John A (19 page)

Macdonald liked the law for the uncomplicated reason that he was good at it. During his brief stint as a trial lawyer, he had won several cases by identifying or inventing loopholes through which his client could escape. It was because he had spent years studying parliamentary rules and procedures, as few members bother to do, that he would be able to pull off one of his most brilliant (also one of his least scrupulous) political tricks—the famous “double shuffle” of 1857, by which he tumbled a Reform government out of power just two days after it had gained office.

Most directly, Macdonald loved the law for its own sake. One of his most self-revelatory comments was “Forms are things” that is to say, the way something is done matters as much as what is done. He never questioned that unless the law remains majestic, it can look like an ass.

He loved the law almost as much as he loved politics. An early post-Confederation deputy minister, Edmund Meredith, recorded in his diary that his minister had suggested to Macdonald that he might consider taking the post of chief justice of the planned new Supreme Court of Canada. Macdonald replied, “I'd as soon go to Hell.”

Macdonald's duties as attorney general covered a great swath of territory. Besides his general responsibilities for the nation's laws and their improvement, he had to make recommendations to the governor general about the resolution of death sentences and possible revisions of lesser sentences. He appointed all the judges. He had charge of the penitentiaries. A whole range of other matters came within his purview, from the incorporation of companies and municipalities, to labour disputes, to the choice of county towns, to a host of militia matters such as determining eligibility for pensions in compensation for service in the conflicts of 1812 and of 1837–38.

The most significant example of the range of Macdonald's duties as attorney general occurred in 1857.
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The year before, a royal commission had been established to recommend “the best mode of so managing Indian property as to secure its full benefit to the Indians without impeding the settlement of the country.” The objective was to avoid the succession of murderous—literally—Indian wars that erupted continually in the United States. The commission recommended measures to protect the Indians from “contamination by the white settlers” and to enable them to “assimilate the habits” of the white men. Macdonald translated these recommendations into the Gradual Civilization Bill of 1857 and steered it through the legislature. Essentially, it confirmed the policies followed for the preceding hundred years by British authorities. Any adult Indian male judged to be of good character, educated and free of debt could apply and, after a
three-year trial period, achieve outright ownership of fifty acres of reserve land. Such Indians would gain the franchise and become full citizens of Canada, while at the same time ceasing to be Indians in the official sense of that term. The policy combined paternalist protection with explicit assimilation; it accepted that Aboriginal people were “wards” of the government, but to gain the benefits of the white man's “civilization” they had to cease being Indians.

The new act was approved by the legislature without amendment, with little debate and by a margin of 72 to 1, the single naysayer being the old William Lyon Mackenzie who asked querulously, “Why should we wish to civilize them?” One member, Benjamin Robinson, who had negotiated several Indian treaties, protested that Indian chiefs had not been consulted. He told the legislature members, “At their Council meetings, the Indian chiefs deliberated quite as sensibly as honorable members did in this house, and sometimes even more so.” The Gradual Civilization Act set the stage for the complete handover of responsibility for Indians from Britain to Canada in 1860.

Macdonald's own views about Indians were the same as those of most Canadians at this time: they should be protected from whites but assimilated into white society. In two respects he differed from the general opinion. The letter of the law itself and the treaties negotiated with the Indians were of cardinal concern to him. Macdonald consistently rejected requests by individuals, including Conservative supporters, for permission to buy reserve lands that they had persuaded bands to sell them.

As well, Macdonald had personal knowledge of Indians that was unusual among politicians and officials of the time. While running a law office in Napanee in 1832–33, he had got to know some members of the nearby Mohawk Band in Tyendinaga Township by singing in the choir of the Anglican missionary
there. He also knew some members of a band of Mississauga in the Bay of Quinte area. He became friends with the remarkable Reverend Peter Jones (his real name was Kahkewaquonaby, meaning “Sacred Feathers”), who had converted to Christianity and had married an Englishwoman, Eliza Field, a marriage the Kingston
Chronicle
denounced as “improper and revolting.” By contrast, Macdonald approved of marriages between Indians and non-Indians as a way to speed the process of assimilation.
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The Reverend Peter Jones (Kahkewaquonaby). He was one of a number of Indians whom Macdonald, as was unusual for the times, knew personally. Highly intelligent, Jones shocked some contemporaries by marrying a white woman.

Two other aspects of his work as attorney general reveal his particular attitude to the law: sentencing and judicial appointments.

About sentencing, Macdonald was stern but scrupulous; every now and then, though, he could be remarkably progressive. In nineteenth-century Canada, the criminal law was not only about crime and punishment but also about morality, or at least many people thought it should be. Indictable offences included “sabbath-breaking,” “blasphemy” and the “seduction” of an unmarried female. Upper Canada's leading criminologist, Israel Lewis, proclaimed that “all Criminal Law should be considered a
transcript of the Divine Law.” Macdonald didn't agree with that view—his opponent, George Brown, probably did—but the notion that the law ought to serve some higher purpose exercised wide appeal.

At the same time as the law was, at least sometimes, moral, it was often brutal. Executions were public and frequently treated as occasions for a family outing. Children as young as ten years of age were sent to penitentiaries and could be flogged there. Debtors' prisons and duels continued in Canada long after they'd been proscribed in Britain, and the list of crimes punishable by execution was far more extensive.

Macdonald's ambivalence about all these aspects of the law shows in his attitude towards sentencing, that part of the legal system where he had the greatest operational influence. Just a month after becoming attorney general, he wrote to the provincial secretary to declare that a five-year sentence for rape, notwithstanding a plea for mitigation by a member of the legislature, “was altogether an inadequate punishment for the offence.” Not long after, he took the same view about a five-year sentence for horse stealing. He accepted the point that public opinion could be a part of the sentencing process: a six-month term imposed on two soldiers who had attempted to commit sodomy while drunk was too lenient and “would have, in my opinion, a bad effect to have it known among the soldiery and by the public generally that so heinous and demoralizing a crime” should have received only “a punishment often inflicted for mere assault.”

Still, youth and gender did bring out his kindlier side. When a girl of thirteen was sentenced to three years in a reformatory (her crime is not recorded), Macdonald said this punishment would “only be a means of further contamination,” and he urged that her sentence be reduced. He argued to the provincial secretary that while imprisonment for life was the legally correct
sentence to be imposed on a Samuel Ross for the offence of stealing from the mails, yet “this sentence may with propriety be commuted” to three years, because of “the youth of the prisoner…and especially to relieve the anxiety which has injured the health and threatens the life of his mother.” However, in another instance, “the ground of poverty of the petitioner alleged as a reason for the remission of the sentence of her husband [seven years, for manslaughter] is in my opinion insufficient.”

Macdonald believed in at least the possibility of rehabilitation. Of a convicted arsonist he wrote, “As he is a young man, six years of compulsory labour may wean him from his degrading habit and make him a useful member of society.” But fundamentally he was skeptical that criminals could be rehabilitated. He warned the Kingston Penitentiary warden, John Creighton, “Your natural kindness of disposition may lead you to forget that the primary object of the Penitentiary is punishment, and the incidental one, reformation,” adding, “there is such a thing as making prisons too comfortable and prisoners too happy.” Always insightful about human nature, Macdonald understood that reformers could be deceived by the behaviour of certain prisoners: “The most brutalized man is commonly the most insensible, or rather insensitive and therefore the most docile,” he once observed to the chief justice, while “the man of quick and sensitive feeling is fully alive to the shame of his position and frets against the prison restraints.” A striking difference remains between Macdonald's consistent skepticism about reform and rehabilitation and George Brown's idealistic call that prisons not remain “the moral tomb of those who enter them.” Macdonald may have been a product of his times; Brown was ahead of them.

If indeed at times stern, he seldom deviated in his scrupulousness. The law itself, in its exactitude, equality and clarity, was Macdonald's abiding concern. When G.C. Reiffenstein, a confiden
tial clerk in the receiver general's department, was arrested for forgery, convicted and sentenced to four years in the penitentiary, a great many respectable people lobbied on his behalf for clemency.
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Macdonald yielded not an inch. “The first duty of a Government is to administer even-handed justice; the second, is to satisfy the public that it has been so administered. Now there are many poor and ignorant men in the Penitentiary who committed no greater crime than Reiffenstein, and should therefore receive no greater punishment.” Reiffenstien served three years of his sentence, was paroled, and to the horror of fellow civil servants went right back to Ottawa. Macdonald's response, as recorded by Deputy Minister Edmund Meredith, was succinct: “Cut him dead like any other felon.” (In fact, Reiffenstein managed to restore his reputation and made a new and successful career as an insurance agent.)