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For his action in
connection with the Sutherland Clearances, Patrick Sellar was placed on
trial at a sitting of the Circuit Court at Inverness in 1816. The bench
was occupied by Lord Pitmilly. We give the indictment, defences, judge's
summing up, and other particulars, but omit the evidence, as no
authentic record thereof is available.
THE INDICTMENT.
PATIRICK SELLAR, now or
lately residing at Culmaily, in the parish of Golspie, and shire of
Sutherland, and under factor for the Most Noble the Marquis and
Marchioness of Stafford. You are indicted and accused, at the instance
of Archibald Colquhoun of Killermont, his Majesty's Advocate for his
Majesty's interest: That albeit, by the laws of this and of every other
well-governed realm, culpable homicide, as also oppression and real
injury, more particularly the wickedly and maliciously setting on fire
and burning, or causing and procuring to be set on fire and burnt, a
great extent of heath and pasture, on which a number of small tenants
and other poor persons maintain their cattle, to the great injury and
distress of the said persons; the violently turning, or causing and
procuring to be turned out of their habitations, a number of the said
tenants and other poor people, especially aged, infirm, and impotent
persons and pregnant women, and cruelly depriving them of all cover or
shelter, to their great distress, and the imminent danger of their
lives; the wickedly and maliciously setting on fire, burning, pulling
down, and demolishing, or causing and procuring to be set on fire,
burnt, pulled down, and demolishing, the dwelling-houses, barns, kilns,
mills, and other buildings, lawfully occupied by the said persons,
whereby they themselves are turned out, without cover or shelter, as
aforesaid, and the greater part of their different crops is lost and
destroyed, from the want of the usual and necessary accommodation for
securing and manufacturing the same; and the wantonly setting on fire,
burning, and otherwise destroying, or causing and procuring to be set on
fire, burnt, and otherwise destroyed, growing corn, timber, furniture,
money, and other effects, the property, or in the lawful possession of
the said tenants and other poor persons, are crimes of a heinous nature,
and severely punishable. Yet true it is, and of verity, that you the
said Patrick Sellar are guilty of the said crimes, or of one or more of
them, actor, or art in part ; in so far as you the said Patrick Sellar
did, on the 15th day of March, 1814, or on one or other of the days of
that month, or of April and May immediately following, and on many
occasions during the said months of March, April and May, wickedly and
maliciously set on fire and burn, or cause and procure John Dryden and
John M'Kay, both at that time shepherds in your service, to set on fire
and burn a great extent of heath and pasture, many miles in length and
breadth, situate in the heights of the parishes of Farr and Kildonan, in
the county of Sutherland, and in particular in the lands of Ravigill,
Rhiphail, Rhiloisk, Rossal, Rhimsdale, Garvault, Truderskaig, and
Dalcharrel, whereby many of the tenants and others in the lands
aforesaid were deprived of pasturage for their cattle, and in
consequence thereof reduced to great distress and poverty; and many of
them were obliged to feed their cattle with the potatoes intended for
the use of their families, and with their seed corn; particularly
William Gordon, James M'Kay, Hugh Grant, and Donald M'Kay, all then
tenants in Rhiloisk aforesaid ; John Gordon and Hugh M`Beath, then
tenants in Rhimsdale aforesaid; Donald M'Beath, then tenant in Rhiphail
aforesaid;' Murdo M'Kay and John M'Kay, then tenants in Truderskaig
aforesaid. And further, you the said Patrick Sellar did, upon the 13th
day of June, 1814, or on one or other of the days of that month, or of
May immediately preceding, or of July immediately following, together
with four or more persons, your assistants, proceed to the district of
country above-mentioned, and did, then and there, violently turn, or
cause or procure to be turned out of their habitations, a number of the
tenants and poor people dwelling there; and particularly Donald M'Kay, a
feeble old man of the age of four-score years or thereby, then residing
in Rhiloisk aforesaid; who, upon being so turned out, not being able to
travel to the nearest inhabited place, lay for several days and nights
thereafter in the woods in the vicinity, without cover or shelter, to
his great distress, and to the danger of his life. As also, Barbara
M'Kay, wife of John M'Kay, then tenant in Ravigill aforesaid, who was at
the time pregnant, and was moreover confined to her bed in consequence
of being severely hurt and bruised by a fall; and you the said Patrick
Sellar did, then and there, notwithstanding the entreaties of the said
John M'Kay, give orders that the said Barbara M'Kay should be instantly
turned out, whatever the consequences might be, saying, That you would
have the house pulled about her ears; and the said John M'Kay was
accordingly compelled, with the assistance of some women and neighbours
to lift his said wife from her bed, and carry her nearly a mile across
the country to the imminent danger of her life: As also, time last
above-mentioned, you the said Patrick Sellar did forcibly turn out, or
cause and procure your assistants aforesaid, to turn out, of his bed and
dwelling, in Gar-vault aforesaid, Donald Munro, a young lad, who lay
sick in bed at the time. And further, you the said Patrick Sellar, did
time aforesaid, wickedly and maliciously set on fire, burn, pull down,
and demolish, or cause and procure your assistants aforesaid to set on
fire, burn, pull down, and demolish a great number of the
dwelling-houses, barns, kilns, mills, and other buildings, lawfully
occupied by the tenants and other inhabitants in the said district of
country; and in particular, the houses, barns, kilns, mills, lawfully
occupied by the above-mentioned William Gordon, James M'Kay, Hugh Grant,
in Rhiloisk aforesaid; and John Gordon in Rhimsdale aforesaid; As
also, the barns and kilns in Rhiphail aforesaid, lawfully occupied by
Alexander Manson, John l\1'Kay, and others, then tenants or residenters
there; the barns and kilns in Ravigill aforesaid, lawfully occupied by
John M'Kay, Murdo M'Kay, and others, then tenants there; and the barns
and kilns in Garvault aforesaid, lawfully occupied by William Nicol and
John Monro, then tenants there; As also, the house and barn in Ravigill
aforesaid, lawfully occupied by Barbara M'Kay, an infirm old widow,
nearly fourscore years of age, and who was obliged to sell three of her
five cattle at an under value, in order to support herself, her crop
being destroyed from the want of her barn : As also, the greater part of
the houses, barns, kilns, mills, and other buildings in the whole
district of country above mentioned, was, time aforesaid, maliciously
set on fire, burnt, pulled down, and demolished, by you, the said
Patrick Sellar, or by your assistance or by your orders, whereby the
inhabitants and lawful occupiers thereof were turned out, without cover
or shelter; and the greater part of their different crops was lost and
destroyed from want of the usual and necessary accommodation for
securing and manufacturing the same; and especially the lawful occupiers
of the barns, kilns, mills, and other buildings particularly above
mentioned, to have been set on fire and destroyed as aforesaid, did
sustain great loss in their crops, from being thus deprived of the means
of securing and manufacturing the same. And further, you, the said
Patrick Sellar, did, time aforesaid, culpably kill Donald M'Beath,
father to Hugh M'Beath, then tenant in Rhimsdale aforesaid, by unroofing
and pulling down, or causing to be unroofed and pulled down, the whole
house in Rhimsdale aforesaid, where the said Donald M'Beath was then
lying on his sick bed, saving only a small space of roof, to the extent
of five or six yards, whereby the said Donald M'Beath was exposed, in a
cold and comfortless situation, without cover or shelter, to the
weather; and he, the said Donald M'Beath, in consequence of being so
exposed, never spoke a word more, but languished and died about eight
days thereafter, and was thereby culpably killed by you, the said
Patrick Sellar: Or otherwise, you, the said Patrick Sellar, did, time
and place aforesaid, cruelly expose the said Donald M'Beath to the
weather, without cover or shelter, by pulling down and unroofing, or
caused to be pulled down and unroofed, the greater part of the house
where he then lay sick in bed, to his great distress, and the imminent
danger of his life; and this you, the said Patrick Sellar, did,
notwithstanding the entreaties of the said Hugh M'Beath, and others, you
saying, in a rage, when it was proposed that the said Donald M'Beath
should remain, "The devil a man of them, sick or well, shall be
permitted to remain," or words to that effect. And further, you, the
said Patrick Sellar, did, time aforesaid, wickedly and maliciously set
on fire, burn, and demolish, or cause and procure your assitants to set
on fire, burn, and demolish, the dwelling-house, barn, kiln, sheep-cot,
and other building then lawfully occupied by William Chisholm in
Badinloskin, in the parish of Farr aforesaid, although you knew that
Margaret M'Kay, a very old woman of the age of go years, less or more,
and who had been bed-ridden for years, was at that time within the said
house ; and this you did, notwithstanding you were told that the said
old woman could not be removed without imminent danger to her life ; and
the flames having approached the bed whereon the said Margaret M'Kay
lay, she shrieked aloud in Gaelic, "O'n teine," that is to say, "O the
fire," or words to that effect; and was forthwith carried out by her
daughter, Janet M'Kay, and placed in a small bothy, and the blanket in
which she was wrapped was burnt in several places, and the said Margaret
M'Kay never spoke a word thereafter, but remained insensible from that
hour, and died in about five days thereafter, in consequence of the
fright and alarm; and, in particular, in consequence of her removal, as
aforesaid, from her bed into a cold and uncomfortable place, unfit for
the habitation of any human being; and the said Margaret M'Kay was
thereby culpably killed by you, the said Patrick Sellar; or otherwise,
you, the said Patrick Sellar, did, time and place aforesaid, cruelly
turn, or cause to be turned, out of her bed and dwelling-place, the said
Margaret Mackay, by setting on fire, burning, and demolishing, or
causing and procuring to be set on fire, burnt, and demolished, the said
house and other buildings, in manner above mentioned, to her great
distress, and the imminent danger of her life. And farther, all the
persons whose houses, barns, kilns, mills, and other buildings, were
burnt and destroyed, or caused and procured to be burnt and destroyed by
you, the said Patrick Sellar, all as above described, did sustain great
loss in their moss wood, and other timber, which was broken and
demolished, and destroyed by fire and otherwise, at the same time, and
in the same manner, with the buildings as aforesaid; and also in their
furniture and other effects, all their lawful property, or in their
lawful possession at the time: And, in particular, the said Barbara
M'Kay in Ravigill, aforesaid, lost her door and door-posts, and timber
of her house and barn, her meal-chest, and several articles of
furniture, all her property, or in her lawful, possession, which were
then and there destroyed, or caused to be destroyed, by you, the said
Patrick Sellar, as aforesaid ; and the greatest part of the furniture,
and timber belonging to the said William Chisholm, together with three
pounds in bank notes, and a ridge of growing corn, all the property, or
in the lawful possession of the said William Chisholm, in Badinloskin,
aforesaid, were then and there destroyed by fire, and otherwise, by you,
the said Patrick Sellar. And you, the said Patrick Sellar, having been
apprehended and taken before Mr. Robert Mackid, Sheriff-Substitute of
Sutherland, did, in his presence, at Dornoch, on the 31st day of May,
1815, emit and subscribe a declaration; which declaration, together with
a paper entitled "Notice given to the Strathnaver tenants, 15 Dec.,
1813," being to be used in evidence against you, at your trial, will be
lodged in due time in the hands of the Clerk of the Circuit Court of
Justiciary, before which you are to be tried, that you may have an
opportunity of seeing the same : at least, time and places
above-mentioned, the said heath and pasture, was wickedly and
maliciously set on fire and burnt, or caused and procured to be set on
fire and burnt, to the great injury and distress of the said tenants and
others ; and the said persons were violently turned, or caused and
procured to be turned, out of their habitations, and deprived of all
cover and shelter, to their great distress, and the imminent danger of
their lives; and the said Donald M`Beath and Margaret M` Kay were
culpably killed in manner above mentioned, or were cruelly turned out of
their habitations as aforesaid ; and the said dwelling-houses, barns,
kilns, mills, and other buildings, lawfully inhabited and occupied by
the said persons, were maliciously set on fire, burnt, pulled down, and
demolished, or were caused and procured to be set on fire, burnt, pulled
down, and demolished, and the inhabitants and lawful occupiers thereof
turned out as aforesaid; and the greater part of their different crops
was lost or destroyed, from want of the usual and necessary
accommodation for securing and manufacturing the same; 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 elk.
"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 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 Ross, 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 he 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. Penton, which, although
not evidence,* 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.
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,
The Advocate-Depute declared that he thought
it fair to the panel, and that it would be satisfactory to the jury, to
state his conviction, that if those witnesses who were rejected on
account of errors in their designations, had been examined, the result
of the trial would have been the same.
Lord Pitmilly then addressed Mr. Sellar.
His Lordship said, "Mr. Sellar, it is now my
duty to dismiss you from the bar; and you have the satisfaction of
thinking, that you are discharged by the unanimous opinion of the jury
and the Court. I am sure that, although your feelings must have been
agitated, you cannot regret that this trial took place, and I am hopeful
it will have due effect on the minds of the country, which have been so
much, and so improperly agitated."
The Court then pronounced an interlocutor,
in respect of the verdict of the assize, assoilzieing the panel
simpliciter, and dismissing him from the bar.
The trial lasted from ten o'clock on Tuesday
till one o'clock on Wednesday morning, and the Court-room was crowded to
excess. |
