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Manitoba History: Review: Barry Wright and Susan Binnie (eds.), Canadian State Trials Volume III: Political Trials and Security Measures, 1840-1914

by DeLloyd J. Guth
Faculty of Law, University of Manitoba

Number 64, Fall 2010

Murray Greenwood’s passion for the study of political crimes has been substantially extended by Barry Wright and Susan Binnie with this third volume in the Canadian State Trials series. Greenwood was something of a left-wing libertarian, eager to invoke the duties and expose the abuses of governmental powers, while maintaining a mischievous respect for the rebel, the outsider. The lawyer in him made rule-of-law the ideal and due-process the measure and method for each case; the University of British Columbia historian in him insisted on careful reconstructions of laws and facts as they actually were, in each case’s time and place. Murray was born and educated an Anglophile Quebecois, sensitive to political and social contexts. He shared this legal historian’s vision with Barry Wright in designing the series as a collection of secondary articles, rejecting the early nineteenth century English model (i.e., Howells series) of edited, annotated original case trial proceedings. Canadian State Trials gives us modern experts while the English State Trials 1163-1858 gives us raw primary evidence; the former gives us selected citation and interpretation, the latter gives us do-it-yourself sources.

The first volume contained selected political trials before 1837 in New France and British North America, and the second focused exclusively on the 1837-1839 rebellions in Upper Canada and Lower Canada. This third collection divides into four topical areas: 1) two articles on the Fenian “invasions” and agitations 1866-8; 2) four articles on riots and the law’s instrumental responses 1864-1914; 3) four articles on the North-West rebellions of 1874 and 1885, focusing largely on Manitoba; and 4) two articles introducing two spymasters and the Criminal Code 1892. Each article is thoroughly and authoritatively footnoted, providing a ton of references to manuscript and printed sources, as well as mini-historiographical guides to published scholarship. The book ends with an excellent nominal-topical index and three appendices by commissioned archivists detailing “Archival Sources” for Sir John A. Macdonald, the Riel Rebellion and the four topical areas noted above. There are an annoying number of typing errors and of ubiquitous “See” commands in the footnotes; but, in sum, this is a well-planned, expertly executed scholarly enterprise, creating keen hopes for The Osgoode Society’s continued support of the series across twentieth century political trials.

The Fenian impact was always exaggerated, fleeting and legally insignificant. These Americanized Irish Catholics mounted three “invasions” between April and June 1866: a handful of one-night raiders from Vermont into New Brunswick, a force of 800 for less than a week at Niagara, and similar numbers near Pigeon Hill, Quebec, for two days. Mostly rag-tag anti-British survivors of the US Civil War, they fantasized a liberation of Ireland by way of North America, even blustering about Hudson’s Bay Company territories. R. Blake Brown’s article narrates the three trials, on charges of levying war: seven of twelve convicted in November 1866 (Toronto), three of sixteen in Sweetsburg, Quebec, and fifteen of twenty-seven convicted in January 1867 (Toronto). Dozens were shipped back to the US without trial, the convicted had death sentences commuted to twenty years, and all were freed before 1872. The one Fenian success, D’Arcy McGee’s assassination (1868), is definitively reconstructed by David A. Wilson in the second article. He shows that Sir John A. Macdonald’s suspension of habeas corpus was not needed, but that the government acted with the restraint and legality that the Fenian fools neither recognized nor deserved.

The next four articles pertain to “Managing Collective Disorder,” beginning with Ian Ross Robertson’s condensed version of his 1996 book on “The Tenant League.” This was a renters’ revolt in 1864 by leaseholders, tenants-atwill and squatters against largely absentee landlords on Prince Edward Island. Donald Fyson extends his superb 2006 book’s study of “Criminal Justice in Quebec” (1764-1837) to the second half of the nineteenth century, focusing on judicial prosecutions for riot. This is the most original, systematic, sophisticated quantitative case analysis in the volume. Next, Susan Binnie describes at length the failed federal attempts, through its Peace Act (1869) and Police Act (1868), to enforce alcohol prohibition west of Ontario (including Manitoba) to support road and railway projects. Eric Tucker then carefully analyses governmental responses to seventeen street railway strikes or lockouts in nine cities from 1886-1914, including Winnipeg in 1906 and 1910. All four articles show how ineffectual post facto resort to the courts was, how juried trials with high acquittal rates were replaced by summary police magistrate procedure and militarized force, both self-interestedly controlled by civilian elites and owners.

For Manitobans the next four articles, grouped as “The North-West Rebellions,” hold special attention. Louis A. Knafla narrates “Treasonous Murder: The Trial of Ambroise Lepine, 1874,” an oft-told foundational chapter in Manitoba’s history. This was a trial of Louis Riel in absentia, which ended with only the accused looking honourable: certainly not the alleged victim (Scott), the prosecuting (Cornish) and defending (Royal, Dubuc, Girard) lawyers, the sixteen doubtful witnesses, the twelve select jurors, and the judge (Chief Justice Edmund Burke Wood). Knafla basically explicates the trial’s Court of Queen’s Bench transcript, published in 1874. Bob Beal and Barry Wright follow this with the “Summary and Incompetent Justice” notorious in the eighty-four treason-felony cases against Riel’s associates in 1885, which put sixty Aboriginals and Metis in Stony Mountain Penitentiary. Then we get “Another Look at the Riel Trial” by Jack Bumsted, which is really another look at Tom Flanagan’s exculpatory arguments for the prosecution. Finally, the editors take us back to “The 1885 Indian Trials” by Bill Waiser, who exposes the Macdonald government’s shameful courtroom revenge on twenty-eight “disloyal” Aboriginal bands. This 183 page section of the book addresses the heart of Manitoba’s early cultural identity, providing up-to-date syntheses, full of anecdotes and footnoted evidence.

Finally, the volume jumps to a brief glimpse of “Political Policing” 1860-1914, written by committee: Andrew Parnaby, Gregory S. Kealey, and Kirk Niergarth. We get “Gilbert McMicken and the Fenians” and then “William Charles Hopkinson and the ‘Hindoo Crisis’,” presented grandly as spy-masters, without any contexts for the history of Canadian security policing and powers. We end with Desmond H. Brown, aided by Barry Wright, extending his 1989 monograph on the “Canadian Criminal Code, 1892.” They usefully focus on its public order offences: treason, lawless aggression, official secrets, breaches of the peace, and sedition.

Robust as most articles are, they are also a bit tired, mainly extending each scholar’s previous, more substantial publications. Each fulfills Murray Greenwood’s vision but each consolidates rather than creates fresh perspectives. Only the Manitoba section forms a coherent, thematic whole; the rest are stand-alone articles for scattered events that are asserted to be “state trials” without any clear set of defining criteria. Do all governmental prosecutions, localcolonial- provincial-federal, qualify? If not, why not? Silly as that sounds, it begs a basic premise for the uniqueness of this volume and series that future editors must face and resolve.

Page revised: 10 July 2016

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