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TRIAL OF
DUNCAN TERIG ALIAS CLERK,
AND
ALEXANDER BANE MACDONALD,
FOR THE MURDER OF
ARTHUR DAVIS,
SERGEANT IN GENERAL GUISE'S REGIMENT OF FOOT.
JUNE,
A.D. M.DCC.LIV.
EDINBURGH:
PRINTED BY BALLANTYNE AND COMPANY.
1831.
TO
THE MEMBERS OF THE BANNATYNE CLUB,
THIS COPY OF A TRIAL,
INVOLVING A CURIOUS POINT OF EVIDENCE,
IS PRESENTED
BY
WALTER SCOTT.
FEBRUARY, M.DCCC.XXXI.
Transcriber's Note: Letters that are printed as superscript are
indicated by being preceeded by a caret (^).
THE BANNATYNE CLUB.
M.DCCC.XXXI.
SIR WALTER SCOTT, BAR^T.
[PRESIDENT.]
THE EARL OF ABERDEEN, K.T.
RIGHT HON. WILLIAM ADAM,
LORD CHIEF COMMISSIONER OF THE JURY COURT.
JAMES BALLANTYNE, ESQ.
SIR WILLIAM MACLEOD BANNATYNE. 5
LORD BELHAVEN AND STENTON.
GEORGE JOSEPH BELL, ESQ.
ROBERT BELL, ESQ.
WILLIAM BELL, ESQ.
JOHN BORTHWICK, ESQ. 10
WILLIAM BLAIR, ESQ.
THE REV. PHILIP BLISS, D.C.L.
GEORGE BRODIE, ESQ.
CHARLES DASHWOOD BRUCE, ESQ.
THE DUKE OF BUCCLEUCH AND QUEENSBERRY. 15
JOHN CALEY, ESQ.
JAMES CAMPBELL, ESQ.
HON. JOHN CLERK, LORD ELDIN.
WILLIAM CLERK, ESQ.
HENRY COCKBURN, ESQ. 20
DAVID CONSTABLE, ESQ.
ANDREW COVENTRY, ESQ.
JAMES T. GIBSON CRAIG, ESQ.
WILLIAM GIBSON CRAIG, ESQ.
HON. GEORGE CRANSTOUN, LORD COREHOUSE. 25
THE EARL OF DALHOUSIE.
JAMES DENNISTOUN, ESQ.
ROBERT DUNDAS, ESQ.
RIGHT HON. W. DUNDAS, LORD CLERK REGISTER.
CHARLES FERGUSSON, ESQ. 30
ROBERT FERGUSON, ESQ.
LIEUT.-GENERAL SIR RONALD C. FERGUSON.
THE COUNT DE FLAHAULT.
HON. JOHN FULLERTON, LORD FULLERTON.
LORD GLENORCHY. 35
THE DUKE OF GORDON.
WILLIAM GOTT, ESQ.
SIR JAMES R. G. GRAHAM, BAR^T.
ROBERT GRAHAM, ESQ.
LORD GRAY. 40
RIGHT HON. THOMAS GRENVILLE.
THE EARL OF HADDINGTON.
THE DUKE OF HAMILTON AND BRANDON.
E. W. A. DRUMMOND HAY, ESQ.
JAMES M. HOG, ESQ. 45
JOHN HOPE, ESQ.
COSMO INNES, ESQ.
DAVID IRVING, LL.D.
JAMES IVORY, ESQ.
THE REV. JOHN JAMIESON, D.D. 50
ROBERT JAMESON, ESQ.
SIR HENRY JARDINE.
FRANCIS JEFFREY, ESQ. LORD ADVOCATE.
JAMES KEAY, ESQ.
THOMAS FRANCIS KENNEDY, ESQ. 55
JOHN G. KINNEAR, ESQ. [TREASURER.]
THE EARL OF KINNOULL.
DAVID LAING, ESQ. [SECRETARY.]
THE EARL OF LAUDERDALE, K.T.
THE REV. JOHN LEE, D.D. 60
THE MARQUIS OF LOTHIAN.
HON. J. H. MACKENZIE, LORD MACKENZIE.
JAMES MACKENZIE, ESQ.
JAMES MAIDMENT, ESQ.
THOMAS MAITLAND, ESQ. 65
THE HON. WILLIAM MAULE.
GILBERT LAING MEASON, ESQ.
VISCOUNT MELVILLE, K.T.
WILLIAM HENRY MILLER, ESQ.
THE EARL OF MINTO. 70
HON. SIR J. W. MONCREIFF, LORD MONCREIFF.
JOHN ARCHIBALD MURRAY, ESQ.
WILLIAM MURRAY, ESQ.
JAMES NAIRNE, ESQ.
MACVEY NAPIER, ESQ. 75
FRANCIS PALGRAVE, ESQ.
HENRY PETRIE, ESQ.
ROBERT PITCAIRN, ESQ.
ALEXANDER PRINGLE, ESQ.
JOHN RICHARDSON, ESQ. 80
THE EARL OF ROSSLYN.
ANDREW RUTHERFURD, ESQ.
THE EARL OF SELKIRK.
RIGHT HON. SIR SAMUEL SHEPHERD.
ANDREW SKENE, ESQ. 85
JAMES SKENE, ESQ.
GEORGE SMYTHE, ESQ.
EARL SPENCER, K.G.
JOHN SPOTTISWOODE, ESQ.
THE MARQUIS OF STAFFORD, K.G. 90
MAJOR-GENERAL STRATON.
SIR JOHN ARCHIBALD STEWART, BAR^T.
THE HON. CHARLES FRANCIS STUART.
ALEXANDER THOMSON, ESQ.
THOMAS THOMSON, ESQ. [VICE-PRESIDENT.] 95
W. C. TREVELYAN, ESQ.
PATRICK FRASER TYTLER, ESQ.
ADAM URQUHART, ESQ.
RIGHT HON. SIR GEORGE WARRENDER BAR^T.
THE VENERABLE ARCHDEACON WRANGHAM. 100
TO THE
RIGHT HONOURABLE
SIR SAMUEL SHEPHERD,
THIS CURIOUS TRACT,
RESPECTING PERHAPS THE ONLY SUBJECT OF LEGAL ENQUIRY
WHICH HAS ESCAPED BEING INVESTIGATED BY HIS SKILL,
AND ILLUSTRATED BY HIS GENIUS,
IS RESPECTFULLY INSCRIBED,
BY HIS AFFECTIONATE FRIEND, AND MUCH
OBLIGED HUMBLE SERVANT,
WALTER SCOTT.
15TH FEB., 1831.
INTRODUCTION.
Although the giving information concerning the unfair manner in which
they were dismissed from life, is popularly alleged to have been a
frequent reason why departed spirits revisit the nether world, it is
yet only in a play of the witty comedian, Foote, that the reader will
find their appearance become the subject of formal and very ingenious
pleadings. In his farce called the Orators, the celebrated Cocklane
Ghost is indicted by the name of Fanny the Phantom, for that, contrary
to the King's peace, it did annoy, assault, and terrify divers persons
residing in Cocklane and elsewhere, in the county of Middlesex. The
senior counsel objects to his client pleading to the indictment, unless
she is tried by her equals in rank, and therefore he moves the
indictment be quashed, unless a jury of ghosts be first had and
obtained. To this it is replied, that although Fanny the Phantom had
originally a right to a jury of ghosts, yet in taking upon her to
knock, to flutter, and to scratch, she did, by condescending to
operations proper to humanity, wave her privileges as a ghost, and must
consent to be tried in the ordinary manner. It occurs to the Justice
who tries the case, that there will be difficulty in impanelling a jury
of ghosts, and he doubts how twelve spirits who have no body at all,
can be said to take a corporal oath, as required by law, unless,
indeed, as in the case of the Peerage, the prisoner may be tried upon
her honour. At length the counsel for the prosecution furnishes the
list of ghosts for the selection of the jury, being the most celebrated
apparitions of modern times, namely, Sir George Villiers, the evil
genius of Brutus, the Ghost of Banquo, and the phantom of Mrs Veal. The
counsel for the prosecution objects to a woman, and the court
dissolves, under the facetious order, that if the Phantom should plead
pregnancy, Mrs Veal will be admitted upon the jury of matrons.
This admirable foolery is carried by the English Aristophanes nearly as
far as it will go; yet it is very contrary to the belief of those, who
conceive that injured spirits are often the means of procuring redress
for wrongs committed upon their mortal frames, to find how seldom in
any country an allusion hath been made to such evidence in a court of
justice, although, according to their belief, such instances must have
frequently occurred. One or two cases of such apparition-evidence our
researches have detected.
It is a popular story, that an evidence for the Crown began to tell the
substance of an alleged conversation with the ghost of a murdered man,
in which he laid his death to the accused person at the bar. "Stop,"
said the judge, with becoming gravity, "this will not do; the evidence
of the ghost is excellent, none can speak with a clearer cause of
knowledge to any thing which befell him during life. But he must be
sworn in usual form. Call the ghost in open court, and if he appears,
the jury and I will give all weight to his evidence; but in case he
does not come forward, he cannot be heard, as now proposed, through the
medium of a third party." It will readily be conceived that the ghost
failed to appear, and the accusation was dismissed.
In the French _Causes Celebres et Interessantes_, is one entitled, _Le
Spectre, ou l'Illusion Reprouve_, reported by Guyot de Pittaval [vol.
xii. edition La Haye, 1749], in which a countryman prosecutes a
tradesman named Auguier for about twenty thousand francs, said to have
been lent to the tradesman. It was pretended, that the loan was to
account of the proceeds of a treasure which Mirabel, the peasant, had
discovered by means of a ghost or spirit, and had transferred to the
said Auguier, that he might convert it into cash for him. The case had
some resemblance to that of Fanny the Phantom. The defendant urged the
impossibility of the original discovery of the treasure by the spirit
to the prosecutor; but the defence was repelled by the influence of the
principal judge, and on a charge so ridiculous, Auguier narrowly
escaped the torture. At length, though with hesitation, the prosecutor
was nonsuited, upon the ground, that if his own story was true, the
treasure, by the ancient laws of France, belonged to the Crown. So that
the ghost-seer, though he had nearly occasioned the defendant to be put
to the question, profited in the end nothing by his motion.
This is something like a decision of the great Frederick of Prussia.
One of his soldiers, a Catholic, pretended peculiar sanctity, and an
especial devotion to a particular image of the Virgin Mary, which,
richly decorated with ornaments by the zeal of her worshippers, was
placed in a chapel in one of the churches of the city where her votary
was quartered. The soldier acquired such familiarity with the object of
his devotion, and was so much confided in by the priests, that he
watched for and found an opportunity of possessing himself of a
valuable diamond necklace belonging to the Madonna. Although the
defendant was taken in the manner, he had the impudence, knowing the
case was to be heard by the King, to say that the Madonna herself had
voluntarily presented him with her necklace, observing that, as her
good and faithful votary, he had better apply it to his necessities,
than that it should remain useless in her custody.
The King, happy of the opportunity of tormenting the priests, demanded
of them, whether there was a possibility that the soldier's defence
might be true. Their faith obliged them to grant that the story was
possible, while they exhausted themselves on the improbabilities which
attended it. "Nevertheless," said the King, "since it is possible, we
must, in absence of proof, receive it as true, in the first instance.
All I can do to check an imprudent generosity of the saints in future,
is to publish an edict, or public order, that all soldiers in my
service, who shall accept any gift from the Virgin, or any saint
whatever, shall, _eo ipso_, incur the penalty of death."
Amongst English trials, there is only mention of a ghost in a very
incidental manner, in that of John Cole, fourth year of William and
Mary, State Trials, vol. xii. The case is a species of supplement to
that of the well-known trial of Henry Harrison, which precedes it in
the same collection, of which the following is the summary.
A respectable doctor of medicine, Clenche, had the misfortune to offend
a haughty, violent, and imperious woman of indifferent character, named
Vanwinckle, to whom he had lent money, and who he wished to repay it. A
hackney-coach, with two men in it, took up the physician by night, as
they pretended, to carry him to visit a patient. But on the road they
strangled him with a handkerchief, having a coal, or some such hard
substance, placed against their victim's windpipe, and escaped from the
coach. One Henry Harrison, a man of loose life, connected with this Mrs
Vanwinckle, the borrower of the money, was tried, convicted, and
executed, on pretty clear evidence, yet he died denying the crime
charged. The case being of a shocking nature, of course interested the
feelings of the common people, and another person was accused as an
accessory, the principal evidence against whom was founded on this
story.
A woman, called Millward, pretended that she had seen the ghost of her
deceased husband, who told her that one John Cole had assisted him, the
ghost, in the murder of Dr Clenche. Cole was brought to trial
accordingly; but the charge was totally despised, both by judge and
jury, and produced no effect whatever in obtaining conviction.
Such being the general case with respect to apparitions, really alluded
to or quoted in formal evidence in courts of justice, an evidence of
that kind gravely given and received in the High Court of Justiciary in
Scotland, has some title to be considered as a curiosity.
The Editor's connexion with it is of an old standing, since, shortly
after he was called to the bar in 1792, it was pointed out to him by
Robert M'Intosh, Esq., one of the counsel in the case, then and long
after remarkable for the interest which he took, and the management
which he possessed, in the prolix and complicated affairs of the York
Building Company.
The cause of the trial, bloody and sad enough in its own nature, was
one of the acts of violence which were the natural consequences of the
Civil War in 1745.
It was about three years after the battle of Culloden that this poor
man, Sergeant Davis, was quartered, with a small military party, in an
uncommonly wild part of the Highlands, near the country of the
Farquharsons, as it is called, and adjacent to that which is now the
property of the Earl of Fife. A more waste tract of mountain and bog,
rocks and ravines, extending from Dubrach to Glenshee, without
habitations of any kind until you reach Glenclunie, is scarce to be met
with in Scotland. A more fit locality, therefore, for a deed of murder,
could hardly be pointed out, nor one which could tend more to agitate
superstitious feelings. The hill of Christie, on which the murder was
actually committed, is a local name, which is probably known in the
country, though the Editor has been unable to discover it more
specially, but it certainly forms part of the ridge to which the
general description applies. Davis was attached to the country where he
had his residence, by the great plenty of sport which it afforded, and,
when dispatched upon duty across these mountains, he usually went at
some distance from his men, and followed his game without regarding the
hints thrown out about danger from the country people. To this he was
exposed, not only from his being intrusted with the odious office of
depriving the people of their arms and national dress, but still more
from his usually carrying about with him a stock of money and
valuables, considerable for the time and period, and enough of itself
to be a temptation to his murder.
On the 28th day of September, the Sergeant set forth, along with a
party, which was to communicate with a separate party of English
soldiers at Glenshee; but when Davis's men came to the place of
rendezvous, their commander was not with them, and the privates could
only say that they had heard the report of his gun after he had parted
from them on his solitary sport. In short, Sergeant Arthur Davis was
seen no more in this life, and his remains were long sought for in
vain. At length a native of the country, named M'Pherson, made it known
to more than one person that the spirit of the unfortunate huntsman had
appeared to him, and told him he had been murdered by two Highlanders,
natives of the country, named Duncan Terig alias Clerk, and Alexander
Bane Macdonald. Proofs accumulated, and a person was even found to bear
witness, that lying in concealment upon the hill of Christie, the spot
where poor Davis was killed, he and another man, now dead, saw the
crime committed with their own eyes. A girl whom Clerk afterwards
married, was, nearly at the same time, seen in possession of two
valuable rings which the Sergeant used to have about his person.
Lastly, the counsel and agent of the prisoners were convinced of their
guilt. Yet, notwithstanding all these suspicious circumstances, the
panels were ultimately acquitted by the jury.
This was chiefly owing to the ridicule thrown upon the story by the
incident of the ghost, which was enhanced seemingly, if not in reality,
by the ghost-seer stating the spirit to have spoken as good Gaelic as
he had ever heard in Lochaber.--"Pretty well," answered Mr M'Intosh,
"for the ghost of an English sergeant!" This was indeed no sound jest,
for there was nothing more ridiculous, in a ghost speaking a language
which he did not understand when in the body, than there was in his
appearing at all. But still the counsel had a right to seize upon
whatever could benefit his clients, and there is no doubt that this
observation rendered the evidence of the spectre yet more ridiculous.
In short, it is probable that the ghost of Sergeant Davis, had he
actually been to devise how to prevent these two men from being
executed for his own murder, could hardly have contrived a better mode
than by the apparition in the manner which was sworn to.
The most rational supposition seems to be, that the crime had come to
M'Pherson, the ghost-seer's knowledge, by ordinary means, of which
there is some evidence, but desiring to have a reason for communicating
it, which could not be objected to by the people of the country, he had
invented this machinery of the ghost, whose commands, according to
Highland belief, were not to be disobeyed. If such were his motives,
his legend, though it seemed to set his own tongue at liberty upon the
subject, yet it impressed on his evidence the fate of Cassandra's
prophecies, that, however true, it should not have the fortune to be
believed.
ABBOTSFORD, 18th March, 1830.
TRIAL OF
DUNCAN TERIG ALIAS CLERK, AND ALEXANDER BAIN MACDONALD,
FOR THE MURDER OF
ARTHUR DAVIES, SERJEANT
IN GENERAL GUISE'S REGIMENT OF FOOT.
JUNE, A.D. MDCC.LIV.
TRIAL OF
DUNCAN TERIG ALIAS CLERK,
AND ALEXANDER BAIN MACDONALD.
_CURIA JUSTICIARIA S. D. N. Regis tenta in Nova Sessionis Domo
Burgi de Edinburgh, Decimo die Mensis Junij 1754, per honorabiles
viros Carolum Areskine de Alva, Justiciarij Clericum, Magistros
Alexandrum Fraser de Strichen, Patricium Grant de Elchies, et
Hugonem Dalrymple de Drummore, et Dominum Jacobum Ferguson de
Killkerran, Commissionarios Justiciarij dicti S. D. N. Regis._
_Curia legittime affirmata_,
INTRAN.
DUNCAN TERIG _alias_ CLERK, and ALEXANDER BAIN MACDONALD, both now
prisoners in the Tolbooth of Edinburgh, Pannels,
Indicted and accused at the instance of William Grant of Prestongrange,
Esq., His Majesties Advocate, for His Majesties interest, for the crime
of murder committed by them in manner at length mentioned in the
indictment raised against them thereanent, which indictment maketh
mention, THAT WHEREAS, by the laws of God, and of this and all other
well governed realms, Murder or Homicide is a most atrocious crime, and
severely punishable, especially committed with an intent to rob the
person murdered, and that by persons of bad fame and character, who are
habite and repute thieves, YET TRUE IT IS, and of verity, that they,
and each of them, or one or other of them, are guilty, actors, or art
and part, of the foresaid crime, aggravated as aforesaid, in so far as
the deceast Arthur Davies, serjeant in the regiment of foot commanded
by General Guise, being in the year one thousand seven hundred and
forty-nine, quartered or lodged alongst with a party of men or soldiers
belonging to the said regiment in Dubrach, or Glendee, in Braemar, in
the parish of ---- and sheriffdom of Aberdeen, he, the said Arthur
Davies, did, upon the twenty-eighth day September, one thousand seven
hundred and forty-nine, or upon one or other of the days of that month,
or of the month of August immediately preceding, or October immediately
following, go from thence to a hill in Braemar, commonly called
Christie, at the head of Glenconie, in the parish of ---- and
sheriffdom aforesaid. As also that same day, both of them, the said
Duncan Terig alias Clerk, and Alexander Bain Macdonald, went from the
house of John Grant, in Altalaat, armed with guns and muskets,
pretending when they went from thence that they were going to shoot or
hunt deer upon the said hill, to which place both of them having
accordingly gone, and there meeting with the said Arthur Davies, each,
or one or other of them, did, on the said twenty-eighth of September,
1749, or upon one or other of the days of that month, or of the months
aforesaid, cruelly and barbarously fire a loaded gun or guns at him,
which were in their hands, whereby he was mortally wounded, and of
which wounds he died on the said hill, immediately or soon thereafter,
where his dead body remained concealed for sometime, and was afterwards
found, together with a hat, having a silver button on it, with the
letters A. R. D. marked on it. LIKEAS, soon after the said Arthur
Davies was murdered, each of the said two panels, being persons of bad
fame and character, and who were habite and repute thieves, were, by
the general voice of the country, reputed to have perpetrated the said
murder, and to have robbed and taken from him a silver watch, two gold
rings and a purse of gold, which it was known or believed in the
country he generally wore or carried about him, which said opinion or
belief of the neighbourhood, that both of them had been guilty of the
said murder and robbery, has been since that time rendered the more
credible, particularly with respect to him, the said Duncan Clerk, in
so far as, although he was not possesst of any visible funds or effects
which could enable him to stock a farm before the period of the said
murder, yet soon thereafter he took and obtained a lease from Lord
Bracco, of a farm called the Craggan, for which he was bound to pay
thirty pounds Scots of yearly rent; as also thereafter he obtained a
lease of the farm of Gleney, from ---- Farquharson of Inverey, for
which at present he was bound to pay a yearly rent, or tack duty, of
one hundred and five merks Scots, as appears from the judicial
declaration of him, the said Duncan Clerk, to be hereafter more
particularly taken notice of; and both of the said panels having been
apprehended in the year one thousand seven hundred and fifty-three, for
being guilty of the foresaid murder, and upon the twenty-third day of
January last, one thousand seven hundred and fifty-four years, brought
into the presence of the Right Honourable Alexander Fraser of Strichen
and Hugh Dalrymple of Drummore, two of the Lords Commissioners of
Justiciary each of them gave different and contradictory accounts of
themselves, in so far as the said Duncan Clerk did then acknowledge, in
presence of the said Judges, that he was on the hill of Gleneye,
alongst with the said Alexander Bain Macdonald, both armed as above set
forth, on the day the said Arthur Davies was amissing; that the said
Alexander Macdonald fired a shot at some deer, but that about ten
o'clock the said Duncan Clerk parted with him on the hill, and came
back to his father's house, to which likewise the said Alexander
Macdonald came the same evening, where he lodged or stayed all night;
as also a paper containing a list of debts, beginning with the words,
"I, Duncan Clerk, in Gleneye, was put in Perth Jail," and ending,
"Angus Macdonald, 12 sh.," now marked on the back with the name and
sirname of the said Lord Drummore, being exhibited to him the said
Duncan Clerk, he acknowledged the same to be his handwriting, and that
it contains a list of debts due to him when he was imprisoned, as is at
more length to be seen in his said confession or declaration, signed by
him and the said Lord Drummore. LIKEAS he the said Alexander Bain
Macdonald did, upon the twenty-third day of January last, one thousand
seven hundred and fifty-four years, in presence of the said Judges,
acknowledge and declare, that one year, while he was Lord Bracco's
forrester, he went with the said Duncan Clerk to the Hill of Gleneye,
to search for deer, where he fired at them, but that about nine or ten
o'clock in the forenoon, Duncan Clerk went home to his father's house,
and thereafter the said Alexander Macdonald returned to his own house
in Allanquoich, where he staid all that night, not seeing the said
Duncan Clerk more that day, as is at more length to be seen in his said
confession or declaration, signed by the said Lord Drummore, he having
declared he could not write; both which confessions or declarations,
with the list of debts above specified, said to be due to him, the said
Duncan Clerk, as also, the hat mentioned to be found in summer one
thousand seven hundred and fifty in the hill of Gleneye, are all now
lodged in the hands of the Clerk to the Court of Justiciary, before
which they are to be tried, that they may see the same: AT LEAST time
and place aforesaid, the said Arthur Davies was murdered or bereaved of
his life, and they, and each of them, or one or other of them, are
guilty, actor or art and part of the said murder, aggravated as above
set furth; all which, or part thereof, being found proven by the
verdict of an Assize, before the Lords Justice General, Justice Clerk,
and Commissioners of Justiciary, he, the said Duncan Terig alias Clerk,
and Alexander Bain Macdonald, ought to be punished with the pains of
law, to the terror of others to commit the like in time coming.
(Signed) ALEX. HOME, A.D.
PURSUERS.
WILLIAM GRANT, of Prestongrange, Esq., His Majesties Advocate.
Mr PATRICK HALDANE, and
Mr ALEXANDER HOME,
both His Majesties Solicitors.
Mr ROBERT DUNDAS, Advocate.
PROCURATORS in defence.
Mr ALEXANDER LOCKHART,
Mr ROBERT M'INTOSH,
Advocates.
The Libel being openly read in Court, and the panels interrogate
thereupon, they both denied the same, and referred their defences to
their Lawiers.
LOCKHART, &c., for the panel, denying the libel, or any guilt or
accession of the panels to the murder charged, pled that the panels
were persons of good fame and reputation, and that as no cause of
malice in them against Serjeant Davies was alleged, so the circumstances
founded on in the indictment, though they were true, were not in any
sort sufficient to infer a proof of the panels' guilt. And further, the
panels would be able to prove a true and warrantable cause for going to
the hill libelled on in arms, and that they went openly and avowedly;
and that in the circumstances they were in, it was impossible they
could have any wicked design against, or expect to have an opportunity
of executing such a design against Serjeant Davies: That they were not
so much as suspected of murdering him at the time of his being
amissing, or for several months thereafter, when many different
accounts were given, and suspicions raised and entertained concerning
that matter. THEY also objected and alleged for the panels, that as
murder was the only crime charged against them in this indictment, no
vague or general allegation of robbery, or other crime or accusation
against their characters, could be allowed to go to the knowledge of an
assize, though they were noways apprehensive of the consequences of it,
other than from the false and malicious reports, raised and propagated
against them, since their commitment for the foresaid crime; and the
panels had great reason to complain of the undue delays in bringing
them to trial for this offence: In so far as, after they were committed
for the same in September last, and had taken out letters of
intimation, and upon expiry of the days, had also obtained letters of
liberation, they were again committed upon a new warrant for alleged
theft, upon which new commitment they raised new letters of intimation,
and when the sixty days were just expiring, they were served with an
indictment for the theft, which was fixed to within a few days of the
expiry of the forty days allowed by law, and then allowed to drop; and
after all, there was again a new warrant of commitment obtained against
them for wearing the Highland dress; and last of all they were served
with this indictment; all which steps plainly show the oppression they
have met with, which the panels do by no means lay to the charge of the
prosecutor, but are willing to allow the same to be owing to the
malicious information of some private informer, which they hope to be
able to make appear if they were allowed an exculpatory proof, and that
very undue means had been used both before and since the citation of
the witnesses to influence them to give evidence against the panels in
this matter; and the panels, amongst many other things for their
exculpation, would be able to prove, that after they returned from the
hill upon the day upon which the Serjeant is said to have been
murdered, he, the Serjeant, was seen with his party in that hill. So
that it is impossible the panels could be the perpetrators of the
murder.
LORD ADVOCATE, &c., answered, that as the defence resolved altogether
into a denial of the libel, it was sufficient for him to say, that
according to the information he had received, such facts and
circumstances would come out upon proof as would be sufficient to
convince the Jury of the panels' guilt: That it was not meant that the
circumstances libelled were sufficient without others to connect with
them, the only intention of libelling upon these circumstances being to
show the panels what written evidence was to be adduced against them:
That he does not oppose the panels being allowed a proof of every fact
and circumstance that may tend to their exculpation: That as to the
delay complained of, the prosecutor can for himself say, that it is
owing to no intention of his to oppress the panels; he had early
information of the murder charged upon, and was very willing and
desirous it might come to light. The panels were at last accused and
committed for it, by the general voice of the country; and though at
first the proof against them did not appear so pregnant, yet it was
hoped, and was the general expectation of all in that part, that the
murder would be brought to light. This was the reason of continuing the
panels in confinement. And now that the prosecutor was ready to go on
to trial, he hoped their Lordships would find the indictment relevant,
and remit the panels to the knowledge of an assize, allowing them at
the same time a proof of every circumstance that may appear necessary
for their exculpation.
THE LORDS Justice Clerk and Commissioners of Justiciary, having
considered the indictment pursued at the instance of William Grant of
Prestongrange, Esq., His Majesties Advocate for his Majesties interest,
against Duncan Terig _alias_ Clerk, and Alexander Bain Macdonald, both
now prisoners in the Tolbooth of Edinburgh, panels, with the foresaid
debate thereupon: They find the said indictment relevant to infer the
pains of law; but allow the panels to prove all facts and circumstances
that may tend to elide the indictment, or exculpate them, or either of
them, from the guilt of the crime therein libelled: And remit the
panels, with the indictment as found relevant, to the knowledge of an
assize.
(Signed) CH. ARESKINE, I.P.D.
The Lords continue the diet at the instance of his Majesties Advocate,
against the said two panels, till to-morrow at seven o'clock in the
morning, and witnesses and assizers then to attend, each under the pain
of law, and the panels to be carried back to prison.
_CURIA JUSTICIARIA S. D. N. Regis tenta in Nova Sessionis Domo
Burgi de Edinburgh undecimo die mensis Junij 1754, per honorabiles
viros Carolum Areskine de Alva, Justiciarium Clericum, Dominum
Gilbertum Elliot de Minto, Magistros Alexandrum Fraser de Strichen,
Patricium Grant de Elchies, et Hugonem Dalrymple de Drummore, et
Dominum Jacobum Ferguson de Killkerran, Commissionarios
Justiciarios dict. S. D. N. Regis._
_Curia legittime affirmata_,
INTRAN.
DUNCAN TERIG _alias_ CLERK, and ALEXANDER BAIN MACDONALD, both
prisoners in the Tolbooth of Edinburgh, panels indicted and accused
as in the former Sederunt.
The Lords proceeded to make choice of the following persons to pass
upon the assize of the said Duncan Terig alias Clerk, and Alexander
Bain Macdonald; to wit,--
Archibald Wallace, merchant in Edinburgh.
William Tod, senior, merchant there.
Andrew Bonnar, merchant there.
Robert Forrester, merchant there.
Walter Hogg, merchant there.
Alexander Crawford, baker in Edinburgh.
John Heriot, candlemaker there.
John Sword, merchant there.
William Ormiston, bookbinder there.
William Braidwood, candlemaker.
William Sands, bookseller in Edinburgh.
John Dalgleish, watchmaker there.
George Gray, merchant there.
John Welsh, goldsmith there.
James Gilliland, goldsmith there.
The above assize all lawfully sworn, and no objection to the contrary--
The panels and their procurators admitted the two judicial declarations
libelled on, were emitted by them, before the two Judges therein named;
and the said panels both now judicially adhere to the same, with this
variation for Alexander Bain Macdonald, that it was a mistake in his
said declaration, where it is said, that he went home to the house in
Allanquoich, where he staid that night, and did not see Duncan Clerk
any more that day after they parted on the hill, the true fact being,
that he did not go home to the house in Allanquoich where he resided,
till the night thereafter, and in the evening of that night went to the
house of Duncan Clerk's father, where he found Duncan Clerk, and staid
all night, and that the reason of his former mistake was, that he by
himself went again to the hills upon the twenty-ninth in quest of the
deer which he had wounded the preceding day, and returned to his own
house the evening of the said twenty-ninth; and this admission is
signed by the said Duncan Clerk, and by Mr Alexander Lockhart,
procurator for the other panel, who declares he cannot write.
(Signed) DUNCAN CLERK.
ALEX. LOCKHART.
Thereafter, His Majesty's Advocate for proof adduced the following
witnesses; viz.--
JEAN GHENT, relict of Arthur Davies, serjeant in the regiment commanded
by Lieutenant-General Guise, aged about thirty-three years, who being
solemnly sworn, purged of malice and partial council, and interrogate:
Depones, That she was married for the space of ten months to Serjeant
Davies the day he was missing, and that in summer seventeen hundred and
forty-nine, her husband, with eight private men under his command,
marched from Aberdeen to Dubrach in Braemar, in the shire of Aberdeen,
which was assigned to him as his station; and that there was another
party of the same regiment whose head-quarters was at Aberdeen,
stationed at the Spittle of Glenlee, within eight miles of Dubrach,
under the command of a corporal: That the two parties did meet twice
a-week in patrol, about half way between the foresaid two places: That
her husband was a keen sportsman, and used to go out a-shooting or
fishing generally every day; and when he went along with the party on
patrol, sent the men home and followed his sport; and on other
occasions went out a-shooting by himself alone: That her husband was a
sober man, a good manager, and had saved money to the value of about
fifteen guineas and a half, which he had in gold, and kept in a green
silk purse, which he inclosed within a leather purse along with any
silver he had: That besides this gold, he generally wore a silver watch
in his pocket, and two gold rings upon one of his fingers, one of which
was of pale yellow gold, and had a little lump of gold raised upon it
in the form of a seal, with a gold stamp on the inside of the ring, and
a weaved line like a worm round the upper side of the plate: That the
other was a plain gold ring, which the deponent had got from David
Holland, her first husband, with the letters D. H. on the inside, and
had this posie on it, "When this you see remember me:" That the said
David Holland was paymaster-serjeant in General Guise's regiment: And
further depones, That the said Serjeant Davies commonly wore a pair of
large silver buckles in his shoes, marked also with the same letters D.
H. in the inside, which likewise had belonged to her said former
husband, as also wore silver knee-buckles, and had two dozen silver
buttons upon a double-breasted vest, made of stript lutstring: That he
frequently had about him a folding penknife, that had a brown
tortoise-shell handle, and a plate upon the end of it, on which was cut
a naked boy, or some such device, with which he often sealed his
letters: That one day when he was dressing some hooks while the
deponent was by, she observed that he was cutting his hat with his
penknife, and she went towards him, and asked him what he meant by
cutting his hat? To which he answered, that he was cutting his name
upon it: To which the deponent replied, she could not see what he could
mean by putting his name upon a thing of no value, and pulled it out of
his hand in a jocular way, but he followed her, and took the hat from
her, and she observed that the A. was then cut out in the hat; and
after he got it, she saw him cut out the letter D., which he did in a
hurry, and which the deponent believed was occasioned by the toying
that was between them concerning this matter, for when she observed it,
she said to him you have made a pretty sort of work of it, by having
misplaced the letters: To which he answered, that it was her fault,
having caused him do it in a hurry. And the hat now upon the table, and
which is lying in the clerk's hands, and referred to in the indictment,
being shown to her, Depones, That to the best of her judgment and
belief, that is the hat above mentioned: Depones, That she never has
seen neither the said Serjeant, the gold purse, or silver purse, above
mentioned, nor the buckles for his shoes and knees, watch, or penknife,
since he marched from his quarters with the party at the time at which
he is supposed to have been murdered: Depones, That on Thursday, being
the day immediately preceding Michaelmas, being the twenty-eighth of
September, one thousand seven hundred and forty-nine, her husband went
out very early in the morning from Dubrach, and that four men of the
party under his command soon after followed him, in order to meet the
patrol from Glenshye, and in the afternoon before four o'clock, the
four men returned to Dubrach, and acquainted the deponent that they had
seen and heard him fire a shot, as they believed, at Tarmatans, but
that he did not join company with them: That at the place appointed
they met with a corporal and a party from Glenshee, and then retired
home: Depones, That her husband never returned; that she has never met
with any body that saw him after the party returned from the foresaid
place, excepting the corporal that that day commanded the party from
Glenshee, who told her that, after the forementioned party from Dubrach
had gone away from the foresaid appointed place, Serjeant Davies came
up to him all alone, upon which the corporal told him, he thought it
was very unreasonable in him to venture upon the hill by himself, as
for his part he was not without fear even when he had his party of four
men along with him; to which Serjeant Davies answered, that when he had
his arms and ammunition about him, he did not fear any body he could
meet: Depones, That her husband, Serjeant Davies, made no secret of his
having the gold above mentioned, but upon the many different occasions
he had to pay and receive money, he used to take out his purse and show
the gold; and that even when he was playing with children, he would
frequently take out his purse and rattle it for their diversion, from
which it was generally known by all the neighbourhood that the serjeant
was worth money, and carried it about him: Depones, That from the
second day after the serjeant and party went from Dubrach as aforesaid,
when the deponent found he did not return, she did believe, and does
believe at this day, that he was murdered; for that he and she lived
together in as great amity and love as any couple could do that ever
were married, and that he never was in use to stay away a night from
her, and that it was not possible he could be under any temptation to
desert, as he was much esteemed and beloved by all his officers, and
had good reason to believe he would have been promoted to the rank of
serjeant-major upon the first vacancy: Depones, That when her husband
went away from Dubrach on the morning of the twenty-eighth of September
aforesaid, he was dressed in a blue surtout coat, with a stripped silk
vest, and teiken breeches and brown stockings: That he had in his purse
fifteen guineas and a half in gold, a crown piece and three shillings
in silver, his silver watch in his pocket, with a silver seal at it,
his silver buckles in his shoes, and his silver buttons on his
waistcoat, and the above mentioned rings on his fingers; and being
asked how she came to know all these things were on him or about him
when he went away as aforesaid? Depones, That she was privy and knew
every thing that related to his money; and the night before the said
twenty-eighth of September, the serjeant from Braemar had come to
Dubrach, and in the deponent's presence had given some money which was
gold to Serjeant Davies, who gave him silver that he had by him for it,
to pay the party; and upon occasion of this, she saw the quantity of
gold above mentioned, which was in her husband's possession, and that
she saw the vest with the buttons and rings on his fingers, and also
the watch, before he went away, he having in her presence put on the
teiken drawers above mentioned, desired from her somewhat to keep the
watch dry, upon which she gave him a piece of cloth, the said drawers
being a little damp, in which he wrapt it, and put it into his pocket:
Depones, That he had dark mouse-coloured hair, tied up with a black
silk ribband behind, and wore a hat with a silver lace and silver
button, marked with the letters D. A. on the outside of the crown of
the hat: And the deponent verily believes, that the hat now shown to
her, and above referred to, is the hat he took out with him: Depones,
That he wore that day a pair of brogues which he had bespoke to be made
so as they could fit buckles, and not to be tied with latches, conform
to the common use of that country: That these brogues the deponent saw
when they were first brought home from Glenshee: Depones, That a gun
now exhibited and shown to the deponent, is the gun which her husband,
Serjeant Davies, received in a present from Lieutenant Brydon, of the
same regiment with him, and the gun which he always used when he went
a-shooting, and which he carried out with him in the morning of the
twenty-eighth of September, one thousand seven hundred and forty-nine
aforesaid: That the stock of the gun is altered about the butt, and a
plate that was on the butt-end is taken away, and the wood pared, but
that she knows the barrel by a cross rent that is in it a little above
the middle, and which her husband told her had been occasioned by his
firing a shot when the gun was overloaded and the ball had stuck at
that part of the barrel when he was loading her: Depones, That from the
time her husband was quartered at Dubrach in the month of June to the
foresaid twenty-eighth of September one thousand seven hundred and
forty-nine, he was never absent a night from his command at Dubrach
except one, that he went to the doctor of the regiment to take his
advice about a strain, and he returned next morning: Depones, That upon
the Monday after the Serjeant was believed to be murdered, the country
was raised to make search for the body, but it was not found; and that
she spoke to one of the prisoners, Clerk, whom she took to be a
particular friend, to try if he could find the body, but it was not
found: That afterwards the deponent went to the garrison in Braemar,
and from that to the regiment: And being interrogate for the panels,
whether her husband had received any information before the party
marched out upon the day above mentioned that there were people in arms
in that country where he was stationed? Depones, That her husband was
stationed there, as she believes, because it was said that severals of
the Highlanders had not delivered up their arms since the Rebellion,
and wore the highland garb; but that she knows nothing of any
particular information he had about that time, except that about the
beginning of harvest, on a Sunday afternoon, a woman, who said she had
been in the hill, came in where the Serjeant and the deponent were
sitting at dinner, and said, that she had seen two men in highland
clothes, and armed, lying at the mouth of a cave, who seemed to be
herding two cows which she saw, and upon her coming near them,
consulted among themselves whether they should not bind her lest she
should return and advertise Serjeant Davies and his party; but however,
she had got away, and had come immediately to give notice to the
Serjeant and his party, whereupon he and a party of six men went up in
quest of them, but found nobody, neither did the deponent hear any more
of that matter afterwards, _Causa scientiae patet_: And this is truth,
as she shall answer to God; and declares she cannot write.
(Signed) CH. ARESKINE.