The Damnation of John Donellan (29 page)

‘The hungry judges soon the sentence sign, and
Wretches hang that jury men may dine'

Alexander Pope,
The Rape of the Lock
(1712)

THE EVIDENCE CONCLUDED
, it was time for Buller to address the jury. Having warned them that they were to ignore any ‘false or cruel reports' that they may have read in the newspapers, he focused his opening remarks on the nature of circumstantial evidence. ‘It is all circumstantial evidence,' he conceded, ‘and in its nature it must be so, for no man is weak enough to commit the act in the presence of other person … a presumption which necessarily arises from circumstances is often more convincing and more satisfactory than any other kind of evidence … if the circumstances are such as when laid together bring conviction to your minds, it is fully equal if not more convincing than positive evidence.'

Then, having summed up the evidence, he said that he owed it to the jury and to the public at large to say what his own impressions were, but ‘you are not to adopt any opinion because it is mine'.

The first issue, he said, was whether Theodosius had died of poison. They had the evidence, he continued, of ‘a great number
of very able men in the physical line … they have no doubt that the death was occasioned by poison'.

He reprised Rattray's opinion that the appearance of the body was not due to putrefaction; he described his experiments and the ‘biting upon his tongue when opening the body of Sir Theodosius Boughton', but omitted to say that no other surgeon present felt the same sensation.

As regards Bradford Wilmer, he noted that the surgeon was not able to say how death had occurred, but drew the jury's attention to the fact that Wilmer was ‘now clearly of the opinion that Sir Theodosius's death was occasioned by the draught administered by Lady Boughton'. He noted that neither Wilmer nor Rattray were told by Donellan that poison was suspected; and added that both Parsons and Ashe (who had not been present at anything) testified that Theodosius had died of the draught and that Ashe had stressed that ‘he can attribute the effects and symptoms which have been spoken of to nothing but poison'.

Buller then turned his attention to John Hunter.

‘I can hardly say what his opinion is, for he does not seem to have formed any opinion in the matter,' he began. ‘I wished very much to have got a direct answer from Mr Hunter; but he says he can say nothing decisive.'

He then told the jury that, of all the learned medical men who had pronounced their views, four had decided ‘positively' that the deceased had died of poison and one had merely expressed a doubt.

This was not accurate. Ashe's opinion was positive, certainly; Parsons had said that the medicine had caused the death, and that laurel water would produce all the symptoms mentioned (which is not the same as saying that the draught
was
laurel water); Wilmer had said that the draught was to blame, but only after listening to Anna Maria, and not basing his view on any medical evidence he had observed; Hunter had stated that apoplexy might be the reason, and would not speculate on laurel water being in the medicine.

Bucknill, incidentally, was left out of the list because, despite
being in charge of the autopsy in the churchyard, he had not been asked any question at all about the cause of death, either by the prosecution or the defence. Bucknill, in fact, is something of a mystery character, having appeared, it seems, out of nowhere: his name does not appear on the Medical Registers of 1780 or 1783 despite him saying he ‘professed surgery' in Rugby.

Buller then covered the events of the evening of 29 August, saying that Lady Boughton had testified that Donellan had told her that he had been to see Theodosius fishing, a fact disproved by Samuel Frost. Donellan's version of the story – the walk to Hewitt's mill, and the visit of Dand and Matthews – had not been presented in court. Buller commented: ‘I can only say that it frequently happens that necessary, strange and contradictory declarations that cannot be accounted for, otherwise than by a fatality which attends guilt.' In other words, there was no explanation for Donellan saying that he had seen Theodosius fishing other than that a guilty man often concocts an unnecessarily detailed story to hide his tracks. But Donellan's
Defence
, of course, claims that he never made such a statement.

The morning of the death was considered next. Buller moved through Anna Maria's testimony sentence by sentence, describing how Donellan immediately asked for the bottles and washed them out. Buller was in no doubt of the motive: ‘Was there anything so likely to lead to a discovery as the small remains of medicine in the bottle; but that is destroyed by the prisoner.' Nothing was said of Anna Maria's second deposition to the coroner, in which she claimed that Donellan threw the contents of the bottles ‘upon the ground'. Buller moved on to the clearing of the room by Sarah Blundell: ‘Why was it necessary for the prisoner to insist upon having everything removed?' he asked. ‘Why should he be so solicitous to remove everything that might lead to a discovery?' Later in the morning Donellan, Anna Maria and Theodosia had met in the parlour, where Donellan explained to his wife about the bottles; Buller described this damningly as ‘a sudden thought, which occurred to him at the instant, as an excuse'.

The testimony of William Frost next came under scrutiny. Frost
told the court that Donellan had gone riding, and that there had been an arrangement for Anna Maria and Donellan to go together, but that he had taken Anna Maria's horse back into the stables where he was some ‘considerable time' before she appeared asking him to fetch Powell. Buller did not remark on the apparently missing minutes – at least half an hour – which are unaccounted for in Anna Maria's evidence. Instead, he brought up an issue which did not appear in any evidence presented to the court. Buller said: ‘For if Lady Boughton had entertained suspicion of the prisoner's having been in Sir Theodosius's room that morning and had communicated that suspicion to the prisoner, it is natural enough for him to call a person to speak …'

But did Anna Maria's evidence suggest that she suspected Donellan had been in the room? She was not asked that question, and she did not volunteer the information. If she had suspected Donellan of having been in the room either before she gave the medicine, or during the period when she left the room, she never said so. If she suspected Donellan of interfering with the medicine, it must have been before seven o'clock because, in her own words, she only left Theodosius for five minutes (five minutes in which Frost testified that Donellan was out riding) and, by her own admission, the medicine had already been given at that point.

So what was Buller referring to here?

Buller next moved to the subject of Donellan's letters to Sir William Wheler, in particular to the fact that he only showed Wheler's
third
letter to Rattray, Powell and Wilmer when they came to the house on the night of 4 September. Buller said: ‘They had heard of no suspicion of poison; they had never seen the first letter which Sir William Wheler had written to the prisoner; it will be for you to consider, whether by showing them the second letter only, in which nothing is said about a suspicion of poison, and keeping back the first, he meant to mislead the doctors.'
¹

Wheler's letter of 4 September was written after the Reverend Newsam had brought him news of the Earl of Denbigh's disquiet. It did indeed say that ‘the physic was improper' and ‘it is reported all over the country that he was killed either by medicine or by
poison … unless the body is opened … we shall all be very much blamed.' Indeed, Rattray did not see this letter: he only saw the one that Wheler sent later that day, and Buller was correct in saying that this one did not mention poison. Rattray said that Donellan was looking for another letter and took out only an envelope, but Rattray could not be bothered with ‘such little matters as these', and so did not press the matter. Neither did Wilmer.

But the letter that Rattray saw did specifically say that the body was to be opened. It also said that this was ‘to prevent the world from blaming any of us', a phrase which, if the doctors thought this was a routine autopsy, should have at least made them pause to ask what blame Wheler was talking about. According to Rattray's evidence, Donellan said that he had expected Wheler to come that evening, and that he also expected one or both of the doctors to see Wheler the next day. Therefore Donellan would have expected the subject of poison, about which ‘the world' was talking, to have been discussed.

Buller commented: ‘For what purpose was this letter [i.e. Wheler's first, about poison] secreted? If it were for the purpose of preventing the body being opened and of preventing the doctors from making a full and fair examination, it is then a very strong circumstance in the case.' But he also made the point that, if the jury thought that the first letter was sufficient for the doctors to realise the importance of an autopsy, and that Donellan did not try to ‘suppress the suspicions that had been entertained abroad', then they ought to weigh that in their decision.

Buller did at least raise the possibility here that the doctors had been called to an autopsy and had seen a letter asking them to carry it out. But how logical was it that Donellan alone could suppress their knowledge of the poison rumour, if it was being ‘entertained abroad'?

Had Donellan deliberately suppressed the first letter that mentioned poison? Why did he not mention it himself, if he could not find the letter? Or was this a ruse to suggest compliance while simultaneously hiding the letter?

The only other witness that night was the apothecary Powell,
and here again his somewhat peculiar behaviour is completely ignored by Buller in his address to the jury.

Powell had been with Sir William when Wheler wrote the first of his 4 September letters, the one that mentions poison (‘I expect Mr Powell every moment … Mr Powell is now with me') and had seen that Wheler had apparently accepted his word that the medicine was harmless. But he had not been with Wheler when the second letter was written. Was this the reason that he opened the second letter, even though it was addressed to Donellan? (Rattray testified: ‘Mr Powell, the apothecary, stood by a great table reading a letter; Captain Donellan turned it up, and saw the direction was to him. Mr Powell said, by mistake he had opened it.') What sort of ‘mistake' is this? Powell was not in his own home, so why would he assume any letter in Lawford Hall was addressed to him? He would have recognised Wheler's handwriting on the envelope because he had stood next to him watching him write the first one. Was he anxious about what Wheler had written to Donellan in the second letter? Or did he not trust Donellan to tell the truth?

Buller did not comment on Powell's involvement here and so did not thoroughly explore the issue of who obscured the topic of poison, or if indeed the doctors' contention of not knowing about poison was feasible.

The next subject was Theodosius's health. Here the failure of Donellan's defence became desperately obvious. Buller stated that, from ‘Carr's' (this presumably means Kerr's) evidence and Powell's, no mercury was ever given to Theodosius: ‘neither of them say a syllable about any mercury ever being given to him'; and it is perfectly correct that Theodosius's health was represented in court as being good, or that his illness was ‘trifling'. Buller passed over the matter fairly rapidly now, ignoring Anna Maria's evidence that Theodosius habitually took physic and had been ill ‘of a particular disorder', and that in 1777 and 1778 she had written from Bath that she was afraid that he was ‘in a bad way'. Similarly he did not remind the jury that Powell testified to having given Theodosius three draughts the week of his death: one on the Saturday, one on the Monday, and one again for 30 August. Why were three
prescriptions necessary if Theodosius only had a trifling complaint?

Buller reminded the jury next that the Reverend Newsam testified that Donellan had told him that Theodosius had a swelling in the groin and that he was a ‘mass of mercury and corruption'. Buller now asked if that were true, and remarked that there was no evidence either way.

The topic moved on to Bucknill's involvement, at which point Buller became more animated: ‘What!' he exclaimed when discussing Donellan's first refusal of Bucknill's autopsy. ‘In a case where suspicion of poison had prevailed!' He moved to the day of the funeral, when Bucknill was again rebuffed and told that Snow had given orders for the burial. ‘Why should not the prisoner call Snow to prove what passed between them?' he demanded. ‘Why did not he communicate to Bucknill the reasons given by Snow?'

Why indeed. Snow remains a mystery.

The final part of Buller's address to the jury wholly concerned Donellan's conduct. He asked why Donellan had behaved as he did at the coroner's court, pulling on Lady Boughton's gown and telling her afterwards not to answer questions she had not been asked; why Donellan had a still, and what it might have been used for; why he said in gaol that Theodosius had been poisoned, and then changed his mind; why he wrote the letters to Sir William Wheler in the way that he did, and why he concealed the second letter from the doctors. He also asked why Donellan claimed to have made a will that meant he would not benefit from Theodosius's estate, and then did not produce that will in court. Lastly, he commented that evidence given that Donellan protected Theodosius from various scrapes and arguments which were ‘at a period very distant' was not relevant to the present trial.

At many points in his summing-up Buller was scrupulously fair, weighing one piece of evidence against another and asking the jury to make up their own minds with the same reasoned objectivity; but the final part bears down heavily on Donellan and Buller's language becomes more negative. ‘He stopped her … he blamed her … ' Buller said of Donellan's relationship with Anna Maria at the coroner's court. ‘All the conversation respects the bottle,' he noted
when reviewing the death, ‘and not a word of anything which is likely to be of any use to Sir Theodosius Boughton though he is dying and at the last gasp.' Donellan's remarks to Francis Amos were, he said, ‘extraordinary'.