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Title: Trial of Duncan Terig, alias Clerk, and Alexander Bane Macdonald - for the Murder of Arthur Davis, Sergeant in General Guise's - Regiment of Foot
Author: Scott, Walter, Sir, 1771-1832
Language: English
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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 Célèbres et Interessantes_, is one entitled, _Le
Spectre, ou l'Illusion Réprouvé_, 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 scientiæ patet_: And this is truth,
as she shall answer to God; and declares she cannot write.
(Signed) CH. ARESKINE.
DONALD FARQUHARSON, in Glendee, married man, who being solemnly sworn,
purged of malice and partial council, and interrogate, depones, That in
summer one thousand seven hundred and forty-nine, Arthur Davies, late
serjeant in General Guise's regiment, was with a serjeant's command of
soldiers stationed in Dubrach, in Glendee, in Braemar, in
Aberdeenshire; and the Serjeant, with his wife, the preceding witness,
stayed in the house of Michael Farquharson, the deponent's father,
where the deponent also stayed: Depones, That the Serjeant was a sober
well behaving man, very civil to the country, and, so far as the
deponent knew, had the good-will of the country: That he was a good
manager of his money; and the deponent has seen with him a good deal of
gold, which he commonly kept in a long purse, either blue or green, the
deponent does not remember which, and he had also another purse, in
which he kept his silver: That he had a silver watch, with a seal
hanging at it, and silver buckles in his shoes, and knees of his
breeches: That the deponent has seen two vests with him, one with a
white stripe, and the other of a roe's skin; and that he had a set of
silver buttons for a vest, which he used with the one or other as he
had occasion: That he had also two rings, which he told the deponent
were gold, the one of them a large coarse ring, with a knob on the one
side of it, either of the shape of a seal or a heart, the deponent does
not remember which: Depones, That when Serjeant Davies went a-shooting
or fishing, he was commonly dressed in one of the above vests, and a
blue meet upper coat, or surtout, with highland brogues, which he had
purchased for the purpose, and had caused to be made so as to be tied
with silver buckles: Depones, That on the above gold ring with the
knob, there was upon the upper side of the knob some scores that the
deponent did not understand the meaning of: Depones, That the Serjeant
was wont frequently to take out his purse, either in paying or
receiving money, or some time even in playing with children; and that
when he went a-hunting or shooting, he always wore a laced hat, with a
silver button: Depones, That the last time the deponent saw him was on
Wednesday the twenty-seventh day of September, one thousand seven
hundred and forty-nine, the deponent having gone that day to the fair
at Kirkmichael, eighteen miles from his father's house, and did not
return till Saturday thereafter: Depones, That at his return, passing
by the house where the soldiers were quartered, one of them named
Patrick Ogilvie, asked the deponent whether he had seen Serjeant Davies
at the fair? and the deponent having answerd that he did not see him,
and that certainly he had not been there, or he would have seen him,
Ogilvie then said he was afraid of him, for that he had gone away upon
the Thursday to meet a patrol from Glenshee, and had not yet returned;
that they supposed he had gone with that patrol to the fair, but that
since he was not there, he suspected he had been murdered; and the
deponent never saw him alive since that time: Depones, That the captain
of that command to whom the Serjeant belonged, hearing that he was
amissing, sent a party of men on the Sunday to Dubrach to search for
his body, and went with them for three or four following days, but
without any success: Depones, That in the month of June seventeen
hundred and fifty, the deponent was told by the people in his father's
house, that Alexander Macpherson, alias M'Gillas, had been there
inquiring for him, and wanted much to see him, and desired the deponent
would go to his master's sheilling in Glenconie, about two miles'
distance from Dubrach, and that he wanted much to speak to him: That
after some days the deponent went to him, when Macpherson told him that
he was greatly troubled with an apparition, the ghost of the deceased
Serjeant Davies, who insisted that he should bury his bones; and that
he having declined to bury them, the ghost insisted that he should
apply to the deponent, saying that he was sure Donald Farquharson would
help to bury his bones: That the deponent could not believe that he had
seen such an apparition, upon which Macpherson desired him to go along
with him, and he would show him the bones, and the place where he had
found them: That the deponent went along with him, which he did the
rather that he thought it might possibly be true, and if it was, he did
not know but the apparition might trouble himself: Depones, That they
accordingly found the bones in a peat-moss, where peats had been casten
above ground, and near to the top of a hill: That the place was distant
from Dubrach between two and three miles, between Glenchristie and
Glenconie, and about half a mile from the road the patroling parties
commonly take from Dubrach to Glenshee: That the spot where the body
was lying had the surface of the ground entire, and no peats had been
casten there: That the flesh had been mostly consumed from the bones,
and the head separated from the body, and the hair lying by itself,
separated from the head; and depones, that the hair was of the same
colour with the Serjeant's hair, a mouse colour: That they also found
some blue cloth, all torn in rags, some of it under the body, and some
of it lying by the body; and it appeared to the deponent to be of the
same kind of cloth with that of the blue coat that the Serjeant
commonly wore when he went a-shooting: Depones, That the bones were not
all lying together, but were scattered asunder, particularly some of
the joints of his arms, and one of his legs; and that some of them were
scattered at the distance of several yards: Depones, That Macpherson
told him that when he first found the bones, which was about eight days
before, that they were lying farther off, under a bank, and he drew
them out with his staff: Depones, That they also found a pair of
brogues, which appeared to the deponent to be of the same kind with
what the Serjeant wore, only with this difference, that the taggs for
the buckles were cut away, which seemed to have been done with a knife:
Depones, That he asked Macpherson whether the apparition had told him
by whom he had been murdered: That Macpherson said he had asked the
question, and the apparition answered, that if he had not asked him, he
would have power to have told him: That the deponent also asked him if
the apparition had given him any orders about carrying his bones to a
churchyard: Depones, That Macpherson said he had given no answer, and
thereupon they agreed to bury him in that place; and accordingly they
dug a hole in the moss, with the shaft of a shovel that Macpherson had,
and buried the bones there, and laid a part of the blue cloth under the
bones, and a part of it above it, and covered all with some turfs that
they had tore up from the moss; and being showed a fusee, depones, that
one day the Serjeant and the deponent went out a-deer-hunting, and the
Serjeant, in loading his gun, which was either a French or a Spanish
piece, happened to put in a ball that was too large for the bore, so
that he could not, with the ram-rod, drive it down to the powder: That
the deponent advised him to go to his father's sheilling to get a
stronger ram-rod; but the Serjeant, being impatient to go about his
diversion, fired the fusee, and cracked the barrel about the middle;
and having examined the fusee now produced, observed that the barrel is
cracked about the same place, and, so far as appears to him, may be the
same barrel: Depones, That there appears to be some alterations made
upon the stock since the Serjeant had it: That the but was thicker than
it is now, and clad with iron at the end; and there was also another
ring for the keeping of the ram-rod, other than that now shown him:
Depones, That the gun was shown to the deponent on Wednesday last by
James Growar, son to Donald Growar in Glendee, who told him that he
found it in the hill in sight of Glenconie: Depones, That after
Serjeant Davies was killed or amissing as aforesaid, he saw yellow
rings on Elizabeth Downie's fingers, spouse to the prisoner, Duncan
Terig alias Clerk, one of which had a knob upon it, as Serjeant
Davies's ring also had, but does not remember the shape of either of
these knobs: Depones, That he asked her whether it was gold, and she
said it was: Depones, That he saw this ring upon Elizabeth Downie's
finger before she was married to the prisoner; but it was then reported
in the country that he was in suit of her for marriage, and has at
several times, before and since Serjeant Davies was amissing, seen
other yellow rings upon her fingers, but never saw the ring with the
knob upon her finger till after the Serjeant was amissing, nor never
saw it on her finger after she was married; and being asked whether it
did not strike him, when he saw the ring with the knob on it upon
Elizabeth Downie's hand, that it was Serjeant Davies's ring, Depones,
that it did not; and further depones, that he has known Elizabeth
Downie change her rings every other year: Depones, That after she was
married, the deponent asked her if she had a gold ring, and she
answered she never had one but one which was her mother's, which made
the deponent suppose that the said ring with the knob had been her
mother's; and depones, that the panel, her husband, was in prison when
he asked her this question: Depones, That at first there was a report
in the country that Serjeant Davies had deserted, then it was supposed
that he had been killed by the thieves, but last of all, the report
was, that he had been killed by the prisoners, and that has continued
to be the report of the country for these three years: And being asked
what he took to be the grounds of that report, Depones, that he took it
to be, that Macdonald, as Lord Bracco's forrester, had a warrant for
carrying guns for killing of deer, and he carried Clerk alongst with
him, and none other of the country had any warrant to carry arms; but
he heard that some of the people in the country suspected that the ring
with the knob that he had seen on Elizabeth Downie's finger was
Serjeant Davies's ring; and being interrogate as to the character of
the two panels, depones, that he has heard Clerk habite and repute a
sheep-stealer, but that he never heard any thing of Macdonald, but that
he once broke the chest of one Corbie, and took some money out of it:
Depones, That he never heard Clerk get the character of a good
deer-stalker, though he could shoot wild fowl: Depones, That Alexander
Macpherson, before mentioned, once served the deponent's father, and is
accounted an honest lad; but on the panel's interrogatory, Depones,
that he has been charged with telling of stories, and that all is not
to be believed that he says; though that is the general character, the
deponent knows no reason for it: Depones, That Duncan Clerk once
pursued his accusers before a Sheriff Court at Braemar, and freed
himself at that time, and, as he heard, got some mends of his accusers,
but what it was he knows not: That the only particular act of theft he
heard him accused of, was the stealing of a parcel of sheep from
Alexander Farquharson in Inverey, and which was the ground of the
process before mentioned before the Sheriff: Depones, That the Sabbath
before the Serjeant was amissing, a woman came to the deponent's
father's house, and told them that, coming through the hills, she had
seen four thieves in arms, who had separated fourteen of his father's
cattle, upon which the Serjeant, with a party, went in quest of them
immediately, but could find none of them, they having, it seems, gone
off and left the cattle: Depones, That upon the Friday, the
twenty-ninth of September, the corporal stationed at Glenshee met with
the deponent at the fair of Kirkmichael, while the deponent was buying
a pair of shoes, and he told the corporal that they were for Serjeant
Davies, and the corporal told him that he had parted with the Serjeant
the day before at the Water of Benow; the Serjeant, after that, was
going to the hill to get a shot of the deer; which Water of Benow is
about half a mile's distance from the place where the patrolling
parties used to meet: Depones, That the prisoner Clerk was a common
dealer in buying of sheep and cattle; and the deponent has seen him
both buying and paying the price, and his father was reputed one of the
richest tenants in Inverey's grounds. _Causa scientiæ patet_; and this
is truth, as he shall answer to God.
(Signed) DONALD FARQUHARSON.
P. GRANT.
ALEXANDER M'PHERSON _alias_ M^CGILLAS, in Inverey, being solemnly
sworn, purged of malice and partial council, and interrogate, aged
twenty-six years, unmarried, Depones, That in summer one thousand seven
hundred and fifty, he found lying in a moss bank in the hill of
Christie, a human body, at least the bones of a human body, of which
the flesh was mostly consumed, and he believed it to be the body of
Serjeant Davies, because it was reported in the country that he had
been murdered in that hill the year before. That when he first found
this body, there was a bit of blue cloth upon it pretty entire, which
he took to be what is called English cloth; he also found the hair of
the deceased, which was of a dark mouse colour, and tied about with a
black ribbon: That he also observed some pieces of a stripped stuff,
and found also lying there a pair of brogues, which had been made with
latches for buckles, which had been cut away by a knife: That he, by
help of his staff, brought out the body, and laid it upon plain ground,
in doing whereof some of the bones were separated one from another:
Depones, That for some days he was in a doubt what to do, but meeting
with John Growar in the moss, he told John what he had found, and John
bid him tell nothing of it, otherways he would complain of the deponent
to John Shaw of Daldownie, upon which the deponent resolved to prevent
Growar's complaint, and go and tell Daldownie of it himself; and which
having accordingly done, Daldownie desired him to conceal the matter,
and go and bury the body privately, as it would not be carried to a
kirk unkent, and that the same might hurt the country, being under the
suspicion of being a rebel country: Depones, That some few days
thereafter, he acquainted Donald Farquharson, the preceding witness, of
his having seen the body of a dead man in the hill, which he took to be
the body of Serjeant Davies: That Farquharson at first doubted the
truth of his information, till the deponent having told him that a few
nights before when he was in bed, a vision appeared to him as of a man
clad in blue, who told the deponent, "I am Serjeant Davies;" but that
before he told him so, the deponent had taken the said vision at first
appearance to be a real living man, a brother of Donald Farquharson's:
That the deponent rose from his bed, and followed him to the door, and
then it was, as has been told, that he said he was Serjeant Davies who
had been murdered in the Hill of Christie, about near a year before,
and desired the deponent to go to the place he pointed at, where he
would find his bones, and that he might go to Donald Farquharson, and
take his assistance to the burying of him: That upon giving Donald
Farquharson this information, Donald went along with him, and finding
the bones as he informed Donald, and having then buried it with the
help of a spade which he the deponent had alongst with him: And for
putting what is above deponed upon out of doubt, Depones, that the
above vision was the occasion of his going by himself to see the dead
body, and which he did before he either spoke to John Growar,
Daldownie, or any other body: And further Depones, that while he was in
bed another night after he had first seen the body by himself, but had
not buried it, the vision again appeared naked, and minded him to bury
the body; and after that he spoke to the other folks above mentioned,
and at last complied, and buried the bones above mentioned: Depones,
That upon the vision's first appearance to the deponent in his bed, and
after going out of the door, and being told by it he was Serjeant
Davies, the deponent asked him who it was that had murdered him, to
which it made this answer, that if the deponent had not asked him, he
might have told him, but as he had asked him, he said he either could
not or would not, but which of the two expressions the deponent cannot
say; but at the second time the vision made its appearance to him, the
deponent renewed the same question, and then the vision answered, that
it was the two men now in the panel that had murdered him: And being
further interrogate in what manner the vision disappeared from him
first and last, Depones, That after the short interviews above
mentioned, the vision at both times disappeared and vanished out of his
sight in the twinkling of an eye; and that in describing the panels by
the vision above mentioned as his murderers, his words were, Duncan
Clerk and Alexander Macdonald: Depones, That the conversation betwixt
the deponent and the vision was in the Irish language: Depones, That
several times in the harvest before the Martinmas after seeing the said
vision, he was applied to by Duncan Clerk, the panel, then to enter
home to his service at that time, which accordingly he did, and staid
in his service just a year, and he being in the hill together with
Duncan Clerk, spying a young cow, desired the deponent to shoot it; and
tho Duncan did not bid him carry it home after it should be shot, yet
the deponent understood that to be the purpose, when Duncan desired him
to shoot it, and which the deponent refused to do, adding, that it was
such thoughts as these were in his head when he murdered Serjeant
Davies, upon which some angry expressions happened between Duncan and
the deponent; but when the deponent insisted upon it that he could not
deny the murder, Duncan fell calm, and desired the deponent to say
nothing of that matter, and that he would be a brother to him, and give
him every thing he stood in need of, and particularly would help him to
stock a farm when he took one; and the time of deponing, the deponent
exhibited a paper, which is marked on the back by the Lord Examiner,
the deponent averring he cannot write: And depones, That the said paper
was put in his hands by the said Duncan Clerk, who at the time told him
it was a premium of twenty pounds Scots to hold his tongue of what he
knew of Serjeant Davies: Depones, That while the deponent was in the
panel Duncan Clerk's service, and about Lammas seventeen hundred and
fifty-one, he showed to the deponent a long green silk purse, and that
he showed also to the deponent the contents which were in it, _viz._
sixteen guineas in gold, and some silver: And being interrogate what
was the occasion of showing this purse and money to the deponent,
Depones, it was one of two which he does not remember, either he had
come from Aberdeen with money, which he had got for his wool, or was
going to Badenoch to buy sheep: Depones, That he saw upon the finger of
Elizabeth Downie, the panel Duncan Clerk's wife, a yellow ring, which
she told him was gold, with a plate on the outside of it, in the form
of a seal, and that he saw it on her finger six or eight weeks before
her marriage; and that after her marriage, she having one day taken it
off her finger, he saw upon the inside of it a stamp, but what that
stamp is he does not know. And being interrogate, Depones, That he had
a suspicion that this ring was Serjeant Davies's ring, having heard it
reported in the country that Serjeant Davies had such a ring upon his
finger when he was murdered, but does not remember his having told his
suspicion to any body; and being further interrogate, depones, That
since the panel Duncan's imprisonment, the deponent was solicited by
Donald Clerk, the panel Duncan's brother, to conceal what he knew when
he came to give evidence; but this was after his having first solicited
the deponent to leave the country, that he might not give evidence, and
upon the deponent's saying he offered him nothing to leave the country
with; but then it was that Donald proposed his not giving true
evidence, adding, that of every penny Donald was worth, the deponent
should have the half; and being interrogate, at the desire of the Jury,
if ever he had asked payment of the twenty pounds contained in the
above-mentioned paper produced by him, Depones, That he once did,
shortly after the term of payment, to which Duncan answered, that it
would be as well to let it ly in his hands, to which he was satisfied,
and that he never asked payment of the annual rent; and being further
interrogate, Depones, that before the deponent went home to the panel's
service at Martinmas one thousand seven hundred and fifty, it was well
known and reported in the country that the bones of the dead body found
upon the above mentioned hill had been buried by the deponent and
Donald Farquharson, as also was the story of the vision or apparition
whereof the deponent had told Donald Farquharson; and being interrogate
for the panel, Depones, that he not only told the story of the vision
or apparition to Donald Farquharson, as above mentioned, but that he
also told it to John Growar and Daldownie before he mentioned it to
Donald Farquharson: Depones, That there were folks living with him at
the sheilling the time the vision appeared to him as above, but that he
told it to none of them; and adds, that Isobel M'Hardie, in Inveray, a
woman then in the sheilling with him, has told him since, that she saw
such a vision as the deponent has above described, and has told him
herself so much; and upon the panel's interrogatory, depones, that upon
the vision's appearing to him, it described the place where he would
find the bones so exactly, that he went within a yard of the place
where they lay upon his first going out: And this is the truth, as he
shall answer to God; and depones he cannot write.
(Signed) JA. FERGUSON.
Compeared Duncan Campbell, one of the captains of the City Guard of
Edinburgh, and was solemnly sworn, as he should answer to God, that he
should interrogate in the Irish language such of the witnesses as
should be afterwards adduced in this trial, as could not speak or
understand the English language, and reduce the depositions, as they
should emit the same, faithfully in the English language into writing.
(Signed) DUNCAN CAMPBELL.
JA. FERGUSON.
ISOBEL M'HARDIE in Inverey, who being solemnly sworn, purged of malice
and partial council, aged forty and upwards, married, examined and
interrogate: Depones, That one night about four years ago, when the
deponent was lying in one end of the shealling, and Alexander
M'Pherson, who was then her servant, lying in the other, she saw
something naked come in at the door, which frighted her so much that
she drew the clothes over her head: That when it appeared, it came in
in a bowing posture, and that next morning she asked M'Pherson what it
was that had troubled them the night before? to which he answered, she
might be easy, for that it would not trouble them any more. _Causa
scientiæ patet._ And this is truth, as she shall answer to God. And
this deposition is subscribed by the said sworn interpreter.
(Signed) DUNCAN CAMPBELL.
JA. FERGUSON.
Compeared, JAMES MACDONALD in Allanquoich, solemnly sworn, purged of
malice and partial council, aged thirty-one years, married, examined
and interrogate: Depones, That it is about two or three years since
Clerk, the panel, was married to Elizabeth Downie, Alexander Downie's
daughter, and hearing it reported in the country, that he should have
said, that if his son-in-law had not killed Serjeant Davies, Serjeant
Davies would have killed him: That the deponent asked of Alexander
Downie, about lentron last, whether he had said so? and Alexander
Downie acknowledged to him that he had said so: And the deponent heard
that the occasion of this report in the country was, that Alexander
Downie being at a miln, some of the people there upbraided Alexander
Downie with his son-in-law Clerk, the panel, his having killed the said
Serjeant: And Downie said, as the deponent heard, what could his
son-in-law do, since it was in his own defence: Depones further, That
he saw upon Elizabeth Downie, Clerk's wife, her thumb, a yellow ring,
which he took to be gold; and this he saw after her marriage, having a
little knap upon it like into a seal, having scores or lines round
about it, and this he saw frequently upon her hand, which ring the
deponent suspected to be Serjeant Davies's ring, and it was so
suspected in the country. _Causa scientiæ patet._ And this is the
truth: And says further, That Clerk the panel, was reputed to be guilty
of thieving in the country, but that he heard nothing to the prejudice
of M'Donald's character: And being interrogate for the panel, depones,
That he never heard Clerk the panel, guilty of any particular theft
except one of a parcel of sheep, from one Alexander Farquharson in
Inverey, about nine or ten years ago. All which is truth, as he shall
answer to God; and depones he cannot write.
(Signed) ALEX^R FRASER.
Compeared PETER M'NAB in Wester Micras, aged fifty-seven years,
solemnly sworn, purged of malice and partial council, examined and
interrogate: Depones, That it is now about four years ago, since he
heard it reported in the country, that the two men, Clerk and
Macdonald, the panels, were the people who murdered Serjeant Davies,
and a little time after Elizabeth Downie was married to Clerk the
panel: The deponent happened to be in Alexander Downie her father's
house, and then saw upon her finger a ring, pretty massy, having a lump
upon it pretty large; and the deponent got the ring into his hand, and
the lump appeared to the deponent to be something in the shape of a
heart: And the deponent asked Elizabeth Downie how she came by that
ring? to which she answered, that she had bought it from one James
Lauder, a merchant: The deponent replied, that he thought it was cheap
and worth more money, and that it was reported in the country, that the
said Elizabeth Downie was wearing rings of Serjeant Davies's, but he
never saw her have any but that one: And further adds, that he never
heard any other suspected of the murder of Serjeant Davies but the
panels, except once, that it was suspected to have been done by
caterers; and he also heard, for a twelvemonth after Serjeant Davies
was amissing, that he had deserted; nevertheless the general report or
belief of the country was, that the two panels had murdered him. _Causa
scientiæ patet._ And this is the truth, as he shall answer to God.
(Signed) PETER MACNAB.
ALEX^R FRASER.
Compeared ISOBEL EGO, in Teantoul, aged eighteen years, or thereby,
solemnly sworn, purged of malice and partial council, examined and
interrogate by the sworn interpreter aforesaid, Depones, That about
four years ago she found upon the Hill of Christie a silver-laced hat,
with a silver-button on it; which hat she carried home to her master,
Alexander Macdonald in Inverey, and delivered it to him. _Causa
scientiæ patet._ And this is the truth, as she shall answer to God; and
depones she cannot write. And this deposition is subscribed by the
foresaid sworn interpreter.
(Signed) DUNCAN CAMPBELL.
ALEX^R FRASER.
Compeared ALEXANDER MACDONALD, in Inverey, aged thirty years and
upwards, married; solemnly sworn, purged of malice and partial council,
examined and interrogate, Depones, That about four or five years ago,
after Serjeant Davies was amissing, his servant-maid, Isobel Ego, the
immediate preceding witness, being sent to the hills of Inverey to look
for some horses, when the said servant-maid returned, she told the
deponent's wife, as she told him, that she had come home richer than
she went out, having found in the hill a silver-laced hat: That his
wife, upon seeing the said hat, had no peace of mind, believing it to
be Serjeant Davies's hat, and desired it might be put out of her sight:
That the deponent, who was abroad, having come home, took the hat and
put it below a stone near to a burn which run by his shealling, where
his wife then was: That the hat was carried away from under the said
stone, but who it was that carried it off the deponent knows not.
_Causa scientiæ patet._ And this is the truth, as he shall answer to
God; and depones he cannot write. And this deposition is signed by the
said sworn interpreter.
(Signed) DUNCAN CAMPBELL.
ALEX^R FRASER.
DONALD DOWNIE, at the miln of Inverey, aged thirty years or thereby;
solemnly sworn, purged of malice and partial council, by the sworn
interpreter aforesaid, and by him interrogate, Depones, That he was
loading his horse with corn, to be carried into the barnyeard at the
miln of Inverey, upon that day that Serjeant Davies was amissing: That
between the midday and sunset he heard three gunshots, but cannot tell
from what particular place the sound came: That the three shots were
pretty near one another, and all within less than a quarter of an hour.
Depones, That the Hill of Christie, libelled, is about a mile's
distance to the entrance thereof from the place where he then was, and
that it will be at least three miles from there to the place where the
bones were found. Depones, That he was told that Isobel Ego, a
preceding witness, found a hat in the Hill of Christie, which she
brought home and delivered to her master: That he heard her master hid
it at the Burnside, under a stone: That some time thereafter some of
the bairns of Inverey found the said hat, and brought it to his the
deponent's father's house, where he saw it; and the hat libelled being
shown to him, depones, he having inspected it, That it is the same hat
which was so brought to his father's house, and pointed out the letters
D. A. thereon at deponing, and that he himself delivered the said hat
to James Small, factor on the estate of Strowan. _Causa scientiæ
patet._ And this is the truth, as he shall answer to God.
(Signed) DONALD DOWNIE.
ALEX^R FRASER.
JOHN COOK, barrackmaster at Braemar Castle, aged thirty years and
upwards, _solutus_, solemnly sworn, purged of malice and partial
council, examined and interrogate, Depones, That the hat libelled now
shown to him, was delivered by Donald Downie, the preceding witness, to
James Small, before designed, at the house of one Charles, in
Castletown of Braemar, and was delivered to the said deponent by Mr
Small, to be kept by him till it should be called for; and that he
brought it along with him to town, and he knows it to be the same by
the letters D. A. which he often observed thereon, and now at deponing:
Depones, That after Serjeant Davies was amissing, a report sprung up,
that one Levingston, a soldier, having a prejudice at him, had murdered
him; but, upon enquiry, it being found, who had had leave of absence,
returned to the garrison the afternoon of that day on which the
Serjeant was amissing; the report thereon ceased, and about ten days
thereafter it was reported that the Serjeant had been murdered by two
young men about Inverey. And about a year and a half after the Serjeant
had been amissing, he heard Duncan Clerk the panel named as one of
them, but never heard any thing of Alexander Macdonald, the other
panel, till he was committed prisoner to the Castle of Braemar in
September last. _Causa scientiæ patet._ And this is the truth, as he
shall answer to God.
(Signed) JOHN COOK.
HEW DALRYMPLE.
Compeared JOHN GRANT, in Altalaat, aged forty years and upwards,
married, solemnly sworn, purged of malice and partial council, examined
and interrogate: Depones, That both the panels lodged in his house upon
the night of the twenty-seventh of September, one thousand seven
hundred and forty-nine: That next morning they breakfasted, after the
sun rising, with him; and as he was going to a Michaelmas fair, when he
came out of his house, he looked and saw the two panels at his door,
each having a gun in his hand, and they told him that they intended to
go a deer hunting, but did not mention to what place: That the deponent
accordingly went to the fair, and returned in about four days home, and
then heard that a soldier who had been upon some of the hills was
amissing, and in a very short time heard it was Serjeant Davies: That
at first it was rumoured that some of the Serjeant's own men had killed
him; and afterwards that he had been killed by some outlaws; and after
that it was clattered that the panels had killed him: Depones, That the
night the panels lodged with him as above, one of them talked of going
the next morning in quest of horses for leading in corn, without
mentioning from where. _Causa scientiæ patet._ And this is the truth,
as he shall answer to God. This deposition signed by Duncan Campbell,
sworn interpreter.
(Signed) DUNCAN CAMPBELL.
HEW DALRYMPLE.
JOHN GRANT, son to the said John Grant in Altalaat, aged twenty years,
solemnly sworn, purged of malice and partial council, by the sworn
interpreter aforesaid, and by him interrogate: Depones, That he knows
the panels, and that they lodged with his father the night of the
twenty-seventh of September, one thousand seven hundred and forty-nine:
That next morning the panels, each of them having a gun, and Duncan
Clerk a grey plaid about him, went up the water to the hill of Gleneye,
which is about a mile and a half distant from the hill of Christie:
That the road they took was not the direct road to the hill last named;
and before they went they said they were going a deer hunting and for
horses to lead in their corns: That three or four days after this, they
heard that Serjeant Davies was amissing, and that he was killed in the
hill of Christie; but the last part of this he did not hear till some
time, a year or two thereafter. _Causa scientiæ patet._ And this is
truth, as he shall answer to God.
(Signed) DUNCAN CAMPBELL.
HEW DALRYMPLE.
ELSPETH MACARA, in Inverey, late servant to Duncan Clerk, one of the
panels, aged thirty-two years; solemnly sworn, purged of malice and
partial council, as aforesaid, and interrogate, Depones, That she was
fellow-servant, about three years ago, with Alexander Macgillies, a
preceding witness, in Duncan Clerk, the panel's house: That she once
saw in the said Alexander's hands a yellow ring, but knows not if it
was gold, with a knob upon it of the same metal; which ring she
frequently observed on the finger of the wife of the said Duncan Clerk.
And further depones, That the said knob was bigger above and smaller
below, and shaped something like a heart. _Causa scientiæ patet._ And
this is truth, as she shall answer to God. This deposition signed by
the above interpreter.
(Signed) DUNCAN CAMPBELL.
HEW DALRYMPLE.
JOHN GROWAR, in Inverey, aged fifty years and upwards, a widower; who
being solemnly sworn, purged of partial council, and interrogate,
Depones, That upon the 28th of September, 1749, the deponent having
gone to a glen called Glenconie, to bring home his horses to lead in
the corns, he met with Serjeant Davies, of whom he had some
acquaintance before; and he had at that time a good deal of
conversation with him, particularly with relation to a tartan coat
which the Serjeant had observed the deponent to drop, and after
strictly enjoining him not to use it again, dismissed him, instead of
making him prisoner: That the deponent went home with his horses, and
saw no more of the Serjeant, who was alone; and that their meeting was
about an hour after sunrising, to the best of the deponent's knowledge:
That some time thereafter, about four years ago, he was told by
Alexander Macpherson _alias_ M'Gillies, a former witness, that the
Serjeant's ghost had appeared to him, M'Gillies, and had desired him to
bury his, the Serjeant's, bones, and to bring Donald Farquharson, also
a former witness, along with him; but M'Gillies at that time did not
mention the place where the bones were to be found, but afterwards told
the deponent that the Serjeant's bones were found in the place to which
the ghost had directed him; and one day the said M'Gillies and the
deponent being in the hill together, he, M'Gillies, pointed to him the
place where they were found, which was not far from the place in which
he had formerly met Serjeant Davies, upon the 28th of September
aforesaid; and that two years ago, in labouring time, the said
M'Gillies told him that the said ghost came to M'Gillies's master's
house, and the door flung open, and took M'Gillies out of the house,
and told him that the panels had been his murderers. Depones, That
about two years ago he had a conversation with M'Gillies, who told him,
that one day coming from the hill with Duncan Clerk, the panel, then
his master, and another time when in bed, he had a conversation with
the said Duncan concerning Serjeant Davies's murder, and all the answer
Duncan made was, What can you say of an unfortunate man? Depones, That
about ten or eleven years ago, Duncan Clerk, the panel, was said to
have stolen some sheep from one Alexander Farquharson, in Inverey, and
there was a Sheriff-court held upon that matter at the Mill of
Achindryne, in which nothing was found against the said Duncan, but
John Ewes alias M'Donald was fined, and the deponent became cautioner
for him, that he should never speak about it again. _Causa scientiæ
patet._ And this is the truth, as he shall answer to God.
(Signed) JOHN GREWER.
HEW DALRYMPLE.
ANGUS CAMERON, in Easter Finart, Rannach, aged thirty years and
upwards, solemnly sworn, purged of malice and partial council, by
Duncan Campbell, sworn interpreter, and by him interrogate, Depones,
That he was in Braemaar four years past at Michaelmas last; that is, in
the year 1749: That about an hour and a half before sun-set on the 28th
of September, he being on the hill of Galcharn, on the side thereof,
saw a man in a blue coat, with a gun in his hand, with a hat which had
a white edging about it, he knows not whether it was silver or not; and
saw other two men, one of whom was the panel Duncan Clerk, who he had
seen upon former occasions, and another man of a lower stature than the
said Duncan Clerk, coming up the hill towards the first mentioned man,
who was distant from him, the deponent, about a gunshot, upon, or near
the top of a hill opposite to him, the deponent, the name of which he
does not know, he being a stranger in that country; that there was
another man along with him, the deponent, named Duncan Cameron, and
that they were waiting there for other travellers, and his said
companion is dead about three years ago: Depones, That he saw Duncan
Clerk, the panel, and his companion, whom he did not, nor does not
know, meet with the man clad in blue, as aforesaid; and after they had
stood for some time together, he saw Duncan Clerk, the panel, strike at
the man in blue, as he thought, with his naked hand only, upon the
breast; but, upon the stroke, he heard the man struck cry out, and clap
his hand upon the place struck, turn about, and go off: That the panel
Duncan Clerk and the other man stood still for a little, and then
followed after the man in blue, and saw him, the said Duncan and the
other man, each of whom had a gun, fire at the man in blue: That the
two shots were very near one another; and immediately upon them, the
man in blue fell: That Duncan Clerk, the panel, had upon him a grey
plaid, with some red in it, whom he saw that same day, and his
companion along with him, (but spoke to none of them,) about mid-day,
and that they passed him as he was lying upon the same hill; and that
both times that same day, that he had occasion to see the said Duncan
Clerk and his companion, he was lying in a little hollow upon the side
of the said hill of Galcharn, in such a manner, as he thinks, neither
the said Duncan Clerk, or his companion did see him: And depones, That
there was no long heather in the said hollow where he was lying:
Depones, That after the man in blue fell, in manner above mentioned,
the panel Duncan Clerk, and his companion, went up to him; and as it
was the deponent's opinion the man was dead, he saw them stoop down,
and handle his body; and while they were so employed, he, the deponent,
and his companion, got up, and made off: Depones, That he did not
mention any thing of the premises to any body for nine months or a
twelve month, and then he spoke of it to one Donald Cameron, and to
Duncan Cameron, a different man from him above mentioned, who advised
him to say nothing of it, as it might get ill-will to himself, and
bring trouble on the country; some people that he told it to said, that
people would not believe him, but rather think he was telling lies:
That it was six months after what he saw, and has deponed upon, that he
heard that Serjeant Davies was amissing. And being interrogate for the
panels, depones, That he came to the said hill of Galcharn, and lay
down in the hollow about two hours after sun-rising; and depones, That
he and his companion were, the night before the twenty-eighth of
September aforesaid, in Glenbruar Braes, which is about ten miles
distant from the hill of Galcharn; and that he left these braes about
the end of said night; and that the travellers that he expected to pass
that day were Donald Cameron, who was afterwards hanged, together with
some of the said Donald's companions from Lochaber. _Causa scientiæ
patet._ And this is the truth, as he shall answer to God. This
deposition signed by the sworn interpreter aforesaid.
(Signed) DUNCAN CAMPBELL.
HEW DALRYMPLE.
DUNCAN CAMERON, in Dunan, aged twenty-eight years, unmarried, solemnly
sworn, purged of malice and partial council, examined and interrogate,
Depones, That in the summer after he had heard that one Serjeant Davies
was amissing, Angus Cameron, a preceding witness, told the deponent
that he saw Duncan Clerk, and another person unknown, shoot a man in
Braemaar, whom the said Angus, by his dress, believed to be a serjeant
or officer; upon which the deponent said he did not want to hear any
more on that subject. _Causa scientiæ patet._ And this is the truth, as
he shall answer to God.
(Signed) DUNCAN CAMERON.
GILB. ELLIOT.
DONALD DOW CAMERON, in Milntown of Ashintilly, Strathardle, aged
forty-four years, married; who being solemnly sworn, and purged of
partial council, by Duncan Campbell, sworn interpreter aforesaid, and
by him interrogate, Depones, That in the summer after he heard that a
serjeant in Braemaar was amissing, whose name he thinks was Davidson,
or something like that, Angus Cameron, a preceding witness, told the
deponent that he had seen Duncan Clerk the panel, and another man along
with him, shoot a man, like a gentleman or an officer, upon a hill in
Braemaar: That upon this the deponent told the said Angus Cameron that
he did not want to hear more any such stories, nor to have such a
report raised of the country; and the deponent at the same time advised
Angus to keep the thing secret, and to speak no more on the subject.
_Causa scientiæ patet._ And this is the truth, as he shall answer to
God. This deposition signed by the sworn interpreter aforesaid.
(Signed) DUNCAN CAMPBELL.
GILB. ELLIOT.
LAUCHLAN M'INTOSH, in Inverey, aged near thirty years, unmarried,
solemnly sworn, purged of malice and partial council, examined and
interrogate by the sworn interpreter aforesaid, Depones, That the
panel, Duncan Clerk's father, his house is within less than a quarter
of a mile of the deponent's house: That upon the afternoon of that day
in which Serjeant Davies was amissing, as he thinks, or at least the
afternoon of the day following, he cannot be altogether positive which,
he saw Duncan Clerk, panel, come from the hill to his father's house,
with a gun in his hand, and a sort of grey plaid about him: That he
does not remember that he saw him about his father's house before that
time in the afternoon of that day. _Causa scientiæ patet._ And this is
the truth, as he shall answer to God.
(Signed) LAUCHLAN M'INTOSH.
GILB. ELLIOT.
JEAN DAVIDSON, spouse to Gregor Keir, in Inverey, aged thirty years,
married; who being solemnly sworn, and purged of malice and partial
council, by the sworn interpreter aforesaid, Depones, That she lived in
the same town with Duncan Clerk, the panel's father, who is now dead:
That the evening of the day upon which Serjeant Davies was first
amissing, she saw Duncan Clerk, the panel, return from the hill to his
father's house about sun-setting, having a plaid upon him, with a good
deal of red in it, but whether he had a gun in his hand the deponent
did not observe: That Duncan Clerk's father was that day working among
his corns; and the deponent did not see the said Duncan about the town
till the evening, as above deponed upon. And further depones, being
interrogate for the panel, That when she first saw Duncan Clerk, she
was among the corns with his father a little below the town, and that
Duncan was about a gun-shot from her, coming towards his father's house
from the hill, and that he came near to the place where she was with
his father. _Causa scientiæ patet._ And this is the truth, as she shall
answer to God. And this deposition is signed by the foresaid sworn
interpreter.
(Signed) DUNCAN CAMPBELL.
ALEX^R FRASER.
LAUCHLAN M'INTOSH, servant to William Grant of Burnside, aged
twenty-one years, solemnly sworn, purged of malice and partial council,
examined and interrogate, Depones, That he was a servant to Michael
Farquharson in Dubrach, in whose house Serjeant Davies quartered: That
he saw the Serjeant have a little pen-knife, upon the end of the haft
of which there was a seal for sealing of letters, and he heard the
Serjeant say that was the use he made of the said seal: That he saw
Serjeant Davies leave his master's house about sun-rising that day upon
which he was amissing; that he never saw him since: That about two
years thereafter, being on the hill with Alexander Macdonald the panel,
and the said Alexander Macdonald had in his hand a pen-knife, which the
deponent saw, very like the pen-knife which Serjeant Davies had above
mentioned: That the deponent, upon seeing that pen-knife, told
Macdonald that the pen-knife he then had was very like Serjeant
Davies's pen-knife, and Macdonald made answer that there were many
siclikes: And further depones, That he saw the Serjeant have a green
silk purse, in which he saw the Serjeant put in and take out several
pieces of gold: The deponent does not remember what the handle of the
Serjeant's knife was made of, nor does he remember what was engraven on
the end of the handle of the pen-knife which the Serjeant had, nor the
end of the handle of the pen-knife which Macdonald had, but that both
seals were white. _Causa scientiæ patet._ And this is the truth, as he
shall answer to God. And depones he cannot write.
(Signed) ALEX^R FRASER.
JOHN BROWN in Drumcraggan, aged sixty years, or thereby, solemnly
sworn, purged of malice and partial council by the sworn interpreter
aforesaid, and by him interrogate, Depones, That he was ground-officer
for the lands of Inverey, and was so at the time when Serjeant Davies's
body was amissing: That he was ordered by the Chamberlain of Inverey,
to call out the country people in search for Serjeant Davies's body,
which accordingly he did search for with the country people for two
days, without finding it: That the last of the two days, as the
deponent and the country people were returning home, and had given over
the search, the panel, Duncan Clerk, challenged the deponent for
troubling the country people with such an errand, and upon this the
deponent and the said Duncan Clerk had some scolding words. _Causa
scientiæ patet._ And this is the truth, as he shall answer to God. And
depones he cannot write. And this disposition is signed by the foresaid
sworn interpreter.
(Signed) DUNCAN CAMPBELL.
ALEX^R FRASER.
_Follows the Witnesses adduced by the Panels in exculpation._
Captain JOHN FORBES of New, aged forty-five years, married, who being
solemnly sworn, purged of malice and partial council, examined and
interrogate, Depones, That James Small having suggested to the deponent
that it might be proper that Duncan Clerk the panel's wife, should be
examined upon what rings she had in her possession, and that some other
witnesses in relation thereto, might be precognosced, presented a
petition to the deponent, as the next Justice of Peace to where she
lived, craving, to the purpose above mentioned: That the deponent went
for that end to Braemaar; and she being summoned to appear at the
Castletown of Braemaar, appeared before the deponent, and declared, in
substance, as follows: That since she was married, a small brass ring,
which she then presented to the deponent, and a gold ring which she got
from her mother, and wore sometimes, were the only rings that she had
since her marriage; and that before her marriage she got a copper ring
from one Allan M'Donald, brother to James Macdonald, in Allanquoich,
with a round knot of the same metal raised upon it, which, the summer
before she was married, she gave to Alexander M'Intosh alias Rioch,
then a glen-herd, and now servant to Thomas Gordon in Fetherletter, in
Strathaven, and that she was married to the said Duncan Clerk, panel,
in harvest 1751. _Causa scientiæ patet._ And this is the truth, as he
shall answer to God.
(Signed) JOHN FORBES.
HEW DALRYMPLE.
DUNCAN KEIR, in Glenmuick, aged twenty and upwards, unmarried, solemnly
sworn, purged and interrogate, Depones, That the day that the Braemaar
men were going to the Michaelmas fair in Strathaven, which was the day
before the said fair held, he saw Duncan Clerk, the panel, at Gleney,
where the deponent then lived, before he and the other shearers there
had got their dinner, and that they dined sometimes later and sometimes
more early, and cannot tell at what time they dined that day, but the
sun was a good while high when he saw him: That he had on a plaid,
which he thinks was grey: That Gleney is a mile farther up the water
than Inverey towards the hill; and the next day, after he saw the said
Duncan Clerk as above, he heard that Serjeant Davies was amissing.
_Causa scientiæ patet._ And this is the truth, as he shall answer to
God. And depones he cannot write.
(Signed) HEW DALRYMPLE.
ELIZABETH MACDONALD, in Tulloch of Invercauld, aged twenty-eight years,
unmarried, solemnly sworn, purged and interrogate by the sworn
interpreter aforesaid, Depones, That the day before she heard Serjeant
Davies was amissing, she saw Duncan Clerk, the panel, at the shearers
of Gleney, but did not observe from whence he came: That she does not
remember that he had either a gun or a plaid, but thinks that he had a
short blue coat upon him, and that Gleney is a mile farther up the
water towards the hill than Inverey: That when she saw the said panel
it was before dinner, which they took early that day, being betwixt
twelve and one; and that Duncan Keir, the preceding witness, was one of
the said shearers; and that Gleney is about a mile from Glenconie.
_Causa scientiæ patet._ And this is the truth, as she shall answer to
God. This deposition signed by the said sworn interpreter.
(Signed) DUNCAN CAMPBELL.
HEW DALRYMPLE.
The Lords Commissioners of Justiciary fine and amerciate Ronald
Macdonald, brother to James Macdonald in Allanquoich, and Alexander
Macintosh _alias_ Reoch, now servant to Thomas Gordon of Fetterletter,
in Strathaven, and each of them, in the sum of one hundred merks Scots
money, for their not appearing this day and place, to bear leal and
soothfast witnessing, in so far as they knew, or should be asked at
them, anent the said panels, Duncan Terig _alias_ Clerk, and
Alexander Bain Macdonald, their guiltiness of the crime of murder
mentioned in the said indictment, raised at the instance of his
Majesty's advocate against them thereanent, as they, who were lawfully
cited for that effect, thrice called, and not compearing.
(Signed) GILB. ELLIOT, I.P.D.
The Lords ordain the assize forthwith to inclose in the Exchequer-Room,
and to return their verdict against six o'clock in the afternoon
to-morrow, in this place; and ordain the haill fifteen then to be
present, and the panels to be carried back to prison.
_CURIA JUSTICIARIA S. D. N. Regis tenta in Nova Sessionis Domo
Burgi de Edinburgh, Duodecimo 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, Commissionarios Justiciarios dict. S. D. N. Regis._
_Curia legittime affirmata._
INTRAN.
DUNCAN TERIG _alias_ CLERK, and ALEXANDER BAIN MACDONALD,--Panels.
Indicted and accused as in the former Sederunt.
The persons who past upon the assize of the said panels, returned
their verdict, in presence of the saids Lords, whereof the tenor
follows:
AT EDINBURGH, the twelfth day of June, one thousand seven hundred
and fifty-four years.
THE ABOVE ASSIZE having inclosed, and having made choice of Robert
Forrester to be their chancellor, and William Sands to be their clerk;
and having considered the criminal indictment pursued at the instance
of William Grant of Prestongrange, Esq., his Majestie's Advocate, for
his Majestie's interest, against Duncan Terig alias Clerk, and
Alexander Bain Macdonald, both now prisoners in the tolbooth of
Edinburgh, panels, with the Lords Justice-Clerk and Commissioners of
Justiciary, their interlocutor thereupon; together with the depositions
of the witnesses adduced for proving thereof; and the depositions of
the witnesses adduced for the exculpation of the panels, they all, in
one voice, find the above-named panels not guilty of the crimes
libelled. In witness whereof, their said chancellor and clerk, in their
names, have subscribed thir presents, place and date foresaid.
(Signed) ROB^T FORRESTER, _Chanl^r_.
WILLIAM SANDS, _Clerk_.
THE LORDS JUSTICE-CLERK AND COMMISSIONERS OF JUSTICIARY, in respect of
the foresaid verdict of assize returned against the said Duncan Terig
_alias_ Clerk, and Alexander Bain Macdonald, panels, ASSOILZIE them
simpliciter, and dismiss them from the bar.
(Signed) CH. ARESKINE, I.P.D.
*** End of this LibraryBlog Digital Book "Trial of Duncan Terig, alias Clerk, and Alexander Bane Macdonald - for the Murder of Arthur Davis, Sergeant in General Guise's - Regiment of Foot" ***
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