The Canadian Bar Review

THE CANADIAN BAR REVIEW

THE CANADIAN BAR RHv1EW is the organ of the Canadian Bar Association, and it is felt that its pages should be open to free and fair discussion of all matters of interest to the legal profession in Canada. The Editor, however, wishes it to be understood that opinions expressed in signed articles are those of the individual writers only, and that the REVIEW does not assume any responsibility for them. It is hoped that members of the profession will favour the Editor from time to time with notes of important cases determined by the Courts in which they practise. twContributors' manuscripts must be typed before being sent to the Editor at the Exchequer Court Building, Ottawa .

TOPICS OF THE MONTH. CANADIAN BAR ASSOCIATION .--As this is the last number of the REVIEW to be issued before the Thirteenth Annual Meeting of the Canadian Bar Association at Regina, on the 29th, 30th and 31st of August next, we express the hope that there will be a good attendance of the members at the meeting . The programme is an excep- tionally good one, as will appear from the draft published at another place in this department of the REVIEW . * We are authorized to state that the Committee in Regina is arranging a most delightful programme for the visiting members and the ladies accompanying them. Included in this pro gramme is a drive through the beautiful Qu'Appelie Valley, when the visitors will probably have the opportunity of witnessing an Indian Pageant in the neighbourhood of Lebret . Banff and Lake Louise, two of the most famous mountain resorts in the world, can be reached in a few hours from Regina by motor or by the Canadian Pacific Railway. Fuller particulars will be available in the completed programme which will be issued about the first of July..

DIVORCE BUSINESS BOOMING .-The work of the Divorce Com- mittee of the Senate during the parliamentary session just closed has proved to be the busiest on record . Notice had been given of

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298 applications for divorce, while 268 were actually presented . Unopposed cases were ,granted to the number of 233; and in seven contested cases relief was .obtained by the applicants. Of the 240 applications allowed, 2.15 were, from Ontario and 25 from Quebec. Infidelity was the ground relied on in 237 of the applications . The in- crease in the number of divorces granted by the Senate has been remarkable during the last ten years, as will appear from the following table : 1919, 55 ; 1920, 100 ; 1921, 111 ; 1922, 102 ; 1923, 117 ; 1924, 130, 1925, 133 ; 1926, 124; 1927, 196, and this year 240. * Whatever may ' be thought of Divorce in relation to the happiness of individuals to whom the marriage tie has become in- tolerable through no fault of their own, there is no doubt that it is an anti-social gesture of tremendous importance. In the history of the past it has been of one of the prime factors in national de- cadence. Wide-spread dissolution of marriage means the annihila- tion of family life which-to quote Mommsen-"is yet the germ and core of all nationality." It is a disturbing thing to contemplate the continuous progression in the number of divorce cases in this country of ours which has not yet outgrown the normal period 'of youth. And this very thought is an evocation of Milton's vision of England in his Aeropagitica as "a noble and puissant nation, . as an eagle mewing her mighty youth." Strange that he did not realize that his essay on Divorce-previously written- would not tend to make his country a noble and puissant nation in its full age!

CANADA AND THE KELLOGG PEACE PROPOSALS.-The Government' of Canada has expressed its acceptance of Secretary Kellogg's invitation to take part in an international effort to formulate a treaty having for its object the outlawry Of War through the medium of a letter addressed by the Prime Minister, the Right Honourable W. L. Mackenzie King, to the Honourable William Phillips, United States Minister, to Canada. In the course of his letter the Prime Minister says : The Government of Canada is certain that it speaks for the whole Canadian people in welcoming the outcome, in the proposed multilateral pact, of the discussion initiated almost a year ago between the governments of France and of the United States. It is pleased to find that in this attitude it is in accord with all His Majesty's other governments. The proposals of the United States government, by their directness and simplicity, afford tô the peoples of the world a new and notable opportunity of ensuring lasting peare. -

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Concerning the question whether the obligations of the covenant of the League of Nations-to which Canada has adhered-would conflict with the obligations of the proposed treaty for the outlawry of war, the Prime Minister states : His Majesty's government in Canada regards the league, with all its limitations, as an indispensable and continuing agency of international under- standing, and would not desire to enter upon any course which would prejudice its effectiveness. It is however, convinced that there is no conflict either in the letter or in the spirit between the covenant and the multilateral pact or between the obligations assumed under each. The Prime Minister's letter concludes as follows : His Majesty's government in Canada will have pleasure in co-operating in any future negotiations with a view to becoming a signatory to a treaty such as is proposed by the government of the United States in the invitation which it has extended, and to recommending its acceptance to the Canadian parliament. * * Secretary Kellogg's draft pact would commit its signa- tories to nothing more than a declaration that so far as they are concerned the war-drum shall throb no longer; there is no machinery prescribed whereby the Parliament of man and the Federation of the world may be brought about. It is merely a pledge that n6 honourable nation committed to it can afford to disregard . In that feature lies its hope of success. Let men once become convinced that a certain line of conduct is not only desirable but essential to their national well-being and a satisfactory means of bringing their conviction into play will surely be found. The love of peace emerges from moral enlightenment, and peace itself finds no real sanction in the gestures of the big stick. It is because it makes an appeal to force in the last resort that the League of Nations is -open to the charge of inconsistency by its opponents.

EDMUND BURKE.-The bi-centenary of perhaps the greatest Englishman in sentiment ever born in Ireland will occur on the 12th of January next. We speak of Edmund Burke. Had his birth place been in England, he would have been disposed to say with Cardinal Newman (who may have been sensitive of his foreign ex- traction on both sides) : "I had rather be an Englishman-as in fact I am-than belong to any other race under heaven." Burke's mem- ory ought to be an imperishable one throughout the English-speaking world : in England, because he preserved the English genius for

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liberty tempered by law when the French 'Revolution menaced all Europe with anarchy ; in America and the British Dominions, because of his magnificent ,defence of colonial rights in what is known as the "Conciliation" speech delivered by him in the House of Com- mons in 1775 . Burke in his salad days contemplated proceeding to the Bar, And we believe he ate his dinners for a term or two at the -Middle Temple. But the attraction that literature and politics presented to him soon overcame his small inclination for the business of the law, and the world is the richer for the choice he made. Hazlitt, who lived close to his own day, and Sir Walter Raleigh, of our time, place him in the forefront of English prose-writers-and they were _. both indubitably competent critics. As a political philosopher Burke was constantly in contact with the fundamental ideas and purpose of law. Professor Graham, of Belfast, acclaimed him as "the most famous of all English writers on political , philosophy, and, with the exception of-Hobbes, the most original ." Sir Frederick Pollock says that the separation of expediency from legality was due to him, and that "he was too great for his generation ." The bicen- tenary of such a man deserves to be honoured by the legal profession, and we hope some adequate notice of it will be taken by the . Cana- dian'Bar Association at the proper time.

LONDON'S POLICE PERIL.-It would seem as if the inoffensive citizens of the capital of England are in as bad a way: with the police as Chicagoans are with the bandits, with this difference, that in Chicago one is compelled to yield up his money while in London one is robbed of his reputation-somethin.g that is still of value in the eyes of Englishmen. Last month we mentioned the extraordinary Money-Savidge case, and since then our attention has been 'drawn to the case of Major Murray. In this case a military officer was arrested by the police in Piccadilly on what has been demonstrated to be an utterly false charge of being "drunk and disorderly" and of having ".annoyed . women." He was convicted in the Police Court under procedure not unlike the old Star Chamber methods, but that conviction was set aside on appeal and Major Murray's character completely vindi- cated. . Subsequently an inquiry concerning the case was made, at the instance of the Home Office, by the Street Offences Committee, and that Committee concurred-if the term may be used with

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propriety in this behalf-in the vindication of Major Murray by the Court of Appeal, and justified Major Murray on every point in which his conduct was challenged . This report was sent early in January to the Home Office, but it seems that the authorities there delayed reporting the finding of the Street Offences Committee to the victim of the police, until the matter was taken up by the Morning Post newspaper a week or so ago. Thereupon the Home Office wrote to Major Murray informing him that he was to be made an ex gratia grant of five hundred pounds in view of the "expense and anxiety to which he had been put ." As a result of this unwarranted delay on the part of the Home Office in dealing with the Murray case a nice scandal has been brought about its head by the public press. It is charged with fear of publicity in connection wi*-h such cases. Speaking of this incident in particular the Saturday Review says :

If the Home Office had a just view of the relations between the police and the people, its instinct would surely have been to inform Major Murray without a day's delay of the findings of the Committee. True. Major Murray had already been acquitted on appeal, but the appointment of a Committee was in effect the third trial of his case, and showed a reluctance to accept the result of the second trial at its face value. Evidently the Home Office regarded itself as an impugned party along with the police, and Major Murray as a hostile witness, an innocent rebel against authority, but still a rebel. That policemen make mistakes we all know, but that the instinct of the Home Office should be to side with the police against the public points to something very seriously wrong, and it is to this wider aspect of the case that Parliament should direct its attention .

Speaking more generally about the state of affairs in London arising by reason of the officiousness of the police acting in the capacity of guardians of the morals of London instead of its peace, the journal quoted observes :

During the war the Government claimed a right to regulate our lives with the utmost minuteness ; there was nothing that we did or left undone which might not be held to be improving or hindering our chances of victory ; and in war individual rights count for nothing, be their opposition to the national cause ever so slight and fanciful . The psychology of war has per- sisted into peace : Government departments that have enjoyed the power of detailed regulation of our lives will not willingly relinquish it; the army in the field has been disbanded, but the whole mass of the population is regarded as a peace army subject to the control of Government officials and their agents . It is all very well-meaning and its motives are highly patriotic : but unless government is kept within its own proper sphere the liberty of the subject is at an end. Parliament must sharply remind the departments that they are the servants, not the masters. All of them are

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infected with the same vice, and it is Sir William Joynson-Hicks's mis- fortune, not his fault that the interferences of his department with liberty are such as are immediately felt and resented. The first principle that should be laid down is that the police are not the guardians of public morals. Their business is to protect the plain citizen from annoyance in his walks abroad, not to maintain a moral code, however reasonable that may be in itself. Solicitation in the streets and improprieties in the parks are objectionable on moral grounds, but they are no concern of the police unless there is evidence of nuisance. In view of the above, and having regard to similar manifesta- tions of undue interference with personal liberty in some of the States of the American union, we are inclined to think that con ditions of social life in this Canada of ours are not so bad after all.

COMITY OF COURTS.-We clip the following from our lively con- temporary Law Notes So the Court of. Criminal Appeal and the Court of Appeal are at loggerheads. Lord justice Scrutton said R. v. Denver (Vol. 45, p. 137) was wrongly decided. The "Chief justice," according to the Times dated April 24th, politely told him to mind his own business, which is not criminal law, and that R. v. Denyer was binding until overruled by the House of Lords-the only Court, according to the "Chief justice," which can over- rule a decision of the Court of Criminal Appeal. By the way, why does Law Notes persistently refer to the present Lord Chief justice of England as the "Chief justice"? Why the inverted commas?

OUR EARLY POLITICAL HISTORY-In a monograph entitled "The First Parliamentary Elections in -Lower Canada," Mr. Justice Sur- veyer, of the Superior Court of Quebec, presents much interesting information; not elsewhere readily available, to the ordinary reader. Speaking of the first election that took place in Lower Canada under the Constitutional Act Of 1791 the author points out that owing to difficulties of transportation the candidates could not visit every place of settlement in. the rural constituencies and were obliged to resort, to circulars addressed to the voters and advertisements in the newspapers setting forth their qualifications . We quote: Most of the notices are simple enough; others are dithyrambic. One of the candidates, for instance, states modestly : "If true patriotism, liberality of sentiment, and some knowledge of the principles of free government are titles to obtain, your acceptance of my services, be assured 'that my wishes and endeavours will ever be for the welfare of -my country and the happiness of my fellow citizens." 3O-c.B.R.VOL . VI .

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In another passage Mr. Justice Surveyer comments as follows upon the number of English-speaking as compared with that of the French-speaking members elected in 1792 : The result of the' election gave thirty-five French-speaking and fifteen English-speaking members of the Assembly. The English representation was far greater than the proportion of English-speaking citizens warranted. Some have held, following such historians as Bibaud and Garneau, that it was a quizotic act of generosity on behalf of the French-Canadians, of which they repented later. If they did, subsequent elections did not show it, as during the twelve parliaments during which the total deputation was com- posed of fifty members (1792-1828), the English representation averaged thirteen, and was still ten at the election of 1824. The truth of the matter is, I believe, that French-Canadians were unfamiliar with British parliamentary institutions, and probably could not afford to spend six months at Quebec without salary or even travelling expenses. It took nearly forty years to induce members of Parliament in Lower Canada to allow them- selves ten shillings per day of attendance and four shillings for each league of distance between their residence and the House of Parliament. Here again, may I say en passant, times have changed. Our members of Parliament now receive five times the amount of their indemnity as increased in 1883. But in those days a mandate to represent the people was not tempting. This explains why comparatively few of the members of the first Parliament sought re-election. Mr. Justice Surveyer's comments on the early attitude of mein- bers of Parliament towards their sessional indemnity is refreshing reading in the year of grace 1928. It is indeed true that the umes have changed and public spirit has changed with them. It is rea- sonably clear, too, that many of our present parliamentarians are more avid for change of a certain kind than their predecessors. We are informed by a publishers's note that the French version of this monograph on the first parliamentary elections of Lower Canada will form a chapter in a complete study of the political history of the period by Mr. justice Surveyer to be published by Louis Carrier under the title of Le Premier Parlement du Bas-Canada 1792-96.

THE CANADIAN BAR ASSOCIATION.

PROGRAMME. Wedvesday, August 29th. 10.i0 amt.-Opening Session . Chairman, Honourable Chief justice Martin. President of the Association. Presentation of Distinguished Guests.

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Addresses of Welcome : His Honour the Honourable H. W. Newlands, K.C., Lieu- tenant-Governor of Saskatchewan. Honourable J . G. Gardiner, Prime Minister of Saskatche- wan. His Worship James McAra, Esq., Mayor of Regina. Response to Welcome-Honourable Mr. Justice Hodgins, Supreme Court of Ontario, Toronto. Honourable Wallace Nesbitt, K.C., Dominion Vice-President, will take the Chair. Presidential Address-Honourable, Chief Justice Martin. Address-Honourable Hugh M. Kennedy, Chief Justice of the Irish Free State. Introduction of Resolutions.

1 .00 p.m.-Luncheon. Chairman, Honourable N. W. Rowell, K.C, LL.D., Vice-President for Ontario. Address - Mr. Henry Upson Sims, Representative- of the American Bar Association. -

2.30 p.m.-Afternoon Session Chairman ~ Mr. R. W. Craig, K.C., Vice-President for Manitoba. Appointment of Nominating and Resolutions Committees . Report of the Council. Financial Statement. Reports of Committees 1 . Comparative Provincial Legislation and Law Reform. 2. Noteworthy Changes in Statute Law. 3 . Public Defenders in Criminal Cases and Legal Aid to Poor Persons.. 4. _Editorial Advisory Board of "The Canadian Bar Review." Report of the Registrar.

8.30 p.m-Evening Session Chairman-Honourable Sir James Aikins, K:C., LL.D., Hon- orary Life President. Address-Right Honourable H. P. Macmillan,, K.C.

9.45 p.m.-Reception and Dance at Hotel Saskatchewan.

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7'bursday, August 30th. 10.00 a.m.-Morning Session Chairman-Mr. E. Lafleur, K.C., Vice-President for Quebec. Reports of Committees 1 . Legal Education. 2. International Law. Address-"The Law Relating to Wireless Signalling"-Mr . O. M. Biggar, K.C. Address-Maitre Armand Dorville, Representative of the Bar of Paris. Statement by Representative of the Conference of Commis- sioners on Uniformity of Legislation in Canada.

2.30 p.m.-Afternoon Session Chairman-Mr. P. J . Hughes, K.C., Vice-President for New Brunswick . Address-Honourable T. C. Davis, K.C., Attorney-General of Saskatchewan. Address-"The Making of a Legal Encyclopedia"-Mr. W. Kent Power. Statement by Representatives of Conference of Represent- atives of the Governing Bbdies of the Legal Profession in the Provinces of Canada. Report of the Committee on Administration of justice .

7.30 p.sn.-Annual Dinner.

Friday, August 31st.

10.00 a.m.-Morning Session : Chairman, Honourable R. B. Bennett, K.C., Vice-President for Alberta. Report of Special Committee on Presidential Address of 1927 . Address-Mr. L. E. Beaulieu, K.C., LL.D. Report of Committee on Administration of Criminal justice .

1 .00 p.m.-Luncheon-Chairman, Mr. J . A. M. Patrick, K.C., Vice- President for Saskatchewan. Address-"The Lawyer and the Law Maker"-Mr . J . W. de B. Farris, K.C.

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2 .30 p.m.-Afternoon Session : Chairman-Honourable SirHonoraryJames Aikins, K.C., LL.D ., Life President. Report of Resolutions Committee. Report of Nominating Committee. Unfinished Business.

4.00 p .m.-Garden Party. Headquarters of the Meeting in Regina will be at the new Canadian Pacific hotel, the "Hotel Saskatchewan ."

NOTE :-In accordance with the custom followed at previous meet- ings, a charge of Ten Dollars will be made to cover the expenses of the luncheons, the Annual Dinner and other events arranged by the Association. This charge will be collected from members when they register at the Secretarial Bureau at the Hotel Saskatchewan .