The first murder trial on the River St. John, 1786
by W.O. Raymond
For the particulars contained in this article the writer is indebted to Sir John C. Allen, Chief Justice of the province.
David Nelson and William Harboard, two disbanded soldiers who lived in the parish of Queensbury about twenty-seven miles above Fredericton, were arrested in May 1786 for shooting an Indian named Pierre Bonwah (Benoit). They did not deny the shooting, but sought to excuse themselves by denying any intention to kill.
Their statements have been preserved and probably contain all the acts which came to the knowledge of the authorities. They were examined before Col. Edward Winslow and Col. Isaac Allen on Wednesday the 24th, of May the shooting having occurred the previous Saturday. These gentlemen acted in the capacity of Justices of the Peace for the County of York -although Allan was also a judge of the Supreme Court.
The prisoner Nelson stated as follows:
"Last Saturday, the sun about a half an hour high, my comrade William Harboard and I went to the river to catch some fish. After being there a little while I heard dogs by the house after our hogs. I dropped my pole and ran to the house for my firelock, when just above the house I found two dogs gnawing one of my hogs which they had killed, when the dogs saw me they ran, and I fired at them. I spoke to William Harboard and desired him to fire which he did, and killed one of the dogs. I then desired Harboard to go with me and see if the other hogs were missing; we went and could not find any. I then said, ’the hogs must be taken into a boat, whoever owns the boat must have the hogs.’ We then went to the shore and discovered some Indians about a quarter of a mile up the river. We beckoned to them to come to, and called on them to stop. He answered, ’No, no–you have killed my dog.’ I repeated to him to stop and said ’you have my hogs.’ He then pushed away across the river which confirmed us in the opinion that he had the hogs in the canoe. William Harboard then said ’Let me fire over his head; may be he will hear the balls and come to on which both of us tried, but without any design or intention of killing or wounding the persons in the canoe. I then loaded up and fired a second shot for the same purpose. We then went again in search of the hogs, and found all but the one which we supposed was in the canoe.
David x Nelson
The examination of Harboard was substantially the same.
This unfortunate occurrence caused great excitement, not only among the Indians but also among the white settlers on the river, as will appear by the following letter written by Col. Winslow to Hon. Ward Chipman at St. John.
Fredericton, 26th, May 1786
My dear Chip:– The inclosed letter to the Governor with the examinations contained therein will explain to you a transaction which has been the source of great concern to our friend and myself. You will peruse the papers, seal the letter to the Governor and present it; and I expect of you that you will in our behalf urge the absolute necessity of the attendance of the Chief Justice [Hon. Geo. Duncan Ludlow].
The Indians on the one hand are clamorous for an instant decision. The multitude (I mean the people of the country) cannot reconcile themselves to the idea that the two men of fair character should be sacrificed to satisfy the barbarous claim of a set of savages. They are almost persuaded to a man that the prisoners had no ill intention. In this situation you will naturally suppose that we have had an ardous task to keep them quiet. We have assured both parties that the men shall be tried fairly and, if guilty, that they will be punished. We have told them that the chief justice of the province must attend and that he will set off as soon as he receives the information from us.
For fear of accidents I wish when you deliver the Governor his letter that you would, if necessary, suggest the peculiar situation of Col. Allen. The whole corps of Indians are encamped around his house, and their rudeness has already distressed his family and made them unhappy. He has lately made a contract with them for a lot of land and they think they have a right to call on him whenever they please. This event has increased their familiarity and I believe that if they had an idea that he possessed authority to decide in the present case they would press him to a peremptory decision, and if it was not agreeable to them they might render the situation of the family very uncomfortable. I am not apt, you know, to anticipate evils, but I really suspect that the Indians would be very troublesome on such occasions.
These considerations induce me to wish ardently that the chief justice will come and that he will come immediately. I know Allen will not offer any of these reasons; it is therefore doubly my duty. Impress 'em strongly on the Governor.
And now, Chip, let me tell you once more that I think you should come to this country on some public occasion. Can a better opportunity offer than at present? The prosecution is a matter of natural expectation on the one side and of great concern on the other. Either the Attorney or Solicitor General must and ought to attend. It will gratify your friends excessively if you will attend. Allen authorizes me to tell you that he has business of consequence to engage you in.
There are a variety of other reasons why Judge Ludlow and yourself should come, don’t fail.
Allen's gown and band is at your house: his coat and waistcoat at Judge Putman's; pray don't forget 'em, he's very anxious about 'em.
Yours, Ed. Winslow
At the time the above letter was written both Governor Carleton and Chief Justice Ludlow resided in St. John. The Supreme Court sat there until May 1787 when for the first time it met in Fredericton.
On the 13th June 1786 the court opened at Fredericton for the trial of the prisoners Nelson and Harboard, Chief Justice Ludlow and Judge Allen being on the bench. The prisoners on being indicted for killing the Indian pleaded "not guilty." Ward Chipman as solicitor general conducted the prosecution; the prisoners were not defended by counsel it not being the practice at that time to allow counsel to persons on trial for capital offences except to argue questions of law.
The following persons composed the jury:– Cornelious Thompson, Joseph Harrison, George Fox, Isaac Penson, George B. Rodney, Charles Mathewson, Jacob Blacker, John Jouett, Xenophon Jouett, Josiah Parker, William Gerard, Francis Stephenson. Only three witnesses were examined, one whom was Col. Winslow, who had a magistrate assisted in taking examination of the prisoners and he was probably called upon to prove their statements and that they we made voluntarily. No Indian was called as a witness, although the squaw of Bonwah was with him in the canoe when he was shot.
In those days there were no unnecessary delays in the administration of justice. The prisoners were both found guilty of murder and sentenced by the Chief Justice to be hanged on the 23rd of the month, just ten days after the opening of the court and only a month after the commission of the offence. It is very probable that the insecurity of the county gaols in early days had much to do with the summary execution of criminals.
Daniel Nelson was executed but Harboard was pardoned. A petition to that end was signed by Captains Lemuel Wilmot, Frederick DePlyster and Eueas Shaw who were members of the grand jury. It was probably shown at the trial, or such was the reasonable inference, that it was the second shot fired by Nelson that killed the Indian. Harboard having only fired once was innocent of the actual killing.
Jonathan Sewell (afterwards Chief Justice of Quebec) wrote to Ward Chipman from Fredericton on the 6th of July "Poor Harboard has been out of his senses. When they told him he was reprieved, he replied that he had suffered what was worse than death, and, was perfectly indifferent about his execution. He is now at liberty and has returned to his former habitation."
The impression prevailed that if Nelson had not been executed the Indians would have had revenge upon the settlers; but seeing that justice was done they were satisfied, and were afterwards for the most part peaceable and well behaved. The effect of this trial upon the mind was seen some years later. An Indian called Sapior was tried in October 1798 before the Chief Justice and Judge Allen for the murder of one William Edwards and was found guilty and executed. One of the witnesses against him was an Indian, who was examined through an interpreter, also an Indian. The examination of the prisoner and his statements taken before two magistrates of the county, was read to the jury at the request of the court and by consent of the counsel for the crown. The proceedings in the case of this trial have not been preserved, we know however that Edwards was a soldier belonging to the regiment at the time stationed in Fredericton and was killed by the Indian near the river Nashwaak.
The St. John Gazette of the 9th November contains the following paragraph:
"We learn from Fredericton that Soupier the Indian, having been tried and found guilty of murder of Edwards the soldier, was executed on Friday last (Nov 2nd) pursuant to his sentence. He died wholly impenitent, but confessed before his execution, that he had murdered two other white men previous to the crime for which he suffered."
Poor fellow there was not very much allowed him to prepare for death, the sentence having been pronounced on a Tuesday and the hanging taking place the Friday following. But such was the custom in the olden time. The Indians generally admitted the justice of the sentence.
Source: Woodstock Dispatch, 13 November 1895
Note: See also, Joseph Wilson Lawrence, The Judges of New Brunswick and Their Times [1905-07] ed. D.G. Bell, (Fredericton: Acadiensis Press, 1985), 61-64. According to this source, the condemned prisoner Nelson was denied the right to speak to a clergyman before being put to death