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]