The Long Arm of the Law Cut Short

By Cassie Watson; posted 31 July 2019.

On an April evening in 1820, within clear view of her mother-in-law, a young woman dosed her husband’s gruel with a substance that immediately caused pain, vomiting, tremors and extreme weakness. While those who rushed to his assistance felt certain he’d been poisoned and might not survive the night, Ann McEachern behaved with supreme indifference, “soon after put off her clothes and went to bed as if nothing had happened.”[1] Her unfortunate husband, Neil McKinnon (a weaver aged 22), continued in agony until noon the next day, when his mother gave him a strong emetic obtained from a surgeon. This brought temporary relief only, however, and later that day Neil and his mother made the one-mile journey to the surgeon’s home. According to McKinnon, “it was not without great difficulty and assistance that he could crawl there.”[2] When McEachern heard that her husband had gone to consult the doctor, “she said if he would live four and twenty hours nothing could be done to her.”[3] Why was she so certain she was beyond the reach of the law?

A Poisoning in the Inner Hebrides

This case is of interest for several reasons, not least Ann McEachern’s confidence that, whatever she had actually done, there would be no legal consequences. What exactly was her crime, if no one had died? How was it investigated? Why didn’t the doctor visit his patient, instead of having the sick man walk a mile to see him? What did the witnesses make of this case, and what did McEachern give her husband? If she poisoned him, where did she get it?

What is not apparent until one locates her home on a map is the fact that this case occurred in a somewhat geographically remote location: the Isle of Mull, part of an archipelago off the west coast of mainland Scotland now better known for its whisky industry than its criminal history. The island was part of the county of Argyll, on the West Circuit of the Justiciary Court, and criminal trials were held at Inveraray on the mainland, where the county’s procurator fiscal lived. Mull had a small population; its main settlement, Tobermory, was home to about 1,400 people and allegedly “the only village in Mull, or the western islands, of any consequence.”[4] Ann McEachern and her husband lived 50 miles away at Ardchiavaig on the south coast of the island; their families lived there too — with one exception.

The Isle of Mull 2
C. Smith, New Map of Great Britain and Ireland (1806)

The alleged poisoning occurred on 17 April, about a week after McEachern returned from a month-long stay in the “Low Country” — Port Glasgow in Renfrewshire, where one of her married sisters lived. As the various witnesses to the events of that evening soon revealed, the motive was obvious: an unhappy marriage. McEachern (aged 27) and McKinnon had been married in early February but it proved an unsuccessful match: she resented the tocher (dowry) her father promised and flew into a rage when he bought McKinnon a loom worth £5; and she was rumoured to be pregnant by another man. Living with both McKinnon and his unmarried mother (his father lived nearby with his wife) soon made Ann McEachern re-evaluate her choice. Her mother-in-law, Catherine McLugash, thought she was unhappy from the outset and repented the marriage, “as she was constantly sighing deeply.”[5] McEachern took to sleeping at her father’s house, or with a married sister in the village. About seven weeks after the wedding she went to Port Glasgow, and stayed away until 13 April. She returned with a small chest that contained butter and cloth; what else might it have held?

Ardchiavaig to Port Glasgow
Ardchiavaig to Port Glasgow (© Google Maps)

The Investigation

The surgeon that Neil McKinnon saw directed him to drink a solution of soap and water every hour until the symptoms abated, and to “drink plentifully of milk.”[6] He was forced to drink the soap water for nearly two days: every vomit brought a little relief, but it was a full ten days before he could keep any food down.[7] It was then that he began to consider his legal options. His wife went to stay with her father, and clearly her behaviour was insufficiently penitent: McKinnon decided to tell his story to a justice of the peace at Bunessan, about two and a half miles north of Ardchiavaig, on 11 May 1820. He brought his witnesses with him: his mother, father, step-mother, surgeon, a neighbouring widow, and a crofter with whom he and his wife had recently had an interesting conversation. The decision to charge Ann McEachern was obviously made that day, because she was there too, and made a declaration. This unique aspect of Scots law encouraged suspects to make a sworn statement before a magistrate in the presence of witnesses. Such statements were then used as evidence at trial, drawing criticism that the prominent attorney Archibald Alison (1792–1867) dismissed in one of his two standard works on the criminal law of Scotland:

There is truly no ground whatever, therefore, for the reproaches sometimes brought against the Scotch law for its admission of such declarations as articles of evidence against a prisoner. These complaints originate in general in a sense of the strong presumption which these instruments frequently rear up against a guilty prisoner, and the great difficulty experienced by his counsel in getting over them, forgetting that they aid the innocent as much as they weigh down the guilty. Least of all can such reproaches be founded on any thing connected with the English law; for their practice admits much weaker evidence, viz. conversations with pannels,[8] or acknowledgments of guilt made by them to witnesses, as sufficient per se to warrant a conviction.[9]

McEachern was charged with attempted murder by poison and brought to Inveraray for further questioning; she made a second declaration on 18 May and was then committed for trial at the September sitting of the West Circuit Court. The case against her seemed secure, but the answers she gave in her declarations suggest that she was either innocent or had planned her crime very carefully indeed. However, she was aided by a less than thorough investigation: she was not asked to respond to witness statements about her alleged, highly suspicious comments; there is no evidence that her travelling chest, father’s house or any of her possessions were searched; nor that the friend whom she admitted had bought arsenic in Port Glasgow was questioned. Finally, a witness whom Neil McKinnon claimed heard her ask about how to poison someone categorically denied any such conversation took place. McKinnon clearly assumed — with good reason — that his wife obtained arsenic in Port Glasgow and twice tried to poison him, but there was absolutely no evidence that he had actually been poisoned with arsenic or that his wife had any arsenic. Moreover, McEachern’s two declarations provided a rational explanation for all the core issues put to her; but she was not asked some obvious questions, as the table below indicates.

Witnesses table

And what of the forensic evidence, so crucial in a charge of poisoning?[10] This is where the case becomes interesting from a different perspective, because it was only by chance that McKinnon was able to consult a surgeon so close to home. There appear to have been only two other medical practitioners in the region, a physician in Tobermory and an army surgeon on the mainland over 40 miles away at Morven.[11] But Alexander Campbell (1789–1838) was living at Assapole [Assaboll], a house or village on the shores of Loch Assapol, about a mile south-east of Bunessan. He was not in practice, but kept a few medicines to administer “gratuitously to any poor people that are in distress near him.”[12] This explains why McKinnon had to go to Assapole for medical assistance: Campbell was an assistant surgeon on the Madras Establishment,[13] home from India on sick leave, and evidently so unwell that he was unable to visit patients.[14] But from what he saw, he believed McKinnon had been poisoned: “I am fully of opinion that arsenic would occasion the symptoms which I described and with which he was affected when I first saw him the day after he was taken ill.”[15] Unfortunately, he said nothing about how he knew it was arsenic, though given his military service in India (where he was posted in 1813), it is possible he had encountered cases of criminal poisoning before.[16]

Scotland Jun19 281 crop
Crown copyright, National Records of Scotland, AD14/21/195, Ann McEachern, precognition: letter from Alexander Campbell to Dugald Maclachlan, 27 June 1820

Laws Against Poisoning

Under the common law of Scotland, attempted murder was not a capital crime,[17] but it was considered very serious and so tended to lead to “difficult questions as to the evidence requisite to convict of the murderous intent, and the length to which the attempt must have gone, to constitute the crime. … [A] ruthless intent, and an obvious indifference as to the sufferer, whether he live or die, is to be held as equivalent to an actual attempt to inflict death.”[18] There were witnesses who believed that Ann McEachern displayed indifference of this kind. Furthermore, an attempt to poison was held to be complete when the poison was mixed into food intended for the victim, even if they did not eat it.[19] Therefore, the case hinged on whether there was actually poison in the gruel. Does this explain McEachern’s confidence?

It seems possible, since she had disposed of the only direct evidence. But it is more likely that she believed that his survival for more than a day, vomiting profusely, meant there was no way any trace of poison could ever be found and that there would thus be no grounds to charge her with a crime. She might have recalled the trial of William Paterson at Edinburgh in February 1815: he was accused of killing his wife with arsenic, but she had survived long enough that chemical tests could not detect any poison whatever in her body, even though Paterson had a motive, had boldly asked a doctor for medicine to “destroy” his wife, and was known to have purchased arsenic.[20] When a verdict of ‘not proven’ was returned by a narrow margin, Paterson was harangued by one of the three judges who heard the case, all of whom clearly believed him to be guilty.[21]

If McEachern had attempted to poison her husband in England, it would have been a capital crime, under the terms of Lord Ellenborough’s Act of 1803.[22] However, that law was framed in such specific terms that two loopholes appeared: defendants could be acquitted on the grounds that the victim had not ingested the poison, or that it was not given with intent to murder.[23] But the frequency with which such crimes were perpetrated led to changes in the law in both countries within just a few years of the drama enacted in Ardchiavaig. In England, the Act of 1803 was repealed and replaced in 1828 by the Offences Against the Person Act, known as Lord Lansdowne’s Act, which closed the first loophole but left the other open even though one might presume that the administration of poison was of itself a proof of deliberate malice.[24]

In Scotland, poisoning with intent to murder or do grievous bodily harm became a capital offence under an Act of 1825,[25]  repealed in 1829 by a new law which maintained the capital nature of the crime but required the prosecution to prove intent to murder and that the poison had actually been taken by the intended victim.[26] Where these conditions were not met, the capital sanction was lost but defendants could be convicted and sentenced to a lesser punishment.[27] However, the Scottish version of Lord Ellenborough’s Act was no more successful: during the rest of the century six trials for attempted arsenic poisoning occurred, resulting in two convictions and four verdicts of ‘not proven’.[28] In her work on poison murders Karen Merry attributed the frequency with which juries used this unique Scottish verdict to poor or untrustworthy forensic evidence: jurors believed the defendants were probably guilty but not that the case had been legally proven.[29]

While there was certainly more to it than this, the fact is that in Ann McEachern’s case there was simply not enough evidence against her. This became rather a moot point however: at her trial in September 1820 the prosecution had to abandon the case (desert the diet) because the surgeon was unable to attend. The procurator fiscal recommended that Campbell be included in the witness list when she was tried again the following spring, even though it was not unlikely that “before the meeting of next Circuit Court here he may have set off for India.”[30] He was however present to testify at her trial in April 1821, when the jury returned a verdict of ‘not proven’.[31]

Conclusion

Scotland Jun19 282 cropThe verdict in this case is unsurprising, even though Ann McEachern had means, motive and the opportunity to poison her husband, and had probably already tried once before. There was good reason to suspect her, but there was not a shred of tangible evidence: her own quick thinking, and the lacklustre investigation, saw to that. There is little doubt, however, that Neil McKinnon was poisoned, probably with arsenic as Dr Campbell surmised: his symptoms tallied pretty well with those stated by toxicologist Robert Christison to occur “in persons who, from having taken but a small quantity, or from having vomited soon after, are eventually rescued from destruction.”[32] The law’s reach was thus cut short by the incident’s remote location and slow investigation, so that ultimately, the only consequence McEachern faced was months in gaol awaiting trial. As her victim survived she was never at risk of execution; but five years later, there might have been a very different outcome.


Images

A crowd is gathering around a young man in a dressing gown as he attempted to poison himself in the living room. Etching, n.d. Credit: Wellcome Collection. CC BY

C. Smith, New Map of Great Britain and Ireland (1806), A Vision of Britain through Time.; Great Britain Historical GIS Project (2017) ‘Great Britain Historical GIS’. University of Portsmouth.

Crown copyright, National Records of Scotland, AD14/21/195 (letter and indictment). Reproduced by permission.

Google Maps, map reproduced under Google Terms of Service.


References

[1] National Records of Scotland [hereafter NRS], AD14/21/195, Ann McEachern or McKinnon, precognition, testimony of Ann McKinnon, 29-30. Scottish legal records regularly recorded married women under their maiden name. This Ann McKinnon is not the suspect but her husband’s step-mother.

[2] Ibid., testimony of Neil McKinnon, 10.

[3] Ibid., testimony of Ann McKinnon, 30.

[4] Pigot’s New Commercial Directory of Scotland (London: J. Pigot and Co., 1825-26), 215.

[5] NRS, AD14/21/195, testimony of Catherine McLugash, 16.

[6] Ibid., testimony of Alexander Campbell, 26 .

[7] Ibid., testimony of Neil McKinnon, 11.

[8] Pannel is the Scottish legal term for a defendant.

[9] Archibald Alison, Practice of the Criminal Law of Scotland (Edinburgh: William Blackwood, 1833), 556.

[10] Katherine D. Watson, “Medical and Chemical Expertise in English Trials for Criminal Poisoning, 1750–1914,” Medical History 50 (2006): 373-390.

[11] Pigot’s New Commercial Directory of Scotland, 215.

[12] NRS, AD14/21/195, testimony of Alexander Campbell, 26-27.

[13] D. G. Crawford, Roll of the Indian Medical Service 1615-1930, Vol. 2, reprint (Uckfield, East Sussex: Naval & Military Press Ltd., 2012), 301. I am grateful to Mark Harrison for providing helpful information about the East India Company’s Madras Presidency Army.

[14] NRS, AD14/21/195, testimony of Alexander Campbell, 25.

[15] NRS, AD14/21/195, letter from Alexander Campbell to Dugald Maclachlan, 27 June 1820. I have been unable to positively identify Maclachlan, although he may have been a procurator fiscal: a resident of Tobermory was appointed to be procurator fiscal for the northern district of Argyllshire in 1822, possibly as his successor: Inverness Courier, 11 July 1822, 3.

[16] David Arnold, Toxic Histories: Poison and Pollution in Modern India (Cambridge: Cambridge University Press, 2016), chapter 3.

[17] David Hume, Commentaries on the Law of Scotland, Respecting the Description and Punishment of Crimes, Vol. 1 (Edinburgh: Bell & Bradfute, 1797), 260-263.

[18] Archibald Alison, Principles of the Criminal Law of Scotland (Edinburgh: William Blackwood, 1832), 163.

[19] Ibid., 167.

[20] NRS, JC26/1815/41, His Majesty’s Advocate against William Paterson, Ayrshire, 1815.

[21] The Scots Magazine, 1 April 1815, 261-263. It was then customary for three judges to preside over trials at the High Court of Justiciary, while two heard trials on circuit: Edwin R. Keedy, “Criminal Procedure in Scotland,” Journal of Criminal Law and Criminology 3 (1913): 728-753 (p. 732).

[22] 43 Geo III c.58, Malicious Shooting and Stabbing Act.

[23] Katherine Watson, Poisoned Lives: English Poisoners and Their Victims (London: Hambledon and London, 2004), 190-191.

[24] 9 Geo IV c.31 s.11; Watson, Poisoned Lives, 191.

[25] 6 Geo IV c.126, An act to make provision in Scotland for the further Prevention of malicious shooting, and attempting to discharge loaded Fire Arms, stabbing, cutting, wounding, poisoning, maiming, disfiguring, and disabling His Majesty’s subjects (Malicious Wounding, etc. (Scotland) Act 1825).

[26] 10 Geo IV c.38, An Act for the more effectual Punishment of Attempts to murder in certain Cases in Scotland.

[27] Alison, Principles of the Criminal Law of Scotland, 172.

[28] Karen Jane Merry, “Murder by Poison in Scotland during the Nineteenth and Early Twentieth Centuries,” unpublished PhD thesis, University of Glasgow, 2010, 52-56.

[29] Ibid., 20, 48-51.

[30] NRS, AD14/21/195, letter from Duncan Paterson, procurator fiscal to Adam Balland, Crown Agent, 19 Feb 1821.

[31] NRS, JC26/1821/132, Porteous roll for Argyleshire to be held at Inveraray, Spring Circuit, 17-26.

[32] Robert Christison, A Treatise on Poisons (Edinburgh: Adam Black, 1829), 224.

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