Council of Assiniboia

The Council of Assiniboia (French: Conseil d'Assiniboine) was, from 1821 until 1870, the first appointed administrative body of the District of Assiniboia.[1] It was this council who is credited for the arrival of a functioning legal system, a local police force, and a militia to the vast wilderness that was the fur-trading territory of Rupert's Land. Over its existence, the Council of Assiniboia transformed numerous times in an effort to bring law and order to a young colonial settlement that was rife with tension and hardship.[2]

History

The District of Assiniboia consisted of land that was in a 50 mile radius around Upper Fort Garry,[3] including the Red River Colony - which until his death in 1820, was owned by Lord Selkirk.[4] This Council was created by the Hudson's Bay Company to govern the territory following its merger with the North West Company in 1821.[5] The same year, the Canadian government also passed the Second Canada Jurisdiction Act of 1821, which allowed the Governor of Lower Canada and the Crown to appoint Justices of the Peace in Rupert's Land in order to enact courts of record for the first time.[6] As diverse as the Red River Colony was, so was its governing council. Both the Protestant and Roman Catholic clergy were represented on the council, and members had diverse ancestry including Scottish, Irish, Francophone, Métis, and Anglophone.[5] However, the one commonality between all of the council members was their involvement with the Hudson's Bay Company; they either had been, or were still in service of the Company.[6] Being such an early stage of authority, it was not a form of responsible government; there were no elections, and all council members were appointed.[6]

1835

Before 1835, the Council of Assiniboia consisted of "a few councillors, to assist the Governor, [as well as] some few constables too, [that] had been nominally appointed; and [so] this little machinery of government had dragged along under what has been very properly called the smoothing system, or rather no system at all."[6] The definition of a smoothing system is a system that is built upon mediation outside of court, equitable settlements, and cooperation among those involved.[6] This was a very flexible system, which was required during the early years of colonizing the west, as many of the colonizers had their own definitions of law that they brought with them, based on their own reason and equity. There was also no existence of any formal courts of law in the Red River Colony, as with the smoothing system in place, solutions outside of court were found.[6]

The Council of Assiniboia's first evolution happened in 1835, a year after the Hudson's Bay Company was officially granted ownership of the District of Assiniboia from the Selkirk estate.[5] The Red River Settlement was divided into four separate districts, with a respective magistrate being delegated to each sector, as per Assiniboia's first judicature.[6] It was created in likeness of Canada's Charter, giving the Governor and the council the ability to judge cases through a court of law.[6] Quarterly petty courts began to be held, where each magistrate - with the presence of two constables - could judge petty offence cases including those about debts of less than 40 shillings. Another set of quarterly courts were held in the Governor's residence for more severe cases, including debts over 40 shillings, as well as all cases of appeal.[6] The same year, the council also instituted a 7.5% tariff on both the settlement's imports and exports. This went to compensate the costs of the court for implementing rules, regulations, and laws in order to keep tranquility among the colony.

Prior to 1835, the constabulary in the Red River Settlement was appointed by Assiniboia's councillors, and they were tasked with routine duties. However, in 1835, the way the constabulary was organized shifted tremendously, as they were all dismissed and completely replaced with a group of 60 men who had all enlisted in the new Volunteer Corps style of authority. This change made the police force both more efficient as well as more disposable to the Company. Every constable was required to take an oath that stated their dual positions as both part of the police force of the colony, as well as privates in a military corps. As stated by the Council of Assiniboia, the goal was "every thing connected with the good order or discipline of the Corps be as much as possible in union with and conformable to the practice and usages connected with such service in the British Army."[6] To further empower this new authority, it was requested by the Governor and the council that Assiniboia's military/police force be equipped with the guns and ammunition that was necessary to enforce both tranquility and respect. The officers in London were quick to approve the request, even though Alexander Ross - a council member as well as the settlement's first historian - disagreed with the need for armed military-styled police. As a British-colonized territory, he argued that it would conflict with Britain's 1761 "Militia Act", which restricted any form of peace officer from also serving in the country's militia. In order to prevent the Volunteer Corps from holding too much power, the Council of Assiniboia enacted certain limitations for the force in order to publicly supervise them, such as the need for annual approval of their funding by the council.[6]

1836-1844

In 1836, two changes occurred: first, the Council of Assiniboia was made more representative, as the number of council members grew from 5 to 15;[7] and secondly, the tariff was lowered to 5%, and then 4% the consecutive year as decided by officers in London. The rate was never again changed until 1870, when Canada legally acquired the territory.[5] Then in 1837, the council altered the resolution that created four districts, and instead divided the Red River Colony into three districts, with each having two magistrates assigned. With this alteration also came adjustments to the classification between petty and serious crimes: petty cases were now defined by debts under £5, and serious cases were over that amount.[6] Another major reformation happened in 1839, when the Hudson's Bay Company introduced a new judicature to the District of Assiniboia. With this came the creation of a governor-in-chief of Rupert's Land - George Simpson - who overruled Assiniboia's Governor, and a newly appointed President of the Council of Assiniboia. Councils for both Assiniboia and Rupert's Land were transformed in the new administration, as new members of council, such as governors, magistrates, councillors, and sheriffs arrived from London.[6]

Two years following, in 1841, Red River Colony's judicature was altered so that the petty court cases were defined as those with fines of less than 20 shillings. The council also continued to restructure the police force as - in 1843 - they put an end to the role of sergeant-major in an effort to keep the Volunteer Corps both accountable and responsible. They also instituted constraints in order to prevent the existence of career soldiers by requiring half of the privates to be replaced every other year.[6] That wasn't the end of the changes to the force though as, in 1844, the number of recruitments was lowered to 50, and examinations into the constables' characters by the magistrates were routinely done. The officers also wouldn't be paid unless they received a certificate of good conduct by their commanding officer.[6]

1845-1870

It was 1845 when the Council of Assiniboia completely disbanded the Volunteer Corps, and replaced it with 15 constables that had been appointed by the council. This new constabulary was tasked with executing writs and assisting their local magistrates – to whom from then on received the power to appoint, review, and dismiss constables. It was through these changes that the council adopted the English common law framework in their courts, and completely abandoned the military-styled organization that the Company was trying to create. The council also instituted a more efficient, two-tiered court system that involved a minimal payment to start a case.[6] During this time, Adam Thom, the council's recorder, also amended the current local laws and officially turned them into a legal code. A law amendment committee was also introduced by the council in 1851, consisting of Adam Thom, Louis LaFleche, and Dr. John Bunn.[6] During 1869-1870, when Rupert's Land joined the newly confederated dominion of Canada, the Council of Assiniboia was disbanded.[8] When Louis Riel sought counsel with the Council of Assiniboia insisting that negotiations needed to be made with Canada, on behalf of the local Métis, his demands were rejected. In response Riel created the council's successor, the short-lived Legislative Assembly of Assiniboia, soon followed by the Red River Rebellion. This was the early development of the judiciary in Manitoba, but even broader, "Assiniboia's legal history is central to the legal history of the Canadian frontier."[1]

Members
Position Member Period Citation
Councillor DAVID THOMAS JONES 1835-1838 [9]
Councillor JOHN BUNN 1835-1861? [10]
Councillor JOHN MACALLUM 1836-1849? [11]
Councillor ALEXANDER ROSS 1836-1850 [12]
Councillor GEORGE MARCUS CARY 1837-1847 [13]
Councillor WILLIAM HEMMINGS COOK 1839-? [14]
Councillor CUTHBERT GRANT 1839-? [15]
Councillor ANDREW McDERMOT 1839-1846

1847-1851

 [16]
Councillor RODERICK McKENZIE 1839-1852 [17]
Councillor JOHN PETER PRUDEN 1839-? [18]
Recorder ADAM THOM 1839-1851 [19]
Councillor FRANÇOIS-JACQUES BRUNEAU 1853-? [20]
Councillor WILLIAM COWAN 1853-? [21]
Councillor ROBERT McBEATH (McBeth) 1853-1870 [22]
Councillor PASCAL BRELAND (Berland) 1857-1868 [23]
Councillor JOHN INKSTER 1857-1868 [24]
President WILLIAM MACTAVISH 1858-1870 [25]
Councillor JOHN BLACK 1862-1870 [26]
Councillor ANDREW GRAHAM BALLENDEN BANNATYNE 1868-1870 [27]
Councillor CURTIS JAMES BIRD 1868-1870 [28]
Clerk THOMAS BUNN 1868-1870 [29]
Councillor JAMES McKAY 1868-1870 [30]

References
  1. Baker, H. Robert (1999). "Creating Order in the Wilderness: Transplanting the English Law to Rupert's Land, 1835–51". Law and History Review. 17 (2): 209–246. doi:10.2307/744011. ISSN 0738-2480. JSTOR 744011.
  2. Gluek, Alvin C. (1955). "The Sioux Uprising: A Problem in International Relations". Minnesota History. 34 (8): 317–324. ISSN 0026-5497. JSTOR 20175958.
  3. "Assiniboia | The Canadian Encyclopedia". thecanadianencyclopedia.ca. Retrieved 2019-12-10.
  4. Carter, George E. (1968). "Lord Selkirk and the Red River Colony". Montana: The Magazine of Western History. 18 (1): 60–69. ISSN 0026-9891. JSTOR 4517222.
  5. Pritchett, John Perry (1924). "Some Red River Fur-Trade Activities". Minnesota History Bulletin. 5 (6): 401–423. ISSN 0190-6348. JSTOR 20160483.
  6. Baker, H. Robert (1999). "Creating Order in the Wilderness: Transplanting the English Law to Rupert's Land, 1835–51". Law and History Review. 17 (2): 209–246. doi:10.2307/744011. ISSN 0738-2480. JSTOR 744011.
  7. "Biography – McDERMOT, ANDREW – Volume XI (1881-1890) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  8. Foster, Hamar (January 1990). "Long-Distance Justice: The Criminal Jurisdiction of Canadian Courts West of the Canadas, 1763-1859". The American Journal of Legal History. 34 (1): 1–48. doi:10.2307/845344. JSTOR 845344.
  9. "Biography – JONES, DAVID THOMAS – Volume VII (1836-1850) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  10. "Biography – BUNN, JOHN – Volume IX (1861-1870) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  11. "Biography – MACALLUM, JOHN – Volume VII (1836-1850) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  12. "Biography – ROSS, ALEXANDER – Volume VIII (1851-1860) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-12.
  13. "Biography – CARY, GEORGE MARCUS – Volume VIII (1851-1860) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  14. "Biography – COOK, WILLIAM HEMMINGS – Volume VII (1836-1850) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  15. "Biography – GRANT, CUTHBERT (d. 1854) – Volume VIII (1851-1860) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  16. "Biography – McDERMOT, ANDREW – Volume XI (1881-1890) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  17. "Biography – McKENZIE, RODERICK – Volume VIII (1851-1860) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  18. "Biography – PRUDEN, JOHN PETER – Volume IX (1861-1870) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  19. "Biography – THOM, ADAM – Volume XI (1881-1890) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-12.
  20. "Biography – BRUNEAU, FRANÇOIS-JACQUES – Volume IX (1861-1870) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  21. "Biography – COWAN, WILLIAM – Volume XIII (1901-1910) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  22. "Biography – McBEATH, ROBERT – Volume XI (1881-1890) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  23. "Biography – BRELAND, PASCAL – Volume XII (1891-1900) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  24. "Biography – INKSTER, JOHN – Volume X (1871-1880) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  25. "Biography – MACTAVISH, WILLIAM – Volume IX (1861-1870) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  26. "Biography – BLACK, JOHN (1817-79) – Volume X (1871-1880) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  27. "Biography – BANNATYNE, ANDREW GRAHAM BALLENDEN – Volume XI (1881-1890) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  28. "Biography – BIRD, CURTIS JAMES – Volume X (1871-1880) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  29. "Biography – BUNN, THOMAS – Volume X (1871-1880) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
  30. "Biography – McKAY, JAMES – Volume X (1871-1880) – Dictionary of Canadian Biography". www.biographi.ca. Retrieved 2019-12-11.
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