The letter appointed a meeting between the hours of one and two. It had drawn Ann Forbes from Aberdeen toward Thainstone, some fourteen or fifteen miles distant, upon a bitter December morning; she was to return on foot. When she was discovered a few hours later, an envelope addressed to George Stephen lay within her garments, containing naught but a slip of brown paper. Between these two tokens—the appointed rendezvous and the message-less sheet—there unfolded, in the ensuing spring, one of Scotland’s most contentious legal debates upon circumstantial proof and criminal insanity.
The account of Alexander Silver, surgeon and assistant at the University of Aberdeen, first reduces the affair to its hours and distances. He records that Stephen, a wood merchant of Port Elphinstone, had known Ann for seven-and-twenty years. She had been wont to journey from the city to Thainstone to see him and, as she alleged, to obtain money from his hand. Letters penned on her behalf, recovered from his possession, contained threats of exposure should her demands go unsatisfied; one among them fixed the meeting of the 3rd of December. This protracted acquaintance and these menacing missives furnished the Crown with a motive, yet they constituted no confession.
Ann departed Aberdeen at approximately eight o’clock in the morning, having borrowed certain garments from a neighbour. At noon, she halted at an inn in Kintore, called for half a gill of whisky, drank half of it, and promised to discharge the reckoning upon her return, as had been her former custom. The path then narrows about a succession of witnesses, each of whom beheld but a fragment. A lad observed her seated upon a heap of stones, a piece of red flannel wrapped about her head; she enquired of him whether it were past one o’clock. Shortly thereafter, he saw Stephen walking in her direction, bearing an axe beneath his arm. Further along, a woman noticed Ann still seated, and presently saw Stephen enter the wood in her company.
What transpired beneath the canopy of trees was shielded from human sight. It is an interval that Silver’s retrospective narrative subsequently seeks to supply, yet the depositions themselves delineate no blow. Another witness beheld Stephen departing alone, carrying an object he could not identify. Towards half-past two, a lad engaged in beating the covert for game came upon Ann stretched upon the earth, insensible, her countenance turned to the left, and blood flowing copiously from a wound at the back of her head. The red flannel was rent; an under-petticoat lay beneath or close beside her. She never regained consciousness, expiring towards eight o’clock that evening.
Dr. Irvine extracted fragments of bone from the wound. It was then that the envelope addressed to the timber merchant was observed, void of any writing. Upon a subsequent day, an inspection of the locus delicti brought to light coagulated blood and a porridge of oatmeal resembling that discovered within the stomach of the deceased. The post-mortem examination, conducted two days later, disclosed a fracture of the cranium, extensive lacerations, and an effusion of blood which the medical men pronounced the cause of death. The report, transcribed by Silver—himself among the signatory physicians—concluded that the injuries had been inflicted during life. These forensic particulars demonstrated the violence and its consequence; of themselves, they did not reveal who had struck the blow.
The investigation directed the authorities to three axes discovered at Stephen’s dwelling. Upon one of them, the poll of which closely corresponded to the aperture in the skull, Professors Ogston and Brazier detected reddish stains which chemical and microscopic tests identified as blood. A fissure in the helve likewise held minute scarlet fibres. Compared with the red flannel worn by Ann, they were adjudged identical in character. Upon the remaining two axes, naught but rust could be discerned. Silver presents this correspondence as an overwhelming chain of proof; yet it must be borne in mind that the narrative is his own medical digest of the trial, rather than the official record of proceedings or a modern laboratory analysis.
Stephen’s clothing, examined that selfsame evening, exhibited nothing out of the ordinary, save for a small, fresh rent in the right sleeve. The prosecution thus bound together diverse strands: the written appointment, the presence of the woman and the man upon the same road, the axe observed beneath his arm, his solitary return, and the marks discovered upon an implement kept within his house. The place of meeting and the alleged weapon drew the circumstantial evidence into a coherent whole; the principal question that remained concerned not so much the physical act as the prisoner’s state of mind at the moment of its commission.
The defence, according to Silver, made no attempt to deny that Stephen had dealt the blows. It took its stand solely upon the ground of insanity. Pecuniary embarrassments during the year 1864 were said to have preceded a marked alteration in his demeanour: a man hitherto regarded as cheerful had grown despondent. Relatives testified that on a Sunday in August, he had descended from his bedchamber trembling and exceedingly agitated, declaring he knew not what to do with his family, that his funds were exhausted, and that there was neither meal nor fire in the house—though such destitution was entirely imaginary. He complained likewise of an inability to rest upon his bed, which he likened to a heap of stones.
Dr. Thomson, who had known Stephen for upwards of forty years, was called to attend him towards the close of September. He found him confused, with an impediment in his speech, and suspected disease of the brain. He described delusions, a childishness of manner, and seizures of an epileptic character reported in October. In his judgment, irritation might impel a man in such a state to the commission of murder; he would not be surprised had Stephen been scarcely able to resist an impulse. Yet his testimony possessed its limits: he acknowledged that his opinion rested partly upon the recitals of others, and conceded that Stephen might at times distinguish right from wrong, and know that a stroke from an axe would prove fatal.
Dr. Jamieson, superintendent of the Aberdeen Lunatic Asylum, had seen Stephen only while incarcerated. Founding his opinion upon the prisoner's aspect, speech, inattention, and confusion, he concluded that organic disease of the brain existed; he added that excitement might provoke an uncontrollable impulse. Nevertheless, when interrogated by the court, he was unable to discover any distinct delusion, nor could he affirm that the prisoner was ignorant of the difference between right and wrong. Upon a visit on the 10th of December, he stated, Stephen’s abnormal appearance was attributable to cerebral disease without specific symptoms of insanity. The defence thus adduced indications of derangement and medical testimony, yet no evidence directly touched upon the state of Stephen’s mind at the precise moment of the encounter in the wood.
The presiding judge, the Lord Justice-Clerk, directed the jury that they were bound to consider Stephen’s mental state upon the 3rd of December, not such as it might appear at the trial. He drew a distinction between disease of the brain and insanity as defined by the law of the land. In order that the latter might exempt the accused from responsibility, he observed, the jurors were to consider various alternatives: Stephen might not have known the act he was committing, or failed to comprehend its nature; or, understanding its physical character, he might yet have been incapable of recognising its moral or legal guilt and of estimating its consequences. The recorded charge presents these avenues as alternatives, rather than a cumulative series of conditions. A weakened faculty, bodily ailment, or a predisposition to violent anger did not suffice under this direction. Such was the legal standard expounded in 1865; Silver himself acknowledges that it was the subject of grave dispute between jurists and physicians.
After twenty minutes’ deliberation, the jury, by a majority of nine to six, returned a verdict of guilty as libelled. Sentence of death was duly passed. Yet the proceedings did not terminate in the courtroom. Upon an application by the Sheriff, an inquiry was instituted under the statute governing prisoners appearing to be insane; Drs. Macrobin and Fraser signed a medical certificate certifying insanity. The Home Secretary, Sir George Grey, signified that the capital sentence was not to be carried into execution, though without as yet issuing the warrant that would transfer Stephen to a lunatic asylum. At this juncture, the conviction remained intact, while the execution alone was respited.
Presently intelligence arrived, which Silver appended after his narrative had been brought to a conclusion: the Queen had been pleased to extend her pardon to Stephen and to commute the capital sentence to penal servitude for life. The convict was removed to the General Prison at Perth rather than to an asylum, as that establishment was not licensed as a psychiatric institution within the meaning of the statute. The account specifies that he was to be treated therein as an insane person, and not as an ordinary felon; it affords no date for this determination, nor does it transcribe the instrument of pardon.
Thus the record resolves itself neither into the triumphant certainty that Silver proclaims for the material clues, nor into an acquittal upon the ground of lunacy, which the jury declined to grant. The court condemned the man whom the web of circumstances bound to the fatal axe; the Crown’s executive power subsequently arrested death and altered the punishment, while physicians and administrators alike deemed him of unsound mind. Between the jury’s verdict and the cells of Perth, the question of criminal responsibility shifted its ground without ever being resolved. In this cause, justice adjudicated guilt; mercy alone determined the fate of the condemned.