Hanged Twice No Joke

PREFACE

Should they have been hanged? Were they guilty or not guilty? This book is definitely not fiction, it addresses law, administration of justice and history of the British Commonwealth and North America in general, and Loyalist Canada in particular. It is indeed a book on Capital Punishment. It will present some fourteen gruesome trials from New Brunswick criminal law, 1780s to 1940s, bibliographies included, and the verdict is yours.

The exploits of Allan Legere on the Miramichi, and more recently Paul Bernardo, Russell Williams, Robert William Pickton and Luka Rocco Magnotta have stimulated much animated debate on this issue of Capital Punishment, the erstwhile means to the END which was discontinued in Canada only in 1962; the practice apparently ceased in New Brunswick some five years earlier on the 11th December 1957, when Joseph Pierre Richard paid the ultimate price at the Restigouche County Jail. From the available records, his execution was the only one ever to have been carried out in that county. One 19th century writer was quite firmly convinced about which side he supported when he referred to the perpetrator of a most heinous and despicable murder in the following terms:

"Had such a wretch as this escaped

the gallows it would not have been

safe to walk abroad at noon day."

That case will appear in this book, and the quotation will be seen in its original context.

The quality of mercy was strained; it did not drop as the gentle rain from heaven; old time justice in New Brunswick fell as a hailstorm, it was swift and harsh for those on the earth below. In one trial before 1800 the defendant was tried and hanged apparently without even having the services of a defence counsel; furthermore, in those early days Capital Punishment wasn’t reserved only for murder, it was also applied in cases of theft and breaks and enter. There was mention of at least one case in which, for the murder of an infant, a brother and sister were tried, convicted and hanged within 24 hours; that case was said to have been in St. Andrews, Charlotte County. It must have been in the early years of the 19th century, but no specific date or name could be found.

Bearing this in mind, no evidence could be found to show that a woman was ever hanged in New Brunswick. But it is true that in at least one case, presented in this book, Eliza Ward was found guilty and sentenced to be hanged; however, she enjoyed the benefit of a reprieve.

There were at least two cases in which the defendants were hanged twice, Bennie Swim(m) having killed two people, and Henry Baldwin and James Lennan, having been convicted of murdering Clayton Tilton. These details will all be read in this book, and readers should get a thorough understanding of how and when Capital Punishment was applied in this Province in those good old days.

The gallows used in the 1846 hanging of Redburn The Sailor in Saint John was described at length by William K. Reynolds in his book Old Time Tragedies. He wrote that:

. . . . It was designed to be on the same principle as the apparatus which, in recent years, was in favor in New York and other cities of the United States. It was the weight and pulley style. From the east window of what is now the second story of the building, but was then the ground story, the ledge of rock having since been cut down, a stationary beam projected, at the outer and inner ends of which were pulleys through which the rope ran. At the end of the rope inside the building was a heavy weight, held in place until the proper moment, when its release and fall would instantly jerk upward the end which held the noose. This, it will be seen, was a different arrangement from the weighted lever, used in later years, though the theory was the same, and the arrangement itself essentially the same as a modern American method. In all these plans, the condemned is supposed to be jerked from the platform so violently that his neck will be dislocated. Where there is any blunder about the adjustment, he is simply strangled, and the thorough efficiency of the old-fashioned drop, properly calculated for the weight of the condemned, is incontestably demonstrated.

Writers of the 18th, 19th and early 20th centuries had their own special ways of recording and disseminating data, as we do today, however that uniqueness added a touch of well-appreciated local colour. Syntax, spelling, punctuation and grammar are not always of the best quality, and in general these have not been corrected. Without relying on hyperbole the cases presented here are for the most part verbatim; trials and hangings are described in detail; whenever additional data are available and found, these have been incorporated to make the story more complete.

This book is by no means a complete inventory of hangings in New Brunswick; it serves more as a complement to other books such as Six for the Hangman and Old Time Tragedies -- and I may yet write another describing other cases which were not included in this one or the two other books mentioned above. I didn’t consider writing this book until after having made considerable progress on my main focus which was a research paper entitled The evolution of power and authority in the Office of Sheriff in New Brunswick; this is essentially a by-product. But responsibility for hangings being one of the sheriffs’ duties, I soon found myself with a reasonably substantial collection of dreadful, infamous and heinous crimes, villains and malefactors who confessed to serving Satan whom they referred to as The Old Boy, and others who allowed Demon Rum and Moonshine to impair their judgement.

Some of those who were hanged were convicted on the most perspicuous evidence; some evinced the most unbelievable sang-froid, one in particular confessed that he intended to kill them all, and that the only thing he was sorry for was that he didn’t kill her (his wife); others might have been denied the benefit of doubt . . .

ACKNOWLEDGEMENTS

Special words of gratitude are due to all those who encouraged me to continue working on this melancholy topic, notwithstanding the personal tragedy which I have had to bear. However, the staff in Reference at Harriet Irving Library have been outstanding and supportive, and amongst these I shall mention but one name -- Ardeth Maguire; her patience and cheerful attitude in typing these accounts, her keen disposition in trying to get the correct spelling of names when on numerous occasions the newspapers had many variations -- all of these things are manifestations of her dedication which will not soon be forgotten.

I can not and must not neglect to mention the faithfulness of Dianne Lyons, a woman of influence, an indefatigable campaigner on my behalf, one on whom I have depended, not being in the province, to assemble for me a collection of photographs of the old historic gaols and court houses. From her pivotal position she could reach out to her long-established network in the outlying counties and help to summon this collection of symbolic images of a distant, troubled past. She deserves special credit.

This work is dedicated to the memory of my wife Kathleen, whose passing is still so profoundly felt.

The Justice Building, Fredericton, capital city, New Brunswick

This photo provided courtesy Ginette Hannan from the Dianne Lyons’ network

Originally erected in 1827 as a Military Hospital and having a long eventful history including use as a school, being ravaged by fire and reconstruction, this icon still stands today and is in use as a Court. For quick references and more information interested readers may consult the website: http://www.new-brunswick.net/new-brunswick/fredericton/page1.html

Sunbury County of Nova Scotia, 1765

Map 1 courtesy Ganong, William Francis. A Monograph of the Origins of Settlements in the Province of New Brunswick, pg 42

I

"WHATU GWINE

TO

HANG ME FOH?"

SAINT JOHN

He had been watching the shopkeeper for some time, and now his long-awaited opportunity had presented itself. The barrel of salted pork now stood unguarded so he moved in and started to roll it away.

This story is believed to be quite true. The exact date and names are not known, but it appeared in a very reliable source. It seems to be the type of thing that could have happened quite easily in the late 1700s or early 1800s.

The he referred to above was a white man, and he was then furtively but quickly making his way to the Saint John wharf; he might have had a sloop rigged vessel or had a friend on one of the boats who would assist him in carrying away the stolen goods.

Just then, a Negro, naive and ignorant of what had happened, offered to roll the barrel for a fee. The white man gladly acquiesced, and one may assume that he kept at a reasonable distance from that stolen barrel.

Meanwhile, the shopkeeper must have observed that his merchandise was missing and hastened to alert a constable. The white man, well aware of the circumstances and the consequences if he were caught, must have laughed a thousand times. As happy as he was with his relative safety in that leg of the journey, he was still alert and vigilant. And soon enough he saw exactly what he feared most, the menacing silhouette of a constable who was approaching at a rapid pace. So the white man did what he must have contemplated when the Negro first asked for the job. He disappeared from the scene. The unsuspecting Negro was soon apprehended and thrown in a dungeon-like gaol.

Ah was just pushin’ it foh a white gentleman, was his defiant protest, but it was to no avail.

When finally his trial was called, nobody believed him, and he got the expected sentence --Death! He did not seem to believe or fully comprehend his fate until the very last moment when he was ushered out to the gibbet.

Whatu gwine to hang me foh? he protested incredulously, his tone then having changed to desperation, I ain’t done nuffin!

The black cap was placed on his head and the noose slipped around his neck. Still they didn’t believe him . . .

Sources: Reynolds, W.K. Old Time Tragedies

Provincial Archives of New Brunswick (PANB) MC 300/MS 19

New Brunswick Counties, 1786

Map 2 courtesy Provincial Archives of New Brunswick (PANB)

The old Saint John County Court House

This photo above provided courtesy the Dianne Lyons’ network

Many people, even those living in New Brunswick, ignore the fact that Saint John is the oldest incorporated city in this sprawling nation. The royal charter of incorporation was presented in 1785 just a few months after the new province was set up. One imagines consequently that this city may have the oldest municipal buildings in New Brunswick, it is for this reason that I made such an effort to secure photographs of the Court House and the old Gaol. The search for the old Gaol was unsuccessful.

Completed in 1829 the Court House still stands today, and is still in use as offices of the Sheriff/Coroner as well as for sessions of the Court of Queen’s Bench and the Provincial Court. Its longevity may be due to the fact that it was constructed of stone, many of the old wooden buildings were devastated by fires. A most remarkable feature of this Court is the free-standing spiral stone staircase which rises up three storeys without other support. It remains a feat of engineering unparalleled in Canada.

.

II

DAVID NELSON

AND

WILLIAM HARBORD

FREDERICTON 1786

An early settler in Fredericton remarked casually that he was happy with the setting; he could hunt moose and fish anytime it pleased him and life was simple. Oddly enough, it was just a quiet fishing expedition that developed into what became the first murder trial in Fredericton.

The year was 1786, 20th May. That Saturday morning David Nelson and William Harbord had been fishing close to their homes when suddenly they were startled by the barking of dogs and the squealing of pigs. Pigs represented the winter’s supply of meat, and Nelson and his friend hurried to see what the matter might be. When they got to Nelson’s place, these two disbanded Loyalist soldiers discovered that two dogs were attacking and biting a pig behind Nelson’s house, and even worse than that, all the other pigs were gone. They shot one dog, and in a frantic search for the missing pigs, musket in hand, they ran down to the river.

Just then they observed two Indians rowing in a canoe. Believing that the Indians had stolen the pigs they beckoned to them to come ashore, but this the Indians would not do. So Harbord had an idea which he thought would compel them to come back. His idea was to fire shots over the Indians’ heads, and this they did. The first volley only made them row faster, and after the second Nelson and Harbord gave up the shooting, opting instead to go in search of the missing pigs. And they were found, all except one.

Now, unknown to Nelson and Harbord, one of the Indians had been hit. Pierre Bonwah (Benoit) had in fact been killed. His female companion managed to row him to a nearby island.

Some four days later, 24th May, 1786, the two assailants were examined before two York County Justices of the Peace, Edward Winslow and Isaac Allen. The defendants did not deny the incident which they explained as an accident; nevertheless, they were remanded for trial.

The Indians demanded instant justice; the valley was in turmoil. According to Edward Winslow, the Indians were clamorous for an instant decision. They camped around Judge Allen’s home in Kingsclear, near their village, the Judge having only recently concluded a land deal with them. They probably felt comfortable with him and perhaps did not know that he had the authority to try the case. Luckily however, for Judge Allen, the Chief Justice was in Fredericton and he took charge of the contentious trial.

Loyalists were upset too. Edward Winslow wrote, they cannot reconcile themselves to the idea that two men of fair character should be sacrificed. But acquittal in these circumstances seemed certain to unleash strong feelings of discontent, if not violence on a grand scale.

The Court opened Tuesday 13th June, 1786. Chief Justice Ludlow and Judge Allen presided. As was the apparent custom in capital cases at that time, there was no defence counsel. Only three witnesses were called, including Edward Winslow, but excluding Pierre Bonwah’s female companion. Here is a summary of the trial and execution as presented in The Royal Gazette:

"At a special court of oyer and terminer and general gaol delivery held at Fredericton on Tuesday the 13th instant, David Nelson and William Harbord, were capitally convicted, for the murder of Pierre Bonwah an Indian, and ordered for execution on Friday the 23rd. Some circumstances appearing in Harbord’s favor he was reprieved before the Chief Justice left the county. Joseph Snowden for counterfeiting an order from McKay Thomas Franks, and obtaining sundry goods was whipt 39 lashes. Duncan McGraw convicted of grand larceny, received benefit of clergy was branded and discharged.

On Friday last was executed at Fredericton, in the county of York, David Nelson, in pursuance of the sentence of the court of oyer and terminer and general gaol delivery, and there by special commission on the 13th instant.

This unfortunate man was a disbanded soldier of the late regiment of Queen’s Rangers, and his fate is the more a subject of universal regret, because, having served his king and country with credit as a good soldier, he had since been distinguished for his industrious exertions as a settler on the land offered him by the government. In an unguarded moment, however, he appears to have forgot the sacred regard which he owed to the laws of God and his country - he was tempted on a trifling provocation, to fire upon and killed one of the native Indians - and, being clearly convicted of the murder, he has now paid the forfeit which the impartial voice of JUSTICE demanded.

His trial (which was attended by a numerous concourse of inhabitants) was conducted with the greatest solemnity - the occasion excited very apparently the deepest concern and sympathy in all who were present; but a decided spirit of acquiescence in the discourse of justice was at the same time equally remarkable. The grand jury, in sending the bill of indictment, and the jury by whose verdict the prisoner was convicted, were evidently impressed with those sentiments of duty which in good men, must ever prevail over all other considerations.

The same spirit of duty and good order again appeared on the melancholy day of execution, and the county of York has, in every stage of this important event, given to the province at large an example which merits universal attention."

Sources: The Royal Gazette, 27.6.1786

The Atlantic Advocate, July 1982

The Telegraph Journal, 27.7.1949

The old York County Court House

This photo above provided courtesy Pat Pitre

Not unlike the dilemma with other municipal buildings like Kings County Court House where maintenance expenses have been exceeding the budget, this York County Court House has become too much of a burden on a cash-strapped provincial government, and in this particular case the building has been sold.

The dates of construction seem to vary from source to source but the years of the late 1850s seem to be very close, the date 1855 is posted above the door. Some say that work started that year and finished some two years later. Nevertheless, this building has withstood the test of time, still standing today in 2013, but instead of lawyers, criminals, jurors and judges the only sessions being held are those related to culinary activities, because it is Isaac’s Way restaurant which has taken possession of the daily activities. Strangely enough, this type of activity is not entirely new for York County Court House. Up until the 1880s the building was shared - a market occupied the ground floor.

III

JAMES LENNAN,

HENRY BALDWIN

AND

PATRICK MCEVOY,

HANGED TWICE!!

SAINT JOHN 1808

Hungry, thirsty, tired and a bit disoriented, the three of them stumbled out of the thick woods and into a clearing. It was a farm. Two men, Ebenezer Scott the farmer and Burdette his farm hand, were loading straw onto a wagon. These three strangers who were asking for directions to Dipper Harbour didn’t fail to arouse suspicion, for at least one, James Lennan, wore a red tunic, and another, Henry Baldwin, carried a military issue Brown Bess musket. The third stranger was the youthful Patrick McEvoy who had accompanied the other two when, a few days before, they had deserted their army barracks at Fort Howe, Saint John. The three were on their way to America and the farmer and his field hand imagined this. So once the directions had been given and the deserters had left, Scott and Burdette hastily headed for the authorities.

Soon enough Scott and Burdette had reached Clayton Tilton and Frederick Shrum, and Tilton, instead of trying to relay the message to the sheriff, proceeded, armed with a pistol and in company of the three men, in pursuit of the three deserters. Tilton was a person of some standing in his community, and according to the newspapers, a Captain who had served His Majesty well in the past, but alas, the little posse he had under his command, so poorly armed, was no match for the deserters.

When the two parties confronted each other in a glade, Captain Tilton stepped forward to assert his authority, probably ordering them to surrender. The deserters resisted and Baldwin fired a shot which hit Tilton in his chest and killed him. The pursued men fled, but about two days later were overtaken and arrested by a party of soldiers under the command of Adjt. John Campbell of the Charlotte County Militia.

All this activity had taken place in late October, 1808. The trial was called Tuesday 15th November, 1808. Here is the summary given in The Royal Gazette:

"On Tuesday last a Special Commission of Oyer and Terminer and Gaol Delivery was opened at the City Hall, before His Honor Judge Saunders, for the Trial of Henry Baldwin, James Lennan, and Patrick McEvoy, three deserters from the 101st Regiment, who had been committed by the Magistrates for the Murder of Captain CLAYTON TILTON, while in the attempt of apprehending them as Deserters. The prisoners were convicted upon the clearest and most satisfactory evidence; Baldwin as a principal in the first degree in having given the mortal wound by the discharge of a Musket, and Lennan and McEvoy as being present, aiding and abetting, and they all received Sentence of Death on Friday; one of the most crowded audiences we ever witnessed in our Courts, being thoroughly satisfied of their guilt. In the course of the Trial it was expressly declared by the Court, that desertion from the King's armies in time of war is, independently of the Mutiny Act, by Ancient Statutes Felony without benefit of Clergy, and that every subject is bound upon his allegiance to use his utmost endeavours to apprehend such deserters, which the Law will protect and justify him in doing, even to the last extremity, should the deserter be necessarily killed in the struggle, as in the case of Felons of any other description; while, on the other hand, should any one of a party of deserters kill any person attempting to apprehend them, every individual of the party is guilty of Murder. The prisoners, we understand, are ordered for execution on Wednesday next.

Head-Quarters, St. John, November 9, 1808.

MILITIA GENERAL ORDERS.

The President and Commander in Chief deeply regrets the melancholy fate of Captain Clayton Tilton of Lancaster, who was shot by one of three Deserters from the 101st Regiment, while in the praiseworthy act of endeavouring to bring them back to their duty; thus ending his life with the same loyalty and zeal for His Majesty’s service which he had so frequently before manifested on many trying occasions.

The Commander in Chief is highly gratified by the promptness and resolution shewn by Adjt. John Campbell of the Charlotte County Militia, and the men under his command in apprehending the three Deserters abovementioned, and his Honor takes this public method of thanking Adjt. Campbell and his small party for their highly meritorious conduct on this occasion.

In addition to every other Reward for apprehending Deserters, Major General HUNTER has ordered ten guineas to be paid to the party of Militia for taking the above Deserters. By command of his Honor the President.

JOHN ROBINSON,

Dept. Adjt. General of the Militia."

The hanging, which took place on Wednesday 23rd November, 1808, perhaps provided an unexpected spectacle for the huge crowd which had come out. Hanged once is bad enough, but being hanged twice is no joke!!

"THE EXECUTION

Wednesday last, Baldwin and Lennan, two of the criminals who were sentenced on Friday the 18th inst. were executed, in the presence of a large concourse of people, and the whole of the Garrison, who were turned out upon the occasion.

The spectacle was awful and truly affecting. The criminals were completely and handsomely clad in white, and walked with a steady firm step, singing Hymns and Psalms from the Prison to the place of Execution; where they spent a short time in Devotion, and appeared fully reconciled to their fate. They were attended by the Rev. Mr. Bennett of the Methodist Society, to whom much praise is due, for his unremitted attention, during the whole of their confinement. The steady exemplary conduct of the Military deserves particular notice. We know how distressing it must have been to them to part, in this way, with two of their brother soldiers; and their patience was put to a severe trial, by the distressing accident of the breaking of both Ropes at the same instant, (immediately upon the removal of the stage) which brought the unfortunate Men to the ground, and occasioned a delay of upwards of half an hour:- during all which time nothing escaped from the soldiers but sighs!

McEvoy remains yet in confinement, under sentence.- What will be his fate can only be conjectured. It is probable his case has been submitted by the Judge to the King's Representative; and possibly his life may be spared. Between him and those who have suffered there was this difference - that they were actively engaged in the death of Capt. TILTON, and he was not, but was implicated in the guilt from being a partner in the Desertion."

The young Patrick McEvoy was eventually pardoned.

Sources: The Royal Gazette, 21.11.1808

The Royal Gazette, 28.11.1808

The Albert County Museum

This photo courtesy the Dianne Lyons’ network

Built in 1845 of cut stone with massive walls twenty-six inches thick, the Albert County Gaol at Hopewell Cape is an interesting and unique home for the Albert County Museum.

Barred windows

The dungeon complete with great steel bars at the window, three-inch thick iron – reinforced wooden door, ring bolt in the floor, and the cell block remain exactly as when constructed and as used for 112 years.

An eye-catching building on the grounds is the former County Court House

These photos courtesy the Dianne Lyons’ network

Built in 1904 to replace the original of 1846 which was destroyed by fire, the Court House is an interesting mixture of styles, dominated by Corinthian-styled pillars in a portico, from which one has a commanding view of the river. The interior is distinctive in that it includes a square room with an octagonal metal ceiling.

Prior to 1784 New Brunswick was part of the Province of Nova Scotia. In 1785 the newly formed Province of New Brunswick was set up into eight counties with what is now Albert County part of Westmorland. In 1846 Albert became a separate county with Hopewell Cape the seat of the municipal government. The municipal building constructed at that time housed the Albert County Museum from 1962 to 1965 when it was moved into the adjacent, and no longer needed for its original purpose, Albert County Gaol

The Albert County Museum is located at Hopewell Cape, on the Tidal Trail, Route 114, midway between Moncton and Fundy National Park.

Courtesy Wendy L Betts (New Brunswick Department of Municipalities Culture and Housing (N.B.D.M.C.H) )

IV

WILLIAM MASCULINE

AND THE

PEREGRINE WHITE

TRAGEDY

KING’S COUNTY 1810

We think nowadays of evidence being provided to show guilt beyond the shadow of a doubt; this case appears to be one which falls within that shadow. It is unfortunate that no newspapers could be found from King’s County at that early date, nevertheless the summary provided in The Royal Gazette is good, not verbatim, but a précis of the proceedings.

"On Tuesday last a Commission of Oyer and Terminer and Gaol Delivery was opened at Kingston in King’s County, at which His Honor Judge Chipman presided.

The Court was convened principally for the Trial of William Masculine, a Prisoner, charged with the Murder of Peregrine White.

A crowded audience listened, with great attention, to this very interesting Trial.

It appeared that the deceased was a man quite in the vale of years, very irascible, abusive, and vindictive; and that the prisoner was in the prime of life, and had, for upwards of twenty years, sustained the fairest character for industry, sobriety, and honesty, and possessed an obliging, mild disposition: That James Rogers, the Step-Father of the prisoner was also in the last stage of life, and also extremely abusive and vindictive; and that he and the deceased had for many years lived on farms adjoining each other, and had been constantly at variance. That the quarrels which led to the fatal accident originated with these two abusive old men, about a dog belonging to Rogers, which, upon barking at the deceased as he was passing, was lamed with a stone thrown at him: That a great deal of language grossly abusive passed between them in the hearing of the prisoner (then in Rogers’ house) who was eventually induced to step out and to try to put a stop to the altercation, more especially as Rogers was much intoxicated with liquor: That upon his advising the deceased to go home and not remain there abusing an old drunken man, the deceased instantly turned upon him with the most scurrilous and gross abuse, by both words and gestures, and not only upon him but also Mary Evans (the principal witness) to whom the prisoner was to have been married in a day or two: That the abusive language was returned by the prisoner and Rogers, and continued for some minutes between the parties, till the deceased at length damned the prisoner and said, if he had his gun he would blow the prisoner’s brains out; upon which the prisoner said where is my piece, and instantly ran into the house (at the distance of about four rods) and returned with it to the fence upon the opposite side of which, in the road, the deceased was standing; who immediately recommenced his abusive irritative language and gestures--mimicking the prisoner (who was lame) by limping, and daring him to fire; upon which the prisoner discharged the gun at him, and nearly the whole of the load of shot passed through his left leg between the knee and ankle: That the prisoner immediately returned to the house very much alarmed and distressed at the act he had committed, leaving the deceased in the road, who was instantly attended to, in the kindest manner, by Mary Evans, notwithstanding the abuse to her intended husband: That the deceased languished from the 22d September, to the 3d October, when he expired.

It did not appear that the prisoner intended to kill the deceased, but, as far as his intentions could be collected from all the circumstances, he meant to lame him only.

The feelings of the Jury (as well as the Court) appeared much interested for