Highland Clearances #3: Sellar's Trial 'Report'


HIGHLAND CLEARANCES
Sellar's Trial Report


REPORT of the TRIAL of PATRICK SELLAR, Esq.
Factor for the Most Noble the Marquis and Marchioness of Stafford.
For the Crimes of CULPABLE HOMICIDE, REAL INJURY, and OPPRESSION,
Before the Circuit Court of Justiciary, held at Inverness, on 
Tuesday, 23d April, 1816,
By the Hon. DAVID MONYPENNY of Pitmilly,
One of the Lords Commissioner of Justiciary.
-------------------
EDINBURGH
1816.

Preface
"From the general interest which the trial of Mr Patrick Sellar has excited in the north of Scotland, it is thought that a correct detail of the proceedings may not be unworthy of public attention...The accuracy of this report may be depended on. It is published by the junior counsel for Mr Sellar [P. Robertson, Advocate] from notes taken in Court, and omits nothing but the arguments of Counsel, which are kept back, least it may be supposed that this publication was intended to convey anything beyond the mere facts of the case."
[This claim of impartiality is somewhat disingenuous.]

Indictment
"PATRICK SELLAR...You are indicted and accused...THAT ALBEIT, by the laws of this and 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 otherways destroying, or causing and procuring to be set on fire, burnt, and otherways 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..."

Defence
"Mr ROBERTSON opened the case on the part of the pannel...'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...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...The charges of culpable homicide were quite out of the question, and Mr Sellar defied the Public Prosecutor to prove them...if truth and justice were to prevail over malice and conspiracy, Mr Sellar would obtain an honourable and triumphant acqiuittal."

Gentlemen of the Jury
"...and the following gentlemen were named as a jury :--
James Fraser of Belladrum
William Fraser of Culbockie
William M'Intosh of Balnespeck
Duncan Fraser of Fingask
Alexander Smith, Merchant in Inverness
John Gillanders of Highfield
William Reid of Muirtown
William M'Kenzie of Strathgarve
George Falconer M'Kenzie of Allangrange
Robert Denham, tacksmen of Dunglass
George Kay, residing at Tannachy
Bailie Robert Joss, merchant in Elgin
John Barclay, writer there
John Collie, farmer at Alvas
John Smith, tacksmen of Greens"
[These 15 men were, without exception, Patrick Sellar's peers, not the dispossessed. Mostly minor gentry or major tenants, men of property, plus 2 merchants and 2 lawyers.]

Declaration
"At Dornoch, the 31st day of May 1815, and within the Ordinary Court-Room there...Mr PATRICK SELLAR, present prisoner in the tolbooth of Dornoch...
Declares, that he knows that regular processes of removing were brought at the instance of the proprietors [i.e. the former Countess of Sutherland, now Marchioness of Stafford] against all the principal tenants; and the conclusions of the libels were that the defenders should
...compear before the Sheriff-depute...on the 18th March and 4th April, to hear and see themselves decerned and ordained, by decreet and sentence of the Sheriff-depute...to flit and remove themselves, wives, bairns, servants, sub-tenants, cottars, dependents, and whole goods and gear, forth and from the possession of the said lands and others, at the term of removal after mentioned, viz. from the houses, gardens, grass and mills, at the term of Whitsunday next 1814, and from the arable lands under crop and the separation of crop 1814 from the ground:
That the declarant, as agent for the pursuers, called the actions regularly in Court, and obtained decreet of removing in terms of the libels: That in the beginning of the month of May the declarant extracted the decreets, and caused charge the defenders in terms of the decreets; that he thereafter obtained precepts of ejection, and after waiting till about three weeks after the term, he was under the unpleasant necessity of putting the warrants into the hands of the officers of Court, and employing them to make the premisses void and redd...
Declares, That the declarant directed the officers (where the tenants did not obey the decreets by removing of themselves, as they ought to have done), to remove the tenant's property and effects from the premises; and thereafter unroof the huts, to prevent them from retaking possession after the declarant should leave that part of the country..."

In Exculpation
"...Mr GORDON addressed the Jury on the part of the pannel...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...it was...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."

Unanimous Acquittal
"Lord PITMILLY...stated the law as applicable to this case...there could be no doubt of the practice in the country of retaining these barns till the crop should 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."
"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...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 trial lasted from ten o'clock on Tuesday , till one o'clock on Wednesday morning, and the Court-Room was crowded to excess."

A Supplementary to the Trial Report
   The parts of the Report extracted above, produce a simple linear progression of the trial, a bare-bones account of how the accused 'got off'. There were two underlying reasons for this result. First, that "in point of law" Sellar performed all the technical processes and legalities for evictions under Scottish law. Second, the political climate in the Highlands required a firm judgment in support of the Improvers, a clear dismissal of the arguments of those who opposed or resisted Improvement.
  In reality then, the trial was far from fair:
(i) Sellar was a mass of conflicting interests. He was the Countess of Sutherland's factor (or estate manager), with authority over all her tenants, collecting rents and determining which tenancies were renewed. He was also the one who prepared the documents of eviction and the court officer who executed these documents against the traditional occupiers. And, of course, he was the new tenant of Strathnaver, the man whose sheep would replace the people he was 'removing'.
(ii) The evidence of 'Sellar's men' (those who were actually doing the evicting on the day, Sellar's shepherds and other Sutherland estate employees answerable to the factor) was preferred over those who they evicted, and who suffered loss at their hands. The Gaelic speaking witnesses against Sellar required a court appointed translator (the neighbouring Ross-shire Sheriff-Depute), many of their number were refused the right to testify because of the miss-spelling of their names on the list of witnesses supplied to the defence, and those who were heard had their evidence discredited under cross-examination by allegations of a criminal conspiracy. (For example: "Witness subscribed to bring Mr Sellar to trial; was collector at a meeting to bring Mr Sellar to trial; was a collector at a meeting assembled to carry on the subscription, and everybody there paid something. Money was paid into the hands of the witness,he spent it in going to Caithness to employ Mr Henderson, a man of business, for the purpose of prosecuting Mr Sellar.") 
(iii) The case for the prosecution was sabotaged by the prosecution. The original Sheriff-Depute for Sutherland, Mr Robert M'Kid, who arrested and charged Sellar,was harried from office and a more amenable man was put in his place. In addition, during the trial the Advocate-Depute, Mr Home Drummond, "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 [although] he certainly didn't think the evidence of this last case was sufficient to establish culpable homicide". (Two elderly residents died of shock and exposure a few days after being removed from their dwellings, so that their homes could be burnt by Sellar's men). With a prosecutor so eager to abandon his case, the work of the defence was, in large part, done for them. 

The unrepentant testimonies of a true believer
In the two years between the burning of Strathnaver and the subsequent trial, Sellar shows no sign of regretting his actions. On the contrary. Sellar's self-belief was absolute.
In August 1814, Sellar wrote: 
"Sutherland is a fine country badly stocked. The people have often succeeded against industry -- they have wearied out the agents in succession by their Craft and their intrigue and Combination; and altho they are driven at present pretty much from their original habits the mass requires a great deal more yeast before it shall become leaven. They require to be brought to the Coast where industry will pay, and to be convinced that they must worship industry or Starve. The interior of the Country is clearly intended by Providence to Grow wool and mutton for the Employment and maintenance and enrichment of industrious people living in Countries Suited to Manufacture."
In April 1815, Sellar wrote:
"My great grandfather was a small tenant removed from a late poor place like Rhimsdale in the heights of Banffshire. The honest man was no doubt cruelly used -- he was forced to apply to industry, and to put his sons to business in place of keeping them idly about him. But what do I not owe the proprietor that he had the humanity to drive us to our thrift. I am not superstitious, but, I believe, that it is out of the great goodness of providence that he put it into the minds of such great people as Lord and Lady Stafford and your Lordship to force us to what is proper to us, and for the General welfare of every creature unto you."
Eric Richards, 1999, Patrick Sellar and the Highland Clearances: Homicide, Eviction and the Price of Progress, Edinburgh University Press 


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