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diff --git a/26133.txt b/26133.txt new file mode 100644 index 0000000..e57159f --- /dev/null +++ b/26133.txt @@ -0,0 +1,2209 @@ +The Project Gutenberg EBook of Trial of Duncan Terig, alias Clerk, and +Alexander Bane Macdonald, by Sir Walter Scott + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +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: Sir Walter Scott + +Release Date: July 26, 2008 [EBook #26133] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK TRIAL OF DUNCAN TERIG *** + + + + +Produced by The Online Distributed Proofreading Team at +https://www.pgdp.net (This file was produced from images +generously made available by The Internet Archive/Canadian +Libraries) + + + + + + +TRIAL OF + +DUNCAN TERIG ALIAS CLERK, +AND +ALEXANDER BANE MACDONALD, + +FOR THE MURDER OF + +ARTHUR DAVIS, +SERGEANT IN GENERAL GUISE'S REGIMENT OF FOOT. + +JUNE, +A.D. M.DCC.LIV. + + + +EDINBURGH: +PRINTED BY BALLANTYNE AND COMPANY. +1831. + + + + +TO + +THE MEMBERS OF THE BANNATYNE CLUB, + +THIS COPY OF A TRIAL, +INVOLVING A CURIOUS POINT OF EVIDENCE, +IS PRESENTED + +BY + +WALTER SCOTT. + +FEBRUARY, M.DCCC.XXXI. + + + + +Transcriber's Note: Letters that are printed as superscript are +indicated by being preceeded by a caret (^). + + + +THE BANNATYNE CLUB. + +M.DCCC.XXXI. + + +SIR WALTER SCOTT, BAR^T. + +[PRESIDENT.] + +THE EARL OF ABERDEEN, K.T. +RIGHT HON. WILLIAM ADAM, + LORD CHIEF COMMISSIONER OF THE JURY COURT. +JAMES BALLANTYNE, ESQ. +SIR WILLIAM MACLEOD BANNATYNE. 5 +LORD BELHAVEN AND STENTON. +GEORGE JOSEPH BELL, ESQ. +ROBERT BELL, ESQ. +WILLIAM BELL, ESQ. +JOHN BORTHWICK, ESQ. 10 +WILLIAM BLAIR, ESQ. +THE REV. PHILIP BLISS, D.C.L. +GEORGE BRODIE, ESQ. +CHARLES DASHWOOD BRUCE, ESQ. +THE DUKE OF BUCCLEUCH AND QUEENSBERRY. 15 +JOHN CALEY, ESQ. +JAMES CAMPBELL, ESQ. +HON. JOHN CLERK, LORD ELDIN. +WILLIAM CLERK, ESQ. +HENRY COCKBURN, ESQ. 20 +DAVID CONSTABLE, ESQ. +ANDREW COVENTRY, ESQ. +JAMES T. GIBSON CRAIG, ESQ. +WILLIAM GIBSON CRAIG, ESQ. +HON. GEORGE CRANSTOUN, LORD COREHOUSE. 25 +THE EARL OF DALHOUSIE. +JAMES DENNISTOUN, ESQ. +ROBERT DUNDAS, ESQ. +RIGHT HON. W. DUNDAS, LORD CLERK REGISTER. +CHARLES FERGUSSON, ESQ. 30 +ROBERT FERGUSON, ESQ. +LIEUT.-GENERAL SIR RONALD C. FERGUSON. +THE COUNT DE FLAHAULT. +HON. JOHN FULLERTON, LORD FULLERTON. +LORD GLENORCHY. 35 +THE DUKE OF GORDON. +WILLIAM GOTT, ESQ. +SIR JAMES R. G. GRAHAM, BAR^T. +ROBERT GRAHAM, ESQ. +LORD GRAY. 40 +RIGHT HON. THOMAS GRENVILLE. +THE EARL OF HADDINGTON. +THE DUKE OF HAMILTON AND BRANDON. +E. W. A. DRUMMOND HAY, ESQ. +JAMES M. HOG, ESQ. 45 +JOHN HOPE, ESQ. +COSMO INNES, ESQ. +DAVID IRVING, LL.D. +JAMES IVORY, ESQ. +THE REV. JOHN JAMIESON, D.D. 50 +ROBERT JAMESON, ESQ. +SIR HENRY JARDINE. +FRANCIS JEFFREY, ESQ. LORD ADVOCATE. +JAMES KEAY, ESQ. +THOMAS FRANCIS KENNEDY, ESQ. 55 +JOHN G. KINNEAR, ESQ. [TREASURER.] +THE EARL OF KINNOULL. +DAVID LAING, ESQ. [SECRETARY.] +THE EARL OF LAUDERDALE, K.T. +THE REV. JOHN LEE, D.D. 60 +THE MARQUIS OF LOTHIAN. +HON. J. H. MACKENZIE, LORD MACKENZIE. +JAMES MACKENZIE, ESQ. +JAMES MAIDMENT, ESQ. +THOMAS MAITLAND, ESQ. 65 +THE HON. WILLIAM MAULE. +GILBERT LAING MEASON, ESQ. +VISCOUNT MELVILLE, K.T. +WILLIAM HENRY MILLER, ESQ. +THE EARL OF MINTO. 70 +HON. SIR J. W. MONCREIFF, LORD MONCREIFF. +JOHN ARCHIBALD MURRAY, ESQ. +WILLIAM MURRAY, ESQ. +JAMES NAIRNE, ESQ. +MACVEY NAPIER, ESQ. 75 +FRANCIS PALGRAVE, ESQ. +HENRY PETRIE, ESQ. +ROBERT PITCAIRN, ESQ. +ALEXANDER PRINGLE, ESQ. +JOHN RICHARDSON, ESQ. 80 +THE EARL OF ROSSLYN. +ANDREW RUTHERFURD, ESQ. +THE EARL OF SELKIRK. +RIGHT HON. SIR SAMUEL SHEPHERD. +ANDREW SKENE, ESQ. 85 +JAMES SKENE, ESQ. +GEORGE SMYTHE, ESQ. +EARL SPENCER, K.G. +JOHN SPOTTISWOODE, ESQ. +THE MARQUIS OF STAFFORD, K.G. 90 +MAJOR-GENERAL STRATON. +SIR JOHN ARCHIBALD STEWART, BAR^T. +THE HON. CHARLES FRANCIS STUART. +ALEXANDER THOMSON, ESQ. +THOMAS THOMSON, ESQ. [VICE-PRESIDENT.] 95 +W. C. TREVELYAN, ESQ. +PATRICK FRASER TYTLER, ESQ. +ADAM URQUHART, ESQ. +RIGHT HON. SIR GEORGE WARRENDER BAR^T. +THE VENERABLE ARCHDEACON WRANGHAM. 100 + + + + +TO THE + +RIGHT HONOURABLE + +SIR SAMUEL SHEPHERD, + +THIS CURIOUS TRACT, +RESPECTING PERHAPS THE ONLY SUBJECT OF LEGAL ENQUIRY +WHICH HAS ESCAPED BEING INVESTIGATED BY HIS SKILL, +AND ILLUSTRATED BY HIS GENIUS, + +IS RESPECTFULLY INSCRIBED, +BY HIS AFFECTIONATE FRIEND, AND MUCH +OBLIGED HUMBLE SERVANT, + +WALTER SCOTT. + +15TH FEB., 1831. + + + + +INTRODUCTION. + + +Although the giving information concerning the unfair manner in which +they were dismissed from life, is popularly alleged to have been a +frequent reason why departed spirits revisit the nether world, it is +yet only in a play of the witty comedian, Foote, that the reader will +find their appearance become the subject of formal and very ingenious +pleadings. In his farce called the Orators, the celebrated Cocklane +Ghost is indicted by the name of Fanny the Phantom, for that, contrary +to the King's peace, it did annoy, assault, and terrify divers persons +residing in Cocklane and elsewhere, in the county of Middlesex. The +senior counsel objects to his client pleading to the indictment, unless +she is tried by her equals in rank, and therefore he moves the +indictment be quashed, unless a jury of ghosts be first had and +obtained. To this it is replied, that although Fanny the Phantom had +originally a right to a jury of ghosts, yet in taking upon her to +knock, to flutter, and to scratch, she did, by condescending to +operations proper to humanity, wave her privileges as a ghost, and must +consent to be tried in the ordinary manner. It occurs to the Justice +who tries the case, that there will be difficulty in impanelling a jury +of ghosts, and he doubts how twelve spirits who have no body at all, +can be said to take a corporal oath, as required by law, unless, +indeed, as in the case of the Peerage, the prisoner may be tried upon +her honour. At length the counsel for the prosecution furnishes the +list of ghosts for the selection of the jury, being the most celebrated +apparitions of modern times, namely, Sir George Villiers, the evil +genius of Brutus, the Ghost of Banquo, and the phantom of Mrs Veal. The +counsel for the prosecution objects to a woman, and the court +dissolves, under the facetious order, that if the Phantom should plead +pregnancy, Mrs Veal will be admitted upon the jury of matrons. + +This admirable foolery is carried by the English Aristophanes nearly as +far as it will go; yet it is very contrary to the belief of those, who +conceive that injured spirits are often the means of procuring redress +for wrongs committed upon their mortal frames, to find how seldom in +any country an allusion hath been made to such evidence in a court of +justice, although, according to their belief, such instances must have +frequently occurred. One or two cases of such apparition-evidence our +researches have detected. + +It is a popular story, that an evidence for the Crown began to tell the +substance of an alleged conversation with the ghost of a murdered man, +in which he laid his death to the accused person at the bar. "Stop," +said the judge, with becoming gravity, "this will not do; the evidence +of the ghost is excellent, none can speak with a clearer cause of +knowledge to any thing which befell him during life. But he must be +sworn in usual form. Call the ghost in open court, and if he appears, +the jury and I will give all weight to his evidence; but in case he +does not come forward, he cannot be heard, as now proposed, through the +medium of a third party." It will readily be conceived that the ghost +failed to appear, and the accusation was dismissed. + +In the French _Causes Celebres et Interessantes_, is one entitled, _Le +Spectre, ou l'Illusion Reprouve_, reported by Guyot de Pittaval [vol. +xii. edition La Haye, 1749], in which a countryman prosecutes a +tradesman named Auguier for about twenty thousand francs, said to have +been lent to the tradesman. It was pretended, that the loan was to +account of the proceeds of a treasure which Mirabel, the peasant, had +discovered by means of a ghost or spirit, and had transferred to the +said Auguier, that he might convert it into cash for him. The case had +some resemblance to that of Fanny the Phantom. The defendant urged the +impossibility of the original discovery of the treasure by the spirit +to the prosecutor; but the defence was repelled by the influence of the +principal judge, and on a charge so ridiculous, Auguier narrowly +escaped the torture. At length, though with hesitation, the prosecutor +was nonsuited, upon the ground, that if his own story was true, the +treasure, by the ancient laws of France, belonged to the Crown. So that +the ghost-seer, though he had nearly occasioned the defendant to be put +to the question, profited in the end nothing by his motion. + +This is something like a decision of the great Frederick of Prussia. +One of his soldiers, a Catholic, pretended peculiar sanctity, and an +especial devotion to a particular image of the Virgin Mary, which, +richly decorated with ornaments by the zeal of her worshippers, was +placed in a chapel in one of the churches of the city where her votary +was quartered. The soldier acquired such familiarity with the object of +his devotion, and was so much confided in by the priests, that he +watched for and found an opportunity of possessing himself of a +valuable diamond necklace belonging to the Madonna. Although the +defendant was taken in the manner, he had the impudence, knowing the +case was to be heard by the King, to say that the Madonna herself had +voluntarily presented him with her necklace, observing that, as her +good and faithful votary, he had better apply it to his necessities, +than that it should remain useless in her custody. + +The King, happy of the opportunity of tormenting the priests, demanded +of them, whether there was a possibility that the soldier's defence +might be true. Their faith obliged them to grant that the story was +possible, while they exhausted themselves on the improbabilities which +attended it. "Nevertheless," said the King, "since it is possible, we +must, in absence of proof, receive it as true, in the first instance. +All I can do to check an imprudent generosity of the saints in future, +is to publish an edict, or public order, that all soldiers in my +service, who shall accept any gift from the Virgin, or any saint +whatever, shall, _eo ipso_, incur the penalty of death." + +Amongst English trials, there is only mention of a ghost in a very +incidental manner, in that of John Cole, fourth year of William and +Mary, State Trials, vol. xii. The case is a species of supplement to +that of the well-known trial of Henry Harrison, which precedes it in +the same collection, of which the following is the summary. + +A respectable doctor of medicine, Clenche, had the misfortune to offend +a haughty, violent, and imperious woman of indifferent character, named +Vanwinckle, to whom he had lent money, and who he wished to repay it. A +hackney-coach, with two men in it, took up the physician by night, as +they pretended, to carry him to visit a patient. But on the road they +strangled him with a handkerchief, having a coal, or some such hard +substance, placed against their victim's windpipe, and escaped from the +coach. One Henry Harrison, a man of loose life, connected with this Mrs +Vanwinckle, the borrower of the money, was tried, convicted, and +executed, on pretty clear evidence, yet he died denying the crime +charged. The case being of a shocking nature, of course interested the +feelings of the common people, and another person was accused as an +accessory, the principal evidence against whom was founded on this +story. + +A woman, called Millward, pretended that she had seen the ghost of her +deceased husband, who told her that one John Cole had assisted him, the +ghost, in the murder of Dr Clenche. Cole was brought to trial +accordingly; but the charge was totally despised, both by judge and +jury, and produced no effect whatever in obtaining conviction. + +Such being the general case with respect to apparitions, really alluded +to or quoted in formal evidence in courts of justice, an evidence of +that kind gravely given and received in the High Court of Justiciary in +Scotland, has some title to be considered as a curiosity. + +The Editor's connexion with it is of an old standing, since, shortly +after he was called to the bar in 1792, it was pointed out to him by +Robert M'Intosh, Esq., one of the counsel in the case, then and long +after remarkable for the interest which he took, and the management +which he possessed, in the prolix and complicated affairs of the York +Building Company. + +The cause of the trial, bloody and sad enough in its own nature, was +one of the acts of violence which were the natural consequences of the +Civil War in 1745. + +It was about three years after the battle of Culloden that this poor +man, Sergeant Davis, was quartered, with a small military party, in an +uncommonly wild part of the Highlands, near the country of the +Farquharsons, as it is called, and adjacent to that which is now the +property of the Earl of Fife. A more waste tract of mountain and bog, +rocks and ravines, extending from Dubrach to Glenshee, without +habitations of any kind until you reach Glenclunie, is scarce to be met +with in Scotland. A more fit locality, therefore, for a deed of murder, +could hardly be pointed out, nor one which could tend more to agitate +superstitious feelings. The hill of Christie, on which the murder was +actually committed, is a local name, which is probably known in the +country, though the Editor has been unable to discover it more +specially, but it certainly forms part of the ridge to which the +general description applies. Davis was attached to the country where he +had his residence, by the great plenty of sport which it afforded, and, +when dispatched upon duty across these mountains, he usually went at +some distance from his men, and followed his game without regarding the +hints thrown out about danger from the country people. To this he was +exposed, not only from his being intrusted with the odious office of +depriving the people of their arms and national dress, but still more +from his usually carrying about with him a stock of money and +valuables, considerable for the time and period, and enough of itself +to be a temptation to his murder. + +On the 28th day of September, the Sergeant set forth, along with a +party, which was to communicate with a separate party of English +soldiers at Glenshee; but when Davis's men came to the place of +rendezvous, their commander was not with them, and the privates could +only say that they had heard the report of his gun after he had parted +from them on his solitary sport. In short, Sergeant Arthur Davis was +seen no more in this life, and his remains were long sought for in +vain. At length a native of the country, named M'Pherson, made it known +to more than one person that the spirit of the unfortunate huntsman had +appeared to him, and told him he had been murdered by two Highlanders, +natives of the country, named Duncan Terig alias Clerk, and Alexander +Bane Macdonald. Proofs accumulated, and a person was even found to bear +witness, that lying in concealment upon the hill of Christie, the spot +where poor Davis was killed, he and another man, now dead, saw the +crime committed with their own eyes. A girl whom Clerk afterwards +married, was, nearly at the same time, seen in possession of two +valuable rings which the Sergeant used to have about his person. +Lastly, the counsel and agent of the prisoners were convinced of their +guilt. Yet, notwithstanding all these suspicious circumstances, the +panels were ultimately acquitted by the jury. + +This was chiefly owing to the ridicule thrown upon the story by the +incident of the ghost, which was enhanced seemingly, if not in reality, +by the ghost-seer stating the spirit to have spoken as good Gaelic as +he had ever heard in Lochaber.--"Pretty well," answered Mr M'Intosh, +"for the ghost of an English sergeant!" This was indeed no sound jest, +for there was nothing more ridiculous, in a ghost speaking a language +which he did not understand when in the body, than there was in his +appearing at all. But still the counsel had a right to seize upon +whatever could benefit his clients, and there is no doubt that this +observation rendered the evidence of the spectre yet more ridiculous. +In short, it is probable that the ghost of Sergeant Davis, had he +actually been to devise how to prevent these two men from being +executed for his own murder, could hardly have contrived a better mode +than by the apparition in the manner which was sworn to. + +The most rational supposition seems to be, that the crime had come to +M'Pherson, the ghost-seer's knowledge, by ordinary means, of which +there is some evidence, but desiring to have a reason for communicating +it, which could not be objected to by the people of the country, he had +invented this machinery of the ghost, whose commands, according to +Highland belief, were not to be disobeyed. If such were his motives, +his legend, though it seemed to set his own tongue at liberty upon the +subject, yet it impressed on his evidence the fate of Cassandra's +prophecies, that, however true, it should not have the fortune to be +believed. + +ABBOTSFORD, 18th March, 1830. + + + + +TRIAL OF + +DUNCAN TERIG ALIAS CLERK, AND ALEXANDER BAIN MACDONALD, + +FOR THE MURDER OF + +ARTHUR DAVIES, SERJEANT + +IN GENERAL GUISE'S REGIMENT OF FOOT. + +JUNE, A.D. MDCC.LIV. + + + + +TRIAL OF + +DUNCAN TERIG ALIAS CLERK, + +AND ALEXANDER BAIN MACDONALD. + + + _CURIA JUSTICIARIA S. D. N. Regis tenta in Nova Sessionis Domo + Burgi de Edinburgh, Decimo die Mensis Junij 1754, per honorabiles + viros Carolum Areskine de Alva, Justiciarij Clericum, Magistros + Alexandrum Fraser de Strichen, Patricium Grant de Elchies, et + Hugonem Dalrymple de Drummore, et Dominum Jacobum Ferguson de + Killkerran, Commissionarios Justiciarij dicti S. D. N. Regis._ + + _Curia legittime affirmata_, + + INTRAN. + + DUNCAN TERIG _alias_ CLERK, and ALEXANDER BAIN MACDONALD, both now + prisoners in the Tolbooth of Edinburgh, Pannels, + +Indicted and accused at the instance of William Grant of Prestongrange, +Esq., His Majesties Advocate, for His Majesties interest, for the crime +of murder committed by them in manner at length mentioned in the +indictment raised against them thereanent, which indictment maketh +mention, THAT WHEREAS, by the laws of God, and of this and all other +well governed realms, Murder or Homicide is a most atrocious crime, and +severely punishable, especially committed with an intent to rob the +person murdered, and that by persons of bad fame and character, who are +habite and repute thieves, YET TRUE IT IS, and of verity, that they, +and each of them, or one or other of them, are guilty, actors, or art +and part, of the foresaid crime, aggravated as aforesaid, in so far as +the deceast Arthur Davies, serjeant in the regiment of foot commanded +by General Guise, being in the year one thousand seven hundred and +forty-nine, quartered or lodged alongst with a party of men or soldiers +belonging to the said regiment in Dubrach, or Glendee, in Braemar, in +the parish of ---- and sheriffdom of Aberdeen, he, the said Arthur +Davies, did, upon the twenty-eighth day September, one thousand seven +hundred and forty-nine, or upon one or other of the days of that month, +or of the month of August immediately preceding, or October immediately +following, go from thence to a hill in Braemar, commonly called +Christie, at the head of Glenconie, in the parish of ---- and +sheriffdom aforesaid. As also that same day, both of them, the said +Duncan Terig alias Clerk, and Alexander Bain Macdonald, went from the +house of John Grant, in Altalaat, armed with guns and muskets, +pretending when they went from thence that they were going to shoot or +hunt deer upon the said hill, to which place both of them having +accordingly gone, and there meeting with the said Arthur Davies, each, +or one or other of them, did, on the said twenty-eighth of September, +1749, or upon one or other of the days of that month, or of the months +aforesaid, cruelly and barbarously fire a loaded gun or guns at him, +which were in their hands, whereby he was mortally wounded, and of +which wounds he died on the said hill, immediately or soon thereafter, +where his dead body remained concealed for sometime, and was afterwards +found, together with a hat, having a silver button on it, with the +letters A. R. D. marked on it. LIKEAS, soon after the said Arthur +Davies was murdered, each of the said two panels, being persons of bad +fame and character, and who were habite and repute thieves, were, by +the general voice of the country, reputed to have perpetrated the said +murder, and to have robbed and taken from him a silver watch, two gold +rings and a purse of gold, which it was known or believed in the +country he generally wore or carried about him, which said opinion or +belief of the neighbourhood, that both of them had been guilty of the +said murder and robbery, has been since that time rendered the more +credible, particularly with respect to him, the said Duncan Clerk, in +so far as, although he was not possesst of any visible funds or effects +which could enable him to stock a farm before the period of the said +murder, yet soon thereafter he took and obtained a lease from Lord +Bracco, of a farm called the Craggan, for which he was bound to pay +thirty pounds Scots of yearly rent; as also thereafter he obtained a +lease of the farm of Gleney, from ---- Farquharson of Inverey, for +which at present he was bound to pay a yearly rent, or tack duty, of +one hundred and five merks Scots, as appears from the judicial +declaration of him, the said Duncan Clerk, to be hereafter more +particularly taken notice of; and both of the said panels having been +apprehended in the year one thousand seven hundred and fifty-three, for +being guilty of the foresaid murder, and upon the twenty-third day of +January last, one thousand seven hundred and fifty-four years, brought +into the presence of the Right Honourable Alexander Fraser of Strichen +and Hugh Dalrymple of Drummore, two of the Lords Commissioners of +Justiciary each of them gave different and contradictory accounts of +themselves, in so far as the said Duncan Clerk did then acknowledge, in +presence of the said Judges, that he was on the hill of Gleneye, +alongst with the said Alexander Bain Macdonald, both armed as above set +forth, on the day the said Arthur Davies was amissing; that the said +Alexander Macdonald fired a shot at some deer, but that about ten +o'clock the said Duncan Clerk parted with him on the hill, and came +back to his father's house, to which likewise the said Alexander +Macdonald came the same evening, where he lodged or stayed all night; +as also a paper containing a list of debts, beginning with the words, +"I, Duncan Clerk, in Gleneye, was put in Perth Jail," and ending, +"Angus Macdonald, 12 sh.," now marked on the back with the name and +sirname of the said Lord Drummore, being exhibited to him the said +Duncan Clerk, he acknowledged the same to be his handwriting, and that +it contains a list of debts due to him when he was imprisoned, as is at +more length to be seen in his said confession or declaration, signed by +him and the said Lord Drummore. LIKEAS he the said Alexander Bain +Macdonald did, upon the twenty-third day of January last, one thousand +seven hundred and fifty-four years, in presence of the said Judges, +acknowledge and declare, that one year, while he was Lord Bracco's +forrester, he went with the said Duncan Clerk to the Hill of Gleneye, +to search for deer, where he fired at them, but that about nine or ten +o'clock in the forenoon, Duncan Clerk went home to his father's house, +and thereafter the said Alexander Macdonald returned to his own house +in Allanquoich, where he staid all that night, not seeing the said +Duncan Clerk more that day, as is at more length to be seen in his said +confession or declaration, signed by the said Lord Drummore, he having +declared he could not write; both which confessions or declarations, +with the list of debts above specified, said to be due to him, the said +Duncan Clerk, as also, the hat mentioned to be found in summer one +thousand seven hundred and fifty in the hill of Gleneye, are all now +lodged in the hands of the Clerk to the Court of Justiciary, before +which they are to be tried, that they may see the same: AT LEAST time +and place aforesaid, the said Arthur Davies was murdered or bereaved of +his life, and they, and each of them, or one or other of them, are +guilty, actor or art and part of the said murder, aggravated as above +set furth; all which, or part thereof, being found proven by the +verdict of an Assize, before the Lords Justice General, Justice Clerk, +and Commissioners of Justiciary, he, the said Duncan Terig alias Clerk, +and Alexander Bain Macdonald, ought to be punished with the pains of +law, to the terror of others to commit the like in time coming. + + (Signed) ALEX. HOME, A.D. + + + + +PURSUERS. + + WILLIAM GRANT, of Prestongrange, Esq., His Majesties Advocate. + + Mr PATRICK HALDANE, and + Mr ALEXANDER HOME, + both His Majesties Solicitors. + + Mr ROBERT DUNDAS, Advocate. + + +PROCURATORS in defence. + + Mr ALEXANDER LOCKHART, + Mr ROBERT M'INTOSH, + Advocates. + + +The Libel being openly read in Court, and the panels interrogate +thereupon, they both denied the same, and referred their defences to +their Lawiers. + +LOCKHART, &c., for the panel, denying the libel, or any guilt or +accession of the panels to the murder charged, pled that the panels +were persons of good fame and reputation, and that as no cause of +malice in them against Serjeant Davies was alleged, so the circumstances +founded on in the indictment, though they were true, were not in any +sort sufficient to infer a proof of the panels' guilt. And further, the +panels would be able to prove a true and warrantable cause for going to +the hill libelled on in arms, and that they went openly and avowedly; +and that in the circumstances they were in, it was impossible they +could have any wicked design against, or expect to have an opportunity +of executing such a design against Serjeant Davies: That they were not +so much as suspected of murdering him at the time of his being +amissing, or for several months thereafter, when many different +accounts were given, and suspicions raised and entertained concerning +that matter. THEY also objected and alleged for the panels, that as +murder was the only crime charged against them in this indictment, no +vague or general allegation of robbery, or other crime or accusation +against their characters, could be allowed to go to the knowledge of an +assize, though they were noways apprehensive of the consequences of it, +other than from the false and malicious reports, raised and propagated +against them, since their commitment for the foresaid crime; and the +panels had great reason to complain of the undue delays in bringing +them to trial for this offence: In so far as, after they were committed +for the same in September last, and had taken out letters of +intimation, and upon expiry of the days, had also obtained letters of +liberation, they were again committed upon a new warrant for alleged +theft, upon which new commitment they raised new letters of intimation, +and when the sixty days were just expiring, they were served with an +indictment for the theft, which was fixed to within a few days of the +expiry of the forty days allowed by law, and then allowed to drop; and +after all, there was again a new warrant of commitment obtained against +them for wearing the Highland dress; and last of all they were served +with this indictment; all which steps plainly show the oppression they +have met with, which the panels do by no means lay to the charge of the +prosecutor, but are willing to allow the same to be owing to the +malicious information of some private informer, which they hope to be +able to make appear if they were allowed an exculpatory proof, and that +very undue means had been used both before and since the citation of +the witnesses to influence them to give evidence against the panels in +this matter; and the panels, amongst many other things for their +exculpation, would be able to prove, that after they returned from the +hill upon the day upon which the Serjeant is said to have been +murdered, he, the Serjeant, was seen with his party in that hill. So +that it is impossible the panels could be the perpetrators of the +murder. + +LORD ADVOCATE, &c., answered, that as the defence resolved altogether +into a denial of the libel, it was sufficient for him to say, that +according to the information he had received, such facts and +circumstances would come out upon proof as would be sufficient to +convince the Jury of the panels' guilt: That it was not meant that the +circumstances libelled were sufficient without others to connect with +them, the only intention of libelling upon these circumstances being to +show the panels what written evidence was to be adduced against them: +That he does not oppose the panels being allowed a proof of every fact +and circumstance that may tend to their exculpation: That as to the +delay complained of, the prosecutor can for himself say, that it is +owing to no intention of his to oppress the panels; he had early +information of the murder charged upon, and was very willing and +desirous it might come to light. The panels were at last accused and +committed for it, by the general voice of the country; and though at +first the proof against them did not appear so pregnant, yet it was +hoped, and was the general expectation of all in that part, that the +murder would be brought to light. This was the reason of continuing the +panels in confinement. And now that the prosecutor was ready to go on +to trial, he hoped their Lordships would find the indictment relevant, +and remit the panels to the knowledge of an assize, allowing them at +the same time a proof of every circumstance that may appear necessary +for their exculpation. + +THE LORDS Justice Clerk and Commissioners of Justiciary, having +considered the indictment pursued at the instance of William Grant of +Prestongrange, Esq., His Majesties Advocate for his Majesties interest, +against Duncan Terig _alias_ Clerk, and Alexander Bain Macdonald, both +now prisoners in the Tolbooth of Edinburgh, panels, with the foresaid +debate thereupon: They find the said indictment relevant to infer the +pains of law; but allow the panels to prove all facts and circumstances +that may tend to elide the indictment, or exculpate them, or either of +them, from the guilt of the crime therein libelled: And remit the +panels, with the indictment as found relevant, to the knowledge of an +assize. + + (Signed) CH. ARESKINE, I.P.D. + +The Lords continue the diet at the instance of his Majesties Advocate, +against the said two panels, till to-morrow at seven o'clock in the +morning, and witnesses and assizers then to attend, each under the pain +of law, and the panels to be carried back to prison. + + + _CURIA JUSTICIARIA S. D. N. Regis tenta in Nova Sessionis Domo + Burgi de Edinburgh undecimo die mensis Junij 1754, per honorabiles + viros Carolum Areskine de Alva, Justiciarium Clericum, Dominum + Gilbertum Elliot de Minto, Magistros Alexandrum Fraser de Strichen, + Patricium Grant de Elchies, et Hugonem Dalrymple de Drummore, et + Dominum Jacobum Ferguson de Killkerran, Commissionarios + Justiciarios dict. S. D. N. Regis._ + + _Curia legittime affirmata_, + + INTRAN. + + DUNCAN TERIG _alias_ CLERK, and ALEXANDER BAIN MACDONALD, both + prisoners in the Tolbooth of Edinburgh, panels indicted and accused + as in the former Sederunt. + +The Lords proceeded to make choice of the following persons to pass +upon the assize of the said Duncan Terig alias Clerk, and Alexander +Bain Macdonald; to wit,-- + + Archibald Wallace, merchant in Edinburgh. + William Tod, senior, merchant there. + Andrew Bonnar, merchant there. + Robert Forrester, merchant there. + Walter Hogg, merchant there. + Alexander Crawford, baker in Edinburgh. + John Heriot, candlemaker there. + John Sword, merchant there. + William Ormiston, bookbinder there. + William Braidwood, candlemaker. + William Sands, bookseller in Edinburgh. + John Dalgleish, watchmaker there. + George Gray, merchant there. + John Welsh, goldsmith there. + James Gilliland, goldsmith there. + +The above assize all lawfully sworn, and no objection to the contrary-- + +The panels and their procurators admitted the two judicial declarations +libelled on, were emitted by them, before the two Judges therein named; +and the said panels both now judicially adhere to the same, with this +variation for Alexander Bain Macdonald, that it was a mistake in his +said declaration, where it is said, that he went home to the house in +Allanquoich, where he staid that night, and did not see Duncan Clerk +any more that day after they parted on the hill, the true fact being, +that he did not go home to the house in Allanquoich where he resided, +till the night thereafter, and in the evening of that night went to the +house of Duncan Clerk's father, where he found Duncan Clerk, and staid +all night, and that the reason of his former mistake was, that he by +himself went again to the hills upon the twenty-ninth in quest of the +deer which he had wounded the preceding day, and returned to his own +house the evening of the said twenty-ninth; and this admission is +signed by the said Duncan Clerk, and by Mr Alexander Lockhart, +procurator for the other panel, who declares he cannot write. + + (Signed) DUNCAN CLERK. + ALEX. LOCKHART. + +Thereafter, His Majesty's Advocate for proof adduced the following +witnesses; viz.-- + + +JEAN GHENT, relict of Arthur Davies, serjeant in the regiment commanded +by Lieutenant-General Guise, aged about thirty-three years, who being +solemnly sworn, purged of malice and partial council, and interrogate: +Depones, That she was married for the space of ten months to Serjeant +Davies the day he was missing, and that in summer seventeen hundred and +forty-nine, her husband, with eight private men under his command, +marched from Aberdeen to Dubrach in Braemar, in the shire of Aberdeen, +which was assigned to him as his station; and that there was another +party of the same regiment whose head-quarters was at Aberdeen, +stationed at the Spittle of Glenlee, within eight miles of Dubrach, +under the command of a corporal: That the two parties did meet twice +a-week in patrol, about half way between the foresaid two places: That +her husband was a keen sportsman, and used to go out a-shooting or +fishing generally every day; and when he went along with the party on +patrol, sent the men home and followed his sport; and on other +occasions went out a-shooting by himself alone: That her husband was a +sober man, a good manager, and had saved money to the value of about +fifteen guineas and a half, which he had in gold, and kept in a green +silk purse, which he inclosed within a leather purse along with any +silver he had: That besides this gold, he generally wore a silver watch +in his pocket, and two gold rings upon one of his fingers, one of which +was of pale yellow gold, and had a little lump of gold raised upon it +in the form of a seal, with a gold stamp on the inside of the ring, and +a weaved line like a worm round the upper side of the plate: That the +other was a plain gold ring, which the deponent had got from David +Holland, her first husband, with the letters D. H. on the inside, and +had this posie on it, "When this you see remember me:" That the said +David Holland was paymaster-serjeant in General Guise's regiment: And +further depones, That the said Serjeant Davies commonly wore a pair of +large silver buckles in his shoes, marked also with the same letters D. +H. in the inside, which likewise had belonged to her said former +husband, as also wore silver knee-buckles, and had two dozen silver +buttons upon a double-breasted vest, made of stript lutstring: That he +frequently had about him a folding penknife, that had a brown +tortoise-shell handle, and a plate upon the end of it, on which was cut +a naked boy, or some such device, with which he often sealed his +letters: That one day when he was dressing some hooks while the +deponent was by, she observed that he was cutting his hat with his +penknife, and she went towards him, and asked him what he meant by +cutting his hat? To which he answered, that he was cutting his name +upon it: To which the deponent replied, she could not see what he could +mean by putting his name upon a thing of no value, and pulled it out of +his hand in a jocular way, but he followed her, and took the hat from +her, and she observed that the A. was then cut out in the hat; and +after he got it, she saw him cut out the letter D., which he did in a +hurry, and which the deponent believed was occasioned by the toying +that was between them concerning this matter, for when she observed it, +she said to him you have made a pretty sort of work of it, by having +misplaced the letters: To which he answered, that it was her fault, +having caused him do it in a hurry. And the hat now upon the table, and +which is lying in the clerk's hands, and referred to in the indictment, +being shown to her, Depones, That to the best of her judgment and +belief, that is the hat above mentioned: Depones, That she never has +seen neither the said Serjeant, the gold purse, or silver purse, above +mentioned, nor the buckles for his shoes and knees, watch, or penknife, +since he marched from his quarters with the party at the time at which +he is supposed to have been murdered: Depones, That on Thursday, being +the day immediately preceding Michaelmas, being the twenty-eighth of +September, one thousand seven hundred and forty-nine, her husband went +out very early in the morning from Dubrach, and that four men of the +party under his command soon after followed him, in order to meet the +patrol from Glenshye, and in the afternoon before four o'clock, the +four men returned to Dubrach, and acquainted the deponent that they had +seen and heard him fire a shot, as they believed, at Tarmatans, but +that he did not join company with them: That at the place appointed +they met with a corporal and a party from Glenshee, and then retired +home: Depones, That her husband never returned; that she has never met +with any body that saw him after the party returned from the foresaid +place, excepting the corporal that that day commanded the party from +Glenshee, who told her that, after the forementioned party from Dubrach +had gone away from the foresaid appointed place, Serjeant Davies came +up to him all alone, upon which the corporal told him, he thought it +was very unreasonable in him to venture upon the hill by himself, as +for his part he was not without fear even when he had his party of four +men along with him; to which Serjeant Davies answered, that when he had +his arms and ammunition about him, he did not fear any body he could +meet: Depones, That her husband, Serjeant Davies, made no secret of his +having the gold above mentioned, but upon the many different occasions +he had to pay and receive money, he used to take out his purse and show +the gold; and that even when he was playing with children, he would +frequently take out his purse and rattle it for their diversion, from +which it was generally known by all the neighbourhood that the serjeant +was worth money, and carried it about him: Depones, That from the +second day after the serjeant and party went from Dubrach as aforesaid, +when the deponent found he did not return, she did believe, and does +believe at this day, that he was murdered; for that he and she lived +together in as great amity and love as any couple could do that ever +were married, and that he never was in use to stay away a night from +her, and that it was not possible he could be under any temptation to +desert, as he was much esteemed and beloved by all his officers, and +had good reason to believe he would have been promoted to the rank of +serjeant-major upon the first vacancy: Depones, That when her husband +went away from Dubrach on the morning of the twenty-eighth of September +aforesaid, he was dressed in a blue surtout coat, with a stripped silk +vest, and teiken breeches and brown stockings: That he had in his purse +fifteen guineas and a half in gold, a crown piece and three shillings +in silver, his silver watch in his pocket, with a silver seal at it, +his silver buckles in his shoes, and his silver buttons on his +waistcoat, and the above mentioned rings on his fingers; and being +asked how she came to know all these things were on him or about him +when he went away as aforesaid? Depones, That she was privy and knew +every thing that related to his money; and the night before the said +twenty-eighth of September, the serjeant from Braemar had come to +Dubrach, and in the deponent's presence had given some money which was +gold to Serjeant Davies, who gave him silver that he had by him for it, +to pay the party; and upon occasion of this, she saw the quantity of +gold above mentioned, which was in her husband's possession, and that +she saw the vest with the buttons and rings on his fingers, and also +the watch, before he went away, he having in her presence put on the +teiken drawers above mentioned, desired from her somewhat to keep the +watch dry, upon which she gave him a piece of cloth, the said drawers +being a little damp, in which he wrapt it, and put it into his pocket: +Depones, That he had dark mouse-coloured hair, tied up with a black +silk ribband behind, and wore a hat with a silver lace and silver +button, marked with the letters D. A. on the outside of the crown of +the hat: And the deponent verily believes, that the hat now shown to +her, and above referred to, is the hat he took out with him: Depones, +That he wore that day a pair of brogues which he had bespoke to be made +so as they could fit buckles, and not to be tied with latches, conform +to the common use of that country: That these brogues the deponent saw +when they were first brought home from Glenshee: Depones, That a gun +now exhibited and shown to the deponent, is the gun which her husband, +Serjeant Davies, received in a present from Lieutenant Brydon, of the +same regiment with him, and the gun which he always used when he went +a-shooting, and which he carried out with him in the morning of the +twenty-eighth of September, one thousand seven hundred and forty-nine +aforesaid: That the stock of the gun is altered about the butt, and a +plate that was on the butt-end is taken away, and the wood pared, but +that she knows the barrel by a cross rent that is in it a little above +the middle, and which her husband told her had been occasioned by his +firing a shot when the gun was overloaded and the ball had stuck at +that part of the barrel when he was loading her: Depones, That from the +time her husband was quartered at Dubrach in the month of June to the +foresaid twenty-eighth of September one thousand seven hundred and +forty-nine, he was never absent a night from his command at Dubrach +except one, that he went to the doctor of the regiment to take his +advice about a strain, and he returned next morning: Depones, That upon +the Monday after the Serjeant was believed to be murdered, the country +was raised to make search for the body, but it was not found; and that +she spoke to one of the prisoners, Clerk, whom she took to be a +particular friend, to try if he could find the body, but it was not +found: That afterwards the deponent went to the garrison in Braemar, +and from that to the regiment: And being interrogate for the panels, +whether her husband had received any information before the party +marched out upon the day above mentioned that there were people in arms +in that country where he was stationed? Depones, That her husband was +stationed there, as she believes, because it was said that severals of +the Highlanders had not delivered up their arms since the Rebellion, +and wore the highland garb; but that she knows nothing of any +particular information he had about that time, except that about the +beginning of harvest, on a Sunday afternoon, a woman, who said she had +been in the hill, came in where the Serjeant and the deponent were +sitting at dinner, and said, that she had seen two men in highland +clothes, and armed, lying at the mouth of a cave, who seemed to be +herding two cows which she saw, and upon her coming near them, +consulted among themselves whether they should not bind her lest she +should return and advertise Serjeant Davies and his party; but however, +she had got away, and had come immediately to give notice to the +Serjeant and his party, whereupon he and a party of six men went up in +quest of them, but found nobody, neither did the deponent hear any more +of that matter afterwards, _Causa scientiae patet_: And this is truth, +as she shall answer to God; and declares she cannot write. + + (Signed) CH. ARESKINE. + + +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 scientiae 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 +scientiae 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 scientiae 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 +scientiae 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 +scientiae 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 scientiae 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 scientiae +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 scientiae 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 scientiae 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 scientiae 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 scientiae 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 scientiae +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 scientiae +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 scientiae 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 scientiae 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 scientiae 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 scientiae 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 scientiae 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 +scientiae 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 scientiae 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 scientiae 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 scientiae 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 the Project Gutenberg EBook of Trial of Duncan Terig, alias Clerk, +and Alexander Bane Macdonald, by Sir Walter Scott + +*** END OF THIS PROJECT GUTENBERG EBOOK TRIAL OF DUNCAN TERIG *** + +***** This file should be named 26133.txt or 26133.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/2/6/1/3/26133/ + +Produced by The Online Distributed Proofreading Team at +https://www.pgdp.net (This file was produced from images +generously made available by The Internet Archive/Canadian +Libraries) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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