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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 TerigaliasClerk, 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 Glencрonie, in the parish of – and sheriffdom aforesaid. As also that same day, both of them, the said Duncan Terig alias Clerk, and Alexander Bain Macdonald, went from the house of John Grant, in Altalaat, armed with guns and muskets, pretending when they went from thence that they were going to shoot or hunt deer upon the said hill, to which place both of them having accordingly gone, and there meeting with the said Arthur Davies, each, or one or other of them, did, on the said twenty-eighth of September, 1749, or upon one or other of the days of that month, or of the months aforesaid, cruelly and barbarously fire a loaded gun or guns at him, which were in their hands, whereby he was mortally wounded, and of which wounds he died on the said hill, immediately or soon thereafter, where his dead body remained concealed for sometime, and was afterwards found, together with a hat, having a silver button on it, with the letters A. R. D. marked on it. Likeas, soon after the said Arthur Davies was murdered, each of the said two panels, being persons of bad fame and character, and who were habite and repute thieves, were, by the general voice of the country, reputed to have perpetrated the said murder, and to have robbed and taken from him a silver watch, two gold rings and a purse of gold, which it was known or believed in the country he generally wore or carried about him, which said opinion or belief of the neighbourhood, that both of them had been guilty of the said murder and robbery, has been since that time rendered the more credible, particularly with respect to him, the said Duncan Clerk, in so far as, although he was not possesst of any visible funds or effects which could enable him to stock a farm before the period of the said murder, yet soon thereafter he took and obtained a lease from Lord Bracco, of a farm called the Craggan, for which he was bound to pay thirty pounds Scots of yearly rent; as also thereafter he obtained a lease of the farm of Gleney, from – Farquharson of Inverey, for which at present he was bound to pay a yearly rent, or tack duty, of one hundred and five merks Scots, as appears from the judicial declaration of him, the said Duncan Clerk, to be hereafter more particularly taken notice of; and both of the said panels having been apprehended in the year one thousand seven hundred and fifty-three, for being guilty of the foresaid murder, and upon the twenty-third day of January last, one thousand seven hundred and fifty-four years, brought into the presence of the Right Honourable Alexander Fraser of Strichen and Hugh Dalrymple of Drummore, two of the Lords Commissioners of Justiciary each of them gave different and contradictory accounts of themselves, in so far as the said Duncan Clerk did then acknowledge, in presence of the said Judges, that he was on the hill of Gleneye, alongst with the said Alexander Bain Macdonald, both armed as above set forth, on the day the said Arthur Davies was amissing; that the said Alexander Macdonald fired a shot at some deer, but that about ten o'clock the said Duncan Clerk parted with him on the hill, and came back to his father's house, to which likewise the said Alexander Macdonald came the same evening, where he lodged or stayed all night; as also a paper containing a list of debts, beginning with the words, "I, Duncan Clerk, in Gleneye, was put in Perth Jail," and ending, "Angus Macdonald, 12 sh.," now marked on the back with the name and sirname of the said Lord Drummore, being exhibited to him the said Duncan Clerk, he acknowledged the same to be his handwriting, and that it contains a list of debts due to him when he was imprisoned, as is at more length to be seen in his said confession or declaration, signed by him and the said Lord Drummore. Likeas he the said Alexander Bain Macdonald did, upon the twenty-third day of January last, one thousand seven hundred and fifty-four years, in presence of the said Judges, acknowledge and declare, that one year, while he was Lord Bracco's forrester, he went with the said Duncan Clerk to the Hill of Gleneye, to search for deer, where he fired at them, but that about nine or ten o'clock in the forenoon, Duncan Clerk went home to his father's house, and thereafter the said Alexander Macdonald returned to his own house in Allanquoich, where he staid all that night, not seeing the said Duncan Clerk more that day, as is at more length to be seen in his said confession or declaration, signed by the said Lord Drummore, he having declared he could not write; both which confessions or declarations, with the list of debts above specified, said to be due to him, the said Duncan Clerk, as also, the hat mentioned to be found in summer one thousand seven hundred and fifty in the hill of Gleneye, are all now lodged in the hands of the Clerk to the Court of Justiciary, before which they are to be tried, that they may see the same: At least time and place aforesaid, the said Arthur Davies was murdered or bereaved of his life, and they, and each of them, or one or other of them, are guilty, actor or art and part of the said murder, aggravated as above set furth; all which, or part thereof, being found proven by the verdict of an Assize, before the Lords Justice General, Justice Clerk, and Commissioners of Justiciary, he, the said Duncan Terig alias Clerk, and Alexander Bain Macdonald, ought to be punished with the pains of law, to the terror of others to commit the like in time coming.

The Libel being openly read in Court, and the panels interrogate thereupon, they both denied the same, and referred their defences to their Lawiers.

Lockhart, &c., for the panel, denying the libel, or any guilt or accession of the panels to the murder charged, pled that the panels were persons of good fame and reputation, and that as no cause of malice in them against Serjeant Davies was alleged, so the circumstances founded on in the indictment, though they were true, were not in any sort sufficient to infer a proof of the panels' guilt. And further, the panels would be able to prove a true and warrantable cause for going to the hill libelled on in arms, and that they went openly and avowedly; and that in the circumstances they were in, it was impossible they could have any wicked design against, or expect to have an opportunity of executing such a design against Serjeant Davies: That they were not so much as suspected of murdering him at the time of his being amissing, or for several months thereafter, when many different accounts were given, and suspicions raised and entertained concerning that matter. They also objected and alleged for the panels, that as murder was the only crime charged against them in this indictment, no vague or general allegation of robbery, or other crime or accusation against their characters, could be allowed to go to the knowledge of an assize, though they were noways apprehensive of the consequences of it, other than from the false and malicious reports, raised and propagated against them, since their commitment for the foresaid crime; and the panels had great reason to complain of the undue delays in bringing them to trial for this offence: In so far as, after they were committed for the same in September last, and had taken out letters of intimation, and upon expiry of the days, had also obtained letters of liberation, they were again committed upon a new warrant for alleged theft, upon which new commitment they raised new letters of intimation, and when the sixty days were just expiring, they were served with an indictment for the theft, which was fixed to within a few days of the expiry of the forty days allowed by law, and then allowed to drop; and after all, there was again a new warrant of commitment obtained against them for wearing the Highland dress; and last of all they were served with this indictment; all which steps plainly show the oppression they have met with, which the panels do by no means lay to the charge of the prosecutor, but are willing to allow the same to be owing to the malicious information of some private informer, which they hope to be able to make appear if they were allowed an exculpatory proof, and that very undue means had been used both before and since the citation of the witnesses to influence them to give evidence against the panels in this matter; and the panels, amongst many other things for their exculpation, would be able to prove, that after they returned from the hill upon the day upon which the Serjeant is said to have been murdered, he, the Serjeant, was seen with his party in that hill. So that it is impossible the panels could be the perpetrators of the murder.