Back To Law Matters | Summer 2014

A View from the Bench

This issue of Law Matters will land upon you in what I understand to be the thick of the golf season.  Now, I confess at the outset that I don’t play golf. I also don’t drink Scotch. It truly is a miracle that I was allowed into the legal profession at all. In any event, the result is that I know very, very little about golf.  What I have learned is what I have gleaned, willingly or otherwise, from those other judges with whom I happily take lunch. However, in true judicial fashion, and in keeping with the highest traditions of the bench, that should not deter me from writing about some facet of reality about which I know almost nothing. Good grief, if we judges only wrote about the bits of life we had actually experienced, case report publishers would wither on the proverbial vine.

Fortunately, the topic of golf has been the subject of writing much more clever than anything I could create. Sir Winston Churchill said that “golf is a game whose aim is to hit a very small ball into an even smaller hole, with weapons singularly ill-designed for the purpose.” Bob Hope noted that “if you watch a game, it’s fun. If you play it, it’s recreation. If you work at it, it’s golf.”

P. G. Wodehouse, the author of some of the funniest writing in the English language, wrote a number stories about golf (treat yourself to a collection of them in The Golf Omnibus by P. G. Wodehouse, available in paperback at Amazon.ca). He devised the ultimate test of a person’s character (would that we judges had such a reliable method of determining candour):

Golf…is the infallible test. The man who can go into a patch of rough alone, with the knowledge that only God is watching him, and play his ball where it lies, is the man who will serve you faithfully and well. (The Clicking of Cuthbert).

Now, if one wants two lovely examples of  “judicial writing” specifically dealing with golf, I offer the following.

The first is a fictionalized judgment from the book Uncommon Law by Sir A. P. Herbert.  Uncommon Law, and its sequel, More Uncommon Law, may be only available from used book sellers, but they are well worth the personal or on-line search. 

Sir A.P. Herbert (1890-1971) was a British barrister who never practiced, but served as a Member of Parliament, and entertained many readers of Punch with judgments he wrote on behalf of such imaginary legal luminaries as Lord Arrowroot, Lord Sheep, Lord Flake, Lord Mildew, and Lord Bottle. 

However, as to the topic at hand, I direct you specifically to the judgment of Mr. Justice Trout in R. v. Haddock, in which his Lordship dealt with this thorny issue: Is a Golfer a Gentleman? Under the Profane Oaths Act, 1745, each curse attracted a fine of one shilling if launched by a day-labourer, soldier, or seaman; two shillings if the offender was any other person below the degree of gentleman; and five shillings if the offender was a gentleman or above.  Mr. Haddock was charged with, and pleaded guilty to, swearing while playing golf, and with over 400 admitted curses, the category into which Mr. Haddock fell was of some financial consequence.  Trout, J. found that golf, as an activity, was a source of such provocation that the legislation could not be held to apply to it.  He accepted defence evidence which proved “the subversive effect [playing golf has] upon the ethical and moral systems of the mildest of mankind.”  His Lordship held that “[i]t is clear that the game of golf may well be included in that category of intolerable provocations which may legally excuse or mitigate behaviour not otherwise excusable, and that under that provocation the reasonable or gentle man may reasonably act like a lunatic or lout respectively, and should legally be judged as such.”  That sounds consistent with what I hear at lunch.

Before I leave Sir A.P., and though completely unrelated to golf, I must recommend to you his judgment in another case involving Mr. Haddock: R. v. Haddock (Is It A Free Country?), in which Lord Light, L.C.J., observed: “The present issue is one of comparative simplicity. That is to say, the facts of the case are intelligible to the least-instructed layman, and the only persons utterly at sea are those connected with the law”, and that “It is a fundamental principle of English law that a person who appears in a police court has done something undesirable....”

The second bit of judicial writing concerning golf to which I direct you is from the real world (well, as real as the world of lawyers and judges gets).  In PGA Tour, Inc. v. Casey Martin, 532 U.S. 661 (2001), Mr. Martin sought, under the auspices of the Americans with Disabilities Act of 1990, a direction that he be permitted to use a golf cart in professional golf tournaments.  Justice Scalia (who in my respectful, and admiring view, is as refreshing to American law as Lord Denning was to English law) wrote a dissenting opinion in which he said:

If one assumes, however, that the PGA Tour has some legal obligation to play classic, Platonic golf -- and if one assumes the correctness of all the other wrong turns the Court has made to get to this point -- then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power ‘[t]o regulate Commerce with foreign Nations, and among the several States’, ..., to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a ‘fundamental’ aspect of golf.

By the way, if you would like more of Justice Scalia’s wonderful writing, and reasoning, read Scalia Dissents, edited by Kevin A. Ring, and published in 2004.

Next to the mythical Justice Trout and the very real Justice Scalia, when it comes to writing about golf, it is clear to me that I will require a mulligan.