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(Signed) ALEX. HOME, A.D.

PURSUERS.

WILLIAM GRANT, of Prestongrange, Esq., His Majesties Advocate.

Mr PATRICK HALDANE, and
Mr ALEXANDER HOME,
both His Majesties Solicitors.

Mr ROBERT DUNDAS, Advocate.

PROCURATORS in defence.

Mr ALEXANDER LOCKHART,
Mr ROBERT M’INTOSH,
Advocates.

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, etc., 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.

LORD ADVOCATE, etc., answered, that as the defence resolved altogether into a denial of the libel, it was sufficient for him to say, that according to the information he had received, such facts and circumstances would come out upon proof as would be sufficient to convince the Jury of the panels’ guilt: That it was not meant that the circumstances libelled were sufficient without others to connect with them, the only intention of libelling upon these circumstances being to show the panels what written evidence was to be adduced against them: That he does not oppose the panels being allowed a proof of every fact and circumstance that may tend to their exculpation: That as to the delay complained of, the prosecutor can for himself say, that it is owing to no intention of his to oppress the panels; he had early information of the murder charged upon, and was very willing and desirous it might come to light. The panels were at last accused and committed for it, by the general voice of the country; and though at first the proof against them did not appear so pregnant, yet it was hoped, and was the general expectation of all in that part, that the murder would be brought to light. This was the reason of continuing the panels in confinement. And now that the prosecutor was ready to go on to trial, he hoped their Lordships would find the indictment relevant, and remit the panels to the knowledge of an assize, allowing them at the same time a proof of every circumstance that may appear necessary for their exculpation.