Innocent or guilty, Fassifern was ‘uprooted, which is what we ought chiefly to have in view,’ to quote Colonel Crawfurd. The gross oppressiveness of the proceedings, the unexplained delays, the series of charges ‘dropped out,’ the bullying and cajoling of prisoners under examination, the unconcealed political motive, and the rewards of farms which, we learn, were given to the informers, are all characteristic of justice in Scotland after Culloden. The improbability of the charge, against ‘a sensible careful man,’ must be set against the mystery of the disappearance of the papers. In that disappearance the ‘uprooters’ had, of course, no less interest than the accused. After nearly two years sub squalore carceris, Fassifern was condemned for suborning the forgery of papers not in evidence. In fact, after all the schemes for his uprooting, he was (in cricketing phrase) ‘given out’—several of the Fifteen dissenting—‘for obstructing the field.’ What is the legal name for this offence?
This affair had lingered on from May 1753 to January 1755 before the Fifteen, the Lords of Session. It is probable that a jury, disgusted by the military methods of extorting evidence, would have made short work of the case, and acquitted Fassifern. Of this temper in a jury we have a curious contemporary instance. Sir Walter Scott printed for the Bannatyne Club the trial, in June 1754, of Duncan Terig, or Clerk, and Alexander Bain Macdonald, for the murder of Sergeant Davies, of Guise’s regiment, in 1749, on Christie Hill, in Braemar. There was really no doubt of the guilt of the accused. Scott, who knew one of their counsel, says that they themselves were convinced of the fact. But two Highland witnesses told a story of the murdered sergeant’s ghost, which appeared to them in 1750. By making fun of this apparition, the advocates for the defence, Scott says, secured an acquittal in face of the evidence.
Probably the jury had another motive—namely, indignation at military extortion of evidence. A certain Ensign Small has been mentioned. He seems to have been an astute and energetic man. We find him everywhere in the Cumberland Papers. He it was who, soon after Culloden, arrested the Barisdales in a cave, and took their swords. In 1749 he arrested Barisdale on his return from France. He pursued Lochgarry (after Dr. Cameron’s arrest) into England, and searched the vessels leaving the ports of the East Coast. We find him in the Islands, mixing with the people in disguise, and reporting their murmurs and their curses on the Chiefs and the Prince. In Knoydart he notes that the commons have lost their taste for a rising. Small was rewarded by a factorship on the forfeited estates of Cluny and Robertson of Strowan, and exerted himself to procure the condemnation of the murderers of Sergeant Davies.
Now on June 14, 1754, Mr. Alexander Lockhart, one of the counsel for the accused, laid a complaint against Small before the Court of Session. By Small’s instigation, Lockhart said, Terig and Macdonald were charged with the crime. Small had sought out and privately examined witnesses, ‘giving them an obligation to stand between them and any hazard they might incur thereby’—such protection was very necessary. ‘He endeavoured to intimidate such as would not say such strong things as he wished, or expected.’ Lockhart asks ‘how far these practices’ (the very practices employed to ‘uproot’ Fassifern) ‘should be tolerated?’ Moreover, Small had been swaggering with a sword, had stopped Lockhart in the Parliament Close, had insulted, challenged him, and shaken a stick over his head: ‘which, if he meant to resent, he would be at no loss to find out where the said James Small lived.’
Small replied that, after doing his best to bring Clerk and Macdonald to trial, his character had been blackened by Lockhart before the jury, as having pursued the accused for private reasons of malice. As an officer and a gentleman, believing in his heart that the accused were guilty (which they undoubtedly were), he had resented the license of Lockhart.
Small was found guilty of contempt, bound over to keep the peace, and obliged to apologise.
Meanwhile General Bland, Governor of Edinburgh Castle, justified Ensign Small in a letter to the English Ministry. Lockhart, the General denounces as a ‘famous foul-mouthed Jacobite advocate.’ He had ‘concerted’ his abuse of the Ensign in court ‘with his Jacobite fraternity.’ The Ensign had very properly ‘taken him by the nose, and called him a scoundrell. He took it quietly.’ If Lockhart is not warned, his bones will be broken. The General has used his influence with the judges to secure easy terms for the loyal Ensign.[103]
The docile judges, ‘the Fifteen,’ had accepted evidence extorted by military violence in what was really a political case, that of Fassifern. But it is clear that the jury, in the case of the Sergeant’s murder, had resented such intimidation, as denounced by Lockhart, and this resentment, rather than the ghost story, probably procured the acquittal of two undeniable robbers and murderers, Terig, or Clerk, and Macdonald.[104]
Another curious instance of the methods of Government occurs in the case of James Mohr. It was generally suspected that Government connived at his escape from Edinburgh Castle in the disguise of a cobbler (November 16, 1752). The Government, however, broke the lieutenants of the guard, deprived the sergeant of his stripes, and whipped the porter.
But we find a remarkable letter of General Churchill’s,[105] saying that ‘James Mohr had been taken up on the abduction charge,’ and was extremely anxious to make disclosures. That his recent behaviour cannot allow him to be believed unless he is allowed to suppose ‘his life is at stake.’ That ‘should your Grace think proper to employ him, the great difficulty is to bring about his liberation without raising a suspicion of the Cause, nor can it be so effectually done as by giveing private orders to a Party of the Troops employed in escorting him to favour his escape.’