The Damnation of John Donellan (18 page)

Such was the state of English law at this time that the role of defence counsel was not clearly defined. In 1781, cross-examination of witnesses was not consistent practice, and defence counsel could not address the jury or give a summing-up. However, perhaps most damaging of all to a defendant's case was that he or she was not allowed to speak in court. A defendant could only have a statement read out in court, a statement which had been prepared before the witnesses had been heard. So-called expert witnesses could also give opinions on the defendant's guilt: a point that was to prove crucial for Donellan.

The events as shown in the opening chapters of this book were portrayed from Anna Maria Boughton's point of view. Now her testimony, taken from the original trial transcript, will be compared with the version Donellan prepared for his lawyers and as he annotated it after the trial.

The contrasts both between Anna Maria's and Donellan's accounts, and between the case that Donellan had prepared and what little of that case was used, are remarkable.

If the odds were not already heavily stacked against him, the
presiding judge, Sir Justice Buller, presented the final insurmountable obstacle to Donellan. Not only had Buller opined in Warwick the week before that he thought Donellan was guilty, but he had an aggressively punitive reputation.

Francis Buller had been only thirty-two when he had been appointed to the bench in 1778 – the youngest judge ever to sit in British courts: Donellan now faced a man of his own age who had risen rapidly to high office and who was at the height of his intellectual powers. Buller was to preside over many high-profile trials in his illustrious career. However, a year after Donellan's trial he made a ruling that earned him a nickname for life which echoes down the centuries even now: Justice Thumb. In 1782, he ruled that it was permissible for a man to beat his wife providing that the stick used was no thicker than the man's thumb. A Gillray cartoon of November 1782 shows Buller selling conveniently sized sticks and saying, ‘Here's your nice family amusement for winter evenings', while in the background a husband beats his wife with the words ‘Murder, hey? It is Law, you Bitch! It is not bigger than my thumb.' Nor was Buller hesitant in handing out the death sentence: having himself had several sheep stolen from the flock on his Devonshire estates, he invariably hanged anyone found guilty of sheep stealing.

Buller was not physically imposing; an engraving by Francesco Bartolozzi shows a short man, with small hands of which the left fist is clenched. He looks to his left with a piercing, steady gaze – the same expression shown in the Gillray cartoon – and a rather weak, feminine mouth is offset by an aquiline nose and heavy, dominating eyebrows. Above a lavishly trimmed set of scarlet robes, a double chin is clearly visible.

Buller was born into a wealthy family in Crediton, Devon, in March 1746, and married the heiress to the nearby Churston estate, Susanna Yarde, in 1763, when he was only seventeen and his wife was twenty-three. Educated at Christ's Hospital, he was admitted to the Inner Temple in the same year as his marriage: he would remain passionately attached to the law – and, to all outward show, to his wife – all his life. Although he had married into money, Buller's own family was already well off. Downes House, where he
was born, owned over 5,000 acres of land in Devon and Cornwall which by the mid-1800s was generating an income of over £14,000 (more than £800,000 today) per annum; added to this, documents in the Cornwall Record Office show that Buller owned further property in London.

Despite all his wealth and reputation, however, Buller was uncomfortable with his life. ‘He was unhappy,' wrote the playwright Joseph Cradock.
⁴
‘He resorted too frequently to whist to divert himself from uneasy thoughts.' In
The Lives of Twelve Eminent Judges
Townsend commented: ‘Buller's life was disfigured by an appetency for political intrigue, and his somewhat unscrupulous use of borough influence for purposes of party … his many virtues were tarnished by an inordinate love of money and passion for high play.' Buller himself readily admitted his addiction to gambling; he claimed that his idea of paradise was to spend all day in court and all night at the gaming tables. (His sedentary existence was to be his ultimate downfall; after years of poor health, in June 1800 he suffered a catastrophic heart attack while playing a game of piquet, fell from his chair and died instantaneously, aged fifty-four).

In a contemporaneous set of memoirs, Buller was described as having ‘great quickness of perception … although perhaps his perception is sometimes too quick'. ‘It has exposed him to the charge of impatience and petulance very indecorous in a judge … Buller seems to possess the greatest inflexibility of opinion.'
⁵

But Cradock's
Memoirs
revealed something even more disturbing and pertinent to the coming trial. In them he writes of a meeting he had with Buller just a week before: ‘One of the last times I ever met him was on the day of his coming to Leicester at the house of an eminent physician there.' (There were not many ‘eminent' physicians in the area, aside from those who were to testify later against Donellan.) ‘At the Assizes, on the Sunday, we all dined at Nework's Leicester, and some gentlemen who were all to meet again next week at Warwick; the general conversation was Donellan, and his guilt was asserted by all.'

By
all
? One wonders at the identity of the ‘gentlemen'. Were some of them court officers? Was the ‘eminent physician' any of
those who had refused to examine Theodosius's body? Buller would not have sat down to dinner with tradesmen, but with men of property, his equals. Is it possible that the Earl of Denbigh shared the same table, or some of Anna Maria's richer tenant farmers?

It would be reasonable to assume that around the table sat the local Justices of the Peace: no JP would miss the opportunity to meet the famous Justice Buller. They would undoubtedly be the same men who had schooled Anna Maria Boughton in her evidence just days before. Her private tuition by the JPs was to become a scandal after the trial, but for now it was a secret only for the few. Cradock picks up on this. ‘The only doubt seemed to be,' he says, ‘that as Lady Boughton, the mother, was all but a fool, her evidence, which was necessary, might not be effective.' This would have been a terrible anxiety for the prosecution, whose case rested almost entirely on Anna Maria's testimony. A later commentary,
Celebrated Trials Connected with the Aristocracy
by the barrister Peter Burke, written in 1849, confirms, if not the stupidity, then at least the dullness of the leading witness. ‘Lady Boughton was not a very intellectual woman,' it notes kindly, so she had to be helped to give evidence in a coherent manner. Or, alternatively, in a way that would not incriminate her. Cradock adds, ‘I am sorry to say it, that Judge Buller's charge was imprudent, for it prejudged Donellan.'

It would have been a very unusual juryman indeed who would have been able to approach the trial now with anything like objectivity.

Proceedings began early, at seven thirty in the morning.

The indictment was read out: ‘poisoning by arsenic … two grams of arsenic … that he did put, infuse in and mix together with water into and in a certain glass phial bottle of the value of one penny … did put and in the place and stead of a certain medicine lately prescribed …' it droned on, at last coming to the point. ‘… Sir Theodosius Boughton did take, drink and swallow down into his body … and did die.'
⁶

John Donellan was asked how he pleaded.

‘Not guilty,' he replied.

An interesting legal point occurs here. Over and over again Donellan was accused of substituting laurel water for Theodosius's medicine. Indeed, great pains were taken to show that he might have distilled the laurel water himself, with the gardener testifying that laurel grew in the garden of Lawford Hall. But laurel water is not arsenic; it is prussic acid.

After Donellan's plea of not guilty, the jury was sworn in.

The indictment was opened by one of the counsel for the Crown, Mr Digby, who then passed the main drama over to his colleague, Mr Howarth.

Howarth spoke for over an hour.

Beginning with a description of how vile and underhand the use of poison was, he rapidly moved into a description of Theodosius, ‘possessed of a good constitution, affected by no indisposition that could endanger his life'. Donellan's motive was clear: the Boughton fortune had ‘induced the prisoner to plan and execute the abominable crime'. And he had to be quick, because Theodosius was planning, in the week of his death, to go and stay with his friend Fonnereau ‘til he came of age', that is, for eleven months.

Powell's treatment of Theodosius for ‘slight' venereal disease was described. Howarth stated correctly that the medicine was brought to Lawford Hall on the evening of 29 August, and that Theodosius went fishing at five o'clock. This leaves open the issue of who had access to, or took delivery of, that medicine. Howarth reported that ‘most of the menservants' were out with their master, while ‘Lady Boughton and Mrs Donellan were out walking for some hours in the garden'. Howarth then went on to say that in order to explain his ‘absence' all evening, Donellan claimed he had been fishing with Theodosius.

Howarth described Theodosius's death in detail: how the medicine was on the chimney shelf and not under lock and key; how Theodosius complained to his mother that the draught was ‘nauseous'; how Anna Maria smelled it herself, thinking it smelled like bitter almonds, and then gave Theodosius the cup again. Almost as soon as the medicine was finished, Theodosius ‘appeared to be in a very considerable degree of agony; his stomach heaved violently;
his eyes seemed much affected'. Lady Boughton ‘takes no further notice of him at that time'; she left the room and returned again in ten minutes to find her son ‘in the very agonies of death'. He died half an hour later.

As Anna Maria testified that she went into Theodosius's room at 7 a.m., that puts Theodosius's death at approximately 7.50 a.m. – according to Howarth.

Howarth now took the opportunity to say that poison was to blame. Theodosius was ‘a young man, having a good constitution, labouring under no disorder' and he fell ill immediately after taking the draught. ‘No man,' Howarth declared, ‘hearing these circumstances related, can for a moment doubt that poison produced these effects,' going on to say that learned men would demonstrate that the poison ‘certainly was laurel water'. However, a few sentences later he corrected himself. It was no longer a certainty but ‘a strong
probability
that the poison used was a distillation of laurel water'.

‘I shall show,' he continued, ‘that the prisoner at the bar was skilled at distillation; he was possessed of a still; he worked this still … I shall show that the prisoner was frequently in private locked up in his own room using a still.'

Next Howarth outlined Donellan's behaviour on the morning of Theodosius's death. He entered the room, he said, and demanded at once to see the medicine bottle. ‘The prisoner took the bottle down; he immediately poured water into the bottle, he shook it, he rinsed it; he then threw the contents of it into a basin of dirty water.' (This was not the version that Anna Maria had given in her second deposition to the coroner, the deposition that had forced Donellan's arrest.) Lady Boughton had objected, Howarth continued, saying, ‘For God's sake, don't touch the bottle!' This phrase was not in either of Anna Maria's depositions nor in her testimony in court.

Donellan, according to Howarth, took no notice. ‘The prisoner,' Howarth continued, ‘fearing lest by accident he might have taken up the wrong bottle, reaches down another from the shelf, pours water also into the second bottle, rinses it well, throws the
contents of that also into the basin of dirty water.' Worse yet, Donellan instructed the maid Sarah Blundell, ‘whilst the young man was lying in the agonies of death', to take away the bottles. Lady Boughton objected, and Donellan ‘was warm upon the subject; he insisted upon it; he pressed the woman to take them down.'

In neither of her depositions nor her testimony at the trial did Anna Maria say that Donellan was ‘warm upon the subject', or indeed that he had insisted with any amount of firmness. Howarth portrayed a man whose temper was raised; Donellan's account flatly denied this; Anna Maria's does not stress it. Here, however, Howarth was presumably referring to his own prosecution brief, which noted that ‘Donellan was angry with the maid that she did not make more haste'.

Howarth then moved on to Donellan's attitude once the apothecary Powell arrived. Already described as impatient, bullying and surly, Donellan apparently tried to impress on Powell that Theodosius had taken cold when he went fishing the night before, ‘and that cold occasioned his death'. Powell was then ‘suffered to depart' without being given the opportunity to explain the effects of the medicine or to inspect the bottles. He left the house ‘without having the bottle shown him'. This, Howarth declared emphatically, ‘is a circumstance which ought alone to decide the fate of the prisoner'. In fact, Powell did not testify that he was ‘suffered' to leave. He left of his own accord, and he had simply not asked to see the medicine bottle.

Donellan was then described going about Lawford Hall trying to persuade the servants that Theodosius had not been poisoned. The boy caught cold, he was supposed to have said; he had wet his feet while fishing; he had died of a venereal disorder. And as soon as Donellan had finished doing that, he had written to Sir William Wheler to tell him that the boy had died, in words ‘calculated to impress with the idea that the death was a natural one, and the result of a long illness'. Sir William's remarkable inactivity is skimmed over; but it was stated that it was not until Monday that he communicated ‘suspicions of poison' and asked for named doctors to inspect the body. Great play was then made by Howarth
that Donellan did not show the doctors the letter in which Wheler had mentioned poison. ‘Doctor Rattray and Mr Wilmer had no idea at all of the occasion of their being sent for.' In fact, when they asked Donellan why they had been sent for he replied, ‘For the satisfaction of all.'