“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.
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.