NEWCOMBE, EDMUND LESLIE, lawyer, educator, civil servant, and judge; b. 17 Feb. 1859 in Cornwallis, N.S., son of John Cummings Newcombe (Newcomb) and Abigail Hovey Calkin; m. 6 June 1887 Annie Elizabeth Freeman in Liverpool, N.S., and they had one son; d. 9 Dec. 1931 in Ottawa.
Edmund Leslie Newcombe was born in the Annapolis valley of Nova Scotia roughly a century after his Connecticut ancestors had settled there in the wake of the expulsion of the Acadians [see Charles Lawrence*]. His father, a farmer and a deacon of the Reformed Presbyterian (Covenanter) Church, passed away suddenly in 1866, when Edmund was not quite seven, leaving his mother with five children under the age of ten; two died a year later. In spite of these early disasters, Edmund and his elder sister, Margaret Florence, achieved extraordinary professional success, he as Canada’s long-serving deputy minister of justice and subsequently a judge on the Supreme Court of Canada, she as the first woman graduate of Dalhousie University in Halifax (1885) and later principal of the Halifax Ladies’ College (1911–18).
After obtaining a ba at Dalhousie in 1878, likely with the financial support of his uncle John Burgess Calkin, a prominent educator, Newcombe began four years of service as an articled clerk to Kentville lawyer John Pryor Chipman. During this time he secured two more degrees, an ma from Dalhousie and an llb from the short-lived University of Halifax, both awarded in 1881. Called to the bar in January 1883, Newcombe remained with Chipman for three years before joining the Halifax firm of Meagher, Drysdale, and Newcombe [see Hector McInnes]. Once back in the capital, he renewed his ties with Dalhousie, where he served on the board of governors from 1887 to 1893 and taught a course on marine insurance at the law school from 1891 to 1893.
New vistas opened for Newcombe in 1893 when fellow Nova Scotia Conservative Sir John Sparrow David Thompson*, prime minister and minister of justice, offered him the position of deputy minister of justice and deputy attorney general in Ottawa; his acceptance was followed shortly by a dominion qc and a call to the bar of Ontario. Newcombe was the last of a trio of lawyers from the Maritimes who occupied the federal post for over 40 years: George Wheelock Burbidge* (1882–87), Robert Sedgewick* (1888–93), and Newcombe (1893–1924). All were promoted to judgeships. Newcombe served under 11 ministers of justice, including, for a brief period in 1921, his old Dalhousie student Richard Bedford Bennett*.
With only two lawyers and fewer than 20 other staff under him initially, Newcombe was responsible for all the legal work of the government of Canada. Defined in the Department of Justice Act, these duties were vast. As deputy minister of justice, Newcombe had to ensure that the administration of public affairs was in accordance with the law, to review the constitutionality of all legislation, both federal and provincial (and to advise on disallowance of the latter where warranted), to supervise the penitentiary system, and to deal with requests for remission of sentences and commutation of capital sentences. In his role as deputy attorney general, he was responsible for providing legal advice to government departments and to the government itself, drafting or reviewing government contracts (except Indian treaties), approving instruments issued under the Great Seal of Canada, and arranging for the conduct of litigation for or against the crown or any department. One significant lacuna in Newcombe’s enormous mandate was the drafting of legislation. Law clerks to the House of Commons and the Senate generally performed this task until the 1940s, when it became centralized in the Department of Justice.
Newcombe’s staff expanded until he had 56 employees in the early 1920s, including nine lawyers, but the department remained heavily reliant on agency arrangements with private lawyers across the country. Law firms chosen according to party affiliation handled all the government’s routine legal work and litigation in their respective geographic areas, allowing the department’s own lawyers in Ottawa to focus on the most strategic files. Late in his tenure, Newcombe channelled some departmental work to his son, Edmund Freeman Newcombe, which led to questions in parliament. Captain Newcombe, who had been severely wounded in World War I, became a prominent barrister in Ottawa after his return to civilian life.
Despite the expansion of the department, the volume of work remained daunting. In 1906 Newcombe and his staff responded to some 1,800 requests for legal opinions from other departments; he signed every letter personally. On the vexed question of Indian title in British Columbia, Newcombe advised the government in 1910 that the vast unsurrendered portions of the province “cannot be open for settlement until competent arrangements are made to secure the rights of the Indians,” and he drafted a reference to the Supreme Court of Canada to raise the issue directly. Prime Minister Sir Wilfrid Laurier* agreed with his strategy but lost the 1911 election before the reference was made. His successor, Robert Laird Borden, did not want to antagonize the Conservative premier of British Columbia, Richard McBride*, and let the matter drop. When the appointment of women to the Senate became an issue, Newcombe advised the government in 1921 that “in the absence of any precise authority to the contrary … they are not qualified.” As a result of this prior opinion, he did not sit on the persons case when it came before the Supreme Court in 1928 [see Emily Gowan Ferguson].
Newcombe was nominally responsible for the hundreds of crown lawsuits pending at any given time, and he appeared personally in most that went before the Supreme Court or the Judicial Committee of the Privy Council in London. During his career he sailed to England at least 20 times to plead the dominion’s cause in some 30 appeals, and he was made a cmg in 1909 in recognition of his services. In his first major case before the JCPC, in 1895, Newcombe argued opposite his future nemesis Richard Burdon Haldane, a British lawyer who represented the province of Ontario in a dispute over which level of government could prohibit the sale of alcohol. The committee allowed federal and provincial temperance legislation to coexist in this case, but the trend, especially after Haldane’s promotion to the JCPC in 1911, was in favour of upholding provincial jurisdiction at the expense of federal power. Following the Supreme Court’s split in 1920 on the validity of federal laws regulating profits and prices of necessary consumer items [see John Idington*], Newcombe presented Ottawa’s case to the JCPC. Haldane’s 1922 decision in In re the Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919 invalidated the legislation and restricted to emergency situations the federal government’s power to ensure peace, order, and good government. This defeat was a particularly difficult loss for the federal side; yet it is doubtful, given the increasing rigidity of the JCPC’s views on Canadian federalism, whether better advocacy would have made a difference. When it came to division of powers, Newcombe had more success in cases dealing with fishing rights and corporate regulation. One of them, John Deere Plow Company, Limited v. Wharton (1915), is still cited for its holding regarding the limitations of provincial power over federally incorporated companies. In 1911 he had ably defended legislation allowing the federal government to refer cases to the Supreme Court of Canada for an advisory opinion, a rather unusual procedure in the common-law world.
In 1908 Newcombe had published an annotated version of the British North America acts containing extracts from the major decisions rendered on each section, along with some occasionally critical remarks concerning the JCPC’s jurisprudence on division of powers. Not all litigation before the JCPC involved conflicts with the provinces, however, and in a number of cases dealing with the interpretation of federal legislation and matters affecting dominion lands, Newcombe carried the day. In 1904 he won a case where the validity of the royalties collected in 1898 by the federal government during the Yukon gold rush was disputed, and in 1906 he convinced the committee that a federal statute authorizing the deportation of aliens was within the power of a colonial legislature, when the Supreme Court had held the opposite.
In addition to his regular work Newcombe was given a variety of other tasks. In 1895 he had been Canada’s delegate at meetings in London to discuss conflicts between British and Canadian publishers over copyright law [see John Ross Robertson*]. From 1902 to 1906 he laboured over the revision of the statutes of Canada, the first since 1886, and he would serve again in the consolidation of the statutes that began in 1923. When the 1914 collision of the Canadian Pacific Railway ship Empress of Ireland with a Norwegian vessel in the Gulf of St Lawrence resulted in the deaths of over 1,000 persons [see Jean-Baptiste Bélanger*], Newcombe represented the federal government at the subsequent inquiry. After conscription was imposed in 1917, he chaired the Military Service Council, which was created to provide guidance to provincial registrars and local tribunals set up under the Military Service Act of that year.
When Chief Justice Sir Louis Henry Davies* of the Supreme Court of Canada died in office on 1 May 1924, the minister of justice, Ernest Lapointe*, wanted Newcombe to succeed him, but Prime Minister William Lyon Mackenzie King* was “opposed strongly because of his being a Tory thro’ life.” In September, however, after failing to persuade Eugene Lafleur* to take the post, King appointed Francis Alexander Anglin and complied with Lapointe’s desire to advance Newcombe. “Our friends will not like it,” King told his diary, but it would “please the Tories” and “offset” the disappointment among Liberals that Lyman Poore Duff* had been passed over for the top judicial position.
On the bench, Newcombe’s expertise in maritime law came in handy: he wrote in almost every case involving ship collisions, usually one or two a year. He also tended to write in tax cases, insurance cases, appeals from the Nova Scotia courts, and of course constitutional cases. Newcombe’s judicial philosophy was rather unimaginative by today’s standards, though not by contemporary ones. When jurisdiction over aeronautics was debated before the court in 1930, Newcombe quoted English jurist Sir Edward Coke’s 1628 assertion that ownership of the soil carried ownership of the air above as a basis for provincial jurisdiction over air travel. But for a constitutional provision giving the dominion the power to implement imperial treaties, such as those regulating international air navigation, the court would have held legislative authority over aeronautics to be in the provincial domain. In other cases involving the division of legislative powers, Newcombe leaned slightly to the federal side, but not in any obviously biased way.
Annie Newcombe’s death on 28 Jan. 1931 was a severe blow to the judge. He returned to work, but in November suffered a stroke and died three weeks later. After a private service at his late residence on Laurier Avenue West and then a public one at St Andrew’s Presbyterian Church, he was buried beside his wife in Beechwood Cemetery. Their son joined them in 1949 after his premature death in a car accident.
Photographs of Newcombe seem to reveal a mild, bookish man of molelike appearance, but the impression is somewhat deceptive. While Newcombe enjoyed his library, he was also an avid hunter who proudly displayed several trophy moose heads in his home. As deputy minister of justice, he was highly adept at Ottawa’s favourite blood sport, rising to become one of the capital’s most influential mandarins during the Laurier and Borden years. He exercised his powers in the somewhat autocratic manner expected at the time, serving the Canadian state with energy and assiduity although not without attracting censure. Lyman Duff accused him privately of exceeding his, and parliament’s, authority after he redrafted a statute found unconstitutional by the courts so as to meet the objections in a merely technical way; yet the courts’ own formalist approach to statutory interpretation encouraged this kind of response. Some faulted Newcombe for representing personal clients before the Supreme Court and the JCPC, but this sort of advocacy was a traditional perquisite of both the minister and his deputy, albeit one increasingly questioned. A more legitimate criticism may be that Newcombe was not particularly innovative as an administrator. The department more than doubled in size during his tenure, but the organization of the work seems to have remained virtually unchanged except for the appointment of an assistant deputy minister in 1916; the appointee, William Stuart Edwards, would become Newcombe’s successor. It is doubtful whether Newcombe engaged in much that could be called policy development, but a final assessment awaits a thorough canvass of the Department of Justice’s voluminous records. What is clear is that he carried out his daunting mandate with efficiency and authority. According to Hector McInnes, at a time when “the deputy ministers really govern[ed] Canada,… for years the phrase ‘Newcombe advises this’ settled many a question of administrative action.”
Edmund Leslie Newcombe is the author of The British North America acts as interpreted by the Judicial Committee of the Privy Council, with brief explanatory or critical text: a handbook (Ottawa, 1908).
No personal papers have survived for Newcombe, and the vast papers of the Dept. of Justice, many of which are not indexed, remain largely unexplored. There is no secondary literature on the department between Sir John Sparrow David Thompson’s day (P. B. Waite, The man from Halifax: Sir John Thompson, prime minister (Toronto, 1985)) and the 1940s, but fortunately the transcript of Newcombe’s extensive interview before the royal commission on the civil service in 1907 was published in Can., Parl., Sessional papers, 1907–8, no.29a; it gives a detailed description of the routine work of the department. Sir Wilfrid Laurier’s correspondence provides further glimpses into Newcombe’s responsibilities. The cases in which Newcombe appeared for the government of Canada are reported in Canada Supreme Court Reports (Ottawa) and the House of Lords and JCPC’s report series entitled Law Reports, Appeal Cases (London). For context see J. G. Snell and Frederick Vaughan, The Supreme Court of Canada: history of the institution ([Toronto], 1985), D. R. Williams, Duff: a life in the law (Vancouver, 1984), and J. T. Saywell, The lawmakers: judicial power and the shaping of Canadian federalism (Toronto, 2002). Some personal information was provided by Edmund Peter Newcombe of Ottawa, grandson of the subject. LAC holds the wartime diary of the subject’s son, Edmund Freeman Newcombe (R2178-0-5).
AO, RG 80-8-0-1259, no.10524; RG 80-8-0-1262, no.12161. LAC, R10811-0-X. NSA, “Nova Scotia hist. vital statistics,” Queens County, 1887: www.novascotiagenealogy.com (consulted 6 Feb. 2013); RG 32, WB, Kings County, no.12615 (mfm.); RG 39, M, 12 (bar admission case files), no.14. Halifax Chronicle, 10 Dec. 1931. Halifax Herald, 10 Dec. 1931. Ottawa Evening Journal, 10, 12 Dec. 1931. Harry Bruce, “How did she get into the picture?” Dalhousie Alumni Magazine (Halifax), winter 1985: 7–8. Can., House of Commons, Debates, 5 June 1913, 17 March 1921. “E. L. Newcombe, q.c.,” Canada Law Journal (Toronto), 36 (1900): 473–74.