by Alvin J. Esau
University of Manitoba
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Dale Gibson, Law, Life, and Government at Red River, Volume One: Settlement and Governance, 1812–1872, Montreal, Kingston, and Toronto: McGill-Queen’s University Press and Osgoode Society for Canadian Legal History, 2015. 549 pages, ISBN 978-0-7735-4522-9, $39.95 (paperback).
Dale Gibson, Law, Life, and Government at Red River, Volume 2: General Quarterly Court of Assiniboia, Annotated Records, 1844–1872. Montreal, Kingston, and Toronto: McGill-Queen’s University Press and Osgoode Society for Canadian Legal History, 2015. 916 pages, ISBN 978-0-7735-4563-2, $140 (cloth)
Concerned about lawlessness within the Red River community and threats from without, Governor Simpson of the Hudson’s Bay Company (HBC) initiated a number of reforms in 1835 that included the formation of a much expanded police force and the creation of a more formal legal system. Various petty courts were created and magistrates appointed to them, and then above the petty courts was the General Quarterly Court of Assiniboia (GQCA) composed of the Governor and Council, and usually sitting with a jury. It is the surviving records of this court, which form the heart of Dale Gibson’s impressive two-volume work. Gibson is a Distinguished Emeritus Professor of Law at the University of Manitoba.
The first volume is a substantial book by Gibson on the history of the Red River community, particularly from a legal and governmental perspective, meant to provide the socio-political contextual background necessary to fully appreciate the court records in Volume 2. While the Volume 1 text is meant to be contextual, it is an important contribution to the literature on Manitoba history in its own right, even if the reader never opens the records found in Volume 2, although this would not be recommended. Volume 1 contains over 80 pages of footnotes and an extensive bibliography, glossary, and a number of maps as well as photos of various individuals. It should be noted that Gibson does not just focus on legislative, judicial and governmental developments, but also provides a narrative on life in the Red River community ranging from weather and health disasters through economic changes and the various relational and political tensions between the diverse groups making up the settlement. In short, the Gibson text is more than a major contribution to Manitoba’s legal history literature, though it surely is that.
The first two chapters of the text provide an account of the origin and development of the Red River community and governmental and judicial matters up to the 1835 judicial reforms. As a constitutional lawyer, Gibson provides particularly insightful views on the administration of justice, both judicial and legislative, by governor and council under the HBC Charter of 1670, and the various controversies that arose as to jurisdictional questions about the reach of that authority.
The next two chapters are very important because they deal with post-1835 events, but during a period in which we do not have surviving formal records of the GQCA. The formal court records deposited in the Manitoba Provincial Archives, and now published in Volume 2, begin in November of 1844. Despite the absence of a formal court record, Gibson utilizes a wide array of archival sources to reconstruct some the cases before the court in this period, as well as cases that might have been adjudicated by the court, but were not for various, often questionable, reasons.
In chapter five of the Gibson text, we begin to deal with a period that parallels the surviving court records. Gibson’s text continues right through the period of insurrection and provisional government, and includes the period post-1870 when the General Quarterly Court was resurrected, albeit as a bench with just one judge, as an interim court until the Manitoba Queen’s Bench began to operate in October 1872.
While the court functioned well without lawyers and professional judges for a number of years, Governor Simpson decided that a formally trained lawyer should be appointed as Recorder (Judge) to join the other members of the GQCA, and also as legal advisor to the HBC. Gibson tells quite a story about the disastrous career of lawyer, Adam Thom, appointed as the first professional judge in 1839. Thom’s tenure lasted until 1854, but for most of the second half of it, Thom was such a hated pariah in the community, especially among the French “Half Breeds,” that he was, in effect, removed from office. Gibson notes the various contributions of Thom, especially as to local legislation, but also gives a thorough account of how his “arrogance, irascibility, HBC partisanship, and francophobia” (p. 52) nearly destroyed the court. While the next formally trained lawyer, Francis Johnson (serving from 1854 to 1858, and briefly brought back in the post-1870 period) performed his role better than Thom did, Gibson’s ultimate judgement on him is not positive. “Francis G. Johnson was intelligent, quick-witted, legal knowledgeable, charming, and a gifted speaker of both English and French. He was also self-centred, arrogant, improvident, lazy, and soft principled. Over the years, he served long, and tolerably well... But Red River and Manitoba had deserved better” (p. 337). One of the themes in Gibson’s narrative is that the non-lawyer Recorders often did a much better job at leading the GQCA than the lawyers did. Both Dr. John Bunn, serving in this position from 1858 to 1861, and John Black, from 1862 to 1869, are given positive reviews by Gibson for their common sense approach to the judicial role.
The Gibson text works well as context for the court records in Volume 2, but it should be noted that beyond some of the cases that Gibson highlights in each period, he also outlines various legal cases in each period of time that were not brought to the court. Also of importance is the frequent absence of adequate law enforcement to back up the formal justice system.
Turning now to the second volume containing the surviving record of the General Quarterly Court from 1844 to 1872, we note that these are not the usual court report series we find in the law library consisting of the opinions of judges, usually at the appellate level, in which the facts of the cases are summarized, legal issues are identified, and adjudication is made by reference to past precedent and legislative authority. Rather these court records, when they are at their best, identify the parties to the case, the members of the court and the members of the jury, provide a summary of what each witness presented as evidence, and then provide the verdict of the jury and the penalty, if any, in criminal cases, and the awards, if any, in civil cases. While one member of the court served as “recorder” with oversight of the adjudication and with responsibility to inform the jury as to legal matters, the use of juries for virtually all cases resulted in a process of legal arbitration, rather than strict formal legal adjudication.
The court records, especially later in time, often contain minimal information as to the evidence presented to the jury and basically stand as a bare record of what the jury verdict was. Given the uneven nature of the records, Gibson’s annotations are invaluable. He provides well over a hundred pages of footnotes that are often essential to understand the cases. In addition, Gibson provides commentary at the end of many of the cases, utilizing various sources (such as HBC archival material and newspaper accounts, to name just a few) so as to illuminate the facts and also provide his own insight into various legal and historical issues. To organize, annotate, and comment on these records involves an extraordinary amount of scholarly work, for which Gibson should be congratulated. It is important to note that Gibson’s commentary on specific cases often goes well beyond the commentary found in Volume 1, however valuable that also is.
I doubt that readers will plough through the whole of the 700 pages of records and the additional 200 pages of glossary, footnotes, case tables, and index; so, it may be helpful to at least list some of the most interesting cases that readers might turn to. There is a danger in doing this because there is valuable historical insight in examining the patterns of “routine” cases. To take just one example, we note the considerable number of cases dealing with claims about ownership of, or damages to, horses or oxen, reflecting the historical importance of common pasture, open plains, the buffalo hunt and animal use in transport, and so forth. There is also the persistent theme of drunkenness underlying much of the criminal docket. Now that these records are published, there may also be value in a more systematic cumulative study of all the cases dealing with women, or all the cases dealing with Natives, to take just two examples. In the final chapter of Volume 1 (pp. 339–65), Gibson does reflect on the legal system as a whole, and highlights the treatment of vulnerable persons as to age, race, and gender. Judging the Red River legal system within its own historical period, Gibson “believes that justice was substantially served” (p. 353), and in that chapter he highlights various cases in coming to his positive conclusion.
Keeping in mind the historical value of the records as a whole, I would nevertheless highlight some of the cases that I found most interesting and for which Gibson provides particularly expansive commentary, indicative of the historical importance and interest of the case.
The 1849 case of Pierre Guilleaum Sayer (pp. 113–18), in which the HBC attempted to use the court to enforce its alleged trade monopoly, is clearly a case of importance, given that hundreds of armed men, mostly French “Half Breeds” opposed to the monopoly surrounded the courthouse. The commentary on the case provides an interesting narrative as to the interactions of Adam Thom, acting as both judge and advocate for the HBC and for James Sinclair, chief lay advocate for the free traders, and how, at the end of the day, a guilty verdict in principle amounted to a victory for the free traders.
Next among the leading cases is the famous 1850 case of Foss v. Pelly (pp. 136–64) where Captain Pelly sued various individuals for defamation in spreading news that he has having an affair with Sarah Ballenden, the wife of Chief Factor John Ballenden. The case divided the community and saw Adam Thom at various stages acting as lawyer for the plaintiff, witness in the case, and also judge of the court, advising the jury as to the law. After several days of evidence in which the morals of Sarah Ballenden were under examination, the jury returned a verdict in favour of the plaintiff, supposedly upholding the good name of Sarah Ballenden. Certainly the defendants did not prove in defense defence to the charge of libel that the affair had happened. However, as Gibson reports, even Adam Thom subsequently faced with new evidence had to admit that the jury verdict was very likely wrong and that indeed Foss and Ballenden had been lovers. Gibson’s commentary on the case provides useful information on the subsequent lives of the leading figures in this unfortunate litigation.
Another case in the sexual scandal category and the one that takes up more pages than any other in the court records (pp. 365–416) is the 1863 criminal case against G. O. Corbett, an Anglican priest, indicted for attempting to procure an abortion on his very young servant girl, Maria Thomas, with whom he allegedly had numerous sexual encounters, the first of which, if the evidence was true, was a rape in today’s terms. This sensational case, including strong lay advocates on each side (most notably, Thomas Bunn for the prosecution and James Ross for the defendant), proceeded over nine days of court sittings in which the reputation of Maria Thomas and her family was on trial as much as was the behaviour of Corbett. The jury convicted Corbett, but with a recommendation of mercy. He was then sentenced to a six six-month incarceration and Gibson goes on to recount how a mob of Corbett supporters in effect nullified the sentence by breaking Corbett out of jail. The evidence that Corbett had sex with his servant girl seems overwhelming, although it must be remembered that he was on trial on the charge of attempting to procure an abortion. Gibson’s footnotes and commentary again provide a great deal of information that a bare reading of the court record lacks.
The surviving court records span a period of almost three decades, and not surprisingly, there are some cases involving serious crimes such as murder, manslaughter, infanticide, rape and aggravated assault. Given that the death penalty was considered to be mandatory for most of these crimes, there is a clear pattern in the court records of finding guilt on lesser charges or even acquittals that might have resulted not from doubt as to the evidence but from disagreement with the severity of the penalty. For example, instead of being found guilty of murdering a newborn infant, the accused was usually convicted of concealing a birth. The infanticide cases perhaps deserve a cumulative study from a feminist perspective. (See cases at pages 191–2, 194–7, 226–30, 488–90, and 572–3.)
In addition to the infanticide cases, there are a number of serious criminal cases that the reader should pay attention to, aside from other assault cases and theft cases that are too numerous to mention. The 1845 murder cases of Keetchipiwaipasse (convicted of a lesser offence) (pp. 9–14), and Capenessewet (convicted and hanged) (pp. 17–27), and Newkesequeskik (convicted of manslaughter) (pp. 31–4) are obviously important in terms of the court’s jurisdiction over Native accused and Native victim crimes. The remarkable 1846 case of Peter Hayden (pp. 37–40) where the jury imposed a 1 one-shilling fine for culpable homicide is certainly worth a read, as is the 1847 case of John Hogan(pp. 59–65) convicted of assault instead of rape, given that the death penalty applied to rape. The 1848 murder proceedings against James Calder (pp. 77–88) contains important commentary by Gibson as to the jurisdiction of the court beyond the territory of the Red River community. The 1860 case of Mary Park (pp. 306–8) resulted in a jury acquittal of a young woman on a manslaughter charge (the victim was an intoxicated Native). Recorder Dr. Bunn, reflecting the religious age of the time, sternly admonished the accused, “You have escaped the consequences so far as man is concerned; but recollect that the all-seeing eye of God is upon you, and if you had any share in the death of the Deceased you will be punished. It may not be here—it may be hereafter. Go! Never appear here again” (Gibson’s commentary at p. 308).
The 1861 manslaughter case of Paulette Chartrain (pp. 331-8) involves an extensive trial record and commentary by Gibson. The 1863 case of Jacob Bunn (pp. 421–3), convicted of attempted rape of a young child, resulted in a particularly light sentence for an already reduced charge. Even when the jury convicted and the death sentence was pronounced as in the 1866 case of John Demarrais (pp. 491–6) convicted of murdering a Native, the Hudson’s Bay Governor commuted the sentence to banishment, largely due to the intoxicated state of Demarrais during the time of the offence. While the court record in the 1868 manslaughter case of Alexander McLean (pp. 537–45) is cursory at best, Gibson provides a lengthy, and very interesting, commentary focusing on the involvement of Enos Stutsman, an American lawyer, as defense defence counsel. [1] Finally of note are the so so-called 1871 “Fenian Raid” cases (pp. 599–605) in which various individuals were on trial for “unlawfully waging war against Her Majesty.”
Briefly highlighting some of the cases, as I have done, will hopefully illustrate the value of Gibson’s work, particularly in the field of Manitoba legal history. Producing these two volumes undoubtedly required extraordinary amounts of scholarly work over a long period, and the final product deserves high praise.
1. Stutsman also subsequently played a key role in the so-called Riel Rebellion. Gibson was the primary author of an earlier study of Stutsman. See, Dale Gibson with Lee Gibson and Cameron Harvey, Attorney for the Frontier: Enos Stutsman, Winnipeg: University of Manitoba Press, 1983.
We thank Clara Bachmann for assistance in preparing the online version of this article.
We thank S. Goldsborough for assistance in preparing the online version of this article.
Page revised: 5 February 2022
