‘Suspicion is to be distinguished from proof – a thousand suspicions do not form one proof. Suspicion may form a proper ground of accusation, but never of conviction’
S. M. Phillips, Famous Cases of Circumstantial Evidence (1873)
A HUNDRED MILES FROM LAWFORD HALL, the news of Theodosius’s death was received not with horror but with elation. Poston Hall, now known as Poston House, is a Palladian mansion set in glorious rural Herefordshire midway between the county town of Hereford and the Welsh border; in 1780 it was the home of Theodosius’s second cousin, Edward Boughton, the son of Shukburgh Boughton and the grandson of Catherine Shukburgh.
Edward was the family black sheep, though as the elder boy was fond of giving advice to his vastly more responsible younger brother, Charles. Edward, who was living openly with his serving maid Sally, was a passionate man at odds with his family, who variously described him as ‘an odd animal’ and a ‘damned prig’. A portrait of Edward shows a mild-looking, handsome young man who seems wistful rather than disagreeable. He was, however, constantly in debt to Charles, who worked in a government post in which he had rapidly gained promotion. The uncomfortable debt between the two might explain Edward’s excitement as expressed in the following letter.
On 1 September, two days after Theodosius’s death, Edward wrote to Charles: ‘I have just received from Caldecott the wonderful news of Sir Theodosius Boughton’s death and shall set out immediately for Warwickshire.’1
The satisfaction was shared by Edward’s mother Mary. On 24 September she also wrote to Charles: ‘I shall sincerely rejoice at any acquisition of Fortune yr Brother may now have gain’d …’ – evidently thinking better of Edward now that he seemed to be richer.
In addition to the baronetcy, the Shukburgh descendants were convinced that Theodosius’s entire estate, including Lawford Hall, would also become the property of Edward.
It is not known exactly when Edward arrived in Warwickshire. Like Sir William Wheler, Theodosius’s guardian, Edward’s presence at the funeral is not recorded. Nor is it known if he attended the autopsy in the churchyard on 9 September.
A coroner’s inquest was begun on the same day as the autopsy, in the house of the parish clerk of Newbold-on-Avon, John Parker. It was Saturday afternoon when the coroner, Robert Fox, took ten depositions.
The first deposition was from a 23-year-old miller from Rugby called Thomas Hewitt, who swore that he had known Theodosius for ‘upwards 3 months’. A friendship between a tradesman and a baronet was unlikely; the exact nature of the relationship and its origins are unknown. One thing is certain, however: Theodosius gave Thomas Hewitt a task that he did not entrust to any member of his family or servant at Lawford Hall. Hewitt swore on oath that in mid August Theodosius had asked him to buy some ‘Occuli Indicus Berries’. And the person who had sold him them was none other than Mr Bucknill, ‘a surgeon from Rugby’. Hewitt had then boiled the berries in water, mixed them with spirits of wine and put them into a small phial and delivered them to Theodosius, who had ‘put them into his pocket, from which time the examinant knows not what is become thereof’.
‘Occuli Indicus Berries’ are now more commonly known as Cocculus indicus. The fruit of a climbing shrub indigenous to eastern India and the Malay archipelago, if boiled and distilled, the berries produce picrotoxin, a powerful convulsive poison.
Cocculus indicus is prescribed in homeopathic medicine today as a stimulant and convulsant to help cure motion sickness and general weakness; but in 1780 it was a known remedy for the effects of not only TB but also mercury poisoning – a feeling of stiffness or paralysis in the back and legs; sleeplessness; night sweats; nausea and vomiting. Theodosius did not ask Powell or indeed any medical man to distil the mixture; the logical conclusion to be drawn from this is that he did not want his family or the family apothecary to know how much his self-medicated mercury had affected him.
It was later quoted in the prosecution brief at the trial that the mixture had been ordered by Theodosius to ‘kill fish’. However, quite why a deadly poison like this was necessary in addition to the arsenic that Theodosius already used to lace fish in order to kill rats was not explained. Thomas Hewitt was not called to give evidence at the subsequent trial.
The next coroner’s deposition was taken from Anna Maria Boughton. In it she testified that Theodosius had ‘for a considerable time preceding … his death’ taken various medicines sent by Powell. She said that she had gone into Theodosius’s bedroom at 7 a.m. on 30 August and given him Powell’s medicine, which she had, she said, poured into a basin. There had been a large quantity of sediment at the bottom of the phial and the mixture had a ‘very offensive and nauseous smell’. Her son had complained that he would not keep it down, but then he appeared to go back to sleep, and so she went out of the room and left him. Five minutes later she came back to find Theodosius ‘with his eyes fixed, his teeth set, and the froth running out of his mouth … He expired a few minutes afterwards.’ She said that she called John Donellan to the room. He asked her for the phial, put some water into it, swilled it and poured the whole lot, including the sediment, into a basin; then he put his finger into the liquid and tasted it, saying that it had a nauseous taste.
Her final remark was that Mr Powell had shown her a bottle of the same mixture which he had prescribed to Theodosius, but that the smell of the mixture that Theodosius actually took that morning was ‘very different’.
The third deposition was from Thomas Powell, the apothecary, who testified that on 29 August he had sent to Theodosius a mixture of fifteen grains of jalop, fifteen grains of rhubarb, twenty drops of spirits of lavender, two drams of simple syrup and two drams of nutmeg water mixed together with an ounce and a half of pump water.
The next deposition was from Sarah Steane of Long Lawford, who simply stated that she had been sent for to lay out Theodosius and that ‘He seem’d and appeared in every respect the same as other corps’; next was William Frost (the coachman), who said that Theodosius appeared to be in good health on the evening preceding his death.
The sixth deposition was by Bradford Wilmer, the surgeon, who gave an account of his and Dr Rattray’s visit to Lawford Hall to examine Theodosius’s body. He explained that, owing to the body’s putrid state, they had decided that no cause of death would be ascertained by opening it up. Wilmer testified that he had also attended the open-air autopsy, and gave a detailed account of the appearance of the internal organs. The stomach contained less than an ounce of a thick brown fluid which they had taken out and put into a basin, but this fluid contained ‘no grittiness or any metallic particles’. The lungs were very inflamed and putrid and in some parts black; and on each side of the lungs there was ‘about a pint of extravasated blood in a fluid state’. Wilmer concluded his deposition by saying that Powell’s mixture would not have caused Theodosius’s death, and that, significantly, ‘it was impossible to tell what occasioned the deceased’s death.’
The seventh deposition was by David Rattray, a ‘doctor in physic’ from Coventry who concurred with Wilmer, saying that they had decided on 4 September that ‘nothing conclusive could be acquired from the dissection of the body, being so putrefied.’ He agreed with Wilmer’s account of the open-air autopsy, but added that ‘the stomach a good deal inflamed, but the bowels immediately surrounding, more particularly to the kidneys, black, full of blood, and in a soft state’. His deposition differed from Wilmer’s in one crucial respect. He testified that Powell’s prescribed medicine could not have caused death but that, having heard Lady Boughton’s account, ‘it seemed to him that from such account and the symptoms of the deceased after taking the medicine, that the same was probably the cause of his death’ – meaning, presumably, that poison had been substituted for Powell’s draught.
Bernard Geary Snow, a ‘surgeon of Southam, Warwick’, made the eighth deposition, in which he said that he had been present at the autopsy and agreed with Rattray and Wilmer’s accounts. He gave no opinion as to whether the mixture in the phial was the cause of Theodosius’s death. The ninth deposition was by Samuel Bucknill, ‘surgeon’. As the depositions were drawn up following a series of questions posed by the coroner, it is extraordinary that Bucknill was not questioned about Hewitt’s account that he had prescribed a substance that could be distilled into a powerful poison. Consequently, there is no record of why Bucknill gave the berries to Hewitt; why he thought such a substance appropriate; nor whether a distillation of the berries could produce the effects described on Theodosius on the morning of his death. Bucknill said that he had opened the body that day, and that he agreed with the description of the body provided by Wilmer, Rattray and Snow. He went on to say that the deposition of Lady Boughton had been read to him and that the medicine prescribed by Powell could not have caused the death, but he agreed with Rattray that ‘the medicine administered by [Lady Boughton] to the deceased was the probable cause of his death’.
Of the four doctors and surgeons who gave evidence to the coroner, therefore, Bucknill and Rattray agreed that whatever had been given to Theodosius by Anna Maria had probably caused his death; Snow did not comment; and Wilmer – by far the most experienced of them – stated that it was impossible to say what had caused the death.
The tenth deposition was by Samuel Frost, ‘late servant to the deceased’, who testified that on the morning of 30 August Theodosius had given him directions for the day, and that at that time ‘the deceased seemed in his usual state of health and in perfect good spirits’. There is, of course, a difference between ‘his usual state of health’ and ‘good health’.
Donellan did not give a deposition on 9 September, but he did write to the Reverend Newsam, whom he knew would be attending both the autopsy and the inquest afterwards with Lord Denbigh. The prosecution brief kept a copy of his letter, which was not referred to in court or in Donellan’s own Defence.
Saturday 9 September, Lawford Hall.
As I hold myself duty bound before God and the world to vindicate the reputation of my family and self in particular respecting the death of Sir Theodosius … I confess I am anxiety itself … therefore I beg you will request of Lord Denbigh with the friends of his Lordship that I understand are to be with you today, to be as near the corpse as safety will permit at Newbold … we are perfectly innocent of any unfair intentions towards him … my wife and self very rarely visited Sir Theodosius’s side of the house and were as strangers to his proceedings as the Pope was. When Sir Theodosius took his physic I was at Newnham Wells; Lady Boughton and myself were to ride out early but she told me from her window it would be some time before she could be ready to ride out … upon my coming back the coachman told me he was going to the Doctors and I gave him the mare I had … when I entered the house Lady Boughton told me Sir Theodosius had been extremely ill since she gave him the physic that morning … I found Sir Theodosius in bed very ill; I called to him but he made no answer to me (my wife all this time was in bed) …
Donellan then explained that he rinsed out one bottle and put its contents in a basin to taste it but ‘I could not tell what it tasted of’. He then said that Samuel Frost had the bottle which contained the physic: ‘He tells me that one that was left in the kitchen is it, which he has.’ (In his later Defence Donellan said that he himself had the bottle, and had taken it from the kitchen to the parlour.)
After the last deposition, the coroner closed business for the day and adjourned the inquest until the following day at three o’clock. No follow-up was recorded the next day, however. In 1781 the Scots Magazine reported that the coroner had dismissed the jury at 5 p.m. and ordered them to attend the next day at 3 p.m., but that he himself did not turn up and at 8 p.m. he sent a message that he would fix the hearing for some date in the future. The jurymen went to their local JP, Lord Denbigh, who, with a Reverend Blomfield, ‘appeared in the vindication of the rights of society thus violated’ (presumably this means that Lord Denbigh leaned heavily on the coroner) and the next hearing was promptly fixed for 14 September.
Captain Murphy’s Life of Captain John Donellan, published in 1781, gives a more detailed version of events. According to Murphy, the jury were utterly mystified by the delay on 10 September; although he suggests that perhaps the coroner was ‘confused by the novelty of the business’ or ‘by his delicacy for the honour of a respectable family’. He notes, however, that the delay simply fanned the flames of the rumours that something was badly awry at Lawford Hall.
The prosecution brief at the trial gives another, more detailed and altogether more revealing explanation. This claims that ‘when the Jury were attending to hear the evidence, Captain Donellan was present the whole time, even against the desire of the Jury, so that he in great measure kept Lady Boughton and such of the servants as were witnesses in awe … when she mentioned the circumstance of the rinsing of the bottles he immediately pulled her by the sleeve …’
By the time that the inquest was next convened on 14 September, Lord Denbigh had stepped in to take control: ‘At the meeting,’ the prosecution brief continues, ‘Lord Denbigh and the Reverend Bromfield (another Justice of the Peace) [presumably the same person as the Reverend Blomfield referred to by the magazine] thinking before the Coroner had not done his duty, attended to see that the inquest was properly held. In consequence of their attendance, Lady Boughton and the other witnesses were all separately examined in their presence; Lord Denbigh strongly objecting to Captain Donellan being present … to prevent the restraint the witnesses seemed to be under before …’
Denbigh’s presence helped Anna Maria Boughton to see Donellan’s actions in a significantly altered light.
On 14 September, Anna Maria Boughton testified a second time. This version of events was markedly different from her first. The time of administering the medicine, the time of Donellan’s entering the room, and of Anna Maria’s leaving the room, and the approximate time of Theodosius’s death – all of which had been referred to in her first deposition – were not now mentioned. This second statement centred completely on Donellan’s actions. Anna Maria explained as follows:
… the circumstance of John Donellan swilling the bottle led her to suppose that some unfair dealings had been carried on respecting her son, and that he had died by the medicine she had given him; and that she herself was so much alarmed at it, that she declared she should like to be opened when she died.
In other words, Anna Maria was afraid that ‘unfair dealings’ could extend to her – so much so that she mentioned her own death and her request for an autopsy as if it might be imminent. An intriguing detail was revealed the following year in a commentary written in April 1781 in ‘A Gentleman’s Reply’.2
It claimed that ‘Lord D’ – presumably the Earl of Denbigh – ‘had a private interview for upwards of half an hour with Lady Boughton before she went into the room to be again examined; there does not remain a doubt that his Lordship had something which very much terrified her, for every time that something was said which was thought to mitigate against Mr Donellan, she looked at his Lordship, who never failed in return a nod of approbation.’
This seems proof that, while Denbigh ensured that Donellan was not there to oversee proceedings, he was.
In her first deposition of 9 September, Anna Maria had said that John Donellan had rinsed out the phial with water into a bowl and that he had tasted the mixture and said it was ‘nauseous’. In her second deposition Anna Maria says that Donellan took the bottle off the chimney piece, swilled it out and ‘threw the water and the medicine which was left at the bottom of the bottle away together upon the ground.’ Donellan then took a second bottle from the chimney piece and also threw its contents to the ground. Next he instructed Sarah Blundell, who was in the room, to take the bottles away. Anna Maria stated that she objected, but that Donellan insisted and the bottles were removed.
Then came another damning indictment. Anna Maria testified that when she and Donellan had returned to Lawford Hall after her first deposition, he had expressed ‘surprise and disapprobation’ at her previously volunteering information about his swilling-out the bottles. She then said that it had been Donellan’s idea to keep Theodosius’s medicines in an outer, unlocked room.
After Anna Maria’s new statement, the servant girl Sarah Blundell was called again. She swore that Donellan had instructed her to take away the used medicine bottles (plural) just as Anna Maria had said.
Meanwhile, John Donellan wrote a letter dated Thursday 14 September to ‘The Coroner and Gentlemen of the Jury at Newbold’. He evidently felt it wise to add more detail to the account he had already given to the Reverend Newsam. He wrote:
Gentlemen:
I hold it my duty to give you every information …
During the time Sir Theodosius was here, great part of it was spent in procuring things to kill rats, with which this house swarms remarkably. He used to have arsenic by the pound weight at a time, and laid the same in and about the house, in various places and in as many forms.
We often expostulated with him about the extreme careless manner in which he acted, respecting himself and the family in general; his answer to us was, that the men servants knew where he had laid the arsenic, and for us we had no business with it.
At table we have not eaten anything for many months past which we perceived him to touch, as we well knew his extreme inattention to the bad effects of the various things he frequently used to send for, for the above purposes, as well as for making up horse medicines; he used to make up vast quantities of Gulard, from a receipt which he had from Mrs Newsam; she will give you a copy of it, if you please, and it will speak for itself.
Since Sir Theodosius’s death, the gardener collected several fish which Sir Theodosius laid: he used to split them and rub the stuff upon them; the gardener was ordered to bury the fish …
Lady Boughton, my wife and self have showed the utmost willingness to satisfy the public respecting Sir Theodosius’s death, by every act within the limits of our power … every one that came to the house should see the corpse before it was put into the coffin on the fourth day; and the eighth day the corpse was sent to the vault at Newbold.
I am, gentlemen, your most obedient servant, John Donellan.
Five days had passed since both John Donellan and Anna Maria Boughton had attended the first coroner’s hearing on 9 September. In that time, Anna Maria had decided that ‘unfair dealings’ had occurred, while John Donellan centred his account on the poisons freely available in the house, brought there by Theodosius himself without any apparent regard for the safety of the rest of the family – the implication being that, if Theodosius died by poison, it was through some accident or design of his own. Why Thomas Hewitt’s testimony as to a possible source of poison is not mentioned by Donellan is confusing, as ingestion of picrotoxin would have produced a very quick death such as that experienced by Theodosius.
What is so curious about Anna Maria’s depositions, though, is not only the change in her evidence – in the first, Donellan tastes the residue from a basin; in the second he throws it, untasted, on the floor – but that if she had suspected Donellan from that very first morning of poisoning her son, why had she allowed him to supervise the visits by the doctors? Why had she not written to or visited Sir William to express her fears? Why had she not prevented the funeral? Anna Maria had power; she had influence; if she had the slightest misgivings, would it not have been natural to express them to Sir William or the family solicitor at the earliest opportunity? Why had she waited until public disquiet had forced an autopsy?
The explanation that Anna Maria gives in her second deposition is that she had been disturbed by Donellan’s irritation at her mentioning the bottles at all in the first deposition. Consequently, she had thought over the events in the light of his bad humour and concluded that ‘unfair dealings had been carried on’. Her renewed examination of the events of the morning had, apparently, resulted in her deciding that Donellan had acted quite differently to her first account. But this version is not simply an addition to or expansion on the first version. It is a completely different account of his actions and, by implication, his motives and mood.
Sir William, in the later trial, makes no mention of having been approached by Theodosius’s mother. He deposited with the court a full and complete set of the letters that had passed between himself and John Donellan, but made no mention of any correspondence with Anna Maria.
If Anna Maria had really seen Donellan throw the contents of the bottle on the ground, would that not have immediately struck her as suspicious? Yet if Donellan had, as per her original deposition, simply rinsed out the bottle, tasted its contents and pronounced them ‘nauseous’, that would not necessarily have aroused any suspicion at all, and so her silence after her son’s death is more understandable.
At what point in the intervening five days had Anna Maria decided to change her evidence, and why? And, aware of the difference between the two depositions, what gave her the confidence to do so?
The decision now lay with the coroner and a jury which he had summoned from the neighbourhood. In 1780, a coroner was a substitute for the High Sheriff of the County. There was no concept of the Crown bringing a case to court; the Director of Public Prosecutions was not instituted until a century later. Nor were there any police or public prosecutors. The prosecution of almost all criminal offences was private; it was up to the victim to pursue the perceived offender. Charges had to be filed with a local magistrate, evidence presented to a jury and then subsequently provided for the trial. There was no overriding concept of ‘the people’ protecting society; it was one person against another. Anna Maria filed her charges against Donellan.
The Coventry Mercury newspaper reported on Monday 18 September that ‘on Friday last’ – that is, on 15 September, the day after Anna Maria Boughton’s second deposition – John Donellan was arrested and brought under guard to Warwick Gaol, ‘where he is now confined, charged with the wilful murder of Theodosius Boughton’.