Cock Lane and Common-Sense

GHOSTS BEFORE THE LAW

Sir Walter Scott on rarity of ghostly evidence. His pamphlet for the Bannatyne Club. His other examples. Case of Mirabel. The spectre, the treasure, the deposit repudiated. Trials of Auguier and Mirabel. The case of Clenche’s murder. The murder of Sergeant Davies. Acquittal of the prisoners. An example from Aubrey. The murder of Anne Walker. The case of Mr. Booty. An example from Maryland, the story of Briggs and Harris. The Valogne phantasm. Trials in the matter of haunted houses. Cases from Le Loyer. Modern instances of haunted houses before the law. Unsatisfactory results of legal investigations.

‘What I do not know is not knowledge,’ Sir Walter Scott might have said, with regard to bogles and bar-ghaists. His collection at Abbotsford of such works as the Ephesian converts burned, is extensive and peculiar, while his memory was rich in tradition and legend. But as his Major Bellenden sings,

Was never wight so starkly made,

But time and years will overthrow.

When Sir Walter in 1831, wrote a brief essay on ghosts before the law, his memory was no longer the extraordinary engine, wax to receive, and marble to retain, that it had been. It is an example of his dauntless energy that, even in 1831, he was not only toiling at novels, and histories, and reviews, to wipe out his debts, but that, as a pure labour of love, he edited, for the Bannatyne Club, ‘The 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, 1754’.

The trial, as Sir Walter says, in his dedication to the Bannatyne Club, ‘involves a curious point of evidence,’ a piece of ‘spectral evidence’ as Cotton Mather calls it. In another dedication (for there are two) Scott addresses Sir Samuel Shepherd, remarking that the tract deals with ‘perhaps the only subject of legal inquiry which has escaped being investigated by his skill, and illustrated by his genius’. That point is the amount of credit due to the evidence of a ghost. In his preface Sir Walter cites the familiar objection of a learned judge that ‘the ghost must be sworn in usual form, but in case he does not come forward, he cannot be heard, as now proposed, through the medium’ (medium indeed!) ‘of a third party’. It seems to be a rule of evidence that what a dead man said may be received, on the report of the person with whom he communicated. A ghost is a dead man, and yet he is deprived, according to the learned judge’s ruling, of his privilege. Scott does not cite the similar legend in Hibernian Tales, the chap book quoted by Thackeray in his Irish Sketch-book. In that affair, when the judge asked the ghost to give his own evidence: ‘Instantly there came a dreadful rumbling noise into the court – “Here am I that was murdered by the prisoner at the bar”’. The Hibernian Tales are of no legal authority, nor can we give chapter and verse for another well-known anecdote. A prisoner on a charge of murder was about to escape, when the court observed him looking suspiciously over his shoulder. ‘Is there no one present,’ the learned judge asked in general, ‘who can give better testimony?’ ‘My lord,’ exclaimed the prisoner, ‘that wound he shows in his chest is twice as big as the one I gave him.’ In this anecdote, however, the prisoner was clearly suffering from a hallucination, as the judge detected, and we do not propose to consider cases in which phantasms bred of remorse drove a guilty man to make confession.

To return to Scott; he remarks that believers in ghosts must be surprised ‘to find how seldom in any country an allusion hath been made to such evidence in a court of justice’. Scott himself has only ‘detected one or two cases of such apparition evidence,’ which he gives. Now it is certain, as we shall see, that he must have been acquainted with several other examples, which did not recur to his memory: the memory of 1831 was no longer that of better years. Again, there were instances of which he had probably never possessed any knowledge, while others have occurred since his death. We shall first consider the cases of spectral evidence (evidence that is of a dead man’s ghost, not of a mere wraith) recorded by Sir Walter, and deal later with those beyond his memory or knowledge. 159 Sir Walter’s first instance is from Causes Célèbres, (vol. xii., La Haye, 1749, Amsterdam, 1775, p. 247). Unluckily the narrator, in this collection, is an esprit fort, and is assiduous in attempts to display his wit. We have not a plain unvarnished tale, but something more like a facetious leading article based on a trial

Honoré Mirabel was a labouring lad, under age, near Marseilles. His story was that, in May (year not given), about eleven at night, he was lying under an almond tree, near the farm of a lady named Gay. In the moonlight he saw a man at an upper window of a building distant five or six paces, the house belonged to a Madame Placasse. Mirabel asked the person what he was doing there; got no answer, entered, and could see nobody. Rather alarmed he went to a well, drew some water, drank, and then heard a weak voice, bidding him dig there for treasure, and asking that masses might be said for the soul of the informant. A stone then fell on a certain spot; stone-throwing is a favourite exercise with ghosts everywhere.

With another labourer, one Bernard, Mirabel dug, found a packet of dirty linen, and, fearing that it might hold the infection of plague, dipped it in wine, for lack of vinegar. The parcel contained more than a thousand Portuguese gold coins. Bernard and his mistress were present at the opening of the parcel, but Mirabel managed to conceal from them the place where he hid it, not a very likely story. He was grateful enough to pay for the desired masses, and he had himself bled four times to relieve his agitation. Mirabel now consulted a merchant in Marseilles, one Auguier, who advised him to keep his old coins a mystery, as to put them into circulation would lead to inquiry and inconvenience. He lent Mirabel some ready money, and, finally, induced Mirabel to entrust the Portuguese hoard to his care. The money was in two bags, one fastened with gold-coloured ribbon, the other with linen thread. Auguier gave a receipt, and now we get a date, Marseilles, September 27, 1726. Later Auguier (it seems) tried to murder Mirabel, and refused to return the deposit. Mirabel went to law with him: Auguier admitted that Mirabel had spoken to him about having found a treasure which he would entrust to Auguier, but denied the rest. In his house was found a ribbon of a golden hue, such as Mirabel used to tie up his bag, and a little basket which has no obvious connection with the matter. The case was allowed to come on, there were sixteen witnesses. A woman named Caillot swore to Mirabel’s having told her about the ghost: she saw the treasure excavated, saw the bags, and recognised the ribbon. A man had seen Mirabel on his way to give Auguier his bags, and, indeed, saw him do so, and receive a piece of paper. He also found, next day, a gold coin on the scene of the interview. A third witness, a woman, was shown the treasure by Mirabel.

The narrator here makes the important reflection that Providence could not allow a ghost to appear merely to enrich a foolish peasant. But, granting ghosts (as the narrator does), we can only say that, in ordinary life, Providence permits a number of undesirable events to occur. Why should the behaviour of ghosts be an exception?

Other witnesses swore to corroborating circumstances. Auguier denied everything, experts admitted that the receipt was like his writing, but declared it to be forged; the ribbon was explained as part of his little daughter’s dress. The judge decided – no one will guess what —that Auguier should be put to the torture!

Auguier appealed: his advocate urged the absurdity of a ghost-story on a priori grounds: if there was no ghost, then there was no treasure: if there was a treasure, would not the other digger have secured his share? That digger, Bernard, was not called. Then Auguier pled an alibi, he was eight leagues away when he was said to have received the treasure. Why he did not urge this earlier does not appear.

Mirabel’s advocate first defended from the Bible and the Fathers, the existence of ghosts. The Faculty of Theology, in Paris, had vouched for them only two years before this case, in 1724. The Sorbonne had been as explicit, in 1518. ‘The Parliament of Paris often permitted the tenant of a haunted house to break his contract.’ 160 Ghosts or no ghosts, Mirabel’s counsel said, there was a treasure. In his receipt Auguier, to deceive a simple peasant, partially disguised his hand. Auguier’s alibi is worthless, he might easily have been at Marseilles and at Pertuis on the same day: the distance is eight leagues.

Bernard was now at last called in; he admitted that Mirabel told him of the ghost, that they dug, and found some linen, but that he never saw any gold. He had carried the money from Mirabel to pay for the masses due to the ghost. Mirabel had shown him a document, for which he said he had paid a crown, and Bernard (who probably could not read) believed it to be like Auguier’s receipt. Bernard, of course, having been denied his share, was not a friendly witness. A legal document was put in, showing that Madame Placasse (on whose land the treasure lay) summoned Mirabel to refund it to her. The document was a summons to him. But this document was forged, and Mirabel, according to a barrister whom he had consulted about it, said it was handed to him by a man unknown. Why the barrister should have betrayed his client is not clear. Mirabel and Marguérite Caillot, his first witness, who had deposed to his telling her about the ghost, and to seeing the excavation of the packet, were now arrested, while Auguier remained in prison. Marguérite now denied her original deposition, she had only spoken to oblige Mirabel. One Étienne Barthélemy was next arrested: he admitted that he had ‘financed’ Mirabel during the trial, but denied that he had suborned any witnesses. Two experts differed, as usual, about Auguier’s receipt; a third was called in, and then they unanimously decided that it was not in his hand. On February 18, 1729, Auguier was acquitted, Mirabel was condemned to the torture, and to the galley, for life. Marguérite Caillot was fined ten francs. Under torture Mirabel accused Barthélemy of having made him bring his charge against Auguier, supplying him with the forged receipt and with the sham document, the summons to restore the gold to Madame Placasse. Oddly enough he still said that he had handed sacks of coin to Auguier, and that one of them was tied up with the gold-coloured ribbon. Two of his witnesses, under torture, stuck to their original statements. They were sentenced to be hung up by the armpits, and Barthélemy was condemned to the galleys for life.

It is a singular tale, and shows strange ideas of justice. Once condemned to the galleys, Mirabel might as well have made a clean breast of it; but this he did not do: he stuck to his bags and gold-coloured ribbon. Manifestly Mirabel would have had a better chance of being believed in court if he had dropped the ghost altogether. It is notable that Sir Walter probably gave his version of this affair from memory: he says that Mirabel ‘was non-suited upon the ground that, if his own story was true, the treasure, by the ancient laws of France, belonged to the crown’.

Scott’s next case is very uninteresting, at least as far as it is given in Howell’s State Trials, vol. xii. (1692), p. 875.

A gentleman named Harrison had been accused of beguiling a Dr. Clenche into a hackney coach, on pretence of taking him to see a patient. There were two men in the coach, besides the doctor. They sent the coachman on an errand, and when he came back he found the men fled and Clenche murdered. He had been strangled with a handkerchief. On evidence which was chiefly circumstantial, Harrison was found guilty, and died protesting his innocence. Later a Mrs. Milward declared that her husband, before his death, confessed to her that he and a man named Cole were the murderers of Dr. Clenche. The ghost of her husband persecuted her, she said, till Cole was arrested. Mr. Justice Dolben asked her in court for the story, but feared that the jury would laugh at her. She asserted the truth of her story, but, if she gave any details, they are not reported. Cole was acquitted, and the motives of Mrs. Milward remain obscure.

Coming to the tract which he reprints, Sir Walter says that his notice was first drawn to it, in 1792, by Robert McIntosh, Esq., one of the counsel in the case, which was heard in Edinburgh, June 10, 1754. Grant of Prestongrange, the Lord Advocate well known to readers of Mr. Stevenson’s Catriona, prosecuted Duncan Terig or Clerk, and Alexander Bain Macdonald, for the murder of Sergeant Arthur Davies on September 28, 1749. They shot him on Christie Hill, at the head of Glenconie. There his body remained concealed for some time, and was later found with a hat marked with his initials, A. R. D. They are also charged with taking his watch, two gold rings, and a purse of gold, whereby Clerk, previously penniless, was enabled to take and stock two farms.

Donald Farquharson, in Glendee, deposes that, in June, 1750, Alexander Macpherson sent for him, and said that he was much troubled by the ghost of the serjeant, who insisted that he should bury his bones, and should consult Farquharson. Donald did not believe this quite, but trembled lest the ghost should vex him. He went with Macpherson, who showed the body in a peat-moss. The body was much decayed, the dress all in tatters. Donald asked Macpherson whether the apparition denounced the murderers: he replied that the ghost said it would have done so, had Macpherson not asked the question. They buried the body on the spot, Donald attested that he had seen the Serjeant’s rings on the hand of Clerk’s wife. For three years the prisoners had been suspected by the country side.

Macpherson declared that he had seen an apparition of a man in blue, who said, ‘I am Serjeant Davies,’ that he at first took this man for a brother of Donald Farquharson’s, that he followed the man, or phantasm, to the door, where the spectre repeated its assertions, and pointed out the spot where the bones lay. He found them, and then went, as already shown, to Donald Farquharson. Between the first vision and the burying, the ghost came to him naked, and this led him to inter the remains. On the second appearance, the ghost denounced the prisoners. Macpherson gave other evidence, not spectral, which implicated Clerk. But, when asked what language the ghost spoke in, he answered, ‘as good Gaelic as he had ever heard in Lochaber’. ‘Pretty well,’ said his counsel, Scott’s informant, McIntosh, ‘for the ghost of an English serjeant.’ This was probably conclusive with the jury, for they acquitted the prisoners, in the face of the other incriminating evidence. This was illogical. Modern students of ghosts, of course, would not have been staggered by the ghost’s command of Gaelic: they would explain it as a convenient hallucinatory impression made by the ghost on the mind of the ‘percipient’. The old theologians would have declared that a good spirit took Davies’s form, and talked in the tongue best known to Macpherson. Scott’s remark is, that McIntosh’s was ‘no sound jest, for there was nothing more ridiculous in a ghost speaking a language which he did not understand when in the body, than there was in his appearing at all’. But jurymen are not logicians. Macpherson added that he told his tale to none of the people with him in the sheiling, but that Isobel McHardie assured him she ‘saw such a vision’. Isobel, in whose service Macpherson had been, deponed that, while she lay at one end of the sheiling and Macpherson at the other, ‘she saw something naked come in at the door, which frighted her so much that she drew the clothes over her head’. Next day she asked Macpherson what it was, and he replied ‘she might be easy, for that it would not trouble them any more’.

The rest of the evidence went very strongly against the accused, but the jury unanimously found them ‘Not Guilty’.

Scott conjectures that Macpherson knew of the murder (as indeed he had good reason, if his non-spectral evidence is true), but that he invented the ghost, whose commands must be obeyed, that he might escape the prejudice entertained by the Celtic race against citizens who do their duty. Davies, poor fellow, was a civil good-humoured man, and dealt leniently (as evidence showed) with Highlanders who wore the tartan. Their national costume was abolished, as we all know, by English law, after the plaid had liberally displayed itself, six miles south of Derby, in 1745.

So far it is plain that ‘what the ghost said is not evidence,’ and may even ruin a very fair case, for there can be little doubt as to who killed Serjeant Davies. But examples which Scott forgot, for of course he knew them, prove that, in earlier times, a ghost’s testimony was not contemned by English law. Cases are given, with extracts from documents, in a book so familiar to Sir Walter as Aubrey’s Miscellanies. Aubrey (b. 1626, d. 1697) was a F.R.S., and, like several other contemporary Fellows of the Royal Society, was a keen ghost hunter. He published 161 ‘A full and true Relation of the Examination and Confession of William Barwick, and Edward Mangall, of two horrid murders’.

Barwick killed his wife, who was about to bear a child, near Cawood in Yorkshire, on April 14, 1690. Barwick had intrigued with his wife before marriage, and perhaps was ‘passing weary of her love’. On April 14, Palm Monday, he went to his brother-in-law, Thomas Lofthouse, near York, who had married Mrs. Barwick’s sister. He informed Lofthouse that he had taken Mrs. Barwick, for her confinement, to the house of his uncle, Harrison, in Selby. On September 17, at York assizes, Lofthouse swore that on Easter Tuesday (eight days after Palm Monday, namely April 22), he was watering a quickset hedge, at mid-day, when he saw ‘the apparition in the shape of a woman walking before him’. She sat down opposite the pool whence he drew water, he passed her as he went, and, returning with his pail filled, saw her again. She was dandling on her lap some white object which he had not observed before. He emptied his pail, and, ‘standing in his yard’ looked for her again. She was no longer present. She wore a brown dress and a white hood, ‘such as his wife’s sister usually wore, and her face looked extream pale, her teeth in sight, no gums appearing, her visage being like his wife’s sister’.

It certainly seems as if this resemblance was an after-thought of Lofthouse’s, for he dismissed the matter from his mind till prayers, when it ‘discomposed his devotions’. He then mentioned the affair to his wife, who inferred that her sister had met with foul play. On April 23, that is the day after the vision, he went to Selby, where Harrison denied all knowledge of Mrs. Barwick. On April 24, Lofthouse made a deposition to this effect before the mayor of York, but, in his published statement of that date, he only avers that ‘hearing nothing of the said Barwick’s wife, he imagined Barwick had done her some mischief’. There is not a word hereof the phantasm sworn to by Lofthouse at the assizes on September 17. Nevertheless, on April 24, Barwick confessed to the mayor of York, that ‘on Monday was seventh night’ (there seems to be an error here) he ‘found the conveniency of a pond’ (as Aubrey puts it) ‘adjoining to a quickwood hedge,’ and there drowned the woman, and buried her hard by. At the assizes, Barwick withdrew his confession, and pleaded ‘Not Guilty’. Lofthouse, his wife, and a third person swore, however, that the dead woman was found buried in her clothes by the pond side, and on the prisoner’s confession being read, he was found guilty, and hanged in chains. Probably he was guilty, but Aubrey’s dates are confused, and we are not even sure whether there were two ponds, and two quickset hedges, or only one of each. Lofthouse may have seen a stranger, dressed like his sister-in-law, this may have made him reflect on Barwick’s tale about taking her to Selby; he visited that town, detected Barwick’s falsehood, and the terror of that discovery made Barwick confess.

Surtees, in his History of Durham, published another tale, which Scott’s memory did not retain. In 1630, a girl named Anne Walker was about to have a child by a kinsman, also a Walker, for whom she kept house. Walker took her to Dame Care, in Chester le Street, whence he and Mark Sharp removed her one evening late in November. Fourteen days afterwards, late at night, Graime, a fuller, who lived six miles from Walker’s village, Lumley, saw a woman, dishevelled, blood-stained, and with five wounds in her head, standing in a room in his mill. She said she was Anne Walker, that Mark Sharp had slain her with a collier’s pick, and thrown her body into a coal-pit, hiding the pick under the bank. After several visitations, Graime went with his legend to a magistrate, the body and pick-axe were discovered, Walker and Sharp were arrested, and tried at Durham, in August, 1631. Sharp’s boots, all bloody, were found where the ghost said he had concealed them ‘in a stream’; how they remained bloody, if in water, is hard to explain. Against Walker there was no direct evidence. The prisoners, the judge summing up against them, were found guilty and hanged, protesting their innocence.

It is suggested that Graime himself was the murderer, else, how did he know so much about it? But Walker and Sharp were seen last with the woman, and the respectable Walker was not without a motive, while, at this distance, we can conjecture no motive in the case of Graime. 162 Cockburn’s Voyage up the Mediterranean is the authority (ii. 35) for a very odd trial in the Court of King’s Bench, London. The logs of three ships, under Captains Barnaby, Bristow and Brown, were put in to prove that, on Friday, 15th May, 1687, these men, with many others, were shooting rabbits on Stromboli: that when beaters and all were collected, about a quarter to four, they all saw a man in grey, and a man in black run towards them, the one in grey leading, that Barnaby exclaimed, ‘The foremost is old Booty, my next door neighbour,’ that the figures vanished into the flames of the volcano. This occurrence, by Barnaby’s desire, they noted in their journals. They were all making merry, on October 6, 1687, at Gravesend, when Mrs. Barnaby remarked to her husband: ‘My dear, old Booty is dead!’ The captain replied: ‘We all saw him run into hell’. Mrs. Booty, hearing of this remark, sued Barnaby for libel, putting her damages at £1000. The case came on, the clothes of old Booty were shown in court: the date and hour of his death were stated, and corresponded, within two minutes, to the moment when the mariners beheld the apparition in Stromboli, ‘so the widow lost her cause’. A mediæval legend has been revived in this example.

All these curious legal cases were, no doubt, familiar to Sir Walter Scott. He probably had no access to an American example which was reprinted four years after his death, by a member of the club which he founded, the Bannatyne Club, 163 in 1836.

The evidence of the ghost-seer was republished by Mrs. Crowe, in her Night Side of Nature. But Mrs. Crowe neither gives the facts of the trial correctly, nor indicates the sources of the narrative. The source was a periodical, The Opera Glass, February 3, 1827, thirty years after the date of the trial. The document, however, had existed ‘for many years,’ in the possession of the anonymous contributor to The Opera Glass. He received it from one of the counsel in the case, Mr. Nicholson, afterwards a judge in Maryland, who compiled it from attested notes made by himself in court.

The suit was that of James, Fanny, Robert, and Thomas Harris, devisees of Thomas Harris, v. Mary Harris, relict and administratrix of James Harris, brother of Thomas, aforesaid (1798-99). Thomas Harris had four illegitimate children. He held, as he supposed, a piece of land in fee, but, in fact, he was only seized in tail. Thus he could not sell or devise it, and his brother James was heir in tail, the children being bastards. These legal facts were unknown both to James and Thomas. Thomas made a will, leaving James his executor, and directing that the land should be sold, and the money divided among his own children. James, when Thomas died, sold the land, and, in drawing the conveyance, it was discovered that he had no right to do so for Thomas, as it was held by Thomas in tail. James then conveyed his right to the purchaser, and kept the money as legal heir. Why James could sell, if Thomas could not, the present writer is unable to explain. In two years, James died intestate, and the children of Thomas brought a suit against James’s widow. Before James’s death, the ghost of Thomas had appeared frequently to one Briggs, an old soldier in the Colonial Revolt, bidding James ‘return the proceeds of the sale to the orphans’ court, and when James heard of this from Briggs he did go to the orphans’ court, and returned himself to the estate of his brother, to the amount of the purchase money of the land’.