In September 1826, Margaret Warden, a 24-year-old servant living near Dundee, Scotland, died of arsenic poisoning. She was pregnant at the time of her death; the father was George Smith, the son of Warden's employers, Mary and David Smith. The attending doctor initially thought Warden died of cholera, but rumours of poisoning soon spread and she was exhumed. Her stomach contents were tested; arsenic was found, and Mary Smith was committed in October for trial in Edinburgh for her murder. Her defence advocates called nearly fifty witnesses, and the trial was delayed twice to allow the prosecution time to prepare. When the trial began on 5 February 1827, the illness of a juror led to the trial being restarted on 19 February with a new jury.
The advocates for the defence included Francis Jeffrey and Henry Cockburn, both leading Scottish advocates of the day; the prosecution was led by William Rae, the Lord Advocate. Testimony at the trial made it clear that Smith had given Warden something to drink shortly before she became ill. The defence called witnesses who testified that Warden had said she would "" and similar statements that implied she might have committed suicide. The medical evidence for the presence of arsenic was questioned by the defence, but in his instructions to the jury, the judge, David Boyle, told them that they should accept as fact Warden's death by arsenic, and consider whether it had been administered by Smith. Boyle's instructions concluded at 5:30 a.m. on 20 February, about twenty hours after the trial began. At 2:00 p.m. that afternoon, the jury returned a verdict of not proven, acquitting Smith of the crime.
The trial was described in 1923 by the historian A. H. Millar as "in several particulars ... the most remarkable trial that ever took place in Scotland".Millar (1923), p. 164. It was the subject of much contemporary interest, and accounts of it were published that recorded the testimony of the many witnesses who were called. Popular opinion at the time was that Smith, who became known as "", was guilty, and ballads were written about the case. One of Smith's own defence lawyers later wrote that he was sure she had committed the murder. The writer Walter Scott attended the reading of the verdict, and had no doubt of Smith's guilt; he commented afterwards that "if that woman was my wife, I should take good care to be my own cook!"Roughead (1913), p. 189.
Background
In 1826 David Smith and his family were living at West Denside, and working three farms; West Denside, East Denside, and Dodd, about six miles north of Dundee, in Scotland.Roughead (1913), p. 162. Smith's wife was named Mary, and their youngest son was George. Among the servants at the farm was Margaret Warden, aged 24 in 1826. Warden had previously been pregnant in 1821; the name of the father is not recorded. Warden left the farm to have the baby at her mother's house, where the child was subsequently raised, and Warden returned to work at West Denside.
Warden's pregnancy and death In July 1826 Mary Smith learned that Warden was pregnant again, this time by her son George, who was considering marrying her. Smith did not approve, and Warden decided to leave the farm. She briefly returned to her mother's house but soon came back to West Denside, staying a fortnight before leaving again. After a week Mary Smith went to the Wardens' home and persuaded her to return, and while there she spoke to Warden's mother about the unwanted pregnancy and said she would "get something for Margaret" in Dundee.Roughead (1913), pp. 162–163.
At 10:00 in the evening on Tuesday, 5 September, Smith gave Warden a small glass of a white, creamy mixture, and a lump of sugar. Warden drank the mixture, and began to feel ill that night. Jean Norrie, the servant who shared her box-bed, woke to find Warden already awake, but she was too sick to work and Norrie helped her back to bed. Warden's condition worsened the next night; her symptoms included vomiting, thirst and stomach pain. Smith and Norrie sat up with her on the night of Thursday 7 September, and the next morning, at Warden's request, Smith sent for Warden's mother. Her mother sent for a doctor, and set out for West Denside.Roughead (1913), pp. 164–165. The doctor, whose name was Taylor, arrived in the afternoon, and examined Warden; in his words, "her countenance was sunken and ghastly; the whole body, and particularly the hands and feet, were covered with a cold perspiration; there was no pulse at the wrists or temples, and very indistinct pulsations over the heart—about 150 in a minute".Roughead (1913), p. 166. Taylor did not suspect poisoning; he believed that Warden was suffering from cholera. He told Smith that Warden was dying, and left the farm. Warden died at 9:00 that night; her last words were "My mistress gave me...", but she did not complete the sentence.Roughead (1913), p. 167. She was buried on 10 September in Murroes parish church.Roughead (1913), p. 168.
Exhumation and investigation Rumours began to spread that Warden had been poisoned by Smith because of her pregnancy, and her body was exhumed on 30 September. A post-mortem was conducted by three doctors: the Dr Taylor who had visited Warden at West Denside, and two other doctors from Dundee, named Ramsay and Johnston. The post-mortem was performed in the open air, on a gravestone in Murroes churchyard.Millar (1923), p. 176. The stomach and intestines were removed for further examination, and judging from the foetus, Warden was estimated to have been three months pregnant.Christison (1827), p. 453. The samples were tested for arsenic by Dr Ramsay and Dr Johnston, neither of whom had performed these tests before. Due to illness Ramsay did not attend every test, but Taylor was present.Christison (1827), pp. 453–456. Samples were also sent to Professor Robert Christison for testing.
The investigation led to Mary Smith being summoned to Dundee to be questioned. She refused to attend, saying she was unwell, but after being examined by Dr Johnston she met the Sheriff at Four Mile House, an inn partway between the farm and Dundee, on 2 October. She testified that she had given Warden nothing but castor oil in "lozenger wine", and that there was no poison kept at the farm.Roughead (1913), pp. 168–169. The Sheriff kept her in the Dundee prison overnight, and in the morning she changed her testimony, saying now that she recalled she had acquired some rat poison from Dundee a few days before Warden's death, and had left poisoned food in the walls of the loft above the bothy (a small farm building) as they had an infestation of rats. She also said she did not know it was poison—she had simply asked for "something to put away rats".Roughead (1913), p. 170.
Trial
Delays
Smith was committed for trial in Edinburgh on 12 October, and indicted on 12 December, with a trial date of 28 December. The lead defence lawyers were Francis Jeffrey and Henry Cockburn, both among Scotland's leading advocates:Roughead (1913), p. 171.Millar (1923), p. 183. Cockburn would be appointed Solicitor General four years later.MacIver (1979), p. 68. The prosecution was led by William Rae, the Lord Advocate, and included Robert Dundas and Archibald Alison. The bench consisted of David Boyle, the Lord Justice Clerk, and all five of the Lords Commissioners of Justiciary.
Smith's lawyers took advantage of an option in Scots law called "running criminal letters", a legal option that forced the prosecution to complete its case within sixty days, otherwise the accused would be freed.Millar (1923), pp. 183–184. The trial was delayed twice: Smith's lawyers notified the prosecution on 27 December that they proposed to present a defence of suicide, and to call forty-eight witnesses, and Rae asked for an adjournment to give him time to prepare. Rae's review of the new evidence was not completed by the new date of 12 January 1827, and another adjournment was requested.Roughead (1913), pp. 170–171.
The trial finally began on 5 February, at about 9:30 in the morning. At 5:30 p.m., one of the jurors fell ill and the proceedings were paused while two doctors present at the trial, Dr Mackintosh and Professor Robert Christison, attended to him. Christison returned to the court and testified that the juror had had an epileptic fit and would have to be excused from the case. This led to another delay to determine whether the case could be continued, or if a new indictment should be sought.Christison (1827), pp. 441–442. The question was a new one in Scottish jurisprudence; no similar incident had occurred before.Millar (1923), pp. 186–191. The court met again a week later, on 12 February; Rae was joined by John Hope, the Solicitor General for Scotland. Rae argued that a new jury should be seated; Cockburn objected that the trial could not continue based on the same indictment for which the jury had been originally sworn in. The judges decided for Rae, and the trial was begun again on 19 February with a new jury.Roughead (1913), pp. 172–175.
Testimony Norrie testified that Warden had told her that Smith had promised to get her something: Smith had known she was pregnant, "but she would have something for her, be the cost what it would". According to Norrie, Smith had told her there was no poison in the house except some king's yellow, a sulfide of arsenic, and that she had given Warden nothing but castor oil. Norrie said she had only ever seen one rat in the cowshed and had never heard of rat poison being set. Under Jeffrey's cross-examination Norrie repeated some words of Warden's about being unfit for her work, and "".Roughead (1913), pp. 175–176. Barbara Small, another of the servants at West Denside, testified that she had never heard Warden say she might harm herself. Mrs. Warden, Margaret's mother, repeated the conversations she had had with Margaret, making it clear that the pregnancy had not led to a rift between them and that Margaret would have been welcome to stay with her at her home, and had planned to until Smith persuaded her to return to West Denside. Another servant, Ann Brown, said she had spoken to Warden shortly before her death, and Warden had said she "".Roughead (1913), p. 177. The family physician, Dr Dick of Dundee, confirmed that Smith had bought an ounce and a half of arsenic from him, and that he had made sure she knew it was poisonous.Roughead (1913), p. 178.
Medical evidence came from a doctor called by the defence, who testified that he had examined Mary Smith on 1 October, and again on 2 October after she had been questioned at Four Mile House by the Sheriff, and concluded that she was not in a fit state to be examined and might have been suffering from loss of memory. Dr Johnston, who had examined her on 1 October, testified that she had seemed fit and able at that time.Roughead (1913), pp. 179–180. All three of the doctors who had conducted the post-mortem gave evidence, and stated the cause of death as poisoning by arsenic; Professor Christison was also called as a medical witness and agreed with the diagnosis. There was some disagreement over when the fatal dose of arsenic had been administered, since the symptoms appeared more slowly than would normally be expected. Ramsay considered that the dose Warden took on the evening of Tuesday 5 September must have been arsenic, but Christison believed it must have been administered later than that. Two doctors were called to testify for the defence: Dr Fyfe argued that Christison's explanation of the appearance of the arsenic in the post-mortem was unlikely to be correct, and Dr Mackintosh tried to assert that Warden might have died of cholera, though under cross-examination he admitted he himself believed that arsenic had been the cause of death.Roughead (1913), pp. 179–181.