyond its projected revenues. Several thou334

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sand Ontario lawyers, including much of the criminal defence bar and many young lawyers struggling to build practices or simply keep their offices open, drew much of their income from it. For them, payment delays represented not merely an annoyance but the threat of bankruptcy. These were Kiteley's constituency, and dozens of them had come out to attend the meeting of convocation. Now her committee proposed to cut $21 million out of legal aid expenditures. Her argument was that it was better to do that than to wait until the government dictated more drastic action. Convocation, however, was having none of it. Carole Curtis, who acknowledged that her own small, family law firm was being hounded by its banker because of the payment slowdown, argued that the cuts would 'end the principle that poor people get legal services/ Ottawa bencher Colin McKinnon insisted that since the government was making all the new laws, it had to be made to accept the costs. One bencher after another urged the society to go back to the attorney general and strike a better deal, and the more they urged 'hitting the government/ the louder they were cheered. In the end, convocation decided that with more pressure, the government would blink as it had in the past. Kiteley was praised and thanked, but her committee report was rejected. Benchers were jubilant when convocation met again in September 1994. The Law Society had apparently forced the government to blink. Over the summer, Stephen Goudge, who had succeeded Kiteley as legal aid chair, and Paul Copeland had negotiated a 'Memorandum of Understanding' with the government, and it gave a $45-million boost to the legal aid plan. The debt would be cleared off, and a package of cash payments, loans, and loan guarantees would put the plan back on a sound fiscal foundation. Copeland said proudly that Ontario was standing by the judicare model even as other provinces turned to staff defenders or sharper cuts in service. Amid the celebration - one bencher called the agreement a miracle - there was not much discussion of how the Law Society would live up to its new commitment to run legal aid for four years on a fixed and predetermined budget, which would actually be reduced year by year. 73 The jubilation lasted only a few months. By the spring of 1995, the legal aid plan was heading for a potential deficit of about $75 million. Payment delays were longer than ever, and the Law Society Questions of Control, 1970-1997

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could no longer look to the government to provide the usual increases. By signing the Memorandum of Understanding, the society had agreed to apply a fixed budget to a program whose expenses continued to be Open-ended. True, the memorandum had sharply reduced the number of legal aid certificates that would be offered, but certificates had no fixed cash value, and through 1994-5 claims per certificate had risen sharply. Several explanations were offered, but it seemed reasonable to conclude that legal aid lawyers, faced with a dwindling number of certificates, were striving to protect their incomes by increasing the work they did on each certificate. In August 1995, the benchers met in a special convocation to debate two extraordinary options. One proposed that the Law Society make draconian cuts to the legal aid plan, particularly by imposing fixed limits on what would be paid for any particular service or certificate, no matter how much time a case actually required. The alternative was the previously heretical suggestion that the Law Society walk away from legal aid, terminating its role as administrator of the plan and leaving the government to make its own arrangements. After heated debate, a narrow majority voted to keep the plan and make the cuts required by the fixed budget. But the end of lawyer-run legal aid had probably only been delayed; the end of the four-year term of the Memorandum of Understanding seemed sure to be the end of a legal aid regime run by lawyers and channelling its funds through the private practice bar. Fran Kiteley, who by then had resigned from convocation to accept a judicial appointment, was spared from having to vote, but among the minority voting to hand legal aid back to the government was her successor as legal aid chair, Stephen Goudge. The events of the mid-1990s were a full-scale crisis: of confidence, of management, of organization, of finances, of authority. At the level of managerial competence and supervisory diligence, the procedures that the benchers had relied upon since the initiation of the committee structure in the late nineteenth century were shattering under the new strains. Even more dramatically, however, the crises suggested the end to an era that had begun in the 1950s. Since then, the Law Society had been almost continuously growing, and the ability of the profession to sustain that growth had never been questioned. In the 1990s the Law Society had suddenly run

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out of room to grow. A stuttering economy was not providing the endlessly reliable expansion which the legal community required to sustain its own steady growth. Painful reductions and radical efficiencies had to be faced. The frustrations and furies of Ontario's lawyers in the mid-1990s came pouring out in the bencher election campaign of the spring of 1995. Before the election, some benchers speculated that none of them would be re-elected; several chose not to run. Fury and protest dominated the Bencher Election Candidate Guide sent to all members. Virtually all candidates inveighed against the insurance crisis, but many promised to find some way to avoid the huge premiums ('premiums are prohibitive and must be rolled back'). The death of traditional legal aid provoked many denials ('It is essential that the Ontario legal aid plan continue to exist not only for the benefit of lawyers who depend on it for economic survival but also for citizens ...'). Many candidates relied on the now-traditional cry that openness and accessibility could solve the problems by ending arrogance and elitism at the Law Society and restoring confidence in the profession and its governing body.74 One litmus test of bencher candidates' frustration was the mission statement of 1994. One more offshoot of the reform agenda of the 1990s, the mission statement had sought to define clearly and simply what were the core responsibilities of the Law Society. While defining the core functions might in time provide a rationale for dropping any Law Society program that was not specifically included, much of the text seemed hardly more than a statement of the obvious. The traditional declaration that the Law Society existed to govern the profession in the public interest, for instance, seemed merely to acknowledge that the public and the legislature would never delegate self-governing authority to the profession on any other understanding.^ That was not the reaction of the profession. Circulated to members in the spring of 1994, the mission statement provoked a third of respondents to deny that the society should subordinate the interests of the profession to those of the public. Almost half could not accept that the society did not exist to advance members' interests. In the election a year later, the mission statement continued to provoke many bencher candidates. '"To Serve and Protect

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Rarely seen but often discussed, the wine cellar of Osgoode Hall has been a contentious symbol of Law Society opulence.

Lawyers" should be the motto of the society/ declared one. 'It is time to put the needs of the profession to the forefront/ proclaimed another. The election of 1995 was not quite the cataclysm that the incumbents (like their predecessors before the first election in 1871) had feared. Eighteen of the twenty-four incumbent benchers who ran were re-elected. Still, the arrival of twenty-two newcomers meant that the least experienced convocation in history would deal with the enormous problems bequeathed from the past five years. And .the two largest caucuses among the benchers defined both the power of sectional voting and the enormous differences that now divided Ontario's lawyers. The thirteen women benchers were generally progressive and often sympathetic to a more-or-less explicitly feminist critique of the traditions of the profession and the society. The eleven benchers endorsed by the newly founded Real Estate Lawyers' Association, on the other hand, had mostly combined behind the slogan of one of them, 'We're mad as hell and we're not going to take it!' Mostly white, male, and middle-aged, they expressed the fury of all the lawyers who had found that law practice was not providing the security, comfort, and stature they had expected when they graduated and whose situation was getting less secure as they went on. Soon after the election, these two groups combined to help elect Susan Elliott, a bencher from a small Kingston firm who was both a woman and a real estate lawyer, as the new treasurer. But it seemed that the convocation which would lead the Ontario legal profession into its third century would be fractious, divided, and uncertain. Hints of fundamental change were in the air. The office of under-treasurer had never acquired the broad policy-development powers that its early proponents had foreseen for it, and when Donald Crosbie, the fifth under-treasurer left the Law Society early in 1995, convocation dispensed with the job altogether. Instead it created the new position of chief executive officer, on the understanding that the CEO would assume much-increased authority, while convocation would evolve into a board of directors emancipated from managerial burdens and directing its attention to a longterm vision for the institution. After 120 years, management by 338

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bencher committees seemed about to come to an end - though it remained to be seen whether the new convocation, many of whose members had made large commitments to increasingly alert constituents, would actually be able to step back from direct participation in management. By the mid-1990s, questions as to whether the legal profession could continue to control its own destiny were in the air. The public was increasingly sceptical of self-governing professions, and the governments from which statutory powers derived were now frequently antagonists more than allies. Lawyers themselves seemed permanently divided among themselves, and the traditional precepts of professional behaviour seemed alien to much of what lawyers did. How could the profession govern itself when each subsection of the bar was a separate system? What ethic of practice could continue when the exigencies of business dominated legal careers? What rules could a law society enforce when there was no consensus on what lawyers did or should do? How could local authority be applied when legal business and law firms were boundary less and multinational? Around the world, legal scholars increasingly speculated that the century of the modern, self-governing profession was coming to an end. Their foremost local exponent, Professor Harry Arthurs of Osgoode Hall Law School at York University, declared that selfgovernance by the legal profession was quite simply 'a dead parrot/ Since the drafting of the first Law Society Act in 1797, the one central function of the Law Society has been to enable the profession to govern itself in the public interest. If the Law Society is judged to have ceased to perform that function, then it perhaps ceases to be an essential institution. As the Law Society of Upper Canada approached the end of its second century, solid reasons could be found to doubt that it would complete its third.76 Certainly, there are very few Canadian institutions that continue monthly to add to a record whose first entries are dated July 1797, or that continue to transact business in premises built for that express purpose early in the nineteenth century. The Law Society of Upper Canada has occasionally shown signs of being restive about its age and its traditions. In 1993 former treasurer Stuart Thorn, then well into his own ninth decade, proposed to convocation that it should mark its twentieth decade by changing the name Questions of Control, 1970-1997

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of the society. It might appease some of the younger members, he suggested, if the Law Society of Upper Canada became the Law Society of Ontario. Some of the younger benchers, however, responded that they indeed wanted changes but had no problem with the name and the continuity it suggested. On a roll-call vote, the motion went down to defeat 17-12. The Law Society is probably stuck with its august traditions, fashionable or not. And, in fact, weakness is not necessarily a prelude to extinction. The Law Society of Upper Canada was formed in 1797 not to express the power of the province's newborn legal profession, but to redress some of the weaknesses that assailed it. It was when it was most unchallenged in its authority, in the 1920s and 1930s, that the Law Society was most spectacularly out of touch and out of date. The most creative and active moments in its history probably came in the last decades of the nineteenth century, in the midst of the long and bewildering redefinition of what a profession was and what lawyers did. It was in that climate of uncertainty that the Law Society reorganized its management, reinvented legal education, and entertained the liveliest ethical reflection within its disciplinary processes. Some ethical confusion and division, in other words, may not be an entirely bad thing nor so certain a harbinger of collapse. If the late-twentieth-century turmoil in the profession foreshadows another redefinition of what lawyers do and the services they provide to society, the Law Society of Upper Canada might well re-emerge in some form as unpredictable today as the institution of 1997 or 1897 would have been to the benchers who gathered at Newark in July 1797.

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Appendices

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Appendix 1

SPEAKING THE LANGUAGE OF OSGOODE HALL 'To the Benchers of The Law Society of Upper Canada in Convocation Assembled* is the traditional salutation opening reports to Law Society meetings. Almost every word in the phrase embodies the Law Society's special language. Benchers Sometimes 'Masters of the Bench' or collectively 'the Bench,' this term for members of the society's governing body was borrowed in 1797 from the English Inns of Court, which once reserved benches in their dining-halls for their governing members. The A capital T' has often been preferred by The Law Society. The press often prefers 'the law society,' uncapitalized. Law Society This name had no formal precedents among legal institutions when it was adopted in 1797, although in England the Society of Gentleman Practisers of the Law, then a voluntary association of attorneys and solicitors, was often called 'the law society.' It evolved into the Law Society (incorporated in 1831), which continues to be the governing body of solicitors in England. Upper Canada 'Upper Canada' came into being in 1792, after the former colony of Quebec was divided. Upper Canada formally ceased to exist when it and Lower Canada were merged into the United Province of the Canadas in 1841. The Law Society, perhaps believing the change of 1841 would be temporary, disdained to take note of it - or of the new name 'Ontario,' given to the province in 1867. Convocation The Law Society began calling its meetings 'convocations' in 1820. Examining and conferring degrees on students-at-law was then a principal function of Law Society meetings, and the academic analogy may have been considered both appropriate and dignified. The Law Society of Upper Canada may have been the first institution other than a church or university to adopt the term. Assembled For more than a century, benchers assembled in convocation during the quarterly sessions of the high court known as Hilary term, Easter term, Trinity term, and Michaelmas term. Some early Law Society minutes bear no date other than, e.g., the First Saturday in Hilary in the Sixtieth Year of the Reign of George III. In 1909, convocations moved to nine monthly meetings a year.

343

SOME OTHER LAW SOCIETY TERMINOLOGY Treasurer Elected annually by convocation to chair meetings and supervise the administrative needs of the society, the treasurer has always been both a practising lawyer and the ceremonial and practical head of the Law Society of Upper Canada. The title of treasurer was borrowed from the English Inns of Court, though in the early years, the treasurer as the sole executive of the society actually did handle its money. Unpaid until 1983, treasurers now receive a stipend. In 200 years, fifty-five individuals have held the office. Secretary In 1832 the secretary was the first staff member employed by the Law Society, and until 1981 he was the head of the staff. From 1981 until 1995, the secretary's authority was shared with an under-treasurer. In 1995 the office of secretary was subordinated to the new office of Chief Executive Officer, and the position of under-treasurer was abolished. Barrister, Attorney, Counsel, Solicitor A barrister was entitled to plead cases at the bar of the superior courts of common law. An attorney was entitled to represent others in court business, but not to plead cases. 'Counsel' and 'solicitor' were equivalents of 'barrister' and 'attorney' in the court of Chancery. 'Attorney' faded from use in Upper Canada after the Chancery court was established in 1837. 'Counsel' became an unofficial honorific after common law and chancery law merged in 1881. Today, Ontario lawyers are virtually always both barristers and solicitors. Informally, the terms still distinguish those who conduct or advise on litigation from those who negotiate and draft legal agreements. Osgoode Hall Built in 1832, the headquarters of the Law Society of Upper Canada is named for William Osgoode, the first chief justice and founder of Upper Canada's legal institutions. In its early years it seems to have been known colloquially as 'Lawyers' Hall.' Renaming it The Inn of Court' was often suggested in the nineteenth century. Lawyer Cleland Hamilton suggested in 1904 that it should have been 'Baldwin Hall' for its true founders. Articles Derived from the 'articles' or contracts signed by masters and apprentices, articling originally applied only to 'law clerks,' those who were apprenticed to learn the trade of attorney or solicitor. Those preparing to be barristers were formally 'students-at-law' and not articled clerks. In Ontario most would-be lawyers were both at the same time. 'Articles' still applies to the period of office apprenticeship required of prospective lawyers. Learned and Honourable The original Law Society Act of 1797 exhorted the new organization to be 'a learned and Honorable body,' perhaps referring to the Inns of Court, which styled themselves 'Honourable Societies.' The phrase has resounded in the history of other Canadian legal societies. In 1845, New Brunswick used the same phrase in the incorporation of the Barristers' Society there.

344

Appendix I

Appendix 2

TREASURERS OF THE LAW SOCIETY, 1797-1997 Treasurers are elected to annual terms by the benchers of the Law Society. (AG: Attorney General. SG: Solicitor General.) TREASURER

YEAR ELECTED

John White, AG Robert Isaac Dey Gray, SG Angus Macdonell Thomas Scott, AG D'Arcy Boulton, SG William Warren Baldwin D'Arcy Boulton, AG John Beverley Robinson, AG Henry John Boulton, SG William Warren Baldwin John Beverley Robinson, AG Henry John Boulton, SG William Warren Baldwin John Beverley Robinson, AG George Ridout William Warren Baldwin *Robert Baldwin Sullivan Robert Sympson Jameson, AG Levius P. Sherwood William H. Draper Hon. Robert Sympson Jameson Henry John Boulton Robert Baldwin James Edward Small Robert Easton Burns Hon. John Godfrey Spragge Robert Baldwin, AG Hon. James Buchanan Macaulay John Hillyard Cameron Stephen Richards Edward Blake Aemilius Irving George E Shepley John Hoskin

1797 1 798 1801 1805 1806 1811 1815 1818 1819 1 820 1821 1822 1824 1828 1829 1832 1 836 1836 1841 1843 1845 1846 1847 1 848 1849 1850 1850 1859 1 859 1876 1879 1893 1913 1916

345

Hon. Featherston Osier Frederick W. Harcourt Wallace Nesbitt W. Norman Tilley Newton W. Rowell Michael K Ludwig Robert S. Robertson D. Lally McCarthy J. Shirley Denison Gershom W. Mason Cyril EH. Carson John J. Robinette Joseph Sedgwick John D. Arnup Brendan O'Brien William G.C. Howland G. Arthur Martin Sydney L Robins Stuart D. Thorn W. Gibson Gray George D. Finlayson John D. Bowlby Laura Legge Pierre Genest Arthur R.A. Scace W. Daniel Chilcott Lee K. Ferrier James Spence Allen Rock Paul Lamek Susan Elliott

1921 1924 1927 1930 1935 1936 1 93 7 1939 1944 1947 1950 1958 1962 1963 1966 1968 1970 1971 1974 1976 1978 1980 1983 1985 1986 1987 1988 1990 1992 1993 1995

* Individuals completing the term of a treasurer who died or resigned have generally not been listed here. Sullivan, who completed W.W. Baldwin's term in 1836, is the only one never elected for a full term in his own right. Source: LSUCA, Minutes of Convocation.

346

Appendix 2

Appendix 3

Table 1

University Graduates among Student Members Admitted, 1871-1940 Per Cent

1871-1880 1881-1885 1886-1890 1891-1895 1896-1900 1901-1905 1906-1910 1910-1915 1916-1920 1921-1925 1926-1930 1931-1935 1936-1940

23 26 25

45 52 49 46 52 36 45 70 72 91

Osgoode Hall law school opens 1889

Entrance requirement lowered 1933

Sources: 1871-80: LSUCA, Minutes of Convocation. 1871-80 is based on 1871, 1874, 1878, and 1880 only. 1881-1940: Law Society Membership Rolls.

Table 2

Average Number of Lawyers in the Ten Largest Canadian Firms, 1951-1991

1951

1961

1971

1981

1991

16

29

49

91

241

Source: summarized from Curtis Cole, Osier, Hoskin & Harcourt: Portrait of a Partnership, Appendix II.

347

Table 3 Law Society of Upper Canada, Full-time Staff, 1950-1995 Department Secretariat

1950

1955

1960

1965

1970

1975

1980

1986

1990

1995

7

8

15

15

17 5

n/a n/a

12 n/a

6 1

12 3

11 5 8 30 12 32 19 28

n/a 6 9 35 15 35 22 29

20 15

18 20

19 25

5

7 9 46 5

8 5 6 22 9 17 19 26

11

34

44

45

57

60

48

73

81

68

96

148

217

277

310

37

52

12

-16*

41

54

47

28

12

Compensation Fund Discipline Audit Communication/PR Complaints Buildings/Facilities Library/Reports Law School

12 10 6

13 7 20

Bar Ads/Cont. Ed.

35

Total % Increase

16 10 27

*The apparent reduction in total staff between 1965 and 1970 reflects the move of the law school and its personnel to York University. Staffing in other departments continued to grow. Sources: 1950-70: LSUCA, Minutes of Convocation, Staffing Committee Reports to Convocation, and Series 18 (Finance-Administration), file 3-33. Figures for this period are assembled from occasional reports to convocation and may not be consistent in categories and totals. 1975-82: Finance Department report, 24 Nov. 1982. 1986-95: Human Resources Department statistics.

348

Appendix 3

Table 4 Law Society Annual Dues and Fees (in dollars), 1887-1995 Year

1887 1917 1951 1954 1957 1959 1960 1964 1968 1971 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995

Total

$17 20 30 40 50 60 85 170 120 260 265 300 330 425 640 720 750 1170 1220 1668 1518 1563 1802 2138 2283 2358 2349 2495 3400 4150 3532 3532 7435

Basic

Comp.

Library

Fee

Fund

Fee

$17 20 30 30 40 40 40 70 90 120 135 160 160 195 215 240 250 260 300 360 418 448 460 460 468 510 619 ' 678 747 747 729 729 1452

$10 10 20 45 100 30 30 30 20 20 30 50 30 50 90 100 300 275 275 275 250 225 245 50 25 1 1 1 1 1

Legal Aid Fee

Premium

$ 110 110

no

$ 15 15 25 40 50 50 62 62 62 62 62 62

$175 175 175 175 185 240 240 240 240 266

Source: LSUCA, Minutes of Convocation*

Appendix 3

Base E&O

349

135 200 375 450 450 820 820 1068 825 825 742 928 928 928 1405 1544 2470 3000 3400 3400 5600

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Acknowledgments

T

± HE HI LAW SOCIETY OF UPPER CANADA COMMISSIONED this book in 1993. I am grateful to treasurers Paul Lamek and Susan Elliott, and to the members of convocation over several years. Many individual benchers provided specific assistance and information. No bencher, no matter how busy, refused an interview or other assistance, and many expressed interest in and support for the work. Since convocation takes collective responsibility for its decisions, however, it seems appropriate to thank its members collectively. I am similarly grateful to secretary Richard Tinsley, chief executive officer John Saso, and collectively to the Law Society staff, who made me welcome at Osgoode Hall over more than two years. Treasurer Jim Spence pushed hard for a bicentennial history, supported by members of the bicentennial committee, notably its chair, James J. Wardlaw, Brendan O'Brien, Barry Pepper, and Arthur Scace. That committee established an advisory group to advise me on legal history and to advise it on the progress of the work. I am deeply grateful to Jim Wardlaw, its chair, who did much to establish its supportive but non-directive style. It was a pleasure to work with its members Brendan O'Brien, Professor Martin Friedland, Professor R.C.B. Risk, Professor Peter Oliver, and Law Society staff members Stephen Traviss (who promises one day to write the history of the efforts to produce a Law Society history) and Susan Binnie. Tom Carey joined the group upon becoming chair of convocation's heritage committee. John Arnup, though not a member of the advisory group, volunteered to read the manuscript and applied his eagle eye for details both legal and grammatical. The archives of the Law Society provided me with work space and research support as I wrote the book, and its staff became my close colleagues in exploring the history of their institution. Research coordinator Susan Binnie was an indefatigable guide to and seeker after sources and leads, as well as my intermediary with Law Society administration. I am greatly indebted to archivist Ann-Marie Langlois, curator Elise Brunet, and staff members Gabrielle Earnshaw, Elene Ftohogiannis, Anita MacCallum, Mark Opinashov, and Doug Mirams (who doubled for a time as my researcher). Other individuals, libraries, and archives which provided assistance were Theresa Roth, Jeannette Boisschart, and the other librarians at the Great Library of Osgoode Hall, the Robarts Library and Laskin Law Library at the University of Toronto, the Archives of Ontario, John England of the Toronto Registry Office, the Baldwin Room of the Metro Toronto Central Reference Library, Robert Eraser and Ramsay Cook of the Dictionary of Canadian Biography, librarian Guy Holborn of Lincoln's Inn, and Sarah Montgomery of the National Archives of Canada. At the Osgoode Society for Canadian Legal History, director Peter Oliver, administrator Marilyn MacFarlane, and oral history director Christine Kates were constantly supportive. Since I am not a specialist legal scholar, I benefited constantly from ad-

351

vice, criticism, and exchanges of ideas and information with many scholars of legal history and other specialized fields, notably S.R. Mealing, Robert Gidney, Wyn Millar, Jim Phillips, Carol Wilton, Paul Romney, Wesley Pue, Doug McCalla, Stephen Otto, Cecelia Morgan, Chris Raible, David Gagan, Barry Wright, Curtis Cole (who kindly let me read his manuscript history of Osgoode Hall Law School), William Kaplan, Fred Zemans, John McLaren, David G. Bell, Harry Arthurs, Christine Kates, and Jamie Benidickson. Since I am not a lawyer, I benefited equally from the advice (sometimes general, sometimes very specialized) and interest of many members of the bench and bar, notably Ian Binnie., George Brophy, Brian Bucknall, Jeff Casey, Marian Hebb, John Honsberger, Patricia Jackson, Toby Lennox, Gary Penner, Max Rapoport, Paul Ross, Otto Siebenmann, Tonu Toome, and David Warren. I am indebted to Kristopher Churchill, a research assistant who became a colleague. I am immensely grateful to Ramsay Derry, who as the Law Society's publishing consultant first recruited me to the project, and then served as the book's editor with skill, humour, and solicitude. Finally, I would like to acknowledge my ever-supportive family and also the memory of my father, Vincent Moore, a legal biographer in his own right, who would have taken pleasure and given good counsel in this project.

352

Acknowledgments

Notes

The great and fundamental source of this work is the Archives of the Law Society of Upper Canada, at Osgoode Hall in Toronto. The archives preserves and manages the records of the Law Society as well as a manuscript collection of legal materials donated from many private sources. The jewel of the archives' collection is the Minutes of Convocation. Beginning with handwritten, leatherbound tomes from the late eighteenth century and continuing through to machine-readable digital files in the archives' databases, the minutes now comprise some 120 volumes, and a new volume now joins the collection nearly every month. A valuable source for all stages of Law Society history, the minutes are almost the only one until the late nineteenth century, when other series began to expand to match the proliferation of committees and staff at the Law Society. Sadly, volumes 4 (1856-65) and 7, 8, 9, and 10 (1881-93) of the Minutes of Convocation have been missing for many decades. While most of the information in them can be recovered from drafts and printed summaries, these five volumes rank among the missing treasures of Canadian archives. Canadian legal history has flourished in recent decades, and since 1979 the Osgoode Society for Canadian Legal History has been a vital support to the development of that field. Many writers have saluted the volumes of scholarship it has published, and they have been indispensable to me. But I would also note the oral history program the Osgoode Society initiated some twenty years ago, which now comprises over 200 interview transcripts, some many hundreds of pages long. The numerous excerpts from those interviews in this book should suggest the riches of that collection, though my selections are skewed towards interviews with benchers and others associated with the Law Society of Upper Canada. I am grateful to the Osgoode Society, and in some cases the individual interview subjects, for granting access to material from the oral history collection. CHAPTER ONE

Becoming Learned and Honourable, 1797-1822 1 Law Society of Upper Canada Archives (LSUCA), Minutes of Convocation, vol. 1:1. (The act, proclaimed on 3 July 1797, is quoted in its entirety in the opening pages of the minutes.) 2 National Archives of Canada, MG 23 H15, John White Papers, vol. 2:88-90, White to Samuel Shepherd, 17 July 1797. LSUCA, Minutes of Convocation, vol. 1:1, 17 July 1797. 3 On the 1785 legislation, see William Riddell, The Bar and the Courts of Upper Canada or Ontario (Toronto: Macmillan of Canada 1928), ch. 2. 4 Simcoe's statements are from E.A. Cruikshank, ed., The Correspondence of Lieut. Governor John Graves Simcoe, 3 vols (Toronto: Ontario Historical Society 1923), 1:17, Simcoe to Joseph Banks, 8 Jan. 1791. 5 Cruikshank, ed., Simcoe Correspondence, 1:27, Simcoe to Dundas, 30 June 1791. 6 Ibid., 1:43, Simcoe to Dundas, London, 12 Aug. 1791. 7 On the roles of the chief justice and attorney general, see Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature 1791-1899 (Toronto: Osgoode Society 1986). 8 'William Osgoode,' by S.R. Mealing, in Dictionary of Canadian Biography (hereafter DCB), vol. 6 (Toronto: University of Toronto Press 1987), 557-60; Douglas Hay and Ruth Paley, eds, Friends of the Chief Justice (Toronto: Law Society of Upper Canada 1990).

Notes from page 15 to page 21

353

9 Osgoode to William D. Powell, 9 Sept. 1793, in William Colgate, Tetters of William Osgoode,' Ontario History 46 (1954): 77-95 and 149-68. 10 For a detailed study of the changes made by the King's Bench Act, see Margaret A. Banks, The Evolution of the Ontario Courts 1788-1981,' and William N.T. Wylie, 'Instruments of Commerce and Authority: The Civil Courts in Upper Canada 1789-1812,' both in David Flaherty, ed., Essays in the History of Canadian Law, vol. 2 (Toronto: Osgoode Society 1983). 11 Cruikshank, ed., Simcoe Correspondence, 2:268, Legislative Council speech on the Judicature Bill by Richard Cartwright, 16 June 1794. See the useful biographies of Cartwright (by George Rawlyk and Janice Potter) and of Hamilton (by Bruce Wilson) in DCB, vol. 5 (Toronto: University of Toronto Press 1983). 12 Cruikshank, ed., Simcoe Correspondence, 3:1, Simcoe to Dundas, 2 Aug. 1794. 13 Ibid. 14 Public Record Office, Colonial Office 42/22, p 302, Osgoode to Portland, 9 Nov. 1799. Hay and Paley, eds, Friends of the Chief Justice, 158ff, Jekyll to Osgoode, 21 and 27 Mar. 1804. 15 Cruikshank, ed., Simcoe Correspondence, 2:268, Cartwright speech, 16 June 1794. 16 Statutes of Upper Canada, 1794, 34 Geo. Ill c. 4, An Act to authorize ... the Lt. Governor to licence Practitioners in the Law. Debate on the bill is reported in Ontario, Bureau of Archives Report for 1910 (Toronto: King's Printer 1911), 26 June to 1 July 1794. Cartwright's comment: Cruikshank, ed., Simcoe Correspondence, 3:109, Cartwright to Isaac Todd, 1 Oct. 1794. 17 W.R. Riddell, Life of William Dummer Powell (Lansing: Michigan Historical Society 1924), 86. 18 The description of White draws on material in the published correspondence of Simcoe and of Russell; in Edith Firth, ed., The Town of York 1793-1815 (Toronto: University of Toronto Press 1962), in the White Papers at the National Archives in Ottawa, and in Paul Romney, Mr Attorney, ch. 1. 19 William Colgate, ed., The Diary of John White, First Attorney General of Upper Canada,' Ontario History 47 (1955): 147. 20 Lord Wynford, quoted in Robin Cooke, ed., Portrait of a Profession: The Centennial Book of the New Zealand Law Society (Wellington: A.H. and A.W. Reed 1969), 143. Charles Clark, A Summary of Colonial Laws (London: Sweet and Maxwell 1834). 21 Lawrence Friedman, A History of American Law (New York: Simon and Schuster 1973). Stephen Botein, 'The Legal Profession in Colonial North America,' in Wilfrid Prest, Lawyers in Early Modern Europe and America (London: Croom Helm 1981), 129-46. 22 David G. Bell, The Transformation of the New Brunswick Bar 1785-1830: From Family Connexion to Peer Control,' Papers of the Canadian Law in History Conference, Carleton University 1987, vol. 1, 240-61 (copy in LSUCA). 23 J.M. Bennett, A History of the New South Wales Bar (Sydney: The Law Book Company 1969), 16ff. 24 E.A. Cruikshank, ed., The Correspondence of the Honourable Peter Russell, 2 vols (Toronto: Ontario Historical Society 1932), 1:236, Gray to Russell, 1 Aug. 1797. 25 Cruikshank, ed., Simcoe Correspondence, 3:178, 10 Nov. 1794, and 4:135, 9 Nov. 1795. Biography of Gray in DCB, vol. 5. 26 Petition of Thomas Ward to Legislative Council, 19 June 1799, in 'Journal of the 354

Notes from page 22 to page 32

Legislative Council for 1799,' in Ontario, Bureau of Archives Report for 1910, 87-9. 27 'Journal of the Legislative Council for 1799,' in Ontario, Bureau of Archives Report for 1910,107-11. 28 LSUCA, Minutes of Convocation, vol. 1:4, 13 July 1799. 29 LSUCA, Minutes of Convocation, vol. 1:476, 29 June 1833. 30 This very summary account is built on John H. Langbein, 'Shaping the 18th Century Criminal Trial: A View from the Ryder Sources,' University of Chicago Law Review 50, no. 1 (1983): 3; John H. Langbein, The Criminal Trial before the Lawyers,' University of Chicago Law Review 45, no. 2 (1978): 263; and John Beattie, 'Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,' Law and History Review 9 (1991): 221, which notes Garrow's career. 31 For its American influence, see Friedman, History of American Law. 32 William Blackstone, Commentaries on the Laws of England, bk 2, ch. 1, 'Of the rights of things, of property in General.' 33 See the discussion in Linda Colley, Britons: Forging the Nation (New Haven: Yale University Press 1992), and in J.C.D. Clark, English Society, 1688-1832 (Cambridge: Cambridge University Press 1985). 34 Two important studies in this vein are E.R Thompson, Customs in Common (New York: New Press 1993), and Douglas Hay, 'Property, Authority, and the Criminal Law,' in Hay et al, Albion's Fatal Tree: Crime and Society in Eighteenth Century England (London: Allen Lane 1975). 35 Michael Birks, Gentlemen of the Law (London: Stevens and Sons 1960). 36 Wilfrid Prest, 'Legal Education of the Gentry at the Inns of Court 1560-1640,' Post and Present 38 (1967): 20-39. 37 Edmund Burke, 'Abridgement of English History,' Works, 12 vols (Boston: Little Brown 1865-7), 7:477. Lord Mansfield, 'Sommersett's Case,' Reasons for Judgment 1772. Walter Bagehot, quoted in Ruth Dudley Edwards, The Pursuit of Reason: The Economist 1843-1993 (London: Hamish Hamilton 1993), 244. 38 Scholarly study of the Inns of Court focuses more on the nineteenth than the eighteenth century. See, however, Daniel Duman, The English and Colonial Bars in the Nineteenth Century (Beckenham: Croom Helm Ltd 1983), and Raymond Cocks, Foundations of the Modern Bar (London: Sweet and Maxwell 1983), for close critical analysis, and Robert R. Pearse, A History of the Inns of Court and Chancery (London: R. Bentley 1848. Repr. Littleton, Colo.: Rothman and Co. 1987), for much traditional lore. For comparison with the governance of attorneys and solicitors, see Birks, Gentlemen of the Law. 39 Cruikshank, ed., RusseM Correspondence, Russell letter, Sept. 1797. 40 William Riddell, The Legal Profession in Upper Canada in Its Early Periods (Toronto: Law Society of Upper Canada 1916), 136ff. Annual general meetings of the Law Society were required by revisions to the Law Society Act in 1970. 41 LSUCA, Minutes of Convocation, vol. 1:6. Riddell, Legal Profession in Upper Canada, 12. 42 On Weekes's admission, see Riddell, The Bar and the Courts, 48. 43 'Journal of the Legislative Assembly of Upper Canada for 1792, 1793, 1794 partly, 1798-1804,' in Ontario, Bureau of Archives Report for 1909 (Toronto: Queen's Printer 1911). 44 Henry Scadding, 'Memoirs of the Four Decades at York,' in Henry Scadding and John Charles Dent, Toronto Post and Present: Historical and Descriptive: A Memorial Volume for

Notes from page 33 to page 48

355

45

46 47

48 49 50 51 52 53

54 55

56

57 58

59

the Semi-Centennial of 1884 (Toronto: Hunter, Rose and Co. 1884), 33. Baldwin was dubbed the father of the Law Society by treasurer James Small in 1849. Riddell, Legal Profession in Upper Canada, 125. Chipman is quoted in David Bell, Transformation of the New Brunswick Bar,' 242. Gray's quarter session reverse: Archives of Ontario (hereafter AO), RG22, Series 7, Lunenburg Quarter Session Minutes, 184, Bush v Loucks (represented by attorney Robert Gray), 15 July 1795. Local bars in Britain emerged after county courts were created in 1846. Cocks, Foundations of the Modem Bar, ch. 4. Riddell, Legal Profession in Upper Canada. Elizabeth Brown, 'Equitable Jurisdiction and the Court of Chancery in Upper Canada,' Osgoode Hall Law Journal 21 (1983): 275-314; John C. Weaver, 'While Equity Slumbered: Creditor Advantage, A Capitalist Land Market, and Upper Canada's Missing Court,' Osgoode Hall Law Journal 28, no. 4 (1990): 871. Firth, ed., The Town of York 1793-1815, and Colgate, ed., 'Diary of John White,' 147. Details of all these incidents are drawn from the biographies of the principals in DCB. The text of Firth's petition is in Riddell, The Bar and the Courts, 65. Carol Whitfield and R.L. Fraser, 'John Macdonell,' in DCB, vol. 5, 520-3. Details from their respective biographies in DCB. AO, Robinson Papers, Robinson to Loring, 25 Mar. 1814. (Throughout this section I have benefited from the references in Barry Wright, The Ideological Dimensions of Law in Upper Canada: The Treason Trials of 1814 and 1838,' Papers of the Canadian Law in History Conference, Carleton University 1987 (copy in LSUCA), vol. 1:373-526. Robinson's autobiographical memoir, quoted in C. W Robinson, Life of Sir John Beverley Robinson (Toronto: Morang and Co. 1904). In his 1987 paper, The Ideological Dimensions of Law in Upper Canada,' legal historian Barry Wright has criticized historians' praise for the legal standard attained at the assize as uncritical, but a recent historian strongly critical of much of Robinson's career affirms both their general fairness and Robinson's central role. Romney, Mr Attorney, 161-2. William Riddell's article, 'The Ancaster Bloody Assize of 1814,' Ontario History 20 (1923): 107-25, remains the most detailed account. The existing vol. 1 of the Law Society minutes begins to show original signatures and varied handwritings from 1820, which seems to be the date at which it was compiled. LSUCA, Series 1-14-1, contains the draft minutes (with original signatures from 1801). Educational standards as a roadblock are discussed by Bell, Transformation of the New Brunswick Bar,' and by Duman, The English and Colonial Bars in the Nineteenth Century. Legal scholar Mark Orkin has argued that the society in effect seized the disbarment power de facto, and was retroactively authorized by legislation. Mark Orkin, 'Some Aspects of Professional Self-Government' (LLM thesis, York University 1967). But it might be argued, on the principle that granting a power of membership also confers the power to remove it, that the act of 1797 implicitly authorized disbarment by the Law Society. Kingston Chronick, Friday, 28 Dec. 1821, 1. CHAPTER TWO

Lawyers for the Emerging Giant, 1822-1871 1 William Renwick Riddell, The Legal Profession in Upper Canada in Its Early Periods

356

Notes from page 48 to page 68

2 3

4 5 6 7 8

9 10

11

12

13 14 15 16 17

18 19

(Toronto: Law Society of Upper Canada 1916). Lawrence M. Friedman, A History of American Law (New York: Simon and Schuster 1973). W.T.S. Daniel, The History and Origin of the Law Reports (London: William Clowes and Sons 1884). Law Society of Upper Canada Archives (LSUCA), Minutes of Convocation, vol. 1:118, 9 Jan. 1727, and 1:128, 17 Nov. 1827. LSUCA, Minutes of Convocation, vol. 1:177, 3 July 1830, By-law committee formed. Report: Law Society of Upper Canada, Rules of the Law Society of Upper Canada (York [Toronto] 1833), 58-61. LSUCA, Minutes of Convocation, vol. 1, 1 July 1831. Law Society of Upper Canada, Rules. LSUCA, Minutes of Convocation, vol. 1:317, 19 June 1832. LSUCA, Minutes of Convocation, vol. 1:476, Report of the Committee on James Doyle, 29 June 1833. LSUCA, Minutes of Convocation, vol. 2, 18 Feb. 1843. All of this section is influenced by the stimulating conflict of ideas in G. Elaine Baker, 'So Elegant a Web: Providential Order and the Rule of Secular Law in Early Nineteenth Century Upper Canada,' University of Toronto Law Journal 38 (1988): 184-205, and Paul Romney, 'Very Late Loyalist Fantasies: Nostalgic Tory "History" and the Rule of Law in Upper Canada/ in W. Wesley Pue and Barry Wright, eds, Canadian Perspectives on Law and Society: Issues in Legal History (Ottawa: Carle ton University Press 1988). C.P. Lucas, ed., Lord Durham's Report, 3 vols (Oxford: Oxford University Press 1912). Charles Durand, Reminiscences o/Charles Durand of Toronto, Barrister (Toronto: Hunter Rose 1897), 129. Robert Fraser, 'William Warren Baldwin,' Dictionary of Canadian Biography (hereafter DCB), vol. 7 (Toronto: University of Toronto Press 1988), 35-44. These issues are staples of Upper Canadian history, but their legal aspects are discussed with particular trenchancy by Paul Romney in Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature 1791-1899 (Toronto: Osgoode Society 1986), particularly ch. 3. On the Boultons, Metro Toronto Reference Library (MTRL), Robert Baldwin Papers, L5 A69, 49, James H. Samson to Cartwright, 22 Oct. 1820. Paul Romney, 'From the Types Riot to the Rebellion,' Ontario History 79, no. 2 (June 1987): 113-44. Chris Raible, Muddy York Mud: Scandal and Scurrility in Upper Canada (Creemore: Curiosity House Publishing/Dundurn 1992) adds many details. Journals of the House of Assembly of Upper Canada, 4th Session, 9th Parliament (1828), Report of the Select Committee on the Petition of Thomas Forsyth, B.C. Beardsley, Chair. MTRL, Baldwin Papers, B103, Baldwin to Robinson, 28 May 1828. Quotation from 'John Beverley Robinson,' by Robert E. Saunders, in DCB, vol. 9 (1976), 668-78. MTRL, Baldwin Papers, B103, Baldwin to Robinson, 28 May 1828. Quotation from John Beverley Robinson's 1840 anti-Durham pamphlet, Canada and the Canada Bill, quoted in David Howes, 'Property, God, and Nature in the Thought of Sir John Beverley Robinson,' McGill Law Journal 30 (1985): 365-414. On Roubel, Palmer, and Chief Justice Caesar Colclough, see their biographies in DCB, vol. 6 (1987). On Head's treatment of Baldwin, Ridout, and Bidwell, Francis Bond Head, A Narrative (London 1836). Bidwell's 1828 comment: MTRL, Baldwin Papers, B104, 149, Bidwell to W.Baldwin, 18 June 1828.

Notes from page 68 to page 77

357

20 LSUCA, Minutes of Convocation, vol. 1:102, 1 July 1825, and 1:109, 29 Apr. 1826. 21 Strachan's brief is printed in J.G. Hodgins, comp., Documentary History of Education in Upper Canada, 28 vols (Toronto: Warwick Bros and Rutter 1894-1910), 1:213. 22 G. Blaine Baker, 'Legal Education in Upper Canada 1785-1889: The Law Society as Educator,' in David H. Flaherty, ed., Essays in the History of Canadian Law, vol. 2 (Toronto: Osgoode Society 1983), notes the absence of law degrees from King's 1827 charter at 95. 23 LSUCA, Minutes of Convocation, vol. 1, June 1828. 24 LSUCA, Minutes of Convocation, vol. 1, 29 Apr. 1826 and 2 May 1828. Baldwin's comments, undated but circa 1840, are in LSUCA, Series 1 (Convocation - General Historical), file 11-07, 'Against the proposed sale of... Osgoode Hall.' 25 Property history from Angela Carr, The Architecture of Osgoode Hall, from 1829 to 1984' (Paper submitted to the Department of the History of Art, University of Toronto 1984; MS in LSUCA). Crown sale of lots from its Fort York lands in 1834: Edith Firth, ed., The Town of York 1815-1834 (Toronto: Champlain Society 1966), 34. The 1833 map at 20 shows well the degree of town settlement when Osgoode Hall was new. 26 LSUCA, Minutes of Convocation, vol. 1, 24 June 1829 (Ewart's contract), and 1829-32 passim, on the construction. In February 1832 the building was said to have been completed fourteen months behind schedule, indicating an expected completion in late 1830. 27 James Lesslie quoted in Firth, ed., Town of York 1815-1834, 335. Baldwin's report on cost and quality, and thanks to Ewart: LSUCA, Minutes of Convocation, vol. 1, 6 and 7 Feb. 1832. Campbell's letter to convocation: vol. 1, 23 Apr. 1833. 28 'James Martin Cawdell,' by Robert L. Fraser in DCB, vol. 7 (1988). LSUCA, Minutes of Convocation, vol. 1, 14 Feb. 1832, memorial of Mr Cawdell, deputy clerk of the Crown. 29 LSUCA, Minutes of Convocation, vol. 1, 6 Feb. 1832. 30 LSUCA, Minutes of Convocation, vol. 1:89, Michaelmas 1824. The society committed itself to 72 shares, and paid for them, at £3 a share, over several years. 31 LSUCA, Minutes of Convocation, vol. 1:228, 17 Nov. 1831. 32 LSUCA, Minutes of Convocation, vol. 1, 20 Apr., 3 Nov., and 8 Nov. 1830. 33 LSUCA, Minutes of Convocation, vol. 1:263, 18 Feb. 1832. King's Bench seems to have sat in Osgoode Hall from late 1832 into 1833. 34 Archives of Ontario, Law Society of Upper Canada Papers (MU 4841), Account Book 1832-57. 35 Figures taken from rules and rolls of members in the 1833 rule book. 36 John Stuart to Robinson, 30 June 1830, quoted in C.W. Robinson, Life of Sir John Beverley Robinson (Toronto: Morang and Co. 1904), 23. 37 Collins's phrase in The Canadian Freeman, 5 Oct. 1827, is quoted in Patrick Brode, Sir John Beverky Robinson (Toronto: Osgoode Society 1984), 155. Baldwin in Upper Canadian Assembly, quoted in Kingston Chronicle, Friday, 28 Dec. 1821, 1. 38 Draper's comment is quoted in R.D. Gidney and W.P.J. Millar, Professional Gentlemen: The Professions in Nineteenth-Century Ontario (Toronto: University of Toronto Press 1994), 32. 39 MTRL, Baldwin Papers, L5 A69, 49, James H. Samson, Kingston, to Cartwright, 22 Oct. 1820; and L5 A38, 119, John Cartwright, Kingston, to Robert Baldwin, 3 July 1824. 40 According to figures in Riddell, Legal Profession in Upper Canada, 18-22, the separation became marked after 1833. 41 LSUCA, Minutes of Convocation, vol. 1:168, 29 Apr. 1830; vol. 1:174, 26 June 1830. The 358

Notes from page 78 to page 87

42 43 44 45 46 47

48 49 50 51 52

53

54

55 56 57 58 59

60

61 62

judges seem to have examined Law Society rules only for their legal standing, not according to their own preferences. Students in the East Wing: LSUCA, Minutes of Convocation, vol 1:403, 7 Feb. 1833. Contract for the Baldwin range: vol. 1,12 Feb. 1833. Weekly Globe and Canadian Farmer, 22 Feb. 1878, 112, Letter from WBW [William B. Wells], Chatham. 'William B. Wells/ by J.K. Johnson in DCB, vol. 9 (1976), 913. LSUCA, Minutes of Convocation, vol. 1:179, 3 Nov. 1830. Durand, Reminiscences, 56-60, 129. Law Society of Upper Canada, Rules. Finding no space available in Osgoode Hall, McGregor and Macdonald rented rooms nearby. McGregor's diary is excerpted in D.G. Kilgour, 'A Note on Legal Education in Ontario 125 Years Ago,' University of Toronto Law Journal 13 (1959-60): 270-2. Durand, Reminiscences, 89. MTRL, Baldwin Papers, L5 A69, 57, Samson to Baldwin, 19 May 1821. MTRL, Baldwin Papers, L5 A48, 84, Gwynne to Baldwin, 13 May 1838. William Hume Blake was charging his students a decade later. Law: LSUCA, Minutes of Convocation, vol. 1, 20 June 1825. Durand, Reminiscences, 76-90. Elliott: Gidney and Millar, Professional Gentlemen, 165-7. Requirements for the three levels are set out in the 1833 rule book. McGregor: LSUCA, Minutes of Convocation, vol. 1, 29 Apr. 1834. G. Blaine Baker, 'The Juvenile Advocates' Society, 1821-26: Self-Proclaimed Schoolroom for Upper Canada's Governing Class,' Canadian Historical Association Historical Papers 1985 (Ottawa: Canadian Historical Association 1986), 74-101. Friedman, History of American Law, discusses office law schools. Students' petition: LSUCA, Minutes of Convocation, vol. 1:317, 19 June 1832. Resolution on Trinity Class: vol. 1:325, 26 June 1832. Refusal to pay lecturer: vol. 1, 28 June 1834. Baldwin's efforts are recorded in the Committee of Economy Minutes, LSUCA, Series 1 (Convocation - General Historical), file 11-2, and in the Minutes of Convocation throughout Baldwin's term as treasurer. LSUCA, Minutes of Convocation, vol. 1, 8 and 10 Nov. 1832. The chastised students were Alexander Grant, a future law reporter, and George Charles Ward. Wells's letter: Firth, ed., Town o/York, 1815-1834, 335. Fighting: LSUCA, Minutes of Convocation, vol. 1, 17 June 1833. Theft: Committee of Economy Minutes, 7-13. Student petition: Committee of Economy Minutes, 24 June 1834. Cooper's expulsion: 8 Dec. 1834. Committee of Economy Minutes, 26 Aug. 1834 and July 1835. Committee of Economy Minutes, Regulations relating to chambers, 28 Oct. 1834, and student petition, June 1835. LSUCA, Minutes of Convocation, vol. 1, 6 Feb. 1835, Report of the Committee of Economy. Committee of Economy Minutes, Reply to student petition, July 1835. New powers for committee and new boarding fees: LSUCA, Minutes of Convocation, vol. 1, 13 and 14 Feb. 1835. LSUCA, Minutes of Convocation, vol. 1, 1 Feb. 1836, and Committee of Economy Minutes, 28-44. LSUCA, Minutes of Convocation, vol. 1, 1 Feb. 1836.

Notes from page 88 to page 95

359

63 LSUCA, Minutes of Convocation, vol. 2, 13 Feb. 1836. 64 Hall management details: LSUCA, Minutes of Convocation, vol. 2, 23 Apr. and 30 June 1836 and 21 June 1837. 65 Details on the army lease and the society's income: LSUCA, Minutes of Convocation, vol. 2, 8 Feb. 1840. 66 Head's actions: Head, A Narrative. Colin Read and Ronald J. Stagg, eds, The Rebellion of 1837 in Upper Canada (Ottawa: Carleton University Press 1985). Wells-Bidwell link: MTRL, Baldwin Papers, B104, 147, Bidwell to Baldwin, 28 June 1828. 67 Durand, Reminiscences, 357, and DCB entries for Rolph (vol. 9, 1976) and Wells (vol. 8, 1985). 68 'Upper Canada' appears in place of 'Canada West' in Consolidated Statutes of Canada West, 1857, 20 Viet. c. 63, the 1857 act that restored the Law Society's control over attorneys. 69 LSUCA, Minutes of Convocation, vol. 2, 19 Feb. 1842. 70 LSUCA, Minutes of Convocation, vol. 2, 13 Nov. 1841. 71 LSUCA, Minutes of Convocation, vol. 2, 16 Nov. 1839 and 8 Feb. 1840. 72 Spragge motion: LSUCA, Minutes of Convocation, vol. 2, 23 June 1838. Baldwin speech: LSUCA, Series 1 (Convocation - General Historical), file 11-07, undated speech draft in Baldwin's handwriting, dated by internal evidence to c. 1838. 73 LSUCA, Minutes of Convocation, vol. 2, 17 June 1843 and 10 Feb. 1844. 74 British Colonist (Toronto), 27 Aug. 1844. Stephen Otto and Marion MacRae, 'Henry Bowyer Lane,' in DCB, vol. 8 (1985), 485-6. 75 The Patriot, 18 Apr. 1845. For architectural appreciations of Lane's Osgoode Hall, see Anthony Adamson and Marion MacRae, Cornerstones of Order (Toronto: Osgoode Society 1984) and Eric Arthur Toronto: No Mean City, rev. Stephen A. Otto (Toronto: University of Toronto Press 1986). 76 Robinson: LSUCA, Minutes of Convocation, vol. 2, 18 June 1844. Covenant with the Crown: vol. 3, 20 June 1846. 77 I am obliged to Phil Monture and the Treaties Research Office of the Six Nations for documenting this matter. In 1995, a claim against the Crown over these investments was being developed. 78 Robert J. Surtees, 'Land Cessions, 1763-1830,' in Edward Rogers and D.B. Smith, eds, Aboriginal Ontario: Historical Perspectives on the First Nations (Toronto: University of Toronto Press 1994), 92-121. 79 LSUCA, Minutes of Convocation, vol. 2, 8 Feb. 1840. 80 Gidney and Millar, Professional Gentlemen, 40-1. 81 MTRL, Baldwin Papers, LI 1 B104, 167-74, Robert Baldwin Sullivan to W.W. Baldwin, 8 Oct. 1828. 82 MTRL, John Hillyard Cameron Papers, 27 Sept. 1843, Cameron to Eliza Boulton Cameron. 83 'John Hillyard Cameron,' by Donald Swainson, in DCB, vol. 10 (1972), 118-23. LSUCA, Minutes of Convocation, vol. 2, 8 Feb. 1840 (solicitor), 7 and 14 Nov. 1840 (appointed reporter), 10 Feb. 1844 (founds Canadian Jurist with commercial backing), 27 July 1846 (bencher, resigns as reporter). 84 Durand, Reminiscences, 272. 85 Statutes of Upper Canada, 1837, 7 William IV, c. 15, An Act to Amend the Law for the Admission of Barristers and Attorneys. Lawyers' family background:

360

Notes from page 96 to page 106

Gidney and Millar, Professional Gentlemen. 86 'John Wilson/ by Colin Read in DCB, vol. 9 (1976), 843-4. Cecelia Morgan, ( "In Search of the Phantom Misnamed Honour:" Duelling in Upper Canada,' Canadian Historical Review 76, no. 4 (Dec. 1995): 529-62. Wilson's tears: C.H.A. Armstrong, Honourable Society ofOsgoode Hall (Toronto: Law Society of Upper Canada 1952). 87 Margaret A. Banks, The Evolution of the Ontario Courts 1788-1981,' in Flaherty, ed., Essays in the History of Canadian Law, vol. 2, 492-572; Romney, Mr Attorney, particularly ch. 5. 88 Gidney and Millar, Professional Gentlemen, 65. Baldwin: Romney, Mr Attorney, 169. 89 The issue is analysed in ch. 3 of Gidney and Millar, Professional Gentlemen, which quotes the newspaper opinion at 63. 90 Barrister's opinion: Gidney and Millar, Professional Gentlemen, 77. District court ruling: LSUCA, Minutes of Convocation, vol. 3, 3 Aug. 1847. 91 Gidney and Millar, Professional Gentlemen, and Baker, 'Legal Education in Upper Canada,' agree that the society sought a higher failure rate in the 1850s and 1860s. 92 LSUCA, Minutes of Convocation, vol. 3, 22 June 1847. 93 Connor letter quoted from John D. Blackwell, 'William Hume Blake,' in David H. Flaherty, ed., Essays in the History of Canadian Law, vol. 1 (Toronto: Osgoode Society 1981), at 142. 94 On the motives for the establishment of Chancery, see John C. Weaver, 'While Equity Slumbered: Creditor Advantage, A Capitalist Land Market, and Upper Canada's Missing Court,' Osgoode Hall Law Journal 28, no. 4 (1990): 871. 95 The date of Baldwin's resignation is unrecorded, but he had ceased acting as treasurer well before James Small was elected in his place on 18 Nov. 1848. LSUCA, Minutes of Convocation, vol. 3, 23 Nov. 1850. Robert Fraser and Michael Cross, 'Robert Baldwin,' DCB, vol. 8 (1985), 45-59. 96 Macaulay's election and death: LSUCA, Secretary's Notes, 26 and 29 Nov. 1859. 'James Buchanan Macaulay,' by Gordon Dodds, DCB, vol. 8 (1985), 511-13. 97 Cawdell stone: LSUCA, Minutes of Convocation, vol. 2, 13 Aug. 1842. Gwynne's application and Baldwin's objection to hiring an examiner: vol. 2, 2 Aug. 1842. 98 Gwynne character details from J. Cleland Hamilton, Osgoode Hall: Reminiscences of the Bench and Bar (Toronto 1904). 99 The following section relies heavily on the analyses of legal education in G. Blaine Baker, 'Legal Education in Upper Canada,' and Gidney and Millar, Professional Gentlemen. 100 Holland petition: LSUCA Minutes of Convocation, vol. 2, 8 Feb. 1842. 101 Mary Larrett Smith, ed., Young Mr Smith in Upper Canada (Toronto: University of Toronto Press 1980). 102 Gidney and Millar summarize Elliott's education, based on his manuscript diary, in Professional Gentlemen, 165-7. Baker, 'Legal Education in Upper Canada,' examines failure rates. 103 On universities: A.B. McKillop, Matters of Mind: The University in Ontario, 1791-1951 (Toronto: University of Toronto Press 1994). 104 Baker, 'Legal Education in Upper Canada.' LSUCA, Minutes of Convocation, vol. 3, 7 Feb. 1846 (University Class), and 22 June 1847 (on examinations). 105 LSUCA, Minutes of Convocation, vol. 3, 17 Feb. 1849, Petition of the Osgoode Club, 8 Jan. 1849.

Notes from page 106 to page 115

361

106 Adam Wilson's 1855 lecture to Osgoode Hall law students, quoted in Gidney and Millar, Professional Gentlemen, 172. 107 LSUCA, Minutes of Convocation, vol. 3, 10 June 1854. Baker, 'Legal Education in Upper Canada.' 108 LSUCA, Secretary's Notes, 18 Feb. and 19 Nov. 1861. Baker, 'Legal Education in Upper Canada.' 109 In the debate on the bill that permitted reductions in term requirements, Kingston bencher Henry Smith and future treasurer Edward Blake were among those dismissing term keeping as 'an entire failure.' Toronto Globe, 16 Jan. 1868. 'Country' opposition to the supplementary lectures: 'A Law Student (Woodstock),' Upper Canada Law Journal, 1 (Oct. 1861): 276. 110 LSUCA, Minutes of Convocation, vol. 3, 27 Nov. 1852, Petition of J. Patterson and 44 others. 111 All the Goderich details are borrowed from Andrew Holman, 'Aspects of Middle-Class Formation: Goderich and Gait in the Mid-Nineteenth Century' (PhD diss., York University 1995). 112 LSUCA, Minutes of Convocation, vol. 3, 20 June 1846. 113 LSUCA, Minutes of Convocation, vol. 2, 10 Feb. 1844, Tribute to Baldwin on his death; vol. 3, 13 Feb. 1849, Commission for the painting; and 11 June 1850, Receipt of the painting. 114 LSUCA, Minutes of Convocation, vol. 3, 18 Oct. 1847 (on Elgin's membership) and 3 Sept. 1850 (donation of wampum). The ceremony adopted on the retirement of muchrespected Justice Macaulay in February 1856 became a prototype for many later ceremonies. Minutes of Convocation, vol. 3, 16 Feb. 1856. Baldwin's honour is noted in vol. 3, 6 June 1855, and the political dinner in Hamilton, Osgoode Hall: Reminiscences, 45-6. 115 Complaints about QCs: Canada Law Journal 3, no. 1 (1867), 'Queen's Counsel.' The complaint of the Inns of Court is quoted from Ronald Cantlie, 'The Origin and History of the Title of Queen's Counsel,' Headnotes and Footnotes; The Manitoba Bar Newsletter, Apr. 1985. 116 LSUCA, Series 1 (Convocation - General Historical), file 11-07, [Robert Baldwin,] 'Draft Rule for establishment of two additional degrees in this Society,' nd. Queen's Counsel appointments during the Union are listed in J.O. Cote, ed., Political Appointments for the Province of Upper Canada 1841-65 (Ottawa: Queen's Printer 1866), 126. 117 LSUCA, Minutes of Convocation, vol. 3, 6 June 1855. 118 Adamson and MacRae, Cornerstones of Order, 154. Burning of debentures: LSUCA, Minutes of Convocation, vol. 3, 12 Feb. 1856. Appointment of Cumberland and Storm: vol. 3, 29 Nov. 1856. 119 Toronto Globe, 1 Feb. 1860. 120 Toronto Globe, 10 Sept. 1860. H.J. Morgan, The Tour o/H.R.H. The Prince of Wales through British America ... (Montreal 1860), 164-7. 121 Durand, Reminiscences, 149, 439. His memoirs do not mention his disbarment. 122 Douglas McCalla, Planting the Province: The Economic History of Upper Canada, 1784-1870 (Toronto: University of Toronto Press 1993), particularly ch. 11. 123 Stanley E. Edwards, Froser & Beatty: The First 150 Years (Toronto: Fraser & Beatty 1989). 124 Toronto Globe, 4 July 1855, quoted in Paul Romney, The Ten Thousand Pound Job: 362

Notes from page 116 to page 125

125 126

127 128 129

130 131

132

133

134

135 136

137

Political Corruption, Equitable Jurisdiction, and the Public Interest in Upper Canada 1852-56,' in Flaherty, ed., Essays in the History of Canadian Law, vol. 2:143-99. LSUCA, Minutes of Convocation, vol. 3, 29 Nov. 1850, and 19 June 1852 (impeachment of Charles Durand). Vol. 5, 5 June 1869 (suspension of Edward Furlong). LSUCA, Minutes of Convocation, vol. 5, 27 Nov. 1866 (selection of new bank), and 12 Feb. 1867 (financial details). Peter Baskerville, ed., The Bank of Upper Canada: A Collection of Documents (Toronto: Champlain Society 1987). LSUCA, Minutes of Convocation, vol 3, 15 Feb. 1845, Memorial of J.W. Gwynne of 2 Dec. 1844. Consolidated Statutes of Upper Canada, 1859, 22 Viet., c. 34, An Act Respecting Barristers at Law. The full text of the memorial, and the Inns' response, is preserved in Lincoln's Inn Black Book, vol. 29:224 and 264, 7 Nov. and 25 Nov. 1861, which the librarian of Lincoln's Inn kindly made available. The relevant volume of the Law Society minutes (vol. 4, 1856-65) is lost. All quotations are from Raymond Cocks, Foundations of the Modern Bar (London: Sweet and Maxwell 1983), particularly ch. 5. Ward: LSUCA, Minutes of Convocation, vol. 5, 17 May 1869 and 4 June 1870. Statutes of Nova Scotia, 18 Apr. 1870, 33 Viet., c. 20. Gray: Minutes of Convocation, vol. 5, 20 Nov. 1871 and 5 Feb. 1872. LSUCA, Minutes of Convocation, vol. 5, 8 Feb. 1866. Reciprocal calls between Canada East and West had been confirmed by Consolidated Statutes of Canada West, 1850, 13/14 Viet., c. 26. LSUCA, Minutes of Convocation, vol. 5, 14 Feb. 1865 (proceed with plans for permanent fence); 25 May 1865 (fence plan rescinded); 2 Dec. 1865 (plan approved again); 11 Feb. 1868 (accounting of cost and liability for overruns). On cows and pigs, Toronto Daily Leader, 19 Sept. 1857, 'Milk Cows and the Streets of Toronto,' 2. M.C. Cameron's refused appointment: LSUCA, Secretary's Notes, 3 Sept. and 23 Nov. 1861. On his motives: Ontario legislative debates of 13 Jan. 1871 (as reported in the Globe). LSUCA, Minutes of Convocation, vol. 5, 8 Sept. and 27 Nov. 1866. Statutes of Ontario, 1871, 34 Viet., c. 15, An Act to Make the Members of the Law Society of Ontario Elective. The Globe covered legislative debate on the issue in November and December 1869 and in January and February 1871. LSUCA, Minutes of Convocation, vol. 5, 18 Feb. 1871. CHAPTER THREE

A New Profession, 1871 -1914 1 Canada Law Journal 6 (Jan. 1870): 3, and 7 (Mar. 1871): 57. Election details from Law Society of Upper Canada Archives (LSUCA), Series 1-7 (Bencher elections), file 1. About 430 lawyers voted in 1871, fewer in 1876. 2 William Riddell, later a pillar of tradition as a judge and legal historian, may have entered convocation a radical. Elected from Cobourg in 1891, he immediately moved to abolish free lunches for benchers. Only three benchers supported him. LSUCA, Printed Proceedings of Convocation, vol. 2 (1891-6): 347, 29 May 1891. Curtis Johnson Cole, 'A

Notes from page 125 to page 138

363

3

4

5 6 7

8 9 10 11

12 13 14

15

Learned and Honorable Body: The Professionalization of the Ontario Bar, 1867-1929' (PhD diss., University of Western Ontario 1987), discusses the unsuccessful campaigns of 1886 and 1891. Dale Brawn, 'Dominant Professionals,' in Carol Wilton, ed., Essays in the History of Canadian Law, Vol. VII: Inside the Law: Canadian Law Firms in Historical Perspective (Toronto: Osgoode Society 1,996), provides statistical evidence of bencher backgrounds in Manitoba. No such study exists for Ontario, but the pattern seems clear. Election results in LSUCA, Series 1-7. Lawyer statistics based on Elizabeth Bloomfield, 'Lawyers as Members of Urban Business Elites in Southern Ontario, 1860-1930,' in Carol Wilton, ed., Beyond the Law (Toronto: Osgoode Society 1990), 112-48. Statutes of Ontario, 1912, 2 Geo. V, c. 26, Law Society Act. Convocation began seeking this change in 1907. LSUCA, Minutes of Convocation, vol. 5, 12 Feb. 1867, and vol. 6, 24 June 1879, 3 and 7 Feb. 1880. LSUCA, Minutes of.Convocation, vol. 5, 1871-2 passim. Statutes of Ontario, 1876, 39 Viet., c. 31 (added powers for Law Society). Building transfer: Minutes of Convocation, vol. 5:485, 13 Feb. 1874. The transfer document is in LSUCA, Series Ml (Convocation-General Historical), file 10, Deeds and Agreements. Joseph Schull, Edward Blake, 2 vols (Toronto: Macmiilan 1975, 1976). Jamie Benidickson, 'Aemilius Irving,' in Dictionary of Canadian Biography (hereafter DCB), vol. 14 (forthcoming). LSUCA, W.G.C. Howland Papers, D.L. McCarthy, unpublished manuscript memoir, is the source of the description of Irving and his shawl. Angela Carr, The Architecture of Osgoode Hall from 1829 to 1984' (Paper submitted to the Department of the History of Art, University of Toronto 1984; MS in LSUCA), 66. Minutes of Convocation, vol. 6, 4 June 1880. Canada Law journal 12 (Jan. 1876): 4. James E. Day, 'Day, Wilson, and Kelly 1947,' Law Society of Upper Canada Gazette 28, no. 2 (June 1994): 152 (describing the smoking room c. 1900). LSUCA, Minutes of Convocation, vol. 14:446, 23 May 1912. Quoted in Jamie Benidickson, 'Aemilius Irving, Solicitor to the Great Western Railway, 1855-72,' in Wilton, ed., Essays in the History of Canadian Law, Vol. VII: Inside the Law. This great simplification of a large and subtle literature draws on works such as Magali Sarfatti Larson, The Rise of Professionalism: A Sociological Analysis (Berkeley: University of California Press 1977), Eliot Friedson, Profession of Medicine: The Sociology of Applied Knowledge (New York: Dodd, Mead 1970), Terence Johnson, Professions and Power (London: Macmiilan 1972), and Richard L. Abel and Philip S.C. Lewis, Lawyers in Society: Volume One: The Common Law World (Berkeley: University of California Press 1988). For Ontario, R.D. Gidney and W.P.J. Millar, Professional Gentlemen: The Professions in Nineteenth-Century Ontario (Toronto: University of Toronto Press 1994), and Cole, 'A Learned and Honorable Body,' are essential. Geoffrey Simmins, The Ontario Association of Architects: A Centennial History 1889-1989 (Toronto: Ontario Association of Architects 1989); A. Margaret Evans and C.A.V Barker, Century One: A History of the Ontario Veterinary Association 1874-1984 (Guelph: By the Authors 1976); Philip Creighton, A Sum of Yesterdays: Being a History of the Institute of Chartered Accountants (Toronto: Institute of Chartered Accountants 1984); and generally, Gidney and Millar, Professional Gentlemen.

364

Notes from page 138 to page 147

16 17 18 19 20 21 22

23 24

25 26

27

28 29 30

31 32

33 34

Cole, 'A Learned and Honorable Body,' 135-6, quoting a letter in the Canada Law Journal Ibid., particularly ch. 3, iii, 125-65. Ibid., particularly ch. 6, 266-330. Statutes of Ontario, 1876, 39 Viet., c. 31, Law Society Act Amendment. Cole, 'Learned and Honorable Body,' 87-109. Cole, 'Learned and Honorable Body,' ch. 5, 227-65, discusses the statutory changes to discipline. On Macdonell: Canada Law Journal 11 (May 1884): 158; 12 (June 1884): 1; 13 (July 1884): 1. LSUCA, Printed Proceedings of Convocation, vol. 3 (1896-1904): 305-30 and 339, complaint re Richard A. Bayly, 21 May 1903. LSUCA, Minutes of Convocation, vol. 13:701ff, complaint re W.J.L. McKay, 6 Feb. 1908. On Robinette: LSUCA, Minutes of Convocation, vol. 14:213, 8 Feb. 1898; on Ardagh: vol. 14:530-6, Feb. 1913. Raymond Cocks, Foundations of the Modern Bar (London: Sweet and Maxwell 1983). New Brunswick: D.G. Bell, The Transformation of the New Brunswick Bar 1785-1830: From Family Connexion to Peer Control,' Papers of the Canadian Law in History Conference, Carleton University 1987; Quebec: W.W. Pue, 'Becoming "Ethical": Lawyers' Professional Ethics in Early Twentieth Century Canada,' in Dale Gibson and Wesley Pue, eds, Glimpses of Canadian Legal History (Winnipeg: Legal Research Institute of the University of Manitoba 1991). Nova Scotia: Philip Girard, 'The Roots of a Professional Renaissance: Lawyers in Nova Scotia 1850-1910,' in the same collection. T.D. Regehr, The Canadian Northern Railway: Pioneer Road of the Northern Prairies 1895-1918 (Toronto: Macmillan of Canada 1976), 44-5. Michael Bliss, A Canadian Millionaire (Toronto: Macmillan 1978), 58. Bliss's Northern Enterprise: Five Centuries of Canadian Business (Toronto: McClelland and Stewart 1987) is also instructive on the evolution of corporate law. Curtis Johnson Cole, 'McCarthy, Osier, Hoskin, and Creelman, 1882-1902,' in Wilton, ed., Beyond the Law. Beverley Matthews, ed., 'McCarthy and McCarthy: A History' (Unpublished MS, 1978, on file at LSUCA). Ian Kyer, 'A Firm in Transition: From Beatty Blackstock to Faskens, 1902-15' (Unpublished manuscript 1995). Day, 'Day, Wilson and Kelly 1947,' 149-55. 'WN. Tilley,' in Law Society of Upper Canada Gazette 2, no. 2 (June 1968). Christine Kates, 'W. Gibson Gray,' in Osgoode Society Oral History Interview Series (hereafter OSOHI) (1989), reports that Tilley eventually left the letter to his law partner and successor as Law Society treasurer, Cyril Carson. Personal communication from Max Rapoport, QC, about the McDonald and McDonald firm of Brantford. See Elizabeth Bloomfield, 'Lawyers as Members of Urban Business Elites,' in Wilton, ed., Beyond the Law. Other examples can be found in local law association histories and other legal lore. Bloomfield, 'Lawyers as Members.' Andrew Holman, 'Aspects of Middle-Class Formation: Goderich and Gait in the Mid-Nineteenth Century' (PhD diss., York University 1995). Doug Owram, The Promise of Eden: The Canadian Expansionist Movement and the Idea of the West (Toronto: University of Toronto Press 1980).

Notes from page 147 to page 158

365

35 Richard Willie, 'These Legal Gentkmeri: Lawyers in Manitoba: 1839-1900 (Winnipeg: Legal Research Institute of the University of Manitoba 1994). 36 Ibid. Nora Jaffary, 'Statistical Analysis of Records of Calls to the Bar in Upper Canada and Ontario, 1797-1965' (LSUCA, unpublished manuscript study, Dec. 1992) reports 817 calls 1879-88. 37 Alfred Watts, History of the Law Society of British Columbia (Vancouver: Law Society of British Columbia 1976). David Ricardo Williams, Duff: A Life in the Law (Toronto: Osgoode Society 1988). 38 D.R. Babcock, Alexander Campbell Rutherford (Calgary: University of Calgary Press 1989). Henry Klassen, 'The George F. Downes Firm' (Unpublished MS 1995). Burt Harris, 'Fighting Spirits: The Yukon Legal Profession, 1898-1912,' in Hamar Foster and John McLaren, eds, Essays in the History of Canadian Law, Vol. VI: British Columbia and the Yukon (Toronto: Osgoode Society 1995). 39 Lorraine Blashill, Legal Legacy (Saskatoon: Core Communications 1985). 40 Willie, 'These Legal Gentlemen,' discusses Manitoba's transfer requirements. On British Columbia see Hamar Foster, 'George Walkem,' in DCB, vol. 13 (1994), 1063-5. LSUCA, Minutes of Convocation, vol. 11:52, 16 May 1892 (admission of a lawyer from the bar of the North-West Territories). 41 Girard, 'Roots of a Professional Renaissance,' notes the Tuppers and considers Maritime legal successes on the national stage. 42 On Mills: Robert C. Vipond, Liberty and Community: Canadian Federalism and the Failure of the Constitution (Albany: State University of New York Press 1991), 38ff. 43 R.C.B. Risk, 'John Skirving Ewart: The Legal Thought,' in University of Toronto Law Journal 37 (1987): 335-57; and 'A.H.F. Lefroy: Common Law Thought in Late Nineteenth Century Canada: On Burying One's Grandfather,' University of Toronto Law Journal 41 (1981): 307-31. 44 Robert James McLaughlin, Journal 1884 (Toronto: Privately published, c. 1964, copy in LSUCA). 45 Thomas A. Gorham, 'No Law School,' and The Law Student's Grievance,' in Canadian Monthly 4 (Jan.-June 1880): 119-24 and 531-7. 46 Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill: University of North Carolina Press 1983). 47 Girard, 'Roots of a Professional Renaissance.' David G. Bell, Legal Education in New Brunswick (Fredericton: University of New Brunswick 1992). 48 Peter M. Sibenik, 'The Doorkeepers: Legal Education in the Territories and Alberta, 1885-1928,' Dalhousie Law Review 13 (1990): 419-64. W Wesley.Pue, Law School: The Story of Legal Education in British Columbia (Vancouver: University of British Columbia Faculty of Law 1995). 49 Both quotations are taken from Girard, 'Roots of a Professional Renaissance.' 50 LSUCA, Minutes of Convocation, vol. 6:554, 3 Sept. 1880 (medals); vol. 6:674, 17 May 1881 (local legal and literary societies). 51 This summary of the founding of Osgoode Hall Law School relies - even when it differs on details - on chapter 4 of Curtis Cole's 'A Learned and Honorable Body' and on his history of Osgoode Hall Law School, which Professor Cole kindly allowed me to read in manuscript.

366

Notes from page 159 to page 167

52 Canada Law Times 69 (1888): 71. Canada Law Journal (1 Dec. 1889): 439, quoted in Girard, 'Roots of a Professional Renaissance.' 53 LSUCA, Printed Proceedings of Convocation, vol. 1 (1879-91): 234, 14 Apr. 1888. 54 Cole, 'A Learned and Honorable Body,' 166. 55 Statistics drawn from ch. 3 of Curtis Cole's manuscript history of Osgoode Hall Law School. 56 LSUCA, Printed Proceedings of Convocation, vol. 2 (1891-6): 52, 16 May 1892, lists the school texts. 57 Brian Bucknall, Thomas C.H. Baldwin, and J. David Lakin, Tedants, Practitioners, and Prophets: Legal Education at Osgoode Hall to 1957,' Osgoode Hall Law Journal 6 (1968): 137-258, notes Reeve's progressive views, but Curtis Cole, in his manuscript history of the law school, is sceptical about their actual impact. 58 LSUCA, Minutes of Convocation, vol. 11, 14 Feb. 1896. 59 Lawyer and population calculations based on Cole, 'A Learned and Honorable Body,' 69, Figure 2.1. Call to the bar statistics in Nora Jaffary, 'Statistical Analysis of Records of Calls to the Bar.' 60 Elizabeth Bloomfield, 'Lawyers as Members of Urban Business Elites,' notes the decline of rural law offices at 120. 61 LSUCA, Printed Proceedings of Convocation, vol. 1 (1879-91): 148, 30 May 1884 (annual and quarterly dinner); vol. 1:183, 2 Feb. 1886 (tennis grounds); vol. 1:335 (at homes and musical evenings). Vol. 2 (1891-6): 322, 14 Feb. 1896 (gymnasium rejected). Vol. 3 (1896-1904): 174, 5 Feb. 1901 (official student organization). Minutes of Convocation, vol. 11:640, 22 and 29 Nov. 1895 (liquor). 62 I am indebted to Elise Brunet, Law Society museum curator, for use of material, now in LSUCA files, which she assembled for an exhibition on Osgoode Hall hockey, and to Curtis Cole's manuscript history at the law school. 63 LSUCA, Minutes of Convocation, vol. 13:383, 19 May 1905. McCarthy's memoir is in LSUCA, W.G.C. Howland Papers. 64 Edward Gillis, 'Legal Education in Ontario: An Historical Sketch,' Canadian Law Review 4 (1905): 101-7 and 192-9. 65 David Breakenridge Read, Lives of the Judges of Upper Canada and Ontario (Toronto 1888). Osgoode Hall description from Read, 'The Bar of Ontario Eighty Years Ago,' in Canada Monthly, 1 (1898): 65-8 and 489-97 at 494. 66 LSUCA, Minutes of Convocation, vol. 11:360 (Martin) and 364 (centenary), 4 Dec. 1896. 67 Germans noted in Bloomfield, 'Lawyers as Members.' Francophones noted in W.C.V. Johnson, ed., The First Century: The Carleton County Law Association (Ottawa: Bonanza Press 1988). 68 Ian Malcolm, 'Robert Sutherland, The First Black Lawyer in Canada?' in LSUC Gazette 26, no. 2 (June 1992): 183-7. Miriam Snyder, Hannes Snyder and His Wife Catherine (Kitchener: By the Author 1937), refers to Sutherland's being abused for his colour. Linda Kubitsh of Kitchener Public Library supplied the Law Society archives with this reference. 69 LSUCA, Printed Proceedings of Convocation, vol. 1 (1879-91): 43, 15 Feb. 1884 (opposing legislation); vol. 1:165 (certificate of fitness, Easter Term 1885). 70 Archives of Ontario (hereafter AO), Edward Blake Papers, Series B, Box 17, B3E, Law

Notes from page 168 to page 178

367

71

72

73

74 75 76

77 78 79 80 81 82 83 84 85

Society petition to the Legislative Assembly, 17 Feb. 1886. LSUCA, Printed Proceedings of Convocation, vol. 1 (1879-92): 184, 2 Feb. 1886 (convocation's authorization of the treasurer's petition). Julius Isaac, 'Delos Rogest Davis, KG,' in LSUC Gazette 24, no. 4 (Dec. 1990): 293-301. Lance Talbot, 'History of Blacks in the Law Society of Upper Canada,' in LSUC Gazette 24, no. 1 (Mar. 1990): 65-70. LSUCA, Series 21 (Past Member Records), file 2717, Samuel King. Lita-Rose Betcherman, 'Clara Brett Martin's Anti-Semitism,' Canadian Journal of Women and the Law 5, no. 2 (1992): 280-97. LSUCA, Series 21 (Past Member Records), file 126, Lionel Davis. 'Arthur Cohen,' Canadian Men and Women of the Times (1912). 'Benjamin Luxenberg,' Canadian Who's Who, vol. 11 (1967-9) (Toronto: Who's Who Canadian Publications 1969). Toronto Telegram, 19 Aug. 1912, 7. Canadian Bar Association Report on Legal Ethics, 1919, quoted in W. Wesley Pue, 'Becoming "Ethical",' at 258. Christine Kates, 'Fred Catzman' (recalling Cohen) and 'Bernard Shaffer' (on Luxenberg), in OSOHI. The quotation is from Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: Osgoode Society 1991) at 327. In what follows, I have relied heavily on Backhouse's detailed account of Martin's campaign. I personally heard a tour guide (not a Law Society guide) telling the hoop-skirt story to visitors beside the gates. LSUCA, Printed Proceedings of Convocation, vol. 2 (1891-6): 72, 28 June 1892 (application), and vol. 2:89, 13 Sept. 1892 (reference to committee). LSUCA, Printed Proceedings of Convocation, vol. 1 (1879-91): 342, Easter 1891 (reference to committee); vol. 1:349, 30 June 1891 (committee report). The bill received royal assent on 4 April 1892. Backhouse, Petticoats and Prejudice, 306. LSUCA, Printed Proceedings of Convocation, vol. 2 (1891-6): 89, 13 Sept. 1892. Backhouse, Petticoats and Prejudice, 307-8. Ibid., 316-17. Ibid., 315-18. AO, Sir Aemilius Irving Papers, 26 Sept. 1907, Irving to James F. Smith, law reporter. LSUCA, Minutes of Convocation, vol. 14, 1 Apr. 1910 and 1 Mar. 1912 (secretaries). LSUCA, Minutes of Convocation, vol. 14, 22 May and 28 Nov. 1913 (re-election and funeral). Philip Sworden, 'Sir Aemilius Irving,' LSVC Gazette 28, no. 1 (March 1994): 45-9. The comment about Ontario's twentieth century is attributed to historian G.P. Glazebrook in Gidney and Millar, Professional Gentlemen, 391. CHAPTER FOUR

The Last Patricians, 1914-1950 1 Law Society of Upper Canada Archives (LSUCA), Series 21 (Past Member Records), Duncan Donald. Desmond Morton, 'Malcolm Mercer,' Dictionary of Canadian Biography (hereafter DCB), vol. 14 (Toronto: University of Toronto Press, forthcoming). Gordon: LSUCA, Minutes of Convocation, vol. 15:182, 17 June 1915. 2 LSUCA, Series 32 (Osgoode Hall Rifle Association files). Minutes of Convocation, vol. 15:120, 4 Feb. 1915 and 10 Feb. 1916. 368

Notes from page 178 to page 190

3 LSUCA, Minutes of Convocation, vol. 15:126, 4 Feb. 1915 (rule change); vol. 15:75, 2 Sept. 1914, vol. 15:126, 4 Feb. 1915, vol. 15:218, 21 Oct. 1915 (donations); vol. 15:421, 15 Mar. 1917 (bond purchase). Statutes of 1915 and 1916 confirmed the society's authority to make the donations. 4 LSUCA, Minutes of Convocation, vol. 15:160, 20 May 1915 (rule on uniforms); vol. 15:182, 17 June 1915 ('pro Patria'); and vol. 15:426, 25 May 1917 (War: A Sonnet,' byJ.M. Langstaff). 5 LSUCA, Minutes of Convocation, vol. 15:238, 20 Jan. 1916, List of members and students overseas. LSUCA, Photo Collection, Summer School 1919 Class Photo, notes the military service of each class member. 6 LSUCA, Minutes of Convocation, vol. 15:318, 18 May 1916. Morton, 'Malcolm Mercer.' 7 LSUCA, Bencher files, 'Charles Alexander Moss (1872-1916),' contains press obituaries suggesting how he was regarded. Minutes of Convocation, vol. 15:385, 18 Jan. 1918, Memorial to Major Moss. Harry White, elected a bencher in 1916, aged thirty-three, soon eclipsed Moss's age record. 8 LSUCA, Minutes of Convocation, vol. 15:449, 17 Jan. 1918 (fees); vol. 15:436, 25 May 1917 (luncheons); vol. 15:510, 21 Mar. 1918 (Smith speech). 9 LSUCA, Minutes of Convocation, vol. 15:489, 17 Jan. 1918, Report of the Discipline committee re Birnbaum; and vol. 15:259, 10 Feb. 1916, Report of the Discipline Committee re Clermont. 10 LSUCA, Minutes of Convocation, vol. 15:102, 22 May 1919, Call to the bar of Prince Edward, Prince of Wales, at 107. 11 Statutes of Ontario, 1919, c. 36, Act Respecting the Law Society, 1919. LSUCA, Minutes of Convocation, vol. 15:400, 15 Mar. 1917 (exemption for Boer War veteran A.C. Brown); vol. 15:448, 18 Oct. 1917 (exemption for Anita Blanche Lawson); vol. 17:168, 20 Nov. 1924 (exemption for A.A. McPhee). 12 LSUCA, Minutes of Convocation, vol. 16:234, 16 Sept. 1920. 13 Christine Kates, 'George Johnston,' in the Osgoode Society Oral History Interview Series (hereafter OSOHI) (1983). 14 Phelan's experience is noted in Paul lacono, 'Edson Haines,' and Christine Kates, 'JJ. Robinette,' OSOHI. 15 R.C.B. Risk, This Nuisance of Litigation: The Origins of Workers' Compensation in Ontario,' in David Flaherty, ed., Essays in the History of Canadian Law, vol. 2 (Toronto: Osgoode Society 1983), 418-91. 16 Data based on law list compilations in Curtis Johnson Cole, 'A Developmental Market: Growth Rates, Competition and Professional Standards in the Ontario Legal Profession, 1881-1936,' Canada-US. Law Journal 1 (1984): 231-41, Figure 1. David A.A. Stager and Harry W Arthurs, Lawyers in Canada (Toronto: University of Toronto Press 1990), 148, give slightly higher figures based on federal census data. In an address to the visiting king and queen in 1939, the Law Society claimed 3100 members, but this may include students and inactive lawyers. 17 Paul Axelrod, Making a Middle Class: Students in English Canada during the Thirties (Montreal: McGill-Queen's University Press 1990), 169, defines middle-class families as those 'whose major income-earners were non-manual workers who enjoyed social status but exercised limited economic power, and whose standard of living ranged from the very modest to the very comfortable.'

Notes from page 190 to page 196

369

18 Joy Clarry, 'Joseph Sedgwick,' OSOHL On Blain, John Blmn QC: Fifty Years McCarthy & McCarthy: A Tribute (Toronto: Privately published 1986), copy in LSUCA library. 19 Axelrod, Making a Middle Class, 24, citing a study of 1940. Stager and Arthurs, Lawyers in Canada, report that data for studying lawyers' incomes are available only from 1946. 20 Rowell, Reid described in Christine Kates, 'W.G.C. Rowland,' OSOHL Bain, Bicknell described in Kates, 'Roland Wilson,' OSOHL Allan Graydon, Some Reminiscences of Blokes (Toronto: Privately published 1970). Christine Kates, 'Margaret Hyndman,' OSOHL 21 Christine Kates, 'John Arnup,' among others in OSOHI, on letterpresses. Valerie Schatzker, Borden and Elliot: The First Fifty Years (Toronto: Borden and Elliot 1986), on office cleaning. 22 Christine Kates, T.B.C. Pepper,' OSOHI, on decline at Smith, Rae, Greer. On Rowell, Reid, Kates, 'W.G.C. Howland,' and Gordon McMillan, 'McMillan Binch: A History 1903-76' (Unpublished MS c. 1976, at Osgoode Hall Great Library). 23 John Godfrey, 'Personal Reminiscences and a History of the Law Firm of Campbell, Godfrey, Lewtas 1870-1975' (Unpublished MS 1983; copy in LSUCA, W.G.C. Howland Papers). 24 Schatzker, Borden and Elliot. 25 Curtis Cole, Osier, Hoskin & Harcourt: Portrait of a Partnership (Toronto: McGraw-Hill Ryerson 1995), 99-100, and Appendix II. 26 Godfrey, 'Personal Reminiscences,' on T.C. Robinette. Charles Pullen, The Life and Times of Arthur Maloney (Toronto: Osgoode Society 1994), 52. Christine Kates, 'P.B.C. Pepper,' OSOHI, on waiting-rooms. 27 Christine Kates, 'Stanley Fennell,' OSOHI (1990). LSUCA, Minutes of Convocation, vol. 19:25, Report of Special Committee on Trust Companies, 16 Nov. 1933. Lawyers' resentment is expressed in letters and columns in Bench and Bar: The National Legal Newspaper 4, nos 4, 5, 6 (April, May, June 1934). 28 Rules: LSUCA, Minutes of Convocation, vol. 15, 12 Sept. 1918, and vol. 18:119, 19 Sept. 1929. On tallies of Jews at law school: LSUCA, Series 4 (Secretary's Papers), file 1-26-2, 'Law School Financial 1924.' On university quotas: Axelrod, Making a Middle Class. Price's comment was in a letter to bencher Angus MacMurchy, who evidently shared his prejudices. LSUCA, Series 16 (Special Committee files), file 2-6, Special Committee on Security Frauds Prevention Act, 1 June 1929. For one Jewish student's opinion that no quota existed, see Christine Kates, 'Fred Catzman,' OSOHL 29 Irving Abella, 'The Making of a Chief Justice: Bora Laskin, The Early Years,' Law Society of Upper Canada Gazette 24, no. 3 (Sept. 1990): 187-95. 30 Law firms in the Federal Building included: Hellmuth, Cattenach, Meredith; Day, Ferguson, Wilson; Forsyth, Martin, Common; Raymond and Honsberger; and Phelan, Richardson, as well as the offices of Clara Brett Martin and the partnership of Abraham and Samuel Cohen. 31 Details from the OSOHI interviews with Fred Catzman, Samuel Lerner, Nathan Strauss, Bernard Shaffer, and others. 32 Christine Kates, 'Fred Catzman,' OSOHI. In personal interviews and the Osgoode Society oral history interview series, early Jewish lawyers often stress their good fortune and avoid dwelling on the obstacles they overcame. 33 Vera Parsons, as quoted in Cecelia Morgan, 'Women at Osgoode Hall Law School 1920s-1960s: Gender and the Legal Profession in Twentieth Century Ontario' 370

Notes from page 196 to page 202

34 35

36 37 38

39

40

41 42 43 44

45

46

47

48

49 50

(Unpublished MS on file at LSUCA). What follows is greatly indebted to Cecelia Morgan's study and also to the research files of the Law Society Museum exhibit 'Crossing the Bar,' curated by Elise Brunet. Morgan, 'Women at Osgoode Hall.' LSUCA, Minutes of Convocation, vol. 23:140, 14 Apr. 1946, Bencher Election results. Newton placed fiftieth. Christine Kates, 'John Arnup,' OSOHI. K. Bain Munro, 'Judge Helen Kinnear,' Canadian Lawyer (June/July 1993): 15-18. Morgan, 'Women at Osgoode Hall,' passim. LSUCA, Series 2 (Treasurer's Papers, D.L. McCarthy), file 1-11-3, includes a collection of campaign endorsements from the 1941 bencher election. LSUCA, Series 17 (Finance Committee), file 2-30, has correspondence on Bell's history and the manuscript. Minutes of Convocation, vol. 17:600, 21 June 1928 (on Ponton). Ardagh's sporty reputation: John Honsberger, 'Raymond and Honsberger: A Small Firm That Stayed Small 1889-1989,' in Carol Wilton, ed., Essays in the History of Canadian Law, Vol. VII: Inside the Law: Canadian Law Firms in Historical Perspective (Toronto: Osgoode Society 1996). LSUCA, Minutes of Convocation, vol. 31:352, 19 Apr. 1963. Series 21 (Past Member Records), file 3005 (Eileen Huckle) includes obituaries and correspondence (though Huckle was not a member of the society). Christine Kates, 'J.J. Robinette,' OSOHI. W. Wesley Pue, 'Becoming "Ethical": Lawyers' Professional Ethics in Early Twentieth Century Canada,' in Dale Gibson and Wesley Pue, eds, Glimpses of Canadian Legal History (Winnipeg: Legal Research Institute of the University of Manitoba 1991), 237-77. Quotation from Pue, 'Becoming "Ethical,"' 254. At 258, Pue notes the CBA Legal Ethics Committee's concern about immigrants. LSUCA, Series 5 (Discipline Committee), file 3-13-1, 'Members Struck off the Rolls since 1st January 1920' (c. 1965), shows the very limited range of offences. Cole, Osier, Hoskin & Harcourt, 65-88. Cole, Osier, Hoskin & Harcourt, 89-90. Allan Graydon, Some Reminiscences of Blakes. Christine Kates, 'John Arnup,' OSOHI, is one of several recording young lawyers' Depression experiences. Christine Kates, 'John Godfrey,' OSOHI, discussing his father. Honsberger, 'Raymond and Honsberger.' Patrick Boyer, A Passion for Justice (Toronto: Osgoode Society 1994), 67, on Ironside. Eddie Goodman, Life of the Party (Toronto: Key Porter 1988). Christine Kates, 'Nathan Strauss' and 'George Johnston,' OSOHI. Howard Graham, Citizen and Soldier: The Memoirs of Lt.-General Howard Graham (Toronto: McClelland and Stewart 1987). LSUCA, Series 4 (Secretary's Papers), file 1-2, Arrears of Fees, 1929-1930. (This file does not continue through the 1930s.) Minutes of Convocation, vol. 19:433, 19 Mar. 1936; vol. 20:301, 19 May 1938. LSUCA, Series 5 (Discipline Committee), file 3-13-1, 'Members Struck off the Rolls since 1st January 1920' (c. 1965). Minutes of Convocation, vol. 18:497, 16 Feb. 1933, Report of the Special Committee on the Bonding of Solicitors. LSUCA, Minutes of Convocation, vol. 18:497, 16 Feb. 1933, Report of the Special Committee on the Bonding of Solicitors. LSUCA, Minutes of Convocation, vol. 19:584, 28 Dec. 1936, and vol. 21:550, 16 Apr. 1942. Bencher opposition is noted in LSUCA, Series 16 (Special Committee files), file 2-

Notes from page 202 to page 210

371

23, Special Committee on Rules regarding Accounts, 1936. 51 Calculations based on sampling of 31 benchers at the convocations in December 1933 and January 1934, and 24 benchers at convocations in February and March 1938. Bencher birth dates were established from the LSUCA Bencher files. 52 LSUCA, Minutes of Convocation, vol. 19:516, 18 June 1936. Similar projects developed in other cities, sometimes with municipal support. One in Hamilton was noted with approval in convocation's minutes for Oct. 1936. 53 The budget is surveyed for the first half of the century in LSUCA, Minutes of Convocation, vol. 25:525, 21 June 1951. Series 17 (Finance Committee), files 4-14 to 41-8, Annual Reports 1928-42, show that for the decade 1930-9 receipts totalled $1.5 million, and expenses $1.3 million. On the construction: Minutes of Convocation, vol. 20:8, 21 Jan. 1937, and Angela Carr, The Architecture of Osgoode Hall, from 1829 to 1984' (Paper submitted to the Department of the History of Art, University of Toronto 1984; MS in LSUCA). 54 LSUCA, Minutes of Convocation, vol. 16:330, 21 Apr. 1921. The cottage was demolished for the construction of the education wing of Osgoode Hall in 1957. 55 C. Ian Kyer and Jerome E. Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario 1923-1957 (Toronto: Osgoode Society 1987), 41.1 have relied heavily on The Fiercest Debate in this section, though it is more detailed on Wright than on the Law Society. 56 Falconbridge appointment: LSUCA, vol. 17:22, 13 Sept. 1923. Kyer and Bickenbach, Fiercest Debate, 45. 57 LSUCA, Minutes of Convocation, vol. 17:421, 20 Jan. 1927 (Falconbridge's proposals for expansion). 58 LSUCA, Minutes of Convocation, vol. 16:547, 18 Jan. 1923 (grants of $11,000 to Osgoode Hall Athletic Association). Vol. 17:161, 16 Oct. 1924 ($2000 for OHLAS). Vol. 18:39, 17 Jan. 1929 (reprimand to Brian Doherty and J.T. Richard) and vol. 18:151, 20 Feb. 1930 (conversazione). 59 OSOHI interviews with, among others, Robinette, Arnup, Howland, Wilson, and Fennell, discuss law school experiences. Women's experience is studied in Cecelia Morgan, 'Women at Osgoode Hall.' 60 W. Wesley Pue quotes Aikens's views at length in 'Common Law Legal Education in Canada's Age of Soap, Light and Water,' Manitoba Law Review 23, nos 1 and 2 (Jan. 1996): 654-89. A.C. Burbidge's comment on idealism is in his article 'Some Other Aspects of Legal Education,' in Fortnight^ Law Journal (15 Nov. 1934): 120. 61 Kyer and Bickenbach, Fiercest Debate, ch. 2, analyses bar association views on legal education. 62 Ibid., ch. 2, particularly 69-70. 63 Wright's view of lecturing, ibid., 82. 64 Ibid., ch. 3, on Wright, esp. 116-19 on his views and his disagreement with Kennedy. 65 Ibid., quoting University of Saskatchewan law professor J.T. Herbert's 1928 opinion at 76 and Denison's view, expressed in 1943, at 152. 66 Robertson's view quoted in LSUCA, Series 2-1 (Treasurer's Papers, D.L. McCarthy), file 144, Denison to McCarthy, 5 Feb. 1937. 67 OSOHI interviews with Robinette, Arnup, and Gray on Mason, Foulds, Roland Wilson on Bain, Bicknell, W.G.C. Howland on Rowell, Reid, Margaret Hyndman on Wegenast. 372

Notes from page 210 to page 217

David J. Walker, Fun along the Way (Toronto: Robertson Press 1989). 68 John Read, quoted in Kyer and Bickenbach, Fiercest Debate, 106. On articling, OSOHI interviews cited above, plus those on Joseph Sedgwick, Stanley Fennell, Nathan Strauss, Fred Catzman, and others, as well as descriptions by Donald Carrick and Bora Laskin in Fiercest Debate, 122 and 303, respectively, and personal communications from lawyers trained in that era. 69 LSUCA, Minutes of Convocation, vol. 18:240, 30 Nov. 1930 and vol. 18:320, 15 Oct. 1931. On the criticism, see Kyer and Bickenbach, Fiercest Debate, 121-5. 70 Kyer and Bickenbach, Fiercest Debate, 113-14. The public interest was raised in 1944 by R.S. Robertson, a member of convocation's legal aid committee in the 1930s. 71 Bencher W.S. Middlebro', quoted in ibid., 124. 72 LSUCA, Series 16 (Special Committee files), file 2-15, Special Committee on Legal Education, Memorandum of John Falconbridge, Dec. 1933. 73 LSUCA, Minutes of Convocation, vol. 20:238-44, 21 Feb. 1935, Report of the Special Committee on Legal Education. 74 LSUCA, Minutes of Convocation, vol. 14:555-65, 18 May 1939, Report of the Legal Education Committee on the special oral examinations. 75 Kyer and Bickenbach, Fiercest Debate, ch. 5, The Decade of Frustration.' 76 Ibid., 173. 77 LSUCA, Series 2-1 (Treasurer's Papers, D.L. McCarthy), file 18, McCarthy to Lapointe, 6 Sept. 1939; file 19, McCarthy to J.J. Hearne, 21 Feb. 1944. 78 Beverley Matthews, ed., 'McCarthy and McCarthy: A History' (Unpublished MS 1978, on file at LSUCA). 79 Comments on McCarthy by, in order, Joseph Sedgwick, J.J. Robinette, and Roland F. Wilson, all from OSOHI. 80 LSUCA, Series 2-1 (Treasurer's Papers, D.L. McCarthy), files 114 (White Diary and Wyndham Lewis commission), and 11-3 (royal visit). 81 LSUCA, Series 4 (Secretary's Papers), files 1-3, Armed Forces Letter (Pew), and 1-61, War Memorial (McGregor). Christine Kates, 'W Gibson Gray,' and 'WG.C. Howland,' OSOHI. 82 LSUCA, Minutes of Convocation, vol. 21:391, 19 June 1941. Series 4-1 (Secretary's Papers, WE. Smith), file 3, Armed Forces Letter. 83 LSUCA, Series 4 (Secretary's Papers), file 1-61, War Memorial. 84 LSUCA, Series 33 (COTC Papers), file 1-108, Lawyers on Active Service, nd [c. 1946]. Osgoode Hall Armed Forces Letter, 36 (21 July 1946). 85 LSUCA, Series 2-1 (Treasurer's Papers, D.L. McCarthy), file 11, McCarthy to Middlebro', 18 July 1940, and file 5, British Children, 1940-2, McCarthy letters to Hales. 86 Christine Kates, 'W Gibson Gray,' OSOHI. 87 LSUCA, Minutes of Convocation, vol. 28:142, 15 Feb. 1957, Special Committee on Law School Report. 88 LSUCA, Minutes of Convocation, vol. 23:89, 21 Feb. 1946, notes the added courses. 89 Christine Kates, 'Allan Leal,' OSOHI. 90 Christine Kates, 'John Godfrey,' 'Robert Reid,' and 'P.B.C. Pepper' (on Denison), OSOHI. LSUCA, Series 2-1 (Treasurer's Papers, D.L. McCarthy), Osgoode students to Denison, 23 Nov. 1939, complaining of full-time student K.E. Maki. [The original of this letter appears to have been signed, but the surviving carbon does not show the signatures.]

Notes from page 217 to page 228

373

91 Christine Kates, 'Robert Reid,' OSOHI. See also Kyer and Bickenbach, Fiercest Debate, 196-8. 92 LSUCA, Minutes of Convocation, vol. 24:73, 15 Jan. 1948, Reports of the subcommittees on Public Relations and on Legal Aid for the Needy. 93 'No difference,' 1935 report on Legal Education. Self-evident: CBA Legal Education Section report, 1942, copy in LSUCA, Series 2-1 (Treasurer's Papers, D.L. McCarthy), file 14-4. Primordial: Wright comment of Apr. 1948 quoted in Kyer and Bickenbach, Fiercest Debate, 196. 94 Chitty's statements and their impact: Kyer and Bickenbach, Fiercest Debate, 211 ff. Chitty published his views in his Fortnightly Law Journal. On his outsider status, Christine Kates, 'John Arnup,' OSOHI. 95 Kyer and Bickenbach, Fiercest Debate, 162-200. 96 Ibid., 201-21. LSUCA, Minutes of Convocation, vol. 24:394, 20 Jan. 1949, Reports on Legal Education. 97 LSUCA, Series 2-1 (Treasurer's Papers, D.L. McCarthy), file 20, Privy Council Appeals 1938. Series 4 (Secretary's Papers), file 1-57, Survey of the Legal Profession 1950. John Nelligan, 'Lawyers: A Mid-Century Portrait,' Canadian Bar Association Review (Jan. 1951). Law office of Denison and Foster, Christine Kates, 'P.B.C. Pepper,' OSOHI. LSUCA, Series 4 (Secretary's Papers), file 1-61, War Memorial, memo from K.J. Jarvis to Roy Schaeffer, 1986. CHAPTER FIVE

A New Agenda, 1950-1970 1 Law Society of Upper Canada Archives (LSUCA), Series 2-1 (Treasurer's Papers, D.L. McCarthy), file 9, Federal Rehabilitation Program 1943. 2 Carson description: Christine Kates, 'W. Gibson Gray,' Osgoode Society Oral History Interview Series (hereafter OSOHI). Election details: LSUCA, Minutes of Convocation, vol. 24,19 Apr. 1951. 3 Christine Kates, 'John Arnup,' OSOHI, and John Arnup, 'The 1957 Breakthrough,' Law Society of Upper Canada Gazette 16 (1982): 186-204. 4 Jack Batten, Robinette: The Dean of Canadian Lawyers (Toronto: Macmillan 1984). Christine Kates, 'J.J. Robinette,' OSOHI. 5 The description is from the Osgoode Society oral history interview with P.B.C. Pepper. 6 Carson: data from LSUCA Bencher files. Biographical detail in Christine Kates, 'John Arnup,' 'W Gibson Gray,' 'P.B.C. Pepper,' and 'J.J. Robinette,' OSOHI. 7 LSUCA, Minutes of Convocation, vol. 24, 15 Jan. 1948, Report of the Special Committee on Legal Aid for the Needy. The Hamilton project: LSUCA, Series 4-1 (Secretary's Papers, WE. Smith), file 28, Legal Aid, B.B. Sheckter to Earl Smith, 6 Dec. 1950. Mary P. Reilly, 'The Origin and Development of Legal Aid in Ontario,' Windsor Yearbook of Access to Justice 8 (1988): 81-96. 8 LSUCA, Minutes of Convocation, vol. 25, 16 Nov. 1950, Report of the Special Committee on Legal Aid. 9 LSUCA, Minutes of Convocation, vol. 25, 16 Nov. 1950 (approval of the plan), 15 Feb. 1951 (detailed regulations), 15 Mar. 1951, 19 Apr. 1951.

374

Notes from page 228 to page 243

10 LSUCA series 44 (Secretary's Papers, W.E. Smith), file 28, Legal Aid, Evans to Chitty, 23 Oct. 1950, Conant speech to Oshawa Lions Club, 21 Nov. 1951. 11 Legal aid as a practice builder is in Christine Kates, T.B.C. Pepper,' 'Donald Lament,' 'Nathan Strauss,' 'Bernard Shaffer' (OSOHI), among others. LSUCA, Minutes of Convocation, vol. 26, 18 June 1953, Conover letter, 12 Feb. 1953. 12 Smith's annual legal aid summaries and statistical reports, usually presented in March, are in LSUCA, Minutes of Convocation, vols 26-37, 1952-68 passim. 'Greatest step': LSUCA, Series 4-1 (Secretary's Papers, W.E. Smith), file 28, Legal Aid, Edson Haines to Smith, 18 Nov. 1950. Robinette comment: Minutes of Convocation, vol. 25, 17 May 1951. 13 LSUCA, Minutes of Convocation, vol. 25, 17 Nov. 1949, 19 Jan. 1950, 16 Mar. 1950. Christine Kates, 'Willard Estey,' and 'Edson Haines,' OSOHI. 14 McKim contract: LSUCA, Minutes of Convocation, vol. 24, 15 Jan. 1948 and 15 Apr. 1949, vol. 25, 29 Sept. 1949, and vol. 26, 16 Sept. 1954. Deputy Secretary: Minutes, vol. 27, 17 Mar. 1955. 15 Public forums: Minutes of Convocation, vol. 27, 15 Mar. 1956 16 Pension: LSUCA, Minutes of Convocation, vol. 29, 18 Oct. 1958. Denison will: Vol. 26, 20 Sept. 1951. Charitable foundation: vol. 28, 15 Nov. 1957. 17 LSUCA, Minutes of Convocation, vol. 28, 18 Apr. 1958, and vol. 30, 17 June 1960, Report of Subcommittee on Reporting. 18 LSUCA, Minutes of Convocation, vol. 29, 20 Mar. 1959. 19 LSUCA, Minutes of Convocation, vol. 23:513, 19 June 1947, and vol. 25:155, 19 Jan. 1950. Series 5 (Discipline Committee), file 3-13-1, List of Members Struck off the Rolls since 1st January 1920 (c. 1965). 20 Minutes of Convocation, vol. 26, 21 Jan. 1954, and vol. 27, 19 Jan. 1956. Globe and Mail, 8 Mar. 1955, Top Court Overrules Action of Law Society.' LSUCA, Series 21 (Past Member Records), file 754, S.M. Mehr. 21 LSUCA, Minutes of Convocation, vol. 25, 21 June 1951, and vol. 27, 20 Oct. 1955. 22 LSUCA, Minutes of Convocation, vol. 26, 15 Jan. 1953, Special Committee on Compensation Fund. Series 16 (Special Committee files), file 2-80-1, Compensation Fund, Lund to Smith, 30 Oct. 1951. 23 The quotation is attributed to Justice Horace Krever by C. Ian Kyer and Jerome E. Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario 1923-1957 (Toronto: Osgoode Society 1987), 323. Wright's comment is at 211. 24 Ibid., 21-18 and 234-5. 25 LSUCA, Minutes of Convocation, vol. 24, 17 Mar. 1949. 26 LSUCA, Minutes of Convocation, vol. 24, 20 Apr. 1949. 27 LSUCA, Minutes of Convocation, vol. 24, 19 May 1949. 28 Kyer and Bickenbach, Fiercest Debate, 222-34. 29 LSUCA, Minutes of Convocation, vol. 25, 29 June 1949. 30 Valuable recollections of Smalley-Baker's tenure at Osgoode Hall are Christine Kates, 'Robert Reid,' 'Willard Estey,' and 'Allan Leal,' all in OSOHI. 31 Christine Kates, 'Allan Leal,' OSOHI. 32 LSUCA, Series 32, Osgoode Hall Legal and Literary Society, passim. Obiter Dicta (the student newspaper), passim. Charta, the school yearbook, first appeared in 1957.1 have also

Notes from page 244 to page 256

375

benefited from comments in the OSOHI Series and from comments of students of that era. 33 Carson's letter to Smith: LSUCA, Minutes of Convocation, vol. 26, 19 Mar. 1953. vol. 27, 20 Jan., 17 Feb., and 17 Mar. 1955. 34 Christine Kates, 'Robert Reid/ and '].]. Robinette,' OSOHI. 35 The growth predictions, gathered earlier by the special Committee on Accommodations, are compiled in its final report, LSUCA, Minutes of Convocation, vol. 28, 15 Feb. 1957. 36 Bank loan: Christine Kates, 'J.J. Robinette,' OSOHI. Fee increase: LSUCA, Minutes of Convocation, vol. 27, 20 Oct. 1955. Reaction: Series 4-1 (Secretary's Papers, W.E. Smith), file 59, Treasurer's Letter file, particularly Bell to Carson, 24 Nov. 1955. 37 The events are detailed in Kyer and Bickenbach, Fiercest Debate, ch. 10; Arnup, The 1957 Breakthrough,' 180-203, and Christine Kates, 'John Arnup,' OSOHI. 38 Christine Kates, 'Allan Leal,' OSOHI. 39 Early appraisals of the bar admission course are given in LSUCA, Minutes of Convocation, vol. 29, 16 Jan. 1959, Report of the Continuing Legal Education Committee; and in Roberts's reports to convocation in Minutes of Convocation, vol. 32, 18 Sept. 1963, and vol. 33, 19 Nov. 1965, which includes the quoted sentences. 40 Christine Kates, 'Donald Lamont,' OSOHI. 41 LSUCA, Minutes of Convocation, vol. 43, 17 May 1974, Report of the Admissions Committee. 42 Minutes of Convocation, vol. 28, 15 Feb. 1957. Arnup, The 1957 Breakthrough.' Robert Reid describes helping to plan Carson's tactics in Christine Kates, 'Robert Reid,' OSOHI. 43 Kyer and Bickenbach, Fiercest Debate, ch. 10. Graduate scholarships: Minutes of Convocation, vol. 29, 18 Mar. 1960. 44 Carson's wish to retire: Minutes of Convocation, vol. 27, 17 Mar. 1955. Building opening: LSUCA, Series 1 (Convocation), file 6-79, Special Entertainment, 1958. 45 John Arnup describes the transfer decision in Christine Kates, 'John Arnup,' OSOHI. Documents and details are provided in Harry W. Arthurs, The Affiliation of Osgoode Hall Law School with York University,' University of Toronto Law Journal 17 (1967): 194-206, and in LSUCA, Minutes of Convocation, vol. 33, 26 Mar. 1965, 21 May 1965, 15 Oct. 1965. 46 Arnup: LSUCA, Minutes of Convocation, vol. 33, 26 Mar. 1965. Vol. 40, 19 Mar. 1971, Report by B.J. McKinnon, Chair, Special Committee on Legal Education. 47 Christine Kates, 'Allan Leal,' OSOHI. 48 Curtis Cole, Osier, Hoskin & Harcourt: Portrait of a Partnership (Toronto: McGraw-Hill Ryerson 1995), 198-203. Christine Kates, 'Stuart Thorn,' 'John Godfrey,' OSOHI. 49 Robert Brown, The House That Blakes Built' (Unpublished MS 1980, copy in LSUCA). LSUCA, Series 44 (Secretary's Papers, W.E. Smith), file 25, Law Clerks 1965-72, and file 67, Licenced Technicians. 50 John Godfrey, 'Personal Reminiscences and a History of the Law Firm of Campbell, Godfrey, and Lewtas' (Unpublished MS 1983, copy in LSUCA, W.G.C. Howland Papers, Box 31). 51 Matthews: Janette Macdonald, 'G.D. Finlayson,' OSOHI. Mockridge: Cole, Osier, Hoskin & Harcourt, 115ff. On Borden and Elliot, Valerie Schatzker, Borden and Elliot: The First Fifty Years (Toronto: Borden and Elliot 1986). 52 Cole, Osier, Hoskin & Harcourt, 139-40, and Appendix II. 53 Godfrey, 'Personal Reminiscences.' Brown, The House That Blakes Built.' Brown does not

376

Notes from page 256 to page 268

54

55

56 57 58 59 60 61 62 63 64 65 66 67

68 69 70 71 72

73

name the lawyer who was considered or date the decision, but internal evidence suggests it was between 1948 and 1954. Christine Kates, 'Fred Catzman,' and 'Marvin Catzman,' OSOHI. Braithwaite and Tsai are featured in Charta, the law school yearbook of 1957. LSUCA, Minutes of Convocation, vol. 32, 15 May 1964 (Horn letter). Philip Sworden, '"A Small United Nations": The Hamilton Firm of Millar, Alexander, Tokiwa, and Isaacs, 1962-93,' in Carol Wilton, ed., Essays in the History of Canadian Law, Vol. VII: Inside the Law: Canadian Firms in Historical Perspective (Toronto: Osgoode Society 1996). Statistics from David A.A. Stager and Harry W. Arthurs, Lawyers in Canada (Toronto: University of Toronto Press 1990), Table 4.3. LSUCA, Minutes of Convocation, vol. 48, 15 Feb. 1974 and 21 June 1974 (non-discrimination rule), and 28 June 1974 (Brendan O'Brien, speech on moving the election as honorary bencher of H.M. The Queen Mother). Joy Clarry, 'Joseph Sedgwick,' and Christine Kates, 'John Arnup,' OSOHI. Kates, 'Nathan Strauss' and 'Robert Reid' also comment on Sedgwick and Arnup. LSUCA, Minutes of Convocation, vol. 32, 15 May 1964, and Christine Kates, 'John Arnup,' OSOHI. LSUCA, Minutes of Convocation, vol. 29, 19 June 1959 (claims re Herman), 18 Sept. 1959 (levy increase), 20 Oct. 1959 (debate on Special Committee report). LSUCA, Minutes of Convocation, vol. 29, 20 Nov. 1959 (Special Committee report). Vol. 30, 21 Oct. 1960 (levy increase). LSUCA, Minutes of Convocation, vol. 33, 16 Oct. 1964. LSUCA, Minutes of Convocation, vol. 33, 16 Oct. 1964 and 15 Jan. 1965. Vol. 34, 18 Feb. 1966 (Fund investment of $600,000). LSUCA, Minutes of Convocation, vol. 32, Apr. 1964, vol. 33, 26 Mar. 1965. Mandatory annual audits: vol. 33, 21 May 1965. LSUCA, Minutes of Convocation, vol. 29, 20 Nov. 1959, vol. 32, 20 Mar. 1964. LSUCA, Minutes of Convocation, vol. 30, 17 Feb. 1961, vol. 31, 16 Mar. 1962, vol. 33, 23 Apr. 1965. LSUCA, Minutes of Convocation, vol. 32, 15 May 1964. LSUCA, Minutes of Convocation, vol. 31, 21 June 1963, Appointment of Joint Committee on Legal Aid. Christine Kates, 'W.B. Common,' OSOHI. W.B. Common, Report of the Joint Committee on Legal Aid (Toronto: Ministry of the Attorney General 1965). LSUCA, Minutes of Convocation, vol. 33, 15 Jan. 1965, Treasurer's statement to the Common Committee. Christine Kates, 'W.B. Common,' and 'Robert Reid,' OSOHI. Christine Kates, 'W.B. Common,' OSOHI. LSUCA, Minutes of Convocation, vol. 33, 15 Oct. 1965. John Arnup, The Government and the Society: Their Roles in Legal Aid,' Law Society of Upper Canada Gazette 2, no. 1 (Mar. 1968): 10-12. Another example of O'Brien's advisory letters, on the compensation fund, is in LSUCA, Minutes of Convocation, vol. 41, 21 Jan. 1972. LSUCA, Minutes of Convocation, vol. 35, 19 Jan. 1968, Report of Special Committee on Trust Accounts. Statutes of Ontario, 1973, ch. 49, Act to Amend the Law Society Act, 22 June 1973. LSUCA, Minutes of Convocation, vol. 38, 18 Oct. 1968; noting the background of the

Notes from page 268 to page 279

377

issue and the formation of the special committee, 8 Mar. 1968. Vol. 36, 15 Nov. 1968 (on Law Association's views); vol. 37, Feb. 1969 (resolution of support from General Meeting); 15 Jan. 1970 (results of survey of the profession). 74 Henderson's warnings: LSUCA, Minutes of Convocation, vol. 37, 15 Jan. 1969. Implementation details: vol. 39, 20 Nov. 1970. 75 LSUCA, Minutes of Convocation, vol. 31, 19 Apr. 1963 (re Eileen Huckle). Vol. 28, 20 Sept. 1956 (dining-room to move to Convocation Hall); vol. 35, 21 Apr. 1967 (retirement of Margaret Lennox). 76 George A. Johnston, The Law Society of Upper Canada: A Short Account of the History of the Law Society of Upper Canada (Toronto: Law Society of Upper Canada 1947); Osgoode Hall Lore. (Toronto: The Lawyers' Club 1955); 'Osgoode Hall as It Was in 1949,' Law Society of Upper Canada Gazette 19, nos 3, 4 (Sept./Dec. 1985). CHAPTER SIX

Questions of Control, 1970-1997 1 Law Society of Upper Canada Archives (LSUCA), Series 2-3 (Treasurer's Papers, Brendan O'Brien), file 23, Memorandum of Discussions ..,, 3 Apr. 1968. 2 Ontario, Royal Commission on Civil Rights, Report, 3 vols (1968-71). On McRuer and his critics, see Patrick Boyer, A Passion for Justice (Toronto: Osgoode Society 1994), particularly ch. 14. The characterization, from a specialist in administrative law, is in Christine Kates, 'Robert Reid,' Osgoode Society Oral History Interview Series (hereafter OSOHI). 3 LSUCA, Series 2-3 (Treasurer's Papers, Brendan O'Brien), file 11, O'Brien to S.L. Robins, 27 July 1966. 4 Statutes of Ontario, 1970, ch. 238, The Law Society Act. 5 LSUCA, Series 2-3 (Treasurer's Papers, Brendan O'Brien), file 7, O'Brien to benchers, 24 Nov. 1967; file 11, Beament to Robins, 2 Jan. 1968, and Robins's memo, 5 Apr. 1968. Minutes of Convocation, vol. 36, 3 Oct. 1968 (approval of the proposal). 6 LSUCA, Series 2-5 (Treasurer's Papers, Stuart Thorn), file 2, 'Annual Meeting - security precautions,' 12 Dec. 1975. 7 LSUCA, Minutes of Convocation, vol. 40, 21 May 1971 (report on Law Council founding meeting of 26 Feb. 1971). Vol. 42, 16 Feb. 1973 (proposal to abolish it). Christine Kates, 'Reginae Tait,' OSOHI. 8 On 'boredom': LSUCA, Series 2-3 (Treasurer's Papers, Brendan O'Brien), file 3, Memorandum of Discussions..., 3 Apr. 1968. 9 Christine Kates, 'Stanley Fennell,' OSOHI. The assessment of Martin's treasurership comes from Osgoode Society oral history interviews with several benchers and treasurers. 10 LSUCA, Minutes of Convocation, vol. 41, 17 Nov. 1972, and vol. 45, 20 Feb. 1976. 11 LSUCA, Minutes of Convocation, vol. 29, 19 June 1959; vol. 36, 19 Apr. and 21 June 1968; vol. 39, 15 May 1970. 12 LSUCA, Minutes of Convocation, vol. 42, 7 Sept. 1973; vol. 44, 12 Jan. and 19 Sept. 1975; vol. 45, 20 Feb. 1976; vol. 48, 19 Jan. 1979. Christine Kates, 'P.B.C. Pepper,' OSOHI. 13 Christine Kates, 'Reginae Tait,' OSOHI, 1990. 14 LSUCA, Minutes of Convocation, vol. 40, 16 Apr. 1971. 378

Notes from page 279 to page 289

15 Christine Kates, 'W. Gibson Gray,' OSOHL Professor Fred Zemans (first director of Parkdale Legal Clinic), personal communication. LSUCA, Minutes of Convocation, vol. 40, 17 Sept. 1971, notes Law Society plans for legal clinics. 16 LSUCA, Minutes of Convocation, vol. 40, 17 Sept. 1971, report of a meeting with Dean Gerald LeDain and clinic director Frederick Zeman on 29 July 1971. 17 LSUCA, Minutes of Convocation, vol. 41, 21 Jan. 1972 (committee to consider recovery of Osgoode Hall name). Vol. 41, 16 June 1972 (Professional Conduct opinion) and 17 Nov. 1972 (other clinics), and vol. 42, 15 June 1973 (private firm clinics). 18 Mr Justice John H. Osier, Report of the Task Force on Legal Aid (Ontario: Ministry of the Attorney General 1974). 19 LSUCA, Minutes of Convocation, vol. 44, 20 Mar. 1975 (attorney general urges funding), 19 Sept. 1975 (expanded legal aid committee). Vol. 47, 15 Sept. 1978 (clinical funding committee established). Series 2-5 (Treasurer's Papers, Stuart Thorn), file 38-4, McMurtry to Chadwick, 19 Apr. 1982. 20 LSUCA, Minutes of Convocation, Legal Aid Committee Report, vol. 45, 21 May 1976. LSUCA, Series 2-3 (Treasurer's Papers, Stuart Thorn), file 38-1, text of McMurtry speech to CBA (Ontario), Windsor, Ont., 13 Feb. 1976. 21 LSUCA, Series 2-3 (Treasurer's Papers, Stuart Thorn), file 384, Jarvis to Bowlby, 19 Feb. 1976, Thorn to Bowlby, 6 June 1976. 22 Christine Kates, 'Stuart Thorn,' OSOHI. 23 Christine Kates, 'W. Gibson Gray,' OSOHI. Gray attributed the remark to Terrence Sheard. 24 Janette Macdonald, 'George Finlayson,' OSOHI. 25 Janette Macdonald, 'George Finlayson,' and Christine Kates, 'Samuel Lerner,' OSOHI. 26 LSUCA, Series 2-7 (Treasurer's Papers, John Bowlby). Christine Kates, 'P.B.C. Pepper,' 'Reginae Tait,' Janette Macdonald, 'George Finlayson,' and others in the OSOHI Series. 27 LSUCA, Series 2-7 (Treasurer's Papers, John Bowlby), file 41, Jarvis to Bowlby, 4 Nov. 1981, and Bowlby to Jarvis, 5 Nov. 1981. 28 Christine Kates, 'P.B.C. Pepper,' OSOHI. LSUCA, Series 2-4 (Treasurer's Papers, George Finlayson), file 14, Barr to Finlayson, 22 Jan. 1980. 29 LSUCA, Series 2-7 (Treasurer's Papers, John Bowlby), file 43, Bowlby speech, 12 Feb. 1983. 30 LSUCA, Series 2-5 (Treasurer's Papers, Stuart Thorn), file 5, Thorn to Jarvis, 30 Sept. 1982. 31 Christine Kates, 'W. Gibson Gray' and 'W.G.C. Howland,' OSOHI. Topp, quoted in Jack Batten, The Class of '75 (Toronto: Macmillan of Canada 1991). 32 Christine Kates, 'John Arnup,' and 'Stanley Fennell,' OSOHI. 33 LSUCA, Minutes of Convocation, vol. 37, 26 Aug. 1969, Re R.J. Home. Vol. 42, 21 Sept. Re B.W. King. Vol. 43, 17 May 1974, Re E.L. Stone. 34 Christine Kates, 'W.G.C. Howland,' OSOHI. 35 Christine Kates, 'Nathan Strauss,' OSOHI. 36 LSUCA, Series 2-7 (Treasurer's Papers, John Bowlby), file 3, K. Jarvis to Pierre Genest, 16 Mar. 1983. 37 LSUCA, Minutes of Convocation, vol. 75, 26-7 May 1988, summary of proceedings. 38 LSUCA, Minutes of Convocation, vol. 36:248, 17 May 1968. 39 LSUCA, Series 2-7 (Treasurer's Papers, John Bowlby), file 43, The Numbers Issue: A

Notes from page 289 to page 306

379

40 41

42 43 44

45 46

47

48

49 50 51 52

53 54

55 56

57 58

Chronology,' nd [c. 1982]. Minutes of Convocation, vol. 50, 20 Feb. 1981. David A.A. Stager and Harry W. Arthurs, Lawyers in Canada (Toronto: University of Toronto Press 1990), Table 6.3. Stager and Arthurs, Lawyers in Canada, Table 4.3. Ibid., Table 4.3. LSUCA, Series 2-4 (Treasurer's Papers, George Finlayson), file 25, Marie T Huxter (assistant dean, University of Toronto Law School) to Finlayson, 22 Feb. 1979, and Finlayson to Huxter, 6 Mar. 1979. Richard L. Abel, The Transformation of the American Legal Profession,' Law and Society Review 20, no. 1 (1986): 7-17. Bowlby voiced his opinion in many speeches, such as one to the CBA in August 1981: LSUCA, Series 2-7 (Treasurer's Papers, John Bowlby), file 72. This research, summarized in David Stager, 'Are There Too Many Lawyers?' Canadian Public Policy 9 (1983): 245, was expanded and updated in Stager and Arthurs, Lawyers in Canada. LSUCA, Minutes of Convocation, vol. 55, 27 Jan. 1983. LSUCA Series, 2-3 (Treasurer's Papers, Brendan O'Brien), file 102, 'A Digger Message from Blues Brian Chapman.' Minutes of Convocation, vol. 52, 20 Apr. 1979, Special Committee on Confidentiality. LSUCA, Series 2-7 (Treasurer's Papers, John Bowlby), file 22, Bruce McKillop to Presidents of County Law Associations, undated [c. 1980]. File 23, Patrick Furlong to Bowlby, 14 Oct. 1982. Christine Kates, 'Fasken, Campbell, Godfrey,' OSOHI 1989. Also Curtis Cole, Osier, Hoskin & Harcourt: Portrait of a Partnership (Toronto: McGraw-Hill Ryerson 1995), 224ff, and Appendix II on size of largest firms. Cole, Osier, Hoskin & Harcourt, 204, on Osiers' 21 per cent annual growth rate in the 1980s. Globe and Mail, 18 Dec. 1995, 'Toronto law firm to go out of business.' Cole, Osier, Hoskin & Harcourt, 235-6. Abel, Transformation of the American Legal Profession.' LSUCA, Minutes of Convocation, vol. 43:479, 15 Nov. 1974, Report of Special Committee on Combines Legislation. Vol. 75, 29 Jan. 1988, Report of the Discipline Committee. Advertising: LSUCA, Minutes of Convocation, vol. 49, July 1980, Special Convocation on advertising, and vol. 55, 23 Sept. 1983. Dominion Law Reports (3rd Series), 137 (1982), 1-46, Jabour v Law Society of British Columbia et al. Advertising: LSUCA, Minutes of Convocation, vol. 61, 23 Nov. 1984, vol. 68, 26 Sept. 1986, vol. 76, 27 May 1988. LSUCA, Minutes of Convocation, vol. 77, 25 Nov. 1988, Report of the Special Committee on Paralegals. Robert Gordon, quoted from his contribution to 'Symposium,' in Michigan Law Review 92 (Aug. 1993): 1921-2219. Morley Torgov, St Farb's Da? (Toronto: Lester and Orpen Dennys 1990), 267. Carole Curtis, 'Alternative Visions of the Legal Profession: A Perspective from Ontario,' Alberta Law Review 33, no. 4 (June 1995): 787-99. Law Society of Upper Canada, Transitions in the Ontario Legal Profession: A Survey of Lawyers Called to the Bar between 1975 and 1990 (Toronto: Law Society of Upper Canada, May 1991). Canadian Bar Association, Task Force on Gender Equality in the Legal 380

Notes from page 306 to page 321

59

60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76

Profession, Touchstones for Change: Equality, Diversity and Accountability (Ottawa: Canadian Bar Association, August 1993). Abe Feinstein, speech to CDLPA plenary session, Nov. 1993. Harry Arthurs, 'Law, Society and the Law Society,' Law Society of Upper Canada Strategic Planning Conference, Sept. 1992. LSUCA, Minutes of Convocation, vol. 92, 24 Oct. 1991. LSUCA, Minutes of Convocation, vol. 100, Nov. 1992. LSUCA, Minutes of Convocation, vol. 103, 23 Sept. 1993. LSUCA, Minutes of Convocation, vol. 87, 12 Oct. 1990. LSUCA, Minutes of Convocation, vol. 87, 12 Oct. 1990, Report of the Discipline Procedures Committee. LSUCA, Minutes of Convocation, vol. 84, 22 Mar. 1990, Report of Special Committee on Complaints. LSUCA, Minutes of Convocation, vol. 85, 25 May 1990, and vol. 92, 27 Sept. 1991 (on Errors and Omissions). LSUCA, Minutes of Convocation, vol. 92, 24 Oct. 1991, and vol. 93, 22 Nov. 1991 (on legal aid). LSUCA, Minutes of Convocation, vol. 81, 29 Sept. 1989. LSUCA, Minutes of Convocation, vol. 83, 26 Jan. 1990. LSUCA, Minutes of Convocation, vol. 84, 27 Apr. 1990, Report of A.S. Dewar. LSUCA, Minutes of Convocation, vol. 107, 28 Oct. 1994, Report of the Insurance Task Force and the Insurance Committee. LSUCA, Minutes of Convocation, vol. 107, 27 June 1994, Report of the Legal Aid Committee. LSUCA, Minutes of Convocation, vol. 107, 23 Sept. 1994. Law Society of Upper Canada, Bencher Election Candidate Guide 1995. LSUCA, Minutes of Convocation, vol. 104, Feb. 1994 (approval of draft mission statement), and vol. 106, Apr. 1994 (tabulation of responses). H.W. Arthurs, The Dead Parrot: Does Professional Self-Regulation Exhibit Vital Signs?' Alberta Law Review 33, no. 4 (Aug. 1995).

Notes from page 321 to page 339

381

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Index

Abel, Richard, 307, 312 aboriginal law, 1 7 aboriginal lawyers, 268 Adams, John, 28 Adamson, Anthony, 121-122 Adolphustown, 14 Advocates' Society, 269 Agro, Angelo ]., 223 Aikens, James, 206, 215, 229 Alberta, 159-60; Law Society of, 279, 311 Alexander, Lincoln, 268 American Bar Association, 215 American Revolution, 19 Ancaster, Ont., 89; treason trials at, 57-59 Anderson, John, 53 Anderson, Robert, 272 Anglin, Arthur, 206 Anglin, Francis, 149 Anglin and Mallon, law firm, 149 Antigua, 27 anti-lawyer sentiment, 24, 108-189, 318-319 apprenticeship. See articles Ardagh, Bertram Holford, 151, 190, 205, 211 aristocracy, 37, 75 Armed Forces Letter, 225 Armour, E. Douglas, 170, 191 Armour, John Douglas, 141 Arnup,John, 202, 240-241, 257-259, 261-263, 292, 301; as treasurer, 269, 274, 276-7 Arthur, Eric, 140 Arthurs, Harry, 282, 298, 300,

309, 321, 339

articles, articling, 19, 25, 46-7, 62, 86, 90-91, 109, 169, 216-22, 229-31, 306; and bar admission course, 259-60; and limits to entry, 172; criticized, 115, 217-218. See also: legal education, law students

assizes, 21, 104, 118 attorney general (Upper Canada/Canada West/Ontario), 20, 25, 200, 256, 284, 290-2 attorneys, 62, 103, 109; landsharks,' 109; reborn as solicitors, 111; seen as pettifoggers, 86; separation from barristers, 86-88; suspension, 125. See also: lawyers, barristers, solicitors Attorneys and Solicitors Act (England), 39-40 Auld, Clyde, 237 Aylesworth, Allen, 143, 180, 191 Aylesworth, Moss, law firm, 192, 197 Backhouse, Constance, 182 Bagehot, Walter, 41 Bain, James, 197, 211 Bain, Bicknell, law firm, 197, 217 Baldwin, Robert, 69, 69, 81,

82, 87,90-91, 112, 164;

against sale of Osgoode Hall, 84, 100; as 'father of the bar,' 112; compiles rules and rolls, 70—71; legal education and, 90—92; on lawyers in politics, 108; political career, 112; proposes new legal honours, 120; receives Order of the Bath, 112, 120; receives QC, 121; resigns as treasurer, 112 Baldwin, William Warren, 33,

48, 51-52, 55, 58, 62-64, 70, 72,89,103,104,113,132,

152; background and personality, 72; constitutional views, 72-6; designs for Osgoode Hall, 82; dismissed from judicial offices, 77, 97; elected to

Assembly, 73; 'father of the LSUC,' 48, 119; Hamel portrait of, 119; leader of reform benchers, 71-80; managing Osgoode Hall, 83-84, 92-96; relations with son Robert, 92; reply to Robinson, 74-6; resigns as treasurer, 95; students and, 88, 92-96; view of the law, 86 Baldwin family, 97 Bales, Dalton, 287 Balfour, W.D., 182 Bank Act, 153 Bank of Upper Canada, 83, 102, 126 banks and trust companies, 124, 126, 153, 157, 160, 164, 199, 247 Bar and the Courts of Upper Canada (Riddell), 204-5 Barr, Rod, 298, 300 Barrie, Ont., 154 barristers, 44, 107-8; relations with solicitors and attorneys, 39, 46, 49, 109-110, 149, 318. See also: lawyers, attorneys, solicitors Barwick, Walter, 191 Bayly, Richard, 150 Beament, Ted, 285 Beardsley, Bartholomew, 13, 14, 15, 58 Beaton, W.J., 252 Beatty, William Henry, 155-156 Beatty, Blackstock, Fasken, law firm, 155, 179 Beecher, Henry Corry Rowley, 112 Begbie, Matthew Baillie, 161 Belcourt, Napoleon, 176 Bell, Edwin, 204 Bell, Richard, 258 Belleville, Ont., 98, 205 benchers. See convocation Bennett, Alfred, 211, 295

383

Bennett, Colin, 299 Bennett, R.B., 189 Berlin (Kitchener), Ont., 147 Berthon, George Theodore, 119, 130, 297 Beverley House, 61 Bidwell, Marshall Spring, 62, 72, 77, 97-8 Birnbaum, Samuel, 193 black lawyers, 177-179, 268 Blackstock, Thomas G., 155 Blackstone, William, 22, 37-39,

41, 74-75, 104, 116, 145, 156

Blain, John, 196 Blake, Edward, 112, 131-132, 137, 141, 142, 150, 154, 161, 240, 322; 'greatest lawyer in Canada,' 141-142;on petition of Delos Davis, 178-179 Blake, Samuel Hume, 141, 150, 153, 181-183 Blake, William Hume, 84, 97, 114-15 Blake, Cassels, Graydon ('Blakes'), law firm, 138, 152-153, 160, 197, 207, 264,

268

Blake family, 84 Bkak House (Dickens), 110 Bliss v Street, case of, 50 Bloor Street, Toronto, 81 Bonaparte, Napoleon, 14 Bond Head, Francis, 97, 120 Borden, Henry, 198, 225 Borden, Robert, 192, 198 Borden and Elliot, law firm, 198, 266 Borins, Stephen, 260, 309 Boulton, D'Arcy, Jr, 60, 68,

145

Boulton, D'Arcy, Sr, 47, 51-52, 54, 57, 73 Boulton, Henry John, 56, 60, 73-74, 79-80, 83, 87, 105 Boulton, James, 70, 105 Boulton, William, 89 Boulton family, 48, 61, 71, 73,

100

Bourassa, Henri, 193 Bowlby, John, 293, 296-300, 303, 305-7 Bowlby and Clement, law firm, 157

384

Bracton's Treatise, 35 Braithwaite, Leonard, 268 Brantford, Ont., 157, 159 Brazilian Traction (Brascan),

160 Britain, law and society in, 37-8 British Colonist, 100 British Columbia: judicial institutions, 159; Law Foundation of, 278; Law Society of, 159-160, 279, 316 British Constitution, 20, 22 British Empire, 14, 16, 19; legal institutions, 20-22, 34-45 British North America, legal institutions in, 25 Brock, Isaac, 56, 57 Brockville, Ont., 49-50, 107 Brown, George, 178 Brown, Robert, 265 Bruce, Alexander, 183 Buchan, John, Lord Tweedsmuir, 223-224 Bulmer, J.T., 166 Burke, Edmund, 41 Burlington Heights, Ont., 58 Cainsville, Ont., 156 Calgary, Alta, 311 Callaghan, Morley, 174 Callwood, June, 324 Cambridge, England, 40 Cameron, John Hillyard, 123, 128, 130, 132-133, 137, 240, 247, 322; as student, 93, 105; bencher, 106; death, 140-141; early career and poli' tics, 105-6; leader of bar, 126-127; grand master of Orange Lodge, 126; treasurer, 123; views on legal education, 127, 166 Cameron, Malcolm Graeme,

162

Cameron, Matthew Crooks, 131, 137 Cameron, Wellington Ault,

184

Cameron, Brewin & Scott, law firm, 290 Campbell, Colin (bencher),

325

Campbell, Colin (Manitoba lawyer), 159 Campbell, Peter, 198 Campbell, William, 58, 82 Campbell, Godfrey, Lewtas, law firm, 198, 265, 267, 310 Canada, 130, 161, 237; Charter of Rights and Freedoms, 312; Competition Act and Bureau, 315; constitutional law, 161, 313; Department of Finance, 293; Department of Health and Welfare, 289; Dominion Bureau of Statistics, 232; Parliament, 232 Canada Law Journal, 137-138, 143, 168 Canada Life Insurance, 155 Canada West, 102, 107, 125; judicial institutions of, 98, 107-8; railway development in, 123-124 Canadian Bar Association, 175, 205-6, 222, 240, 241, 245, 249, 254, 277, 302; Canon of Ethics, 206, 209, 273; Ontario section, 251; views on education, 214-215, 218-19, 251; Wilson Report on equity, 321 Canadian Expeditionary Force, 189, 191 Canadian Law Review, 174 Canadian Officer Training Corps, 224 Canadian Northern Railway,

153 Canadian Pacific Railway, 150,

155 Cape St Vincent, battle of, 14 Carleton County Law Association, 148, 176, 258 Carson, Cyril, 196, 232, 239-241, 250, 256-258, 260, 262 Cartier, George-Etienne, 130 Cartwright, John (nineteenth century), 86, 91, 120 Cartwright, John (twentieth century), 194 Cartwright, Richard, 22, 23, 24, 59, 86, 108 Index

Cartwright Publishing, 247 Cassels, Hamilton 'Laddie,' 194, 228, 230, 257 Caswell, (Mr), law client, 104 Cataraqui (Kingston), Ont., 18 Catzman, Fred, 200-201, 267,

307

Catzman, Marvin, 267 Cawdell, James Martin, 83, 94, 113, 118 .Cawthra family, 124 chancellor's foot, principle of, 36 Chipman, Ward, 49 Chitty, Michael, 229, 242-243, 246, 252, 257 Clark, James, 14 Clement, John, 290 ClermontJ-A., 193 Cobalt, Ont., 156 Cobourg, Ont., 114, 148, 191 Cochran, Thomas, 53 Cohen, Arthur, 179-80 Cohen, J.L., 247 Coke, Edward, 35 Coke on Littleton, 164 Cole, Curtis, 148 College of Physicians and Surgeons, 329 Collins, Francis, 86 Commentaries on the Laws of England (Blackstone), 37-38, 74-75, 116. See also Blackstone, William common law, 35, 110 Common, WB. 'Bill,' 274-276; report of, 275-6 Conant, Gordon, 243 Confederation, 130, 161, 313; fathers of, 129-30 Conference of Governing Bodies, 205 Connor, George Skeffington, 110 Conover, Douglas, 242, 244 Constitutional Act (1791), 19, 37, 73-6 contingent remainders, law of, 119 conveyancers, 103, 147-8, 199 convocation, 15, 69; admiration for English traIndex

ditions, 129, 252, 305; as board of directors, 299; authority challenged, 231-2, 250-1, 288-9, 291-292, 302, 305, 318, 336-7, 339; benchers' ages, 210; benchers' corporate loyalties, 126; benchers' firms and E&O, 332; benchers with QCs dominate, 120; burden of responsibility, 300-301; committee system, 139-141, 298, 326, 338-9; confidentiality, 309, 322-3; conservatism of benchers, 71-80, 127, 203-204, 212, 231-232, 238; culture of, 282, 321-2; election campaigns, 137-138, 142, 153, 225, 309, 319-320, 337-8; election process, 131-133, 240, 268 ,320, 323; electoral terms, 132, 283-5; ethical offensive, 273; faith in articling, 216-222; honorary benchers, 130, 305; house committee, 309; house cleaning, 139-40; lay benchers, 284-6; leaders not representatives, 138, 309, 3 19-20; luncheons, 136, 148, 210, 292, 296; life benchers, 139, 203, 240-241; minority benchers, 267-8, 323; minutes of, 16, 60, 339; name adopted, 60; nonbencher lawyers in, 323; openness policies, 322-3; public image, 232, 250-1; 'reactionary philistines,' 250; reformers, 71-80, 203, 298, 322-324, 326, 337; regional balance in, 67, 138, 167, 203, 240, 258, 268, 285, 310, 318, 323; relations with constituents, 309, 315, 319, 337-8; relations with Caesar Wright, 228-32; self-sustaining, 138; solicitors as minority, 138, 302; standing committees, 1391-41, 268; 'thirty tyrants,' 231; vacancies, 138-139, 240,

285; wine cellar, 309, 338; women benchers, 203, 240, 302, 319-20, 323, 338. See also Law Society of Upper Canada Convocation Hall, 143, 143, 169, 2 11, 330, 334; as classroom, 143, 227; call to the bar in, 237; 'great nights,' 224; lunchroom, 211, 280; stained-glass windows, 281, 288, 289 Convocation Room, 119, 192, 330 Cooper, George, 93-94 Copeland, Paul, 335 Cornwall, Ont., 48, 50, 105, 199, 301 Corry, Alex, 259, 261 County and District Law Presidents' Association, 310,321 Court of Appeal, 237 court of Chancery, 35-6, 39, 51, 107, 110; as commercial court, 110; introduces 'counsel' and 'solicitor,' 110; jurisdiction, 111; leaves and returns to Toronto, 99; subtleties of, 110 Court of Common Pleas, 22, 23, 24, 26, 35, 107 Court of Error and Appeal, 107 Court of King's/Queen's Bench, 21, 22, 24, 35, 45, 48, 50, 53, 86, 99, 107, 156; Barristers' Roll of, 46, 70; judges of visitors of LSUC, 27, 33, 46, 87, 284 court-houses: at Gore Bay, 156; at Peterborough, 156; at York, 68; in Ontario, 48-9, 107 courts: county, 123; district, 107; 'long vacation,' 130; reform of, 106, 108 Crawford, John W, 124 Crawford, Purdy, 124 Crawford and Hagerty, law firm, 124 Creelman, Adam, 154 criminal law, 37, 199

385

Crooks, Adam, 131-132, 137 Crosbie, Donald, 338 Crown attorneys, 108 Cumberland, Frederick, 121 Cumberland and Storm, architects, 121, 130, 286 Curtis, Carole, 320, 335 Dalhousie University Law School, 165, 213, 215 Davis, DelosRogest, 177-179, 179, 200 Davis, Frederick, 179 Davis, Lionel, 179 Day, James 'Jimmy,' 156 Day, Wilson, law firm, 149, 156,311-12 Denison, Shirley, 212, 216, 221, 228, 230, 232, 257; bequest for indigent lawyers, 246 Depression, 196, 207-11, 293 Detroit, 18, 19, 57 Dewar, Archibald, 328 Dey, Peter, 312 Dick, Evelyn, trial of, 240 Dick, Rendell, 299 Dickens, Charles, 110 Dickson, William, 52, 56 Dickson, Sachs, Appell & Beaman, law firm, 319 Donald, Duncan, 184, 189 Doran, Burke, 326-328 Downes, George, 160 Doyle, James, 70 Draper, William Henry, 71, 84, 86, 114 Drew, George, 230 Dubin, Charles, 252, 322 duelling by lawyers, 52-3 Duff, Lyman Poore, 159, 224 Dundas, Ont., 154 Durand, Charles: as law student, 89-91; convicted of treason, 98; law practice of, 106, 123, 125 Durham, Lord, 71, 76 Eagleson, Alan, 329 Eakins, George, 139, 174 Easter term, 46, 90 Eaton, Timothy, 153 Eberts, Mary, 319

386

Edmonton, Alta, 160 Edwards, Stanley, 231 Elgin, Earl of, 119 Elizabeth II, Queen, 287 Elliot, Beverley Tete,' 198 Elliott, Susan, 338 Elliott, William, 91, 114 Elmsley, John, 27, 29, 30, 44, 45, 81 Epstein, Annie, 202 equity law, 35-36, 51, 110-111. See also court of Chancery Esten, James, 140, 140 Estey, Willard, 245, 252, 254-255, 316 Evans, David, 243 Ewart, John, 82, 82, 84, 101 Ewart, John Skirving, 159, 162 Falconbridge, Glenholme, 191 Falconbridge, John, 213-222, 213, 230 Falconbridge, Moss, Aylesworth, law firm, 197 Falconbridge on Mortgages, 225 'family compact,' 48, 71 Farb, Isadore, 318 Fasken, David, 155 Fasken, Calvin, law firm, 310 Fasken, Campbell, Godfrey, law firm, 265, 310-311 Faskens, law firm, 155, 179, 322 Fearne, manuscripts of, 118-119 Federal Building, Toronto, law firms in, 200-201 Federation of Law Societies, 205, 260 .Feinstein,Abe, 321 Fenneil, Stanley, 199, 286, 301 Ferguson, John, 160 Ferrier, Lee, 328 fieri facias ('fi fa'), writs of, 50-1 Finiayson, George, 292, 295-296, 307,316 Firm, The (Grisham), 318-19 Firth, William, 51-4, 59 Flavelle, Joseph, 153-154 Ford Foundation, 289 Foster, Harold, 194

France, 14, 18 Fraser and Beatty, 125, 264 French, Stephen, 300 Friedland, Martin, 262 Furlong, Patrick, 310 Gale, George, 287 Gamble, Clarke, 126, 145 Gardiner, Frederick, 273 Garrow, David, 37 Geller, John, 267 Genest, Pierre, 305, 316 gentility, gentlemanly status: and employment, 145-6; exams as proof of, 89; gendered nature of, 43-44, 181; in Upper Canada, 43-44; liberal education and, 89; of English barristers, 41-2, 129; sociology of, 44. See also professionalism Glanvil's Treatise, 35 Glass, David, 159 Glengarry County, Ont., 54, 105 Glorious Revolution (1688), 38 Goderich, Ont., 118, 125, 157, 162 Godfrey, John, Jr, 198, 265 Godfrey, John, Sr, 208 Gooderham, George, 155 Gooderham and Worts, 155 Goodman, David, 208 Goodman, Edward, 208 Goodman and Goodman, law firm, 208, 267 Gordon, Alice, 221 Gordon, Robert, 317-18 Gordon, Walter Lockhart, 189-90 Gore, Francis, 54, 59-60 Gore Bay, Ont., 156 Gorham, Thomas, 164 Goudge, Stephen, 335-336 Gourlay, Robert, 73 Graham, Howard, 208, 225 Grand Trunk Railway, 124-5 Grange, The, 61 Grant, George Munro, 168 Gray, John Hamilton, 129-130 Gray, Robert Isaac Dey, 13, 14,

30,31,33,45-7,49,52,54;

Index

background, 30; death, 33, 53; personality, 34; report on Law Society Act, 30-31; role in founding LSUC, 32; solicitor general, 31-32 Gray, W Gibson, 224, 227, 289, 300 Gray's Inn, 40 Graydon, Allan, 207 Great Western Railway, 145 Grisham, John, 318-19 Grossman, Helen, 214 Gruson, Murray, 270 Gruson Fund, 271 Guarantee Act (1849), 124 Guelph, Ont., 156-157 Guthrie family, 157 Gwynne, John Wellington, 91, 93, 128 Gwynne, Hugh Nelson, 113, 117, 128, 140; personality, 113; 'plucking' students, 113-14 Gzowski, Casimir, 125 Hagerman, Christopher, 14,

48, 56, 60, 62-64, 71, 74, 84, 90, 98, 105, 120 Hagerman, Nicholas, 14, 56 Hagerty, John Hawkins, 112, 124 Haines, Edson, 245, 261 Hall, Robert, 163 Hamel, Theophile, 72, 119 Hamilton, John Cleland, 174 Hamilton, Robert, 22, 23, 24 Hamilton, William, and Son, 130 Hamilton, Ont., 145, 202, 296 Hamilton Law Association, 139, 148 Hampton, Howard, 325 Hands, J. Baldwin, 168 Harcourt, Frederick, 204, 206 Harrison, Robert, 191 Harvard Law School, 164, 171, 200, 213 Hatt, John Ogilvie, 112 Heeney, Arthur, 287 Hellmuth, Isadore, 179 Henderson, Gordon E, 279 Herman, Carl, 270 Hilary term, 83 Index

Hill, Thomas, and family, 83 Holden, Day, Wilson, law firm, 312 Holden, Murdoch, law firm, 312 Holland, Richard Lee, 113 Holman, Charles, 118 Honsberger, John, 274, 288 Horn, Kahntineta, 268 Home, Cleeve, 232 Hoskin,John, 154, 182, 192 Howard, John, 100 Howland, William, 217, 224, 252, 279, 301-2, 305 Hoyies, Newman 'Daddy,' 170-171, 171, 174-175, 191, 202, 212-13 Huckle, Eileen Major, 205, 211, 279 Hudson's Bay Company, 158 Hyndman, Margaret, 197, 202-3, 214 Inner Temple, 40 Inns of Court, 14, 20, 27, 28,

29,48,53-54, .61, 70,81,

120; decay of, 34^5, 128; professionalism and, 151-2 Ireland, 72 Ironside, Erel, 208 Irving, Aemilius, 137, 142, 145, 145, 161, 174, 204, 240; as aged treasurer, 184-185; background and career, 145; joins Great Western Railway, 145 Irving, Paulus, 159 Isaacs, Rufus, Lord Reading, 206 Jabour, Donald, 316 Jabour case, 316 Jameson, Anna, 99 Jameson, Robert Sympson, 96, 00 Jy Jamieson, Park, 231, 251-254, 257, 262; background and personality, 240 Jarvis, Kenneth, 280, 286, 288, 293-294, 295, 296-298, 302, 305 Jewish lawyers, 179-180, 200, 286 Johnston, George, 195, 208, 280

Jones, Charles, 63-64 Jones, Jonas, 56, 60, 62-64 Jubilee, Ont., 157 Judicature Act (1794), 21, 22, 23, 24 Judicial Committee of the Privy Council, 161, 179, 182, 223; appeals abolished, 232, 252. See also Privy Council Juvenile Advocates' Society,

91, 115, 167

Kemptville, Ont., 159, 199 Kennedy, W.P.M., 216, 229, 252 Kensington People and the Law, 290 Kent County Law Association, 315 Kerr,J.K., 183 Kincardine, Ont., 160 King, John, 170 King, Oscar, 179 King, Samuel, 179 King, William Lyon Mackenzie, 170, 305 King's College (Ontario), 78, 99, 114-116 King's College (Nova Scotia) law school, 165 Kingston, Ont., 48, 56, 90, 91, 114,338 Kinnear, Helen, 202, 202-203 Kiteley, Frances, 320-211, 334, 334-6 Lamek, Paul, 326-329 Landreville, Leo, 273 Lane, Henry Bowyer, 100-101, 119, 121 Lang, Michener, law firm, 326-328 Langdell, Christopher, 164—165 Lapointe, Ernest, 222, 224 Lash, Zebulon Aiton, 153, 153-154 Lash, Johnson, law firm, 327 Laskin,Bora, 200, 200, 231 Laval University Law School, 165 Law, John, 91 Law Associations, 139-40,

387

148, 176, 258, 302, 310, 315; and tariffs, 148,315; influence on convocation, 203. See also County and District Law Presidents' Association law clerks, 265. See also articles Law Foundation of Ontario,

278

law libraries, 68, 139, 263, 280. See ako: Osgoode Hall, Phillips-Stewart, universities law reporting, 67-68, 105, 140, 246-7; on-line, 296 law school. See: Osgoode Hall Law School, legal education, law students, universities Law Society (England), 39, 40, 249 Law Society acts and amendments: of 1797, 15, 26-28, 42, 47, 87, 91, 339; of 1822, 34, 62, 67, 87, 127; of 1896, 142; of 1912, 283; of 1944, 246; of 1970, 45, 283-6 Law Society Council, 285 Law Society of Ontario, 340 Law Society of Upper Canada (LSUC): accounts and debts of, 83-84, 96-97, 99, 258; adopts Canon of Ethics, 206; annual general meeting, 45, 285; archives, 288; arrears of fees, 208-9; as an Inn of Court, 34, 42, 70; as channel for dissent, 76; as organization of rules, 43—45; audits members, 209-10, 236, 239, 271-2, 276, 333; benchers - see convocation; benevolent fund, 246; bonds and debentures, 84, 99, 102, 121; centenaries, 175, 204; chief executive officer, 338; child refugees sponsored, 226; collects memorabilia, 119; compensation fund, 239, 248-50, 303; compensation fund crisis, 269-74, 276; compensation fund levy,

388

249, 271, 295, 303; complaints about fees, 258; complaints committee, 324; controls advertising, 273, 316-17; conveyancers and, 148; conveys part of Osgoode Hall to Crown, 140; departments of, 274; deputy secretary, 246, 248, 276, 280; dinners and ceremonies, 119, 120,122, 142, 189; disciplinary sanctions, 300-2; discipline and disbarment, 61, 70, 125-6,

149-151, 209, 246-247;

discipline committee, 150, 193, 206-207, 209, 300-302, 323-324;discipline crisis, 326-329; discipline powers contested, 248, 300; donations to war effort, 190; dues and fees, 55, 85, 144, 239, 248-249, 258, 295, 326; economy, committee of, 92-95; educational requirements, 60, 149, 218; equity issues, 320, 322; errors and omissions crisis, 329-34, 329; errors and omissions insurance, 278, 303-5, 313, 325; errors and omission premiums, 279, 295, 304-5, 325, 330-3; ethical offensive, and growth of, 272-4; founding of, 13-17, 19, 25; French- language services, 320; Gazette, 274, 294; gender issues studied, 320-1; grants wartime exemptions, 190-194, 225; histories of, 175, 204-205; incorporation, 62-64; international accreditation, 260-1; interprovincial transfers, 260-261; legal honours and, 120; liability insurance - see errors and omissions; management systems at, 295-296, 298-300, 325-6, 333, 338-9; meets in parliament buildings, 99; membership, 17,60, 85, 298, 306; mission

statement, 337; 'Muniments and Memorabilia,' 288; name preserved, 98, 130, 339-340; new programs, 239, 294; non-discrimination rule, 268; patrician authority of, 221-222; petitions Inns of Court, 128-9; portraitpainting tradition, 119; postwar transformation, 238; powers of, 15-17,63, 231-2, 338-240; practice advice, 304; professional conduct rules, 272, 290; progressive era, 210; property acquisition, 61-4; public relations, 229, 245, 329; racism, 177—8; reasons for foundation, 28-31, 34; reciprocity with other jurisdictions, 127-30, 161, 260—261; relations with other law societies, 160-1; requires trust accounts, 210; response to Depression, 210-211; returns to Osgoode Hall, 100; rolls of, 69-70; rules, 45-46, 69, 152; secretary, 83, 94, 113, 118, 140, 151, 184, 189-190, 205, 211, 225, 241-3, 244, 278, 280, 286, 296-9; special committee on legal education,

220-2,230-1,251-2,

257-8; sponsors public forums, 246; staff, 211, 239, 274, 279, 295, 325-326; terminology, 27, 160; Transitions report, 319-321 ; treasurers' role, 15, 51, 112, 204, 279-80, 302; unauthorized practice, 247, 317; under-treasurer, 299, 305, 338; unprecedented creation, 27; warranty against dishonesty, 249, 333; warranty against incompetence, 333. See also convocation law students: at Osgoode Hall, 88, 93-6; certificate of admission, 90, 118; cheating, 168;

examinations, 88-92, 116; fees paid by, 144, 174-175, 219; Junior, Senior, Optimes classes (1832), 91; in early, twentieth century, 217-22; in late nineteenth century, 162-175; in late twentieth century, 306-307; in midnineteenth century, 113-115; office work by, 86, 90, 162-164, 169, 218, 221, 228, 265; recruiting of, 265, 311; revolt against tradition, 263; self-educated, 162-164; term keeping, 89, 91, 109, 116-117; University Class, 115; university graduates among, 219; women as, 144, 174, 184, 214, 307. See also: legal education, universities, Trinity Class, Juvenile Advocates' Society, Osgoode Club, Osgoode Hall Law School, Osgoode Hall Legal and Literary Society Law Times, 167, 170 Law Union of Ontario, 293 lawmobile, 283 Lawson, Andrew, 276, 296 'Lawyer Coutts,' 157 lawyers: 'abolish privileges of,' 108; aboriginal, 268; agency system and, 50; ambulance chasing by, 206; Anglo-Irish among, 106, 176; antiSemitism and, 180, 200-201, 286; as prisoners of war, 225; benevolent foundation for, 246; billable hours of, 312; black, 177-179, 268; boutique firms and, 313; ceremonials of, 118-121 ; class, race, and gender of, 14, 28-30, 41-44, 89, 92-93, 106-107, 113-114, 138,152, 156-158, 162, 171-184, 196, 199-203, 214-215, 221, 261, 267-269, 306-307, 314, 319-321; competition and, 306-7, 314-315, 317; contingency fees and, 316-317; corporate clients and, 104, 124, Index

153-156, 198-199, 206, 264, 310; courtroom practice and, 104, 110; credentials, 19, 27; defence counsel, 37, 53, 154, 199, 269, 313; 'digger lawyers,' 309; distribution of, in Upper Canada, 50; division of, within profession, 62, 86-7; duelling by, 52-53; 'dumptrucks,' 313; employee lawyers, 145, 308, 312-313; English, 106, 176; ethical norms of, 150-151, 206-207, 248, 300, 312-318, 321, 327, 339; family law, 3 14, 334; farmers' sons as, 107, 156; financial accounts of, 209-10, 236, 239, 271-2, 276, 333; firm management and, 264-6, 304; firm culture and, 312; firms' rise and fall and, 197, 311-312; francophone, 176, 199, 305; gay, 51; German, 176; gowns of, 151; 'heavendescended,' 47; immigrant, 200,260; in fiction, 157, 174, 318-319; in international firms, 267, 311; in large firms, 266-267, 310-313, 327-329; in Parliament, 108, 161; in regional centres, 157-8; income' tax, 266, 293; incomes of, 196, 207-8, 238, 317, 332, 338; incorporation by, 316; independence of, 77; indigent, 208-9, 246; Jewish, 179-180, 200, 206, 267-268; labour law, 266; lay conveyancers and, 103, 119, 147-148; legal aid, 313, 334-6; liability insurance and, 278-9; licensed by lieutenant-governors, 19, 24; local government and, 108; Main Street, 314, 317; marketing by, 311, 316-317 ; middle-class status of, 196; military service of, 55-6, 189-94, 224-6; minorities

as, 175-184, 199-203, 247, 268; move into rural Ontario, 147-8; move to Klondike during gold rush, 160; move to northern Ontario, 161; move to Toronto, 156; move west, 158-161 ; national law firms and, 161, 311; Native land title and, 103; nicknamed 'Necessity,' 201; numbers of, 103, 109-110, 147-148, 171, 196, 237-238, 268, 306; numbers crisis and, 305-308, 314-315; office technology and, 197, 264-5; offices of, 149, 197, 207, 232, 264-265, 314; partnerships among, 124, 232, 310-312; postwar prospects of, 226-7, 237-8; practitioner-scholars among, 162, 247; Protestant, 18, 72, 79, 103, 106, 176, 183, 199, 205; racism and, 177, 205-206, 268; radical, 247, 293; railways and, 111, 123-124, 150; real estate, 156, 195, 199; Rebellion of 183 7 and, 97-8; regulatory law, 266; Roman Catholic, 18, 176, 199; self-government by, 15-19, 25-32, 34, 40, 42, 53-54, 70, 76-79, 146-152, 177-8, 231-2, 284-6, 290-294, 315-318, 339-3.40; self-image of, 110; schoolteachers become, 156, 177; Scottish, 106, 176; small town, 15 7-158, 172, 199, 264; social activist, 292, 314; social origins of, in nineteenth century, 106-107; specialization and, 105, 201-202, 266-267, 313; survey of, as profession, 232; thefts by, 269-271, 301, 303; travel essential to, 105, 123; trust accounts and, 272, 277-8; Upper Canada's ability to support, 24; wartime deaths of, 191-193, 224-226; women

389

as, 176, 180-4, 199, 201-3, 221,306-7,314; Vetting robes' ritual for, 118. See also: barristers, solicitors, attorneys, gentility, professionalism, pettifoggery Lawyers' Club, 206, 215, 229, 267-8 Lawyers' Professional Indemnity Corporation, 305,325,331-3 Lazier, Harold, 225 Leal, Allan, 227, 255, 256, 259, 263-4; background, 255-6 LeDain, Gerald, 290 Lefroy, Augustus, 162 legal aid, 210, 226, 229, 243, 296; budget, 334-5; clinics, 275, 289-91, 325; crisis, 277, 3 13, 334-6; joint committee on, 274—5; judicare model, 275, 3 14, 335; Legal Aid on Trial, 325; legal aid bar, 313; LSUC control of, 244, 275, 291-4, 303, 325, 336; 'Memorandum of Understanding' (1994), 335-6; panels, 245, 275; plan of 1950, 241-5, 313; plan of 1966-7, 274-7,313; public defenders, 275, 293, 314; public funding for, 276-7, 292-3, 303, 325, 334-6; to soldiers, 241-2 legal education: as self-education, 117, 162-4; attitudes to, 88, 11 7, 2 11-22; bar admission course, 259-60, 296; case-study method, 165, 170, 216; classical basis of, 60, 89, 113; continuing, 226-7, 245, 333; crisis of 1949, 230-2, 250; debate over, 2 11-22, 227-32, 250—64; examinations fundamental to, 116-17; exemptions for university graduates, 106; for attorneys, 109; in other provinces, 165-6; LSUC changes course on, 25 1 ; March lecture series, 245;

390

postwar refresher course, 226-7; settlement of 1957, 258-9. See also: law students, Osgoode Hall Law School, universities legal texts, 113-14, 163-4, 225 Legge, Laura, 302-3, 304 Lennox, Lillian, 280 Lennox, Margaret, 280 Lerner, Mayer, 201 Lemer, Samuel, 201, 296 Lesslie, James, 82 Lesslie's stationers, 84 Levinter, Isadore, 201, 267, 286 Levitt, Brian, 312 Lewis, Wyndham, 224 Lickers, Norman, 268 Lincoln's Inn, 20, 21, 40, 41, 128 Linden, Allen, 262 Lindsay, Ont., 162-3 Lives of the Judges (D.B. Read), 175 Locke, John, 39 Logie, W.A., 202 London, Ont., 195,201,329 Lot (Queen) Street, Toronto, 81 Lower Canada, 19-21. See also Quebec Loyalists, 18, 28 LSUC. See Law Society of Upper Canada Lucknow, Ont., 157 Ludlow, George, 28 Ludwig, Michael H., 180, 204 Lund, T.G., 249 Luxenberg, Benjamin, 180, 201 Lyon, Robert, 106 Macaulay, James Buchanan, 56,71,73,103,112 McCarthy, D' Alton, 143, 150, 154, 183, 192, 223 McCarthy, D' Alton Lally, 174, 222-5, 223, 232, 237-8; career and personality, 222-4, 226 McCarthy, Frank, 226 McCarthy and McCarthy, law

firm, 154-5, 198,221,223, 226, 264, 266, 295 McCarthy and Osier, law firm, 138, 155, 184, 198 McCarthy, Tetrault, law firm, 311 McCormack, Rosemary, 296 Macdonald, John A., Ill, 130; bencher, 113; law student, 90-1; politician, 121, 154, 161 Macdonald, John Sandfield, 132 McDonald family, 157 Macdonell, Angus , 14, 18, 51, 53 Macdonell, John (d. 1812), 48, 52, 54-7, 59 Maedonell, John (fl. 1884), 150 McDougall, Joseph, 168 McGee, D'Arcy, 126 McGill University Law School, 165 McGregor, Patrick, 90-1, 118 McGregor, Walter, 224 McKay, W.L., 150 Mackenzie, Alexander (lawyer), 160 Mackenzie, Alexander (politician), 141 McKenzie, Walter, 95 Mackenzie, William (entrepreneur), 153 Mackenzie, William Lyon, 48, 73-5, 97, 106 Mackenzie and Mann (entrepreneurs), 153 McKim Advertising, 245 McKinnon, Colin, 335 Mackintosh, W.A., 258, 261 McLaughlin, Hugh, 164 McLaughlin, Robert, 162-4, 167, 170, 201 McLaughlin, Macaulay, law firm, 164,201,228 McLean, Allan, 14, 56 McMillan, Binch, law firm, 198,264,311 McMurtry, Roy, 256, 291-2, 292 MacNab, Allan, 98, 120, 124 MacRae, Donald, 213 Index

MacRae, Marion, 121—2 McRuer, James Chalmers, 237, 284; Report on Civil Rights, 283-4 McSneyd, John, 162 Magna Carta, 35 Maitland, Peregrine, 78 Maloney, Arthur, 199, 301 Manitoba: judicial institutions in, 158-9; Law Reports, 159; Law Society of, 159; Schools Case, 162 Mann, Donald, 153 Mansfield, Lord, 41 Martin, Clara Brett, 176, 181-4, 181, 202-3, 268 Martin, G. Arthur, 252, 276, 286 Martin, Paul, Sr, 307 Mason, Gershom, 221 -S, 232, 239-40, 252 Mason, Foulds, law firm, 217, 227, 230, 267 Massachusetts, 28 Massey, Hart, 153 Massey-Ferguson, 267 Massey-Harris, 160 Matthews, Beverley, 198, 225, 265 Mehr, Samuel, 248 Melnitzer, Julius, 329 Mercer, Andrew, 5 1 Mercer, Malcolm, 189, 191 Meredith, William, 183, 195 Metis resistance in the NorthWest, 158 Meyer, Hoppner, 57, 69 Michaelmas term, 45, 97, 106 Michilimackinac, 18 Middle Temple, 40, 41, 56, 70 Middlebro,' William, 226 Millar, Alexander, Tokiwa, Isaacs, law firm, 268 Mills, David, 162 Mockridge, Hal, 265 Molloy, John, 113 Montreal, 13, 19,32,311 Morlock, Forbes, 227 Morrice, James Wilson, 174 Morris, Alexander, 158 Morton, Desmond, 255, 255 Moss, Charles, Jr, 191-2 Moss, Charles, Sr, 191

Index

Moss, Thomas, 191 Moss, Hoyles & Aylesworth, law firm, 138, 171,191 Mowat, Oliver, 110, 126, 138, 138, 141-2, 144, 148; campaign for provincial rights, 138, 161-2; women lawyers and, 182-3 Mulock, William, 183 Munro, Alice, 157 Native Canadian legal institutions, 17 Nesbitt, Wallace, 207, 222 New Brunswick, 13, 14, 48; Barrister's Society, 152; legal institutions of, 28-9 New France, 18 New South Wales, 30 New York, 28 Newark (Niagara-on-the Lake),Ont., 13, 15, 17, 18, 33, 45, 52, 340 Newcastle, Ont., 53 Newton, Elizabeth, 203 Niagara, Ont., 48, 224 Norman, Peter, 279, 303 North-West Territories, 158-9 Nova Scotia: Barristers' Society, 152; lawyers from, 129, 161; Revised Statutes, 129 Obiter Dicta, student newspaper, 214, 214; views women as 'Portias,' 214 O'Brien, Brendan, 252, 277-9 Ogden, Isaac, 32 Ogetonicut, 53 Okuloski and Okuloski, law firm, 268 Ontario, 15, 17, 18, 19, 111, 130; legislature, 131-3, 149, 177-8, 195; Native land title and treaties, 103; social and economic development of, 87, 102-4, 153, 155-6, 158, 195, 238. See also: Upper Canada, Canada West Ontario Bar Association, 205 Ontario Insurance Commission, 33 1

Ontario Law Reform Commission, 263 Ontario Reports, 68, 156, 225, 246-7 Ontario Securities Commission, 208 Orange Order, 106, 123, 199 Orangeville, Ont., 150, 243 Ordinance of 1785 (Quebec), 18-19, 25, 28 Osgoode, William, 20-7, 38, 42, 58-9, 75; background and personality, 2 1 ; later career, 23—4; shapes Upper Canadian legal institutions, 20-3 Osgoode Club, 115, 117 Osgoode Hall, 48, 6 1,65, 71, 101, 121, 156; acquisition of, 78-82; architectural beauty of, 121-2; as antidote to pettifoggery, 85, 96; as Inn of Court, 101; as legal fraternity and men's club, 144; as military barracks, 97, 100; as site of law school, 169; as student residence, 92-6, 99, 102, 115; 'Baldwin range,' 83, 88, 101, 121; benchers' entrance, 233; Canadian Officer Training Corps of, 224; caretaker's cottage at, 211-12; construction of (1828-32), 82-3; courts in, 84, 101; 'cow gates' of, 131, 287; Crown investment in, 101, 121; declared permanent seat of LSUC, 84; expansions of, 100,

121-2,211,257-8,262;

fence at, 130, 287-8; first convocation, 83; food at, 93-4, 143, 280; heating costs of, 102, 110; illuminated, 122; in art and literature, 174; landscaping of, 131; male environment of, 123, 181; office tower at, 286; reconstructed by Lane (1844-6), 100; reconstructed (1860), 121; renovated (1970), 286;

391

royal visitors to, 122, 193, 287, 322; site of, 80-2; smoking room in, 144; 'swarming with bugs,' 100; sale of proposed, 84, 100; Six Nations' funds invested in, 102; telephone service at, 143; war memorials at, 226-7, 232; wartime conditions at, 224 Osgoode Hall Great Library,

38,93,99,118,121-2,170,

280, 297; books abstracted from, 1 70; computerization at, 296; Riddell Canadiana Collection, 205; unavailable to country lawyers, 139 Osgoode Hall Law School: class barriers at, 171, 174; crisis of 1949, 230-2, 250; crowded classes, 194, 257; demands for, 164-8; diverges from North American norm, 212-13; early years, 173-5; enrolment, 170-1, 227, 254, 257, 262; faculty, 116,

170-1, 174-5, 191, 202, 212-22, 228-32, 240, 252,

255-6; football teams, 173; founded, 168—70; four-year program, 252; hockey teams, 173, 256; leaves Osgoode Hall, 239; lecture program (1861), 116-17, (1872-86), 127; 'Legalites' (sports team), 173; medals, 164,167,180,195,211, 241,267, 273; name of, 213; name transferred to York University, 263, 290; no quotas at, 200; 'no system, no curriculum,' 255; postgraduate scholarships, 262; 'Readers,' 116; royal visitors to, 122, 193, 224, 287, 322; school spirit, 172, 174, 256; settlement of 1957, 258-60; social activities, 172-4, 214; sports at, 173-4, 214; summer sessions, 194, 225; threeyear program, 262; 'trade

392

school,' 229, 253; transferred to York University, 262-3; veterans at, 194, 228; women at, 174, 214. See also: legal education, universities, York University Osgoode Hall Legal and Literary Society, 167, 172, 172, 174, 214 Osgoode Hall Rifle Association, 190-1 Osgoode Hall: Reminiscences of the Bench and Bar (Hamilton), 174 Osier, Britton Bath, 43, 154, 183, 204 Osier, Edmund, 154 Osier, Fetherston, Jr, 191, 204, 206 Osier, Fetherston, Sr, 103 Osier, H.S., 206 Osier, John, 290-1 Osier family, 103 Osier, Hoskin & Harcourt, law firm, 154-5, 198, 204,

206-7, 264, 266-7, 290, 293,312

Osier, Renault, law firm, 311 Ottawa, 157, 176,323 Otter Creek, Ont, 104 Oxford, U.K., 40, 237 Page and Steele, architects, 286 Palen, Helen, 240 Palmer, James Bardin, 77 Palmer, William Laird, 120 paralegal services, 317 Parkdale Legal Clinic, 289, 291 Parsons, Vera, 202-3 Pattiilo, Arthur, 278 Peat, Marwick Ltd, management consultants, 298-9, 303 Pellatt, Henry, 197 Pepper, Barry, 244, 287, 298, 304 'persons' case, 181-2 pettifoggery, 85-8, 110 Pew, Edmond, 224-5 Phelan, Thomas, 195

Phillips-Stewart, Thomas, 1 70 Phillips-Stewart Library, 1 70, 262, 262 Pilzmaker, Martin, 327 Points, paralegal service, 317 Ponton, William, 205 poverty law, 289-90 Powell, William, Jr, 14 Powell, William Dummer, 14,

26,54,57-8,118

Powley, Eva Maude, 184 Prest, Wilfrid, 40 Price, William, 200 Prince Edward Island, 77, 166 Prince of Wales: Charles, 322, 322; future Edward VII, 122; future Edward VIII, 193 Privy Council (London), 16, 27, 34, 53 professionalism: business and, 207, 318; 'communities of competence,' 146; 'communities of self- interest,' 146; conduct codes and, 206, 209, 272-3; discipline committee and, 150; Georgian,

43, 147, 151, 182;LSUC

fits awkwardly, 147; LSUC pre-adapted to, 152; modern, 147, 151-2; redefined in nineteenth century,

44-5, 125-6, 144-9, 151;

sociology of, 146—7; tariffs and, 149; women and, 182. See also gentility Pue, W Wesley, 206 Putnam, James, 28 quarter sessions, 22, 104 Quebec (colony and province), 18, 21, 28; Barreau de Quebec, 152; civil law of, 19, 16. See also Lower Canada Quebec City, 18 Queen Street, 287-8 Queen's University (Kingston), 258, 296; Law School, 168, 261; founded as Queen's College, 114 Queen's/King's Counsel, 56,

120,132,151,161,300

Index

Queenston Heights, battle of, 56-7 Quinte district, Ont., 48 Randal affair, 73 Rat Portage (Kenora), Ont., 160 Raymond, W.B., 208 Raymond and Honsberger, law firm, 208 Read, David Breakenridge, 112,175 Read, John, 217 Reading Law Club, 206, 268 Real Estate Lawyers' Association, 338 Rebellions of 1837, 76-7,97 Reeve, William A., 170 Reid, James, 94-5 Reid, Robert R, 227-8, 248, 254, 257, 275 Richards, Albert R, 159 Richards, Albert Norton, 141, 158-9 Richards, Stephen, 141,159 Richards, William Buell, 141, 161 Richards family, 141 Riddell, William Renwick, 148, 155, 204, 205, 280 Ridout, George, 56, 60, 69, 72,

77, 79, 83-4, 87-8, 97

Riel, Louis, 154, 158, 190 right to counsel, 58, 107 rights of Englishmen, 38, 73 Ritchey, John, 83 Ritchie, C.H., 180 Riverdale Legal Clinic, 290 Robarts, John, 283 Roberts, Richard, 260 Robertson, Robert S., 217, 222, 232 Robinette, John Josiah, 205, 214, 223, 236, 247, 257, 269, 277; career, 240-1; compensation fund, 249, 270 Robinette, Thomas Cowper,

151,199,199,240

Robins, Sydney, 252, 267, 269, 286-7 Robinson, Christopher, 14, 15,

48

Index

Robinson, John Beverley, 14,

33, 57, 61, 62, 79, 84, 85, 96,98,101,111,162;

Berthon portrait, 119, 297; constitutional views, 72—6; leader of conservative benchers, 71-80; letter to the bar, 74-6; offices held, 57, 71, 76; personality, 71, 85 Rock, Allan, 322, 329 Roe, Walter, 19, 33 Rolph, John, 72, 77, 88 Ross, Murray, 263 Roubel, William, 77 Rowell, Newton, 192-3, 206,

210

Rowell, Reid, law firm, 197-8,

217,222

Royal York Hotel, accord at, 258, 260 Ruby, Clayton, 309, 326 Rules of the Law Society of Upper Canada (1833), 69-70 Russell, Peter, 15, 26, 27 Russell Abbey, 67, 88 Rutherford, Alexander, 159-60 St Catharines, Ont., 298 St Park's Da? (Torgov), 318 Saint John, N.B., 28; law school at, 165 Samson, James Hunter, 86, 90, 105 Sandwich (Windsor), Ont., 33,49 Sarnia, Ont., 240 Saskatchewan, 293 Saskatoon, Sask., 160 Scace, Arthur, 3 15-16 Schaeffer, Roy, 288 Scott, David, 328 Scott, Ian, 328 Scott, Thomas, 51, 58, 52 Scott family, Ottawa, 157 Sedgwick, Joseph, 196, 269 Sedition Act (1804), 73 Shaffer, Bernard, 201 Shepley, George Ferguson, 183 Sherriff, Stephen, 326 Sherwood, Henry, 120

Sherwood, Levius Peters, 56, 60,99 Simcoe, John Graves, 15, 19, 22-8, 32, 47, 57, 59, 75; ambitions, 19, 102; departure, 25 Sinclair, J.S., 118 Six Nations, 102, 268 Small, Elizabeth, 52 Small, James, 72 Small, John, 52 Smalley-Baker, Charles Ernest, 252-6, 255, 256, 259 Smith, Adam, 39 Smith, F.E., 193 Smith, Goldwin Larrett, 224 Smith, Sydney, 213, 230-2, 253, 256 Smith, W Earl, 211,225, 241-2, 243, 244, 248, 274, 276, 280, 280, 286, 294 Smith, William Larrett, 114, 198 Smith, Lyons, law firm, 266 Smith, Rae, Greer, law firm, 198, 201 Smout, David, 255, 255 Society of Gentlemen Practisers (England), 27 solicitors, 125, 302. See also: lawyers, barristers, attorneys Sopha, Elmer, 257 Spadina House, 61 Speedy, sinking of, 53, 54 Spence, Donald, 255, 255 Spence, James, 322, 322 Spragge, John Godfrey, 100 Staats, Howard, 268 Stager, David, 307-8 state activism in law, rise of, 195-6 Stikeman, Heward, 245 Storm, William, 121 Story, Joseph, 164 Strachan, John, 57; on lawyers' role, 78-9 Strachan, John, Jr, 93 Strathroy, Ont., 120 Strauss, Nathan, 188,201, 267, 302, 307 Strosberg, Harvey, 330-3, 330 Stuart, John, 85 Sudbury, Ont., 285, 301

393

Sullivan, Robert Baldwin, 96, 104, 191 Supreme Court of Canada, 91, 159,161,232,268,290,316 Sutherland, Robert (early black lawyer), 177 Sutherland, Robert (Faskens partner), 310 Sutherland, Roseanne, 285 Tait, Regmae, 285, 288 Taylor, Thomas, 60, 68, 88 Taylor, Thomas Wardlaw, 159 Teapot Dome' scandal, 206 ten Broeck, John, 46, 58 Texas Gulf case, 277 Thatcher, Margaret, 304, 305 Thirteen Colonies, 19, 28, 29 Thorn, Stuart, 293-4, 339 Thompson, Timothy, 15, 32 Thompson, Rogers, law firm, 290 Thunder Bay, 201 Tilley, W Norman, 156, 204, 217, 227, 240-1

Tilley, Carson, law firm, 227 Topp, Robert, 301 Torgov, Morley, 318 Toronto, Ont., 44, 154-6, 172 Toronto Daily Star, 246

Toronto Globe, 122-3 Toronto Globe and Mail, 243 Toronto Patriot, 101 Toronto Street Railway, 151 Tory, J.S.D., 198,265 Tory, Jim, 257 Tory, Tory, Binnington, Deslauners, law firm, 322 Transitions in the Ontario Legal Profession, 320-1

Traver, Elliot, 157 treason laws, 57; See also Ancaster, Ont. Treaty of Pans (1763), 18 Trinity Class of LSUC, 92, 115 Trinity College, Dublin, 106, 114 Trinity College, University of Toronto, 127 Trinity term, 13, 130 Trudeau, Pierre Elliott, 277, 313 Tsai, Gerald, 268

394

Tupper, Charles, sons of, 161 Tumbull, J.R., 225 Union of 1841, 98 United States of America, 14, 18; legal institutions of, 25, 28 universities and legal education, 79, 114-15, 117, 127, 164-8, 174-5, 196, 212-13, 229-32, 253-4, 257-8, 260 University of British Columbia Law School, 166 University of Manitoba Law School, 165-6 University of Ottawa Law School, 165, 261 University of Saskatchewan Law School, 255 University of Toronto, 162, 168, 200, 218; committee on legal education, 230, 252; Faculty of Law, 252-4, 260; undergraduate law department, 216, 229, 252 University of Western Ontario Law School, 262 University of Windsor Law School, 262 Upper Canada, 13-14, 17, 20-1, 27, 71-3, 76; Assembly, 15, 23,31-3,47, 53-4, 57; constitution of, 22, 71; Executive Council, 20, 22, 34; Legislative Council, 15, 20,31,47; statutes, 105, 128 Upper Canada College, 105, 114,144 Upper Canada Law journal,

131

Valin, Joseph, 1 76 Vancouver, B.C., 31 1,316 Victoria, B.C., 159 Victoria College, 114 Vittoria, Ont., 104 Walker, David, 217 Walker, Harold, 241 Walkerton, Ont., 177 Wallbridge, Lewis, 159

Wallis, Christopher, 28, 289 war and warfare: War of 1812, 55-9; First World War, 171, 189-94; Second World War, 222-7; Boer War, 193; Rebellions of 1837, 76-7, 97; North- West Rebellion, 190 Ward, James, 129 Ward, Thomas, 32-3, 58, 149 Washburn, Daniel, 61, 70 water rights in nineteenthcentury law, 104 Waterloo County Law Association, 315 Weaver, Mary, 302 Weekes, William, 46, 52 Wegenast, F.W., 217 Wells, William B., 88, 93, 98 Westminster Hall (London), 24,32,39,48,53,175 Williston, Walter, 252 White, John, 25, 29-30, 33, 42, 45-6, 54, 72, 224; at first meeting, 13-16; as founder of LSUC, 25-7; death of, 25,46,52 White, Tom, 211 Wilkinson, Waiter Butler, 46 Willis, John (judge), 73 Willis, John (academic), 231 Willson, John (Assembly member), 63 Wilson, Adam, 116 Wilson, Bertha, 268, 321 Wilson, John (innkeeper), 16 Wilson, John (lawyer), 106—7, 107, 156 Wilson, Percy, 230-1 Wilson's Hotel, 13, 14 Windsor, Ont., 3 10, 330 Winnipeg, Man., 159, 206 Winter Studies and Summer Rambles (Jameson), 99 Winters, Robert, 263 women and the legal profession, 176, 180-4, 199, 201-3, 221, 302, 319; rising numbers of women lawyers, 268-9, 306-7 Women's Law Association of Ontario, 206, 302 Wood, Alexander, 81 Index.

Wood, Edmund Burke, 159 Woodbine race track, Toronto, 224 Woods, John, 46 Workmen's Compensation Act, 195 Workmen's Compensation Board, 195 Worts, James Gooderham, 155 Wright, Cecil Augustus Caesar,' 22 1-2, 231; background and character, 215-16, 231; crisis of 1949, 228-32; dean of law, University of Toronto, 231, 240, 245, 257-8, 261

Yachetti, Roger, 306-8, 323-4, 329 York (Toronto), Upper Canada, 27, 45, 48, 50, 53-4, 57, 81. See also Toronto, Ont. York County Law Association, 140,302,310 York Street, Toronto, 81, 187 York University, 263-4; Osgoode Hall Law School at, 276, 288-90, 298, 339 Yorkville bar, 309 Yukon Territory, 160

EDITORIAL DIRECTION: RAMSAY DERRY DESIGN AND LAYOUT: V. JOHN LEE COMMUNICATION GRAPHICS

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