John A. and the Humanity of Law
On January 11, 2015, communities across Canada gathered to commemorate and protest—sometimes at the same time—the 200th anniversary of Sir John A. Macdonald’s birth. As a near full-time resident of Macdonald Hall (the law school named in his honour) at Queen’s University, I feel an obligation to share some insights from this unique occasion in our country’s history.
Most Canadians should be able to cite at least a few fun facts about our first prime minister. For instance, most people know he was an alcoholic (although few know he was a rare Scot who preferred claret, port, brandy, and champagne over scotch). Many also know he was responsible for the hanging of the leader of the Red River Rebellion, Louis Riel.
But what do we know about his legacy to the legal profession? As Queen’s Law’s self-proclaimed person-who-knows-too-much-about-Macdonald, I’d like to attempt a first stab at answering this question with three thoughts I had during Kingston’s recent Macdonald Week.
Humans create the law, and humans can change it too
Contrary to the popular notion of a meeting of the wisest minds of the British North American colonies, the conferences of Canadian and Maritime politicians that preceded the creation of the British North America Act, 1867 can more accurately be described as a series of well-lubricated business gatherings.
There’s no question, however, that Macdonald led these meetings. After the Québec City Conference in 1864, Thomas D’Arcy McGee—one of the core Fathers of Confederation—credited Macdonald with the authorship of 50 of the 72 resolutions that were eventually sent to London. After London in 1866, Sir Frederic Rogers, the Permanent Under-Secretary of the Colonial Office, described Macdonald as “the ruling genius and spokesman” of the Conference. And after Québec City, Macdonald himself claimed to a friend, “I ha[d] no help. Not one man of the Conference (except Galt on finance) had the slightest idea of Constitution making.”
Seen in this way, Canada’s most important constitutional document—the Constitution Act, 1867—is mostly just the work of one man—Sir John A. Macdonald. And although concepts such as the “living tree” have been developed to compensate for weaknesses inherent in this fact, we should use this as a reminder that the law is ultimately a human creation.
In other words, laws embody the values and political views of the times they’re created and can, therefore, change. What worked 150 years ago likely doesn’t work as well, or in the same way, today. Likewise, something that was considered just 150 years ago may be considered unjust today.
Empathy and impartiality should matter more than politics in the legal profession
It’s no secret that patronage played an important role in the politics of Macdonald’s time. From jobs at the post office to positions with the Library of Parliament, appointments were used systematically by Macdonald’s Liberal-Conservative Party (later known as the Conservative Party) to secure votes both in Parliament and at election time. One exception to this rule, however, was Macdonald’s view of the judiciary.
Of the many cross-partisan appointments Macdonald made, those of Robert Baldwin, Samuel Hume Blake, and Edward Blake—three of his fiercest political opponents—stand out as evidence of Macdonald’s reverence for the law. Although only Samuel Hume Blake accepted the appointment, these offers were consistent with Macdonald’s oft-expressed concern for the “fitness” of judges and “the efficiency of the bench.”
Incidentally, although a judicial appointment of a political opponent can easily be seen as an attempt to be rid of him or her, I think the more important lesson here is that politics should be left out of legal practice. This doesn’t mean that legal professionals shouldn’t hold political views or act politically outside of their practices, but rather that we should strive for empathy and impartiality in our work as much as possible. Indeed, as a tool for the betterment of society, the law depends on our ability to see things from the perspectives of others—including those we disagree with—and to work with society as a whole in mind.
Factors outside of our control have an impact on the direction of our lives
When Macdonald was born in Glasgow in 1815, the Scottish Enlightenment of the late 18th century had left a Western world that was ripe for the picking by Scottish men.
Growing up in Kingston, where most teachers and professionals were Scotsmen, Macdonald’s Scottish heritage helped him secure educational and employment opportunities that were well above the norm for his time. Similarly, Macdonald’s Scottish background played a key role in his first electoral victory to Kingston Town Council in 1843.
Fast-forward a couple decades, and the legislatures of the British North American colonies around the time of Confederation—with the exception of Canada East (i.e., Québec)—were filled with men of Scottish heritage. Indeed, of the seven primary Fathers of Confederation, five were either Scottish (i.e., Macdonald, Galt, Brown, and Tilley) or educated in Scotland (i.e., Tupper).
Although it would be impossible to say that Macdonald lacked exceptional intelligence and commitment, the fact that being both Scottish and a man helped him get to where he ended up provides another helpful reminder that factors outside of our control sometimes affect our lives more than we like to admit.
Looking at the LSSO’s recent report on Ontario law students’ financial situations, it is clear that this is also the case for law students today. And with the legal profession being one privileged with power and money, it is a factor worth serious consideration. For example, not only are rural Canadians and indigenous peoples underrepresented at law schools, but how much education your parents have and what they do for a living—among other factors that can be seen in the report—have a significant impact on whether law school is a viable option.
Looking beyond the law school environment to the legal profession as a whole, it is also clear that important factors of representation like gender, religious, and ethnic diversity, although improving, still require more attention.
In the end, reflecting on Sir John A. Macdonald’s legacy provides an opportunity to see how the legal profession has changed over the past 150 years. It is also a helpful reminder that although we like to think of the law as perfect, we are humans, we make mistakes, and as citizens and professionals we can and should take responsibility for them. It’s also a reminder that one person can truly make a difference.
For more information about Sir John A. Macdonald, I’d recommend the following books:
- Richard Gwyn’s John A: The Man Who Made Us and Nation Maker: Sir John A. Macdonald: His Life, Our Times
- Cynthia Smith and Jack McLeod’s (Editors) Sir John A.: An Anecdotal Life of John A. Macdonald
- James Daschuk’s Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life
Ian Moore (second-year JD/MPA) is Publisher and Co-Founder of Juris Diction. He can be reached at firstname.lastname@example.org.