Balancing state security and civil liberty

During the 1860s, John A. Macdonald was faced with a threat that has resonances in our own time. Revolutionary members of an ethno-religious outgroup, connected to an international nationalist movement, were planning to subvert the Canadian state through violent means. The revolutionaries were Irish; the ethno-religious outgroup consisted of Irish Catholics; and the international movement was the Fenian Brotherhood. American Fenians wanted to hit the British Empire in North America, and trigger an Anglo-American war that might create the conditions in which an Irish revolution could succeed at home.

Within Canada, most Irish Catholics were moderates who were striving to improve their condition in the country. But a radical minority planned to blow up bridges, burn down buildings, destroy telegraph communications and take hostages in the service of an anticipated Irish-American invasion.

The question facing Macdonald was this: how do you isolate and defeat internal and external revolutionaries without alienating the moderate majority in their ethno-religious group?

In grappling with this issue, Macdonald initiated a series of measures in the name of state security that clearly violated civil liberties. Habeas corpus was suspended three times between 1866 and 1870; suspects could be, and were, incarcerated without trial. Macdonald employed and expanded the newly created secret police force to combat the threat to the state. Under his watch, and with his approval, they opened the mail of suspected revolutionaries, set up their own fake revolutionary cell to infiltrate the movement and used secret-service money to support detectives who ingratiated themselves with Irish revolutionaries by contributing to Fenian fundraising drives for weapons to be used against Canada. The secret service even paid for a pony for the 11-year-old son of the president of the Fenian Brotherhood, so that a detective could get into his good books.

So far so bad, you might say, as far as civil liberties were concerned. But then again, what else would you expect a government to do when faced with revolutionaries who planned four invasion attempts within five years, and actually executed two of them?

Less expected, perhaps, were the measures that Macdonald took to ensure that the infringement of civil liberties was kept within tight limits. One of the first things he did after the suspension of habeas corpus in June 1866 was to issue a circular to magistrates, warning them against “hasty and illjudged arrests” of suspected Fenians, and insisting that all arrests under the suspension of habeas corpus be sent to his office for appraisal. As he told a leading Irish Catholic journalist, he wrote the circular “for the purpose of reassuring the Roman Catholics who were a great deal bullied … in several parts of Canada, especially among the magistrates.”

He was true to his word. When a judge in St. Catharines argued that people should be arrested “on mere suspicion of Fenianism,” Macdonald upbraided him: “Now this is a country of law and order,” he wrote, “and we cannot go beyond the law.” He took the same position with secret policemen who wanted to arrest Irish Catholics who damned the Queen and who said that Canadian soldiers who fought the Fenians ought to be hanged. Leave them alone, he said; you only make arrests if you have strong evidence that they're part of a revolutionary conspiracy. One of the most striking things about the suspension of habeas corpus was how few people were arrested — around 25, many of whom were indeed part of that conspiracy. Their time in prison was uncertain and stressful, to be sure. All, though, were released within six months.

Macdonald took this position at a time when most Canadians, and none more so than the powerful Orange Order, wanted draconian measures against Irish revolutionaries. Even some radical Irishmen in Canada regarded him as a force of moderation in the face of Orangemen who were out for blood.

How do we explain his relative restraint? In part it stemmed from a principled belief that “this is a country of law and order.” But there were also powerful pragmatic considerations. He was anxious to avoid an anti-Irish Catholic backlash that could culminate in escalating ethno-religious tensions and turn Canada into the Ireland of North America. That is why he deliberately downplayed the internal threat posed by Fenianism. “The Fenian organization has gone to a very large and dangerous extent in Canada,” he confided to one of his correspondents in 1868, “although I said as little about it as possible. There is no intention of arresting people on suspicion, on the contrary I endeavour, as much as possible, to keep matters quiet.”

At the same time, he knew that a hard line against the Fenians would alienate moderate Irish Catholics whose vote he had been cultivating. Orange-style repression would drive them away from the Conservatives toward the Reformers — and keeping the Conservatives in power was always at the front of his mind.

A combination, then, of principle and pragmatism meant that measures he believed were necessary to safeguard the country were combined with attempts to ensure that the extraordinary powers of government were not abused.

Have we done any better?