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Legal Education at Osgoode Hall to 1957 Brian D Osgoode Hall Law Journal Article 1 Volume 6, Number 2 (December 1968) Pedants, Practitioners and Prophets: Legal Education at Osgoode Hall to 1957 Brian D. Bucknall Thomas C. H. Baldwin J. David Lakin Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Article Citation Information Bucknall, Brian D.; Baldwin, Thomas C. H.; and Lakin, J. David. "Pedants, Practitioners and Prophets: Legal Education at Osgoode Hall to 1957." Osgoode Hall Law Journal 6.2 (1968) : 137-229. http://digitalcommons.osgoode.yorku.ca/ohlj/vol6/iss2/1 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. OSGOODE HALL LAW JOURNAL Vol. 6 DECEMBER, 1968 No. 2 PEDANTS, PRACTITIONERS AND PROPHETS: LEGAL EDUCATION AT OSGOODE HALL TO 1957 by BRIAN D. BUCKNALL and THOMAS C. H. BALDWIN J. DAVID LAKIN with assistance from GORDON I. KIRKE JAMES ZENER JOSEPH N. SOLOMON PAGE FOREWORD 139 CHAPTER I: LEGAL EDUCATION IN UPPER CANADA; 1800 to 1889 1. The Law Society of Upper Canada 141 2. The Life of the Law Student in the Early 19th Century 144 3. ToWard the Founding of the Law School 149 CHAPTER II: THE YOUNG LAW SCHOOL 1. William Albert Reeve, 1889-1894: The FirstFalse Dawn 160 2. Newman Wright Hoyles, 1894-1923: An Interlude 172 CHAPTER III: THE PRIESTS OF A DISCARDED RELIGION John Delatre Falconbridge,1923-1948 185 CHAPTER IV: CRISIS AND RECONSTRUCTION 1. Cecil Augustus Wright, 1948-1949: crisis 207 2. Epilogue: Charles Ernest Smalley-Baker and Reconstruction 221 FOREWORD On July 1, 1968, Osgoode Hall Law School severed its connection with the Law Society of Upper Canada and became the Osgoode Hall Faculty of Law of York University. So momentous an event in the life of the school served to emphasize the unfortunate fact that no compre- hensive history of Osgoode Hall's role in legal education yet exists. The following paper is an attempt to fill this need. It will hardly be necessary to remind readers of this history that the work is not definitive. Some very important sources of information have not been made available to the authors and some available sources have not been consulted. Modesty of ambition is not pleaded as an excuse for the inaccuracies and misjudgments which may have crept into the study; the authors hope only that their failures will in- duce scholars of greater depth and quality to write a complete and final account of Osgoode Hall's contribution to the social, political and legal life of this nation. A note on our research: The history of the law school in the past sixty years (approximately) lies within living memory. Many men who have been associated with Osgoode Hall during this period have been consulted by the authors. Barristers, Professors, Benchers and even members of the Judiciary have been kind enough to contribute to our research and answer our inquiries. We requested frankness of a traditionally discreet profession and promised in turn to use the in- formation given discreetly. A few of our informants were generous enough to allow themselves to be quoted; many suggested that their names might be mentioned as research sources, others spoke very frankly and helpfully but could not allow their names to be used in any way. In the end we regretfully came to the conclusion that it would be best to omit completely the citation of materials taken viva voce and to preserve the anonymity of all our contributors. Where the actual words of these men are used in the text they are placed in quotation marks and are usually preceded with phrases such as "as a friend has said" or, "as one observer commented". These interviews added a great deal to our study and at some crucial points (such as the account of Dr. Wright's resignation) they are the basis of essential parts of the history itself. We would like to express our appreciation and grati- tude to the many members of the profession who have helped us; we trust that their confidence in our discretion was not misplaced. The authors of this history and their respective contributions to it are as follows: Brian D. Bucknall (B.A. McMaster, LL.B. Osgoode Hall, a member of the 1968 graduating class) was the general editor and writer of the paper. He also did the research for Chapter III, the Falconbridge period. Thomas C. H. Baldwin (B.A. Michigan State, LL.B. Osgoode Hall, a member of the 1968 graduating class) did al- most all of the research on Chapters I and 1I (the period 1800 to 1923) and contributed written pieces to the final draft of the work. J. David Lakin (B.A. University of Weastern Ontario, LL.B. Osgoode Hall, a 140 OSGOODE HALL LAW JOURNAL [VOL. 6 member of the 1968 graduating class) researched the events surround- ing the 1949 crisis (Chapter IV, part I). Gordon I. Kirke, James Zener (B.A. Toronto) and Joseph N. Solomon (B.A. Toronto), all of whom were second year students of Osgoode Hall, were responsible for re- search on the decade 1950 to 1960. Professors H. W. Arthurs and G. E. Parker of Osgoode Hall Law School supervised the project. CHAPTER I: LEGAL EDUCATION IN UPPER CANADA; 1800 to 1889 I. The Law Society of Upper Canada In the centuries-long history of the English common law the re- sponsibility for training young men in the practice of law traditionally rested with the legal profession itself. It is only in the last one hundred and fifty years that academic legal studies have become a generally accepted prerequisite to entry into the profession. In England from medieval times onward the aspiring barrister or solicitor was virtually an apprentice in the legal trade.' The Inns of Court, for all of their moots, debates and semi-formal lectures were not a university or law school, just as Blackstone's Oxford lectures in the common law were not, in the professional sense, a legal education. As could be expected, the system of training in the law through practical work done under the guidance of a qualified member of the bar followed the English emigrants to the colonies.2 Indeed, the art- icling system, for this it was, could be said to have flourished under the primitive colonial circumstances. It was an eminently flexible form of education and was, furthermore, conveniently and naturally geared to the intellectual and technical capacity, great or small, of the barris- ters who administered it. This method of legal education received official recognition in Canada at a very early date. In 1785 an ordinance was passed in the Old Province of Quebec requiring that no one could practice as a bar- rister, advocate, solicitor or proctor unless he had articled for five years to some advocate or attorney duly admitted and practising in the province or elsewhere in the Empire. The ordinance further provided that no one could be admitted to practice until he was examined and found of fit capacity by a "most able" barrister, in the presence of either the Chief Justice, or two other Justices of the Court of Common Pleas.3 Six years after this enactment, in 1791, old Quebec was divided into Upper and Lower Canada and in the year following the separation (1792) the Legislative Assembly of Upper Canada passed an Act which made the law of England in matters of property and civil rights the appropriate law of Upper Canada.4 At this time, however, there were only two men in the whole territory of Upper Canada who were 1 Indeed, the term 'apprentice' was used of students of the law as early as 1292. See T. PLUCKNETT, A CONCISE HISTORY OF THE CommoN LAW. (London, Butterworths, 1948), 206 and 212. 2 The first legal education in Canada was in the French civil law and not in the Common Law. One Tours-Guillaume Verner, a member of the bar of Paris and Procureur-Gdn~ral of the Supreme Court of New France, is recorded to have lectured twice weekly in law from 1728 until his death in 1758. The lectures were not continued after his death. See Riddell, The First Law SchooZ in (anada-1742-1758, April 1, 1932, BENCH AND BAR, 12. 3 Read, The Bar of Ontario Eighty Years Ago July-Dec. 1878, THE CANADA MONTHLY, 65-68, 489.497. 4 Id. OSGOODE HALL LAW JOURNAL [VOL. 6 trained lawyers competent to plead the English Law. These men were Walter Roe, in Detroit, and the Attorney General, John White, who was at Newark.5 Under the circumstances it was vital that the number of legal practitioners be increased and in 1794 "An Act to Authorize the Governor or Lieutenant Governor to Licence Practitioners in the Law" was passed. The Act allowed the licensing for the practice of law of up to sixteen of "His Majesty's liege subjects ... as he shall deem from their probity, education and condition in life best qualified to Act as Advocates and Attornies in the conduct of all legal proceed- ings in this Province." 6 The emphasis on social, as opposed to aca- demic, qualifications is noteworthy and was probably inevitable. It does not, in fact, appear that the powers granted by this Act were exercised until 1803; the first increase in numbers of practising law- yers came not as a result of the Act but as a result of the establishment of the Law Society of Upper Canada.
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