TRIAL
OF
DUNCAN TERIG ALIAS CLERK,
AND ALEXANDER BANE MACDONALD,
FOR
THE MURDER
OF
ARTHUR DAVIS,
SERGEANT IN GENERAL GUISE'S REGIMENT OF FOOT.
JUNE,
A.D. M.DCC.LIV.
EDINBURGH:
TO
THE MEMBERS
OF
THE BANNATYNE CLUB,
THIS COPY OF A TRIAL,
INVOLVING A CURIOUS POINT OF EVIDENCE,
IS PRESENTED
BY
WALTER SCOTT.
FEBRUARY, M.DCCC.XXXI.
THE BANNATYNE CLUB.
M.DCCC.XXXI.
SIR WALTER SCOTT, BART.
[PRESIDENT.]
THE EARL OF ABERDEEN, K.T.
RIGHT HON. WILLIAM ADAM,
LORD CHIEF COMMISSIONER OF THE JURY COURT.
JAMES BALLANTYNE, ESQ.
SIR WILLIAM MACLEOD BANNATYNE.
LORD BELHAVEN AND STENTON.
GEORGE JOSEPH BELL, ESQ.
ROBERT BELL, ESQ.
WILLIAM BELL, ESQ.
JOHN BORTHWICK, ESQ.
WILLIAM BLAIR, ESQ.
THE REV. PHILIP BLISS, D.C.L.
GEORGE BRODIE, ESQ.
CHARLES DASHWOOD BRUCE, ESQ.
THE DUKE OF BUCCLEUCH AND QUEENSBERRY.
JOHN CALEY, ESQ.
JAMES CAMPBELL, ESQ.
HON. JOHN CLERK, LORD ELDIN.
WILLIAM CLERK, ESQ.
HENRY COCKBURN, ESQ.
DAVID CONSTABLE, ESQ.
ANDREW COVENTRY, ESQ.
JAMES T. GIBSON CRAIG, ESQ.
WILLIAM GIBSON CRAIG, ESQ.
HON. GEORGE CRANSTOUN, LORD COREHOUSE.
THE EARL OF DALHOUSIE.
JAMES DENNISTOUN, ESQ.
ROBERT DUNDAS, ESQ.
RIGHT HON. W. DUNDAS, LORD CLERK REGISTER.
CHARLES FERGUSSON, ESQ.
ROBERT FERGUSON, ESQ.
LIEUT.-GENERAL SIR RONALD C. FERGUSON.
THE COUNT DE FLAHAULT.
HON. JOHN FULLERTON, LORD FULLERTON.
LORD GLENORCHY.
THE DUKE OF GORDON.
WILLIAM GOTT, ESQ.
SIR JAMES R. G. GRAHAM, BART.
ROBERT GRAHAM, ESQ.
LORD GRAY.
RIGHT HON. THOMAS GRENVILLE.
THE EARL OF HADDINGTON.
THE DUKE OF HAMILTON AND BRANDON.
E. W. A. DRUMMOND HAY, ESQ.
JAMES M. HOG, ESQ.
JOHN HOPE, ESQ.
COSMO INNES, ESQ.
DAVID IRVING, LL.D.
JAMES IVORY, ESQ.
THE REV. JOHN JAMIESON, D.D.
ROBERT JAMESON, ESQ.
SIR HENRY JARDINE.
FRANCIS JEFFREY, ESQ. LORD ADVOCATE.
JAMES KEAY, ESQ.
THOMAS FRANCIS KENNEDY, ESQ.
JOHN G. KINNEAR, ESQ. [TREASURER.]
THE EARL OF KINNOULL.
DAVID LAING, ESQ. [SECRETARY.]
THE EARL OF LAUDERDALE, K.T.
THE REV. JOHN LEE, D.D.
THE MARQUIS OF LOTHIAN.
HON. J. H. MACKENZIE, LORD MACKENZIE.
JAMES MACKENZIE, ESQ.
JAMES MAIDMENT, ESQ.
THOMAS MAITLAND, ESQ.
THE HON. WILLIAM MAULE.
GILBERT LAING MEASON, ESQ.
VISCOUNT MELVILLE, K.T.
WILLIAM HENRY MILLER, ESQ.
THE EARL OF MINTO.
HON. SIR J. W. MONCREIFF, LORD MONCREIFF.
JOHN ARCHIBALD MURRAY, ESQ.
WILLIAM MURRAY, ESQ.
JAMES NAIRNE, ESQ.
MACVEY NAPIER, ESQ.
FRANCIS PALGRAVE, ESQ.
HENRY PETRIE, ESQ.
ROBERT PITCAIRN, ESQ.
ALEXANDER PRINGLE, ESQ.
JOHN RICHARDSON, ESQ.
THE EARL OF ROSSLYN.
ANDREW RUTHERFURD, ESQ.
THE EARL OF SELKIRK.
RIGHT HON. SIR SAMUEL SHEPHERD.
ANDREW SKENE, ESQ.
JAMES SKENE, ESQ.
GEORGE SMYTHE, ESQ.
EARL SPENCER, K.G.
JOHN SPOTTISWOODE, ESQ.
THE MARQUIS OF STAFFORD, K.G.
MAJOR-GENERAL STRATON.
SIR JOHN ARCHIBALD STEWART, BART.
THE HON. CHARLES FRANCIS STUART.
ALEXANDER THOMSON, ESQ.
THOMAS THOMSON, ESQ. [VICE-PRESIDENT.]
W. C. TREVELYAN, ESQ.
PATRICK FRASER TYTLER, ESQ.
ADAM URQUHART, ESQ.
RIGHT HON. SIR GEORGE WARRENDER BART.
THE VENERABLE ARCHDEACON WRANGHAM.
TO THE
RIGHT HONOURABLE
SIR SAMUEL SHEPHERD,
THIS CURIOUS TRACT,
RESPECTING PERHAPS THE ONLY SUBJECT OF LEGAL ENQUIRY
WHICH HAS ESCAPED BEING INVESTIGATED BY HIS SKILL,
AND ILLUSTRATED BY HIS GENIUS,
IS RESPECTFULLY INSCRIBED,
BY HIS AFFECTIONATE FRIEND, AND MUCH
OBLIGED HUMBLE SERVANT,
WALTER SCOTT.
15th Feb., 1831.
INTRODUCTION.
Although the giving information concerning the unfair manner in which they were dismissed from life, is popularly alleged to have been a frequent reason why departed spirits revisit the nether world, it is yet only in a play of the witty comedian, Foote, that the reader will find their appearance become the subject of formal and very ingenious pleadings. In his farce called the Orators, the celebrated Cocklane Ghost is indicted by the name of Fanny the Phantom, for that, contrary to the King's peace, it did annoy, assault, and terrify divers persons residing in Cocklane and elsewhere, in the county of Middlesex. The senior counsel objects to his client pleading to the indictment, unless she is tried by her equals in rank, and therefore he moves the indictment be quashed, unless a jury of ghosts be first had and obtained. To this it is replied, that although Fanny the Phantom had originally a right to a jury of ghosts, yet in taking upon her to knock, to flutter, and to scratch, she did, by condescending to operations proper to humanity, wave her privileges as a ghost, and must consent to be tried in the ordinary manner. It occurs to the Justice who tries the case, that there will be difficulty in impanelling a jury of ghosts, and he doubts how twelve spirits who have no body at all, can be said to take a corporal oath, as required by law, unless, indeed, as in the case of the Peerage, the prisoner may be tried upon her honour. At length the counsel for the prosecution furnishes the list of ghosts for the selection of the jury, being the most celebrated apparitions of modern times, namely, Sir George Villiers, the evil genius of Brutus, the Ghost of Banquo, and the phantom of Mrs Veal. The counsel for the prosecution objects to a woman, and the court dissolves, under the facetious order, that if the Phantom should plead pregnancy, Mrs Veal will be admitted upon the jury of matrons.
This admirable foolery is carried by the English Aristophanes nearly as far as it will go; yet it is very contrary to the belief of those, who conceive that injured spirits are often the means of procuring redress for wrongs committed upon their mortal frames, to find how seldom in any country an allusion hath been made to such evidence in a court of justice, although, according to their belief, such instances must have frequently occurred. One or two cases of such apparition-evidence our researches have detected.
It is a popular story, that an evidence for the Crown began to tell the substance of an alleged conversation with the ghost of a murdered man, in which he laid his death to the accused person at the bar. "Stop," said the judge, with becoming gravity, "this will not do; the evidence of the ghost is excellent, none can speak with a clearer cause of knowledge to any thing which befell him during life. But he must be sworn in usual form. Call the ghost in open court, and if he appears, the jury and I will give all weight to his evidence; but in case he does not come forward, he cannot be heard, as now proposed, through the medium of a third party." It will readily be conceived that the ghost failed to appear, and the accusation was dismissed.
In the French Causes Célèbres et Interessantes, is one entitled, Le Spectre, ou l'Illusion Réprouvé, reported by Guyot de Pittaval [vol. xii. edition La Haye, 1749], in which a countryman prosecutes a tradesman named Auguier for about twenty thousand francs, said to have been lent to the tradesman. It was pretended, that the loan was to account of the proceeds of a treasure which Mirabel, the peasant, had discovered by means of a ghost or spirit, and had transferred to the said Auguier, that he might convert it into cash for him. The case had some resemblance to that of Fanny the Phantom. The defendant urged the impossibility of the original discovery of the treasure by the spirit to the prosecutor; but the defence was repelled by the influence of the principal judge, and on a charge so ridiculous, Auguier narrowly escaped the torture. At length, though with hesitation, the prosecutor was nonsuited, upon the ground, that if his own story was true, the treasure, by the ancient laws of France, belonged to the Crown. So that the ghost-seer, though he had nearly occasioned the defendant to be put to the question, profited in the end nothing by his motion.