The Ghost of Sergeant Davies
‘You must not tell us what the soldier or any other man said, Sir; it’s not evidence.’
BARDELL v PICKWICK
FEW JUDICIAL UTTERANCES are better known or more widely quoted than this immortal dictum of Mr Justice Stareleigh. Yet there was precedent against his Lordship’s ruling, for in the year 1754 the High Court of Justiciary at Edinburgh had admitted as evidence what was said by ‘the soldier’s’ ghost! and so lately as 1831 the testimony of a voice from the other world was accepted in the Assynt murder case by the same tribunal. But English practice was no stricter, and although only two instances of spectral evidence occur in the State Trials, the research of Mr Andrew Lang has disclosed similar cases. Both of the Scots spirits spoke in Gaelic, which would seem to be an appropriate medium of communication but for the fact that the soldier, an Englishman, while in the flesh had no knowledge of that tongue.
The case first mentioned arose out of the slaying of Sergeant Davies, and the trial of his murderers was privately printed for the Bannatyne Club at the instance of Sir Walter Scott. The time was some three years after the doleful day of Drummossie, the place a solitary hillside at the head of Glenclunie, in the heart of the Grampians. ‘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,’ writes Sir Walter; ‘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 swell following the great gale of the 1745 Rebellion had not subsided in the remoter Highlands; and bands of disaffected and broken men still lurked in security among the grim defiles and rugged fastnesses of that formidable land. The disarming of the Highlanders was a farce, as Prestongrange admitted to David Balfour. To stamp out the smouldering embers of the Rising, and to enforce the Disarming Act and that which proscribed the national dress, the Government still maintained garrisons throughout the suspected districts. From these stations small pickets were sent out to occupy various posts, whence they communicated with one another, and constantly patrolled the country.
In the month of September, 1749, Sergeant Arthur Davies, with a party of eight men of the regiment of foot commanded by Lieutenant-General Guise, were quartered at Dubrach, a small upland farm near the clachan of Inverey in Braemar. They had marched thither in the previous June from their headquarters at Aberdeen. Another party of the same regiment, under the command of a corporal, guarded the Spittal of Glenshee, some eight miles off. In the course of patrolling the district, these two parties were wont to meet twice a week at a spot midway between their respective stations. During the three or four months in which Sergeant Davies had occupied the hostile territory, he seems to have discharged his onerous duties with tact and moderation, and though officially unpopular, had managed to obtain the goodwill of his subject neighbours. The private tastes and character of the man were likeable: he was of a genial disposition, a keen and indefatigable sportsman, fearless, thrifty, and particular in his dress. For one in his position, his circumstances were prosperous. He had been married for about a year to the widow of a former comrade, and his wife shared the responsibilities of his post. Beyond Dubrach and farther up Strathdee there was at that time no cultivated land, and it was the sergeant’s daily custom, combining business and pleasure, to wander by himself with rod or gun among the hills, glens, and streams of those inhospitable and lonely wilds. Though often warned of the risk to which such habits exposed him at the hands of lawless and desperate men, many of whom were then ‘in the heather’, the sergeant laughed at danger, and continued to ‘gang his ain gait’.
His figure was a notable one in so poor a neighbourhood. His ordinary dress was ‘a blue surtout coat, with a striped silk vest, teiken breeches, and brown stockings’. He carried a green silk purse containing his little capital, fifteen and a half guineas in gold, and a leather purse with silver for current expenses. The existence of this green silk purse was a matter of common knowledge, for it was his kindly way, when playing with the children of the clachan, ‘to rattle it for their diversion’. He wore two gold rings, one plain, engraved on the inside with the letters D.H. and the motto, ‘When this you see, Remember me.’ This ‘posie’ had reference to the late David Holland, sometime paymaster of the regiment, and the sergeant’s predecessor in the lawful affections of his spouse. It would appear that he had no sentiment in such matters, for his brogues were enriched with a pair of large silver shoe-buckles formerly the property, and also bearing the initials, of the defunct. The other ring, which plays a part in the story, was of curious design, and had ‘a little lump of gold’ in the form of a heart raised upon the bezel. The sergeant, further, wore silver buckles at his knees, a silver watch and seal at his fob, two dozen silver buttons on his waistcoat, and carried in his pocket a penknife of singular form. His ‘dark-mouse-coloured hair’ was tied behind with a black silk ribbon, and his silver-laced hat, with a silver button, had his own initials, misplaced, cut on the outside of the crown. A gun with a peculiar barrel, given to him by a brother officer, completed his usual equipment.
Thus accoutred and adorned, Sergeant Davies, very early on the morning of Thursday, 28 September 1749, bade farewell to his wife at the house of Michael Farquharson, where they lodged, and set forth in advance of his men to meet the patrol from Glenshee. Four of his party followed him soon after. This arrangement was not unusual, and on the return journey he would often ‘send the men home and follow his sport’. An hour after sunrise, he was seen and spoken to in Glenclunie by one John Growar, whom he had occasion to reprimand for wearing a coat of tartan, in contravention of the Act. With characteristic good-nature, Davies ‘dismissed him, instead of making him prisoner’. The four soldiers from Dubrach duly met the corporal’s guard from Glenshee; on their way they had a distant glimpse of the sergeant still pursuing his sport, and heard him fire a shot. They marched home in the afternoon without seeing anything further of him. After the patrols had separated, the Glenshee party encountered the sergeant at the Water of Benow, half a mile from the rendezvous. Davies informed the corporal ‘that he was going to the hill to get a shot at the deer’. The corporal thought it ‘very unreasonable in him’ to venture on the hill alone, as he himself was nervous even when accompanied by his men. To which the sergeant answered ‘that when he had his arms and ammunition about him, he did not fear any body he could meet’. Whereupon they parted company; and from that hour Sergeant Davies vanished from among living men, and his place knew him no more.
Next day the news spread throughout the district that the sergeant had disappeared. The captain of the garrison at Braemar Castle sent a party of men on the Sunday to Dubrach, and on the Monday the whole countryside was raised to search for the missing man. After four days of fruitless labour, the search was abandoned; no trace of the sergeant could be found. From the first, his wife was certain that he had met with foul play. As she afterwards said, ‘It was generally known by all the neighbourhood that the sergeant was worth money and carried it about with him.’ She scouted the rumour that he had deserted, ‘for that he and she lived together in as great amity and love as any couple could do that ever was 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 sergeant-major upon the first vacancy.’ Her view came to be the accepted one, and the opinion of the country was that the sergeant had been robbed and murdered, and his corpse concealed amid the desolate high places of the hills.
In June 1750, nine months after the disappearance, Donald Farquharson, the son of Michael, with whom Davies had lodged when on earth, received a message from one Alexander M’Pherson ‘that he wanted much to speak to him’. M’Pherson was then at his master’s sheiling (shepherd’s hut) in Glenclunie, some two miles distant from Dubrach. A few days afterwards, Farquharson went to see him as requested, ‘when M’Pherson told him that he was greatly troubled with an apparition, the ghost of the deceased Sergeant 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 Donald Farquharson, saying that he was sure he would help to bury his bones.’ The spirit’s confidence was misplaced, for Donald at first declined the office, and ‘could not believe that M’Pherson had seen such an apparition’. But on the ghost-seer stating that, guided by his visitant’s description, he had actually found the bones in question, and offering to take him to the spot, Donald reluctantly agreed to accompany him; ‘which’, as he naively says, ‘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.’
M’Pherson led him to the Hill of Christie, between Glenchristie and Glenclunie, two or three miles from Dubrach, and about half a mile from the road taken by the patrols between that place and Glenshee. The body, which lay on the surface of the ground in a peat moss, was practically reduced to a skeleton. The bones were separated and ‘scattered asunder’, but the ‘mouse-coloured’ hair of the unhappy sergeant, still tied with the black silk ribbon, was intact. Fragments of blue cloth, some pieces of striped stuff, and a pair of brogues from which the tags for the buckles had been cut, left little doubt as to the identity of the remains.
M’Pherson told his companion that when he first found the bones, eight days before, they lay farther off under a bank, and ‘he drew them out with his staff’. Donald enquired, ‘If the apparition had given any orders about carrying his bones to a churchyard?’ and learning that the spirit had indicated no preference for any specific resting-place, he agreed to bury the bones on the spot. They accordingly dug a hole in the moss with a spade brought by M’Pherson, and buried therein all that they had found.
Now, though M’Pherson does not appear to have told Farquharson at this time, he afterwards swore that the ghost, being pressed by him to disclose who had slain the sergeant, did, on the occasion of its second appearance, actually name the murderers. To this we shall return.
Between the discovery of the bones and the communication to Donald Farquharson, M’Pherson had informed John Growar (the man to whom the sergeant had spoken about the tartan coat) both of his spectral visitor and of what he had found. ‘John bid him tell nothing of it, otherwise he would complain of him to John Shaw of Daldownie.’ To anticipate this, M’Pherson himself reported the circumstance to Daldownie, who ‘desired him to conceal the matter, and go and bury the body privately, as it would not be carried to a kirk unkent [unknown], and that the same might hurt the country, being under the suspicion of being a rebel country’. Later, M’Pherson showed Growar where he had found the bones. It was not far from the place at which John had met the sergeant on the day of his death.
Notwithstanding the desire for secrecy expressed by all the parties, someone let out the finding of the body, with the result that local interest was directed to the Hill of Christie. James Growar, a relative of John, presently found there the sergeant’s gun, and a girl named Isobel Ego picked up a silver-laced hat with a silver button on it, afterwards identified as his. Isobel, who had been sent by her master to the hills to look for some horses, remarked on her return, ‘That she had come home richer than she went out’, and produced her find. Her mistress ‘had no peace of mind, believing it to be Sergeant Davies’s hat, and desired it might be put out of her sight’; so the farmer hid the hat under a stone by the burnside, near his house, and knew no more of it. Some time after, however, ‘the bairns of Inverey’, playing about the burnside, lighted upon the hat and took it to the village. It then passed successively through the hands of Donald Downie, the miller of Inverey, and of James Small, factor on the forfeited estate of Strowan, into the custody of John Cook, barrack-master at Braemar Castle, who four years later produced it at the trial. We shall hear of the Strowan factor again.
The barrack-master afterwards said that within ten days of the sergeant’s disappearance, ‘it was reported that he had been murdered by two young men about Inverey’. By the following summer, not only was the story of the ghostly visitant and the resulting discovery of the bones well known throughout the neighbourhood, but ‘it was clattered’ that the spectre had denounced by name as the murderers two persons then living in the district. These were Duncan Terig, alias Clerk, and Alexander Bain Macdonald. Both were men of questionable character, and reputed thieves. Clerk lived with his father in Inverey without visible means of livelihood, and Macdonald, who was forester to Lord Braco (the first Earl Fife), resided in Allanquoich. Apart from their supernatural impeachment, many material facts confirmatory of their guilt accumulated against them in the public mind, but four years elapsed before they were brought to trial. It does not appear from the official record how the tardy sword of justice came to be drawn so long after the event, for not until September 1753 were Clerk and Macdonald apprehended on the charge and committed to the Castle of Braemar. The Lord Advocate stated in Court that the prisoners ‘were at last accused by the general voice of the country’, and that the cause of delay in bringing them to trial was that ‘at first the proof against them did not appear so pregnant’. But certain events after the trial throw some light, as we shall see, on how the charge was made.
On 23 January 1754, the prisoners, being judicially examined before Lords Strichen and Drummore, two of the Lords Commissioners of Justiciary, each gave different and contradictory accounts of their movements upon the day of the murder. Clerk declared that he, in company with Macdonald, was upon the Hill of Gleney the day Sergeant Davies disappeared; that both were armed with guns; that Macdonald fired one shot at some deer; and that at ten o’clock that morning he parted from Macdonald on the hill and returned to his father’s house, to which Macdonald came the same evening, and where he stayed all night. Macdonald declared that he spent the night at his own house in Allanquoich, and did not see Clerk after they parted on the hill about nine or ten o’clock. For the rest, his declaration concurred with Clerk’s.
The trial began before the High Court of Justiciary at Edinburgh on 10 June 1754, the judges being Lord Justice-Clerk Alva, who presided, and Lords Strichen, Drummore, Elchies, and Kilkerran. The two last named had assisted Argyll, the Justice-General, at the judicial murder of James of the Glens two years before, as immortalised by Stevenson. The Lord Advocate, William Grant of Prestongrange, so vividly portrayed in Catriona, Patrick Haldane and Alexander Home, ‘His Majesties Solicitors’, and Robert Dundas, conducted the prosecution. The prisoners were represented by Alexander Lockhart (who ten years later in that Court heroically defended Katharine Nairn) and Robert M’Intosh, the friend of Scott.
In the debate upon the relevancy, which, as was then usual, occupied the first day of the proceedings, it was argued for the panels that they were persons of good fame, and had no malice against the sergeant; that they had a true and warrantable cause for being on the hill under arms; and that they did so openly and avowedly. It was further objected that though arrested for the murder as already described, and having almost ‘run their letters’ without being served with an indictment, they were again committed for theft, and the time nearly expiring in that case also, they were detained on a third warrant for wearing the Highland Dress, and last of all, ‘upon the malicious information of some private informer’, were served with this indictment. They offered to prove that after they had left the hill, the sergeant was seen alive with his party, but in support of this allegation no shadow of evidence was afterwards adduced. The Lord Advocate confidently answered that such facts and circumstances would come out upon proof as would satisfy the jury of the panels’ guilt. The delay complained of was 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’ – but was due to the difficulty of obtaining conclusive evidence against them, which he hoped he had now done. The Court found the libel relevant, and adjourned till the following day.
At seven o’clock next morning (11 June), the trial was resumed, and a jury, composed of Edinburgh tradesmen, was empanelled. Macdonald was allowed to amend his declaration to the effect that he had spent the night of the murder at the house of Clerk’s father in Inverey. The Lord Advocate’s first witness was Jean Ghent, the widow of the murdered man, from whose evidence many of the foregoing facts have been related. She described the dress and belongings of her husband on that morning when she last saw him alive, and identified as his the hat and gun found on the hill, as already mentioned. She had seen him cut his initials on the hat, and had remarked to him at the time, ‘You have made a pretty sort of work of it by having misplaced the letters.’ The stock of the gun had been altered, but she knew it by ‘a cross rent’ in the middle of the barrel, occasioned, as her husband had told her, by his firing a shot when the gun was over-loaded. While the search-party was being organised, she had asked the prisoner Clerk, ‘whom she took to be a particular friend, to try if he could find the body’! The poor woman then little knew how well qualified he was to do so.
Donald Farquharson, whose evidence we have recounted, told how M’Pherson communicated to him the spirit’s message, and described the subsequent burial of the remains. He also identified the gun produced, having been present when Davies fired the charge which cracked the barrel. He had seen gold rings, ‘one of which had a knob upon it’, on the fingers of Elizabeth Downie, a girl whom Clerk had married since the murder. It struck him as being like the sergeant’s ring, and he questioned her about it, but she said it had belonged to her mother. Macdonald, as Lord Braco’s forester, was the only man who had a warrant ‘for carrying guns for killing of deer’, and Clerk was usually associated with him in his expeditions. Clerk was reputed a sheep-stealer. The witness knew nothing against Macdonald ‘but that he once broke the chest of one Corbie, and took some money out of it’. He considered M’Pherson, the ghost-seer, ‘an honest lad’, but it was the general opinion ‘that all is not to be believed that he says’.
Alexander M’Pherson was then called. In the earlier part of his examination he made no reference to the ghost, but merely stated that in the summer of 1750 he found, lying in a moss bank on the Hill of Christie, the bones of a human body, which at the time he believed to be that of Sergeant Davies. His description of the appearance of the remains agreed with that given by Farquharson. When first discovered, the body was partially concealed, and ‘by the help of his staff he brought it out and laid it upon the plain ground, in doing whereof some of the bones were separated one from another’. He narrated his conversations on the subject with Growar, Daldownie, and Farquharson, described the burial of the bones, and gave the following account of his parleyings with the disembodied sergeant:
One night in June 1750, being then abed in his master’s sheiling at Glenclunie, ‘a vision appeared to him as of a man clad in blue’, which he at first took to be ‘a real living man’, namely a brother of Donald Farquharson. The spirit, presumably unwilling to disturb the other sleepers, withdrew to the door of the hut, and M’Pherson arose and followed it outside, when it made the startling announcement, ‘I am Sergeant Davies!’ It added that, in the days of its flesh, it had been murdered on the Hill of Christie nearly a year before, minutely described the place where the body was hidden, and requested M’Pherson to arrange with Donald Farquharson for its interment. Notwithstanding the singular character of the interview, M’Pherson retained sufficient wit to inquire who had done the deed. The spectre made answer that if M’Pherson had not asked, it might have told him, but as he had, it could not. Perhaps to do so was contrary to ghostly etiquette. Thereupon the apparition vanished ‘in the twinkling of an eye’. So exact were its directions as to the position of the body that M’Pherson ‘went within a yard of the place where it lay upon his first going out’. Although this should have been an absolute guarantee of the ghost’s good faith, M’Pherson did nothing further in the matter. A week later, at the same time and place, ‘the vision again appeared, naked, and minded him to bury the body’. M’Pherson repeated his inquiry as to the identity of the murderer, and the spectre, having apparently laid aside its reticence with its raiment, at once replied, ‘Duncan Clerk and Alexander Macdonald’, and vanished as before. Both conversations were held in Gaelic, with which language the sergeant, when in life, was unfamiliar. Excepting Growar, Daldownie, and Farquharson, M’Pherson had told no one about the vision, nor did he tell the other folks in the sheiling at that time.
Some whisper of the spirit’s purpose must have reached the ear of Duncan Clerk, for that autumn he repeatedly invited M’Pherson to enter his service. Clerk’s circumstances had unaccountably improved of late. He had taken upon lease the farms of Craggan and Gleney, and was married to Elizabeth Downie, the damsel with the remarkable ring. At Martinmas, 1750, M’Pherson, yielding to his solicitations, became a member of his houshold. He noticed that his new master carried a long green silk purse, while his mistress wore a gold ring, ‘with a plate on the outside of it in the form of a seal’, both of which, he heard it reported, had belonged to the murdered man. One day when they were together on the hill, Duncan, ‘spying a young cow’, desired M’Pherson to shoot it. The latter refused to do so, and administered the moral reproof ‘that it was such thoughts as these were in his heart when he murdered Sergeant Davies!’ Duncan at first used ‘angry expressions’, but M’Pherson sticking to his point, he ‘fell calm’, desired him to keep the secret and he would be a brother to him, offered to help him to stock a farm when he took one, and gave him a promissory note for twenty pounds Scots ‘to hold his tongue of what he knew of Sergeant Davies’. M’Pherson afterwards asked Duncan for payment of the note and, failing to obtain it, left his service. That M’Pherson did tackle his master about the murder is corroborated by John Growar, who reports a conversation between them on the subject, when Duncan, to deprecate exposure, pathetically remarked, ‘What can you say of an unfortunate man?’ After Clerk’s arrest, his brother Donald ‘solicited’ M’Pherson to leave the country, ‘that he might not give evidence’, and offered him ‘half of every penny Donald was worth’ if he would bear false witness at the trial.
Whatever may be thought of M’Pherson’s ghost story, it is supported by the testimony of Isobel M’Hardie, in whose sheiling the vision appeared. This lady, who missed the spirit on its first call, deponed that on the night in question she, along with her servants, was sleeping in the hut when she awoke and ‘saw something naked come in at the door in a bowing posture’. From motives of either modesty or fear, ‘she drew the clothes over her head’, and unfortunately saw nothing further. Next morning she mentioned the matter to M’Pherson, who, having decided to comply with the ghost’s request, assured her ‘she might be easy, for that it would not trouble them any more’.
James Macdonald, of Allanquoich, stated that, having heard the rumour of the panels’ guilt, he applied to Clerk’s father-in-law, Alexander Downie, to know if it were true. Downie admitted that it was so, adding, ‘What could his son-in-law do, since it was in his own defence?’ Macdonald had seen upon Elizabeth Downie’s finger after her marriage a gold ring, ‘having a little knap upon it like unto a seal’, which he suspected had belonged to Davies. Peter M’Nab, a neighbour, also saw the gold ring, ‘pretty massy, having a lump upon it pretty large’, and asked Elizabeth how she came by it, to which she answered ‘that she had bought it from one James Lauder, a merchant’. Elspeth Macara, Clerk’s servant, had often seen her mistress wearing a gold ring ‘with a knob upon it of the same metal’.
Lauchlan M’Intosh, who had been a servant of the sergeant’s landlord, deponed that, some two years after the disappearance, he saw in the hand of the prisoner Macdonald a penknife resembling one Davies used to carry, which had certain peculiarities known to the witness. He remarked at the time that it was ‘very like Sergeant Davies’s penknife’, but Macdonald merely observed ‘that there were many sic-likes’.
John Grant, of Altalaat, deponed that the panels lodged in his house on the night of 27 September 1749, that preceding the murder. Next morning, ‘after the sun-rising’, they went out, each with a gun, saying ‘that they intended to go a deer-hunting’. As he left home that morning to attend a fair at Kirkmichael, and did not return for four days, Grant knew no more of their doings. He was corroborated by his son, who saw the panels start on their shooting expedition, going up the water to the Hill of Gleney, a mile and a half from the Hill of Christie. Clerk was wearing a grey plaid. Jean Davidson, of Inverey, stated that, ‘about sun-setting’ on the day Sergeant Davies disappeared, she saw Clerk, ‘having a plaid upon him with a good deal of red in it’, return from the hill to his father’s house in the clachan.
John Brown, ground-officer of Inverey, said that when, by order of the chamberlain, he called out the inhabitants to search for the missing sergeant, Clerk ‘challenged him for troubling the country-people with such an errand, and upon this the witness and the said Duncan had some scolding words’.
Such was the circumstantial evidence adduced in support of the charge; but the Crown was in a position to prove by the direct testimony of an eye-witness that Davies undoubtedly met his death at the prisoners’ hands. Angus Cameron, a Rannoch man, swore that upon the day of the murder he and a companion named Duncan Cameron, who had since died, were hiding, for political reasons, in the heather. They had spent the previous night on Glenbruar Braes, and were then lying concealed in a little hollow upon the side of the Hill of Galcharn on the lookout for one Donald Cameron, ‘who was afterwards hanged’, and some other friends from Lochaber, with whom they expected to foregather that day. They had lain there since ‘two hours after sun-rising’. The time hung heavily enough upon their hands, and they would welcome any passing incident as a relief to the tedium of their vigil. About mid-day they observed Duncan Clerk, whom Angus knew by sight, and another man ‘of a lower stature,’ unknown to him, both with guns, pass the hollow where they lay. Clerk had on a grey plaid ‘with some red in it’. An hour or so before sunset, Angus saw a man in a blue coat with a gun in his hand, whose hat was edged with white or silver lace, about a gun-shot off upon a hill opposite to the place where he lay. Coming up the hill towards the stranger were the two men he had seen in the morning. The three met upon the top of the hill, and after standing some time together Clerk struck the man in blue upon the breast, whereupon the man cried out, clapped his hand to his breast, ‘turned about, and went off’. The other two ‘stood still for a little’, and then each of them raised his gun and fired at him practically at the same moment, though Angus could distinguish the separate reports. ‘Immediately upon them, the man in blue fell.’ The murderers then approached their victim, and the watcher saw them stoop down ‘and handle his body’. While they were so employed, Angus and his companion deemed it prudent to beat a retreat, which they did unobserved, and, without waiting for their companions, left the district.
Not till the following summer did Angus chance to hear of the vanishing of Sergeant Davies, and realise that he had been present at his slaying. Hitherto he had told no one of what he had seen, but he now consulted two Cameron friends as to how, in the circumstances, he ought to act. They advised him to do nothing in the matter, ‘as it might get ill-will to himself and bring trouble on the country’. The two Camerons above mentioned corroborated. When informed by Angus that he had seen Clerk and another shoot a man dressed ‘like a gentleman or an officer’ upon a hill in Braemar, one prudently said he did not want to hear any more on that subject, and the other that it would never do to have such a report raised of the country, and advised Angus ‘to keep the thing secret’. We have already seen how the fear of possible reprisals had sealed the lips of those who long before could have enabled the authorities to bring the murderers to justice.
This concluded the evidence for the prosecution, which we have been particular in setting forth in view of the startling verdict thereon arrived at by the jury. The proof in exculpation consisted of the testimony of but three witnesses. Colonel Forbes of the town of New deponed that as justice of the peace he had been instructed to examine Elizabeth Downie (who, being Clerk’s wife, was incompetent as a witness upon his trial), touching the nature and extent of her jewellery. She informed him that she was married to Clerk in harvest, 1751; that before her marriage she had a copper ring ‘with a round knot of the same metal on it’, which she gave to a glen-herd named Reoch; that since her marriage she had only possessed two rings, a small brass one, which she produced, and a gold one, which she got from her mother. It will be remembered that to other witnesses Elizabeth had given different and contradictory accounts of her rings. Two witnesses who had been at the shearing in Gleney on the day of the murder said they had seen Clerk there alone about noon. Gleney is a mile farther up the water towards the hill than Inverey, and is about the same distance from Glenclunie. Both witnesses were very vague as to the hour, which they fixed with reference to their dinner, admittedly a movable feast.
Reoch, who doubtless had his own reasons for declining to testify concerning the ring with the knob on it, having failed to obey his citation as a witness, was fined one hundred merks, the Court inflicting a similar penalty upon another absenting witness. The jury were then enclosed, and the Court adjourned at four o’clock in the morning of 12 June, having sat for twenty-one consecutive hours. At six o’clock the same afternoon, the jury, ‘all in one voice’, found the panels not guilty of the crime libelled! The Court then ‘assoilized’ Clerk and Macdonald, and dismissed them from the bar.
This amazing conclusion was, one would think, more likely to offend the sergeant’s ‘perturbed spirit’ than the disrespect previously shown to his bones; but whether or not he resented the verdict and troubled in consequence the peace of the jury, we have no means of knowing. It is highly probable that he had already, by his well-meant intervention, done much to frustrate the ends of justice and bring about his murderers’ acquittal; for the supernatural element thus introduced was seized upon by the defence to cast ridicule on the Crown case, and so obscure the very material evidence of the panels’ guilt. Robert M’Intosh, one of their counsel, told Scott that M’Pherson, in cross-examination, swore that the phantom spoke ‘as good Gaelic as ever he heard in Lochaber’. ‘Pretty well,’ said M’Intosh, ‘for the ghost of an English sergeant!’ But this fact was surely less marvellous than the appearance of the spectre at all; in such matters c’est le premier pas qui coûte.
It was Sir Walter’s opinion that M’Pherson arrived at his knowledge of the murder ‘by ordinary means’, and invented the machinery of the vision to obviate the odium attaching to informers. Such also was the view of Hill Burton, who thought Farquharson a party to the fraud.
But this theory ignores the testimony of Isobel M’Hardie, and, as we shall find from contemporary evidence, neither of these men did in fact give the information upon which the prisoners were charged. Unless they had themselves seen the deed done or heard Angus Cameron’s account of its doing, they knew no more than any of their neighbours, and it does not appear that Angus had then spoken. They certainly displayed little zeal to discover the authors of the crime, for M’Pherson, despite the revelation, took service with the murderer and remained a year in his employment, while Farquharson did nothing whatever in the matter.
The reader will recollect that upon the spirit’s first appearance M’Pherson took it for ‘a real living man, a brother of Donald Farquharson’. It would be interesting to learn more of this person; where, for instance, he was that night, what were his relations with the accused, and whether he had not himself discovered the remains. For it is much more likely that someone, either with a knowledge of the facts or from a desire to fix public suspicion upon Clerk and Macdonald, the reputed murderers, assumed the spectral rôle and successfully imposed upon the credulous shepherd lad, than that the latter would, in the circumstances, invent and swear to so ridiculous a tale. Mrs M’Hardie, on the second visitation, saw a naked figure enter the low door of the hut ‘in a bowing posture’, which is more suggestive of a physical than a psychic intruder. Whatever the Lord Advocate may have thought of M’Pherson’s good faith, it is difficult to see how he could ever have expected the jury to swallow the ghost, but it may be (for the records of these old trials are confusing) that the spirit was judicially evoked by Lockhart in cross-examination. Probably, had M’Pherson and Farquharson confined themselves to the bones and left the murderers to be named by Cameron, who saw and knew them, a conviction would have been secured, for M’Intosh admitted to Scott that both the counsel and agent of the accused were convinced of their guilt.
It has been conjectured, in explanation of the inexplicable verdict, that the jury were Jacobites, and as such would be indisposed to deal very strictly in so trifling a matter as the removal of a superfluous English sergeant, but the fact that they were all Edinburgh tradesmen hardly encourages the supposition. ‘The whole affair,’ writes Mr Andrew Lang, ‘is thoroughly characteristic of the Highlanders and of Scottish jurisprudence after Culloden, while the verdict of “Not Guilty” (when “Not Proven” would have been stretching a point) is evidence to the “common sense” of the eighteenth century.’
A curious incident, unnoticed by Scott and Hill Burton, which arose out of the trial, throws some light on the former proceedings, and is in itself sufficiently quaint to be recorded. On Friday, 14 June, two days after the accuseds’ acquittal, Alexander Lockhart, their counsel, presented in his own behalf to the Lords of Justiciary a petition and complaint against James Small, late ensign of the Earl of Loudon’s regiment, and then factor upon the forfeited estate of Strowan, whose name, it will be recalled, had been mentioned during the trial. According to the petition, Small was ‘the person upon whose instigation’ Clerk and Macdonald had been prosecuted. He had been ‘extremely industrious in searching out witnesses against them’, and it was alleged that not only did he examine and take declarations from the witnesses in private, but after they were cited to give evidence in Court he ‘dealt with’ some of them not to appear, and endeavoured to intimidate others who did not say ‘such strong things’ as he expected. These matters, said Lockhart, he had thought it his duty to bring to the notice of the Court and jury at the trial, which he had accordingly done. Small, resenting his observations, had, armed with a sword and attended by two men ‘of very suspicious appearances’, lain in wait for Lockhart in the Parliament Close that Friday morning. Upon the arrival of the advocate at his usual hour for attending court, Small rushed upon him, ‘made a claught at the petitioner’s nose’, and raising his stick, ‘which he shaked over the petitioner’s head’, made the somewhat superfluous remark that his action was intended as a public affront, which if Lockhart proposed to resent, ‘he would be at no loss to find out where the said James Small lived’. The petitioner pointed out that no words of his could adequately represent ‘the atrociousness of the injury’ to the dignity of the Senators of the College of Justice and the Faculty of Advocates in general and to himself in particular resulting from such scandalous behaviour, and that in these circumstances he was induced to seek redress by summary complaint to the Court ‘rather than in the way and manner suggested by James Small’. The Court granted warrant for the apprehension of the militant factor, and ordered his committal to the Tolbooth till the next sederunt [sitting].
Answers to Lockhart’s petition were lodged by Small, who stated that he did not receive any information that Clerk and Macdonald were reputed the murderers until he was instructed to inquire into the case and, if possible, discover the criminals. In December 1753 he assisted the Sheriff-Substitute in making such an inquiry, when it appeared from the precognitions then taken that the accused were the guilty parties, and they were charged accordingly. Had he been called as a witness upon their trial, the objection might validly have been made ‘that he had given partial counsel in the cause’, but though his name was included in the Crown list, the point did not arise. Mr Lockhart, however, in his address, had gratuitously attacked him, with a view to ‘blacken the petitioner in the most public manner and to fix upon him for ever the basest and worst of characters’. He (Small) had been actuated throughout solely by his duty as a good subject and his desire to see justice done, and the strictures of Lockhart upon his conduct, which were well and widely known, so ‘grieved, vexed, and confounded him by turns’ that he was provoked to treat his traducer in the manner set forth in the petition. He protested that in so doing he had intended no disrespect either to the Court or to the Faculty, and though his behaviour ‘had not perhaps been altogether legal’, he hoped the Court would consider his ‘great and just provocation’.
Next day Small was brought to the bar of the High Court of Justiciary. The proceedings took place behind closed doors, and the parties were heard by their procurators. The Lords found that the prisoner had been guilty ‘of a high contempt of this Court, and of a high injury to the Faculty of Advocates and to the complainer, Mr Alexander Lockhart’, and approved of the means taken by the complainer to obtain redress. They ordained Small to be imprisoned in the Tolbooth till Wednesday the 19th, when he must apologise in Court to the injured parties, and find caution to keep the peace for one year, under a penalty of fifty pounds sterling. Lockhart was ordered ‘not to resent the injury done to him in any other manner’.
On 19 June, Small again appeared in custody before the Lords, gave in his bond of caution, and having publicly begged the pardon of the Court, of the Dean and Faculty of Advocates, and of Mr Alexander Lockhart, was thereafter dismissed from the bar.
Thus was vindicated the outraged majesty of the law, which, if it had signally failed to avenge the slaying of the sergeant, despite the co-operation of his unquiet spirit, could at least see justice done to an advocate’s nose.