Am Bratach No. 244
Kevin Crowe complains that I attributed to him words which were in fact quotations from Leiths book (Am Bratach, December 2011). This fact was made clear in my letter, but Kevin should not need to complain. His review makes it obvious that he fully agrees with everything Leith wrote a view reinforced by his latest letter.
The most important quotation was the allegation that prosecution witnesses were deliberately selected to present a perception of untrustworthiness in the minds of the jury. I still maintain that this insults the memory of those witnesses, who are all identified by name and place of residence in the trial report. More importantly, the allegation is hard to believe because the witnesses were all selected by the prosecution, acting on the advice of Robert Mackid.
Trustworthiness crops up later in Kevins review when he reports that the judge asked the jury to compare the stature of Sellars character witnesses with that of the tinker and other prosecution witnesses in terms of likely trustworthiness. This is untrue; the judge never referred to William Chisholm as the tinker and he never questioned the trustworthiness of any witnesses whatsoever. He instructed the jury to concentrate on the differences in the evidence given by the two sets of witnesses prosecution and defence and said it was the jurys duty to decide between them. If (and only if) they were unable to reach a verdict from this material evidence, they should then consider the evidence from Sellars character witnesses. Sellar had produced them because of the sustained character asassination he had received in the press for more than a year much of it undoubtedly well deserved.
This press campaign had been fed by the Sherriff-Substitute, Robert Mackid, and it seems likely that the trial collapsed (in part at least) because of his leading role in the prosecution. Mackid had a grudge against Sellar, resulting from his habit of poaching on the Sutherland Estate. Sellar had apprehended him for this, and he felt humiliated. Moreover, he believed that Sellar, an experienced lawyer, was plotting to replace him as Sheriff-Substitute. His hatred of Sellar was attested in a letter by Robert Gordon of Langdale and, at the trial itself, by a reliable witness the Procurator Fiscal of Sutherland, Hugh Ross. He related how he had warned Sellar in 1813 that Mackid would seize any opportunity to do him harm. This was a body blow to the prosecution.
The indictment read out at the start of the trial contained so many charges against Sellar that it extended to more than 2,000 words. In his final address to the jury the prosecutor, Henry Home-Drummond, stated that in the light of the evidence he withdrew all those charges except two: one relating to the destruction of barns, and the other to the death of Margaret Mackay at Badinloskin. And with regard to her, he admitted that the evidence did not justify a charge of culpable homicide, but only one of injury. After the verdict was delivered he further stated that if all the witnesses had been called he believed the result would have been the same.
Much of this information comes from the trial report, originally published as a 70-page pamphlet in 1816. It has been reproduced in full only twice: in Thomas Sellars 1883 book The Sutherland Evictions of 1814 and Dorothy Richardsons 1999 paperback The Curse on Patrick Sellar. Both these are now out of print and are rarely obtainable secondhand, but they can be borrowed through any local library by using the inter-library loan service. This report is worthwhile reading for anyone interested in the clearances and, in particular, the trial of 1816.
To summarise the argument: I have no sympathy whatever with Sellar and I feel strong doubts about the jurys verdict, but I am 95% certain that the trial was properly conducted by the judge, the advocates and the various officials. My (very tentative) conclusion is that the prosecution team failed for two reasons. Firstly, their over-confidence led to complacency, and so their case was not well prepared, nor well presented on the day. Secondly, there was a growing feeling in the court that the entire case was a result of Mackids vendetta against Sellar, rather than the misdeeds of Sellar himself. He got off scot-free, which he most certainly didnt deserve.
Leith and Kevin Crowe seem to hold a precisely opposite view: they concede that the verdict may have been correct according to law their words, not mine. But they maintain that the trial was a charade and a deliberate attempt to pervert the course of justice. I suggest the onus is on them to state clearly who instigated the charade and exactly how it was organised. On these issues they have so far been silent; but if they can produce the evidence, I will be eager to read it and ready to be convinced.