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The History of the Highland Clearances
Trial of Patrick Sellar


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.


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