History in the Courts

RCMP April 1941

History in the Courts 435-442

The Indians’ doom should touch your heart. I’ve seen Types disappear before. But kindness On dying races, as on dying men Should wait, and Canada may well be proud, And England, too, of that just spirit which Has ruled her councils; these are things the gods Do not forget. Eos: An Epic of the Dawn, by N. F. Davin.

By J. C. Martin, K.C.

In 1867 when the Dominion of Canada came into being through the establishment and union of the Provinces of Ontario, Quebec, New Brunswick and Nova Scotia, the British North America Act provided for “the eventual admission into the Union of other parts of British North American.” The evolution of a new Dominion and, no less, its expansion into the vast unorganized territories to the west, were momentous events. It was not to be expected that they would come to pass without some disturbance and, in fact, the focal points of discord did exist, first in the Irish Fenian movement in the United States, and second, in the person of Louis Riel.

The first had become a menace before Confederation, when, in 1866, Fenians to the number of about two thousand, some of whom had seen services in the American Civil War, gathered near Buffalo and crossed into Canada under arms. They were beaten back after brisk fighting and their attempt at invasion was broken, but the threat of their hostility required Canada (which was then a union of Upper and Lower Canada) to keep a large body of men under arms for several months. Apart from their desire to make trouble for Great Britain, the Fenians no doubt expected that the people of Canada would hail them as deliverers from the British yoke, but the fact was just the opposite, and Sir Richard Cartwright1 is authority for the statement that these raids “very much increased the feeling in favour of Confederation.” The raids had their aftermath in the courts, for a number of the invaders was captured and brought to trial upon the charge of entering Canada to levy war upon Her Majesty. These men were defended at the expense of the American Government “who had by that time become aware of the dangerous consequences which might have resulted had any considerable number been executed,”2 and six were convicted. However, the sentences of death were commuted to various terms of imprisonment.

At the time Thomas D’Arcy McGee was at the height of his power. He was an Irishman who came to Canada after a short sojourn in the United States. Here he went into newspaper work. His writing and his outstanding talent for oratory soon brought him into public life, and before Confederation he became a Minister of the Crown. When Confederation came, his standing was so high that it was not unreasonable for him to expect to be a member of the first Cabinet of the Dominion; but McGee was great as well as brilliant – great enough to waive any claim to personal recognition and to stand aside in order that the Cabinet might be truly representative. However, he had a seat in the House of Commons.


As a youth in Ireland, McGee had had some part in the “Young Ireland” political movement, but something which he found in Canadian life brought about a change in his generous mind. He became an ardent patriot and proponent of the British connection. When the Fenians undertook their misguided raids he denounced them strongly, and thus incurred their enmity.

This was no light matter. On April 6, 1868, McGee delivered in the House of Commons one of the most striking speeches of his career. Late in the night he left the House and was just about to enter his lodgings on Sparks Street in Ottawa when he was shot and almost instantly killed. A few days later the police arrested a man named Patrick James Whelan and charged him with the murder.

In due course Whelan came to trial at Ottawa, and his trial took place amidst a great tensity of feeling. The accused was an Irishman of Fenian sympathies who was employed as a tailor in Montreal. There was evidence of threats which he had made against McGee, also that he had been present at a place, referred to as Duggan’s groggery, in Montreal when the removal of McGee had been discussed. McGee’s brother connected the accused with a mysterious warning which had come to the dead man about two o’clock of a morning during the previous Christmas holidays. On the night of the shooting, witnesses had observed Whelan in a gallery of the House of Commons making threatening gestures towards McGee while he was speaking; one witness had seen a firearm protruding from Whelan’s pocket during that time.

A witness named Lacroix testified that he was on the street near the scene of the shooting when it took place. Frightened by the noise, he took refuge in a doorway, and while he stood there a man ran by. This man he identified as the accused.

These were the high-lights of the case for the Crown. The jury returned a verdict of guilty, and the judge pronounced sentence of death upon the prisoner. However, the trial was by no means the end of the matter; there were lengthy proceedings in appeal. Apart from the testimony of Lacroix, which was strongly attacked during the trial, the evidence was circumstantial. Much argument, too, arose from the way in which the trial judge had dealt with a challenge made by counsel for the defence when one Sparks was called to the jury. Yet in the end the verdict was upheld, and the sentence of death was carried out on February 11, 1869. This was the last public execution in Canada.

There was a great deal of controversy both before and after the execution as to whether Whelan was properly convicted. Nothing could be gained by reviving it now, but it is worth observing that on appeal one of the judges quoted Whelan as having said, in some remarks which he made at the close of his trial, that the jury could not have done anything else upon the evidence but convict him.3

Meanwhile events were taking shape upon a broader stage. The Rupert’s Land Act of 1868 provided for the surrender by the Hudson’s Bay Company to the Government of Canada of its “rights of government and property in Rupert’s Land and the Northwestern Territory” and in 1869 representatives of Canada, meeting in London with the Company, agreed upon terms of


the surrender. These terms included the payment to the Company of the sum of pounds 300,000 and this fact was seized upon by some elements in the Red River Settlement to raise the cry that the people of the Settlement had not been consulted, but rather had been ‘sold like sheep’. It had been arranged that the actual transfer should take place on December 1, 1869, but in the summer of that year the Government, with the consent of the Company, sent surveyors into the territory. One of these, Colonel J. S. Dennis, who had come to make a survey of the settlement, reported that he was met by a band of half-breeds “headed by a man named Louis Riel” who stood upon the chain and threatened violence if the work were continued.

Louis Riel was the son of a man of mixed French, Irish and Indian blood, himself a “fierce and noisy revolutionist,”4 who had a mill on the Seine near St. Boniface. As a boy, the son was sent east to be educated for the priesthood but, as it appears that he did not come up to the required standard, that idea was abandoned and he returned to the Red River Settlement. When the trouble began he was twenty-five years of age; undoubtedly he had talent but he was vain, arrogant and headstrong.

In October, the Hon. William MacDougall, who was to be Governor of the newly-acquired territory, arrived at the border of Minnesota near Pembina in order to be at the settlement when the time came to take over control. The half-breeds, or Metis, forbade him to enter and, perhaps more effectively, barricaded the road to prevent his doing so. Then the idea of a new nation, which had actuated Cuthbert Grant fifty years before, came again into the open. The Metis seized the premises of the Hudson’s Bay Company in the settlement and set up a provisional government with one John Bruce as president and Louis Riel as secretary. This arrangement, however, did not last long; Riel soon superseded Bruce.

At this time influences were at work which were unknown when Grant threatened the life of the settlement. Much of its traffic was with St. Paul to the south, and there were some Americans among its people who fostered annexationist sentiment. Moreover, a Fenian, William Bernard O’Donoghue, was prominent in Riel’s counsels, and when the provisional government ran up its flag, the shamrock was one of the devices which appeared upon it.

Loyal Canadians to the number of about one hundred were disarmed and made prisoner, and the climax came when a young Irish-Canadian named Thomas Scott, who apparently had been too outspoken to suit Riel,


was shot after a perfunctory court-martial held upon the latter’s orders. This was an act of sheer terrorism and, more than any of Riel’s other acts, it aroused public opinion in the east and antagonized opinion in the west. Riel released his other prisoners, but this was largely through the efforts of Bishop Tache. Notwithstanding the admission to Confederation of Manitoba as a province containing the Red River Settlement in July, 1870, Riel’s ill-starred regime came to an end only upon the arrival of a military force under Colonel Garnet Wolseley. By that time Riel and O’Donoghue had fled to the United States, but both were to be heard from again.

O’Donoghue reappears as the instigator of another Fenian raid when, on October 5, 1871, raiders numbering about forty seized the Hudson’s Bay post at Pembina. American troops under Col Wheaton speedily disposed of his attempt, and it appears that O’Donoghue, who was arrested on the Canadian side, was handed over to them. Col Wheaton remarked that he thought any further anxiety regarding a Fenian invasion of Manitoba was unnecessary; and so it proved, for this was the end of overt Fenian activity, not only in the west but with regard to Canada as a whole. However, this does not mean that the Fenians ceased their activities in the United States. Outrages which had their origin in that country continued to harass the British government to such an extent that as late as 1882 it was protesting to the government of the United States.5 With few, if any exceptions, the Irish people in Canada gave the Fenians no support; it was, rather, men like Thomas D’Arcy McGee and Nicolas Flood Davin who represented their opinions. Nor did the Metis generally wish to traffic with them. As for Riel, it is a question how far he compromised himself with them, yet it must be said that it has not been proved that he ever made their designs wholly his own.

After the death of Scott the province of Ontario offered a reward of $5000 for the arrest and conviction of the murderers. A man named Lepine, an associate of Riel, was tried and convicted, but the Governor-General commuted his sentence to two years’ imprisonment and forfeiture of political rights. In 1874 Riel himself was returned by acclamation as the member of Parliament for Provencher in Manitoba. Outlaw though he was, Riel made what Sir Richard Cartwright has called an “impudent attempt”6 to take his seat in the House of Commons. He actually signed the register of members but when this became known the furore was so great that he disappeared. A vote of the House later expelled him from membership.

During the next ten years he remained in obscurity. There is evidence that in 1875 and 1876 he spent some months in an asylum at Beauport, and there is also a suggestion that for a while he was an inmate of an asylum at Longue Pointe under an assumed name.7

In 1884 there were grievances among the Metis in the Northwest Territories. These concerned the issue of patents for their lands, the securing of river frontage, the abolition of taxes on wood, and rights for those who did not have scrip in Manitoba. Some steps had been taken to meet the demands, but these were not considered sufficient and, it was said, “the


silence of the government produced great dissatisfaction in the minds of the people.”8 Moreover, the advent of the Canadian Pacific Railway was disturbing the Indians who now realized that the free life of the plains had been relegated to the past by the westward advance of settlement.

It was in these circumstances that a deputation of Metis approached Riel, who was then teaching school in Montana, and persuaded him to come to the Territories. From then on, to use an expression which is very familiar today, the situation steadily deteriorated. On March 15, 1885, Riel was declaring to Dr. Willoughby of the village of Saskatoon that the time had come when he was “to rule this country or perish in the attempt,” and that “the rebellion of fifteen years ago would not be a patch on this one.” On March 18 he entered a store at Batoche with some of his followers, demanded arms, and announced that the rebellion was on.

The events of the next two months may be summarized shortly. Accounts of them, including the part taken by the North-West Mounted Police,9 have been given elsewhere and need not be repeated at any length. There were engagements at Duck Lake on March 26, at Fish Creek on April 24, at Cut Knife about the beginning of May, and there were some other minor encounters. On April 2, Indians of Big Bear’s band – I put it that way because there is reason to believe that they got beyond his control – massacred


almost all of the white residents in the little settlement of Frog Lake, north of Fort Pitt.

Decisive action came with the arrival from the east of troops under General Middleton. The rebels were defeated in a four-days’ battle at Batoche; it ended on May 12, and a few days later Riel was a prisoner. He was charged with treason and came to trial at Regina in July, 1885, before a court consisting of a Stipendiary Magistrate, a Justice of the Peace, and a jury of six men. The trial, which was a long one, resulted in a verdict of guilty with a recommendation of mercy; an appeal failed, and Riel was executed at Regina on November 16, 1885.

At the trial there was no question as to his part in what had taken place. The principal issue was that of his sanity, and it is a remarkable feature of the case that this issue was raised over his own protest. A contemporary account10 quotes him as saying in court “But, your Honor, my good friends – my learned counsel – are trying to prove that I am insane.” Addressing the court at the end of his trial, he said, “If it is any satisfaction to the doctor to know what kind of insanity I have, if they are going to call my pretensions insanity, I say, humbly through the grace of God, I believe I am the prophet of the New World.”

It should not be forgotten that Riel did not at any time have the full support of the Metis themselves. Upon a reading of the evidence, too, it is impossible to concede him any claim to greatness. Besides what has been quoted, there is much to show forth his pretensions in both the political and religious fields, and in both he exhibited an “unquenchable thirst for power” and an “insensate pride.”11 “As far as my personal experience goes,” said Father Andre, of Prince Albert, “he would not allow the least opposition at all. Immediately his physiognomy changed and he became a different man.”

Riel himself said that he had three enemies – the government, the Hudson’s Bay Company, and the police. “In one week,” he predicted before the outbreak, “that little government police will be wiped out of existence.” Although he was quoted too as saying that he did not hope to be able to hold out against the strength of Britain and Canada, a defence witness, Charles Nolin, testified that Riel had shown him a book which he (Riel) had written in the United States. “What he showed me in that book,” said Nolin, “was first to destroy England and Canada and also to destroy Rome and the Pope,” and the same witness quotes him as saying, “Before the grass is that high in this country you will see foreign armies in this country.”

According to the evidence of Dr. Willoughby, Riel expected help from the Irish and Germans in the United States, and the reference to the former have been a harking back to his Fenian associations of the earlier rebellion. A number of witnesses testified concerning a plan of Riel’s to divide the Territories into seven parts to be allotted variously, but his evidence will not be quoted here as no coherent scheme can be drawn from it.

Riel invented some terms of his own for use in his projected system. To Capt. Young, who was his custodian for a time, he explained that his word ‘Exovede’ was derived from two Latin words, ex, from, and ovile, flock, and that as his council was “not a council and being composed of


exovedes we have called it Exovedate.” However, his statement to Capt. Young that he was one of the flock with no special authority is not borne out by the documents exhibited, at his trial, since some of them were signed by him alone as ‘Exovede’.

It appears too that these words were meant to have more than a merely temporal significance. According to the evidence of John W. Autley, Riel wished to be recognized as the founder of a new church. When Father Moulin of Batoche said to him that he was making a schism against the church, his reply was, “Rome est tombee.” And the document put in as Exhibit 16 at his trial contains the following words: “The French half-breed members of the provisional Government of the Saskatchewan have seperated (sic) from Rome and the great mass of the people have done the same.”

Yet, whatever Riel’s political or religious aspirations may have been, he left himself open to the accusation that he could not be loyal either to friends or principles. Hillyard Mitchell, who saw him before the fight at Duck Lake, testified that he “talked principally of his own grievances – that he had been kicked out of the House and the country.” Thomas Jackson said, “I think his own particular troubles were the most prominent. Of course he spoke of the half-breeds’ troubles.”

In this respect the evidence of Father Alexis Andre was by far the most damaging to him, when that witness testified as follows:

Q. The prisoner claimed a certain indemnity from the Federal government, didn’t he?

442 A. When the prisoner made his claim, I was there with another gentleman, and he asked from the government $100,000. We thought that was exorbitant and the prisoner said ‘Wait a little, I will take at once $35,000 cash.’ Q. And on that condition the prisoner was to leave the country if the government gave him $35,000? A. Yes, that was the condition he put. Q. When was this? A. This was on the 23rd December, ’84.”

It is impossible, of course, to say what weight this evidence had with the jury, but it is of record that the Court of Appeal was strongly impressed by it. Wallbridge, C.J., referred to it and also to evidence that “To General Middleton, after prisoner’s arrest, he speaks of his desire to negotiate for a money consideration,” and then drew this inference: “In my opinion, this shows that he was willing and quite capable of parting with this supposed delusion, (i.e., that he was a prophet with a mission), if he got the $35,000.”12

It has been remarked more than once that Riel was a man of fine potentialities. Still, when one reviews the facts of his life, particularly as they were disclosed at his trail, two conclusions are irresistible. The first is that above all he was an egoist, and the second is that his mind was cast in that dictatorial mould which we have come to know all too well in these later days.13

This remains to be added: Riel’s was not the only trial which resulted from the rebellion. Some others, in particular some of the Indians who took part in the atrocities at Frog Lake, were executed, but, as was the case with the Indian chiefs, Big Bear and Poundmaker, most of those who were convicted received sentences of imprisonment, in some instances coupled with the deprivation of rights.

It is more than half a century since those troubled days. There is another generation of Metis, another generation of Indians, and it is worth recording that some of them are wearing the uniform of the great-grandson of that Queen whose authority Riel’s rebellious efforts attempted to dispute.

1 Reminiscences, p. 61

2 Ib., p. 60

3 28 U.C.Q.B. 141. It may be noted here that public executions for murder were abolished in England in 1868.

4 Dr. George Bryce: The Romantic Settlement of Lord Selkirk’s Colonists, p. 219

5 A. G. Gardiner: Life of Sir William Harcourt, Vol. I, p. 521. Perhaps the most sensational of these outrages were the Phoenix Park murders of May 6, 1882, some account of which is to be found in the same volume, beginning at p. 435.

6. Reminiscences, p. 90.

7 The first point appears in the evidence of Dr Roy at Riel’s trial; there is an oblique reference in the second in an address made by Riel himself in court at the close of his trial.

8 Evidence of Father Alexis Andre at Riel’s trial.

9 R. C. Fetherstonhaugh: The Royal Canadian Mounted Police. W. B. Cameron: The War-trial of Big Bear. Mrs. Theresa Gowanlock and Mrs. Theresa Delaney: Two Months in the Camp of Big Bear. R.C.M.P. Q. Vol. III, p. 103.

10 The Daily Leader, (Regina), July 31, 1885.

11 Bishop Tache’s words as quoted in Canada and Its Provinces, Vol. 19, p. 80.

12 The Queen v. Riel, I Terr. L. R. at p. 32. See also at pages 48 and 65.

13 Except where stated otherwise, references to the evidence at the trial of Riel are to the proceedings of the trial by the Queen’s Printer.

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