“The Art of the Advocate: From Cicero to Erskine to Martin”

The Honourable Charles L. Dubin Lecture on Advocacy

Osgoode Hall

October 4, 2012

The Honourable Morris J. Fish

 2

I. Introduction

Thank you for inviting me to deliver this year’s Dubin Lecture on

Advocacy. It is a great honour and a daunting challenge to follow to this

podium Eddie Greenspan, Sir Sydney Kentridge and Ian Binnie who

have with characteristic brilliance delivered this lecture in the past.1 In

confronting that challenge, I am comforted by your presence. Your kind

and empathetic faces attenuate the pressure of precedent my

predecessors have left in their wake.

The “Dubin Lecture on Advocacy” is aptly named. Before his

elevation to the bench, Charles Dubin was one of the finest advocates

ever to grace the courts of this country. That is a well known fact of

which we may take judicial notice. For those who require more, I need

only mention that Charles Dubin, at age 29 and after only six years at the

Bar, became the youngest King’s Counsel in the Commonwealth. 2 His

skill and eloquence are truly matters of legend. Charles Dubin was

1
See: The 1998-2002 Dubin Lectures on Advocacy (Toronto: Canada Law Book, 2004)
2
Jack Batten, Learned Friends: A Tribute to Fifty Remarkable Ontario Advocates, 1950-2000 (Toronto: Irwin Law,
2005) at 55.
 3

considered by his contemporaries as perhaps the most effective cross-

examiner of his time – both on and off the Bench.3

In Chief Justice Dubin’s honour, I have selected three other great

advocates to help me illustrate the Art of the Advocate – three lawyers

from different times and places who each embodied the qualities of

illustrious advocacy. From the history books, Marcus Tullius Cicero

and Thomas Erskine; and from the modern era, Goldwyn Arthur Martin,

a colleague, esteemed friend and sometimes co-conspirator of Charles

Dubin himself. All three exemplified the courage, the eloquence, and

the preparation – including a thorough mastery of the facts – which,

together, form the amalgam of true forensic greatness.

Their stories demonstrate that advocates are, at heart, storytellers.

They spin tales to draw their listeners in, not because their stories are

inherently entertaining, nor because a captive audience is an end in

itself. The advocate’s goals are loftier. They tell their stories to impart a

3
Ibid.
 4

message; to defend arguments; to justify theories. Put another way, their

objective is to persuade.

I do not come before you today as a judge before the Bar, still less as

an advocate before this august “Bench”. But I shall advocate

nonetheless. I will tell the stories of three stars that brighten the history

of advocacy. Not because their stories are fascinating (though they are)

and not to entertain you (though I hope you are entertained). I want to

leave you, rather, with a sense that the qualities of great advocacy

transcend the constraints of place and time.

The context may change, but illustrious advocacy retains its lustre

whenever and wherever it shines – in the Roman Forum, at the bar in the

Old Bailey, or before the Supreme Court of Canada.

Great advocates are courageous; they are eloquent; they take no

shortcuts in their preparation; and they thoroughly master not only the

relevant law, but also – indeed, especially – the facts of all of their cases.

That I know for sure. And my aim this afternoon is to prove it.
 5

II. Cicero

I begin by taking you back to ancient Rome.

Marcus Tullius Cicero (106-43 B.C.) was many things to many

people throughout his tumultuous life. He was a lawyer, a politician, a

spokesman, a judge, an administrator, an orator, a philosopher, a teacher,

a writer, and an epicure. In his best days, he was the “Saviour of Rome”

— the publicly acclaimed “Father of his Country”. 4 In his worst, he was

an exiled outcast; a proscribed enemy of the state.

Above all else, and through both the highs and lows of his life, Cicero

was an advocate. He made his debut in the civil courts, trying cases

involving contracts and property, 5 eventually appearing in the Forum —

at the very young age of 27 — to deliver his first public defence, a tale

of professional courage that is difficult for modern lawyers to fully

appreciate.

4
Robert N. Wilkin, Eternal Lawyer: A Legal Biography of Cicero (New York: The MacMillan Company, 1947) at
90 and 96.
5
Ibid., at 8.
 6

Sextus Roscius stood falsely accused of patricide, a charge that is best

understood in its historical context.

By 82 B.C., Lucius Cornelius Sulla had vanquished his rival, Marius

the younger, and had taken control of Italy. Now dictator under the Lex

Valeria, 6 Sulla retaliated with vengeance against those who had

supported his rival, Marius, in the war. Sulla’s reign was brutal.

One man who had made his way onto Sulla’s proscription list was

Sextus’s father. He was murdered, and his estate was sold for a petty

sum to Lucius Chrysogonus, a freedman of Sulla.7 Understandably,

Sextus was incensed. He spoke out against the sale. 8

Chrysogonus and his cohorts sought to rid themselves of the pesky

Sextus by accusing the poor man of murdering his own father.

According to Plutarch, Sulla’s epitaph stated that no friend ever

surpassed him in kindness, and no enemy ever surpassed him in

mischief. Sextus was not on the receiving end of Sulla’s kindness.

6
“Lucius Cornelius Sulla.” Encyclopædia Britannica. Encyclopædia Britannica Online Academic Edition.
Encyclopædia Britannica Inc., 2012. Web. 22 Aug. 2012.
<http://www.britannica.com/EBchecked/topic/572893/Lucius-Cornelius-Sulla>.
7
Wilkin, supra, at 12.
8
Ibid.
 7

Rather, Sulla supported Chrysogonus’s prosecution of Sextus.9 And, as

if the indictment was not bad enough, Sextus could find no counsel

willing to defend him. The seasoned advocates in Rome feared Sulla’s

retribution.10 The reign of terror cast a chill over the Roman defence

Bar.

It was in this foreboding climate that Cicero appeared for the first

time as an advocate in the Forum. Cicero was young and inexperienced,

but Sextus would at least have counsel. Not only would Sextus have

counsel, but he would have his name cleared of the vile accusations

initiated by Chrysogonus against him.

Cicero’s defence of Sextus was brilliant. The opening of his oration

was marvellous, even when translated into English. (Fear not, I will

restrain myself and not recite it to you in its original Latin!)

In his opening line, Cicero exploited the obvious. He was a young

man, with no experience defending clients in the Forum. “I imagine that

you, O judges”, he said, “are marvelling why it is that when so many

9
Ibid.
10
Ibid.
 8

most eminent orators and most noble men are sitting still, I above all

others should get up, who neither for age, nor for ability, nor for

influence, am to be compared to those who are sitting still.” 11 He gave

them the answer honestly: The older lawyers dared not stand for

Sextus.12

At the same time, however, Cicero did not proclaim himself to be any

bolder or more attentive to his duties than his more seasoned

contemporaries (who were actually present in the Forum). Rather, he

cloaked himself in the advantage that only a junior lawyer can claim:

low expectations. In Cicero’s view, the older lawyers could not take on

Sextus’s case because they had so much more to lose.

But Cicero could indulge in the indiscretions of youthful oration.13 As

he said, “if I say anything with too much freedom, it may either be

altogether concealed, because I have not yet mixed in public affairs, or

11
M. Tullius Cicero, The Orations of Marcus Tullius Cicero, literally translated by C. D. Yonge, “For Sextus
Roscius of Ameria” (London: George Bell & Sons, 1903) at §1.
<http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.02.0018%3Atext%3DS.+Rosc.%3Asecti
on%3D1>.
12
Ibid.
13
Indeed, we are told that some time after his heroic defence of Sextus, Cicero attended advanced courses on
philosophy and rhetoric in Rhodes, where he “cured himself of a bad habit of shouting the most important passages
in his speeches”: Cicero, Selected Works, ed. and trans. Michael Grant (London: Penguin, 1971), at 35.
 9

pardoned on account of my youth”. 14 He stepped forward, he said, “not

as being the one selected who could plead with the greatest ability, but

as the one left of the whole body who could do so with the least danger;

and not in order that Sextus Roscius might be defended by a sufficiently

able advocacy, but that he might not be wholly abandoned”.15

Cicero had to concern himself not only with the retribution of the

dictator, but also with the jealousy of the older lawyers. Much was at

stake for Cicero. In appearing for Sextus, he put at risk not only his

entire professional career, but his personal security as well.

Cicero demonstrated true professional courage — one of the

hallmarks of great advocacy. In alleging criminality on the part of

Chrysogonus, Cicero was treading on dangerous ground: an attack on a

freedman was normally considered an attack on that person’s patron,16

and an attack – even a veiled attack – on the powerful Sulla was

something to be avoided by any but the most courageous of advocates.

14
Orations, supra, at §3.
15
Ibid., at §5.
16
O.F. Robinson, Penal Practice and Policy in Ancient Rome (Oxford: Routledge, 2007), at p. 41
 10

Perched on the rostrum, Cicero faced these dangers squarely, and

declined to compromise his ideals. “I have deliberately resolved not only

to say everything which I think is material to the cause,” he said, “but to

say it also willingly, boldly, and freely. Nothing can ever be of such

importance in my mind that fear should be able to put a greater

constraint on me than a regard to good faith.”17

Cicero is a complex historical figure who is eulogized by some and

harshly criticized by others. What cannot be doubted, however, is that he

was a great advocate. He was able to cause even the most prejudiced,

partial and self-interested of judges to change their minds in favour of

his clients. As Anthony Trollope noted in his Life, Cicero often “felt

very strongly that his only means of getting a true verdict from the

majority of judges was to frighten them into temporary honesty by the

magnitude of the occasion.” 18 His defence of Quintus Ligarius affords us

a stunning example.

17
Ibid., at §31.
18
Anthony Trollope, The Life of Cicero, Vol. I (New York: Harper and Bros., 1881), at 94.
 11

Ligarius was more than the mere inspiration for one of the characters

in Shakespeare’s Julius Caesar. He was a real man, with real legal

troubles. He was accused of having been in Africa and bearing arms

against Caesar during Caesar’s campaign there. 19

There was really no dispute as to the facts, which Cicero admitted in

the opening to his oration For Ligarius.20 Even worse, Caesar was

sitting as the sole judge. It is reported that Caesar, before the trial, had

said: “I have already made up my mind as to the guilt of Ligarius. He is

clearly a bad man and my enemy. But why should we not give ourselves

the pleasure of hearing Cicero speak again?”21

Speak Cicero did, and he obtained an acquittal for his client.

Unable to challenge the fairness of the proceedings, he appealed to

Caesar’s sense of mercy. Tailoring his appeal to the known proclivities

of his audience, Cicero flattered Caesar’s sense of his own humanity and

clemency, drawing it in stark contrast to the prosecutor’s bloodthirsty

19
Wilkin, supra, at 171.
20
M. Tullius Cicero, The Orations of Marcus Tullius Cicero, literally translated by C. D. Yonge, “For Ligarius”
(London: George Bell & Sons, 1891) at §1.
<http://www.perseus.tufts.edu/hopper/text?doc=Cic.+Lig.+1&fromdoc=Perseus%3Atext%3A1999.02.0020>.
21
Wilkin, supra, at 172.
 12

cruelty. 22 In this vein, Cicero cannily invoked his own pardon from

Caesar for his role during the conflict. It is said that Caesar — the great

general — was so moved by the emotional appeal that his face turned

colour and his hands trembled. 23

Cicero knew how to deploy pathos in defence of his clients. But he

also knew how to marshal the facts in his clients’ favour. It is said that

Cicero diligently – even zealously – acquainted himself with the facts of

each one of his cases. More than that, he would spend long hours

studying and reflecting on them. 24 When he conducted a prosecution,

moreover, he supported each charge with a wealth of evidence.25 He

took nothing for granted.

Cicero’s prosecution of Gaius Verres — his first public prosecution26

— provides an excellent example of his approach to evidence, his

reliance on solid proof of the facts, and his commitment to preparation

generally.
22
James M. May, Trials of Character: The Eloquence of Ciceronian Ethos (Chapel Hill: University of North
Carolina Press, 1988), at 145.
23
Ibid., at 173.
24
Bernard W. Kelly, Famous Advocates and their Speeches: British Forensic Eloquence, from Lord Erskine to Lord
Russell of Killowen (London: Sweet & Maxwell, 1921, reprinted in 1986) at 2-3.
25
Wilkin, supra, at 48.
26
Ibid., at 46.
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Verres, formerly a provincial magistrate in Sicily, was accused of

corruption and extortion. The Sicilians alleged that he indiscriminately

pillaged private homes, public buildings and temples — stealing from

the Sicilians (and their gods!) heaps of gold, silver and other valuables.

Of this there was little doubt. When Verres returned to Rome following

his term as governor in Sicily, he lived in opulent luxury. His

extravagance made him the talk of the town. 27

There was nothing really unusual about provincial governors like

Verres using their offices to pad their wallets. But Verres was a master

of the craft and pushed it to the extreme. 28 The Sicilians were

understandably upset with Verres’ administration of their province, and

they spared no effort to ensure his prosecution in the capital. In the

pursuit of their objective, these pillaged provincials had to travel all the

way from Sicily to Rome, which, in those days, was no small feat. But

still, numerous witnesses for the prosecution made the trip.

27
Ibid., at 47.
28
“Gaius Verres.” Encyclopædia Britannica. Encyclopædia Britannica Online Academic Edition. Encyclopædia
Britannica Inc., 2012. Web. 17 Aug. 2012. <http://www.britannica.com/EBchecked/topic/626413/Gaius-Verres>.
 14

Cicero conducted the case against Verres. Glabrio, a fair and

honourable man, sat as praetor — essentially the judge — but his term

in office was drawing near a close. Cicero knew that if the trial was

drawn out, Glabrio would be replaced by a praetor more sympathetic to

Verres and more tolerant of his corruption. Verres knew this too. His

defence strategy was to delay the trial. A strategy, it has been said, that

is not unheard of today. Cicero would have a better chance before an

honest and sympathetic judge than while Glabrio was wearing the

praetor’s purple fringed toga. 29

Advocates often have to make difficult decisions. This was one such

occasion for Cicero. On one hand, he needed — and no doubt wanted —

to prove Verres’ corruption with hard facts and extensive evidence.

There being no Roman equivalent to the modern rule against evidence of

“prior discreditable conduct”, Cicero was well armed to attack Verres’

entire record. 30 Moreover, he had these poor Sicilians in the capital

ready and willing to testify against their former governor. On the other
29
Moreover, Verres’ advocate Quintus Hortensius Hortalus had been elected consul for the upcoming term: “Gaius
Verres.” Encyclopædia Britannica. Encyclopædia Britannica Online Academic Edition. Encyclopædia Britannica
Inc., 2012. Web. 17 Aug. 2012. <http://www.britannica.com/EBchecked/topic/626413/Gaius-Verres>.
30
Cicero, Selected Works, supra, at p. 36.
 15

hand, however, he had to expedite the trial to offset Verres’s delaying

tactics. If he failed to bring the trial to a conclusion before Glabrio’s

mandate as praetor expired, the Sicilians may well have never seen

justice at all!

So what did Cicero do? He prepared much, but presented selectively.

He wrote seven full length orations, but he only delivered two. 31 (The

others were published after Verres fled into exile.) And he prepared

meticulous examinations of all his witnesses, but only called those he

considered essential.

“I shall not detain you”, he said, “to follow up this charge from door

to door, and show you that he stole a goblet from Aeschylus the

Tyndaritan; a dish from another citizen of Tyndaris named Thraso; a

censer from Nymphodorus of Agrigentum”. 32 Yet Cicero was prepared

to delve into the details of each allegation. “Having produced my

31
Wilkin, supra, at 50.
32
Ibid., at 48-49.
 16

witnesses from Sicily”, he challenged, “[Verres] may select whom he

pleases for me to examine about dishes, goblets and censers.” 33

Cicero’s prosecution of Verres reminds us that great advocacy

requires meticulous preparation. Oratorical skill without meticulous

preparation is latent lustre at best.

Second, it exemplifies the courage of great advocates both in taking

on powerful adversaries and in accepting controversial or unpopular

briefs. It exemplifies as well courage born of confidence in making

difficult tactical decisions before and during the proceedings. As for the

latter, it could not have been easy for Cicero – known for his long and

eloquent orations – to condense his case against Verres down to its

barest essentials.

But Verres had successfully delayed the trial late into the judicial

term. 34 If Cicero was to avoid having to prosecute Verres in front of a

biased praetor, he had to bring the matter to a close without further

delay. With much more that could have been said, Cicero waived the

33
Ibid.
34
Ibid., at 50.
 17

rest of his time and demanded an immediate judgement.35 Verres saw

the writing on the wall and fled the capital, seeking refuge in exile.

Like Cicero in Verres’ case, there is much more that I could say. But I

must leave it at this for now. Cicero’s entire career at the Bar (which, in

Roman times, was really more of a platform in the Forum), resonated

with enormous courage and dazzling eloquence. He prepared thoroughly

for his cases, and he was ready to marshal the facts effectively and

persuasively in support of his arguments. For everything else he may

have been, Cicero was a great advocate.

III. Lord Erskine

I turn now from classical Rome to the “classic eloquence of the

English Bar”.36 There was no shortage of great advocates from 18th and

19th century Britain. There is no dearth of stories of courageous

barristers who championed their clients’ causes in the face of great

personal risk.

35
Ibid.
36
Kelly, supra, at v.
 18

The professional ethics of lawyers in Canada today was in some ways

shaped by this epoch in English history. Even the Supreme Court has

borrowed from the great speeches of the day. Speaking for the Court

some 10 years ago in R. v. Neil, Justice Binnie cited with approval Lord

Brougham’s eloquent tribute to the courage expected of counsel:37

[A]n advocate, in the discharge of his duty, knows but one person in
all the world, and that person is his client. To save that client by all
means and expedients, and at all hazards and costs to other persons,
and, among them, to himself, is his first and only duty; and in
performing this duty he must not regard the alarm, the torments, the
destruction which he may bring upon others. Separating the duty of a
patriot from that of an advocate, he must go on reckless of
consequences, though it should be his unhappy fate to involve his
country in confusion.

This was Lord Brougham. But I want to tell the story of a great

barrister who made Lord Brougham’s courage possible.38 This is Lord

Erskine. Though he was also a Member of Parliament, and, for a brief

spell, Lord Chancellor, it is Erskine’s brilliant and audacious advocacy

that resonates throughout the history of the Bar.

37
R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631 at para. 12.
38
See Kelly, supra, at 30.
 19

Lord Erskine, described by Sir Sydney Kentridge in his Dubin

Lecture as “the greatest of advocates”, was born Thomas Erskine, the

third son of the tenth Earl of Buchan.39 After a stint in the navy and the

army, he enrolled at Cambridge and entered Lincoln’s Inn. Called to the

bar in 1778, Erskine will forever be remembered for his work defending

political pamphleteers and publicists, particularly following the outbreak

of the French Revolution. Around the time of his appointment as Lord

Chancellor in 1806, the Bar of England thanked Lord Erskine for having

vindicated the public liberties of the country, 40 an honour well deserved.

For some, Erskine is remembered for his famous clients — including

Tom Paine, Tom Hardy, John Horne Tooke, John Thelwall, and

Caroline, that “unhappy Queen of England”.41 But more than that, Lord

Erskine is remembered for his remarkable qualities as an advocate.

39
Ibid., at 15 and 29; “Thomas Erskine, 1st Baron Erskine.” Encyclopædia Britannica. Encyclopædia Britannica
Online Academic Edition. Encyclopædia Britannica Inc., 2012. Web. 17 Aug. 2012.
<http://www.britannica.com/EBchecked/topic/191973/Thomas-Erskine-1st-Baron-Erskine-of-Restormel>.
40
Kelly, ibid., at 30.
41
Ibid.
 20

By one account, 42 the young Erskine, after being called to the Bar,

had trouble finding work. 43 His practice got off to a rocky start. To make

matters worse, he was penniless. Though of noble birth, his family had

fallen on hard times. By the summer of 1778, he had spent nearly every

penny he had to become a barrister. 44 He dressed shabbily45 and

survived, he was fond of saying, on cow-heel and tripe. (Not exactly the

sort of fine dining to which Cicero had become famously accustomed!)

Erskine needed, beyond anything else, an opportunity to prove himself

at the Bar.

Feeling desperate, Tom Erskine walked the streets of London. On one

occasion, caught in the rain, he took cover in the house of Welbore Ellis,

who was entertaining guests. As fortune would have it, one of his guests

was Captain Thomas Baillie. 46

42
Note that Lord Campbell gives a different account of the events leading up to Erskine receiving his first retainer
from Captain Baillie: see John, Lord Campbell, The Lives of the Lord Chancellors and Keepers of the Great Seal of
England, from the Earliest Times Till the Reign of King George IV, Vol. VI (London: John Murray, 1847) at 391.
43
Henry Flanders, “Lord Erskine” (1909) 57(6) U. Penn. L. Rev. 353 at 358.
44
Ibid., at 358.
45
Jeremy Bentham, who knew Erskine during this period, said that “[h]e was so shabbily dressed as to be quite
remarkable”: Lord Campbell, supra, at 388.
46
Flanders, supra, at 359.
 21

Captain Baillie was embroiled at the time in some legal troubles of

his own altruistic making. He was deeply anguished by the abuses and

corruption then rampant at Greenwich Hospital, including its use for

political ends by Lord Sandwich — then First Lord of the Admiralty. In

the face of denial and inaction by the Board of Directors, Captain Baillie

blew the whistle. He published a pamphlet setting out the details of the

abuses and corruption at the hospital. Lord Sandwich was not amused.

Court proceedings were instituted, and Captain Baillie was required to

show cause why he should not be charged with criminal libel. 47

At the house of Welbore Ellis, Captain Baillie’s legal troubles were a

subject of conversation when Erskine entered. With his characteristic

eloquence, Erskine levelled against Lord Sandwich a healthy measure of

invective.48 Captain Baillie was impressed. The next day, he sent

Erskine a retainer — Erskine’s first. 49

Captain Baillie already had four lawyers on the case. When the court

date came, Erskine was the last to speak for the defence. As when Cicero
47
Ibid., at 391.
48
Ibid.
49
Flanders, supra, at 360.
 22

first appeared in the Forum, expectations were low. The Solicitor

General, who assumed that someone as junior as Erskine would not dare

to address the court, rose to give his reply.50 But Erskine stood, too, and

proceeded to deliver the speech that made his career.

Erskine spoke with such eloquence, it is said, that he obtained thirty

additional retainers before he left the court that day. 51 Attorneys

crowded around him. Perhaps of more interest to his client, he had won

his first case. Captain Baillie was vindicated, and was even awarded his

costs.

I’ll restrain myself from reciting Erskine’s entire speech, but I will

give you some sense of its grandeur. As his pleadings progressed,

Erskine started into a searing attack on Lord Sandwich. The tension in

the courtroom mounted. One of the judges (Lord Mansfield) interjected,

saying that Lord Sandwich was not actually a party to the proceeding.

50
Ibid., at 360.
51
“Thomas Erskine, 1st baron Erskine”, The 1911 Classic Encyclopedia, based on the 11th Edition of the
Encyclopaedia Britannica (1911) <http://www.1911encyclopedia.org/Thomas_Erskine%2C_1st_baron_Erskine>.
Erskine apparently later reported that he had received 65 retains before leaving Westminster Hall: Lord Campbell,
supra, at 398.
 23

Erskine responded defiantly: “I know that he is not formally before the

Court”, he said, “but for that reason I will bring him before the Court.” 52

He continued, “[Lord Sandwich] has placed these men in front of the

battle in hopes to escape under their shelter, but I will not join in battle

with them: their vices, though screwed up to the highest pitch of human

depravity, are not of dignity enough to vindicate the combat with me. I

will drag him to light, who is the dark mover behind this scene of

iniquity.” 53

The audience — and apparently even the judges — were astounded

by Erskine’s remarks. They were universally amazed by this young

debutant, who, while previously unknown, was speaking with such

eloquence and courage — and passion.

Rarely is a career at the Bar made with such rapidity as Erskine’s. But

after Captain Baillie’s case, Erskine was famous. He never missed a day

52
The Speeches of the Hon. Thomas Erskine, Vol. 1 (New York: Eastburn, Kirk & Co., 1813), at p. 17.
53
Ibid.
 24

in court. It is said that, by his third year at the Bar, Erskine was raking in

an income greater than any barrister before him had ever earned. 54

Erskine’s success at the Bar should come as no surprise to anyone

who has read any of his courtroom speeches. 55 He had an extraordinary

talent for getting through to a jury, evidenced by his address in the trial

of Lord George Gordon for treason before Lord Mansfield in the Court

of Queen’s Bench – remarkably, Erskine’s very first opportunity to

address a jury. Gordon’s alleged treason arose from his having fomented

a riot – accidentally it seems – in the course of delivering a petition to

Parliament protesting a Catholic relief bill on behalf of the Protestant

Association. Though Gordon was reputedly loyal to the King, he was

nonetheless charged with having waged war against His Majesty under

the archaic doctrine of “constructive treason”.

54
Flanders, supra, at 361.
55
Interestingly, his courtroom eloquence seems to have largely abandoned him when he plied his trade in the House
of Commons; there, he is said to have been thoroughly bested by William Pitt. One commentator notes that Erskine
“very rarely shone in parliamentary debate where his rapier thrusts turned wooden.”: John Hostettler, Thomas
Erskine and Trial by Jury (Hampshire, UK: Waterside Press, 2010), at 55. Speaking of Erskine, Edmund Burke
later observed: “The Bar was the scene of his wealth, of his reputation, of his fame; this House was only the scene of
his duty. […] This House had only the refuse of the honourable and learned gentleman’s abilities; they obtained him
solely at second-hand. This was the scene of his duty, the other the scene of his pleasure.”: cited in ibid., at 56.
 25

Erskine’s co-counsel, Kenyon (later Lord Chief Justice), spoke first,

and he gave what was apparently a less than impressive performance.56

Everyone in the courtroom was left mentally fatigued. But the day was

not lost. Erskine was able to re-invigorate the defence. With his usual

courtroom charm, he brought everyone back to life.

Gordon’s anti-Catholic extremism rendered him a less than endearing

figure. Erskine managed nonetheless to evoke sympathy for his client by

portraying him as a veritable standard bearer for English civil liberties as

against the heavy-handed doctrine of treason advanced by the Crown.

Erskine’s speech concluded with this memorable peroration in which he

slyly listed the various matters he would not mention – a rhetorical

stratagem that called attention, with stunning effect, to those very

matters: 57

I may now therefore relieve you from the pain of hearing me any
longer, and be myself relieved from speaking on a subject which
agitates and distresses me. Since Lord George Gordon stands clear
of every hostile act or purpose against the Legislature of his

56
Flanders, supra at 364.
57
This is the literary device known variously as paralipsis, apophasis, or occultation – drawing attention to
something by pretending not to speak about that same topic, of which Cicero was a frequent practitioner: see Roland
Greene, ed., The Princeton Encyclopedia of Poetry and Poetics, 4th ed. (Princeton University Press, 2012), at p. 997.
 26

country, or the properties of his fellow-subjects – since the whole

tenor of his conduct repels the belief of the traitorous intention
charged by the indictment – my task is finished. I shall make no
address to your passions – I will not remind you of the long and
rigorous imprisonment he has suffered; – I will not speak to you of
his great youth, of his illustrious birth, and of his uniformly
animated and generous zeal in Parliament for the constitution of
his country. Such topics might be useful in the balance of a
doubtful case; yet even then I should have trusted to the honest
hearts of Englishmen to have felt them without excitation. At
present, the plain and rigid rules of justice and truth are sufficient
to entitle me to your verdict. 58

Of course, despite his protestations, Erskine was doing anything but

confining himself to the “plain and rigid rules of justice”. He was

making an impassioned plea for the jury to throw out the old, unjust

rules and usher in new ones. Yet, in urging the jurors merely to apply the

law objectively and to adopt the inevitable result, he was effectively

giving them rhetorical cover and implicit permission to do much more.

This strategy had its intended effect. According to Lord Campbell,

one of his biographers, Erskine “not only instantly dispelled all feelings

of exhaustion and lassitude from the minds of the jury, the Judges, and

the bystanders, but, while he spoke, they seemed all to be inspired with a
58
Speeches of Lord Erskine, supra, at p. 78.
 27

new ethereal existence, and they listened as if addressed by some pure

Intelligence of Heaven, who had appeared to instruct them!” 59

Considering that Erskine only started to speak after midnight,60 this was

doubly impressive!

Gordon, of course, was acquitted. The verdict appears to have been

warmly received well beyond the courtroom. Boswell reports that Dr.

Johnson “was glad Lord George Gordon had escaped, rather than that a

precedent should be established for hanging a man for constructive

treason; which, in consistency with his true, manly, constitutional

Toryism, he considered would be a dangerous engine of arbitrary

power.” 61

Erskine’s defence of Gordon established him, still early in his career,

as likely England’s most successful and effective advocate. Yet

notwithstanding his enviable capacity to earn what were then immense

professional fees, Erskine believed fervently in access to justice. In the

famous 1794 treason trials of Hardy and Horne Tooke, for example,
59
Lord Campbell, supra, at 409.
60
Ibid.
61
James Boswell, The Life of Johnson (Oxford: Oxford University Press, 1998), at p. 1132.
 28

Erskine took up his clients’ causes pro bono.62 “The situation of these

unfortunate prisoners”, he said, “entitles them to every degree of

tenderness and attention, and their inability to render me any

professional compensation, does not remove them at a greater distance

from one.” 63

This earned Erskine something more valuable than money: the

admiration of another great literary character of his time, Samuel Taylor

Coleridge. The poet was impressed with the way Erskine stood up for

English liberties in the treason trials, and he even expressed his

approbation in the form of a poem published in the Morning Chronicle.

The first four lines read as follows:

When British Freedom for an happier land

Spread her broad wings, that flutter’d with affright,
ERSKINE! thy voice she heard, and paus’d her flight
Sublime of hope, for dreadless thou didst stand64

62
Judith Pascoe, Romantic Theatricality: Gender, Poetry, and Spectatorship (Ithica: Cornell University Press, 1997)
at 47.
63
Ibid., quoting the Spence Papers, Add. MSS 27,813, fol. 3.
64
“To the Honourable Mr. Erskine”, first published in the Morning Chronicle, December 1, 1794, as reproduced in
Ernest Hartley Coleridge, The Complete Poetical Works of Samuel Taylor Coleridge, Vol. I (Oxford: Clarendon
Press, 1912) at 79. <http://www.gutenberg.org/files/29090/29090-h/29090-h.htm>. The reminder of this poem is
found below, in my conclusion.
 29

The 1794 treason trials were something of a spectacle, but they serve

as a telling example of Erskine’s skill as an advocate. A bit of

background might be helpful. Erskine’s clients were members of

societies calling for Parliamentary reform. These societies, such as the

“Corresponding Society” and the “Society for Constitutional

Information” became the subject of the government’s attention. It was

alleged that they were seeking to spark a revolution, and that their

members were therefore guilty of “compassing the death of our Lord the

King”.65 Hardy and Horne Tooke, among many others, got caught up in

the indictments for high treason.

In reality, the societies were little more than forums for their members

to discuss reform, not revolution. Most of their members were

committed to the English constitution,66 and their ideas more or less

adopted the thoughts of more celebrated reformers, the loyalty of whom

65
Lord Campbell, supra, at 469.
66
Ibid.
 30

was beyond reproach. 67 But this didn’t stop the prosecutions. For that,

they needed Erskine.

The trial of Tom Hardy came first. The day was Tuesday, October 28,

1794. Hardy was a simple shoemaker. Writing about Erskine’s defence

of Hardy, Bernard Kelly summarizes it nicely. The “force and beauty of

language,” said Kelly, “were mingled with the hard logic of fact”. 68

Erskine’s rhetoric may have soared, but his defence of Hardy was

rooted in the facts of the case. It is said that his cross-examination of the

Crown’s witnesses was extremely effective, as he was able to tailor his

questioning depending on the disposition of each witness.69

There are too many gems in Erskine’s defence of Hardy to do his

labour justice. But his speech to the jury contains a particularly beautiful

discussion of the English Constitution, which, owing to its continuing

relevance to modern Canadian lawyers, I share with you in part. “What

is it that distinguishes the government of England from the most

67
Ibid., at 480.
68
Kelly, supra, at 16.
69
Lord Campbell, supra, at 474-5.
 31

despotic monarchies?”70 Erskine asks, rhetorically. Resolutely, the

answer echoes back: “What but the security which the subject enjoys in

a trial and judgment by his equals; rendered doubly secure as being part

of a system of law which no expediency can warp and which no power

can abuse with impunity?”71

Erskine was successful in his defence of Hardy, and this led to the

acquittals of Hardy’s co-accused, including Horne Tooke and

Thelwall. 72 The public reaction was immense. When the trials were over

— on the last night — the crowd removed the horses from Erskine’s

carriage, and they — the crowd — drew him through the streets to his

home in Serjeants’ Inn.73 Bonfires and torches were lit in celebration.74

Erskine was so famous by this point that his portraits and busts were

sold by the thousands.75

In addition to being known for his successes, and for his forensic

eloquence and skill, Lord Erskine’s name is associated with his

70
Kelly, supra, at 33.
71
Ibid., at 33-34.
72
Ibid., at 16-17.
73
Lord Campbell, supra, at 494.
74
Ibid.
75
Ibid., at 495.
 32

commitment to professional ethics. Most people in this room, I’m sure,

are familiar with the “cab rank” rule. That is, it is an advocate’s

professional duty not to refuse clients on the basis of who they are or

what they’ve been charged with. This is one of the best and noblest

traditions of the Bar, but it is a duty that is not always understood by the

public.

Erskine would have told you the same. In 1792, he undertook the

defence of Tom Paine, who was charged with libel following the

publication of the Rights of Man. Paine was not very popular at this

time, and Erskine was most unfairly criticized for assuming his

defence.76 Erskine’s friends tried to persuade him not to take the brief.77

He was even threatened with the loss of his job as Attorney General to

the Prince of Wales.78

Erskine responded to his critics in Court, and his words have become

the classic justification for the “cab rank” rule. 79 “I will forever, at all

76
Lord Widgery, “The Compleat Advocate” (1975) 43 Fordham L. Rev. 909 at 920.
77
Lord Campbell, supra, at 455.
78
Ibid., at 459.
79
Lord Widgery, supra, at 920.
 33

hazards, assert the dignity, independence, and integrity of the English

bar” he said, “without which impartial justice, the most valuable part of

the English constitution, can have no existence”. 80

To Erskine, the consequence of allowing advocates to arbitrarily

choose their clients would be unacceptable. “From the moment that any

advocate can be permitted to say that he will or will not stand between

the Crown and the subject arraigned in the court where he daily sits to

practice,” he railed “from that moment the liberties of England are at an

end. If the advocate refuses to defend from what he may think of the

charge or the defense, he assumes the character of the judge; nay, he

assumes it before the hour of judgment; ....” 81

Erskine was unsuccessful in his defence of Tom Paine,82 and the

Prince of Wales carried out his threat to fire Erskine.83 But modern

lawyers can look back at this moment in English history with great

admiration. Erskine’s heroics at the English Bar — and his defence of its

80
Ibid., at 920.
81
Ibid., at 920-21. See also Lord Campbell, supra, at 457.
82
Lord Campbell, supra, at 458.
83
Ibid., at 459.
 34

best traditions — will survive forever in the minds of advocates across

the Commonwealth.

So too will his courage in taking on unpopular cases. Erskine knew

the risks of defending Tom Paine, but he took them anyway. He faced

public and private pressure to disregard his professional ethics, yet, to

them, he remained true. In this way, Erskine cemented his standing and

reputation as a true hero of the Bar.

Erskine will be remembered for his “dreadless” defence of civil

liberties, and for his pro bono work when the job needed to be done. But

above all else, he will be remembered for his eloquence in the

courtroom, and his ability to get through to juries. I have given you only

fragments of his speeches, but I encourage you to read them in full. You

will be well rewarded.

For effect, Erskine would sometimes swoon between the major

divisions of his orations.84 This was apparently effective courtroom

strategy in the late 18th Century. To swoon is to faint, or to enter a state

84
Pascoe, supra, at 48.
 35

of rapture or ecstasy. As I move from the second to the final chapter of

my lecture, this would be the moment to swoon. But I see no signs of

rapture or ecstasy on your part. And I have decided to spare you my

impression of an Erskine-esque fit of fainting.

I turn instead to my next subject, G. Arthur Martin.

IV. Arthur Martin

Here was another champion of professional ethics, this time a

Canadian. Charles Dubin, whose career we celebrate today, described

Arthur Martin as “the leading defence counsel of our time”, saying that

he “brought professionalism, integrity, dedication and erudition to the

practice of criminal law, which had previously not been the norm”.85

This was all eminently true.

I think it fair to say that Martin laid the foundation of the Canadian

approach to ethics at the criminal Bar. In June 1970, he delivered a

speech to this Society. In it, he defined authoritatively both the role and

the professional responsibilities of defence counsel. Not much had then

85
G. Arthur Martin & Joseph W. Irving, G. Arthur Martin: Essays on Aspects of Criminal Practice (Scarborough:
Thomson Canada Limited, 1997), Forward, ix.
 36

been written on the subject, and Martin, teaching both by his lectures

and by personal example, more or less single-handedly established the

governing criteria and the acceptable standards of conduct.

Martin was an early proponent of the view that counsel has virtually

complete direction over how the defence is presented — subject to the

client’s decision to retain the counsel of his choice, and the decision

whether or not to plead guilty.86 There may be other decisions that the

client may make, too 87, but Martin’s point was this: Advocates are

professionals, and they must be true to their professional judgement.

They must be like Cicero in the Verres case, using their experience and

knowledge to make the tough calls.

Martin also spoke powerfully about the advocate’s responsibility to

fearlessly advance the client’s case irrespective of any consequences that

86
Martin & Irving, supra, at 138-140. In their leading text on ethics in criminal law, Michel Proulx and David
Layton observe that Martin’s “lawyer-control” model of decision-making remains the dominant Canadian approach
to the role of the criminal defence lawyer: Hon. Michel Proulx and David Layton, Ethics and Canadian Criminal
Law (Toronto: Irwin, 2001), at pp. 120-24.
87
Some eminent counsel consider that the client should be guided by their advice whether or not to testify, but that
the client is ultimately entitled to make that decision.
 37

might befall the lawyer or, for that matter, anyone else. 88 In this regard,

he was a modern day Erskine.

Beyond Martin’s role in shaping the professional ethics of the

criminal defence bar, he was, to put it plainly, a great lawyer.

When I profiled Cicero, I started with his first public defence. For

Martin, I will start with his first murder case. (Martin’s first defence was

markedly less interesting. He was left to argue, he once explained, that

the overhwelming evidence against his client was no more than “a series

of extraordinary coincidences”.89 Understandably, the judge concluded

otherwise.) Martin’s defence of Mickey MacDonald is an extraordinary

story, and it has parallels to both Cicero and Erskine. I’ll start at the

beginning, with the murder. 90

One January evening in 1939, a man was shot at his own birthday

party in Toronto. He went by the name James Windsor. Mr. Windsor

was seated at his dining room table, surrounded by five others. Several

88
Martin & Irving, supra, at 136.
89
Ibid., at 8.
90
Martin’s account of this case can be found in his Bernard Cohn Memorial Lecture, reproduced in Martin & Irving,
supra, at 8-11.
 38

men entered. One discharged a fatal bullet into Windsor’s person, then

left.

In the dining room, with the revolver.

The police arrested two people and charged them with the murder:

Mickey MacDonald, and his brother Alex. Most of the eyewitnesses

from the dining room identified Mickey as the shooter, and some of

them pointed to Alex as one of the two accomplices.

To make matters worse for the accused, the Crown found some

disreputable bird to testify that Mickey had picked up a revolver from

his apartment earlier that same night. According to the witness, Mickey

told him that he had a “job” to do. When Mickey returned later in the

evening, he apparently said he had shot someone — at least according to

the Crown’s witness.

Mickey’s defence fell to Frank Regan, who asked the young Martin to

assist. There were a few problems with the Crown’s case. First, the eye

witnesses who identified Mickey in court had actually failed to pick him

out of a line up. Moreover, Mickey was adamant that he had been in a
 39

drugstore at Dundas and Jarvis around the time of the murder. If his

story was true, he could not have been the murderer: the shooting

happened many miles away.

As Martin would recount this story, criminal defence lawyers in those

days did not have private investigators available to them. They would

have to do their own investigatory work.

In this particular case, Mickey told Martin about a “little girl” named

“Madge” that he had seen in the drugstore around 7:30 on the night of

the murder — the approximate time of the shooting. Martin went out to

investigate. He put his ear to the ground and learned about a girl named

Madge who enjoyed roller-skating. Nobody knew much else, not even

her last name. So Martin went to the local arena and kept asking around.

Apparently, the young Madge had recently won a competition of some

sort. From there, Martin learned her last name and address.

Martin discovered this critical information at the eleventh hour or,

more accurately, at around 12:30 a.m., the night before the defence was

scheduled to close its case. Having little time to lose, he attended at the
 40

home of the girl’s parents early the next morning, at 8 a.m. He was

greeted by a young woman. After introducing himself as Mickey

MacDonald’s lawyer, the girl called over her father.

The father quickly pieced everything together. “She’s been telling us

for months”, he said, “that Mickey couldn’t have been the killer because

she saw him in the drugstore about 7:30 that night but we thought she

had made a mistake.” 91 Martin was able to get Madge on the witness

stand at the last minute.

Mickey was still convicted, the jury apparently thinking that Madge

was mistaken as to the time or the date. Mickey appealed, and Martin

pleaded the case for the defence.

Like Cicero appearing for the first time in the Forum, Martin looked

out of place at the Court of Appeal. He later reported that the judges

were surprised to see such a young and inexperienced lawyer appearing

for the appellant MacDonald. Two of the five judges were particularly

impatient and unkind. But after three days of hearings, Martin was

91
Ibid., at 10.
 41

successful in demonstrating reversible error by the trial judge on several

separate grounds. In a judgment authored by the Chief Justice, the Court

of Appeal ordered a new trial, 92 and, this time, Mickey was acquitted.

Again like Cicero, Martin was known for his strong stance on

preparation. He was constantly thinking about his cases. He once said

that advocates should start formulating how they will explain apparently

adverse evidence long before the trial even starts. 93

This illustrates the emphasis Martin placed on the facts of his cases.

His work as investigator in the Mickey MacDonald trial is just one

example. Following the advent of the Charter, he warned lawyers not to

forget the importance of a thorough investigation.94 “In most criminal

cases” he said, “the facts are controlling. The facts are not always what

they appear to be.”95 He went on to express the view — with which I

completely agree — that if a case is to be won, it will most likely be won

92
R. v. MacDonald (1939), 72 C.C.C. 182 (Ont. C.A.)
93
Martin & Irving, supra, at 100-101.
94
This admonition stands in some contrast to the British practice where lawyers are divided into two distinct groups,
barristers and solicitors. Under this divided profession arrangement, the barrister traditionally plays little or no role
in developing the factual underpinning of a case. The great English barrister Sir Patrick Hastings went so far as to
declare that “[i]t is no part of the duties of an advocate to investigate the evidence that is to be brought before the
Court. The facts are placed before him by a solicitor who himself questions the proposed witnesses and satisfied
himself both as to their ability and reliability.”: Patrick Hastings, Cases in Court (London: William Heinemann,
1949), at p. 166.
95
Ibid., at 31.
 42

by exhaustively and intelligently investigating the facts. 96 From there,

advocates must use their skills to present the facts, cross-examine

witnesses, and persuasively argue their theory. 97 In short, most criminal

trials come down to the lawyer’s ability to sift through, understand, and

effectively present the unique facts of the particular case.

These are skills that Martin had in abundance, as he demonstrated in

the first Truscott Reference, 98 for example. Charles Dubin referred to

Martin’s cross-examination of the pathologist in that case as “a classic,

and one of the most brilliant cross-examinations in our annals of

criminal law”. 99

Steven Truscott was convicted at trial of the murder of Lynne Harper.

Some time following an unsuccessful appeal to the Court of Appeal for

Ontario, the Governor General referred the matter to the Supreme Court.

Martin, together with co-counsel Jolliffe and Carter, appeared for Mr.

Truscott.
96
Ibid. And not just at trial: Justice John Laskin of the Ontario Court of Appeal has observed, more recently, that
“[m]ost cases are decided on the judge's view of the facts - certainly, in our court, and even in the Supreme Court of
Canada.”: John I. Laskin, “Forget the Wind Up and Make the Pitch: Some Suggestions for Writing More Persuasive
Factums”, available at http://www.ontariocourts.on.ca/coa/en/ps/speeches/forget.htm
97
Ibid.
98
Reference Re: Steven Murray Truscott, [1967] S.C.R. 309 [Truscott (SCC)].
99
Martin & Irving, supra, Forward, ix (referring to the cross-examination of Dr. Simpson).
 43

In an extraordinary proceeding, the Supreme Court received the

evidence of sixteen witnesses called by the defence and nine called by

the Crown. A great deal of medical evidence was also presented to the

Court.100 At issue was the time of death. The Crown’s theory was that

the victim was killed before approximately 7:45 p.m., and that Truscott

was the only one with an opportunity to commit the murder. 101 The

defence, however, argued that there was reasonable doubt with respect

to the time of death. If Lynne Harper was killed after 8 p.m., Truscott

could not have been the murderer. He had an ironclad alibi.102

The Crown’s theory was that Lynne Harper ate her last meal at 5:45,

and died approximately two hours later. In support of its theory, the

Crown called Dr. Keith Simpson, head of the Department of Forensic

Medicine at Guy’s Hospital in London. Dr. Simpson testified that it was

reasonable to conclude — based on the victim’s stomach contents —

that she died within two hours of her last meal: in other words, before

100
Truscott (SCC), supra, at 312.
101
Truscott (ONCA), supra, at para. 142.
102
Truscott (ONCA), supra, at paras. 30 and 145.
 44

7:45. Martin’s challenge was to shake Dr. Simpson’s evidence on cross-

examination.

What made Martin’s cross-examination particularly effective was that

he was able to engage with the expert witness on the reliability of the

science underlying his testimony. To prepare, Martin read just about

every article and book ever written on the subject of estimating the time

of death based on a person’s stomach contents.103 He also studied the

pathologist’s own work on forensic medicine. He even offered some

suggestions for one of Dr. Simpson’s books not yet written. His carefully

conceived cross-examination, as you shall presently see, closed off the

witness’s every avenue of retreat or escape as Martin pursued his

objective.

Here is an extract:

Q. Now, you have written extensively, Dr. Simpson, in the field

of forensic medicine?

A. Yes.

103
Martin & Irving, supra, at 18.
 45

Q. Now, I’ve read a good many of your books and one of the
books you have written is entitled, Forensic Medicine and, as my
learned friend Mr. Scott says, it has gone through five editions
now?

A. Yes.

Q. And in the last edition, indeed, you say this edition has been
combed to insure it is abreast of the times. I notice at page 7 of the
book — of course, I quite realize here you are dealing with a post-
mortem event — you say under the heading of “Cooling”, this,
“this is the only real guide to the lapse of time during the first 18
hours after death and an early measurement is often vital to the
establishment of an approximate time of death”.

A. Yes, sir.

Q. Do you, anywhere in this book, suggest that the stomach

contents and the state to which digestion has proceeded following
the last meal is a reliable guide to the time of death?

A. No sir. I think that that is, as may be evident to you, a short

book for the student.

Q. It would not have made it much bigger to put in a sentence

indicating that stomach contents were also a reliable guide?

A. No sir, I appreciate that, but it is not intended to be a

comprehensive work, of course, having been only for students.

Q. It should contain the things upon which there is greater

consensus.

A. I think you may expect the next edition, sir, to contain some
reference.
 46

Q. You are going to change the next edition?

A. I think it is how one improves one’s textbooks, by

experience.

Q. When did you decide to change the next edition?

A. Each time I’m writing I’m learning and each case helps me to
improve the next edition.

Q. I will throw this away and buy the next edition... 104

Martin also marshalled against Dr. Simpson’s evidence-in-chief a

book Dr. Simpson had himself edited. Martin was able to show that, in

another scientifically documented case — where the deceased had

stomach contents very similar to those found in Lynne Harper — nine

hours had passed between the last meal and the time of death.105

Martin’s masterful cross-examination of Dr. Simpson, marked by the

civility of a gentleman and the skill of a surgeon, is to this day

celebrated as a monument to effective advocacy. A divided Supreme

104
As reproduced in Martin & Irving, supra, at pp. 19-20.
105
Ibid., at 21.
 47

Court nonetheless refused to overturn the jury’s verdict. 106 But Martin’s

cross-examination had a lingering effect on Steven Truscott’s eventual

acquittal, 30 years later, by the Ontario Court of Appeal.107 It cannot be

emulated, but only admired with awe.

V. Conclusion

There is so much more that I could say about Arthur Martin — or

Cicero or Erskine — but I have run short of time. Permit me to add this:

These three illustrious advocates lived and practised in different places,

different times, and very different historical contexts. Cicero’s Forum;

Erskine’s Westminster Hall and Old Bailey; Martin’s Osgoode Hall and

Supreme Court of Canada were more marked by what made them

different than what drew them together. Yet the advocates who practiced

there — at least the great ones — had much in common.

106
Truscott (SCC), supra. Justice Emmett Hall was the sole dissenter, insisting that “the trial was not conducted
according to law” while refraining from expressing any decided view on Truscott’s guilt or innocence: ibid., at 383.
107
Truscott (ONCA), supra, at para. 3.
 48

Cicero, Erskine and Martin were all courageous advocates who

fearlessly defended their clients no matter the obstacles, the risks, the

threats and the dangers. All three were eloquent in their speech, and all

three were masters of rotating the advocate’s prism so as to cast their

client’s cases in the most favourable light.

Cicero acquainted himself in detail with the facts of all of his cases,

and he spent much time reflecting on them. So too did Martin. Erskine,

for his part, was known for his skill in grounding his powerful rhetoric

into the “hard logic of fact”. None of the three took shortcuts or cut

corners in preparing their cases.

As an advocate in times gone by, I have set out on this special

occasion to honour a great advocate and friend, Charles Dubin, by

weaving together three biographical strands of remarkable advocacy.

My aim has been to persuade you by example, to commend to you, as

members of the Bar, an appreciation of the distinguishing qualities

shared by Marcus Tullius Cicero, Thomas Erskine and G. Arthur Martin.

 49

Their courage, eloquence and thoroughness in preparation transcend the

constraints of place and time.

What I have lacked today in eloquence, I have endeavoured to

obscure with preparation and dauntless courage. Only the brave or the

foolhardy would have dared to follow Eddie Greenspan, Sydney

Kentridge and Ian Binnie in delivering a Dubin lecture. Given your

indulgence and the limited choice, I hope you will think me brave.

And, on that note, I leave you with more of Coleridge’s poem:

When British Freedom for an happier land

Spread her broad wings, that flutter'd with affright,
ERSKINE! thy voice she heard, and paus'd her flight
Sublime of hope, for dreadless thou didst stand
(Thy censer glowing with the hallow'd flame)
A hireless Priest before the insulted shrine,
And at her altar pour the stream divine
Of unmatch'd eloquence. Therefore thy name [...]