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TRIAL OF

DUNCAN TERIG ALIAS CLERK,
AND
ALEXANDER BANE MACDONALD,

FOR THE MURDER OF

ARTHUR DAVIS,
SERGEANT IN GENERAL GUISE'S REGIMENT OF FOOT.

JUNE,
A.D. M.DCC.LIV.



EDINBURGH:
PRINTED BY BALLANTYNE AND COMPANY.
1831.




TO

THE MEMBERS OF THE BANNATYNE CLUB,

THIS COPY OF A TRIAL,
INVOLVING A CURIOUS POINT OF EVIDENCE,
IS PRESENTED

BY

WALTER SCOTT.

FEBRUARY, M.DCCC.XXXI.




Transcriber's Note: Letters that are printed as superscript are
indicated by being preceeded by a caret (^).



THE BANNATYNE CLUB.

M.DCCC.XXXI.


SIR WALTER SCOTT, BAR^T.

[PRESIDENT.]

THE EARL OF ABERDEEN, K.T.
RIGHT HON. WILLIAM ADAM,
    LORD CHIEF COMMISSIONER OF THE JURY COURT.
JAMES BALLANTYNE, ESQ.
SIR WILLIAM MACLEOD BANNATYNE.                            5
LORD BELHAVEN AND STENTON.
GEORGE JOSEPH BELL, ESQ.
ROBERT BELL, ESQ.
WILLIAM BELL, ESQ.
JOHN BORTHWICK, ESQ.                                     10
WILLIAM BLAIR, ESQ.
THE REV. PHILIP BLISS, D.C.L.
GEORGE BRODIE, ESQ.
CHARLES DASHWOOD BRUCE, ESQ.
THE DUKE OF BUCCLEUCH AND QUEENSBERRY.                   15
JOHN CALEY, ESQ.
JAMES CAMPBELL, ESQ.
HON. JOHN CLERK, LORD ELDIN.
WILLIAM CLERK, ESQ.
HENRY COCKBURN, ESQ.                                     20
DAVID CONSTABLE, ESQ.
ANDREW COVENTRY, ESQ.
JAMES T. GIBSON CRAIG, ESQ.
WILLIAM GIBSON CRAIG, ESQ.
HON. GEORGE CRANSTOUN, LORD COREHOUSE.                   25
THE EARL OF DALHOUSIE.
JAMES DENNISTOUN, ESQ.
ROBERT DUNDAS, ESQ.
RIGHT HON. W. DUNDAS, LORD CLERK REGISTER.
CHARLES FERGUSSON, ESQ.                                  30
ROBERT FERGUSON, ESQ.
LIEUT.-GENERAL SIR RONALD C. FERGUSON.
THE COUNT DE FLAHAULT.
HON. JOHN FULLERTON, LORD FULLERTON.
LORD GLENORCHY.                                          35
THE DUKE OF GORDON.
WILLIAM GOTT, ESQ.
SIR JAMES R. G. GRAHAM, BAR^T.
ROBERT GRAHAM, ESQ.
LORD GRAY.                                               40
RIGHT HON. THOMAS GRENVILLE.
THE EARL OF HADDINGTON.
THE DUKE OF HAMILTON AND BRANDON.
E. W. A. DRUMMOND HAY, ESQ.
JAMES M. HOG, ESQ.                                       45
JOHN HOPE, ESQ.
COSMO INNES, ESQ.
DAVID IRVING, LL.D.
JAMES IVORY, ESQ.
THE REV. JOHN JAMIESON, D.D.                             50
ROBERT JAMESON, ESQ.
SIR HENRY JARDINE.
FRANCIS JEFFREY, ESQ. LORD ADVOCATE.
JAMES KEAY, ESQ.
THOMAS FRANCIS KENNEDY, ESQ.                             55
JOHN G. KINNEAR, ESQ. [TREASURER.]
THE EARL OF KINNOULL.
DAVID LAING, ESQ. [SECRETARY.]
THE EARL OF LAUDERDALE, K.T.
THE REV. JOHN LEE, D.D.                                  60
THE MARQUIS OF LOTHIAN.
HON. J. H. MACKENZIE, LORD MACKENZIE.
JAMES MACKENZIE, ESQ.
JAMES MAIDMENT, ESQ.
THOMAS MAITLAND, ESQ.                                    65
THE HON. WILLIAM MAULE.
GILBERT LAING MEASON, ESQ.
VISCOUNT MELVILLE, K.T.
WILLIAM HENRY MILLER, ESQ.
THE EARL OF MINTO.                                       70
HON. SIR J. W. MONCREIFF, LORD MONCREIFF.
JOHN ARCHIBALD MURRAY, ESQ.
WILLIAM MURRAY, ESQ.
JAMES NAIRNE, ESQ.
MACVEY NAPIER, ESQ.                                      75
FRANCIS PALGRAVE, ESQ.
HENRY PETRIE, ESQ.
ROBERT PITCAIRN, ESQ.
ALEXANDER PRINGLE, ESQ.
JOHN RICHARDSON, ESQ.                                    80
THE EARL OF ROSSLYN.
ANDREW RUTHERFURD, ESQ.
THE EARL OF SELKIRK.
RIGHT HON. SIR SAMUEL SHEPHERD.
ANDREW SKENE, ESQ.                                       85
JAMES SKENE, ESQ.
GEORGE SMYTHE, ESQ.
EARL SPENCER, K.G.
JOHN SPOTTISWOODE, ESQ.
THE MARQUIS OF STAFFORD, K.G.                            90
MAJOR-GENERAL STRATON.
SIR JOHN ARCHIBALD STEWART, BAR^T.
THE HON. CHARLES FRANCIS STUART.
ALEXANDER THOMSON, ESQ.
THOMAS THOMSON, ESQ. [VICE-PRESIDENT.]                   95
W. C. TREVELYAN, ESQ.
PATRICK FRASER TYTLER, ESQ.
ADAM URQUHART, ESQ.
RIGHT HON. SIR GEORGE WARRENDER BAR^T.
THE VENERABLE ARCHDEACON WRANGHAM.                      100




TO THE

RIGHT HONOURABLE

SIR SAMUEL SHEPHERD,

THIS CURIOUS TRACT,
RESPECTING PERHAPS THE ONLY SUBJECT OF LEGAL ENQUIRY
WHICH HAS ESCAPED BEING INVESTIGATED BY HIS SKILL,
AND ILLUSTRATED BY HIS GENIUS,

IS RESPECTFULLY INSCRIBED,
BY HIS AFFECTIONATE FRIEND, AND MUCH
OBLIGED HUMBLE SERVANT,

WALTER SCOTT.

15TH FEB., 1831.




INTRODUCTION.


Although the giving information concerning the unfair manner in which
they were dismissed from life, is popularly alleged to have been a
frequent reason why departed spirits revisit the nether world, it is
yet only in a play of the witty comedian, Foote, that the reader will
find their appearance become the subject of formal and very ingenious
pleadings. In his farce called the Orators, the celebrated Cocklane
Ghost is indicted by the name of Fanny the Phantom, for that, contrary
to the King's peace, it did annoy, assault, and terrify divers persons
residing in Cocklane and elsewhere, in the county of Middlesex. The
senior counsel objects to his client pleading to the indictment, unless
she is tried by her equals in rank, and therefore he moves the
indictment be quashed, unless a jury of ghosts be first had and
obtained. To this it is replied, that although Fanny the Phantom had
originally a right to a jury of ghosts, yet in taking upon her to
knock, to flutter, and to scratch, she did, by condescending to
operations proper to humanity, wave her privileges as a ghost, and must
consent to be tried in the ordinary manner. It occurs to the Justice
who tries the case, that there will be difficulty in impanelling a jury
of ghosts, and he doubts how twelve spirits who have no body at all,
can be said to take a corporal oath, as required by law, unless,
indeed, as in the case of the Peerage, the prisoner may be tried upon
her honour. At length the counsel for the prosecution furnishes the
list of ghosts for the selection of the jury, being the most celebrated
apparitions of modern times, namely, Sir George Villiers, the evil
genius of Brutus, the Ghost of Banquo, and the phantom of Mrs Veal. The
counsel for the prosecution objects to a woman, and the court
dissolves, under the facetious order, that if the Phantom should plead
pregnancy, Mrs Veal will be admitted upon the jury of matrons.

This admirable foolery is carried by the English Aristophanes nearly as
far as it will go; yet it is very contrary to the belief of those, who
conceive that injured spirits are often the means of procuring redress
for wrongs committed upon their mortal frames, to find how seldom in
any country an allusion hath been made to such evidence in a court of
justice, although, according to their belief, such instances must have
frequently occurred. One or two cases of such apparition-evidence our
researches have detected.

It is a popular story, that an evidence for the Crown began to tell the
substance of an alleged conversation with the ghost of a murdered man,
in which he laid his death to the accused person at the bar. "Stop,"
said the judge, with becoming gravity, "this will not do; the evidence
of the ghost is excellent, none can speak with a clearer cause of
knowledge to any thing which befell him during life. But he must be
sworn in usual form. Call the ghost in open court, and if he appears,
the jury and I will give all weight to his evidence; but in case he
does not come forward, he cannot be heard, as now proposed, through the
medium of a third party." It will readily be conceived that the ghost
failed to appear, and the accusation was dismissed.

In the French _Causes Celebres et Interessantes_, is one entitled, _Le
Spectre, ou l'Illusion Reprouve_, reported by Guyot de Pittaval [vol.
xii. edition La Haye, 1749], in which a countryman prosecutes a
tradesman named Auguier for about twenty thousand francs, said to have
been lent to the tradesman. It was pretended, that the loan was to
account of the proceeds of a treasure which Mirabel, the peasant, had
discovered by means of a ghost or spirit, and had transferred to the
said Auguier, that he might convert it into cash for him. The case had
some resemblance to that of Fanny the Phantom. The defendant urged the
impossibility of the original discovery of the treasure by the spirit
to the prosecutor; but the defence was repelled by the influence of the
principal judge, and on a charge so ridiculous, Auguier narrowly
escaped the torture. At length, though with hesitation, the prosecutor
was nonsuited, upon the ground, that if his own story was true, the
treasure, by the ancient laws of France, belonged to the Crown. So that
the ghost-seer, though he had nearly occasioned the defendant to be put
to the question, profited in the end nothing by his motion.

This is something like a decision of the great Frederick of Prussia.
One of his soldiers, a Catholic, pretended peculiar sanctity, and an
especial devotion to a particular image of the Virgin Mary, which,
richly decorated with ornaments by the zeal of her worshippers, was
placed in a chapel in one of the churches of the city where her votary
was quartered. The soldier acquired such familiarity with the object of
his devotion, and was so much confided in by the priests, that he
watched for and found an opportunity of possessing himself of a
valuable diamond necklace belonging to the Madonna. Although the
defendant was taken in the manner, he had the impudence, knowing the
case was to be heard by the King, to say that the Madonna herself had
voluntarily presented him with her necklace, observing that, as her
good and faithful votary, he had better apply it to his necessities,
than that it should remain useless in her custody.

The King, happy of the opportunity of tormenting the priests, demanded
of them, whether there was a possibility that the soldier's defence
might be true. Their faith obliged them to grant that the story was
possible, while they exhausted themselves on the improbabilities which
attended it. "Nevertheless," said the King, "since it is possible, we
must, in absence of proof, receive it as true, in the first instance.
All I can do to check an imprudent generosity of the saints in future,
is to publish an edict, or public order, that all soldiers in my
service, who shall accept any gift from the Virgin, or any saint
whatever, shall, _eo ipso_, incur the penalty of death."

Amongst English trials, there is only mention of a ghost in a very
incidental manner, in that of John Cole, fourth year of William and
Mary, State Trials, vol. xii. The case is a species of supplement to
that of the well-known trial of Henry Harrison, which precedes it in
the same collection, of which the following is the summary.

A respectable doctor of medicine, Clenche, had the misfortune to offend
a haughty, violent, and imperious woman of indifferent character, named
Vanwinckle, to whom he had lent money, and who he wished to repay it. A
hackney-coach, with two men in it, took up the physician by night, as
they pretended, to carry him to visit a patient. But on the road they
strangled him with a handkerchief, having a coal, or some such hard
substance, placed against their victim's windpipe, and escaped from the
coach. One Henry Harrison, a man of loose life, connected with this Mrs
Vanwinckle, the borrower of the money, was tried, convicted, and
executed, on pretty clear evidence, yet he died denying the crime
charged. The case being of a shocking nature, of course interested the
feelings of the common people, and another person was accused as an
accessory, the principal evidence against whom was founded on this
story.

A woman, called Millward, pretended that she had seen the ghost of her
deceased husband, who told her that one John Cole had assisted him, the
ghost, in the murder of Dr Clenche. Cole was brought to trial
accordingly; but the charge was totally despised, both by judge and
jury, and produced no effect whatever in obtaining conviction.

Such being the general case with respect to apparitions, really alluded
to or quoted in formal evidence in courts of justice, an evidence of
that kind gravely given and received in the High Court of Justiciary in
Scotland, has some title to be considered as a curiosity.

The Editor's connexion with it is of an old standing, since, shortly
after he was called to the bar in 1792, it was pointed out to him by
Robert M'Intosh, Esq., one of the counsel in the case, then and long
after remarkable for the interest which he took, and the management
which he possessed, in the prolix and complicated affairs of the York
Building Company.

The cause of the trial, bloody and sad enough in its own nature, was
one of the acts of violence which were the natural consequences of the
Civil War in 1745.

It was about three years after the battle of Culloden that this poor
man, Sergeant Davis, was quartered, with a small military party, in an
uncommonly wild part of the Highlands, near the country of the
Farquharsons, as it is called, and adjacent to that which is now the
property of the Earl of Fife. A more waste tract of mountain and bog,
rocks and ravines, extending from Dubrach to Glenshee, without
habitations of any kind until you reach Glenclunie, is scarce to be met
with in Scotland. A more fit locality, therefore, for a deed of murder,
could hardly be pointed out, nor one which could tend more to agitate
superstitious feelings. The hill of Christie, on which the murder was
actually committed, is a local name, which is probably known in the
country, though the Editor has been unable to discover it more
specially, but it certainly forms part of the ridge to which the
general description applies. Davis was attached to the country where he
had his residence, by the great plenty of sport which it afforded, and,
when dispatched upon duty across these mountains, he usually went at
some distance from his men, and followed his game without regarding the
hints thrown out about danger from the country people. To this he was
exposed, not only from his being intrusted with the odious office of
depriving the people of their arms and national dress, but still more
from his usually carrying about with him a stock of money and
valuables, considerable for the time and period, and enough of itself
to be a temptation to his murder.

On the 28th day of September, the Sergeant set forth, along with a
party, which was to communicate with a separate party of English
soldiers at Glenshee; but when Davis's men came to the place of
rendezvous, their commander was not with them, and the privates could
only say that they had heard the report of his gun after he had parted
from them on his solitary sport. In short, Sergeant Arthur Davis was
seen no more in this life, and his remains were long sought for in
vain. At length a native of the country, named M'Pherson, made it known
to more than one person that the spirit of the unfortunate huntsman had
appeared to him, and told him he had been murdered by two Highlanders,
natives of the country, named Duncan Terig alias Clerk, and Alexander
Bane Macdonald. Proofs accumulated, and a person was even found to bear
witness, that lying in concealment upon the hill of Christie, the spot
where poor Davis was killed, he and another man, now dead, saw the
crime committed with their own eyes. A girl whom Clerk afterwards
married, was, nearly at the same time, seen in possession of two
valuable rings which the Sergeant used to have about his person.
Lastly, the counsel and agent of the prisoners were convinced of their
guilt. Yet, notwithstanding all these suspicious circumstances, the
panels were ultimately acquitted by the jury.

This was chiefly owing to the ridicule thrown upon the story by the
incident of the ghost, which was enhanced seemingly, if not in reality,
by the ghost-seer stating the spirit to have spoken as good Gaelic as
he had ever heard in Lochaber.--"Pretty well," answered Mr M'Intosh,
"for the ghost of an English sergeant!" This was indeed no sound jest,
for there was nothing more ridiculous, in a ghost speaking a language
which he did not understand when in the body, than there was in his
appearing at all. But still the counsel had a right to seize upon
whatever could benefit his clients, and there is no doubt that this
observation rendered the evidence of the spectre yet more ridiculous.
In short, it is probable that the ghost of Sergeant Davis, had he
actually been to devise how to prevent these two men from being
executed for his own murder, could hardly have contrived a better mode
than by the apparition in the manner which was sworn to.

The most rational supposition seems to be, that the crime had come to
M'Pherson, the ghost-seer's knowledge, by ordinary means, of which
there is some evidence, but desiring to have a reason for communicating
it, which could not be objected to by the people of the country, he had
invented this machinery of the ghost, whose commands, according to
Highland belief, were not to be disobeyed. If such were his motives,
his legend, though it seemed to set his own tongue at liberty upon the
subject, yet it impressed on his evidence the fate of Cassandra's
prophecies, that, however true, it should not have the fortune to be
believed.

ABBOTSFORD, 18th March, 1830.




TRIAL OF

DUNCAN TERIG ALIAS CLERK, AND ALEXANDER BAIN MACDONALD,

FOR THE MURDER OF

ARTHUR DAVIES, SERJEANT

IN GENERAL GUISE'S REGIMENT OF FOOT.

JUNE, A.D. MDCC.LIV.




TRIAL OF

DUNCAN TERIG ALIAS CLERK,

AND ALEXANDER BAIN MACDONALD.


    _CURIA JUSTICIARIA S. D. N. Regis tenta in Nova Sessionis Domo
    Burgi de Edinburgh, Decimo die Mensis Junij 1754, per honorabiles
    viros Carolum Areskine de Alva, Justiciarij Clericum, Magistros
    Alexandrum Fraser de Strichen, Patricium Grant de Elchies, et
    Hugonem Dalrymple de Drummore, et Dominum Jacobum Ferguson de
    Killkerran, Commissionarios Justiciarij dicti S. D. N. Regis._

                       _Curia legittime affirmata_,

                                 INTRAN.

    DUNCAN TERIG _alias_ CLERK, and ALEXANDER BAIN MACDONALD, both now
    prisoners in the Tolbooth of Edinburgh, Pannels,

Indicted and accused at the instance of William Grant of Prestongrange,
Esq., His Majesties Advocate, for His Majesties interest, for the crime
of murder committed by them in manner at length mentioned in the
indictment raised against them thereanent, which indictment maketh
mention, THAT WHEREAS, by the laws of God, and of this and all other
well governed realms, Murder or Homicide is a most atrocious crime, and
severely punishable, especially committed with an intent to rob the
person murdered, and that by persons of bad fame and character, who are
habite and repute thieves, YET TRUE IT IS, and of verity, that they,
and each of them, or one or other of them, are guilty, actors, or art
and part, of the foresaid crime, aggravated as aforesaid, in so far as
the deceast Arthur Davies, serjeant in the regiment of foot commanded
by General Guise, being in the year one thousand seven hundred and
forty-nine, quartered or lodged alongst with a party of men or soldiers
belonging to the said regiment in Dubrach, or Glendee, in Braemar, in
the parish of ---- and sheriffdom of Aberdeen, he, the said Arthur
Davies, did, upon the twenty-eighth day September, one thousand seven
hundred and forty-nine, or upon one or other of the days of that month,
or of the month of August immediately preceding, or October immediately
following, go from thence to a hill in Braemar, commonly called
Christie, at the head of Glenconie, in the parish of ---- and
sheriffdom aforesaid. As also that same day, both of them, the said
Duncan Terig alias Clerk, and Alexander Bain Macdonald, went from the
house of John Grant, in Altalaat, armed with guns and muskets,
pretending when they went from thence that they were going to shoot or
hunt deer upon the said hill, to which place both of them having
accordingly gone, and there meeting with the said Arthur Davies, each,
or one or other of them, did, on the said twenty-eighth of September,
1749, or upon one or other of the days of that month, or of the months
aforesaid, cruelly and barbarously fire a loaded gun or guns at him,
which were in their hands, whereby he was mortally wounded, and of
which wounds he died on the said hill, immediately or soon thereafter,
where his dead body remained concealed for sometime, and was afterwards
found, together with a hat, having a silver button on it, with the
letters A. R. D. marked on it. LIKEAS, soon after the said Arthur
Davies was murdered, each of the said two panels, being persons of bad
fame and character, and who were habite and repute thieves, were, by
the general voice of the country