this brief of messrs. lumley & lumley, characterized in the preceding letter of secretary blaine as “very able” and “unanswerable,” is too long for reproduction in these pages in its entirety, and hence only the main points are given. the document was prepared at the instance of lord russell of killowen for submission to himself and three other queen’s counsel, with a view of obtaining a new trial. it may interest the reader to know that the money required to make this searching analysis by messrs. lumley & lumley was raised by a popular subscription in america, through the good offices of the new york world. the eminent queen’s counsel, after a full consideration of the analysis of the case, submitted the following opinion:

opinion—re f. e. maybrick

“having carefully considered the facts stated in the elaborate case submitted to us by messrs. lumley & lumley, and the law applicable to the matter, we are clearly of opinion that there is no mode by which in this case a new trial or a ‘venire de novo’ can be obtained, nor can the prisoner be brought up on a ‘habeas corpus,’ with the view to retrying the issue of her innocence or guilt.

“we say this notwithstanding the case of regina vs. scarfe (17 q. b., 238, 5; cox, c. c., 243; 2 den., c. c., 281).

“we are of opinion that in english criminal procedure there is no possibility of procuring a rehearing in the case of felony where a verdict has been found by a properly constituted jury upon an indictment which is correct in form. this rule is, in our opinion, absolute, unless circumstances have transpired, and have been entered upon the record, which, when there appearing, would invalidate the tribunal and reduce the trial to a nullity by reason[264] of its not having been before a properly constituted tribunal. none of the matters proposed to be proved go to this length.

“we think it right to add that there are many matters stated in the case, not merely with reference to the evidence at and the incidents of the trial, but suggesting new facts, which would be matters proper for the grave consideration of a court of criminal appeal, if such a tribunal existed in this country.

(signed)

“charles russell, q.c.

“i. fletcher moulton, q.c.

“harry bookin poland, q.c.

“reginald smith, q.c.

“lincoln’s inn, 12th april, 1892.”

this opinion was based upon the following points, presented by messrs. lumley & lumley:

justice stephen’s misdirections

the misdirections which are selected for consideration may be conveniently classed, among others, under these headings:

1. as to the facts disclosed in the evidence[265] of the procuring and possession of arsenic by mrs. maybrick and of her administering it.

2. as to the cause of death.

a perusal of the summing-up from beginning to end impresses the mind with the feeling that, whenever mr. justice stephen approached any fact offered by the defense which threw light upon the possession and an alleged administration of arsenic by mrs. maybrick, he drew the minds of the jury away from it; he played, in fact, the part of the peewit, which swoops and screams in another part of the field on purpose to hide where its nest is, and to draw the attention of the passers-by from the right spot.

mr. justice stephen pointed out to the jury in his summing-up: “you must begin the whole subject of poison with this, which is a remarkable fact in the case and which it seems to me tells favorably rather than otherwise for the prisoner. you must take notice of it and consider what[266] inference you draw from it. in the whole case, from first to last, there is no evidence at all of her having bought any poison, or definitely having had anything to do with procuring any, with the exception of fly-papers. but there is evidence of a considerable quantity having been found in various things, which were kept some here and some there—kept principally, as i gather, in the inner room.[6] ... there is evidence about a considerable quantity of poison in this house, and more particularly about one or two receptacles which were in the inner room, mr. maybrick’s dressing-room, as it has been pointed out.”

misdirection as to mr. maybrick’s symptoms

from the testimony it appears that on the 27th of april james maybrick, before starting to the wirrall races, was sick. there is no actual evidence of vomiting,[267] but he is described as sick, and as feeling a numbness in his legs while walking downstairs, which was an old-standing complaint of his of many years. both he himself and mrs. maybrick told the servants that this was due to a double dose of some london medicine. he got wet through at the races and dined in his wet clothes at a friend’s (mr. hobson), on the other side of the mersey, and did not return home till after the servants had retired to bed; but the next morning, sunday, the 28th of april, he was taken ill, and mrs. maybrick sent a servant off hurriedly for dr. humphreys, who had not attended her husband before, but who was the doctor living nearest the house, and in the mean time got some mustard and water, telling him to take it, as it would remove the brandy at all events. dr. humphreys attended james maybrick on the 28th, but was not told by him that he had vomited the day before.

mr. justice stephen, when referring to[268] this, said: “the wirrall races were followed by symptoms which were described to be arsenical.” it is submitted that this was a misdirection, the symptom there referred to being sickness, and there was no evidence of vomiting on any of the days immediately succeeding the wirrall races. but on the 28th of april the mustard and water was given him by mrs. maybrick for the purpose of producing sickness and removing the brandy, and if he had been sick it would have been attributable to mustard and water, not to arsenic.

on the other hand, the medical evidence showed that gastro-enteritis might have been set up either by improper food or drink, or an excess of either; or, again, by such a wetting through as deceased got at the wirrall races. on the 8th of may alice yapp communicated to mrs. briggs and mrs. hughes her suspicions that james maybrick’s illness was due to mrs. maybrick poisoning him with fly-papers.

misdirection as to mrs. maybrick’s access to poisons

the purchase and soaking of fly-papers is the only direct evidence of the possession of arsenic in any form by mrs. maybrick, but the judge told the jury, and it is submitted it is a gross misdirection, that mrs. maybrick “undoubtedly had access to considerable quantities of arsenic in other forms,” inasmuch as the only evidence as to such access was that after the death of james maybrick these two women, mrs. briggs and alice yapp, who exhibited the most unfriendly feeling toward her, said they had found in the house certain stores of arsenic.

it is submitted for the serious consideration of counsel that the circumstances under which these two women produced these stores of arsenic are so suspicious as to justify the suggestion that that arsenic was not there before his death, and that mrs. maybrick never did have any access to it[270] or knowledge of it at all. there was no evidence as to where or by whom this arsenic was obtained, nor was there any evidence that the police had made any effort to discover where, when, or by whom that arsenic was procured.

[note.—how and when this arsenic may have been procured by mr. maybrick himself will appear further on as a part of the new evidence.]

the places in which arsenic was found were open and accessible to every one in the house, and no person gave any evidence that he or she had ever seen it in the house before these two women found it after death.

as regards the black powder (arsenic mixed with charcoal) and the two solutions of arsenic produced by mrs. briggs and alice yapp, mr. davies, the analyst, gave evidence that, when analyzing the contents of the various bottles, he had searched diligently and microscopically for any traces, and could find no trace of charcoal having[271] been introduced into any of them. so this circumstantial evidence may be eliminated.

as regards white arsenic, also produced by these women, it must be observed that not only was it not shown that mrs. maybrick had purchased any, but it is submitted that the judge ought to have pointed out to the jury, as the fact is, that it would have been almost impossible for her or any woman to have obtained any white arsenic at all. no shopkeeper dare sell it to any one except to a medical man, and even then under the stringent restrictions of the sale of poison act.

at the trial a wholesale druggist (thompson, of liverpool) gave evidence that james maybrick constantly visited his cousin, who had been in his employment at his stores, where he could have obtained white arsenic from him without any difficulty; and it will be observed that it was found in his hatbox.

it is a remarkable thing in this connection that, while edwin maybrick called the[272] police in on sunday night, and gave them the black solutions and white solutions which mrs. briggs had found on the sunday morning, he did not give them the black powder which alice yapp had found on the-night before; and, in fact, that michael maybrick did not give it to the police until tuesday, the 14th.

it is also a remarkable fact that, although these black solutions and that white solution of arsenic and that solid arsenic which mrs. briggs had found, were not handed by the police to the analyst until several days afterward, and were therefore not known to be arsenic by anybody, yet mrs. briggs was able to inform mrs. maybrick on tuesday, the 14th, as was testified to, that these bottles contained arsenic.

it is submitted that mrs. briggs could not have known that without some other means of knowledge than looking at them.

the importance of this misdirection of the judge as to the question of possession of arsenic by mrs. maybrick can not be[273] overstated. it was conclusively shown that no decoction of fly-papers or of the black powder was the source of the arsenic with which certain articles found in the house and office were said to be infected, because the analyst said he had searched for the fibers of the papers and for the charcoal, and could not find any traces of either. if mrs. maybrick knew of the pure arsenic, why should she have bought the fly-papers, either for a cosmetic purpose or murder, and what should she have wanted with “poison for cats?”

misdirection as to “traces” of arsenic

out of the list submitted by the police, therefore, the only two things which could have been the source of the arsenic were the bottle of saturated solution, no. 10 in the police list, and the bottle of solid arsenic, no. 11 in the police list.

it may be observed that if all the arsenic or “traces” of the same, with which various[274] things were said to be infected, were collected together, it would not constitute a fatal dose, the smallest fatal dose recorded being two grains, and this in the case of a woman, and surely not in the case of a person addicted to large doses of arsenic.

at the inquest mr. davies defined what he meant by the word “trace.” he said:

“it means something under 1/100 part of a grain. it does not mean something which i could not weigh, but something which i could not guarantee to be absolutely free from other things; but anything under 1/100 part of a grain i should not consider satisfactory. if i said distinct traces, i should say it meant something between 1/100 and 1/1000 part of a grain, while a minute trace is less than 1/1000 part of a grain.”

in reference to reinsch’s test which mr. davies used in these experiments, this passage occurs in taylor’s “medical jurisprudence,” vol. i., p. 268: “the mere presence of a gray deposit on pure copper affords no absolute proof of the presence of arsenic.[275] bismuth, antimony, and mercury all yield deposits with reinsch’s test. the gray deposit of bismuth may easily be taken for arsenic.” and again: “the errors into which the faulty methods of applying reinsch’s test lead have led its reliability to be much discredited, and, although in skilful hands the results are trustworthy, it would be perhaps unsafe to rely upon it in an important criminal investigation.”

it is submitted that the evidence relating to the articles which mr. davies said were infected with arsenic only to the extent of an unweighable trace could not and ought not to be regarded as proof that any arsenic at all was there, or as being anything more than a suspicion upon this analyst’s mind that what he saw was arsenic, and that it was a misdirection on the part of mr. justice stephen to treat a mere expression of opinion of that kind as proof of the presence of arsenic.

misdirection as to arsenic in solution

it will be observed that the only things of which james maybrick could have partaken [but did not], in which arsenic in a weighable form was present, were the bottle of valentine’s meat juice and the pot of glycerin, and that the arsenic found in them was found in a state of solution.

as regards the half grain of arsenic found in the meat juice, scientific evidence will be forthcoming that it is a physical impossibility for any person to dissolve half a grain of solid arsenic in 411 grains of valentine’s meat juice, which is all the liquid that was in the bottle when it was handed to mr. davies.

mr. davies, moreover, found that (although he used very loose and unscientific language in his evidence) the specific gravity of the meat juice was considerably reduced, thereby showing that the half grain of arsenic found in it had been introduced in the form of arsenic in solution.

it will now be observed that the only arsenic in solution which was available, among the stores of arsenic found in the house, was the bottle no. 10 in the police list, and it is submitted that bottle no. 11 (solid arsenic) must, like the black solutions, be eliminated from any store of arsenic which mrs. maybrick, whether she had access to it or not, could have employed for the purpose of infecting any of the things found in the house to be infected.

mr. davies described the bottle no. 10 as a saturated solution of white arsenic, and he stated that it had been dissolved with water, some of the crystals remaining at the bottom undissolved.

at the inquest he stated, in reply to a question by the coroner: “the bottle no. 10, which was also in the box, contained a saturated solution of arsenic and solid arsenic at the bottom. there was no label on it. it contained, solid and liquid, perhaps two grains—a grain at all events.”

so it is evident that there was not a fatal[278] dose even in the stores which mrs. maybrick could have used had she had access to it.

as regards this bottle, mr. justice stephen told the jury: “a saturated solution is a solution which has taken up as much arsenic as it can, the water becoming saturated with arsenic; the remainder of the arsenic is found at the bottom. in this case there was a saturated solution of arsenic in the water and a small portion of arsenic at the bottom. with regard to that these questions arise: what was it for? who is wanting such a quantity of strong solution of arsenic? who has put it there and how is it to be used? these are the questions, in the solution of which i can not help you. there is nothing definite about it to connect mr. maybrick with it certainly.[7] if he was in the habit of arsenic eating he would not keep it saturated in[279] water in quantities he could not possibly use.”

mr. davies found that this bottle “contained in solid and liquid perhaps two grains—a grain at all events.” now arsenic can be dissolved in water by two processes. in cold water by shaking it constantly for several hours (and the strongest solution that can be obtained by the cold-water process is a one-per-cent. solution, which is no stronger than the ordinary fowler’s solution as sold in the shops). that is called a “saturated solution” by the cold-water process. a solution of three or even four per cent. can be obtained with boiling water, but only when the water is kept on the constant boil for several hours; and that is also called a “saturated solution,” so that the phrase “saturated solution” may mean either a weak solution of one per cent., such as is gained by the cold-water process, or a stronger solution of three per cent. by the boiling-water process, and mr. justice stephen[280] misdirected the jury as to the meaning of the phrase “saturated solution.” he should have told them that a “saturated solution” of arsenic is one which has by any particular process taken up as much arsenic and retained it in solution as is possible by that particular process, and that it might consequently be either a weak or a stronger solution, according as it has been dissolved by the cold-water or boiling-water process, by shaking for hours or boiling for hours.

the questions put to the jury by mr. justice stephen upon the interpretation of the phrase “saturated solution” which he gave, namely, “how is it to be used?” “who is wanting such a quantity of strong solution of arsenic?” are misdirections.

mr. clayton’s experiments

counsel are referred to experiments made with solutions of arsenic by mr. e. godwin clayton, of the firm of hassall &[281] clayton. from these it will be seen that by the experiment there marked b, where the arsenic was shaken at intervals of twenty minutes for six hours, the result shows that it would require 186? grains of water to carry half a grain of arsenic. and that by experiment c, which is the strongest possible solution by the cold-water process, namely, one-per-cent. strength (equal to fowler’s solution), it would require 50 grains of water to carry half a grain, but to obtain this the arsenic has to be shaken with cold water at frequent intervals for four days.

mr. godwin clayton, in his report as to these experiments, remarks: “i think, however, that as few people outside a chemical laboratory would have the patience or opportunity to make a solution by shaking it at short intervals during four days, the solution obtained in experiment b—namely, an arsenical strength of 0.268 per cent.—might be described in a popular[282] sense, though not with strict scientific accuracy, as ‘saturated solution of arsenic.’” but then if that be so, that is only about a quarter of the strength of fowler’s solution! the evidence of mr. davies as to the specific gravity of the meat juice being considerably reduced ought, it is submitted, not to have been received as scientific evidence, and it was a misdirection to treat it as such, because without the slightest difficulty, as will be seen by a reference to mr. godwin clayton’s experiments, mr. davies’s evidence ought to have been scientifically exact, because he could have shown that (for example) if a solution of the strength of experiment b had been used, the 411 grains of liquid would have contained 186? of solution of arsenic and 244? grains of meat juice; and, further, that the specific gravity of the meat juice would, in that case, have been lowered from 1.2143 to 1.1263; and it was, therefore, not only possible, but the duty of mr. davies, as an expert, to have shown, by[283] comparing the specific gravity of the bottle no. 10 and the specific gravity of valentine’s meat juice, that the “arsenic in solution” which had been introduced into it had been introduced into it out of that particular bottle, no. 10.

then, again, it will be seen from these experiments of mr. godwin clayton that if the solution in bottle no. 10 had been a strong hot-water solution of three per cent., the specific gravity would not have been considerably reduced, because the meat juice would in that case have contained only 15? grains of arsenical solution. to have obtained such a solution, the “arsenic powder” must have been boiled with distilled water for four hours; and it is submitted that it would have been impossible, in the first place, for mrs. maybrick, or any person outside a laboratory, to have adopted such a process of dissolving arsenic without the knowledge of the servants or anybody else; and, further, that even if she could have done this, she could not have possibly[284] weighed out exactly half a grain of it, which is what mr. davies found; and it is suggested that the only way in which that half grain of arsenic could possibly have been measured into that bottle, must have been by introducing fowler’s solution, and no fowler’s solution was found in the house—and in no way was it suggested that mrs. maybrick had any access to any, though others in that house may have been able to procure such a medicinal dose of it.

misdirection as to arsenic in glycerin

as regards the glycerin, inspector baxendale said he found this bottle in the lavatory on the 18th of may. there was no evidence that this bottle had ever been in mrs. maybrick’s hands, and there was no evidence that any part of it had been used by james maybrick. there was evidence that it was a freshly opened bottle. scientific evidence will be forthcoming that it is[285] an absolute impossibility for any person to distribute arsenic evenly through a pound of glycerin.

it is suggested that there is no possible means by which that glycerin could have been administered with a felonious intent to james maybrick; the mere moistening the lips with small quantities of it could not have operated in that way.

scientific evidence will be forthcoming that glycerin, when kept in glass bottles, generally does contain arsenic, which it extracts from the glass of the bottle.

in 1888 jahns drew attention to arsenic being present in glycerin—chemische zeitung.

in 1889 vulpius also drew attention to it—apotheker zeitung.

siebold (see pharmaceutical journal, 5th october, 1889) said, at the pharmaceutical conference, on the 11th september, 1889, that his experiments were made with toilet and pharmaceutical glycerin, and that the majority showed presence of arsenious[286] acid, varying from 1 grain in 4,000 to 1 grain in 5,000.

it may be pointed out that this is a larger quantity than mr. davies found, which was only “about 1/10 of a grain in 1,000 grains.”

the evidence relating to the administration of glycerin was that of nurse gore and nurse callery, and was to the effect that on thursday night they refreshed james maybrick’s mouth with glycerin and borax mixed in a saucer that was on the table in the sick-room, and that mrs. maybrick had brought the glycerin that was used either from the medicine cupboard in her room or from the washstand drawer.

the attention of counsel is called to the fact that this saucer of mixed glycerin and borax which was actually used was not produced at the trial, but justice stephen, when summing up to the jury, said: “then you get the blue bottle which contained price’s glycerin. here is the bottle, which there is no evidence to show that[287] mrs. maybrick had even seen or touched; a considerable portion is still left. that glycerin was found in the lavatory outside, and if the bottle were filled and the same proportion of arsenic added, there would be two-thirds of a grain of arsenic in it. you have heard already that his mouth was moistened with glycerin and borax apparently the night before he died. if that be so, and the glycerin be really poison, it is certainly a very shocking result to arrive at.” sir charles russell: “i think the evidence of nurse gore is that the bottle that was used the night before was taken, not from the lavatory, but from the cupboard of the washstand.” his lordship: “it does not follow that that was the same bottle. one does not know the history of that bottle or where it went to. it may or may not have been the glycerin which was used for the purpose i have mentioned, namely, for moistening the lips. but it does appear in the case that a bottle was found in the lavatory, and that it contained[288] a grain of arsenic, and that his mouth was moistened with glycerin and borax during the night in question; but the identity between that bottle and the bottle which contained the glycerin is not established and not proved.”

it is submitted that the above was an unfair and inflammatory suggestion, and amounts to a gross misdirection, especially after all the evidence about the condition of deceased’s tongue and his complaining of a sensation as of a hair in his throat.

this concludes the whole of the evidence to any articles containing arsenic which were found in the house, in which the arsenic was present in anything except as unweighable “traces.”

misdirection as to evidence of physicians

justice stephen further summed up: “the witness (dr. stevenson) stated: ‘i should say more arsenic was administered[289] on the 3d of may.’” it will be seen, by a reference to dr. stevenson’s evidence, that dr. stevenson did not say this.

copyright, 1904, by pach bros., new york.

hon. john hay,

american secretary of state, 1898—

dr. humphreys was the only medical man in attendance at that time. the only symptoms on friday, the 3d, were that he had “vomited twice.” at the inquest dr. humphreys said as to this:

q. “did he say anything about his lunch on the previous day, thursday, the 2d?”

a. “yes; he said some inferior sherry had been put into it, and that it had made him as bad as ever again.”

and that also appears in dr. stevenson’s evidence at the trial:

“he told the doctor he had not been well since the previous day, when i learn he had his lunch at the office.”

it can not be suggested that the fact that the man vomited twice on friday night was attributable to any arsenic taken at midday on thursday, for dr. stevenson testified that the vomiting, which is a[290] symptom of arsenic, usually follows the administration in about half an hour.

dr. carter, who was not called in to the patient until tuesday, may 7th, in his evidence, however, suggested that:

“i judge that the fatal dose must have been given on friday, the 3d, but a dose might have been given after that. when he was so violently ill on the friday, i thought it would be from the effects of the fatal dose, but there might have been subsequent doses”; and in cross-examination he explained that he had made this suggestion about the fatal dose because: “i was told he was unable to retain anything on his stomach for several days.”

it is submitted that the judge, when summing up, misdirected the jury by ignoring entirely the evidence and substituting for it this reckless suggestion of dr. carter’s.

misdirection as to times when arsenic may have been administered

the only occasions on which it was possible to suggest any act of administration of arsenic were the medicine on the 27th of april and the food at the office on may 1st and may 2d; and the judge told the jury:

“the argument that the prisoner administered the arsenic is an argument depending upon the combination of a great variety of circumstances of suspicion. the theory is that there was poisoning by successive doses, and it is rather suggested that there may have been several doses. but i do not know that there was any effort made to point out the precise times at which doses may have been administered.”

under such circumstances it is submitted that the statement of the judge as to the medicine on the 27th of april, and as to the food at office, and as to the statement that “friday (3d may) was the day[292] on which began the symptoms of what may be called the fatal dose,” are misdirections of vital importance to this case, and such as to entitle mrs. maybrick to have the verdict set aside and have a new trial ordered.

misdirection as to mrs. maybrick’s changing medicine bottles

as regards the question of attempts to administer arsenic, the occasions upon which such conduct was imputed are changing medicine from one bottle into another and the valentine’s meat juice. as regards the changing the bottle, there were two occasions when evidence was given as to mrs. maybrick’s doing this. the first was on the 7th of may, when alice yapp said that some of the medicines were kept on a table near the bedroom door and some in the bedroom, and that on tuesday, 7th of may, she saw mrs. maybrick on the landing near the bedroom door, and what was she doing? she was[293] apparently pouring something out of one bottle into another. they were medicine bottles.

that is the whole evidence as to the incident, and as all the bottles in the house were analyzed, and none found to contain even a trace of arsenic except the clay and abraham’s bottle—which james maybrick was not taking at that time—the judge could not properly direct the jury to regard it as a matter of suspicion; but he did do so. he referred to this incident thus:

“on the 28th april (the day after the wirrall races) mrs. maybrick sent for dr. humphreys, and afterward she was seen pouring medicine from one bottle into another.”

it is submitted that this was a serious misdirection.

the other occasion was on friday, the 10th of may, when michael maybrick, seeing mrs. maybrick changing a medicine from one bottle to another in the bedroom, took the bottles away and had the prescription[294] made up again, saying: “florrie, how dare you tamper with the medicine?” mrs. maybrick explained that she was only putting the medicine into a larger bottle because there was so much sediment. nurse callery was present and there was no concealment about what she was doing, and the bullying conduct of michael was absolutely without any sort of justification. these bottles were analyzed and found to be harmless.

mr. justice stephen turned this incident, which occurred on the afternoon before death, and after she had been prevented from attending on her husband, against mrs. maybrick, thus—quoting michael’s evidence: “in the bedroom i found mrs. maybrick pouring from one bottle into another and changing the labels, and i said, ‘florrie, how dare you tamper with the medicine?’” and justice stephen continued: “verily, this was a strange—i don’t say strange considering the circumstances—but dreadfully unwelcome remark to[295] make to a lady in her own house, when she was in attendance on her husband, and something which showed the state of feeling in his mind, and must have attracted her attention.” it is submitted that this was a misdirection.

misdirection as to administration with intent to kill

there was also an attempt by the prosecution to suggest an attempt to administer medicine, arising out of an occasion when james maybrick said to her, “you have given me the wrong medicine again,” from which it appears that on the friday, the day before death, mrs. maybrick was not giving him anything at all, but was trying to get him to take some medicine from nurse callery, who was endeavoring to induce him to take it. this was one of the medicines ordered by dr. humphreys, and was found free from arsenic. the [296]judge did not refer to this in his summing-up,

but reference to it is introduced here

because it exhausts the whole evidence, with the exception of the valentine’s meat juice incident, as to any suggestions or even of any occasions of attempt to administer, while mr. matthews advised the queen that “the evidence leads clearly to the conclusion that the prisoner administered and attempted to administer arsenic to her husband with intent to murder,” which formed his ground for consigning this woman to penal servitude for life. no evidence, either of any act of administration or of any act of attempt to administer either with or without felonious attempt, was given at the trial, which possibly could have led any person to any such conclusion, with the single exception of the valentine’s meat juice; and as none of that was administered after it had been in mrs. maybrick’s hands, the utmost that could be said of it (assuming that she did put any arsenic into it) is that it was an attempt to administer, either feloniously or otherwise.[297] it is submitted that the judge misdirected the jury as to this incident, in that he did not tell them that the mere evidence of an attempt to administer arsenic was not sufficient—that they must be satisfied that the attempt to administer was with a mens rea and with an intent to murder.

exclusion of prisoner’s testimony

mrs. maybrick voluntarily told her solicitors, mr. arnold and mr. richard cleaver, directly she was arrested and even before the inquest, that she had, at her husband’s urgent request, put a powder into a bottle of valentine’s meat juice, but that she did not know, until mrs. briggs informed her that arsenic had been found in a bottle of meat juice, that the powder she had put in was assumably arsenic. [at the trial both mr. richard and mr. arnold cleaver, her solicitors, offered to give evidence to this effect, but justice stephen refused to admit it.] she also tried to tell[298] mrs. briggs the same thing, but the policeman stopped the conversation; and she also told it to her mother on her arrival. mrs. maybrick made no attempt at concealment about having put this powder in, although no one had seen her do it, and her solicitors, instead of relying as a line of defense on showing there was no “mens rea” in what she had done, kept back her account of what she had done. at the trial, however, after all the evidence for the prosecution had been concluded without a single witness speaking of her having put anything into anything, she insisted on telling the jury, as she had told her solicitors, that she did put a powder into a bottle of meat juice, in accordance with an urgent request of her husband’s, but that she did not know it was arsenic. if she did not know, there was no “mens rea.” upon that evidence, and upon certain suspicious circumstances connected with her conduct in taking the meat juice into the dressing-room and replacing it in the bedroom, the[299] judge, as it is submitted, misdirected the jury in the following passage:

“mr. michael maybrick says: ‘nothing was given to my brother out of that.’ that is to say, nothing was given to him out of the bottle of valentine’s meat juice, which undoubtedly had arsenic in it. its presence was detected, but of that bottle which was poisoned he certainly had none. he had a small taste of it before it was poisoned, given him by nurse gore.”

it is submitted that the words “before it was poisoned” is a gross misdirection.

misdirection as to identity of meat-juice bottle

it may be convenient here to interpose the following remarks on the subject of the identity of the bottle. counsel will observe that the judge referred to the evidence at the inquest and at the magisterial inquiry, which, it is suggested, enables a reference to any discrepancies in the evidence[300] of the witnesses on the three occasions—inquest, magisterial inquiry, and trial.

the identity of the half-used bottle, which was found to contain “half a grain of arsenic in solution,” with the bottle which mrs. maybrick took into the dressing-room, was not proved. it was assumed alike by the prosecution and the defense, and by mrs. maybrick herself, but it was not proved. it was proved that there was another half-used bottle, of which james maybrick had partaken on monday, 6th of may, when dr. humphreys said:

“some of the valentine’s meat juice had been taken, but it did not agree with the deceased and made him vomit. witness did not remember him vomiting in his presence, but he complained of it. witness told deceased to stop the valentine’s meat juice, and said he was not surprised at it making mr. maybrick sick, as it made many people sick.”

there was, therefore, another half-used[301] bottle. the attention of counsel is strongly directed to the question of the identity of this half-used bottle.

besides the one in which the arsenic was detected, there was another half-used bottle produced at the trial, which was found by mrs. briggs after death in one of james maybrick’s hatboxes in the dressing-room, together with the black solutions and white solutions of arsenic, and this bottle was found free of arsenic.

as to the bottle which mrs. maybrick had in her hands on the night of the 9th-10th of may, and which she took into the dressing-room, and as to which she volunteered the statement that she had put a powder in, as to which evidence was given by nurse gore, was thus voluntarily corroborated by mrs. maybrick in her statement to the jury. from this it appears that nurse gore, on her arrival for duty on thursday night, opened a fresh bottle of meat juice, which had been given to her the night before by edwin maybrick, and[302] gave the patient one or two spoonfuls, and then placed it on the table, from which she shortly afterward saw mrs. maybrick remove it and take it into the dressing-room, the door of which was not shut, and then return with it into the bedroom and replace it on the table. nurse gore thought she did this in a stealthy way. it must be remembered that nurse gore was naturally suspicious, as is shown by the fact that on two previous occasions she suggested suspicions with regard to changes in medicines by mrs. maybrick, which on analysis were proved to be free from arsenic. when the patient, a short time afterward, awoke, mrs. maybrick came into the bedroom again and removed the bottle from the table and placed it on the washstand, where there were only the ordinary jugs and basins, and there left it. nurse gore’s usual suspicions were aroused and she gave the patient none of it, nor did mrs. maybrick ask her to give him any. when nurse gore was relieved by nurse callery the[303] next morning (friday, the 10th), at 11 o’clock, she called her attention to it and asked her to take a sample of it, which callery did, and put it into an ordinary medicine bottle, which nurse gore gave her for the purpose. nurse gore left the bottle on the washstand where mrs. maybrick had placed it. nurse gore did not mention the circumstance to dr. humphreys when he came to see the patient at 8:30 a.m., nor to michael maybrick, whose attention she directed to a bottle of brandy instead, which on analysis was found harmless; and she then went into liverpool and saw the matron, and on her return to the house at 2 o’clock told callery to throw away the sample in accordance with the matron’s orders, which callery did. the bottle in which that sample was taken was not specially identified, though it must have remained on the premises. it ought to have been produced, because, if arsenic was detected in the sample, the bottle of valentine’s meat juice would have been[304] identified by that means, and it would have been shown that the arsenic was in the meat juice which mrs. maybrick had taken into the dressing-room. on the other hand, as all the bottles which were in the house were analyzed and found free of arsenic, there is negative evidence that there was no arsenic in the sample taken.

misdirection in excluding corroboration of prisoner’s statement

now the serious, most serious, consideration of counsel is asked for in comparing the evidence of these three witnesses—gore, callery, and michael maybrick—as given at the coroner’s inquest, as it appears in the coroner’s depositions, at the magisterial inquiry, as it appears in the magistrates’ depositions, and as given at the trial. it will be seen that there are great discrepancies as to the place in the room from which michael maybrick took the half-used bottle in which mr. davies, the analyst,[305] subsequently detected one-tenth of a grain of arsenic in solution. it is suggested that mr. michael’s evidence at the inquest is the true account of where he got the bottle, and that his evidence at the trial is cooked, to suit the evidence of gore, and that the identity of the bottle is not established. the statement, which in her statement to the jury mrs. maybrick said she was prevented by the policeman from making to mrs. briggs, the moment that person told her about arsenic being found in the meat juice, was communicated by mrs. maybrick at once to her solicitors, mr. arnold and richard cleaver; and it is submitted that it was a misdirection of the judge to exclude their evidence in corroboration of such a material and important fact in her favor, and a misdirection in refusing to allow corroboration in that way of what was in evidence, and did corroborate it—thereby constituting a matter which the jury should have had before them, as having a bearing on her statement.

misdirections to jury to draw illegal inferences

the judge referred to the valentine’s meat-juice incident, the most vital point in the trial, in the following extraordinary manner at the end of his summing-up:

“i may say this, however: supposing you find a man dying of arsenic, and it is proved that a person put arsenic in his plate, and if he gives an explanation which you do not consider satisfactory—that is a very strong question to be considered—how far it goes, what its logical value is, i am not prepared to say—i could not say, and unless i had to write my verdict i should not say how i should deal with the verdict; but being no juryman, but only a judge, i can only say this, it is a matter for your serious consideration.”

it is submitted that this was a gross misdirection and a cruel taunt to drive the jury into finding a verdict against the prisoner[307] upon that ground, and it is submitted that so monstrously unfair an utterance can not be found in the reports of any summing-up by any judge in any criminal case. see also another misdirection where the judge read the examination of nurse gore and omitted reference to the sample, but said of the bottle, “in point of fact, it remained where it was until taken away by mr. michael maybrick,” when it is in evidence that nurse callery had taken a sample of it during the eighteen hours it remained on the washstand, and that others beside mrs. maybrick had access to it.

it is submitted that, apart from the question of the identity of the bottle, there was no evidence, except mrs. maybrick’s statement, that she had put anything into the bottle, which justified mr. justice stephen in using the words, “he had a small taste of it before it was poisoned,” inasmuch as, except mrs. maybrick’s own voluntary statement that she had put a powder into a bottle of meat juice, there was nothing to[308] show that the arsenic, detected by mr. davies in the bottle he analyzed, had not been in the bottle when edwin maybrick gave it to nurse gore and which she opened when she gave the patient “one or two spoonfuls.”

another misdirection in reference to the meat-juice incident will be found in the summing-up in the words:

“it has a sort of very remote bearing upon the statement which she made on monday.”

instead of “a sort of very remote bearing,” it was a matter of the greatest importance that it should be shown that at the very instant she heard that arsenic had been found in some meat juice, before even the inquest, and before any arsenic had been found in the body, she should have attempted to tell mrs. briggs that she had put a powder into some meat juice, but did not know what it was; and, in connection with this, the attention of counsel is called to the fact that mr. justice[309] stephen refused to allow evidence showing that she had made this statement from the very first.

misdirections regarding the medical testimony

as to the cause of james maybrick’s death, there was a most remarkable conflict of medical opinion. it was not until the post-mortem examination, held on monday, the 13th of may, by drs. carter and humphreys (the medical men who had attended the deceased during his illness), and dr. barron, that the cause of death was ascertained, and it was then found to be exhaustion, caused by gastro-enteritis or acute inflammation of the stomach and intestines, which, in their opinion, had been set up by an irritant poison, but might have been set up by his getting wet through.

these doctors agreed that by the phrase “irritant poison” they meant any unwholesome food or drink.

up to the time of death the doctors, messrs. humphreys and carter, had supposed and treated the patient for dyspepsia, notwithstanding that suggestions had been made to them by michael maybrick that the patient was being poisoned; and they said in their evidence that but for the discovery of arsenic on the premises, they would have given a certificate of death from natural causes.

at the post-mortem examination they selected such portions of the body for analysis as they considered necessary, including, among other things, the stomach and its contents; and the analyst employed by the police (mr. davies) found no arsenic in the stomach or its contents, and was unable to discover any weighable traces of arsenic in any other portions of the body.

about three weeks afterward the body was, by order of the home secretary, exhumed, and fresh portions of it were taken for analysis, some of which were examined by mr. davies and other parts[311] by dr. stevenson, one of the crown analysts.

in those portions taken at the exhumation, the total result of the search for arsenic in the body was that mr. davies actually found unweighable arsenic, 2/100 of a grain, in the liver, and dr. stevenson 76/1000 of a grain in the liver and 15/1000 in the intestines, making, when all added together, the total amount as found by mr. davies and dr. stevenson about one-tenth of a grain, made up of minute fractional portions of one-hundredths and one-thousandths.

it was shown in evidence that the smallest fatal dose of arsenic ever recorded was two grains, which was in the case of a woman, and who presumably was not an arsenic-eater.

it was shown in evidence that in the year 1888 mrs. maybrick had asked dr. hopper (who was at that time, and had been for many years, their regular medical attendant) to speak to mr. maybrick and prevent him taking certain medicines, which were[312] doing him harm; that early in march she made the same appeal to dr. humphreys, suggesting at the time that mr. maybrick was taking a white powder, which she thought was strychnin.

at the magisterial inquiry dr. humphreys stated that mrs. maybrick had, on the occasion of his being called in to the patient on the 28th of april, also spoken to him about her husband taking this white powder, and that in consequence of this he asked mr. maybrick about taking strychnin and nux vomica.

counsel will find proof, in the evidence given at the trial by dr. hopper, mr. heaton, nicholas bateson, esq., capt. richard thompson, thomas stansell, and sir james poole, ex-mayor of liverpool, as to the arsenic habit of james maybrick and his opportunities for obtaining the drug. [to which must now be added the statutory declaration of valentine charles blake, son of the late sir valentine blake, m.p., that he, about two months prior to mr.[313] maybrick’s death, had procured him 150 grains of arsenic.] it may be stated here that from the appearance of the little bottles in which the white arsenic was found, they had been in use for a long time and were such as would be found as sample bottles in the offices of business houses to which it is unlikely mrs. maybrick would have access.

it is submitted that the discovery of such a tiny quantity of arsenic in the body of a man addicted to such extraordinary habits might reasonably be accounted for by those habits.

conflict of medical opinion

the conflict of medical opinion which was exhibited on this trial arose upon the point as to whether arsenic had been the cause of the gastro-enteritis, of which it was admitted that the man died.

there was no conflict of medical opinion on the facts that the quantity found in the[314] body was insufficient to cause death, nor that gastro-enteritis might be set up by a vast variety of things besides arsenic—in fact, by any impure food or by excessive alcohol or by getting wet through. it was shown in evidence that mr. maybrick got wet through at the wirrall races on the 27th of april, and that he afterward went in his wet clothes to dinner at a friend’s on the other side of the mersey.

the conflict of medical opinion amounted to this, that the crown called drs. carter and humphreys, who both admitted that they had never previously attended a case of arsenical poisoning, nor had ever before attended a post-mortem examination of a person whose death had been attributed to arsenic—in short, that they had had no experience whatever. the crown also called dr. stevenson (who had not attended the deceased, but had conducted the analysis of parts of the body) as an expert in poisoning, and he said, as to the symptoms during life: “there is no distinctive diagnostic[315] symptom of arsenical poisoning. the diagnostic thing is finding the arsenic.”

the crown also had dr. barron, who had attended the post-mortem, and who expressed himself unable to say that arsenic was the cause of the gastro-enteritis.

these witnesses, it may be observed, gave their evidence both as to the symptoms during life and as to the appearances at the post-mortem before the medical evidence for the defense had been called.

the witnesses called for the defense had none of them attended the deceased, but were called as experts in poisoning, viz., dr. tidy, a crown analyst, dr. macnamara, and professor paul, who all gave positive evidence that neither the symptoms during life nor the appearance after death were such as could be attributed to arsenical poisoning; that, in fact, they pointed away from, instead of toward, arsenic being the cause of death.

the evidence of these witnesses was[316] summarized very fairly by mr. justice stephen.

in the face of such a conflict of medical opinion, it is submitted that mr. justice stephen should have refused to allow the jury to return any verdict of guilty at all.

misdirections as to cause of death

on the first day of his summing-up, however, mr. justice stephen told the jury as to the law under which they were to return their verdict: “you have been told that if you are not satisfied in your minds about poisoning—if you think he died from some other disease—then the case is not made out against the prisoner. it is a necessary step—it is essential to this charge—that the man died of poison, and the poison suggested is arsenic. this is the question you have to consider, and it must be the foundation of a judgment unfavorable to the prisoner that he died of arsenic.”

it is submitted that mr. justice stephen misdirected the jury when he told them to satisfy their minds whether he died from any other disease, inasmuch as the only question before the jury was whether the cause of death was arsenic.

“the question for you is by what the illness was caused. was it caused by arsenic or by some other means?”

it is submitted that that is a misdirection. it might have been put to a coroner’s jury, but it was not a question which should have been put to a jury at a criminal trial.

it is submitted that he misdirected the jury in not also telling them that it was essential to a verdict unfavorable to the prisoner that the arsenic of which he died had been administered by her, and also in not telling the jury that it was essential to a verdict unfavorable to the prisoner that, if she had administered any, she had done it with intent to destroy life.

misdirection to ignore medical testimony

mr. justice stephen then proceeded: “now, let us see what the doctors say. some say death was caused by arsenic, and others that it was not by arsenic—that he died of gastro-enteritis”; and he spoke of the medical evidence in a way which amounted to a direction to the jury that they were to treat it as tainted with subtle partisanship, and as evidence to which it was not necessary for them to attach serious importance. he, in fact, stated, and in so doing misdirected the jury, that though it was essential to a verdict unfavorable to the prisoner that he died of arsenic, that question was one which they, the jury, could come to their own opinion about, without taking into consideration the opinion of the medical experts, who had positively stated that arsenic was not the cause of death. in other words, he directed the jury that, as the medical experts could not[319] agree that the cause of death was arsenical poisoning, it was for them to decide that question from their own “knowledge of human nature.”

on the second day of the summing-up the judge told the jury (and it is submitted that it contains gross misdirections): “you must consider the case as a mere medical case, in which you are to decide whether the man did or did not die of arsenic according to the medical evidence. you must not consider it as a mere chemical case, in which you decide whether the man died from arsenic which was discovered as the result of a chemical analysis. you must decide it as a great, high, and important case, involving in itself not only medical and chemical questions, but embodying in itself a most highly important moral question—and by that term, moral question, i do not mean a question of what is right and wrong in a moral point of view, but questions in which human nature enters and in which you must rely on your knowledge[320] of human nature in determining the resolution you arrive at.

“you have, in the first place, to consider—far be it from me to exclude or try to get others to exclude from their own minds what i must feel myself vividly conscious of—the evidence in this matter. i think every human being in this case must feel vividly conscious of what you have to consider, but i had almost better say you ought not to consider, for fear you might consider it too much, the horrible nature of the inquiry in which you are engaged. i feel that it is a dreadful thing that you are deliberately considering whether you are to convict that woman of really as horribly dreadful a crime as ever any poor wretch who stood in the dock was accused of. if she is guilty—i am saying if my object is rather to heighten your feeling of the solemnity of the circumstances, and in no way to prevent you from feeling as you do feel, and as you ought to feel. i could say a good many other things about the[321] awful nature of the charge, but i do not think it will be necessary to do any one thing. your own hearts must tell you what it is for a person to go on administering poison to a helpless, sick man, upon whom she has already inflicted a dreadful injury—an injury fatal to married life; the person who could do such a thing as that must be destitute of the least trace of human feeling.” and further on: “we have to consider this not in an unfeeling spirit—far from it—but in the spirit of people resolved to solve by intellectual means an intellectual problem of great difficulty.”

copyright by g. g. rockwood, new york.

hon. joseph h. choate,

american ambassador at the court of st. james, 1899—

mr. justice stephen, in short, instead of putting to the jury for separate answers each of the following three questions:

1. did this man die of arsenic?

2. did mrs. maybrick administer that arsenic?

3. did she do it feloniously?

invited them to return a verdict of “guilty” or “not guilty” upon a direction of law, wherein he told them that they[322] were to decide it as an intellectual problem, on the question which, it is submitted, can be formulated thus:

“might this man have died of arsenic notwithstanding the opinion of the medical experts that he did not die of arsenic?” and the jury answered “yes.”

it is submitted that this was a gross misdirection.

it may be interesting and applicable to quote from a paper read by sir fitzjames stephen himself at the science association in 1884: “it is not to be denied that, so long as great ignorance exists on matters of physical and medical science in all classes, physicians will occasionally have to submit to the mortification of seeing not only the jury, but the bar and bench itself, receive with scornful incredulity or with self-satisfied ignorance evidence which ought to be received with respect and attention.” how prophetic this was as exemplified by his own attitude in this trial need not be pointed out.

misreception of evidence

under the head of misreception of evidence may be classed the observations of the judge, where, apparently in order to prevent the jury from being influenced in favor of the prisoner, owing to the small quantity of arsenic found in the body of the deceased, he mentioned an instance of a dog being poisoned, in the body of which, though it had taken a large number of grains of arsenic, no arsenic was found after its death. the judge, in other words, turned himself into a witness for the prosecution. the unfairness to the prisoner of such a course is obvious. had the judge been an ordinary witness he might have been cross-examined to show, e.g., that arsenic passes away from the body of a dog much more quickly than from that of a man, or that the circumstances as to time and quantity taken were such as to prove that there was no analogy between the two cases. as the matter stands, the judge[324]’s recollection of an experiment on a dog, which had been made many years before, was meant to rebut a proposition much relied on by the defense, viz., that the small quantity of arsenic found in the body of the deceased was consistent with the view that he was in the habit of taking arsenic, rather than with the case for the crown that he had been intentionally poisoned.

cruel misstatement by the coroner

the inquest was formally opened by taking the evidence of the identification of the deceased by his brother, michael maybrick, and then adjourned for a fortnight, the coroner announcing that there had been a post-mortem examination by dr. humphreys, and that the result of that examination was that poison was found in the stomach of the deceased in such quantities as to justify further examination; that the stomach of the deceased, and its contents, would meanwhile be chemically analyzed,[325] and on the result of that analysis would depend the question whether or not criminal proceedings against some person would follow. now the announcement that “poison had been found in the stomach of the deceased” was contrary to fact, and in consequence of this cruel misstatement the proceedings caused an immense amount of popular excitement and prejudice against the accused, who, being too ill to be removed, remained at battlecrease house, in charge of the police, till the following saturday morning, the 18th may, when a sort of court inquiry was opened in mrs. maybrick’s bedroom by colonel bidwell, one of the county magistrates.

medical evidence for the prosecution

the evidence of dr. arthur richard hopper, who had been mr. and mrs. maybrick’s medical adviser for about seven years, was taken. he had not attended mr. maybrick during his last illness, but[326] spoke about mrs. maybrick having asked him the year before to check her husband from taking dangerous drugs, and that mr. maybrick had admitted to him that he used to dose himself with anything his friends recommended, and that he was used to the taking of arsenic.

dr. richard humphreys spoke as to the symptoms of the illness and his prescriptions, and that he had not suspected poisoning until it was suggested to him and his colleague, dr. carter, and that he had himself administered arsenic to the deceased, in the form of fowler’s solution, on the sunday or monday before death, and that he refused a certificate of death only because arsenic had been found on the premises.

dr. william carter spoke of being called the tuesday before death, and he agreed with dr. humphreys that an irritant poison, most probably arsenic, was the cause of death.

dr. alexander barron gave evidence to[327] the effect that he was unable to ascertain any particular poison.

mr. edward davies, the analyst, was called, and gave evidence to the effect that he had found no weighable arsenic in the portions of the body selected at the post-mortem, but that he had subsequently found one fiftieth of a grain of arsenic in a part of the liver, nothing in the stomach or its contents, but traces, not weighable, in the intestines, and that he had found arsenic in some of the bottles and things found in the house after death and in the valentine’s meat juice.

the first issue which the jury at the trial had to determine was whether it was proved beyond reasonable doubt that the deceased died from arsenical poisoning.

mr. justice stephen, in his summing-up, put this issue to the jury in the following words:

“it is essential to this charge that the man died of arsenic. this question must be the foundation of a verdict unfavorable[328] to the prisoner, that he died of arsenic.”

it must be assumed that this was a question exclusively for medical experts, notwithstanding which the judge, in summing up, told the jury:

“you must not consider this as a mere medical case, in which you are to decide whether the man did or did not die of arsenic poisoning according to the medical evidence. you must not consider it as a mere chemical case, in which you decide whether the man died from arsenic which was discovered as the result of a chemical analysis. you must decide it as a great and highly important case, involving in itself not only medical and chemical questions, but involving in itself a most highly important moral question.”

maybrick died a natural death

dr. humphreys gave it as his opinion that the appearances at the post-mortem were consistent with congestion of the stomach[329] not necessarily caused by an irritant poison, and that the symptoms during life were also consistent with congestion not caused by an irritant poison, but with acute inflammation of the stomach and intestines, produced by any cause whatever, and which would produce similar pathological results. he thought death was caused by some irritant poison, most likely arsenic, but he would not like to swear that it was. dr. humphreys’ evidence, therefore, amounted to this, that the deceased died from gastro-enteritis, a natural disease, attributable to a variety of causes, and that, apart from the suggestions already referred to, he would have certified accordingly.

dr. humphreys’ evidence was confirmed by that of dr. carter, who stated he came to the same conclusion as dr. humphreys, “but in a more positive manner.” dr. carter had assisted at the post-mortem examination, besides being in close attendance on the deceased for the five days preceding his death, which he attributed to[330] taking some irritant wine or decomposed meat, or to some grave error of diet; and when pressed as to whether he had any reason to suppose the article taken was poison, he explained that he did, but that by poison he meant something that was bad—it might be tinned meat, which the deceased had partaken of at the race dinner, or wine, or something which had set up gastritis. this witness’s account of the post-mortem was that they found no arsenic, but merely evidence of an irritant poison in the stomach and intestines, probably arsenic. dr. carter’s evidence was therefore against poisoning by arsenic being conclusively accepted as the cause of death, although subsequently he said he had no doubt it was arsenic.

dr. barron’s evidence as to the cause of death was that he considered from the post-mortem appearances that death was due to inflammation of the stomach and bowels, due to some irritant poison, but that he was unable to point to the particular poison,[331] apart from what he heard; and, pressed as to what he meant by poison, the witness stated that poison might be bad tinned meat, bad fish, mussels, or generally bad food of any kind, or alcohol taken in excess.

the chief witness for the prosecution

dr. stevenson expressed his opinion that the deceased died from arsenic poisoning, giving as his reasons that the main symptoms were those attributable to an irritant poison, and that they more closely resembled those of arsenic than of any other irritant of which he knew. he stated that he had known a great number of cases of poisoning by arsenic in every shape, and that he acted officially for the home office and treasury in such cases. dr. stevenson was the witness of the prosecution, and gave his evidence before he had heard the evidence for the defense.

dr. stevenson also stated that the general[332] symptoms of arsenic poisoning appeared within half an hour of taking some article of food or medicine, and were nausea, with a sinking sensation of the stomach; vomiting, which, unlike that produced by any ordinary article of food or drink that disagrees, afforded as a rule no relief and often came on again; that there was most commonly pain in the stomach, diarrhea; after a time the region of the stomach becomes tender under pressure, the patient becomes restless, often bathed in perspiration; the throat is complained of; pain in the throat, extending down to the stomach; the tongue becomes very foul in appearance and furred. there is not a bad smell as in the ordinary dyspeptic tongue, a rapid and feeble pulse, thirst, great straining at stool, vomits and evacuations frequently stained with blood. of fourteen symptoms of arsenic poisoning named by dr. stevenson, mr. maybrick exhibited only one, according to the testimony of dr. stevenson. with the exception of the foul[333] tongue with malodorous breath, none of these symptoms coincided with those given by drs. humphreys and carter, who were in attendance on the patient, while dr. stevenson never saw him.

medical evidence for defense

then came the evidence for the defense, rebutting the presumption that death was caused by arsenic. first in order being dr. tidy, the examiner for forensic medicine at the london hospital, and also, like dr. stevenson, employed as an analyst by the home office. this witness stated that, within a few years, close upon forty cases of arsenical poisoning had come before him, which enabled him to indicate the recurring and distinctive indications formed in such cases.

dr. tidy describes the symptoms of arsenic poisoning as purging and vomiting in a very excessive degree; a burning pain in the abdomen, more marked in the pit of[334] the stomach, and increased considerably by pressure, usually associated with pain in the calves of the legs; then, after a certain interval, suffusion of the eyes—the eyes fill with tears; great irritability about the eyelids; frequent intolerance of light.

dr. tidy added that there were three symptoms, such as cramps, tenesmus, straining, more or less present, but the prominent symptoms were those he had mentioned, especially the sickness, violent, incessant sickness, and that poisoning by arsenic was extremely simple to detect. further, that he (dr. tidy) had known cases where one or more of the four symptoms mentioned had been absent, but he had never known a case in which all four symptoms were absent; and stated that he had followed every detail of the maybrick case so far as he could, and had read all the depositions before the coroner and magistrate, and the account of the vomiting did not agree with his description of excessive and persistent vomiting, and was certainly[335] not that kind of vomiting that takes place in a typical case of arsenical poisoning.

dr. tidy further stated that, taking the whole of the symptoms, they undoubtedly were not those of arsenical poisoning, nor did they point to such, but were perfectly consistent with death from gastro-enteritis, not caused by arsenical poisoning at all; and that, had he been called upon to advise, he should have said it was undoubtedly not arsenical poisoning, and that his view had been very much strengthened, to use his own words, by the result of the post-mortem, which distinctly pointed away from arsenic.

then there was the evidence, in the same direction, of dr. macnamara, the president of the royal college of surgeons, and its representative on the general medical council of the kingdom, which is summed up in the general question put to him and his answer:

question: now, bringing your best judgment to bear on the matter—you having[336] been present at the whole of this trial and heard the evidence—in your opinion, was this death from arsenical poisoning?

answer: certainly not.

in cross-examination dr. macnamara stated that, to the best of his judgment, mr. maybrick died of gastro-enteritis, not connected with arsenical poisoning, and which might have been caused by the wetting at the wirrall races.

dr. paul, professor of medical jurisprudence at university college, liverpool, and pathologist at the royal infirmary, stated he had made and assisted at something like three or four thousand post-mortem examinations, and that the symptoms in the present case agreed with cases of gastro-enteritis pure and simple; that the finding of the arsenic in the body, in the quantity mentioned in the evidence, was quite consistent with the case of a man who had taken arsenic medicinally, but who had left it off for some time, even for several months.

a toxicological study

so positive were dr. tidy and dr. macnamara of their position as to the effect of arsenic on the human system, that they subsequently published “a toxicological study of the maybrick case,” thus challenging medical critics the world over to refute them. from this study the following, in tabular form, is taken, in order to contrast the symptoms from which mr. maybrick suffered with those which, it will be generally admitted, are the usual symptoms of arsenical poisoning:

arsenical poisoning mr. maybrick’s case

countenance tells of severe suffering. not so described.

very great depression an early symptom. not present until toward the end.

fire-burning pain in stomach. not present.

pain in stomach increased on pressure. pressure produced no pain.

violent and uncontrollable vomiting independent of ingesta. “hawking rather than vomiting;” irritability of stomach increased by ingesta.

vomiting not relieved by such treatment as was used in mr. maybrick’s case. vomiting controlled by treatment.

during vomiting burning heat and constriction felt in throat. not present.

blood frequently present in vomited and purged matter. not present.

intensely painful cramps in calves of the legs. not present.

pain in urinating. not present.

purging and tenesmus an early symptom. not present until twelfth day of illness, and then once only.

great intolerance of light. not present.

eyes suffused and smarting. not present.

eyeballs inflamed and reddened. not present.

eyelids intensely itchy. not present.

rapid and painful respiration an early symptom. not present.

pulse small, frequent, irregular, and imperceptible from the outset. not so described until approach of death.

arsenic easily detected in urine and f?ces. not detected, although looked for.

tongue fiery red in its entirety, or fiery red at tip and margins and foul toward base. tongue not red; “simply filthy.”

early and remarkable reduction of temperature generally. temperature normal up to day preceding death.

“maybrick’s symptoms are as unlike poisoning by arsenic as it is possible for a case of dyspepsia to be. everything distinctive of arsenic is absent. the urine contained no arsenic. the symptoms are not even consistent with arsenical poisoning.

“regarding the treatment adopted by[339] the medical men, and more especially dr. carter’s action with regard to the meat juice, we are justified in assuming that the doctors themselves, even after a certain suggestion had been made to them, did not come to the conclusion that the illness of maybrick was the result of arsenic.

“it is noteworthy (1) that none was found in the stomach; (2) that maybrick was in the habit of taking drugs, and among them arsenic.

“thus two conclusions are forced upon us:

“(1) that the arsenic found in maybrick’s body may have been taken in merely medicinal doses, and that probably it was so taken.

“(2) that the arsenic may have been taken a considerable time before either his death or illness, and that probably it was so taken.

“our toxicological studies have led us to the three following conclusions:

“(1) that the symptoms from which maybrick suffered are consistent with any form of acute dyspepsia, but that they point away from, rather than toward, arsenic[340] as the cause of such dyspeptic condition.

“(2) that the post-mortem appearances are indicative of inflammation, but that they emphatically point away from arsenic as the cause of death.

“(3) that the analysis fails to find more than one-twentieth part of a fatal dose of arsenic, and that the quantity so found is perfectly consistent with its medicinal ingestion.”

the medical weakness of the prosecution

such was the complete evidence of the cause of death. the quantity of arsenic found in the body was one-tenth of a grain, and upon this evidence rests the first issue the jury had to consider, namely, whether it was proved beyond reasonable doubt that the deceased died from arsenical poisoning.

as to the value of the medical testimony on both sides, dr. humphreys admitted that he never attended a case of arsenical[341] poisoning in his life, nor of any irritant poison, and that he would have given a certificate of death from natural causes had he not been told of arsenic found in the meat juice.

dr. carter laid no claim to any previous experience of poisoning by arsenic, and was unable to say from the post-mortem examination that arsenic was the cause of death, which he could only attribute to an irritant of some kind, and he admitted that it was the evidence of mr. davies, as to the finding of arsenic in the body, which led him to the conclusion that arsenical poisoning had taken place.

dr. barron did not see the patient, but assisted at the post-mortem examination, and stated that, judging by the appearances and apart from what he had heard, he was unable to identify arsenic as the particular poison which had set up the inflammation.

now, assuming for a moment that this issue as to the cause of death rested entirely[342] upon the uncontradicted testimony of these three doctors called for the prosecution, humphreys, carter, and barron, the jury would not have been justified in coming to the conclusion that there was no reasonable doubt that arsenic poisoning was the cause of death. the doctors themselves had admitted that they were unable to arrive at that conclusion, apart from the evidence that arsenic was found in the body. the idea of arsenical poisoning never occurred to them from the symptoms, until the use of arsenic was first suggested.

the doctors could not say that death resulted from arsenic poisoning, and yet the jury have actually found that it did, in the face of the opinions of three eminent medical experts, who say it did not.

even if these doctors had never been called at all for the defense, the jury were yet not justified in taking the evidence of drs. humphreys, carter, and barron, in the terms which they themselves never intended[343] to pledge themselves to, namely, to exclude a reasonable doubt that death was due to arsenic.

let us consider the position of the medical men called for the defense: drs. tidy, macnamara, and paul are the highest authorities on medical and chemical jurisprudence in great britain. no sort of hesitation or doubt attached to the opinions of any of them, and their experience of post-mortem examinations was referred to, as including in the practise of dr. tidy, the crown analyst, some forty cases of arsenic poisoning alone. dr. macnamara indorsed the opinion of dr. tidy. in addition to that, there was on the same side the evidence of dr. paul, professor of medical jurisprudence and toxicology at university college, liverpool, with an experience of three or four thousand post-mortem examinations. it is impossible to conjecture by what process of reasoning the jury could have come to the conclusion, upon the evidence before them, that it was beyond a[344] reasonable doubt that mr. maybrick had met his death by arsenical poisoning.

this volume of evidence before the jury pointed not only to a doubt as to the cause of death, but to a reasonable conclusion that it was not due to arsenical poisoning. it is inconceivable that the jury should have found as they did, except under the mandatory direction of the judge, which left them apparently no alternative but to substitute his opinions and judgment for their own, so that on that issue the finding was not so much the finding of the jury, to which the prisoner was by law entitled, but the finding of the judge, of whom the jury, abrogating their own functions, became the mere mouthpieces.

the administration of arsenic

the consideration of the facts as given in evidence also covers the second issue which the jury had to determine, namely, whether, if arsenic poisoning was the cause of death, it was the prisoner who administered[345] it with criminal intent. the evidence on this point was most inconclusive.

no one saw the prisoner administer arsenic to her husband.

she had no opportunity of giving her husband anything since one or two o’clock on wednesday afternoon (8th of may), after which she was closely watched by the nurses. it was not shown that any food or drink administered to the deceased by the prisoner contained arsenic. it was not shown that the prisoner had placed arsenic in any food or drink intended for her husband’s use. nor, in fact, was any found, although searched for, in any food or medicine of which mr. maybrick partook during his illness, except the arsenic in fowler’s solution, prescribed and administered by dr. humphreys himself.

the fly-paper episode

the episode of the fly-papers may be considered as one of the most important factors in the whole case. it supplies, so[346] to speak, the only link between mrs. maybrick and arsenic, which, it is well known, forms their chief ingredient. it was proved she had purchased the fly-papers without any attempt at concealment, and, while soaking, they were exposed to everybody’s view, quite openly, in a room accessible to every inmate of the house. it was not suggested that mrs. maybrick bought the other large quantity of arsenic, between seventy and eighty grains, found in the house after death, and no one came forward to speak to any such purchase. it was found in the most unlikely places for mrs. maybrick to have selected, if she had intended to use it, and the evidence against her on this point is of a particularly vague and indefinite character. [justice stephen, commenting on the quantity of arsenic found on the premises, himself observed that it was a remarkable fact in the case, and which, it appeared to him, told most favorably than otherwise for the prisoner, as in the whole case, from first to last, there[347] was no evidence at all that she had bought any poison, or had anything to do with the procuring of any, with the exception of those fly-papers.] the accusation rests entirely on suspicion, insinuation, and circumstantial suggestions; not one tittle of evidence was adduced in support of it, and yet the jury came to the conclusion, without allowing of any doubt in the matter, that it was her hand which administered the poison.

how mrs. maybrick accounts for the fly-papers

on this question the prisoner made a statement. she accounted for the soaking of the fly-papers upon grounds which were not only probable, but were corroborated by other incidents. that she was in the habit of using arsenic as a face wash is shown by the prescription in 1878, before her marriage, and of which the chemist made an entry in his books, which came to[348] light, after the trial, under the following circumstances:

among the few articles which mr. maybrick’s brothers allowed to be taken from the house, they being the legatees of the deceased, was a bible which had belonged to mrs. maybrick’s father, and which, with some other relics, came into the hands of mrs. maybrick’s mother, the baroness von roques, who, months afterward, happening to turn over the leaves of the bible, came across a small piece of printed paper, evidently mislaid there, being a new york chemist’s label, with a new york doctor’s prescription written on the back, for an arsenical face wash “for external use, to be applied with a sponge twice a day.”

this prescription contained fowler’s solution of arsenic, chlorate of potash, rose-water, and rectified spirits; and was again made up, on the 17th of july, 1878, by a french chemist, mr. l. brouant, 81 avenue d’eylau, paris. it corroborates mrs. maybrick’s statement at the trial[349] that the fly-papers were being soaked for the purpose alleged by her. if mrs. maybrick had obtained or purchased the seventy or eighty grains of arsenic found in the house after the death, it is inconceivable that she should have openly manufactured more arsenic with the fly-papers. at the time she prepared the statement she had reason to believe that the prescription had been lost. she knew, therefore, it would be impossible for her to corroborate her story about the face wash, and she could have omitted that incident altogether, and contented herself by saying that she learned the preparation while at school in germany.

[in further explanation i desire to state that during my girlhood, as well as subsequently, i suffered occasionally, due to gastric causes, from an irritation of the skin. one of my schoolmates, observing that it troubled me a good deal, offered me a face lotion of her own preparation, explaining that it was much more difficult to obtain[350] an arsenical ingredient abroad than in america, and to avoid any consequent annoyance she extracted the necessary small quantity of arsenic by the soaking of fly-papers. i had never had occasion to do so myself, as i had a prescription from dr. bay; but when i discovered that i had mislaid or lost this, i recalled the method of my friend, being, however, wholly ignorant of what quantity might be required. the reason why i wanted a cosmetic at this time was that i was going to a fancy dress ball with my husband’s brother, and that my face was at that time in an uncomfortable state of irritation.—f. e. m.]

administration of arsenic not proved

dealing with the question, did mrs. maybrick administer the arsenic, there is absolutely no evidence that she did. it was not for the prisoner to prove her innocence. she was seen neither to administer the arsenic nor to put it in the food or[351] drink taken by the deceased, and this issue was found against her in the absence of any evidence in support.

intent to murder not proved

mrs. maybrick’s statement also bears strongly upon the question of administering with intent to murder. it is equally inconceivable that a guilty woman would have said anything about the white powder in the meat juice. she had nothing to gain by making such a statement, which could only land her in the sea of difficulties without any possible benefit, and here again the probabilities are entirely in her favor. it is beyond a doubt that mr. maybrick was in the habit, or had at some time or other been in the habit, of drugging himself with all sorts of medicines, including arsenic, and assumably he had obtained relief from it, or he would not have continued the practise.

mr. justice stephen, in his summing-up,[352] animadverted in very strong terms on the testimony of arsenic being used for cosmetic purposes, although expert chemists had certified to large use of arsenic for such a purpose. an immense degree of speculation must have entered the minds of the jury before they could find as they did, and bridge the gulf between the soaking of the fly-papers and the death of mr. maybrick, for it is quite evident that the soaking of the fly-papers was the one connection between the arsenic and the prisoner upon which all the subsequent events turned; and, if that be so, the importance is seen at once of the statement she made regarding that incident, and conclusive evidence as to which was subsequently found in the providentially recovered prescription.

samuel v. hayden,

of hayden & yarrell, american counsel of mrs. maybrick.

absence of concealment by prisoner

another remarkable circumstance is the absence of any attempt at concealment on the prisoner’s part. the fly-papers were[353] purchased openly from chemists who knew the maybricks well, and they were left soaking in such a manner as at once to refute any suggestion of secrecy; and her voluntary statement about the white powder which she placed in the meat juice, as to which there was absolutely no evidence to connect her with its presence there, seems inconsistent with the theory the prosecution attempted to build upon a number of assumptions of which the accuracy was not proved.

the question of the prisoner’s guilt was not capable of being reduced to any issue upon which the prosecution could bring to bear direct evidence; the most they were capable of doing was to show that the prisoner had opportunities of administering poison, which she shared with every individual in the house; further, that she had arsenic in her possession (and this was an open secret, as we have already explained with reference to the fly-papers); and, lastly, that she had the possibility of extracting[354] arsenic in sufficient quantities to cause death, which was, however, extremely doubtful; and then the prosecution tried to complete this indirect evidence by proving that mr. maybrick died from arsenic poisoning, which they signally failed to do. the strong point of the prosecution, as they alleged, was that a bottle of valentine’s meat juice had been seen in her hands on the night of thursday, the 9th of may, and she replaced it in the bedroom, where it was afterward found by michael maybrick, and analyzed by mr. davis, who found half a grain of “arsenic in solution”; but there was no direct proof, such as is absolutely necessary to a conviction in a criminal case, of the identity of the bottle seen in mrs. maybrick’s hands and that given to the analyst, and there was evidence that it had remained in the bedroom within reach of anybody, mr. maybrick himself included, for eighteen hours, and did not until the next day reach the hands of the analyst. these bottles are all alike in appearance,[355] of similar turnip-like shape as the bovril bottles now sold, and it is clear there was more than one, because dr. humphreys says in his evidence that on visiting his patient on the 6th of may he found some of the valentine’s meat extract had made mr. maybrick sick, which he was not surprised at, as it often made people sick; while nurse gore, speaking of the bottle seen in the hands of mrs. maybrick, said it was a fresh, unused bottle, which she had herself opened only an hour before.

no evidence was given of what became of the opened bottle, and the presence of the arsenic having already been accounted for, and the fact recorded that the meat juice was not given to mr. maybrick, there is nothing to add to what has already been said, except that the account exactly dovetails with the prisoner’s own voluntary statement.

can any one, closely following the evidence throughout, fail to be impressed with the inconsistency of mrs. maybrick’s conduct[356] in relation to her husband’s illness with a desire to murder him? in all recorded cases of poisoning, the utmost precautions to screen the victim from observation have been observed. in the present instance it would seem as if just the reverse object had been aimed at. we find the prisoner first giving the alarm about the attack of illness; first sending for the doctors, brothers, and friends; first suggesting that something taken by her husband, some drug or medicine, was at the bottom of the mischief. we find the very first thing she does is to administer a mustard emetic—the last thing one would have expected if there had been a desire to poison him. if the prisoner had wished to put everybody in the house, and the doctors themselves, on the scent of poison, she could not have acted differently.

[see also “mrs. maybrick’s own analysis of the meat-juice incident,” page 366.]

some important deductions from medical testimony

from dr. humphreys’ testimony it appears that, after the days when he was away from the patient, and when mrs. maybrick had undisturbed access to her husband, no symptoms whatever of arsenical poisoning appeared. if, then, arsenic was administered by mrs. maybrick under the doctors’ eyes, without their detecting it, what value can attach to the testimony of the medical attendants as to the cause of death, apart from the post-mortem examination, by which they practically admit they allowed their judgment to be governed?

does not the only alternative present itself that drs. humphreys and carter are driven to the admission: “that the deceased died of arsenical poisoning we deduce, not from the symptoms during life, but from the fact that arsenic was found in the body after death”?

symptoms due to poisonous drugs

from the medical testimony it appears that the following list of poisonous drugs was prescribed and administered to mr. maybrick shortly before his death:

april 28, 1899, diluted prussic acid; april 29, papaine’s iridin; may 3, morphia suppository; may 4, ipecacuanha; may 5, prussic acid; may 6, fowler’s solution of arsenic; may 7, jaborandi tincture and antipyrin; may 10, sulfonal, cocain, and phosphoric acid.

also, during the same period, the following were prescribed: bismuth, double doses; nitro-glycerin; cascara; nitro-hydrochloric acid (composed of nux vomica, strychnin, and brucine); plummer’s pills (containing antimony and calomel); bromide of potassium; tincture of hyoscyamus; tincture of henbane; chlorin.

now it will be observed that up to may 6, when fowler’s solution of arsenic was administered, no symptom whatever had[359] been observed at all compatible with the effects of arsenic.

the sickness produced by the morphia continued after the taking of arsenic, and down the unfortunate man’s throat prussic acid, papaine, iridin, morphia, ipecacuanha, and arsenic, some of the most powerful drugs known to the pharmacop?ia, had found their way by the advice of dr. humphreys, in less than a week, while he was told to eat nothing, and allay his thirst with a damp cloth; and the charge of poisoning is made against the prisoner because he is suggested to have had an irritant poison in his stomach, and minute traces of arsenic in some other organs, within five days afterward.

death from natural causes

the whole history of the case, from its medical aspect, is consistent with the small quantity of arsenic found in the body being part of that prescribed by dr. humphreys,[360] or the remains of that taken by the deceased himself, there being no particle of evidence to show that he discontinued the habit of drugging himself almost up to the day of his death. this is also in accord with the evidence of dr. carter, who attended at a later period, and, taken as a whole, the evidence of both of these doctors, as well as their treatment of the deceased, points to death from natural causes.

prosecution’s deductions from post-mortem analysis misleading

the evidence of the prosecution in connection with the analysis was thoroughly unreliable and misleading. dr. stevenson’s difficulty was that, while two grains of arsenic was the smallest quantity capable of killing, the analyst had found only one-tenth of a grain, or the twentieth part of the smallest fatal dose, and, in substance, dr. stevenson proceeds to argue as follows:

(a) i found 0.015 grain of arsenic in 8 ounces of intestines. (there is no record as to what part of the intestines he examined.) i have weighed the intestines of some other person (not mr. maybrick), and find their entire weight to be so much. if, then, 8 ounces of mr. maybrick’s intestines yield 0.015 grain, the entire intestines (calculated from the weight of some one else’s intestines), had i analyzed them, would have yielded one-eleventh of a grain.

(b) dr. stevenson then proceeds to argue: “i found 0.026 grain of arsenic in 4 ounces of liver. the entire liver weighed 48 ounces, therefore the entire liver contained 0.32 grain of arsenic.”

(c) dr. stevenson argues further: “the intestines and liver, therefore, may be taken to contain together four-tenths of a grain of arsenic, and, having found four-tenths of a grain, i assume that the body at the time of death probably contained a fatal dose of arsenic.”

such was the deduction dr. stevenson[362] arrived at, necessitating the assumption that arsenic was equally distributed in the intestines and liver, whereas it is within the personal knowledge of eminent men (such as drs. tidy and macnamara) that arsenic may be found after death in one portion of the intestines, and not a trace of it in any other part. that in arsenical poisoning the arsenic may be found in the rectum and in the duodenum, and in no other part, is beyond dispute, and the fallacy of dr. stevenson’s process must be self-evident.

the witnesses for the prosecution themselves supply the proof of the unequal distribution of the arsenic in the liver.

mr. davies calculates the quantity in the whole liver as 0.130 grain.

dr. stevenson, in his first experiment, puts it at 0.312 grain, and in his second experiment at 0.278 grain; in other words, dr. stevenson finds double in one experiment and considerably more than double in another experiment, the quantity found by mr. davies, and it is upon this glaring[363] miscalculation and discrepancy that the case for the prosecution was made to rest, and mrs. maybrick was convicted.

but with all this miscalculation the approximate amount of arsenic can only be swelled up to four-tenths of a grain, less than one-fourth of a fatal dose, and it was demonstrated that every other part of the body, urine, bile, stomach, contents of stomach, heart, lungs, spleen, fluid from mouth, and even bones, were all found to be free from arsenic.

recapitulation of legal points

the legal points of the case may thus conveniently be recapitulated under the following short heads:

there was no conclusive evidence that mr. maybrick died from other than natural causes (the word “conclusive” being used in the sense of free from doubt).

there was no conclusive evidence that he died from arsenical poisoning.

there was no evidence that the prisoner administered or attempted to administer arsenic to him.

there was no evidence that the prisoner, if she did administer or attempt to administer arsenic, did so with intent to murder.

the judge, while engaged in his summing-up, placed himself in a position where his mind was open to the influence of public discussion and prejudice, to which was probably attributable the evident change in his summing-up between the first and second days; and he also assumed facts against the prisoner which were not proved.

the jury were allowed to separate and frequent places of public resort and entertainment during such summing-up.

the verdict was against the weight of evidence.

the jury did not give the prisoner the benefit of the doubt suggested by the disagreement of expert witnesses on a material issue in the case.

the home secretary should have remitted the entire sentence by reason of his being satisfied that there existed a reasonable doubt of her guilt, which, had it been taken into consideration at the time, would have entitled her to an acquittal.

the indictment contained no specific account of felonious administration of poison, and consequently the jury found the prisoner guilty of an offense for which she was never tried.