While my husband and Mr. Henley were engaged in writing plays in Bournemouth they made a number of titles, hoping to use them in the future. Dramatic composition was not what my husband preferred, but the torrent of Mr. Henley’s enthusiasm swept him off his feet. However, after several plays had been finished, and his health seriously impaired by his endeavours to keep up with Mr. Henley, play writing was abandoned forever, and my husband returned to his legitimate vocation. Having added one of the titles, The Hanging Judge, to the list of projected plays, now thrown aside, and emboldened by my husband’s offer to give me any help needed, I concluded to try and write it myself.

As I wanted a trial scene in the Old Bailey, I chose the period of 1700 for my purpose; but being shamefully ignorant of my subject, and my husband confessing to little more knowledge than I possessed, a London bookseller was commissioned to send us everything he could procure bearing on Old Bailey trials. A great package came in response to our order, and very soon we were both absorbed, not so much in the trials as in following the brilliant career of a Mr. Garrow, who appeared as counsel in many of the cases. We sent for more books, and yet more, still intent on Mr. Garrow, whose subtle cross–examination of witnesses and masterly, if sometimes startling, methods of arriving at the truth seemed more thrilling to us than any novel.

Occasionally other trials than those of the Old Bailey would be be included in the package of books we received from London; among these my husband found and read with avidity:—

My husband was always interested in this period of his country’s history, and had already the intention of writing a story that should turn on the Appin murder. The tale was to be of a boy, David Balfour, supposed to belong to my husband’s own family, who should travel in Scotland as though it were a foreign country, meeting with various adventures and misadventures by the way. From the trial of James Stewart my husband gleaned much valuable material for his novel, the most important being the character of Alan Breck. Aside from having described him as “smallish in stature,” my husband seems to have taken Alan Breck’s personal appearance, even to his clothing, from the book.

A letter from James Stewart to Mr. John Macfarlane, introduced as evidence in the trial, says: “There is one Alan Stewart, a distant friend of the late Ardshiel’s, who is in the French service, and came over in March last, as he said to some, in order to settle at home; to others, that he was to go soon back; and was, as I hear, the day that the murder was committed, seen not far from the place where it happened, and is not now to be seen; by which it is believed he was the actor. He is a desperate foolish fellow; and if he is guilty, came to the country for that very purpose. He is a tall, pock–pitted lad, very black hair, and wore a blue coat and metal buttons, an old red vest, and breeches of the same colour.” A second witness testified to having seen him wearing “a blue coat with silver buttons, a red waistcoat, black shag breeches, tartan hose, and a feathered hat, with a big coat, dun coloured,” a costume referred to by one of the counsel as “French cloathes which were remarkable.”

‘Here was the new view. Plainly, this second species of Man was subterranean. There were three circumstances in particular which made me think that its rare emergence above ground was the outcome of a long-continued underground habit. In the first place, there was the bleached look common in most animals that live largely in the dark—the white fish of the Kentucky caves, for instance. Then, those large eyes, with that capacity for reflecting light, are common features of nocturnal things— witness the owl and the cat. And last of all, that evident confusion in the sunshine, that hasty yet fumbling awkward flight towards dark shadow, and that peculiar carriage of the head while in the light—all reinforced the theory of an extreme sensitiveness of the retina.

‘Beneath my feet, then, the earth must be tunnelled enormously, and these tunnellings were the habitat of the new race. The presence of ventilating shafts and wells along the hill slopes—everywhere, in fact except along the river valley —showed how universal were its ramifications. What so natural, then, as to assume that it was in this artificial Underworld that such work as was necessary to the comfort of the daylight race was done? The notion was so plausible that I at once accepted it, and went on to assume the how of this splitting of the human species. I dare say you will anticipate the shape of my theory; though, for myself, I very soon felt that it fell far short of the truth.

‘At first, proceeding from the problems of our own age, it seemed clear as daylight to me that the gradual widening of the present merely temporary and social difference between the Capitalist and the Labourer, was the key to the whole position. No doubt it will seem grotesque enough to you—and wildly incredible!—and yet even now there are existing circumstances to point that way. There is a tendency to utilize underground space for the less ornamental purposes of civilization; there is the Metropolitan Railway in London, for instance, there are new electric railways, there are subways, there are underground workrooms and restaurants, and they increase and multiply. Evidently, I thought, this tendency had increased till Industry had gradually lost its birthright in the sky. I mean that it had gone deeper and deeper into larger and ever larger underground factories, spending a still-increasing amount of its time therein, till, in the end—! Even now, does not an East-end worker live in such artificial conditions as practically to be cut off from the natural surface of the earth?

‘Again, the exclusive tendency of richer people—due, no doubt, to the increasing refinement of their education, and the widening gulf between them and the rude violence of the poor—is already leading to the closing, in their interest, of considerable portions of the surface of the land. About London, for instance, perhaps half the prettier country is shut in against intrusion. And this same widening gulf—which is due to the length and expense of the higher educational process and the increased facilities for and temptations towards refined habits on the part of the rich—will make that exchange between class and class, that promotion by intermarriage which at present retards the splitting of our species along lines of social stratification, less and less frequent. So, in the end, above ground you must have the Haves, pursuing pleasure and comfort and beauty, and below ground the Have-nots, the Workers getting continually adapted to the conditions of their labour. Once they were there, they would no doubt have to pay rent, and not a little of it, for the ventilation of their caverns; and if they refused, they would starve or be suffocated for arrears. Such of them as were so constituted as to be miserable and rebellious would die; and, in the end, the balance being permanent, the survivors would become as well adapted to the conditions of underground life, and as happy in their way, as the Upper-world people were to theirs. As it seemed to me, the refined beauty and the etiolated pallor followed naturally enough.