The Thousandth Man: A Biography of James McGregor Stewart 9781442620827

Table of contents :
Contents
Foreword: THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY
Foreword: VIVIAN S . MORRISON
Preface
Acknowledgments
PART ONE: Dalhousian, Pictonian, Presbyterian
1 ‘Lad O’ Pairts’
2 ‘Undesirable Elect Dalhousie Cripple’
3 Religion and Love
PART TWO: Bar and Privy Council
4 Prime Serjeant
PART THREE: Nova Scotia Incorporated
5 Business Law Man
6 The Alter Ego
7 The ‘Royal Family’
PART FOUR: National Affairs
8 Royal Commissionaire
9 Coal Bed of Procrustes
PART FIVE: Swansong
10 Victim, Protégé, Master
11 Twilight of the God
Appendix A: The Law Firm’s Names, 1867–1955
Appendix B: Profile of Stewart’s Corporate Career, 1914–1955
Appendix C: The Law Firm’s Major Corporate Clients, 1909–1955
Notes
Picture Credits
Index

Citation preview

THE THOUSANDTH MAN: A BIOGRAPHY OF JAMES MCGREGOR STEWART

James McGregor Stewart (1889 1955) was perhaps the foremost Canadian corporate lawyer of his day. He was also an appellate counsel, venture capitalist, Conservative Party fundraiser, bibliographer of Rudyard Kipling, and sometime university teacher of classics. A leader of the bar in the inter-war period, he was the first Maritimer to serve as president of the Canadian Bar Association. He distinguished himself mainly in constitutional cases before the Judicial Committee of the Privy Council. During his career, Stewart was also head of the leading law firm in eastern Canada (now Stewart McKelvey Stirling Scales), director and vice-president of the Royal Bank of Canada, and senior counsel to the Royal Commission on Dominion Provincial Relations. Above all, Stewart was committed to the idea of law as a truly lea rned profess ion and to the bar as the most important legal institution. To this day, no lawyer has held such prestige and power both within and outside Atlantic Canada; in his time he was the only Maritime lawyer who gained full acceptance by every branch of the Canadian establishment. Thematic rather than chronological in approach, this fascinating biography provides both a history of a uniquely Canadian career and an interpretation of its significance for Stewart s time and ours. (Osgoode S ociety for Canadian Legal History) BARRY CAHILL is an independent scholar in Halifax.

PATRONS OF THE SOCIETY

Aird & Berlis Blake, Cassels & Graydon LLP Davies, Ward & Beck Fasken Martineau DuMoulin LLP Gowling, Strathy McCarthy Tétrault Osler, Hoskin & Harcourt LLP Stewart McKelvey Stirling Scales Torkin Manes Cohen & Arbus LLP Torys Weir & Foulds

The Osgoode Society is supported by a grant from The Law Foundation of Ontario.

The Society also thanks The Law Society of Upper Canada for its continuing support.

The Thousandth Man A Biography of James McGregor Stewart

B A R R Y C A H I LL

Published for The Osgoode Society for Canadian Legal History by University of Toronto Press Toronto Buffalo London

© Osgoode Society for Canadian Legal History 2000 Printed in Canada isbn 0-8020-4842-0

Printed on acid-free paper

Canadian Cataloguing in Publication Data Cahill, Barry The thousandth man : a biography of James McGregor Stewart Includes bibliographical references and index. isbn 0-8020-4842-0 1. Stewart, James McGregor, 1889–1955. 2. Lawyers – Canada – Biography. 3. Businessmen – Canada – Biography. I. Osgoode Society for Canadian Legal History. II. Title. ke416.s838c33 2000 340v.092 c00-930396-0 kf345.z9s73c33 2000

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

In memory of Donald James Morrison, QC 1924–1992

About a lawyer who quit the firm, he said, ‘He wasn’t going to get very far with us anyway. He likes to spend too much time with his wife and children.’ – Harry Bruce, Corporate Navigator: The Life of Frank Manning Covert

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The Thousandth Man ONE man in a thousand, Solomon says, Will stick more close than a brother. And it’s worth while seeking him half your days If you find him before the other. Nine hundred and ninety-nine depend On what the world sees in you, But the Thousandth Man will stand your friend With the whole round world agin you. ‘Tis neither promise nor prayer nor show Will settle the finding for ‘ee. Nine hundred and ninety-nine of ‘em go By your looks, or your acts, or your glory. But if he finds you and you find him, The rest of the world don’t matter; For the Thousandth Man will sink or swim With you in any water. You can use his purse with no more talk Than he uses yours for his spendings, And laugh and meet in your daily walk As though there had been no lendings. Nine hundred and ninety-nine of ‘em call For silver and gold in their dealings; But the Thousandth Man he’s worth ‘em all, Because you can show him your feelings. His wrong’s your wrong, and his right’s your right, In season or out of season. Stand up and back it in all men’s sight – With that for your only reason! Nine hundred and ninety-nine can’t bide The shame or mocking or laughter, But the Thousandth Man will stand by your side To the gallows-foot – and after! Rudyard Kipling Rewards and Fairies (1910)

Mr. Kipling nodded his head towards Mr S[tewart] and said: ‘I think I have found my “Thousandth Man.”’ Elizabeth Stewart, 24 Nov. 1967, about the meeting at ‘Bateman’s,’ 27 July 1932

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Contents

fo re wor d by The Osgoode Society xi f o r ewor d by Vivian S. Morrison xiii p r e fac e xv ac k n o w l e d g m e n t s xvii Part One: Dalhousian, Pictonian, Presbyterian 1 ‘Lad O’ Pairts’ 3 2 ‘Undesirable Elect Dalhousie Cripple’ 16 3 Religion and Love 29 Part Two: Bar and Privy Council 4 Prime Serjeant 49 Part Three: Nova Scotia Incorporated 5 Business Law Man 77 6 The Alter Ego 92 7 The ‘Royal Family’ 103

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Part Four: National Affairs 8 Royal Commissionaire 117 9 Coal Bed of Procrustes 126 Part Five: Swansong 10 Victim, Protégé, Master 147

11 Twilight of the God 165 append ix a: The Law Firm’s Names, 1867–1955 175 ap pend ix b: Profile of Stewart’s Corporate Career, 1914–1955 176 A p p e nd ix

c: The Law Firm’s Major Corporate Clients, 1909–1955 178 n o t e s 179 pic tur e c r edit S 251 i n d e x 253

Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY

The purpose of The Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, a former attorney general for Ontario, now chief justice of Ontario, and of officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include a research support program, a program assisting research by graduate students, and work in the fields of oral history and legal archives. The Society publishes volumes of interest to the Society’s members that contribute to legal–historical scholarship in Canada, including studies of the courts, the judiciary, and the legal profession; biographies; collections of documents; studies in criminology and penology; accounts of significant trials; and work in the social and economic history of the law. Current directors of The Osgoode Society for Canadian Legal History are Robert Armstrong, Jane Banfield, Tom Bastedo, Brian Bucknall, Archie Campbell, J. Douglas Ewart, James Flaherty, Martin Friedland, John Honsberger, Kenneth Jarvis, Allen Linden, Virginia MacLean, Wendy Matheson, Colin McKinnon, Roy McMurtry, Brendan O’Brien, Peter Oliver, Paul Reinhardt, Joel Richler, James Spence, and Richard Tinsley. The annual report and information about membership may be obtained by writing: The Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N6. Or telephone: (416) 947-3321.

xii fo r e w o r d b y t he o s g o o d e s o c i ety

Barry Cahill’s study of the life of James McGregor Stewart adds an exciting new dimension to Canadian legal biography. James McGregor Stewart (1889–1955) was a towering figure in Canada’s inter-war legal and business establishments. The foremost Canadian corporation lawyer of his day, head of an elite Halifax law firm, president of the Canadian Bar Association, and a dollar-a-year man in wartime Ottawa, he was both an intimate adviser to some of Canada’s most important corporate leaders and himself one of our most illustrious businessmen. No lawyer, before or since, has enjoyed such prestige or exercised more behindthe-scenes power both within and outside the Atlantic region; in his time he was the only Maritime lawyer fully accepted by every branch of the Canadian establishment. In the absence of very many personal or legal records, Barry Cahill has carried out imaginative and comprehensive research in a wide range of existing sources Demonstrating exemplary scholarship, good literary sense, and sound judgment, he has brought to life the remarkable story of a man who overcame many challenges to become one of the leading Canadian lawyers of his day. This is compelling reading. We are grateful to Barry Cahill for his sustained efforts and dedication in probing the often-obscure complexities of a corporate law practice to bring to life the story of a fascinating Canadian lawyer. And we thank Stewart McKelvey Stirling Scales, the law firm that James McG. Stewart adorned for so many years, for supporting publication of this volume by becoming Patrons of The Osgoode Society. R. Roy McMurtry President Peter N. Oliver Editor-in-Chief

Foreword VIVIAN S. MORRISON

My mother often spoke of the custom in her Cape Breton home of reciting the names of one’s forefathers, which one learned at an elder’s knee even before attending school, and commonly known as ‘following the generations.’ In their book, The Hebridean Connection (1984), D.A. Fergusson and A.J. MacDonald describe the transmission of this Scottish oral tradition through appointed ‘sennachies,’ or memory-keepers. The Oath of the Sennachies, first taken in 1620, and quoted in this book, was as follows: Instruction through Vows To preserve inviolate the history of the fathers. To pass it along without bias by instruction From mouth to mouth, from knee to knee, The witness and the heritage most precious In the power of the free, as opposed to the unfree, Without injury to any person or thing, Without twisting the truth, in opposing deceit, Without strenghtening evil, without weakening justice. So long as the blood is warm, and breath is in the body, To the awakening of the Feinn [Gaeldom].

James McGregor Stewart (1889–1955) – son of James McGregor, son of

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Murdoch, son of John, son of Donald – became one of Nova Scotia’s most illustrious sons. He was proud of his Scottish ancestry, which included men and women of notable intellect who excelled in many fields. His native province benefited from his love of learning and his rare mental acuity. But above and beyond all his scholarly, legal, and business achievements, he was a family man. His own family as well as his wife’s meant much to him, and he, though loved and respected by both young and old in this circle, considered himself only one of many. He treated them all fairly and rejoiced at their successes and sympathized with them in their failures. Having in 1953 married into this extended family, whom I had known well for ten years, I was fortunate enough to experience his thoughtfulness and caring. So, when approached by Barry Cahill, who wished to write a biography of this great and good man, I could answer only in the affirmative. Barry Cahill’s detailed research and scholarly perspective on his subject, along with his evidently deep admiration for Mr Stewart, have produced an exceptional book about the life and times of a distinguished Canadian, whose credo is well summed up in the Oath of the Sennachies. ‘braemar’ halifax, ns

Preface

In 1994 Gregory Marchildon invited me to work with him in preparing a brief history of the law firm now called Stewart McKelvey Stirling Scales over the period 1927–49, when James McGregor Stewart (1889–1955) was head of the firm which he had joined in 1914. When we started I knew a little of the firm’s history but nothing of Stewart. Our analysis of the links between a firm like Stewart’s ‘and changes in Canada’s corporate economy in the twentieth century’ led us to conclude that Stewart had in fact transfigured the firm – he, not the firm, was the real institution.1 We undertook preliminary studies of Stewart and his law firm by way of contributing to the new sub-field of business and legal history, inaugurated with Volume IV (1990) of the Osgoode Society’s series Essays in the History of Canadian Law. The present book accordingly presents a historical case study of the career (1914–55) of a pre-eminent business lawyer, who helped facilitate the Maritimes’ transition from industrial-finance-corporate to state capitalism. No lawyer, before or since, has enjoyed such prestige or exercised more behind-the-scenes power both within and outside the Atlantic region; in his time he was the only Maritime lawyer fully accepted by every branch of the Canadian establishment.2 This consummate legal entrepreneur functioned as an integral part of both the legal and the business elites, as we see in chapters 4–9 (parts II– IV). As a member of the legal elite, he appeared before the Supreme Court of Canada and the Judicial Committee of the Privy Council, served

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as president of the Canadian Bar Association (chapter 4), and was counsel to the Rowell-Sirois Commission (chapter 8). As part of the business elite, he helped transform Maritime industry and rose to be a vicepresident of the Royal Bank (see chapters 5 and 6), and during the Second World War he administered coal production and distribution for the federal government (see chapter 9). The connections between the worlds of law and business were many, as we see throughout his lifelong involvement in Dalhousie University, which figures most prominently in part I, in his formation by his Presbyterian family and Presbyterian-influenced educational institutions, and in part V, in later elements of his full and complex life. And politics, too, was part of the ‘seamless web’ (Carol Wilton’s phrase)3: Stewart was a committed and active Conservative, though always behind the scenes (chapter 7), seeing to it that the Conservative government of Nova Scotia in the late 1920s and early 1930s toed the corporate line. Physically challenged while mentally supremely endowed, Stewart was a self-made man of parts, equally adroit at the business of law and the law of business. In him the head wore out the heart, and he died, before completing the alloted span, of an illness that might have spared him had he ever spared himself. I completed the manuscript on the 44th anniversary of James McGregor Stewart’s death, 11 February 1999. Since my only claim on his memory is that my lifetime intersected his, I can but hope that I have done him at least partial justice.

Acknowledgments

This book owes its existence to two people: to my friend and sometime collaborator, Gregory P. Marchildon, who introduced me to James McGregor Stewart, and to Vivian S. Morrison (holder of the Stewart archive and copyright), who agreed that a scholarly biography of J. McG. Stewart should be written and that I should be the one to attempt it. No sponsor of what is avowedly an authorized life could have shown a greater willingness and ability to co-operate in a sometimes difficult and always demanding task. Her unpublished biographical sketch of Mr Stewart, written earlier and for another purpose, was a revelation to me. Not only did she throw open the Stewart archive, which, though small and selective, is of the best quality; she also candidly shared her own many invaluable recollections of Mr Stewart, which cover the last fourteen years of his life; she carefully read and commented on each chapter as it appeared; she accepted my invitation to write a foreword; and she permitted me to dedicate the work to the memory of her late husband, Donald J. Morrison, QC, who was Mrs Stewart’s nephew and a surrogate son to the loving but childless couple. A number of other people have assisted me greatly. I particularly appreciated words of encouragement from the then–chief justice of Nova Scotia, the Honourable Lorne O. Clarke, QC. John J. McG. Stewart, head of the Stewart family, shared with me his recollections of his uncle and godparent, who died when he was fourteen, and gave me access to Stewart family muniments. J. William E. Mingo, QC, of the Halifax office

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of Stewart McKelvey Stirling Scales (formerly Stewart MacKeen & Covert), provided me with copies of the unpublished firm history and memoirs by Stewart’s long-time colleague Frank Manning Covert, QC, as well as access to the few surviving archival records of the predecessor firms. My good friend W. Michael S. Covert allowed me access to his late father’s diaries and other papers. Mary L.S. Covert shared with me the only extant letter from Stewart to Frank Covert and her recollections both of Stewart and of his special relationship with her late husband. Evelyn W. Coppell, Stewart’s secretary from 1949 to 1955, told me of her many recollections, offered some profound insights, and gave me a charming snapshot of Stewart, taken with his friend Lord Macmillan during Dalhousie’s ‘centenary’ celebration of 1938. Staff at the Hector Centre Archives (Pictou County Genealogy and Heritage Society) went out of their way to be helpful, as did the staff of Pictou Academy, where Stewart was a student. Dr T.J. (Jock) Murray, dean emeritus of the Faculty of Medicine at Dalhousie University, opened to me his research files on Dr John Stewart, Stewart’s uncle. Ross Graves shared with me his copies of transcriptions of early correspondence of Stewart’s mother, Julia Creelman, as well as his incomparable knowledge of Stewiacke Valley families. Jean E. Murray, owner and transcriber of the original letters, generously provided both electronic and paper copies of her own transcriptions, now in the Colchester Historical Museum Archives. Murray Montena, great-great-grandson of midwife Jane Soley Hamilton, who delivered Stewart’s eldest brother, granted me access to her birth book. Susan G. Byrne, trust officer, Montreal Trust, gave me access to executorship records of the Stewart estate. Laura Stanley Woolner allowed me to use the papers of her father, Carleton W. Stanley, president of Dalhousie 1931–45, whose nemesis Stewart was. George T.H. Cooper, QC, managing trustee of the Killam Trust, let me study the records of the trust – apparently all that remains of the archival records of I.W. Killam and his wife, Dorothy Johnston Killam. Lorna Wilson provided me with a copy of her genealogy of the Wilson (Mrs Stewart’s) family. Leita Askew showed me extracts from her genealogy of the Stewart family, as well as providing copies of many letters and documents relating to Stewart’s eldest paternal aunt, who settled in Alberta. Clara Jefferson granted access to the papers of her father, George Nowlan. Darrel Pink, executive director, opened to me the minutes of the Nova Scotia Barristers’ Society. Jim David, executive director, Progressive Conservative Association of Nova Scotia, gave me access to minutes of the executive committee of the

Acknowledgments xix

Conservative Party of Nova Scotia from 1922. The late Ralph W. Kane, long-time clerk of session, Presbyterian Church of St David, Halifax, allowed me to examine the minutes of the kirk session and shared his knowledge and recollections of Stewart, who was an ‘adherent’ of St David’s. Hon. M.A. MacPherson, QC, formerly of the Saskatchewan Court of Appeal, shared his law-student recollections of Stewart and shed light on the close friendship between Stewart and M.A. MacPherson, Sr. James S. Cowan, QC, a senior member of Stewart McKelvey Stirling Scales, helped me to understand better the relationship among Stewart, Frank Covert, and his own father, the late Chief Justice Gordon S. Cowan of the Supreme Court of Nova Scotia, Trial Division. D.A.C. Harvey (associate dean, Faculty of Law, University of Manitoba) helped document Cowan’s career on the eve of his joining Stewart’s law firm. George F. Curtis (dean emeritus of the Faculty of Law, University of British Columbia), Hon. R.A. Donahoe, Jessie Fitch, Andrew O. Hebb, Lola Henry, John J. Jodrey, Bruce Nickerson, and Carlisle Norwood, shared recollections of Stewart and his contemporaries, as did the Rt Hon. Robert L. Stanfield, Robert J. McCleave, QC (who articled with Stewart), and the Hon. Angus L. Macdonald, QC. Bowater Incorporated opened to me the directors’ minutes of Mersey Paper Company Limited (Liverpool, NS), where Karen Talbot and Mary Kingston provided valuable information and assistance. Claire Milton, corporate secretary, High Liner Foods Inc., made available the early directors’ minutes of National Sea Products Limited. Douglas Lochhead, professor emeritus of Canadian studies at Mount Allison University, let me read transcripts of his own personal diary covering the establishment of the Kipling Library at Dalhousie, where he was university librarian from 1953. Karen E.M. Smith (head, Special Collections, Killam Memorial Library, and ex officio Kipling librarian) initiated me into the mysteries of the Kipling Collection, of which the Stewart Donation forms the core and largest part. Corinne Earle (née Dares) shared recollections of her work as inaugural Kipling librarian. Elizabeth Inglis, University of Sussex Library (Manuscripts Section), provided access to the Kipling Papers and answered numerous queries relating to them. Thomas Pinney, whose definitive edition of the letters of Rudyard Kipling has now reached four volumes, answered queries and shared information about Kipling in Canada. Dr Thérèse Vanier gave me permission to examine the papers of her father, Georges P. Vanier, who took Stewart to visit Kipling. David Kaplan shared memo-

xx acknowledgments

ries and papers of his late father, Israel Kaplan, who corresponded with Stewart on Kipling matters. The Harry Ransom Humanities Research Center (HRHRC), University of Texas at Austin, provided access to the archival records of James F. Drake Inc., Stewart’s chief North American dealer in Kipling. Professional colleagues assisted me in many ways, large and small. The provincial archivist of Nova Scotia, W. Brian Speirs, granted me special leave on two occasions; his predecessor, Carman V. Carroll, gave me research access to an important file within the archives’ own fonds. Allan Dunlop, formerly associate provincial archivist, shared information with me and gave me helpful advice. Troy Wagner, library assistant at Nova Scotia Archives and Records Management (formerly Public Archives of Nova Scotia), graciously processed more inter-library loan requests than he or I would care to remember; I shall always be grateful to him. Dr Charles Armour, university archivist emeritus, and the staff of the Dalhousie University Archives could not have been friendlier or more helpful. My friends Jane Smith (alas now deceased) and Janet Bishop, of the Archives Department of the New Brunswick Museum, facilitated my access to restricted papers in the John Clarence Webster fonds. Carolyn Earle, archivist emeritus of the Maritime Conference, United Church of Canada, helped me with the official records of the pre-1925 Presbyterian Church in Canada, as did Kim Arnold, archivist and records officer, The Presbyterian Church in Canada, with the post-1925 church. Owen McInerney, archivist, Queen Elizabeth II Health Sciences Centre Archives, granted me access to the papers of Dr John Stewart. Trina Gillis, government records archivist, Saskatchewan Archives Board, helped me with my inquiries into the disbarment of Stewart’s comrade, C.B. Smith – long a well-kept secret in Stewart’s law firm – while Allan T. Snell, QC, general counsel, Law Society of Saskatchewan, provided strict conditional access to Smith’s file. Gord Rabchuk, corporate archivist, Royal Bank of Canada, let me study the few archival records of the bank open for historical research. Karen White, archivist of the Roman Catholic Archdiocese of Halifax, and Edward J. Dowling, SJ, of the Archives of the Jesuit Province of Upper Canada, shed light on Stewart’s involvement in the affairs of Saint Mary’s University at a critical juncture. Drake Petersen, university librarian/archivist, and Janet Hathaway, assistant archivist, University of King’s College, Halifax, responded to my queries about Stewart’s honorary

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doctorate (1939). Cheryl Ennals, university archivist, Mount Allison University, provided me with access to the records of the Classical Association of the Maritime Provinces, of which Stewart was a charter member. I received professional research assistance from David Dee (Kingston); Janice Cook (Fredericton); Leonard F. Gebbett (London, England); Susan Lewthwaite, research coordinator, Law Society of Upper Canada (Toronto); Fiona Marshall (Halifax); Dr Allen B. Robertson (Halifax); and Susan Villeneuve (Ottawa). Without their expertise, I could not have completed the research, much less written the book. P.B. Waite, professor emeritus of history and author of the official history of Dalhousie University, not only shared his accumulated wisdom and his research and allowed me a preview of his then-unpublished second volume of The Lives of Dalhousie University, but also read and critiqued my Dalhousie chapter. Professional historians Duncan McDowall, Margaret Prang, and T.D. Regehr provided timely advice and assistance. James D. Frost, Philip Girard, Douglas Lochhead, Greg Marchildon, and the late David Ricardo Williams read and critiqued individual chapters. Allan Marble answered my questions on cardiology and medical history. The Osgoode Society for Canadian Legal History gave me a grant in aid of research and writing, as did the Pictou Academy Educational Foundation, of which Stewart was a founding trustee. Their confidence and tangible support were critical, and I stand indebted to them in the other sense of that word. Peter N. Oliver, the Osgoode Society’s editorin-chief, provided me with moral support and sage advice born of wisdom and long experience as a professional historian.

James McGregor Stewart, by Karsh, Ottawa 1942

PART ONE Dalhousian, Pictonian, Presbyterian

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1 ‘Lad O’ Pairts’1

That family is a compliment to human nature. – Rev. John Brown Maclean, 1934

Dominie Murdoch Stewart’s decision in 1843 to leave Calcots Academy, near Elgin, Moray, in order to become a colonial missionary of the Auld Kirk, was not an easy one. Aged thirty-four, the youngest, unmarried child of elderly parents, he had been licensed by the presbytery of Elgin in 1839 but continued teaching at Calcots. Although he had no formal pastorate and was making no especial effort to obtain ordination, Stewart had been brought to the attention of Isabella Gordon MacKay,2 the driving force behind the Edinburgh Ladies Association. Learning of the spiritual destitution of Cape Breton Island, MacKay mobilized the resources of the association to recruit Presbyterian missionaries for that distant wilderness place, which had received only its second settled minister in 1834. MacKay sought out Stewart, whom she discovered was the sole Gaelic-preaching probationer on the list of accepted candidates of the Colonial Committee of the General Assembly of the Church of Scotland. Stewart met with MacKay on the eve of his departure for Nova Scotia, where he was to assume the pastoral charge of St George’s Channel Shores (West Bay), Richmond County, Cape Breton Island.3 Murdoch Stewart embarked from Liverpool on board the Cunard

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steamship RMS Caledonia, which arrived in Halifax, NS, on 16 July 1843. After about ten days in the capital Stewart took the mailboat for Arichat, the county town of Richmond, and from there made his way overland northeastwards to Black River (now Dundee), which had the larger of the two congregations in the St Georges Channel pastoral charge. The Presbyterian population of this overwhelmingly Acadian and Roman Catholic county stood at about 1,127, and in addition to the two churches about 11 km apart there were also two schools.4 Murdoch Stewart was the only Presbyterian minister in the entire southern district of Cape Breton Island, which had been formed into Richmond County in 1835, and one of the five Presbyterian ministers on Cape Breton Island. The other four constituted the Presbytery of Cape Breton, which in October 1843 ordained Stewart to the ministry and formally inducted him to the pastoral charge. In January 1845 Stewart used nearly half his annual stipend of £110 to purchase a 200-acre farm at Black River, where he built the frame house that would be his home for twenty years.5 In 1846, at the conclusion of his three-year tour of duty, he went back to Scotland to visit relatives. The occasion was one of sadness mixed with joy. His mother died, and Stewart became engaged to Katharine (Catherine) McGregor, aged 25, daughter of the late James McGregor and Margaret Davidson, of the sheep-farming ‘little lairdship’ of Auchallater, Braemar, Aberdeenshire.6 The wedding took place on 29 June 1847, and within the month the Reverend Mr and Mrs Stewart were passengers on the barque London, an emigrant transport en route from Greenock to Pictou, NS. The frame house at Black River was more or less finished when Murdoch Stewart returned there with his bride. There was still much itinerating to do; during the first decade of his ministry, Stewart was the only Presbyterian minister in Richmond County, and his circuit ranged from the Strait of Canso in the far west to Framboise in the far east. In the farmhouse at Black River, enlarged before they were old enough to remember, the ten children of Murdoch Stewart and Catherine McGregor entered the world between 1848 and 1864. Stewart was a dominie in the best and truest sense – the epitome of the ‘democratic intellect’ that characterized Scotland and its universities in the nineteenth century.7 A product not only of the Evangelical tradition in the Church of Scotland but also of the Scottish universities, he instructed his own children as well as tutoring others in the community.8 Scottish Presbyterianism’s ‘creed of elitism through talent and education’9 was the rule of faith

‘Lad O’ Pairts’

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applied with truly evangelical fervour within the Stewart household. Of the five sons and five daughters only one did not attend university. Murdoch Stewart’s fourth child and third son, born at Black River on 29 June 1853, was named for his maternal grandfather, James McGregor, who had died in 1837. Thanks to a legacy from his paternal aunt, James McGregor Stewart was able to follow his two elder brothers, John and Donald Alexander, to university.10 They also ‘helped themselves through’ by teaching in the school at Black River. James McGregor, who matriculated in 1872 after ‘private study,’ distinguished himself at Dalhousie University. Valedictorian of the class of 1876, he graduated BA with second-class honours in pure and applied mathematics and the governor-general’s silver medal. As medicine and civil engineering had already been spoken for by his older brothers, John and Donald, James chose to enter law. In July 1874, after the end of his sophomore year, he became articled to Samuel Gordon Rigby, QC, a fellow Presbyterian and Cape Bretoner who was partner in the most prestigious law firm in Halifax.11 McDonald and Rigby, and its related or associated successor firms up to its dissolution in 1912, provided both intellectual and professional leadership to the bench and bar of Nova Scotia. It produced two Conservative prime ministers,12 four chief justices of Nova Scotia,13 three federal ministers of justice,14 and a handful of puisne judges, including Rigby himself. In May 1874 Rigby had been among a group of twelve lawyers incorporating the abortive Halifax Law School. Its failure led young Stewart, then a student-at-law, to write an incisive editorial in the Dalhousie Gazette in February 1876: ‘The system for the training of lawyers now in vogue in this Province [apprenticeship] is too despicable to admit of criticism, and has succeeded in giving us a class from whom we can expect no reform in this matter and from whom we turn to other sources. In connection with this College [Dalhousie] there can be no weighty objection urged against the establishment of a legal faculty.’15 After serving out his statutory four-year articled clerkship, Stewart was called to the bar on 20 August 1878.16 The preceding June, however, his career prospects had taken a turn for the worse when he married his fiancée, already the mother of a two-month-old child. Julia Frances Creelman, the fourth of nine children of John Creelman and Lieuana Bentley, was born in December 1856 at Otter Brook,17 a small farming community in the Stewiacke Valley of Colchester County, NS. The

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Creelmans moved in 1863 to Halifax, where Julia’s father – something of a jack of all trades – set up as a butcher and hotelier.18 In March 1876 John Creelman became proprietor of the Parker House, a residential inn on Barrington Street, where James McG. Stewart, student-at-law, came to board.19 There the intending barrister made the acquaintance of Julia, who had been teaching school for a year or so; ‘Jule has a new fellow on the go now,’ wrote her sister Jane to a mutual friend. ‘He is a law student and is very smart. He boards with us, by name James Stewart from Whycocomagh.20 Torment her about him.’ Again: ‘When you write, ask her [Julia] how Jim Stewart is. He boards with us and is studying for a lawyer and she is head over ears in love with him and he is more so if possible now that is a candid fact John. She has been very sick with diphtheria ... was in the house two weeks ... he was oh! so attentive.’ And again: ‘Jule is still walking the broad road with the C.B. [Cape Bretoner]. She is quite infatuated with him, while I write this he is in the room chatting to her as usual.’21 By May 1877 the two became engaged;22 by July, Julia was pregnant.23 ‘[B]ut to tell you a candid truth,’ wrote sister Jane three months later, ‘that is a match, I mean the fellow [Stewart] that has been “doing the pretty” with her. He is a very fine fellow, son of a minister, but he is studying for a lawyer and is very clever ... took all the honors at the College.’24 Julia carried on teaching as long as possible, submitting her resignation in March 1878, about three weeks before the baby was born.25 By 4 April the Primary Department of Beech Street School in Halifax had a new teacher, and ‘Miss J. Creelman’s’ teaching days were over.26 Julia was sent home to Upper Stewiacke, where she had family, to birth her ‘early’ baby. The situation was delicate in more ways than one, for Julia’s father was second cousin to Samuel Creelman, leader of the Conservative opposition in the legislative council, the upper house of Nova Scotia’s then-bicameral legislature. 27 Creelman was a pillar of The Presbyterian Church in Canada, which strongly disapproved of ‘ante-nuptial fornication.’ There were also the feelings of Stewart’s reverend father to consider. One can only imagine with what chagrin he received the news that the new parents were married at Trinity Anglican chapel. Low, evangelical, and ‘free’ (no pew rental), Trinity was a poor church in the worst part of Halifax – an inner-city mission serving sailors, stevedores, and derelicts. It goes without saying that the wedding, which took place on 20 June 1878, was not announced in the Halifax press28 – least of all the Presbyterian Witness – and that the ready-made family could not reside in Halifax. ‘Removed to Pictou under a cloud,’

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noted the minister of Poplar Grove Presbyterian Church next to Julia Creelman’s name.29 Lawyer Stewart, the launch of whose career was nearly aborted by domestic scandal, could not have remained in Halifax with any hope of acceptance in society or prospect of success at the bar. Within weeks of being called, he took his wife and four-month-old son off to Pictou, the shire town of Pictou County. Beggars could not be choosers, and he had received an offer that he could not refuse. In October 1878 Samuel Creelman became a senior member of the new Conservative government headed by Simon Hugh Holmes30 – a Pictou lawyer whose partner had formerly been S.G. Rigby. Inheriting the established, thirteen-year-long practice of a prominent politican helped straighten Stewart’s crooked path. According to Stewart’s sister-in-law, Holmes ‘was the best lawyer in Pictou, and now since he has business in Hfx [the premiership], he has taken Mr Stewart into partnership. Of course Mr S. has nearly all the business to do, but it is a grand thing for him to have a practice already established ... he is doing very well indeed.’31 Pictou County was in some respects the land of opportunity for a young lawyer, for it was suffering a brain drain of legal talent; by 1887 more than twenty men from Pictou were lawyers in California.32 The bar, though not large, was distinguished,33 having as its dean James McDonald, the federal minister of justice and Conservative MP for the county. And it was concentrated in the old shire town, where Stewart would spend the rest of his 44 years and where his five other children would be born. Stewart’s devoted older brother John soon joined the young couple. Against the advice of both his father and his patron, Sir Joseph Lister, John (MB and CM of Edinburgh University) ‘turned his back on a golden career in Europe’34 – he was house surgeon to Lister at King’s College Hospital (London) – in order to return to Nova Scotia to help James. ‘Money is one thing,’ John Stewart wrote in a tortured, 14-page letter to his mother after he had decided to leave London for Pictou. ‘Happiness & usefulness & Duty are other things. There are feelings we must obey. I must go Home. I feel as Papa did when he decided to go out to Nova Scotia. “I may afterwards regret it, but at present I act from a sense of duty”.’35 Blood was thicker than water, so by 1881 the Stewart household in Pictou was a ménage à cinq: Dr John (head), his brother James, their sisters Katherine Isabella and Elizabeth Helen (students at Pictou Academy), James’s wife, Julia, and their two children (Harry and Katherine).36 These domestic arrangements ended around the autumn of 1882, when

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Murdoch Stewart, age 73, retired from the pastoral ministry and moved to Pictou to live with John and his sisters.37 By the time his parents settled in Pictou, James McG. Stewart was wellestablished in his chosen career. In May 1882 his patron, Holmes, ceased to be premier and ‘retired’ to be the prothonotary of the Supreme Court. Stewart reorganized the law firm with himself as principal and Charles Elliott Tanner (later senator) as junior.38 Though reportedly lacking the oratorical skills required of a successful advocate, Stewart developed an extensive practice as counsel and solicitor and, by the end of his nineteen-year career, was highly regarded by his contemporaries throughout eastern Nova Scotia as an astute lawyer’s lawyer. Stewart and Tanner were also active in municipal affairs, Stewart becoming clerk of Pictou County in May 1887. At the time he became clerk, Stewart offered gratis his services as municipal solicitor.39 In the 1880s Pictou, the birthplace of Canada’s steel industry, was set to become Nova Scotia’s industrial heartland.40 There was much work for an astute solicitor and counsel to do. The Nova Scotia Steel Company was already seven years old when the sixth and youngest Stewart child was born in 1889. James McGregor was the image of his mother and the apple of his father’s eye. Born the day after his father’s 36th birthday, on 30 June, he was baptized in Prince Street Presbyterian Church on 28 August by the pastor, the Reverend Alexander Falconer.41 The year in which Jim Stewart was born was also the year in which Rudyard Kipling – the beau idéal of his maturity – went from being an obscure Anglo-Indian journalist to an international literary celebrity. Among Kipling’s many avid readers was James McG. Stewart, Sr; he soon introduced the famously popular children’s author to his youngest son, rendered permanently lame from age two by poliomyelitis. Jimmie learned to walk on crutches and had to use them throughout his life. ‘A child thus limited in natural play and body movement,’ Elizabeth Stewart was to write in a brief memoir of her husband, received the special care of his parents. His father carried him about in his arms and daily massaged this weak little leg. He entertained his son by telling him stories and singing to him. Hymns and Scotch folk tunes quickly exhausted the father’s repertoire, and, with true Scotch ingenuity, the elder Stewart began to sing or recite verses from Kipling’s Departmental Ditties [1886], frequently matching the words with standard hymn tunes. Father and son alike grew fond of these “family” songs, little realizing that they had accidentally discovered the key to Kipling’s composition of them. Some of young Jim’s earliest recollec-

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tions centre[d] around his father’s lusty singing of Kipling verses to Scotch Psalm tunes.42

His favourite sister Lieuana’s memories of ‘little Jim,’ seven years her junior, recreate vividly those halcyon days of childhood: When we were small we dressed in sailor suits, With little kilts and pinafores so prim. The days were endless. Christmas never came And summer was a year of pure delight. The birthday festivals seemed very few. (‘Twas just as well, with pennies fewer still!) Schooldays were long and Sabbaths none too short, When we were very young ... Fifty, you say? It isn’t possible. Why, only t’other day You wore a sailor suit and teased the cat, And were the dearest little boy that one could know.43

Conspicuous by his absence from this summer-birthday idyll, however, is Father, whose premature death made the birthday festivals seem few indeed and ensured that the pennies would remain fewer still. About 12:00 p.m. on Friday, 18 June 1897 – eleven days shy of his 44th birthday and two of his 19th wedding anniversary – James McG. Stewart, QC,44 was working at his desk in Ives’s Building on Water Street in Pictou when he died more or less instantly from what appears to have been a massive heart attack or stroke. Perhaps he was suffering from congenital heart disease; a photograph, taken late in his short life, shows an overweight man, prematurely grey, looking rather pale and haggard and distinctly older than his years. Stewart’s death was front-page news in Halifax, where his brother Dr John had been living since 1894. According to the Conservative Herald, James Stewart ‘was considered by his professional brethren as the ablest lawyer and soundest counsel in that [eastern mainland] part of the province.’45 His funeral ‘was the largest seen in Pictou for many years. All the barristers of the county were present, and in a body preceded the hearse.’46 He was interred next to his father, who had died in 1884, in the family plot in the ‘New Cemetery’ (Haliburton) outside the town. Stewart owned no real property and died intestate.47 His personal property (including one cow) was valued at just under $4,000, some

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30 per cent of which comprised debts due the estate. Life insurance worth $2,000 – at nearly 50 per cent, the estate’s single largest asset – suggests that he could not have expected to live to be old. Julia Stewart petitioned for and was granted sole administration of her late husband’s estate on little Jim’s eighth birthday, 30 June 1897. It must have been the saddest of his life. As for Jim’s mother, a year earlier her father, John Creelman, aged about 70, had been struck and killed by a train in Fresno (California),48 whither he and his wife had emigrated in 1885. The sudden death of the paterfamilias was very nearly the end of things. His busy law practice was taken over by Stewart’s former partner, Tanner, and his articled clerk, John W. MacKay; they continued in partnership for nearly twenty years. Julia, left with six children aged nineteen to eight, could hardly turn to her brother-in-law, Dr John Stewart, for immediate assistance. In the summer of 1897 the head of the Stewart family had his hands full, providing not only for his elderly mother and three unmarried sisters but also for his brother Donald, who was terminally ill with cancer and who died in October, age 45. To make matters worse, James’s former partner, Tanner, offering himself as county clerk pro tempore so that the salary might revert to the maintenance of the indigent Stewart family, was checkmated. The Liberal warden of the municipality moved quickly to fill the vacancy with a Liberal lawyer of his own choosing.49 But Julia Stewart persevered; her eldest son, Harry, left home to study scientific agriculture and to farm, while her eldest daughter, Katherine, left school in order to work as a music teacher. In May 1901, when Jim was about twelve, the family moved to Shubenacadie, a thriving agricultural community in the eastern district of Hants County, where Harry had purchased a dairy farm. Although Julia’s leaving Pictou disrupted the education of Harry’s siblings, Jim was contented enough to be a farm boy in Shubenacadie. He maintained a sympathetic interest in the community to the end of his life, and his presence in the local school was well remembered fifty years later.50 Jim wrote the provincial examinations for Grade IX at Truro in July 1903, placing eighth in a field of 101. In the autumn he entered Grade X (second year) at Pictou Academy. Sometime between September 1903 and September 1904 Julia and family51 returned to Pictou so that ‘Jimmie’ would not have to stay in lodgings. The Academy, a private co-educational, secondary school turned public high school (county academy), did not take boarders.52 Unless one’s family lived in or near the town of Pictou, room and board had to

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be obtained in private homes – ‘where the ordinary rate of accommodation is from $2.50 to $3.00 per week.’53 Julia could not have afforded such a sum; Jim would have had to continue his education elsewhere. Academy education was not free of charge except to qualified students from within the county.54 So Julia returned to Pictou solely for the purpose of enabling her disabled youngest and most precocious child to attend Pictou Academy. It was an action that spoke volumes, not only determining the entire future course of Stewart’s life but also helping to explain his single-minded, lifelong devotion to – and awe-inspired fear of – his mother.55 The most prestigious secondary school in the province – Nova Scotia’s version of Upper Canada College – Pictou Academy was known as the ‘cradle of college presidents’;56 among its alumni were Principals J.W. Dawson of McGill and G.M. Grant of Queen’s.57 Jim Stewart did nothing if not uphold and enrich the school’s tradition of academic excellence and alumni distinction. In 1905 he won the Tupper gold medal, awarded to the student with the highest aggregate in the provincial examinations for Grade XI (junior matriculation).58 The following year he won the gold medal, presented by the town of Pictou; his were the highest marks ever obtained in the provincial examinations for Grade XII (senior matriculation).59 Jim Stewart was determined to go on to Dalhousie University, from which his brother John Murdoch had graduated BA in 1906. ‘While attending Pictou Academy, on weekends, he [James] delivered groceries strapped to his back in a basket, endeavouring to raise the necessary funds.’60 Young James, however, did not have the financial or moral support of Uncle John, with whom John Murdoch had resided in Halifax throughout his own high school and university course and whom he was to follow into the medical profession. Dr Stewart was not poor and beleaguered like his sister-in-law Julia and could have assisted Jim, but he declined to do so. ‘[A]s was common in those days and because he was crippled, the family decreed no money would be spent on his further education and he would remain at home with his widowed mother.’61 But Jim and his mother would have none of that. His disability was less a physical challenge to himself than a mental challenge and emotional block to his Stewart relations, whose vision of Jim’s destiny conflicted sharply with his own, and who viewed his disability as divine retribution: the sin of the mother visited on her youngest and best-loved, as indeed it had already been on her guilty-conscienced husband. Perhaps, like the apostles, they wondered who had sinned – the child or the

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parents – that he was so disabled; they might well have reflected on the answer.62 Small wonder that in later years Stewart never discussed his youth.63 After graduating from Pictou Academy, Jim prepared to follow the example of his father and uncle, both of whom had taught school in order to pay for their university studies. As a contingency, in July 1906 he sat the teachers’ provincial examination for the ‘minimal professional qualification’; he placed second in the second rank – no one made the first – in a field of 38 candidates at Pictou.64 But Stewart did not become a public school teacher. Encouraged by Robert Maclellan (principal of the academy)65 and by his pastor, Alexander Falconer66 (from whom he borrowed money), Stewart entered Dalhousie in the autumn of 1906.67 ‘Jimmie has been a delight to me,’ Maclellan wrote Uncle John shortly after his nephew went up to Dalhousie: ‘If all my pupils were like him, teaching would be a sinecure and pedagogic renown easily won.’68 Pictou Academy nominated him for the Sir William Young and professors (junior entrance) scholarship, worth fifty dollars. Because Stewart already had his senior matriculation, he was able to proceed directly to the second year of the four-year arts course. Lectures commenced on 14 September; five days afterwards, Stewart’s formidable grandmother, Catherine McGregor, who had been living in Halifax since 1894, died of pneumonia in her 85th year. Jim, all of seventeen and on the cusp of a university career no less brilliant than his highschool one, was already estranged from his late father’s family. Because he was the youngest and favourite son of his mother, it could hardly have been otherwise. He had little if anything to do with his imperious uncle. Impressionistic evidence suggests that Uncle John may have conceived an old-fashioned Highland grudge against Jim for not acceding to the wishes of himself as vicarious head of his late brother’s family. Perhaps he expected his disabled nephew (who, it was assumed, could do no more) to do no less and viewed Jim’s unflinching self-determination as a want of obeisance and filial deference. Although John Stewart lived to see Jim’s fine career, uncle and nephew appear to have kept their distance to the very end of the Grand Old Man’s long life in 1933. John Stewart died wealthy and propertied and full of years, leaving everything he had to his four unmarried sisters. Although he might have become a second father to all the children of his prematurely dead brother, John Stewart confronted an immovable object in the shape of his free-spirited sister-in-law Julia, who maintained

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her tenuous position beyond the fringe of the Stewart ménage by never remarrying and by outliving all nine of her husband’s siblings. While it would be going too far to imply that the in-laws blamed her for her husband’s untimely death, it seems doubtful whether John – who was closer to James than to any other of his siblings – was ever reconciled to James’s widow. In the end, the sin of the mother was visited not only on her husband but also on their children – the youngest afflicted with polio; the second youngest killed in action in the First World War; all of them subjected to a hardscrabble existence in the years before James established himself in Halifax. So when Jim Stewart arrived in Halifax in 1906 he did not go to live with Uncle John. ‘There is no residence or (suggestive word) dormitory,’ wrote Stewart’s professor Archibald MacMechan in his droll parody of Dalhousie (‘Lyttil College’); ‘The students lodge where they please throughout the town, Scottish fashion.’69 University regulations nevertheless required that students not residing with relatives or friends live in approved lodging houses, a list of which was posted on the noticeboard in the university hall at the beginning of term. Stewart thus found room and board with a widowed dressmaker, Marie Ward, who no doubt took in student lodgers in order to help make ends meet. No. 4 Wright Avenue was a good deal closer to the university (now the Forrest Building) than John Stewart’s mansion at the foot of fashionable South Street. For a physically challenged student, proximity was important; perhaps it was a blessing in disguise that Jim and his uncle were not on terms of endearment. Although Jim Stewart was on his own, left while still a teenager to make his mark in the world, the reason why ‘very little data have been recorded concerning his early years’70 is that they were difficult and painful to recall. He did not have Uncle John’s advantages: he was not the eldest but the youngest; he was not whole in body but disabled from early childhood, and could never walk without the aid of crutches; rendered fatherless at age eight, he was not supported by his father’s family but instead undervalued by them until he had proven himself – with the help of people other than they, who believed in him. He was not offered the chance of an education at the Scottish universities but instead had to claw his way to Dalhousie. As an intimate friend remarked of Stewart after his death, ‘Intelligence to him included that crown of Scottish character, discipline. The discipline of study is an elevating experience. It takes you out of the casual and ordinary and crass into a

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sphere where you acquire an habitual vision of greatness. James McGregor Stewart had that vision in a measure that it is given only to great and good men to enjoy. And where did it lead him? First of all, to rise over adversity.’71 And the adversity was two-fold: the disability itself, aggravated by the family’s psychosocial delusion that it predestined the child to a life of degradation and servility. Before long, however, it would be plain to the Stewart family, as to everyone else, that the ‘cripple’ was really an extraordinary man. In 1910, Stewart sent for his mother and sisters to join him in Halifax. One can only imagine Julia’s sentiments on the occasion, returning once and for good to the city where she had lived from her seventh to her twenty-second year and which she had left ‘under a cloud’ some thirtytwo years earlier. After arriving in Halifax as a freshman at his father’s alma mater, Jim settled in the city that James, Sr, had been obliged to quit at the very outset of his career and to which he never returned. Stewart’s brilliant career in the metropolis was to be a vindication of his father’s self-sacrificial, lifelong exile from it. But he was careful not to emulate his father’s example of a career-shattering, early and shot-gun marriage. Sustained latterly at Pictou by the practical support and encouragement of the schoolmaster Maclellan and the minister Falconer, Stewart drew on his native qualities of mind and heart to overcome penury, prejudice, and the physical disability that occasioned it. In so doing he proved himself to be the very personification of the ‘lad o’ pairts,’ the ultimate meritocrat who ignored obstacles and who was, in today’s psychobabble, self-motivated. What Anne Wood has called those ‘supposedly Scottish characteristics of poverty, industriousness, merit, and later success’72 were far from hypothetical in the case of young Stewart, who was but two generations removed from old Scotland. His later career provides an answer to the question posed by Wood: ‘What function did the Scottish myth of a ‘lad of parts’ play’ in promoting ‘individualism and meritocracy, values synchronizing with Pictou’s capitalistic industrial economy?’ Natural selection à la Pictou Academy meant the survival of the brightest, most ambitious and most competitive youths. Stewart remained attached to Pictou for the rest of his life. In August 1916 he returned for the academy’s ostentatious, week-long centenary celebrations. At age 27, Stewart – solicitor to a bank and member of a prestigious Halifax law firm – was undoubtedly among those many graduates who ‘used their credentials to gain important positions of leadership’ in the professions and in business.73 Though a distinguished old boy, and a ‘comer,’ Stewart was not yet prominent enough (or old

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enough) to be invited to join the organizing committee for the centenary. His mentor, Principal Maclellan, however, was chair of the executive committee, so it is likely that Stewart played an influential behind-thescenes role. Some three years after the 1916 event, Pictou’s omnipotent Liberal cabinet minister, Robert Malcolm MacGregor, at the request of the town and the school board, put through the legislature an act incorporating the Pictou Academy Augmentation Fund (PAAF).74 The idea was one whose time had come. The trustees were all former members of the executive or organizing committee of the centenary committee – except Stewart, who became treasurer and solicitor and served as a trustee for the rest of his life. Renamed the Pictou Academy Educational Foundation (PAEF) in 1920 and given the power to hold real estate and to establish an academy ‘preparatory school,’75 the PAEF, under MacGregor’s chairmanship, set about finding a suitable piece of land on which to construct the Academy Hall. The additional powers conferred by the 1920 amendments to the incorporation act had become necessary because of an arrangement with the Maritimes Synod of The Presbyterian Church in Canada, whereby, in return for three seats on the PAEF board, the church paid for construction of a residential school in Pictou town and appointed the schoolmaster.76 The boys’ residence was ready for occupancy in the autumn of 1920 and remained in use for the next dozen years. In August 1938, when Dalhousie University was celebrating the centenary of Thomas McCulloch’s appointment as its first president, Stewart, as chair of Dalhousie’s board of governors, returned again to Pictou to assist with the unveiling of the plaque installed by the Historic Sites and Monuments Board of Canada marking the site of the first academy building. In his remarks, Stewart ‘declared that Dr McCulloch, founder of the academy in 1816, created an opportunity for education for the children of the earliest settlers of Pictou, in an atmosphere of intellectual freedom hitherto unthought-of and had produced results undreamed-of in that day. It fell to the lot of few people to take such a prominent part in the history of his adopted land.’77 He might have been talking about his own family. Ironically, the 1897 academy building in which Stewart himself studied had burned two months earlier in a suspicious Fridayafternoon fire. The PAEF financially supported the rebuilding, which began almost immediately. Stewart’s faith in Pictou Academy was equal to that of its other founder, the Reverend James MacGregor (1759–1830), who remarked, ‘I have such faith in the institution that were it killed I know it will rise and live again.’78

2 ‘Undesirable Elect Dalhousie Cripple’

I wonder whether the appearance at Oxford of a Rhodes Scholar on crutches would cause undue surprise. – George Robert Parkin, 1912

His name soon became a legend almost at the University and at the Law School. – F.D. Smith, QC, on J. McG. Stewart, 1955

In 1906, when Jim Stewart enrolled there as a student in arts, ‘Lord Dalhousie’s college’ was still very much a Presbyterian institution; the ‘old college’ had yet to be ‘transformed.’1 All three of its presidents had been Presbyterian clergymen, and in 1910 the incumbent was to be elected moderator of the General Assembly of The Presbyterian Church in Canada (PCC). Though officially non-sectarian and non-denominational, Dalhousie was no less Presbyterian (at least in culture and tradition) than the University of King’s College at Windsor was Anglican. The PCC was officially represented on the board of governors. All three of the university’s clergymen-principals hailed from Pictou County, ‘the birthplace of New Scotland.’ Indeed, as late as 1930, the chair of the board of governors could hope (in vain) to maintain ‘the unbroken tradition that a Pictonian should guide the destinies of Nova Scotia’s Premier University.’2 In Stewart’s undergraduate years, moreover, fully

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10 per cent of Dalhousie students originated in Pictou County – an average exceeded only by metropolitan Halifax.3 ‘Pictou’s contribution to the intellectual life of Canada’4 was mediated through the Reverend Thomas McCulloch, first principal of both Pictou Academy and Dalhousie College. ‘I entered as an Arts student in the Fall of 1906,’ wrote Stewart thirtyfive years later: We had a class of sixty. There was one professor of English with a theme reader; there was one professor of Modern Languages without any help; there was one professor of Physics with a graduate assistant in the laboratory; there was one professor of Chemistry with a graduate assistant in the laboratory; one professor of Mathematics; a professor of Philosophy and a professor of History and Political Economy combined; there was also one professor of Engineering. In addition to the foregoing: In the Classics Department Jotham Logan and G.K. Butler gave approximately twenty sessions a year in the honours course which never had more than two or three students. There were two or three optional courses – such as New Testament Greek, Elocution given by part-time lecturers, and then the Superintendent of Education, Dr A.H. McKay, gave a few classes in Biology.5

If the freshman class and the teaching staff in the faculty of arts and sciences were small, so too was the university’s physical plant. Dalhousie was still very much the ‘lyttil college’ parodied in 1911 by Archibald MacMechan – the ‘professor of English’ to whom Stewart refers. ‘All the activities of the Lyttil College are pent up within four walls and under one roof,’ wrote MacMechan; and the one building is used solely for the purposes of instruction. It contains two little libraries, five little laboratories, besides little classrooms, offices and other accommodations, – a marvel of concentration. No charm of architecture invests it. The Lyttil College looks as utilitarian as a red-brick factory, as ugly and gaunt as poverty joined with ignorance could make it. And yet these incredible Lyttilites idealize the monstrous fabric and grow lyrical in honour of its one passable feature, the ‘old red tower,’ the antiquity of said tower being some score of years. ... If the college looks like a factory outside, it is a beehive within, humming with intellectual activity ... The Lyttil College is a working college. The casual drones are soon detected and put out of the hive.6

In the last decade of his twenty-six-year presidency (1885–1911), the Reverend Dr John Forrest – ‘Lord John,’ as he was affectionately known –

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was to inaugurate and preside over an era of physical expansion.7 Hitherto, the university was confined to one building,8 and it had outgrown its premises. Then the westward expansion got under way; the cornerstone of the Science Building was laid in August 1911.9 The ‘Studley’ (western) campus became and remains to this day the heart of the university. According to the biography of the class of ’09, James McGregor Stewart came to us from old Pictou Academy, bearing laurels thence, and instead of living on the interest of them, here he has been continually earning fresh ones, until now the time has about arrived for him to receive them in most ample measure. Jim is such a modest man, that I forbear out of respect to his sensibilities to dwell longer on his extraordinary scholarship, but it is known to us all. That, however is not at all about him ... His judgments upon athletics and college affairs generally is [sic] always sage and eagerly sought after. As a companion none is more genial and more popular.10

At the beginning it was different. Like any other small-town teenager unaccustomed to life in the city, Stewart did not acclimatize overnight. Writing to his sister Lieuana at the end of Jim’s freshman year, his Aunt Elizabeth (BSc 1900) asked, ‘Has Jim returned to Halifax yet? He seemed to long so for Pictou last winter that I thought he would try to get something to do there but I suppose that would not be easy.’11 Nor was money plentiful in Halifax, where he was on his own in more ways than one. Stewart made ends meet by marking provincial examinations on behalf of the superintendent of education12 and perhaps also by offering his services as a private tutor to high school students preparing for the matriculation exam. From the beginning Jim Stewart seemed set to follow in his mathematically minded father’s footsteps. In his first year – the second of the arts course – he won the Waverley Prize, which was awarded annually to the second-year student standing highest in analytic geometry and differential and integral calculus. Although Stewart did not emulate the example of his father and Aunt Emily by taking the honours course in mathematics, he did well in the subject. But it was neither pure nor applied mathematics that drew him; instead it was classics, in which his grandfather Murdoch had excelled at Aberdeen. Although Latin and Greek were bred in the bone, they were a direct legacy not of Stewart’s grandfather but of Principal Maclellan, the classics master with whom Stewart during his student days ‘formed a close friendship’ that endured until Maclellan’s death in 1922.13

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When Stewart was a senior (in 1908–9), his brother John Murdoch returned to Dalhousie after a two-year hiatus to commence the medical course. The brothers shared a devotion to their father’s memory, which found expression in their work for the Dalhousie Amateur Athletic Club (DAAC), of which John Murdoch was elected vice-president for 1910–11 while Jim served as secretary in 1909–10 and 1910–11 and president in 1911–12.14 They took up with enthusiasm the affairs of the DAAC, which their father and uncle had launched in the 1870s. Stewart’s inability to play ‘manly outdoor sports’ such as football belied his intense interest in and intimate knowledge of them and made him uniquely determined to participate in athletic activity in any way possible.15 In addition to managing the varsity football (rugby) team in 1913–14, Stewart played goal on the scrub hockey team, rowed, and was a member of the championship quoit team in the City League.16 As physically challenged undergraduates were not a common sight on the playing field, one immediately understands why Stewart did not appear with his crutches in team photographs. In September 1907, at the beginning of his junior year, Stewart received permission to take the honours course in classics.17 Faculty regulations provided for the ordinary admission of candidates who had ‘attained a first-class standing in those classes of the second year corresponding to the subjects of the Honour course selected.’18 The course of advanced study required not only critical knowledge of specific works of nine Latin and eight Greek standard authors, but also general knowledge of the history of Latin and Greek literature, translation from English into Latin and Greek prose, and comparative philology. The honours course in classics was hardly less demanding than Greats at Oxford, although the scope was narrower, the focus being not on philosophy or ancient history but on philology – language and literature. Examinations took place at the end of the last year of the course. When he graduated BA in April 1909 Stewart was alone in capturing high honours; he ‘swept the board in classics, taking the University Medal.’19 His achievement attracted favourable comment in Pictou, where his mother and sister were still living.20 Fortune smiled on him again when the post of tutor (assistant professor) in classics fell vacant and Stewart was appointed to fill it.21 He held it for four years, during which time he entered the law school as an undergraduate, thus becoming a student in one faculty while teaching in another. The tutor’s role was to lighten the load of the professor, Dr Howard Murray, who, as dean of the

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university and secretary of the senate, bore a heavy burden of administrative responsibility.22 The professor and the part-time lecturers taught advanced classes, leaving the elementary and the introductory classes in Greek and Latin for the most part to the tutor. His faculty job enabled Stewart to move from lodgings into a proper home. Situated on the northeastern corner of Edward and Morris streets (now University Avenue) in uptown Halifax, Stewart’s house was just over a block away from the university building. There, in the summer of 1910, his mother, Julia, and his sister Katherine joined him. The following year Professor Murray prevailed on President Forrest to ask the board of governors for a 20 per cent increase in Stewart’s meagre salary of $500 per year, which was granted.23 In March 1907 George Robert Parkin, administrator-commissioner of the Rhodes Scholarship Trust, had addressed a general meeting of the university on the subject of the scholarships,24 the first of which (in Nova Scotia) had been been awarded in 1904 to the son of John F. Stairs, chair of Dalhousie’s board of governors. Establishment of the Rhodes Scholarship, according to Jotham W. Logan, Stewart’s contemporary as parttime lecturer in classics, ‘gave great encouragement to the teaching of Greek and Latin ... You will find the qualities which the donor wished his scholar to possess fully described in the second Book of Plato’s Republic under the headings mousiké and gumnastiké. At the outset both Greek and Latin were compulsory. This scholarship was then the blue ribbon of the classical courses in our schools and colleges.’25 Stewart evidently had reason to hope. Dalhousie’s right to nominate Nova Scotia’s Rhodes Scholar came round every other year; Stewart could have applied in 1908, for he turned nineteen in June, but instead decided to wait until after graduation. He stood second on the short list of five candidates.26 In January 1910, however, Robert Magill (philosophy)27 and R.C. Weldon (dean of law) proposed in the Senate a motion to the effect that ‘serious physical defects should be considered as rendering a candidate ineligible for the Rhodes Scholarship.’ It did not pass unanimously, and it is very doubtful whether Forrest or Murray – both members of the committee of selection (as was Dean Weldon) – voted for such a discriminatory motion. The hoary principle of mens sana in corpore sano prevailed; the nomination went to Stewart’s former classmate, John Erskine Read of Halifax, whose name appeared at the top of the short list. It is clear from the student testimonials from which the short list was compiled that Stewart ranked second rather than first only on account of his misperceived

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disability. While Read, against whom Stewart bore no grudge, could scarcely have been guilty of schadenfreude, there is no question that Stewart’s disqualification decided the issue. Nor is it hard to guess why ‘there was a good deal of criticism’28 of Read’s nomination. His academic record was inferior to Stewart’s; he was by no means an outstanding athlete, and he had not participated in student activities to any greater extent than Stewart, who had been appointed president for life of the class of ’09. Nor was Read any longer affiliated with Dalhousie; he was studying law at Columbia in New York. Perhaps most suggestive of all, he was a personal friend of Dean Weldon’s.29 But Read’s legs were of equal length, and he did not require crutches in order to walk. Until Magill and Weldon tabled their motion, it seemed inconceivable that Stewart’s disability would be used against him as a deus ex machina. But the Senate was not taking any chances; as the decision of the selection committee was final in cases of doubtful eligibility,30 Stewart’s name had to be struck from the short list before the decision was made. Stewart’s disqualification on the grounds of hypothetical ineligibility looked like a ruse by Read’s partisans. Howard Murray was not prepared to let the matter drop without an official pronouncement from the Rhodes Trustees. ‘Our ablest man by far,’ he wrote Parkin, from the intellectual point of view, was ruled out of the competition by a majority vote of the Senatus Academicus last year [1910], on account of a physical defect. Although he has always been most keenly interested in many athletic sports, a leading spirit in the University Athletic Association [DAAC], and an enthusiastic and successful participant in games which do not require speed of foot, such as quoits, he has been lame from his infancy and compelled to use crutches. The majority of our Senate took the view that it would be a violation of the conditions laid down by Mr Rhodes, to nominate one who was physically a cripple even if his intellectual attainments were so much superior to those of his competitors as to overcome the handicap laid on him by his physical infirmity, and he was therefore ruled out of the competition. Do you think the Senate did right? Or should he have had a chance to see whether his intellectual superiority more than counterbalanced his physical inferiority?31

Parkin assured Murray that it was not Rhodes’s intention to exclude anyone – except, of course, women; the intention rather was that athletic

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achievement should count for something and that Rhodes Scholars should not be mere ‘bookworms.’ The athletic criterion was meant to have a positive (inclusive), not a negative (exclusive) effect. Parkin, alluding to an extremely able one-armed footballer whom he had known when headmaster of Upper Canada College, gave it as his personal view that a candidate who possessed ‘athletic qualifications’ should not be excluded on account of a physical disability.32 The real issue, of course, was the ‘physical defect’ – Stewart’s thorn in the flesh. What was objectionable about him was that which prevented him from participating in ‘manly outdoor sports’ to the extent that he wanted and would otherwise have done. The assumption that a disabled person could not or should not attempt to take part in athletics laid bare the prejudice that served to justify Stewart’s exclusion. Lack of athletic credentials was not only not a sufficient reason; it was not even a legitimate excuse. But in the end the Rhodes Trustees would vindicate the stance of Dalhousie’s Senate. Late in 1912, when Dalhousie’s turn for the Rhodes was about to come round again,33 Murray once more took up the matter of Stewart’s eligibility. In November, Parkin, en route from St John’s (Newfoundland) to Boston, had a brief stop-off in Halifax; Murray seized the opportunity of introducing Stewart to him, to bring the disqualification officially to the attention of the Rhodes Trustees. ‘A student,’ reported Parkin, ‘said to be of rather unusual ability, and with a course at Law in view, has always, as the result of infantile paralysis, had to walk on crutches. He is keenly interested in the athletics of the university – plays quoits skilfully – and sometimes keeps goal in hockey ... I saw the young fellow, and he struck me as a man of weight and character.’34 ‘Dr Parkin,’ the Senate minutes record, ‘was much interested in the case [of Stewart] and said he would write immediately to the Trustees laying it before them and asking them for their decision. The Secretary [of the Senate] said that the day before the Christmas holidays began he had received a letter from Dr Parkin,35 who had just received a cablegram from the Trustees saying “their decision is that they think it would be undesirable to elect a candidate handicapped physically as he [Stewart] is.”’36 Events moved quickly; they had to. There was not to be another meeting of the Rhodes Trustees until after Christmas 1912. The London secretary of the trust obtained a ruling on 14 December and cabled Parkin in Kingston (Ontario) the same day. Stewart might have hoped for a less unseasonable Christmas present. Had the decision gone the

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other way, he would certainly have reapplied. It was his last chance; he was then in his twenty-fourth year, and the age limit – rigorously enforced – was 25. Thus ended Stewart’s determined attempt at becoming a Rhodes Scholar; thus began his friendly rivalry with John Read, Nova Scotia’s Rhodes Scholar for 1910.37 By then Stewart was already an articled clerk and in his junior year of law school. Despite his predilection for the humanities, he had been contemplating entering his father’s profession for some time. As early as 1907–8, his junior year in arts, he began the study of law as a ‘general’ (non-degree) student. What John Murdoch was to their uncle, the famous surgeon, James McGregor would be to their dead father, the barrister. Years later Stewart told an interviewer that ‘banking and the professions [were the] principal careers open to the more ambitious boys in the Maritimes.’38 And by ‘the professions’ he meant medicine, engineering, law, and the church – the fields of his father and four paternal uncles, two of whom became civil engineers. Teaching was an occupation, not a profession, and therefore rather incidental to career-building – to say nothing of nation-building. Academe was a luxury that an ambitious and impecunious young man could ill afford. Stewart entered Dalhousie Law School as an undergraduate in October 1911, seven months after he had become an articled clerk. His principal was Willard Hill Fulton, KC, a partner in the prestigious Halifax law firm of McInnes, Mellish, Fulton & Kenny (now McInnes Cooper).39 He continued teaching classics for the time being, although it contravened the provisions of the Barristers and Solicitors Act, which allowed the articled clerk only to attend law school. Nor did Stewart have anything in common with W.H. Fulton beyond the fact that they were both lame.40 With fellow Pictonian and head of the firm Hector McInnes, KC, however, it was another matter. Also a gold-medal winner at Pictou Academy, McInnes (LLB 1888) was the first of a succession of graduates – soon joined by Stewart – who went back to the law school as parttime lecturers. In 1894 McInnes had given the first course in procedure in the law faculty, and he was still teaching it in 1914, when Stewart graduated.41 The final years of R.C. Weldon’s inaugural thirty-year deanship at the Law School were anticlimactic; he had outlived his usefulness and stayed too long. ‘By 1914,’ according to P.B. Waite, student criticism of the law school was mainly directed at three things. There

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were too few lectures compared to other law schools, only six to seven hours a week. The standard of admission was too low; in other words, there was no standard, other than ordinary matriculation into the university, and no arts classes were required. The students’ main complaint, however, was that the curriculum was not sufficiently practical. They wanted to have international law struck out, constitutional history shortened, and more mundane subjects, such as procedure and agency, chosen.42

As the holder of an undergraduate degree, Stewart proceeded directly to the second year of the four-year law course. During the second and third years he was too busy teaching classics full-time to participate much in extracurricular activities in the faculty of law. In 1912–13, his junior year, he found time to serve as minister of justice in the Conservative cabinet holding sway in the Mock (afterwards Model) Parliament;43 that was as close as he would ever get to elective political office. Before the academic year 1913–14 began, Stewart resigned his classics tutorship.44 Not only was he now in the final year of his law course; he was also president of the students’ council, business manager of the football team, and chair of the intercollegiate debate committee,45 of the executive committee of the Dalhousie Students’ Campaign (DSC), and of its financial and secretarial subcommittee. Imitator of the Dalhousie Forward Movement (1911–12), the DSC undertook to obtain a contribution of $2 from each student to finance the proposed students’ building.46 ‘In 1914,’ writes P.B. Waite, Stewart devised with his council the Students’ Forward Movement ... It was announced in April 1914, publicity to begin on 1 May, with an active canvas to begin on 1 July. The program was distinctly ambitious: the students aimed to raise $50,000 to put up a student union building on the new Studley [western] campus. They hoped to be able to break ground in September 1914 and have the building ready by January 1915. The project had the backing of President MacKenzie; there was a place chosen for it, across from the library. Drawings were made; it would have a gymnasium and a ‘swimming tank’ among other facilities. It was breathtaking and was announced with full detail in the [Halifax] Daily Echo on 29 June, with pictures and sketches on the following day.47

Scarcely less important was the support of the Alumni Association, especially of its president, lawyer G. Fred Pearson, who placed at the students’ disposal the facilities of the Chronicle Publishing Company, of which he was managing director. From May through July 1914 the DSC

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published its own fortnightly newspaper, the Dalhousian, to which Stewart contributed an article on ‘Football at Dalhousie’ (what else?).48 Although the campaign fell far short of its $50,000 target – the outbreak of war in Europe put an end to fund-raising – the $18,000 subscribed shows what might have been achieved under more propitious circumstances. As for Stewart, the experience gained and lessons learned were invaluable; he would apply them in numerous later financial campaigns as a member of Dalhousie’s board of governors. Yet student activities in no way distracted Stewart from his vocational training. He graduated from Dalhousie Law School in May 1914 at the head of a class of nineteen, having ‘completed the most brilliant course of any student in the history of that institution, leading in the first division in eighteen out of nineteen subjects of the entire course required for the degree and in the eighteenth [sic] subject standing in the first class.’49 But there was no award; the University Medal in Law was not established until 1918.50 ‘Jimmy Stewart is known to every student at Dalhousie,’ read the class biography. ‘Many of us knew him first as tutor in Classics, and an excellent tutor he was. During the past year he was President of Students’ Council ... and managed to lead all his classes in addition. Jim is a genius and we have become so used to having him that we can’t see how we are going to get along without him next year.’ Stewart’s self-chosen motto says it all: ‘He was a scholar, and a ripe and good one.’51 As matters turned out, no sooner had he graduated from law school than he was back there teaching. Rhodes Scholar John Read returned in triumph from Oxford in 1913, was called to the bar, and became an associate in the downtown Halifax law firm of Harris, Henry, Rogers & Harris (now Stewart McKelvey Stirling Scales). The following year Read was appointed part-time lecturer in real property at Dalhousie Law School.52 Scarcely had he taken up his teaching duties in the autumn of 1914, however, than he enlisted in the Canadian Field Artillery for active service overseas. Stewart was summoned to take his place.53 Stewart, who was to teach the real property course until Read returned from overseas, was one of the ‘few downtown lawyers [who] were professional teachers.’54 ‘One of the lecturers that impressed me,’ reminisced Vincent J. Pottier (LLB 1920), ‘was J. McG. Stewart. He always referred to matters from the practical side and would, on occasion, discuss the problems of being a lawyer and the difficulties he met and how he overcame them. He always had an interesting comment to make.

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For example, how to tell whether or not you were going to be a successful lawyer; what percentage of cases appealed was won; how to study various subjects, etc.’55 In 1915–16 Stewart assisted Dean MacRae,56 who was conservatively reforming the curriculum in the direction of practical usefulness, with a weekly course in contracts. In 1918–19, having handed back to John Read the course on real property, Stewart replaced the venerable Judge Benjamin Russell as lecturer on sales. In December 1922 the lecturer on insurance died, and Stewart replaced him, afterwards resigning as lecturer on sales. Despite his obvious success as a teacher, he resigned for good in the autumn of 1923, when the demands of a burgeoning corporate law practice became too insistent.57 Throughout his near-decade of teaching law (1914–23), and thereafter, Stewart kept in close touch with university affairs, first through the Alumni Association, and for decades on its board of governors. The Centennial (1920) ‘Million-Dollar’ Campaign saw him appointed an alumni representative on the organizing committee and chair of the subcommittee on rugby football.58 Then in the spring of 1928, Stewart was invited to join the prestigious Committee of Seven (‘To cooperate with those who love Dalhousie’).59 The blue-ribbon panel, struck by the board of governors, consisted of representatives from the board (three members), the academic staff (two), and the alumni (two, including Stewart).60 The Committee of Seven (eventually thirteen) did not so much raise funds as lend moral and practical support to any scheme to heighten awareness of Dalhousie among Maritimers. After William Stevens Fielding, the former Liberal premier and federal minister of finance under both Laurier and King, died in June 1929, Stewart was the governors’ unanimous choice to succeed him. Co-option being the method prescribed by the university’s statute,61 the government was obliged to accept the board’s recommendation; this arrangement kept political interference to a minimum and ensured the university’s bipartisanship and arm’s-length relationship to the party of government. Yet Edgar Nelson Rhodes’s Conservative government no doubt enjoyed appointing a back-room Tory stalwart such as Stewart, especially as the board’s chair, G. Fred Pearson, KC, was an influential Liberal insider. The order-in-council appointing him passed on 28 September 1929,62 and on 8 October Stewart took his seat. Dalhousie’s board in 1929 was a heady brew of corporate lawyers, capitalists, and politicians. Apart from the ex officio members – the

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president and the mayor of Halifax – there were two Conservative MPs and one former Liberal MLA, Lieutenant-Governor James C. Tory. The late chairman, George S. Campbell, had been president of the Bank of Nova Scotia, where the board’s senior member and treasurer, Hector McInnes (a former Conservative MLA), was a vice-president. Stewart, at forty the board’s youngest member, and already the head of his law firm, had fund-raising experience and proven skills. Dalhousie’s president was eager to launch another decennial campaign to match the triumph of 1920, which the current chair of the board, Pearson, had masterminded.63 Appointed to the finance committee, Stewart immediately articulated his philosophy of ‘hands-on’ participation by suggesting ‘that, in order to bring all the Governors into closer touch with the operation of the University, and to give them a better knowledge of its plant, a “Governors Committee for the Month” might be instituted, whose work would be to make as many visits as possible to the University during the month, the personnel changing each month, until during the academic year all the available governors should have functioned.64 Such were the lessons that Stewart had learned as a member of the Committee of Seven, as an active alumnus, as a tutor-lecturer, as a student leader, and perhaps even as a disqualified would-be Rhodes Scholar. The governors, the majority of whom were not graduates, were out of touch with the university. Stewart’s would always be the ‘proactive’ approach, if only to make sure that the faculty and administration did not behave too independently of the board and that the Senate was not corrupted by its statutory powers of internal regulation. Indeed, Stewart rather grandly conceived the role of the Committee of Seven (which lapsed in 1931) as educating the board, no less than the public, about ‘University affairs and problems.’65 Stewart also maintained his love of the classics. When he was elected chair of Dalhousie’s board of governors in 1937, after five years as vicechair, the president of the university described him as ‘an addict to the Classics.’66 The former tutor never forsook literae humaniores. His lifelong bibliophilia, combined with his particular devotion to Latin language and literature, induced him to acquire and in February 1930 to donate to the university library the twenty-volume Foulis edition (Glasgow, 1749) of Cicero’s Opera omnia, which had formerly belonged to LieutenantGovernor The Earl of Dalhousie, the university’s founder.67 In October 1930 Stewart presided at the inaugural banquet of the Classical Associa-

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tion of the Maritime Provinces, which convened to celebrate the bimillenary of the birth of Rome’s national poet, Virgil.68 A month earlier, Howard Murray – the driving force behind organizing the association – died. A ‘fervent protagonist for the teaching of the Classics in the schools,’69 the septuagenarian had lived to see his most gifted student become a governor and no less passionate an advocate for the classics than he. Late in his own life Stewart, like Murray before him, became honorary president of the Classical Association.70 By 1929 the old college’s transformation was well under way; Dalhousie had ceased to be either Pictonian or Presbyterian. ‘Church union [1925],’ wrote the editor of the Pictou Advocate, ‘placed Dalhousie between the upper and nether millstones, the devil and the deep blue sea.’71 The umbilical cord that bound the university to Pictou Academy had been cut; it was no longer a matter of Calvinistic predestination that academy graduates (even prize winners) would move on to Dalhousie. But perhaps not everything had changed for the worse. Although by 1932 the president was neither Pictonian nor clergyman, he was both Presbyterian and a classicist, while the board chair (McInnes) and the vice-chair (Stewart) were gold medallists of Pictou Academy and sustainers of the McCulloch tradition. Jim Stewart was, and would remain, Dalhousian first, Pictou Academy alumnus second, and Presbyterian third.

3 Religion and Love

What I do assert with confidence is that within the Presbyterian Church there is no power given to the church court and to the highest of the church courts, the General Assembly, to put an end to this church. – Eugene Lafleur, 1924

While Stewart’s Presbyterianism was patrimonial – Scottishness bred it in the bone and nurtured it from the cradle – he did not wear it on his sleeve. His relationship to The Presbyterian Church in Canada (PCC) was disinterested and unsentimental; it was the solicitor’s commitment to a client, not the zealot’s to a cause. Stewart’s attitude distinguished him not only from other members of his law firm but also from most members of his own family, including both Uncle John and ‘Madame Mère.’ Indeed he was the only member of his family who was not active in the church, nor overmuch inclined to participation in it. Though baptized in and buried from The Presbyterian Church, Stewart did not marry there, nor was he ever a communicant of the new, continuing Presbyterian congregation to which he adhered after church union in 1925 – a principal subject of this chapter. Educational institutions with presbyterian pedigrees – Dalhousie University and Pictou Academy – meant more to him than the church, which appealed to him mainly because it conserved the Free Church tradition of principled commitment to higher education. Little wonder

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that the minister who pronounced his eulogy was careful not to ascribe conventional piety to Stewart, while emphasizing correctly that for him ‘education was next to godliness.’1 Stewart was more a genetic Presbyterian than a conscious, committed, or practising one. Mainstream Presbyterianism, as represented by the PCC, was the sacrosanct tradition of the fathers; one honoured one’s father, and one’s grandfather more so. Murdoch Stewart had helped unify Nova Scotian Presbyterians in 1860 and Canadian Presbyterians in 1875. The PCC, no less than the Scottish influence in higher education, was Murdoch’s legacy to his children and grandchildren. As befitted a classical humanist, Stewart was not inclined to churchiness; he was not a kirkman in the old-fashioned sense. Churches, especially one’s own, were clients to be responsibly advised and effectively assisted. It is not that Stewart was irreligious. Religion was for him a matter of morality, just as the church was a matter of ethnic, intellectual, and patrilineal culture. Presbyterianism was an ideology accommodating meritocracy, the secularism and sophistication of the democratic intellect, capitalistic self-improvement, and Toryism. Stewart’s ‘social ideal’ of a ‘Christian economics’ lay rooted in the Scottish evangelical conservatism of his grandfather Murdoch, who in 1844 seceded to the Free Church, taking his Cape Breton congregation with him. His son Thomas carried on the tradition, becoming an advocate of the social gospel, though vehemently opposing church union.2 However conservative the PCC may have been in 1925 and afterwards,3 Stewart’s conservatism was honed by family loyalty and by his acting as counsel for Presbyterian dissenters opposed to the PCC’s participation in statesponsored organic church union. In Nova Scotia the battle was joined over the Liberal government’s acquiescence in Parliament’s 1924 legislation on church union – which was fast inducing a schism in the largest of the three ‘negotiating churches’ – the PCC. Religious sociologists have attributed Pictou County’s high production of ‘notables’ such as Stewart to ‘its history of intense religious conflict,’4 and on no issue is this truer than on resistance to church union. Pictou Presbytery ‘was the only Presbytery in the Maritimes Synod where a majority of the members of the Church and a majority of the congregations consistently voted against entering the United Church of Canada in all three votes [1911, 1915, 1924].’5 In 1924 the Nova Scotia legislature passed the United Church of Canada Act,6 intended to complement parliamentary legislation incorporating the new body and to facilitate

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entry into the United Church for those Presbyterian congregations voting in favour of it. The private member’s bill – a public act disguised as a local one – caused a firestorm. Its introducer, John Brown Douglas, was a partisan unionist Presbyterian Liberal MLA from Halifax, while the Liberal government of Premier E.H. Armstrong – a union Methodist – had tacitly approved the introduction of the bill.7 ‘Drama abounded and the assembly resounded with high-flown oratory,’ writes J. Murray Beck, ‘on a bill relating to the establishment of the United Church of Canada’: The major protagonists in the non-partisan proceedings were highly articulate Presbyterians in the assembly and Presbyterian lawyers, many of great distinction, who appeared at committee hearings. To some the bill was an ‘act of God,’ to others it was coercive and tyrannical, violated trusts, contained no provision to protect minorities, and constituted a gross breach of faith with the Presbyterian Church. Catholic members, not relishing massive legislative interference in the affairs of a religious body, voted solidly against the bill. It passed nonetheless, even though R.H. Graham8 lamented that continuing Presbyterians were being ‘left like sheep wandering in the wilderness.’9

The battle was uphill. Not only were the Maritimes a major contributor of leaders to the unionist cause in The Presbyterian Church;10 Stewart’s uncle Thomas, an influential, nationally known and respected antiunion minister, died in January 1923, leaving the Maritimes Synod bereft of a really effective clerical advocate for a continuing, undivided, national Presbyterian church. Stewart, for his part, found himself opposing his mentor, Hector McInnes, prominent Conservative, leader of the bar, and another eminent Pictonian. These two Pictou Academy gold medallists and élite corporate lawyers in Halifax were divided by generation and by conflicting visions of Presbyterian polity. In ecclesiastical politics, McInnes’s conservatism was a good deal more progressive than Stewart’s, whose conscience was a prisoner to uncompromising opposition to union. For the Stewarts, the PCC, like the Free Church of Scotland before 1900, was the Primitive Church revived and, as such, had to be conserved. Although Stewart himself could be neither unionist nor neutral, his position as legal adviser to the Presbyterian Church Association, the chief anti-union pressure group, enabled him to maintain a certain professional distance. Ahead of ecclesiastical partisanship came the lawyer’s obligation to the client. If Stewart was a conscientious objector to church union, his opposition does not fall into any of the broad interpretations proposed by those

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‘union analysts’ (James Cameron’s term) preoccupied with the social psychology of the non-unionists: ‘social status, a Scottish superiority complex, the influence of educational leaders, an attempt to gain cultural hegemony, anti-Catholicism and the alleged temperamental uncooperativeness of Presbyterians.’11 None of these motivations, nor even a combination of them, explains those Presbyterians who exercised a voluntarist freedom of conscience by withholding their consent to a church union that they saw as tantamount to church destruction. If the Free Kirk tradition predominated in the PCC,12 it also underpinned resistance to church union within the PCC. The congregations making up the Pictou Presbytery – that citadel of nonconcurrence – came to see union as a second Disruption. And the non-unionists had a role model in the shape of the Free Church of Scotland (after 1900) – ‘a conservative Presbyterian Church claiming historical and theological continuity with the National Church reformed in 1560, and with the Free Church [of the Disruption] ... 1843–1900.’13 The ‘Wee Frees’ not only stayed out of Scotland’s organic union of 1900, in which the Free Church and the United Presbyterian Church merged to create the United Free Church, but also had the property of the Free Church (before 1900) awarded them on appeal to the House of Lords. The Free Church Case, 1900–4,14 was very much in the minds of lawyers involved on both sides of the controversy surrounding Canada’s and Nova Scotia’s church union bills. In the presbytery of Halifax, where pro-union sentiment among both clergy and laypeople was exceedingly strong,15 the battle was joined between the province’s two leading law firms,16 McInnes, Jenks, Lovett and Macdonald and Henry, Stewart, Smith and McCleave – whose members were soon to play a leading role in the Halifax chapter of the Presbyterian Church Association. The PCA, formed in 1916 to prevent organic union among the Presbyterian, Methodist, and Congregational churches, was officially represented at public hearings on the church union bill by the Reverend Dr Robert Johnston, minister of the United Presbyterian church, New Glasgow, NS; president of the PCA in the Maritimes Synod; and a future moderator of the PCC.17 Hearings began on April Fool’s Day 1924 and ran for three days.18 Senior counsel Walter Crowe, KC, led the attack against the bill. He was followed by Dr John Stewart, now aged 76 and a senior elder in the presbytery, who ‘thought the proposed church union was a great tragedy. He could not understand how those who favour the bill could say that the churches entering the Union would still retain their own identity.’ His nephew, junior

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counsel for the PCA and appearing without fee, ‘declared that the Bill told the minority to go “into the wilderness”.’ J. McG. Stewart’s argument, a legal one based on equity and natural justice, dealt principally with trust funds and property rights. The courts of law had nothing to do with soundness of doctrine, for the court had only to determine what were the views and ground of the original trusts. That the Presbyterian Church would not exist after the union ... had been proved by the very lawyers who had assisted in formulating the [church union] bill. The bill ... asked the Legislature to legislate into the Union Church every cent of their trust property, and ‘you are legislating it the moment the bill passes.’ It handed over to the United Church the property of the Presbyterian Church even before the Commission was appointed to inquire into the division of the property. Those who desire to remain in the church of their fathers do not want even their whole legal rights, that of the whole property which is theirs, but they want only their share ... Let those who want to go in, go in, investigate the property rights and give to those who remain out all they can deal with and give the rest to the United Church. The unfairness of the bill ... was to tell the minority to go into the wilderness. This was what he [Stewart] characterized as ‘pure unadulterated coercion and threat.’ The rule adopted by the Imperial Parliament in the church [union] controversy in Scotland19 was a just course and the sacredness of trust rights were [sic] recognized and maintained. Let it not be said that the Legislature of Nova Scotia blotted out an ancient church.20

Stewart deplored state-coercive interference in the internal affairs of a private body unincorporated by either federal or provincial legislation, especially as it tended to undermine minority rights. As R.S. Cassels, KC, later legal adviser to the continuing PCC, wrote on resigning from the Union Committee on Law and Legislation, ‘In the first place there is not in law a Presbyterian Church.’21 It was not possible to legislate out of existence a body that had not been legislated into existence to begin with. It was neither fair nor reasonable to attempt to do so. The entire process proved to be far more political than spiritual and jeopardized the separation of church and state. The public hearings did not even delay passage of the province’s church union bill, which the legislature enacted in May 1924 to come into force when Parliament incorporated the United Church of Canada. Between May 1924 and June 1925 Presbyterian ways began to part. In

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November 1924 the Halifax chapter of the PCA was formed, with the 500-odd enrollees recording their ‘opposition to the present form of Church Union and [their] desire to perpetuate the Presbyterian Church as at present constituted.’22 The first signature was that of John Stewart; he was joined by the other members of the extended family and by three of the partners in Stewart’s law firm. Conspicuous by his absence was Stewart himself, who, as legal adviser to the PCA, must have thought the better of becoming directly involved in its campaign of active resistance. The 1924 act incorporating the United Church of Canada provided that congregations of the PCC take a definitive vote on union between 10 December 1924 and 10 June 1925. In Fort Massey, the Stewarts’ home congregation, the vote took place between 22 December 1924 and 8 January 1925. The richest and most fashionable of Halifax’s Presbyterian churches, Fort Massey attracted the professional, educational, and business élite and had claims to be considered Dalhousie University’s church. Among its members were the Reverend Dr John Forrest (died 1920), the university’s former president; Dean MacRae of the Law School; and Professor Archibald MacMechan (a client of Stewart’s).23 Theologically advanced thanks to ministerial connections with the Presbyterian College, Halifax (afterwards Pine Hill Divinity Hall), and influenced by social-gospel progressivism, Fort Massey’s congregation voted massively in favour of union – 181 to 29. In April 1925 Stewart withdrew from the congregation of which he had been a member for ten years. Unlike the other members of his family and his law partners, he did not take part in the formation of the new Presbyterian Church of Halifax, a schism-born congregation that gathered up most of the anti-union dissenters from the half-dozen Presbyterian churches in Halifax and Dartmouth, all of which had voted in favour of union.24 The situation in that part of the presbytery of Pictou that comprised Pictou County could hardly have been more different. There the Methodists and unionist Presbyterians were the dissenting minority. In Salt Springs, a dispersed rural community southwest of Pictou town with a long tradition of Presbyterian dissent,25 the congregation of St Luke’s Presbyterian in December 1924 voted by a significant margin against union – only to have the disaffected unionist members arrange a second vote in July 1925 among themselves, which was unanimously in favour of affiliating with the United Church of Canada, then one month old.26 The previous May the Maritime Synod’s union committee, anticipating that congregational votes favouring union might be informal or irregu-

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lar, procured from the legislature an amendment to its enabling United Church of Canada Act that implicitly confirmed the result of any vote taken before the federal act of incorporation came into force on 10 June 1925.27 Unfortunately for the unionist cause in Salt Springs, the ‘second’ vote, undoubtedly irregular, was taken in July 1925 and was therefore not only irregular but also illegal. As the provincial act barred civil proceedings instituted after 10 June 1925 only on votes taken before that date, it was of no help to the unionists – quite the reverse. On 1 September, therefore, a writ on behalf of the Presbyterians of St Luke’s was issued to commence an action in Nova Scotia’s Supreme Court for a declaratory judgment and injunction restoring the status quo before July 1925. Alexander Cameron et al. v. Trustees of St. Luke’s Presbyterian Congregation of Saltsprings,28 running nearly five years and the only Canadian church union case to reach the Privy Council in London, was conducted on behalf of the plaintiffs by Henry, Rogers, Harris and Stewart (and its successor [1926] firm Henry, Stewart, Smith and McCleave). The Presbyterian Church Case, 1925–30, was Canada’s answer to Scotland’s Free Church Case, 1900–4; only there the decision led to remedial legislation, whereas in Canada the legislation had come first, both at the federal and provincial levels, and was intended to preclude litigation or render it nugatory. No one appreciated the irony better than Hector McInnes, KC, lead counsel for the United Church of Canada. Nova Scotia’s United Church of Canada Amendment Act, by narrowly prescribing the conditions for civil proceedings, had in fact facilitated them and significantly aided the nonconcurrent Presbyterian cause in the most militantly antiunion presbytery in the country. The originating notice having been issued in time for the autumn circuit, the case began in the provincial Supreme Court at Pictou on 11 November 1925, with Chief Justice Harris presiding. J. McG. Stewart, KC,29 lead counsel for the plaintiff moderator and elders of the kirk session, found himself not only arguing before the former head of his own law firm (who by consent of parties sat without a jury), but also opposing McInnes, KC, sole counsel for the defendant trustees. The judge, who might well have used Nova Scotia’s United Church of Canada Amendment Act to nonsuit the plaintiffs, declined to do so, presumably because the second vote took place after the statutory deadline of 10 June 1925. Stewart’s argument at trial circumvented the Amendment Act, which he viewed as a double-edged sword unintendedly cutting the wrong way. Dwelling instead on the effectiveness of the ‘first’ vote, carried out under the provisions of the paramount federal act of incorpo-

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ration, Stewart argued by implication that Nova Scotia’s United Church of Canada Act, passed after the regular congregational vote, was, for that very reason, not material, except in confirming the result of that vote. The whole case turned on the validity of the ‘first’ vote. Chief Justice Harris, concluding that it was invalid, held that the ‘second’ vote was good and dismissed the plaintiffs’ action with costs. The plaintiffs thereupon appealed to the Supreme Court in Banco, which found for the appellants, although one justice, a former senior in McInnes’s law firm, dissented.30 This decision, reversing a judgment of the province’s chief justice, turned the action into a cause célèbre in United Church circles. The newly minted church replied by appealing to the Supreme Court of Canada, which, by a majority of four to one, found for the respondents and dismissed the appeal with costs. Applying the federal paramountcy principle, the court ruled that the relevant sections of Nova Scotia’s United Church of Canada Act were ultra vires; a provincial legislature could not amend the parliamentary act of incorporation so as to enable a second vote to take place. Secondary provincial acts were enabling of the primary federal one, nothing more; they could not materially affect any provision of the act of Parliament. Heartened by the lone dissent of the second-ranking justice of the Supreme Court of Canada, the defendants sought and were granted leave to appeal to the Privy Council.31 The United Church took a very serious view of the case, which was setting a dangerous precedent that might have resulted in the striking down of parts either of the federal act of incorporation or of the provincial enabling act – a template in use in legislatures across the country. Lead counsel for the appellants was William Norman Tilley, principal legal adviser to the United Church. Assisting him were Gershom W. Mason,32 father of the United Church of Canada Act, Hector McInnes, and L.A. Lovett, who had unsuccessfully argued the respondent-defendants’ case in the Supreme Court of Nova Scotia in Banco. It was all to no avail; the judgment appealed from was affirmed and the appeal dismissed with costs. Lord Macmillan,33 speaking for the Judicial Committee, began by alluding to the Free Church Case, which had so concerned Hector McInnes during the legislative committee’s hearings on Nova Scotia’s church union bill: ‘Profiting by the experience of the Presbyterian Churches which united in Scotland in 1900 the Canadian Churches which proposed to unite in 1925 adopted the safer course of invoking in advance the sanction of the legislature to their union. They have, nevertheless, not been entirely successful, as the present appeal shows, in avoiding the

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pitfalls which seem to lie in the path of all legislative efforts to deal with ecclesiastical affairs.’34 Perhaps because of his failure at trial, Stewart had decided not to argue the plaintiffs’ appeal in Banco. Hector McInnes, in contrast, victorious at trial, proceeded to argue the defendants’ counter-appeals in the highest courts; he had every reason to believe that the judgment reversed in the Supreme Court of Nova Scotia in Banco would be restored in the Supreme Court of Canada. Instead it upheld the decision of the lower court. Although Stewart did not participate in the appellate proceedings in Halifax or Ottawa, he appears to have gone to England in the summer of 1929 to argue against the defendants’ application for special leave to appeal from the judgment of the Supreme Court of Canada; but he did not argue the respondent-plaintiffs’ case in the Privy Council. Instead he assigned the task to C.B. Smith (an Anglican) and H.P. MacKeen (a strict nonconcurring Presbyterian). Smith and MacKeen, who presumably restated Stewart’s argument at trial, succeeded in the Privy Council as they had in the two appeal courts. Frank Covert, then the firm’s newest junior, remembered the psychological effect of the victory, especially on MacKeen, who laboured for many years in Smith’s shadow: ‘His triumph in the Privy Council over ... W.N. Tilley in the Church Union Case (Salt Springs) gave him a confidence that he had lacked and from then on triumph followed triumph.’35 MacKeen, a member of the PCA, had fully vindicated the claims of his clients and his church. A bronze plaque on the south wall of The Presbyterian Church of Saint David in Halifax commemorates his being both a charter member and a trustee of the Presbyterian Church of Halifax (1925)36 – phoenix arising from the ashes of schism and disruption in The Presbyterian Church in Canada. Presbyterianism was a factor not only in Stewart’s heritage but also in that of his secretary, Elizabeth Wilson, a Conservative stalwart who took her politics and her religion no less seriously than he, and sometimes to ludicrous extremes.37 Elizabeth divided her working life, 1909–31, between two élite Conservative law firms, the first late in its existence and the second on the verge of its pre-eminence. The vacuum created by the dissolution in 1912 of the successor firm to Borden, Ritchie and Chisholm – for thirty years the most prestigious law firm in the province and region – was quickly filled by the other gilt-edged Tory law firm: Harris, Henry, Rogers and Harris. There Elizabeth Baptista (‘Bessie’) Wilson, stenographer, went to work

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after the disastrous fire of January 1912 that incinerated her former employer’s offices and put paid to the firm. Her arrival antedated Stewart’s by about two years and quite possibly contributed to it. How and when they met is uncertain, but they were acquainted by 1913, when Stewart first became involved in company promotion. Among his partners in these ventures in real estate development and commercial shipping was Elizabeth Wilson.38 Wilson, unlike Stewart, came from a lower-middle-class background.39 Like Stewart, however, she was on her father’s side two generations removed from Scotland; her paternal grandfather came from Aberdeenshire;40 she had a paternal uncle who was a Protestant minister;41 and she had a brother overseas in the Canadian Expeditionary Force during the First World War.42 Her paternal grandfather, William Wilson (1822– 1873), the son of a sea captain though himself a tailor by trade, emigrated from Aberdeen to Halifax about 1846. The circumstance that appears to have sent him out was the death of the husband of his childless maternal aunt Margaret, Dr Robert Brown, a former Royal Navy surgeon, in December 1845.43 William Wilson, who was to become a respected member of Halifax’s petite bourgeoisie, married in 1854 and left a wife and nine underage children when he dropped dead of a heart attack in September 1873 in his 52nd year. At the time of his death Wilson was a paper-bag manufacturer. The eldest of William’s eleven children, William Whitman (1855–1916), gave up paper bags for candy shortly after his father’s death and went to work for Moirs Limited,44 chocolate manufacturers, where he was employed for thirty-nine years. Marrying in 1877 a Roman Catholic Irish immigrant, Mary (Maria) Elizabeth O’Hearn, by 1891 he had defected to Rome.45 Elizabeth Emily46 Wilson, the seventh of nine children – all raised as Catholics – was born in Halifax in May 1890. Her academic education at St Patrick’s Girls’ High School ended in 1908, when she placed 137th out of 138 in the provincial examinations for Grade X.47 She then took a commercial course, at which she excelled, and in 1909 went to work as a stenographer for the law firm of Ritchie & Robertson. Meanwhile, Stewart was teaching classics at Dalhousie. By the time Ritchie & Robertson was dissolved, Stewart was an articled clerk at Hector McInnes’s law firm and an undergraduate in Dalhousie Law School. Wilson moved on to Harris, Henry, Rogers & Harris, where she remained for nearly twenty years, rising from stenographer to ‘solicitor’s clerk’48 and becoming in 1927 secretary to the new head of the firm – her closet fiancé and future husband. In her later years Mrs

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Stewart liked to recall that her petit-bourgeois father once intended becoming a lawyer. Indeed, at a time when women had breached the legal profession in Nova Scotia, she may have had similar aspirations herself.49 She was proud of the facts that her services were in demand and that she had eclipsed the former senior secretary, the redoubtable Susannah W.A. Almon – a pillar of Halifax high society – in the eyes of the younger generation of partners, and of one in particular.50 Tradition has it that Wilson would shepherd unsuspecting prospective clients of other lawyers into Stewart’s office so that they could become clients of his.51 Little wonder he prized her skills as a gatekeeper. By 1930 Wilson was receiving $100 per diem as a commissioner of the Superior Court of New York for taking evidence, in addition to selling the transcriptions and receiving her salary as usual.52 Bessie Wilson was a shrewd businesswoman whose connections brought wealthy private clients to the firm. Prominent among them was her maternal great-aunt, Honora Cox (1822–1923), of whose considerable estate Wilson was sole executor, while the estate’s solicitors were Henry, Stewart, Smith and McCleave.53 The office romance between lawyer and legal secretary blossomed into a serious affaire de coeur, which, by 1920 at the latest, had become an unofficial engagement.54 In 1925, when he drafted his first will, Stewart bequeathed to Wilson ‘in appreciation of many years of loyal service and [of our] friendship the sum of $3000’ – as well as his valuable stamp collection,55 which he was soon to sell in an unsuccessful attempt to bring forward the date of their wedding. Religion was a complicating factor – as it had been in the two previous generations of the Wilson family.56 If a young Catholic woman was really interested in a Protestant man, she would endeavour to ‘convert’ him so as to render him marriageable. Over the long years of their engagement Wilson subjected Stewart to the same papal aggression that had reduced her Baptist father. In this social war, however, she was doomed to defeat – not because Stewart was anti-Catholic, much less pro-Presbyterian, but because he was invincibly loyal to his family (an institution in itself) and to its traditions, including the ecclesiastical. Both his revered grandfather Murdoch, who died before Stewart was born, and his late uncle Thomas, to whom Stewart seems to have been close, were eminent clerics. He would not defect from a church already rent by schism, regardless of his personal attitudes, however ambiguous they may have been. By comparison with Stewart’s, moreover, Wilson’s religious history – at least on her father’s side – was chequered and confused: a vertical

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mosaic, tiled with Presbyterians, Baptists, and Roman Catholics. Stewart’s people, in contrast, had been seamlessly Presbyterian. He could not break with tradition without being unfilial and disloyal – and filial duty and family loyalty were virtues that he prized most highly. Although Stewart would not to the marriage of true friends admit an impediment like religion, he was also respectful of the feelings of his mother, Julia, a woman with a past that perhaps rendered her Calvinistically predestinarian and rigorist.57 A measure of the futility of Wilson’s determined proselytizing was that Stewart used the verso of her nine-page disquisition on papal primacy, ‘The Supremacy of Peter,’ composed nine months after her father’s death in March 1916, to record quite a different kind of regimen: his daily exercises.58 The tactics that had proved so successful against Wilson’s uneducated father were wasted on her perspicacious fiancé. She would not succeed in re-creating her convert-Catholic father in her cradle-Presbyterian husband. But she did not pester or harass him; once it was clear that conversion was not within the pale of their relationship, she dropped the matter. After all, it was not as if Stewart was an active, church-going, communion-roll Presbyterian like the other members of his family; he was nothing of the sort. For Stewart Presbyterianism was the patrimony, a trust estate, so to speak, to be preserved inviolate for future generations. Nor did the continuing Presbyterian Church in Canada have anything like the same cachet or clout as its pre-1925 predecessor. Stewart realized better than many continuing Presbyterians that it was not possible for the church to be both ‘old’ and ‘new.’ It had survived, but only just.59 Stewart deferred marriage for ten years, not only because of official religion – denominationalism – but also because of the social stigma attached to élite lawyers’ marrying their déclassé secretaries. Stewart’s accession to head of the firm in 1927, however, not only enabled his de facto fiancée to transform her position from executive secretary to general manager but also removed one of the last obstacles in their path. The late head of the firm, W.A. Henry, had disapproved,60 which may help to explain why the marriage took place in 1931 rather than in 1922 (if not before), when ‘Ging’ was already signing himself ‘your own loving husband.’61 Stewart was no more prepared to change his religion than he, or indeed she, would have been to change sides in politics; fortunately, in matters political, there was complete domestic harmony. During elections the Wilson family home at 22 Birmingham Street in midtown

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Halifax was unofficial Tory headquarters for the ward section and subdivision.62 Elizabeth Wilson, a proponent of women’s suffrage, was on that account alone an active Tory. The provincial Conservative Party had long advocated extending the electoral franchise to women, while the Liberal government opposed it to the bitter end, relenting only in 1918 when the policy was no longer tenable nationally.63 At the time of her marriage, moreover, Wilson was secretary of the Women’s Conservative Club of Halifax. Whereas a politically mixed marriage was inconceivable, a religiously mixed one was within the realm of possibility. With the Conservative Party in power in both Ottawa and Halifax, the omens in the spring of 1931 seemed propititious. Wilson took her mother with her to New York not to act as chaperone but to visit her father’s sister-in-law and niece; Stewart left his mother at home, setting out for Montreal and Ottawa, ostensibly on a business trip. The real purpose of the Stewart–Wilson rendezvous in New York was soon reported; the clandestine wedding was front-page news in Halifax the next morning.64 Despite its surreptitiousness and quaintly scandalous flavour – the forty-something bachelor head of the city’s leading law firm ‘eloping’ to New York with his equally middle-aged spinster secretary – the wedding was a calculated, carefully planned, and brilliantly executed feint. Wilson and her 74-year-old mother went on ahead to New York, whither Stewart followed a few weeks later, having first to clear his desk and cover his tracks. Of course it was not known, nor perhaps even suspected, that Wilson would not be coming back to the office; she was thought simply to be taking a rest-cure.65 Stewart took a circuitous route, arriving in New York the second week of April. Installing himself in the Ritz-Carlton Hotel, where he invariably stayed when in Montreal or New York, he completed the affidavit for a marriage licence on 20 April.66 As the bride-to-be was staying with her aunt and cousin in Queen’s, a borough of eastern New York City on Long Island, the wedding took place there. The Reverend Philip A. Dillon, parish priest, performed the ceremony at the Church of Our Lady of the Cenacle, Richmond Hill, on 21 April; the witnesses were Mrs Stewart’s Wilson aunt and her cousin.67 Stewart’s unwillingness to secede to Rome, combined with his willingness to marry outside the Presbyterian church, which conveniently did not view marriage as a sacrament, led to the concordat. Stewart was prepared to go through a Roman Catholic ceremony – shades of Henri IV

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and ‘Paris vaut bien une messe’ – but no more; just as Mrs Stewart, forty years later, was determined to share her husband’s final resting-place in the Protestant public cemetery (Camp Hill), where her Protestant Wilson grandfather lay buried. One wonders in what denomination the couple’s miscarried child would have been raised had it survived.68 The Stewarts returned from their Caribbean wedding trip about the first of June 1931 and moved into the new and fashionable Lord Nelson Hotel in downtown Halifax, pending completion of renovations to the matrimonial home.69 At the end of July they took out a two-month lease on the South Street home of the Very Reverend J.P.D. Llwyd, dean of the Church of England diocese of Nova Scotia, who was absent from the province.70 Although Stewart had decided to purchase a substantial building lot on Oakland Road71 – a choice location taking its name from the Northwest Arm estate of William Cunard, where it originally terminated – circumstances made him reconsider building from scratch. The ‘imposing mansion’ that Joseph B. Kenny, KC, had built in 1916–17 on the Northwest Arm estate72 of his late father came suddenly onto the market when Kenny decided to build another house in the neighbourhood.73 Stewart purchased the property in July 1931 and assigned it to his bride as part of the marriage settlement.74 Renovated, redecorated, and christened ‘Braemar’ in honour of Stewart’s paternal great-grandfather and namesake, it immediately became, and remains, one of Halifax’s great houses. The Stewarts moved into their new home on Monday, 21 September; over the following month the house was made ready for the bride’s postnuptial reception – her coming-out as Mrs J. McG. Stewart, Jr. The housewarming, which took place in the late afternoon of Wednesday, 28 October, was the social event of the season.75 Some 400 curious and no doubt envious ladies descended on the new Mrs Stewart, who was joined in the receiving line by Mrs Wilson and the dowager Mrs Stewart, their presence symbolizing the pax romana evidently declared in the months following the wedding. Mrs Stewart’s two sisters attended, as did Mr Stewart’s two sisters – and Aunt Amelia, the Stewart family sage, who may have suggested the house name ‘Braemar’; in 1879 she had visited the McGregor family seat at Braemar, Aberdeenshire. ‘If in the city is a private residence in which “satisfying” living is possible,’ wrote the awestruck society columnist, ‘it is Braemar – at once spacious and cosy; ample for hospitality on a large scale, but genuinely and most delightfully home-like.’76 Bessie Wilson, who as a little girl

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used to imagine that she sometimes belonged in ‘the grand houses of the wealthy and famous’ that her father pointed out to her on Sundaymorning walks, was now the mistress of one.77 Braemar soon became the venue for fashionable gatherings, especially dinner parties, and eventually an annual New Year’s Day levée as well. Typical of the pre-war social round was a ball (complete with dance-cards) that Stewart, then vice-chair of the board of governors, gave for Dalhousie University’s graduating class of 1934.78 The master and mistress of Braemar were a happy and well-matched couple. Despite Stewart’s having married beneath him, theirs was a mésalliance only in the narrowest sense; marriage was but the public acknowledgment of an intense and amorous friendship that had been in full flower for over a decade. Born to the purple, though without the silver spoon in his mouth, Stewart had inherited a position in society and was busily earning the money with which to sustain and enhance it.79 The president of one industrial company and the vice-president of another, six months after his wedding Stewart became vice-president of Nova Scotia Light and Power (the province’s principal private utility) and by year’s end would be a director of the Royal Bank. The year 1931, his 42nd, proved indeed to be Stewart’s annus mirabilis. Although shadows falling over the couple’s happiness from outside were rare, Stewart rose magnificently to any occasion. A tragic incident a year after the marriage exemplified his high sense of extended-family obligation by enabling him to use his political influence for the benefit of Mrs Stewart’s teenaged nephew. In May 1932 Joseph Wilson, Jr, was a passenger in a car that failed to stop at an RCMP checkpoint outside Dartmouth. The Mounties, having only just taken over policing responsibilities from the unlamented Nova Scotia Provincial Police, were already beginning to develop a reputation for ‘shoot first, ask questions later.’ A trigger-happy constable discharged his .38-calibre service revolver at the car three times, striking the 19-year-old Wilson in the back of his head. The bullet lodged in the brain, causing a multiple fracture of the skull and resulting in permanent disability.80 Wilson sued the police officer in propria persona and was awarded $12,500 of the $20,000 in general damages that he sought. Stewart placed the entire resources of his law firm at the service of the plaintiff,81 the significance of which was by no means lost on counsel for the defendant.82 Although the judgment was unanimously upheld on appeal to the Supreme Court of Nova Scotia in Banco, there was no provision in the RCMP Act for recovering

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damages against an officer for actions committed during the performance of duty. Wilson therefore had no hope of collecting on the general damages that he had been awarded. But Wilson père did not reckon with the pull-and-drag of his sister’s well-placed husband, whose firm had conducted the trial and appeal of the action with such conspicuous success. Stewart, working not through the federal minister of justice but through the minister of finance, Rhodes, Nova Scotia’s former Conservative premier, arranged for a ‘compassionate grant’ of $7,500 to Joseph Wilson to be inserted in the supplementary estimates by way of settlement and compromise. The item was approved, although the minister of justice was uncomfortable responding in the House of Commons to questions concerning it.83 Small wonder, for the proceeding lay entirely and absolutely outside the jurisdiction of the Supreme Court of Nova Scotia. In the days before uniform crown proceedings, civil servants could be impleaded only in the Exchequer Court of Canada, and then only by petition of right, which was not granted except on the recommendation of the provincial attorneygeneral. Whether the Conservative attorney-general of Nova Scotia was approached is not known. Why the trial judge, W.F. Carroll, an Irish Roman Catholic and former Liberal MP, failed to nonsuit the plaintiff, as he ought to have done, is a mystery – explicable perhaps by the hostile insinuation that Carroll ‘would do anything for his friend’ Stewart.84 Why the want of jurisdiction was not made a ground of appeal by the defendant, not to mention grounds for allowing it, is an even greater mystery. In politics as in everything else, ‘The Boss’ and ‘the GM,’ as Mr Stewart and Miss Wilson were affectionately christened, continued to work together as a team long after she ceased to be employed by the firm, and indeed throughout the twenty-four years of their married life. The amorous friendship that they had cultivated over nearly twenty years simply adjourned from office to home, where he remained The Boss and she the GM. Less self-effacing and naturally modest than he, she concentrated her restless energy on pushing and promoting her husband, in much the same way as Lady Thompson had done her brilliant but diffident lawyer-husband.85 More a doer than a thinker, she also threw herself into community service and philanthropy. Artistically inclined, and possessed of a keen practical intelligence rather than intellect, she followed her cerebral husband into serious collecting. Her interest lay not in stamps or in literature but in the

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ceramic arts, and she made herself a connoisseur of eighteenth-century English porcelain as well as a bit of a scholar. In her retelling, some twelve years after Stewart’s death, of the story behind ‘the old Worcester jug’ (c. 1770), she wrote lovingly of his uxoriousness: My late husband ... asked me to tell him why I was collecting all this china. He felt, if I kept on, we would have to build a larger house. This was my golden opportunity of talking porcelain to him. So I proceeded and told him the Story of ‘The Old Worcester Jug’ and the influence it had on me. Whereupon he said: ‘Have you a copy of that book, and if so, is there a description of the jug in it?’ I answered ‘Yes.’ ‘Well, where is it?’ ‘I presume it is at home in my sister’s library.’ ‘Will you drive in with me this morning and see if she still has it?’ Reaching my sister’s home, she produced the book and told me I could keep it. Nearly all our friends had read the story. When my husband arrived home for lunch, I proudly produced the book and read to him the description of the jug. He said it was a most fascinating story, and would I just please copy out the said description. I did so, and when he took it from me, he promptly put it in his pocket. ‘Well, why on earth are you putting this in your pocket?’ ‘Oh! I just want to keep it.’ Six months later it was Christmas time. And looking out the window I perceived a large truck coming through the gates with a packing box on it. I rushed downstairs and found the chauffeur. I asked him to please open the box so I could see what my husband had now bought without telling me about it. ‘Madam, there is a notice on the box saying: “Do not open until Christmas”.’ I went upstairs again. However when Christmas morning arrived and I went downstairs for breakfast, lo and behold in the Drawing Room was a beautiful Christmas tree, completely lit and beautifully decorated. And what do you think I found underneath that tree ... – The Old Worcester Jug!86

If he spoiled her, then she spurred and cosseted him in equal measure. When he was ill and could not ingest solid food, she would not entrust the preparation of his special meal to the domestic staff; she would make it herself, attending personally to every detail, however small. Stewart tutored his wife without patronizing her and encouraged her to teach herself. Their class backgrounds were very different, however, and she tended to overcompensate for her lack of academic credentials. He could share with her neither his erudition nor his love of classical literature and serious music; amateur theatricals appealed to her. Yet Elizabeth took immense pride in her husband’s mastery of classical literature, which he continued to read for pleasure and profit throughout his life. In 1959 she proudly told the cardinal archbishop of Boston how

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much her late husband and the Roman Catholic archbishop of Halifax, Gerald Berry – a frequent guest and welcome visitor at Braemar in the final years of Stewart’s life – ‘enjoyed their “Greek” together.’87 Sometimes, however, and quite inadvertently, she embarrassed her husband, for she entirely lacked his sang-froid and cosmopolitan savoir faire. She did not have a sense of humour, whereas his was devilish and risqué; nor was he above gently reproving her for her Irish contrariness, as at Christmas 1941, when he composed the following doggerel in her honour: There are times when it’s hinged in the middle And wags at either end; At others it keeps stony silent And her back refuses to bend; But these moods are as rare as eclipses, And all who know us agree, That none is so happily married As I am with sweet loving Bee.88

PART TWO Bar and Privy Council

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4 Prime Serjeant

He was a towering figure in the law in his time. Had it been Nova Scotia’s ‘turn’ he would undoubtedly have been on the Supreme Court of Canada. – George F. Curtis, 1997

For a quarter-century James McGregor Stewart was a practising advocate, rapidly becoming one of the leading barristers in the country, appearing before the Supreme Court of Canada and the Judicial Committee of the Privy Council. Even after his interests shifted almost completely to corporate law (the focus of part III), he remained an active supporter of, and a leading figure in, the bar and its institutions. In February 1914, a day or two after sitting the bar examination, James McGregor Stewart transferred his articles from ‘McInnes, Mellish, Foolish and Hellish’ (as the wags styled it) to Harris, Henry, Rogers and Harris.1 (Appendix A lists the firm’s names, 1867–1955.) Why, days away from their termination, Stewart decided to transfer his articles from one venerable downtown firm to another is uncertain, but he was already incorporator, director, and officer of the Edgerton Fur Farm Limited of New Glasgow (which bred silver black foxes), for which Harris, Henry, Rogers and Harris acted as solicitors.2 Robert E. Harris, the firm’s head since 1893, was president of Nova Scotia Steel and Coal Company Limited (‘Scotia’), the province’s leading industrial corporation, and had

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long taken a leading role in promoting and managing business, offering a broad range of services to clients beyond the solicitorial. Stewart needed to make money as well as build a career; what better place to do so than in the region’s premier law firm? When John Read, the firm’s newest junior, volunteered for the Canadian Expeditionary Force in November 1914, he suggested `that his friend Mr Stewart should take his place when he was accepted for service.’3 Stewart, associated for three months with the small firm Silver & McDonald, seized the day. Harris, Henry, Rogers and Harris was born of a merger in 1885 between Henry & Weston and Ritchie & Ritchie.4 The former had been established in 1867 by an ex-attorney-general of Nova Scotia, William Alexander Henry;5 the latter was successor to the old Halifax Tory law firm of Johnston, Bliss and Stewart, founded about 1822, which traced its origins back to a refugee Loyalist attorney from Massachusetts, Jonathan Sterns. Over its 100-year history the firm became an academy of jurists; its most distinguished leader, John William Ritchie, failed to become Canada’s chief justice in 1879 only because of ill-health and advancing age.6 Henry & Weston’s absorption of the Ritchie family firm in 1885 conferred an élite pedigree on it and began an institutional tradition that J. McG. Stewart perfected. The 1885 merger brought together two streams – business and law – which accelerated development of corporate law as a field of practice and also, in Philip Girard’s words, ‘succeeded in a relatively short time in promoting the corporate lawyer as the idol of the modern legal profession.’7 The firm enabled Stewart at once to begin to establish himself as a finance capitalist and participate in a rapidly expanding corporate sector that included representative clients of the firm. Within a year of his admission as an associate (prospective partner), the head of the firm, R.E. Harris, was appointed to the bench and Stewart was promoted member (partner).8 Stewart inherited Harris’s clients,9 a veritable ‘who’s who’ of Nova Scotia’s manufacturing and financial services – Acadia Sugar Refining, Brandram-Henderson (paints), Eastern Trust, and Nova Scotia Steel and Coal. Although Harris had not had much time to prepare Stewart, he had a reputation for nurturing precocious juniors. ‘I do not know whether you realize,’ John Read wrote to Harris after his appointment to the bench, ‘how much the young barristers in your office got from you. In my own case you were always ready to help me in any difficulties that I encountered and you never missed an opportunity to give me work that would add to my experience.’10 On 4 August 1914, the day Britain and its empire went to war against Germany, Stewart was called to the bar of Nova Scotia in the presence of

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Wallace Graham, judge in equity, and Simon Hugh Holmes, prothonotary, who had given Stewart’s father his start. Graham (soon chief justice) ‘expressed the hope that he would soon become the great lawyer that his splendid record foreshadowed.’11 In so doing Graham, by common consent the finest lawyer of the previous generation, was naming a successor. Stewart junior exemplified the late-nineteenth-century ‘professional renaissance’ sometimes described as a rebirth of the Nova Scotia bar.12 The business of élite lawyers had become business itself. Not only had they penetrated ‘the highest echelons of the new corporate world’;13 success there gave these new legal entrepreneurs a leading position in the profession hitherto reserved for judges and counsel. Moreover, extramural corporate counsel were generally retained to do litigation and solicitorial work as well as to offer legal advice. By the end of the war, not only legal expertise but also practical experience in corporate promotion and management were crucial to career development. Judicial preferment, which required the right politics, was of no particular significance; after all, judges had to resign their corporate directorships. The choice lay between private power and public position, and Stewart unhesitatingly chose to cultivate the former.14 The new generation of corporate lawyers – legal counsel and legal entrepreneurs – saw opportunities in Nova Scotia in less restrictive terms than did emigrants such as William Bruce Almon Ritchie.15 Few among the old aristocracy of the bar considered that one could honourably be both businessman and lawyer. Stewart’s attitude towards professional development was more nuanced and sophisticated than that of Harris, for whom appointment to the bench was the culmination of any legal career. Harris, lacking a university education, could not resist the lure of the judiciary. Stewart, his ambition spurred by his native genius, higher education, and hereditary sense of noblesse oblige, aimed higher than the bench. For Stewart the bar was the higher calling; the bench, the greater responsibility, but also a premature burial. The brightest and busiest lawyers had incentives, not the least of which was remuneration, to stay and flourish at the bar. Harris’s contemporaries Walter Harold Covert, KC,16 and Hector McInnes, KC, – the latter Stewart’s role model – both had impeccable Conservative credentials, although neither was interested in a judicial appointment. Stewart took his cue not from the seniors in his own firm but from Covert and McInnes. Younger lawyers who became leaders of the urban business élite viewed the bar as more promising than the bench. The lawyer-judge could no longer practise law or participate in business in any direct or

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creative way. The legal entrepreneur was capable of direct action; the judge, a mere bystander. Hand in hand with the ‘new professionalism’ went neo-imperialism – a quest for the roots of legitimacy with a view to reinventing the British tradition in Nova Scotia’s courts.17 Graham had expressed his ‘imperialism’ chiefly in his admiration of the Judicial Committee of the Privy Council;18 Stewart followed suit. This, however, was old imperialism, not ‘new’ – at least not in the sense of Girard’s emphasis on historic presentism, nostalgic anglophilia, and the pax britannica. While its Liberal establishers had intended the Supreme Court of Canada (1875) to be the court of last resort, seventy-five years would pass before that noble dream became hard reality. The new professionalism fostered a sense of collective responsibility. Stewart’s distinction as a barrister and indifference to judicial preferment nourished his commitment to the collective welfare of the bar as a community and to the advancement of legal learning. In his early years at the bar he distinguished himself in the appeal courts, both the Supreme Court of Nova Scotia in Banco19 and the Supreme Court of Canada. ‘One of the judges told me,’ Frank Covert wrote in his memoirs, ‘that in his early days he [Stewart] was an excellent barrister and that when he appeared before the Nova Scotia Supreme Court in Banco, the Judges used to fight to sit on the bench to hear him.’20 On one occasion Stewart is reputed to have opened for the appellant by stating to the bench, ‘My client is a liar and he lied consistently in this case: I don’t ask you to believe a word he said but, nevertheless, he must win this appeal.’ The appeal was allowed.21 No sooner had Stewart entered Harris, Henry, Rogers & Harris as a junior in the summer of 1914 than he began to act as solicitor to the firm’s most important client – the Royal Bank of Canada (formerly the Merchants Bank of Halifax). But Stewart’s first major case was a byzantine litigation. Scarcely had he been called than word came from London of granting special leave to appeal to the Privy Council the judgment of the Supreme Court of Canada in the Halifax and Southwestern Railway Company case.22 Irvine v. Hervey, which had been carrying on since 1903 and had survived the original plaintiff, was a cause célèbre: the original company had been taken over by MacKenzie, Mann & Co., Limited, promoters of the Canadian Northern Railway.23 It was a political football, too: a royal commission had been appointed in July 1914 to investigate the release of the railway company’s lands from a mortgage to the government.24 The Judicial Committee restored the judgment of

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the Supreme Court of Nova Scotia in Banco, which had been reversed by the Supreme Court of Canada.25 When the final report of the referee was confirmed,26 the plaintiff’s solicitors assumed responsibility for distributing some $60,000 to the creditors of the dissolved partnership of Irvine & Hervey. This complicated task, which took until 1920 to complete, went to Stewart. When it was all over, William Alexander Henry, Jr, Harris’s successor as head of the firm, presented Stewart with a gold pocket watch; the covering letter declared Henry’s ‘appreciation of the time and trouble which you devoted to the distribution of the Irvine v. Hervey monies, and of the very capable, tactful and successful manner in which you handled the whole matter.’27 In 1922 Stewart himself made his first appearance before the Privy Council when he was sent to London to prepare an application for special leave to appeal. His firm was not in the habit of briefing ‘an English barrister to make the application on their behalf’;28 instead counsel travelled to London to argue the merits of the application in person.29 Having usually engaged a firm of London solicitors to prepare the application, counsel would remain until the application was heard and, if it was granted, remain until the case itself was heard, sometimes retaining an English barrister to lead or assist. All of this depended on the resources of the prospective appellant, and the Royal Bank was a deep well30 – this at a time when banks as a rule did not employ in-house lawyers.31 The proceedings originated in a contested bankruptcy application again involving another Mackenzie and Mann acquisition, the Inverness Railway and Coal Company, which had gone into receivership in 1915 and had afterwards been acquired by I.W. Killam’s Royal Securities Corporation.32 The issue lay between the Royal Bank, assignee of the book debts, and the Eastern Trust Company, as trustee in bankruptcy. Stewart, counsel for the bank, appeared before Justice Chisholm of the Supreme Court of Nova Scotia, who, sitting as judge in bankruptcy, referred the case to the appeal court. Stewart argued that the assignment in bankruptcy, made subsequent to the company’s assignment of book debts to the bank as collateral for a $90,000 loan, was invalid because the Bankruptcy Act did not apply to a provincial railway company.33 The Supreme Court in Banco divided equally on whether the statute was material, thus necessitating a further appeal, which was taken, per saltum, to the Privy Council.34 In September 1922 Stewart found himself in London with the firm’s newest junior, William Marshall Rogers, working on the case for the appellant Royal Bank. The ‘Inverness Factum’ was nearly complete when

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the application for special leave to appeal was suddenly abandoned on instructions from Halifax.35 Perhaps Stewart would have had greater success in the Privy Council than he did in the Supreme Court of Canada, which dismissed the appeal with costs, rendering judgment in favour of the trustee in bankruptcy.36 No sooner had he returned from England in the autumn of 1922 than Stewart, again as counsel for the Royal Bank, acted in an important appeal case involving Nova Scotia’s Assessment Act. The action turned on whether Glace Bay, a thriving coal-mining town in industrial Cape Breton, could tax profits accruing from deposits in local branches of the banks. The Royal Bank and three other banks had appealed their tax assessments from the town’s assessment appeal court to the County Court of the district, which found for the complainants. The town thereupon appealed to the Supreme Court in Banco, which allowed the appeal. Stewart found himself outargued by counsel for the appellant, Charles Breckon Smith, KC, who observed to the appeal court, ‘Instead of bringing money into the place it [the Royal Bank] takes nearly threequarters of a million of the people’s money and ships it away to Montreal to be invested elsewhere.’37 The Royal Bank appealed the judgment to the Supreme Court of Canada, which, in a split decision, dismissed the appeal with costs. Smith, as lead counsel for the respondent, once again triumphed over Stewart, who argued unsuccessfully that ‘the bank earned no income or profit in its business at Glace Bay in the year 1921.’38 The case enabled Stewart to recruit talent for his law firm. Thanks to W.A. Henry’s chronic ill-health and semi-retirement and the departure of John Read in 1920 for Dalhousie Law School and of Tecumseh Sherman Rogers in 1921 for the bench, there was room at the top; Stewart found himself in de facto control. The firm badly needed a top-flight litigator, and Stewart found one. C.B. (‘Charlie’) Smith had bested him in his first appearance before the Supreme Court of Canada. During the return journey from Ottawa to Halifax, Stewart invited Smith to become a member of Henry, Rogers, Harris & Stewart. Smith accepted, secure in the assumption that Stewart did not care that he (Smith) had a past. Born in Cape Breton in 1883, C.B. Smith held neither an arts nor a law degree. Called to the bar in 1907, he soon emigrated to Saskatchewan, where he was called in 1908 and practised until 1912, when charges of defalcation led to his disbarment for professional misconduct and conduct unbecoming a barrister and solicitor.39 To make matters worse, Smith (the son of an Anglican archdeacon) and his wife lived separately and apart. The

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First World War provided welcome respite for him. Rising from private to brevet major and earning the Military Cross with bar, he returned to Nova Scotia a hero and commenced rebuilding his career, becoming King’s counsel in 1923. According to Frank Covert, who knew him well, ‘Charlie’ Smith ‘was everything that Stewart needed to fill the vacancy in the firm.’40 W.A. Henry apparently endured major surgery nine times before dying at age sixty-three.41 Contrary to the firm’s recruiting policy – ‘You should not bring in a man to fill a vacancy; you move up and someone new is added at the bottom’ – C.B. Smith entered at the top. When Stewart, as senior partner, automatically became head of the firm in December 1927, Smith, in view of his seniority at the bar, became the firm’s number two. In January 1931 Stewart and Smith announced the reorganization of Stewart, Smith, MacKeen and Rogers to include five ‘members’ (partners) and three ‘associates’ (juniors).42 Rather unlike Stewart, Smith was the quintessential lawyers’ lawyer, whose only outside interest was Conservative politics, on which he and Stewart were completely of one mind. As Stewart was legal adviser to corporations,43 moreover, so Smith was legal adviser to lawyers – a role for which his own bitter experience had uniquely equipped him. Differences of personality and inclination served to complement and strengthen their professional relationship. Stewart, the sociable master of a great house, was a talent-spotter and shrewd delegator; Smith, a grass widower who had rooms in a downtown hotel, was a driven loner and perfectionist who trusted no one enough to delegate anything.44 Smith’s career might have taken a very different turn as early as 1932, when Stewart strongly supported his candidacy for a vacant Supreme Court judgeship.45 The Supreme Court of Nova Scotia badly needed a litigator of Smith’s calibre and distinction, and Smith, then aged 49, was at the height of his powers. Despite his being the preferred choice of bench and bar, and having the undivided support of the normally factious provincial Conservative leadership, Prime Minister R.B. Bennett judged the political risk too great. The prime minister was attempting to reform the patronage-ridden system of judicial appointment,46 and could not have elevated a lawyer who had once been disbarred – especially because of his impeccable party credentials.47 Neither Stewart’s direct intercession with Bennett,48 nor Smith’s getting himself reinstated at the bar of Saskatchewan, availed anything. The judgeship devolved on, faute de mieux, the former Conservative attorney-general, John Doull.49

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Unlike Smith and the firm’s number three, Henry Poole MacKeen – long the province’s leading criminal defence counsel – Stewart had little use or time for litigation.50 Although after 1930 he rarely practised as a barrister, Stewart first came to national attention with a Privy Council case, on extraterritorial revenue legislation in July 1932.51 It involved one E.R. Croft, a customs officer sued for false arrest by the captain of the rum-running vessel that he had seized. The defendant prevailed at trial and unanimously in the Supreme Court of Nova Scotia in Banco but lost on a split decision in the Supreme Court of Canada – despite the efforts of C.B. Smith and John Read. The government of Canada petitioned for special leave to appeal to the Privy Council, which it received in December 1931. It fell to Stewart, as standing external counsel to the federal Department of Justice,52 to argue the final appeal before the Judicial Committee. By June 1932 Stewart was in Montreal preparing to embark for England, where he obtained a reversal of the judgment of the Supreme Court of Canada, as well as costs.53 Croft v. Dunphy is significant because it settled Canada’s twelve-mile (nineteen-kilometre) offshore limit and confirmed that the Customs Act was intra vires Parliament under the British North America Act, 1867 (now renamed the Constitution Act, 1867). The case raised the curtain on the international law dispute involving another Canadian rum-running vessel, I’m Alone, Read, who had become legal adviser to the Department of External Affairs in 1929, acted in it as counsel for the Canadian government. There the principle – extraterritoriality – that the Canadian government had sought to apply in Croft would have undermined its case. Fortunately the matter was settled by arbitration, not litigation. Croft v. Dunphy established the principle, declared and affirmed by the Statute of Westminster, that the parliaments of self-governing dominions had ‘full power to make laws having extraterritorial operation.’ But it was also important for Stewart. Not only did he meet his idol, Rudyard Kipling; he also began a close friendship with Lord Macmillan, the lord of appeal in ordinary who had delivered the judgment. In 1933 R.B. Bennett invited Macmillan to become chair of the Royal Commission on Banking and Currency in Canada.54 Five years later, Stewart procured for Macmillan an honorary LLD at Dalhousie’s centenary convocation. ‘We arrived at Halifax on the 13th of August,’ Macmillan wrote in his memoirs, to be the guests of our good friends Mr and Mrs J. McG. Stewart for the

Prime Serjeant 57 Centenary Celebration of the Dalhousie University ... Apart from the academic festivities we had one or two interesting excursions with our friends the Stewarts. Especially enjoyable was a long drive through the beautiful region of Acadia and the Annapolis Valley to Blomedon Head [Cape Blomidon], visiting on the way the famous statue of Longfellow’s heroine, Evangéline [at Grand Pré]. Supper followed at a wayside inn and then a romantic drive back to Halifax by moonlight.55

Later in 1932 Stewart fared less well with an appeal case involving the Trinidad Electric Company, a Halifax-based Caribbean utility of which the late Chief Justice Harris had once been president.56 At issue was whether the company had the right to continue to operate the electric lighting and tramways system of the capital city of Port-of-Spain, after expiry of its thirty-year lease. According to the 1901 franchise agreement, the government of the colony could – and it did – exercise an option to buy the company’s plant for a sum to be fixed by arbitration. The company’s legal advisers, however, of whom Stewart was the principal one, took the view that the franchise was perpetual, though not perpetually exclusive. When attempts at negotiation failed, a friendly action in the nature of a reference to the colony’s Supreme Court ensued, in which the chief justice upheld the city council’s contention that the company had no right to operate beyond the expiration of its lease, which terminated in March 1931. Despite counsel’s hopes regarding its franchise rights, the plaintiff-company’s appeal to the Privy Council failed. In January 1933, scarcely a month after the appeal was dismissed, the city declared its intention to acquire the company’s assets. Trinidad Electric, having had to apply for an extension of its lease, was thus reduced to the status of a constructive trustee pending the arbitrators’ award. Stewart, as chief counsel for the company and its nominee to the panel, accordingly spent an agreeable winter in Port-of-Spain, deliberating on how much the city council should pay for the electric lighting and tramways system developed over the years by Trinidad Electric – one of the ‘few Canadian-chartered utility companies operating ... abroad [which had] escaped the net’ of I.W. Killam’s International Power Company (founded 1926).57 Although Stewart acted as counsel for companies more frequently than for government, it was not corporate conflict of interest but a matter of principle that limited him to the role of amicus curiae in the British Coal

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Corporation case, which upheld the right of the Parliament of Canada to abolish criminal appeals to the Privy Council. Late in 1933 a consortium of anthracite coal–importing companies in Quebec had been convicted under the Criminal Code and the Combines Investigation Act of conspiring to fix wholesale prices. The conviction was upheld on appeal, and the Quebec Court of Queen’s Bench (Appeal Side) refused leave to appeal further. The defendant companies had no option but to petition for special leave to appeal, per saltum, to the Privy Council – despite the recently re-enacted statutory prohibition against criminal appeals.58 British Coal Corporation et al. v. R., the last Canadian criminal appeal to reach the Privy Council, only to be rejected unheard, ‘was [also] the first Canadian constitutional case to be decided by the Privy Council after the passing of the Statute of Westminster.’59 It reflected the Privy Council’s new approach to Canadian constitutional cases, thanks to the progressive jurisprudence of the Labour government’s lord chancellor, Viscount Sankey, who wrote the decision.60 Stewart, lacking sympathy for the anti-imperial legislation of his own party and government, was to have appeared as counsel for the crown respondent, had the petition for special leave to appeal been granted. The petition was dismissed; the case was decided not on its merits but on the ‘preliminary point’ – that the Privy Council lacked jurisdiction to hear the appeal and therefore could not further entertain the application for special leave. Through an ingenious compromise, Stewart was spared the necessity of having to sacrifice one of the most cherished principles of his jurisprudence in order to discharge his obligations as standing external counsel to the Department of Justice. The attorney-general of Canada, intervening, was represented by W.N. Tilley61 and John Read, legal adviser to the Department of External Affairs. Scarcely had the case concluded than Stewart was again lead counsel in a landmark division-of-powers case. The Re Eskimos Reference,62 which commenced in April 1935, while R.B. Bennett was still in power, arose out of a dispute between the governments of Canada and Quebec over responsibility for the Eskimo (Inuit) population of northern Quebec. ‘The Eskimos,’ wrote the federal deputy superintendent-general of Indian Affairs in 1918, as a separate aboriginal race, have never been mentioned in any legislation. A few years ago it was decided that this Department [of the Interior] would assume

Prime Serjeant 59 whatever responsibility arose from the contact of these people with civilization. There is no Order in Council and no legislation on the subject, but Parliament provides us with funds to relieve destitution amongst them and to provide medical attendance, and, through the Royal Northwest Mounted Police and the missionaries, we have given a certain relief. We have not as yet considered passing a separate Eskimo act; certain protective features of the Indian Act would be applicable to them, but the Act as a whole, would hardly apply to the primitive condition of their life. We have not attempted to place them on reserves, but we have made it clear to them that they are subject to the laws of the country.63

The Indian Act Amendment of 1924, which placed Inuit affairs under the superintendent-general of Indian Affairs, had been honoured more in the breach than in the observance.64 Nevertheless, the federal government distributed relief among the Inuit of the eastern Arctic, who were suffering from chronic deprivation. In 1927 an order-in-council transferred responsibility for the Inuit to the commissioner of the Northwest Territories. At first the governments of Canada and Quebec shared the financial burden. But Quebec’s decision that it could no longer reimburse Ottawa for money spent to keep the Inuit of northern Quebec from starving set the stage for a federal reference. The Supreme Court of Canada ruled that the scope of ‘Indians’ in section 91(24) of the Constitution Act, 1867, included Inuit, who otherwise had neither lands nor treaties nor legislation to cover them. Stewart, believing that Ottawa had no case, predicted in September 1934 that Quebec would succeed and advised Ottawa against pursuing the matter in court.65 But bureaucratic and political considerations prevailed. The reference proceeded, while Stewart led for the attorney-general of Canada in pleading an improbable interpretation, in which he did not believe himself. Assisted by the legal adviser to the Department of Justice, C.P. Plaxton, Stewart adduced documentary evidence ‘as to the ordinary meaning of the word “Indians” in 1867 ... the views of anthropologists and ethnologists before, at and since Confederation ... the importance of the Indian question as a matter of high policy ... [and] ... the administration of Indian affairs by the various departments and officers charged with their administration through the years.’66 But the federal government’s position was unsustainable, its case so weak that not even Stewart’s resolute advocacy could reinforce it. In a unanimous decision delivered by Chief Justice Sir Lyman Duff in 1939, the Supreme Court upheld Quebec’s contention that Inuit were ‘Indians’ within

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the meaning of the British North America Act. The federal government’s case amounted ‘to a restrictive interpretation of the word “Indians” in s. 91(24), that is an indirect attempt to amend the Constitution Act, 1867.’67 Stewart was unimpressed by the judgment, which he was asked to critique. ‘I am not at all satisfied with the way in which the Honourable Chief Justice has handled the evidence,’ he wrote department counsel: To sum up, it is my considered opinion that the Court has failed to grasp the significance of the evidence adduced. The case is a close one and may well be properly decided against the Dominion’s view; but it is quite possible to write just as compelling a decision in answering the questions in the negative. The chances of success, in my view, on an appeal to the Judicial Committee [of the Privy Council] would be somewhat less than even but would be substantial. You will recollect no doubt the anxiety of the Court to hurry the argument. It became practically impossible to present the evidence in extenso or to deal similarly with the Province’s evidence. This in my opinion has resulted in a failure on the part of the Court properly to absorb the case – a condition not likely to be experienced before the Judicial Committee.68

The decision implied that the Indian Act now applied to the Inuit. But the fact that the Inuit were constitutionally Indians, and thus a federal legislative responsibility, did not require Parliament to extend the Indian Act to them or to pass an ‘Eskimo Act.’ Although the government recognized that failing to appeal the decision to the Privy Council meant that the Indian Act would have to be amended to accommodate it, it did nothing until after the war. A special joint parliamentary committee was eventually set up, and in 1946 it issued in a Royal Commission on the Indian Act and Indian Administration.69 As a result of its deliberations, the revised Indian Act of 1951 stipulated, ‘This Act does not apply to the race of aborigines commonly referred to as Eskimos.’70 However much Eskimos were ‘Indians’ in the Constitution Act, 1867, they were not ‘Indians’ in the Indian Act. The exclusion remains to this day, never having been judicially challenged. ‘This is seen as a paradox by many Inuit, but has not troubled federal politicians.’71 The proceeding was sui generis. ‘Apart from Re Eskimos,’ writes Bradford Morse, ‘there has been no judicial interpretation to define who is an Indian within s. 91(24), nor is there any precedent on the question of whether Parliament can exclude persons who come within the definition

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from the application of all laws relating to Indians when their preference is to be governed by those laws. In the reference Re Eskimos, the Supreme Court of Canada had only historical usage to assist it.’72 Significant though it was to determine that Parliament’s legislative authority extended to Inuit and lands traversed by the Inuit, the case was also important procedurally as to proof of constitutional facts. According to Peter Hogg, it was the first of ‘only three cases in which evidence was given on a reference. In Re Eskimos (1939) ... the Supreme Court of Canada directed the registrar of the Court to conduct a hearing of the issue. The hearing was held and the transcript was submitted to the Court.’73 But its enduring significance is substantive rather than procedural. It is the reason why the preamble to the James Bay and Northern Quebec Native Claims Settlement Act of 197774 acknowledged that the federal government had a ‘special responsibility’ for the Inuit. Indeed, the decision provided the de facto legal basis for Inuit claims and their settlement with the federal government achieved in 1975. Although the government, on Stewart’s advice, had initially decided to petition for special leave to appeal the 1939 decision, Parliament’s abolition of appeals to the Privy Council interposed, and the application did not go forward.75 Two weeks after the decision was handed down, an order-in-council referred the bill abolishing appeals to the Privy Council to the Supreme Court for a decision as to whether it was intra vires. In January 1940 the Supreme Court held, by five to one, that the act was constitutional.76 If the abolition bill, the abolition reference, and the Supreme Court’s decision thereon effectively stopped further appeals, the war delayed any further action on abolishing the appeal. Yet by September 1939, civil appeals to the Privy Council from Canadian courts had for six months been subjected to the war of attrition that would lead to their statutory abolition in 1949.77 Although Stewart personally argued only three cases before the Judicial Committee, he had been indirectly involved in four times as many, and he remained to the bitter end a true believer. Thus in March 1939, while Re Eskimos was still sub judice, he found himself on the national network of the CBC, debating the merits of ‘Appeals to the Privy Council’ with Dean Frederick C. Cronkite of the College of Law, University of Saskatchewan.78 ‘It gives me great pleasure to discuss this important question with a gentleman so eminent in the legal life of Canada as Mr Stewart,’ Cronkite declaimed on opening the debate, in which he argued for abolition on constitutional and socio-political grounds. Stewart’s coun-

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ter-argument went forward on broadly legal grounds. Its subtext was that the general lack of jurisprudential distinction on the part of the judges of the Supreme Court of Canada strengthened the case in favour of the continuation of Privy Council appeals. His reflections on the superiority of the British system of judicial selection were particularly telling and hinted at his own reasons for disavowing such an appointment himself: ‘Appointment to the Bench in Britain is the commencement of a career of public service; not the ultimate reward either for a brilliant career at the bar, or useful party service.’ Stewart took as read that the lords of appeal in ordinary who made up the Judicial Committee were the crème de la crème of the bench, which could hardly be said of the justices of the Supreme Court of Canada. Had such been the case, Stewart would not have had occasion to point out that ‘nearly 40% of Canadian judgments carried on appeal to the Judicial Committee have been reversed by that Court – 200-odd out of over 500 appeals; and of this large number of decisions not 5% [of the former] have been subjected to criticism by competent critics.’79 Appeals to the Privy Council could not safely be abolished while the rate of reversal of Supreme Court decisions remained so high. Clearly reflecting on his own experience, Stewart concluded, Many Canadians in their legal practice have had the privilege of experiencing the ability, the patience, the courtesy and wisdom of the Judicial Committee. Those will always have a lively sense of gratitude toward the members of the Judicial Committee, to the institution itself and to the Mother Country that for over a century [since 1833] has placed its services freely at our disposal; and those same persons will resent with all their being the unjust and unfair attacks made on the Privy Council by bad losers, inexperienced amateurs and constitutional cranks and faddists.80

Stewart, though profoundly anglophile, was a pragmatic imperialist; he believed that the Judicial Committee was more objective, impartial, and competent than any Canadian court of appeal, provincial or ‘general.’ The Supreme Court of Canada, with its regional representation and party colouration, was simply not mature or sophisticated enough. For Stewart, the Judicial Committee was not only a corrective to what Ian Bushnell has characterized as the ‘sterility’ of the Supreme Court over the three decades preceding the decade-long attack on the appeal in 1930, but also insurance against miscarriages of justice and a guarantee of the protection of minority rights. Dean Cronkite rejected that argu-

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ment on empirical grounds, contending that Privy Council decisions were the problem rather than the solution. The discussion served to highlight the ideology gap between conservative élite counsel such as Stewart and progressive legal academics like Cronkite. Yet they were in agreement that if the Supreme Court were improved, appeals to the Privy Council could safely be abolished. They disagreed not so much on ends but on means, Cronkite believing that the essential first step towards upgrading the Supreme Court was to abolish the Privy Council appeal. Insisting that Canada has ‘just as good lawyers as are to be found on the Judicial Committee,’ he proffered Stewart a backhanded compliment by mentioning en passant that he ‘could suggest the name of one in Halifax – and he would know something about Canada too.’ Neither man alluded to the fact that the then chief justice of Canada had been a member of the Judicial Committee for many years. Sir Lyman Duff, although he did not sit for appeals from his own court, could have his cake and eat it. He had been summoned to the Judicial Committee long before becoming chief justice of Canada – a rare honour. As late as 1944, while the war suspended legislation to abolish appeals, Stewart could declare that the best Canadian tribunal before which he had ever appeared was not the Supreme Court but the Board of Referees in Ottawa.81 Stewart’s extravagantly low opinion of the former was accentuated by his concern for safeguarding the constitution against the depredations of a court that was not itself constitutionalized. The Judicial Committee was the only court where the integrity of Canada’s constitution could be preserved, at least while it remained a British statute – a British court for British legislation. But history was on the side of the abolitionists. In 1947 the Judicial Committee effectively adjudicated itself out of existence as the court of last resort for Canada.82 Stewart played no part either in the constitutional reference to the Supreme Court of Canada or in the subsequent appeal to the Privy Council, which upheld the Supreme Court’s nearly unanimous judgment that the act to abolish civil appeals to the Privy Council was intra vires Parliament.83 Stewart’s plea for ‘constitutional sanity’ derived at least in part from his recognition that the leading lights in the Canadian Bar Association (CBA) generally did not favour abolishing appeals. He was to revisit the subject in his undelivered presidential address to the CBA, published as the lead article in the Canadian Bar Review in October 1942.84 Excised from the published version was a paragraph referring to Privy Council

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appeals – a politically sensitive subject on which there was no consensus among members. Stewart commented on the criticism levelled against the Judicial Committee that they had failed to adjust themselves to the growing political and economic importance of the dominions. He predicted optimistically that the Judicial Committee would in time have modified its views and, because of the passage of time, probably have absorbed and made use of what was best in the new ideas, rejecting the worst features that accompanied them in their ‘militant’ stages. ‘The highest courts frequently are conservative,’ observed Stewart. ‘They are rarely, if ever, reactionary.’ The language betrayed Stewart’s sense of fait accompli. Supporting the continuation of Privy Council appeals was, by 1942 – after the Supreme Court of Canada had ruled that the 1939 abolition bill was intra vires Parliament – reactionary. The issue latterly was not the quality of the appeal decisions but the appeal’s right and reason to exist. One wonders whether Stewart would have drawn the same conclusion had he participated in the omnibus reference on Bennett’s ‘New Deal’ legislation, which was declared unconstitutional in London. But by then the Conservative government that had introduced the legislation was gone; Stewart was no longer standing external counsel for the Department of Justice, and Liberal lawyers85 acted as counsel for the attorney-general of Canada. In 1939, in the course of defending appeals to the Privy Council, Stewart had expressed the forlorn hope that the CBA would ‘develop and grow to a point where’ it could ‘compel Governments to select as judges only the best men; or compel those best men to accept appointment.’86 Over the twenty-five years of the CBA’s existence, Stewart had endeavoured to assist with that growth and development, so that Canada ‘might soon develop courts whose prestige would make appeals to the P.C. unnnecessary.’87 He was too perspicacious to have missed the irony of his proposing that ‘the best men’ should be coerced into being judges when he had no intention of becoming one himself.88 Yet for Stewart the interests of the CBA were those of the profession, while the profession’s were something more than those of individual bars, not to mention individual lawyers. In 1914 the Nova Scotia Barristers Society (NSBS) was on record not only as opposing any limitation on the prerogative right of appeal to the Judicial Committee but also as supporting the re-formation of the defunct Canadian Bar Association.89 Stewart’s call to the bar followed by

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five months the resurrection of the CBA, which was organized in Ottawa in March 1914. In keeping with the example set by the seniors in his own firm,90 Stewart took an active role. He was a charter member and by August 1922 on the executive of the Nova Scotia branch – the only one who was not either a judge or a king’s counsel.91 By 1928 he was Nova Scotia vice-president; he held the post again from 1933 until 1939, when he became national vice-president. In August 1936 Stewart, having brought the annual meeting to Halifax for the first time, pressed his law firm into service92 and got Dalhousie’s president to authorize a special convocation to confer honorary degrees on four legal luminaries, including Baron Thankerton, before whom Stewart had appeared in the Judicial Committee.93 The Stewarts held a gardenparty for some 400 delegates and spouses at their Halifax estate, where the beauty of ‘the terraced gardens of “Braemar”, sloping down to the blue waters of the North-West Arm,’ made a lasting impression on the guests.94 By 1939 Stewart, then chief counsel to the Royal Commission on Dominion–Provincial Relations, was national vice-president of the CBA, and by 1941 he was its thirteenth president.95 After two years the ageing but still vigorous D’Alton Lally McCarthy, who had become both president of the CBA and treasurer of the Law Society of Upper Canada in 1939, wanted to give up the former to concentrate on the latter. The CBA’s nominating committee, chaired by a former president, Louis St Laurent – and including H.P. MacKeen, number three in Stewart’s firm – chose Stewart, whose election was unanimous. It was the first time the CBA presidency had ‘gone east.’ Stewart realized that he was making history; called upon to adjourn the election meeting, he observed that he could not do so ‘without expressing to you how deeply I am conscious of the honour that you have conferred upon me. You have not, however, sufficiently destroyed my sense of humility to make me fail to realize that in the selection you are thinking geographically – you are in reality honouring the Bar of Nova Scotia, and I think I may add the Bars of the other two Maritime Provinces – you are in fact honouring those of your membership who are brought up on the good fish and potatoes and the salt breezes of the Atlantic Ocean.’96 The NSBS97 was less interested in the CBA than impressed by one of its own becoming president.98 But by 1942–3 ‘a close relationship and cooperation was being maintained by the [NSBS]’ with the council of the CBA.99 Chairing his first meeting of the new council on 13 September 1941,

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Stewart lost no time setting an agenda for his presidency.100 ‘The profession can only advance through the efforts of its individual members,’ Stewart declared in his presidential manifesto, ‘and I appeal to the Lawyers and Notaries throughout Canada to become members of the Association and to give it the benefit of their influence, ideals and efforts.’101 Membership was not compulsory among provincial law societies, however, except in British Columbia. In Nova Scotia, for example, in 1941–2 only 14 per cent of barristers belonged to the CBA.102 Stewart’s presidency saw the CBA act on civil liberties, a subject of considerable interest in light of wartime encroachments.103 The annual meeting in September 1941 that elected Stewart president unanimously resolved that the CBA’s council should strike a special committee on civil liberties ‘with instructions to study the whole question in relation to war conditions, and, if deemed necessary, to take appropriate action.’104 At the council’s midwinter meeting in Montreal in February 1942 Stewart reported that Warwick Chipman, KC, professor of law at McGill University, had agreed to chair the committee. A week earlier, at the midwinter meeting of the CBA’s Ontario branch, Stewart had introduced the new federal minister of justice, Louis St Laurent,105 who then proceeded to defend his department’s policy on enforcing the Defence of Canada Regulations (DOCR). Declining an offer from the New Brunswick branch to host the 1942 annual meeting at St Andrews, the council set in train ambitious plans for a joint meeting of the CBA and the American Bar Association (ABA), to take place in Windsor and Detroit in the summer of 1942. The federal transport controller, however, requested that such a large national convention not be held, lest it interfere with the free movement by rail of troops and supplies.106 Stewart, since October 1939 coal administrator in the Wartime Prices and Trade Board, probably felt that he had to set an example of compliance. He well understood that regulations enacted under the War Measures Act placed the wartime control boards virtually beyond the reach of public accountability, not to mention putting a greater burden of responsibility on the administrators and controllers who collectively ran the wartime economy. No sooner had the projected joint annual meeting been cancelled than Stewart had to face a hostile meeting of the CBA’s council, which convened in Windsor on 24 August. He took the chair at the opening of the meeting and began by taking full responsibility for cancellation of the annual meeting of the Association. At first it seemed

Prime Serjeant 67 that the Council might grow distinctly critical, but soon the view prevailed that the meeting had better stop looking for scapegoats and turn its attention to means of keeping the Association alive if annual meetings were to be impossible for the duration of the war.107 ... [A]nd the matter of the cancellation of the annual meeting was passed over with the feeling that the Council was far from unanimous as to the wisdom of the move.108

The following day Stewart submitted his resignation, citing ‘pressing public duties.’ ‘A great deal of criticism has been levelled at those responsible for this action [cancellation of annual meeting],’ wrote the editor of the Canadian Bar Review, some of it based on the view that it was a further indication of the profession’s supineness in the face of ever-increasing encroachments on the liberties of the individual ... still others criticised the action as an indication that the profession – already moribund – was being asked to, and had agreed to sign its own death certificate. That it was regrettable that the meeting was cancelled, no one will deny. To impugn the motives of those who, acting in the war interests of this and other of the United Nations, cancelled the meeting is not only to participate in talk which dissipates energy and saps morale, but is at the same time likely to obscure the true function of the profession itself.109

The editor of the Fortnightly Law Journal commiserated with Stewart, whose ‘year of office was undoubtedly a difficult one and gave him little opportunity to show his real qualities as head of the organized lawyers of Canada. In addition his office as Coal Controller [Administrator] undoubtedly left him little time to devote to the activities of the Bar Association. Nevertheless we are sincerely sorry to see him go. It must have been a grievous disappointment to him to attain that high office only to find circumstances made it for him so empty an honour.’110 As coal administrator, Stewart was in an invidious position; he may have suspected that any perception of possible conflict of interest on his part would undermine the credibility of the presidency, the council, and ultimately the CBA itself. Characteristically assuming personal responsibility for a difficult decision that was his alone to make, Stewart resigned in order to clear the air. In the absence of the annual meeting he should have carried on for another year – as D.L. McCarthy had done in 1940, when the annual meeting was also cancelled. Stewart’s successor, G.H. Aikins, KC, of Winnipeg, quickly constituted an executive committee

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consisting of the CBA’s officers, which would obviate the need for the president to act unilaterally. Stewart’s final act as CBA president was to lead a Canadian delegation of about 100 members of council to the annual meeting of the ABA in Detroit. In an after-dinner speech,111 Stewart explained why he had voluntarily cancelled the CBA’s annual meeting: In the United States your railway systems fan out over your whole country and converge on your larger centres from all points. For transportation purposes, Canada, on the other hand, resembles a ribbon four thousand miles long and rarely more than two hundred miles wide. Our transportation problems therefore differ seriously from yours. You were able to hold your Annual Meeting and still be good citizens. We had to make a choice. Knowing you as I do now I think you will accept our apologies for not carrying out the arrangements originally contemplated.

Stewart also emphasized the potential for constructive war work by individual lawyers like himself, who ‘held many of the important posts on boards and commissions regulating the war activities of Canada.’ The CBA’s ‘chief functions’ were to support the country’s war effort and to preserve fundamental freedoms. Stewart declared, ‘We are determined at the same time that the structure of freedom shall not perish if we members of the Canadian Bar Association can preserve them ... We will insist to the limit of our ability on a free Parliament, an independent judiciary, and the right freely to criticize the actions and conduct of the Executive, its departments, its commissions and boards, wherever they fall short of a total effort, or fail to observe impartiality in the exercise of their functions.’ Stewart’s ‘earnestness’ and ‘ruggedness’ impressed his audience, and he never forgot the warm reception. A decade later, during the ABA’s 75th-anniversary celebrations, Stewart was among those ‘renowned members’ of the Canadian bar invited to offer a congratulatory message. ‘The Bar of Canada,’ he wrote, ‘will never forget the warmth and spontaneity of your goodwill in the early years of the last war at a time when we were fighting for the very things for which you stood and still stand. When we met together at Detroit and Windsor in 1942, we did so as subjects of alled countries having a common purpose and the succeeding years have but strengthened our goodwill and esteem.’112 In his undelivered presidential address to the CBA Stewart had exam-

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ined freedom in terms of the economic and social consequences of its abuse. By freedom he meant freedom of the employment contract, and by the ‘abuse of freedom’ he meant the wartime interference of government in labour relations.113 Stewart’s analysis looked backward rather than forward. And it was to be enshrined in the notorious Zwicker decision of 1947, which denied collective bargaining rights to Nova Scotia’s fishers and emasculated Nova Scotia’s wartime labour relations board.114 Yet Stewart’s record as coal administrator, and chiefly responsible for labour relations in the coal-mining industry,115 shows him an enlightened Tory, desperately seeking to balance capital and labour. The impact of laissez-faire capitalism was such, according to him, ‘that a great many, and perhaps a large majority, of the pioneer industrialists grossly abused their freedom of bargaining. As operated by these men it was a travesty even to call it freedom of bargaining; for what degree of freedom was open to an individual labourer, living in fear of want and starvation for himself and his family? He either took the job on the employer’s terms or starved.’116 Stewart not only conceded that the classic liberalism of Smith, Bentham, and Mill had given rise to laissez-faire economics, but also credited the twin pillars of trade unionism and Marxist socialism with ultimately killing it. Laissez-faire was ‘as dead as Jacob Marley,’117 and the labour movement had proved quite as revolutionary as the Industrial Revolution. Stewart’s critique of the abuse of freedom of contract was a lamentation over the bad influence that its irresponsible exercise had had on industrial relations. Freedom of contract had been fatally undermined by the ‘New Despotism’ of administrative law.118 Chief among the abuses of freedom was the historic failure of the common law to circumscribe absolute freedom of contract in a manner that would have arrested the development of Marxist socialism. Stewart’s was an unusual approach to an unusual subject for a presidential address.119 Undoubtedly it reflected his preoccupation with labour–management relations in coal-mining. There was little law in it, perhaps because Stewart saw freedom of contract as more a fundamental right than a legal one. His address also reveals much about wartime stresses on corporate capitalism, with slow-down, wildcat, or sympathetic strikes on one hand and tit-for-tat lockouts on the other.120 Lord Hewart’s ‘new despotism’ having already destroyed laissez-faire capitalism, Stewart feared that if organized labour continued to abuse free-

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dom of contract as mercantile and industrial capitalism had done, then corporate capitalism would cease to advance and the political and economic foundations of the capitalist state would be undermined. In Stewart’s political economy the greatest threat to freedom of contract (in which he included collective bargaining) came from interference by administrative tribunals in labour relations. The Second World War heralded the ultimate demise of both corporate capitalism and the industrial working class. The enlightened Toryism of neo-laissez-faire supporters like Stewart would count for little in the brave new post-war world of public administrative law. At the CBA’s annual meeting in Toronto in August 1944 Stewart intervened in an unsuccessful attempt to continue the special committee on banking, established the previous year to monitor the decennial revision of the Bank Act.121 The president, R.L. Maitland, and the chair of the banking committee both favoured termination. As a senior director of Canada’s fastest-growing bank and its de facto general counsel, Stewart could hardly be impartial or disinterested on the subject of the Bank Act. Stewart found himself a minority of one, and the CBA discharged its special committee despite his opposition. It had bigger fish to fry. Following the ABA’s example, the CBA had begun to plan for a successor to the Permanent Court of International Justice (World Court).122 The terms of reference for the CBA’s special committee on Legal Problems of International Organization for the Maintenance of Peace read, ‘Resolved that the Canadian Bar Association put its facilities at the disposal of those governmental bodies charged with the duty of developing plans for the solution of national and international problems arising out of the War, including reconstruction and post-war problems in their legal aspects.’123 The CBA’s annual meeting in Toronto in August 1944 authorized the president to appoint a special committee on the ‘Bases of Peace,’ consisting of the eight former presidents as ex officio members; the chair was Chief Justice Wendell B. Farris of British Columbia.124 The CBA’s provincial branches organized regional subcommittees. Stewart, the only CBA president from east of Quebec, chaired the Maritime conference. Despite heavy demands on his time, Stewart set about organizing the Maritimes meeting, which some thirty lawyers attended in Halifax on 3 March 1945. Nova Scotia’s contingent included the attorney-general, the president of the NSBS, the dean of Dalhousie Law School, and Chief Justice Sir Joseph Chisholm. Delegates spent much time discussing the ‘vexing question’ whether the existing Permanent Court should be con-

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tinued. A consensus emerged – the Halifax formula – that was afterwards incorporated in the report of the Canadian national committee: ‘The present Statute should be continued with necessary modifications, but if it becomes necessary to create a new statute the continuity with the past should be maintained and the jurisdiction conferred on the present Court under existing treaties should be preserved.’ The joint report of the ABA and the CBA ultimately enshrined the Halifax formula.125 Invitee and official reporter for the Halifax meeting was George F. Curtis, whom Stewart in 1944 had helped become Viscount Bennett (i.e., R.B. Bennett) Professor of Law at Dalhousie.126 Stewart turned to Curtis later in March 1945 to replace him at the second Ottawa meeting of the national committee.127 Stewart, ‘as was our usual practice,’ recalls Curtis, ‘simply telephoned me saying he could not go to the Ottawa meeting of his committee: but that it was an important meeting and would I go. His confidence in me was such that he gave me carte blanche!’128 Curtis proceeded to Ottawa and thence to Chicago in April for a consultation with the ABA, which led to the drafting of a Statement of Principles and Joint Action.129 Stewart characteristically insisted that, as Curtis had deputized for him in Ottawa and Chicago, he (Stewart) should ‘foot the bill’ for Curtis’s travel expenses.130 As regional chairman, Stewart once again crossed paths with John Read. Read, who in December 1944 had become deputy under-secretary of state for external affairs, not only led the discussions in Halifax but also attended the Ottawa meetings of the national committee. He was, in Curtis’s words, ‘the Dalhousian who had the most to do with the Canadian contribution to this process.’ (Read and Curtis together drafted the national committee’s report.) In the spring of 1945, Read led the threeman Canadian delegation to the committee of jurists drafting the statute for the new International Court of Justice and was appointed chair of the drafting committee. His reward came in 1946 when he was elected a judge of the World Court, the only Canadian ever to be so honoured. Arbitration was to be the closest Stewart ever got to adjudication. Indeed, the arbitration board sitting for the nationalization of Montreal Light, Heat and Power Consolidated, to which he was nominated by the company, would preoccupy him from 1945 to 1953. Otherwise, Stewart’s post-war practice consisted largely of tax appeal cases – especially those involving companies such as Mersey Paper, of which he remained vicepresident until 1949. Re Eskimos was to be Stewart’s final appearance before the Supreme Court of Canada, nor did he ever appear again

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before the Judicial Committee. The virtual end of Stewart’s career as an advocate more or less accidentally coincided with the beginning of the final assault on the Privy Council. The 1930s, when Stewart was at the height of his power and influence as a barrister, was indeed the decade of ‘The Attack on the Privy Council.’131 Stewart’s extreme dissatisfaction with the jurisprudence of the Supreme Court of Canada shows in his claim – half in fun, whole in earnest – that the calibre of adjudication in the Board of Referees (under the wartime Excess Profits Tax Act) was second only to that of the Judicial Committee. Stewart also applauded a statement by Aaron Mosher, head of the Canadian Congress of Labour, ‘to the effect that Judges’ salaries in Canada were far too low. That is really constructive. If Canada would offer decent salaries (and retiring allowances) we might soon develop Courts whose prestige would make appeals to the P.C. unnecessary.’132 Undoubtedly, low remuneration was a disincentive; the income of superior court judges was not to be compared with that of an élite legal entrepreneur like Stewart, who acquired his first major corporate presidency at age 39. Stewart was also disturbed and embarrassed by the monopolistic tendency of the Nova Scotia Barristers Society. The Barristers and Solicitors Act Amendment Act of 1944 made it illegal for anyone other than a barrister to draw a deed, incorporate or wind up a company, draft any legal document, or appear before an administrative tribunal.133 ‘I have no sympathy at all,’ Stewart wrote his protégé Frank Covert, ‘with that approach to the protection of our professional field. If we equip ourselves properly to handle the business that awaits to be done, it will come to us; but if we continue to circumlocute and pettyfog and promote litigation the man of business will turn to the C.A. [chartered accountant] who is up and coming and equipping himself to serve the business community.’134 Bill 68, drafted by the Council of the Nova Scotia Barristers Society, prohibited ‘persons other than barristers from carrying on legal business,’135 which was so broadly defined as to include even justices of the peace. ‘Enough of it passed to make my face red,’ Stewart remarked to Covert, alluding to the exclusionary character of the bill, which in the end was effectively watered down by the attorney-general.136 In its original form it would have prevented extramural corporate counsel such as Stewart from acting for more than one business client at a time. The bill seemed aimed at clipping the wings of high-flying legal entrepreneurs like Stewart, who opposed narrowing of either their freedom to select clients or the scope of the provision of paralegal services.

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For Stewart, who took the long view, legal officialdom was in danger of discrediting the profession in the eyes of those clients that mattered most – business corporations. Stewart’s contemporaries, however, lacked the imagination to envision legal agents as intermediaries between barristers and legal assistants (paraprofessionals).137 Ironically, if his difficult presidency of the CBA was the high-water mark of Stewart’s career as a lawyer, then the war also sounded the deathknell of his practice as an advocate. From 1945 onwards he was, and was seen to be, principally a tycoon. After the war Stewart’s centre of gravity shifted decisively from law to business. In 1949 Stewart ‘retired’ to the counselship of his firm, which had not enjoyed that particular luxury since Dean Weldon’s time in the 1890s. Thereafter, he devoted his time to his directorships and executive officerships, which were still accruing, and limited his law practice to acting as advisory counsel on matters of corporate finance, taxation, and reorganization. But the lawyer whose own call to the bar had so nearly coincided with the rebirth of the CBA did not waver in his commitment to the profession and its institutions. The 37th annual meeting of the CBA, held in Ottawa in August 1955, honoured the memories not only of Stewart, but also of Sir Lyman Duff and Chief Justice Farris of British Columbia. ‘Apart from their other and acknowledged accomplishments,’ read the meeting report, ‘each of them contributed much to the establishment of a truly national association of lawyers, whose continued existence is now taken for granted. The older members of the profession particularly will not lightly forget them.’138

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Murdoch Stewart in retirement at Pictou, NS, c. 1882

Mrs Murdoch Stewart (Catherine McGregor), 1870s

Julia Stewart (née Creelman), c. 1879

James McGregor Stewart, Sr, as a successful lawyer in Pictou

Julia Stewart, later in the Pictou years

James McGregor Stewart, Jr, with friend

As a pre-teen

With graduating class, Pictou Academy, 1906. Stewart (centre) was seventeen.

As president (seated, centre) of Dalhousie Amateur Athletic Club, 1911–12

As manager (second row, third from left) of Dalhousie’s intercollegiate rugby football team, 1913–14

As head of firm, c. 1929

Elizabeth (Wilson) Stewart, wedding photograph, New York, April 1931

Mr and Mrs J. McG. Stewart, wedding photograph

J. McG. Stewart (right) in Port-of-Spain for Trinidad Electric Company valuation, 1933

Attired to appear before the Judicial Committee of the Privy Council, London, c. 1935

Members of the Royal Commission on Dominion–Provincial Relations, February 1938. From left to right: R.A. MacKay, Joseph Sirois, N.W. Rowell (chairman), John W. Dafoe, H.F. Angus

Unveiling of plaque of Historic Sites and Monuments Board of Canada marking site of original Pictou Academy building, August 1938. Stewart is third from right; on extreme right is his guest, Lord Macmillan.

As chair (second from right) of Dalhousie’s board of governors, hosting the testimonial farewell luncheon honouring R.B. Bennett (second from left) on board the CPS Montclare in Halifax harbour, 28 January 1939. On Stewart’s left is Premier Angus L. Macdonald.

‘The Boss’ in his office, Roy Building, downtown Halifax, c. 1949. Photo by Robert Norwood

Halifax Board of Trade banquet, January 1952; left: James Muir; right: Angus L. Macdonald

Dining with Mrs Stewart’s Morrison nieces at the Ritz-Carlton Hotel, Montreal, c. 1954; left: Mary Donnelly; right: Christine MacGillivray

PART THREE Nova Scotia Incorporated

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5 Business Law Man

After all, big business and sound political philosophy are not very popular in the democracies these days. – J. McG. Stewart, 1949

J. McGregor Stewart [is] perhaps the most influential lawyer in the modern business history of Nova Scotia. – Harry Bruce, 1979

In November 1936 Stewart and James Layton Ralston, an influential former (and future) minister in William Lyon Mackenzie King’s cabinet and former partner in the Liberal government’s premier Halifax law firm,1 were elected directors of Dominion Steel and Coal Corporation (Dosco). If the steel and coal towns of industrial Cape Breton were company towns, then Nova Scotia was a company province – Dosco in 1939 employed 20,000 people in Canada and Newfoundland.2 By 1941, although both he and Ralston had ceased to be directors, Stewart was at the height of his power and responsibility. He had gone from being a director of Dominion Coal, Dosco’s chief coal-producing subsidiary, to Canada’s wartime coal administrator.3 In a newspaper interview that he gave in October of that year Stewart pointed out that ‘there were not in Nova Scotia ... the distractions of business to take young men’s minds off banking and the professions –

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the principal careers open to the more ambitious boys in the Maritimes.’4 In fact, although Stewart pursued those very distractions, they had not taken his mind off either banking or law. Quite the opposite – by successfully integrating corporate finance and corporate law, he helped elevate legal entrepreneurship5 to the status of a subprofession. Stewart’s vision of progressive lawyering was one in which the corporate solicitorcounsel was the ideal lawyer. As we see in this part of the book, the corporate lawyer moved as a businessman among businessmen, seamlessly combining the practice of law with entrepreneurship, promotion, direction, and management – if the client so desired. What follows in chapters 5–7 is a case study of a Canadian corporate lawyer who built his business career between the end of the First World War and the beginning of the Second.6 Stewart was called to the bar and to his firm on the outbreak of war in August 1914. The previous two decades had witnessed Canada’s industrial revolution and the emergence of corporate law not only as an area of practice but also as one of specialization among élite lawyers. Stewart was exceedingly well placed both to take advantage of and to enlarge his firm’s role in the corporatization of Maritime industry, thanks to the post-war economic boom. Stewart was to become a pioneer in the establishment of big business in Atlantic Canada and of ‘big law’ in the business world, in the process also becoming a major figure in the Royal Bank and Royal Securities (chapters 5 and 6) and in provincial politics in Nova Scotia (see chapter 7). The companies that Stewart promoted or helped to (re)organize, finance, and direct – including Acadia Sugar, Dosco, and National Sea Products, as well as (with I.W. Killam) Mersey Paper (see chapter 6) – were linchpins of manufacturing and the province’s chief industrial employers. (Appendix B lists Stewart’s corporate affiliations through his long career, and Appendix C, the corporate clients of his firm.) Stewart’s career as a legal entrepreneur is an Atlantic Canadian example of the role of lawyers in corporate promotion and management.7 It provides further evidence for Gregory Marchildon’s thesis that Canadian corporate lawyers ‘played a pivotal role in the emergence of the modern industrial enterprise.’8 Stewart explicitly conforms to Marchildon’s typology of a corporate lawyer who ‘wore a number of hats simultaneously.’9 Although operating a conventional, and highly successful law practice, he became extramural corporate counsel to established as well as new financial and industrial enterprises for which he

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had done solicitorial work. That financial institutions such as Royal Securities obtained his services through a special retainer highlighted the difference between the extramural and the in-house corporate counsel and suggests how Stewart could be a senior executive officer while combining a non-managerial role with that of counsel. That Stewart often remained counsel after becoming a director and even executive officer of a business reflected his unrivalled expertise in both the legal and the business aspects of corporation finance. In this he may be regarded as the successor to Z.A. Lash (1846–1920), reputed to be ‘the foremost Canadian corporation lawyer of his day’10 and who, while counsel to the federal Department of Justice, was called to the Nova Scotia bar in 1880. In Atlantic Canada, as elsewhere in the country, corporations set up law departments late because of the comparatively early origin and rapid evolution of corporate lawyers, who served as solicitor, counsel, and often director or officer – the association was career- or even lifelong. Stewart is a case in point. There was no need and no room to create a legal department or hire in-house corporate counsel if Stewart was on a company’s board, or even if he was not. The usual means of rationalizing or ‘internalizing’ legal services was to concentrate their delivery in the hands of a lawyer-director or -officer of the company, who had risen through the ranks, beginning as solicitor. The solution was cheaper and more efficient than creating legal departments and bringing in junior lawyers as salaried employees, but it depended on the personal qualities of the lawyer concerned. Stewart directed companies from, and even held board meetings in, his suite in his law firm’s offices in downtown Halifax. He made haste slowly, secure as head of the region’s leading corporate law firm while the fees, salaries, and investment income accrued over and above his share of partnership profits. Moreover, he promoted or reorganized companies, from incorporation onwards, thereby enlarging the client base not only of the firm but also of the ‘house bank’ – Royal Bank – from 1910 the firm’s premier financial client. For Stewart it was possible to serve two masters, law and money, and he accumulated the latter by concentrating his practice of law in big business clients, whom he served not only as solicitor and counsel but also as senior executive. He could use such eminently marketable and portable skills to advance the profession, enrich and expand his law firm, and help entrench corporate lawyers as the power élite of the profession – a position that they have held ever since. Stewart did not need to repackage and retail his abundant corporation financial skills outside the

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law but could deploy them in such a way as to participate in the highlevel business functions of promotion, direction, and management. Ten years before Stewart became a director of Dosco in 1936, when it had looked as though the British Empire Steel Corporation (Besco), Dosco’s predecessor, was on the verge of collapse,11 I.W. Killam, president of Royal Securities Corporation, figured prominently in the Scotia Debenture Holders Protective Committee. This ad hoc, very select group of six central Canadian and local finance capitalists formed in Halifax to ensure that Nova Scotia Steel and Coal (usually called ‘Scotia’) – the jewel in Besco’s crown – would not expire with its moribund parent or weaker siblings.12 Although Besco was never a client of the HarrisHenry-Stewart law firm, Scotia used to be, and by 1926 Chief Justice Harris’s decade-long presidency of Scotia (1904–15) seemed a golden age. Stewart’s careful marshalling and deployment of legal, financial, and political resources meant that old Scotia emerged in 1926 unscathed from the Besco disaster. Stewart, his number two, Smith, and his old adversary John Read all acted in the complicated litigation related to the winding up of Besco and Dominion Steel (another of its subsidiaries) in 1927, when, according to a Montreal newspaper, ‘the leading legal lights of Canada gathered at Halifax to argue the case.’13 The Supreme Court of Nova Scotia refused the application to wind up Besco, an action precipitating ‘a legal contest which was fought out in the courts ... with great intensity and attracted widespread interest.’14 An alternative, legislative solution had to be found – and one was, because the agenda of ‘the business-minded Rhodes government’15 was developed by Conservative legal entrepreneurs such as Stewart. Control of Besco passed to a group headed by Sir Herbert Holt, president of the Royal Bank, whose $50 million investment was merely the down payment on his attempt to consolidate the entire steel industry of Canada.16 Stewart procured a special act of the legislature incorporating the new holding company, Dominion Steel and Coal Corporation Limited (Dosco), capitalized at $65 million.17 Smith and Stewart acted as joint counsel for the Holt-Gundy interests during committee hearings on the Dosco bill. The legislation combined sixteen companies in the largest consolidation in Atlantic Canada’s history.18 Holt Gundy & Co., ‘a closely held investment company,’ had engineered the financial coup of 1927 by securing control of Besco, ‘one of Canada’s greatest industrial organizations,’ refinancing it and placing it under more effective centralized management.19

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Stewart’s reward for helping to facilitate passage of monopolistic control over Nova Scotia’s steel and coal industry – the province’s largest employer – to the Royal Bank was appointment to the bank’s board in 1931 and to Dosco’s board in 1936. Previous to 1936 Stewart’s involvement in Dosco seems to have been limited to his acting as counsel for the trustee Eastern Trust Company in the 1933 bankruptcy of Scotia. Although liquidation quickly followed, it seems probable that Stewart, by then a director of Dosco, inspired the 1938 decision of the Nova Scotia Supreme Court in Banco to stay winding-up proceedings against Scotia. This was to enable Dosco to break up Scotia’s holdings and seize control of its profitable subsidiaries, such as Halifax Shipyards, without also assuming its huge unfunded debt.20 Stewart’s fine hand also showed in the recruitment of Michael Dwyer, Nova Scotia’s Liberal minister of mines, as president of Scotia in 1938. After Stewart resigned from Dosco’s board in 1939, Dwyer was fired. About the time he left Dasco, Stewart also gave up the presidency of Acadia Sugar Refining, which had in 1925 been his first major directorship.21 For nearly fifty years one of the largest manufacturers of refined sugar in Canada, Acadia had fallen on hard times before, during, and after the First World War. Undercapitalization, overproduction, excessive or unfair competition (including dumping by foreign manufacturers), the lack of a tariff wall against imported refined sugar, and restrictions on exports had rendered the English-incorporated company virtually bankrupt. Its loss to fire in February 1912 of one of its two refineries – rebuilt on the eve of the First World War – and of the other (not rebuilt) to the Halifax Harbour explosion in December 1917 worsened its already serious situation. Having taken an enormous operating loss in 1920, it secured American capital, and the following year decided to ‘Canadianize’ itself – 30 per cent of Acadia’s shareholders and its registered office were in Glasgow, Britain’s sugar-broking centre.22 The process was gradual to a fault – in 1924 ‘the shares were little better than wallpaper’23 – and did not accelerate until 1925, when Royal Securities Corporation (RSC)24 entered the picture. Acadia’s weak capital structure culminated in a scheme of reorganization that Stewart devised on behalf of RSC. The old company went into voluntary liquidation and transferred its assets to a new company incorporated under the same name in Nova Scotia and capitalized at $3 million.25 The scheme was adopted by the shareholders in April 1926, and in June ‘new’ Acadia was registered under the Nova Scotia Compa-

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nies Act. Stewart helped assemble an underwriting syndicate consisting of Canadian investment banking houses and headed by RSC,26 whereupon Ward Pitfield, then vice-president of RSC, joined the board. RSC’s offering of Acadia’s bonds represented the first public financing carried out by a Canadian sugar refinery since the Great War and served ‘to attract attention to the much improved position of the industry as a whole.’27 In November 1928 the president of Acadia, the merchant George W. Hensley, died; his replacement was the 39-year-old Stewart. Acadia’s property at Woodside, three miles south of Dartmouth, was intersected by both the main highway and the Canadian National Railway (CNR) main line on the eastern side of Halifax Harbour. A fully integrated industrial complex, Acadia consisted of refinery, warehouses, box and barrel factory, wharfs, and a turbo-powered electricity generating plant; it was understandably ‘regarded as one of the most modern and efficient refineries in Canada.’28 Possessed of deep-water docking facilities that could accommodate seagoing vessels of up to 10,000 tons, Acadia’s property covered some 220 acres, including harbour frontage of nearly 1,500 feet. Some 308,000 square feet of building-floor space held the machine shop, power-house, boiler-house, wharf warehouse, office building, carpenter shop, and six other buildings. A major local employer, Acadia had a workforce of up to 600; some lived in thirty-one residential cottages of five, seven, or eight rooms. The refinery’s daily capacity was about 1,250,000 lb. of sugar. By October 1939 it was manufacturing high-grade refined sugars at the rate of 150 million lb. per annum – a rate less than half its full capacity.29 Stewart sure-handedly guided Acadia through the Depression decade. Gradually increasing its market share at the expense of Atlantic Sugar in Saint John, NB, by the late 1930s Acadia had supplanted its rival as the industry’s regional leader. As one of the ‘big six’ sugar refiners,30 Acadia was competitive nationally, and its market share was larger than Atlantic’s.31 Such had not been the case in 1928, before Stewart became president and began to pull the company out of the doldrums.32 During Stewart’s eleven-year presidency the trading price of Acadia’s common stock rose ten-fold – a sure sign of investors’ confidence. The dividend payable on common stock rose from ten cents per share in 1936 to thirty cents in 1937 and 1938.33 Between 1926 and 1938, earnings rose by 73.4 per cent.34 Indeed, the net result of 1938 operations was a general improvement in the company’s financial position.35 Acadia Sugar was in relatively good shape financially, which made it more attractive to a prospective industry consolidator.

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‘Studying a tremendous proposition given me by J. McG. S. to look over,’ Frank Covert, Acadia’s solicitor, obliquely told his diary in May 1939, ‘– super-confidential.’36 The Anglo-Dutch Sugar Refining Company Limited, federally incorporated in July, was capitalized at $10 million – more than three times the offer that was to be made for Acadia. Solicitors for Anglo-Dutch were the Bay Street law firm of Beaton, Bell & Ross, and, although its head office was to remain in Halifax, none of the incumbent directors and officers were to be associated with AngloDutch in their former capacity. The Acadia reorganization began on 1 August, one day after Anglo-Dutch was incorporated;37 Acadia’s directors announced that Anglo-Dutch had made them an offer dated the very day of the company’s incorporation.38 The offer was for $3 million – Acadia’s original capitalization – half in cash, half in 6 per cent, 15-yearredeemable debenture bonds of the new company. Anglo-Dutch was getting a bargain, for Acadia’s fixed assets were appraised and valuated at almost $5 million.39 In any case, once the directors had given their unanimous consent the sale was more or less assured, for, although Acadia had some 2,000 shareholders, the board, either directly or by proxy, effectively controlled the company. This was to be a leveraged buyout with a twist, Acadia’s directors acting as frontmen for the never-to-be-identified principals in a shell company that was both top-secret and transatlantic. It is easier to say what Anglo-Dutch was not rather than what it was. Although it looked like an assets-disposal corporation, formed strictly to take over Acadia, Stewart denied that that was the case. Under close questioning from the few independent shareholders who remained, he indicated that Anglo-Dutch was not an operating company, a holding company, an industrial or a financial syndicate, and none of the directors were to be non-Canadians.40 Nevertheless, the very determination of Acadia’s officers not to reveal the identity of the prospective members of the Anglo-Dutch board prompted speculation that some or all of them were promoters and financiers. The moguls of finance supposedly behind Anglo-Dutch were the subject of considerable interest and speculation in the press.41 Among the wilder rumours was one that the British government was involved, anxious to forestall the sorts of drastic shortages in refined sugar that occurred during the First World War. This scenario seems very unlikely, even though both Stewart and Acadia’s managing director, David Rowan Turnbull, were in England when the Anglo-Dutch promotion was under way. More reasonable, though likewise mistaken, was the assumption

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that the same Toronto stockbroking firm – Gardiner, Wardrop and Co. – behind General Sugar Refineries’ buyout seven years earlier of Atlantic Sugar was connected: Anglo-Dutch would become the holding company for both Acadia Sugar and Atlantic Sugar, which would not only ensure a regional monopoly of production and marketing but also enable Atlantic Canada to compete on an equal footing with the large refineries in central Canada. Ironically, that was indeed what would happen, but only after Anglo-Dutch had failed to complete the purchase of Acadia. A third scenario – probably the correct one – explains not only the inclusion but also the specific character of the opting-out clause in the purchase agreement. More important, it explains why both president and managing director of Acadia went to London in July 1939 and why the promoters of Anglo-Dutch were never publicly identified. The Empress of Britain, en route to Quebec City in August 1939, carried not only Acadia’s senior executives, but also New Brunswick’s own Max Aitken, since 1918 Lord Beaverbrook. Having convinced himself that there would be another Munich rather than another war, Beaverbrook was selling off his newspapers and removing to Canada to resume his long-interrupted career as company promoter extraordinaire.42 Beaverbrook inaugurated his return with a purportedly sentimental journey through Nova Scotia, his retinue including Morris W. Wilson, president of the Royal Bank, of which Stewart was a director.43 I.W. Killam, whose RSC was selling out of Acadia,44 arrived in Halifax in time to consult with Beaverbrook about his latest promotion. Another financier with whom Beaverbrook is known to have consulted during his Nova Scotian tour was Fleming Blanchard McCurdy, president of Eastern Trust Company; ETC held Acadia’s 1935 mortgage bond, which was purchased outright by Anglo-Dutch. Beaverbrook also made a birthday call on the eminent Pictonian Edward Mortimer MacDonald, a former federal Liberal cabinet minister and director of Acadia Trust, one of Beaverbrook’s companies.45 Stewart meanwhile remained in Quebec City, dividing his attention between the AngloDutch promotion and the vice-presidency of the CBA, to which he was elected during the annual meeting that began on 16 August. Although he returned to Halifax as soon as possible, he discreetly absented himself until Beaverbrook had moved on. Had not the Polish crisis intervened, and Beaverbrook not returned to England on what he mistakenly deemed a fool’s errand, he would have remained in Canada and tried his hand at consolidating the Canadian sugar-refining industry, thus burying the memory of his failure in 1931

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to consolidate the paper manufacturing industry.46 Ever the soggy sentimentalist, Beaverbrook wanted to recommence Canadian company promotion on a national scale with Anglo-Dutch – perhaps by way of tribute to the Acadia Sugar merger promoted in 1893 by his patron, John F. Stairs.47 Thus it appears that Beaverbrook wanted chiefly to consult with prospective Nova Scotian directors of Anglo-Dutch. Canada was once again to be his base of operations, and Anglo-Dutch the vehicle to consolidate an entire industry through merger. Anglo-Dutch was to be the sugar industry’s answer to Canada Cement.48 If this reconstruction is accurate, it explains Beaverbrook’s visit to Canada in October. On the first, when Stewart was in Toronto announcing that Acadia Sugar had been sold to Anglo-Dutch, Beaverbrook was arriving by train in Montreal. By the thirteenth, however, when the new Acadia Sugar was incorporated in Ontario, the deal had fallen through; the lord had changed his mind. Although according to his official biographer, A.J.P. Taylor, ‘he had notoriously opposed going to war until the last moment,’49 Beaverbrook was offered or claimed a role for himself as unofficial go-between for the British and American governments; it was during the October trip that he laid the groundwork for the special relationship that emerged later between his old friends Franklin Roosevelt and Winston Churchill. Within the year Churchill, to whom Beaverbrook acted as confidential adviser throughout the political crisis in the spring of 1940, was prime minister and Beaverbrook a member of the war cabinet. Beaverbrook’s days as a Canadian company promoter were truly at an end. Beaverbrook and war aside, why 1939? Stewart offered ‘five good reasons’ for recommending approval of the sale to Acadia’s shareholders. First, ‘the great growth of the beet sugar industry in the Canadian West was threatening to force Acadia [exclusively a cane-sugar refiner] out of its second most profitable market’50 – the Maritimes being the first. Second, ‘truck competition in transport had brought to an end the advantage offered by equalized freight rates on railways.’ Third, the effect of this had been ‘decreased consumption or output and necessarily higher costs.’ Fourth, local perception had Acadia a bad corporate citizen – Stewart had neither forgiven nor forgotten that a prominent Conservative candidate during the 1937 provincial election criticized Acadia for benefiting unfairly from the high Canadian sugar tariff, earning high profits and paying low wages.51 And fifth, ‘the purchase price represented full value for the plant and undertaking,’ the company’s property having ‘depreciated to a large extent’ over the course of Stewart’s presi-

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dency.52 It is hard to avoid the conclusion that Acadia’s directors had had enough and wanted to exit from a local company and industry that they anticipated would not long remain competitive regionally, let alone nationally. Even allowing for the export market, Atlantic Canada could not sustain two large competing sugar refineries. The final pre-war summer was a time of ferment in Canada’s sugarrefining industry. In June the Liberal minister of finance instructed the Tariff Board to undertake a major investigation of the industry. It seems that Acadia’s executives were too preoccupied with the Anglo-Dutch flotation to pay attention. But Anglo-Dutch was never to be born alive; the contract of sale that Stewart and Turnbull negotiated in the summer of 1939 with the chief Anglo-Dutch promoter fell through. ‘The offer was made subject to the right of the purchaser to withdraw if Great Britain or Canada should become involved in a war,’53 which both of them did soon after Acadia’s shareholders approved the sale. The new company had been scheduled to take over Acadia on 30 September, but the opting-out provision in the contract could be invoked beforehand. Canada’s having declared war on 10 September, Anglo-Dutch sought and was granted an extension of one month on its option to buy. Given until 31 October to exercise or renounce the option, Anglo-Dutch chose the latter.54 Acadia’s refinery fell into the hands of the third company of that name; its president was Percy Ryerson Gardiner, senior partner in Gardiner, Wardrop and Co. and vice-president of Atlantic Sugar. The Toronto interests paid the same $3 million for old Acadia, but 92 per cent rather than 50 per cent in cash. By the end of the year, moreover, new Acadia had acquired fully half the stock of Atlantic Sugar.55 In 1942 Acadia took over Atlantic, and in 1943 the refinery outside Dartmouth was mothballed, never to reopen; fifty years of sugar refining by the Acadia company came quietly to an end. RSC was the major shareholder in Acadia Sugar from about 1925 to 1939, and the sale could not have proceeded without I.W. Killam’s concurrence. If RSC was Stewart’s biggest business client, then ‘the bank’ (as Royal was known) was undoubtedly the firm’s. It was also Stewart’s most important directorship. ‘Particularly influential,’ writes Duncan McDowall, ‘was J. McGregor Stewart, whose legal erudition and Maritime reputation would echo through the boardroom from 1931 to 1955.’56 After twenty years as a director, in October 1951 Stewart was elected to the directorial vice-presidency – at a time when a mere 12 per cent of

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the directors were Maritimers. As the bank’s first Atlantic regional vicepresident since 1907, Stewart could not only route all Royal Bank business in Atlantic Canada to his firm, but also direct business clients of the firm to the bank. Nevertheless, big business clients of the firm who were not and did not become regular clients of the bank could also rely without question on Stewart’s good offices.57 Industrialist Roy Jodrey is a case in point; he did not switch his corporate accounts from old Scotia to new Royal, though seeking and obtaining a substantial loan from the latter. Stewart’s role as financial intermediary between the bank and the business community meant that he charted the course of the bank’s investments in Atlantic Canada.58 The Union Bank, a few years older than the Royal (until 1901, ‘Merchants’), remained essentially a conservative merchant bank throughout its 54-year existence. It was also a client of Stewart’s law firm – until 1910, when it was absorbed by another client of the same firm, the Royal Bank of Canada. Indeed, the special relationship between bank and firm began not with Stewart, but with Thomas Ritchie (1842–1909), the lawyer and finance capitalist who, like Stewart, began as solicitor to the bank and ended as vice-president. Unlike Stewart, however, Ritchie had abandoned his law practice in order to become a banker and financier. His was an age with few corporate lawyers and no corporate law firms, and one could be either a lawyer or a banker but not both, at least not at the same time. The protocol of Ritchie’s generation, although it did not discourage lawyers from becoming directors of banks that they served as solicitors or counsel, distinguished sharply between directorships and officerships. It was no more possible for a lawyer-director to become an officer of a client bank than for a superior court judge to retain a bank directorship.59 Stewart’s bank directorship, which came to him within four years of his becoming head of the firm, was integral to the firm’s tradition of practising large-scale corporation finance. Under Stewart’s leadership, the firm from 1925 onwards began to provide not only corporate legal services but also corporate financial services, in the form of intermediation and investment counselling. In his history of National Sea Products Limited (now High Liner Foods Incorporated), Stephen Kimber has written that Stewart’s most important attribute as a lawyer-financier was ‘his role as the key link between the already closely connected members of Nova Scotia’s business and financial establishment.’60 It was in the summer of 1945 that Stewart, as legal adviser to the Aitken-

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style promoter Ralph Pickard Bell, oversaw the consolidation of Nova Scotia’s fishing industry. National Sea Products Limited was a complicated merger of two holding companies that accounted for some twentyfour fish-processing firms. Stewart was vice-president and chairman of Maritime-National Fish (1937) Limited, the larger of the two,61 and he had been involved in the industry longer than Bell. As early as the spring of 1926, RSC was quietly endeavouring to rationalize Nova Scotia’s disorganized, overcompetitive and undercapitalized fish-processing industry. Killam and Stewart’s efforts eventually bore fruit in the creation in 1929 of Maritime-National Fish, a merged company in which Stewart was a senior executive.62 In 1937 MaritimeNational bought out of its American parent, Atlantic Coast Fisheries Limited.63 Further developments had to await the end of the war. Although Ralph Bell became president of National Sea Products after the 1945 merger, Stewart’s contribution to organizing the company’s capital was so great that a third vice-presidency was specially created for him.64 His official role was senior advisory counsel – in effect, the company’s tax lawyer. Although he was never a member of the executive committee, Stewart’s closeness to Bell made him crucial. A mere eight years after the high-risk merger, an even riskier exercise in corporate brinkmanship saw the mercurial Bell, the majority shareholder, sell out and the merged interests, led by Stewart, acquire control from the promoter and his family. The takeover was a master stroke – a management and a leveraged buyout – the outside capital being a $2 million loan that Stewart, as vice-president of the Royal Bank, arranged on terms favourable to the new board. Stewart was chairman of that board in everything but name. Ralph Bell was a director of Dosco, while Stewart, though not a director after 1939, had enough drag to finesse the appointment of Frank Sobey as director in 1951. Dosco was run from Montreal, and its board ‘was part of central Canada’s supreme capitalist clique.’65 The Maritimes’ largest employer and one of the country’s half-dozen largest industrial conglomerates, Dosco was also the premier corporate client of the Royal Bank, whose former president, Sir Herbert Holt, had set up Dosco. Harry Bruce, who attributes Lionel Forsyth’s acceptance of Dosco’s presidency in 1949 to Stewart’s ‘fine hand,’ writes, ‘Stewart had an Upper Canadian business grapevine like no other Maritimer.’66 Apart from Dosco, the other principal jewel in the Royal Bank’s crown

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was Montreal Light, Heat and Power Consolidated (MLH&P) – the ‘Octopus of Montreal’ – a private utility holding corporation expropriated three years after the death in September 1941 of Sir Herbert Holt, chairman of the bank and of MLH&P. In May 1937 the Union Nationale government of Maurice Duplessis had passed an anti-monopoly act establishing the National Electricity Syndicate with powers to expropriate private companies, subject to a proceeding in the Superior Court.67 Then in May 1941 the Liberal government of Adélard Godbout nationalized the Beauharnois Light, Heat and Power Company (BLH&P),68 centre-piece of the Beauharnois Power Corporation, of which Holt was also chairman. BLH&P became a crown corporation – Quebec Hydroelectric – but no provision was made for expropriating the shareholdings. Finally, in April 1944, the Quebec Hydroelectric Commission Act replaced both the National Electricity Syndicate and the Provincial Electricity Board and provided for the expropriation of MLH&P and the Montreal Island Power Company and of the shareholdings of BLH&P. For nearly three decades MLH&P and its fifteen operating subsidiaries had held a virtual monopoly over Montreal’s power generation and distribution; its expropriation created a firestorm within the corporate financial community. The Liberal government was turned out of office four months after the act was passed, but Duplessis’s return did not turn back the clock. The principal amendments, enacted in June 1945, were to place the new crown agency, Hydro-Québec, beyond the reach of legal proceedings except by petition of right and to provide for an arbitration board of three to determine indemnification. One arbitrator was to be appointed by MLH&P, one by Hydro-Québec, and one – the chairman – by the chief district magistrate of the province.69 Stewart’s prestige as a financier and private-utility executive was such that the expropriated party chose Stewart, long-time vice-president of Nova Scotia Light and Power,70 itself then briefly under the threat of nationalization.71 ‘I am in Montreal at the moment,’ Stewart wrote in July 1953, ‘finishing up the Power Arbitrations that have occupied so much of my time during the past six years.’72 Controversy began with the appointment of the arbitration board in the autumn of 1945. Hydro-Québec’s nomination of its own chairman, L. Eugène Potvin, was too much for MLH&P, which went to court to try to overturn the appointment. Despite the case for recusation (conflict of interest) put forward by Lionel Forsyth, the company’s general counsel, the action was dismissed on procedural grounds;73 Hydro-Québec, a crown agency, could be proceeded against in the courts only by way of petition of right.74 Potvin kept his place,

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even though Hydro-Québec had wholly owned the assets of MLH&P for two years. The chairman was to be not only the arbitrator nominated by the expropriating party; he was the expropriating party. Despite this inauspicious beginning, the compensation payable to MLH&P was determined within the year. The Montreal Island and especially the Beauharnois arbitrations did not proceed so smoothly, with the arbitrators bringing in three different reports on the latter. The Beauharnois arbitration began in November 1947 and did not conclude until March 1953. Beauharnois, which by 1934 had come under the considerable sway of MLH&P, had been nationalized in 1941 – the year of Holt’s death. Then the assets had been stripped; now the shareholdings were also to be expropriated. Beauharnois and Montreal Island were to be wholly absorbed – like MLH&P, which had been reduced to a shell, a corporation in name only. The criteria of valuation were far less objective and far more difficult to agree on here than in the case of MLH&P, especially for Beauharnois, which had had so chequered and controversial a financial history. Although Stewart entered a dissenting opinion on the Beauharnois judgment,75 he acquiesced in the compensation fixed by the chair of the arbitration board. Potvin entered a minority report, but in the end Hydro-Québec submitted to the majority judgment.76 Given that MLH&P had been a mainstay of Royal Bank’s corporate clientele, Stewart could hardly have escaped his historic obligation to such a client. And during the arbitrations Stewart received a vicepresidency in the bank, perhaps in recognition of his efforts on behalf of Holt’s now-dismantled empire. In hindsight it seems no coincidence that Stewart became vice-president of Nova Scotia Light and Power the same year he became a director of the Royal Bank. For him finance was the summit of business, and banking the summit of finance. In the power arbitrations of 1946–53 the two streams ultimately converged. Like Stewart, James Muir, president of the Royal Bank during Stewart’s vice-presidency, ‘burned with Presbyterian zeal for advancement’; Stewart, no less than ‘Muir, epitomized the notion that hard work and Scottish methods lay at the heart of Canadian banking.’77 Stewart also concurred wholeheartedly with Muir’s policy of aggressive expansion in the corporate sector. On 13 January 1955 Stewart attended his last annual general meeting of the bank, at which a by-law was enacted doubling the bank’s capital stock from $50 million to $100 million. And on 3 February, eight days before Stewart’s death, Muir wrote to him ‘personally and confidentially,’ concerning gigantic investment propositions and personnel matters of the greatest delicacy involving the appointment of an

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associate general manager in charge of the bank’s greatly increased volume of international business.78 If Lionel Forsyth, president of Dosco, ‘was the most powerful industrial figure in the Maritime Provinces’79 at the time of his death in 1957, then J. McG. Stewart was the region’s most powerful law-and-business figure at the time of his death in 1955. Killam, Stewart, and his boon companion Forsyth all died too soon to be included in Peter C. Newman’s 1957 survey of ‘Canada’s biggest big businessmen.’80 Newman’s ‘list of a hundred directors of Canadian companies include[d] most, though not all, of Canada’s most influential businessmen.’ The average number of directorships held was 14 (range: 2 to 56); Frank Covert had 21, more than half of which he either inherited from or had held concurrently with Stewart, who at the time of his death held 45 (one less than Forsyth). Among Stewart’s close associates on the list were James Muir (tenth in terms of corporate assets directed), J.D. Johnson81 (47th), J.C. MacKeen (48th), Covert (55th), and R.A. Jodrey (62nd), who held more directorships (56) than anyone else. There were seventeen lawyers, all but two of whom – Henry Borden (Brazilian Traction) and Wilbert Howard (Montreal Trust) – gave their ‘main interest’ as their law firm. The lawyers on the list included another Halifax notable, Charles J. Burchell, who, though not a corporate lawyer, had been a director of both Besco and Dosco. And Stewart’s successor as dean of the corporate bar, John S.D. Tory (9th), sat on 33 boards. Stewart, who shared with Tory such gilt-edged directorships as the Royal Bank, Sun Life, and Montreal Trust, but who sat on a dozen more boards, was no less talented or sought-after a lawyer-director than Tory.82 Fourteen years older than Tory, Stewart was at his zenith in the 1930s; in his time, like Tory, ‘he reigned as indisputably the most sought-after lawyer-director in the country.’83 Stewart too would have appeared in the top twenty, if not the top ten, and only premature death robbed him of his place at Canada’s economic summit.

6 The Alter Ego

He is quite a figure. He looks like a poet or even an Art critic; but in reality he is probably the keenest financial mind in Canada. – J. McG. Stewart on I.W. Killam, 1946

At the spring convocation of Dalhousie University on 14 May 1946, Izaak Walton Killam, Canada’s wealthiest and most reclusive corporate financier, received an honorary LLD.1 Killam,2 four years older than his close associate Stewart, had not had the education necessary to enter the professions, so he had chosen instead the other of the ‘two principal careers open to the more ambitious boys in the Maritimes’ – banking.3 A school leaver, Killam had become first a ‘bank boy’ with the Union Bank of Halifax (the Stairs house bank), which was a client of Harris, Henry & Cahan.4 Thanks to the intervention of Max Aitken, managing director of Royal Securities Corporation (RSC), Killam began selling securities in Atlantic Canada and elsewhere.5 So proficient a salesman was he that in 1906 RSC sent Killam to the Saint John office to market RSC offerings there. In 1909 Killam replaced Aitken as managing director, in 1915 he replaced him as president, in 1919 Killam bought out Beaverbrook, and in 1928 he bought out his junior partner, Ward Pitfield, to become sole proprietor. Unlike John F. Stairs’s lawyer-son, Gilbert Sutherland – latterly Killam’s Montreal lawyer – Stewart early on fulfilled his promise as a corporate lawyer.6 Indeed he was the first true legal entrepreneur in Harris’s law

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firm. We can explore legal entrepreneurship – the corporate lawyer as client-cooperative businessman – through Stewart’s long and intimate association with Killam. Stewart would be to Killam what R.E. Harris had been to John F. Stairs, RSC’s founding president.7 Harris set the tone in his firm; over his twenty years at the helm, he was more the corporate than the legal entrepreneur, a ruthless soldier of fortune with nerves of steel, more adept at ‘corporate trench warfare’ than Aitken himself, whom he bested at his own game. Stewart, the last and greatest of the ‘corporate men’ whom he brought into the firm, would be instrumental in the re-creation of Royal Securities in Nova Scotia in 1928, just as Harris and Cahan had been in its creation.8 At a time when in-house corporate counsel were the exception that proved the rule, Stewart was always and only Killam’s legal adviser, never his business partner. The solicitor–client relationship evolved from ‘permanent consultative counsel’9 to confidential agent. Stewart’s relationship with Killam, based on mutual trust and admiration, paralleled Harris’s with Stairs. According to Stewart’s business–legal ethic, the solicitor who did the legal work for a merger was neither a promoter nor a partner of the promoter. Although the solicitor’s role as incorporator (provisional director) might lead to his becoming in the new company counsel, director, member of the executive committee, or officer of the board, the lawyer remained bound by solicitor–client privilege, which places more responsibility with the solicitor. What C.H. Cahan perceived as a profit-motivated business partnership, Stewart saw as provision of an increasingly nuanced and sophisticated range of advisory counsel services, focusing on the financial aspects of company promotion. This did not supersede the traditional range of solicitorial services or interfere with cross-client fertilization. According to his only biographer, Douglas How, Killam ‘believed in having access to the best legal advice he could hire.’10 In Montreal that was Victor Evelyn Mitchell – a scholarly lawyer who practised law after a period in business11 – of McGibbon, Casgrain, Mitchell & Surveyer, the gilt-edged corporate law firm that Gilbert Stairs went to from Harris, Henry, Rogers & Harris. After Mitchell’s sudden death in May 1932, Killam turned increasingly to Stairs and Stewart, the latter travelling frequently to Montreal to consult with Killam, as well as to attend directors’ meetings of the Royal Bank. Stewart’s becoming legal adviser to RSC, as well as Killam’s personal lawyer, extended and enhanced the law firm’s reputation in the nation’s financial centre and helped to make Stewart a name on St James Street.

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RSC’s financing of Killam’s electric-utility consolidations and industrial promotions soon gave Henry, Stewart, Smith & McCleave an even larger role. Whereas in its first (pre-war) decade RSC mainly underwrote promotions outside the Maritimes, if not outside Canada, afterwards Killam began to investigate its potential role in the Maritimes in general and Nova Scotia in particular. RSC touted its Maritimes pedigree: ‘When you buy or sell investment securities through Royal Securities Corporation, you are doing business with a house which is primarily a Maritime Province institution – incorporated under the laws of Nova Scotia, directed by men born in the Maritimes,12 and associated for twenty-three years with the financing of Maritime Province industries and utilities.’13 For Stewart, as a Nova Scotian ‘economic nationalist,’ RSC’s new strategy fitted with his own view that consolidating industry was more important than promoting companies or even mergers, except for setting up a new industry, such as newsprint manufacturing, or saving an existing one, such as sugar-refining or steel-making. Not only was RSC the financial intermediary for Killam’s post-war ‘constructive thrust’ into the Maritime provinces;14 any Maritime company in which Killam owned or acquired a major interest soon had Stewart as a director and member of its executive committee and Stewart’s law firm as its solicitors. Indeed Stewart’s appearance on a board is among the surest means of dating Killam’s involvement.15 A measure of the confidence that Killam reposed in him was that his first important officerships were in Killam’s companies. One of the earliest and longest-held of them was Nova Scotia Tramways and Power Company Limited (now Nova Scotia Power Inc.), of which Stewart became a director in 1926 and vice-president in 1931. Killam’s interest in the company, acquired in 1924, was sufficient to place his cousin, Lawrence Killam (an engineering consultant), in the presidency and Ward Pitfield of RSC in the vice-presidency.16 By 1928 Killam had ‘effective control’ of the company.17 Stewart procured from the Conservative provincial government an act amending the company’s legislative charter that changed its name to Nova Scotia Light and Power Company Limited (NSL&P) and completely reorganized its financial structure and capitalization.18 In 1929 NSL&P acquired as a wholly owned subsidiary the Avon River Power Company, its chief regional competitor, which supplied power to Nova Scotia’s Annapolis Valley. More significant than NSL&P in terms of assets and operating capacity was the Bolivian Power Company Limited, the flotation of which was

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probably Stewart’s first major undertaking for Killam.19 In April 1925 Stewart incorporated the new company, capitalized at $3 million, in order for Killam to acquire the assets of an integrated utility company in La Paz (Bolivia), which was owned by English interests.20 Bolivian Power was one of the original four Latin American utilities that Killam either owned or controlled and which he later brought under the umbrella of his multinational conglomerate, International Power Company Limited.21 Having acquired the electric light, tramway, and telephone operations in the Bolivian national capital, as well as other electric utilities and hydroelectric concessions, Killam recast the newly integrated utility as a subsidiary of International Power. Incorporated under the Dominion Companies Act in 1926, International Power immediately took control of Bolivian Power and began to increase its operations and develop its natural resource concessions in the context of a rapidly expanding Bolivian national economy. International Power would eventually control successful electric light and power companies serving centres of extensive commercial development in five countries. Bolivian Power was incorporated in Halifax rather than in Montreal, partly because of the historic interrelationship among those Halifax finance capitalists comprising the ‘Scotia group,’ those Caribbean and Central and South American hydroelectric utility ventures that they promoted, and the Harris-Henry-Stewart law firm. Killam, as Stairs and Aitken’s successor in the RSC presidency, was continuing the tradition of international finance capitalism from a Halifax base. Both the first of these ventures (Stairs’s Trinidad Electric Company, 1901) and the last (Killam’s Bolivian Power, 1925) were merger promotions. The origins of Bolivian Power can be easily traced to the foreign utility promotions of the Scotia group. No sooner had Bolivian Power been successfully floated than Killam began to study the feasibility of building a state-of-the-art newsprint mill in Nova Scotia, which previously had exported its pulpwood because it did not possess the infrastructure to produce paper on an industrial scale. Killam was no stranger to paper manufacturing, which by 1926 was the country’s largest and fastest-growing industry.22 In 1910, shortly after Killam had become managing director, RSC ‘conducted the first large public financing in connection with the development of the Canadian newsprint industry’ – Price Brothers.23 By 1928 RSC had, according to its advertising, ‘been prominently identified with the financing of Canadian pulp, paper and lumber industries for the past

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eighteen years.’ These ventures included Abitibi Power & Paper; British Columbia Pulp and Paper; Manitoba Paper; Price Brothers & Company; and Spanish River Pulp and Paper Mills.24 In the spring of 1928 RSC attempted unsuccessfully to acquire the family-owned Rolland Paper Company of Montreal, the oldest paper manufacturer in the country and ‘the only paper company of any magnitude in which there [was] no public investment interest.’25 Throughout it all, Killam had suffered only one spectacular failure – the Riordon Company promotion, which collapsed in 1921 in the wake of the post-war recession.26 Afterwards, Killam took effective – and occasionally personal – operational control of the firms. With the newsprint mill in Nova Scotia he did not simply finance a reorganization or promote a merger of existing companies; he built the mill from scratch, thus changing RSC from an investment bank into a public investment holding company with operating subsidiaries. RSC, thanks to Killam, was twenty years ahead of its time.27 Having already turned his attention eastward, Killam was drawn back to Nova Scotia, his interest piqued by a rival development in New Brunswick, where the American conglomerate International Paper was to open a $15-million newsprint mill in 1929.28 Killam had long since staked a claim in New Brunswick by acquiring a significant interest in Fraser Companies Limited.29 In Nova Scotia, however, he was aiming not only to establish paper-manufacturing as a core industry but also to monopolize it. What attracted Killam to the south shore was not only the superabundance of pulpwood timberland, but also the potential for hydroelectric power offered by the Mersey River – Nova Scotia’s longest and largest – and the prospect of a year-round, ice-free, deep-water port on Liverpool Bay at the river’s mouth. The complex that was to rise at Brooklyn, eastward across Liverpool Harbour from the town, would include not only the paper mill but also a hydroelectric power plant and a wharf facility to accommodate the company’s purpose-built ocean-going steamer. The proposition, which was under active consideration and investigation by the summer of 1926, got strong support from Stewart and John C. MacKeen – Killam’s right and left hand, respectively.30 By the spring of 1928 the die was cast; by the end of 1929 the paper mill was in production.31 ‘Associated with Mr Killam in these early days,’ wrote a well-informed insider, ’were Messrs. J.McG. Stewart and J.C. MacKeen, who had been preparing the ground and getting it ready for the decisions and direct action that Mr Killam had to take. These two gentlemen have continued throughout the difficult days of organization and construction to lend splendid and stalwart

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efforts to the fruition of the early plans.’32 Stewart and MacKeen proposed, Killam disposed. Mersey Paper Company Limited (Bowater Mersey today), which began operations outside Liverpool in December 1929, was perhaps the most outré example of Stewart’s political influence-broking.33 Although Nova Scotia’s new Conservative government ‘was deluged with proposals for pulp and paper development,’34 without a legal entrepreneur of Stewart’s calibre acting as go-between, the Mersey miracle would never have happened. This $17-million development was conceived the day the Conservative government took office in July 1925. Indeed, it may have been one of the two or three matters about which Stewart asked to see Premier Rhodes in August 1925.35 The Mersey promotion would have been far less attractive to Killam had Stewart and his associates in the Conservative party not been able to ‘deliver the goods.’ Stewart, as solicitor to both Killam and RSC, was prominent in the negotiations, which began in the late summer of 1927 and by January 1928 were so well advanced that RSC was (re)incorporated under the Nova Scotia Companies Act in anticipation of a favourable outcome.36 Killam himself arrived from Montreal to expedite the proceedings, and on 7 March 1928 Rhodes announced in the legislature that the government had entered into an agreement with RSC ‘which would mean the construction of a large modern newsprint mill in the Province.’37 The venture would not only spearhead the development of a newsprint industry in Nova Scotia, where paper had not been made for forty years, but would also make paper-manufacturing the third-largest industry in the province, after steel-making and coal-mining. The negotiations subsequent to the agreement in principle with Killam were a Conservative love feast. The paper mill was to be built in the Queens County constituency of William Lorimer Hall, attorney-general and minister of lands and forests, and Rhodes’s deposed predecessor as Conservative leader, while the Nova Scotia Power Commission, which undertook to build a hydroelectric system to generate power for the mill, was chaired by a government minister. Killam’s insurance was to be nothing less than a public act of the legislature. On 28 March 1928 Hall introduced a government bill conferring ‘certain powers on a company to be incorporated for the purpose of owning and operating a paper mill in Nova Scotia.’38 Mersey Paper Company Limited received incorporation four months later. Referred to the committee on private and local bills, although it was neither private nor local, the bill passed two days later, at the very end of the session. Not only did the government give

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RSC concessions on pulpwood-bearing crown lands of the company’s choice; a week or so before the bargain was struck, Killam acquired for $5 million two of the largest tracts of privately owned timberland in Nova Scotia – some 800,000 acres – one formerly belonging to the American conglomerate Hollingsworth-Whitney.39 Finally on 30 April two agreements, authorized by order-in-council under the Power Commission Act, were signed; these were the province’s collateral and, together, satisfied Killam, thus securing RSC’s investment. One agreement, between the government and RSC, guaranteed the operating company a supply of 1 million cords of pulpwood; the other, between the Nova Scotia Power Commission and RSC, guaranteed it a hydroelectric power-generating system. In short, in return for his constructing the paper mill, the government gave Killam the site on which to build it, the softwood to supply it, and the energy to operate it – a sweetheart agreement if ever there was one. Mersey Paper was incorporated on 31 July 1928 with a capitalization of $5 million; its original headquarters was the law office suite occupied by Stewart.40 Stewart was made a director, becoming vice-president in 1930; he vacated that office only in 1949, when the president, C.H.L. Jones, died and the post of chairman was specially created for Stewart – who, at 60, was too busy to assume the presidency. Killam, though routinely consulted on every major decision, was not a director, much less an officer; apart from RSC itself, he continued to limit his formal involvement to companies outside Nova Scotia, which remained Stewart and MacKeen’s bailiwick. Killam did not even attend the official opening of the mill in December 1929, excusing himself on the grounds of poor eyesight; it was generally understood that he did not want to make a speech.41 Seventy years on, ‘Mersey Operation’, now a section within the Newsprint & Directory Division of Bowater Incorporated, remains a flagship. Two other major international paper companies, one Swedish and the other American, subsequently located in Nova Scotia, but pride of place and market share belong to the Bowater Mersey Paper Company Limited, which has continuously produced newsprint since its inception. Together, wrote Frank Covert, Stewart and Killam ‘ensured the survival of the Company through the Depression. When Killam refused to advance further funds when the Company was in dire straits and told the board they would have to rely on the bank for help, Stewart persuaded the Royal Bank [of which he was a director] to carry the Company. On more than one occasion, the bank advanced money to meet the

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payroll!’42 Covert’s documentary history of Mersey reveals that Stewart’s role as intermediary not only between Killam and the Royal Bank, but also between Killam and the ventures that he promoted, financed, or owned, was crucial. If Killam was the invisible man, then Stewart was his mask. Stewart’s last great service to Killam and Mersey Paper was to negotiate in 1950 a new hydroelectric-power agreement with the Nova Scotia Power Commission; the previous one – in 1928 – had been ‘personally supervised’ by Killam himself.43 If the initial power contract ‘was a masterpiece of “looking ahead”,’ then the subsequent one was the milk of prophecy. Signed on 1 December 1950, the contract was to be in effect until 30 November 1990. ‘On top of this,’ according to Mersey’s then president, B.J. Waters, ‘the Company has an option to extend the contract for a further term of 35 years, which would carry on to the year 2025.’44 The agreement so impressed Liberal Premier Angus L. Macdonald, chair of the Power Commission, that he sent Stewart a fulsome letter of congratulation.45 Stewart’s swansong was to be Mersey’s silver-anniversary celebration, which he helped plan and organize. Held on 27 November 1954, the event was pardonably triumphal: Mersey is celebrating its 25th Anniversary – 25 years of achievement during which, step by step, production of newsprint has grown from 65,000 tons in 1930 to the annual output of 138,000 tons today. This tremendous growth has been made possible not only by the additions to the plant and the installation of the latest types of machinery, but also because of the complete cooperation and incentive of its employees, and the goodwill of its customers, friends and neighbours. Mersey takes pride in its contribution to Nova Scotia’s economy through the employment of about 1,500 people, its purchase of pulpwood from the woodlot owners of Nova Scotia, and the use of supplies, power and transportation services which have provided many jobs for Nova Scotians.46

Mersey Paper, in short, both saw itself and was seen by the powers that be as a good corporate citizen. The bipartisan political appeal of such a successful industry made it attractive to the Liberals, who had had nothing to do with its creation and who, in the years after 1933, had not always sustained the special relationship. Yet head table guests included Premier Henry D. Hicks and Robert H. Winters, MP, federal minister of public works, in whose constituency the paper mill was located. The Mersey saga demonstrates that Stewart’s most important personal client undoubtedly was Killam, whom he served as confidential adviser

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for some thirty years. The hermetic and reticent Killam regarded Stewart so highly that he made him his agent, effectively granting him power of attorney. Not only did Killam visit Halifax purposely to consult with Stewart;47 family tradition has it that Killam would regularly telephone to Halifax from his offshore tax haven in Nassau after Stewart had retired for the night and talk at length into the mouthpiece while Stewart, periodically placing the receiver down on the bed, endeavoured to continue with his reading. The night-owlish Killam even threatened – half in jest, all in earnest – to purchase the estate adjacent to Stewart’s on the Northwest Arm in order to have the benefit of his lawyer’s sage advice at any hour of the day or night.48 For many years, Killam would agree to have no one but Stewart assist him, even though Frank Covert was beginning to do significant pieces of solicitorial work for Killam’s companies. Killam also worried about Stewart’s indifferent health, which by 1953 had begun seriously to fail.49 Killam was one client whom Stewart could not wean off, however, not even to the chosen one, Frank Covert;50 theirs was a unique relationship, breakable only by death. Stewart’s impact was such that, when he died, exhausted from overwork, Killam found that he could not live without him. Within six months in 1955 Mersey Paper lost both its owner-founder and its chairman. The lawyer had gone and had taken his client with him. The Mersey board, as a mark of respect to Stewart, declined to fill the vacant chair. It would scarcely matter; within the year Dorothy Killam, her late husband’s principal beneficiary, sold the concern to the British conglomerate Bowater’s for $53.7 million.51 Mersey’s most famous former employee, the novelist Thomas H. Raddall, delayed publishing his modern novel, The Wings of Night, until 1956, when Stewart and Killam were dead and their company sold. Despite the standard disclaimer (‘All of the characters in this book are fictitious ...’), Killam and RSC appear transparently as ‘Luther Kinnoul’ and the ‘Kinnoul Investment Corporation,’ respectively, while Mersey is the ‘Seaforth River Paper Company.’ The hero plays the same role as Stewart did in real life – persuading Killam to come to Nova Scotia to create a new industry on the grand scale.52 Stewart’s career as a lawyer in business in Canada, 1914–54, which coincided almost exactly with I.W. Killam’s 39-year presidency of RSC, was one of vertical integration on the pyramid model: financial intermediaries (banks, trust companies, investment firms, insurance companies) – holding corporations (for example, Dosco) – operating compa-

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nies (free-standing or subsidiary). Just as Killam as a rule would not accept a place on the board of any company that he did not own or control – and sometimes not even then – so Stewart was never appointed to the board of RSC. His dual role as Killam’s personal lawyer and legal adviser to RSC precluded it. In the final analysis no extramural corporate counsel could ever become in-house corporate counsel – i.e., a lawyer with one (and only one) client – without severing his connection both with the law firm and with its other clients. Interlocking directorships were one thing; solicitor– client conflict of interest was another. Of course there were exceptions; the company’s lawyer could not sit on the board of another company with which his own was in competition, which explains why Stewart was never a director of R.A. Jodrey’s Minas Basin Pulp and Power. Jodrey, an industrial entrepreneur, is an example of why Stewart’s relationship with business clients in direct competition with Killam’s companies could only be legal, not corporate. In 1927 Jodrey had founded Minas Basin Pulp and Paper Mills Limited to sell groundwood pulp to Scott Paper of Pennsylvania.53 Stewart had helped him become a millionaire before the stock market crash of 192954 and then become one again after the Depression had nearly wiped him out, so Jodrey was a preferred client of his; Stewart ‘was fond of saying that Jodrey’s word was better than a bond.’55 Yet Stewart was never a director of any of Jodrey’s companies, and, as soon as Frank Covert became a partner in the law firm, Stewart ceased to be Jodrey’s principal lawyer. And it was not until after Stewart became vice-president of Nova Scotia Light & Power in 1931 that Jodrey was removed from his post as managing director of Avon River Power, NSL&P’s chief wholly owned subsidiary, of which Jodrey had been president before the takeover. Behind Jodrey’s firing was probably Killam,56 to whom Jodrey refused to sell Minas Basin because the price was not right.57 Those skills that Stewart possessed in abundance were essential to great industrial promotions such as Mersey Paper because of the necessity of negotiating terms and drafting contracts involving complicated concessions from both government and government agencies. Though Stewart did not initiate the promotions, he was the legal and financial intermediary between promoter and government. Killam had the luxury of refusing to play a direct, public role in Mersey because of his dependence on Stewart. Yet Killam valued the advice provided by his lawyers as much as Aitken resented it.58 Aitken did not view Cahan as another James Dunn (who began his career as a lawyer in Halifax), while Killam

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was not a frustrated would-be lawyer. That the business relationship between Killam and Stewart was mature and well-balanced speaks volumes for the character, intelligence, and personality of the two men. The infrastructural changes in business practice that occurred in the years before the First World War had their greatest impact after it, although there was not to be another great wave of Canadian mergers until after the Second World War. The delivery of corporate legal services to advanced capitalism diversified and accelerated during the economic boom of the 1920s, when Killam flourished, and Stewart with him. Stewart developed his reputation as the foremost Canadian corporation lawyer of his day at a time when the part played by the corporate lawyer in big business was still being scripted. Stewart’s was to be the definitive performance of a role that he interpreted rather differently from his predecessors in Atlantic Canada. The legal entrepreneur was a lawyer who knew his corporate client’s business so well that he could actively participate in it at the highest level.

7 The ‘Royal Family’

It will take the Conservative Party a long time to live down the disgrace that was brought on it by the so-called strategy board [of the Nova Scotia Conservative Association] all of whom were associated in some way with this invisible Government – the local ‘Royal Family.’ – Dr W.D. Forrest, 8 August 1933

J. McG. Stewart’s corporatist political philosophy rejected perhaps the most characteristic feature of Nova Scotia politics after the First World War – regionalism.1 For him the post-war Maritime Rights movement was embarrassingly parochial, uninformed, and backward-looking; he feared, wrongly as it turned out, that the Conservative Party’s espousal of it would futher jeopardize its electoral prospects. But 1925 was a Conservative year, which saw the party triumph in Nova Scotia both provincially and federally. Among the casualties of the Conservative sweep was the Maritime Rights plank, to which the party paid mere lip service during the provincial election campaign. Movements of regional political protest were a losers’ cause, not a victors’ one. Stewart was a believer in national rights, not Maritime Rights, and in the responsibility of the regions to put the interests of the nation first. Even his pragmatic imperialism was a form of Canadian nationalism, for he saw the British tradition as a means of maintaining and enhancing the fragile unity of the country. Region was a fact of national economic and

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political life; but regionalism was not a realistic or constructive approach. From the periphery, Stewart looked to the centre for a new national policy of industrial development that would benefit all regions equally. For Stewart, politics was indistinguishable from political economy. However empirical his political philosophy, Stewart’s political ardour had a psychological dimension. For him politics combined the essential elements of religion and love – passion and blind faith. Stewart would have countered the observation of the Tory democrat Disraeli that politics was not a religion by asserting that it was another religion, scarcely less important than Presbyterianism. Stewart’s political Conservatism, like his ecclesiastical conservatism, was a family matter. The Stewarts and the Creelmans were active Tories, as were his law firm and his wife’s family. Stewart had grown up in Pictou County, then the bosom of the party.2 His father was close to provincial Conservative leaders such as A.C. Bell and C.E. Tanner (with whom he practised law) and had got his start in the profession from S.H. Holmes, Conservative premier from 1878 to 1882. A major factor in nurturing Stewart’s Conservatism was the law firm. Harris, Henry, Rogers & Harris, which about 1912 replaced Borden, Ritchie & Chisholm as the Conservative government and party’s law firm, had been unalloyedly Tory from the departure of its LiberalConservative-Liberal founder, William Alexander Henry, Sr, in 1875. Harris, Henry, and Rogers were all strong Tories, Rogers having run unsuccessfully in Cumberland. Harris, Rogers, and Henry’s older brother, Hugh McDonald Henry, all received their judgeships from Conservative governments. Then there was C.B. Smith, Stewart’s closest legal associate. Twice president of the Nova Scotia Conservative Association, Smith was as ubiquitous on the political centre stage as Stewart was behind the scenes.3 Stewart began his political career about 1915, when he appears to have replaced T.S. Rogers, KC, as treasurer of the Nova Scotia Liberal– Conservative Association.4 It was the first and only office he held in the Conservative Party, although he long stage-managed and directed the financial side of the Conservative tragi-comedy. Whatever part Stewart played in the party’s resurrection between 1922 and 1925,5 he seems to have concurred in the deposition of William Lorimer Hall as party leader a few weeks before the provincial election of 1925, which resulted in a

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landslide Tory victory. By that time Stewart was an habitué of the inner circles ‘and probably at or near the top echelon of this hierarchy.’6 According to Peter Aucoin, Hall ‘had expressed views on protective tariffs, which, although not of vital concern in this campaign, [in] no way endeared him to such protectionists as Rhodes, Dennis and Stanfield.’7 And Stewart’s Acadia Sugar Refining Company Limited had been faltering as a result of low tariffs on imported refined sugar.8 The high-water mark of Stewart’s influence came between 1925 and 1935, which saw the Conservatives achieve and then forfeit power in both Halifax and Ottawa. Stewart stood especially close to Frank Stanfield, MLA. The party’s provincial president, kingmaker, and éminence, in failing health, retired to become lieutenant-governor in December 1930, while Stewart replaced him as director of the Royal Bank of Canada on Stanfield’s sudden death in September 1931. Stanfield’s elevation from politics in 1930 confirmed the ascendancy of Stewart, who, unlike Stanfield, had never fought an election or served in the legislature. Stewart’s role reflected the source of his power-broking – corporate law and finance. His influence, according to R.A. Donahoe,9 though palpable, was undefined and undefinable; he worked always at, near, or beyond the top, always behind the scenes, and always through others.10 When Conservatives were kings, Stewart was the power behind the throne. Stewart was also an advocate of government support of big industry. Who better to invite onto the board of a new industrial enterprise than a leading manufacturer and politican like Frank Stanfield. Among Stanfield’s many industrial interests was Mersey Paper, of which both he and Stewart were directors. Infrastructural support for industry was a radical concept in the 1920s and impossible without political leverage.11 In those days there were no conventions restraining legal entrepreneurs from attempting to manipulate government policy on matters in which they were personally or corporately interested, whether as lawyers, investors, promoters, or, as in Stewart’s case, all three. When the entrepreneur, whether legal or industrial, was also a political power-broker, government support became a form of political patronage qua corporate welfare. As Carol Wilton has written, ‘Informal political norms ... discouraged flagrant conflicts of interest, but there is little evidence that they had much effect. Indeed, the business culture of the day appears to have encouraged entrepreneurs to pursue prosperity through whatever channels were

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available without much regard for the public interest.’12 The public good might benefit incidentally from initiatives supported by government through its patronage of big business and financial interests. The Halifax Chronicle suggests13 that the timing of the election in October 1928 was dictated not by political considerations but by business ones. In May the Rhodes government made its first agreement with the Royal Securities Corporation under which the Government was to develop the Mersey River Power and make available a million cords of pulpwood, and the Royal Securities would see that a paper mill was built. It would, however, take time to complete construction of the projects and if public support continued to lessen, a new Government might be elected before the Mersey was finished. Although the Government still had two years to run, and there was no reason for an election, at the suggestion of the ‘Master Minds’14 the election was suddenly called for the 1st of October, 1928, in the hope of snatching a favorable verdict from the people. With a very narrow margin the Government was reelected but it is notorious that the Government mysteriously called that election against the protest of leading Conservatives throughout the Province ... Then followed the construction of the Mersey project – and the Government Control [of liquor sales] movement – headed also by Executives of the Royal Securities and its associated undertakings.15

The snap election almost proved fatal. Indeed, the Conservatives’ tenuous hold on power might not have been enough to ensure passage of I.W. Killam’s paper mill act had the bill been introduced after the election rather than before. Predictably, the mill became an election issue, with the Liberals unwisely suggesting that Mersey Paper did not really intend to construct the plant in Queens County.16 An even greater furore was ignited in April 1930, five months after the Mersey mill began production, by an amendment to the Land Tax Act (Bill 151), which would prevent export of raw pulpwood except under licence from the minister.17 The Liberal press asked whether this measure to conserve forest resources was meant ‘to ensure the continuance of the pulpwood industry? Or was it to create a monopoly in favour of the Mersey Paper Company which the government had recently been instrumental in establishing?’18 Frank Stanfield defended the government against Liberal allegations that Mersey Paper was in financial difficulties and therefore specially interested in the legislation.19 For opponents who

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contended that it would force owners of large woodlots ‘to sell their pulpwood to the Mersey Paper Company at depressed prices,’20 the bill was the very limit of corporate tyranny. Even Conservative Hector McInnes who represented tw o large American pulp and paper companies, condemned the bill in public hearings before the law amendments committee; the bill passed by two votes but never became law.21 Had the act come into force, it would have lent credence to Liberal accusations that the government was ‘restricting the export of pulpwood in the interests of its friends in the Mersey Paper Company.’22 It was one thing for the government to support a major industrial development; quite another for Mersey, to which the government had already made quasi-monopolistic concessions, to corner the market. In fact, however, the act would not have particularly benefited Mersey Paper, which may help to explain why the company was not represented at the hearings, while its competitors were. Yet the ‘playing field’ was far from level; the industry was a government-induced virtual monopoly concentrated in a purpose-made company owned and controlled by Royal Securities Corporation. Moreover, had critical business interests of Mersey Paper really been at stake, the act would have been proclaimed later.23 It was a powerful tool ready for use immediately on company request. Premature proclamation would have done much unnecessary harm. The company’s relationship with the government was far less cozy after 1933, when the new Liberal government of Angus L. Macdonald began to drag its feet over implementing the wood-supply agreement and retained C.J. Burchell, head of the province’s leading Liberal law firm, to represent it in negotiations with the company.24 The same was true of the Power Commission, the government’s publicly owned hydroelectric company, of which the new Liberal premier became chair. Throughout the first two years of Mersey’s operations, 1929–31, the Liberal opposition had pilloried the ‘allegedly wasteful expenditures by the Nova Scotia Power Commission in building a hydro-electric system for the Mersey Paper Company.’25 Now Mersey was suddenly no longer able to defer payment on its power bills – a sharp practice which, according to Thomas Raddall, ‘ultimately caused a scandal in the legislature.’26 Premier Rhodes, who in December 1929 opened the Mersey paper mill, returned to federal politics within the year. The election of a Conservative government in Ottawa in July 1930 increased Stewart’s influence within the party; Rhodes immediately became minister of fisheries, and Stewart’s business interests included a major fishprocessing concern, Maritime-National.27 There had not been Conserva-

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tive governments in Ottawa and Halifax at the same time since 1882. A supporter of the leadership of both Rhodes in 1925 and R.B. Bennett in 1927, Stewart was now in a position of supreme influence; though holding no party or public office, he became the chief arbiter of federal patronage in Nova Scotia.28 Two months after the Conservative victory, Stewart – whom the Liberal press considered to ‘stand closer to the Tory throne than probably any other Nova Scotian’ – went to Ottawa to offer advice on federal appointments in the province. ‘Lawyer Stewart,’ according to the Halifax Chronicle’s political-gossip columnist, ‘is the heavy man on the Government side, close to Minister of Fisheries Rhodes, confidante of [Conservative] Premier Harrington,29 adviser to dominant Tory politicians, close to the Royal Securities financial and power magnates. He has had a phenomenal rise in the financial–legal world and is a potent influence on political life in Nova Scotia.’30 The hegemony of the Royal [Securities!] Family was such that Rhodes, who had not stood for election, was offered a cabinet post ahead of Nova Scotia’s ten Conservative MPs, some of them long-serving. If Rhodes owed his party leadership to the Royal Family, then Premier Harrington owed his to Rhodes. Both men came to the leadership without a convention. Gordon Harrington was neither the ablest nor the most senior member of the government, but the heir apparent, John Francis Mahoney, had been killed in a traffic accident a year earlier. A lawyer like Rhodes, Harrington was impressionable and easily led, and the Royal Family simply co-opted the minister whom they thought they could most easily control. What Stewart meant by ‘Government Control’ – a Tory catch-phrase during the liquor plebiscite campaign, 1928–9 – was not so much government control of liquor sales as control of government by big business. Between 1930, when a high-flying Tory corporate lawyer was prime minister of Canada and the pliable Harrington was premier of Nova Scotia, and 1933, Stewart was the most powerful person in Nova Scotia. He was able to remain completely anonymous for most of the time, although his identity could not be hidden from persons in the know. Invisible power inspires greater fear, and not even the relentlessly partisan and otherwise fearless Halifax Chronicle dared name Stewart as ‘the individual’ owning the Pentagon Building – at the foot of Buckingham Street in the heart of the city’s legal and business district – which served as permanent headquarters of the province’s Conservative Party.31 Acquired by its new owner a few days before the Liquor Control Act

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passed on 30 April 1930,32 it was to house the administrative offices of the Liquor Commission established by the act.33 According to the Chronicle, Stewart, alias ‘Mr X ––,’ was the evil genius behind the Tory throne.34 The government of Nova Scotia was in thrall to a financial corporation of which Stewart was chief agent. Royal Securities was a major player in the quest for monopoly of Nova Scotia’s electric utilities in the years after 1924.35 The jewel in the RSC crown was Nova Scotia Light and Power (now Nova Scotia Power Inc.), the province’s privately owned chief public utility, of which Stewart became vice-president in 1931. Although Harrington catered to big business, it is unclear whether NSL&P’s misconceived attempt to override a decision of the Public Utiltites Board (PUB) by means of legislation was Stewart’s idea.36 The proposal to merge NSL&P’s regional operating subsidiaries with the parent company came before the PUB in August 193137 and helped bring down the Conservative government in 1933. Harmonized power rates meant higher power rates for the consumer and higher returns for the shareholders of NSL&P, already a virtual monopoly. In January 1932 the PUB rejected the application to permit the merger, so the company looked to government to amend section 54 of the Public Utilities Act, which empowered the board to veto the sale of any public utility.38 As an appeal from a decision of the board to the Supreme Court in Banco lay only on a question of jurisdiction or law and as the merger involved neither, a legislative solution was essential. The bill – drafted in the offices of Stewart, Smith, MacKeen & Rogers39 – was introduced late in the 1932 session by the chief government whip, but it died in committee.40 The company’s second attempt a year later to push the bill through provoked a firestorm of protest, which prevented the legislation from even reaching the floor of the House.41 The combined and considerable political leverage of Lieutenant-Governor W.H. Covert (past president and a director of NSL&P), J.C. MacKeen (president), Stewart (vicepresident and general counsel), and C.B. Smith (solicitor)42 could not resuscitate such an unpopular measure. The Chronicle had a field day; for weeks before and after the opening of the legislature on 21 March, it ran a daily series of front-page editorials with suggestive titles like ‘Promoters Promote, But the People Pay,’ ‘Politics and Promoters,’ ‘Merger and High Finance,’ and ‘Corporate Greed’ that roundly condemned the proposed power merger.43 In a memorable image, the Chronicle’s brilliant new cartoonist, Robert W. Chambers, depicted Nova Scotians being

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ground like wheat between the upper and nether millstones of ‘high finance’ and ‘light-power monopoly,’ while a pair of stout ‘promoters’ turned the screw of the ‘power merger.’44 Facing an election which they still thought they could win, and judging the political risks too great, the government decided to defer the bill.45 Wrongly anticipating a ‘safe margin of victory’ – provided that the empty war chest was replenished – Stewart wrote Sir George Perley, acting prime minister, requesting financial assistance from the national association. In the general election, however, the Conservatives took a mere eight seats to the Liberals’ twenty-two. Stewart’s number two, Smith, was lead counsel for those returning officers implicated in the ‘franchise affair,’46 which cost the Conservatives the election in Halifax, while both the old guard47 and the rank and file blamed the Royal Family for the party’s intensely negative public image. Harrington, whose idea of campaign organizing was ‘to park in the Halifax Club and shake hands with the élite of Nova Scotia,’ occupied free of charge an office at Stewart, Smith, MacKeen & Rogers. Conservative national organizer James Earl Lawson, who visited Halifax in January 1935 to report on party prospects federally, said that this set of connections was ‘anathema to a great many Conservatives and to the ordinary man in the street in Halifax.’48 Lawson was right; the federal election in October wiped Nova Scotia’s Conservatives from the political map. Stewart had already seen to it that Harrington (though still an MLA) became chief commissioner of the federal Employment and Social Insurance Commission. For allowing itself to become identified with one very big interest in particular – Royal Securities Corporation – the Conservative Party endured exile from power for the next twenty-three years. A Chambers cartoon in the Chronicle (13 July 1933) depicted the government in a state of semi-collapse, supported only by the outstretched arms of a tophatted Izaak Walton Killam. Addressing Senator W.H. Dennis, proprietor of the Conservative Herald, Killam expresses the hope that ‘we can keep our boy on his feet.’ Emblazoned on Killam’s jacket were the words, ‘The Royal Family.’ The same newspaper grimly observed on 22 August that ‘only one corporation benefited. The “invisible” hand pulled the strings and the Rhodes–Harrington Government, like a Punch and Judy show, mechanically obeyed.’49 A second, worse electoral defeat in June 1937, which reduced the Conservatives from eight seats to three and saw Harrington lose his own seat, only worsened factiousness and mutual recrimination. Writing to

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R.B. Bennett in October,50 Stewart complained bitterly that there were elements within the party that resented not only what he had been able to achieve but also his very existence. He ruefully admitted that his worst enemies were more essential to the party’s electoral success than he. Politically Stewart lacked a power base, for the vast majority of normally Conservative voters, who held no brief for corporate capitalism, were not with him. Domination by the corporate élite led not only to the premature election of 1928 but also to the party’s near-loss of power, its decisive defeat in 1933, and its exile from power for two decades. Stewart’s political vision was as broad as his party vision was narrow. Red toryism repelled him, although he realized that the party of unrestricted capitalism ‘must be prepared for advanced support to social services’ – shades of Bennett’s ‘New Deal’ and of the report of the Royal Commission on Dominion–Provincial Relations (see chapter 8, below). He was unable to see that one could be a Conservative without also being a proponent or beneficiary of advanced capitalism. For Stewart, meritocracy – rooted in the sort of competitive individualism that he had imbibed at Pictou Academy – was an ideal. The leverage that he exercised with Conservative governments (and even, to a lesser extent, with Liberal ones) was commensurate with his unrivalled prestige as a lawyer and businessman.51 Stewart’s adherence to the patronage principle was not so blind as to countenance displacement of office-holders simply on the grounds of party affiliation – a view that got him into trouble with less enlightened (and less powerful) Conservatives. ‘You will be delighted to hear that word has come through that Hogan has been reinstated,’ he told his fiancée in the spring of 1931. ‘No further action has been taken on the others yet but I have some hopes left. I suppose the Tories will curse me all over the country; but I’m proud of it.’52 Although there was no honour among patronage-seekers, Stewart did not shirk his responsibilities as patronage dispenser. He ‘would tolerate no one whom he felt did not meet his moral standards,’53 high among which stood fair dealing and consideration for others. A Tory grandee, Stewart was rarely overtly partisan, and he never let politics interfere with business or pleasure,54 much less with his duty to a client, a friend, or a relative. In the spring of 1939, when Famous Players Corporation, which held a virtual monopoly of film distribution in Canada, opposed a provincial bill to break up the monopoly, Stewart, about to embark for England, handed the company’s brief to his protégé,

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Frank Covert. The latter, a dyed-in-the-wool Liberal, went before the Law Amendments Committee and demolished the bill; it was enacted but never proclaimed.55 Business and politics made strange bedfellows, sometimes dividing Stewart from political friends or uniting him with political enemies. When Earle C. Phinney, a prominent Conservative lawyer, political insider, and provincial candidate, at his nomination meeting in June 1937 attacked Acadia Sugar as a bad corporate citizen for benefiting from the same tariff wall that was disadvantaging Nova Scotia’s fishing industry, Stewart replied in print. He depicted Phinney as a lapdog of Conservative Senator W.H. Dennis, an anti-corporationist whom Stewart christened ‘His Master’s Voice.’56 Such a ruinous public battle on the eve of an election, and between the leaders of two party factions, confirmed the Conservatives’ reputation as unfit to govern. The Conservatives therefore suffered an even worse defeat than that of 1933. The provincial election of 1937 sounded the deathknell of the Royal Family and the Pentagon Building clique. With the party out of office both federally and provincially, there was no patronage for Stewart to dispense and no venture that he could use his influence to help promote. Little wonder that Stewart would have had the first place among the Herald’s ‘Party Invisible’ – which ‘added to its spectre of self-seeking party members who allied themselves with Liberal governments the conspiratorial notion of a cabal of selfish Conservatives and Liberals, not identified, which attempted to associate itself with every provincial administration.’57 Stewart’s tactful and tactical bipartisanship reflected both his ambiguous relationship with the provincial Conservative association and his need to do business with government regardless of its complexion. He did not want to prejudice his relations with Liberal governments and Liberal businessmen by either accepting party office or standing for election. In the years before 1935 it was unnecessary for him to stand; afterwards, to do so would have undermined his position relative to both government and opposition. Stewart was an ideological capitalist to whom the Conservative Party of R.B. Bennett was attractive as the vanguard of advanced capitalism. If government was to provide social services, then it should also provide corporate welfare. Though less a Tory democrat than a plutocrat for whom elections were a necessary evil, Stewart was also an astute political schemer who prevailed on his associates to stand as federal Conservative candidates58 – C.B. Smith in 1940,59 H.P. MacKeen in 1945, and Joseph Connolly in 1949. Unlike many old-guard Conservatives, Stewart was a strong supporter

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of National Government in 1940; when the party formerly known as ‘Conservative’ was having difficulty finding the candidates it wanted in Halifax,60 Stewart found his own closest colleague, Smith, who went down to ignominious defeat. ‘The greatest weakness,’ wrote Stewart eight months after the federal election of March 1940, ‘is that we have a party Government whereas we should have a National one. That may come and it will double the effectiveness of our effort all along the line; but at the moment it seems to be remote.’61 Stewart himself was under pressure to run federally in Pictou in 1945;62 he refrained, but the Conservative candidate, a local lawyer, reduced the incumbent Liberal’s majority from 3,000 to 400.63 Stewart was a hero in Pictou, where his candidacy might have been sufficient to tip the balance in favour of the Conservatives. As it turned out, the Liberals lost but one of their Nova Scotia seats, taking nine out of eleven. In November 1954, Stewart had the satisfaction of seeing the late Angus L. Macdonald’s seat in the legislature captured easily by R.A. Donahoe, the Conservative mayor of Halifax, who had stood unsuccessfully with C.B. Smith in 1940.64 The by-election win was both a fillip and a portent; the Liberals had held all five Halifax seats since 1933. In the general election of October 1956 the Conservatives returned to power after twenty-three years in the political wilderness, although Stewart did not live to see the victory. The party’s unexpected resurrection owed nothing to the Royal Family except the lesson of its mistakes: it was possible to foster big industry without identifying the party with big business or, worse, with one big corporation in particular. The Young Turks who gathered round Robert Stanfield rebuilt the party and kept the Conservatives in power for fourteen years, while the Royal Family had sustained the party in government for only eight – and arguably destroyed its chances for a generation. Although Stanfield owed his quick and easy ascendancy at least in part to being Frank Stanfield’s son, his links to the Royal Family were decidedly tenuous.65 The king-making faction which, after Frank Stanfield’s retirement in 1930 had begun to coalesce around J. McG. Stewart, became a superélite cadre unrepresentative both of the party’s workers and of its voters. Yet it included not only Stewart’s fellow corporate lawyers, businessmen, and elected politicians, but also three of Stanfield’s immediate predecessors as party leader.66 Cumulatively the Royal Family’s actions were bad for the party’s image and fatal to its electoral prospects. It was blamed, and was probably responsible for, the franchise ‘scandal.’67

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The fact that the Royal Family’s ventures not only survived but even flourished during the ‘dirty thirties’ helped create and perpetuate ‘the myth of the Tory responsibility for the Depression.’68 Stewart’s achievement – less in electoral politics than in political economy – was to compress and accelerate the evolution from corporate to state capitalism in Nova Scotia. And the engine driving this transformation was Royal Securities Corporation, through its political bureau, the ‘Royal Family.’

PART FOUR National Affairs

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8 Royal Commissionaire

There is no pontifical Englishman at the head of the [Royal] Commission [on Dominion–Provincial Relations] to advise us on our internal problems with a flimsier basis of knowledge even than that possessed by the old gentlemen of the Privy Council who have made such a mess of our constitution. – Editorial, Canadian Forum, Oct. 1937

Ottawa was the centre of Canada’s political and bureaucratic life, not of its business or financial life, and Stewart accordingly saw less of it and cared less for it than he did Montreal. Yet legal and political affairs drew him regularly to the nation’s capital, especially during the early 1930s, when the Conservatives were in power, and again during the early 1940s, when he served as a ‘dollar-a-year’ man in the war effort (see chapter 9). As standing external counsel to the Department of Justice during the Bennett government of 1930–5, Stewart found his services in demand for royal commission as well as for advocacy work (as we saw in chapter 4), but his greatest involvement in both capacities came later, under the Liberals. It was a role to which he had early become accustomed. In 1920–1 he served as counsel for Nova Scotia’s Provincial Highway Board in a commission of inquiry ‘respecting the expenditure in connection with the construction of certain federal aid roads by the [Provincial Highway Board] and of the purchase of machinery.’1 The board was finding it

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difficult to be as independent and bipartisan as the Liberal government that set it up in 1917 had hoped, and the Conservatives abolished it shortly after their return to power in 1925. According to Murray Beck, Liberal Premier George Murray’s ‘troubles began in September 1920 [a month before the commission was appointed] when his earlier attempt to take highways out of politics through a bipartisan Provincial Highway Board backfired.’2 Preferential contracting and huge cost overruns made a public inquiry inevitable. The commissioners, chaired by Justice Humphrey Mellish of the Supreme Court of Nova Scotia (a Liberal), acknowledged Stewart’s particular assistance.3 He pointed the finger of blame away from the board, where counsel for the government was inclined to place it, and towards the engineers, where the commissioners thought to place it. As the Liberals were in power in Ottawa for most of the 1920s, Stewart did not play a role federally until the Conservative victory in August 1930. Being a director of the Royal Bank kept him from the federal Royal Commission on Banking and Currency (1933), chaired by his good friend Baron Macmillan, lord of appeal in ordinary. In December 1933, however, Stewart acted as lead counsel for the government of Canada at the Royal Commission on the Natural Resources of Saskatchewan.4 In March 1930 a conference between Canada and Saskatchewan had resulted in a Natural Resources Agreement that transferred federal crown lands to the province. The agreement, ratified by the federal Saskatchewan Natural Resources Act,5 was enshrined in the Constitution Act, 1930. Although the act provided for a royal commission to work out the financial terms, the statutory constitutional reference had to go to the Supreme Court of Canada and thence to the Privy Council.6 The royal commission was to determine whether Saskatchewan should receive any extra compensation for the 25 years after it became a province in 1905. Public hearings finally took place in Ottawa and Regina between February and May 1934, with 276 exhibits filed, and the commission reported in March 1935.7 The royal commission’s recommendation of Saskatchewan’s special claim for revision went in 1938 to the Royal Commission on Dominion– Provincial Relations, appointed in August 1937 to examine the constitutional distribution of legislative powers.8 The decade-long Depression was endangering the fiscal probity of all but Canada’s richest provinces; Saskatchewan and, particularly, Manitoba were on the verge of bankruptcy. Population-based subsidies payable under the Constitution Act,

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1907, were scarcely enough to prevent ‘have-not’ provinces from defaulting on payment of the public debt. Seeking a long-term solution to the crisis, the governor of the Bank of Canada, Graham Towers, proposed a royal commission, which idea appealed to the minister of finance, C.A. Dunning (who was from Saskatchewan), and to Prime Minister Mackenzie King.9 He broadened the commission’s terms of reference10 to include all aspects of federal– provincial relations and governance in the country. The commission’s potential significance turned selection of its members and officers into a political football; it was like a royal commission on Confederation itself. It had a chair from Ontario, one commissioner from Quebec, two from the west – near (Manitoba) and far (British Columbia) – and one from the Maritimes.11 However, the real criterion was political affiliation. Harold Innis emphasized that ‘the Royal Commission included Commissioners acceptable to a government controlled by the Liberal Party’12 – known Liberals or Liberal fellow-travellers.13 As one anonymous commentator observed, What criticisms [of the personnel of the Commission] have appeared have proceeded mainly on one or other of two grounds, either that room should have been found for a man with a wide practical knowledge of affairs, some outstanding representative from the ranks of business or industry, or that all those selected, in so far as they were known to have political affiliations, were members of the Liberal party. Certainly no one of them was clearly recognisable as a Conservative, and however legitimate may be the claims of party loyalty the omission was regrettable.14

The appointment of Stewart would have answered both criticisms. As for Ontario Chief Justice Rowell, chair of the commission, his first and only choice for Maritimes representative was Stewart. But Mackenzie King would have none of it. Though prepared to concede that the Maritimes was a region, King did not think it important enough to warrant a commissioner. Pressed by Nova Scotia’s cabinet ministers, Ilsley (National Revenue) and Rogers (Labour), King proposed as counsel J.L. Ralston, a former Liberal MP and cabinet minister, who would be ‘in that way representative of the Maritimes.’15 Rowell would countenance that arrangement only if Stewart were a commissioner. In the end a compromise was effected – the Maritimes was to get a

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commissioner; the prime minister, an all-Liberal commission; and Rowell, Stewart as counsel. King intervened not only to veto unacceptable appointments, but also to vet the list of politically acceptable ones. Among the Maritime candidates was the New Brunswick capitalist Howard Perley Robinson, whom King dismissed as ‘another Unionist.’16 An uncontaminated Liberal emerged: R.A. MacKay, Eric Dennis Memorial Professor of government and political science at Dalhousie, where Stewart chaired the board of governors.17 The appointment of MacKay, who nursed a grudge against Stewart for trying in 1931–2 to have him fired,18 was condemned by R.B. Bennett. ‘With regard to the gentleman who represents the maritime provinces,’ he declared, ‘I repeat that for bitter partisanship I have never known his equal.’19 Fortunately, all three of the original, or ‘real’ commissioners – Rowell, Justice Thibaudeau Rinfret of the Supreme Court of Canada, and John W. Dafoe – were more enlightened. King’s intransigence made Rowell more determined then ever to assert the chair’s right to nominate counsel, free from political interference. According to his biographer, ‘A subject of considerable discussion in the initial stages of organization was the appointment of legal counsel. Rowell was convinced that in order to avoid any possibility of misunderstanding by the provinces about the impartiality of the counsel, the commission rather than the Dominion government should choose and appoint its own counsel.’20 Rowell had no objection to the government’s appointing its own counsel but thought commission counsel should be independent of government. Although King lamented to his diary that Rowell wanted to appoint as counsel ‘Stuart [sic] (N.S.) a Tory leader of Cons. organizn.,’ the chief justice got his way. In September 1937 Rowell told King that he had ‘discussed the matter with Mr Justice Rinfret ... He knows Mr Stewart and expressed high regard for his ability and considered that his appointment would be very suitable. He thought there was real advantage in the considerations I mentioned to you about Mr Stewart’s political affiliations.’21 King relented. An order-in-council gave the commission authority to appoint counsel.22 King wanted nevertheless to control, or at least influence, all appointments. Stewart was the only officer of the commission from outside the pale. In mid-October 1937, Rowell arrived in Halifax to arrange with Premier Macdonald the participation of his government in public hearings and to make Stewart an offer. Stewart rose to the occasion, despite his apologetic tone in a letter to R.B. Bennett:

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You will have noticed that I have been appointed by Rowell one of the joint Counsel for the Commission on Federal and Provincial Relations. I wish this matter had been mentioned to me prior to the time of your departure, but the first time I heard of it was the Saturday following your departure [16 Oct.], when Rowell was in Halifax. He, apparently, has a free hand in selecting Counsel23 and my name was recommended to him by the permanent officials of the Department of Justice on account of the experience I gained in the Saskatchewan– Alberta Natural Resources cases. I hope you will not disapprove of my having accepted the retainer, although I should have liked to have discussed it with you if there had been an opportunity to do so.24

Bennett in fact replied with a warm letter of congratulations.25 Despite his political objections to the commission and its Maritimes representative, he could hardly object to an élite Tory lawyer’s serving as counsel. Indeed, the choice of Stewart helped answer Bennett’s accusation of extreme partisanship, and he ceased to criticize the commission – though not, of course, the commissioners.26 If senior counsel was to be a unilingual anglophone Tory, then associate counsel would have to be a bilingual francophone Liberal. Louis St Laurent, then at the height of his legal career, was the choice. Counsel assisted the commission in its public hearings by examining witnesses on their briefs; for this Stewart and St Laurent received $150 a day, exclusive of expenses. Usually only one counsel was present, except at hearings in Ottawa and Toronto; Stewart was to take the western circuit (Winnipeg and Regina), and St Laurent the eastern (Halifax and Charlottetown). In November 1937 Commissioner Rinfret was forced to resign,27 and Stewart was sidelined. Exactly two weeks after his appointment, on the evening of Monday, 8 November, Stewart was playing cards at ‘Lindola,’ the Halifax home of brewery magnate Sidney Oland, when he slipped on a waxed floor and fractured his leg.28 After more than a fortnight in hospital, Stewart spent several weeks convalescing at home and was unable to take the commission’s western circuit, as originally planned. Fortunately, St Laurent was able to fill the breach. Wrongly anticipating that Rowell might want or need to displace him permanently, Stewart wrote him: ‘I was looking forward with the greatest of pleasure to the work of the Commission which as I view it will rank in importance second only to the Confederation Pact in the history of Canada.’29 Having missed sessions in Winnipeg and Regina, Stewart joined the roadshow at Ottawa in January 1938. He arrived in time to examine

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Professor F.R. Scott of McGill on the brief of the League for Social Reconstruction, or LSR (‘a leftist society with a C.C.F. tinge’), which Scott, a past president, had drafted. ‘The other half of the day [20 January], equally learned,’ wrote Hamish McGeachy, was taken by a collision between two nimble legal minds, much the best show of the kind at the inquiry to date. Participants were MacGregor Stewart, K.C., of Halifax, and Prof. Frank Scott of Montreal. Mr. Stewart, rumored to be of Scotch descent, has lately joined the Commission’s cavalcade. He is a leader of the Canadian Bar and, as he is a good Tory, his presence rebuts the base canard that this is strictly a Grit performance. Mr. Stewart’s talents as an examiner are extraordinary but this was one time when the professor-witness, being a lawyer himself, could stay the whole way and emerge without severe contusions.30

The League’s brief (‘Canada One or Nine – The Purpose of Confederation’) contained an attack on corporate capitalist hegemony, which, according to Scott, was the inevitable result of the Privy Council’s deracination of the Canadian constitution.31 Nature abhors a vacuum, and the atrophy of the central government enabled monopoly capitalism to divide and conquer the country province by province.32 Stewart, himself an ‘industrial feudalist’ in LSR demonology, was sceptical of any connection between Privy Council ‘misjudgments’ and the triumph of provincial-state capitalism. Stewart ‘went after’ Scott, who gave as good as he got.33 Despite being an intellectual lawyer himself, Stewart took an extremely dim view of legal academics, especially those with left-wing views. For Stewart, the power of big labour was more than enough to countervail that of big business.34 Forty years later, Scott recalled ‘that, by and large, the [LSR] brief was well received.’35 Stewart’s role as understudy to the Maritime representative was especially significant when the commission visited the region. Although all three provinces participated fully in the hearings, New Brunswick alone stood by the hoary chestnut of Maritime rights.36 With a newly increased majority, Nova Scotia’s Angus L. Macdonald, according to J. Murray Beck, ‘hoped now to play a part in securing constitutional amendments designed to establish a national social welfare system and put into place a new system of federal–provincial relations that might be recommended’ by the commission.37 His government’s 141-page brief38 proposed equalization payments to stabilize the economies of the poorer provinces. In the Maritimes, beginning at Halifax on 3 February 1938, it was Stewart rather than St Laurent, as originally intended, who examined the

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witnesses, starting with the premier: ‘Mr Macdonald,’ wrote Hamish McGeachy, ‘was examined by Mr MacGregor Stewart, K.C., Commission counsel and one of the potent lawyers of the Atlantic seaboard. This encounter made a tableau of some interest, since Mr Macdonald is a Grit premier while Mr Stewart is a leading Tory in these parts. Their conversation was polite. The angry passions often supposed to be implicit in any Nova Scotia political argument were not in evidence.’39 From Halifax, it was on to Charlottetown, Ottawa, Victoria, and Edmonton. Stewart’s principal work concluded with the end of public hearings in Ottawa in June 1938, when he had another memorable encounter, with Tim Buck, general secretary of the Communist Party of Canada (CPC).40 Unlike the LSR, the CPC’s Central Committee was forthright in recommending abolition of the Privy Council appeal.41 Like the LSR, however, it recognized that the Judicial Committee’s tendency to clip ‘the powers of the Dominion government over the corporations’ assisted the corporate capitalists, who gained more freedom of action. On this argument, Stewart’s determined resistance to abolishing the appeal is understandable. Although both counsel ‘took an active part in the proceedings, questioning witnesses closely and becoming involved in lengthy debates on their briefs,’42 their role did not end in June 1938. The hardest task – analysing the evidence (briefs, testimony and commissioned studies) and drafting the report – was about to begin. In June 1939, a dispute over distribution of powers threatened to precipitate Chairman Sirois (Rowell had resigned because of ill-health) into writing a dissenting minority report. Could Ottawa legally assume responsibility for matters such as unemployment insurance, which the Privy Council had determined were exclusively provincial?43 St Laurent and Stewart were summoned to Ottawa for a long meeting with the commissioners and their staff. According to Robert Fowler, who briefed them, Stewart and St Laurent arrived on the morning of the meeting and they were delayed for some reason I do not now [1963] recall. I had only about an hour with them, through a scanty lunch. I remember how quickly, being the good counsel they were, they cut through to the essentials. I gave them the issues and told them the question of an unanimous report was swinging in the balance. I thought at the time that, with Mr Rowell gone, unanimity between the remaining four was essential ... The question was whether we could win over Dr Sirois. With this scant preparation we went into the meeting of the Commission. I remember, at the time, I thought I had never seen the legal mind working to

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better advantage. The discussion was crisp and to the point; the ball was passed back and forth between St. Laurent and Stewart; and we emerged from the session with unanimity.44

The report’s three volumes – history (261 pages), recommendations (295), and documentation (219) – were finished in February 1940 and presented in May. Nova Scotia’s brief turned out to be prescient. Most of its nine proposals appeared in the commission’s report and, in one form or another, became features of Canadian social and political life: (1) amendment to the British North America (Constitution) Act, (2) delegation of legislative authority, (3) a ‘federal grants commission,’ (4) dominion jurisdiction over marketing, (5) provincial jurisdiction to impose sale tax, (6) dominion responsibility for old age pensions and mother’s (family) allowances, (7) annual conferences between provinces and the dominion, (8) dominion jurisdiction over unemployment insurance and allied subjects, and (9) exclusive federal jurisdiction over succession and death duties and income tax.45 In favouring ‘national adjustment grants,’ the commission’s report ‘totally rejected the position of the Ontario government and embraced that of the Nova Scotia government.’46 That recommendation is now entrenched in the Constitution Act, 1982, as ‘the principle of making equalization payments.’ Ironically, the very first first ministers’ conference, in January 1941, failed because the three wealthier provinces (Alberta, British Columbia, and Ontario), which would have funded such equalization payments without profiting from them, opposed them.47 Stewart, as befitted commission counsel, took a disinterested view of the report’s prospects. Whether one agreed with the commission’s findings or not, he told an interviewer in October 1941, ‘at least every question affecting Canada has been discussed from various standpoints, and since it is impossible in a democracy to get everybody to accept any one solution, a series of good-natured compromises must be forthcoming in order to achieve results from this monumental labour ... [It] will in time be accepted as the reliable chart for the future development of the Canadian constitution.’48 The prediction proved accurate: the future development of the Canadian constitution was made possible not only by the abolition of the Privy Council appeal, which the report did not recommend,49 but also by annual first ministers’ conferences, which it did. Yet there may be more to the report’s failure to assume a firm position on continuation of appeals to the Privy Council than the federal reference on the 1939 abolition act. Chairman Rowell had earlier been lead

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counsel for the government of Canada before the Judicial Committee on the cases concerning Bennett’s New Deal legislation, and its wholesale rejection of the legislation had turned him into an outspoken opponent of the appeal.50 Incapacitated by a stroke, however, he resigned in October 1938 and played no part in analysing the evidence, much less drafting the report. Both commission counsel, in contrast, were élite corporate and constitutional lawyers who favoured continuation of the appeal until its natural death from disuse. One wonders whether the perception of the report among its detractors and lukewarm supporters, such as the prime minister, as inspired by and benefiting corporate financial interests, owes something to the reputation and behind-the-scenes activity of commission counsel.51

9 Coal Bed of Procrustes

I am sure none of us will ever forget the experiences of those years. – C.D. Howe to J. McG. Stewart, 1951

By the time the report of the Royal Commission on Dominion–Provincial Relations was delivered in February 1940, Stewart had gone from being a $150-a-day man1 to a dollar-a-year man. Canada’s declaration of war on 10 September 1939 followed by one week the establishment under the minister of labour of the Wartime Prices and Trade Board (WPTB), set up to ensure an adequate supply and equitable distribution of the ‘necessaries of life.’2 None was more necessary than coal, the mainstay of Canada’s economy both industrial and domestic; its significance as a primary industry placed it in a class by itself. Coal was the fourth of the original four ‘key commodity’ administrations to be established, after wool, sugar, and hides and leather. Although the number of administrations multiplied, especially after the imposition of price controls in 1941, coal’s was always the largest, most complex, and most important. The chair of the WPTB, Hector McKinnon, commissioner of tariffs, recommended appointments.3 Stewart’s, effective on 27 October 1939, was greeted with a complimentary leader in his old nemesis, the Halifax Chronicle.4 Unlike other dollar-a-year men, he would not move to Ottawa; the order-in-council granted him both travelling expenses and a twenty-dollar per diem, not just for every day spent in Ottawa but for

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every day absent from his home on coal administration business. And a month or so later Stewart was travelling – to New York to meet the American Anthracite Association (most of Canada’s supply of anthracite originated in the United States), and then to Hamilton and Toronto to explain the WPTB’s policy to coal operators and distributors and to assure himself of their co-operation.5 Thus Stewart, according to Harry Bruce, ‘managed Canada’s coal industry mostly from Halifax. Beside the telephone in his study, he installed a switch to disconnect other phones in his mansion on the Northwest Arm [Braemar]; in a time when propaganda warned “the walls have ears,” he wanted no one to eavesdrop on his discussions about coal shipments.’6 Nor could Stewart abandon the law firm; war service reduced its nine lawyers to three of its four senior members. It was more or less de rigueur that the coal administrator should come from Nova Scotia, which in 1939 was the larger of Canada’s two major coal-producing regions. Stewart’s appointment,7 commendably bipartisan,8 was also in line with the WPTB’s policy of engaging nonbusinessmen as administrators.9 As a corporate lawyer-director, however, Stewart was hardly outside the industry.10 The Dominion Steel and Coal Corporation (Dosco), of which Stewart was a director, controlled some 80 per cent of coal production in eastern Canada. Stewart was also a director of Dosco’s chief coal-producing subsidiary, Dominion Coal Company Limited (Domco), which had an unenviable record in industrial relations. The Domco position would have prevented Stewart from achieving the degree of co-operation between business and labour essential to preserving industrial peace and uninterrupted coal production. So Stewart gave it up, apparently hoping to lend credibility to his efforts to heal industrial relations in the coal mines of eastern Canada. His was a forlorn hope. Stewart was more than just an ex-Dosco director;11 a decade earlier, he had been counsel for the promoters of the Dosco merger. He could not live down his Dosco past. Both the coal miners and the coal-mining companies, at least in the Maritimes where Dosco held sway, assumed that he would mind the companies at the expense of the workers. Equal justice was not seen to be done, because the coal miners continued to view Stewart as a guardian of the interests of the corporation. Stewart’s nearly four-year tenure as coal administrator fell into three distinct phases: October 1939–August/September 1941, when the entire

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WPTB lay under the authority of the minister of labour; September 1941– March 1943, under the minister of finance; and March–July 1943, when coal administration was subsumed in coal control and placed under the minister of munitions and supply. While J.L. Granatstein may be correct that ‘in its first two years of life the [WPTB] played a relatively minor role,’12 the coal administration played a disproportionately significant one. Stewart’s original brief was to be responsible, in co-operation with the industries and trades concerned and under the direction of the Board, for the conduct of negotiations with United Kingdom authorities for the export of coal and other solid fuels to Canada; in cooperation with the provinces concerned, for maintaining and stimulating where necessary the production of Canadian coal and other solid fuels; for the supervision of the purchase, shipment, distribution and allocation of coal, coke and other solid fuels, whether domestic or imported, and for such other duties as may be assigned to him by the Board.13

When war was declared, Canada was importing as much as 60 per cent of the coal that it consumed, because the areas of highest consumption – Ontario and Quebec – were farthest from the principal coal-producing areas in the east and west, and because anthracite, which was in great demand as a domestic fuel, was not mined anywhere in Canada on a commercial scale. In effect the coal administrator became the nation’s largest importer of British and American coal. Stewart’s first initiative as administrator was to recommend to the WPTB that it apply the licensing powers conferred by the WPTB Regulations vis-à-vis coal dealers.14 The recommendation was accepted by the board and approved by the minister.15 WPTB Order No. 1, ‘Respecting Coal and Coke,’ issued 7 November 1939, came into force on 1 December: ‘Each manufacturer, importer, exporter, jobber, wholesaler and retailer of coal or coke is hereby required by the Board to obtain each year, through the Coal Administrator, a licence to purchase, sell, ship, distribute or otherwise deal in coal or coke.’16 The licence was to cost $1 and to be renewable every 31 March. The licensing plan, which included inventory control and reporting, was a basic feature of the strategy to regulate allocation and distribution so as to forestall coal shortages. It not only encouraged voluntary compliance but also enabled the coal administrator to monitor both supply and demand and prices and trade. By 10 December 1939 some 4,500 coal

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dealers had been licensed.17 In March 1940, in order to discourage bootleggers and black marketeers, the WPTB issued Order No. 4, restricting to licensees the sale of coal for further resale.18 Throughout the winter of 1939–40 Stewart was preoccupied with preparations for shipping as much Maritime coal as possible to the retail markets of central Canada during the next navigation season on the St Lawrence River. He also travelled to Washington DC, to confer with officials in the Bituminous Coal Division of the U.S. Department of the Interior, and toured the larger coal-mining operations in Alberta and British Columbia. Sometimes the presence of the coal administrator in Halifax was a blessing in disguise. At the fall of France in June 1940, thirty-four British coal freighters were in French territorial waters. Ordered to proceed to Halifax and unload their cargo, they found that the WPTB was willing to sell their cargo on consignment for the British government. Through the co-operation of wholesale and retail dealers, Stewart was able to dispose of some 220,000 tons of coal and coke worth nearly $1 million.19 Despite the smooth functioning of the licensing system, by the summer of 1940 it was clear that the administrator’s supervisory control over ‘the purchase, shipment, distribution and allocation of domestic or imported coal’ was inadequate. Stewart realized that the coal administrator in his own right needed all the powers of the licensed distributors. Accordingly, in July 1940, over a year before the imposition of mandatory price and wage controls, he was granted the power not only to market the commodity directly but also to set wholesale prices.20 Throughout the rest of 1940, as coal production increased, Stewart concentrated on trying to offset dependence on imported coal by fostering conditions that would stimulate domestic production. Chief among them was labour peace in the Maritimes, where poor industrial relations long antedated the founding of Dosco in 1928.21 To that end an industrial relations summit conference convened in Halifax on 12 December 1940,22 chaired by Nova Scotia’s minister of labour and consisting of representatives from the federal Department of Labour, Dosco and its coal-mining subsidiaries, and the United Mine Workers of America (UMWA) District 26 (Nova Scotia and New Brunswick). Stewart formed part of the federal delegation, which also included the deputy minister of labour, the department’s chief conciliation officer, and the technical adviser to the coal administrator. The president and vice-president of Dosco were also in attendance, as was the international secretary-treasurer of the UMWA. The meeting resulted in adoption of a new grievance procedure for

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Nova Scotia’s coal-miners, to be administered by a ‘joint board of adjustment.’23 This three-person industrial relations board, consisting of a union representative, a company representative, and an independent chair acceptable to both parties, would arbitrate any disputes not involving pay rates, working conditions, or other matters addressed in the collective agreement. Although the board was destined to exist only on paper, the summit led two months later to a commission of inquiry ‘into the disputes or into any matters or circumstances connected with the Dominion Coal Company, Limited.’ Dosco was represented by the industrial entrepreneur Ralph P. Bell, and the UMWA by F.R. Scott of McGill. The chair was Justice C.P. McTague of the Ontario Court of Appeal.24 Throughout the winter of 1940–1 coal production had been ‘maintained at the high wartime level’;25 indeed 1940’s output exceeded 1939’s by 12.4 per cent. Stewart’s chief concern continued to be transportation. Such were the heavy demands on the national tranportation infrastructure that it was proving next to impossible to ship Nova Scotia coal west of Montreal. In general, the demand for anthracite (hard) and bituminous (soft) coal, as well as for industrial coke, far exceeded supply and was too heavily dependent on U.S. imports. Not even maintaining a higher rate of domestic production, together with increased imports, could keep pace with demand, which was growing exponentially, thanks to the use of coal in the production of iron and steel, and as an industrial fuel. To make matters worse, by April 1941 domestic production had fallen below 1940 levels. In a wide-ranging interview given to the Montreal Standard in October 1941, Stewart described his job ‘as the facing of a continuous series of crises, making the best decisions possible as they arise, with some attempt to formulate a strong coherent policy in the meantime.’26 The worst crisis had been a ‘slowdown’ in the Cape Breton coal-field. A fourday wildcat strike (16–20 April), followed by a four-month work-to-rule (May–September), was precipitated by the miners’ unhappiness with the McTague Commission’s report and their unwillingness to accept it without a vote. The conflict quickly degenerated into an intra-union squabble between a conservative leadership committed to the joint board of adjustment, and militants unwilling to co-operate with big unions, let alone big government or big business. Government’s response was to declare coal-mining an ‘essential service’ under the War Measures (Defence of Canada) Regulations (DOCR). That was on 6 June 1941. Bringing coal under the DOCR gave the minis-

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ter of national defence broad powers to take over mines and mining companies.27 Although no one could deny that coal-mining was essential both ‘for the prosecution of the war’ and ‘to the life of the community,’ no effort was made to use the DOCR against miners in Cape Breton. The powers that be continued to believe that UMWA District 26 would honour its obligations under the agreement of December 1940. In any event, the slowdown devastated production, resulting in a shortfall of some 600,000 tons.28 Over the six weeks preceding 11 October 1941 demand dangerously exceeded supply. Stewart moved quickly; he ‘stopped Nova Scotia operators shipping into Quebec and Ontario, stopped New Brunswick operators shipping into Quebec, thus saving the local situation and also avoiding payment by Government of unnecessary [railway transport] subventions.’29 Shortly before amending the DOCR in order to declare coal-mining an essential service, the government decided to co-ordinate retail coal purchases for the Departments of National Defence and Munitions and Supply through the coal administrator.30 Then the government further rationalized its control over coal by placing the administrator in charge of the Dominion Fuel Board (DFB),31 established in 1922 as an advisory board on coal production and supply. Broader changes soon followed, initially in a reassignment of ministerial responsibility for the WPTB – the start of phase II of Stewart’s tenure as coal administrator. In August–September 1941 the WPTB was transferred from the minister of labour, who was not a member of the allpowerful Cabinet War Committee, to the minister of finance, who was.32 The introduction of mandatory price and wage controls in October 1941 necessitated the change, for retail commodities were subject to the price ceiling, implemented by the minister of finance.33 At the top of the WPTB, Hector McKinnon, who had appointed Stewart, was eased out as chair and replaced by Donald Gordon, deputy governor of the Bank of Canada. Stewart was probably among those ‘senior businessmen’ who, like McKinnon, believed that retail price controls were both unnecessary and unnecessarily draconian, as well as unworkable.34 McKinnon’s experience as chair of the tariff board had taught him that retail prices were better controlled indirectly, through regulation of import trade and manipulation of wholesale prices. This, however, was not the view of the central bankers and the bureaucrats at Finance. The minister, J.L. Ilsley, wanted McKinnon, but not his policy; the adoption of the ‘price ceiling’ in the autumn of 1941 forced McKinnon’s departure.

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Thus a banker became chair of the WPTB, and McKinnon got the presidency of the Commodity Prices Stabilization Corporation Limited, which allowed him to continue to do what he thought the WPTB should be doing, with little or no interference from his replacement. Stewart was different from the sort of lawyer that Donald Gordon wanted (‘“send me a list of a dozen lawyers across the country, lawyers who don’t give a damn about the law, just want to get things done ”’35). Although Stewart’s relations with Gordon, twelve years his junior, were neither as close nor as friendly as they had been with McKinnon,36 his position as coal administrator was unaffected – an indication perhaps of the mutual esteem between him and Ilsley. There is no evidence that Gordon wanted, much less tried, to displace Stewart, despite their philosophical differences and personality clash. Although Stewart cared deeply about the law, he was certainly a lawyer who got things done. Gordon could not afford to dispense with the services of someone who knew more about administering coal than Gordon did about controlling wartime prices and trade. Yet Gordon was the new broom, a central banker brought in to enforce a policy developed in the Bank of Canada and ‘sold’ to Finance. With the transfer of the WPTB from Labour to Finance, the new chair was in a better position to administer the new policy than his predecessor had been even to continue administering the old one. By the end of 1941 the entire coal industry effectively lay under the control of the coal administrator; Stewart had become a wartime industry contoller in everything but name. K.W. Taylor, secretary of the WPTB and Gordon’s eventual successor as its chair, wrote: Here the main task has been a precautionary one. The whole of Central Canada and its war programme is heavily dependent upon imported coal. Everywhere industrial consumption has increased enormously, railway consumption has nearly doubled, and we have to supply large bunkering [fuelling] requirements at Eastern Canadian ports. The main task of the Coal Administrator is to keep a constant watch on coal supplies, to see that reserve stocks are continuously maintained, and to see that they are always available exactly where they are wanted. To do this he has set up a complete licensing system of all producers, importers and distributors, with daily or weekly reports relating to the larger movements of coal and monthly reports from all the smaller dealers. This supervision of supply has led him into fields as diverse as labour relations on the one hand, and consumer buying habits on the other. He has played a large part in bringing about the wage agreements and cost of living bonus system which

Coal Bed of Procrustes 133 operate in the Western Canada coal fields.37 He has been successful in greatly increasing the summer delivery of coal with a view to reducing the excessive strain on railway transport in the winter months. The Coal Administrator also keeps a watchful eye on prices. In some communities coal dealers have apparently got together and agreed to exact higher margins of profit from the consumer. In one of the more glaring cases of this sort the facts were placed before the Commissioner of the Combines Investigation Act, who made an immediate investigation, the result of which was that normal competitive conditions were restored and prices to consumers appreciably reduced.38 The publicity attaching to this action has had a very salutary effect in other communities.39

Stewart’s method of forestalling labour problems in Alberta and BC coal mines was different from Nova Scotia and more successful; it was not until after he ceased to be coal controller in July 1943 that the modus vivendi that he had reached with UMWA District 18 (western Canada) fell apart.40 In January 1940 Stewart had gone on a tour of inspection of the western coal-fields, visiting Winnipeg, Regina, Calgary, Vancouver, and Edmonton, and he invited the president and the secretary of UMWA District 18 to meet him in Ottawa in February with a view to conciliating the miners.41 This degree of personal contact and personal knowledge enabled Stewart to negotiate a trail-blazing wage-stabilization agreement, approved by both government and miners, which made wage rates subject to quarterly adjustment, according to rises in the cost of living – an early example of index-linked salaries.42 As a result, there were no strikes or slowdowns in the western coal-fields until 1943. If his first two years as coal administrator had seemed to Stewart a continuous series of crises, then 1941–3 saw a deepening and diversification of them. In the months following the end of the slowdown in Cape Breton in September 1941, coal shortages dominated his agenda. The supply problem had now become one of a lack of the skilled labour needed to work the mines; but the rate of production was still falling increasingly behind the volume of use, especially domestic use. In 1941 the Battle of the Atlantic had terminated coal exports from Britain, while U.S. entry into the war in December, coupled with labour unrest in the midwestern U.S. coal-fields, seriously affected exports to central Canada, where demand was greatest. On 3 June 1942 Stewart issued a statement ‘that the coal situation in the United States is serious and that Canada depends for 60 per cent of her consumption on the United States.’43 That was too much for Clarie

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Gillis, CCF MP for Cape Breton South (and a former coal-miner), who was Stewart’s most knowledgeable and persistent parliamentary critic. Two days later, Gillis stated to the House of Commons his opinion that the coal administration in particular had ‘wholly fallen down on the job and there is a serious situation developing in Canada as regards fuel.’ Coal mines both east and west, charged Gillis, were on reduced hours, while the coal administrator was warning people in Quebec and Ontario that coal for domestic home-heating might have to be rationed. Although railway transport – itself dependent on coal for fuel – remained problematic, the supply problem, especially in the west, was the result of a production shortfall, in turn a direct effect of the continuing loss of skilled manpower. Whatever Gillis thought of Stewart’s attempts to address the effects of the shortage rather than its causes, throughout the summer of ’42 the coal administrator ‘issued emphatic and repeated warnings of a possible shortage, urging consumers to take delivery of their winter coal during the summer months and offering through the banks special arrangements for financing such purchases.’44 If the rate of production was to be accelerated so that it could cover the shortage, whether actual or anticipated, then the coal mines would need more skilled labour.45 By October 1942 Stewart submitted his first report on the manpower problem, which had become critical in western Canada’s coal-fields in the summer.46 Early that same month an advisory coalmine labour committee was set up under National Selective Service to review the situation.47 By November Stewart was advising the minister of finance that ‘a national emergency exists in respect of the production of coal ... and that measures [should] be taken to stimulate the production of coal and to ensure an adequate supply thereof.’48 It was a measure he had been advocating long before the production emergency arose.49 The response of the Cabinet War Committee was to establish an Emergency Coal Production Board (ECPB), with the coal administrator as ex officio chair and two ordinary members, one of whom was Graham Towers, governor of the Bank of Canada. Stewart’s good relations with UMWA District 18 prompted him to try to obtain the services of Angus J. Morrison, the district secretary-treasurer. Although illness prevented Morrison from accepting the invitation, Stewart was able to recruit in his place Charles Ewen Payne, a board member for District 18 and former union organizer for the Alberta Coal Branch. Payne’s appointment made history; he was the first representative of big labour appointed to a wartime industry control board.50 The ECPB had ‘wide power to deal with the entire coal mining industry, since it is a vital war industry,

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caught in the mesh of a complicated crisis involving Canadian industry and civilian heating, U.S. industries and strikes, shipping, and GreatBritain’s man-power difficulties.’51 The powers of the ECPB were draconian and amounted to quasinationalization of the coal industry. The perhaps-too-great restraint that Stewart was to exercise in his use of them over the seven months of his inaugural chairmanship meant that the board was less successful in stimulating the production of coal than in further subsidizing uneconomical coal-mining companies, in particular Dosco’s subsidiaries.52 Where coal administration gave Stewart broad supervisory powers over the industry, emergency coal production gave him direct control over the mines. The ECPB could open, reduce, or shut down mines; prescribe operational policy and production methods; grant financial assistance to mining companies; guarantee the repayment of loans made to mining companies by financial institutions; conduct inspections and governmental investigations of mines and mining companies; suspend laws or regulations affecting conditions of employment in coal mines;53 compel operators to introduce production incentives; appropriate coal products for sale; expropriate company land, buildings, and equipment; and compel adherence to industry standards and practices as approved by the board. Anyone disregarding or violating an order of the board was liable to summary conviction under the Criminal Code; even the directors and officers of offending companies were personally liable as accessories before the fact. In the ECPB, government control of the coal industry reached its zenith. If the ECPB subsidized coal mines in eastern Canada, then in western Canada, where Dosco had no coal-company subsidiaries, it played a more entrepreneurial role. Among the initiatives that the board wholly financed were six new strip-mining operations in Alberta and the reactivation of a large one in southern British Columbia. Despite these efforts, coal production declined by 5 per cent in 1943.54 At the root of the problem lay the worsening shortage of skilled labour, caused by the exodus of miners to enlist in the armed forces. Securing an adequate supply of coal and its natural by-products meant expanding domestic production, which in turn meant increasing the supply of skilled labour. The ECPB’s efforts foundered on its inability to keep coal-miners in, or deliver them back to, the mines. It was not possible to stimulate production without an adequate and stable skilled labour force. The supply situation continued to deteriorate during the winter of 1942–3. As neither the WPTB nor the minister of finance had any respon-

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sibility for, or authority to deal with, industrial manpower, some new arrangement had to be devised. Early in January 1943 Stewart was in Washington to discuss Canadian requirements of American coal for the coming year.55 Then on 9 February 1943 the minister of finance announced in the House transfer of responsibility for coal to the Wartime Industries Control Board (WICB) in Munitions and Supply. The change (the start of Stewart’s phase III) became official on 5 March.56 Stewart’s final weekly progress report, on 26 February, indicated no further developments in labour and supply – the two most pressing problems.57 The Wartime Industries Control Board (WICB), established in June 1940 and reconstituted with greater and better-defined powers in August 1941, consisted of twelve (ultimately seventeen) controllers from outside the civil service, acting as supremos over ‘supplies’ – goods and services deemed essential to supporting what Desmond Morton has aptly described as Canada’s ‘total war at home.’58 The WICB ‘controlled’ every commodity that the WPTB did not ‘administer.’59 Armed with orders-incouncil issued under the authority of the War Measures Act, these Orwellian controllers were unpopular with the parliamentary opposition, both Conservative and CCF. The perception that Canada’s war economy was in the hands of a very exclusive club of corporate capitalists, lawyers, and financiers created political irritants for the national government.60 That the WICB ‘controlled’ all industrial fuels except the most important – coal – was the ostensible reason for creating coal control and merging coal administration in it. The changeover was more administrative-political than substantive; Stewart found himself reporting to a different minister on the Cabinet War Committee. The real aim, however, was to manoeuvre coal away from Finance – and that meant prying it loose from the WPTB and Donald Gordon, scarcely less an empirebuilder than C.D. Howe himself. Although coal-mining had been declared essential in June 1941, coal was the only ‘supply’ essential to wartime industry over which the minister of munitions and supply had no control.61 In operational terms the fact that coal lay outside the purview of wartime industries control was anomalous mainly on its face. Coal was required for both industrial and domestic use, and since 1941 Stewart had been exercising most if not all of the powers now officially conferred on him as coal controller.62 For C.D. Howe this was an unacceptable state of affairs. Although his Munitions and Supply had no responsibility for or authority over labour supply, neither did Finance;

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and the department that did – namely, Labour – was not represented on the Cabinet War Committee. Although there was never any question of the WPTB’s leaving Finance, coal’s departure was another matter. During the unusually severe winter of 1942–3, its transfer to the supply side of Munitions and Supply was a reasonable compromise. The coalproduction emergency was really about labour supply. Coal therefore went from being essential to wartime industry to being a wartime essential industry, and Howe’s empire was complete. From the day (5 March 1943) Munitions and Supply took over coal administration, Stewart seems to have been on sufferance; he was not one of ‘Howe’s boys,’ nor was he, except very briefly, a member of ‘The Munitions and Supply Gang’ (Peter Newman’s phrase). It is entirely possible that Howe bore a grudge against Stewart in connection with the Winnipeg cordite plant affair of February–March 1941. Howe was severely embarrassed in the House of Commons by a maverick Liberal MP who revealed that the president of the Allied War Supplies Corporation, who answered directly to Howe, had deceived the coal administrator over a directive from him to power the plant with lignite rather than bituminous coal.63 In any event, no sooner had Stewart agreed to stay on as coal controller than Howe began his ‘attack.’ As coal administrator under the WPTB, Stewart’s powers had steadily increased; however, as coal controller under the WICB, they steadily declined. In April 1943 the associate co-ordinator of controls in the WICB was appointed a permanent member of the ECPB;64 in May responsibility for wood fuel, which Stewart had held since June 1941, was removed from coal control and conferred on a wood fuel controller; at the same time, appointment of an associate coal controller was authorized.65 The circle was closing. Howe seemed determined to bring Stewart to book, by insisting on the one thing that he knew Stewart was neither willing nor able to do – move to Ottawa. To the argument that Ottawa residence was not a condition of employment – not all of the wartime industry controllers lived there, although most who did not do so lived in central Canada – Howe could have replied, with some justification, that coal was the most complex, demanding, and important of all the controls. Therefore, by way of preparing the ground for Stewart’s removal, Howe contrived to surround him with men of his own choosing who would help the coordinator of controls (the chair of the WICB) run coal control behind the coal controller’s back. Nor did Howe hesitate to interfere in Stewart’s other avocations. Even before the transfer of responsibility from Finance to Munitions and Supply, he was telegraphing the chair of Nova Scotia’s

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Public Utilities Board to ask for postponement of an important hearing at which Stewart had to appear as general counsel for Nova Scotia Light & Power, so that Stewart could remain in Ottawa for the formal inauguration of coal control on 5 March 1943.66 To make matters worse, the crisis in Stewart’s relations with Howe came to a head during that over coal supply. The former reinforced Howe’s conviction that the latter could not be resolved unless and until the coal controller became a full-time public servant. And that meant his moving to Ottawa, not commuting from Halifax. Stewart was not prepared to make any further concessions. In April, worn out from travel and stress and overburdened with too many, and too many different and competing, obligations, Stewart offered to resign; Henry Borden, chair of the WICB, would have none of it.67 Remaining as coal controller left Stewart with no alternative but to resign as chair of Dalhousie’s board of governors – a drastic step, taken very reluctantly, that upset the delicate balance between the university and Angus L. Macdonald (now a member of the Cabinet War Committee) and put the board on a collision course with the university’s meddlesome and inflexible president.68 Now that he ‘had’ coal, Howe meant to do something with it. On 4 May he sent to the clerk of the Privy Council a six-page letter warning that the coal supply crisis ‘could lead to a complete breakdown of the Canadian economy’ if immediate action were not taken to return miners to the mines in order to increase production.69 The letter, drafted not by Stewart but by Henry Borden, was circulated within the Cabinet War Committee and tabled at its weekly meeting the following day. It was the clearest indication thus far that the ECPB, in its first six months, had failed to maintain the level of coal production, let alone raise it, and that its chair did not enjoy the confidence of his minister. A committee, chaired by Stewart, to study the industry’s manpower requirements was set up and reported with recommendations on 11 May, but differences within the Cabinet War Committee, especially between Howe and the minister of defence, Ralston, pushed the matter to the full cabinet.70 Howe made his principal point, but not to the extent of carrying out the ‘drastic measures’ he was proposing to meet the crisis. Then on 17 May the prime minister rose in the House of Commons to table an order-in-council authorizing the proclamation of a state of national emergency ‘in regard to the production of coal in Canada.’71 It was a small price to pay for keeping Howe in the cabinet, from which he threatened to resign if action were not taken. The ruse – or blackmail – worked, just as it had in July 1941, when Howe ‘resigned’ during the strike at Alcan’s Arvida smelter.72

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On 18 May the minister of labour tabled another order-in-council, providing for the return of skilled labour to the coal mines.73 As acute as the shortage had been over the winter of 1942–3, far worse was anticipated for the winter of 1943–4. The ECPB lacked authority to do the one thing it had to do: draft coal-miners out of the armed services and other industries, return them to the mines, and keep them there.74 The blizzard of orders-in-council could not disguise the fact that government lacked a coherent manpower policy, just as it did a national policy on coal. There was no consensus within the Cabinet War Committee, or within the cabinet itself, over the competing demands for manpower of the armed forces, agriculture, and coal-mining. Moreover, the crisis in coal production in the spring of 1943 proved an indirect precipitant of the conscription crisis in the summer and autumn of 1944. The shortfall in armed services enlistment had to be made up, so conscription returned to the agenda of the Cabinet War Committee. On 11 June, during Commons debate on war appropriation for his department, Howe made a lengthy statement regarding each individual industry controlled by the WICB. Though conceding that ‘coal is one of our most pressing supply problems,’75 he gave no indication that the crisis was reaching its peak. A program of conservation was already under way. If crisis there was, it was primarily a matter of confidence in the coal controller’s ability to manage supply to the minister’s satisfaction. ‘It was in the midst of this,’ according to Saturday Night, ‘that able James McG. Stewart, the first Coal Controller, had to return to his business in Halifax.’76 The truth, of course, was that he had never left it and on that account was being forced to vacate his job in Ottawa. The system of delegated responsibility found favour neither with the minister nor with the chair of the WICB. A deputy and an associate controller in Ottawa issuing orders from Ottawa in Stewart’s name could not compensate for the controller’s absence. Stewart was only occasionally able to attend the WICB’s every-other-Wednesday meetings, since the fortnightly meetings of the ECPB (which he chaired) took precedence. Stewart was a part-time employee in an increasingly demanding full-time job. For Henry Borden, the last straw was Stewart’s refusal to come to Ottawa ‘for a month’ to sort things out. Stewart attended his third and final meeting of the WICB on 5 May. The meeting on 2 June resulted in the setting up of a committee on coal distribution chaired not by Stewart or an official of coal control but by the associate co-ordinator of controls, Gerald Godsoe.77 At a meeting on 3 June, Stewart opposed as dangerous expediency the idea of coal rationing, which both Borden and Godsoe

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favoured.78 Since they could neither increase domestic production or imports nor reduce demand for coal as an industrial fuel and raw material, Munitions and Supply decided to try to lessen domestic consumption. The atmosphere of crisis was intensifying. On 3 June a general strike by U.S. coal-miners ended when they were ordered back to work by the president. Despite mounting difficulties, a general strike of Canadian coal-miners never threatened. Stewart’s continuing absence from Ottawa, however, meant that Borden, as chair of the WICB, had a convenient pretext for involving himself and his associate, Godsoe, much more closely in the work of coal control. Borden felt that he was the acting coal controller. Stewart, irritated that Borden and Godsoe were using his absences in Halifax as an excuse to meddle in the work of coal control, found the WICB and Munitions and Supply a far less congenial working environment than the WPTB and Finance had been. Worse still, the men in immediate charge were youthful and inexperienced know-it-alls, while he had been doing the job satisfactorily for nearly four years. Stewart’s faithful deputy, Neate,79 was on sick leave, and Stewart himself was growing impatient as Borden and Godsoe busily arrogated coal control to themselves.80 By mid-June at the latest Henry Borden made up his mind and convinced Howe that Stewart must go – and the sooner the better.81 Stewart chaired his seventeenth and last meeting of the ECPB on 24 June and seems to have left Ottawa immediately. Five days later Howe wrote Stewart a ‘personal and confidential’ letter: Dear Jim: I am very sorry indeed to learn that you left Ottawa before you and Henry Borden had straightened out the relations between the Coal Control and the Co-ordinator’s organization.82 It is most important that the Coal Control be brought into complete harmony with the Department, having in mind that the situation next winter is precarious every possible effort of this Department must be brought to bear in an effort to avoid disaster. In your absence from the City [Ottawa] we find it most difficult to keep in contact with your Branch [sic]. We are not able to get satisfactory statistics, such as will enable us to follow up the manpower situation. Mr Borden, who is responsible to me for [the] satisfactory operations of all controls, states that he can no longer be responsible to me for the operations of the Coal Control. You will appreciate that this leaves me in an impossible position ... I have told you that I have no desire to make a change in the direction of the Coal Control, but I think I made it clear to you that we do not have confidence in your deputy,

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Mr Neate, as one capable of operating the Control in your absence. In my opinion, the Office of Coal Controller requires the full time service of a man with proven executive ability. I am well aware that you have given a great deal of time to the Control and I also know that your many private responsibilities will not permit you to give full time service. In the circumstances, I reluctantly come to the conclusion that the situation requires that you make way for a man on full time. No reflection is intended on the manner in which you have operated the control to date. It is simple [sic] that the situation has changed in that we do not feel safe with other than a Controller able and willing to give full time to the service. I hope that you will not be offended with my suggestion that this would be an appropriate time to resign as Coal Controller. There is no change in my admiration for your business ability, which has been so amply proven in many direction[s]. It is just that the present situation demands full time attention. I sincerely hope that you will accept this letter in the spirit in which it is written.83

When Stewart received this letter he immediately submitted his resignation, ‘to take effect as soon as possible.’84 On 2 July, in anticipation of Stewart’s resignation, the appointment (which he himself had recommended) of Ian M. MacLaren, president of the Canadian subsidiary of a large American coal company, as associate coal controller – a new position – was made official.85 The press release, issued from Munitions and Supply on 6 July, read in part, ‘The Minister expressed his regret at the resignation of Mr Stewart. “Because of the seriousness of the coal situation, the pressure of work on the Coal Controller has been steadily increasing,” he said. “It is a task which now requires full time attention, and for business reasons Mr Stewart is unfortunately unable to give his full time. His resignation will prove a loss to the Department.”’86 Stewart had lasted four months, two less than H.R. MacMillan, the original timber controller, who was forced out in December 1940 for conspiring to have Howe removed as minister of munitions and supply.87 Henry Borden had a successor to Stewart in mind,88 as did Stewart himself,89 but the minister took a longer view. Whereas Stewart looked to coal control, and Borden to the WICB, Howe thought that he should come from the munitions side of Munitions and Supply. He chose the director-general of the Ammunition Branch, Ernest John Brunning, an electrical engineer by profession and president of Consumers Glass Company of Montreal. Not only had ‘Ernie’ Brunning served in the department from the beginning; he was an ace troubleshooter, in whom Howe reposed such confidence that he had dispatched him to Hamilton to take

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over the National Steel Car (Nasco) plant in April 1941 when an industrial relations dispute threatened to shut it down.90 The new broom swept clean. The ‘net result’ of Brunning’s first year as coal controller and chair of the ECPB ‘is that the coal crises in Canada are past. Numerous existing – and projected – headaches no longer constitute an emergency mess.’91 ‘Since early July,’ Stewart wrote his New York bookseller, ‘I have been having a real rest. I resigned as Coal Controller on July 3rd & have reverted to the work I like best – practising law.92 The coal job had become very irksome and some of the associations very uncongenial indeed. The result has been a great gain to me without any loss to the country because they have a better man in the job now.’93 Perhaps it made sense to have a professional engineer running the coal industry. Stewart, moreover, a civil libertarian, would not have condoned the government’s approach to the industrial relations crisis in the summer of 1943, which culminated in an order-in-council prohibiting strikes and lockouts in coal-mining for the duration of the war.94 The order nevertheless failed in its immediate goal of preventing an all-out strike in western Canada, where nearly 10,000 miners went out for two weeks in November. This was the natural outcome of Howe and Brunning’s policy, for they were both hawks on labour, while Stewart, by comparison, was a dove. Brunning, although he had entered government service after Stewart, was one of ‘Howe’s boys’ – an ‘M & S’ insider. Despite departing peremptorily and under a cloud, Stewart was one of 46 Canadians created a Commander of the Order of the British Empire (CBE), Civil Division, in the King’s New Year’s honours list for 1944 – ‘for distinguished wartime service’95 – the same award his uncle, Dr John Stewart, received in 1919 for his distinguished service in the Great War. Responding to Frank Covert’s letter of congratulations, Stewart remarked that he was ‘greatly surprised that anything should have come. I can only ascribe it to the kindly thought of Ilsley. Certainly it was not Howe or the P.M. [King] or Angus [Macdonald].’96 Denying Clarie Gillis’s suggestion (clearly apropos Stewart) that the dollar-a-year men’s first loyalty was to their ‘private concerns,’ Ilsley stated to the House of Commons, two days after Stewart’s resignation was announced, that ‘many men who have joined the government service in wartime have made great sacrifices.’97 There was no denying that Stewart had done so. The four years had aged him a dozen. Nor could he resume his post as chair of Dalhousie’s board of governors; his sudden and unavoidable resignation two months earlier had created monumental difficulties for

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all concerned and had weakened a university already atrophied by the war. Stewart’s dismissal, moreover, seemed like vindication of Gillis’s view that the coal controller and the coal company director were one and the same. Once a Dosco director, always a Dosco director. Stewart played no further role in the coal industry or in the councils of Dosco, except, of course, behind the scenes.98 His experience as coal administrator had taught him that the industry in eastern Canada was no longer economically viable. Dosco’s four coal-producing subsidiaries were too heavily subsidized to survive in the post-war world.99 The only future for Nova Scotia’s coal industry lay in public ownership, as witnessed by the Cape Breton Development Corporation (Devco), a federal crown corporation that took over Dosco’s coal-mining subsidiaries in 1968.100 This quasi-nationalization of eastern Canada’s coal industry had its beginnings in Stewart’s seven-month chairmanship of the Emergency Coal Production Board.

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PART FIVE Swansong

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10 Victim, Protégé, Master

In Nova Scotia he [Stewart] has something of the power, perhaps more, that Huey Long had in Louisiana. – Carleton Stanley, 1944

‘You think Stewart’s infallible!’ I replied swiftly – ‘Well, as far as I’m concerned he’s always been right.’ – Frank Covert, 1980

I well remember Jim’s meeting with Rudyard Kipling and how when I asked him whether he was disillusioned he replied: ‘No, on the contrary I was tremendously impressed.’ – Blake McInerney, 1960

carleton stanley Viscount Bennett – the former Conservative prime minister and longtime member of Dalhousie’s board of governors – was, during the war years, the greatest benefactor that his alma mater had known up to that time. Writing him in January 1945, Justice John Doull of the Supreme Court of Nova Scotia (a board member) explained the background of the successful conspiracy to overthrow the president of the university, an action that Bennett violently opposed: ‘J. McG. Stewart was Chairman for some years and no one knew of any open break between himself and

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the President, yet relations were such that this former Chairman is the mover of the resolution which has given rise to the present situation. He is the active spirit in the attack.’1 The resolution had not only been moved by the ‘Ex-Chairman,’ but also drafted by him; it called for the resignation of Dr Carleton Stanley, president since August 1931. Three days before Doull wrote Bennett, on 23 January 1945, a special meeting of the board attended by twenty-four of its thirty-three members voted eighteen to five to demand the president’s resignation; two weeks later, Stanley submitted it. Carleton Stanley,2 three years older than Stewart, was likewise a selfmade man. Both had graduated from their respective universities – Toronto and Dalhousie – with the governor general’s gold medal, Stanley having gone one better than Stewart by achieving a first in ‘Greats’ (literae humaniores) at Oxford. Before Stanley went to Dalhousie he had been for six years professor of classics and Greek at McGill; indeed the two philologues, the holder of a chair and a former tutor, occasionally quoted ancient Greek literary texts in their letters to each other. Although Stewart began his career as a university teacher, Stanley regarded Stewart as a talented amateur – ‘an addict to the Classics’ – not an accomplished professional like himself. Stewart, who was a governor of Dalhousie when Stanley was appointed president, had early taken Stanley’s measure. Stewart became chair of the board in July 1937; replying to Premier Angus L. Macdonald’s fulsome letter of congratulations, he observed, ‘What I am going to try to do is keep the College’s nose clean and its laundry operations in the basement. I believe that Stanley’s chief weakness is in tactics and not in ideals or objectives. If that is so, the outlook is by no means discouraging.’3 Despite their differences, the conflict between Stewart and Stanley was more one of character and personality than of ideology. Though never friends and often in disagreement about university affairs, especially after the outbreak of war in September 1939, they were not public enemies until the coup plot was revealed in October 1944. Stanley was a liberal democrat with a Christian Socialist’s conscience, while Stewart believed that university teachers, especially administrators, should be seen but not heard outside the Senate room. They should stay well away from issues to do with political economy, especially the politics of social action, on which Stanley was overprone to comment publicly and for which he received extensive coverage in the press, both local and national.4 Stanley, a long-time friend of the historian-gadfly Frank Underhill,

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was in the vanguard of Canada’s intelligentsia. Stewart would not likely have agreed with, nor been pleased by, Arthur R.M. Lower’s assessment of Stanley (in 1967) as one of ‘the fellows ... moving off the stage, after having had their say, and a good say, in the building of modern Canada. I think of Vincent Massey, Frank Underhill, Carleton Stanley, the late Charles Cochrane, A.L. Burt, the late Walter Sage, ‘Mike’ [L.B.] Pearson.’5 Lower, who was visiting professor at Dalhousie in 1937–8, knew whereof he spoke: In those [pre-war] days Carleton Stanley was president, and for some reason that I could never discover there was a section of the staff with which he was extremely unpopular. Others were his strong supporters, among them my good friend George Douglas, the geologist, and crusty old Herbie [H.L.] Stewart [professor of English]. As Stewart put it, ‘Some say this about Stanley, some say that. But I say he is on the side of education, which is more than can be said about many a university president!’ Stanley was always very kind to me and the Stanleys to us, so his unpopularity remained a mystery.6

Stewart held very decided, ad hominem views on a subject about which the president believed that the board should hold no opinion whatever: the hiring, promotion, and termination of faculty and staff. ‘It is obvious, of course,’ declaimed Stanley to the board during the final crisis, ‘that while he is President, the Board will approve his recommendations about appointments and promotions.’7 Nothing could have been less obvious to Stewart, for whom the board did not necessarily approve the president’s recommendations about anything, particularly academic appointments. Dalhousie was not the University of Toronto that Stanley had known both as undergraduate and as teacher, where the presidential prerogative was entrenched in the university’s governing act. When R.A. MacKay, holder since 1926 of the Eric Dennis Memorial Chair of government and political science, published in Maclean’s in October 1931 a stinging indictment of the hypocrisy and unethical behaviour of political parties in and out of government,8 Stewart insisted that MacKay be dismissed. According to Stanley, As I travelled here [Halifax] from Montreal, I read accounts in the newspapers of the Beauharnois [Power Corporation] scandal. Immediately after that, a Dalhousie professor wrote about the matter in public; and in my first conversation, after August 3 [1931],9 with Mr. Stewart, he strongly advised me to dismiss that professor, saying that if we did not we should lose a large amount of money. I

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answered, ‘If anyone wants to call a meeting even to discuss dismissing that professor, the meeting will have my resignation also. I have read the article the professor wrote, and I see nothing wrong in it, and quite a bit that is right.’ We did not dismiss the professor and we did not lose the money.10

For Stewart, professorial journalism on the Beauharnois scandal struck too close for comfort. As a director of Canada’s Royal Bank, Stewart was associated with bank president Sir Herbert Holt’s Montreal Light, Heat and Power Company, which was acquiring control of the Beauharnois Power Company.11 The chairman of the board, G. Fred Pearson, had been MacKay’s real defender in 1931.12 Pearson, a Liberal lawyer who entirely lacked Stewart’s political acumen and savoir faire, did not properly ascertain the opinion of the governors before trying to procure Stanley’s dismissal in 1932.13 Pearson’s fatal misjudgment was that a faculty or Senate revolt against the president availed nothing, even though connived at by the board chair. The chairman needed the support of an absolute majority of board members, from which the full-time academic staff was excluded by statute. The intrigue culminated in Pearson’s resignation, not Stanley’s dismissal. Stewart, a fairly junior member of the board, supported the president against the chairman and his faculty followers. Pearson had to resign, not only from the chair but also as member of the board; treasurer Hector McInnes replaced him, and Stewart was rewarded with the vicechairmanship, which had lain in abeyance during Pearson’s short reign.14 Stewart showed his appreciation by attempting unsuccessfully to dragoon the neophyte president into dismissing the four professors who were implicated in the Pearson intrigue.15 By 1944–5, the president had more authority and responsibility than real power, and he had influential enemies both within and outside the university. Stewart quickly took the measure of the naive and inexperienced governor who replaced him as chair in May 1943, then placed him at the head of a carefully selected cadre, on whose loyalty and silence he could depend absolutely. Between late September 1944 and late January 1945, the palace revolutionaries, with Stewart ‘leading from behind,’ slowly but surely widened their base of support. The constitution and powers of the board of governors and its executive committee were regulated by the Dalhousie College Act, enacted in 1935 when Stewart was midway through his five-year tenure as vicechair.16 Next to the chair in order of precedence sat President Stanley, who (though not an officer of the board) was an ex-officio member of the

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executive committee as well as of the board. During his presidency the board was not only ‘a huge cooptative body,’17 but also an incestuous one. Hector McInnes, for example, Lord Beaverbrook’s Halifax lawyer, who had been solicitor to the board, then successively its secretary, treasurer, and chair, was senior partner in the law firm that remains the university’s solicitors to this day. McInnes, who died suddenly in June 1937, had five years earlier been replaced as treasurer (and as president of Eastern Trust, the university’s fiscal agent) by F.B. McCurdy, stockbroker extraordinaire. McCurdy, who had been president of Trinidad Electric, of which Stewart was general counsel, was the brother-in-law of G. Fred Pearson, whom McInnes replaced as chair in 1932, when Stewart became vice-chair. Twenty-two of the board’s thirty-three members in 1944–5 were orderin-council appointees nominated by sitting members. Stewart, for example, in April 1938, less than a year after he became chairman, nominated his friend and colleague Colonel C.H.L. Jones, president of Mersey Paper, of which Stewart was vice-president. For half a century the university’s board had been largely peopled, and exclusively run, by corporate lawyers, promoters and financiers.18 Stewart was even more influential as chair emeritus (1943–55) than latterly as chair, when his obligations as coal controller had preoccupied him. No previous ex-chair ever exercised such personal authority as brinkman and power-broker. Like Sir Edward Beatty at McGill, Stewart ‘was a man of unusual force of personality, a strange mixture of the pragmatic, indeed ruthless, business executive and community-conscious idealist.’ In a period when Dalhousie lacked an effective chair to counteract an allegedly unbalanced president, it was natural that Stewart ‘should step into the breach and exercise his own brand of benevolent dictatorship.’19 Although he absented himself from board meetings for a decent interval after Stanley’s firing, Stewart gradually resumed his former place. In February 1946, to prevent a recurrence of the Stanley affair, Stewart drafted a memorandum closely defining the powers of the president, which the board adopted after revision.20 In June 1946 Stewart became chair of a new, enlarged and improved campaign committee, which organized the three-year Dalhousie Expansion Appeal. ‘I am in the midst of a campaign to raise as much as possible of a $3,000,000 budget required by my old Alma Mater, Dalhousie University,’ he wrote in May 1947. ‘The general chairmanship was really forced on me and for the past 3 months I haven’t “come up for air”.’21 In December 1949 Stewart became chair of the Liaison Committee with

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King’s College and rejoined the executive committee after an absence of six years. In 1952 he temporarily replaced F.B. McCurdy as chair of the finance committee, having become vice-chair on the retirement of G. MacG. Mitchell in 1946. Reappointed to the board in 1948 and 1954 for his fourth and fifth consecutive six-year terms, Stewart remained its doyen throughout the first post-war decade.22 Indeed the very fact that another vice-chair was not appointed until shortly after Stewart’s death in 1955 suggests that the ‘post’ of chair emeritus (if Stewart occupied it) was weightier than any formal office. When the vice-chair was reactivated, it was filled by yet another of Stewart’s innumerable protégés.23 In November 1949, Stewart laid the cornerstone of Dalhousie’s new Arts and Administration Building, the largest construction enterprise the university had ever undertaken.24 Although the idea was Stanley’s, he got no credit for it. Stewart’s brief, eloquent speech omitted Stanley from the roll-call of presidents: Next our thoughts turn to that group of great Dalhousians who, during the first three decades of this century, saw the vision of Dalhousie on this Studley Campus and devoted their time, their energy and their courage to converting that vision into a reality. Their leaders included Rev. John Forrest [1885–1911], Dr A. Stanley Mackenzie [1911–31], two great Presidents, and George S. Campbell [1908–27], G. Fred Pearson, K.C. [1928–32] and Hector McInnes, K.C. [1932–7], three successive Chairmen of the Board of Governors, all five of them, alas, now gathered unto their fathers.25

For Stewart, the history was too recent. If to his admirer Lower, Carleton Stanley was a builder of Canada, then to his nemesis, Stewart, he was a subverter of Dalhousie’s traditions. Two ‘great presidents’ had been followed by an inferior one, who was alive and working elsewhere but whose contribution to the university over a thirteen-year period of severe economic depression and world war did not merit acknowledgment. frank covert ‘It is exactly twenty-eight years ago to-day,’ wrote Frank Covert to Elizabeth Stewart on 13 February 1955, ‘that I was taken into Mr Stewart’s office by my late uncle to meet and to become articled to Mr Stewart.’26 Walter Harold Covert (1865–1949), the influential corporate lawyer with whom young ‘Frankie’ resided throughout his five years at Dalhousie, and whose daughter, Mary Louise Stuart (‘Mollie’) Covert, he was to

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marry in 1934,27 was acting as his fatherless nephew’s unofficial guardian. ‘He said,’ according to Covert’s memoirs, ‘“If you article with me and do poorly, people will say ‘he couldn’t even do well with his uncle’s help,’ and if you do well, they’ll say ‘why wouldn’t he with his uncle behind him’. So he took me over to meet a “young fellow by the name of James McGregor Stewart” and I became articled to him.’28 W.H. Covert gave his nephew a good start in the career that Frank’s mother had chosen for him by sending him to a bigger and better law firm and to a lawyer who was the best of the younger generation. Uncle Harry knew that Henry, Stewart, Smith & McCleave was the most progressive and entrepreneurial of the ‘downtown’ firms and that Stewart, then 37, was the fastest-rising star in the Halifax legal firmament. W.H. Covert was president of Nova Scotia Light and Power, and Stewart a new director. When Frank Covert, aged 19, became articled to him in February 1927,29 Stewart was within months of becoming head of his law firm. Stewart warned him against deferring to the wisdom of age: ‘Mr Stewart called me in and told me that Mr Henry had been singing my praises. I told him I just had lectures on these two things. He said, “I thought so” and laughed. He gave me some work to do, then he said, “Let this be a lesson to you; never accept an old man’s judgement of a young man. He is first surprised that the young man knows anything and then astonished when he finds out that the young man knows something that he, the old man, doesn’t”.’30 Articling, a three-year sentence, was pursued more or less concurrently with full-time legal study, and Covert was then in the final year of the arts course, which doubled as the first year of his three-year law course. He was too young to have known Stewart as the lecturer in sales or insurance at the law school, and there was limited professional contact between them until the 1928 vacation, when Stewart told Covert he had to spend the summer at the office. He added that Covert would be paid $11.50 per week – and that that was the first time an articled clerk had ever been paid.31 Stewart was absent on business when Covert reported for work on 16 May 1928 but soon returned – only to depart for Montreal early in June, no doubt to consult with I.W. Killam over the financing of Mersey Paper. Covert, to whom Stewart had shrewdly assigned the task of drafting model articles of association, was annoyed to discover that Stewart, after his return from Montreal, had used 80 per cent of them in the Mersey incorporation without telling Covert.32 Stewart, however, had in mind both greater responsibility and greater recognition for his

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prize clerk. He gave Covert the final draft of the memorandum and articles of association of the new company to read and comment on, and Covert made several emendations. ‘Stewart accepted all suggested changes in memo[randum of association],’ wrote Covert proudly, ‘and also new audit clause in articles.’33 Still better was to come: ‘Then he let me be one of the Incorporators [provisional directors] of the Mersey Co. Then we held the Directors’ meetings – great experience – awfully nice of Mr Stewart too ... Practically all day on draft of Co.’s minutes.’34 It was during this time that Covert first set eyes on the elusive Killam. Years later, when Stewart was indisposed, Killam got into the habit of issuing his instructions direct to Covert over the telephone. He would also ‘pump’ Covert for information about Stewart’s deteriorating health.35 Frank Covert and Mersey Paper constituted a marriage made in heaven; arranged by Stewart and blessed by Killam, it endured the whole of Covert’s life. There is no reason to doubt his belief that the incorporation ‘was when Mr Stewart first began to take notice of me.’36 When the paper mill opened in December 1929, Covert joined Stewart on the special train to Liverpool. So transparently Stewart-like would Covert become that when ‘The Boss’ sent him to Boston in January 1937 to draft an agreement of sale for thousands of acres of prime timberland worth over $1 million, not even Killam himself could tell the difference on reading the instrument. Killam remarked, ‘“That’s a fine contract. Where’s Jim?”’37 Stewart, who in 1928 became president of Killam’s Acadia Sugar, acted as advisory counsel to Nova Scotia’s Conservative government (1925–33) on corporation finance. In January 1930 he assigned Covert the task of drafting Nova Scotia’s ‘blue sky law.’ The Securities Fraud Prevention Act, which passed in April 1930 and stood for fifteen years, forms the basis of today’s Securities Act.38 The assignment reflects Stewart’s commitment to on-the-job training and bears out Covert’s observation, made fifty years later, that Stewart ‘took articling seriously.’39 Covert’s three-year term expired in February 1930, and he began to make preparations for his call to the bar, which came on Friday, 28 February. C.B. Smith presented Covert with the barrister’s gown promised when he had won the University Medal in Law. All three senior partners went up to the law courts to see Covert admitted.40 ‘When I was admitted to the Bar,’ Covert wrote in his memoirs, ‘Mr Stewart asked me where I was going to practise. I said I didn’t know but I thought I might go up to Kings County. He said that was too bad – they could use a lawyer. I said, “If you mean that, you’ve got a boy!”.’41 In December 1930 Stewart gave Covert an early Christmas present by rais-

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ing his salary (to $125 per month) and forgiving a fifty-dollar debt to the firm.42 Early in his career Covert was witness to the most sensational event in Stewart’s private life – his elopement and wedding. ‘J. McG. Stewart got married,’ Covert wrote parenthetically in his diary on 21 April 1931, not bothering to identify the new Mrs Stewart.43 Wilson of course resigned from the firm, where she had been employed longer than Stewart. After Covert became articled to Stewart in 1927, Wilson, more paralegal than legal secretary, seems to have been gradually displaced from her role as Stewart’s executive assistant. Covert could now monopolize his master’s affections. ‘Frank the young devil,’ Stewart wrote his then fiancée, ‘works nearly every night; but I think that the affair between him and Miss C is off completely.’44 The Boss found the time to write Covert a personal letter while on his wedding trip.45 For a junior associate to be assigned the task of answering the head of the firm’s mail during his absence was a rare honour. Yet when Stewart returned early in June, Covert complained that he ‘didn’t even say thank you for all the work I’d done for him let alone tell me I’d done a good job.’46 Eighteen months, moreover, elapsed before Covert was admitted to Stewart’s fashionable social circle; he first dined at ‘Braemar’ in October 1932 and the following New Year’s attended his first levee there, becoming ‘pleasantly plastered.’47 After Covert joined the firm, Stewart began to limit his own court appearances to high-level appellate advocacy. Busy with his corporate presidency (Acadia Sugar) and executive vice-presidencies (Mersey Paper, Nova Scotia Light & Power), Stewart needed a deputy, and the firm another corporate solicitor and would-be counsel. He was proud that his enthusiastic protégé ‘probably knew more about company reorganization ... than any lawyer in the Province.’48 Thus did Stewart create Covert in his own image. Although the most talented of the firm’s juniors was routinely ‘lent’ to Smith and MacKeen – the firm’s litigators – Stewart saw to it that Covert began early on to specialize in corporation law. ‘The boy’ (an ironically apt self-description) thereby grew into the man whom The Boss wanted him to be. It was from Stewart’s ordering of his career – for example, sending him unannounced to clients (even the great Killam) as his personal representative – that Covert learned ‘what a persuasive man Mr Stewart was.’49 Had it been up to Stewart alone, Covert would have become a member of the firm long before 1936. Although his future was assured in January 1931, when Stewart and Smith anounced the reorganization of their law firm to include Covert

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and two others as ‘associates’ (candidate members), his fellow seniors may have somewhat resented Stewart’s monopolization of the golden boy. Nevertheless, the head of the firm considered himself entitled to first choice among the articled clerks and juniors. But the head’s authority did not extend to promoting associates to membership, a process based on consensus and co-option. Under the ancien régime, the head of the firm (the longest-serving senior member) reigned but did not rule except by consent of the other ‘members’ of the partnership. As early as October 1932, Covert wrote in his memoirs, ‘Mr Stewart suggested to me that I might become a partner next year but there had to be unanimity. He didn’t bother discussing it [again] so I knew he didn’t “swing” it!’50 Although Covert did not become a member of the firm when Stewart and he hoped he would, the previous August he had obtained his first substantive directorship – Fish Meal Company Limited of Liverpool – of which he also became corporate secretary.51 Covert had already chaired directors’ meetings of various companies and represented Stewart (as solicitor) at the annual meeting of Mersey Paper in 1932, when Stewart was absent in England appearing before the Privy Council.52 Although Stewart could not on his own make Covert a member of the firm, he was able to provide a 40 per cent salary increase, which took effect in January 1934.53 This allowed Covert to marry his cousin Mollie, but he had to wait over a year for the other prize. Finally, while playing bridge with Stewart in December 1935 – appropriately enough at Uncle Harry’s 70th-birthday party – Covert learned that he would become a member of the firm on 1 January 1936.54 The following May, when his first child was born, Covert named his son Walter Michael Stewart. Five days later, Covert acquired his first important directorship – Minas Basin Pulp and Paper Mills Limited – which conflict of client interest prevented Stewart from accepting. Between 1934, when Covert began to do less and less ‘trial’ work and more and more ‘company’ (solicitorial) work, and 1940, Covert firmly established himself as The Boss’s right hand. Even delicate Stewart family matters, such as the administration ‘with will annexed’ of the executorless estate of Uncle John (who died in December 1933), fell within Covert’s purview.55 When his formidable mother came to town, Covert introduced her to Stewart – who told Mrs Covert that her son had given him a five-year vacation.56 Covert himself stated that he ‘really had ceased as a barrister and was a solicitor.’57 From as early as 1934 Covert was doing the solicitorial work for any company in which Stewart held an executive officership. Minas Basin

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was an exception only because of Stewart’s special relationship with Killam, who owned Mersey Paper and who would have bought Minas Basin had Jodrey accepted his offer.58 Another company that Killam owned and in which Stewart soon secured executive office was Acadia Sugar. Just as Stewart reorganized the company in 1925–6, so Covert reorganized it in 1939 under Stewart’s direction. The reorganization began on 1 August and concluded on 31 October: ‘Then to [Halifax] Club for Drink with the Boss.’59 Covert, having surpassed all others in Stewart’s esteem, had now surpassed himself. So pleased was Stewart that he arranged for Covert to receive not only a $500 bonus, but ‘also a further increase of one share in the firm’s Partnership dated back from 1st of year.’60 By the time the Acadia Sugar deal was concluded, Stewart was serving as coal administrator, and within ten months Covert would follow his master into government service. In August 1940 he joined the legal branch of the Department of Munitions and Supply as a solicitor and moved to Ottawa. There is no evidence that Covert consulted Stewart before accepting Henry Borden’s sudden and unexpected offer, nor is there any that Stewart disapproved; they usually met over lunch or dinner for good conversation whenever Stewart went to Ottawa on coal business.61 ‘I often look back,’ Covert reminisced some forty years later, ‘and wonder how I could have walked out of this firm [Stewart, Smith, MacKeen & Rogers] with such little notice and not have given a thought to what the firm would do by way of replacement. It was a pretty thoughtless thing to have done, but the firm never complained – at least not to me!’62 What Stewart did was to recall to Halifax the junior professor at the Manitoba Law School, Gordon Stewart Cowan, who would become Covert’s chief rival after the war. What Stewart, as head of the firm, could not have done was what Covert ‘thoughtlessly’ did – abandon the firm, which ‘during the war years ... was really “decimated”.’63 Frank Covert was the son that Stewart never had, and Stewart the father whom Covert had lost when six years older than Stewart was when he lost his.64 Covert articled with Stewart, adopted him as a surrogate father, worshipped him, acquired the files of Stewart’s major business clients, inherited most of Stewart’s directorships, and became head of Stewart’s firm eight years after his master’s death. In the fifteen years of his own reign, 1963–78, Covert adapted the Stewart tradition of egalitarianism and meritocratic élitism to the realities of a much fasterchanging world.

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rudyard kipling ‘For the past 57 years,’ Stewart wrote Rudyard Kipling’s daughter in February 1954, ‘I have been a worshipper at the shrine of your late father and a faithful collector of everything he wrote.’65 It was Elsie Bambridge who would be the only Kipling to set foot in Halifax.66 In 1897 Jimmy Stewart, aged eight, had lost his father. His mother did not remarry, and Stewart, the youngest of the family, found in Rudyard Kipling a surrogate. Stewart’s life-long hero-worship of Kipling, an obvious case of transference, therefore begins with the premature death of his father. Kipling’s writings nurtured the ‘inner child’ and compensated for the loss of the role model. Stewart’s earliest recollections of the handful of years before 1897 were of his father ‘in his tub singing Kipling’s poetry to Presbyterian hymn and psalm tunes.’67 Hearing Kipling’s verse recited or set to music perhaps affected his mature appreciation of Kipling and influenced his view of the writer’s historic popularity: ‘During the period 1890–1902 [Stewart’s first to thirteenth year], at least, Kipling was, without doubt, the most popular and widely read of all modern writers.’68 Small wonder that Stewart’s memories of his father were mediated to him through the writings, especially the verse, of Kipling, whom Stewart considered wisdom-poet and prophet, artist and secular saint. Furthermore, Kipling inspired and guided the adult. Kipling was his vade mecum in art, literature, and politics, in which Stewart’s intense anglophilia reflected Kipling’s quixotic imperialism. Stewart was doubtless referring to himself when he commented about the novel Kim: ‘I know of men who never travel without it; and of others who read it regularly once a year.’69 Addressing academics, however, he assumed a more critical tone: ‘It is too bad that he [Kipling] saw his plots in the little and could never become the author of a really great novel. With all its fine writing and background, Kim is not a novel in the ordinary sense of the term. It is more of a travelogue in which a few interesting characters are introduced.’70 The mature, self-made man of affairs nevertheless declared: ‘To me Kipling is one of the Immortals.’71 Stewart viewed collecting not as a mere hobby but as committed intellectual connoisseurship. The period between 1922–3, when the first scholarly bibliography (compiled by a collector) appeared,72 and 1936–7, when Stewart began seriously to collect Kipling, was one of slow gestation and gradual transition. On 27 July 1932 Stewart was a luncheon guest at Kipling’s manor house, ‘Bateman’s,’ near Burwash in Sussex. It

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was the day before the Judicial Committee of the Privy Council rendered its judgment in favour of Stewart’s client in Croft v. Dunphy (extraterritorial revenue legislation) – Stewart’s most important. Lieutenant-Colonel Georges P. Vanier, then secretary and counsellor to the Canadian high commission in London, arranged the visit. Vanier was well acquainted with Kipling, who was a fellow member of the Imperial War Graves Commission, but he had only recently met Stewart, introduced to him by the manager of the Royal Bank’s London branch. ‘There is nothing I want to do so much as to see Rudyard Kipling,’ Stewart told Vanier during a courtesy call on him at Canada House, and Vanier proceeded to write a thumbnail sketch of Stewart for Kipling’s benefit: ‘At a very early age he was stricken with infantile paralysis, and he has gone through life on crutches, – but he has never allowed his mind to go on crutches. He has studied and worked and read – and that is how he came to know you; ... He says that his favourite occupation is reading your books.’ Immediately Kipling sent a telegram inviting the two to lunch the next day.73 According to Vanier’s official biographer, ‘Georges took him [Stewart] down to luncheon at Burwash, arriving flustered and contrite one and a half hours late [3:00 p.m.]. Kipling greeted them imperturbably: “Quite all right, Vanier; have a glass of sherry”.’74 Elizabeth Stewart prepared an aide-mémoire of a conversation she had with Vanier, then governor general, when he visited Halifax in May 1966 to receive an honorary doctorate from Saint Mary’s University: Col. Vanier and my husband were invited to lunch at ‘Bateman’s.’ They lost their way and ’phoned Mr Kipling who said come straight along; everyone gets lost coming here.’ The conversation at luncheon was very animated and they were invited to remain for tea. Mr Stewart was saying goodbye to Mrs K. and Col Vanier was speaking with Mr Kipling just a short distance away. Mr Kipling nodded his head towards Mr S. and said: ‘I think I have found my “Thousandth Man”.’75

‘I had the privilege in 1933 [sic],’ he wrote four years later, ‘of spending several hours with him in his home in Sussex. A more delightful host would be hard to imagine. His keen interest in affairs and people, his gentle humour and his readiness to discuss his own work and experiences completely negative any suggestion of obsession or bitterness.’76

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In May 1935 Stewart, in London for the British Coal Corporation appeal, listened approvingly to the radio broadcast of Kipling’s jeremiad to the Royal Society of St George on the occasion of the King’s silver jubilee.77 Kipling’s was a voice crying in the wilderness against the threat of German rearmament; his critics (and they were legion) viewed his doomsaying as irresponsible bellicosity. The silver jubilee was not political, and Kipling’s address – ‘An Undefended Island’ (alias ‘The Religion of War’) – was deemed altogether inappropriate.78 Writing in 1942, Stewart had every reason to credit England’s latter-day prophet of doom: The post-war period was for Kipling, filled with ever-growing anxiety and foreboding. He saw the spiritual ravages of the [First World] war, and the exhaustion that followed it; the advancement to power of those very elements in the country who had opposed the prosecution of the war, and who had thwarted Britain’s efforts, who had done the least to win it. He saw the growth of malevolent pacificism, progressive disarmament of the peace-loving nations, the deliberate fostering of class hatred, the decay of national will-power and the growing distrust among the Allies. In season and out of season he fought against these trends. Through those ‘drugged and doubting years’ he warned, exhorted and pleaded.79

Stewart appreciated the central paradox of Kipling’s politics – a Victorian imperialist and an anti-fascist who was not a warmonger. His deeply felt anti-fascism had no resonance except among Tory-imperialists, such as Stewart. To his enemies Kipling was a pathological Germanophobe whose activities as a propagandist and ‘apostle of the Imperial gospel to the gentiles of England’80 had not only fatally undermined his credibility but had also contributed to the sabre-rattling that had led inexorably to the Great War. Eight months after the broadcast, Kipling was dead. Stewart’s filial respect and sensitivity had induced him to defer joining the Kipling Society (founded 1927), of which Kipling most strongly disapproved,81 until after the author’s death. Thereupon Stewart lost no time paying out five guineas for a life membership and proposing to the secretary that the society obtain consent from the writer’s estate to publish an authorized edition of his complete works.82 This proposal, which the society already had under consideration, led to Macmillan’s 35-volume definitive ‘Sussex Edition’ of The Complete Works of Rudyard Kipling (1937–9). No sooner had Stewart joined the Kipling Society than controversy erupted over the dead poet’s execration by Oliver Baldwin, Kipling’s

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estranged first cousin (once removed) and elder son of the Conservative prime minister, Stanley Baldwin. In a lecture delivered in July 1936 to a convention of elocution teachers at the London Academy of Music – ‘Rudyard Kipling the Man’ – Baldwin alleged that the death of Kipling’s only son in the war had caused both his moral character and his artistic gift to degenerate, citing by way of evidence Kipling’s chilling domestic war story, ‘Mary Postgate’ (1915), as ‘the wickedest short story ever written in the history of the world.’83 Untypical of Kipling’s oeuvre, this is nevertheless, by common consent, his most psychologically daring story. Baldwin, a left-wing Labourite who had not been on speaking terms with his elder cousin after the divisive General Strike of 1926, brought down on his head the wrath not only of Kipling’s widow but also of his admirers worldwide. Stewart learned of the controversy from a leader in the Toronto Star Weekly and rushed to Kipling’s defence in a letter to the editor of the Halifax Herald.84 He makes no attempt to defend ‘Mary Postgate’ – a ‘war theme’ to which Stewart elsewhere refers as a striking story, ‘but not particularly “nice”.’85 Instead he attacks Baldwin, whose political views were antipathetic to Kipling’s and, a fortiori, to Stewart’s own. Curiouser still, Stewart cites post-war stories by Kipling in order to refute Baldwin’s radical thesis as to the war-induced degradation of Kipling’s talent, while tacitly consenting to Baldwin’s use of ‘Mary Postgate’ as evidence in support of it. ‘Perhaps indicative of the fact that the Baldwin criticism struck home in at least one particular,’ reported the Toronto Star Weekly, ‘is Mrs. Kipling’s just-announced intention not to allow any reprints to be made in the future of “Mary Postgate”.’ Stewart’s failure to respond about ‘Mary Postgate’ makes it clear that his protest had less to do with literary analysis than with Baldwin’s politics and his filial irresponsibility vis-à-vis his late ‘uncle.’ Evoking ‘The Real Kipling,’ moreover, as against Baldwin’s prejudicial misrepresentations, allowed Stewart to pronounce on Kipling’s timeless significance: ‘It is in the role of prophet equally with that of poet and master of English prose that Rudyard Kipling should have the reverence and affection of the English-speaking world.’86 For Stewart, Kipling’s place in history – and not just literary history – was secure. Although the visit to ‘Bateman’s’ in the summer of 1932 was a defining moment for Stewart, it seems certain that he would not have approached Kipling as a collector, even had he been one himself at the time. Ever the astute lawyer, Stewart was nothing if not sensitive to the privacy rights

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of his hero who, according to Charles Carrington, ‘disliked the activities of bibliophiles who trafficked in his private letters, draft manuscripts, rejected trifles and unauthorized editions. All this was what he called the “Higher Cannibalism”.’87 Stewart’s transition from enthusiast to serious collector did not take place until after Kipling’s death and initially did not involve ‘private letters, draft manuscripts, rejected trifles and unauthorized editions.’ ‘My primary interest in Kipling,’ Stewart wrote in 1937, ‘is to get as complete a set of his [published] writings as possible – whether in firsts or in newspaper clippings, photostats or otherwise.’88 Yet it is impossible to separate Stewart’s early and abiding love of the man’s art from his acquisition of Kipling muniments and incunabula. Stewart put together, according to one appraiser, ‘without doubt the greatest collection in private hands of Kipling’s letters, manuscripts, early and rare printed works and of illustrations to his works.’89 Nonbook or non-print materials in his collection included textual records, graphic materials (documentary art and photographs), and sound recordings. Stewart was more the bibliolater, who viewed Kipling’s oeuvre, in whatever form or medium, from broadsides to sheet music to gramophone records, as ‘proofs of holy writ.’ There is no pre-1937 correspondence between Stewart and his American and English booksellers,90 and the same moral imperative kept him out of the Kipling Society while the writer lived. Stewart assembled his Kipling collection to support the compilation of a comprehensive ‘descriptive catalogue,’ as he christened it, not being a professional bibliographer. Two years after Kipling’s death, at about the same time as Stewart began work on this project, Flora V. Livingston published the 333-page Supplement to her authoritative Bibliography of the Works of Rudyard Kipling (1927). Livingston, whom Stewart considered the doyenne of Kipling scholars,91 was the long-time Widener Librarian at Harvard and creator of a major institutional collection of Kipling. According to Carrington, she ‘forced the defences of “Bateman’s”, with recommendations on the ground of sheer scholarship, was received with civility, and became a friend.’92 Livingston’s two-part opus, which Kipling’s official biographer praised as ‘a model of its kind,’93 quickly became the standard reference source. ‘As the work proceeded and the collection grew,’ Stewart later explained in the preface to his own bibliography, ‘I sought out Mrs. Flora V. Livingston and discussed with her the possibility of a revised edition of

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her Bibliography in one volume.’ Writing to the American Kipling scholar Israel Kaplan in 1948, Stewart commented, It is too bad that Mrs Livingston is so old [86] and that her eyesight has gone back on her. There really should be a complete revision of her bibliography as it is possible now to add many dozens of additional issues and to reduce to the status of foot-notes a good many of the items that she gives the prominence of main text reference. There are also a great many inaccurate references to periodicals and titles ... I would hesitate to publish it [a catalogue of my own collection] during Mrs Livingston’s lifetime as I am quite sure it would hurt her very much to think that anyone were invading the field that she had so admirably made her own.94

Livingston died in November 1949; Stewart’s bibliography was not published until November 1959, four years after his own death. Yet it is clear that once Livingston had waived her claim to an omnibus revised edition, Stewart began to conceive his descriptive catalogue as serving that purpose. Stewart’s 673-page Rudyard Kipling: A Bibliographical Catalogue, financed by a $10,000 subvention from the Royal Bank of Canada,95 was the first major publication of the fledgling Dalhousie University Press. The gestation of this monolithic work of disinterested scholarship was long, and its delivery laborious. It was favourably, though not uncritically, reviewed in the Times Literary Supplement and in scholarly periodicals.96 His pen-friend Israel Kaplan paid a high compliment to the author by quoting one of Stewart’s own letters to him in his review. The catalogue gradually became the standard reference and research tool and has not been superseded. It is authoritative rather than definitive – in effect, the second, revised edition of Livingston, for whom ‘a complete bibliography [of Kipling] can never be.’97 Stewart was characteristically modest: ‘The definitive bibliography of Kipling’s works will not be written for many years.’98 Having fallen under the spell of Kipling through the influence of the father he had loved and lost, Stewart spent a great deal of money and most of his leisure time in the last twenty years of his life assembling a collection that he believed99 honoured both his fathers – natural and surrogate. His lifelong affaire de coeur with Kipling kept him young at heart and generated a truly Kiplingesque empathy with children, especially fatherless ones. To the son and daughters of his wife’s brother-inlaw, Ewen Morrison – who, like his own father, died prematurely in his

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forties – Stewart became an avuncular, attentive, and indulgent second father. Stewart saw Kipling’s political and aesthetic views as nothing if not exemplary. If by the end of his life Kipling was again the prophet crying in the wilderness, then Stewart continued to hearken to its sound. Perhaps it was he who suggested that the Halifax Herald adopt as its motto the closing lines of Kipling’s ‘For All We Have and Are’ (1914) – ‘What stands if Freedom fall? / Who dies if England live?’ – which first appeared on 4 September 1939, the day after Britain declared war on Germany. Those who did not learn from the mistakes of the past were doomed to repeat them, and had done so – as Kipling predicted they would. Stewart understood and appreciated Kipling’s unique gift of prophetic wisdom, because he was the perfect Kiplingite – a devout disciple, consciously self-created in his chosen image of the high priest of poetic art.

11 Twilight of the God

A man with crippled legs can do wonders, but the man with a crippled brain is to be pitied. – Pictou Advocate, 9 May 1914

In June 1949, when Halifax celebrated its bicentenary and Stewart his 60th birthday, he ‘retired’ to become senior associate counsel of his law firm. Preoccupied as he was with the extremely demanding arbitration over Montreal Light, Heat & Power Consolidated, Stewart intended to relinquish administrative responsibility and devote himself as far as possible to banking and finance. ‘Every Monday morning,’ recalled J. William E. Mingo, ‘Mr Stewart would take the train for Montreal, attend meetings there Tuesday and Wednesday, depart by train Wednesday evening and appear in the office on Friday morning. At that time the office was also open a half day on Saturday, I shared a secretary with Mr Stewart and she was usually never available to me on Fridays and Saturdays.’1 The following year Stewart prepared his third and final will. He told his friend and fellow Dalhousie governor John Doull that he intended to retire and become a Greek scholar, translating Homer’s Iliad – the ultimate challenge for any classicist.2 Stewart’s lifelong battle against his bad leg was an epic; his sometimes uncooperative crutches prompted him to deplore ‘the perversity of inanimate objects.’3 Retiring as member

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of the law firm was one thing; retiring from the practice of law, another. Stewart’s clients would not let him go. They came to his home, and he continued to attend to them – so the Rolls-Royce (which he acquired in 1951) had to be sent round to the office to collect Stewart’s secretary and deposit her at ‘Braemar’ to receive instructions.4 The firm, correctly anticipating that it might be his last, specially celebrated Stewart’s 65th birthday on 30 June 1954; the guest of honour, however, was too ill to attend. Stewart was unwell, sometimes dangerously so, throughout much of 1953 and 1954; in the summer of ’54 he ‘contracted a stoppage of one of the major veins in the left upper arm.’5 Apart from advancing age and severe bronchitis aggravated by chain-smoking menthol cigarettes, Stewart’s way of life encouraged the development of arteriosclerosis: stress, lack of exercise, and a high-fat diet. To make matters worse, heart disease ran in his family – his father, mother, and eldest brother all died of it. Stewart seems to have been a victim of congestive heart failure, suffering from exhaustion, weight loss, and shortness of breath.6 Troubled by breathlessness during his stay in Montreal in January 1955 for the annual meeting of the Royal Bank, Stewart consulted his wife’s niece’s7 fiancé, a surgical intern at the Royal Victoria Hospital. Having gone for tests, he was advised to enter hospital at once;8 but he refused and went home to Halifax to recover or die. There was as yet no cardiac surgeon in Halifax, so heart surgery could not be performed locally.9 The only way to treat heart disease was with oxygen, digitalis, and bedrest. Nothing more could be done for Stewart, so he faded away at ‘Braemar,’ attended by two specialists in internal medicine.10 On 28 January, two weeks to the day before his death, Stewart lost one of his oldest and closest friends, Joseph P. Connolly, KC. Though never a serious lawyer – his degree had been ‘granted by special consideration of the Senate’ – Connolly was a member of Stewart’s law firm for ten years and had remained on intimate terms with the Stewarts. His premature death, the sadder in that he had only just married, must have seemed in retrospect like the cry of the banshee. But it was not generally believed that Stewart’s own death was imminent.11 He continued to work, supposedly signing and dating the ‘author’s preface’ to his Kipling bibliography on 9 February, two days before his death. For Stewart, even while dying, business was pleasure and came before everything else. The laws of legal entrepreneurship were the most fundamentally natural of all. Frank Covert’s last meeting with his mentor – a four-hour marathon – took place on 7 January, the day before Stewart left

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for Montreal to attend the annual meeting of the Royal Bank. Covert made no effort to see Stewart after the latter’s return and before his own departure for Montreal on 9 February. But Stewart wanted to see him. ‘It was on February 9th,’ Covert wrote in his memoirs, that Mr Stewart called me and asked if I could come to his house;12 I was leaving in a few moments to go to Montreal to the Bishop Asphalt closing and I asked if I should try to postpone it and he said, ‘No, but come out as soon as you get back.’ It has been one of the great regrets of my life that I didn’t just cancel and go because I never did find out what he wanted and he had said that it was ‘urgent.’ I have guessed that it was about his will and that he probably wanted to appoint me as a co-executor because of my knowledge of his affairs.13 Anyhow I went to Montreal, closed the sale of Bishop Asphalt and got back after midnight [10 Feb.] and, of course, could not go down at that hour.14

Next morning Covert did not hasten to Stewart’s bedside but instead went to the office, where he put in a full day’s work. Vivian Morrison remembers his telephoning to inquire about Stewart’s condition and being told that it was critical; still he did not go – until after Stewart was dead. Outside the great bedchamber at ‘Braemar,’ which extended the entire length of the house, Halifax was enjoying a midwinter thaw. Friday, 11 February, was mild – 8o C – the mildest on record since 1876;15 a few light showers were falling. The three cylinders of therapeutic liquid oxygen delivered to the house that morning would not be required. Stewart, lucid and clear-eyed if unable to speak (though still able to smile), tried to brush aside the oxygen mask; one had the feeling, recalls Vivian Morrison, that one should do what he wanted. Family members took turns watching and waiting. It was Mrs Stewart’s turn when death finally came, early in the afternoon; calling from the sickroom, she said simply, ‘He’s gone.’16 However lax Frank Covert may have been on the day of Stewart’s death, he redeemed himself two days later by sending Mrs Stewart an eloquent letter of sympathy which so impressed her that she directed that it be ‘preserved for ever.’ ‘I think of the fact,’ wrote Covert, that he made – yes, litterally [sic] made – so many men – he imparted things to others, and in doing so seemed always to grow in stature himself so he could still pass more on – just think of the list – Turnbull, Proctor, Connor, Manning, Jodrey, Clyde Cameron, Jack MacKeen17 – all of these and many others – they all owe their success one way or another to this one great man – Jim Stewart –

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because of his genius, his courage, his far-sightedness and his complete unselfishness. I venture to say that no man has trod the earth of this Nova Scotia that he loved so much, who has left such an imprint on its business life.18

Connor and Turnbull predeceased Stewart; Cameron, Jodrey, and MacKeen were all among his pallbearers. Canadian Press announced Stewart’s death on the evening of the 11th, and next morning the tributes began to pour in. Telegrams came from Sun Life, Lionel Forsyth, ‘Walton and Dorothy’ Killam, and Burnham Mitchell (executive vice-president of the Royal Bank). Among the telephone messages was one that Sir James Dunn would be sending a white floral cross in a private aircraft and that it would be delivered to ‘Braemar’ by the lieutenant-governor, Alistair Fraser, KC (a former CNR executive).19 Although newspapers as far afield as the New York Times noted Stewart’s passing, it was the hometown weekly that struck exactly the right note: ‘Canada Mourns James McG. Stewart.’20 A brief service at his home, in which Stewart’s boon companion Archbishop Berry seems to have participated, preceded that at the church, which took place at 2:30 p.m. on Valentine’s Day. Although he held no public office, Stewart was granted what was to all intents and purposes a state funeral. The lieutenant-governor (Fraser), the chief justice (Ilsley) and judges of the Supreme Court of Nova Scotia, the premier (Hicks) and members of the cabinet,21 the leader of the opposition (Robert Stanfield), and the mayor of Halifax (Donahoe) all attended. Classes at Dalhousie were ordered cancelled, a unique tribute to one generally recognized as the father of the university. Among the pallbearers was James Muir, president of the Royal Bank.22 The venue was St David’s Presbyterian – the 1925 Disruption congregation with which the family had identified since the beginning, but which Stewart, formally an ‘adherent,’ not a ‘member,’ had rarely attended. In accordance with a special request that Stewart made shortly before his death, the organist played Franz Schubert’s Litanei auf das Fest Allerseelen (‘Litany for the Feast of All Souls’),23 while the mourners were assembling and the remains were brought to the chancel steps. A more un-Presbyterian tribute could hardly be imagined; perhaps Stewart was having a final joke at the expense of Uncle John, in whose memory an imposing plaque hangs in the church. The Litany, by the eighteenthcentury German anacreontic poet, Johann Georg Jacobi, is affecting:

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Ruhn in Frieden alle Seelen, Die vollbracht ein banges Quälen, Die vollendet süßen Traum, Lebenssatt, geboren kaum, Aus der Welt hinüber schieden: Alle Seelen ruhn in Frieden! Liebevoller Mädchen Seelen, Deren Tränen nicht zu zählen, Die ein falscher Freund verließ, Und die blinde Welt verstieß: Alle, die von hinnen schieden, Alle Seelen ruhn in Frieden! Und die nie der Sonne lachten, Unterm Mond auf Dornen wachten, Gott, im reinen Himmelslicht, Einst zu sehn von Angesicht: Alle, die von hinnen schieden, Alle seelen ruhn in Frieden!

Stewart’s remains were interred in Camp Hill Cemetery in downtown Halifax, next to those of his wife’s Protestant Wilson grandparents. He was the first Stewart not to be buried in the family plot at Pictou; even his brother Donald, killed in the Great War, is named on the monument. The Nova Scotia Barristers Society met in special session two days after the funeral. C.B. Smith was overcome with emotion and could not attend; H.P. MacKeen, who had succeeded Stewart as head of the firm, read a message on Smith’s behalf.24 Over the next two months, board meetings brought forth tributes in the form of memorial resolutions from many of the companies with which Stewart was associated at the time of his death: Canada Cement (director), Maritime Steel and Foundries (chairman), Mersey Paper (chairman), Montreal Trust (director), Nova Scotia Light and Power (vicepresident), Royal Bank (vice-president), Sun Life (director), and United Service Corporation (director). Fittingly, it was the Royal Bank that best captured his significance: ‘Mr Stewart was much more than a leader in his profession; he was an institution in Nova Scotia and the nation. He was a man of remarkable intellect and profound learning in so many

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fields as to set him apart from all but those who, like him, have made the pursuit of knowledge a consuming passion.’25 Stewart died well-off, though not wealthy; his estate was appraised at just under $1.2 million – most of it in blue-chip or gilt-edged preferred or common stocks.26 Although he named his wife both joint executor (with Montreal Trust) and principal beneficiary, her financial position initially looked precarious. ‘While Mr Stewart was alive,’ wrote Frank Covert, the estate’s solicitor, seven months after Stewart’s death, ‘he had a very large income apart from his investment income – from offices, Directorships and monthly salary from the Law Firm as Counsel. This income has ceased. In addition a large amount of his estate has been sold to pay Succession Duties,’27 which amounted to some $330,000. It was thanks to Covert’s shrewd financial management, and the willingness of her corporate co-executor to accept Covert’s investment advice, that Elizabeth Stewart was able to maintain herself in the state to which her late husband had long accustomed her. She made a point of keeping his Rolls-Royce, complete with cocktail cabinet and footrest.28 So astute was Covert’s investment counsel that the decision to wind up Stewart’s private investment-holding company and distribute its assets was rescinded.29 Although Stewart had thought the better of appointing Covert an executor in 1950, as probate solicitor and legal adviser to Elizabeth Stewart, Covert performed the duties of co-executor in everything but name. No major decision was taken by either executor without first consulting Covert, who later claimed to have had ‘great success’ in handling succession duties for the estate.30 In fact, the assessment appeal against the levy was disallowed by the minister of national revenue and not appealed further.31 In July 1953 Elizabeth Stewart had written, ‘I am aiming at a long life and I must have Jim or else – all my world would crumble. So I am watching him.’32 But his heart disease was more serious and less treatable than her mild diabetes, and her ministrations inevitably became a death-watch. She lost Jim, and her world crumbled, but, helped by the memory of him, she began almost immediately to try to remake it. In the aftermath of her husband’s death, assisted by members of the family, she sent out 500 sympathy acknowledgments. Once she had begun to recover from her grief, ‘Mrs McGregor Stewart’ (as she styled herself) resumed her place in society. Inevitably, however, as Frank Covert observed, ‘there is one thing that happens to the widow of a great man – most of the people who

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came to see him now don’t come to visit her.’33 But she did not mind. She doted on her numerous grand-nephews and grand-nieces, who became to her like grandchildren. Elizabeth Stewart continued to bask in the reflected glow of her husband’s memory. She was exceedingly proud of her DLitt (1969) from Saint Mary’s University (SMU), which she received for being a ‘Santamarian,’ as the Jesuit father-president of the university styled her.34 ‘It frequently occurs,’ declared the citation, that when people of merit are attracted to each other the qualities and reputation of one may defer to those of the other and due recognition fall short of desserts. In this regard, Mrs McGregor Stewart has been very happily, unfortunate – happily, in that it must have been a great pleasure for her to have been so closely associated with all the honours due to a successful and well-remembered husband, – unfortunate, since reputation has not sufficiently distinguished those abilities of her own, which clearly claim the proper regard and esteem of a community, which she has served so long and so well.35

Granted on the eve of the university’s secularization, her degree was chiefly recognition of her husband’s outstanding services as counsel to the Roman Catholic Episcopal Corporation.36 In 1951, during the financial crisis induced by SMU’s building program, Stewart had arranged for a $4-million mortgage of archdiocesan property to Montreal Trust, of which he was a director. The transaction saved the archdiocese from bankruptcy and SMU from extinction.37 J. McG. Stewart was as powerful as only the supremely intelligent and supremely ambitious can be. He shied away not from the exercise of power, only from the public revelation of it, and he suffered neither fools nor opponents gladly. It was dangerous not to follow his advice, for he knew it was right and would not give it otherwise. He dismissed clients who did not listen to him, prompting one of those who always did to observe that his advice was followed to a ‘T.’ The lad o’ pairts’ grew into a man of parts who was all things to all people – ‘lawyer, negotiator, diplomat, guide, philosopher, friend.’38 At the level at which Stewart operated, he was accountable only to himself. As Churchill said of Sir Stafford Cripps, ‘There but for the grace of God goes God.’ Stewart spoke as one having authority, or he spoke not at all. Evelyn W. Coppell, his secretary from 1949, remembers that his silence was like thunder from someone else.39 He communicated a sense of quiet power.

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A force of nature and a law unto himself, he was looked on as sui generis. His strength of mind and character seemed superhuman, although it was not; it was a combination of his great intelligence and the great suffering that he had had to endure, especially as a youth. People noticed his disability far less than his ability. His domination of people and situations was effortless and intuitive. He seemed capable of absorbing from the very air, as it were by osmosis, everything that was going on. His profound and empathetic knowledge made him a shrewd judge of people and affairs. Stewart was capable of selfless gestures both grand and small. When the precocious grandson and namesake of the radical coal-miners’ union leader in Cape Breton, James Bryson McLachlan, wanted to attend Dalhousie, Stewart put up the money for his tuition, which the young man’s family could not afford.40 When Jessie MacKiel, aged 17, wanted to enter nursing school in Halifax but could not because she was underage, Stewart – mindful of the wartime need for nurses – saw to it that she was accepted.41 When Murdoch MacPherson – son and namesake of Stewart’s lifelong friend and former Conservative attorney-general of Saskatchewan – landed in Halifax after the war, he telephoned Stewart, who asked what he could do for him. A bottle of Scotch to celebrate, was the reply. Half an hour later, Stewart’s chauffeur appeared at the railway station with two bottles.42 Unlike his friend and contemporary ‘Murdo’ MacPherson, Sr, who went to Saskatchewan after graduating from Dalhousie Law School and spent his career there, Stewart was not a migrant or an expatriate. He had talent and ambition enough to become what he wanted to be while staying where he was; he was not a young man to go west to seek his fortune. Large as his heart for others (especially young people) was, his brain was larger still, and he enriched and enlarged Halifax by remaining for his entire public life in the small city to which he had come, aged 17, as a homesick small-town boy. The attachment to Halifax, though unshaken, was not sentimental. Becoming both a top-flight legal counsel and the quintessential legal entrepreneur gave Stewart the luxury, so to speak, of staying at home. The measure of his success was that he was able to remain in Halifax without destroying his prospects nationally. Success came despite geography; being a Maritimer in the Maritimes might hamper others – but not him. In relation to law and business, Stewart was able to view Halifax from the perspective of Montreal and Nova Scotia from the perspective of Canada. He understood well that in a disjointed federal state like Canada,

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region was always important and that that importance was always relative. He desired to make business and law (and law-and-business) a vehicle of national cohesiveness. Stewart’s excessive anglophilia was not grounded in Kiplingesque neo-imperialism. He admired and envied Britain as a unitary state: English counties, unlike Canadian provinces, do not have rival and competing governments. Stewart wished Canada to be one country, not a confederation of semi-independent statelets bound together by a treaty. He was not a sentimental but a pragmatic nationalist – a Canadian ‘unitist’ who believed that nationalism and regionalism were necessary goods by no means mutually exclusive. Better to have complementary cultural, economic, and geographical regions – however unequal – than politically artificial provinces. Stewart was a Nova Scotia nationalist at a time when most Canadians were not just regionalists but provincialists – believers in the many-from-one ‘compact’ theory of Confederation. The Maritime Rights movement appealed to him not at all. Not only was it bad for business; it was bad for Conservative prospects in Nova Scotia.43 Stewart could become a national capitalist and yet be loyal enough to the Maritimes’ economic welfare to remain in the region, when the logic of self-interest seemed to demand that he move to Montreal. Stewart did not ‘go down the road’ like so many of his fellow Maritimers before and since. He did not contribute to the brain drain; indeed, by making the region attractive to local talent, he attempted to staunch it. He achieved in Halifax everything that he could have accomplished by removing to Montreal or Toronto. By not doing so he defied the conventional wisdom, then and now – that, in order to amount to anything nationally, a Maritimer had to emigrate. Stewart travelled – far and frequently – but he did not move. His point of view was always national, never regional, especially when he was in the region. A Maritimer born and raised, a Maritimer he lived and worked and a Maritimer he died. But he entertained no illusions that the Maritimes was anything but a backwater. One could enjoy the luxury of living in the hinterland provided that one’s reputation was securely established in the metropolitan mega-region that for all practical purposes equalled the country – central Canada. ‘Have brain will travel,’ it might have been said of Stewart. And he travelled continually, for both business and pleasure, whenever possible combining the two. Despite the physical wear and tear, Stewart enjoyed travelling and did not view it as an imposition; he accepted that it was a business necessity and a personal obligation. Before the internet, e-mail,

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and video-teleconferencing, he could not otherwise have made the most of his unique leadership qualities of mind and heart, character and personality. By dint of sheer brilliance and savoir-faire he parlayed his ‘Maritime reputation’ into a national one. And that served only to increase, to a degree attained by no one before or since, his Maritime power and authority. If the Halifax establishment on the cusp of the millennium is a ‘secret garden’ – as Peter Newman styles it in the third and final volume of The Canadian Establishment – then James McGregor Stewart was the man who quietly designed it, laid it out, and nurtured its early growth. He ensured that it would not only survive but also flourish long after both he, and the ancien régime that he personified, had passed away. ‘If you seek for a monument, gaze around.’

Appendix A The Law Firm’s Names, 1867–1955 Years

Partnership

1867–75 1876–86 1887–8 1889–90 1890–1 1892–3 1894–5 1896–1905 1906–8 1909–10 1911 1912 1913–15 1915–26 1927–31 1931–46 1946–51 1951–8

Henry (1) & Daly Henry (2) & Weston Henry, Ritchie & Weston Henry, Ritchie, Weston & Henry (3) Henry, Ritchie & Weston Henry, Harris & Henry Harris & Henry Harris, Henry & Cahan Harris, Henry, Lovett & Stairs (1) Harris, Henry, Stairs & Harris Harris, Henry, Rogers (1) & Harris Harris, Henry, Rogers, Harris & Stairs (2) Harris, Henry, Rogers & Harris Henry, Rogers, Harris & Stewart Henry, Stewart, Smith & McCleave Stewart, Smith, MacKeen & Rogers (2) Stewart, Smith, MacKeen, Covert & Rogers Stewart, Smith, MacKeen, Covert, Rogers, Sperry & Cowan

Sources: Frank Covert, ‘Stewart, Mackeen & Covert: Firm History’ (Unpublished ms., 1980); various legal and Halifax city directories. Key : Cahan: Charles Hazlitt Cahan; Covert: Frank Manning Covert; Cowan: Gordon Stewart Cowan; Daly: Malachy Bowes Daly; Harris (1): Robert Edward Harris; Harris (2): Reginald Vanderbilt Harris; Henry (1): William Alexander Henry I; Henry (2): Hugh McDonald Henry; Henry (3): William Alexander Henry II; Lovett: Henry Almon Lovett; McCleave: Robert David McCleave; MacKeen: Henry Poole MacKeen; Ritchie: Thomas Ritchie; Rogers (1): Tecumseh Sherman Rogers; Rogers (2): William Marshall Rogers; Smith: Charles Breckon Smith; Sperry: Clyde Winston Sperry; Stairs (1): Henry Bertram Stairs; Stairs (2): Gilbert Sutherland Stairs; Stewart: James McGregor Stewart; Weston: Byron Arrow Weston.

Appendix B Profile of Stewart’s Corporate Career, 1914–1955 Chairman Maritime National Fish Maritime Steel and Foundries† Mersey Paper† National Fish

President

Vice-President †

Industrial Containers Acadia Sugar Refining Braemar Investments† Maritime Paper Products†

Director †

Atlantic Traders Avon River Power Edgerton Fur Farm Milton Hydroelectric Moirs Limited† National Sea Products† Nova Scotia Construction† Nova Scotia Light and Power† Ocean Fisheries† Royal Bank of Canada†

A. Keith & Son Albro Lake Lands Limited† Anglo-Canadian Securities Annapolis Valley Canners† Annapolis Valley Power Argyle Securities† Associated Investors Atlantic Oils† Barrington Electric Barrington Street Realties Best Yeast Ltd Bishop Asphalt† Brandram-Henderson Cameron Contracting† Canada Cement† Canadian Apartment Capital Construction† Chester Electric Light & Power Coast Sales† Cobequid Light & Power† Cooke Motors Dominion Steel and Coal Eastern Telephone & Telegraph† Eastern Trust Edison Electric Light & Power† Great Eastern Corporation† Industrial & Development Corporation of Venezuela† J.W. Cumming Manufacturing L.C.S. Investments† Lilla B. Ltd Liverpool-Brooklyn Realty

Appendix B (concluded) Profile of Stewart’s Corporate Career, 1914–1955 Chairman

President

Vice-President

Director Lord Nelson Hotel Lovat Steamship Loyalist Shipping† Lunenburg Gas MacDonald Construction† Maritime Finance† Maritime Fish Markland Shipping† Mersey Shipping† Milton Hydroelectric† Moirs Sales† Montreal Trust† National Fish National General Assurance† Nellie C. Ltd North Eastern Corporation† Northumberland Light & Power† Provincial Investments† Provincial Oils R.B. Cameron Builders† Rover Shipping† Sissaboo-Clyde Pulp and Paper Sobeys Stores† Sun Life Assurance† Superline Oils† Super Service Stations† United Service Corporation† Western Nova Scotia Electric†

Sources: chiefly Financial Post Directory of [Canadian] Directors, 1931–55, and executorship records of the Stewart Estate. This list is exhaustive but not sequential and not necessarily complete. It also records only the highest office that Stewart held in any company. †Posts held by Stewart at time of death.

Appendix C The Law Firm’s Major Corporate Clients, 1909–1955 Acadia Sugar Refining Company* Acadia Trust Company Avon River Power Company* Bradstreets Brandram-Henderson* Canada Fire Insurance Company Canada Life Assurance Company Canadian Keyes Fibre Canadian Pacific Express Company Canadian Pacific Railway Commercial Union Insurance Dominion Atlantic Railway Dominion Express Company Eastern Trust Company* Famous Players Corporation

Maritime National* Mersey Paper Company* Metropolitan Life Insurance Moirs Limited* Mutual Life Assurance National Sea Products* Nova Scotia Light and Power* Nova Scotia Steel and Coal Royal Bank of Canada* Royal Securities Sobeys Stores* Sun Life Assurance* Union Bank of Halifax United Service Corporation*

Sources: Canadian Law List, for 1909–55; Covert, ‘Firm History.’ *A company of which Stewart is known to have been an officer or director.

Notes

Preface 1 Gregory P. Marchildon, ‘International Corporate Law from a Maritime Base: The Halifax Firm of Harris, Henry and Cahan,’ in Carol Wilton, ed., Essays in the History of Canadian Law, Volume IV: Beyond the Law: Lawyers and Business in Canada, 1830–1930 (Toronto, 1990), 201–34. On the later history of the firm see Gregory P. Marchildon and Barry Cahill, ‘Corporate Entrepreneurship in Atlantic Canada: The Stewart Law Firm, 1915–1955,’ in Carol Wilton, ed., Inside the Law: Canadian Law Firms in Historical Perspective [Essays in the History of Canadian Law, Volume VII] (Toronto, 1996), 280–319. The quoted phrase is from Jim Phillips, ‘Recent Publications in Canadian Legal History,’ Canadian Historical Review, 78 (1997), 245–6. 2 Barry Cahill, ‘The “Invisible Man,”’ Halifax Sunday Herald, 23 August 1998. Peter C. Newman, ed., Debrett’s Illustrated Guide to the Canadian Establishment (London, 1984), 156, 160; derived from Newman, The Canadian Establishment, Volume One: The Old Order (Toronto, 1975), 203. 3 Wilton, ed., Beyond the Law, 6. Chapter 1: ‘Lad O’ Pairts’ 1 On the meaning of this Scotticism see Robert Anderson, ‘In Search of the “Lad of Parts”: The Mythical History of Scottish Education,’ History Workshop 19 (spring 1985), 90–1. On the translation of the myth to Pictou see B.

180

2

3

4

5

6 7 8 9 10

Notes to pages 3–5

Anne Wood, ‘Constructing Nova Scotia’s “Scotchness”: The Centenary Celebrations of Pictou Academy in 1916,’ Historical Studies in Education / Revue d’histoire de l’éducation 6 (1994), 288n.17; ‘Meanings of Schooling: Cultural Interpretations of Pictou Academy in the Nineteenth Century’ (MA thesis, University of Victoria, 1995), 194–220; and, most recently, ‘Pictou Academy: Promoting “Schooled Subjectivities” in 19th-Century Nova Scotia,’ Acadiensis 28, no. 2 (spring 1999), 55–7. D.E. Meek, ‘MacKay, Isabella,’ in Nigel M. de S. Cameron, Dictionary of Scottish Church History and Theology (Downers Grove, Ill., 1993), 519. Now West Bay Pastoral Charge, Inverness and Guysborough Presbytery, Maritime Conference, United Church of Canada. The principal primary source for what follows is Stewart’s incomplete and unfinished memoirs: ‘Memoranda / by / The Revd Murdoch Stewart / at present Minister of the /  Gospel at Whycocomagh, / Cape Breton, Province of / N. Scotia, Dominion of Cana / da, in connection with / the Presbn Church of the / Lower Provinces of British Am / – begun to be written / Apr. 25th 1872.’ //: Murdoch Stewart fonds, MG 1 vol. 1471(A), Nova Scotia Archives and Records Management (NSARM). See also Laurie Stanley, The Well-Watered Garden: The Presbyterian Church in Cape Breton, 1798–1860 (Sydney, NS, 1984), passim. Stanley, Well-Watered Garden, 30, 84, 121, 197. The total population of Richmond County stood at 7,667 in 1838 and 10,381 in 1851, for an average annual increase of 2.7 per cent: Nova Scotia census records, RG 1 vols. 448– 52, NSARM. I base this and what follows on an unpublished family history written by Murdoch’s daughter, Anne Amelia Stewart; holograph and transcription in James McGregor Stewart fonds (privately held). Years later their grandson would give the name ‘Braemar’ to his estate on the Northwest Arm of Halifax Harbour. See generally G.E. Davie, The Democratic Intellect: Scotland and Her Universities in the Nineteenth Century (Edinburgh, 1961). David L. MacIntosh, ‘Dr John Stewart,’ Dalhousie Medical Journal 2, no. 2 (April 1937), 6. I owe this phrase to D. Cameron Watt, ‘Across the Irish Sea,’ Times Literary Supplement (London), 2 May 1997, 11. John Stewart (1848–1933), CBE, MB, CM (Edin.), LLD (McGill, Edin., Dal.), FRCS (Edin.), was Canada’s pioneer Listerian surgeon and the father of modern medicine in Nova Scotia: Allan E. Marble, Nova Scotians at Home and Abroad, rev. ed. (Windsor, NS, 1989), 375 s.v.; Colin Howell, ‘Scottish

Notes to page 5 181

11 12 13 14 15

16 17

Infuences in Nineteenth-Century Nova Scotian Medicine: A Study of Professional, Class and Ethnic Identity,’ in Marjorie Harper and Michael Vance, eds., Myth, Migration and the Making of Memory: Scotia and Nova Scotia c. 1700–1990 (Halifax, NS, 1999). Donald Alexander Stewart (1851–1897), BASc (McGill), ‘was among the first generation of Canadian-trained professional engineers’: David Neufeld, ‘Stewart, Donald Alexander,’ Dictionary of Canadian Biography (DCB) XII (1891–1900), 989. For a sketch of Rigby, see Henry Borden, ed., Robert Laird Borden: His Memoirs (Toronto, 1938), I:23. Sir John S.D. Thompson and Robert Borden. McDonald, Weatherbe, Graham and Chisholm. McDonald, Thompson and C.H. Tupper. ‘Legal Education,’ Dalhousie Gazette (Halifax), 19 Feb. 1876, 75–7, quoted in John Willis, A History of Dalhousie Law School (Toronto, 1979), 24. On this subject generally see Philip Girard, ‘The Roots of a Professional Renaissance: Lawyers in Nova Scotia 1850–1910,’ in Dale Gibson and W. Wesley Pue, Glimpses of Canadian Legal History (Winnipeg, 1991), 155–88; and Philip Girard, ‘“His whole life was one of continual warfare”: John Thomas Bulmer, Lawyer, Librarian and Social Reformer,’ Dalhousie Law Journal 35 (1990), 378–9. In his trenchant biographical study of Bulmer, an older contemporary of James McG. Stewart’s, Girard draws attention to ‘the circle of intelligent and ambitious young lawyers that began to coalesce in Halifax in the early 1870s.’ Stewart was certainly among those young men who ‘began to question the traditional system of apprenticeship and examination, arguing that both were inadequate tools of professional education.’ Doubtless he belonged to and participated in the deliberations of the Halifax Law Society – probably a continuation of the Law Students Society of the 1860s – a sort of junior bar, where attorneys (probationers) and articled clerks could both fraternize and discuss serious professional matters and in general develop a collective identity that would stand them in good stead after they had been called to the bar and become full members of the Nova Scotia Barristers Society. James McGregor Stewart bar admission file: RG 39 M, vol. 9, file 20, NSARM. For the family history, see Thomas Miller, comp., Historical and Genealogical Record of the First Settlers of Colchester County ..., reprint of 1873 ed. (Belleville, Ont., 1972), 373–5; [Anon.], comp., Stewiacke, reprint of 1902 ed. (Belleville, Ont., 1973), 95–6.The E.B. Circle of Middle Stewiacke United Church, comp., House[s] and Families of Halfway Brook and Otter Brook (Windsor, NS, 1971), 57.

182 Notes to page 6 18 Halifax City Directory (various years). 19 Unless otherwise indicated, I base what follows on Jean E. Murray, ed., ‘Julia “Jule” Creelman & Jane “Janie” Creelman : Letters Written to John R. Murray September 14, 1875 to May 25, 1879’ (transcription at Colchester Historical Museum Archives, Truro, NS). 20 The second of Murdoch Stewart’s two pastorates. 21 Jane Creelman to John R. Murray, 16 Feb. 1877, 2 April 1877, 29 April 1877; Murray transcriptions. Among the habitués of the Parker House was the young student-at-law Robert Borden, the future Conservative prime minister: ‘Last night ... R[obinson] Cox Borden and I spent at Creelmans saw your picture and had a game of eucher with Julia a drink or two and a good sleep. The folk of the old Colonial are all well. Julia looks splendidly’: John McGillivray to Murray, 22 Sept. 1876, Murray transcriptions; see also Robert Craig Brown, Robert Laird Borden: A Biography, Volume I: 1854–1914 (Toronto, 1975), 19. 22 Julia Creelman to Murray, 4 May 1877; Thos. Grant to Murray, 11 May 1877. 23 ‘That C.B. chap is still No. 1 around here with Jule. I guess he intends to run in and win’: Jane Creelman to Murray, 23 July 1878, Murray transcriptions. 24 Jane Creelman to Murray, 29 Oct. 1877, Murray transcriptions. 25 Halifax Board of School Commissioners. Committee on Teachers minutes, 28 March 1878, Halifax District School Board fonds, NSARM; according to her sister, Julia ‘resigned her school’ because of illness: Jane Creelman to Murray, 8 April 1878. Understandably, there is no reference in these letters to Julia’s pregnancy or the birth of her child, nor any extant letters from Julia herself after May 1877. Julia’s first-born son was delivered by Jane Hamilton, Colchester County’s famed midwife: ‘1878 April 17th ... Miss——— Creelman of a Son’; cf. J.E. Kennedy, ‘Jane Soley Hamilton, Midwife,’ Nova Scotia Historical Review 2, no. 1 (Dec. 1982), 25, no. 586. The birth date of 17 April 1878 agrees with the subsequent baptism record in the register of First Presbyterian (Prince Street) Church, Pictou, 22 March 1886, when Mr and Mrs James McGregor Stewart had all four of their children baptized. 26 Halifax Board of School Commissioners, Report [1877–8], n.p. (‘List of Teachers employed in the Public Schools, with the Salaries Paid to Each’). See generally Karen A. Balcom, ‘From Recruitment to Retirement: Female Teachers in the Public Schools of Late Nineteenth-Century Halifax’ (MA thesis, Dalhousie University, 1992). To paraphrase Balcom, Julia Creelman’s was essentially a case of ‘getting fired: female teacher to unwed mother.’ 27 Bonnie Huskins, ‘Creelman, Samuel,’ DCB XII (1891–1900), 217–9.

Notes to pages 6–8 183 28 It was, however, registered; see Halifax County Marriages, 1878, no. 181: RG 32 ‘M’ (HX), NSARM. 29 Poplar Grove Presbyterian Church, Halifax, NS. Register of communicants, 2 Dec. 1874 (mfm at NSARM). 30 See Allan C. Dunlop, ‘Holmes, Simon Hugh,’ DCB XIV (1911–1920), 502–4; and ‘Simon Holmes Revisited,’ Collections of the Royal Nova Scotia Historical Society, 44 (1996), 27–39. 31 Jane Creelman to Murray, 3 Dec. 1878; for ‘best’ one should perhaps read ‘busiest.’ A few of Stewart’s business letters to Holmes, 1879–81, are in the Simon Holmes fonds, MG 2, vol. 560, files 1–3, NSARM. 32 New Glasgow Eastern Chronicle, 1 Dec. 1887. 33 See generally J.P. MacPhie, Pictonians at Home and Abroad (Boston, 1914), 123–33. 34 Dalhousie University, President’s Report [1931–2], 21. 35 John Stewart to Catherine Stewart [c. 24 March 1878]: John Stewart fonds, Queen Elizabeth II Health Sciences Centre Archives (Halifax); the letter is incomplete. 36 1881 Census of Canada, Pictou County, NS, Town of Pictou, District No. 20, page 69 (mfm at NSARM). Katherine was born in 1879. 37 Halifax Presbyterian Witness, 14 Oct. 1882; Pictou Colonial Standard, 17 Oct. 1882. Murdoch pursued an active retirement for nearly two years, assisting at John Knox Church in Pictou until succumbing to a heart attack in July 1884. Dr John remained in Pictou until 1894, when he removed with his mother, sisters, and brother Alexander Forrester (Sandy) to Halifax: Pictou Advocate, 2 Nov. 1894. Stewart had been appointed examiner in surgery in Dalhousie University’s faculty of medicine in 1889. 38 Pictou Colonial Standard, 16 May 1882; the partnership – between ‘wellknown lawyers of this town’ – was dissolved in August 1891. Concerning C.E. Tanner (1857–1946), sometime leader of the provincial Conservative Party, see James M. Cameron, Political Pictonians, 1767–1967 (Ottawa, [1967]), 245–50. 39 New Glasgow Eastern Chronicle, 27 Jan. 1887. 40 See generally L.D. McCann, ‘The Mercantile–Industrial Transition in the Metals Towns of Pictou County, 1857–1931,’ Acadiensis 10, no. 2 (spring 1981), 29–64; L. Anders Sandberg, ‘The Deindustrialization of Pictou County, Nova Scotia: Capital, Labour and the Process of Regional Decline, 1881–1921’ (PhD thesis, McGill University, 1985); Michael Bliss, Northern Enterprise: Five Centuries of Canadian Business (Toronto, 1987), 302. 41 A prominent and influential clergyman, Alexander Falconer (1838–1911)

184

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44

45 46 47 48 49

50

51 52

53 54 55

Notes to pages 9–11

was moderator of the General Assembly of The Presbyterian Church in Canada in 1906; see generally James G. Greenlee, Sir Robert Falconer: A Biography (Toronto, 1988), 3–12 passim. Robert Falconer (Alexander’s son and a Presbyterian minister) was president of the University of Toronto from 1907 to 1932. Elizabeth E. Stewart, ‘James McGregor Stewart’ (holograph): J. McG. Stewart fonds. L.M. Stewart, ‘To “Little Jim”’ (typescript, [1939]): Stewart fonds. A studio portrait in the possession of John J. McG. Stewart shows the three younger Stewart sons – John, Donald and James – all attired in sailor suits. He was appointed queen’s counsel in November 1895, doubtless on the recommendation of the federal minister of justice, Sir Charles Hibbert Tupper, Conservative MP for Pictou and associate counsel in Borden’s law firm. See order-in-council, PC 3289, 8 Nov. 1895. Halifax Herald, 19 June 1897. Pictou Advocate, 25 June 1897. Pictou County Court of Probate, Estate No. 2672 (mfm at NSARM). Truro Daily News, 20 May 1896. This discreditable episode can be followed in the pages of several Pictou County newspapers: Pictou Colonial Standard and Advocate and New Glasgow Enterprise and Eastern Chronicle. It was a convention of local politics that the county clerk and the county treasurer should come from different parties; yet the then treasurer was a Liberal – as was the warden. ‘Shubenacadie – R.S. Thomson – Elm Avenue Farm’ [Memorandum], 7 April 1955: J.McG. Stewart estate executorship records, Montreal Trust Co. (Halifax); B.E. Dodd, ‘A History of Shubenacadie Schools and Pupils from the Early Days of 1800 to 1951’ (unpublished ms., 17 Oct. 1951), 6: Miscellaneous Manuscripts Collection, MG 100, vol. 2, file 12(c), NSARM. Except John Murdoch, who went to Dalhousie in the autumn of 1902. Harry retained the farm until 1927. There would not be a residence to accommodate students from out of town until 1920–1; Stewart, remembering his own past, was instrumental in its establishment. For this and what follows, see Pictou Academy, Course of Study: Catalogue, 1904–05 to 1906–07. Wood, ‘Constructing Nova Scotia’s “Scotchness”,’ 289. It seems likely that Jim, on returning to Pictou in 1903, stayed with the elder of his two sisters, Katie (Katherine), a graduate of the Halifax Conservatory of Music, who in 1900 had begun to earn her living as a music teacher: Pictou Colonial Standard, 21 Aug. 1900.

Notes to pages 11–15 185 56 Harold L. Scammell, ‘The Rise and Fall of a College,’ Dalhousie Review 32, no. 1 (spring 1952), 44. Anne Wood has identified a total of eight college presidents: ‘Promoting “Schooled Subjectivities”,’ 55 and n. 42. 57 On ‘the excessive competition engendered by the meritocratic program at Pictou Academy,’ see B. Anne Wood, ‘Pictou Academy in the Nineteenth Century’ (unpublished ms., 1997), 201. 58 Donated by Sir Charles Hibbert Tupper, long-time Conservative MP for Pictou and a close political associate of Stewart’s father. 59 Pictou Advocate, 31 July 1906 (‘By this he has shown himself to be undoubtedly the cleverest student who has yet attended Pictou Academy’). 60 Morrison, ‘Stewart,’ [1]. 61 Ibid., [1]. 62 ‘Neither hath this man sinned, nor his parents; but that the works of God should be made manifest in him’ (John 9:2–3, AV). 63 Frank Covert, ‘Stewart, MacKeen & Covert: Firm History’ (unpublished ms., 1980), ix-3. 64 Journal of Education (Oct. 1906), 119; Teacher’s licence register, 26 July 1906 (No. 69); RG 14, vol. 224, NSARM. Stewart took out a Class D (Third Class) teacher’s licence. 65 Anon., comp., Annals [of the] North British Society, Halifax, Nova Scotia, 1950–1968 (Kentville, NS, 1969). 66 Falconer was minister of First Presbyterian (Prince Street), Pictou, from 1886 to 1909; see Greenlee, Falconer, 4–18 passim. ‘Much of the sense of caste displayed by Alex and other Presbyterians,’ writes Greenlee, ‘is traceable to their self-image as an intellectual élite ... Presbyterians and the Falconers in particular were ardent champions of education.’ The same could be said of the Stewarts. 67 Morrison, ‘Stewart,’ 2. 68 Maclellan to Stewart, 31 Dec. 1906, John Stewart fonds. 69 Archibald MacMechan, ‘The Life of a Little College,’ in MacMechan, The Life of a Little College and Other Papers (Boston, 1914), 28. (The article refers to the presidency of John Forrest, which ended in 1911.) 70 Quoting and paraphrasing Yeats, ‘Kipling Collections,’ 8. 71 James Muir, convocation address (Dalhousie University), 20 July 1956; J.McG. Stewart fonds. 72 Wood, ‘Constructing Nova Scotia’s “Scotchness”,’ 291. 73 Wood, ‘Pictou Academy,’ x. 74 Statutes of Nova Scotia (SNS), 1919, c. 152. 75 SNS, 1920, c. 208. 76 Pictou Advocate, 18 April, 4 July, 19 Sept., 10 and 17 Oct. 1919, 20 Feb. 1920

186

Notes to pages 15–18

(special supplement, 9–16); Halifax Presbyterian Witness, 18 Oct. 1919. The building of a residence was proposed in July 1919, the PAAF held its startup meeting in September, and the proposal was carried to the Maritimes Synod, meeting in Halifax in October 1919, by Pictou Presbytery. 77 ‘Monument Unveiled on Old Academy Site,’ Pictou Advocate, 18 Aug. 1938. 78 Scammell, ‘Rise and Fall,’ 44. Chapter 2: ‘Undesirable Elect Dalhousie Cripple’ 1 A play on the subtitles of each of the two volumes of P.B. Waite’s official history of the university, published in 1994 and 1998 by McGill-Queen’s University Press. See generally Alexander E. Kerr, ‘Dalhousie and The Presbyterian Church in Canada’ [1963], President’s Office Correspondence (POC), DAL MS-1-3/A-864, Dalhousie University Archives (DUA). 2 Dalhousie BoG minutes, [?] Dec. 1930, DAL MS-1-1/A-7, DUA. 3 P.B. Waite, The Lives of Dalhousie University, Volume One, 1818–1925: Lord Dalhousie’s College (Montreal, 1994), 292. 4 Title of the paper presented by A.S. MacKenzie, president emeritus of Dalhousie, at the MacGregor Sesquicentenary Celebration in 1936: Frank Baird, ed., Addresses at the Celebration of the One Hundred and Fiftieth Anniversary of the Arrival in Nova Scotia of Rev. James Drummond MacGregor, D.D. ... (Toronto, 1937), 187–95. 5 Stewart to Stanley, 29 Nov. 1941, Carleton Stanley fonds, MS-2-163, file B-116, DUA. 6 MacMechan, Life of a Little College, 28–30. 7 Waite, Lord Dalhousie’s College, 188–221. 8 The Forrest (1887) Building, renamed after Lord John’s retirement, was renovated and restored in 1985 for use by the Faculty of Health Professions. 9 Waite, Lord Dalhousie’s College, 216–8. 10 Dalhousie Gazette, 14 July 1909, 269. 11 E.H. Stewart to L.M. Stewart, 27 June 1907; John Stewart fonds, Queen Elizabeth II Health Sciences Centre Archives. 12 A.W. Yeats, ‘Kipling Collections in the James McG. Stewart and the University of Texas Libraries: An Appraisal of Resources for Literary Investigation’ (PhD thesis, University of Texas at Austin, 1961), 10. 13 Annals of the North British Society ... 1950–1968, 84. Stewart never forgot Maclellan, who believed when others doubted. Some ten years after Maclellan’s death, in 1933, an anonymous benefactor donated a scholarship ‘in honor of the late Robert Maclellan, sometime principal of Pictou

Notes to pages 18–20 187

14

15

16

17 18 19 20 21 22

23 24 25

Academy, a most inspiring teacher of the humanities and a delightful companion’ (Pictou Advocate, 2 Nov. 1933). As the scholarship was to be offered to the student ranking first in first-class standing in the advanced classics course in the second year and who was proceeding to the third, the donor unquestionably was J.McG. Stewart, KC, then vice-chair of the board of governors. DAAC minutes, DAL MS-2–325, DUA. In 1917 Stewart replaced the president of the university as honorary president of the DAAC. For the early history of the association, see Waite, Lord Dalhousie’s College, 128; it was the only student society to have its own statute of incorporation – an indication of its popularity and status within the university. Ample evidence of Stewart’s athletic prowess is to be found in the student testimonials supporting his 1910 Rhodes Scholarship application: Dalhousie Senate records, MS-1-5/B-47, DUA. See, for example, ‘Despite disabilities he has placed himself in the front rank as a leader in things athletic’; ‘He has attained remarkable success in athletics, having been Secretary of the D.A.A.C. during the session 1909–10; he has also played goal in minor hockey teams. I consider his success remarkable for one who is not as physically fitted for sports and [sic] his schoolmates. He has always taken a deep interest in everything athletic.’ Quoits are similar to horseshoes, except that the metal ring is closed and one ‘pitches’ rather than ‘throws.’ The Studley Quoit Club, which Stewart joined in 1921 as a full or playing member, was a rather exclusive gentlemen’s sporting club. Faculty of Arts and Science minutes, 18 Sept. 1907, DAL MS-1–11, DUA. Calendar of Dalhousie University ... 1907–08, 25–6. Waite, Lord Dalhousie’s College, 231; the reference is to Donald Alexander MacRae (BA 1898), a future dean of law. Pictou Advocate, 1 May 1909. Dalhousie Senate minutes, 13 Sept. 1909; DAL MS-1–5, DUA; Dalhousie University, Senate’s Report 1908–09, 5. Concerning Murray (another Pictonian), who held the McLeod professorship from 1894 until his death in 1930, see Waite, Lord Dalhousie’s College, 179. Murray had begun his teaching career at Dalhousie in 1887 as tutor in classics. Dalhousie BoG minutes, 19 Sept. 1911; DAL MS-1-1/A-5, DUA. Dalhousie Senate minutes, 9 March 1907; DAL MS-1-5, DUA. J.W. Logan, ‘Reminiscences of a Classical Teacher,’ Journal of Education ... for Nova Scotia (Dec. 1933), 76 (Read at the third meeting of the Classical Association of the Maritime Provinces held at Antigonish, 5 Aug. 1933).

188

Notes to pages 20–3

26 For this and what follows, see Senate minutes, 29 Jan. 1911 et seq.: DAL MS-1-5, DUA. 27 Magill was a clergyman and former principal of the Presbyterian College (Pine Hill Divinity Hall). 28 ‘Alumni Notes,’ Dalhousie Gazette (Sept. 1913), 31. ‘In Athletics, Read’s qualifications for a Rhodes Scholarship are not very strong. Nevertheless he had always an interest in sports, and when possible took part in them’ (1 March 1910), 173. As much and more could have been said of Stewart. 29 ‘Conversation with Dean Read,’ Dalhousie Law School, Ansul (May 1974), 1. 30 ‘Memorandum. The Rhodes Scholarships in Canada. 1912,’ Dalhousie University, POC, DAL MS-1-3/A-913, DUA. ‘Where circumstances render it impracticable to carry out the letter of these suggestions [as to method of selection], the Trustees hope that every effort will be made to give effect to their spirit, but desire it to be understood that the final decision must rest with the Committee of Selection’ (Memorandum, 4). 31 Murray to Parkin, 18 Feb. 1911 (no. 4028); Nova Scotia Scholarship, file 1, Rhodes Scholarship Trust fonds, MG 28 I, 58 (mfm at National Archives [NA], Ottawa). 32 Parkin to Murray, 9 March 1911 (copy); NS Scholarship, f. 1, RST fonds, MG 28 I 58, NA. 33 The privilege of nomination rotated among Nova Scotia’s then four universities (Acadia, Dalhousie, King’s, and St Francis Xavier); see generally Waite, Lord Dalhousie’s College, 193. 34 Extract from Report No. 115 (p. 39), Memorandum by Dr Parkin, Washington, DC, 22 Nov. 1912; NS Scholarship, f. 1, Rhodes Scholarship Trust fonds, MG 28 I 58, NA. 35 Parkin’s letter is not extant. 36 Dalhousie Senate minutes, 7 Jan. 1913; DAL MS-1–5, DUA. The text of the cable supplies the title of this chapter. 37 The friendly rivalry continued for many years. After Stewart became heir presumptive to W.A. Henry (head of the law firm), Read left in 1921 to become professor in Dalhousie Law School. 38 ‘James McGregor Stewart, K.C.,’ in Corolyn Cox, comp., Canadian Strength: Biographical Sketches (Toronto, 1946), 73–5; based on a wide-ranging personal interview published in the Montreal Standard, 11 Oct. 1941. 39 James McGregor Stewart bar admission file (called 4 Aug. 1914); RG 39 ‘C’ (HX), box 582, file B-446, NSARM. 40 Concerning Fulton see [Harry Flemming], McInnes Cooper & Robertson: A Century Plus ([Halifax, 1989]), 39–40. 41 John Willis, History of Dalhousie Law School (Toronto, 1979), 58.

Notes to pages 24–6

189

42 Waite, Lord Dalhousie’s College, 228, 230. 43 Dalhousie Gazette (Oct. 1912), 29. 44 The Halifax City Directory for 1913 gives Stewart’s occupation as (articled) ‘clerk’ at McInnes, Mellish, Fulton & Kenny. 45 Stewart was responsible for, among other things, choosing the three members of the intercollegiate debating team that defeated the University of King’s College (Windsor, NS) in March 1914. 46 The DSC was ‘a major fund-raising enterprise’ designed to raise $300,000 to pay for buildings on the new western (Studley) campus: Waite, Lord Dalhousie’s College, 201, 212; Dalhousie Gazette (Graduation Number 1914), 242. 47 Waite, Lord Dalhousie’s College, 221. See also ‘The Student Movement for a Student Building,’ Dalhousie University, President’s Report [1913–14], 17–8; ‘The Students Campaign,’ Dalhousie Gazette (Sept. 1914), 331–5; ‘Dalhousie Students’ Campaign,’ Dalhousie Gazette (22 Oct. 1914), 7. 48 Halifax Dalhousian, 19 May 1914, 10; NSARM holds a complete run of the newspaper. ‘Football,’ of course, meant British Rugby League football. 49 Halifax Morning Chronicle, 5 Aug. 1914. Stewart’s Achilles’ heel was constitutional history, in which he had written the degree examination as long ago as 1908, when he was an arts junior and a ‘general [auditing] student’ in law: Calendar of Dalhousie University ... 1908–09, 150. 50 Willis, Dalhousie Law School, 75; Waite, The Lives of Dalhousie University, Volume Two, 1925–1980: The Old College Transformed (Montreal, 1998), 88. 51 Dalhousie Gazette (Graduation Number 1914), 325. 52 See generally Willis, Dalhousie Law School, 80–3. 53 ‘Law Personals,’ Dalhousie Gazette, 19 Nov. 1914; Dalhousie University, President’s Report [1914–15], 3. 54 Willis, Dalhousie Law School, 81. 55 ‘In My Day at Dalhousie Law School,’ Ansul (13 Jan. 1976), 7. 56 On MacRae’s ten-year deanship (1914–24), see Willis, Dalhousie Law School, 67–92, and Waite, Lord Dalhousie’s College, 231–2 (‘As Dalhousie stiffened [and narrowed] its law curriculum in 1915 ...’). 57 See generally Dalhousie University, President’s Report, 1915–16 through 1923–4 (‘Changes in the Staff’). 58 Dalhousie University, President’s Report [1920–1], 25–6. 59 To be distinguished from the Committee of Nine, 1926–c. 1935, an internal body ‘instituted to regulate non-academic student activities’: Dalhousie University, POC, DAL MS-1-3/A-389, DUA. 60 POC DAL MS-1-3/A-390 (1928-31), DUA; see also President’s Report [1927– 28], 41. 61 Waite, Lord Dalhousie’s College, 283.

190 62 63 64 65 66 67 68 69 70

71

Notes to pages 26–30

Halifax Royal Gazette, 2 Oct. 1929, 846. See generally Waite, The Old College Transformed, 35–8. Dalhousie BoG minutes, 12 Nov. 1929; DAL MS-1-1/A-7. DUA. Committee of Seven, 1928–31, Dalhousie University, POC, DAL MS-1-3/ A-390, DUA. Dalhousie University, President’s Report [1937–8], 2. Karen Smith, comp., Vessels of Light: A Guide to Special Collections in the Killam Library, Dalhousie University Libraries (Halifax, 1996), 69, 71. Halifax Acadian Recorder, 17 Oct. 1930, 3. The association was organized in Halifax in August 1930: Halifax Evening Mail, 30 Aug. 1930, 3, 5. Dalhousie University, President’s Report [1930–1], 23–6 (‘Death of Dr Howard Murray’). Elected in 1952; the fonds of the Classical Association of the Maritime Provinces and Newfoundland is held by Mount Allison University Archives (Sackville, NB). Fisher to Stewart, 22 May 1929 (copy), Dalhousie University, POC, DAL MS-1-3/A-390, DUA. In 1925 the seat on Dalhousie’s board of governors held by the PCC reverted to the United Church of Canada. Chapter 3: Religion and Love

1 Rev. Frank Lawson, ‘James McGregor Stewart’ (eulogy); J.McG. Stewart fonds. 2 See generally Brian J. Fraser, The Social Uplifters: Presbyterian Progressives and the Social Gospel in Canada, 1875–1915 (Waterloo, Ont., 1988); and Michael Boudreau, ‘Strikes, Rural Decay and Socialism: The Presbyterian Church in Nova Scotia Grapples with Social Realities, 1880–1914,’ in Charles H.H. Scobie and G.A. Rawlyk, eds., Contribution of Presbyterianism to the Maritime Provinces of Canada (Montreal, 1997), 155–9 passim. 3 Ian S. Rennie, ‘Conservatism in The Presbyterian Church in Canada in 1925 and Beyond: An Introductory Exploration,’ in Papers of the Canadian Society of Presbyterian History, 8 (1982), 29–59. 4 Douglas F. Campbell and Gary D. Bouma, ‘Social Conflict and the Pictou Notables,’ Ethnicity 5, no. 1 (March 1978), 76–88. See also Douglas F. Campbell, ‘Presbyterians and Canadian Church Union: A Study in Social Stratification,’ Papers of the Canadian Society of Presbyterian History 16 (1991), 1–32. Campbell concludes his fascinating sociological study of élite Presbyterians with the observation (18) that ‘church union had the least attraction for the upper class Presbyterian.’ Those upper-class Presbyterians engaged in banking and the professions remained with the continuing church (13).

Notes to pages 30–2

5

6

7

8

9 10

11 12 13

191

Campbell attributes the near-complete rejection of organic church union among élite Presbyterians to their class consciousness and collective sense of social and intellectual superiority. John R. Cameron, ‘The Story of Church Union of 1925 in The Presbytery of Pictou of The Presbyterian Church in Canada’ (BD thesis, Presbyterian College, Montreal, 1969), [Preface]. See also Tim F. Archibald, ‘Remaining Faithful: Church Union 1925 in the Presbytery of Pictou,’ Papers of the Canadian Society of Presbyterian History, 15 (1990), 19–38. N. Keith Clifford, Resistance to Church Union in Canada, 1904–1939 (Vancouver, 1985), has little on the Maritimes and nothing on Nova Scotia. There is no regional case study of the origins, development, and impact of the church union movement in Nova Scotia comparable with James D. Cameron, ‘The Garden Distressed: Church Union and Dissent on Prince Edward Island, 1904–1947’ (PhD thesis, Queen’s University, 1989). Cameron’s introduction is particularly enlightening and contains much material relevant to Presbyterian resistance to church union in Nova Scotia; see especially xii–xxvi. SNS, 1924, c. 122. The act’s main purpose was the revesting of Presbyterian Church property in the new United Church. Nova Scotia, unlike six of the eight other provinces, did not establish a church property commission, although the act made provision for it. The government’s silence of consent to the church union bill contributed to its overwhelming defeat in the general election of 25 June 1925, ten days after the birth of the United Church of Canada. Among the defeated Liberal MLAs was J.B. Douglas, father of the bill. Presbyterian lawyer Robert Henry Graham, a native of New Glasgow, was Liberal MLA for Pictou County until his appointment as puisne judge of the Supreme Court of Nova Scotia in May 1925. Graham, a dissenter, had had the unenviable task of chairing the legislature’s committee on private and local bills, which in the first week of April 1924 conducted public hearings on the church union bill. J. Murray Beck, Politics of Nova Scotia: Volume Two: Murray–Buchanan 1896– 1988 (Tantallon, NS, 1988), 101. Douglas F. Campbell, ‘A Group, a Network and the Winning of Church Union in Canada: A Case Study in Leadership,’ Canadian Review of Sociology and Anthropology 25, no. 1 (1988), 45; cited in James Cameron, ‘The Garden Distressed: Church Union and Dissent on Prince Edward Island, 1925,’ Acadiensis 21, no. 2 (spring 1992), 112 n. 20. Cameron, ‘Garden Distressed,’ 124 n. 93. Ibid., 111 n. 15. J.D. MacMillan, ‘Free Church of Scotland, post-1900,’ DSCHT, 338.

192

Notes to pages 32–4

14 Bannatyne v. Overtoun, [1904] AC 515 (HLSc). 15 Congregations in the presbytery of Halifax overwhelmingly supported organic union in all three votes – 1912, 1915, and 1924–5. 16 On the significant role played by élite lawyers in the church union controversy, see Clifford, Resistance to Church Union, Index, s.v. Cassels, Richard S.; Lafleur, Eugene; Mason, Gershom W.; McCarthy, D.L.; Tilley, W.N. See also Douglas F. Campbell, ‘Engaging Third Parties: Canadian Church Unionists and Their Opponents in the Secular Forum,’ Journal of Church and State, 33 (1991), 80–1 (by ‘secular fora,’ Campbell means newspapers, courts, and legislatures). Generally speaking, the opposition to union was led by lay professionals, and the union campaign by clergy. 17 Accompanying Johnston was the Reverend W.F. McConnell of Hamilton, Ontario, dominion field secretary of the PCA and its chief propagandist. ‘From 1916 to 1925 the Association led the resistance to church union with speeches, pamphlets, periodicals and legal cases, and after 1924 it focused its efforts particularly on influencing the upcoming vote on church union, and on legal claims to the property and resources of The Presbyterian Church in Canada’: ‘Presbyterian Church Association,’ in John Moir, comp., Handbook for Canadian Presbyterians (Toronto, 1996), 101; see also Clifford, Resistance to Church Union, chap. 6, passim. 18 Records of the public hearings on Bill 52 (‘Church Union Bill’) before the legislature’s committee on private and local bills do not survive; what follows is derived from Halifax’s evening newspapers, the Echo and the Mail, 2–4 April 1924. 19 The Churches (Scotland) Act – 1905, c. 12 (UK) – resolved the property dispute between the United Free Church and the continuing Free Church. 20 ‘Battle Waxes Hotter Over the Union Bill in Public Hearings; Four Lawyers Enter the Lists to Present the Legal Case against The Measure ...,’ Halifax Evening Echo, 3 April 1924. The other two lawyers were Hugh Ross, KC, and Duncan Finlayson, CCJ, both of Cape Breton; Crowe and Stewart were counsel retained on behalf of the PCA. 21 Quoted in Frank Baird, Canadian Church Union and the Courts (Toronto, [1929]), 9. Cassels, ‘a highly respected Toronto lawyer, not only withdrew [from the Church Union Committee] but became militantly involved in the anti-union efforts.’ Campbell, ‘Engaging Third Parties,’ 80–1. See also D.J.M. Corbett, ‘The Legal Problems of the Canadian Church Union of 1925,’ Papers of the Canadian Society of Presbyterian History (1979), 59–61. 22 The roll book of the Halifax PCA is in Presbyterian Church of Saint David (Halifax) fonds: mfm at NSARM. 23 MacMechan was a great admirer of the late Reverend Dr Thomas Stewart:

Notes to pages 34–7

24 25

26 27 28

29

30 31

32 33

34 35

193

[George S. Carson, ed.], Toward the Sunrising and Other Sermons by Thomas Stewart, D.D. (Toronto, 1923), 26. Stewart, a staunch ‘anti,’ was clerk of the General Assembly and moderator of the Maritimes Synod at the time of his death in January 1923. Only his opposition to church union would have prevented his becoming moderator of the General Assembly. The new congregation found a permanent home in the former Grafton Street Methodist Church in downtown Halifax. ‘Politics and history combined with the law to provide this little community with all the requirements for an excellent novel.’ C.E. Silcox, Church Union in Canada: Its Causes and Consequences (New York, 1933), 377. The story is fully told in chapter 5 of Cameron, ‘Church Union,’ 217–51; cf. Silcox, Church Union, 372–7. SNS, 1925, c. 167; the act was passed scarcely a month before the United Church of Canada came into existence. RG 39 ‘C’ (PI), box 1986–550/079, file A2952 [trial]; RG 39 ‘C’ (HX), box 682, file C7296 [trial and appeal]; RG 39 ‘A,’ vol. 84 (Cases 192627 A–K) [appeal], NSARM; reported at (1927) 59 NSR 272 (NSSC in Banco), [1929] SCR 452 and [1930] AC 673 (Canada PC). See also Baird, Church Union, 9–16, and Donald J.M. Corbett, ‘The Canadian Church Union of 1925 and the Law’ (BD thesis, Knox College, 1957), 58–69; Clifford, Resistance to Church Union, makes no mention of the case. Ironically, Stewart’s KC, a bipartisan though not altogether pro forma distinction, came to him the same month the United Church of Canada was born – June 1925. Province of Nova Scotia, Orders in Council, from April 18th 1925 to March 30th 1926 (No. 31, 34), RG 3, vol. 139, NSARM. Among the majority was T.S. Rogers, a former senior in Stewart’s firm. Williams, Duff, 137, 14. Duff, though at the time a member of the Judicial Committee, made it a point never to sit for appeals from his own court, regardless of whether he had participated in the judgment appealed from. Mason mentioned the decision en passant in his memoir; see Legislative Struggle for Church Union (Toronto, 1956), 153. Hugh Pattison Macmillan, formerly lord advocate (Scottish attorneygeneral), had joined the court as recently as February 1930, so he would not have been involved in determining whether to grant the petition of the defendants for special leave to appeal. It seems probable that his life-long friendship with Stewart dates from this time. [1930] AC 673, at 675 (PC). Covert, ‘Firm History,’ x-4. Tilley was ‘one of the best-known litigators in the country in the 1920s and 1930’; Curtis Cole, Osler, Hoskin & Harcourt: Portrait of a Partnership (Toronto, 1995), 328 n. 28. He was counsel for the

194

36 37

38

39 40

41 42

43

44

45

46

47

Notes to pages 37–8

United Church at the Church Property Commission; Williams, Just Lawyers, 56. The north wall bears a much larger plaque honouring Dr John Stewart. Vivian Morrison recalls on one occasion the Stewarts’ politely but firmly declining to allow her to use a house typewriter for the purpose of transcribing a list of Halifax Liberal voters. They first appear together as incorporators of the Edgerton Fur Farm Limited in April 1914; Provincial Secretary’s Report, 1915, 47. One of their least successful ventures was the Canadian Apartment Company Limited (incorporated 21 Feb. 1920), which built the Westminster Apartments, the first building of its kind in Halifax. Stewart, who was secretary of the company, ‘lost heavily, never venturing into real estate again’: Morrison, ‘James McGregor Stewart,’ 6. ‘We had the airs but not the money,’ recalled Wilson’s younger sister years later; information from Vivian Morrison. Stewart would supply the money. Another coincidence in their Scottish backgrounds was that Stewart’s paternal great-uncle Donald (1797–1879) was married to the daughter of an Aberdeen sea captain, Andrew Wilson. George Maurice Wilson (1860–1933) was a Baptist minister in southwestern Nova Scotia. Corporal Allen John Wilson of the 64th Battalion (Nova Scotia Regiment) survived the war; Private Donald McGregor Stewart of the 7th Battalion (British Columbia Regiment) was killed in action at Bourlon Wood in September 1918. Margaret Brown died wealthy and propertied in 1867 but left the bulk of her considerable estate to William’s sister, Margaret, who returned to Aberdeen. Halifax County Wills, vol. 7, 387–8 (Margaret Brown, 1858), mfm at NSARM. This company, which Stewart reorganized in 1925 and of which he was to become vice-president, still exists after an unbroken history of 180 years; I.W. Killam acquired a controlling interest between 1929 and 1931. Thanks to the influence of his wife and, more particularly, their older children. The Stewart fonds contains an autograph letter apparently written by Wilson’s eldest daughter, Nellie, a few days before Christmas (1889?), imploring her father to attend mass. Conferred at baptism; the middle name ‘Baptista,’ which Wilson used throughout her working life, seems to have been acquired at confirmation. On marrying Stewart she abandoned Baptista, which sounded too Romish, in favour of her more acceptable baptismal name, ‘Emily.’ Nova Scotia Journal of Education (Oct. 1908), 82.

Notes to pages 38–41 195 48 Misusing a technical term that properly referred only to a student-at-law, or articled clerk. 49 Nova Scotia’s first woman barrister was called in 1918; she and her immediate contemporaries were all university-educated. 50 Stewart to E.B. Wilson, 6 Sept. 1922: J.McG. Stewart fonds. 51 Information from Vivian Morrison. 52 Handwritten note of Elizabeth Stewart (after 11 Feb. 1955); J.McG. Stewart fonds. 53 ‘Auntie Cox,’ a childless widow for some 75 years, was a wealthy harridan who ruled the Wilson household with a rod of iron and is reputed even to have tried to cheat Elizabeth’s widowed mother (her own niece) out of the house in which she and her large family lived. ‘Mr Stewart,’ as Elizabeth’s gentleman caller was known (he became ‘Jim’ only after their marriage) was regularly observed by Auntie through the eyeholes she had cut in the newspaper that she feigned to be reading during front-parlour trysts between the thirty-something lawyer and his secretary. 54 This fact is confirmed by the few Christmas gift cards and love letters (his) that survive. 55 Holograph will, 26 July 1925; courtesy Stewart McKelvey Stirling Scales (Halifax). 56 W.W. Wilson’s mother was Baptist, and his father Presbyterian; the couple were married by a Baptist minister. 57 Not to put too fine a point on it, ‘Jim was afraid of his mother’; Stewart’s desire to spare his long-suffering mother any further domestic embarrassment may help to explain the subsequent elopement. 58 Holograph in the J.McG. Stewart fonds. 59 On this subject generally, see Barry Mack, ‘From Preaching to Propaganda to Marginalization: The Lost Centre of Twentieth-Century Presbyterianism,’ in G.A. Rawlyk, ed., Aspects of the Canadian Evangelical Experience (Montreal, 1997), 137. 60 Information from Lola Henry, who maintains that her father did not believe that Stewart would marry his secretary – a thing simply not done by members of the legal élite of Halifax. 61 Stewart to Wilson, 31 Aug.–6 Sept. 1922; J.McG. Stewart fonds. ‘Ginquey,’ which Stewart abbreviated to ‘Ging,’ was a pet name given him by Wilson in the office. The francophone affectation is puzzling because, despite assuming the alter ego ‘Isabelle Fairbeau,’ Wilson knew no French; nor, for that matter, did Stewart. 62 The Irish Catholic community of Halifax, having years before been alienated from the Liberals by Joseph Howe, was solidly Conservative until 1935.

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64 65 66 67 68

69

70 71 72

73 74 75 76 77

Notes to pages 41–3

Previously, it had contributed a long series of Conservative MPs to the Halifax constituency. Prominent among them was Sir Malachy Bowes Daly, co-founder of the Henry law firm, who crowned his achievement by becoming the province’s first Roman Catholic lieutenant-governor in 1890 and serving for a decade. Beck, Politics of Nova Scotia, 67, 71, 77. Shortly after women had been enfranchised, Wilson delivered a paper on the subject to the Catholic Women’s League, which afterwards published it. Halifax Herald, 22 April 1931, 1. His letters to her in March and April 1931 suggest as much. City of New York, City Clerk’s Office, Marriage License Bureau (Manhattan), file no. 171,4131. Elizabeth Wilson Stewart was especially close to cousin Lillian, who was almost of an age with her. The precise date and circumstances of the miscarriage are unknown. Elizabeth was two weeks short of her 41st birthday when she married, so the spontaneous abortion – though immensely sad for the Stewarts, both of whom doted on children – was hardly surprising. The event was later commemorated by the grieving parents as if it were the child’s birthday. Stewart, a director of the Lord Nelson Hotel Company, always made a point of giving his personal business to, as well as investing in, commercial companies of which he was a director or officer. Halifax Mail, 11 July 1931. Ibid., 13 June 1931. ‘Thornvale [pre-subdivision] ... is one of the finest and most highly improved properties on the shores of the Northwest Arm’; John W. Regan, Sketches and Traditions of the Northwest Arm, 2nd ed. (Halifax, 1909), 34. Kenny’s father, T.E. Kenny, was president of the Royal Bank of Canada for thirty-eight years. The Kennys and the Dalys, Halifax’s Irish Catholic aristocracy, stood at the apex of late Victorian and Edwardian society in Nova Scotia. Halifax Mail, 19 Sept. 1931. Marriage settlement consisted of house and furniture and $2,000 in bonds; Stewart estate records. Earlier the same day Stewart had been elected vice-president of Nova Scotia Light and Power. Halifax Mail, 31 Oct. 1931. [Vivian Morrison], ‘The Elizabeth E. Stewart Collection,’ in Sotheby’s ... English Ceramics: New York: Friday, April 22, 1994 (catalogue of sale 6550).

Notes to pages 43–50 197 78 ‘Enjoyed Dance,’ Halifax Daily Star, 12 May 1934. 79 Stewart’s total income the year of his marriage was nearly $30,000 – a king’s ransom in the Depression Maritimes; 1931 income tax return, J.McG. Stewart fonds. 80 Wilson lived until 1992. 81 Counsel for the plaintiff were C.B. Smith and H.P. MacKeen. Stewart was active only behind the scenes. 82 R.H. Murray, later judge of the County Court. 83 Wilson v. Mainland, RG 39 ‘C’ (HX), box 821, file C4273, RG 39 ‘A,’ vol. 101 (Appeal Cases, 1933, A–W), NSARM; [1933] 2 DLR 539 (NSSC in Banco), (1933) 6 MPR 482, (1933) 59 CCC 385; House of Commons, Debates, 28 June 1935, 4106–7; Rhodes to Stewart (copy), 5 June 1935, E.N. Rhodes fonds, no. 75733, MG 2, vol. 1199, NSARM (I am grateful to P.B. Waite for drawing this letter to my attention). 84 Stanley to Webster, 6 Nov. 1944; Carleton Stanley series, John Clarence Webster fonds, New Brunswick Museum (Saint John). 85 On this subject, see generally P.B. Waite, The Man from Halifax: Sir John Thompson, Prime Minister (Toronto, 1985). 86 Elizabeth E. Stewart, The Old Worcester Jug [Halifax, 1967], 26–7. 87 Stewart to Cushing, 22 May 1959 (copy); J. McG. Stewart fonds. 88 Holograph in the J. McG. Stewart fonds. Chapter 4: Prime Serjeant 1 Then McInnes Mellish Fulton & Kenny; now McInnes Cooper. See J. McG. Stewart’s bar admission file: RG 39 ‘C’ (HX), box 582, file B-446, NSARM. See also Barry Cahill, ‘Birth of a Lawyer: James McGregor Stewart and the Halifax Bar on the Eve of the Great War,’ Journal of the Royal Nova Scotia Historical Society 3 (2000). 2 Stewart’s involvement in company promotion, as an incorporator/provisional director, had begun at the latest by 1913. The Boulderwood Park Company Limited (2 May 1913), Corunna Shipping Company Limited (12 July 1913), and Nevada Shipping Company Limited (12 July 1913). Each of these Halifax companies was capitalized at $100,000. Journal of the House of Assembly/Legislative Council of Nova Scotia: Appendix No. 12: Provincial Secretary’s Report, 1914 (Halifax, 1915). 3 Reminiscences (p. 5) of Susannah Weston Arrow Almon (died 1958), formerly private secretary to R.E. Harris; Stewart McKelvey Stirling Scales (Halifax).

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Notes to page 50

4 In 1916 Henry, Rogers, Harris & Stewart (as it became in 1915) was being described as ‘one of the leading law firms of Eastern Canada’; [David Allison], History of Nova Scotia, vol. III (Halifax, 1916), 461. For an anecdotal chronicle by a former head of the firm, see Frank Covert, comp., ‘Stewart, MacKeen & Covert: Firm History’ (unpublished ms., 1980). See also Gregory P. Marchildon, ‘International Corporate Law from a Maritime Base: The Halifax firm of Harris, Henry and Cahan,’ in Carol Wilton, ed., Essays in the History of Canadian Law, Volume IV: Beyond the Law: Lawyers and Business in Canada, 1830–1930 (Toronto 1990), 201–34; and Gregory P. Marchildon and Barry Cahill, ‘Corporate Entrepreneurship in Atlantic Canada: The Stewart Law Firm, 1915–1955,’ in Carol Wilton, ed., Essays in the History of Canadian Law, Volume VII: Inside the Law: Canadian Law Firms in Historical Perspective (Toronto, 1996), 280–319. 5 William Alexander Henry I – a political turncoat whose appointment owed everything to politics and nothing to law – was Nova Scotia’s first representative on the Supreme Court of Canada. See James G. Snell, ‘Relations between the Maritimes and the Supreme Court of Canada: The Patterns of the Early Years,’ in John A. Yogis, QC, ed., Law in a Colonial Society: The Nova Scotia Experience (Toronto, 1984), 149ff. 6 Sterns (1751–1798) was principal to Simon Bradstreet Robie (1770–1858), who took into partnership James William Johnston (1792–1873), who took into partnership his nephew John William Ritchie (1808–1890), whose eldest son and junior, Thomas (1842–1909), joined Henry & Weston in 1885. 7 Philip Girard, ‘“His whole life was one of continual warfare”: John Thomas Bulmer, Lawyer, Librarian and Social Reformer,’ Dalhousie Law Journal 35 (1990), 398. I base this and what follows on a series of three insightful studies by Girard: ‘The Roots of a Professional Renaissance: Lawyers in Nova Scotia, 1850–1910,’ in D. Gibson and W.W. Pue, eds., Glimpses of Canadian Legal History (Winnipeg, 1991), 155–88; ‘The Supreme Court of Nova Scotia, Responsible Government and the Quest for Legitimacy, 1850– 1920,’ Dalhousie Law Journal 44 (1994), 430–57; and ‘The Maritime Provinces, 1850–1939: Lawyers and Legal Institutions,’ Manitoba Law Journal 23 (1995), 379–405. 8 Harris’s appointment took effect on 27 June 1915. Three days later, Stewart’s 26th birthday, Dr John Stewart presented him with a copy of the deluxe first edition of Campbell’s Lives of the Chief Justices of England (London, 1849) – recognition at last of a remarkable achievement. 9 The name of the firm was thereupon changed from Harris, Henry, Rogers & Harris to Henry, Rogers, Harris & Stewart. 10 Read to Harris, 21 July 1915; cuttings-book, Robert E. Harris fonds, MG 1,

Notes to pages 50–3

11 12 13 14 15 16 17 18 19 20 21 22 23

24 25 26 27 28

29 30

199

vol. 404, NSARM. Read briefly resumed his place after the war, but he was disapproved of by Harris’s successor, Henry, and never became a member of the firm. In 1921 Read became professor at Dalhousie Law School. Halifax Morning Chronicle, 5 Aug. 1914, 7. See generally Philip Girard, ‘Graham, Sir Wallace Nesbit,’ DCB XIV, 431–3. Girard, ‘Lawyers and Legal Institutions,’ 394. Ibid., 398. See Philip Girard, ‘Ritchie, William Bruce Almon,’ DCB XIV, 872–3. Head of the merged firm now known as Cox Hanson O’Reilly Matheson. See generally Girard, ‘Supreme Court,’ 444ff. Ibid., 453. Predecessor of the Nova Scotia Court of Appeal. Covert, ‘Autobiography,’ 28. Ibid., 28; the title of the action is unknown. Alias MacKenzie, Mann & Co. v. Eastern Trust Co. [not reported]; leave to appeal to the JCPC was granted on 4 Aug. 1914. [Anon.], comp., Irvine & Hervey: A Statement of Facts (Halifax, 1916). See also G.R. Stevens, Canadian National Railways, Volume 2: Towards the Inevitable 1896–1922 (Toronto, 1962), 303ff.; T.D. Regehr, The Canadian Northern Railway: Pioneer Road of the North Prairies, 1895–1918 (Toronto, 1976), 153–5; and R.B. Fleming, Railway King of Canada: Sir William Mackenzie, 1849–1923 (Vancouver, 1991), 89, 95, 99. Report of the Commission Respecting The Halifax and Southwestern Railway Company’s Lands Released from a Mortgage to the Government (Halifax, 1915). [1915] AC 750 (PC); judgment was rendered 27 April 1915. Eastern Trust Co., Administrator of Irvine v. MacKenzie, Mann & Co. Ltd., (1916) 50 NSR 26 (NSSC in Banco). Henry to Stewart, 1 Nov. 1920: J.McG. Stewart fonds. On the Privy Council appeal as a finishing school for élite counsel, see David Ricardo Williams, Just Lawyers: Seven Portraits (Toronto, 1995), 13–14. On the difficulty of quantifying appellate practice (counsel were not identified before 1935), see page 15. Not even the three cases that Stewart is known to have argued in the Judicial Committee before 1941 can be identified with absolute certainty. There were at least nine other cases in which Stewart was involved behind the scenes as solicitor or advisory counsel. Williams, Just Lawyers, 13. ‘The high cost of appeals, which played into the hands of the wealthy, and thus buttressed the position of the economically strong, was a frequent criticism of the Privy Council.’ Alan C. Cairns, ‘The Judicial Committee and Its Critics,’ Canadian Journal of Political Science 4 (1971), 314 n. 58.

200

Notes to pages 53–5

31 Stager, Lawyers in Canada, 271–2. 32 Killam’s engineer-brother Lawrence became managing director. On the earlier history of the company, see Danny Samson, ‘The Making of a Cape Breton Coal Town: Dependent Development in Inverness, Nova Scotia, 1899–1915’ (MA thesis, University of New Brunswick, 1988). See also Stevens, Towards the Inevitable, 298–9; Fleming, Railway King of Canada, 89, 241; and Douglas F. Campbell, Banking on Coal: Perspectives on a Cape Breton Community within an International Context (Sydney, NS, 1997), 40. 33 In re Inverness Railway and Coal [Collieries] Co., (1922) 3 CBR 271 (NSSC); (1922) 55 NSR 306 (NSSC in Banco). Chief Justice Harris and Justice Rogers, a former president and a former director, respectively, of Eastern Trust, could take no part in the proceedings. 34 The Judicial Committee was the favourite forum for appellants who could afford the wait and the fees and for counsel who viewed the Supreme Court of Canada as having all the defects of the provincial supreme courts – only more so. 35 Stewart received a telegram to that effect from his secretary – Stewart to Wilson, 4 Sept. 1922, J.McG. Stewart fonds. The reason why the application was abandoned is unknown. 36 Royal Bank of Canada v. Eastern Trust Company, [1923] SCR 177 (‘Supreme Court of New Brunswick’ and ‘A.W. Stewart’ are obvious reporter’s errors). The historian of Inverness County attributed the failure of the company to ‘flagrant overcapitalization’; J.L. MacDougall, History of Inverness County, Nova Scotia [Truro, NS, 1923], 118. 37 (1923) 56 NSR 120, at 125 (NSSC in Banco). 38 [1923] SCR 524. 39 Law Society of Saskatchewan file B-215 (Charles B. Smith); Re Solicitor, (1913) 14 DLR 778 (Sask CA). See also Covert, ‘Firm History,’ X/1–3. 40 Covert, ‘Firm History,’ IX-1; X-1. 41 Ibid., VI-2. 42 [Dalhousie] Alumni News (Jan. 1931), 4. 43 Smith held only one significant directorship – Eastern Trust – a hand-medown from Stewart, who went on to greater things in the shape of Montreal Trust; Smith eventually became a vice-president of Eastern Trust. 44 Covert, ‘Firm History,’ X-1. Smith rarely accepted articled clerks; one of them (in 1939) was Robert L. Stanfield, whose late father Frank had been a pillar of the Conservative Party in Nova Scotia. 45 I base this and what follows on extensive correspondence in the R.B. Bennett fonds; MG 26 K, pp. 252000–12, NA (mfm at Provincial Archives of New Brunswick [PANB], Fredericton, NB).

Notes to pages 55–7

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46 William H. Angus, ‘Judicial Selection in Canada: The Historical Perspective,’ Canadian Legal Studies 1 (1967), 240–1; Peter H. Russell, The Judiciary in Canada: The Third Branch of Government (Toronto, 1987), 114. 47 Smith was president of the Nova Scotia Conservative Association. 48 Stewart to Bennett, 20 Sept. 1932 (a very strongly worded personal letter); R.B. Bennett fonds, MG 26 K, 252001–4, NA. 49 Doull had been defeated in the provincial election of August 1933 and was thus not only interested but also available. 50 After the war Stewart is said to have told Frank Covert, concerning litigation: ‘Forget all that nonsense’ (information from Andrew Hebb). 51 [1933] AC 156 (PC); [1931] SCR 531. This and what follows depend on David Ricardo Williams, Duff: A Life in the Law (Vancouver, 1984), 170–1, and Williams, Just Lawyers, 101. On the importance of the case see Peter W. Hogg, Constitutional Law of Canada, 3rd ed. (Toronto, 1992), 316–18; A.V. Lowe and J.R. Young, ‘An Executive Attempt to Rewrite a Judgment,’ Law Quarterly Review 94 (1978), 275 n. 43; G.P. Browne, The Judicial Committee and the British North America Act: An Analysis of the Interpretive Scheme for the Distribution of Legislative Powers (Toronto, 1967), 27, 78, 223; Richard A. Olmsted, comp., Decisions of the Judicial Committee of the Privy Council relating to the British North America Act, 1867 and the Canadian Constitution 1867– 1954 (Ottawa, 1954), III, 52–62; Norman MacKenzie and Lionel H. Laing, eds., Canada and the Law of Nations (Toronto, 1938), 118–21; D.A. MacRae, ‘Case and Comment,’ Canadian Bar Review 10 (1932), 601. 52 An arrangement that seems to have endured over the five years of the Bennett government, 1930–5. 53 (1932) 48 Times LR 652, at 655. 54 George Fletcher Henderson, Federal Royal Commissions in Canada, 1867–1966: A Checklist (Toronto, 1967), 123–4; Lord Macmillan, A Man of Law’s Tale: The Reminiscences ... (London, 1953), 334ff. Stewart, a director of the Royal Bank of Canada from 1931, was disqualified from personal participation in the work of the commission. 55 Macmillan, Reminiscences, 346–7. Concerning Macmillan’s interaction with other leaders of the Canadian bar, see Williams, Just Lawyers, 52, 101, 113, and 115. Stewart was also close to Baron Russell, a Roman Catholic lord of appeal (1929–46), the ‘substantive formalism’ of whose jurisprudence would have appealed to him: private information; A.W.B. Simpson, ed., Biographical Dictionary of the Common Law (London, 1984), 455–6, s.v. 56 Trinidad Electric Company Limited [plaintiffs] v. Attorney-General of Trinidad and Tobago and Mayor, Aldermen and Citizens of the City of Port-of-Spain [defendant]; JCPC Appeal No. 72 of 1931 (dismissed, 9 Dec. 1932). See also

202

57

58

59

60 61 62

Notes to pages 57–8

Annual Financial Review (Canadian), 1931, 1932, 1933, s.v. Trinidad Electric Company Ltd. For an anecdotal account of the litigation by a relative of John F. Stairs, who founded the company in 1901, see H. Gerald Stairs, ‘The Stairs of Halifax’ (unpublished ms., 1962), 135–6. The legal fees are said to have amounted to $400,000. Christopher Armstrong and H.V. Nelles, Southern Exposure: Canadian Promoters in Latin America and the Caribbean 1896–1930 (Toronto, 1988), 251– 3. Criminal Code Amendment Act, SC, 1933, c. 53, s. 17; British Coal Corporation v. R., [1935] AC 500 (PC). The original title of the proceeding was R. v. Canadian Import Co. et al. (Que. KB). Ian Bushnell, The Captive Court: A Study of the Supreme Court of Canada (Montreal, 1992), 541 n. 45; the Supreme Court of Canada played no role at all in the appeal, which Bushnell discusses at 251–2. Ibid., 252. Concerning Tilley’s involvement, see Williams, Just Lawyers, 82. [1939] SCR 104; (1939) 5 CNLC 123 (SCC). The formal title proper is In the Matter of a Reference as to Whether the Term ‘Indians’ in Head 24 of Section 91 of the British North America Act, 1867, includes Eskimo Inhabitants of the Province of Quebec. The Supreme Court file (1,950 pages) is No. 6639; the Department of Justice file is RG 13, vol. 2540, file C-1226, NA. The definitive study is now chapter 2 of Constance Backhouse, Colour-coded: A Legal History of Racism in Canada, 1900–1950 (Toronto, 1999). See also V.C. MacDonald, ‘The Constitution and the Courts in 1939,’ Canadian Bar Review 18 (1949), 148–9; Richard J. Diubaldo, ‘The Absurd Little Mouse: When Eskimos Became Indians,’ Journal of Canadian Studies 16 no. 2 (summer 1981), 34–40. See also Peter W. Hutchins, ‘The Legal Status of the Canadian Eskimo’ (LLM thesis, London School of Economics, 1971), 61ff; Clem Chartier, ‘“Indian”: An Analysis of the Term as Used in Section 91(24) of the British North America Act, 1867,’ Saskatchewan Law Review 43 (1978–9), 37; Richard Diubaldo, The Government of Canada and the Inuit, 1900–1967 (Ottawa, 1985), chap. 3, passim; Bryan Schwartz, First Principles, Second Thoughts: Aboriginal Peoples, Constitutional Reform and Canadian Statecraft (Montreal, 1986), chap. 17, passim; Williams, Duff, 206–7; John J. Borrows and Leonard I. Rotman, comps., Aboriginal Legal Issues: Cases, Materials and Commentary (Toronto, 1998), 439ff. ‘I have assumed throughout,’ writes Geoffrey Lester, ‘that the Supreme Court of Canada’s decision in Re Eskimos ... is applicable to the whole of Canada and that the Inuit of the Northwest Territories come within the reasoning in that case. This assumption is of course supported by current

Notes to pages 58–61 203

63

64

65 66

67 68 69 70

71 72

73

Federal and Provincial government practice.’ G.S. Lester, ‘The Territorial Rights of the Inuit of the Canadian Northwest Territories: A Legal Argument’ (DJur thesis, York University, 1981), li. Re Eskimos, as a ruling case, is bound to loom large in any study of Native people in twentieth-century Canadian jurisprudence. ‘Memorandum by the Deputy Superintendent General, Department of Indian Affairs, Ottawa, November 21, 1918,’ Case on Behalf of the Attorney General of Canada (Ottawa: King’s Printer, 1938), 597, Exhibit C[anada]-159. SC, 1924, c. 47, s. 1. See generally Diamond Jenness, Eskimo Administration, II: Canada ([place?], 1964), 40, and [Native North American Studies Institute], First Peoples in Quebec (Montreal, 1973), I: 144–5. Stewart to Plaxton, 15 Sept. and 18 Sept. 1934; Department of Justice fonds, RG 13, vol. 2540, file C-1226(i), NA. Case, 5; see also Case on Behalf of the Attorney General of the Province of Quebec (Ottawa: King’s Printer, 1938). The casebook reveals that the exhibits submitted on behalf of the attorney-general of Canada were 170 in number and fell into four categories: ‘geography and travel,’ ‘dictionary and occasional usage,’ ‘ethnology and anthropology,’ and ‘political and administrative.’ Bradford W. Morse, Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada, 1st ed. rev. (Ottawa 1989), 430; see also 5. Stewart to Plaxton, 19 April 1939 (copy), RG 13, vol. 2540, file C-1226(ii), NA. Order in Council PC 3797 (11 Oct. 1946). SC, 1951, c. 29, s. 4(1). By legislating exclusionarily, the government violated both the letter and the spirit of the Re Eskimos decision; see Shin Imai, The 1999 Annotated Indian Act and Aboriginal Constitutional Provisions (Toronto, 1998), 25, 245. Excluding Inuit from the Indian Act implicitly obliged the government to pass an Inuit Act; the Inuit people of Canada are still waiting. Douglas E. Sanders, ‘Aboriginal Peoples and the Constitution,’ Alberta Law Review 19 (1981), 420. Morse, Aboriginal Peoples, 430. ‘From a legal point of view,’ commented the editor of the Dominion Law Reports, ‘the chief interest in this case is the process by which the Supreme Court derived the intention of [the United Kingdom] Parliament’; Re Eskimos, [1939] 2 DLR 417, at 418 (Can. SC). Hogg, Constitutional Law, 1295, ‘Social-science briefs in references’; cf. Stewart to Edwards (deputy minister), 24 Jan. 1941, RG 13, vol. 2540, file C1226(ii), NA. The other two were criminal causes célèbres: Re Truscott (1967) and Re Milgaard (1992); Hogg states, ‘These three cases are quite outside the normal practice on references, which makes no provision for the formal

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76 77 78

79

80

81

82 83 84 85 86 87 88 89

Notes to pages 61–4

proof of facts.’ See also Vincent C. MacDonald, ‘Constitutional Interpretation and Extrinsic Evidence,’ Canadian Bar Review 17 (1939), 77–93. SC 1976–77, c. 32. Jenness, Eskimo Administration, 40–1. The possibility of an appeal was under consideration as late as December 1944; Crerar (Mines and Resources) to St Laurent (Justice), 20 Dec. 1944, RG 13, vol. 2540, file C-1226(ii), NA. Revision of the Indian Act was delayed until after the Privy Council appeal was finally abolished and the Supreme Court received ‘exclusive ultimate appellate civil and criminal jurisdiction’ – thus precluding the possibility that the Re Eskimos decision could be appealed further. Order in Council PC 908 (21 April 1939); [1940] SCR 49. See generally Bushnell, Captive Court, 243–77. Canadian Broadcasting Corporation, The National Forum (5 March 1939), transcript, J. McG. Stewart fonds; the transcript of Cronkite’s address is in the F.C. Cronkite fonds, series C, file (1), radio broadcasts, University of Saskatchewan Archives (Saskatoon). The definitive work is Alan C. Cairns, ‘The Judicial Committee and Its Critics,’ Canadian Journal of Political Science 4 (1971), 310; for a critique, see Frederick Vaughan, ‘Critics of the Judicial Committee of the Privy Council: The New Orthodoxy and an Alternative Explanation,’ ibid. 19 (1986), 495. Chief among them was F.R. Scott, Macdonald professor of law at McGill University, with whom Stewart had had a memorable confrontation during the public hearings of the Royal Commission on Dominion–Provincial Relations in January 1938. As early as 1930 Scott had advocated abolition of the appeal: ‘The Privy Council and Minority Rights,’ Queen’s Quarterly, 37 (1930), 668–78. Set up under the Excess Profits Tax Act, 1940, to assess standard profits for business corporations; it may be considered a collateral antecedent of the Tax Court of Canada. The board, a superior court of record from which there was no appeal, was chaired by Justice W.H. Harrison of the Supreme Court of New Brunswick. [1947] AC 127 (PC). Supreme Court Amendment Act: SC, 1949, c. 37. James McG. Stewart, ‘The Abuse of Freedom,’ Canadian Bar Review 20 (1942), 649. N.W. Rowell and Louis St Laurent. Stewart, ‘Appeals to the Privy Council,’ 4. Stewart to Covert, 14 April 1944 (courtesy Mary L.S. Covert). I am grateful to Philip Girard for making this suggestion. Nova Scotia Barristers Society (NSBS) Council minutes, 27 March 1914

Notes to page 65

90

91

92

93

94

95

96 97 98

99

205

(mfm at NSARM); NSBS annual meeting, 28 Feb. 1914: Canadian Law Times 34 (1914), 249. In August 1896 R.E. Harris was among the organizers of the short-lived Canadian Bar Association, and in March 1914 T.S. Rogers was a member of the original council of the newly re-formed CBA. The first of the three attempts to form a ‘dominion’ bar asssociation had been made as early as 1876. Unless otherwise indicated, this and what follows are based on the CBA’s Yearbooks (CBA YB), which include minutes and proceedings of the annual meeting. The archives of the CBA appear not to have been preserved; see generally K.G. Morden (registrar), ‘The Association Archives,’ Canadian Bar Review 26 (1948), 1468–9. According to Frank Covert, ‘The Canadian Bar Association held its annual meeting in Halifax and for a week work in the law offices just about ceased. Stewart was the [Nova Scotia] vice-president of the Canadian Bar and so our firm was turned loose to do our part in making it a success.’ ‘Autobiography,’ in ‘From the Diaries of Frank M. Covert: 50 Years in the Practice of Law’ (unpublished ms., 1980), 64. The others were the chief justices of Canada and Nova Scotia and the president of the CBA; Sir Lyman Duff delivered the convocation address. See generally Dalhousie University Special Convocation August 19th, 1936 and Stewart to Stanley, 8 June 1936, POC DAL MS-1–3/A-951, DUA. Charles Morse, ‘The Twenty-first Annual Meeting of the C.B.A.,’ Canadian Bar Review 14 (1936), 601. David Williams shows just how splendid this gathering of lawyers was in his biography of Chief Justice Sir Lyman Duff, who as a boy had lived in Nova Scotia: Williams, Duff, 189. For a candid description of the selection process, see Williams, Just Lawyers, 176; the CBA’s president was ‘always a noted counsel.’ Stewart was perhaps somewhat untypical in that he was both a ‘leading counsel’ and an élite corporate lawyer. He was a resident, rather than an expatriate, Maritimer like his predecessors Bennett (1929–30), Pitblado (1934–5), and J.W. de B. Farris (1937–8). CBA YB 25 (1941), 46–7. In 1919 Stewart had become treasurer of the NSBS. After ceasing to hold office in 1923, he remained a member of the council for two more years. The NSBS, at its annual meeting in April 1942, declared, ‘It is a matter of very great satisfaction to members of the Society that one of its members ... was elected President’ of the CBA: Annual Report of the Council of the Nova Scotia Barristers Society, 2 April 1942 (mfm at NSARM). Minutes, NSBS Annual Meeting, 29 April 1942 (mfm at NSARM).

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Notes to pages 66–9

100 Stewart announced, among other things, that he had named his immediate predecessor, D.L. McCarthy, as chair of a special committee to consider the question of aid to members of the legal profession in England who had suffered loss through enemy bombing: CBA Council (minutes of biannual meeting), copy in R.B. Bennett fonds, MG 26 K, 538417–18, NA (mfm at PANB). 101 Canadian Law List (Hardy’s) 1942, 217 (‘To the Members of the Legal Profession’). 102 Calculation based on ibid., 361–4. 103 The draconian Defence of Canada Regulations had been in force since the proclamation of the War Measures Act in September 1939. 104 ‘Civil Liberties,’ Canadian Forum, 249 (Oct. 1941), 212; ‘Report of Section on Administration of Civil Justice,’ CBA YB 25 (1941), 223–4; ‘Annual Meeting of the Canadian Bar Association,’ Fortnightly Law Journal 11 (1941), 73. 105 ‘Mid-Winter Meeting of the Ontario Section of the Canadian Bar Association,’ Fortnightly Law Journal 11 (1941), 231. 106 The transport controller issued an advisory, not an order – as would be done in 1945, when the CBA’s annual meeting had to be cancelled because of a ban on national conventions. 107 Annual meetings took place as usual in 1943 (Winnipeg) and 1944 (Toronto), but not in 1945, when the council convened in Montreal as it had done in Windsor three years earlier. 108 ‘Meeting of Council of the Canadian Bar Association, August 24–5th, [1942],’ Fortnightly Law Journal 12 (1942), 56. 109 [Cecil A. Wright], ‘War and the Legal Profession – Action Now,’ Canadian Bar Review 20 (1942), 616. 110 [R.M. Willes Chitty], ‘Inter Alia,’ Fortnightly Law Journal 12 (1942), 50. 111 On this and what follows, see E.H. Coleman, ‘The Canadian Bar Association,’ Canadian Bar Review 26 (1948), 18; Annual Report of the American Bar Association, 67 (1942), x–xi, 314; and the abbreviated text of Stewart’s address printed in the American Bar Association Journal, 28 (Oct. 1942), 676; cf. 679. 112 American Bar Association Journal, 39 (Aug. 1953), 709 (‘Diamond Jubilee Issue’). 113 See P.S. Atiyah, Rise and Fall of Freedom of Contract (Oxford, 1979), especially part III, ‘The Decline and Fall of Freedom of Contract: 1870–1970’ (571ff). The author discusses the rise of formalism among lawyers, which he suggests (661) had its full flowering after the First World War – when Stewart’s career as a corporate lawyer began to bloom and he was exposed to such influences from the lords of appeal in ordinary whom he admired

Notes to page 69

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115 116 117 118 119

120

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and emulated. These influences were to prove decisive in Stewart’s formation as a jurist. For him the essence of the British tradition in Canadian law was superior English jurisprudence, which in turn was central to his principled and reasoned anglophilia. The British tradition was liberation, not captivity, and the Privy Council appeal was at its apex. [1947] 3 DLR 195 (NSSC in Banco); the leading case and ‘still the basis of the present law in Canada.’ The appeal court intervened on behalf of the employer to overturn a certification order of the Labour Relations Board. The implications of the decision were far-reaching; every certification order could be appealed against by the employer and be subject to reversal by the Nova Scotia Supreme Court in Banco. The decision was written by Mr Justice Doull, a former Conservative attorney-general, while Stewart’s partner, C.B. Smith, was lead counsel for the employer. Nova Scotia’s Liberal government lost no time attempting – unsuccessfully, as it turned out – to dispose of the Zwicker decision once and for all. Within four months there was a new omnibus Trade Union Act, which not only gave substantive statutory existence to the Nova Scotia Labour Relations Board but also exempted its decisions and orders from judicial review. The board’s first chair was Dean Vincent C. MacDonald of Dalhousie Law School, who, on becoming a ‘labour judge’ of the Supreme Court of Nova Scotia in 1950, was converted to the utility of the Zwicker decision and applied it in his judgments. The business representative on the original three-person board was H.V.D. Laing, a protégé of Stewart’s and executive of National Sea Products, of which Stewart was vice-president. See generally Charles Steinberg, ‘Collective Bargaining Rights in the Canadian Sea Fisheries: A Case Study of Nova Scotia’ (PhD thesis, Columbia University, 1973), 208ff, and ‘The Legal Problems of Collective Bargaining by Canadian Fishermen,’ Labour Law Journal 25 (1974), 643. For a full discussion see chapter 9, below. Stewart, ‘Freedom,’ 654. Ibid., 656. The economist J.M. Keynes published The End of Laissez Faire in 1926; see Atiyah, Freedom of Contract, 625–6. Lord Hewart of Bury (Lord Chief Justice of England), The New Despotism (New York, 1929); cf. Atiyah, Freedom of Contract, 718. The association’s by-laws provided that the incumbent should deliver a presidential address on a topic of his own choosing – a practice that sadly has fallen into disuse. On this subject, see generally Peter S. Li, The Making of Post-war Canada (Toronto, 1996).

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Notes to pages 70–7

121 CBA YB 27 (1944), 31–2. 122 Further to chapter 7 of the Dumbarton Oaks Proposals, which gave birth to the charter of the United Nations. Unless otherwise indicated, this and what follows depend on John E. Read, Rule of Law on the International Plane (Toronto, 1961), 21–3, and George Curtis, ‘Dalhousie and the World Court, 1945 – A Recollection,’ Hearsay, 12, no. 1 (fall 1987), 18–19. 123 Quoted in ‘War and the Legal Profession,’ Canadian Bar Review 20 (1942), 625. 124 Stewart was forced to absent himself from the first formal meeting of the national committee, in Ottawa in February 1945, ‘suddenly recalled to Halifax’: CBA YB 28 (1945), 111. He was taking care of urgent business – the imminent resignation of Dalhousie’s president, Carleton Stanley, for whose overthrow Stewart was chiefly responsible. 125 Curtis, ‘World Court,’ 19. 126 See generally POC DAL MS-1–3/A-151 (Bennett Gift Committee), DUA. 127 As a member of the presidential search committee of Dalhousie’s board of governors, Stewart was preoccupied with the almost-impossible task of finding on short notice a credible replacement for Carleton Stanley as president of the university; see Waite, The Old College Transformed, 139–40. 128 Letter, Curtis to author, 17 Aug. 1997. 129 ‘By The Canadian Bar Association / and the / American Bar Association /  With recommendations respecting The International Court of the United States Organization, adopted unanimously 4 April 1945.’ 130 Curtis, ‘World Court,’ 19. 131 Bushnell, Captive Court, chap. 19. 132 Stewart to Covert, 14 April 1944. 133 SNS, 1944, c. 41; Bills 1944, RG 5 B, vol. 202, NSARM. The Barristers and Solicitors Act had been consolidated as recently as 1939. 134 Stewart to Covert, 14 April 1944 (eight days after the act was passed). 135 Annual report, NSBS (Council), 1 April 1944 (mfm at NSARM). 136 An ex-officio member of the council of the NSBS. 137 Gerald L. Gall, The Canadian Legal System, 4th ed. (Toronto, 1995), 232 n. 2, 519–20. 138 [A.M. Laidlaw, comp.], ‘The Thirty-seventh Annual Meeting of the Canadian Bar Association,’ Canadian Bar Review 33 (1955), 1053–4. Chapter 5: Business Law Man 1 Now Burchell Hayman Barnes. The then head of the firm, Charles James Burchell, had been a director of Dosco since its inception. Ralston ceased to

Notes to pages 77–80 209

2

3 4 5 6 7

8

9 10 11

12

13

be a director in September 1939, when he was appointed federal minister of finance. See generally ‘Dosco Gives Employment to 18,000 Nova Scotians,’ Halifax Mail, 15 Feb. 1939. There is as yet no scholarly history of this corporation, which in 1940 employed 25 per cent of Nova Scotia’s workers. Chapter 9, below. In 1939 Dosco employed 71 per cent of Nova Scotians working in the coal-mining industry. Cox, Canadian Strength, 73. I owe this term to Carol Wilton, ‘Introduction: Beyond the Law – Lawyers and Business in Canada, 1830–1930,’ 29. Marchildon, ‘International Corporate Law,’ 205ff. See Gregory P. Marchildon, ‘The Role of Lawyers in Corporate Management and Promotion: A Canadian Case Study and Theoretical Speculations,’ Business and Economic History, 3rd series, vol. 19 (1990), 193–202. The subjects of Marchildon’s case study are Charles Hazlitt Cahan and H.A. Lovett, ‘corporate entrepreneurs and lawyers’ a generation older than Stewart, both of whom left the Harris firm before Stewart joined it; their careers and Stewart’s form a study in contrasts. (Except where otherwise indicated what follows depends on this article, from which all unattributed quotes are taken.) Marchildon, ‘International Corporate Law,’ [201]; the two Canadian corporate lawyers who are the subjects of this case study are not Cahan and Lovett, but Harris and Cahan. Marchildon, ‘International Corporate Law,’ 203. Theodore D. Regehr, ‘Lash, Zebulon Aiton,’ DCB XIV, 606. According to David Frank, the collapse of Dominion Iron and Steel – the ‘weakest part’ of the (Besco) merger of 1921 – precipitated ‘a sharp fall in Canadian bond prices ... and marked the beginning of Besco’s disintegration’; David Frank, ‘The Cape Breton Coal Industry and the Rise and Fall of the British Empire Steel Corporation,’ in P.A. Buckner and David Frank, eds., The Acadiensis Reader, Volume Two: Atlantic Canada after Confederation, 2nd ed. (Fredericton, 1988), 233. It is just possible that Killam’s attentiveness to the fate of Besco’s subsidiaries reflected his knowledge or suspicion that the person behind the merger of Scotia and Dominion Steel in 1919–20 was none other than Lord Beaverbrook. Although ‘evidence for Max Aitken’s involvement is circumstantial,’ the timing is extremely suggestive: ibid., 216 n. 39. Montreal Standard (4 Jan. 1930), 44. Counsel, in addition to the eight-strong Halifax group, included I.F. Hellmuth, G.R. Munnoch, Glyn Osler, and W.N. Tilley in Toronto and Aimé Geoffrion and F.H. Markey in Montreal.

210

14 15 16 17

18

19

20

21

22 23 24

25

Notes to pages 80–1

See Re British Empire Steel Corporation Ltd; Re Dominion Steel Corporation Ltd, (1927) 59 NSR 390; 398. Canadian Annual Review of Public Affairs, 1926–27 (Toronto), 371–3; CAR, 1927–28, 446–7. E.R. Forbes and D.A. Muise, eds., The Atlantic Provinces in Confederation (Toronto, 1993), 249. Peter C. Newman, Flame of Power: Intimate Profiles of Canada’s Greatest Businessmen, reprint of 1959 ed. (Toronto, 1965), 40–1. SNS, 1928, c. 141; the bill was introduced in the legislature by the Conservative premier, Edgar Nelson Rhodes. Though Bill 202 does not survive, there is evidence in Stewart’s papers to suggest that he drafted it. In contrast, Besco, capitalized at an incredible $500 million, had been incorporated under the Nova Scotia Companies Act. See generally Frank, ‘Cape Breton Coal Industry,’ 233–5. There were 16 companies, including Besco and Dominion Utilities. At its takeover by Dosco, Besco owned Cumberland Railway & Coal, Daghild Canadian Steamship, Dominion Coal, Dominion Iron & Steel, Dominion Shipping, Dominion Steel, Dominion Utilities, James Pender & Co., and Sydney Lumber. Nova Scotia Steel and Coal (Scotia) controlled Acadia Coal, Eastern Car, Halifax Shipyards, Nova Scotia Land, and Wasis Steamship. Besco was a pyramid; Scotia itself, despite being a wholly owned subsidiary of Besco, was both an operating and a holding company. ‘Counsel for Holt-Gundy Interests,’ Halifax Herald, 30 March 1928; Duncan McDowall, Quick to the Frontier: Canada’s Royal Bank (Toronto, 1993), 241–2; Canadian Annual Review ... 1927–28, 336. ‘Receivers Named for N.S. Steel Co.,’ Halifax Chronicle, 20 Jan. 1933; RG 39 ‘C’ (HX), box 829, file 47911–2 , NSARM; Eastern Trust Co. v. Nova Scotia Steel & Coal Co. Ltd., (1938) 13 MPR 237 (NSSC in Banco). Although his firm was counsel for the liquidators, Stewart, as a director of the controlling corporation, could not appear for the receivers. It was also one of the first in which he began seriously to invest, as early as 1916; J. McG. Stewart KC – Investments – [c. 1916–36], 180 pages, Stewart fonds. ‘To Make Acadia Sugar a Canadian Concern,’ Toronto Financial Post, 15 July 1921. J. McG. Stewart, as quoted in Halifax Chronicle, 29 Aug. 1939. Acadia’s promoter, John F. Stairs, was the founder and first president of Royal Securities, set up ten years after the merger in the sugar-refining industry. Annual Financial Review (Toronto), 26 (July 1926), 103; ‘Going into Volun-

Notes to pages 81–4

26

27 28 29 30

31

32 33

34 35 36 37 38 39 40

41 42

211

tary Liquidation; Reorganization of the Acadia Sugar Refining Co. Ltd. Announced,’ Halifax Morning Chronicle, 13 April 1926; ‘Acadia Sugar Company Is Re-Organized,’ Halifax Morning Chronicle, 1 May 1926; ‘Canadian Co. Takes over Acadia Sugar,’ Halifax Morning Chronicle, 30 June 1926. This holograph document, written in pencil in a stenographer’s notebook, is in Stewart McKelvey Stirling Scales (Halifax), file 130,830 ‘FMC / Stewart, J. McG. Re Will – Material’; courtesy J. William E. Mingo, QC. ‘New Acadia Sugar Bonds Are Offered,’ Montreal Gazette, 8 Oct. 1926. ‘Acadia Sugar Refinery Ranks with Most Modern,’ Halifax Mail, 5 Dec. 1938. ‘Ontario Company Buys Old Acadia Sugar Refinery,’ Toronto Globe and Mail, 1 Nov. 1939. They were the Acadia Sugar Refining Company Ltd (Halifax), Atlantic Sugar Refineries Ltd (Saint John), St Lawrence Sugar Refineries Ltd (Montreal), Beamish Sugar Refineries Ltd (Toronto), Canada and Dominion Sugar Company Ltd (Chatham), and British Columbia Sugar Refining Company Ltd (Vancouver). At the end of 1939 Acadia was doing a large business in eastern and central Canada and on the Prairies in ‘fine high-grade sugar’; Monetary Times, 9 Dec. 1939, 737. Before the outbreak of war, it also exported to Britain, continental Europe, and South America. ‘Sugar Refineries Are Apparently Still in Doldrums,’ Toronto Financial Post, 5 Oct. 1928. For an excellent snapshot of the company in the summer of 1937, see J. McG. Stewart and D.R. Turnbull, ‘Sugar and Fish: A Reply to the Halifax Herald and Col. E.C. Phinney,’ Halifax Chronicle, 8 June 1937. ‘Anglo-Dutch Is New to Ottawa,’ Halifax Chronicle, 4 Aug. 1939. ‘Acadia Sugar Profits Near 1937,’ Monetary Times, 18 March 1939, 525. Frank Covert diary, 30 May 1939. Canada Gazette, 9 Sept. 1939, 736. ‘Acadia Sugar to Be Sold,’ New York Times, 2 Aug. 1939. ‘Acadia Sugar Acquires Half Atlantic Stock,’ Toronto Financial Post, 9 Dec. 1939. ‘To Give Identity of Buyers Soon: Vote for Sale Far above Required ThreeQuarter Majority; Queries Are Put at Meeting,’ Halifax Chronicle, 29 Aug. 1939. ‘Acadia Sugar Purchase Offer Made,’ Monetary Times, 12 Aug. 1939, 203–4. A.J.P. Taylor, Beaverbrook (New York, 1973), 394–5. There is an uncanny resemblance between the purchase price of Beaverbrook’s newspapers

212

43

44

45 46 47 48

49 50

51 52

Notes to pages 84–6

(£3 million) and the capitalization of Anglo-Dutch ($10 million). After the Anglo-Dutch promotion fizzled, Beaverbrook’s scheme for selling his newspapers to the staff ‘was never heard of again’: 396. Not only was Acadia a big borrowing client of the Royal Bank. In 1931 Morris W. Wilson, then the bank’s general manager, assisted with Beaverbrook’s failed attempt to consolidate the Canadian paper industry: Duncan McDowall, Quick to the Frontier: Canada’s Royal Bank (Toronto, 1993), 299. Further circumstantial evidence of the Royal Bank’s entrepreneurial interest in consolidating the nation’s sugar-refining industry was the appointment, on 3 October 1939, of S.R. Noble, the bank’s assistant general manager and self-appointed chief economist, as sugar administrator on the Wartime Prices and Trade Board (WPTB). Fifteen years earlier Killam had advised Beaverbrook that Acadia Sugar was ‘in debt and badly managed’: Katherine Bligh, comp., Catalogue of the Beaverbrook Papers in the House of Lords Record Office: Volume I, Canadian and Business Papers (London, 1997), file H356. So Killam bought it and put in place his RSC team, headed by Stewart, who reorganized it. Another venture capitalist whom Beaverbrook is known to have consulted was Ralph P. Bell, a director of Acadia Sugar. Taylor, Beaverbrook, 317, 330. Gregory P. Marchildon, Profits and Politics: Beaverbrook and the Gilded Age of Canadian Finance (Toronto, 1996), 27. The evidence is circumstantial yet highly suggestive; on 10 October 1939, when Beaverbrook was having lunch at the White House, Stewart was in New York on undisclosed business. One wonders whether their paths crossed again after Beaverbrook’s return from Canada and whether cancellation of the Anglo-Dutch promotion dates from that meeting. Beaverbrook sailed from New York for England on 16 October. Taylor, Beaverbrook, 396. According to Hector McKinnon, chair of the WPTB, the beet-sugar crop supplied about 15 per cent of Canadian requirements for refined sugar: ‘Warn That Continuance of Sugar Hoarding May Lead to Shortage,’ Halifax Chronicle, 3 Oct. 1939. Unnamed American interests had just proposed establishing a $2-million sugar-beet refinery in Lambton County, Ontario, presumably in Sarnia: ‘Would Establish Beet Sugar Plant,’ Halifax Chronicle, 2 Oct. 1939. William March, Red Line: The Chronicle-Herald [and] The Mail-Star, 1875–1964 (Halifax, 1986), 264. ‘To Give Identity of Buyers Soon,’ Halifax Chronicle, 29 Aug. 1939: detailed account of shareholders’ first meeting to consider and vote on proposal. The Anglo-Dutch promotion got overwhelming attention almost certainly

Notes to pages 86–8

53 54 55 56 57

58

59

60

61

62

213

because the newspaper’s proprietor, F.B. McCurdy, was a prospective member of the Anglo-Dutch board. Monetary Times, 2 Sept. 1939, 278. Ibid., 16 Sept. 1939, 346. ‘Acadia Sugar Acquires Half Atlantic Stock,’ Toronto Financial Post, 9 Dec. 1939. McDowall, Quick to the Frontier, 314. In fact, it was Stewart’s national reputation that reverberated through the Maritimes. J.W.E. Mingo, who joined the firm as an associate in 1950, recalled, ‘Jim Stewart had, of course, a close working relationship with Mr Muir, then the president of the bank, and I can well remember how impressed we were whenever he, as he sometimes did, arranged a substantial credit for a local client of the bank with a simple phone call to Montreal.’ Prepared text of speech, Royal Bank of Canada directors’ dinner, 11 Jan. 1984; copy in Frank Covert fonds. Supermarket magnate Frank Sobey superbly evoked banker Stewart – an executive vice-president in everything but name. Stewart, who helped launch Sobeys Stores Limited in 1946, ‘was the Royal Bank around here [Atlantic Canada], and there wasn’t a single important legal thing it did anywhere in Canada that he wasn’t in on. If he said to the Royal Bank, “Do this,” the Royal Bank did it.’ Harry Bruce, The Man and the Empire (Toronto, 1985), 164. Two of Stewart’s predecessors in the firm, Joseph Norman Ritchie and Tecumseh Sherman Rogers, were directors of the bank when appointed to the Supreme Court of Nova Scotia, in 1886 and 1921, respectively. Stephen Kimber, Net Profits: The Story of National Sea (Halifax, 1989), 73. One of Kimber’s interviewees, the lawyer H.P. (Hal) Connor, a former chairman of National Sea Products, described Stewart as follows: ‘Everyone referred to him as God ... He was the most brilliant lawyer to come out of these parts – one of those people who almost seemed to say nothing, but then when he did say something, you had to listen – and act on what he said.’ The only scholarly account of the creation of National Sea Products Limited appears in L. Gene Barrett, ‘Development and Underdevelopment, and the Rise of Trade Unionism in the Fishing Industry of Nova Scotia, 1900–1950’ (MA thesis, Dalhousie University, 1976), 129–34. See also his ‘Capital and the State in Atlantic Canada: The Structural Context of Fishery Policy between 1939 and 1977,’ in Cynthia Lamson and Arthur J. Hanson, eds., Atlantic Fisheries and Coastal Communities: Fisheries Decision-Making Case Studies (Halifax, 1984), 85–6. ‘Merger of Three Big Fresh Fish Firms Rumored,’ Halifax Morning Chronicle, 13 April 1926.

214

Notes to pages 88–90

63 L. Gene Barrett, ‘Underdevelopment and Social Movements in the Nova Scotia Fishing Industry to 1938,’ in Robert J. Brym and R. James Sacouman, eds., Underdevelopment and Social Movements in Atlantic Canada (Toronto, 1979), 135, 156–7 n. 78. 64 National Sea Products Limited, Directors’ minutes, 2 May 1946; this and what follows derive from records in the corporate archives of High Liner Foods Inc. 65 Bruce, Frank Sobey, 179. 66 Ibid., 179–80. 67 SQ, 1937, c. 24. 68 SQ, 1941, c. 28: Loi concernant l’expropriation de Beauharnois Light, Heat and Power Company. 69 SQ, 1945, c. 30, ss. 5 [16a], 26 [7c]. 70 Montreal Gazette, 20 Oct. 1945, 18 (‘Arbitration Body Nominations Made ...’). The recommendation of Stewart seems to have come from Aimé Geoffrion, counsel to MLH&P: Stewart to A.L. Macdonald, 17 Feb. 1944, enclosing letter from Geoffrion to A. Godbout (premier); Angus L. Macdonald fonds (index), MG 2, NSARM. The letters themselves are not extant. 71 In March 1945 a powerful minister in the Liberal government of Nova Scotia introduced a private member’s bill to expropriate the Halifax assets of Nova Scotia Light and Power (NSL&P). Neither government nor people were ready to take such a big step, however, and Bill 50 got the ‘six-month hoist.’ Senator W.H. Dennis, Stewart’s arch-enemy on the left of the Conservative Party, supported the measure editorially in his newspaper: March, Red Line, 338. NSL&P was not nationalized until 1971. 72 Stewart to Drake, 6 July 1953, James F. Drake Inc. archive, Harry Ransom Humanities Research Center (HRHRC), University of Texas at Austin. 73 Montreal Light, Heat and Power Consolidated et al. v. Quebec Hydro-Electric Commission et al., [1946] CS 331; see also Douglas H. Tees, Chronicles of Ogilvy, Renault 1879–1979 (Montreal, 1979), 107–8. 74 To inaugurate proceedings for relief against the crown. A petition of right could not be lodged except on the advice of the attorney-general, and Quebec’s was Premier Duplessis, whose government had enacted the amendments. 75 ‘In signing the Judgment prepared by the Chairman, His Honour Thomas Tremblay, Chief Justice of the Court of Sessions of the Peace, I indicated that I did so subject to a Memorandum of Reservations to accompany the Judgment’: Centre d’archives, Hydro-Québec (Montreal), H2/1402-01/1888 (dossier) – Expropriation de Beauharnois Light, Heat and Power Company:

Notes to pages 90–2

76 77

78

79 80 81 82

83

215

texte du jugement (mars 1953); Judgment in the Matter of the Expropriation of the Beauharnois Light, Heat and Power Co. (Montreal, 1953). At issue was ‘real value,’ which Stewart contended meant commercial or fair-market value, not appraised value for taxation purposes. Clarence Hogue et al., Québec: un siècle d’électricité (Montreal, 1979), [127]. McDowall, Quick to the Frontier, 94, 317, 338–42. We may assume that Stewart, who became directorial vice-president two years after Muir assumed the presidency, was Muir’s personal choice to fill the vacancy. Muir to Stewart, 3 Feb. 1955, J. McG. Stewart fonds. It seems unlikely that Muir ever received a reply; he was under the misapprehension that Stewart would recover. ‘L.A. Forsyth, Q.C.,’ Atlantic Advocate (Fredericton), Jan. 1957, 29. Maclean’s Magazine, 12 Oct. 1957, 13–7, 90–7. Chairman of Canada Cement; Stewart’s successor as directors’ vicepresident of the bank. Newman, ‘Canada’s Biggest Big Businessmen,’ 90, 94. Tory (1903–1965), though not born in Nova Scotia, was a Nova Scotian. His parents were from Guysborough, and he was a nephew of James Cranswick Tory, lieutenantgovernor from 1925 to 1930. Jack Batten, Lawyers (Toronto, 1980), 157. Tory became a director of the Royal Bank the same month (October 1951) as Stewart became a vicepresident. Chapter 6: The Alter Ego

1 Dalhousie was not the only university to which Killam gave money during his lifetime, but it was the only one from which he was prepared to accept the ‘bribe’ of an honorary degree. See generally POC DAL MS-1-3/A-704, DUA; ‘The Signs and Portents,’ Toronto Financial Post, 8 Sept. 1955; Douglas How, Canada’s Mystery Man of High Finance: The Story of Izaak Walton Killam and His Glittering Wife Dorothy (Hantsport, NS, 1986), 164–5, 127. 2 How’s oral and anecdotal biography, though unannotated, is an important sourcebook. ‘No thorough biography of the uncommunicative Izaak Walton Killam has yet been published (he left no papers)’: Anne Chisholm and Michael Davie, Beaverbrook: A Life (London, 1992), 551. 3 Cox, ‘Stewart,’ 73; Killam was not a graduate of Dalhousie, as Waite asserts in The Old College Transformed, 227. 4 On the Stairs family and family business, see James Frost, Business and Politics: The Stairs Family of Halifax, 1789–1975 (forthcoming). 5 Royal Securities Corporation (RSC) had been founded in 1903 by the Halifax

216

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7

8 9 10 11

12 13

14

Notes to pages 92–4

financier and venture capitalist John F. Stairs, chiefly in order to expedite creation of underwriting syndicates; it numbered among its original directors two of the three members of Harris, Henry & Cahan – Robert E. Harris and Charles H. Cahan. The Harris firm remained its solicitors until 1907–8, when Aitken’s dispute with Stairs’s senior business associates over the future direction of Stairs’s enterprises after his premature death in 1904 led to a parting of the ways. Aitken purchased control of RSC and moved its headquarters to Montreal. The most recent and best account of RSC and I.W. Killam’s early career therein is Marchildon, Profits and Politics, 36–138 passim. A useful source on the early history of RSC is Christopher Armstrong, ‘Making a Market: Selling Securities in Atlantic Canada before World War I,’ Canadian Journal of Economics 13 (1980), 438. See also Christopher Armstrong, Blue Skies and Boiler Rooms: Buying and Selling Securities in Canada, 1870–1940 (Toronto, 1997), 23–6. Even though Stairs spent almost all of his forty-year career in Montreal, it was not he but Stewart who in 1931 would have been ‘looked upon as the coming corporation lawyer in the Dominion’: ‘Meet an Alumnus ... Gilbert S. Stairs,’ [Dalhousie University], Alumni News (Jan. 1931), 3. Gregory P. Marchildon, ‘John F. Stairs, Max Aitken and the Scotia Group: Finance Capitalism and Industrial Decline in the Maritimes, 1890–1914,’ in Kris Inwood, ed., Farm, Factory and Fortune: New Studies in the Economic History of the Maritime Provinces (Fredericton, 1993), 197. Its capitalization had increased twenty-fold, from $50,000 to $1 million. Marchildon’s description of C.H. Cahan’s true position relative to Aitken when the latter was president of RSC. How, Canada’s Mystery Man, 65. Mitchell published the first monograph on Canadian company law, which earned him an academic DCL from McGill University: Victor E. Mitchell, Treatise on the Law Relating to Canadian Commercial Corporations (Montreal, 1916). I.W. Killam, J.C. MacKeen, and J. McG. Stewart (Nova Scotia); Ward Pitfield (New Brunswick). Halifax Morning Chronicle, 30 June 1926. RSC was a dispersed regional entity – well represented by offices in Halifax, Saint John, Charlottetown, Fredericton, and St John’s. Killam began his program of regional expansion immediately following the First World War by acquiring control of Fraser Companies Limited in New Brunswick, one of the country’s major manufacturers of spruce lumber, cedar shakes, and sulphite pulp. Monetary Times (Toronto), 3 Jan. 1919, 115;

Notes to pages 94–6

217

28 Feb. 1919, 52; 25 Jan. 1925, 25. 15 Killam made it a rule not to serve ‘on the boards of directors of companies other than his own,’ and not even then in every case. In the Maritimes his proxies were Stewart and J.C. MacKeen. See How, Canada’s Mystery Man, 118. 16 Pitfield, whom Killam squeezed out of RSC in 1928, was replaced by J.C. MacKeen, who became president of NSL&P in 1931. See generally Gregory P. Marchildon, ‘The Montreal Engineering Company and International Power: Overcoming the Limitations of the Free-Standing Utility,’ in Mira Wilkins and Harm Schröter, eds., The Free-Standing Company in International Business History (Oxford, 1998), 398–401. 17 How, Canada’s Mystery Man, 60; Harry Bruce, RA: The Story of R.A. Jodrey, Entrepreneur (Toronto, 1979), 135. 18 SNS, 1928, c. 144. 19 The first president of Bolivian Power was Victor Mitchell, Killam’s Montreal lawyer. 20 The light, power, tramway, and telephone system served about 110,000 people in 1925. Monetary Times (Toronto), 7 Aug. 1925, 27; Annual Financial Review (Canadian) 26 (July 1926), 467–8. 21 I base this and what follows on Jack K. Sexton, Monenco: The First 75 Years [1907–1982] (London, Ont., 1982), 38–50, passim. 22 ‘On the structural changes in the newsprint industry in Canada during the late 1920s,’ see the sources cited in Bill Parenteau, ‘The Woods Transformed: The Emergence of the Pulp and Paper Industry in New Brunswick, 1918– 1931,’ Acadiensis 22, no. 1 (autumn 1992), 29 n. 88. See also T.D. Regehr, ‘Entrepreneurs and the Canadian Newsprint Industry, 1923–1931,’ paper presented at the first Canadian Business History Conference, Trent University, May 1984. It is not correct to categorize Mersey as an ‘independent’ (Table iv); Killam, the controlling shareholder, was a major entrepreneur through RSC’s control of Price Brothers and its major stake in Abitibi, which was (and remains) the largest Canadian producer of newsprint. For context, see also L.D. McCann, ‘Metropolitanism and Branch Businesses in the Maritimes, 1881–1931,’ Acadiensis 13, no. 1 (autumn 1983), 117. 23 How, Canada’s Mystery Man, 36; Marchildon, Profits and Politics, 202–3. 24 ‘Canadian Forest Week, April 22–28,’ Halifax Chronicle, 24 April 1928. In 1936 RSC took over Price Brothers, Killam having earlier defeated an attempt by Beaverbrook to rescue the company from receivership and reorganize it. It was, according to Beaverbrook, his only defeat as a Canadian company promoter: A.J.P. Taylor, Beaverbrook (New York, 1972), 330. Abitibi-Price is now the largest newsprint manufacturer in the world.

218

Notes to pages 96–7

25 ‘Royal Securities Offer[s] $4,000,000 For Rolland Paper,’ Toronto Financial Post, 11 May 1928. 26 How, Canada’s Mystery Man, chap. 6, passim. 27 See generally William K. Carroll, Corporate Power and Canadian Capitalism (Vancouver, 1986), 122–3. 28 David Frank, ‘The 1920s: Class and Region, Resistance and Accommodation,’ in E.R. Forbes and D.A. Muise, The Atlantic Provinces in Confederation (Toronto, 1993), 242. 29 Marchildon and Cahill, ‘Stewart Law Firm,’ 295. 30 MacKeen (1898–1972), younger brother of Stewart’s law partner H.P. MacKeen, was a director (later vice-president) of RSC and ran its Nova Scotia operations. 31 The best historical account, however brief, is W.J. Reader, Bowater: A History (Cambridge, 1981), 104–6. See also Thomas H. Raddall, The Mersey Story (Liverpool, NS, 1979); Ralph H. Johnston, Forests of Nova Scotia: A History (Halifax, 1986), 145–7; and F.M. Covert, comp., Some Mersey Memoirs 1928– 1986: Some Important Events in the History of Bowater Mersey Paper Company Limited and Its Predecessor Mersey Paper Company Limited [Liverpool, NS, 1986]; How, Canada’s Mystery Man, chap. 10, passim. 32 ‘History of The Mersey Project Is Told in Brief,’ Halifax Daily Star, 16 Dec. 1929. 33 Unless indicated otherwise, I base the following on ‘History of the Mersey Enterprise’ – Contributed (obviously by an insider), Halifax Daily Star, 16 Dec. 1929. Another revealing insider’s account of the launching appears in the memoirs of the novelist Thomas H. Raddall, company bookkeeper 1929–38; see In My Time: A Memoir (Toronto, 1976), 149. 34 L. Anders Sandberg, ‘Forest Policy in Nova Scotia: The Big Lease, Cape Breton Island, 1899–1960,’ in L. Anders Sandberg, ed., Trouble in the Woods: Forest Policy and Social Conflict in Nova Scotia and New Brunswick (Fredericton, 1992), 78. 35 Stewart to Rhodes, 17 Aug. 1925, Edgar Nelson Rhodes fonds, no. 12827, MG 2, NSARM. 36 The incorporators were Stewart and his fellow senior partners, C.B. Smith and H.P. MacKeen. The ‘new’ RSC, incorporated in January 1928 and capitalized at $1 million, was reincorporated in January 1947 and continues today on the Nova Scotia registry as Merrill Lynch Canada Inc., which acquired it in 1969: Nova Scotia Department of Business and Consumer Services, Registry of Joint Stock Companies, files 5361, CRA 6088; ‘Province of Nova Scotia: No. A: Nova Scotia Companies Act [1900]: Ledger,’ 96:

Notes to pages 97–100

37 38

39 40

41 42 43 44 45 46 47 48

219

Registry of Joint Stock Companies fonds, RG 73, vol. 18, NSARM; Supreme Court of Nova Scotia, In re Royal Investment Corporation in liquidation: RG 39 ‘C’ (HX), box 801, file 2039 (1930), NSARM. Canadian Annual Review of Public Affairs ... 1927–28 (Toronto, 1928), 445; ‘Big Newsprint Mill Is Assured,’ Halifax Herald, 8 March 1928. SNS, 1928, c. 7; proclaimed 27 June 1929, at the particular request of Stewart: Stewart to Rhodes, 8 June 1929 (‘The understanding with the Government at the time the Act was passed was that we would only ask that it be proclaimed when we felt it was absolutely necessary’): Order in Council documents, Executive Council fonds, RG 3(§4), vol. 116, NSARM. The following day, again at Stewart’s request, an order-in-council passed designating Mersey as the company referred to in the act: O-i-C register, [RG 4] vol. 35, p. 73 (28 June 1929), NSARM. The powers conferred by the act related to municipal tax relief and the right to expropriate private land required for the development. Though incorporated under the Nova Scotia Companies Act, Mersey Paper Company Limited possessed the statutory powers of a quasi-crown corporation. No private company, even one incorporated by special act, had ever been clothed with such extensive powers. Needless to say, the Liberal leader (William Chisholm) thought the act ‘bad legislation,’ which placed ‘a dangerous power in the hands of the Government’; he might have added dangerous privileges in the hands of the government’s corporate friends and supporters. ‘Paper Bill Is among Last to Get Approval,’ Halifax Herald, 31 March 1928. ‘Huge Timberland Deal in Nova Scotia,’ Halifax Chronicle, 21 April 1928. Most of this land is still owned by the company. Just as, twenty-five years earlier, the organizational meeting of Royal Securities had taken place in the offices of Harris, Henry and Cahan: Marchildon, ‘International Corporate Law,’ 211. How, Canada’s Mystery Man, 9–12. Covert, Some Mersey Memoirs, 8. Ibid., 3. ‘Mersey Paper Co. Celebrates Silver Anniversary,’ Liverpool Advance, 2 Dec. 1954. The government cancelled the power contract in 1965. Macdonald to Stewart, 14 Sept. 1951; J.McG. Stewart fonds. Halifax Chronicle-Herald, 25 Nov. 1954; full-page advertisement with timeline, 1928–54. Covert, Some Mersey Memoirs, 1; Covert, ‘Autobiography,’ 69. Information from Vivian Morrison.

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Notes to pages 100–4

49 Covert, Some Mersey Memoirs, 2. 50 In his memoirs, Covert recalled how Stewart had disarmingly ‘weaned every one of his clients off’ to him; Covert, ‘Autobiography,’ 200. 51 Bowater had tried unsuccessfully on at least two previous occasions to acquire Mersey; Reader, Bowater, 104–6, 231–3. 52 L. Anders Sandberg claims that Raddall ‘idealized’ Mersey in the novel; ‘The Forest Landscape in Maritime and Swedish Literature: A Comparative Analysis,’ in Paul Simpson-Housely and Glen Norcliffe, eds., A Few Acres of Snow: Literary and Artistic Images of Canada (Toronto, 1992), 115–16. It would be truer to say that Raddall idealized Killam. 53 Bruce, RA ... Entrepreneur, 176. In 1962 Scott Paper concluded an agreement with the Conservative government to construct a mill in Nova Scotia – shades of RSC in 1928 and Stora in 1958. 54 In April 1929 Stewart incorporated R.A. Jodrey and Company Limited of Hantsport as a holding company. As a director of Mersey Paper, however, he was effectively barred from playing any further role in Jodrey’s chief operating company, Minas Basin, which was in direct competition with Killam’s. 55 Bruce, RA ... Entrepreneur, 81. 56 Ibid., 152. Stewart made amends twenty years later, seeing to it that Jodrey was appointed to the board of Nova Scotia Light & Power. But that was only after Killam and RSC had sold out of the company. 57 Information from John J. Jodrey (son). 58 Marchildon, ‘International Corporate Law,’ 226. Chapter 7: The ‘Royal Family’ 1 On this subject generally, see Ernest R. Forbes, The Maritime Rights Movement, 1919–1927: A Study in Canadian Regionalism (Montreal, 1979). 2 Wood, ‘Constructing Nova Scotia’s “Scotchness”,’ 285. 3 Concerning Smith, see Margaret Conrad, George Nowlan: Maritime Conservative in National Politics (Toronto, 1986), 75–85 passim. 4 The evidence is circumstantial; by 1922 at the latest Stewart had graduated to the back room. Stewart’s initial involvement in the party organization probably had something to do with the fact that C.E. Tanner, his father’s old friend and law partner, was president of the provincial association and leader of the party 1909–16. 5 Paraphrasing the title of the definitive study of the subject: E.R. Forbes, ‘The Rise and Fall of the Conservative Party in the Provincial Politics of Nova Scotia 1922–33’ (MA thesis, Dalhousie University, 1967).

Notes to pages 105–6 221 6 P.C. Aucoin, ‘The Conservative Leader in Nova Scotia: Selection and Position in a Minority Party’ (MA thesis, Dalhousie University, 1966), 94 n. 57. 7 Aucoin, ‘Conservative Leader,’ 96. E.N. Rhodes was a former Conservative MP and Speaker of the House of Commons; W.H. Dennis was proprietor of the Halifax Herald; and Frank Stanfield was an MLA and president of the provincial Conservative Party. 8 No less a figure than George Nowlan, who lost his seat in the provincial election of 1933, considered that the ‘sugar tax’ was a factor in the Conservative defeat and would undermine the party’s position federally if it was not repealed. It was not, and the Liberals captured all twelve Nova Scotia seats in the federal election of 1935. See Nowlan to Rhodes, 25 Aug. 1933 (copy); George Nowlan papers, Acadia University Archives (Wolfville, NS). 9 Interview with R.A. Donahoe, 8 Feb. 1998. Donahoe, in the 1930s a young Irish Catholic lawyer, first ran as a Conservative candidate in the provincial election of 1937; his opponent was Premier Angus L. Macdonald. 10 A younger contemporary of Donahoe’s, Bruce M. Nickerson, describes Stewart as a benevolent though unobtrusive presence within the Conservative Party, who could be relied on to find money to support the perennially cash-starved party organization. 11 According to Sandberg and Parenteau, ‘Mersey Paper and other corporations that were coming to dominate the Canadian forest industries needed no permanent political allies, only permanent economic supports.’ L. Anders Sandberg and Bill Parenteau, ‘From Weapons to Symbols of Privilege: Political Cartoons and the Rise and Fall of the Pulpwood Embargo Debate in Nova Scotia, 1923–1933,’ Acadiensis 26, no. 2 (spring 1997), 50–5. Mersey was to enjoy a near-total monopoly of the paper-manufacturing industry in Nova Scotia for over thirty years. 12 Wilton, Beyond the Law, 31. 13 Despite its extreme partisanship, the Halifax Chronicle is the single most reliable, not to mention one of the few available, sources of information on the inner workings of the Conservative Party in Nova Scotia during the years of government, 1925–33. Its proprietor was the financier Fleming Blanchard McCurdy, a renegade Tory and closet Liberal who had been both MP and cabinet minister in Arthur Meighen’s ‘National Liberal and Conservative’ government of 1920–1. 14 Alias, the ‘Royal Family.’ 15 ‘The Master Minds: A Bit of Political History,’ Halifax Chronicle, 1 April 1933. ‘Government Control’ referred to liquor sales, which was the subject of a plebiscite in October 1929 leading to passage of the Liquor Control Act in 1930.

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16 J. Murray Beck, Politics of Nova Scotia Volume Two: Murray – Buchanan, 1896– 1988 (Tantallon, NS, 1988), 128. 17 SNS, 1930, c. 18; the act, never proclaimed in force, was quickly repealed by the new Liberal government in 1934. 18 J. Murray Beck, Government of Nova Scotia (Toronto, 1957), 229 n 90. 19 For this and what follows, see Canadian Annual Review ... 1929–30, 424; Halifax Evening Mail, 24 April 1930. The Mersey Paper Company was not represented, nor was the Oxford Paper Company, holder of the 500,000-acre ‘Big Lease’ on Cape Breton Island. 20 Beck, Politics, 136. 21 Anders Sandberg takes the view that the act was stymied by opposition from Premier Rhodes, but that is to misunderstand the chronology. Rhodes left the premiership four months after the bill was passed, while the Conservatives remained in office for another three years. See Sandberg, ‘Big Lease,’ 79. If Rhodes dissembled, then it was because he feared that the controversy over the unproclaimed act would damage the government politically and complicate its relationship with RSC. The allegation that Mersey was to be the chief beneficiary of the act was a pure political canard. How could the company, to which the government had already given everything, possibly want more? Indeed, it seems probable that the bill, far from being enacted in Mersey’s interest, was not proclaimed because of the company’s opposition to it as extraneous, needlessly controversial, and apt to undermine its cosy relationship with government. 22 Beck, Government, 167. 23 Sandberg and Parenteau rightly treat the pulpwood embargo as a non-issue in relation to the Mersey Paper Company: ‘From Weapons to Symbols of Privilege,’ 50ff. Mersey Paper’s rise to dominance coincided with the fallingoff of the pulpwood embargo debate. 24 Stewart to Burchell, 9 Nov. 1936 (copy), Nova Scotia Department of the Attorney-General fonds, RG 10, series E, file 3, NSARM. C.J. Burchell, KC, was head of Burchell, Smith, Parker & Fogo (now Burchell Hayman Barnes). 25 Beck, Politics, 141; these cost overruns amounted to more than $2 million. 26 Raddall, In My Time, 159. 27 ‘There is, it is true, a feeling that the Minister of Fisheries is closer to the big corporations than is altogether desirable. The fishermen realize that under his premiership there seemed to grow up a large corporation control of public utilities and all the worthwhile industries in the Province.’ ‘By the Way,’ Halifax Chronicle, 27 Sept. 1930. The corporation, of course, was RSC. In February 1932 Rhodes succeeded Prime Minister Bennett as federal minister of finance.

Notes to pages 108–9 223 28 Lawson to Rhodes, 8 May 1935 (‘private & personal’); E.N. Rhodes fonds, MG 2, vol. 1201, doc. 76543, NSARM. (I am grateful to P.B. Waite for drawing this highly suggestive letter to my attention.) 29 Harrington replaced Rhodes as premier in August 1930 and gave up the party leadership temporarily in 1935. 30 ‘By the Way,’ Halifax Chronicle, 10 Sept. 1930. 31 See generally ‘By the Way,’ ibid., 15 Aug. 1930. 32 Halifax County Registry of Deeds, Fried to Stewart, book 657, p. 124 (no. 1070); the instrument was executed on 1 April and registered on 25 April 1930. 33 ‘Pentagon Has Star Boarder,’ Halifax Chronicle, 10 Aug. 1933. Scotch whisky being his nectar, Stewart had little sympathy for Conservative temperance advocates who had voted against government control in the liquor plebiscite. 34 ‘Mysterious Mr. X ———!,’ Halifax Chronicle, 14 Aug. 1933. On Stewart’s indirect involvement in the affairs of the Nova Scotia Liquor Commission, see ‘By the Way,’ ibid., 8 Sept. 1930. 35 ‘Power Trust in Nova Scotia? Monopoly about Formed. Interests Look for Control,’ ‘By the Way,’ ibid., 15 Aug. 1930; on the role of RSC, see generally Christopher Armstrong and H.V. Nelles, Monopoly’s Moment: The Organization and Regulation of Canadian Utilities, 1830–1930 (Toronto, 1988), 300–3. 36 Margaret Conrad mistakenly suggests that the Conservative government refused to intervene in the merger of NSL&P and Avon River Power, ‘the brainchild of ubiquitous empire builders J.C. MacKeen and R.A. Jodrey’: George Nowlan: Maritime Conservative in National Politics (Toronto, 1986), 43. Throughout her biography of Nowlan, Conrad consistently overstates the importance of Jodrey, who was never in the same league as Killam and his associates MacKeen and Stewart. Jodrey was merely a thorn in Killam’s side, which accounts for Stewart’s distancing himself from Jodrey after Killam entered into direct competition with him in 1929. 37 IN THE MATTER of the applications of the Avon River Power Company Limited, Chester Light and Power Company Limited, Dartmouth Gas, Electric Light, Heating and Power Company Limited, Edison Light and Power Company Limited and Sackville River Electric Company Limited. FOR THE APPROVAL of the sale and transfer of their undertakings and business to the Nova Scotia Light and Power Company Limited, [1932] PUB (NS) Decisions 25. 38 RSNS, 1923, c. 128. It remains part of the statute law: RSNS, 1989, c. 380, s. 62. 39 Where legislation amending the Public Utilities Act was drafted. Between

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45

46

Notes to pages 109–10

1925, when the Conservatives returned to power, and 1931, they amended the act seven times in matters affecting the capital structure of private utilities such as NSL&P. Stewart, as NSL&P’s general counsel, appeared before the Law Amendments Committee on its behalf. Bill 158 is not extant; its text appears verbatim in ‘Objections to Power Merger Plan Listed,’ Halifax Chronicle, 4 April 1933. The controversy was front-page news in the Halifax Chronicle (morning) and Daily Star (afternoon), March through May 1933. MacKeen was chair of the finance committee of the provincial Conservative Party, which helped return the party to power in 1928. Smith was immediate past president of the Nova Scotia Conservative Association; Covert was a former president. Stewart’s behind-the-scenes influence was such that he was the only senior executive of NSL&P who was neither named nor otherwise identified. He could be spared that humiliation precisely because he played no public or official role in the Conservative Party. ‘Squeezing the People,’ Halifax Chronicle, 22 March 1933. Another memorable image depicted a twelve-tentacled ‘light and power octopus’ with jaws of merger, its suckered arms seizing the communities of Avon River, Bedford, Chester, Dartmouth, Halifax, Kentville, Oxford, Rural Districts, St Margaret’s Bay, Springhill, Windsor, and Wolfville: Halifax Chronicle, 5 April 1933. Rumour had it that in return for financing another successful Conservative campaign, the promoters of the power merger would have their amendment bill put through the legislature. ‘Is the merger not dead but only sleeping?’: ‘Tons Of Money,’ Halifax Chronicle, 12 Aug. 1933. In re Meagher et al., a contested application for mandamus, was heard in an extraordinary late-night sitting of the Supreme Court of Nova Scotia by Mr Justice W.F. Carroll (a former Liberal MP) in chambers. The application was granted, and additional registrars were appointed. Smith, lead counsel for the three Halifax city returning officers against whom the mandamus writ was directed, told the judge ‘that he ought not to assume the function of the legislature’ by ordering the appointment of additional registrars: Halifax Mail, 20 July 1933. Smith’s involvement led to a charge by Liberal leader Angus Macdonald, after he became premier, that ‘the returning officers had sought legal advice from Conservative lawyers, rather than law officers of the Crown’: March, Red Line, 247–8. For his trouble, Smith was accorded the honour of a leading article in the Halifax Chronicle: ‘Whom the Gods Would Destroy,’ 22 July 1933; see generally Beck, Politics, II: 146–51.

Notes to pages 110–12

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47 For example, corporate lawyers Hector McInnes and W.H. Covert (Stanfield’s successor as lieutenant-governor) and William Duff Forrest, a former president of the Halifax Conservative Association, who in 1937 ran as a Liberal and won. 48 Lawson to Bennett, 15 Jan. 1935, R.B. Bennett fonds, 298472–5, University of New Brunswick Archives (UNBA), Fredericton. It is not known whether Lawson interviewed Stewart; see generally March, Red Line, 249. 49 Quoted in Forbes, ‘Conservative Party,’ 169. 50 For this and what follows see Stewart to Bennett, 26 Oct. 1937 (an important letter that sums up Stewart’s political philosophy), R.B. Bennett fonds, NA, MG 26 K, 548116 (mfm at PANB). 51 Two cases in point are the Corporation Securities Registration Act (SNS, 1933, c. 6), passed in the last session under the Conservative government, and the Liberal government’s Private Investment Holding Companies Act (SNS, 1938, c. 9). Both are likely to have been drafted in Stewart’s law firm. The latter, a somewhat un-Liberal measure falling outside the purview of the Securities Act, enabled wealthy individuals to incorporate themselves for the sole purpose of managing their investment portfolio – without being subject to strictures of the Companies Act, such as declared capitalization. The act, virtually unchanged after sixty years, is still in force and unique in Canada. 52 Stewart to Wilson, 7 April [1931], Stewart fonds. 53 Morrison, ‘James McGregor Stewart,’ 5. 54 ‘He was a strong Conservative but that did not mean that his house was a Conservative enclosure. His friendships crossed politics and many an evening Angus L. Macdonald lustily roared out Scottish songs at J. McG.’s piano’: Morrison, ‘Stewart,’ 5. Stewart was on excellent terms with Macdonald, whose son and namesake joined Stewart’s law firm in 1951. For a few months in 1930, before he became Liberal leader, Macdonald seems to have practised law in Stewart’s firm. 55 Theatres, Cinematographs and Amusements Amendment Act, SNS, 1939, c. 34; Covert, ‘Autobiography,’ 79–82. 56 March, Red Line, 264; ‘Make Bitter Attack on the Halifax Herald and Conservative Candidate,’ Halifax Herald, 8 June 1937. Needless to say, the lengthy and detailed rebuttal by Stewart and David Rowan Turnbull (managing director of Acadia Sugar) was front-page news in the Chronicle, 8 June 1937. 57 March, Red Line, 264. Two years earlier, Senator Dennis assured Earl Lawson that there was no feud between himself and Stewart: ibid., 249. 58 J. Murray Beck to author, 10 Nov. 1997.

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59 According to R.A. Donahoe, his running-mate, C.B. Smith spent $15,000 on the federal Conservative campaign in Halifax in 1940: interview, 8 Feb. 1998. The money came more probably out of Stewart’s pocket than Smith’s, for Smith was not a corporate lawyer, a businessman, or wealthy. 60 Beck, Politics, 182–3. 61 Stewart to Drake, 23 Nov. 1940; James F. Drake Inc. archive, HRHRC. 62 Stewart to Covert, 14 April 1944: ‘A good deal of pressure is being put on me to accept a nomination in Pictou County – Heaven knows I would much prefer to grow old at Braemar; but I will be honest enough to say that if it comes as a call I may stand’. C.B. Smith was campaign manager for Nova Scotia during the federal election of June 1945; see generally Conrad, George Nowlan, 75. In the provincial election held four months later, the Conservatives under their seatless leader, Leonard W. Fraser, a Halifax lawyer and scion of the ‘Royal Family,’ fell from four seats to zero. It was the nadir of the party’s electoral fortunes. 63 Cameron, Political Pictonians, 143–5. 64 Beck, Politics, 242; Donahoe went on to become attorney-general in Robert Stanfield’s government and in 1979 senator. 65 Stanfield, called to the bar in 1939, articled in Stewart’s law firm with C.B. Smith. 66 Rhodes (1925–30), Harrington (1930–5, 1936–7), and Leonard W. Fraser (1940–6). 67 It seems unlikely that either Stewart or Harrington bore any personal responsibility, although they could hardly have been unaware of the situation. 68 E.R. Forbes, ‘The 1930s: Depression and Retrenchment,’ in E.R. Forbes and D.A. Muise, eds., The Atlantic Provinces in Confederation (Toronto, 1993), 298. Chapter 8: Royal Commissionaire 1 Nova Scotia House of Assembly, Journal [1922], Appendix No. 33, ‘Report of the Royal Commission ...’ 2 Beck, Politics of Nova Scotia ... Volume Two, [83]. 3 ‘Report,’ 19–20; Canadian Annual Review of Public Affairs, 1921 (Toronto, 1922), 689. 4 What follows is based on National Archives of Canada, Government Archives Division: General Inventory Series: RG 33, Records of Federal Royal Commissions, Volume 1 (Ottawa, 1990), 115–6. 5 SC, 1930, c. 41. 6 Stewart played no part in proceedings before the Supreme Court of Canada

Notes to pages 118–19

7

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9 10 11

12 13

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and the Privy Council, which denied Saskatchewan’s construction of the agreement. Report of the Royal Commission on the Natural Resources of Saskatchewan (Ottawa, 1935). Chapter 4 of the Report of the Royal Commission on Dominion– Provincial Relations, Book II: Recommendations (Ottawa, 1940) was about ‘Saskatchewan’s Claim for Revision of the Natural Resources Award’; see 246. The definitive study of the subject is Gerard V. La Forest, Natural Resources and Public Property under the Canadian Constitution (Toronto, 1969). In July 1934 Stewart was appointed counsel to a cognate royal commission for Alberta: Report of the Royal Commission on the Natural Resources of Alberta (Ottawa, 1935); National Archives, Federal Royal Commissions, 117–9. Stewart afterwards lectured on the subject at Dalhousie Law School. On the background to the royal commission, see H. Blair Neatby, William Lyon Mackenzie King [Volume III] 1932–1939: The Prism of Unity (Toronto, 1976), 199–200, 243–5. See generally Robert M. Fowler, ‘Design for a New Dominion,’ Maclean’s Magazine (Toronto), 1 June, 15 June, 15 July, 15 Sept. 1940; and Wilfrid Eggleston, The Road to Nationhood: A Chronicle of Dominion–Provincial Relations (Toronto, 1946), 97–139. The only scholarly monograph is David Warren Fransen, ‘“Unscrewing the Unscrutable”: The Rowell–Sirois Commission, the Ottawa Bureaucracy and Public Finance Reform, 1935–1941’ (PhD thesis, University of Toronto, 1984). Another valuable study is Doug Owram, The Government Generation: Canadian Intellectuals and the State 1900–1945 (Toronto, 1986), 221–53. See Douglas H. Fullerton, Graham Towers and His Times (Toronto, 1986), 61– 91 passim. Quoted in National Archives, Federal Royal Commissions, 60–1. The principal commissioners were Chief Justice Rowell of Ontario, John W. Dafoe (editor of the Winnipeg Free Press), and Justice Thibaudeau Rinfret of the Supreme Court of Canada. Rinfret resigned in November 1937 because of ill-health and was replaced by constitutional law professor Dr Joseph Sirois, of the Chambre des notaires du Québec. When Rowell resigned as a member in October 1938, he was succeeded as chair by Sirois, who had been acting chair since May; see generally Margaret Prang, N.W. Rowell: Ontario Nationalist (Toronto, 1975), 488–97. H.A. Innis, ‘The Rowell–Sirois Report,’ Canadian Journal of Economics and Political Science 6 (1940), 562. Chief Justice Rowell had been leader of the Liberal Party in Ontario; Justice Rinfret, whom King appointed to the Supreme Court of Canada in 1924, had stood unsuccessfully as a federal Liberal candidate in 1908. He became chief justice of Canada in 1944.

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Notes to pages 119–21

14 [Anon.], ‘Canada I. The Dominion–Provincial Royal Commission,’ Round Table (London), No. 110 (March 1938), 374; reprinted as ‘A Canadian Solution: A Royal Commission,’ in J.R.H. Wilbur, ed., The Bennett New Deal: Fraud or Portent (Toronto, 1968), 224–8. 15 W.L. Mackenzie King diary (transcripts), 22 July, 11 and 25 Aug. 1937; MG 26, J 13, NA. See also Rowell to King, 4 Aug. 1937, King to Rowell, 14 Aug. 1937, Rowell to King, 13 Sept. 1937 (two letters): King Papers, MG 26 J 1, box 241, NA. 16 A snide reference to Rowell, who had been an anti-Laurier, pro-conscription Liberal minister in Robert Borden’s Unionist government of 1917–20. 17 ‘Royal Commission Draws on Dalhousie,’ Alumni News 1 no. 1 (Jan. 1938), 4, 13. Stewart is conspicuous by his absence from MacKay’s unpublished ‘Personal Reminiscences of the Rowell–Sirois Commission’ (1963). Robert Fowler commented: ‘I think you should mention MacGregor Stewart, our other senior counsel. His contribution was considerable, at the hearings, and in many letters to me and no doubt to others.’ Fowler to MacKay, 6 Aug. 1963, R.A. MacKay fonds, MG 30 E 159, vol. 10, NA. 18 On this, see Waite, The Old College Transformed, 54–5, 120; and Michiel Horn, League for Social Reconstruction: Intellectual Origins of the Democratic Left in Canada 1930–1942 (Toronto, 1980), 186. 19 House of Commons, Debates, 31 Jan. 1938, 29. There may have been an element of sour grapes in Bennett’s continuing opposition to the establishment and membership of the royal commission: first, his proposal made in January 1937 for a constitutional convention had got nowhere; second, he himself expressed interest in the chairmanship of the commission but was rebuffed. See Neatby, Prism of Unity, 199, 244. 20 Prang, Ontario Nationalist, 490. 21 Rowell to King, 13 Sept. 1937, King Papers, 207268. The original plan had Stewart as commissioner and a French Canadian as counsel. It may be that Rowell and Rinfret wished the professional balance of the commission to tip three–two (or even four–one) in favour of lawyers. Instead the ‘bookends’ were two professors, an economist and a political scientist. The appointment of the professors – one from the far west, the other from the far east – was an exercise in academic tokenism, which the prime minister viewed as a mere nod to regional sensibility. Neatby, Prism of Unity, 244. 22 Order in Council PC 2281 (15 Sept. 1937). 23 Emphasis added. 24 Stewart to Bennett, 26 Oct. 1937; R.B. Bennett fonds, 548116–8, KNBA (mfm at NA). 25 ‘I know of no one in Canada who could give better service or bring to bear

Notes to pages 121–2 229

26

27

28 29 30 31

32 33 34

35 36

upon the problems with which the Commission is dealing a keener mind or broader vision’: Bennett to Stewart, 16 Nov. 1937 (copy), R.B. Bennett fonds, 548119. Bennett expressed the desire to see Stewart during his next visit to Halifax the weekend of 19 November, and it seems probable that he did so. In November 1938 Bennett was invited to appear before the commission privately, but he declined to do so: correspondence, 26 Nov.–3 Dec. 1938, between Sirois (chair) and Bennett, copies in R.A. MacKay fonds, MG 30 E 159, vol. 10, NA. When Chief Justice Rowell was compelled to resign, Toronto’s Globe and Mail called for the appointment, as member and chair, of R.B. Bennett, who in the meantime had resigned as federal Conservative leader: Eggleston, Road to Nationhood, 116. ‘The Notary,’ Winnipeg Tribune, 9 Dec. 1937. The retirements of Rinfret and of Rowell upset the balance. Although Rinfret was replaced, Rowell was not. Attrition led to the loss of two of the commission’s three core members eighteen months before the report was tendered. Of the three, only John W. Dafoe survived. The game being poker, there may be some truth to the folklore that a debate ensued as to who would pay for the cab taking Stewart to the hospital. Stewart to Rowell, 10 Nov. 1937 (copy): Royal Commission on Dominion– Provincial Relations, RG 33–23, vol. 70, NA. ‘JBM’ (J.B. McGeachy), ‘Confederation Clinic, 1867–1937,’ in Winnipeg Free Press, 21 Jan. 1938. See also F.R. Scott, ‘The Royal Commission on Dominion–Provincial Relations,’ University of Toronto Quarterly 7 (1937–8), 141–51 (a thinly disguised attack on Canadian constitution-making by the Privy Council). Sandra Djwa, The Politics of the Imagination: A Life of F.R. Scott (Toronto, 1987), 153; Horn, League, 108–10. The transcript is at 2773–886, Royal Commission on Dominion–Provincial Relations fonds, RG 33/23, vol. 19, NA (mfm at NSARM). He posed the rhetorical question, ‘Do you think that there was ever a time in Canadian history when labour was freer and more powerful and more capable of looking after its own interests than it is today?’ Transcript, 2875. Horn, League, 110. I base this and what follows on chapter 4 of Kenneth Gary Jones, ‘Response to Regional Disparity in the Maritime Provinces, 1926–1942: A Study in Canadian Intergovernmental Relations’ (MA thesis, University of New Brunswick, 1980), 134–75. See also E.R. Forbes, ‘The 1930s: Depression and Retrenchment,’ in Forbes and Muise, Atlantic Provinces in Confederation, 303–5, and especially 512 for the influence of the Maritimes on both the

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44 45 46 47 48 49

Notes to pages 122–4

development and the eventual implementation of the commission’s recommendations. Beck, Politics II: 170. Nova Scotia’s submission was not only written but also co-presented by Macdonald himself. McGeachy, ‘Confederation Clinic,’ 9 Feb. 1938. Transcript, 9829ff. ‘Submission of the Central Committee of the Communist Party of Canada to the Royal Commission on Dominion–Provincial Relations’ (Exhibit 401), 99: RG 33/23, vol. 14, NA (mfm at NSARM). Dale C. Thomson, Louis St. Laurent: Canadian (New York, 1968), 95–6. In the end a constitutional amendment was required to entrench this feature of Bennett’s New Deal: Constitution Act, 1940. The royal commission overrode the decision of both the Supreme Court of Canada and the Privy Council in recommending Bennett’s legislation, and unemployment insurance was the only one of the commission’s recommendations on which the Liberal government acted immediately. The Unemployment Insurance Act, 1940, was assented to a mere three months after the commission presented its report. Fowler to MacKay, 6 Aug. 1963 (page 5); R.A. MacKay fonds; cf. Thomson, St. Laurent, 102. Submission by the Government of the Province of Nova Scotia to the Royal Commission on Dominion–Provincial Relations / February 1938. James P. Bickerton, Nova Scotia, Ottawa and the Politics of Regional Development (Toronto, 1990), 91. Peter W. Hogg, Constitutional Law of Canada, 4th ed. (Toronto, 1997), 145. ‘James McGregor Stewart, K.C.’ in Corolyn Cox, comp., Canadian Strength: Biographical Sketches (Toronto, 1946), 73. From April 1939, Bill 9, to abolish the Privy Council appeal, was under consideration by the Supreme Court of Canada, which in January 1940 ruled it constitutional. The commission limited itself to confirming the generally accepted view ‘that the Privy Council had changed the constitution’: Bushnell, Captive Court, 267; cf. Canada, 1867–1937, 55–9 (‘Provincial Rights and the Constitution – the interpretations of the Privy Council widen the powers of the provinces’). Striving for balance and impartiality, it did ‘not indulge, as has lately been the practice by many legal and historical writers, in extravagant criticism of the Judicial Committee of the Privy Council on the ground that its decisions thwarted the intentions of the Fathers of Confederation’: Alexander Brady, ‘Report of the Royal Commission on Dominion–Provincial Relations,’ Canadian Historical Review, 21 (1940), 248.

Notes to pages 125–7 231 50 Prang, Ontario Nationalist, 493. 51 Recommendations IV(2) deals with ‘Company Incorporation and Regulation,’ and III(2) with ‘Corporation Taxes’; see Report, Book II, 56–8, 113–17. The commission’s only substantive recommendation was that the provinces withdraw altogether from the field of corporation tax, an idea that soon bore fruit in the ‘tax rental agreements’; see generally R.M. Burns, The Acceptable Mean: The Tax Rental Agreements, 1942–1962 (Toronto, 1980). Stewart’s area of special interest and expertise was corporation finance, particularly taxation. The best account of the report’s effective shelving is J.L. Granatstein, Canada’s War: The Politics of the Mackenzie King Government, 1939–1945, (reprint of 1975 ed.) (Toronto, 1990) 159–74.

Chapter 9: Coal Bed of Procrustes 1 Stewart received $21,215.27 ‘for services rendered as counsel for the Royal Commission on Dominion–Provincial Relations’: ‘Secretary’ to Stewart, 19 June 1939 (copy), RG 33/23, vol. 70, NA. 2 Order in Council PC 2516 (3 Sept. 1939); see generally C.R. Waddell, ‘The Wartime Prices and Trade Board: Price Control in Canada in World War II’ (PhD thesis, York University, 1981), and Pauline Jewett, ‘The Wartime Prices and Trade Board: A Case Study in Canadian Public Administration’ (PhD thesis, Harvard University, 1950). 3 J.L. Granatstein, The Ottawa Men: The Civil Service Mandarins, 1935–1957, reprint of 1982 ed. (Toronto, 1998), 229–30. 4 ‘Big Man, Big Job,’ Halifax Chronicle, 30 Oct. 1939; Stewart was the first and most eminent Nova Scotian to become a ‘dollar-a-year’ man. 5 I base this and what follows on the monthly reports of the coal administrator, beginning with November 1939; as of 3 July 1942, the report became weekly: Wartime Prices and Trade Board fonds, RG 64, vol. 657, file 21-2-12, NA. 6 Harry Bruce, Corporate Navigator: The Life of Frank Manning Covert (Toronto, 1995), 102–3. 7 Order in Council, PC 3117 (18 Oct. 1939). The most comprehensive and easily accessible official source, 1939–42, is the eight-volume series, Proclamations and Orders in Council Passed under the Authority of the War Measures Act; continued by Canadian War Orders and Regulations. A most helpful bibliographical study is Sheila I. Stewart, ‘Statutes, Orders and Official Statements relating to Canadian War-time Economic Controls,’ Canadian

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11 12

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Journal of Economics and Political Science 13 (1947), 99. The extant records of the coal administration and coal control are dispersed among the Dominion Coal Board fonds (RG 81), the Wartime Prices and Trade Board fonds (RG 64), and the Wartime Industries Control Board records in the Department of Munitions and Supply fonds (RG 28 A) – all NA. Unless otherwise indicated, what follows is based on the following printed primary and secondary sources: Report of the Wartime Prices and Trade Board 3 Sept. 1939 – 31 March 1943 (Ottawa, 1944); Coal Controller, ‘Submission on the Coal Industry of Canada, as prepared for the Royal Commission on Coal, 1945’; Report of the Royal Commission on Coal: 1946 (Ottawa, 1947), 532ff.; ‘History of Coal Control’ [1947?], Wartime Prices and Trade Board fonds, RG 64, vol. 16, NA; and J. de N. Kennedy, History of the Department of Munitions and Supply: Canada in the Second World War, vol. II, Controls, Service and Finance Branches, and Units Associated with the Department (Ottawa, 1950), 52–79. On the circumstances of establishing the coal administration and Stewart’s appointment as administrator, see generally Dominion Coal Board fonds, RG 81, vol. 45, file 50-1-5, NA. Jewett, ‘Wartime Prices and Trade Board,’ 183; cf. Waddell, ‘Wartime Prices and Trade Board,’ 36: ‘The Board’s summary of activities has noted that “it has been the policy of the Board to appoint to these responsible positions [Administrators] men who were not directly connected with the industries they supervise, but who have a wide experience in business and public service.”’ The most perceptive analysis of ‘recruitment’ is Hart’s, who comes to the opposite conclusion; see Douglas Hart, ‘State Economic Management in Wartime: A Study of the “Regimentation” of Industry in the Canadian Industrial Mobilization, 1939–1945’ (PhD thesis, York University, 1981), 136–42. Stewart was also vice-president of Nova Scotia Light and Power, which was the first firm to take advantage of the subsidies and bounties paid under the Domestic Fuel Act, 1927, to companies using domestic coal to produce coal by-products, such as coke, gas, and tar. Robert J. Hayward and Peter Gillis, Records of the Dominion Coal Board (RG 81): Public Archives of Canada, Federal Archives Division, General Inventory Series (Ottawa, 1981), 2. Stewart did not resume his Dosco directorship after ceasing to be coal controller in July 1943. Granatstein, Canada’s War, 174. The best overview of the home front in the Second World War is Desmond Morton, Canada and War: A Military and Political History (Toronto, 1981), 104–25. See also the articles in Sidney Aster, ed., The Second World War as a National Experience (Ottawa, 1981). Order in Council PC 3117 (18 Oct. 1939).

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14 ‘Regulations Respecting Necessaries of Life,’ Order in Council, PC 2516 (3 Sept. 1939). 15 Order in Council PC 3470 (2 Nov. 1939). 16 Canadian War Orders and Regulations: 1942: Wartime Prices and Trade Board (Ottawa, 1943), 1; Ottawa Labour Gazette (Nov. 1939), 1103–4. ‘The Federal Coal Licensing Plan’ was the subject of Stewart’s address to the 36th annual convention of the Canadian Retail Coal Association in June 1940: Ontario Fuel Dealer 10, no. 5 (June 1940), 32–8. 17 ‘Wartime Prices and Trade Board: Functions and Objectives Reviewed by Minister of Labour in National Broadcast,’ Labour Gazette (Dec. 1939), 1228. 18 ‘Coal,’ ibid. (April 1940), 339. 19 Report of the Wartime Prices and Trade Board: September 3, 1939 to March 31, 1943 (Ottawa, 1943), 7. 20 Order in Council PC 3298 (20 July 1940). 21 On this subject generally, see C.B. Wade’s unpublished history of UMWA District 26 (mfm at NSARM) and David Frank, J.B. McLachlan: A Biography (Toronto, 1999). 22 It mirrored the national summit that had taken place in Ottawa in June, at which the cabinet and labour leaders agreed to a ‘declaration of principles for wartime regulation of labour conditions.’ Within the week the government set forth its wartime industrial relations policy in Order in Council PC 2685 (19 June 1940). Though prescribing an ambitious ten-point plan for ‘the avoidance of labour unrest,’ it was based on voluntary compliance and did not work. 23 Labour Gazette (Dec. 1940), 1239–40. 24 Order in Council PC 1447 (27 Feb. 1941); report printed in Labour Gazette (March 1941), 231–6. McTague was afterwards chair of the National War Labour Board. 25 ‘Recent Activities of Wartime Prices and Trade Board: Summary of Quarterly Report for Period January 1 to March 31, 1941,’ Labour Gazette (May 1941), 543–4; ‘Summary of Quarterly Report for Period April 1 to June 30, 1941,’ ibid. (Aug. 1941), 963–4. 26 Reprinted in Cox, Canadian Strength, 73–5. Stewart impressed the interviewer as ‘a direct individual who calls a spade a spade – in a nice way. Human, without a touch of bluster in him, he brings a good legal mind to bear on the industry’s problems, takes hold of each new situation with a well-developed power of swift analysis. He is a man whose personality and general bearing add weight to any conference he joins.’ 27 Order in Council PC 4061 (6 June 1941); the Defence of Canada Regulations, enacted under the War Measures Act, defined an ‘essential service’ as one

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that the government declared to be ‘essential for the prosecution of the war or to the life of the community’: Defence of Canada Regulations (Ottawa, 1939), 13, §2(1)(d). Michael Earle, ‘“Down with Hitler and Silby Barrett”: The Cape Breton Miners’ Slowdown Strike of 1941,’ Acadiensis 18, no. 1 (autumn 1988), 56–90; Paul MacEwan, Miners and Steelworkers: Labour in Cape Breton (Toronto, 1976), 225–38; Annual Report of the [NS] Department of Labour ... (Halifax, 1942), 9–11. Bryce Stewart, who had led the dominion delegation at the coal industry summit in December 1940, wrote exasperatedly, ‘From April 14 to April 19 [sic], a wholly unwarranted strike of 9,500 [sic: 6,500] men in the Nova Scotia coal mines over internal union issues caused a loss of 42,000 days [man-days], and this despite the fact that a Board of Conciliation had effected an agreement which was perhaps the most favourable to the men in the long and chequered history of those mines’: ‘War-Time Labour Problems and Policies in Canada,’ Canadian Journal of Economics and Political Science 7 (1941), 442. For Stewart, whose article was published while the slowdown was in progress, the strike preceding it was the ‘most conspicuous case’ country-wide of work stoppages contrary to collective agreements. Cox, Canadian Strength, 75. ‘Recent Activities of the Wartime Prices and Trade Board: Summary of Quarterly Report for Period April 1 to June 30, 1941,’ Labour Gazette (Aug. 1941), 963. The move came in response to a purchasing fraud involving the Bruce Coal Company of Ottawa. Order in Council PC 4600 (25 June 1941). The working relationship was already close, for the secretary of the Dominion Fuel Board, Frank G. Neate, was technical adviser to the coal administrator and in January 1942 became deputy coal administrator – a role all the more important on account of Stewart’s being in distant Halifax. Orders in Council PC 6016 (6 Aug. 1941) and PC 7082 (10 Sept. 1941). J.W. Pickersgill, ed., The Mackenzie King Record, Volume 1, 1939–1944 (Toronto, 1960), [268]-71. Joseph Schull, The Great Scot: A Biography of Donald Gordon (Montreal, 1979), 51–6 passim. Granatstein, Canada’s War, 174ff. and sources cited therein. Gordon to Ross Tolmie (Finance’s legal counsel); quoted in Schull, Great Scot, 56. Stewart so impressed McKinnon that McKinnon told him that he would ‘count it a great honor to work for’ him: McKinnon to Stewart, 20 Dec. 1940, J. McG. Stewart fonds. In May 1940 the federal government appointed a ‘commission to inquire into the cost of living bonus to be paid to the employees of the coal mine

Notes to pages 133–4 235

38

39 40

41 42 43 44 45

46 47 48

49

operators of Alberta and British Columbia’: George Fletcher Henderson, comp., Federal Royal Commissions in Canada, 1867–1966: A Checklist (Toronto, 1967), 136–7, §310. Between August 1940 and August 1941 the commission issued five reports. The reference is to alleged price-fixing by retailers in Fort William and Port Arthur (now Thunder Bay), Ontario; see ‘Coal Inquiry under Combines Investigation Act,’ Labour Gazette (Oct. 1940), 1000. Port Arthur’s MP was C.D. Howe, minister of munitions and supply. Kenneth W. Taylor, ‘The War-Time Control of Prices,’ in J.F. Parkinson, ed., Canadian War Economics (Toronto, 1941), 57. There was a district-wide strike and then a royal commission: Order in Council PC 8020 (14 Oct. 1943), ‘Royal Commission to investigate the demands of the coal miners of Western Canada’: Henderson, Federal Royal Commissions, 143, §325. Coal administrator monthly report no. 3 (Jan. 1940); WPTB fonds, RG 64, vol. 657, file 21-2-12, NA. ‘This agreement contained the principle upon which the general policy of wage stabilization was subsequently based’: Report WPTB 1939–1943, 7. For this and what follows, see House of Commons Debates, 5 June 1942, (3116–18). Ibid., 5 Feb. 1943 (175); statement by the minister responsible for the coal administration on the eve of its transfer to the WICB. On this subject generally, see David Allan Wilson, ‘“Close and Continuous Attention”: Human Resources Management in Canada during the Second World War’ (PhD thesis, University of New Brunswick, 1997). For Nova Scotia’s coal-mining industry, see especially Michael D. Stevenson, ‘National Selective Service and the Mobilization of Human Resources in Canada during the Second World War’ (PhD thesis, University of Western Ontario, 1996), 172–229 (‘Coal Labour’), and ‘“More Than Just Strong Backs and Weak Heads”: National Selective Service and the Regulation of the Coal Labour Force in Nova Scotia, 1942–1945’ (forthcoming in Acadiensis). Robert Bothwell, Ian Drummond, and John English, Canada 1900–1945, reprint of 1987 ed. (Toronto, 1990), 357. Coal administrator weekly progress report, 2 Oct. 1942; WPTB fonds, RG 64, vol. 657, file 21-2-12, NA. Order in Council establishing Emergency Coal Production Board, PC 10674 (23 Nov. 1942); ‘Emergency Coal Production Board Established,’ Labour Gazette (Dec. 1942), 1404–5. See also Dominion Coal Board fonds, RG 81, vol. 136, file 87–1–1; minutes of meetings of the ECPB are in vol. 145. Coal administrator monthly report no. 10 (Aug. 1940); WPTB fonds, RG 64,

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57 58

59

60

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vol. 657, file 21-2-12, NA. Had Stewart’s advice been heeded, the coal production emergency might well have been prevented. Saturday Night (Toronto), 13 Feb. 1943; reprinted in Cox, Canadian Strength, 153–5. Cox, Canadian Strength, 155. For example, by March 1943 the Dominion Coal Company had received some $353,000 to cover losses incurred between January and March 1942: ‘History of Commodity Prices Stabilization Corporation Limited’ (Domestic Subsidy on Coal), WPTB fonds, RG 64, vol. 88, NA. Stewart had assured the coal-mining companies that they would be recompensed for their losses if they maintained production at peak capacity. He was as good as his word. ‘To 1 June 1944, the Dominion Coal Company and its subsidiaries had received nearly eight million dollars in ECPB subsidies’: Stevenson, ‘National Selective Service,’ 204. According to the official history, ‘While it [the ECPB] was empowered to override existing laws concerning eligibility for coal mine employment, these powers were not directly exercised,’ 89: ‘History of Coal Control,’ WPTB records, RG 64, vol. 16, NA. Canada Year Book 1943–44 (Ottawa 1944), 312. Coal administrator weekly progress report, 8 Jan. 1943; WPTB fonds, RG 64, vol. 657, file 21-2-12, NA. Order in Council PC 1752 (5 March 1943), ‘Regulations respecting coal and coke.’ The powers of the coal controller, as comprehensive as they were exclusive, were set forth in §3(a)–(w) of the OiC. WPTB fonds, RG 64, vol. 657, file 21-2-12, NA. Aircraft, chemicals, coal, construction, machine tools, metals, motor vehicles, oil, power, ‘priorities,’ radioactive substances, rubber, ship repairs and salvage, steel, ‘supplies,’ timber, and wood fuel (separated from coal). There is no monograph history of the WICB, and the two monographic studies of the WPTB do not deal with its ambiguous relationship – cooperative/competitive – with the WICB. See generally Kennedy, Munitions and Supply, 3–22. Though far less well-known than the WPTB, the WICB was the most powerful of all the wartime boards, controlling far more than wartime industries; it effectively controlled provision of all essential goods and services, whether war-related or not. House of Commons Debates, June 1940–Nov. 1941, passim. See also Leslie Roberts, C.D.: The Life and Times of Clarence Decatur Howe (Toronto, 1957), 84–9; Robert Bothwell and William Kilbourn, C.D. Howe: A Biography (Toronto, 1979), 135–6, 159, 168. This situation remained unchanged, despite passage in August 1941 of

Notes to pages 136–8 237

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65 66

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an order-in-council making the WICB responsible for supply and allocation of all materials essential to the war effort: Order in Council PC 6835 (28 Aug. 1941). As coal controller, Stewart ‘was responsible for the control, maintenance and increase of coal production and coal imports; for the distribution or allocation of coal to domestic consumers, industry and the railways; for the allocation of Canadian coal to export markets and bunker supplies and for the overseeing and allocation of coal supplies to the Armed Services.’ Kennedy, Munitions and Supply, 54–5. It is difficult to see how these powers differed at all from those exercised by the coal administrator-cum-chair of the ECPB at the time of the transfer of responsibility from Finance to Munitions and Supply. House of Commons Debates, 18 March 1941 (1636–41); all the more embarrassing to Howe, the chair of the board was the former Liberal minister of finance, Charles A. Dunning. Gerald Godsoe, who knew virtually nothing about coal production, became a member of the ECPB despite Stewart’s strong recommendation of a respected coal-mine operator. Godsoe (Dalhousie LLB ’28), whom Henry Borden had recruited for the WICB, amazed everyone by succeeding Borden as chair of the WICB a year after joining the department in 1942. Godsoe’s path to success was paved by his association with Burchell, Smith, Parker and Fogo in Halifax – the most influential Liberal law firm in eastern Canada. Orders in Council PC 4361 and 4362 (both 28 May 1943). Telegram, Howe to Hanway, 25 Feb. 1943 (copy): WICB records, RG 28 A, vol. 223, file 196-5-10, NA. Hanway seems to have complied; the hearing on the valuation of NSL&P’s Halifax properties was postponed one week, as Howe had requested. Stewart to Borden, 24 April 1943; Borden to Stewart, 29 April 1943 (copy), WICB records, RG 28 A, vol. 223, file 196-5-10, NA. Not all the correspondence has survived, and some of the ground was covered not in letters but face to face or in long-distance telephone conversations between the two men. Waite, The Old College Transformed, 108–11. Macdonald was counting on Stewart to put the navy’s need for university buildings ahead of the university’s need for its own space. With Stewart gone there was no one on whom Macdonald could count to deal with President Stanley, who unrealistically was demanding cash compensation from the minister of finance for the armed services’ use of university land and facilities. Cabinet War Committee minutes and documents, Privy Council Office fonds, RG 2 (7c), vol. 12, doc. 505, NA.

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70 Ibid., doc. 514, NA. 71 Order in Council PC 4091 (17 May 1943); see also House of Commons Debates, 17 May 1943, 2701 (contains text of order). 72 See Pickersgill, Mackenzie King Record, 489–91; see also Henry Borden’s unpublished ‘Recollections’ (1978), 122–4: Henry Borden fonds, MG 30 A86, vol. 4, NA. 73 ‘Stabilization of Employment in the Coal Industry Regulations,’ Order in Council PC 4092 (17 May 1943), amended the National Selective Service Regulations so as to draft coal-miners out of the armed forces and to prevent their working in any industry except coal-mining. The hapless minister of labour, Humphrey Mitchell, who was not a member of the Cabinet War Committee and who had had little or nothing to do with developing the policy, did not even know that the coal administrator and the chair of the ECPB were one and the same official: ‘Manpower Policy in the Coal Industry; Declaration of National Emergency – Ex-Coalminers in Other Employment Returned to Mines,’ Labour Gazette (June 1943), 740. 74 The idea was Stewart’s: ‘I do not suggest bringing back our mine-labour from Active Service Forces overseas; but I feel that there will be tragic results unless every miner in the Services in Canada is at once put back to his mining work and an absolute ban put on enlistments as well as transfers and call-up on men still engaged in mining.’ Stewart to Donald Gordon, 3 Nov. 1942 (copy), WICB records, RG 28 A, vol. 219, file 196-5, NA. 75 House of Commons Debates, 11 June 1943 (3551–2). 76 ‘Ernest John Brunning, C.B.E., O.B.E.,’ Saturday Night (Toronto), 5 Aug. 1944; reprinted in Cox, Canadian Strength, 175. 77 WICB minutes of meeting, 2 June 1943, RG 64, box 1477, file 167-12-6-0, NA. 78 See generally WICB records, RG 28 A, vol. 219, file 196-5/2, NA. Coal rationing was never again seriously considered. In April Stewart had warned the WICB, ‘Do not use the word RATION in any way in connection with coal in your correspondence or statement to anyone’; telegram, Stewart to WICB, 21 April 1943. He understood better than Borden or Godsoe the public panic that would inevitably ensue. 79 Frank G. Neate, formerly technical adviser to the coal administrator, was promoted deputy coal controller in March 1943 and held the post until the end of coal control in December 1946. 80 There are many examples in Coal Control records, March–June 1943; see WICB records, RG 28 A, vol. 222, file 196-5-4, NA. 81 Memorandum, Borden to Howe, 17 June 1943 (copy); WICB records, RG 28 A, vol. 223, file 196-5-10, NA.

Notes to pages 140–3 239 82 A level interposed in October 1942 between the chair of the WICB and the controllers, to enable the former, who was directly answerable to the minister for the smooth operation of all controls, to keep a tighter rein on the activities of the latter. 83 Howe to Stewart, 29 June 1943 (draft); Henry Borden fonds, MG 30 A 86, vol. 2, NA; the draft, composed probably by Howe himself, was given to Borden to edit. 84 Stewart to Howe, 3 July 1943 (copy); WICB records, RG 28 A, vol. 223, file 196-5-10, NA. Order in Council PC 5402 (6 July 1943) rescinded Stewart’s appointment as coal controller. 85 Order in Council PC 5283 (2 July 1943). The appointment was made retroactive to 8 June; clearly Howe and Borden were preparing for a transition of power, although there seems never to have been any question of MacLaren’s becoming coal controller. The early effective date of his appointment – three weeks before Stewart was even asked to submit his resignation – gave Howe breathing space in which to choose Stewart’s successor. 86 Department of Munitions and Supply press release no. 283A, WICB records, RG 28 A, vol. 222, file 196-5-4, NA. 87 See generally Bothwell and Kilbourn, C.D. Howe, 144–9. 88 A.E. McMaster, later appointed associate wood-fuel controller. 89 Norman Brand, then acting deputy coal controller vice Neate. 90 Laurel Sefton MacDowell, ‘The Formation of the Canadian Industrial Relations System during World War Two,’ Labour/Le Travailleur 3 (1978), 182. 91 Cox, Canadian Strength, 175. 92 ‘Apparently my time away on the Coal job did not destroy my law practice. On the contrary it seems that all my clients saved up their tax problems until I got back into harness.’ Stewart to Drake, 5 Feb. 1944, James F. Drake Inc. fonds, HRHRC. 93 Stewart to Drake, 15 Aug. 1943, ibid. 94 Order in Council PC 8021 (14 Oct. 1943); it was revoked in December. 95 The list appeared in the Toronto Globe and Mail, 1 Jan. 1944. Stewart jocularly referred to his CBE (‘ccussed bad egg’) in replying to a letter of congratulations from the president of Dalhousie University: Stanley to Stewart, 3 Jan. 1944; Stewart to Stanley, 4 Jan. 1944, Dalhousie University, POC, MS-1–3/A951, DUA. 96 Stewart to Covert, 14 April 1944, Frank Covert fonds (privately held). 97 ‘Dollar-a-Year Men Are Praised by Minister [of Finance],’ Halifax Chronicle, 9 July 1943. 98 There is little reason to disbelieve Harry Bruce’s speculation that Stewart was the persuader behind Lionel Forsyth’s abandoning his élite law practice

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in 1949 in order to assume the vice-presidency and then the presidency of Dosco: Bruce, Frank Sobey, 179. Even more likely is that Stewart was behind Forsyth’s compensation, which came in 1951 in the shape of a coveted Royal Bank directorship. 99 Stevenson makes the telling point that, before coal control ended, ‘the Dominion government paid more than 18 million dollars in wartime production subsidies to Nova Scotia coal operators’: ‘“More Than Just Strong Backs and Weak Heads”,’ 27. (For ‘coal operators,’ read ‘Dosco subsidiaries.’) Altogether, during the war Dosco received corporate welfare amounting to almost twice that figure: ‘Aid to Dosco Is $33 Millions in Five Years,’ Toronto Financial Post, 22 Dec. 1945. Government support of Dosco – initially in the shape of the Canadian Coal Equality [Coke Bounty] Act – began on the eve of the Conservatives’ return to power in Ottawa in 1930 – the year when Dosco began doing business. See generally J.R. Donald, The Cape Breton Coal Problem (Ottawa, 1966), 30, 85. 100 In 1999 Devco was sold to American interests, a turning-back of the clock to 1893, when American capitalists promoted and financed the Domco merger; see ‘Cabinet to Shed $1B Money Pit,’ Ottawa Citizen, 27 Jan. 1999. Chapter 10: Victim, Protégé, Master 1 Doull to Bennett, 26 Jan. 1945 (copy); Records of Colleges and Universities, MG 17, vol. 20, file 3, NSARM. The definitive account is Waite, The Old College Transformed, chap. 5 passim; see now also Michiel Horn, Academic Freedom in Canada: A History (Toronto, 1999), 178–81. 2 I am preparing a scholarly biography of Stanley. 3 Stewart to Macdonald, 18 July 1937; Angus L. Macdonald fonds, MG 2, vol. 1536, file 1399, NSARM; the letter to which Stewart was replying is not extant. (I am grateful to Stephen Henderson of York University, who is preparing a scholarly biography of Macdonald, for drawing this letter to my attention.) 4 Waite, The Old College Transformed, 49–53. 5 Arthur R.M. Lower, My First Seventy-five Years (Toronto, 1967), 50. 6 Ibid., 215. 7 Dalhousie BoG minutes, 28 Nov. 1944 (unabridged stenographic report [u.s.r.]): Carleton Stanley fonds, MS-2-163, series B, files 84, 85, DUA. 8 Robert A. MacKay, ‘After Beauharnois – What? ... The Problem of Money in Politics,’ Maclean’s (Toronto), 15 Oct. 1931, 7–8, 61–3 (cover story/lead article); cf. T.D. Regehr, The Beauharnois Scandal: A Story of Canadian Entrepreneurship and Politics (Toronto, 1990), 192 (‘In a major article Maclean’s raised the question ...’).

Notes to pages 149–52

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9 The date on which Stanley entered on his duties; he was not formally inaugurated until October. 10 Dalhousie BoG minutes, 28 Nov. 1944 (u.s.r.); cf. ‘It happened that a notability here [Stewart], who professes a great regard for your opinions, was saying heavy, stupid things about a professor [MacKay] who had lifted up his voice about this same piece of political corruption [Beauharnois]. I was obliged to deal with him as the prophet dealt with David.’ Stanley to Sir Robert Falconer, 22 Dec. 1931 (copy), Carleton Stanley fonds, DAL MS-2163/B-17, DUA. 11 See generally T.D. Regehr, ‘“High-powered Lawyers, Veteran Lobbyists, Cunning Propagandists”: Canadian Lawyers and the Beauharnois Scandal,’ in Carol Wilton, ed., Beyond the Law: Lawyers and Business in Canada, 1830 to 1930 (Toronto, 1990), 403; Regehr to author, 12 Dec. 1995. 12 I am grateful to P.B. Waite for sharing this information with me. 13 On this subject, see further Waite, The Old College Transformed, 56–61. 14 McInnes and Stewart, Conservatives both, were the chief beneficiaries of the Liberal Pearson’s fall. At the decisive governors’ meeting on 6 June 1932, Stewart, despite expressing ‘regret’ at the ‘impasse’ between the chairman and the president, moved the resolution that passed unanimously and led immediately to Pearson’s resignation as chair and member of the board. The same language would be used in 1945. 15 The professors’ identity is obvious from a close reading of the Stanley Papers and of the president’s office correpondence in DAL MS-1-3, DUA: Raymond Jackson Bean (medicine), H.L. Bronson (physics), S.E. Smith (dean of law), and G.E. Wilson (history). 16 SNS, 1935, c. 104. 17 ‘Comments on letter from J. McG. Stewart to Colonel Laurie – Nov. 27, 1944:’ Carleton Stanley series, file 6, in John Clarence Webster Manuscript Collection, New Brunswick Museum (Saint John). 18 As early as 1932, Sir Robert Falconer had warned Stanley about McCurdy, ‘who directly and indirectly profits by all [stock] transfers. The well-established idea that no one on a board or government should personally profit by his position is totally unregarded here [Halifax].’ Stanley to Webster, 20 Feb. 1945 (copy), CS fonds, MS-2-163/B-120, DUA. 19 Quoting and paraphrasing S.B. Frost, McGill University: For the Advancement of Learning: Volume II, 1895–1971 (Montreal, 1984), 187–8. 20 Dalhousie BoG minutes, 12 Feb. and 10 May 1946; MS-1-1/A-11, DUA. 21 Stewart to Drake, 14 May 1947; James F. Drake Inc. archive, HRHRC. 22 A fact recognized by the official historian of the law school: Willis, Dalhousie Law School, 129. 23 H.V.D. Laing, an executive at National Sea Products (of which Stewart was

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29 30 31

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33 34 35

36 37

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Notes to pages 152–4

vice-president), joined the board in 1950, became vice-chair in April 1955, and replaced Laurie as chair in November. A lawyer by profession, Laing articled with Stewart and practised briefly with Henry, Rogers, Harris & Stewart in 1924–5. He had been secretary and vice-president of MaritimeNational Fish Limited, of which Stewart was quondam chairman. It was finished in 1951, thanks to a ‘very generous contribution’ from Stewart that covered the $600,000 cost overrun: Dalhousie BoG minutes, 25 May 1951, DAL MS-1-1/A-12, DUA; Waite, The Old College Transformed, 159–61. ‘A Cornerstone Is Laid,’ Alumni News 8, no. 1 (April 1950), 2. Covert to Stewart, 13 Feb. 1955; Stewart fonds. They were first cousins, their fathers being brothers. ‘Then he [W.H. Covert] did one of the greatest things which would affect my life forever’: ‘An Autobiography,’ in F.M. Covert, ‘From the Diaries of Frank M. Covert: Fifty Years in the Practice of Law’ (unpublished ms. 1980), 15. I am preparing a scholarly edition of Covert’s autobiography. Frank Covert’s bar admission file is at RG 39 ‘C’ (HX), box 795, file SC1584, NSARM. The original articles of clerkship were dated 26 February 1927. Covert, ‘Autobiography,’ 23. Ibid., 21; Frank M. Covert, personal diary, 8 May 1928. Covert began to keep a diary in 1920 at the age of 12: ‘Autobiography,’ 4; entries for the years 1920–2 and 1924–7 are no longer extant. Covert diary, 3 July 1928. Covert, who referred to Wilson as ‘The G.M.’ (general manager), would afterwards write, ‘I do not forget those early days when you taught me how a law office works!’: Covert to Stewart, 13 Feb. 1955, Stewart fonds. Covert diary, 16 July 1928. Ibid., 31 July, 1 Aug. 1928. F.M. Covert, comp., Some Mersey Memoirs 1928–1986: Some Important Events in the History of Bowater Mersey Paper Company Limited and Its Predecessor Mersey Paper Company Limited [Liverpool, NS, 1986], 2. Covert, ‘Autobiography,’ 24. Ibid., 69. Stewart also routinely sent Covert to Liverpool to ‘supervise the legalities of the Annual Meeting.’ Covert briefly became a director of ‘old Mersey’ after Stewart’s death in 1955, assisted Killam’s widow and lawyers with the sale of the company to Bowaters, and resumed his directorship of ‘new Mersey’ in 1962, holding it until his death in 1987. Covert diary, Jan.–Feb. 1929, passim; An Act for the Prevention of Fraud in Connection with the Sale of Securities (SNS, 1930, c. 3). Nova Scotia’s Securities Act was more advanced than those of the other Canadian jurisdic-

Notes to pages 154–7 243

39 40 41 42 43 44

45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61

tions because it combined sale of shares and prevention of securities fraud into one omnibus ‘blue sky law.’ See generally Christopher Armstrong, Blue Skies and Boiler Rooms: Buying and Selling Securities in Canada, 1870–1940 (Toronto, 1997). Nova Scotia had attempted unsuccessfully to enact such a bill as early as 1914 (70). F.M. Covert, ‘The Law School 1926–1929’ [April 1985], 2, Frank Covert fonds. Covert diary, 27, 28 Feb. 1930. Covert, ‘Autobiography,’ 24. Covert diary, 9 Dec. 1930; the raise had apparently been ‘promised months ago.’ In 1932 and for a few years thereafter, Covert recorded the date of Stewart’s wedding anniversary in his diary. Stewart to Wilson, 10 April [1931], J. McG. Stewart fonds. The romance with Miss C[overt], then 18, was certainly not off; indeed, it had only just begun. Covert began to ‘go steady’ with his cousin in October 1932 – shortly after Stewart indicated to him the possibility of his becoming a partner in the firm. Covert diary, 5–6 May 1931. Ibid., 4 June 1931. Ibid., 16 Oct. 1932, 2 Jan. 1933. Covert, ‘Autobiography,’ 44. Ibid., 35. Ibid., 47; Covert diary, 6 Oct. 1932. Covert diary, 15 Aug. 1932. Ibid., 1 Aug. 1932. Ibid., 6 Jan. 1934. Ibid., 21 Dec. 1935. Nova Scotia Department of Justice (Halifax County probate registry), estate file no. 13380. Covert, ‘Autobiography,’ 78. Ibid., 79. Information from John J. Jodrey, honorary chairman, Minas Basin Pulp and Power. Covert diary, 31 Oct. 1939. Ibid., 17 April 1940. When Stewart joined the WICB in March 1943, Covert was serving as assistant general counsel in the Department of Munitions and Supply. It seems unlikely that Covert, who was personally unknown to Henry Borden, general counsel, would have been invited to become a solicitor in the

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general counsel’s office had it not been for the intercession of Stewart. Eight months after his promotion to assistant general counsel (in January 1942), Covert resigned to enlist in the Royal Canadian Air Force. Covert, ‘Autobiography,’ 90. Frank Covert, ‘Stewart, MacKeen & Covert: Firm History,’ I-7. The fourth chapter of Harry Bruce’s biography of Covert is entitled, ‘He Finds Another Father’; Bruce, Corporate Navigator, 42. Stewart to Bambridge, 4 Feb. 1954 (copy); Stewart fonds; Stewart decided to write only when he gave up hope of being able to meet Kipling’s daughter. By 1953–4 his health would not permit any more overseas trips. Except where otherwise indicated, this section depends on the following sources: A.W. Yeats, ‘The Stewart Kipling Collection and Some Notes on Its Significance,’ Dalhousie Review 36 (1956–7), 112–5; J. McG. Stewart, comp., Rudyard Kipling: A Bibliographical Catalogue (Toronto, 1959); A.W. Yeats, ‘Kipling Collections in the James McG. Stewart and the University of Texas Libraries: An Appraisal of Resources for Literary Investigation’ (PhD thesis, University of Texas, 1961); Karen Smith, Vessels of Light: A Guide to Special Collections in the Killam Library, Dalhousie University Libraries (Halifax, 1996), 16–9; and ‘“The Best Kipling There Is”: The James McGregor Stewart Kipling Collection,’ in Eric L. Swanick, ed., ‘The Book Disease’: Atlantic Provinces Book Collectors (Halifax, 1996) [Dalhousie University, School of Library and Information Studies, The Occasional Papers Series, No. 58], 71–82. There is no evidence to support the claim, frequently made in print, that Rudyard Kipling ever visited Halifax, which he personified in the seventh quatrain of his fifteen-part cycle, ‘The Song of the Cities’ (1896). The alleged visit seems to be an inference from the poem, which scarcely bespeaks local or personal knowledge. Although Kipling is known to have visited all the other cities celebrated – in Australia, Canada, the Far East, India, and South Africa – none of his Canadian travelogues mentions Halifax. J. McG. Stewart, ‘Prophet of Empire’ (typescript); Stewart fonds. Stewart, Bibliographical Catalogue, xii (‘Author’s Preface’). ‘A Sketch of Rudyard Kipling from Notes Given to Elizabeth E. Stewart by J. McG. Stewart, who was a collector of “Kipling”’; Stewart fonds. Stewart to Kaplan, 1 April 1952; quoted in Israel Kaplan’s review of Stewart’s bibliography of Kipling; Dalhousie Review 39, no. 4 (winter 1960), 537. The ‘Immortals’ were the Olympian deities making up the Greek pantheon. E.W. Martindell, A Bibliography of the Works of Rudyard Kipling (1881–1923), rev. ed. (London, 1923); Stewart, Rudyard Kipling, 362–3. Like Stewart, Martindell was a lawyer by profession.

Notes to pages 159–61

245

73 J.A. Noonan to Vanier, 20 July 1932; Vanier to Kipling, 25 July (copy); Kipling to Vanier, 26 July; Vanier to Noonan, 26 July (copy); Vanier to Kipling, 26 July (copy); Vanier to Stewart, 4 Aug. (copy); Vanier to Kipling, 6 Aug. 1932 (copy); Georges P. Vanier fonds, MG 32 A 2, vol. 8, file 31, NA. 74 Robert Speaight, Vanier: Soldier, Diplomat and Governor General: A Biography (London, 1970), 175; Bateman’s Visitors Book, box 26, file 1, Kipling Papers, SxMs 38, University of Sussex, Brighton. 75 Elizabeth Stewart, address of thanks to Dr J.M.S. Tompkins (English Kipling scholar), 24 Nov. 1967; courtesy Vivian Morrison. Kipling’s Proverbsinspired wisdom poem, ‘The Thousandth Man’ (1910), was first published in book form in Rewards and Fairies. 76 J. McG. Stewart, ‘The Real Kipling: “When Comes Such Another”?’ Halifax Herald, 7 Sept. 1936 (letter to the editor). 77 ‘Sketch of Rudyard Kipling’; see also Stewart, Bibliographical Catalogue, §538. 78 See generally Charles Carrington, Rudyard Kipling: His Life and Work (London 1955), 501–2, 518; Lord Birkenhead, Kipling (New York, 1978), 348–51. See also Flora V. Livingston, Supplement to Bibliography of the Works of Rudyard Kipling (1927) (Cambridge Mass., 1938), 86, §615; Stewart, Bibliographical Catalogue, 396, §538. 79 ‘Sketch of Rudyard Kipling,’ 10. 80 Thomas Pinney, ed., The Letters of Rudyard Kipling, Volume 1: 1872–1889 (London, 1990), vii; citing Michael Brock, ‘“Outside His Art”: Rudyard Kipling in Politics,’ Kipling Journal no. 245 (March 1988), 9–32. 81 Carrington, Rudyard Kipling, 492. 82 Sir Christopher Robinson to Stewart, 4 July 1936; Kipling Collection, DAL/ KIL/SP.COLL. Stewart’s letter, to which Robinson was replying, is not extant. 83 London Daily Telegraph, 29 July 1936; Elsie Bambridge papers, box 23, file 6, University of Sussex Library (Manuscripts Section), Brighton; George MacMunn, Rudyard Kipling: Craftsman, rev. ed. (London, 1938), 22–3 (‘the peace complex of Oliver Baldwin turned on his cousin’); Birkenhead, Kipling, 316–19. Concerning ‘Mary Postgate,’ which was republished in book form in A Diversity of Creatures (1917), see Peter E. Firchow, ‘Kipling’s “Mary Postgate”: The Barbarians and the Critics,’ Etudes anglaises 29, no. 1 (1976), 27–39. See also ‘Uncle [sic!] Rudyard,’ Living Age: The World in Review (New York), no. 351 (Oct. 1936), 158–9 (editorial). 84 ‘Kipling’s “Wickedest Short Story”: Cousin of Empire Poet Severe Critic, Defenders Rally,’ Toronto Star Weekly, 29 Aug. 1936; Stewart, ‘The Real Kipling’; ‘World Loses Great Literary Leader in Poet’s Death,’ Halifax Herald, 18 Jan. 1936.

246 85 86 87 88 89 90

91 92 93 94 95 96

97 98 99

Notes to pages 161–5

Stewart, ‘Prophet of Empire,’ 19. Halifax Herald, 7 Sept. 1936. Carrington, Rudyard Kipling, 492. Stewart to Drake, 25 May 1937; James F. Drake Inc. archive, HRHRC. H. Anson-Cartwright to D.J. Morrison, 22 June 1982 (courtesy Vivian Morrison). Charles Sessler (Philadelphia), James F. Drake Inc. (New York), and Maggs Bros. (London). Marston Drake (‘Colonel Drake’), president of James F. Drake Inc., estimated ‘that his firm has handled from eighty to ninety per cent of all the rarer Kipling items in this country [United States], his company having devoted special attention to this author’; Yeats, ‘Kipling Collections,’ 19. Stewart to Kaplan, 10 Nov. 1948; courtesy David Kaplan. Carrington, Rudyard Kipling, 492. Ibid., 492. Stewart to Kaplan, 20 Nov. 1948 (copy); Stewart fonds. McLaughlin to Kerr, 12 Jan. 1961 (copy); POC, DAL MS-1-3/A-717, DUA. ‘Kipling in Extenso,’ Times Literary Supplement (London), 2 Sept. 1960, 568; University of Toronto Quarterly 29 (1959–60), 484–5 (N.J. Endicott); Queen’s Quarterly 67 (1960–1), 494–5 (H.P. Gundy); Journal of English and Germanic Philology 59 (1960), 741–3 (Stanton Millet); Book Collector 9 (1960), 482, 485 (R.J. Roberts); Critical Quarterly 2 (1960), 286 (Bonamy Dobrée); Library, 5th series, vol. 16 (1961), 63–5 (I. Angus); Papers of the Bibliographical Society of America, 55 (1961), 64–5 (C.T. Naumburg); and Review of English Studies, n.s., 13 (1962), 102–3 (R.L. Green). See also H.E. Gerber and E.S. Lauterbach, comps. and eds., ‘Rudyard Kipling: An Annotated Bibliography of Writings about Him’ (Part Three), English Fiction in Transition 3, no. 5 (1960), 196–7. Livingston, Supplement, [Foreword]. Stewart, Bibliographical Catalogue, xi–xii. Paraphrasing Kerr to Muir (copy), 12 April 1955; POC, DAL MS-1-3/A-715, DUA. Chapter 11: Twilight of the God

1 J.W.E. Mingo, directors’ banquet address, Royal Bank of Canada annual meeting, 11 Jan. 1984; F.M. Covert fonds. Stewart had to spend half of each week in Montreal. If an extra carriage – a sleeper – was needed on short notice, one would be added to accommodate him: information from Evelyn W. Coppell (Stewart’s secretary from 1949 on). 2 Private information.

Notes to pages 166–7 247 3 4 5 6 7

8 9

10 11

12 13

14

15 16 17

Information from Evelyn W. Coppell. Ibid. Stewart to Drake, 12 July 1954; James F. Drake Inc. fonds, HRHRC. I am grateful to Dr Allan Marble for assisting me with this ‘diagnosis.’ Mary Morrison (Mrs Vincent P. Donnelly), then a trainee nurse at the Royal Victoria Hospital, was a particular favourite of Stewart’s; she often had lunch or dinner with him at the Ritz-Carlton Hotel. On one memorable occasion, when Stewart took her to dine with the Killams, Dorothy Killam had her model a fabulous diamond necklace. Private information. Private information. The first cardiac surgeon arrived in Halifax after Stewart’s death in 1955, and the city’s first open-heart surgery took place in 1956 (information from Allan Marble). One of whom was an associate professor in Dalhousie’s Faculty of Medicine. Elizabeth Stewart had been advised by one of the attending physicians that the blockage to Stewart’s heart had cleared: E. Stewart to B.C. Whittaker, 31 Jan. 1955; referred to in Whittaker to Stewart, 14 Feb. 1955, Stewart fonds. This was ‘the some sort of a setback in Montreal’ that Burnham Mitchell, executive vice-president of Royal Bank, said Stewart had had: K.F. MacKenzie to Elizabeth Stewart, 19 Jan. 1955; Stewart fonds. Covert’s diary, 9 Feb. 1955, makes no reference to this telephone call. This is wishful thinking or hindsight on Covert’s part – and unlikely; Stewart had had five years to appoint Covert an executor if he wished to do so. Nor is it likely to have had anything to do with the Bishop Asphalt negotiations, which had already been satisfactorily concluded. Covert, ‘Autobiography,’ 218. Speculation has focused on the nature of Stewart’s urgent matter. He may have wanted to alter his will in respect of Dalhousie University, which had just received as an outright gift his valuable Kipling library. In the event, Dalhousie was also to receive 90 per cent of the residue of Stewart’s estate, which, subject to the life interest of his widow, amounted to some $734,500 at the time of her death in the spring of 1971. Information from the late Donald J. Morrison, QC, who kept a weather diary; courtesy Vivian Morrison. Information from Vivian Morrison. David Rowan Turnbull (Acadia Sugar Refining), Wilbur Bertrand Proctor (Moirs Limited), Harold G. Connor (Maritime National Fish), Fred C. Manning (United Service Corporation), R.A. Jodrey (Minas Basin Pulp and Power), Clyde Cameron (Maritime Steel and Foundries), and John C. MacKeen (Royal Securities).

248

Notes to pages 168–71

18 Covert to Mrs Stewart, 13 Feb. 1955; Stewart fonds. 19 List of telegrams and phone messages in Stewart fonds; originals no longer extant. 20 Pictou Advocate, 17 Feb. 1955. 21 Afterwards president of Dalhousie University. 22 It was Muir who wrote the editorial ‘“Jim” Stewart of Halifax’ that appeared in the Montreal Gazette the day of Stewart’s funeral. 23 Deutsch No. 343 (1816). 24 Copy enclosed in Bentley (Secretary) to Mrs Stewart, 16 Feb. 1955; Stewart fonds. 25 ‘J. McG. Stewart,’ Royal Bank Magazine (March 1955), 36. 26 There may have been more; a strongbox containing securities is thought to have disappeared from Stewart’s office in the immediate aftermath of his death; private information. 27 Covert to Flinn, 16 Sept. 1955: J. McG. Stewart estate executorship records, Montreal Trust Company. 28 In November 1971 it was pressed into service for the use of Yugoslavia’s Marshal Tito, who was receiving an honorary doctorate from Dalhousie. 29 Established in 1945 and reorganized in 1967, Braemar Investments Limited still exists. 30 Covert, ‘Autobiography,’ 220. 31 Stewart executorship records, Montreal Trust Company. Covert had greater success evading the Dominion Succession Duty Act as it applied to Stewart’s donation of his Kipling library. 32 E.E. Stewart to Drake, 25 July 1953; James F. Drake Inc. fonds, HRHRC. 33 Covert, ‘Autobiography,’ 224. 34 ‘Three Prominent Nova Scotians to Be Honored by Saint Mary’s,’ Halifax Mail-Star, 26 April 1969. The two others were Robert Stanfield, leader of the Progressive Conservative Party of Canada, and Ralph T. Vaughan, vicepresident of CNR. 35 SMU Convocation, 12 May 1969; courtesy office of the president, Saint Mary’s University. 36 Stewart’s law firm had acted in this capacity from its beginning, one of its two founding partners, Sir Malachy Bowes Daly, eventually becoming in 1890 the province’s first Roman Catholic lieutenant-governor. 37 Nova Scotia Department of Provincial Secretary fonds, RG 7, box 343, file 354a; box 344, file 362a, NSARM. A misleading account of the resolution of the crisis appears in J. Brian Hanington, Every Popish Person: The Story of Roman Catholicism in Nova Scotia and the Church of Halifax, 1604–1984 (Hali-

Notes to pages 171–3 249

38

39 40

41

42 43

fax, 1984), 213ff. I am grateful to Karen White, archivist, Archdiocese of Halifax, for shedding light on this complicated transaction. Drawn from a parchment tribute to Stewart by Ralph P. Bell, promoter and first president of National Sea Products Limited – ‘in recollection of the strenuous and eventful days of June, July, August and September 1945,’ when the company was being organized: Stewart fonds. Ironically it was Stewart who, a few years later, helped persuade Bell (against his better judgment) to sell out of the company, whereupon Stewart continued as vice-president. This leveraged buyout by directors was financed by the Royal Bank, of which Stewart was a vice-president. I base this and what follows on my interview with Mrs Coppell, 17 Jan. 1998. A.E. Kerr to Mrs Stewart, 13 Feb. 1956; Stewart fonds. In 1955–6 J.B. McLachlan (BA ’52) was Nova Scotia Light and Power Company Limited Teaching Fellow in English at Dalhousie. Jessie Fitch to author, 9 Aug. 1997; Elizabeth Stewart was a member of the board of management of the Children’s Hospital, Halifax, at the time. Stewart’s largest single cash bequest ($30,000) went to that institution – now the IWK–Grace Health Centre for Children, Women and Families – ‘for the endowment of a ward in memory of my wife’ (she outlived him). ‘IWK’ is Izaak Walton Killam. MacPherson to G.P. Marchildon, 1 Oct. 1997 (author’s copy). On this subject generally, see Ernest R. Forbes, The Maritime Rights Movement, 1919–1927: A Study in Canadian Regionalism (Montreal, 1979). Stewart, close to the ‘heretic’ F.B. McCurdy, was among those progressive Conservatives who liberated the party from the Maritime Rights strait-jacket, thus helping it to triumph both federally and provincially in Nova Scotia in 1925.

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Picture Credits

All photographs except the four noted below are reproduced with permission of Vivian S. Morrison. Chronicle-Herald Limited: Muir, Macdonald, and Stewart Don MacIsaac: unveiling of plaque on site of Pictou Academy National Archives of Canada: James McGregor Stewart, by Karsh (p. xxii) Pictou County Genealogy and Heritage Society: 1906 graduation photograph, Acc. 99-118, Pictou Academy fonds

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Index

Abitibi Power & Paper, 96, 217n22 Abitibi-Price, 217n24; see also Abitibi Power & Paper; Price Brothers Acadia Sugar Refining, 50, 78, 81–6, 105, 112, 154–5, 157, 210n24, 211nn30–1, 212nn43–5, 225n56 Acadia Trust, 84 Aikins, G.H., 67 Aitken, William Maxwell. See Beaverbrook, Baron Alberta, strip mining in, 135 Alberta Coal Branch, 134 Allied War Supplies Corporation, 137 Almon, Susannah W.A., 39, 197n3 American Anthracite Association, 127 American Bar Association, 66, 68, 70–1 ‘An Undefended Island’ (Kipling), 160 Anglo–Dutch Sugar Refining, 83–6, 212nn42, 48, 52 Annapolis Valley, NS, 94

‘Appeals to the Privy Council,’ 61–3 Arichat, CB, 4 Armstrong, E.H., 31 Atlantic, Battle of the, 133 Atlantic coast fisheries, 88 Atlantic Sugar Refineries, 82, 84, 86, 211n30 Auchallater (lairdship), 4 Aucoin, Peter, 105 Avon River Power, 94, 101 Baldwin, Oliver, 160–1, 245nn83–4 Baldwin, Stanley, 161 Bambridge, Elsie, 158, 244n65 Bank Act, 70 Bank of Canada, 131–2 Bank of Nova Scotia, 87 Banking and Currency, Royal Commission on, 56, 118, 201n54 Bankruptcy Act, 53 Barristers and Solicitors Act (NS), 72 ‘Bateman’s,’ viii, 158–9, 161–2 Bean, R.J., 241n15 Beaton, Bell & Ross (law firm), 83

254 Index Beatty, Sir Edward, 151 Beauharnois Light, Heat & Power (BLH&P), 89–90 Beauharnois Power Corporation, 89–90, 150 Beauharnois scandal, 150, 241n10 Beaverbrook, Baron, 84–5, 92–3, 95, 101, 151, 209n12, 211n42, 212nn43–4, 48, 216nn5, 9, 217n24 Beck, J. Murray, 31, 118, 122 Beech Street School (Halifax), 6 Bell, Adam Carr, 104 Bell, Ralph P., 88, 130, 212n45, 249n38 Bennett, R.B., 55–6, 71, 108, 111–12, 117, 120–1, 147–8, 228n19, 229nn25–6 ‘Bennett’s New Deal,’ 64, 111, 125, 230n43 Bentley, Lieuana. See Creelman, Lieuana Berry, Gerald (archbishop), 46, 168 Besco, 80, 91, 209nn11–12, 210nn17–18 Bill 151. See Land Tax Act (NS) Bishop Asphalt, 247n13 Bituminous Coal Division (U.S. Department of the Interior), 129 Black River, CB, 4–5 Board of Referees. See Excess Profits Tax Act Bolivian Power, 94–5, 217n19 Borden, Henry, 91, 138–41, 157, 237n64, 238nn72, 78, 239nn83, 85, 243n61 Borden, Ritchie & Chisholm (law firm), 37, 104 Borden, Sir Robert, 181n12, 182n21, 228n16 Boulderwood Park Company Ltd, 197n2

Bowater Inc. See Mersey Paper Bowater Mersey Paper. See Mersey Paper Bowater’s, 100 ‘Braemar’ (Halifax), 42–3, 46, 65, 127, 155, 166–8, 180n6 Braemar Investments, 248n29 Brand, Norman, 239n89 Brandram-Henderson, 50 British Coal Corporation v. R., 57–8, 160 British Columbia, strip mining in, 135 British Columbia Pulp & Paper, 96 British Empire Steel Corporation. See Besco Bronson, H.L., 241n15 Brooklyn, NS, 96 Brown, Margaret, 38, 194n43 Bruce, Harry, 88, 127, 239n98, 244n64 Bruce Coal Company, 234n30 Brunning, Ernest John, 141–2 Buck, Tim, 123 Bulmer, John Thomas, 181n15 Burchell, Charles J., 91, 107, 208n1, 222n24 Burchell, Smith, Parker & Fogo, 237n64 Bushnell, Ian, 62 Cabinet War Committee, 131, 134, 136–9, 238n73 Cahan, Charles H., 93, 101, 209nn7–8, 216nn5, 9 Calcots Academy, 3 Cameron, H. Scott, 168 Cameron, James, 32, 191n5 Camp Hill Cemetery (Halifax), 169 Campbell, Douglas F., 190n4, 192n16 Campbell, George S., 27

Index Canada Cement, 85, 169 Canadian Apartment Company, 194n38 Canadian Bar Association (CBA), 63– 71, 73, 84, 205–6; ‘Bases of Peace’ Committee, 70–1; Canadian Bar Review, 63, 67 Canadian Coal Equality Act, 240n99 Canadian National Railway, 82 Canadian Northern Railway, 52 Canadian Press, 168 Canadian Retail Coal Association, 233n16 Cape Breton Development Corporation. See Devco Carrington, Charles, 162 Carroll, W.F., 44, 224n46 Cassels, R.S., 33, 192n21 Chambers, Robert W., 109–10 Children’s Hospital (Halifax), 249n41 Chipman, Warwick, 66 Chisholm, Joseph A., chief justice, 53, 70, 181n13 Chisholm, William, 219n38 Chronicle (Halifax), 105–6, 108–10, 126, 221n13 Chronicle Publishing Company, 24 Church of Scotland (Kirk), disruption in (1843), 32 Church Union (1925), 29–37 Churchill, Winston, 85, 171 Classical Association of the Maritime Provinces, 27–8, 190n70 coal administration (wartime), 66, 126–43, 231–40 passim coal control. See coal administration Commodity Prices Stabilization Corporation, 132 Communist Party of Canada, 123

255 Complete Works of Rudyard Kipling, 160 Connolly, Joseph P., 112, 166 Connor, Harold G., 168 Connor, Harold P., 213n60 Conrad, Margaret, 223n36 Conservative Party (Canada), 113 Conservative Party (Nova Scotia), 103–14, 220–6 passim Coppell, Evelyn W., 166, 171, 246n1, 249n39 Corporation Securities Registration Act (Nova Scotia), 225n51 Corunna Shipping Company, 197n2 Covert, Frank, 37, 52, 55, 72, 83, 91, 98–101, 112, 142, 152–7, 166–7, 170, 201n50, 220n50, 242–4 passim, 248n31 Covert, Mary L.S., 152, 155–6, 243n44 Covert, Minnie Alma, 156 Covert, W.H., 51, 109, 152–3, 156, 224n42, 225n47, 242n28 Covert, W. Michael S., 156 Cowan, Gordon Stewart, 157 Cox, Honora, 39, 195n53 Cox, Robinson, 182n21 Creelman family, 104 Creelman, Jane, 6 Creelman, John, 5–6, 10 Creelman, Julia Frances. See Stewart family: Julia Frances Creelman, Lieuana, 5 Creelman, Samuel, 6–7 Criminal Code, 135 Cripps, Sir Stafford, 171 Croft, E.R., 56 Croft v. Dunphy, 56, 159, 201n51 Cronkite, Frederick C., 61–3, 204n78 Crowe, Walter, 32 Cunard, William, 42

256 Index Curtis, George F., 71 Cushing, Richard Cardinal, 45 Customs Act, 56 Dafoe, John W., 120, 227n11, 229n27 Dalhousie, Earl, 27 Dalhousie University, 15–29, 34, 56–7, 92, 138, 142, 147–52, 168, 247n14; Arts and Administration Building, 152; Centennial Campaign (1920), 26; Committee of Nine, 189n59; Committee of Seven, 26–7; Dalhousian, 25; Dalhousie Alumni Association, 26; Dalhousie Amateur Athletic Club, 19, 187nn14–15; Dalhousie College Act (1935), 150; Dalhousie Expansion Appeal (1946–9), 151; Dalhousie Forward Movement (1911–12), 24; Dalhousie Gazette, 5; Dalhousie Law School, 25, 38; Dalhousie Students’ Campaign (1914), 24–5, 189n46; Dalhousie University Press, 163; Forrest Building, 186n8. For presidents, see Forrest, Rev. John; MacKenzie, A. Stanley; Stanley, Carleton Daly, Sir Malachy Bowes, 196n62, 248n36 Davidson, Margaret. See McGregor, Margaret Defence of Canada Regulations (DOCR), 66, 130–1, 136, 206n103, 233n27 Dennis, William H., 105, 110, 112, 214n71, 221n7, 225n57 Departmental Ditties (Kipling), 8 Depression, Great, 82, 98, 101, 114, 118 Devco, 143, 240n100 Dillon, Rev. Philip A., 41

Disraeli, Benjamin, 104 Domestic Fuel Act, 232n10 Dominion Coal, 77, 127, 130, 210n18, 236n52, 240n100 Dominion Fuel Board, 131, 234n31 Dominion–Provincial Relations, Royal Commission on, 65, 111, 118–25, 204n80, 227–31 passim; membership of, 119–20; Nova Scotia’s brief to, 124; report of, 124–6 Dominion Steel, 80, 209n12, 210n18 Dominion Steel and Coal Corporation. See Dosco Donahoe, Richard A., 105, 113, 168, 221nn9–10, 226nn59, 64 Dosco, 77–8, 80–1, 88, 91, 100, 127, 129–30, 135, 143, 208n1, 209nn2–3, 210n18, 232n11, 240nn98–9 Douglas, John Brown, 31, 191n7 Doull, John, 55, 147–8, 165, 201n49, 207n114 Drake, Marston E., 246n90 Duff, Sir Lyman, chief justice, 59–60, 63, 73, 193n31 Dundee, CB. See Black River Dunn, Sir James, 101, 168 Dunning, Charles A., 119, 237n63 Duplessis, Maurice, 89, 214n74 Dwyer, Michael, 81 Eastern Trust, 50, 53, 81, 84, 151, 200nn33,43 Edgerton Fur Farm Limited, 49, 194n38 Edinburgh Ladies Association, 3 Emergency Coal Production Board (ECPB), 134–43, 235n48, 238n73 Employment and Social Insurance Commission, 110

Index Eskimo. See Inuit Excess Profits Tax Act, Board of Referees under, 63, 72 Falconer, Rev. Alexander, 8, 12, 14, 183n41, 185n66 Falconer, Sir Robert, 184n41, 241n18 Famous Players Corporation, 111–12 Farris, Wendell B., 70, 73 Fielding, William Stevens, 26 Finance, Department of, 131–2, 136–7, 140 First World War, 81–3, 102, 160 Fish Meal Company Limited, 156 ‘For All We Have and Are’ (Kipling), 164 Forrest, Rev. John, 16–17, 20, 34, 185n69 Forrest, W.D., 225n47 Forsyth, Lionel, 88–9, 91, 168, 239–40n98 Fort Massey Presbyterian (Halifax), 34 Fortnightly Law Journal, 67 Fowler, Robert, 123, 228n17 Franchise Affair (1933), 110, 113, 224n46 Fraser, Alistair, 168 Fraser Companies, 96, 216n14 Fraser, Leonard W., 226nn62, 66 Free Church (Scotland), 29–32, 192n19 Free Church Case, 32, 35–6 Fulton, Willard Hill, 23, 188n40 Gardiner, Percy Ryerson, 86 Gardiner, Wardrop & Co., 84, 86 General Sugar Refineries, 84 Geoffrion, Aimé, 209n13, 214n70 Gillis, Clarence (Clarie), 133–4, 142–3

257 Girard, Philip, 50–2, 181n15, 198n7, 204n88 Glace Bay, CB, 54 Glasgow (Scotland), 81 Globe and Mail (Toronto), 229n26 Godbout, Adélard, 89 Godsoe, Gerald, 139–40, 237n64, 238n78 Gordon, Donald, 131–2, 136 ‘Government Control’ (Nova Scotia), 108, 221n15 Grafton Street Methodist (Halifax), 193n24 Graham, Robert Henry, 191n8 Graham, Sir Wallace, 51, 52, 181n13 Granatstein, J.L., 128 Halifax and Southwestern Railway, 52 Halifax Bicentenary (1949), 165 Halifax Club, 110, 157 Halifax Law School, 5 Halifax Law Society, 181n15 Halifax Presbytery (PCC), 192n15 Halifax Shipyards, 81 Hall, William Lorimer, 97, 104–5 Hamilton, Jane, 182n25 Harrington, Gordon S., 108–10, 223n29, 226nn66–7 Harris, Henry & Cahan (law firm), 92, 175, 209n7, 216n5, 219n40 Harris, Henry, Rogers & Harris (law firm), 25, 37–8, 49–50, 52, 93, 104, 175, 198n9 Harris, Robert E., 35–6, 49–51, 53, 57, 80, 93, 104, 175, 198n8, 199n10, 209n8, 216n5 Harrison, W.H., 204n81 Hart, Douglas, 232n9 Hebb, Andrew O., 201n50

258 Index Henderson, Stephen, 240n3 Henry & Weston (law firm), 50, 175, 198n6 Henry, Hugh McDonald, 104, 175 Henry, Lola, 195n60 Henry, Rogers, Harris & Stewart (law firm), 35, 54, 175, 198nn4, 9 Henry, Stewart, Smith & McCleave (law firm), 32, 35, 39, 94, 175 Henry, William Alexander (jr), 40, 53–5, 104, 153, 175, 188n37, 199n10 Henry, William Alexander (sr), 50, 104, 175, 198n5 Hensley, George W., 82 Herald (Halifax), 110, 161, 164 Hewart of Bury, Baron, lord chief justice, 69 Hicks, Henry D., 99, 168 High Liner Foods Inc. See National Sea Products Historic Sites and Monuments Board (Canada), 15 Hogan, (Dr E.V.?), 111 Hogg, Peter, 61 Hollingsworth-Whitney conglomerate, 98 Holmes, Simon Hugh, 7–8, 51, 104 Holt, Gundy & Co., 80 Holt, Sir Herbert, 80, 88–90, 150 House of Commons (Canada), 138–9, 142 How, Douglas, 93, 215n2 Howard, Wilbert, 91 Howe, C.D., 136–42, 235n38, 237nn63, 66, 239nn83, 85; letter to Stewart, 140–1 Howe, Joseph, 195n62 Hydro-Québec, 89–90 Iliad (Homer), 165 Ilsley, J.L., 119, 131–2, 142, 168

I’m Alone (rum-runner), 56 Imperial War Graves Commission, 159 In re Inverness Railway and Coal Co., 200n33 In re Meagher et al. See Franchise Affair Indian Act, Royal Commission on the, 60 industrial relations conferences (1940), 129–30, 233n22 Innis, Harold, 119 International Court of Justice. See World Court International Paper, 96 International Power, 57, 95 Inuit, 58–61, 203n70 Inverness County, NS, 200n36 ‘Inverness Factum,’ 53–4 Inverness Railway & Coal Company, 53 Irvine & Hervey, 53 Irvine v. Hervey, 52–3 James Bay and Northern Quebec Native Claims Settlement Act, 61 James F. Drake Inc., 246n90 Jodrey, John J., 220n57, 243n58 Jodrey, R.A., 87, 91, 101, 157, 168, 220nn54, 56, 223n36 Johnson, J.D., 91 Johnston, Bliss & Stewart (law firm), 50 Johnston, James William, 198n6 Johnston, Rev. Robert, 32, 192n17 Jones, Charles H.L., 98, 151 Judicial Committee. See Privy Council Justice, Department of (Canada), 58–61, 79, 117

Index Kaplan, Israel, 163, 244n70 Kenny, Joseph B., 42, 196n72 Kenny, T.E., 196n72 Killam, Dorothy Johnston, 100, 168, 247n7 Killam, Izaak Walton, 53, 57, 78, 80, 84, 86, 88, 91–102, 106, 110, 153–5, 157, 168, 194n44, 209n12, 212n44, 215–20 passim, 223n36, 249n41 Killam, Lawrence, 94, 200n32 Kim (Kipling), 158 Kimber, Stephen, 87 King, W.L. Mackenzie, 77, 119–20, 125, 138, 142 King’s College Hospital (London), 7 King’s College, University of (Windsor, NS), 16, 152 ‘Kinnoul Investment Corporation,’ 100 Kipling, Caroline, 161 Kipling, Rudyard, vii–viii, 8, 56, 158–64, 244–6 passim; alleged visit to Halifax by, 244n66; visited by Stewart, 158–9 Kipling Society, 160, 162 Labour, Department of (Canada), 137 Labour Relations Board (Nova Scotia), 207n114 Laing, H.V.D., 207n114, 241n23 Land Tax Act (Nova Scotia), 106, 222n21 Lash, Z.A., 79 Law Students Society (Halifax), 181n15 Lawson, James Earl, 110, 225nn48, 57 League for Social Reconstruction (LSR), 122–3 legislative council (Nova Scotia), 6

259 Lester, Geoffrey, 202n62 Liquor Control Act (Nova Scotia), 109, 221n15 Lister, Sir Joseph, 7 Liverpool Bay, NS, 96 Livingston, Flora V., 162–3 Llwyd, Rev. J.P.D., 42 Logan, Jotham W., 20 Lord Nelson Hotel (Halifax), 42, 196n69 Lovett, H. Almon, 209nn7–8 Lovett, Laurence Arthur, 36 Lower, Arthur R.M., 149, 152 ‘Luther Kinnoul,’ 100 McCarthy, D.L., 65, 67, 206n100 McConnell, Rev. W.F., 192n17 McCulloch, Rev. Thomas, 15, 17 McCurdy, F.B., 84, 151–2, 213n52, 221n13, 241n18, 249n43 McDonald & Rigby (law firm), 5 Macdonald, Angus L., 99, 107, 113, 120, 122–3, 138, 142, 148, 221n9, 224n46, 225n54, 230n38, 237n68, 240n3 MacDonald, Edward Mortimer, 84 McDonald, James, 7, 180nn13–14 MacDonald, Vincent C., 207n114 McDowall, Duncan, 86 McGeachy, Hamish, 122–3, 229n30 McGibbon, Casgrain, Mitchell & Surveyer (law firm), 93 McGregor, James, 4–5 MacGregor, Rev. James, 15 McGregor, Katherine. See Stewart family: Katherine McGregor, Margaret (née Davidson), 4 MacGregor, Robert Malcolm, 15 McInnes, Hector, 23, 27–8, 31,

260 Index 35–8, 51, 107, 150–1, 225n47, 241n14 McInnes, Jenks, Lovett & Macdonald (law firm), 32 McInnes, Mellish, Fulton & Kenny (law firm), 23, 197n1 MacKay, Isabella Gordon, 3 MacKay, John W., 10 MacKay, R.A., 120, 149, 228n17, 241n10 MacKeen, Henry P., 37, 56, 65, 112, 155, 169, 197n81, 218nn30, 36 MacKeen, John C., 91, 96–7, 109, 168, 216n12, 217nn15–16, 218n30, 223n36, 224n42 MacKenzie, A. Stanley, 186n4 MacKenzie, Mann & Co., 52 MacKiel, Jessie, 172 McKinnon, Hector, 126, 131–2, 212n50, 234n36 McLachlan, James Bryson (jr), 172, 249n40 MacLaren, Ian M., 141, 239n85 Maclean’s magazine, 149 Maclellan, Robert, 12, 14–15, 18, 186n13 McMaster, A.E., 239n88 MacMechan, Archibald, 13, 17, 34, 192n23 Macmillan, Baron, 36, 56–7, 118, 193n33, 201n55 MacMillan, H.R., 141 MacPherson, Murdoch (jr), 172 MacPherson, Murdoch (sr), 172 MacRae, Donald Alexander, 26, 34, 187n19, 189n56 McTague, C.P., 130, 233n24; McTague Commission, 130 Magill, Robert, 20–1, 188n27 Mahoney, John F., 108

Maitland, R.L., 70 Manitoba Paper, 96 Marble, Allan, 247nn6, 9 Marchildon, Gregory, xv, 78, 209n7, 216n9 Maritime Provinces, Synod of the (PCC), 15, 30–1, 34 Maritime-National Fish Corporation, 88, 107 Maritime-National Fish (1937) Limited, 88 Maritime Rights, 103, 173, 249n43 Maritimes, 119, 122, 127, 129, 172–3, 217n15, 229n36 Maritime Steel & Foundries, 169 Martindell, E.W., 244n72 ‘Mary Postgate’ (Kipling), 161, 245n83 Mason, Gershom W., 36 Massey, Vincent, 149 Maybank, Ralph, 137 Meighen, Arthur, 221n13 Mellish, Humphrey, 118 Merchants Bank (Halifax). See Royal Bank of Canada Mersey Act (Nova Scotia), 97–8, 219n38 Mersey Paper, 78, 95–101, 105–7, 151, 153–7, 169, 217–20 passim, 221n11, 222nn19, 21, 23, 242n37; silver anniversary (1954), 99 Mersey River, NS, 96 Mill, John Stuart, 69 Minas Basin Pulp & Paper Mills. See Minas Basin Pulp & Power Minas Basin Pulp & Power, 101, 156–7 Mingo, J. William E., 165, 211n26, 213n57, 246n1 Mitchell, Burnham, 168, 247n11 Mitchell, George MacG., 152

Index Mitchell, Humphrey, 238n73 Mitchell, Victor E., 93, 216n11, 217n19 Moirs Limited, 38, 194n44 Montreal Island Power, 89–90 Montreal Light, Heat & Power (MLH & P), 71, 150, 165; arbitrations (1945–53), 89–90 Montreal Trust, 91, 169–71 Morrison, Angus J., 134 Morrison, Donald J., v, 247n15 Morrison, Ewen, 163 Morrison, Mary, 247n7 Morrison, Vivian, xiii–xiv, 167, 194nn37, 39, 219n48 Morse, Bradford, 60 Morton, Desmond, 136 Mosher, Aaron, 72 Muir, James, 90–1, 168, 213n57, 215nn77–8, 248n22 Munitions and Supply, Department of, 131, 136–7, 140–1, 157, 243n61 ‘Munitions and Supply Gang’ (Newman), 137 Murray, George H., 118 Murray, Howard, 19–22, 28, 187n22 Murray, R.H., 197n82 Nassau, Bahamas, 100 National Defence, Department of, 131 National Electricity Syndicate (Quebec), 89 national government. See Conservative Party (Canada) National Sea Products, 78, 87–8, 213nn60–1, 249n38 National Selective Service, 134, 238n73

261 National Steel Car (Nasco), 142 National War Labour Board, 233n24 Natural Resources of Saskatchewan, Royal Commission on the, 118, 226–7 passim Neate, Frank G., 140–1, 234n31, 238n79, 239n89 Nevada Shipping Company Limited, 197n2 ‘New Despotism’ (Lord Hewart), 69 Newman, Peter C., 91, 137; Canadian Establishment, 174 Nickerson, Bruce M., 221n10 Nova Scotia, 77; Conservative government in (1925–33), 103–10; politics in, 103–14; provincial election in (1933), 110, (1937), 85, 110–12 Nova Scotia Barristers Society (NSBS), 64–5, 72, 169, 181n15 Nova Scotia Conservative Association, 104 Nova Scotia Liberal–Conservative Association. See Nova Scotia Conservative Association Nova Scotia Light and Power (NSL & P), 43, 89–90, 94, 101, 109, 138, 153, 155, 169, 196n75, 214n71, 217n16, 220n56, 232n10, 237n66 Nova Scotia Liquor Commission, 109, 223n34 Nova Scotia Power Commission, 97–9, 107 Nova Scotia Power Inc. See Nova Scotia Light and Power Nova Scotia Steel. See Nova Scotia Steel and Coal Company Limited Nova Scotia Steel and Coal Company Limited (Scotia), 8, 49–50, 80–1, 209n12, 210n18

262 Index Nova Scotia Tramways & Power. See Nova Scotia Light and Power Nowlan, George, 221n8, 223n36 ‘Octopus of Montreal,’ 89 Oland, Sidney, 121 ‘old Worcester jug,’ 45 Ottawa, 117, 126, 137–40 Otter Brook, NS, 5 Oxford Paper, 222n19 Parenteau, Bill, 221n11, 222n23 Parker House (Halifax), 6, 182n21 Parkin, Sir George Robert, 20–2 ‘Party Invisible,’ 112 Payne, Charles Ewen, 134 Pearson, G. Fred, 24, 26–7, 150–1, 241n14 Pentagon Building (Halifax), 108, 112 Perley, Sir George, 110 Permanent Court of International Justice. See World Court Phinney, Earle C., 112 Pictou, NS, 6–8, 14, 35, 169 Pictou Academy, 7, 10–12, 17, 23, 28–9, 111; centenary celebration (1916), 14–15 Pictou Academy Augmentation Fund. See Pictou Academy Educational Foundation Pictou Academy Educational Foundation, 15 Pictou Advocate (Pictou, NS), 28 Pictou County, NS, 30, 104, 113 Pictou Presbytery (PCC), 30, 32, 34 Pine Hill Divinity Hall. See Presbyterian College, Halifax Pitfield, Ward, 82, 92, 94, 216n12, 217n16

Plaxton, C.P., 59 Poplar Grove Presbyterian (Halifax), 7 Port-of-Spain (Trinidad), 57 Pottier, Vincent J., 25 Potvin, L. Eugène, 89–90 Power Merger Bills (Nova Scotia), 109–10, 223–4 passim Presbyterian Church Association (PCA), 31–4, 192n17 Presbyterian Church Case, 35–7 Presbyterian Church in Canada, The (PCC), 6, 16, 29, 40; disruption in (1924–5), 30–7, 168 Presbyterian Church of Halifax. See Presbyterian Church of Saint David Presbyterian Church of Saint David (Halifax), 34, 37, 168 Presbyterian College, Halifax, 34 Presbyterian Witness (Halifax), 6 Price Brothers, 95–6, 217nn22, 24; see also Abitibi-Price Prince Street Presbyterian (Pictou, NS), 8 Private Investment Holding Companies Act (Nova Scotia), 225n51 Privy Council, Judicial Committee of the, 49, 52–4, 61–4, 72, 122–5, 156, 199nn28, 30, 200n34, 230n49 Provincial Electricity Board (Quebec), 89 Provincial Highway Board, Royal Commission respecting the (Nova Scotia), 117–18 Public Utilities Act (Nova Scotia), 109, 223n39 Public Utilities Board (Nova Scotia), 109, 138

Index Quebec Hydroelectric, 89 Quebec Hydroelectric Commission Act, 89 Raddall, Thomas H., 100, 107, 218n33, 220n52 Ralston, J.L., 77, 119, 138, 208n1 Re Eskimos Reference, 58–61, 71, 202n62–204n75 Read, John E., 20–1, 23, 25–6, 50, 54, 56, 58, 71, 80, 188nn28, 37, 199n10 ‘Real Kipling, The’ (Stewart), 161 Rhodes, Edgar Nelson, 26, 44, 80, 97, 105–8, 210n17, 221n7, 222nn21, 27, 223n29, 226n66 Rhodes Scholarship, 20–3, 187n15 Rigby, Samuel Gordon, 5, 7 Rinfret, Thibaudeau, 120–1, 227nn11, 13, 228n21, 229n27 Riordan Company, 96 Ritchie & Ritchie (law firm), 50 Ritchie & Robertson (law firm), 38 Ritchie, John William, 50, 198n6 Ritchie, Joseph Norman, 213n59 Ritchie, Thomas, 87, 198n6 Ritchie, William Bruce Almon, 51 Robie, Simon Bradstreet, 198n6 Robinson, Howard Perley, 120 Rogers, Norman McLeod, 119 Rogers, Tecumseh Sherman, 54, 104, 193n30, 213n59 Rogers, William Marshall, 53 Rolland Paper, 96 Roman Catholic Episcopal Corporation (Halifax), 171 Roosevelt, Franklin, 85 Rowell, N.W., 119–24, 204n85, 227nn11, 13, 228nn16, 21, 229nn26–7 Royal Bank, 43, 52–4, 78–81, 84, 86–8,

263 90–1, 93, 98–9, 105, 118, 150, 159, 163, 166–7, 169, 212n43, 240n98, 249n38 Royal Canadian Air Force, 244n61 Royal Canadian Mounted Police, 43–4 ‘Royal Family,’ 103–14, 220–6 passim Royal Securities Corporation (RSC), 53, 78–82, 84, 86, 88, 92–101, 107– 10, 114, 210n24, 215–20 passim, 222nn21, 27 Royal Society of St George, 160 Royal Victoria Hospital (Montreal), 166 Rudyard Kipling: A Bibliographical Catalogue (Stewart), 163, 166; reviews of, 246n96 Russell, Baron, 201n55 Russell, Benjamin, 26 St Georges Channel Shores, CB, 3 Saint Mary’s University, 159, 171, 248–9n37 St Laurent, Louis, 65–6, 121–3, 204n85 St Luke’s Presbyterian (Salt Springs, NS), 34–5 St Patrick’s Girls’ High School (Halifax), 38 Sandberg, L. Anders, 220n52, 221n11, 222nn21, 23 Sankey, Viscount, lord chancellor, 58 Saskatchewan Natural Resources Act (Canada), 118 Scotia. See Nova Scotia Steel and Coal Scotia Debenture Holders Protective Committee, 80 ‘Scotia group,’ 95 Scott, F.R., 122, 130, 204n80 Scott Paper, 101

264 Index ‘Seaforth River Paper Company,’ 100 Second World War, 70, 126–43 passim Securities Fraud Prevention Act (Nova Scotia), 154, 242–3n38 Shubenacadie, NS, 10 Silver & McDonald (law firm), 50 silver jubilee (King George V), 160 Sirois, Joseph, 123, 227n11, 229n26 ‘slowdown strike’ (1941), 130, 133, 234n28 Smith, Charles Brechen (‘C.B.’ or ‘Charlie’) 37, 54–6, 80, 104, 109–10, 112–13, 154–5, 169, 175, 197n81, 200nn39, 43–4, 201n47, 207n114, 218n36, 220n3, 224nn42, 46, 226nn59, 62, 65 Smith, Sidney, 241n15 Sobey, Frank, 88, 213n58 Spanish River Pulp & Paper Mills, 96 Stairs, Gilbert S., 92–3, 216n6 Stairs, John F., 20, 85, 92–3, 95, 202n56, 210n24, 216n5 Standard (Montreal), 130 Stanfield, Frank, 105–6, 113, 200n44, 221n7 Stanfield, Robert L., 113, 168, 200n44, 226nn64–5, 248n34 Stanley, Carleton, 28, 65, 147–52, 208nn124, 127, 237n68, 240–2 passim Statute of Westminster, 1931 (United Kingdom), 56, 58 Sterns, Jonathan, 50, 198n6 Stevenson, Michael D., 240n99 Stewart, Bryce, 234n28 Stewart, Elizabeth (née Wilson) (wife), 8, 37–46, 152, 155, 159, 167, 170–1, 194n46, 195n61, 196nn63, 67, 242n32, 245n75, 247n11, 249n41

Stewart family, 3–5, 104; Alexander Forrester (uncle), 183n37; Anne Amelia (Emily) (aunt), 18, 42, 180n5; Donald (great-uncle), 194n40; Donald Alexander (uncle), 5, 10, 181n10; Donald McGregor (brother), 13, 169, 194n42; Elizabeth Helen (aunt), 7, 18; Harry Alexander (brother), 7, 10, 184n51; James McGregor (father), 5–10, 13–14, 158; Dr John (uncle), 5, 7, 9–13, 29, 32, 34, 142, 156, 168, 180n10, 183n37, 194n36, 198n8; John J. McG. (nephew), 184n43; John Murdoch (brother), 11, 19, 23, 184n51; Julia Frances (née Creelman) (mother), 5–7, 10–14, 20, 29, 40, 42, 182nn25–6; Katherine (née McGregor) (grandmother), 4, 12; Katherine (sister), 7, 10, 20, 184n55; Katherine Isabella (aunt), 7; Lieuana (sister), 9, 18; Murdoch (grandfather), 3–5, 8, 18, 30, 39, 180n3, 183n37; Rev. Thomas (uncle), 30–1, 39, 192–3n23 Stewart, James McGregor: ancestry, birth, and youth, 3–15; student at Pictou Academy, 10–12; student, teacher, and governor at Dalhousie University, 16–28; disqualified from Rhodes Scholarship election, 20–3; and The Presbyterian Church in Canada, 29–37; romance, engagement, elopement, and marriage, 37–46; legal career, 49–73; CBA president, 65–70; business career, 77–91; relationship with I.W. Killam, 92–102; Con- servative politico, 103–14; counsel to Royal Commission on Dominion–

Index Provincial Relations, 117–25; coal administrator/controller (1939– 43), 126–43; nemesis of Carleton Stanley, 147–52; mentor of Frank Covert, 152–7; devotee of Rudyard Kipling, 158–64; illness and death, 165–71; significance, 171–4; corporate directorships, 176–7 Stewart Kipling Collection, 162 Stewart law firm, 49–50; firm names, 175; corporate clients, 178. See also Harris, Henry, Rogers & Harris; Henry & Weston; Henry, Rogers, Harris & Stewart; Henry, Stewart, Smith & McCleave; Stewart McKelvey Stirling Scales; Stewart, Smith, MacKeen & Rogers Stewart McKelvey Stirling Scales (law firm), 25, 175 Stewart, Smith, MacKeen & Rogers, 55, 109–10, 157, 175 Studley Quoit Club, 187n16 Sun Life Assurance, 91, 168–9 Supreme Court (Canada), 49, 52, 61–4, 72 Tanner, Charles Elliott, 8, 10, 104, 183n38, 220n4 Tariff Board (Canada), 86 Tax Court (Canada), 204n81 Taylor, A.J.P., 85 Taylor, Kenneth W., 132 Thankerton, Baron, 65 ‘The Thousandth Man’ (Kipling), vii–viii, 245n75 Thompson, Lady, 44 Thompson, Sir John S.D., 181nn12, 14 Tilley, William Norman, 36–7, 58, 193n35, 202n61, 209n13 Times (New York), 168

265 Times Literary Supplement (London), 163 Tito, Marshal, 248n28 Tompkins, J.M.S., 245n75 Toronto, University of, 149 Tory, James C., 27, 215nn82–3 Tory, John S.D., 91, 215n82 Towers, Graham, 119, 134 Trinidad Electric arbitration, 57, 95, 151, 202n56 Trinity Anglican (Halifax), 6 Tupper, Sir Charles Hibbert, 11, 181n14, 184n44, 185n58 Turnbull, David Rowan, 83, 86, 168, 225n56 Underhill, Frank, 148–9 Unemployment Insurance Act, 230n43 Union Bank (Halifax), 87, 92; see also Royal Bank United Church of Canada, 30–6; United Church Act (Canada), 36; United Church Act (Nova Scotia), 30–6, 191nn6–8, 192nn18, 20, 193n27 United Free Church (Scotland), 32, 192n19 United Mine Workers of America (UMWA): District 18 (western Canada), 133–4; District 26 (Nova Scotia and New Brunswick), 129, 131, 233n21 United Presbyterian Church (Scotland), 32 United Service Corporation, 169 United States, coalminers’ strike in (1943), 140 Upper Canada College (Toronto), 11, 22

266 Index Upper Stewiacke, NS, 6 Vanier, Georges P., 159 Vaughan, Ralph T., 248n34 Virgil, 28 Waite, P.B., 23–4, 186n1, 197n83, 215n3, 223n28, 241n12 War Measures Act. See Defence of Canada Regulations Ward, Marie, 13 Wartime Industries Control Board (WICB), 136–41, 235n44, 236n59, 237n61, 238n78, 239n82 Wartime Prices and Trade Board (WPTB), 66, 126–37, 212n43, 236n59 Waters, B.J., 99 Weatherbe, Sir Robert L., 181n13 Weldon, Richard C., 20–1, 23, 73 West Bay, CB, 3 Westminster Apartments (Halifax), 194n38 White, Karen, 249n37 Whycocomagh, CB, 6 Wilson, Allen John, 194n42 Wilson, Andrew, 194n40

Wilson, Elizabeth. See Stewart, Elizabeth Wilson, George E., 241n15 Wilson, George M., 194n41 Wilson, Joseph (jr), 43–4, 197n80 Wilson, Mary (Maria) Elizabeth (née O’Hearn), 38, 42 Wilson, Morris W., 84, 212n43 Wilson v. Mainland, 43–4, 197n83 Wilson, William, 38 Wilson, William Whitman, 38, 195n56 Wilton, Carol, 105 Wings of Night, The (Raddall), 100 Winnipeg cordite plant affair (1941), 137, 237n63 Winters, Robert H., 99 Women’s Conservative Club (Halifax), 41 Wood, Anne, 14, 185n56 Woodside, NS, 82 World Court, 70–1 ‘X, Mr’ (Stewart), 109 Zwicker case, 69, 207n114

PUBLICATIONS OF THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY

1981 David H. Flaherty, ed., Essays in the History of Canadian Law: Volume I 1982 Marion MacRae and Anthony Adamson, Cornerstones of Order: Courthouses and Town Halls of Ontario, 1784–1914 1983 David H. Flaherty, ed., Essays in the History of Canadian Law: Volume II 1984 Patrick Brode, Sir John Beverley Robinson: Bone and Sinew of the Compact David Williams, Duff, A Life in the Law 1985 James Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution 1986 Paul Romney, Mr. Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 Martin Friedland, The Case of Valentine Shortis: A True Story of Crime and Politics in Canada 1987 C. Ian Kyer and Jerome Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario, 1923–1957 1988 Robert Sharpe, The Last Day, the Last Hour: The Currie Libel Trial John D. Arnup, Middleton: The Beloved Judge 1989 Desmond Brown, The Genesis of the Canadian Criminal Code of 1892 Patrick Brode, The Odyssey of John Anderson 1990 Philip Girard and Jim Phillips, eds., Essays in the History of Canadian Law: Volume III – Nova Scotia Carol Wilton, ed., Essays in the History of Canadian Law: Volume IV – Beyond the Law: Lawyers and Business in Canada, 1830–1930 1991 Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada 1992 Brendan O’Brien, Speedy Justice: The Tragic Last Voyage of His Majesty’s Vessel Speedy Robert Fraser, ed., Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography 1993 Greg Marquis, Policing Canada’s Century: A History of the Canadian Association of Chiefs of Police F. Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution 1994 Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer Charles Pullen, The Life and Times of Arthur Maloney: The Last of the Tribunes Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law: Volume V – Crime and Criminal Justice Brian Young, The Politics of Codification: The Lower Canadian Civil Code of 1866

1995 David Williams, Just Lawyers: Seven Portraits Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law: Volume VI – British Columbia and the Yukon W.H. Morrow, ed., Northern Justice: The Memoirs of Mr Justice William G. Morrow Beverley Boissery, A Deep Sense of Wrong: The Treason Trials and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion 1996 Carol Wilton, ed., Essays in the History of Canadian Law: Volume VII – Inside the Law: Canadian Law Firms in Historical Perspective William Kaplan, Bad Judgment: The Case of Mr Justice Leo A. Landreville F. Murray Greenwood and Barry Wright, eds., Canadian State Trials: Volume I – Law, Politics, and Security Measures, 1608–1837 1997 James W. St.G. Walker, ‘Race,’ Rights, and the Law in the Supreme Court of Canada: Historical Case Studies Lori Chambers, Married Women and Property Law in Victorian Ontario Patrick Brode, Casual Slaughters and Accidental Judgments: Canadian War Crimes and Prosecutions, 1944–1948 Ian Bushnell, A History of the Federal Court of Canada, 1875–1992 1998 Sidney Harring, White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence Peter Oliver, ‘Terror to Evil-Doers’: Prisons and Punishments in NineteenthCentury Ontario 1999 Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 G. Blaine Baker and Jim Phillips, eds., Essays in the History of Canadian Law: Volume VIII – In Honour of R.C.B. Risk Richard W. Pound, Chief Justice W.R. Jackett: By the Law of the Land David Vanek, Fulfilment: Memoirs of a Criminal Court Judge 2000 Barry Cahill, The Thousandth Man: A Biography of James McGregor Stewart A.B. McKillop, The Spinster and the Prophet Beverley Boissery and F. Murray Greenwood, Uncertain Justice: Canadian Women and Capital Punishment Bruce Ziff, Unforeseen Legacies: Reuben Wells Leonard and the Leonard Foundation Trust