#89 Rebels with legal causes

Lawyers’ Empire: Legal Professions and Cultural Authority, 1780-1950
by W. Wesley Pue

Vancouver: UBC Press, 2016
$75 / 9780774833097

Reviewed by John McLaren

First published Feb. 17, 2017

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In Lawyers’ Empire (UBC Press), legal historian Wesley Pue of the UBC law school traces the lives and struggles of the leaders and rebels of the legal profession in England, Canada, and Nigeria between the late eighteenth to the mid-twentieth century.

Reviewer John McLaren finds this essential reading for anyone wanting to understand the historical evolution of the legal profession and legal education anywhere in Canada.

Pue devotes a chapter to Gordon Martin, a UBC law student – and Communist — who for his political beliefs was, scandalously, banned from entering the B.C. legal profession in 1948; and in his review, John McLaren references the career of Vancouver lawyer J. Edward Bird, who represented the Sikh community in the Komagata Maru incident of 1914 and defended unionists in the wake of the 1919 Winnipeg General Strike.

McLaren notes that the ruling against Martin by the Law Society of British Columbia “reflects the intellectual isolation and introspective attitudes of a segment of the West Coast Bar.” — Ed.

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Periodically a work of history is published that revolutionizes understandings of an institution and its culture in ways that are likely to be the benchmark for, and guide to, research and scholarship for many years to come – a work that reviews and critiques the existing scholarship and, on the basis of further personal research and both profound theoretical and pragmatic reflection, reconstructs the interpretative framework within which the historical record is viewed.

A fine example of such a book, Dr. W. Wesley Pue’s Lawyers’ Empire seeks to reinterpret the cultures of the legal professions and legal education in England and Canada. Rather than a monograph, this is a collection of essays written and published by Wes Pue over a stellar career as a legal historian and academic lawyer, spanning thirty years of scholarship. As a bonus, a final chapter introduces the reader to lawyers and colonialism in Nigeria.

The essays in Lawyers’ Empire, some previously published but all carefully revised by the author, are arranged sensibly under a series of overarching themes that provides a sense of continuity in the narratives, as well as highlighting the benefits of comparing professional formation in the metropolis, other countries, and in the former British dominions or colonies.

Although only Chapter 10, that deals with the trials and tribulations of Gordon Martin, an avowed Communist aspirant to legal practice in British Columbia in the late 1940s, has its roots in the history of this province, the extensive treatment of cultures of professional formation elsewhere in the work, not least in Prairie Canada, is highly relevant to what occurred in the evolution of lawyers’ self-identification, practice, and ethics west of the Rockies.

Lawyers’ Empire is essential reading for anyone seeking to plumb and make sense of the evolution of legal practice and education in all the Canadian, if not North American, Common Law jurisdictions. The work benefits from clarity of exposition and analysis, as well as the lively and engaging nature of the narrative, especially when the author deals with the few “stormy petrels” who inhabited and “rocked” a somnambulant English Bar in the mid-nineteenth century, and with the architects of Canadian legal professionalism and education in the first third of the twentieth century.

Part One of Lawyers’ Empire, “History in Professional Apologetics,” starts with a brilliant opening chapter, “The Use of History in the Development of Lawyers’ Mythologies.” Dr. Pue, who canvassed all the provincial Canadian law societies to divine how they interpret and publicize the history of the legal profession in their jurisdictions, demonstrates the power of mythology in lawyers’ corporate self-identification.

He notes a general ahistorical propensity among the law societies’ statements to see the modern governance of the Canadian profession as reflecting robust and unbroken strands of administrative self-governance and revealing the exercise of disciplinary and educational authority that reach back into the mists of the history of the English Bar. This blends with the claim that self-governing status reflects a recognition, also of venerable vintage, of the role of common lawyers as agents committed to jealous protection of the subject from the power of the state.

The reality, he argues persuasively, is different. The evidence from the recently-researched history of the English legal profession reveals no such unbroken institutional commitments before the eighteenth century in the case of solicitors, and before the late nineteenth century in the case of barristers. Moreover, even in the context of the Canadian legal profession it was not until the 1920s and 1930s that these elements of self-governance began to gel and be recognized legislatively in any plenary sense.

On the issue of whether lawyers were historically archetypical agents of freedom from oppression, Pue shows in Chapter 2, “How ‘French’ Was the English Bar? Barristers and Political Liberalism in the Eighteenth and Nineteenth Centuries,” a range of highly individualized, even idiosyncratic, initiatives by members of the Bar in eighteenth and nineteenth century England, including Thomas Erskine, William Garrow, and Henry Brougham as leading examples – unlike the corporate initiatives evident, for instance, in the history of the French Bar.

In his third essay, “Law and Colony: Making the Canadian Legal Profession,” Pue demonstrates that in the twentieth century, architects of Canadian professional regulation and education were more interested in promoting gentlemanly attitudes, committing to elitist political, social, and economic agendas, and promoting Imperial values and the value of “Britishness,” than representation of, or — perish the thought – displaying common cause with the marginalized, unpopular, or radical.

In Part Two of this volume, entitled “Shaping Minds and Souls: Legal Education,” Pue demonstrates how difficult it was to move the English Bar, in particular, to recognize the value of academic legal education and anything approaching systematic training for practice during the nineteenth century, when other major reforms of the legal system and its institution were occurring.

Into this climate of lassitude, in which the Inns of Court were little more than gentlemen’s dining clubs, came the controversial figure of Charles Rann Kennedy, brilliant of mind but frustrated in his career at the Bar. Kennedy – the subject of Chapter 4, sought to introduce to the provinces, in this instance the newly established Queen’s College, Birmingham, a program in academic legal education which would prepare intellectually motivated gentlemen of moral rectitude for the advocates’ profession.

With a classroom audience consisting mainly of solicitors’ articling clerks, the experiment was accounted a failure within three years of its launch. Kennedy was replaced and a program of practical legal training substituted, but as we shall see, Kennedy would cast a menacing shadow over the English legal profession for some years to come.

We move back to Canada in Chapter 5, “Common Law Legal Education in the Dominion of Canada’s Moral Project,” in which Pue shows convincingly that the roots of university-based legal education received a decisive boost from the 1910s, in a campaign launched in the West and led by establishment Winnipeg lawyer James Aitkens to embed a system of legal education that stressed similar intellectual, ideological, and moral values to those promoted earlier by Kennedy in Birmingham.

This, it was hoped, would ensure the dominance of Canada’s British heritage and the welfare of the Empire in the ordering and practices of the profession. The objective, in part, was to keep “the unworthy,” for the most part untutored Anglo aspirants or non-Anglo minorities, out of practice.

While previous scholarship has tended to draw an unduly Ontario-centric picture of a Mithraic conflict between academic lawyers and practitioners on the future of legal education in the first half of the twentieth century, Pue concludes that this Manitoban experiment was a genuine joint endeavour by Winnipeg men from both town and gown who agreed on its provenance and staging. Ironically, despite its temporary demise in Manitoba thereafter, this educational system has influenced the organization, form, and progression — although happily not the rationale and not always the substance — of Canadian legal education to this day.

In Part Three, “Ethics, Regulation and the Business of Law,” Pue provides three chapters on the governance of the legal professions in both England and Canada. In mid-nineteenth century England, an increase in the number of aspiring junior barristers caused a crisis of oversupply just as the legislative introduction of the intermediate County Courts, designed to provide cheaper and less complex litigation across the country, allowed a right of audience to solicitors as well as barristers in that new forum. But because Bar etiquette prohibited barristers from dealing directly with the public, and only through solicitors who briefed them, this conjunction of events put struggling younger members of the bar at a competitive disadvantage.

The larger contemporary political context involved a strong advocacy of free trade in the supply of goods and services. The advocates of this ideology in the provision of legal services, including Charles Rann Kennedy and several radical politician-lawyers, found the answer to the conundrum in ignoring the rules of etiquette and providing direct services to clients in County Court litigation, and as time went on, in the superior courts – developments that would be partly confirmed by legislation.

Was this politically popular challenge to fossilized tradition to be the harbinger of reforms to the Bar and its provision of services? The answer in Pue’s words was a resounding “No.” In time, the challenge to the traditions and values of the Bar was to awake its senior members and judges from their slumbers, galvanize them to disavow the radical new practice and, through the Inns of Courts, to exercise some control over and discipline of delinquent members of the fraternity who were found to have breached the rules of etiquette, most notably in their direct dealing with clients.

The Canadian story of the legal profession’s unquestioned establishment of self-governance and control of practice and discipline is less dramatic and contested, and again Pue traces its roots to the enthusiasm of a group of elite lawyers from Winnipeg involved in the foundation of the Canadian Bar Association in the 1910s and to their nation-wide desire to ensure respectable lawyering.

One of this campaign’s objectives was the creation of a nationwide code of ethics for lawyers. Unlike the British branches of the legal profession, which demurred from or disavowed written guides to ethical conduct, and in contrast to a leading Ontario judge, Willliam Renwick Ridell, who saw such prescriptions as unnecessarily confining and possibly productive of injustice to clients, the Manitoba group were deeply influenced by the adoption of such codes across the United States.

Like their American counterparts, they saw an ethics code as an important device for keeping “the unworthy,” including social and economic subversives and members of “uncultured” ethnic minorities, out of practice. It was in the interwar period that, assisted by this movement to pan-Canadian discipline, most provincial Law Societies consolidated or achieved status as fully self-governing bodies.

In time, the discriminatory impulses would disappear as the governance of the profession became less a moral and nativist crusade and more related to preserving a monopoly and ensuring appropriate fees levels for the provision of legal services.

In Part Four, “Challenging the Status Quo: Communists and Liberals,” Wes Pue turns his attention to instances from nineteenth century England and post-Second World War British Columbia when, by institutional pressure and outright denial of entry to the profession, the legal establishment neutralized the activities of actual or potential troublemakers in the profession and prevented the spread of unsavoury social or political beliefs.

In “Liberal Entrepreneurship Thwarted: Charles Rann Kennedy and the Foundations of England’s Modern Bar,” Pue documents that the leaders of the English Bar were motivated in countering “heretical practices” among its members resulting from the institutional challenge created by direct representation of clients, and by the conduct of the irrepressible Kennedy in his business dealings with and his conduct of litigation on behalf of a particular client.

In an action brought by Kennedy on behalf of a disgruntled heiress, Patience Swinfen, he lambasted the professional ethics and “negligent” practices of a leader at the Bar, Sir Frederick Thesiger (later Lord Chelmsford), who circumvented Swinfen’s clear instructions in a contested wills litigation that Thesiger had conducted on her behalf.

Thesiger, rather than following Patience’s instructions to fight the case to the last on her behalf against the challengers to the will had, after private consultation with the judge hearing the action, who indicated that he felt she had a weak case, agreed to a compromise which resulted in a smaller inheritance than the will provided. Kennedy succeeded in having the original will upheld.

The case then took on the characteristics of a Victorian melodrama when Patience, with whom Kennedy had had an affair while representing her, married another man and refused to pay counsel the third of the value of the estate under the contract between them to retain his legal services.

This refusal was judicially approved in an action by Kennedy against her for his fees as negotiated. At this point, the champion of more freely available legal services, now branded as a libertine, lost the support of several of his powerful allies, most notably in the press. His enemies at the Bar regrouped to preserve and enforce the traditional rules of practice by pointing to this episode as an object lesson in the dangers of direct contact between counsel and client. Although Kennedy was not disbarred, his practice was effectively ruined in the wake of these events.

In the case of Gordon Martin, denied access to the practice of law in British Columbia in the late 1940s, the events are still within living memory of some residents of this province. As Pue notes in his essay “Gordon Martin, British Columbia Communist, 1948,” the case, its disposition, and its outcome continue to be controversial.

Pue’s handing of the story will itself produce a divergent range of reactions — although it has to be said that his approach is true to his belief that a nuanced historical appreciation of professional cultural and political context makes the outcome understandable, if not justifiable.

Gordon Martin was an avowed Communist, an active member of the Labour Progressive Party. After service in the Royal Canadian Air Force during the Second World War, he enrolled in and successfully completed the newly minted LL.B. program at UBC. As such, he made no secret of his political affiliations and beliefs.

He then served articles with a law firm, a process that required him to satisfy the Law Society that he was “of good moral character.” But when he sought admission to the Bar as barrister and solicitor, his application was denied by the Benchers of the Law Society on the grounds that, as an avowed Communist, he was committed to the downfall of the Canadian state and its form of governance, that therefore he could not honestly swear the oath required of lawyers to uphold the Canadian constitutional order, and that he was a liar in claiming that he could swear so in good faith.

This produced a predictable outburst of disgust, particularly among students at UBC. Although there was no appeal from the Benchers’ decision under the Legal Professions Act, Martin’s counsel tried another tack: he had the province’s Supreme Court hear an application for judicial review of the Benchers’ decision on the ground that they had exceeded their statutory powers, or abused their discretion, by finding Martin “not of good repute” and relying on “irrelevant and alien grounds.”

Justice Coady denied the application on the ground that the Benchers had a broad discretion to determine fitness for the profession, an authority that was unassailable as long it was exercised “honestly fairly or reasonably,” which was deemed to be the case here. Although there was no appeal from this decision, the Legal Professions Act was hastily amended, owing to the case’s notoriety, to allow an unsuccessful applicant for admission to the Bar to seek a reversal of a Benchers’ decision by appeal to the BC Court of Appeal.

The court, through five separate opinions, denied the appeal, agreeing that it was from an administrative body possessed under statute of broad discretion that they had exercised in an entirely legitimate and thus unimpeachable fashion.

As well, all five judges took time to expatiate on the dangers of international Communism and its local manifestations, although only Justice Cornelius O’Halloran took time out to dwell on those dangers and the perils of falling into the trap of following the US Supreme Court in its recently expressed “neutral and detached view of communism.”

Those “foreign” decisions, in his mind, reflected judicial ideology and a rights-based legal philosophy that was anti-formalist and anti-deductive and detached the process of judgement “from the claims of authority based on cultural inheritance, tradition or God’s will,” as Pue puts it. In language redolent of the Manitoban architects of a pan-Canadian notion of legal professionalism and education, O’Halloran pointed to the clash between sinister Communist beliefs and actions and the loyalty, selflessness, and moral rectitude required of lawyers in Canada.

In assessing this episode, Pue is careful to avoid presentism in his interpretation, that is, reading back into history the values and assumptions appropriate to today, rather than to the past. This is a caveat that marks his work in general and is to be applauded.

My one reservation is that, even taking into account the conditions of the later 1940s in Canada and the growing chill of the Cold War, one might have expected that educated and presumably fairly intelligent people would not jump to the conclusion that local Communists were so many Russian apparachiks churned out of a Comintern factory in Moscow without minds and instincts of their own.

Pue recognizes that the outcome in B.C. was not necessarily the one ordained in other provinces, for instance in Manitoba, where individuals of Communist or other extreme left wing views were admitted to the Bar. He might also have noted that a former Communist and veteran of the International Brigade in the Spanish Civil War had been admitted to the Saskatchewan Bar in the mid 1940s.

More telling, in my opinion, is that in B.C. politics there had been radical socialists and communists holding political office, albeit very small in number, since the first decade of the twentieth century. While vocal and assertive, these individuals were, it seems, quite capable of operating in a democratic political system without resorting to treasonous conduct or culpable subversion, even after the Bolshevik Revolution and the Stalinist purges.

The B.C. legal profession had not been without political radicals in its ranks. The most distinguished perhaps was J. Edward Bird, ironically the uncle of Henry Irvine Bird, one of the Court of Appeal judges in the Martin case. The senior Bird was for long a member of the Socialist Part of Canada, a forerunner of the Canadian Communist Party. He represented the Sikh community, not least during the Komagata Maru episode during 1914; defended charged unionists in the wake of the Winnipeg General Strike; and unsuccessfully sought to article a Chinese aspirant (Won Alexander Cumyow) to legal practice.[1]

I have the nagging feeling, that apart from these cavils, part of the story of the professional elite’s reaction to Martin in British Columbia reflects the intellectual isolation and introspective attitudes of a segment of the West Coast Bar.

Indeed, as Dr. Pue has shown in his monograph on the history of the UBC law school, founded only in 1945 (Law School: The Story of Legal Education in British Columbia: UBC Press, 1995), a large element of the B.C. legal elite was, by and large, content with the prevailing system of legal education, which depended largely on apprenticeship at a law firm with a recognition that students might also avail themselves of an academic program (through non-law faculties) at the provincial university (UBC), as well as bar courses in Vancouver and, for a limited time, Victoria. Even in 1945 when UBC law school was finally approved, powerful naysayers opposed the founding of a university school of law.

Given the socio-political condition of B.C., the apprenticeship system was unlikely to produce the breadth of vision or reflection that might have induced the Benchers see the world in less stark tones. This assertion may seem to be undermined by the presence on the Court of Appeal of Justice O’Halloran, who had a well-earned reputation as the court’s one judge with strong civil libertarian propensities and the character of a thinker’s jurist.

But there were limits to O’Halloran’s liberality. It did not extend to organized labour and clearly not to Communists, a product perhaps of his Roman Catholicism. Although one cannot be sure, a less blinkered professional and juristic environment might have resulted had academic lawyers been teaching in a university law school in British Columbia.

As events in Saskatchewan in the late 1920s indicate, agreement between legal academics and practitioners on the appropriate elements of a good legal education did not mean they would necessarily agree on who should, or should not, be admitted to the profession.

The then Dean of Law at the College of Law in Saskatoon, Arthur Moxon, took a strong and successful stand against some of his colleagues on the Benchers of the Law Society of Saskatchewan who wanted to make a British heritage a condition for admission to the profession. This was during a period of extreme, even paranoid, anxiety among the province’s conservative Anglo elite about Bolshevism and its supposed roots in minority ethnic communities.

Were the guardians of the legal profession in B.C. the narrow-minded outliers that their comments suggest in their decision to deny Gordon Martin’s application for admission to the Bar of British Columbia? Perhaps, but we can never be sure; and I suspect that Pue and I, and maybe others, will continue to debate the meaning of the Martin case and the shadow it continues to cast over the law and the legal profession in B.C. Begging to differ is, of course, one of the benefits of thoughtful and bold scholarship.

Also of wide interest will be Pue’s Chapter 12, “Christ, Manhood, and Empire: The Case Method of Legal Education in Canada, 1885-1931,” which is based on materials discovered at the University of Manitoba that shed light on the “case method” of teaching law at that school in its academic heyday in the late 1910s through to the late 1920s.

Pue argues that this form of pedagogy, borrowed from the United States and Harvard in particular, and instituted at the University of Manitoba and other universities on the Prairies, provided the mantra for inculcating in aspirants to the Bar morality, respectability, selflessness, and the Christian values that the Prairie architects of legal professionalism were striving for.

This pedagogy, Pue argues, did not depend on pat answers but encouraged students to wrestle with the issues, pose new questions, engage in further reflection, and struggle for the revelation of the legal truth. Judicial disquisition, in the minds of its exponents, provided the ideal vehicle for the process to operate. Pue, however, is quick to recognize that it is difficult to know exactly how this form of teaching actually worked because of uncertainty as to how rigidly individual instructors adhered to it and owing to the paucity of evidence from former students subject to it.

What I find particularly interesting is Pue’s suggestion that this methodology, its adoption and the inculcation of knowledge of the precepts of the Christian faith, was also practiced in evangelical bible colleges on the Prairies during the same period. He suggests that in the same way that law students in a managed environment were challenged personally to search for answers that reflected the legal truth, so bible students were, by dint of their own research and reflection, expected to plumb biblical texts for original insights that conduced to personal revelation and to the message of the truth that is essential to belief.

Without denying that some members of the Canadian legal elite may have taken their missionary zeal to the extent of imagining that legal reasoning involved a search for ultimate truth, I would doubt that this translated into a general belief among legal educators at large that this was their quest in pedagogy. “Truth,” whatever the claims of some influential lawyers in Prairie Canada, has rarely been as adamantine in the law and legal culture as one imagines it is in revealed religion.

A bible student would presumably not last long in his course if he concluded, on the basis of research, that God did not divide the Red Sea to save the Israelites and destroy the Egyptians, or that the walls of Jericho did not fall to Joshua by the sound of multiple trumpets, not to mention denial of the Virgin birth or the Resurrection of Jesus Christ.

By contrast, a law student who, by virtue of reflection within the case method, concluded that  certain rules or principles are never challengeable or irrebuttable, would frankly be deluded and might legitimately feel cheated by having reality revealed to him. And my guess is that he would not be asked to leave the institution.

By its very nature, litigation presupposes that there may be contested answers to legal problems. The lords of the legal profession might have believed that the “truth” of capital formation demanded that railway companies and manufacturers needed to be protected from personal injury suits by members of the public or users of their products in the first twenty years or so of the twentieth century in the cause of the protection of industry from those costs. However, that “truth” would be soon shattered by live judicial reconsideration and denial of doctrines that seemed to dictate these results.

This is not to deny that the law can be and has been inherently conservative in its practice, or that traditional assumptions, or “truths,” may be hard to subvert, but the very nature of judicial decision-making is one that invites speculation and contextualization and sometimes produces action through the acceptance of new answers, as the Realist jurists of that era in the United States had begun to argue.

Whether the Canadian law teachers who pioneered the use of the case method thought to a man that they were on some mission from “God” is, I believe, doubtful.

The book concludes with “Lawyers’ Professionalism, Colonialism, State Formation, and National Life in Nigeria, 1900-60: ‘The Fighting Brigade of the People,’” an essay co-authored with Chidi Oguamanam, which provides fascinating insights into the ways in which local barristers in colonial Nigeria turned the tables on the territory’s colonial masters by invoking the benefits claimed and brought to Africa by British rule, such as the rule of law.

Nigerian barristers did this by seeking to protect political dissenters and to infiltrate the system of indirect rule that the British — hoping to emphasize the benefits of traditional forms of government and to downplay the virtues of broader democratic systems — had introduced to the country. It will be of interest not only to historians of the profession, but also to those whose work lies in imperial and colonial legal histories.

Altogether, Professor Wes Pue’s Lawyers’ Empire is a fine work of legal historical scholarship and a reflection by a dedicated, erudite, profound, and imaginative scholar. In my estimation it will provide the benchmark for further research in the history of the legal profession across Canada and elsewhere.

This is affirmed in the book’s foreword by the eminent British legal historian, David Sugarman, who situates Lawyers’ Empire both eloquently and succinctly:

[It is] a revelatory work that will become a milestone in the study of legal history and the interplay between law and society. Like most cutting-edge scholarship, it raises as many questions as it answers, but in doing so it successfully highlights important themes and issues for future scholarship to consider and assess.

This book should kindle enthusiasm in British Columbia for further work on unravelling the mysteries of the legal profession and its governance, and in particular how it has dealt with dissenters, stormy petrels, and “eccentrics” within its ranks, and those once deemed “unworthy” or “unqualified” to be admitted to them.

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Educated at the universities of St. Andrews and London, John McLaren taught law in Saskatchewan, Ontario, and Alberta before moving to the University of Victoria in 1987. He has been a Visiting Fellow at Cambridge University and at the Australian National University. His major areas of interest are Canadian and colonial legal history, legal education, legal theory, and compensation law. Among his books are Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West and Essays in the History of Canadian Law (Canadian Plains Research Centre, 1992, edited with Hamar Foster); Land and Freedom: Law, Property Rights and the British Diaspora (Routledge: 2001, edited with Andrew Buck and Nancy Wright) and Dewigged, Bothered and Bewildered: British Colonial Judges on Trial, 1800-1900 (Toronto: University of Toronto Press, 2011). John McLaren served on the Canadian Human Rights Tribunal, was a founder of the Canadian Law and Society Association, has been involved in reform work on the civil law relating to sexual assault, is active in refugee work, dances the Morris, and lives in Victoria.

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[1] See Janet Mary Nicol, “‘Not to Be Bought, Nor for Sale’: The Trials of Joseph Edward Bird,” Labour/ Le Travail 78 (Fall 2016), 219-36. For Cumyow, see http://bcbooklook.com/2016/12/28/won-alexander-cumyow-pure-canadian/