12 SCOTS TRIALS
"THE WIFE O' DENSIDE"
THE Reports of Proceedings in the High Court of
Justiciary from
1826 to 1829--the first instalment of that valuable series
contain two cases of note, by reason of the strange circum-
stances of the crimes charged, the importance of the legal
questions involved, and the eminence of the counsel engaged
in the defence. The year 1828 is conspicuous in the calendar
of crime as that which saw justice done upon William Burke,
who with his partner, Hare, had reduced murder, not indeed to
a fine art, but to a vulgar trade. His trial is matter of history;
but the fame of Mrs. Mary Elder or Smith, which had filled the
public mind since the preceding year till it paled before the
wider celebrity of the West Port expert, lingers but as a
tradition among the braes of her native Angus, in local ballads
of "The Wife o' Denside." Sir Walter Scott was interested
in her case. He attended the trial, and, as we shall see, has
recorded in striking terms his impressions of the prisoner and
his opinion of the verdict. It is here proposed to rescue the
memory of this "lost lady of old years" from undeserved
neglect.
Poisoning has never been popular in Scotland.
It is a
crime alien to the character and feelings of the people, and its
occurrence is relatively rare. The individual gifts of a Locusta
or a Brinvilliers, the collective genius of a race of Borgias,
find no parallel in Scottish annals. The poisoner commonly
appears in our criminal records as the protagonist of some
obscure domestic tragedy. Seldom, as in other countries, is he
actuated by the larger motives of ambition, the attainment of
place or power; and as his ends are petty, so the means which
he employs are curiously limited. The absence of scientific
[160]
data in the reported cases of early days makes it difficult to
tell what deadly drugs were used. Such crimes were often
libelled as being committed per intoxicationem--not in the
modern sense--coupled as a rule with sorcery or witchcraft.
But in later times the Scottish poisoner has clung with the
persistence of a fixed idea to arsenic, fortunately of all poisons
the most uniform in its operation and the most difficult to
disguise. From its first recorded use in a tentative way in
1649, to its finished application in the case of Madeleine Smith
in 1857, arsenic practically held the field, and has since
remained the favourite. This is doubtless due to the common
knowledge of its properties and the comparative ease with
which it can be procured in various forms. Bold spirits like
the late Dr. Pritchard and M. Chantrelle, essaying other
methods, have paid the penalty of their rashness.
The year 1827, with which we are now concerned,
saw an
epidemic of poisoning in Scotland, and three of the four persons
severally brought to trial during that period were charged with
compassing the death of their victims by arsenic. Despite the
strongest presumptive proof of their guilt, each of these con-
servative practitioners in turn escaped through the postern of
"not proven"; the fourth, misled by a taste for novelty and
tartar emetic was convicted. The marked reluctance of
Scottish juries to return a verdict adverse to the prisoner
upon purely circumstantial evidence in such cases, which by
their very nature preclude the possibility of direct proof, may
be noted in passing.
Mrs. Smith, who was forty-two years of age
at the date of
her trial, was the wife of a well-to-do farmer at West Denside;
in the parish of Monikie and county of Forfar. Her husband,
David Smith, was considerably her senior. Their family con-
sisted of two sons and two daughters. The lads helped their
father in the work of the farm; one daughter lived with her
parents, the other was the wife of the foreman. Two women
servants, Margaret Warden and Jean Norrie, lived in the house;
[161]
a third, Barbara Small, slept at the foreman's. Other servants
were employed about the farm whose names, excepting those of
two sisters, Agnes and Ann Gruar, do not concern us. The
farm of Denside is situated some six miles northward from
Broughty Ferry, on the uplands overlooking the estuary of the
Tay, and within sight of the smoke of Dundee. Here the
Smiths had lived for twenty years, enjoying the reputation of
respectable, thriving folk, whose prosperity was the ripe fruit
of industry and thrift. Margaret Warden, a girl of twenty-four,
was the daughter of a decent, hard-working widow who lived
at Baldovie, some distance from Denside. Mrs. Warden had
been. left in poor circumstances, with three young children, and,
in her own words, she was "greatly beholden" to a sister of
Mr. Smith for help in bringing up her family "after her man's
death." No doubt it was due to the good offices of this kind
friend that Margaret was engaged at Denside. How long she
had been in service there does not appear, but four years before
the time of which we write, when in her twenty-first year, her
condition was such that she had to give up her work and go
home to her mother's house. There in due course she gave
birth to a child. However painful such an occurrence must
have been to Mrs. Warden, she fully forgave her daughter and
undertook the charge of the infant, which she kept from that
time in her own home. Margaret's employers seem to have
dealt leniently with her fault; after an interval she returned
to Denside, and resumed her work as if nothing had happened.
It may be assumed that the father of this child was in no way
concerned with the later tragedy; at the trial his identity was
not disclosed.
About the end of July, 1826, Mrs. Smith made
the un-
welcome discovery that her youngest son, George, was "courting"
Margaret Warden with a view to marriage. The feelings
of a woman who had toiled early and late for her family's
worldly advancement and had raised their fortunes to a posi-
tion of credit and respectability, may be imagined. Margaret's
[162]
unhappy earlier lapse enabled Mrs. Smith to treat her as the
principal offender, and she denounced the unfortunate girl in
terms which might have excited the envy of that master of
invective, Mr. John Knox. Margaret was of a passionate and
impulsive temper; probably she returned George's affection, and
hoped by marriage with him to retrieve the painful episode in
her past, and the language which her mistress applied to her
was more than she could bear. She left Denside forthwith, and
went to her mother's house. Mrs. Warden seems to have
induced her to go back, or she herself may have thought that
she had been too hasty; anyhow, she returned to Denside.
What happened there we do not know, but a fortnight later
she again went home. Perhaps Mrs. Smith had bestowed upon
her some further epithets from the vocabulary of the great
Reformer. This time the mother believed the rupture per-
manent, and on returning from her work in the fields a week
later she was surprised to find Mrs. Smith closeted with her
daughter. Mrs. Smith informed her that she had prevailed
upon Margaret to go back to Denside. Mrs. Warden. accom-
panied her visitor to the road. When they had left the house
Mrs. Smith remarked, "She wished she [Margaret] was not with
child." Mrs. Warden discreetly replied that she did not know;
"it was best known to herself." Whereupon Mrs. Smith
"spoke of her daughter's ill behaviour "--doubtless in forcible
terms; prophetically observed that if things were as bad as
she supposed it would be "a trial" both to herself and Mrs.
Warden; and said she was then on her way to Dundee, and
"would get something for Margaret" there. That night
Margaret Warden returned to Denside to meet her fate.
From the evidence adduced at the trial, it is manifest that
Mrs. Smith desired to get the girl into her own hands, in
order that she might, by criminal means, rid her family of the
threatened disgrace. It is likely that the luckless Margaret
yielded to this infamous suggestion.
The kitchen at Denside contained a box-bed,
one of those
[163]
unwholesome cupboards, now happily obsolete, in which our
sturdy forefathers were nightly wont to enclose themselves,
in defiance of the laws of health. The closet in question
was shared by Margaret Warden with her fellow-servant,
Jean Norrie. Since Margaret's return to the farm her
mistress had kept her constantly employed in the fields,
ordering her to eat little, work hard, "and take what she
had given her." At ten o'clock on the night of Tuesday, 5th
September 1826, the two girls were sitting by the kitchen
fire, resting after the labours of the day before going to bed,
when Mrs. Smith came in with "something in a dram glass"
and a teaspoon in her hand. The glass was nearly full of
a thick white mixture which resembled cream of tartar.
Mrs. Smith made no statement regarding its contents, but
said that she had been taking some of it herself, and would
let the girls taste it. She dipped the teaspoon into the
mixture, and held a little of it to Jean Norrie's lips, and
handed the remainder to Margaret, who swallowed it without
remark. She then gave her a lump of sugar, and left the
kitchen. Jean had sufficient of the stuff in her mouth to
know that, whatever it was, it certainly was not castor oil.
She barely tasted it, and suffered no ill effects. The girls
then went to their box-bed, and silence fell upon the farm.
In the night Margaret Warden was taken seriously ill, but
she did not rouse her bedfellow, who slept till morning.
Jean Norrie says in her evidence that when
she awoke
next day (Wednesday the 6th) she found her companion up
and trying to light the fire. Margaret "grew sick," and she
had to help her back to bed. She then went out to her
work in the fields, and on coming in to dinner at mid-day
found Margaret still in bed, "very ill." She returned to her
work, and when she got home again in the evening about
six o'clock, she asked the invalid if her mistress had been
"owning her" (attending to her) during the day, to which
Margaret answered, "Rather too weel! " So ill did the girl
[164]
appear, that Jean told her she feared she was dying. "Some
folks would be glad o' that," was the significant reply. They
slept together that night, and next morning (Thursday, the 7th)
Margaret was much worse, her symptoms being those usual
in cases of arsenical poisoning--sickness, thirst, internal pain,
etc. Her mistress and Jean attended to her throughout the
day, and sat up alternately with her during the night, She
asked frequently for her mother, saying if she did not see her
soon "she never would"; and Mrs. Smith, in Jean's presence,
bade her "wheesht and haud her tongue, till she saw how her
physic worked." Jean had previously been told by Mrs. Smith
that she had given Margaret castor oil that day. On Mrs. Smith
prescribing whisky as likely to allay the internal inflammation,
Jean plainly told her that she thought Margaret "had got
eneuch o' that or some ither thing, she could of tell what,
for sik a purgin' an' vomitin' she never saw"; and the patient
called to her from the bed that her mistress had already
"burnt her inside with whisky." Mrs. Smith then explained
that she had exhibited that stimulant because Margaret "had
such a wheezle in her breath," but Jean continued sceptical:
"she kent ither things hersel'." When alone with the girl,
she warned her to take nothing further from her mistress.
It is obvious from this episode that Jean Norrie well knew
Mrs. Smith had been drugging Margaret for a particular
purpose, but she had no worse suspicion of her mistress
at the time.
Early in the morning of Friday, the 8th, Mrs.
Smith,
yielding at length to the girl's repeated request; sent Barbara
Small to Baldovie to summon Mrs. Warden to her daughter's
deathbed. Barbara told Margaret of her errand, "she seemed
pleased-like," and bid Barbara "tell her sister to go to the
Ferry for the doctor." This was the first the mother had
heard of the illness, but she at once sent a message for
Dr. Taylor of Broughty Ferry, and herself hastened to
Denside. Cholera morbus and typhus fever were prevalent
[165]
in the district, and it was a natural assumption that
Margaret had been attacked by one or other of those fell
diseases. Mrs. Warden found her daughter crying out in
great pain, and complaining that she was "burning." She
remarked that her hands were cold, and the girl sadly
replied "they wad be caulder yet." In her mother's pathetic
phrase, "she took hersel' for death." At one o'clock that
afternoon Dr. Taylor arrived at Denside. Mrs. Smith met
him at the door and took him into the parlour. She told
him that her servant had been ill since Tuesday night,
and correctly described the symptoms. He asked if she
had given her any medicine, and Mrs. Smith replied, nothing
but some castor oil. He then asked why a doctor had not
been sent for sooner, and she said that she had not thought
there was any danger, adding that the girl was "a light-
headed cutty," on account of which she had not paid her
the attention she might otherwise have done. She also said
that she understood the girl was enceinte, and asked if he
should know if that were the case, and whether the sickness,
etc., would not have the effect of inducing a miscarriage.
The doctor interrupted her questions by desiring to see the
patient. He then went into the kitchen, where he found
the girl at the close of a fit of sickness. Dr. Taylor
describes her appearance as follows:--"Her countenance was
sunken and ghastly; the whole body, and particularly the
hands and feet, were covered with a cold perspiration; there
was no pulse at the wrists or temples, and very indistinct
pulsations over the heart--about 150 in a minute. I tried
to rouse her a little by speaking to her, and asked when she
was taken ill. After the question was twice put, she replied
that she was taken ill on Tuesday night with vomiting,
purging, and pain in the bowels, particularly in the side; I
understood her to mean that there were the first symptoms."
Her mother was at the bedside during the interview. Having
otherwise satisfied himself of the correctness of Mrs. Smith's
[166]
diagnosis of the girl's condition, Dr. Taylor continues : " I
found her in such a state of exhaustion, her replies so difficult,
and her case altogether so hopeless, that I did not think it
right to put any more questions." He therefore returned to
the parlour and told Mrs. Smith that the girl was dying.
She received the information without any expression of feeling,
and remarked that she had sent for a medical man to take the
responsibility off her own shoulders. She resumed her former
inquiries regarding the probable effect of the continued
sickness, observing that "if the gudeman kent, it [Margaret's
condition], he would be like to tear down the house about
them." Evidently, for her son's sake, she had concealed the
girl's situation from her husband. Dr. Taylor then left the
house, having formed the impression. that Margaret Warden
was dying of cholera. He had at the time no reason to
suspect that she had been poisoned.
The last words of the dying girl, uttered
in presence of
Mrs. Warden, Jean Norrie, and Ann Gruar, are highly
important. She called Norrie to the bedside, and holding
her hand, said, "Jean, ye ken wha is the occasion o' me
lyin' here?" "Ay," replied the other, "will you forgie
them?" "Yes," answered Margaret, "but they'll get their
reward." When left alone with her daughter the mother
asked if anybody had hurt her or given her anything, to
which she replied, "Jean Norrie will tell you all about it,"
and being further pressed, she said, "My mistress gave me
---," but was unable to complete the sentence. At nine
o'clock that night Margaret Warden died. The mother
remained at Denside till the following morning to prepare
the body of her daughter for the grave. Nothing further
was said by anyone at that time regarding the cause of
death. Mrs. Warden seems to have been afraid to ask;
Norrie was afraid to speak. On her return home on Satur-
day, the 9th, however, the widow told her other daughter
what Margaret had said, bidding her keep it a secret, but
[167]
did not then tell her son--"because it could not bring her
[Margaret] back, and would bring disgrace upon the Denside
family." She afterwards explained her silence as due to
consideration for Mr. Smith's sister, who had befriended
her, as already mentioned.
Mrs. Margaret Smith, the farmer's sister-in-law,
calling
at Denside on the Saturday, was told by Mrs. Smith that
Margaret had died of "the fever," that the reports as to the
girl's condition were unfounded, and with reference to some
discoloration of the corpse, that the doctor had said all who
died of "the fever" were of that colour. The same day
Mrs. Smith informed Barbara Small that Margaret had died
of water in the chest, and that Dr. Taylor had told her so.
These statements were all equally false.
On Sunday, the 10th, the second day after
the death,
the body was buried in the parish churchyard of Murroes,
in a plain coffin, with the inscription, " M. W. aged 25."
But the secret of Margaret Warden's death was not to lie
hid in her humble grave. Within a week, from some
unknown source, there arose and quickly spread throughout
the countryside a rumour that the dead girl had been poisoned
by her mistress to avert the consequences of a liaison with
her son. Information was lodged with the authorities, and
on Saturday, 30th September, twenty-two days after death,
the body was exhumed by warrant of the Sheriff, and a
post-mortem examination was made by Drs. Johnston and
Ramsay of Dundee, assisted by Dr. Taylor. The internal
organs, which were found to be remarkably well preserved,
bore obvious traces of acute inflammation, and certain portions
were removed for further examination and chemical analysis.
Meanwhile the Procurator-Fiscal continued his inquiries into
the case, and as the result of these Mrs. Smith was summoned
for judicial examination before the Sheriff at Dundee. It
being alleged on her behalf that she was too unwell to be
brought so far, Dr. Johnston was requested by the Sheriff to
[168]
visit her and ascertain if she was in a fit state to be examined.
He reported in the affirmative, and the examination accordingly
took place on 2nd October at Four Mile House; a wayside
inn situated between Denside and Dundee. She went, unwill-
ingly enough, in a coach, the doctor, her husband, and one
of her sons accompanying her. On the way, Dr: Johnston
told them, in reply to a question, that arsenic had been found
in the body, whereupon Mrs. Smith remarked that "the girl
had vomited so much that she wouldn't have thought any
thing could have remained in her stomach." At the trial
objections were taken to this examination on the ground that
Mrs. Smith was then in an hysterical condition, and unfit to
be examined. How the evidence stands with regard to this
point we shall see later.
The more important statements in Mrs. Smith's
declaration
are as follows :--Margaret Warden took ill on the night between
Tuesday and Wednesday, 5th and 6th September, and on the
Wednesday, Thursday, and Friday "vomited and purged much."
She denied that she had put to Dr. Taylor on his visit any
questions such as he described, or that she was aware of the
girl's condition until she heard it reported after the death. A
fortnight before Margaret's illness she had given her a dose of
castor oil. On the Monday or Tuesday before the death, in
presence of Jean Norrie, she gave her, in some "lozenger wine "
in a dram glass, another dose of castor oil, which she had
bought on the previous Friday from one Mrs. Jolly at Dundee.
She "never had any poisonous article about her house." If
such were used by persons employed to destroy rats there, they
furnished it themselves, and she had nothing to do with it. The
last time anyone was so employed at Denside was about two
years before. In reply to the Sheriffs final question she stated,
"That the declarant got no drug or other such article from any
other person than Mrs. Jolly on the Friday preceding the death
of the girl." The Sheriff, in whose presence the declaration
was
emitted, afterwards deponed that no objection was made to her
[169]
examination either by herself or by her husband, who was
present the whole time, nor was anything said as to her mental
condition. "During her examination," says the Sheriff, "she
was perfectly calm and collected till she came to the last
question, when, after it was thrice put by me and thrice
answered, she became agitated, gasped, and fell back. I immedi-
ately started up, thinking she was unwell, when she suddenly
started up too, and said nothing ailed her." The significance
of this incident will afterwards appear. As the result of
the examination, Mrs. Smith was committed to the prison of
Dundee.
A night in the cells may have stimulated
the prisoner's
memory, or the line which the fiscal's inquiries had taken may
have been communicated to her by her friends; be that as it
may, next morning she sent to the Sheriff a request that she
might be re-examined, "as she wished to tell the truth," and
had certain corrections to make in her former statement. In
her second declaration, dated 3rd October, the prisoner said she
now remembered that on the Friday before Margaret Warden's
death "she got from Mr. William Dick, surgeon in Dundee,
something to put away rats." A fortnight earlier she had sent
to Mr. Dick by one of his daughters a message, asking him to
give her "something" for that purpose. When she got the
article she was not told that it was poison--"there was
some writing on it, but she does not know what it was." As
instructed by Dr. Dick, having mixed the article with meal in
presence of Margaret Warden in the kitchen, she put it on the
Monday following into "the holes and craps of the walls in a
loft above the bothy." She did not tell anyone that she had
done so. Denside was then infested with rats ; in the byre
they were "like a drove of cattle." The farm servants com-
plained of the noise they made. In spite of her laudable
desire for accuracy it afterwards appeared that the prisoner's
recollection of the facts was still imperfect.
On 12th October Mrs. Smith was fully committed
for trial;
[170]
FRANCIS
JEFFREY
and on 12th December she was served with an indictment, the
diet being fixed for the 28th of that month before the High
Court of Justiciary at Edinburgh. The prisoner, availing her-
self of the provisions of the Act 1701, had elected to "run her
letters," whereby the prosecutor was bound to proceed against
her within a limited time. The best possible legal advice had
been obtained for her, Francis Jeffrey and Henry Cockburn,
since equally famous in law and letters, and then the twin
ornaments of the Scots bar, being retained in her defence.
When the diet was called on 28th December the Lord
Advocate, Sir William Rae, who appeared for the Crown, at
once moved for a postponement. He had only learned, he said,
the day before the nature of the defence to be made, viz. that
the deceased had committed suicide. He understood that forty
eight witnesses were to be adduced in support of that defence,
which was so contradictory of the evidence laid before him that,
notwithstanding the trouble caused thereby to all concerned, he
felt it his duty not to proceed with the case until he had an
opportunity to investigate the grounds upon which that defence
rested. The Court accordingly continued the diet against the
prisoner until 12th January 1827. The length of the pannel's
list of witnesses was such the Crown had not completed their
precognition by that date, and a further postponement was
necessary, the trial being finally fixed for 5th February. All
this delay was the result of the tactics of the prisoner's advisers
in springing upon the Crown at the last moment the defence
of suicide.
On Monday, 5th February, after two false starts,
the trial
began in earnest. The Lord Justice-Clerk (Boyle) and Lords
Gillies, Pitmilly, Meadowbank, Mackenzie, and Alloway, being
the whole Lords Commissioners of Justiciary, occupied the
bench; the Lord Advocate, assisted by two Advocates-Depute,
Robert Dundas, and Archibald Alison (the future historian of
Europe), represented the Crown; while Jeffrey and Cockburn,
with a junior, Menzies, appeared for the defence. As the case
[171]
had excited intense public interest, particularly in medical and
legal circles, the court was crowded to the doors when the
proceedings began at nine o'clock. The indictment charged the
prisoner with administering to Margaret Warden on Tuesday,
5th, and Thursday, 7th, September 1826, within the house of
Denside, arsenic mixed with water or some other substance,
which she was induced to swallow as medicine intended for her
benefit, and was thus wilfully murdered by the prisoner. An
objection taken to the relevancy was repelled, the libel was
found relevant, a jury was balloted and sworn, and the following
special defences were lodged:--
1. The pannel does not admit, but on the contrary
denies,
that the deceased died by poison.
2. If, contrary to her belief, it is established
that poison
was the cause of her death, then the pannel maintains that in
all probability it was taken by the deceased herself, who had
recently before threatened to destroy herself, or her unborn
child, and was of a temper, and in a situation, which made the
execution of this threat not unlikely.
3. At any rate the pannel solemnly denies
that any poison was
administered by her. She was under no conceivable temptation
to commit such a crime, and it can be proved by unexception-
able witnesses that her general character renders its commission
incredible.
4. The pannel gave the deceased no drug or
substance under
any false pretence whatever.
5. The pannel pleads Not Guilty.
The examination of witnesses for the Crown
commenced and
had proceeded until half-past five in the afternoon, when one of
the jury was seized with convulsions and was carried out of
Court insensible. Professor (afterwards Sir Robert) Christison,
then the "unacknowledged standing medical counsel for his
Majesty's interest," as he elsewhere describes himself, happened
to be in the witness-box at the moment. Along with Dr.
Mackintosh, who was also in Court, he attended the juryman
[172]
in another room. After the lapse of an hour Dr. Christison
returned to Court, and, having been already sworn and under
examination when the accident occurred, was examined as to
the juryman's condition. Dr. Christison stated that the fit
was epileptic, and that the man's memory was affected. In his
opinion it was unlikely that the juryman would be able to
return to court that night and go through the rest of the trial.
Dr. Mackintosh corroborated. The Court held that in these
circumstances it would be improper to insist on: the juryman's
return to the box, and the Lord Advocate moved that the diet
be continued and the pannel recommitted to take her trial
before a new jury. In view of the novelty and importance of
the point, Jeffrey objected to this course being taken without
full argument, and wished the matter kept open in the mean-
time to allow of consideration and discussion. The Lord
Advocate replied that if this course were adopted he would
not consent to the discharge of the present jury; the criminal
letters were nearly run, and he acted under great responsibility.
The Court, without prejudice to any objections on the part of
the pannel to the further proceedings in the case, discharged
the jury, continued the diet till the following Monday at ten
o'clock, and warned the reporters of the press to abstain from
printing any of the evidence already heard.
When the Court met on 12th February all the
Lords of
Justiciary were present, and the Lord Advocate, in view of the
importance of the matter in hand, was accompanied by the
Solicitor-General (Hope), this being the first occasion on which
the Court had to determine the legality of resuming a trial
interrupted by the illness of a juryman. As the debate upon
this point occupied no less than seven hours, considerations of
space forbid even a summary of that interesting discussion.
The professional reader will find it set forth at length in Syme's
Justiciary Reports. The Lord Advocate having moved that a
new jury be empanelled, Cockburn objected to the competency
of continuing the trial upon the same indictment. Dundas,
[173]
who replied for the Crown, maintained that the prosecutor
was entitled to proceed with the case. Jeffrey supported the
objection; the Solicitor-General said he had nothing to add to
what had been so ably stated by Mr. Dundas. Each of the
six judges delivered a separate opinion in favour of the Lord
Advocate's contention, and the Court pronounced an inter-
locutor finding the whole of the former proceedings after the
interlocutor on the relevancy null and void, the pannel still
subject to trial upon the present libel and by a jury to be
balloted for of new, and continuing the diet against her till
the following Monday at nine o'clock
As a relief from these technicalities
the following extract
from Sir Walter Scott's Journal will be welcome to the
general reader. Under date 6th February, Sir Walter
writes: "Dined at Sir John Hay's, where met the Advocate
and a pleasant party. There had been a Justiciary trial
yesterday, in which something curious had occurred. A
woman of rather the better class, a farmer's wife, had been
tried on the 5th for poisoning her maid-servant. There seems
to have been little doubt of her guilt, but the motive was
peculiar. The unfortunate girl had an intrigue with her son,
which this Mrs. Smith was desirous to conceal, from some
ill-advised puritanic notions, and also for fear of her husband.
She could find no better way of hiding the shame than giving
the girl (with her own knowledge and consent, I believe)
potions to cause abortion, which she afterwards changed for
arsenic, as the more effectual silencing medicine. In the
course of the trial one of the jury fell down in an epileptic
fit, and on his recovery was far too much disordered to permit
the trial to proceed. With only fourteen jurymen it was
impossible to go on. But the advocate, Sir William Rae,
says she shall be tried anew, since she has not tholed an
assize. Sic Paulus ait--et recto quidem. But, having been
half-tried, I think she should have some benefit of it, as far
as saving .her life, if convicted on the second indictment.
[174]
The advocate declares, however, she shall be hanged, as
certainly she deserves. But it looks something like hanging
up a man who has been recovered by the surgeons, which
has always been accounted harsh justice." This contingency,
fortunately or otherwise, did not arise. Rae was the son
of Lord Eskgrove, the eccentric judge whose peculiarities
of voice and manner, as Lord Cockburn relates, Scott
was wont to mimic, to the delight of the Parliament
House.
When the Court met again on 19th February,
a new
jury was empanelled, and the Lord Advocate adduced his
evidence. The first two witnesses called for the Crown
were Mr. Kerr, the Sheriff, and Mr. Baxter, the Procurator
Fiscal, who proved the prisoner's declarations, which the
Lord Advocate then proposed should be read. Jeffrey,
however, objected, and offered proof that the prisoner was
unfit to be examined at the time they were emitted, so the
matter was reserved till the close of the Crown case. The
next witness was Jean Norrie, upon whose evidence we
have already drawn freely in narrating the history of the
case. Jean deponed that when Margaret Warden returned
from her mother's house for the last time, she told witness
that her mistress had called at Baldovie and insisted on
her going back to Denside, saying, "She [Mrs. Smith] had
warran' she was with child; but she would have something
for her, be the cost what it would." Margaret added that
her mistress might as well have told her at once that it
was to do her harm. She spoke frequently of things she
was getting from her mistress. A fortnight before her
death, "on the preparation Saturday, the day before the
Monikie Sacrament," she told witness that her mistress had
just given her a drink, alleged by Mrs. Smith to be "whisky
that the laddies had left," adding that "if it was something
to do her harm, it was an awfu' thing for her [Mrs. Smith]
to gang where she gaed the morn," i.e. to Communion. When
[175]
Mrs. Smith heard "the clash of the country " regarding
Margaret's mysterious illness and death, she told Jean that
"she did not know she [Margaret] was with child, and did
not know there was any poison in the house, except some
king's yellow that she had hained [kept] to poison the flies."
King's yellow, it may be explained, is sulphuret of arsenic.
This was probably some of the "stuff" left with Mrs. Smith
by a professional rat-catcher, as after-mentioned. Jean stated
that Mrs. Smith had repeatedly asserted after the death that
the dose she gave Margaret on the Tuesday night was merely
castor oil to relieve her breathing. It appeared that the
deceased did suffer, not unaccountably, from shortness of
breath. Jean, who had been at Denside since Martinmas
1825, and milked the cows in the byre, saw no rats there,
except one after the prisoner's arrest, nor did she ever hear
of poison being laid for them. The deceased never said
anything of having taken poison, and witness found nothing
of that kind about her bed after her death. The cross-
examination by Jeffrey was mainly directed to establish
the fact that Margaret Warden had threatened to take her
own life. Jean Norrie remembered that the deceased, some
time before her death, while they were lifting potatoes in
the fields together after the general harvest, had said she
was unfit for her work, "and wad surely do some ill to
hersel'." She had also said on another occasion that she
would be obliged to go away somewhere before the term,
but did not know where, "as her mother would not let her
come within the door." Jean maintained that she did not
think the girl serious, "for she was always a rash creature
of her words." She did not actually see her sick on the
Wednesday, but found traces of sickness on her clothes on
the Thursday morning. In reply to the Court, Jean stated
that she never heard of Margaret buying or having any
drugs except some pills which she said she got from her
mistress after her last return to Denside. Mrs. Smith
[176]
seemed "very good friends" with the deceased while attending
to her and giving her drinks.
Barbara Small and Mrs. Warden repeated what
they knew
of the girl's illness and death. Barbara deponed that so far
as her knowledge went Margaret was neither melancholy
nor low-spirited, and never expressed any intention of doing
herself harm. On the Thursday she was so ill that she
could not even retain a drink of water, and said that "her
inside was burning." That afternoon Mrs. Smith told her,
in witness's hearing, "she would be better when the castor
oil had wrought." Barbara had been at Denside since
Whitsunday 1826, but never saw any rats nor was she
ever told that poison had been laid for them. A hen and
chickens were kept in the loft above the bothy. In cross
examination, Jeffrey elicited that she had seen no sickness
on the Wednesday, that Margaret took "a flour cake and a
mutchkin of milk" for her dinner that day, and that
Mrs. Smith treated the girl kindly during her illness. Mrs.
Warden corroborated Jean Norrie's account of her daughter's
dying words. She said that she and Margaret were quite
reconciled after the birth of the child, and denied she had
ever said anything to indicate that she would not have
taken her daughter in, had she returned home. The reader
will remember that the girl had in fact been living with
her mother, who was aware of her condition, until Mrs. Smith
induced her to go back to Denside. In cross-examination,
Mrs. Warden gave her reasons for remaining all night at
Denside, as before related.
Ann Gruar or Brown, wife of one of the
farm servants, also
spoke to Margaret's last conversation with her mother. In
reply to Jeffrey, she said that she was shearing in the fields
with the girl on the Monday before her death. Margaret
remarked that she must leave Denside, as she was not able for
her work. She did not know where to go, but could not go to
her mother; she "wad put an ill end to hersel';" The witness
[177]
was so shocked by this remark that, ejaculating "God help
me!" she went to another rig. She spoke of the matter at the
time to a woman in the field (who was not called as a witness),
but was unable ever to refer to the subject again, though
she often wished to do so--"The Almighty had taken the
power from her." Mrs. Smith was always very kind to
Margaret. In re-examination, the witness said she had never
mentioned this conversation in the field to anyone but the
invisible woman. Margaret gave no details of how she pro-
posed to execute her purpose of self-destruction.
Dr. Dick of Dundee, a most important witness
for the
Crown, deponed that he was an old friend of the Smith family,
and had attended them professionally for many years. On
Friday, 1st September 1826, Mrs. Smith called at his house.
"You have forgot my poison for rats!" said she. "What
poison ?" he asked. "The poison I sent the message about, I
was so annoyed with rats," replied his visitor. The doctor
said he had received no such message, and did not keep poison;
but if it would oblige her, he would procure some for her. He
then went out and got an ounce and a half of arsenic from
a neighbouring chemist. The quantity was not weighed.
"Arsenic" was written on one side of the packet and "Poison"
on the other. He handed it to Mrs. Smith, told her it was
arsenic poison, and warned her to be very careful in using
it. In reply to Cockburn, Dr. Dick said he had known the
prisoner for forty years. She was of a humane character.
She had suffered from hysteria twelve years before. Mr.
Russell, chemist, Dundee, spoke to selling an ounce of oxide
of arsenic, marked as above, to Dr. Dick on the date men-
tioned. Mrs. Jolly, referred to by the prisoner in her
declaration, deponed that Mrs. Smith, shortly before her
arrest, consulted witness about her health, and bought an
ounce of castor oil for her own use. Several other witnesses
spoke to points of minor importance, and two of the farm
servants who slept in the bothy said they had neither heard
[178]
rats in the loft, nor did they ever complain to Mrs. Smith
of being disturbed by them.
The medical evidence, though lengthy
and elaborate, must
be mentioned briefly. A verbatim report thereof, with notes
and commentaries, was communicated by Professor Christison
to the Edinburgh Medical and Surgical Journal, No. 91, where
it may be studied with profit by the professional reader. "It
embraces," writes Dr. Christison, "two very different questions;
First, the soundness of the prisoner's mind when she underwent
her examination and prevaricated so much; arid Secondly, the
cause of Margaret Warden's death--whether she died of poison?
--whether she took poison on Tuesday?--whether what she took
on Tuesday was the fatal dose?--whether the poison she took
was the same with that procured a few days before by the
prisoner? etc." With regard to the first question Jeffrey, as
already said, had objected to the admissibility of the pannel's
declarations, and was allowed to adduce evidence in support
of his contention that she was at the time unfit to be examined.
Upon this point Dr. Alexander, surgeon in Dundee, stated that
he had attended the Smith family for five or six years. He
was called in to see Mrs. Smith on 1st October 1826, the day
before her arrest. She was suffering from a violent nervous
attack which he treated as such with antispasmodics. When
he left her at five o'clock she was not in a fit state to be exam-
ined as a person accused of a crime. Temporary loss of memory
was a common consequence of such an attack. He saw her
next day in jail after her examination, and found her not
thoroughly collected even then. Between these two occasions
it was impossible she could have been perfectly recovered. He
never saw her in a similar state before. Mr. Crichton, surgeon
in Dundee, deponed that some time in December, 1826, he
visited the prisoner in jail, and found her in convulsions and
foaming at the mouth. He had no suspicion at the time that
she was feigning illness, so did not apply any test to settle that
point. It is difficult to see the bearing of this gentleman's
[179]
testimony upon the prisoner's state of health in the preceding
October. Rebutting evidence was gived by Dr. Johnston, to
whose account of the circumstances in which the examination
took place we are already indebted. At Four Mile House he
asked his patient if she was any worse for the journey, and she
replied that she was not. She was in a perfectly fit state
to be examined at that time. He saw her after the examina-
tion ; there was no change in her appearance. Jeffrey
was then heard in support of his objection, after which
the Court, without requiring the Lord Advocate to reply,
found that the declarations were admissible and that it was
for the jury to judge what weight should be attached to
them.
With regard to the cause of death and the
several questions
connected with the administration and effects of arsenic, the
result of the medical evidence was generally as follows:--As to
the cause of death, Dr. Taylor, who when he saw the deceased
on her death-bed had formed the opinion that she was dying of
cholera, stated that from the symptoms, the examination of the
body, and the analysis of the contents of the stomach he had
now no doubt that she died of poison, and that the poison
was arsenic. Drs. Ramsay and Johnston, who along with Dr.
Taylor had conducted the autopsy and the subsequent chemical
tests, deponed that arsenic was detected in various parts of the
alimentary canal, but particularly in certain yellow particles
found in the stomach, and that the result of the inspection and
analysis led them to infer that the deceased died of poisoning
with arsenic. Jeffrey's cross-examination was directed to show-
ing that the doctors' diagnosis was wrong, and to casting doubt
upon the reliability of the tests employed; but as their validity
was endorsed by Professor Christison, and the results confirmed
by that gentleman's independent analysis of other portions of
the viscera, the evidence for the prosecution remained unshaken
upon this point. As to the administration and effect of the
arsenic, however, there was some difference of opinion among
[180]
the Crown doctors. There was no direct. evidence of the
deceased's symptoms on the Wednesday being so violent as
those which commonly follow the taking of arsenic, and she
was proved to have had a pint of milk and a scone for dinner
that day. Dr. Ramsay held that the fatal dose was the "castor
oil" given by Mrs. Smith on the Tuesday night, and that the sus-
pension of symptoms, though remarkable, was not unprecedented.
In Dr. Christison's opinion death was occasioned by a dose taken
later than Tuesday and more than a day before death, probably
thirty-six or forty-eight hours. It will be remembered that on
the Thursday Mrs. Smith spoke of having given the deceased
"castor oil" again that morning, and bade her wait "till she
saw how her physic worked." With regard to the nature of the
poison found in the body, both oxide and sulphuret of arsenic
were detected by Dr. Christison, who considered that the oxide
might either have been converted into the sulphuret in the
stomach by a chemical process after death, or administered during
life in the form of king's yellow. Drs. Fyfe and Mackintosh of
Edinburgh gave expert evidence for the defence. Dr. Fyfe
thought Dr. Christison's explanation of the generation of the
sulphuret of arsenic found in the stomach scarcely admissible;
he rather thought it had been swallowed in that state. The
prisoner, however, had king's yellow in her possession, as we
know from her own admission to Jean Norrie. Dr. Mackintosh
maintained that the symptoms of cholera and poisoning with
arsenic were the same, but on cross-examination he admitted
that he believed the deceased had died of arsenic.
Nine other witnesses were called for the defence.
Two
daughters of Dr. Dick spoke to receiving from the prisoner a
message for their father, which they forgot to deliver, asking
him "to make up some powder for the rats." They were on
a visit to Denside at the time, and the request was made
in presence of Mrs. Smith's two daughters, Jean Norrie, and
Margaret Warden. Andrew Murray, rat-catcher, said he had
been employed to destroy rats at Denside some three years
[181]
before. He left "medicine," arsenic, in case they should return.
He was there again professionally in 1825 at the Mill of Affleck,
occupied by Mr. Smith, a mile and a half from Denside. Mrs.
Smith complained of rats, and he left some more of "the same
stuff" with her. He had recently visited Denside by request
of the prisoner's agents. He then saw no rats, but found traces
of "the small black Scots rat, and mice." James Millar, fore-
man at Denside, son-in-law of the prisoner, said he had seen
rats at Denside, but none since the preceding Whitsunday,
except one which he killed after Margaret Warden's death.
William Stoddart, a local elder, said he dined at Denside on
3rd June; Mrs. Smith then complained of rats, and said she
must get some "medicine" for them; "what the man had left
was spoilt." Thus the "droves" of rats so graphically described
in the prisoner's declaration were reduced to one dead specimen
of the species. With reference to the alleged threats of suicide
by Margaret Warden, Agnes Gruar, sister of Ann Gruar, a
Crown witness, deponed to overhearing what passed between
Margaret and her sister in the field on the Monday before the
girl's death. It is remarkable that sister Ann in her evidence
did not refer to the presence of Agnes at the time. Ann Lees,
formerly servant at Denside, spoke to a conversation which
she had with Margaret Warden in January, 1826. Margaret,
referring to her past experience, remarked that rather than
face another such misfortune. "she would put away wi' hersel',"
whereupon witness philosophically pointed out that "the best
o' folks might get into a scrape o' that kind." Mrs. M'Haffie,
an itinerant vendor of "little things about the country," said
she slept in the barn at Denside two or three weeks before
Margaret's death. This lady gave a highly-coloured version of
a scene in which the girl disclosed her condition, saying that
she (Margaret) had got "gross usage" from her mother on a
former occasion, rather than submit to which again she would
put an end to herself. The witness having exhorted her to
repentance in moving terms, Margaret replied that if she (the
[182]
hawker) disclosed her state to anyone "she would put an end
to herself before to-morrow morning." The weight attaching
to the testimony of these two witnesses is lessened by the
fact that the one spoke to a date some five in months before
the situation contemplated by Margaret arose, and that about
the time referred to by the other the girl, whose condition
was well known at Denside, actually lived with her mother
for eight days, and only. left her home at the urgent solicita-
tion of the prisoner. Robert Esson, merchant, Broughty Ferry,
deponed that on the Monday or Tuesday before Warden's
death a small boy came to his shop and asked for twopence
worth of arsenic, which he did not supply. This closed the
evidence for the defence.
The Edinburgh Evening Courant (22nd
February 1827), in
commenting on the trial, gives us a wonderfully vivid glimpse
of the prisoner's calm and thrifty mind: "After the lights were
brought, one of the candles placed near Mrs. Smith; was exposed
to a cross-draught and ran down on one side, on observing which
she very coolly at different times lifted the candle and turned
it to the other side."
At eleven o'clock at night the Lord Advocate
rose to address
the jury. His speech was a closely-reasoned and, one would have
thought, convincing argument on behalf of the Crown. With
reference to the unprecedented situation which had arisen
during the former trial, he remarked that what had happened
was an advantage to the pannel, as nearly the whole of his
proof had been disclosed. The first question was: Did Margaret
Warden die of poison ? Of that there could be no doubt. The
second question was: By whom was it administered? From
the whole tenor of the defence they must come to one conclu-
sion, either that she poisoned herself or was poisoned by the
prisoner. Norrie was his leading witness: her means of know-
ledge and the manner in which she gave her evidence entitled
her to belief. It was an answer to one part of the defence that
the girl, throughout her illness, cried constantly for her mother.
[183]
The conversation between mother and daughter, as proved by
the mother and two other witnesses, went to the very root of
the case. These words used on death-bed, by a person who knew
she was dying, excluded all idea of suicide. Dr. Christison
had said that the non-appearance of early symptoms did not
absolutely preclude the possibility of poison on Tuesday night;
but even if it did, poison was given subsequently, and given
by the pannel, for the girl was in bed, and there was no poison
in the house except in the pannel's possession. It was proved
that Mrs. Smith did give Warden something on Thursday, but
from the evidence of Dr. Taylor and her own declaration it
appeared that the symptoms dated from Tuesday night. Dr.
Christison admitted that if that were so, it would alter his
view. With regard to the motive for the crime, they would
see from the whole evidence that the pannel, in spite of her
most suspicious denials, knew of Warden's condition and looked
upon it as likely to bring disgrace on the family and to excite
her husband's indignation. She plainly wanted to procure
abortion, and probably she was led on step by step to the
commission of this crime. She had the means of death in
her possession, and the fact that she obtained it openly was
immaterial, if her alleged reason for doing so was false. After
examining the evidence as to the presence of rats at Denside,
the Lord Advocate said he had been informed that the species
of which the rat-catcher alleged he saw traces was extremely
rare in Scotland. All the evidence contradicted the pannel's
statement that rats were there in droves and were complained of
by the servants. He next dealt with the prisoner's declarations,
and said that her denial of having had poison and her retraction
next day carried conviction of her guilt to his mind. Her
conduct and conversation with Dr. Taylor, her misstatements
and denial of facts, her whole behaviour throughout, led to the
same conclusion. On the question of suicide, he pointed out
that it was not the first time this unfortunate girl had found
herself in such a condition, so it was necessary to allege cruelty
[184]
on the part of her mother to account for her determination to
take her own life. The jury would judge from the appearance
and proved conduct of the mother whether such a state of
things had existed between them as would drive the daughter
to that fatal extremity. The two Gruars never mentioned the
alleged conversation in the field to anyone, even when the girl
became seriously ill. If it were argued that the pannel was only
guilty of an attempt to procure abortion, the word "arsenic "
alone was a sufficient answer; no one could use that without
a deadly purpose.
Jeffrey began his speech for the defence at
one o'clock
in the morning. We may marvel in passing at the endurance
of our mighty forefathers; the case had been in progress
since 9 A.M. the day before. The great resources of that
famous reviewer and judge must have been taxed to the
uttermost to save his client's life, and we may assume that
he left nothing unsaid which could be urged in her behalf.
If she was guilty, said he, she deserved death as a most
foul and detestable murderess. Yet they were asked to believe
that she, having neither motive nor provocation, committed
a crime altogether incredible from its extreme atrocity.
The symptoms of the deceased were, he contended, those of
cholera, and there was nothing except the result of the
analysis to exclude the belief that she perished under that
disease. He suggested that the tests employed were unsatis-
factory, and that the Crown experts might be mistaken.
"He had a great respect for science; but there were
uncertainties, blunders; and it was the pride of one age to
rear up theories to be trampled down and triumphed over by
the next." But assuming arsenic was the cause of death, he
submitted that there was no proof of administration on either
Tuesday or Thursday, and therefore, as the prosecutor had
failed to prove the specific guilt charged, the pannel was
entitled to acquittal. Dr. Christison had said that the dose
of Tuesday could not have been the cause of death, no human
[185]
being could lay his hand on anything like poison being given
on Thursday, and it was not enough for the prosecutor to
say, "Oh, I have proved a poisoning somewhere about that
time, and I am entitled to a verdict." The previous
character of the deceased, her sense of the forlorn situation
in which she was, acting on a violent and hasty temper, and
the repeated expression of a settled purpose to deprive
herself of life, were an answer to the alleged improbabilities
of her committing suicide. There was no evidence that the
pannel had assurance of the girl's condition, and an immense
interval lay between a purpose to procure abortion and the
destruction of a human being by a process of slow and
deliberate torture. He maintained that the circumstances in
which the pannel acquired arsenic inferred her innocent
intention, and he argued that there was proof of the presence
of rats at Denside. Had Margaret Warden believed that
her mistress had poisoned her, she would have cried aloud
for vengeance on the head of her inhuman destroyer. Her
words, "You know who is the occasion of me lying here ?"
probably had reference to George Smith or to her mother, of
whose harsh conduct she had complained. It was natural
that the unhappy girl should not wish to go down into the
grave with the additional stain upon her memory of having
perpetrated her own destruction. They could not believe the
mother; it was incredible that she would have remained in
that house all night if she really thought her daughter had
met her death at the hands of that woman. In estimating
the credit to be given to the pannel's declarations the jury
would not deal so lightly as his learned friend had done with
the proof of her incapacity from illness, and if they thought
she should not have been examined they would throw the
declarations aside. In view of the character and conduct of
both parties, and bearing in mind the testimony to the
kindness and benevolence of the pannel, was suicide or
murder the more probable explanation of Margaret Warden's
[186]
death? In a case so involved in mystery, he would not ask
for a triumphant acquittal; they would be warranted in
finding the pannel not guilty, but he demanded a verdict of
not proven.
The Lord Justice-Clerk commenced his charge
at three
o'clock in the morning, and did not finish until half-past five.
It is said that the jury, having risen when his lordship began,
were not told, as was usual, to sit down again, and so remained
on their feet during the two and a half hours to which the
judicial comments extended. As they had been already
engaged upon the trial for eighteen consecutive hours their
case was grievous, and one need hardly be astonished at any
verdict at which, in such trying circumstances, they might
arrive. His lordship observed that this was a case of
circumstantial evidence in which there were only two points
of law--(1) The objection to the mode in which the charge
was drawn. The prosecutor having charged two acts; he
could not prove a greater number; but as to the time, he
was not confined by the terms of the indictment to Tuesday
and Thursday. (2) The objection to the declarations. These,
by the unanimous judgment of the Court, were held to be
admissible, but their credibility was left to the jury. He
could not concur with what had been said upon this point
by the pannel's counsel. It was impossible that a declara-
tion could have been taken with greater caution. The first
question for their consideration was the proof of the corpus
delicti--Did the deceased die of poison, and was that poison
arsenic? After reviewing the medical evidence, his lordship
thought there could be no doubt of that. The next question
was of the pannel's guilt. His lordship, having gone over
all the leading facts of the evidence on both sides, observed
that they would consider whether the evidence, upon a full,
fair, and enlarged view of the whole of it, satisfied their minds
that arsenic was administered by the prisoner at the bar.
They would not strain it against her, and if it did not carry
[187]
conviction to their minds, they would give her the benefit of
any doubt. But if they could not reconcile the accounts,
and thought there was no sufficient motive for the deceased
poisoning herself, it was their duty to act accordingly.
They would also consider if it had been sufficiently proved
that Margaret Warden was her own murderess. The evidence
of what she said was before them, and they would particularly
attend to the conversation between her mother and herself on
the day of her death. Keeping that in view, he thought the
probability of her having committed suicide a very strong
proposition to press upon them in the manner in which it
bad been pressed. If they believed arsenic to be the cause
of death, everything turned upon the question--By which of
the two was it administered ? They would decide. On the
conclusion of his lordship's address the Court adjourned till
two o'clock that afternoon.
"The trial of Mrs. Smith," says the Courant,
"from the
nature of the case and the repeated delays which took place,
excited from the beginning the deepest interest, which increased
with the progress of the proceedings. During the whole of
Monday and Tuesday till two o'clock, when the verdict was
given in, the crowd was excessive. Not only the Court-room
but the Outer House, the Lobbies, and the Parliament
Square were filled with crowds of persons anxious to hear
the result; and though the weather was intensely cold, yet
they remained on the streets during the whole night, and at
two and three o'clock in the morning every door was as
closely besieged as at ten o'clock on the preceeding morning
of Monday."
On Tuesday, 20th February, when the Court
met, the jury
returned the following verdict:--"Unanimously find the
libel Not Proven." The Lord Justice-Clerk, in discharging
the jury, remarked that it was their verdict, and he had no
observations to make. The prisoner was then assoilzied, and
dismissed from the bar, and the Court rose. We learn from
[188]
the Courant that, "to avoid any insult or violence from the
crowds assembled in the Parliament Square, Cowgate, head of
Libberton's Wynd, and other places, whose aspect was rather
threatening, Mrs. Smith was conveyed by her friends to the
Lock-up House, as a temporary asylum," from which it may
be gathered that the verdict was unpopular. On that date
Sir Walter Scott records in his Journal: "At Court, and
waited to see the poisoning woman. She is clearly guilty,
but as one or two witnesses said the poor wench hinted an
intention to poison herself, the jury gave that bastard verdict,
Not Proven. I hate that Caledonian medium quid. One who is
not proven guilty is innocent in the eye of the law, It was a
face
to do or die, or perhaps to do to die. Thin features, which had
been handsome, a flashing eye, an acute and aquiline nose, lips
much marked, as arguing decision and, I think, bad temper--
they were thin and habitually compressed, rather turned down
at the corners, as one of a rather melancholy disposition.
There was an awful crowd; but sitting within the bar, I had
the pleasure of seeing much at my ease; the constables
knocking the other folks about; which was of course very
entertaining."
Lord Cockburn, in his Circuit Journeys,
writes: "Lockhart
mentions Scott as having gone to see my old client, Mrs. Smith,
who was guilty, but acquitted, of murder by poison. The case
made a great noise. Scott's description of the Woman is very
correct. She was like a vindictive masculine witch: I remember
him sitting within the bar, looking at her. Lockhart should have
been told that as we were moving out, Sir Walter's remark
upon the acquittal was: `Well, sirs, all I can say is, that if
that woman was my wife, I should take good care to be my
own cook!"' This was written by Cockburn in 1838, when
he was reading the last volume of the famous Life, in which
Lockhart had incorporated the passage from the Journal quoted
above.
Thus it will be seen that the reader who ventures
to doubt
[189]
the soundness of the verdict does so in good company. If
every prisoner's counsel kept a diary, and published it in
the cause of truth, the labours of the historian would be
agreeably lightened, and Pilate's eternal question might some
times find an answer.
[190]
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