Tarlton Law Library
Jamail Center for Legal Research

     "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 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 Forty-five 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 main-
tained 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 regi-
ment, 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 sports-
man, 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 inhospit-

able 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 diver-
sion." 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, mis-
placed, 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, 28th 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 after-
noon 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 rendez-
vous. 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
amunition 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 finally 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 after-
wards said, "It was generally known by all the neighbour-
hood 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 tempta-
tion 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 (shep-
herd'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
assunder," but the "mouse-coloured" hairof 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 inquired,
"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, actu-
ally name the murderers. To this we shall return later.
     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 where[sic] 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 23rd January 1754 the prisoners, being judicially exam-
ined before Lords Strichen and Drummore, two of the Lords
Commissioners of Justiciary, each gave different and contradic-
tory 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 10th 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 pannels that they were persons of good fame, and had no
malice against the sergeant; that they had a true and warrant-
able 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 mali-
cious 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 pannels' guilt. The delay complained of
was owing to no intention of his to oppress the pannels--"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 (11th 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 in 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 dis-
covered, 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, pre-
sumably, 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 unfamilar. 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 Martin-
mas, 1750, M'Pherson, yielding to his solicitations, became
a member of his household. 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 either of 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, Allanquoich, stated that, having heard
the rumour of the pannels' 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 neigh-
bour, 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, Altalaat, deponed that the pannels lodged in
his house on the night of 27th 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 pannels 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, 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, 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. "Immedi-
ately 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 gentle-
man 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 thus 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 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 moveable 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 wit-
ness. The jury were then enclosed, and the Court adjourned
at four o'clock in the morning of 12th June, having sat for
twenty-one consecutive hours. At six o'clock the same after-
noon the jury, "all in one voice," found the pannels 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 now 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 pannels'
guilt. Robert M'Intosh, one of their counsel, told Scott that
M'Pherson, in cross-examination, swore 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 know-
ledge 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 appear-

ance 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 some-
one, 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 role 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 but "in a bowing posture," which is
more suggestive of a physical than a psychic intruder. What-
ever 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. Lang, "is
throughly 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, 14th 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. Accord-
ing to the petition, Small was "the person upon whose instiga-
tion" 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 appear-
ances," 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 circum-
stances 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 appre-
hension of the militant factor, and ordered his committal to the
Tolbooth till the next sederunt.
     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 with 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 19th 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.