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.
At Red River Settlement, during the Resistance of 1869-1870, both the Comité National des Métis and the 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. [See The Patriotes/ Military/ Settlement Guard, this site.]
In deciding policy, the organizers of the Comité National des Métis and Bruce’s Provisional Government at Red River may well have taken direction from relatively recent pronouncements in the United States. Note that the last two measures below were put in place at Red River Settlement during 1869-1870:
- On 24 September 1862, during the American Civil War, 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.”
• 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.
• People were required “to have a military pass to travel.” Obtaining a pass required taking “an oath of loyalty to the Union.”
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’.”
Incidentally, in 1869–1870, martial law was declared in numerous places in the U.S. — in North Carolina and Texas. At the same time, British officials debated the limits of martial law with respect to its application in New Zealand.
And, 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.
- William McDougall relayed the information that martial law was a distinct possibility to the “Insurgents” via an individual he suspected of being “in their confidence, if not in their plot.”
- 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. 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.”
When was martial law implemented?
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.
- Even the Toronto Globe reported martial law to be in effect during November.
- The local Red River New Nation newspaper relayed a second-hand report that martial law had been proclaimed at about the same time as the Convention of Twenty-four.
- Hon. William Bernard O’Donoghue of the Legislative Assembly of Assiniboia, however, stated that martial law was declared in December 1869. (It seems reasonable to assume that the arrest of the Canadian Volunteers on 7 December would roughly correspond to the implementation of martial law.)
When was martial law lifted?
O’Donoghue also implied that martial law was lifted 6 May 1870, when “the country came under civil law, as the President had announced.” Alexander Begg was under the impression that martial law was lifted on 9 May (coinciding with Session 2, Day 12, which marked the close of debates of Legislative Assembly of Assiniboia for the time being).
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).
What implications would martial law have with respect to the execution of Thomas Scott?
Under conditions of martial law, defiant civilians may be subjected to a military tribunal/ court-martial.
It is, however, 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.
Aside from any capital crime Scott might have committed (whether considered civilian or military), there are many circumstances to be evaluated:
- At the time, Red River was in a peculiar position:
• a proprietary ‘plantation’ (the last in the British Empire and unlike any other colonies),
• 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), 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.
 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. Evidence of thought having been given to questions of law, the state, and citizens is apparent in articles published in the local Red River press. See, for example, “Les Droits Civil,” New Nation (21 Janury 1870), which explains that ‘the rights of man’/ human rights are superior to any political rights devised by a state, mentioning protection of “la liberté de la personne de chacque habitant du territoire, quelle que soit son origine, sa coleur, sa condition.”
 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 (accessed 1 March 2013); and Robert L. Breck, The habeas corpus, and martial law (Cincinnati: R.H. Collins, 1862).
 “Martial Law: Loyalty, Vigilant Justice,” Missouri Digital Heritage, http://www.sos.mo.gov/mdh/DividedLoyalties/dl_atour_media.asp?dl=p15 (accessed 1 March 2013). See also “(From our own Correspondent). St. Paul, Minn., Nov. 23,” Glenbow Museum, M-6058, “James Ross’ Scrapbook,” 5, which reports “The system of passes has been adopted and the strictest surveillance is exercised.”
 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, 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.
 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 (accessed 28 February 2013).
 Great Britain, Parliament, House of Commons, Accounts and Papers of the House of Commons, session 8 February -10 August 1870, vol. 50, Colonies and British Possessions continued vol. 10 (London: William Clowes and Sons, 1870), 36-37, 56, 115, 120, 158, 200, of interest also is a discussion of treason, 107-108.
 William McDougall, letter to Joseph Howe, (5 November 1869), in “Correspondence relative to the recent disturbances in the Red River Settlement,” Accounts and Papers of the House of Commons, session 8 February -10 August 1870, vol. 50, 13; and J.S. Dennis, letter to William McDougall, (2 December 1869), in “Correspondence relative to the recent disturbances in the Red River Settlement,” Accounts and Papers of the House of Commons, session 8 February -10 August 1870, vol. 50, 64.
 Colin Read, “The Red River Rebellion and J. S. Dennis, ‘Lieutenant and Conservator of the Peace’,” Manitoba History, no. 3 (1982), 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’.” See also Joseph Howe, letter to William McDougall, (24 December 1869), in “Correspondence relative to the recent disturbances in the Red River Settlement,” Accounts and Papers of the House of Commons, session 8 February -10 August 1870, vol. 50, 84.
 Canada, Parliament, House of Commons, “Report of the Select Committee on the Causes of the Difficulties,” 36.
 ‘Spectator,’ “The Minnesota Press upon the Red River Affair — A Chance for Governor McDougall to Go as well as Look to Washington (Correspondence of the St. Paul Press),” in “Correspondence relative to the recent disturbances in the Red River Settlement,” Accounts and Papers of the House of Commons, session 8 February -10 August 1870, vol. 50, 28, notes “On Tuesday, the 2nd inst., the Red River Troops took quiet possession of Fort Garry and the Government House. Winnipeg is under martial law. No soldier is permitted to take a drop of spirits. The most stringent discipline is observed. If a citizen or outsider is found drunk or disorderly he is promptly arrested and confined until sober and quiet”; Canada, Parliament, Correspondence and papers connected with recent occurrences in the Northwest (1870), 73. See also “Progress of the Revolution at Red River,” St. Cloud Journal (25 November 1869); and “The Winnipeg Revolution. Speech of Hon. A. Ramsey in the United States Senate, Intimate Relations of Winnipeg to Minnesota,” New Nation (4 March 1870), which mentions a declaration of martial law before the Convention of Twenty-four in November.
 “The Winnipeg Revolution, Speech of Hon. A. Ramsey in the United States Senate,” New Nation (4 March 1870), 1 column 5. See also “No. 5. Mr. Stiles to Mr. Fish,” and “No. 9. Mr. Taylor to Mr. Fish,” in United States, President [Grant], Message of the President of the United States communicating, in compliance with a resolution of the Senate of December 8, 1869, information relating to the presence of the Honorable William McDougall at Pembina, in Dakota Territory, and the opposition by the inhabitants of Selkirk Settlement to his assumption of the office of governor of the Northwest Territory (Washington, D.C.: s.n], 1870?), 9, 25.
 W.L. Morton, ed, Alexander Begg’s Red River Journal, 72 n. 1, see also 80, Historian W.L. Morton asserted, “There was no formal proclamation of martial law … But there were numerous unofficial statements … that martial law existed. Riel acted frequently on this assumption.”
 Alexander Begg, Red River Journal, 369 and n.2, and 465 n.2. “Proclamation Aux Peuples du Nord-Ouest,” New Nation (15 April 1870), 2, and “Proclamation to the People of the North-West,” 2, suggest the state of martial law was expressly lifted as of 9 April 1870.
 W.L. Morton, Alexander Begg’s Red River journal: and other papers relative to the Red River resistance of 1869-1870 (Toronto: Champlain Society, 1956), 369 and n.2. See also John A. Macdonald, quoted in debates of the House of Commons 16 February 1871, http://parl.canadiana.ca/view/oop.debates_HOC0104_01/45?r=0&s=2.
 “Military Execution,” New Nation (4 March 1870), (accessed 1 March 2013), 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.
 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 (accessed 1 March 2013).
 In attempting to argue a case with respect to ‘legality’ and Red River settlement, 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.”
See also John Reynolds, “The Long Shadow of Colonialism: the Origins of the Doctrine of Emergency in International Human Rights Law,” (2010), Comparative Research in Law & Political Economy, Research Paper No. 19/2010, http://digitalcommons.osgoode.yorku.ca/clpe/86.
Published 26 August 2014