o^, %^^T.% IMAGE EVALUATION TEST TARGET (MT-3) // 4'j •s? €P. 1.0 I.I 1.25 IIIM IIIII25 i^ IIIM u ■2.2 2,0 U 111.6 V] *¥^ %/ •c^ >r^. # 'V %^ 0^1 ///, Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. )4S80 (716) 872-4503 "K iV ^V ^ .A ^ A \ "% O^ V <^- CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut canadien de microreproductions historiques k ^ ( meaning "CON- TINUED"), or the iiymbol V (meaning "END"), whichever appiiaa. Un drs symboiea suivants apparaitra sur la damiAre image de cheque microfiche, seion le caa: la symboia — »> signifia "A SUIVRE", le symboie V signifie "FIN". Mapa, plataa. charts, etc.. may be filmed at different reduction ratioa. Thoae too large to be entirely included in rtne exposure are filmed beginning in the upper left hand comer, left to right and top to bonom, aa ma?iy framea aa required. The following diagrama iiiuatrata the method: Lea cartea, planches, tableaux, etc., peuvent utre filmia i dee taux de rMuction diffirants. Lorsque le document est trop grand pour dtra reproduit an un seul cliche, ii est film* i partir de i'angie supArieur gauche, de gauche k droita, at de haut an baa, an prenant le nombre d'Images nicessaira. Lea diagrammas suivants illustrent la m^thoda. 1 2 3 1 2 3 4 5 6 TRIALS ^^^"^ OF GEORGE FREDERICK BOUTELIER AND JOHN BOUTELIER, FOR THE MURDER OF FREDERICK EMINAtJD, 9^T01t.t A fp«cial Court of Oyer and Terminer and general Gdal Dfelivery, HEtD AT LUNENBURG, lit AND FOR TH*. COUNTY OF LUNENBtfRG, PROVINCEoF NOVA- SCOTIA, AT THE ' COURT - HOUSE in the TOWN of LUNENBURG^ ON WtJnefday the 4th of May, 1791 By JAMES STEWART, Esquire, er COUNCIL for the prosecution. HALIFAX: PRINTED BY JOHN HOWE, IN BARRINCTON-STREET. M.DCC.XCr. i •' • . ' * T ever in la fello _r L^-3 5?/ N» INTRODUCTION. THE following Trial has for its objeft the difcovery of a crime the rnoft atrocious, of the kind, that ever the depravity of human nature could juftify one man in laying to the charge of another. The killing of a fellow-creature, though unaccompanied by circumftances of malice or cruelty, always fhocks the mind, even upon recital, and, when accompanied with fore-thought and barbarity, and charafterized by the name of Murder, never fails to raife in us the feelings of indignation and abhorrence. — But in the prefent inftance our emotions are carried ftill farther i-«-we are not only ftruck with the enormity of the crime itfclf, but view it attended by fo black a train of concurrent aggravating guilt, that afto- nilhment and terror are fuperadded to indignation and abh.prrence. When we reflcf^ upon the deliberate malice with which the d'Ccd has been meditatedj planned and perpetrated ; when we confider that it had been the determination of fome months ftanding, and that a week's journey, at an inclement feafon of the year, through the moft defert parts of the country, had been undertaken for the ex- prcfs purppfe of executing the abominable fcheme, and when we view the obftinate malignity of the perpetrators, whofe flinty hea,rts neither the kind reception nor cordial friendfhip of the deceafed and his family could foften or fhake from their diabolical parpofe, with all tlie concomi- tant circumftances of their guilt, we paufe with amaze- ment ac the ad ! To offer any further comment upon the atrocioufne's of the crime is unneceflTary. The unhappy objedts of this Trial have fuffered the laft punifhmeiit of the law, and by a voluntary confelTion of their guilt and by every proof ^1 [ " ] proof of contrition have afforded all the fatisfaftion in their power to the juftice of their country. For this fatis- faction >*'C are indebted not more to the perfeverance and ability of the reverend Gentleman who fo humanely and aflfiduoufly attended the wretched fuffcrers fubfequent to their fcntence, than to the pious and judicious exertions of our worthy Chief Magiftrate, whofe condufb, on this occafion, prepared the way for the facred minil^ration, and fully manifeHed, what it has fpoken on all others, a dete-rmincd adhcrenceto juftice, conjoined with fentiment« of the tendereft regard to the rights, liberties and hap«» -pir.ijis of his fcllow-fubjeds. THE WHOLE PROCEEDINGS On the/pecial CommijUion of Oyer and Terminer and Goal Delivery, held at Lunenburg, in the County of Lunen- burg, in the Province of Nova-Scotia, on Tu<:Jday% Wed* nejday, and Thurfday, the ^d, /^th, and ^tb Days of May ^ 1791, before the Honorable Thomas Andrew Strange, Chief 'Jujlice, and Mr. Juflice Brenton, with Johm Creighton and Christopher Detlif Jessen, Efq*rs, both Jujltces of the Peace, and Judges of the Inferior Court for the faid County, and Gentlemen named in the fpecial Commiffton j containing the Trials of George Frederick Bouteltsr and John Boutelier, /cr /^

he had no doubt, would draw^ i'jch conclufions as, under oath, the fa£ls would warrant* thenrj in drawing. — That it was their peculiar province and duty to decide upon the evidence before them, let it be ever fo light, aid if from any inference to be drawn from the teftimony they were convinced in their minds of the guilt of the prifoners, they were bound in confcicnca to convid them. — That the burden of prefumption lay heavy upon the prifoners ; that the circumftances of proof, (landing unconne6ted with each other, were to ba fure flight, but when taken together and united, fell upon the mind with all the force o^ Jlrong probable evidence. That from the firft to the laft of their condu6l there ap- peared fomething to be accounted for, fomething incon- fiftent with the plain ^jath of truth and innocence. Their remaining at their niother's three days, by their own con- fefllon, without quitting the houfe, carries with it a dark fufpicious fecrecy, from which the jury could infer no- thing favourable to the prifoners : Their having been at the houfe of the deceafed on the Tuefday evening, when contrafled with their pofitive contradiftion of that fa<5t, was unfurmouncably fufpicious : Their arrival on board their brother's fchooner at Indian-Point at fo late and fi- lent an hour of the morning, after having been upwards of twelve* hours in performing a journey which might have been completed in two or three, left an awful fpace of time to be accounted for, and gave vaft room for drawing a difmal inference : That the (raS^is were cfthem- Jelvcs no great weight in the fcale n^ evidence, but when viewed as component links of the f/^me chain of proof, they appeared pvovidential and ftr iking : And that when to thcfe circumftances were added, the clear evafions fo diftiaguilhable in the examinations, with rcfpcft to the moft material fa-fts, the jury could not but receive an im* prelTion truly dangerous to the prifoners, unlefs it could be effaced by teilimony in fupport of their defence. Mr. Stewart concluded by obferving to tiie jury, that the crime under their confideration had met with aftomfh^ ing diligence in the fearch of its perpetrators, and, to the credit ^ I [ i6 ] CFcdit of the magiftrates of the town of Lunenburg and every inhabitant within it, he could'fafely pronounce, that no Clime of the like fecret enormity was ever brought by pwbHcinvcftigation fonear the bound of detcftion :— That the evidence vas important and numerous, and from the nat'ure of it would require rtrift attention and thorough deliberation -.—That he was confcious the jury would view it in that light, and, upon whatever conclufions they might found their verdift, that it would be the refult of a ftrong confcientiou- convidion, confiflent with the oath they had t^cn. If fuch were the imprefTion of the evidence upon their minds that they doubted not the guilt of the prifon- crs, he cxpeded of courfe a verdiA for the crown ; .hey were bound to give it. But, Ihould the amount of the proof produced not lead them to that conclufion, they were equally bound to acquit ; for, though counfcl for the prolecution, he would be happy to remind them of an ancient maxim, well known to the humanity of the Eng- li(h law, that ♦* it is better that ninety-nine^ guilty men Ihould efcapc than one innocent man fuffer." Mr. Stewart then proceeded to call his witncffes, v/ho beine: fworn and examined, Jojeph Contoy depofed, Thar he knew the late Frede- rick Eminand, whofe houfe flood on the eaji fide of the firft peninfula, near Lunenburg ; and that he (the wiinefs) lived oppofite to him, upon the weji fide of the fecond peninfula. Upon Saturday, the 19th March laft, about four in the morning, he received an alarm from his neigh- bour's fon, of Eminaud's houfe being on fire. He im- mediately fent to his neighbour, and they croflfed toge- ther over the ice, and found almoft the whole of the houie burnt down to the ground, little remaining beiide ti;e chimney. They immediately fent for Frederick, the fon of old Frederick, who lived at no great diftance from him. it was not yet day, but by the light of the fire, looking at a beam that remained acrofs, the floor being burnt, or funk away, they perceived fomething like the remains of a dead body. Upon the beam giving way, they went up to it, and it appeared to be the remains of old Eminaud. The limbs were all burnt off, and the in- fide burnt out. The remaining trunk lay with its back to the beam, part of the (kin remaining, burnt and (hn- velled [ >7 ] vdled up, like parchment ; where the back touched, the cloaths remained nnconfiimed ; and he appeared to havti had on his jacket, a woollen garment below, that he wore for the rhcumatifm, and below that his fhirr, with a hand- kerchief round his neck. Upon examining, they found blood upon his cloaths, between the fhouldtrs, dried, and, as it were, burnt by the fire. This was about the middle of the room, within what had been the houfe. As to his wife and grand-daughter, who lived with him, there were no remains of them to be found, but here and there a bone j being entirely confumed. As day broke, at the diftance of about eleven feet from the door of the houfe, they found his hat lying, with the marks of one or two fparks of fire on it J and about four or five feet from the har, was a quantity of blood, in a thick mafs, mixed with the fnow, apparently about three quarts. The deceafed ufcd to go to bed about nine. He never knew him to fleep in his cloaths. He had known him as well as his own fon. Being crofs-examined on the part of the prifoners by Mr. Lombard, who had been admitted Counfel for them, he faid. That the diftance of the deceafcd's body was a- bout one foot from where his bed had ftood ; that he had not heard him cry out ; but that in truth the night had been thick, and the fea had rolled a good deal ; and tliat he could at no time have heard him, even in the day, at his houfe. That he did not make any obfervation as to any mark of violence on the body; that the blood was between the (hirt and the woollen, and that remarking that, he had been fatisfted murder had been committed, and looked no further ; that there was no mark of blood upon the hat, nnr any fprinkled about at the outfide of the lioufe, befide the mafs he had fpoken of. Nicholas Eijenhaur was then fworn, who faid, he was neighbour to Contoy, the lad witncfs. He too lived oppofire Eminaud's, near Conioy. About four in the morning of the 19th of March, heobferved from his win- dow Er^Vmaud's houfe on fire. He ran our, frightened as he was, without his cloaths. Having returned in again, while he drefied himfelf, he fent his fon to alarm Contoy ; as foon as he was dreflfed, theycrofled over together upon the ice to the houfe, which was friil burning, and fen t for youne Eminaud. In the mean time, he, Contoy, and C iiis (■ [ i3 ] |iii two fons, went together up to the houfe. Upon look- ing, they thought they faw the rcnr>ainj of a body upon a beam that ftill lav a-crofs, but they could not innmedi- ately get at it. But the beam at length giving way down into the cellar, they quenched the fire, and then raked the trunk out with a Claw hoe, and put it upon a piece of board. It had on the remains of a (hirt, a red baize gar- ment, and a linlcy-woolfey waiftcoat, and upon the {hirt was blood, having a baked look. Day breaking between five and fix, they difcovered a quantity of blood at a fmall diftance from the outer door, about eight feet. Upon crofs-examination, he faid, he had not made any remark whether the blood upon thefhirt appeared to have proceeded from any wound or blow. He faw no perfon near the place at the time. J^^"!. m Cheney, faid, he lived with his mother-in-law :"/irs. '^. icr, the mother of the prifoners. On Wed- r .id: y the i6ih of March, they arrived at their mother's, v' ire he then was, coming round the houfe, and (baking hands with him, as they turned the corner, where he was at work. They all went in together, and breakfafted. He (the witne.^) being that day to go to Indian Point, where David Boutelier (brother to the prifoners) was with his (choo,ner, to help him to do fomeching to the fchooner, ■ the prifoner George bid him tell Davie, that he would go with him in his fchooner, to Margaret's-Bay. The wit^ nefs accordingly went that day to Indian Point, where Davie was. He was about two hours going from the mo* ther's, Mrs. Boutelier's, There he remained until the Friday following, when he left rhe fchooner, and returned to Mrs. Boutelier's between five and fix in the evening. Upon reaching home, he found the prifoners gone. It •was by this time dark. He had come the common way, and had not met them. The prifoners upon their arrival, on the Wednefday, had told him they had come from Tatamagouche, and that, at Margaret's-Bay, they had borrowed a flat of one Mr. Minego, to con^e over in. Upon crofs-examination, he faid, the meffage from the prifoners to Davie was, that provided the wind was fair ^ they would ^o with him. Whether it was fair or not, when Davie^went he could not tell. He had underilood from them thcv had come in a fiat, and thinks it likely they ' * [ i9 1 they would rcfirn to where they had left their flat, arid proceed in it to where Davie's fchooner lay, in which cafe they would purfuc a different courfc in getting to itj from that which he had taken to return. When he left Indian Point on Friday evening, it was very foggy. The ice in the Bay was not broke, where he paflcd over, but thinks it might have been below, among the iflands. Sujannah Cheney't wife to the laft: wirncfs, andfifter to the prifoners, depofcd, that fhc lived with her mother. Shfc rcmembc ed the prifonershavingarrived at theirmother's, on the Wcdnefday in the week that the deccafed's houfe was burnt. They faid they had come from Tatama- gouche, by Margaiet's-Bay, where they had borrowed a flat of iVlinego, in which they had come on. She did not underftand where they had laft come from. She under- ftood from them» they had been at Eminaud's, where the^r faid they had had a good fupper, fweet milk, and bread, and a good bed ; but did not remember that they men- tioned when. As Ihe recollected, however, it was upon the Wednefday night at fupper that they mentioned thi?, the converfation being about their journey from Tatama- gouche. They never went out of the houfe, but to the door, the whole time, from their arrival to their depar- ture ; remaining conftantly at home all Wednefday, the whole of Thurfday, and Friday until they fet out upon their return. They once wanted to go and fee their un- cle, but their mother and fhe would not let them, wilhing to have as much of their company as they could, and faying they would fend for their uncle there. They took their departure on Friday, between two and three in the afternoon. They had in their knapfack two ' javes, and fome meat ; they had between them two pair of mauga- fins, and fnow-flioes, with a tomahawk. She heard them fay they would go to Halifax, by Margarec's-Bay, and that they were going to their flat ; but did not recolledl whether they f^id they were going to Davie's fchooner. Upon crofs-examinatiop, fhc remembered them to have faid, that, if it (hould be a fair wind when Davie was go- ing, and that he did not ftop too long, they would go with him j otherwife, they (hould proceed in the flat. John Peter Bouteliert brother to the prifoners, faid he- lived with his mother. He remembered the arrival of G 2 his % his brothers, the piifoners, and their mentioning their ha* ving been at Eininaiui's, and having Tupped there, and got good bread and milk. They never went out all the time they were at their mother's. When they took leave on the Friday, they faid they were going back toTatama- gouche; that they (hould goon board their brother David** fchooner, and, if it was fair, go with him cither to Mar- g;iret*s-Bay, or Halifax. The tomahawk was in the hand of John. They had maugalins, and fnow-fhoes, each a pair, with a pack. They left their mother's about three o'clock. He had been fent out by them, the day before iheir departure for fome rum. Upon crofs- examination, he connected the account he had given, that each had a pair of maugafins, and fnow* Ihoes, and faid that John carrried both pair, flung on the tomahawk. Jojeph Boutslier. He was at his mother's when the prifoners arrived, on the Wcdnefday. They faid they had come from Tatamagouche. Upon their mother's alking them, in his prefence, where they had lodged the night before, their anfwer was, at old Eminaud's. Being crofs-examined, he faid, he was prefent when they came in, and repeated his teftimony in chief as to their having lodged at Eminaud's the Tuefday night. David Bouteliery was at Indian Point with his fchooner the night the decealed's houfe was burnt. The prifoners (his brothers) came to him there about two hours before day upon the morning following, the Saturday, the 20ih of March. Upon their arrivil, being, as they faid, cold, they went to fleep, and, as foon as it was broad day, went off again. He wanted them to ftay, and go v\jih him ; but they faid ihey could not, that they wantfd to gee back to Tatamagouche, before the fnow was off the ground. He did not particularly fee what they had with them, but upon his allying them if they had an axe, to cut down wood for tire, they faid ihey had. Upon crofs-examination, he faid it was within but two hours of day when they came on board, to the beft of his judgment. He had not aHced them where they came from, nor did he recoiled their having told him. They fippt until broad day, having talked together a good while, before they went to flcep. They would have gone with [ 21 ] ^Ith him, if the wind had been fair ; but it was not, and thcv could not wait. The ice in tlie Bay was at this time broken in cakes, floating about. The Friday night had been foggy. W' lien they came on board they faid the rcafon of their being fo late, was, that they had been loft in the fog and ic, of which there was a deal drifting a- bout. That when they thought to have lowed in a clear place, they were obftru(5led by the ice. George Michael Smithy faid, he had been at the deceaf- ed's upon the Vv^ednciday preceding the burning of his houfe : That he, thedeceafed, mentioned the Boutdiers, from Tatamagouche, having been at his houfe the pre- ceding night ; and having -".rrived through the woods ; and that they had (laid with him that night. He faid he was forry he could not afk him to drink, having drank all the rum he had in the houfe with thtfe Bouteliers. He mentioned his being to receive ^.50, upon the following day, the Thurfday. Upon his crofs-examination, he faid the deceafed had not, in talking of them,fpecified Chriftian names, defcri- bing them only as the Bouteliers from Tatamagouche. George Bohner depofed, that, upon Saturday the 19th of March, after the houfe was burnt, having been inform- ed of a track that had been obferved, he went to trace it. Upon going there, he perceived the track of fteps coming right up to the deceafcd's houfe. Upon tracing them back, he traced them to Catliber's, and from thence to the ice, where they were loll, till they crofled the ice, when he took them up again, and traced th.m to the back of Peter Wambole's landj where he met another track re- turning from the houfe ; the formtr being that of pcr- fons going to it. From this he traced a double track of fteps going, and returning, till he came to the next ice, where he loll them again. From this he purfued his courfe round Calbach's mill, co Cafper Young's, without finding any, till he came to the back of Ocker's land, up- on the oppofite fhore, where he fell in with them again upon the beach, and traced them to a place, from whence a f^an had been evidently launched into the bay. The track was of maugafins, two pair, one pair larger than the other,* Both the tracks, going and returning, had been * The two Prlfoaers were of different fiz.-s, one confiderably taller than the other. [ J» ] bffn made with the fime maugafin.% and they had been ffcently made, for the fnow was difTolving at the time. No part of thcfc tracks lay through the common road, but through woods and unfrequented paths. He faid mau- gafins were not in ufe in that part of the county. Upon crofs-'cxamination, he admitted there might be Iwo or three perfons who had them in the county ; that he had fcen people about Chefter with them, who fome- times came that way, by Calbach's mill ; that he had feen his own brother in town that winter with a pair— and that, he had noticed in particular, one Bejancon with mauga- fms at the place of the fire, that very Saturday morning. Cajper Hickman^ an accidental witnefs, who happened to be in court, was fworn to give an account of Befancjon. He fjid he lived in Lunenburg: That Befan^on had flept at his houfe, the night the deceafed's houfe was burnt. That he had come to him feme time after dark ; and had rrmained wuh him, till the news came, the nextdiy, of Eminaud's houfe being burnt. yJndreas Toung, He traced the tracks with George Bohncr, and knew of nobody in the county wearing mau« gafins. Peter Lcngille depofed, that he lived upon the North- weft Range : That upon the evening of the Friday, upon the night of which tiic houfe was burnt, being with one George Titoff at Martin's Brook mill, about 6 o'clock, G. Tiioff remarking two men pafllng by, took notice of them, and afked him who they were. He immediately knew them to be the two Bouteliers from Margaret's Bay, and faid fo. John had two pair of fnow-Ihoes on his right flK)ulder, hung upon a tomahawk. Geor'^e Frederick had a bundle, that looked to * i like a loaf of bread. T hey took the ice juft below ' i" j'S-, and prucoeded ftrait forward, till he Jolt fighr or them. Upon crofs-examination, he faid the road they took upon the ice v^as a common road, that had been u'fed all the winter, to go to Calbach's mill, but that it would lead equally there, or along the fhore. George Titoff confirmed the account given by the laft witnefs. "Vohn Battkmatl. faid he livprl nn tt\p {'t*rnn(\ r^f^n1n(\^^;t^ " ' --— — -- — — - — • I ' — -— J about half a mile from Calbach's mill. Being at home the [ ^3 ] the night the dcceafed's houfe wai burnt, he obfcrved twa men vipon the ice, between his houfe and Rotunbaufen's^ «/n the oppofuc fide the bay, where the dccealed's houfe was, trying the ice with their axe, if it would bear them over, i he ice not being (Irong enough, they went back towards Calbach's mill. This was betwixt fix and fevcn in the evening. One of them was taller than the other. The taller one had the axe, trying the ice.* Being crofs-examined, be faid he did not know th« men at the time. He was in doors, looking through 9 window. John Lay faid, he likewife lived on the fecond penin* fula, near to Bauku^an, the laft witncfs ; and was at homf upon the evening when Eminaud's houfe was burnt. Be- ing at his window, he obferved two men paflling upon the ice, from eaft to weft, towards Calbach's mill. At firft bethought they might be Baukman's two boys: but then rccollefting how bad the ice wa:., he concluded they m\i\ be ftrai gcrs, or they never would think of going upon it in its t*:en ftate. Upon this, he went out to fee who they were. One of them appeared to have a bundle, who, upon feeing him, drew off ftiore. Upon crofs-examination, he faid he did not know whence ihey came, nor where they we.e going. This was the whole of the viva voce evidence. The examinations of the prifoners were then produced, taken at Halifax before John Newton "".nd William Tay- lor, Efquires, Juftices of the Peace, being firft duly proved by Mr, Wood. Firft, the examination of George Frederick Boiitelier fta» ted, " That theExaminant went from Tatamagouche with his brother John Boutelier to Margaret's-Bay, where they arrived on Tuefday the T5th of March, which they crofTed in a flat they borrowed of one John Minego and landet* the next morning at Martin's-Brook about funrife, ani.^ immediately proceeded from thence to their mother's where they llayed that whole day and night, and the whoU of the next day and night, without going out of the houfe, during which time they /aw their uncle who called to fee them — That they left their mother's houfe about Twelve o'clock * This defcription correfpondsd with the prifoner, Jobn, \yho was the taller cf the two, and mentioned by all tne witneffe* to have cauied the tomihawk. [ H ] fc'ciock at noon, and returned to Martin's-Brook, where they found their flat and proceded in it to Indian Point, and there went on board of a fchooner owned by their brother David — That this was about 8 o'clock in the evening — That they remained from that hour until the next morning on board of their brother's fchooner — That they left the fchooner in the flat a little after day-break and proceeded for Margarets's-Bay, and crofTed it about fun-down, leaving their flat with Minego, from whom they borrowed it — That they flept that night at their bro- thcr-in-law John Daufine's, and paffed the whole of the next day and night with their brother John Boutelier at Iviargaret's-Bay — That on Monday they arrived at Hali- fax about 3 o'clock in the afternoon where they remain- ed until Wednefday morning, and then fet out for Tata- magouche— That he knew thedeceafed Frederick Eminaud, and was in his houfe about three years ago — ^^That he was not at Eminaud's houfe while at Lunenburg this laft time, and that he was in no other perfon's houfe except his mother's—That the firft he heard of Eminaud's houfe be- ing burnt was in Halifax. The fdid George Frederick Boutelier, on his further examination, faid, " That his brother and himfclf wore nothing but maugafms on their feet from Tacamagouche to the prefent time." The examination of 7^/^^ Boutelier ({sited, « That the Examinant fet out from Tatamagouche in company with his brother, George Frederick Boutelier, on Monday the 7th of March, and arrived at Margaret's Bay on Sunday the i3tli. On their way from Tatamagouche to Marga- ret's B.^y, the fuft night they Qept in the woods : the fe- cond night they riept\itMr. Mauger's, in Cobiquid : the the third night' they flept at the houfe of Mr. Fletcher's fon-ln-law, on the Shubenacadie river: the fourth night they flept at Mr. Hall's, about eight miles ditUnce from Mr*. Fletcher's : the fifth night they lotlgcd at a houfe on the road from Sackville to Halifax, from which houfe they fet out for Margaret's Bay, and, in their way, Hop- ped at the Dutch Village, and called in at the houfe of one Calbeck, from thence proceeded to Calbeck's fon-in- law's, at whofcihoufe they flept that night : on Sunday tyiorning they proceeded to Margaret's Bay, and arrived V ;■ . > [ 2S ] at the houfeof Mr. John Daufine in the afternoon, wher^ they remained that night. On Monday morning they borrowed a flat from John Minego in order to proceed to Lunenburg, but the wind blowing too frefh they put back and went to the houfe of their uncle James Boutelier> where they remained that night. Oh Tuefday morning they fet out agaiii in the fame flat for Lunenburg ; and being out all night in the' open boat, they did not arrive at Lunenburg until Wednefday morning about fun-rife, and landed at Martin's-Brook, where they hauled up their fiat above high-water riiatk, and went to their mother's about three miles difl:ant. The bufinefs that the Exami- nant and his brother came on was to fee their mother and to purchafe things for fome people at Tatamagouche j he brought with him four letters, One fT the Hon. Henry Newton, two for Mi*. M'Nab, of Halifax, and one for his lincle John Milliar at Margaret's-Bay. That they re- mained at their mother's hdufe all Wednefday, Thurfday and Friday, until ^ o'clock, from whence they went to their boat at Martin's-Brook, and went on board their brother David Boutelier's veflel lying at Indian Point, at about 8 or 9 o'clock the fame evening, where they re- mained that night. The next morning they left their brother's fchooner and proceeded in their flat to Marga- ret's-Bay, at which place they arrived the fame day. In their way they Hopped on board their brother John Bou- telier's fchooner lying irt South-weft harbour. Upon their arrival at Margaret's-Bay they delivered the flat to John Minego, and went to the houfe of John Daufine, where they remained all night. The next day they went to their brother John's houfe, and remained there that day and night. The next day they came to Halifax, being Monday the 21ft of March, about 3 o'clock, and put up at Laycock's tavern, and remained there that night. On Tuefday they bought fcveral articled in town, and return- ed to Mrs. Laycock's, where they remained that night. On Wednefday morning about 8 o'clock thv?y fei out for Tatamagouche. That he knew the deceafed Frederick Eminaud, and was at his houfe about four years ago. That during the whole time he was at Lunenburo- he did not go into any other houfe but his mother's. That when he went on board his brother's fchooner at Indian D Point ■ '* I C »6 ] Point hf carried a bottle of rum from his mother's houfe^ which bottle he left on board, and defired his brother David to return it to his mother." Here the evidence on the part of the profccution clofcd* The prifoners being feverally called upon for their de- fence, alledged merely, that they were nor guilty, and called no witnefles j upon which the Chief Jurtice imme- diately fummcd up, as folluws : Gentlemen of the Juryy George Frederick Boutelier and John Boutelier ftand indi(5letj for the Murder of Frederick Eminaud j— in o- ther words, for the wilfully killing h'lm^of malice prepgn/cd, or aferetkought i that isj not by accident^— not in their own defence — not under the influence of fuch provocati- on as the law admits to be fomc palliation of the crime of wilfully taking life from a fellow- creature — but in purfuancc of a wicked defign, preconcerted, and prede- termined upon, for a wicked purpofc ; which the law dc- fcribes by the term malice. This is the general nature of the charge, contained in an indidment confifting of (as they are called) two counts^ or parts. In the frfj they are both charged alike with having done this, by means of blows given the deceafed upon his head, and other parts of his body, mth Jiicks j whereof he inftantly died. In the latter, John is fuppofed to have given the fatal blow, with a tomahawk, George aiding and abetting him at the lime ; which would make him equal- ly guilty. Such is the way in which the offence imputed to them is laid in the indictment, in order, one way or the other, to meet the idea yoii may colleft of the fa(5b from the evi- dence : But it does not at all fignify, in point of law, up- on this indiflmenr, with what fpccific weapon or inftru-* mcnt the deceafed was murdered, if you are fatisfied he came to his death by the kind of violence fpecilied : For, though you fhould not have rcafon to think it was by a flick or a tomahawk, yet, if you fhall be fatisfied from the circumflances, that he came to his end, by that kind of death, which thefe are calcuiaied to procure, that will be fufficient, as far as concerns the inflrument. So, thougti [ »7 3 though the probability, and your opinion Ihould be, that, blows not having been ftruck by both, George ftruck them, and not John, and that it was John that /as aiding and abetting, inftead of George, as laid in the indiftment, neither will that fignify j you may (lill find them both guilty, whether you thi-nk that each gave his blow, or on* ly one, (whichever that one was) provided you are fatisfi- cd that a blow, or cut was given by one of them, the other aiding and abetting at the time ; and that the de- ceafcd died of the fame. In fupport of this indiflmcnt, a nuipber of witnefles have been called ; and what you will have to confider, will be, whether you are I'atisfied, from the circumftances that have been given in evidence, that the deccafed was murdered by the prifoners at the bar, in either of the ways laid in the indidment, explained to you as it has been z For, after all, be the confequences what they may, it is upon evidence^ and the evidence alone as given in court, (not upon furmifes, or fufpicions formed out of doors), that the fate of men'? lives, in courts of juftice, muft uU timately depend. At the fame time, before I proceed to fum up to you, "what that evidence has been, I think it befitting to ftate to you certain points, rei'pefling the nature of evidence jn general, as applicable to the particular cafe here. Undoubtedly, the defirable thing is, in every cafe, civil as well as criminal, to have dire6t, demonftrativc evidence of the fa£t to be proved ; but particularly in criminal cafes, and more efpecially fliil where they touch life. But wickednefs often devifes fuchfecret times and ways to perpetrate its evil dcfigns, that if nothing but pofiiive evidence could be received for a jury to go upon, in de- termining fadts, crimes would forever go nnpunifhed, and the condition of fociety be rendered mod infecurc. Prefumptive evidence, therefore, has been let in ; and that which is pofuive not being to be had, circumftances are reforted to : For, when the faft itfelf cannot be de- monftratively evinced, that which comes the nearefl" to a proof of the fad:, is a proof of furh circumftances as cither neceflTarily, or ufually attend fuch fafls : And. in proportion as thefe turn out, in number and application, the ftrength of the prefumption arifing from them be- comes more or l«fs forcible, and perfuafive. If m-r> t 1? ] If the prcfumption arifing from fuch evidence be but light, it is as none at all, and ought not to weigh iji your minds in the leaft, but to be difmilTcd entirely from them, as that upon which no reliance ought to be had. On the other hand, the prefumption arifing from cir- cumftances merely, may be fo ftrong, as to be irrefiftible, and, if poffible, even more concjufivc than a fimple tefti- mony of the faft itfelf, which is the nature of direfl evi- dence. Thus, to put a familiar inftance, that has relati- on lo the prcfent cafe, fuppole a man having been ftab- bed in a houfe, another i§ feen running immediately out with a bloody knife in his hand, and no one elfe in thp houfe at the time, — here pofitive proof is wanting, for th^ pcrfon is not Teen to have done the faft ; but a prefumpr lion arifes fo violent froni thefe circumftances againfthim, as hardly to admit of proof to the contrary, allowing the circumftances to be true. So, though the prefurnption be not fo violent, if it be probable only, provided that probability be ftrong, and tio way explained, nor any anfwer given ir, (much more if one be given, which you muft be convinced is untrue)^ this likewife will bp a ground upon which you may le- gally cxercife your difcretion, and form a verdifb of guilt. Enjoining you, the efore, to diveft yonr minds of eve- ry thing like a precc ceived opinion, and having thus opened to you the nature of the charge againft the pri- ibners, and the indidment, with as much of the law of evidence as is immediately applicable to the cafe in handj give me leave now to proceed to fum up to you what that evidence has been, as 1 h^ve taken it down, while the wit- neftTes were giving ir, ' (Here the Chief Jufticp went through the whole of the evidence i;s ftated abovf, obferving upon particular part^ of ir, as he went on, and then proceeded thus :) The prifoners having faid nothing in their defence, nor ca^ed any witneflcs, this. Gentlemen, is the whole of what you are to deliberate upon, and upon which their lives are, in your hands, to depend. And certain it is, that there is liere no pontive proof of their having beers at the houfe about the time the deceafed, v/ith his family, are rjppofed to have been deftroyed j nor any of an actu- al Murder having been committed. But their guilt refts upon '' ' [ «9 ] Vpon the fappofition of their having been there, under circumftanccs, which 1 will ftatc to you by and by, and upon the (late in which the remains of the deceafed were found, together with the appearances about the outlidc of where the houfe had ftood, the next day after it was burnt. And, no doubt, but that, if aperfon is found at a place where a murder has been committed, near about and be- fore the time of it, a fufpicion (fubjeft always either IQ be explained or corrpberated by circumftanccs) more or iefs ftrong will fall upon fuch perfon, provided it be firft clear, that a murder was committed. Therefore, you will confider, firft, whether you are fa* tisfied, upon the evidence that has been given, that here has been Murder. For if you have the leaft doubt upon your minds, notwithftanding appearances, that this unfor- tunate family, particularly old Eminaud, may have come to their death not by violence j but that he and they have accidentally been burnt to death: — If you are not per- fc6tly fatisfied of the contrary, and that it was in the way the indidmcnt has alledged it, then, there is an end of this profecucion, which founds itfelf upon that fuppofed fa6t. You will therefore be perfe<5tly fatisfied, that he has died no natural, no accidental death, but a violent one, before you proceed to your fiibfequent enquiry, to whom he has been indebted for it. But, in deliberating upon this point, ds to the fad of a ^4urder, you will confider whether fuch pregnant marks are not found here, as can leave no doubt upon any reafonable mind, as to this previous queftion. For, you fee, in the firft place, his body, though found at no great diftance from his bed, is found in its cloaths, and you are told by a witnefs, who could not but know, that it was not his practice to go to bed with his cloaths on, fo as to preclude the idea at leaft of hjs having been burnt in his bed. Then, blood is found upon thofc cioachs ; and though, upon the crofs-examination of old Contoy, no mark of violence is fworn to upon the body, yet confider the ftate in which it was found, and by whom. Contoy was no furgeon to examine it particularly, and he tells you he was fatisfied in his own mind, the moment he faw it, with the cloaths on, and tlic blood, that there had been foul play -, and fo looked no further. But if jie had, confider what probability there was, of any rnark being [ 30 ] i t- being vifible, in thcftate to which the body was reduced. What was it ?— the limbs all burnt off — the infide burnt out— what remained, little more than a mere bony trunk, with a fort of Ihrivelled parchment, (that had been fkin) upon fome parts of it. How poflfible, how probable for any mark of violence to be no longer difcernible but by a critical ey^, if at all. Then confider the circumftance of his hat, found at fome diflance from the houfe, and flill further from the body j and at fome little diftance from (he hat, a quantity of blood, (the witnefs, mifcomputing it probably, called it towards three quarts j but) a cer- tain quantity, whether thefe things do notfpeak for them- felves ; and how they are to be accounted for in any rea- fonable manner, but by fuppofmg Murder. You will, therefore, take thefe circumftances into your confideration. If they do not entirely fatisfy you, if they leave any the leaft doubt upon your minds, you will de- fifl from all further enquiry, finding the prifoners nor guil- ty. If you are fatisfied from them that Eminaud wa^ murdered, you will thc^n confider, upon the evidence, whether you believe the prifoners were at his houfe, the night upon, or immediately fubfequent to which the Mur- der was committed. And in forming your opinion of this, you will confider, firft, the profefTion with which they left their mother's upon the Friday between two and three, that they were going to Indian Point, (which is at the diftance from thence of about two hours walk) to their brother Davie, to proceed with him to Margaret's Bav ; You will then confider how they were (ten, lo late as fix in the evening by L,ongille who knew them, and by Titoff, from Martin's-Brook Mill ; then fubfequent to this by BaukmaHy (who plainly defcribcs them) trying the ice with their tomahavvk, oppofite to Eminaud's fide of the Bay, to get over ; then higher up by John Lay^ (who jikewifc Hefcribes them) ftill trying in vain to get over, and finally traverfing along the ihorc, round by Cal- bach's-Mill. You will, in the laft place, confider th? circumftance of a frefii track traced to the houfe, and back from it, to where a flat had been launched, with that of their having; come and crone awav in a flat : the track recently made by two pair of rnaugafins of different fizes, a fpecics of we^r but litttle known in the county, with the circumftance ^ [ 31 ] ejrcumftance of their having had maugafins, through ways noc commonly ufed, and the prifoners thcmfclvcs, as far as fccn, (kulking, as if afraid to be noticed. Putting all ihefe circumftanccs together, if you think they were the perfons that had been there, the remaining confideration will be, whether they were the Murderers 5 and this will rert, upon the fufpicion arifing from the fad of their having been there at fo critical a time, provi- ded you are of that opinion, with the manner of their go- ing — infinitely ftrengthened, firfl:, by their having denied tjpon their examinations, that they ever had been at Emi- naud's houfeat all, during their late vifit at Lunenburg, whereas the affirmative has been pofuively fworn to this day by numerous witnefTes, all of their own family, de- pofingfrom declarations made by the prifoners themfelvcs^ the morning of their arrival at their mother's houfe : Se- condly, by their pretence that they reached their brother Davie's fchooner fo early as nine on the Friday evening ; whereas it has been impofTible for Davy himfelf, (their bwn brother) fpeaking upon his oath, to tell you other- wife, than that they did not reach it, until about two hours before day, upon the next morning ; alledging, when they arrived, as a reafon for their latenefs, that they had miffed their way in the Fog, and had been obftrudbed by the ice. It may be faid, indeed, (and I leave it to your confide- ration) that it is not necelTarily conclufive againfl a per- fon charged with a crime, that he has endeavoured toclear himfelf from it, by an account, that turns out to be falfe • — for, that, pinched, and prefTed by fome untoward cir- Cumflance, that he cannot otherwife get rid off, he may, being innocent all the while, endeavour to fhift it by pre- varication, not trufting to his innocence: But this is not the courfe of innocence, which commonly trufls to itfelf, and a contrary courfe is always fufpicious; but I leave the obfervation to be confidered by you. You will therefore. Gentlemen, confider, upon the whole of the cafe, whether you are, or are not of opinion, that the prifoners at the bar murdered Frederick Eminaud, the deceafcd. If you have the ffnaileil doubt, whether it regard the faft of the Murder, the fatt of the prifoners having been ac [ 3» 1 it the houfc, dr the defign and end with which they might have been there, it is my duty to tell you, and your'^ to mind what 1 fay, that you ought to acquit them j upon thd htimane principle, mentioned by the learned Council for the profecution, and candidly mentioned by him, I'hat it is better any number of guilty perfons ejcafe punijhmenty than that one innocent Manfuffer, If youhave no doubt, but think that the finger of Pro- vidence has as plainly pointed the prifoners out, doing fhis deed, as if one had come and told you he faw them do it, in that cafe, and in that cafe only, you will find them guilty. With one (ingle exhortation more, 1 leave the matter to you. Take the whole into your ferious confideration, but be not hafiy informing a judgment of guilt ; remember- ing, that no delay, or deliberation can be too great, where life depends. Therefore, weigh every circumftance ; and in giving each its due weight, give it no more ; but do equal juftice, leaning to mercy i and draw fuch acon- clufion from the whole^ a4 is proper fof you to draw, judging iipbn your oaths. The jury withdrew j and -^fter having been out about an hour and a half, returned into Court with their verdift. That George Frederick Boutelier. and John Bouielier,- were both Guilty. The Chief Juftice then faid, *^Mr. Sheriff, L.et the prifoners be carried back, and taken care of, for their lives are forfeited ; and let them be brought up again to-morrow morning at ten to receive their fentence." The Court then adjourned to the next day at ten. ^hurjday ^th of May. The Court being met, the prifoners were fent for ; and being fet to the bar, they were feverally afked, what they had to fay, why Sentence of Death Ihould not be pafTed npon them according to law ; and neither of them offer- ing any thing in arrell of judgment, the ^Chief Juftice (proclamation having been firll duly made for filence, v.hile Judgment of Death was paffing upon the prifoners) addrciled them as follows : Georgi ' > I 33 ] George Frederick Boutelier, and John Boutetier : You have been india^d by a Grand Jury of the county, for the Muv<^tY o^ Frederick Emittaud; and, after a long, and impartial trial, upon the teftimony of a multitude of wit- ncfTcs uncontradi by a chain of circumftances, chat has left no doubc upon the minds of your Jury, that Jury, upon which,, under God, you put yourfelves for your trial, have, by their vcrdift, found you both Guilty, In dating a verdia:, that is to be the foundation of the dreadful Sentence which it remains for the Law to pro- nounce, and of which the execution muftfurely and fpee- dily follow, it is fit I fhould publicly declare the en- tire concurrence of the Bench, in its juftice and wil- dom. That you came into the country with the exprcfs, and with no other intent, than to perpetrate the horrid aft, of which you have been convifted, there is reafon to believe, as well from the manner in which you lurked, while you remained in it, as from the circumftance of your having gone out of your way, to (top at old Emi- naud's houfe, on the Tuefday evening, inftead of pro- ceeding ftrait to your mother's j and that it was your purpofe to have perpetrated it that very night, had the time been ripe, is highly probable : Bur, be this as ic may, that you did, upon the Friday following, (choofing your particular day for reafons belt known to yourfelves) by fecret and untrod paths, find your way back to this peaceful and defcnceiefs habitation, and did then and there deftroy this helplefs Family, that had, according to your own declarations, received you with a kindnVs, which they could not afford to all, no perfon living, that has heard ycur trial, and the verdid, can be fuppofed ta have any remaining doubc. That your inducement to this deed, was, to poflefs yourfelvesof that money, of which this molt unhappy man was unfortunately but too apt to be talking, beyond (as it has turned out) what prudence could juftlfy, and which you probably knew he was about that time likely to have received, in a confiderable fum, this likewife there i^ not wanting reafon to believe. For this, neither grey hairs, nor tender youth, nor lex was fparcd. For this, the ^' remembrance I [ 34 ] remembrance of hofpitality was done away — the cries and entreaties that muft be taken to have been oppofed to your cruelty were ftifled, and difregarded by you ; and a whole family (doubtlefs) firft bathed in blood, before they were^ with the houfe that covered them, reduced to afhes. This happened in the dilmal hour of the night, when nothing but wolves and beads of prey are fuppofed to be upon the flir. It happened in a peaceful, and virtuous fettlement, which having ever been incapable of crimes, has ever been unconfcious of alarm, and unprovided a- gainft danger. It happened to a family, which, by its innocence and exemplary labours, had rendered itfelf at once ufcful and dear to the community ; and which, con- fidering its hofpiiable entertainment of you, fhould, of all others, have been the lafl: objects of fuch a deed at your hands : which was made the more dreadful, in that it was managed by you \n a way, that admitted little hope of the perpetrators of it being found out. No wonder if an alarm fliould have been taken, and deep terror ftruck in the minds of this wliole fettlement. But, as if Murder, (of all crimes) was never to go im- detected, and unavenged even in this life — with all your fecrecy, with all your choice of time, and contrivance of means, by an accidental word that led to the fufpeCting you, ai d by a coincidence of circumftances that would havcjulURed your convidlion, even if it had not been, as it was, corroberated by the falfe account you had givenof yourfelves upon your examination, — you, whofe very ar- rival, and that you had been in this part of the country was fcarcely known, (lb clofely had you kept yourfelves for the execution of your dark deligns)— -the finger of Providence has fo pointed you out, that u^l who fee you, fee now, to their perfe^^t conviction, the hand that deflroy- cd the wretched Eminaudi and his unfortunate wife, and grandchild ; though they fee not perhaps the immediate me;'.ns, by which that dedrucflion was effefled. As the punidiment whicli you mult fufFer for this will be a dreadful example to all who fhall witnefs it, of the confequences of fuch an a^il, fo I trr.fi: that your convidi- on will be a lcflc">n5 how iriipoffible it is, according to all experience, for Murder j fooner or later, how fecretly foe- ver perpetrated, to go undifcovered. With [ 35 ] With this view, I have dwelt upon that conviclion -, as I have opened to yourfelves the nature of rhe crime it fixes upon you, not in order to aggravate or afflidl, but to awaken your minds to a due attention to, and conddera- tion of tlic unhappy fituation, inio which you have brought yourfelves. For the crime itfclf, it is incapable of aggravation; and therefore unnecelfary for, as it is painful to me, to dwell longer upon a fubjefl fo black and dreadful. Ic is wii:h much more fatisfaftion that I can remind you, that, though from the prcfent Tribunal, before which you now ftand, you can receive nothing but ftrid a..d equal julHce, yc 1 arefoon to appear before an Almighty Judge, whofc unfathomable wifdom ^s able, by means incom- prehenfible to our narrow capacities, to reconcile Jufticc with Mercy : But I truft you are not fo ignorant as not to know, that fuch Beneficence is only to be obtained by deep Contrition, — -found, unfeigned, and fubftantial Re- pentance. To bring your minds to this defirable (l:atp,you will be indulged, during the very fhort remainderof your lives,in the converfation of a Holy Clergyman ; who will tell you with better efFe6l than I can, how indifpenfible a mark of repentance it will be in the eyes of Heaven, that you make a full and genuine confclTion of all your crimes. But this is, as between yourfelves, and your own con- fciences, under his falutary cxho -rations. Therefore, only recommending it to you, with his af- fidance, to lofe no time in making that peace for your- felves with Heaven, which this world can "o longer allow you, what alone remains for me is, to pronounce that Sentence which the law has appointed for crimes like your's } — a Sentence full of horror ! — -but fuch is Reli- gion itlclf has direded, and Mankind have in all times given and executed in the like cafe ; to be a terror to evil- doers, and a fecurity to them that do well. Tlv.u Sentence is, and this Court doth award. Thai you George Frederick Boutelier, and you John Bou- teller, and each of yotiy be conveyed back to the place from whence you came, and from thence to the -place where flood the Houfe of the late Frederick Eminaud, or as near to it as conveniently may be: and when you come there, you muji E 1 each [ 3« 1 tach of you he hanged by the Neck, * till you are dead\ fop the fpeedy execi^tion of which I bid you prepare : and may that God, " who hateth nothing that he hath made, ** and doth forgive the fins of all them that are penitent," of his infinite goodncfs have Mercy upon your Souls I The prifoners were then taken back, and the Court being adjourned, a Warrant was the nejct day delivered to the Sheriff, appointing their Execution to be on Mon- day the 9th of May, between the hours of nine in th that the people were exhorted as direc1:ed by them j that thev acknowledged the juftncfs of their fentencej confel- fed'they had no wilh to live; appeared truly P/mtenr, Georoe particularly To; and that the behaviour of both of thtr/wasfuch, that, had they not been Murderers, they rr.ight have been called Chriftian Heroes." This is the fubftance of his very intcrefting letter. Ore obvious ai.i comforting remark may now con- clude ihc whole detail.— The origin of the fufpicion, xhc apprt^hennon of the Murderers, their inexphcablc conducl, the concurrence of contingent circumftanccs corroborating the firft lufpicion, the new openings of evi- dence, the concatenation of proof amounting to le^jal conviaion, the rapidity of juftice, and the reticular difpUy of a fuperintcndin^r Providence, give to lae honelt man i onfidcnce and fecurity in his habitation, wherever fituated and however defencclefs, and flalli on the mmds of the RuiUy '* That there is nothing hid which (hall '^notbe'manifelled. neither any thing kept Secret but *' that it fliall come abroad : For a bird of the air (bail " carry the voic,-, and that which hath wings (liall tci! the «( mstter the