It was settled – the two men would stay the night. Their host would hear of nothing else.
George Boutilier and his younger brother, John, had visited the homestead earlier that brisk March day in 1791, and George Frederick Eminaud was pleased to see they had returned. Eminaud, who had just turned seventy, lived with his wife and granddaughter on First Peninsula, near the South Shore settlement of Lunenburg. He appreciated having some male company. Besides, the Boutiliers were more like family than guests. The elder Boutilier was Eminaud’s godson and namesake, so it was not surprising that the brothers, who lived a short distance inland at Northwest, often stopped by. But this would be their last visit. Heading to the barn through the darkness to fetch straw for his guests’ bedding, Eminaud never suspected the real reason the Boutiliers had suddenly returned. They had needed some time to steel their courage for the work that lay ahead.
Eminaud, his arms wrapped around a bundle of straw, was almost to the house when his assailants struck with a hatchet and wooden clubs. He died on the spot. The Boutiliers headed inside and used the hatchet to kill Eminaud’s wife. The granddaughter managed to crawl partway out of a window as she tried to escape. She was hauled back inside and hacked to death.
Eminaud was rumoured to have a stash of money and the Boutiliers sacked the house, greedily snatching everything they could find. They rifled Eminaud’s pockets and helped themselves to the contents, even a piece of red chalk. Then the Boutiliers turned to the second phase of their plan. They dragged Eminaud’s body inside and set fire to the house in hopes of destroying all evidence of the bloody deed. As flames consumed the house and the bodies of its occupants, the Boutiliers disappeared into the forest, headed eastward. To confuse their trackers, they strapped on their snowshoes backwards.
The glow of the fire could be seen from Lunenburg, but the house had burned to the ground by the time help arrived. Despite their efforts to erase evidence, the Boutiliers had been sloppy. Eminaud’s bloodied hat was found on the ground beside two wooden clubs.
It took two days for the news to reach Halifax. For a triple murder committed so close to home, the crime commanded surprisingly little interest in the capital city’s press. The Weekly Chronicle devoted a single paragraph to the Lunenburg murders, terming them a “horrid” and “unnatural deed.” But the news, however sketchy, travelled faster than two men slogging through the bush and deep snow. Halifax County’s sheriff was on the lookout and on March 24, five days after the murders, he arrested two men, newly arrived from Lunenburg, at a shanty north of the city. They were the Boutilier brothers.
They appeared before two justices of the peace the next day for questioning. “We do not learn that anything material transpired which tended to support the opinion of their guilt,” the Chronicle informed its readers. “They are, however, still kept in custody.” Unknown to the press, the authorities had come up with a compelling piece of evidence linking the Boutiliers to the crime. It was enough to charge the Boutiliers with murdering George Eminaud by inflicting “mortal strokes, wounds and bruises … with certain large sticks and a tomahawk.” There was no mention of Eminaud’s wife and granddaughter in the indictment; the authorities may have held these possible charges in reserve, so they could be pursued if the two suspects were acquitted at trial. The brothers were imprisoned to await their day in court.
“Wickedness often devises secret times and ways to perpetuate its evil designs,” Chief Justice Thomas Strange told jurors at the 1791 murder trial of brothers George and John Boutilier. (Author collection)
* * *
The last thing Nova Scotia’s understaffed and much maligned judiciary needed was a major murder trial. The quality of the Supreme Court’s judges had been under fire for years, with newcomers who had remained loyal to Britain during the American Revolution behind much of the criticism. Some of these Loyalist refugees were eager to claim Nova Scotia judicial posts for themselves.
When Chief Justice Bryan Finucane died in 1785, British authorities were slow to fill the vacancy. That left two assistant judges, Isaac Deschamps and James Brenton, to carry the court’s entire workload. Until the 1830s, court rules required that two judges – the chief justice and one other – preside over trials. Justices Deschamps and Brenton were forced to handle every trial conducted in the far-flung communities springing up around the colony.
Neither was up to the task. Justice Deschamps was a former judge of the inferior court of common pleas, the lowest rung on the evolving colonial court structure. Although he had no formal legal training, he was appointed to the Supreme Court in 1770 and took over as chief justice upon Finucane’s death. Justice Brenton at least had the legal credentials to be on the bench – he had been a lawyer in his native Rhode Island, and had served stints as Nova Scotia’s solicitor general and attorney general. But even though he rose to the rank of the colony’s chief law enforcement officer, Justice Brenton’s legal expertise was suspect. One historian suggested he had been named to the Supreme Court in 1781 “for want of anyone better.”
Dissatisfaction with the two judges erupted in 1787. The assembly, the colony’s elected body, debated their track records in a rare secret session and emerged with a demand that Governor John Parr investigate their performance. The governor refused, but the complaints continued to fester. In 1790, the assembly voted to impeach both Deschamps and Brenton for “high crimes and misdemeanours.” The impeachment motion was forwarded to London for a final decision, and it took another two years for the British government to decide that the pair should be allowed to keep their posts. Their shortcomings as judges, if any, were put down to “the frailty of human nature.”
Steps were taken to beef up Nova Scotia’s courts after the assembly went public with its criticisms. Deschamps was shunted aside as chief justice in the summer of 1788 in favour of Jeremy Pemberton. Here was someone with the law in his blood – grandson of a lord chief justice of England, Cambridge educated, a product of London’s prestigious inns of court. But Pemberton lasted barely fourteen months as Nova Scotia’s top judge. He resigned in the fall of 1789 due to ill health and died less than a year later. He was only forty-nine.
The British tried again, this time opting for someone even younger than Pemberton in an effort to put the colony’s justice system back on track. Scottish-born Thomas Andrew Lumisden Strange was thirty-two when he was tapped to become Nova Scotia’s sixth chief justice in 1789. The new top judge was an imposing figure but his chest-length judicial wig framed a surprisingly youthful face. He was far from comfortable in the courtroom. He enjoyed “a reputation as an excellent theoretical lawyer,” noted Nova Scotia historian Brian Cuthbertson, “but he had little courtroom experience and he was somewhat unsure of himself.” The trial of the Boutilier brothers would be his first major test.
* * *
In late April 1791, the Royal Navy schooner Diligent cast off from a Halifax wharf and took a southwesterly course once it cleared the harbour’s mouth. On board were two passengers who had a date with the law in Lunenburg, George and John Boutilier. A few days later another navy vessel, the cutter Alert, followed bearing Chief Justice Strange and Justice Brenton. As chief justice, Strange would do all the talking once the murder trial got under way. And that was probably fine with Justice Brenton, who was still under the cloud of the assembly’s impeachment resolution of the previous year.
Only one account of the three-day murder trial has survived, and hardly an unbiased one at that. Written by James Stewart, a Halifax lawyer and future judge who prosecuted the case, it provides few details of the evidence. A grand jury heard an outline of the prosecution’s case on May 3 and ruled there was enough evidence to send the Boutiliers to trial. The following day Stewart delivered his opening address to the trial jury. The evidence against the two accused was “purely circumstantial,” he admitted, “but after fullest consideration” it had “left in his mind a violent presumption that a murder had been committed.” He was confident the jurors would draw the same “violent presumption” and conclude the Boutilier brothers were the killers.
Stewart called fifteen witnesses, including three members of the Boutilier family. He did not record how their testimony implicated their relatives. The most damning evidence came from Eminaud’s son, who produced a broken piece of red chalk. The afternoon before the killings, he explained, his father had broken the chalk in half as they worked. The chalk fragment was then compared to a piece of chalk found in George Boutilier’s pocket when he was arrested. The two pieces fitted together perfectly. To round out the Crown’s case, two men swore they saw the Boutilier brothers crossing the ice of a nearby waterway as they fled the scene of the crime.
No evidence was called in their defence, and Stewart does not record whether they even had a lawyer to defend them. Then it was Chief Justice Strange’s turn to enter the spotlight with his instructions to the jury. “If you have the smallest doubt, whether it regard the fact of the murders, the fact of the prisoners having been at the house or the design and end with which they might have been there,” he explained, “it is my duty to tell you, and yours to mind what I say, that you ought to acquit them.” He reminded them of a maxim at the heart of British law: “It is better any number of guilty persons escape punishment than that one innocent man suffer.” But there was another option. “If you have no doubt,” he continued, “but think that the finger of Providence has as plainly pointed the prisoners out doing this deed as if one had come and told you he saw them do it, in that case, and in that case only, you will find them guilty.”
The chief justice then faced squarely the central issue of the trial – the prosecution’s lack of direct evidence. “Wickedness often devises such secret times and ways to perpetrate its evil designs,” he noted, “that if nothing but positive evidence could be received for juries to go upon in determining facts, crimes would forever go unpunished, and the condition of society be rendered most insecure.”
Circumstantial evidence, he contended, could be “even more conclusive than a simple testimony of the fact itself.” He used the example of a man seen fleeing a house carrying a bloody knife. The only other occupant of the house was found stabbed to death. The implication of guilt was inescapable.
Chief Justice Strange could have cited another compelling example – a piece of chalk belonging to a murder victim found in a suspect’s pocket. It took the jurors an hour and a half to return a verdict of guilty against each man. The murder of Eminaud was “so black and dreadful” that it was “incapable of aggravation,” the judge said in passing the death sentence. “Though from the present tribunal before which you stand you can receive nothing but strict and equal justice,” he told the Boutiliers, “you are soon to appear before an almighty judge, whose unfathomable wisdom is able, by means incomprehensible to our narrow capacities, to reconcile justice with mercy.”
Chief Justice Strange encouraged them to own up to their actions in the little time they had left. He ordered George and John Boutilier to hang within a week. John Boutilier, the younger of the two, confessed his role in the murders to a clergyman. The sentence was carried out in Lunenburg on May 9, 1791, at a spot dubbed Gallows Hill. “Their behaviour at the gallows was such as became men who were sensible of the horrid crime they had committed,” one newspaper claimed. They were buried at Northwest, on the farm where they grew up.
Greed drove the Boutilier brothers to kill. It spurred them to steal everything in sight, even a piece of blood-red chalk – the shred of evidence that linked them beyond all doubt to the murders of the Eminauds.