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.
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