The History of the Highland Clearances 20

The History of the Highland Clearances 20

and the growing corn, timber, furniture, money, and other effects,

the property, or in the lawful possession, of the said persons, were

wantonly set on fire, burnt, and otherwise destroyed or caused and

procured to be set on fire, burnt, and otherwise destroyed: And you,

the said Patrick Sellar, are guilty of the said crimes, or of one or

more of them, actor, or art and part. All which, or part thereof,

being found proven by the verdict of an assize, before the Lord

Justice-General, the Lord Justice-Clerk, and Lords Commissioners of

Justiciary, in a Circuit Court of Justiciary to be holden by them, or

by any one or more of their number, within the burgh of Inverness, in

the month of April, in this present year, 1816, you, the said Patrick

Sellar, ought to be punished with the pains of law, to deter others

from committing the like crimes in all time coming.

 

H. HOME DRUMMOND, _A.D._

 

Mr Sellar, having pleaded NOT GUILTY, the following defences were

read:--“_First_, The panel objects to the relevancy of various parts

of the libel. _Second_, In so far as the libel is relevant, the panel

denies its truth; the whole of the charges are utterly false, in so

much so, that the Prosecutor is not only unable to bring any sufficient

evidence in support of his own accusations, but the panel will

bring positive proof _against_ them. The panel will prove, that the

ejectments which have given rise to this trial, were done in due order

of law, and, under the warrants of the proper Judge, issued on regular

process. Farther, he will prove that great indulgence was shown to the

tenants, even after they had resisted the regular decrees of the Judge;

that nothing was done on his part, or with his knowledge or approval,

either cruel, oppressive or illegal. That he committed no acts of

homicide; and, on the whole, he will prove, that throughout every

part of this affair, he (the panel) has been the victim, not only of

the most unfounded local prejudices, but of long continued and active

defamation, on the part of certain persons, who have made it their

business to traduce the whole system of improvements introduced into

the Sutherland estate, and to vilify the panel, by whom, they have been

pleased to suppose, that these improvements have been partly conducted.

He rejoices, however, in the first opportunity, which has now been

afforded to him, of meeting these calumnies and prepossessions in a

Court of Justice, and relying, as he does, with implicit confidence on

the candour and dispassionate attention of a British jury, he has no

doubt whatever of being able to establish his complete innocence of all

the charges now brought against him.

 

“_Under protestation to add and eik._

 

“J. GORDON.

“H. COCKBURN.

“PAT. ROBERTSON.”

 

Mr. Robertson opened the case on the part of the panel. The object of

addressing the court at this time was to state such observations as

occurred on the relevancy of the indictment, and to give a general

view of the line of defence. On the former, he remarked, that various

objections did occur to the relevancy of the charges, particularly to

the second and fourth branches of the indictment. With these, however,

he did not mean to trouble the Court, as Mr. Sellar was so conscious

of his innocence, that he courted investigation, being unwilling that

any part of his conduct should be left uninvestigated. No objection

was, therefore, made to the relevancy of any part of the indictment,

so far as it charged any specific crime against which the panel might

be prepared to defend himself. But, certainly, he did object to those

parts of it which contained general charges, of destroying “a number

of houses,” injuring “a number of tenants,” &c., unless these were

understood merely as introductory to the specific crimes mentioned. He

also objected to the last charge, if meant as anything more than matter

of mere aggravation.

 

On the merits, he gave a short sketch of the causes which gave rise to

the present trial,--alluded to the clamour which had been raised in the

country--the prejudices of the people,--the disgraceful publications

in a newspaper called the _Military Register_, and the pains which had

been taken to circulate these false and mischievous papers through

Sutherland and the adjacent counties. The general line of defence he

stated to be, That, as to the first charge, of heath-burning, this was

done with the express consent of the tenantry, and, as could be proved,

to their positive advantage. As to the removings, the defence was quite

clear. The lands mentioned in the indictment were advertised to be set

on the 5th of December, 1813, at the Inn of Golspie, and Mr. Sellar was

preferred as the highest offerer. Before Whitsunday, 1814, he brought

regular actions of removing, and it was not until after he had obtained

decrees in these actions, charged the whole of the tenants to remove,

and taken out precepts of ejection against them, that they were, in

the month of June, actually removed from their lawless and violent

possession. These facts were established by the decrees and precepts in

the hands of the Clerk of Court. As to the demolition of the houses, no

houses were pulled down till after the ejections had been completed,

and the property had become Mr. Sellar’s. No furniture was destroyed

by him, or by his orders,--no unnecessary violence was used, nor any

cruelty exercised, but everything was done in due order of law, and

without oppression of any kind. The charges of culpable homicide were

quite out of the question, and Mr. Sellar defied the Public Prosecutor

to prove them. Upon the whole, it was not doubted, that if truth and

justice were to prevail over malice and conspiracy, Mr. Sellar would

obtain an honourable and triumphant acquittal.

 

* * * * *

 

The Advocate-Depute having here stated that he did not mean to insist

on any charges, excepting those which were specially and articulately

mentioned in the indictment, Lord Pitmilly said:--

 

“It would be improper for me to enter at present into the origin

of the prosecution, or the nature of the defences. Neither shall I

say anything of the publications which have been alluded to, except

that they appear to be of the most contemptible nature, and the only

prejudice which I can entertain is the other way; that is, against

the cause requiring such aid. I have no doubt as to the relevancy of

the libel.”

 

The jury was composed of the following gentlemen:--

 

James Fraser, of Belladrum.

William Fraser, of Culbockie.

William Mackintosh, of Balnaspeck.

Duncan Fraser, of Fingask.

Alexander Smith, merchant in Inverness.

John Gillanders, of Highfield.

William Reid, of Muirtown.

William Mackenzie, of Strathgarve.

George Falconer Mackenzie, of Allangrange.

Robert Denham, tacksman of Dunglass.

George Kay, residing at Tannachy.

Bailie Robert Joss, merchant in Elgin.

John Barclay, writer, Elgin.

John Collie, farmer at Alvas.

John Smith, tacksman of Greens.

 

Evidence for the prosecution and for the defence having been led at

considerable length,

 

Mr. Drummond addressed the jury on the part of the Crown. He stated

that he gave up all the charges except the one which regarded the

ejections from the barns, and that of real injury in the case of the

old woman at Badinloskin. He certainly did not think the evidence in

this case last was sufficient to establish culpable homicide; but he

argued, that the circumstances proved were sufficient to authorise the

jury in finding a verdict of guilty to the extent of an injury, as

she had been removed at the risk of her life, which he maintained to

be contrary to law. As to the barns, he contended that the conduct of

Mr. Sellar was irregular and illegal, and consequently oppressive, the

outgoing tenants being entitled, by the custom of Sutherland, to retain

them as long as the arable land.

 

Mr. Gordon addressed the jury on the part of the panel, and replied

to the arguments used on behalf of the prosecution. He entered at

great length into the history and objects of the prosecution; the

preconcerted plan on which certain persons had instigated the people

of Strathnaver to complain at first, and to persist afterwards; the

views they entertained of successfully opposing the improvements

of Sutherland, by affecting the noble persons to whom the property

belonged, through the sides of Mr. Sellar, as a convenient medium

of succeeding; the disgraceful measures to which these persons

had resorted, with a view to affect the channels of justice, the

impartiality of jurymen, and the purity of evidence. He attacked the

measures and conduct of Mr. Mackid in the most pointed terms; exposed

the characters of the evidence of Chisholm and others, and dwelt in the

clear evidence of the total innocence of Mr. Sellar, and on the points

of law which applied to the particular charges as criminal charges, at

considerable length, and with reference to various law authorities;

and finally, concluded by maintaining to the jury, that this was not

merely the trial of Mr. Sellar, but, in truth, a conflict between the

law of the land and a resistance to that law: That the question at

issue involved the future fate and progress of agricultural, and even

moral improvements, in the county of Sutherland; that (though certainly

not so intended by the Public Prosecutor, whose conduct throughout has

been candid, correct, and liberal), it was nevertheless, in substance,

and in fact, a trial of strength between the abettors of anarchy and

misrule, and the magistracy, as well as the laws of this country.

 

Lord Pitmilly, after having stated the law as applicable to this case,

summed up the evidence in a very clear and able manner. His lordship

stated, that it was unnecessary for the jury to consider any of the

charges, excepting the one in regard to the old woman at Badinloskin.

As to the first, there could be no doubt of the practice in the

country, of retaining these barns till the crops would be threshed out;

neither could it be doubted, that Mr. Sellar had not left the whole of

the barns for the use of the outgoing tenants, and in consequence of

this, the tenants suffered damage. But _in point of law_, as the Court

of Session had decided in a similar question, Mr. Sellar was not bound

by any such practice, but was entitled to proceed in the ejections.

In regard to the injury charged to have been done to Margaret M’Kay,

his Lordship directed the attention of the jury to the evidence of

Chisholm. This witness, although contradicted in some particulars by

his wife, was confirmed by John M’Kay, whose testimony his Lordship

also laid before them. On the other hand, he brought under their view,

the evidence of Sutherland, Fraser, and Burns, and stated that it was

the duty of the Jury to balance betwixt these two sets of witnesses.

His Lordship also said, that if the jury were at all at a loss on this

part of the case, they ought to take into view the character of the

accused; for this was always of importance in balancing contradictory

testimony. Now here there was, in the _first_ place, real evidence,

from the conduct of Mr. Sellar, in regard to the sick, for this, in

several instances, had been proved to be most humane. And _secondly_,

there were the letters of Sir George Abercromby, Mr. Brodie, and Mr.

Fenton, which, _although not evidence_,[11] must have some weight

with the jury; and there were the testimonies of Mr. Gilzean and Sir

Archibald Dunbar--all establishing Mr. Sellar’s humanity of disposition.

 

[11] The italics are mine.--ED.

 

The jury having retired for a quarter of an hour, returned a _viva

voce_ verdict, unanimously finding Mr. Sellar NOT GUILTY.

 

Lord Pitmilly observed that his opinion completely concurred with that

of the jury, and in dismissing them after so long a trial, he was happy

to say they had paid the most patient attention to the case, and had

returned a verdict satisfactory to the Court.The verdict having been recorded,