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.’