Until 1835 there was no real system of courts in the North-West. The Hudson’s Bay Company charter of 1670 had enabled a court of the governor and council, but it rarely sat. In 1835 the Council of Assiniboia, headed by Governor Simpson, passed a resolution creating a new General Quarterly Court of Assiniboia. The new court was to sit regularly. It was the first attempt to establish a Western-style justice system in the North-West. Unfortunately, the Court of Assiniboia was not independent of the Company. It was established by the Company and staffed by Company appointees and employees. Thus, anyone who wished to bring a suit against the Company immediately placed the court in a conflict of interest. This happened in 1845 when James Sinclair sued the Company, claiming that it had underpaid him for freighting services. The court had a simple answer to the conflict: it would not hear a case against itself.
The Company’s conflict of interest arose again a year later when a trader named Peter Hayden was charged with manslaughter for the accidental shooting of a boy who was in his charge.1 Hayden was one of the free traders the Company had been trying to shut down. He had heard that Cuthbert Grant was coming to confiscate his furs, and as he was getting his gun out in preparation to defend himself, it accidently discharged and killed the boy. Hayden was “crazy” with guilt and “attempted to lay violent hands on himself.”2 He was taken into custody and confined in the new jail the Company had built next to Fort Garry.
The Métis and all the independent traders were furious about what they considered to be a gross injustice. They held a large protest meeting and many wanted to free Hayden. Father Belcourt persuaded them to petition the British authorities, but the general feeling in the settlement was that the Company was directly responsible for the death of the boy, which had occurred as a result of the Company’s efforts to impose its monopoly. As far as the Métis were concerned, the Company, not Hayden, should be charged with manslaughter, and the Company’s court had no right to sit in judgment of Hayden.
At Hayden’s trial Cuthbert Grant was absent—perhaps for the best. The court’s sentence handed to Hayden was lenient. He paid a fine of one shilling and gave security for his good behaviour for two years. The court’s lenient sentence simply damped down a predictable eruption. It didn’t put out the fire. The Métis remained angry.
THE FIRST MÉTIS LAND TITLE CASE
In 1847 the Métis defended their rights in what could be considered the first Métis land title case.3 The Company had granted title to land to Andrew McDermot. The Métis defendants were charged with cutting timber on that land. The Métis admitted cutting the timber but claimed they had a right, as Métis, to do so. In argument before the court, they said they did not recognize the Company’s right to grant title or that the Company had lawfully purchased the native right to the timber.
In effect, the Métis were arguing that their native title had not been extinguished and they were thus able to enjoy the resources—the timber—on their title lands. In the Court of Assiniboia, this kind of argument was a non-starter. The court was presented with the title deed and the 1817 Selkirk Treaty, in which two-mile tracts of land on both sides of the rivers were granted to Lord Selkirk in exchange for an annual payment to the “chiefs and warriors of the Chippeway or Sautaux Nation, and the Killistine or Cree Nation.” Neither document was an agreement to purchase Métis rights. But in the Court of Assiniboia, these documents were considered proof of the Company’s right to grant title and its purchase of all native timber rights, First Nation and Métis. The court found the Métis defendants liable for five shillings in damages plus costs.
During the trial, Pascal Breland testified that the Métis had allowed the case to come before the court. The statement suggests that the Métis controlled matters that went to court. Judge Thom made no attempt to correct this bold statement, perhaps because it was a fair assessment of the Métis power at the time. The court’s decision, and documents issued by the Company, had no effect on the firm belief of the Métis Nation that it had native title to the land and resource access rights.
THE SAYER TRIAL
We now approach the final act in the Métis Nation’s second resistance. The first resistance was against the Selkirk Settlers and their attempt to monopolize the land and resources in a manner that the Brûlés thought jeopardized their existence. This new resistance was not aimed at the settlers. It was focused on the Hudson’s Bay Company and specifically resisted the Company’s monopoly. This time the resistance was not carried out with the use of force. Instead the Métis Nation used the Company’s court.
In 1849 Guillaume Sayer and three other traders, McGillis, Laronde and Goulet, were charged with illicitly trafficking in furs. The Company had charged others since passing its law in 1845, but this was the first case that actually went to trial. Governor William Caldwell and Judge Thom had made the decision to lay the charges, and from the beginning the case was a mess of conflicts.
Sayer and the other three Métis traders were sued by the Company, so the case was titled Hudson’s Bay Company vs. Sayer et al., not The Public Interest vs. Sayer et al.4 In other words, the Company brought a private civil suit in its own court but treated it as a criminal prosecution, charging the three defendants with violating Company trading laws.
According to the Company’s charter, a governor had to sit as a judge in any lawsuit that involved the Company. With no disinterested judge, the Company was vulnerable to charges that its courts were inherently biased and in a conflict of interest. In the Sayer trial, the Company instigated the charges, its governor and paid employee, Adam Thom, sat as judges, and the Company’s chief factor, John Ballenden, was the prosecutor and gave evidence. Since the case involved the Company’s monopoly, it was the quintessential definition of bias and conflict of interest. Apparently in 1849 the inherent conflicts of interest were of concern only to the Métis and the other traders. The Métis were so incensed at the injustice that they rallied to the cause.
May 17, 1849, was the date set for the trial. It was Ascension Day, which was a Catholic holiday. In setting the trial date, Thom would have known that the Métis, largely Catholic, would be at church. It was one of the Company’s tactics. They were in the habit of holding court when the Métis were out on the hunt, seeing an opportunity to avoid Métis protests. After Mass on the Sunday before the trial, Jean-Louis Riel read a letter from Father Belcourt urging the Métis to challenge the Company’s monopoly. The Métis had every intention of doing just that and likely needed little urging. On the day of the trial, they persuaded the priest to hold an early Mass, and afterwards Riel again read Father Belcourt’s letter and made a rousing speech in which he inspired the Métis to go to the court to assert their rights.
Jean-Louis Riel (Glenbow Archives, NA-47-28)
Dozens of small craft carried hundreds of men over to the other side of the river (the church was in St. Boniface), toward the courthouse in Fort Garry. Governor Caldwell, well aware of the Métis anger over the charges and of past instances when they displayed their anger at the Company’s injustices, threatened to call in reinforcements. Unfortunately for Caldwell, his reinforcements were a drunken lot of pensioners who boasted about their determination to put the Métis in their place—all hot air as it turned out. The pensioners never appeared, which was just as well, for they were no match for the angry crowd of Métis.
About four hundred armed Métis surrounded the courthouse, and at eleven o’clock the authorities had to push their way through the hostile crowd to get inside. Sayer was outside with his fellow Métis and didn’t go in when his case was called. Judge Thom and the other members of the court delayed until 1:00, at which time they sent a message saying Sayer might have a deputation to speak for him in his defence. James Sinclair, Peter Garrioch and Jean-Louis Riel entered the courthouse with Sayer while twenty other Métis took up a station at the courthouse door. At the outer gate of the courtyard, another fifty stood guard.
Sinclair and Garrioch addressed the court as the delegates of the people and tried to set out a wide range of grievances. They began by presenting a petition challenging the legality of the Company’s trade monopoly. The petition demanded the immediate removal of Recorder Thom, equal use of French and English in the courts, rescission of the law restricting imports from the United States and the appointment of Métis to the Council of Assiniboia. The final demand was for free trade in furs.
Judge Thom launched into an hour-long “bombastic sort of an address,” the climax of which had him in tears—though these were perhaps crocodile tears.5 He gave a fierce refusal of the deputation. Thom informed Sinclair and Garrioch that the court would not receive them as “delegates of the people,” and that if they wished to present their petition and make submissions about grievances other than the matter before the court, they could do so at the next meeting of the Council of Assiniboia.
With the assurance that there would soon be a chance to put their grievances before the council, the Métis agreed to restrict their submissions to the issues concerning the charges faced by Sayer and the other accused. Sinclair played the lawyer rather well. He succeeded in having several of the jury members replaced with men acceptable to him.6 On taking the stand, Sayer admitted he had traded furs but offered two lawful excuses. First, he had traded with other Métis, not with Indians, and the law did not restrict trading with Métis. Second, he had been told by John Harriott, a Company official, that he was only restricted from trading with Indians. In effect Sayer testified that he had Company permission.
The jury found Sayer guilty but, taking note of the officially induced error, recommended mercy. With hundreds of armed and angry Métis outside the court building, Prosecutor Ballenden seized upon the mercy recommendation and claimed that he would seek no punishment. He merely wanted the court to confirm the legality of the Company’s monopoly. Ballenden also offered to drop the charges against Goulet, McGillis and Laronde. The icing on the cake was that he even offered to give back the furs Sayer had just been found guilty of trading illegally. The Company’s monopoly remained intact legally, if it had ever been lawful to begin with. Practically speaking, however, the monopoly was forever broken.
The consequences of the Sayer trial were immediate. The petition the court declined to hear was subsequently presented to the Council of Assiniboia. This time it was seriously considered and met with partial success. Thom stayed on the court but began to speak in both languages when French interests were at issue, and the council promised to continue this procedure in future. The council reduced the tariffs on American goods to the same rate as for English goods, and it agreed to recommend to the Company more appointments of Canadians and Métis to the council. Free trade in furs was declared beyond the council’s competence, but that no longer mattered. The Sayer trial had already broken the Company’s monopoly.
When Ballenden conceded he would seek no punishment, the shout went out: Le commerce est libre! Vive la liberté! Paashkiiyaakanaan (we won)! Jean-Louis Riel emerged from the courthouse with Sayer on his shoulders. The scene outside the courthouse was wild. The crowd whooped and yelled and fired off a feu de joie (celebratory shots). The Métis surged to the banks of the river and boated across to the other side, where they continued their raucous celebration of la liberté. Men, women and children cheered, sang and danced in celebration of their victory.
Jean-Louis Riel’s speech after Mass had inspired the crowd and made an impression on all the Métis. In the gathering that day, a small five-year-old boy had listened to his father speak passionately on behalf of the Métis. For the rest of his life, Louis Riel would recall that day. It was among his earliest memories, and his father’s passionate speech and actions in defence of the Métis Nation left an indelible mark on the young Louis.