‘Circumstantial evidence is a very tricky thing. It may seem to point very straight to one thing, but if you shift your own point of view a little, you may find it pointing in an equally uncompromising manner to something entirely different.’
Sherlock Holmes, ‘The Boscombe Valley Mystery’
The morning of Tuesday 12 December was snowy, the ground outside the Court of Justiciary cold under foot, the air promising more storms to come. Yet the weather could not stop a large crowd from gathering around the public entrance by nine o’clock in the morning, each person hopeful of claiming their place in the courtroom for the most eagerly anticipated show in town.
Competition for a seat was intense and several hundred members of the public passed through the courtroom over the ten days that the trial lasted. As soon as someone left their place, a new person was ushered in to fill it, while hundreds more – even thousands, according to some estimates – made do with merely glancing at the scene as they passed by a window set behind the judge’s chair. The police would tell of the extraordinary lengths some went to in their bids to gain admittance. One ruse involved men of ‘all sorts and conditions’ appearing at the entrance in legal robes, although their attempts to pass themselves off as lawyers were often thwarted by the ragged, decaying state of their costumes.
It was noted that the larger part of the public audience throughout the fortnight was made up of women, a fact that an anonymous female reporter for the Edinburgh News – one of over a hundred members of the press in attendance – considered ‘proof of the superior patience and perseverance of the so-called weaker sex’. For a brief period, the trial seemed to constitute the focal point of Edinburgh’s social whirl. People went to see, of course, but were conscious of being seen, too. ‘To the eye of another woman like myself there were some peculiar costumes amongst them,’ wrote that Edinburgh correspondent. ‘Just imagine a person with red hair wearing a dress of bright blue beneath a cloak of equally vivid red. It was too impressionist for my sensibilities. Then, again, the display of jewellery was something gorgeous. Scarcely a fair arm that leaned upon the front of the gallery or was visible in the seats below that did not scintillate with a mass of such portable property …’
Yet it was the drama played out daily upon the floor of the courtroom that really captured the imagination. The action of the law courts has been regularly likened over the centuries to that of the theatre, but rarely had the echoes of the stage been more pronounced. As the lady from the Edinburgh News, extraordinarily eloquent in relating her impressions of the trial, memorably put it:
I have never, in any novel or play, seen depicted such an astonishing variety of characters, or been perplexed by a plot so intricate as in the story which has been presented to us during the past fortnight … But the variety of the characters that appeared in the witness-box was to me in some respects the most interesting phase of the case, including as they did country clowns, polished men of business, scientific and medical experts, officials, pawnbrokers and representatives of certain fascinating phases of London life.
The presiding judge was the Lord Justice Clerk, Lord Kingsburgh (John Hay Athole Macdonald). He was a figure held in generally high regard in the profession, seen as a man of integrity after a long career as both defence counsel and then public prosecutor before his appointment as Lord Justice Clerk five years earlier. He was also known as something of an authority on firearms – a significant attribute given the nature of the case before him. Leading the prosecution, meanwhile, was the Solicitor-General (the second most senior prosecutor in the land), Alexander Asher. He was a lawyer more known for being strong and steady than sparky and spectacular, more composed and dignified than charismatic. But, aware that all eyes were now upon him, he showed remarkable energy as he explicated the prosecution’s sprawling and complex evidence, proving himself arguably Scotland’s finest legal technician then at work. He was also an imposing physical presence, the Aberdeen Weekly Journal noting his ‘massive, leonine head, broad of brow and square of jaw’ and describing him as ‘a man as lucid in resumé as relentless in logic, sitting calmly arranging his papers and making notes’. Against him and leading the defence was the flamboyantly brilliant orator, John Comrie Thomson, who was able to captivate a jury unlike anyone else at the Bar, even if he was perhaps less technically gifted in matters of the law than his opposite number. Comrie Thomson exuded friendly warmth, where Asher sometimes appeared aloof and austere in a way that could unsettle jurors.
Edinburgh had something of a dual personality in the nineteenth century, being at once a great metropolis but with the feel of a village ruled by a small clique of elders. So it was that the Ardlamont case threw up a vast number of interconnections between those professional movers-and-shakers drawn into it. One prominent example was the long-standing friendship that existed between Asher and Lord Kingsburgh. At the start of their careers, both had been members of the Speculative Society, a prestigious public speaking and literary society dominated by Edinburgh University alumni. Kingsburgh was so impressed by Asher’s speech-making in those days that he set about persuading him to turn away from his studies to become a solicitor in favour of qualifying to work at the Bar instead. Moreover, in 1859 it was Asher, then working in a solicitor’s office, who provided Kingsburgh with his first paid work as an advocate. Both men, though, were unrelentingly professional and there would be not the merest hint of undue favour shown by judge to prosecutor for the duration of the Ardlamont trial.
The formal proceedings got underway on 12 December when Kingsburgh entered the courtroom, bowed to the Bar and took his seat. A hush descended as the macers – responsible for keeping order – lifted the trapdoor from which Monson appeared. Looking well-groomed and dashing – he wore a black melton overcoat with velvet collar, along with kid gloves – Monson nimbly ascended the step up to the dock where he sat between two police officers. A few observers detected a glint of nervousness in his eyes, a certain pallor to his cheeks, a degree of uneasiness in his breathing and agitation in the way he held a roll of papers. He was destined to be a largely silent figure in proceedings, the Scottish rules of evidence precluding him from speaking in his own defence. Nonetheless, over the days that followed he was regularly seen in dialogue with his counsel, sharing the odd joke with his custodians and raising a smile when he deemed the evidence either amusing or risible. He also took copious notes, which he used as the basis for further discussion with his legal team. It was even alleged that he sent a note from the dock to one of the newspaper artists present, a woman called Mary Cameron, asking her to tea in his cell during the afternoon adjournment one day. She discreetly turned down his offer.
Agnes Monson, meanwhile, sat at the back of the court, largely keeping her own counsel and rarely removing the heavy veil from her face. Occasionally, she was accompanied by a gentleman companion, presumed to be one of her husband’s brothers. On that first morning, she watched on as several procedural formalities were played out. Among them was the unanswered summoning of ‘Edward Sweeney, alias Davis, alias Scott’, who faced the same charges as Monson. When he failed to appear, the unusual step was taken of declaring a sentence of outlawry against him. This effectively stripped Scott of his legal rights while he refused the call of the Scottish court to answer the charges laid against him. That Scott was not now merely a missing suspect but a fully fledged outlaw only added to the sense of melodrama.
Next, Monson was called upon to reconfirm his plea of innocence, and then the jury were sworn in – a band of fifteen men comprising two bakers, two farmers, two grocers, two commercial travellers, a builder, a draper, a provisions merchant, a coal merchant, a plumber, an architect and one man of unspecified profession. In accordance with the Scottish system, there were no opening statements by either side. Instead, the jury was thrust headfirst into a mass of evidence that moved from complicated financial analysis to cutting-edge forensics to eyewitness recollections, often with little clear delineation. There were almost a hundred witnesses called by prosecution and defence combined, along with several hundred items and documents entered into evidence. The effect was at times overwhelming, not only for the jurors but also for the court officials and those watching on. There was a feeling that the advocates were mining all of their vast expertise just to keep on top of this spluttering volcano of evidence. An already complex case of murder was made more unwieldy by the addition of that charge of attempted murder, which ought to have been separated out and heard on its own merits.
The prosecution’s case in relation to the attempted murder charge was highly circumstantial. Donald M’Kellar, a boat-hirer from Tighnabruaich, had leased a rowing boat to Cecil some months before his death that had been used throughout the summer without any apparent problem. However, on 9 August, Monson and Scott approached Stewart M’Nicol, a joiner on the estate, to ask him for the loan of his boat, supposedly because M’Kellar’s was in a poor state of repair. M’Nicol agreed and his boat was sailed to Ardlamont Bay before lunch. Yet that very afternoon, Monson and Scott were back in the M’Kellar boat, taking two of Monson’s children on a jaunt. On their return from this trip, Scott was then observed sitting for a while longer in the boat on the shore.
When Monson (a strong swimmer) and Cecil (a non-swimmer) set out for their splash-fishing trip later that night, they had two boats from which to choose. The apparently unsafe M’Kellar boat or the newly acquired M’Nicol boat. Inexplicably, they went out in the M’Kellar boat and ended up cast into the waters. When the boat was inspected the following day, it was found that a rough plughole (a design feature in some vessels to assist, once back on dry land, draining any water that might be taken on board) had been made in the side of the boat, seemingly with a knife. It was higher up than would normally be expected, at a place where it could easily be obscured from view, by a covering board or some such. The sort of location where the plug might be discreetly removed without a passenger being aware, but still low enough to ensure the vessel started to fill, particularly amid the deluge common in splash-fishing. Had this been what Scott was up to on the beach? Was the story of a collision with a rock just that – a story?
Monson would subsequently claim that Cecil himself made the hole, although there was scant evidence to suggest that he had or that he had even discussed such an intention with any independent witness. Moreover, Monson’s claims that the accident had occurred after the boat struck a rock some 200 or 300 yards from the shore was countered by the evidence of numerous sailors and fishermen with years of experience sailing the bay. To a man, they did not recognize the existence of a rock or outcrop capable of causing such damage in that vicinity. In the words of one of the Ardlamont gamekeepers, John Douglas: ‘I have fished Ardlamont Bay for twenty-three or twenty-four years, and during all that time I never saw a rock in Ardlamont Bay below low-water mark … I never saw any rock … which would be dangerous to a boat.’ The Solicitor-General suggested that Monson and Scott between them had ensured that the rough plughole was carved into the boat so that Monson could stage the entire incident, with the intention that the non-swimmer Cecil would perish while Monson either swam to safety or could be rescued by Scott in M’Nicol’s newly borrowed vessel.
It was certainly a persuasive case yet hardly any more watertight than the fishing boat in question. There were no witnesses, save Monson and Scott, to the incident itself, no one who could say for sure who had carved the hole in the boat, no one to explain categorically why M’Nicol’s boat had been hired and why it had not been used on the expedition. Monson’s own statement on the incident gave a rather different slant on things:
While occupied with the nets, suddenly there was a bump, and the boat tilted, and I fell over the side. At the same time the boat capsized, and for a minute or two I was entangled in the nets. Immediately on getting clear I called out for Hambrough, and then saw him sitting on the rock laughing. The boat had struck the side of this rock and tilted over, which, with the load, and piled up as it was with nets, she would easily do. Hambrough, I knew, could not swim, so I told him to wait while I swam ashore and fetched another boat which was there. The sea was a little rough, and the night was dark. The distance I had to swim would be between 200 and 300 yards. As I was working with the other boat to get her off I observed Scott … and called out to him to run to the house and fetch a lamp, as I could not find the plug or the plughole in the boat. The tide, I understood, was then rising, so I deemed it wiser not to wait until Scott returned, and, accordingly, pushed off the boat. I knew that, although the plug might be out, there would be time without danger to row to where Hambrough was and back … I do not know whether the plug was in the boat we first went out in; neither of us looked to see. The plughole in that boat, however, was a homely affair. Hambrough complained that it had no plughole, and that in consequence it was a bother to empty her after he had been out splash-fishing, during which a lot of water gathered, and, accordingly, he himself cut a plughole in the boat … so far from attempting on that evening to take young Hambrough’s life, I consider that I saved it.
There was little in Monson’s tale that pushed the bounds of credibility. Indeed, several fishermen reported seeing and hearing a furore in the water that night that in its key respects corresponded closely to Monson’s account. Even his explanation for why Cecil might have carved out the plughole is convincing. Were Cecil to have not died the following day, would anyone have given much thought to this little episode from the night before? After all, nobody actually came to any real physical harm. Indeed, by the time the three men had made it back to the house and dried off, they were content to share each other’s company and started drinking. Surely Cecil would not have joined in had he the slightest suspicion that his companions had meant to do him ill that night. Nor, surely, would he have accepted an invitation to go hunting the next morning if he had even a doubt about their intentions.
This was a strand of reasoning that Comrie Thomson explored very effectively. ‘If the Crown theory is correct that an attempt of this kind was made by Monson to murder Hambrough,’ he asked the jury, ‘could Hambrough have failed to be aware of it? Is it conceivable that this lad should have been taken out into deep water, that he should have seen the plug withdrawn from the boat, that he should have found the boat sinking, and that he should have been allowed, as my learned friend said yesterday, to scramble ashore, without his suspicions being aroused – without his being absolutely certain that a nefarious attempt had been made upon his life? … That is a point which I urge you to keep in your minds. If an attempt was made to drown, it must have been seen and known by the intended victim, who next morning goes out with a gun in his hand, and with the man who made the attempt upon his life with another gun in his hand. Is that consistent with any possible theory? Does it not carry absurdity on the face of it? I say not merely that the Crown have failed to prove this attempt at murder, but that it has been absolutely disproved by the conduct of the parties interested.’
It is not difficult to see why the Crown were tempted to add the charge of attempted murder to the original indictment against Monson and Scott. There was much about the boating accident that was highly suspicious. Moreover, if the jury could be convinced that there was ill intention behind it, then the Crown was very far progressed in making the case that Monson and Scott were engaged in a pre-meditated conspiracy. It would be a short step from there to securing a conviction for the murder of Cecil, as any suggestion by the defence that the victim had succumbed to an accident would be virtually without credibility.
It was, though, an enormous gamble. If the jury did not buy the attempted murder charge, they would naturally be more sceptical of the murder charge, too. Furthermore, with the evidence regarding the boating incident nestling among that relating to the shooting, there was a chance that it would serve only to befuddle the minds of the jurors. In a case that was from the outset wide-ranging and involved, the addition of this subsidiary charge might just prove one step too far for a prosecution striving to carve out a clear case that the jury might easily follow.
It is tempting to ponder whether such thoughts entered the mind of the Solicitor-General as he strived to put forward his case. How much easier to convince on the main charge if less effort were required to make this secondary case. Even the most fervent enemies of Monson would have had to admit that the Crown’s argument relied heavily on supposition. One is put in mind of the words of Sherlock Holmes in ‘A Scandal in Bohemia’, which had appeared in print two years earlier: ‘It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.’ Joe Bell had made a similar point in his interview with the Pall Mall Gazette, given as the trial was in progress. ‘The fatal mistake which the ordinary policeman makes is this,’ he had said, ‘that he gets his theory first and then makes the facts fit it’. It could almost have been a coded message to the Crown’s lawyers – beware of stretching your case.
Try as he might, the Solicitor-General had little in the way of data upon which to call in this strand of the trial. Which way the jury would jump was anyone’s guess.