Actions not words: Lawyers and the First World War

by Barry Cahill
Independent scholar

Under Canada’s constitution as it then existed, the ‘Dominion’ as a limitedly self-governing unit of the British Empire went to war when Great Britain declared war on Germany on August 4, 1914. Given Nova Scotia’s long history as an imperial military establishment, it was to be expected that the learned professions would respond positively to Canada’s Great War.

Lt Col. Robertson, Pictou Advocate, 1 March 1918 Though the relevance of the contributions that could be made by ministers of religion, doctors, dentists and engineers was obvious, lawyers on active service had little or no opportunity to practise law. Unlike Dalhousie University’s medical school, neither the Nova Scotia Bar nor Dalhousie Law School was in a position to raise a unit of its own. The explanation, at least in part, is that doctors and medical students enlisted to practise medicine; lawyers enlisted not to practise law but to fight, and in order to do so had to be physically fit and of military age.

There was no need and therefore no opportunity for a ‘Canadian Army Legal Corps’ such as existed for doctors and dentists. But if lawyers could rarely if ever offer their professional services to King and Country, they did everything else, the older or less fit among them serving on home defence, the younger and fitter going on active service overseas.

Most of the latter were in the thick of action and at least eight members of the Nova Scotia Bar would be killed. Many had already served in the Militia before enlisting, and some were to hold high rank among commissioned officers in the Canadian Overseas Expeditionary Force. Few if any lawyers enlisted before 1916, when losses mounted, volunteers declined and Britain introduced conscription, to be followed by Canada a year later. Law students, being for the most part younger and with fewer professional and personal commitments, tended to enlist sooner. Volunteers included two future premiers of the province: Gordon Stewart Harrington and Angus L. Macdonald. They ran the gamut from Walter Crowe KC – who enlisted for overseas service in his 55th year and recruited and commanded a field battery – to Rhodes Scholar William Gordon Ernst,  who enlisted at 18, earned the Military Cross with bar and was called to the Bar in 1922 without having finished his law degree.

On the eve of the Great War, the Bar of Nova Scotia was small (just 479 members), partly non-resident and centred in Halifax. The capital of Nova Scotia, as well as the capital of its legal profession, was also home to an important naval base whose importance would increase exponentially over the course of the four-year conflict. (Though the British Army had departed in 1906, the Royal Navy remained and Canada even had a fledgling navy of its own, founded in 1910.) The legal landscape was dominated by four firms, each comprising no more than half a dozen lawyers at most. 

The newest of the ‘big four’ was MacLean, Burchell & Ralston (today’s Burchells), founded early in 1912 by Alexander Kenneth MacLean, Liberal MP for Halifax and former Attorney General of Nova Scotia. Burchells’ junior partner, James Layton Ralston, was a recently appointed King’s Counsel and Liberal MLA who had been called to the Bar in 1903 without finishing his law degree. Though far better known for his role as Mackenzie King’s minister of defence during most of Canada’s second great war, J. L. Ralston’s contribution to Nova Scotia’s part in the First World War was scarcely less distinguished. Yet despite earlier service in the Militia, he was in no hurry to enlist. November 1914 found him lecturing to the Law Students’ Society on the subject of Privy Council appeals, Ralston having recently returned from London after successfully pleading a case before the Judicial Committee. It was the example of his brother Ivan, nine years his junior and also a lawyer, that induced him finally to enlist in January 1916, four months after his brother had done so. He rose ultimately to become commanding officer of the storied 85th Battalion (Nova Scotia Highlanders).

Re-elected to the legislature in 1916 while on active service, Ralston returned from overseas a conquering hero and took his seat in the Legislature in March 1920. So striking was his speech in moving the address in reply to the speech from the throne at the opening of the session that it was praised by Halifax’s Conservative newspaper, the Herald. Had he not been defeated in the general election of July 1920, Ralston would probably have succeeded George Henry Murray as Premier in 1923 when Murray retired. Instead, in July 1922 Ralston was appointed chair of the federal Royal Commission on Pensions and Re-establishment, set up to investigate charges levelled against the Board of Pension Commissioners by the Great War Veterans’ Association. In October 1926, while serving as Vice-President of the Nova Scotia Barristers’ Society, and despite lacking a seat in Parliament, he was appointed Minister of National Defence. In war and in peace, J. L. Ralston epitomized the lawyer-soldier-veteran of Nova Scotia’s Great War.

By comparison with individual lawyers, the Society was slow to respond to the crisis. Council did not as a rule hold regular monthly meetings over the summer, so there was no opportunity to acknowledge formally the outbreak of war. The preliminary, intermediate and final law examinations proceeded as usual at the Halifax County courthouse on September 1, as if nothing else were happening. Indeed, in retrospect Council appeared uncertain of the Society’s role – or indeed whether it had a role – to encourage lawyers and law students to fly to the colours or, alternatively, to acquiesce in whatever course of action they individually chose to follow. In the end the Society officially said nothing, either publicly or to its members. No special meeting was called of either Council or of the Society at large. The elderly president, John Thomas Ross (called to the Bar in 1878), issued no statement, nor was there a call-to-arms exhorting Society members of military age and “students-at-law” (articled clerks) to enlist. There was no meeting to organize the Halifax Bar for military service such as occurred in Toronto on August 27, 1914. 

The formation of a Nova Scotia regiment (17th Battalion) had been authorized on the express wish of Prime Minister Robert Borden days after war broke out. Presented their colours by no less a personage than Lady Borden, the battalion went overseas with the 1st Canadian Contingent in September 1914. The honour of commanding the Nova Scotia volunteers fell to a Westville lawyer, Struan Gordon Robertson (1868-1928), an immigrant Scot called to the Bar in 1894. Among the recruits was a young lawyer, Alistair Fraser, son of a late former lieutenant governor of the province and a future lieutenant governor himself. For reasons that were not fully explained at the time and remain unclear to this day, during the four months following its arrival in England the battalion was maltreated.

The ensuing scandal became a political embarrassment for Sir Robert Borden, whom Liberals understandably suspected of installing political friends among the battalion’s senior officers. The damage done in what was expected to be an election year had to be quickly controlled – and it was. In January 1915, Lieutenant-Colonel Robertson, the chosen scapegoat, having refused to resign when asked to, was cashiered and the Nova Scotia regiment reduced to reserve status. As a quid pro quo, Robertson was made legal adviser to the Canadian Expeditionary Force, ultimately becoming head of the army estates branch of the pay and records office at CEF headquarters in London. Unlike J. L. Ralston, not all lawyer-soldiers were prepared for or effective in positions of senior command, and Robertson may have been one such. In retrospect, he appears to have been a capable staff officer but not well equipped to command an infantry battalion in training for the front.

Though there was no clearly articulated response from the Society to the outbreak of war, its effects were felt from the very beginning: John Lauchlin McKinnon (called in 1897), a serving Militia officer, had to resign as treasurer in order to answer the call to arms. The closest thing in the Society to a professional soldier, McKinnon – according to his 1944 obituary – “had a long and distinguished military life. He joined the Halifax Regiment of the Canadian Artillery back in the early [1890s]. He served in Halifax at the start of the First World War and went overseas with the rank of major. He returned after the war with the rank of a full colonel.” McKinnon was unusual in that he was among the few lawyer-soldiers called on to apply his professional knowledge, on various occasions serving as Acting Judge Advocate General of the Canadian Forces.

The war struck at the very heart of the Society in November 1916, when William Gore Foster, the only son and law partner of the Society’s longtime secretary, William Rufus Foster, was killed in action. Lieutenant Foster, age 36, who left behind a wife and two-year-old son, was a prominent and active Conservative who had held the federal patronage post of inspector of Indian affairs in Nova Scotia. According to the Society’s memorial minute, he “was gifted with a marvellous memory and had the mind of a legal antiquary. He had the confidence and esteem of his men and his regiment regretted his early taking-off almost as soon as his regiment [the 44th Battalion (Manitoba)] was sent to the front. Mr. Foster had the gift of speech as is given to few men, and his associates at the Bar bear tribute to his loveable qualities and his courage and patriotism.”

Council’s report to the 1917 annual meeting noted another casualty from among the Bar: Lieutenant Francis Paul Hamilton Layton, who left behind a remarkable set of letters to his fellow lawyer and cousin, Francis Layton (also in the Army), written shortly before he was killed in July 1916. A third casualty was J. L. Ralston’s brother Ivan, who received his LLB from Dalhousie in November 1916, when the university senate waived the residency requirement (called to the Bar in 1911, he had been practising in Montreal). Having just been awarded the Military Cross, Major Ralston responded thus to a letter from the president of the university: “In this game some of us have all the luck. There are so many wonderful things done that the supply of metal would soon be at an end if all were awarded.” He was killed in August 1918, shortly after assuming temporary command of the 85th Battalion in place of his wounded older brother. The same month also saw the death in action of Alexander McFarlane Seaman (LLB 1914), an articled clerk in the former Ralston brothers’ law firm in Amherst, who enlisted before he could be called to the Bar.

The number and names of all those Nova Scotia barristers, LLBs and law undergraduates/articled clerks who served in the Great War cannot be known with any degree of certainty. In 1915 Canadian Law Times published a “List of Barristers, Solicitors and Students-at-Law Now on Active Service for Canada and the Empire…,” which included 12 lawyers and 13 articled clerks from Nova Scotia. The Honour Roll appearing among the front pages of the 52nd volume of the Nova Scotia Reports (1918-19) includes only barristers, and the 52 listed is almost certainly an underestimate. The more difficult categories to capture are articled clerks, LLBs and law undergraduates who enlisted, and those barristers who survived; in this case, the dead generate more records than the living. An interesting counter-example is J. L. Ralston’s aide-de-camp, Maynard Brown Archibald (LLB 1915), an articled clerk. After graduating law school Archibald served for more than two years as assistant chief recruiting officer for Military District No. 6, which until 1917 comprised the entire Maritime provinces. (The chief recruiting officer was Major William Bruce Almon Ritchie, a former President of the Society and one of Canada’s most distinguished lawyers. Having been refused on medical grounds when he tried to enlist at age 54, Ritchie instead took up a Militia appointment.) Archibald enlisted in April 1917, survived the war and was called to the Bar in 1919.

Towards the end of the war the Society began to take stock not only of those who had given their lives (“The war has taken a heavy toll from those of our members and law students who volunteered for the front”), but also those who had distinguished themselves in action. Council paid special tribute to barristers on active service. In addition to recording the names of two more lawyers, Norman Murray and F. P. H. Layton, and four articled clerks killed in action, Council noted that Major J. L. Ralston (as he then was) had been awarded the Distinguished Service Order, and that Charles B. Smith, an expatriate Cape Bretoner disbarred in Saskatchewan before the war who had risen from private to major, had been awarded the Military Cross.

Lieutenant Daniel Owen of the Royal Flying Corps was also specially mentioned; he was then a wounded prisoner of war in Germany hoping to be exchanged. In the words of the report, “Many of our lawyer-soldiers have won great distinction in the new profession for which so many have volunteered.” Called to the Bar in 1911, Owen was a case in point. When he died prematurely in 1939, the Society’s memorial resolution read, “Shortly after the outbreak of the Great War, he went overseas with the Canadian Expeditionary Forces and soon transferred to the Royal Flying Corps. He served with distinction in the air force and in October 1917 his plane was shot down causing him severe injuries including the loss of an eye. For some time he was kept in Germany as a prisoner of war. At the close of the war he returned to Annapolis [Royal] to resume his law practice.”

Despite the attention paid returned veterans at the time, the Great War did not establish itself in the corporate memory of the Society. When the war was over, it was over. The veterans remembered, but no one else did – unless they had lost comrades in arms or family members and loved ones, as J. L. Ralston had. Touring the battlefields in 1930, Ralston expressed the wish that he might have been accompanied by men of his own 85th Battalion with whom he could have shared many potent memories. It was not until the annual meeting in 1938 that William Pitt Potter, a returned veteran who had been called to the Bar in 1916 without a law degree a month after enlisting, “referred to the fact that this Society has never done anything to perpetuate the memory of those members and students-at-law who fell in the Great War, 1914-1918.” Council was asked to take action and in April struck a select committee comprising three returned veterans to prepare a suitable memorial. But too much time had elapsed and interest had flagged. Collecting the necessary information about those who served or died proved a difficult task for busy lawyers who had put the heroic past behind them. That, and the outbreak in September 1939 of what would prove a second world war, caused the Society’s war memorial project to be suspended. Though taken up again with some energy after the end of the war in May 1945, work on the project went nowhere and it was finally abandoned.

NOTE: An excerpt of this article was published in The Society Record, Vol. 35 No. 2, Fall 2016.

BARRY CAHILL has resumed work on his biography of Frances Fish, Nova Scotia’s first woman lawyer.