Martial law simply means that during a state of emergency, civil law has been suspended and military personnel may perform some or all of the functions of civil authorities, because the government in charge is decidedly military in aspect. Both the Comité National des Métis and the first Provisional Government under President John Bruce relied heavily on military force. Under the former, the force consisted of men described as the “Patriot Army” and the “Red River cavalry”; under the latter, the settlement guard commanded by Adjutant General Ambroise Dydime Lépine.[i]

When it came to determining policy, the organizers of the Comité National des Métis and the first Provisional Government at Red River could take direction from recent pronouncements in the United States.[ii] On 24 September 1862, President Abraham Lincoln had declared “rebels, insurgents, and all persons ‘guilty of any disloyal practice affording aid and comfort to rebels’ would be subject to martial law and liable to trial by court-martial or military commission.”[iii] The right to writs of habeas corpus (court orders declaring that a prisoner must be allowed to argue wrongful imprisonment before a judge), was suspended.[iv] People were required “to have a military pass to travel.” Obtaining a pass required taking “an oath of loyalty to the Union.”[v] (The last two measures were also put in place at Red River Settlement during 1869–1870.)

President Lincoln’s decision to declare martial law took legitimacy from earlier deliberations of the U.S. Supreme Court. In 1855, the court had determined that martial law was justifiable under, and governed by, the law of nations.

The Supreme Court stated ... the law of nations, including the laws of war, forms a part of “the municipal jurisprudence of every country” in its dealings with foreign countries and their nationals. The Court emphasized that this was particularly true during a state of war. Moreover, throughout the early history of America, statesmen and judges repeatedly asserted that the law of nations was part of domestic law. Such statements could lead to the conclusion that the military indeed possessed the power to act directly under the law of nations.”[vi]

Incidentally, in 1869–1870, martial law was declared in numerous places in the U.S. — in North Carolina and Texas.[vii]

Martial law was not without precedent in Canadian history. It had been declared previously during ‘The Conquest’ in 1759, during the War of 1812, and more recently, during the Lower Canada Rebellions of 1837–1838. Nor was the idea of martial law repugnant to Canadians in 1869. Canadian surveyor John Stoughton Dennis was under the impression that Rupert’s Land had passed into Canadian ownership as of 1 December 1869 and that he was therefore a legitimate “Conservator of the Peace” at Red River. Dennis “officially informed” both the ailing HBC Governor Mactavish and the acting governor Judge John Black of his intention to declare martial law in order to make arrests.[viii] Dennis’ plan did not succeed, but the idea that Canada might declare martial law at Red River did not disappear. As late as 31 July 1870, John Henry McTavish was of the opinion that Canadians at Red River “entertain the hope that as soon as the troops [the Red River Expeditionary Force from Canada] arrive, martial law will be proclaimed, to be followed by the hanging of a few of the French party; such is their kind expectations.”[ix]

The precise date that the Comité National des Métis instituted martial law at Red River is open to debate. One American report from Pembina indicated it was in force as of 8 November 1869.[x] Hon. William Bernard O’Donoghue of the Legislative Assembly of Assiniboia, however, stated that martial law was declared in December 1869.[xi] Historian W.L. Morton has observed, “There was no formal proclamation of martial law ... But there were numerous unofficial statements ... that martial law existed. Riel acted frequently on this assumption.”[xii]

O’Donoghue also implied that martial law was lifted 6 May 1870, when “the country came under civil law, as the President had announced.”[xiii] Alexander Begg was under the impression that martial law was lifted on 9 May, when Session 2, Day 12 marked the close of debates of Legislative Assembly of Assiniboia for the time being.[xiv]

Either way, O’Donoghue’s reference to the institution of the new civil laws raises an interesting point. As W.L. Morton noted, “The existence of martial law ... has, of course, an important bearing on the shooting of Thomas Scott,” though he did not elaborate.

It is exceptionally difficult to determine the extent to which martial law might have legitimated the execution of someone identified as a soldier in a foreign militia, at Red River, in 1870.[xv] Aside from any capital crime Scott might have committed, there are many circumstances to be evaluated: At the time, Red River was a proprietary colony, no longer entirely under HBC governance, temporarily held by the Crown (though not yet thoroughly, because the HBC deed relinquishing governance had not yet been officially accepted by Queen Victoria),[xvi] and governed by a provisional government (the pertinent documents of which no longer exist). The lack of surviving historical evidence perhaps presents the greatest barrier to arriving at a reasoned final judgement.[xvii]

[i] Archives of Manitoba [AM], MG3 A1-31, Provisional Government accounts with Hudson’s Bay Company, Volume 1, 1869-1870, is a record book that appears to list the names of the men who belonged to the settlement guard in October and November 1869, and to list provisions forwarded to each — principally pemmican, tea, flour, and tobacco — up until 11 January 1870. Throughout the journal, columns of names are interspersed between lists of such items, along with blankets, tea, candles, sugar, matches, envelopes, and knives. On 25 December whiskey and rum were distributed. On 22 January another list of names was made. Besides Louis Riel, members of the Convention of Forty and the Legislative Assembly are included, for example Baptiste Beauchemin, Louis Lascerte, and André Beauchemin. Surnames in the lists indicate that the guard was not exclusively made up of ‘French’ men — for example, Slater, Kennedy, McKay, and Turner also figure. AM, MG3 A1-32 Provisional Government accounts with Hudson’s Bay Company, Volume 2, 1869-1870, is a continuation of the first volume, the accounts running from 24 February to 1 March 1870. Among those named are Louis Schmidt, Thomas Harrison, Charles Nolin, Pierre Parrenteau, Pierre Delorme, Pierre Poitras, and Xavier Pagé.

[ii] Details of American policy with respect to martial law would have been available in newspapers as well as from such individuals as Hugh F. Olone, who had served as a captain in the Union Army during the Civil War — not to mention the many American politicos at the Settlement, such as Oscar Malmros, Enos Stutsman, and Henry Martin Robinson.

[iii] Proclamation by the President, Sept. 24, 1862, reprinted in James D. Richardson, Messages and Papers of the Presidents 1789–1897 (Washington DC: Published by authority of Congress, 1897), 98-99.

[iv] See James A. Dueholm, “Lincoln's Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis,” Journals of the Abraham Lincoln Association 29, no. 2 (summer 2008), http://hdl.handle.net/2027/spo.2629860.0029.205; and Robert L. Breck, The habeas corpus, and martial law (Cincinnati: R.H. Collins, 1862).

[v] “Martial Law: Loyalty, Vigilante Justice,” Missouri Digital Heritage, http://www.sos.mo.gov/mdh/DividedLoyalties/dl_atour_media/p15.

[vi] This argument was used to justify the trials and executions of the ‘Dakota Wars.’ Carol Chomsky, “The United States-Dakota War Trials: A Study in Military Injustice,” Stanford Law Review 43, no. 1 (November 1990), 71, http://chgs.umn.edu/educational/addInfo/DakotaWarTrials.pdf, argues however, that historically in the United States, “the judicial pronouncements [about martial law] were made largely in the context of issuing grand jury charges, not upholding prosecutions. When the question whether criminal prosecutions could be maintained directly under customary law was presented to the Supreme Court in 1812 in United States v. Hudson, the Court held that federal courts had no such common law jurisdiction. A broad reading of that case suggests that crimes not established by statute — such as crimes against the law of nations — were not punishable. Thus substantial uncertainty exists whether, in 1862, the courts would have recognized the military's power to exercise common law authority to punish foreign nationals for violations of the laws of war. It is clear, however, that many of those who considered the question of the legitimacy of the military commissions at the time of the Civil War answered it in the negative.” That circumstance, however, would not necessarily be known at Red River Settlement.

[vii] In 1869, martial law was also declared in Alamance County, North Carolina and at Charleston. See William Murray Vincent, Historic Alamance County: An Illustrated History (San Antonio: Historical Publishing Network, 2009), 56; and David F. Marley, Historic Cities of the Americas: An Illustrated Encyclopedia, vol. 1(Santa Barbara: ABC Clio, 2005), 544. During the lead up to the Texan Red River War, martial law was declared in the Madison, Hill, Walker, Limestone, and Freestone counties of Texas in 1870 and 1871. See “Reconstruction,” Texas State Historical Association, http://www.tshaonline.org/handbook/online/articles/mzr01.

[viii] Colin Read, “The Red River Rebellion and J. S. Dennis, ‘Lieutenant and Conservator of the Peace’,” Manitoba History, no. 3 (1982), http://www.mhs.mb.ca/docs/mb_history/03/dennis_js.shtml, presents Dennis’ pressing wish to make an arrest as directed against “an American troublemaker, Enos Stutsman.” Black, apparently “did not care for the idea (Prime Minister Macdonald was to think it “a bit of frenzy”), and asked Dennis not to implement it for a few days. Stoughton agreed, but privately resolved to proceed “so soon as I may have a force to back me up.”

[ix] Canada, Parliament, House of Commons, “Report of the Select Committee on the Causes of the Difficulties,” 36.

[x] Canada, Parliament, Correspondence and papers connected with recent occurrences in the Northwest (1870), 73. See also “The Winnipeg Revolution. Speech of Hon. A. Ramsey in the United States Senate, Intimate Relations of Winnipeg to Minnesota,” New Nation (4 March 1870), http://manitobia.ca/content/en/newspapers/NNT/1870/03/04/1/Ar00107.html/Olive, which mentions a declaration of martial law before the Convention of Twenty-four in November.

[xi] See [William Bernard] O’Donoghue, quoted during Session 2, Day 12, of the debates of the Provisional Government of Assiniboia site.

[xii] W.L. Morton, ed, Alexander Begg’s Red River Journal, 72 n. 1, see also 80.

[xiii] [William Bernard] O’Donoghue, quoted during Session 2, Day 12, of the debates of the Provisional Government of Assiniboia site.

[xiv] Alexander Begg, Red River Journal369 and n.2, and  465 n.2“Proclamation Aux Peuples du Nord-Ouest,” New Nation (15 April 1870), 2, suggest the state of martial law was expressly lifted as of 9 April 1870.

[xv] “Military Execution,” New Nation (4 March 1870), http://manitobia.ca/content/en/newspapers/NNT/1870/03/04/3/Ar00300.html/Olive, reports the death of “Private T. Scott” on 4 March 1870, “upon an order of a court-martial,” held on 3 March 1870; his record of incarcerations and escape; his behaviour as prisoner; his death threat on the President; his assertion that he was a leader in Portage party; that one member of the court voted against death sentence; that clergy attempt to intercede; that the President had not any power to revoke the tribunal’s decision; Scott’s good-bye to fellow prisoners; regret expressed by the court at the necessity of an execution; and Scott’s burial.

[xvi] The Crown did not accept the deed “under the seal of the HBC bearing the date 19 November 1869,” which surrendered the territory to Queen Victoria, until 22 June 1870. See William F. Maton, ed., “Rupert's Land and North-Western Territory Order (Order of Her Majesty in Council Admitting Rupert's Land and the North-Western Territory into the Union) At the Court at Windsor, the 23rd day of June, 1870 ,” Solon.org, http://www.solon.org/Constitutions/Canada/English/rlo_1870.html.

[xvii] There is the additional problem that tenets respecting martial law were subject to international debate into the twentieth century. See Jonathan Hyslop, “Martial Law and Military Power in the Construction of the South African State: Jan Smuts and the ‘Solid Guarantee of Force’ 1899–1924,” Journal of Historical Sociology 22 no. 2 (June 2009), 237, 242–243, who notes as well that when it came to martial law being declared within British colonies, there has been a common view that “British law only developed something akin to the state of exception with the Defence of the Realm Act during the First World War.” Hyslop observes, however, that “In the Empire, full martial law was extensively used in the 19th century — on six occasions in parts of the West Indies, three times in the Cape and once each in Canada, Ceylon and Cephalonia. Central to controversies on this practice was the political crisis which erupted in Britain over Governor Edward Eyre’s bloodthirsty use of martial law to repress the 1865 Morant Bay Rebellion in Jamaica.” Apparently, “what was seldom disputed by late Victorian scholars and judges was that military law was an absolute last resort, and that military courts could not sit while civil courts were still functioning.” Nevertheless, in 1902, “Lord Halsbury, found that military courts could function alongside ordinary courts.” Notably, other colonies in the British Empire had recourse to the Privy Council in London “as the apex court of their legal systems,” which Red River, as a proprietary colony ‘in limbo,’ did not. H. Robert Baker, "Creating Order in the Wilderness: Transplanting the English Law to Rupert’s Land, 1835–1851," Law and History Review 17, 2 (summer 1999): 213, points out that, in terms of statutes, the legal “apex” at Red River traced to those statutes in play at the time of the 1670 royal charter, “in other words, arcane and unknowable.”