Their most substantial confrontation was over Rep by Pop. Year after year, Brown moved resolutions calling for an amendment to the constitution of the United Province of Canada so that Upper Canada’s ever-growing population could be matched by a corresponding number of seats. Macdonald’s reply, in March 1853, was succinct: “If there is one thing to be avoided, it is meddling with the constitution of the country…[it] should not be altered till it is evident that the people are suffering from the effects of the constitution as it actually exists.”
The statistics were on Brown’s side. Once published, the census for 1851 showed that Upper Canada’s population had edged ahead of Lower Canada’s for the first time—952,000 to 890,000. Immigration was certain to widen this gap rapidly. Nor was politics on Macdonald’s side: a number of his own Conservatives now agreed with Brown.*50
Brown had another advantage. If his tone was angry, the answering voice from Lower Canada was no less furious but incomparably less effective. The ascendant new order in Lower Canada was ultramontanism, or right-wing Catholicism, narrow, defensive, authoritarian, all amplified by the personality of its leader, Montreal bishop Ignace Bourget. Opposition to him did exist, from the anti-clerical rouges and the intellectually progressive Instituts canadiens. But Bourget dominated the scene. His political power would grow to the point where he could inform the faithful, “It is the duty of electors to give their votes only to those who will comply entirely with the teachings of the Church”—the bleus, or the Conservatives’ allies. That kind of voice grated harshly on the ears of other Canadians. There was thus a ready public echo for Brown when he thundered that Rep by Pop was “the question of all questions—it lies at the foundation of all reforms.”
Sectarianism, once contained by the Baldwin-LaFontaine concord, was now unconstrained. Brown’s equivalent to Macdonald’s “Treat them as a nation” letter was one he sent late in 1852 to selected Reform supporters: “What has French-Canadianism been denied? Nothing. It bars all it dislikes—it extorts all its demands—and it grows insolent over its victories.” Brown admitted that his insistence on Rep by Pop might help the Conservatives by compelling the bleus to persist in supporting them. Here, the moralist turned into a dogmatist: “And what if they did?” Brown asked rhetorically. “It is our duty to act uprightly and leave consequences in higher hands. Should we do evil that ‘good’ may come? And such ‘good’—a base vassalage to French-Canadian Priestcraft.” The Globe said it all again in public: “We lie helpless at the feet of the Catholic priests of Lower Canada” and “Let the Pope put plaster on his mouth once and for all.”
Toronto, c. 1856. The stately Osgoode Hall stands in the background, showing that Toronto is becoming a city. Note the width of the streets, the lack of trees and the many wooden buildings.
Viewed in the hindsight of the secularized, post-Christian Canada of today, the strength of sectarianism in the mid-nineteenth century isn’t easy to comprehend. In fact, the cause was the most obvious of all: religion mattered a great deal to almost everyone then. At the University of Toronto, for example, all students were required to study metaphysics and ethics during each of the four years it took to earn their degree.*51 Not only did people care deeply about their particular faith, but it defined what they supported and whom they opposed. The resulting religious tensions were then magnified by race: Protestant English versus French Catholic in Lower Canada; Orange Ulster Irish versus Green southern Irish in Upper Canada. And because there was no explicit separation between religion and the state, as there was in the United States, there were no barriers to sectarianism. The shrewdest comment on the relationship between the state and the churches in Canada at this time was made by W.L. Morton in The Shield of Achilles: “Church and state could not really be separated, because religion dominated the state.”
In the end, the greatest surprise about sectarianism in nineteenth-century Canada is not that it existed and was divisive, but that it was so seldom violent. Ireland’s civil war never crossed the Atlantic.
These problems were now Macdonald’s. After the muddle that followed the drawn election of 1854, the so-called Liberal-Conservative Party had backed into office. MacNab was the premier; the man with the power was Macdonald. Power came to him because he was remaking the party in his own image. And also because, as attorney general for Upper Canada, he held the single most important portfolio. After a decade in politics, Macdonald was now just one rung—a very short one—from the top. He also, for the first time, had a real job.
TEN
Forms Are Things
It is of the very last importance that the administration of the affairs of the country should be according to the law. John A. Macdonald
To single out the two defining characteristics of Macdonald’s term as attorney general is easy: he loved the job, and he held on to it for as long as he could. He snapped up the portfolio when he was first offered the position in 1854. He kept it during all the years he was premier of the United Province of Canada (whether as premier in actual title or, initially, as de facto leader behind MacNab). Post-Confederation, by then holding the title of prime minister, Macdonald continued to reserve for himself the successor portfolio of minister of justice for another full decade.*52
Any attempt to describe Macdonald’s performance as the Crown’s principal law officer has to adopt an unfamiliar perspective: rather than the usual one of him as political leader and schemer, it has to be of him as an administrator, or of someone doing a particular job. As an administrator, Macdonald performed in a way almost unknown today: he worked entirely by himself. Just about all leading politicians did that then; Macdonald, though, worked harder at more things than almost anybody else. For a start, he wrote, or more often delivered extemporaneously, all his own speeches, only occasionally asking a supporter or aide to help him with some preliminary research. He wrote all his own letters, in longhand, from lengthy policy memorandums to the governor general to governmental minutiae: “You will see by the enclosed that Hopkirk highly commends acting landing waiter Kidd for an increase say to 6/sh a day,” he scrawled. “If you see no objection I would be glad to see Kidd get the increase.” As campaign organizer of the Conservative Party, he sent a stream of letters containing comments such as, “I shall have all the Crown prosecutors appointed this week, if possible. We must as perhaps we are on the eve of an election, take political considerations only into our minds,” or, “I am told there are a dozen [Conservative] candidates in the field for West Middlesex & that the consequence will be a Grit triumph. Now my dear fellow, set your wits to work, & choke off as many of them as possible.”
After becoming premier in title in 1856, Macdonald effectively performed in three jobs—as premier, as attorney general and as Conservative Party organizer and manager. It wasn’t until 1864, though, that he took on Charles Drinkwater as his first full-time secretary, or “stenographer clerk,” a post he then made permanent in his office.*53 At the time he engaged Drinkwater, Macdonald had taken on a fourth job: he appointed himself minister of militia.
These multiple duties encompassed only his political and governmental affairs. He needed at the same time to make enough money from his law practice to meet the expenses of an invalid wife, a growing son, an ailing mother, an unmarried sister and himself. He kept on trying to earn extra money by land speculations, acquiring extensive property in Guelph and Toronto and holding on to undeveloped “wild land” that might tempt some optimistic immigrant, but he seldom made money on any of these ventures. His burden lightened a little once Margaret married Professor James Williamson and they willingly took care of Hugh John as their surrogate son. As another relief, in 1854 he took on a bright young attorney, Archibald Macdonnell, to replace Campbell as his law partner.
By the mid-1850 s, Macdonald had become attorney general and, effectively, Conservative leader. He’d also emerged as a political strategist, turning the old Tory Party into a centrist party for, in his words, “progressive conservatives.”
Macdonald was able to do so much because he worked hard in furious bursts, made decisions easily and confidently and absorbed files at remarkable speed; also, far from least, he approached life with a cheerful and hopeful disposition. He never doubted that he could overcome every challenge, even if some time had to pass before he figured out a solution.
Generally, historians have given Macdonald low marks as an administrator. A major cause for this judgment was the outcome of his most closely scrutinized performance—the land and other claims of the Métis, first in Manitoba, then in Saskatchewan, both of which ended in the twin disasters of the Riel uprisings. Another reason was that, every now and then, Macdonald got things thoroughly botched up because he had drunk too much.
Other more recent historians, as well as some well-qualified contemporaries, gave Macdonald at least a passing grade as an administrator. The only study dedicated specifically to this subject—a thesis written by Joyce Katharine Sowby, “Macdonald the Administrator: Department of the Interior and Indian Affairs, 1878–1887”*54 —reached the opposite conclusion: “Contrary to the claims of the Liberal politicians and press of the time and of many historians since, [Macdonald] was actively involved in the administration and policy-making of his two departments. He gave close attention to the day-to-day work of the departments: evolving policy; dispensing patronage and consulting about personnel matters; reorganizing duties and providing additional staff and space for his burgeoning departments.” The historian Keith Johnson reaches a similar conclusion in his long essay on Macdonald in Pre-Confederation Premiers: Ontario Government Leaders, 1841–1867: “He took these duties seriously and performed them conscientiously and well. He worked hard, though not always to a regular schedule, and he expected industry and efficiency from his staff.” Auditor General John Langton, a highly capable, politically neutral colleague, said of Macdonald in 1855, “He can get through more work in a given time than anybody I ever saw, and do it well.” *55
Macdonald shared this laudatory view of his own administrative capabilities. He wrote to one correspondent, “I have infinitely more to do in my own legitimate sphere than any one man ought to have to do, and if it were not that I am a quick worker I should have been hopelessly in arrears.” He would also brag—with some justification—that he could lay his hands on every letter of consequence he’d ever received and on copies of his replies.†56 Indeed, this orderliness is the reason why the archival record of Macdonald’s correspondence is so voluminous.‡57 Joseph Pope wrote of his own experiences with Macdonald, “He attached great importance to his correspondence, and made a point of answering all letters addressed to him as promptly as circumstances would permit.” He recalled also that Macdonald “was exacting in his demands. He required all a man’s time. The thought of holidays never entered his mind.”
Later doubts about Macdonald’s administrative competence may have been caused by the difficulty commentators had in accepting that anyone so jaunty and theatrical and consumed with partisan politics, besides being occasionally inebriated, could keep his desk clean and his paper moving. Yet that is what Macdonald did, particularly when he was new to the government grind. He actually improved the bureaucracy a bit: soon after becoming receiver general in 1848, he revised the hours of work in government offices and forbade absences on personal business. When he became attorney general in 1854, he reorganized the department so that legal and penitentiary matters were dealt with separately. Among his acts as premier was the appointment of Langton as the first auditor general and, in 1857, the enactment of the Civil Service Act, patterned on the one in Britain, which introduced competitive examinations for positions, although in practice it didn’t have much effect on patronage appointments.
Over the years, Macdonald’s interest in administration dwindled. He remarked that when new to office he had been “the devil of a departmental reformer”—implying that, in hindsight, he had concluded that all his worthy attempts to improve the bureaucracy had accomplished little.
About some administrative niceties, Macdonald was a good deal less than fastidious. On one occasion, when his personal affairs required him, as the Canadian president of a British company, to secure a charter for it from the legislature, he properly recused himself from involvement because he was then the attorney general. Instead, he gave his long-term deputy minister, close friend and sometime apartment-mate, Hewitt Bernard, a commission to secure the franchise.
While Macdonald was attorney general for Upper Canada, with another member carrying the title of attorney general for Lower Canada,*58 no one doubted that he was the senior law officer of the Crown; for most Canadians he was the attorney general. The zest and enthusiasm that Macdonald brought to his job comes ringingly through in a letter he wrote to the provincial secretary on April 17, 1856:
“The Justices of the Peace had no power to arrest Lanton†59 for a crime [horse-stealing] committed in the United States, unless under the Statute 12 Vic., Cap. 19, & then only on a specific application for the extradition of the prisoner…. In this case it appears that the man Lanton was illegally arrested & improperly put into the hands of the pursuing parties. There is too much reason to fear that Lanton, a man of colour, fugitive from the United States, was the victim of a scheme to kidnap him. The conduct of the Magistrates, even if it was caused by their ignorance, is highly reprehensible…& I respectfully recommend that they be discharged.”
This particular letter confirms a cardinal characteristic about Macdonald’s approach to the law. The fact that it shows a Canadian politician acting to protect an escaped American slave was, while gratifying to contemporary readers, not the point. Rather, the point was that, to Macdonald, it was the law itself which had to be protected. As went the law, in his view and in that of most Canadians, so went society itself.
When Macdonald insisted, as he did repeatedly, that Canada had to remain British, he really meant that it had to remain in and under the British system of law, written and understood, from the presumption of innocence to the acceptance that a man’s house was his castle, to immunity from arbitrary arrest, to trial by a jury of peers, to the equality of all before the law (and thereby equality for an escaped slave who wasn’t even a Canadian), to judicial impartiality, to the gradual evolution of the law by the technique of precedent. The core reason Macdonald was loyal to Britain throughout his life was that he was fiercely loyal to British law, never having the least doubt it was far superior to that of any other nation, not least that of the United States, with (in his mind) its ill-considered innovations such as elected judges.
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 charg
e 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.*60 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.
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