‘We have heard in the course of this trial from a number of witnesses who have known the prisoner for his whole life, and their accounts of his character are entitled to form part of your consideration. In particular, we heard evidence from Mrs Carmina Murchison and her husband, Kenneth Murchison. Both of these witnesses are to be commended for the clear and sober accounts of the most distressing aspects of this case. And both of these witnesses testified to the prisoner’s habit of appearing to converse with himself in an unusual manner. We do not, however, know the contents of these conversations, and while this behaviour can rightly be seen as eccentric, it is not adequate, in itself, to regard the prisoner as deprived of his reason. On the other hand, you may regard this behaviour as a fragment – though no more than that – in a larger picture which might, in totality, add up to a picture of insanity. We have also heard the testimony of the victims’ relative, Mr Aeneas Mackenzie, who was forthright in his view that the prisoner was not of sound mind. However, you are entitled to ask yourselves whether his evidence might be tainted by the understandable feelings of anger he clearly felt towards the prisoner. You must also consider the intemperate manner in which his evidence was given, and pay heed to the fact that Mr Mackenzie is in no way qualified to pass judgement on the sanity or otherwise of the prisoner. As such, Mr Mackenzie’s statements should be treated with caution. However, as with the evidence of the other residents of Culduie, it is for you to decide what, if any, importance should be placed on his testimony.’
The Lord Justice-Clerk then moved on to consider the evidence of the prisoner behaving in an unpredictable or eccentric manner. He summarised the incidents that took place during the deerstalking party and with Flora Mackenzie on the day of the Gathering. He was dismissive of both. The first, he said, ‘cannot be regarded as more than an act of silliness on the part of an immature young man, aged a mere fifteen years at this time.’ In the second, he continued, ‘the dual roles of youthful attachment and the effects of alcohol – to which the prisoner was unaccustomed – should not be overlooked.’ It was a matter for the jury to evaluate the importance of these incidents, but the judge cautioned against giving them undue weight in their deliberations.
He then turned to the evidence of the two expert witnesses. ‘Both sides in this case,’ he began, ‘have called witnesses who are experts in their field, either through study or through experience, and both these witnesses have passed judgement on the critical matter of the sanity or otherwise of the prisoner. You are obliged to give full weight to the opinions of both of these witnesses, but you are not required to agree with them. If you choose to disregard the evidence of one or either of these witnesses, you should do so only after the fullest consideration and with good reason.
‘Dr Hector Munro, called by the Crown, is a medical doctor of long experience both in general practice and at Inverness gaol, where by his own reckoning he has examined many hundreds of prisoners. Dr Munro conversed at length with the prisoner and found him to be “one of the most intelligent and articulate prisoners” he had examined. He enumerated various indicators of insanity and stated that he found none of these present in the prisoner. In view of his experience in dealing with the criminal population and his demonstrable knowledge of diseases of the mind, Dr Munro’s opinion deserves to be treated with proper consideration.’
The Lord Justice-Clerk then turned to the evidence of Mr Thomson, ‘a man of the highest standing in the field of Criminal Psychology. It was also the opinion of Mr Thomson that the prisoner was not insane and was cognisant of the wrongful nature of the actions which he committed. Now, while this opinion must, like that of his colleague Dr Munro, be afforded the fullest weight in your deliberations, it is my duty to evaluate his reasons for reaching this conclusion. This is of particular consequence because Mr Thomson’s opinion rests on a distinct interpretation of the facts of the case, an interpretation distinct from that put forward by the Crown. Mr Thomson contended that the prisoner went to the Mackenzie household not with the goal of murdering Lachlan Mackenzie, but with the intention of harming his daughter, Flora, for whom, we have heard, the prisoner had a strong attachment. Mr Thomson supported this view with reference to the obscene injuries inflicted on Miss Mackenzie’s person, injuries which, in his view, would not have been inflicted had Miss Mackenzie merely been an incidental victim in this crime. Moreover, what convinced Mr Thomson that the prisoner was not labouring under what we have heard called “moral insanity” was evidenced by the fact that in various statements the prisoner asserted that his motive had been to kill Lachlan Mackenzie. This disingenuous stance, Mr Thomson insisted, illustrated that the prisoner knew what he had done was wrong and can thus not be regarded as morally insane.
‘Gentlemen, these are complex issues about which you must reach your own conclusions. But I must introduce a note of caution. Mr Thomson’s opinion rests on a single piece of evidence – the nature of the injuries suffered by Miss Mackenzie – and his interpretation of the motives for inflicting these injuries. But this interpretation is no more than that. It is not fact. Mr Thomson was not a witness to the crimes and you are entitled to consider other interpretations of the evidence you have heard; in particular those parts of the evidence which suggest that the actions of Mr Mackenzie provided the prisoner with the motive for his assault. If you choose to disagree with Mr Thomson’s interpretation, you are entitled to consider his view that, if the true target of the prisoner’s assault was indeed Mr Mackenzie, he may, in view of his subsequent behaviour, be regarded as suffering from an alienation of reason.’
The Lord Justice-Clerk here gave pause as if to allow the jurymen to digest this complex section of his summation.
‘However,’ he continued, ‘even were you to disagree with Mr Thomson’s view, this must be set against the totality of the evidence that has been put before you. It is not enough for you to think that no man could commit such heinous acts and be deemed to be of sound mind. Sane men can and do commit such crimes, and the mere fact of committing such an act does not, in itself, place an individual outside the boundaries of reason. Regardless of your feelings in this matter, that is not the test in law. Your verdict must be reached solely through a dispassionate assessment of the evidence which has been presented to you in this court.’
The Lord Justice-Clerk concluded by reminding the jury of the solemnity of their task. ‘The charges before this court are of the very gravest nature and a guilty verdict will result in a capital sentence.’ He then thanked the jurymen for their close attention throughout the trial and charged them with delivering a verdict only after solemn consideration of the evidence.
The verdict
As it was by then after four o’clock, the Lord Justice-Clerk instructed the jury that if they had not reached their verdict by seven o’clock, they would be returned to the inn for the night and would resume their deliberations in the morning. He cautioned them that this constraint of time must form no part of their consideration and reminded them once more of the solemn nature of the task with which they were charged.
Roddy was taken downstairs and the court officials vacated the chamber. Not wishing to risk missing the climactic moment of the trial, those in the public gallery remained in their places, arguing among themselves with newly acquired legal expertise about the niceties of the case. The more worldly reporters retired en masse to the appropriately named Gallows Inn on Gordon Terrace, having first pressed shillings into the hands of waiting boys to fetch them if the bell was rung. Great quantities of wine and ale were ordered and drunk with alacrity, the presumption being that the jury would not be long in returning its verdict. The consensus was that, despite the valiant efforts of his advocate, Mr Thomson’s evidence had condemned the unfortunate prisoner to the gibbet. Only John Murdoch departed from the notion that the verdict was a foregone conclusion. His southern colleagues, he explained, overlooked the empathy the jurymen might feel towards an ill-used crofter. The resentment cau
sed by centuries of ill treatment of the Highlander was keenly felt, and in Roderick Macrae, they might see an individual who had revolted against the vindictiveness of the powers-that-be. Mr Philby listened with interest to the Nairnshireman’s opinions, but argued that the jury could not allow such sentiments, no matter how valid, to colour their thinking. Others merely derided Murdoch, arguing that his radical views had blinded him to the facts of the case.
As the clock on the wall of the inn moved towards half past six, the mood altered, however. Clearly the members of the jury had found something to discuss. Then at ten to seven, the boy-messengers burst in: the bell had been rung. The reporters scrambled for the door, throwing coins on the table as they went. They received an admonishing stare from the Lord Justice-Clerk as they were admitted to the press box. The court-room was in any case already in a tumult of anticipation. After silencing the room, the judge warned in the sternest terms against any disruptions to proceedings. Roddy was then brought up, his demeanour, wrote Mr Philby, ‘barely altered from his first appearance, although his head perhaps sat more heavily on his shoulders’. The jury was then brought in and the foreman, a tanner named Malcolm Chisholm, rose.
The Clerk of the Court asked if they had reached a verdict.
‘We have not,’ replied Mr Chisholm.
This statement was greeted with as great an uproar as an acquittal, and it required the macers’ expulsion of two individuals from the gallery for order to be restored.
The Lord Justice-Clerk commended the jury for the earnestness with which they were treating their task and instructed them to re-convene in the jury-room at ten o’clock the following morning, adding that they should refrain from any dialogue about the case until that time.
The newspapermen once again decamped to the Gallows Inn, where the wine flowed ‘like the River Ness in spate’. Mr Philby later reflected that ‘the verdict which would only a short time before have seemed the most astonishing reversal, now seemed a great deal more likely’. If the jury had seeds of doubt in their minds, his logic went, these could only germinate overnight. He spent much of the evening in discussion with John Murdoch, who despite his previous statements, did not expect the verdict to be in the defendant’s favour. ‘Up here, we are too used to cowering before the authorities to go against the Crown,’ he told Mr Philby. In any case, even if the prisoner were to ‘jouk the gibbet’, a lifetime’s confinement in the General Prison under the supervision of Mr Thomson would be a dubious reward.
The evening degenerated into carousing, and Mr Philby confessed that he had ‘too freely taken advantage of the Highland hospitality’, so much so, that when roused by his landlady the following morning, he had no need to even re-tie his boots.
The public gallery was opened at ten o’clock. The fact that there was no more evidence to be heard had done nothing to diminish the numbers that gathered. Those who failed to gain entry remained outside the court building, wishing to be among the first to hear news of the verdict. Mr Philby and his colleagues loitered in the corridors of the court, nursing their hangovers with hipflasks. In the event, they did not have long to wait. At quarter past eleven, the bell was rung for the second time. Before the arrival of the jury, the Lord Justice-Clerk warned that he would not hesitate to empty the court-room if necessary, and, as if in deference to the solemnity of the moment, Roddy’s arrival was accompanied by an eerie hush. He was quite pale and his eyes were ringed with dark circles. Mr Sinclair, who looked similarly ashen, shook his hand. The jurymen then filed in. Roddy observed them, as if some interest in the proceedings had finally stirred in him. The men had a doleful air about them, as if taking their pews at a funeral. Not one of them met the prisoner’s eye. The Clerk of the Court rose and asked if they had reached a verdict. Mr Chisholm replied that they had.
The Lord Justice-Clerk put the question to them:
‘How say you, gentlemen, do you find the prisoner guilty or not guilty?’
Mr Sinclair bowed his head.
The foreman replied, ‘My lords, in respect of the first count, the jury finds the panel Guilty. In respect of the second count, we find the panel Guilty; and in respect of the third count we find the panel Guilty.’
The court-room remained silent for some moments. Then the Lord Justice-Clerk asked, ‘Are your verdicts unanimous?’
‘They are by a majority,’ the foreman replied, ‘of thirteen to two.’
Mr Sinclair placed his head in his hands, then turned to look at his client. Roddy remained motionless in the dock. Nothing happened for a few seconds. There was no reaction from the gallery, as if it was only now the spectators grasped that what they had been watching was no mere pantomime.
The Lord Justice-Clerk thanked the jurors for their diligent attention throughout the proceedings. ‘You must,’ he said, ‘feel no compunction about the verdict you have delivered as it is in accordance with the evidence you have heard. All responsibility lies with the prisoner, whose acts have brought us to this place and the consequences of your judgement are a matter for the Law and the Law alone.’
The verdicts were then signed by the judges. Roddy was instructed to stand and the judge donned the black cap.
‘Roderick John Macrae, you have been found guilty by the verdict of the jury of the murders charged against you, a verdict which proceeds upon evidence which could leave no disinterested observer in any doubt. You have killed three people, one a small child, another an innocent girl in the flush of youth, and you have inflicted injuries on their persons of the most shocking nature. We have heard, as we should, a great deal of discussion of the motives for these wicked crimes, but having been pronounced guilty, these motives are of no consequence, and there is but a single sentence that can be pronounced. You are condemned to suffer the last penalty of the law. I hope that you will use the short time left to you to repent your actions and make use of the ministers of religion available to you, but I fear, from what I have heard in these proceedings, that you will not do so.’
He then formally pronounced that the prisoner would be executed at Inverness Castle between the hours of eight and ten o’clock on the morning of the 24th of September. He then removed the black cap and added, ‘May God have mercy on your soul.’
* * *
*** A ‘whipper-in’ was an official who travelled round rural districts ensuring that children attended school.
††† Philippe Pinel (1745–1826) was a pioneer of criminal psychology. He coined the term ‘mania sans délire’ in his Nosographie philosophique ou méthode de l’analyse appliquée à la médecine (1798–1818).
‡‡‡* A mischievous sketch in The Scotsman suggested that the prisoners to whom Dr Munro referred might merely have been speaking Gaelic.
§§§ The ideas expressed here by Thomson are more fully set out in his article ‘The Hereditary Nature of Crime’, published in the Journal of Mental Science, 1870. They are an example of the then prevalent theory of ‘degenerationism’, a kind of reverse evolution.
¶¶¶ This is a summary of the M’Naghten Rules, which had been the accepted test of insanity for criminal cases in both English and Scottish courts since 1843.
Epilogue
The trial of Roderick Macrae ended on Thursday the 9th of September. The following morning Mr Sinclair sought out John Murdoch and presented him with Roddy’s manuscript. There was at this time no formal mechanism for appeal in Scots Law and the advocate hoped to enlist Murdoch’s assistance in mounting a campaign for the commutation of Roddy’s sentence. His logic appears to have been that the publication of Roddy’s memoir would lead to a wave of popular support for the condemned man.****
Mr Murdoch was sceptical, though not unsympathetic to the advocate’s plan, and agreed to read the manuscript and approach the editor of the Inverness Courier with a view to printing a series of extracts in the newspaper or a ‘Special Edition’. Mr Sinclair left the m
atter in his hands and spent the weekend drafting a petition to the Lord Advocate, Lord Moncrieff, the highest legal authority in the land.
In his letter, Mr Sinclair made no attempt to claim that his client’s conviction was unsafe, or that there was anything improper in the conduct of the trial. Instead, his appeal for clemency was made on openly compassionate grounds. After a perfunctory summary of the particulars of the case, he made his plea:
As both the evidence heard at trial and the prisoner’s account attest, Roderick Macrae was driven to the acts of which he has been found guilty by the purposeful and determined persecution of the individual who was to become his principal victim. Sufficient evidence was heard at trial of the eccentric behaviour and mental defects of the accused, for the jury to deliberate into a second day; and the verdict, when it came was by majority, this in itself evidence that it is within the bounds of rationality for a reasonable man to take the view that the accused was not of sound mind. And this in the face of the repeated and self-damaging pronouncements made by the prisoner himself; pronouncements, I might add, which do not speak of a rational mind. For what sane man would freely make statements which, if accepted at face value, would consign him to the gallows? That such reasonable doubts about the sanity of my client exist in the minds of the jurymen surely militates against the imposition of the severest penalty of the Law.
During his incarceration, my client applied himself diligently to the production of an account of the events leading up to the crimes (a copy of which I submit for your consideration). In so doing he has demonstrated abilities and an intellectual capacity far in excess of what might be expected of an individual of his education and background. Mr J. Bruce Thomson, Resident Surgeon to the General Prison in Perth, stated in evidence that in his many years’ experience of dealing with convicts and madmen, he has never encountered a single prisoner capable of producing any work of literary merit, a judgement which underscores the exceptional nature of Mr Macrae’s memoir. To put to death an individual with the sensibility and intelligence to produce an extended literary work, would, I strongly aver, be a cruel and uncivilised act.
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