10

‘To find out and punish the leaders of the people’

The trial of Patrick Sellar and the Sutherland Estate management’s revenge on his accusers

All that remains of the building that served as early nineteenth-century Inverness’s courthouse is a steeple occupying a corner site at the junction of Bridge Street and Church Street in the city centre. Two plaques have been fixed to this steeple. One, on its Bridge Street face, tells how the courthouse of which the steeple was part – a courthouse constructed in 1791 and demolished in Victorian times – took the place of a medieval tolbooth* that once stood on this site. The steeple’s second plaque, round the corner in Church Street, announces that it was here, on Tuesday 23 April 1816, that ‘the infamous Patrick Sellar’ stood trial on charges of ‘culpable homicide, fire-raising and cruelty’.

High Court trials were regular occurrences in Inverness. Mostly, however, the individuals prosecuted at those trials were people whose background was such as to ensure that their alleged offences (unless especially heinous) received little or no publicity outside their home localities. It was otherwise with Patrick Sellar. Here was no run-of-the-mill accused. Here was a man establishing himself as a leading agriculturalist; a man employed in a senior position by one of Britain’s wealthiest families; a man who, when carrying out evictions in that family’s name, was said to have committed crimes that, if judgment were to go against him, could result in his being sentenced to death. Sellar’s trial, then, was nothing if not newsworthy. ‘This was a case of great expectation’, an Edinburgh newspaper commented, ‘and excited much interest in the country.’¹

Interest was heightened by a belief in the south that a Highland jury might readily take against Sellar. This belief was shared by Sellar’s own lawyers, or so the Marchioness of Stafford was informed by George MacPherson Grant of Ballindalloch, the Banffshire laird who (in circumstances touched on later) the Staffords had not long before installed as Sutherland’s MP. The Edinburgh advocates engaged by Sellar, Grant wrote, believed ‘there [to be] such a strong prejudice [in Inverness] against [their client] that they thought it proper to submit to him . . . whether they would not make a push to get [his] trial removed to Edinburgh’. Sellar rejected that proposal. But Grant, who more than half-expected Sellar to be found guilty, took little heart from the factor’s self-assurance. ‘I fear his conduct may have been culpably harsh,’ the MP commented of Sellar. ‘I suspect’, he added of what had occurred at Rhiloisk, ‘we have not been so fully let into it as we ought to have been.’2

What particularly worried not just MacPherson Grant but the Stafford camp more generally was the possibility that Patrick Sellar’s defence team, particularly if things went badly for them, might try to shift blame for the Rhiloisk episode from Sellar personally to the Sutherland Estate management apparatus as a whole. This, after all, was a line Sellar himself had adopted (with some justification) as far back as early June 1814 when, in the course of a conversation involving Robert Gordon of Langdale and others, it had been put to him that people could not be expected to quit his Strathnaver farm until they had been told where they were to go. This, Sellar reportedly replied, ‘was certainly true, but the fault lay with Mr Young [as indeed it did] and not with him’.³

Writing to Lady Stafford from Edinburgh two days prior to Patrick Sellar’s trial, William MacKenzie, who had spoken with Sellar’s lawyers before they left for the north, expressed ‘great anxiety’ about the risk of those same lawyers majoring on exactly this point when, as was clearly going to happen, they questioned William Young about the circumstances surrounding Rhiloisk’s clearance. ‘Young will undergo a very strict examination,’ MacKenzie warned. In the course of that examination, he went on, it could readily emerge that the deadline for families to remove themselves from Rhiloisk had come and gone days before Young had so much as started to identify crofts for them. Any such admission, MacKenzie thought, was likely to be seized on as a means of countering a prosecution charge (set out in documentation made available to interested parties some weeks earlier) that Sellar had subjected evicted families to ‘oppression’. ‘If Sellar’s counsel are driven to a defence of the point of oppression’, MacKenzie predicted, ‘they will say that the oppression was not on Sellar’s part.’⁴

This had all along been James Loch’s great fear. Sellar, as Loch was only too well aware, had maintained both before and after his arrest that his difficulties stemmed not from his own behaviour but from animosities engendered by the land management policy the Staffords were paying him to implement. Loch, at a point of particular exasperation with Sellar, disputed this. ‘I cannot see what connection the system of improvement adopted in Sutherland has . . . with your case,’ he told Sellar in October 1815. ‘They seem to stand so independent of each other that I think [that] in place of endeavouring to connect them . . . they ought to be kept quite separate.’ In his calmer moments, however, James Loch appreciated that neither press nor public were likely to make distinctions of this sort. That was why he insisted, throughout the winter of 1815–16 and into the following spring, on a clearance moratorium in Sutherland.5

William Young had planned to turn out of their homes at Whitsun 1816 some of the Strath of Kildonan families who, as a result of the successful protests mounted in the strath in 1813, had been kept in place for three years more than Young had originally intended. Loch opposed those evictions. ‘If another set of complaints should occur’, he commented, ‘it will make a most serious impression on the public mind.’ Worse still would be renewed unrest. ‘If another disturbance takes place’, Loch warned Young, ‘you may depend upon it becoming a subject for parliamentary enquiry.’⁶

Patrick Sellar’s trial began at 10 a.m. in what was reported to have been a ‘courtroom crowded to excess’. The trial judge was Lord Pitmilly, thought by one of Patrick Sellar’s lawyers, Henry Cockburn, to be a man ‘of good sense but moderate ability’. More to the point perhaps was the fact that the judge, when plain David Monypenny, had practised law in Edinburgh in partnership with William MacKenzie and William’s brother, Colin. Because the MacKenzies (and maybe at times their partner) handled a great deal of Sutherland Estate business, outside observers were inclined to reckon Pitmilly’s presence in Inverness a point in Sellar’s favour. But Sellar, believing William MacKenzie less an ally than an adversary, did not expect – though in this he proved wrong – any favours from a man who had been MacKenzie’s colleague. What, then, of the jury? Where might its sympathies have been expected to lie? Contrary to external expectations, not with Patrick Sellar’s accusers.⁷

The idea that an Inverness jury would automatically be prejudiced against Sellar stemmed from nothing more substantial than a persistent (but anachronistic) Lowland notion that Highlanders, being supposedly given to clannish togetherness, invariably stuck by one another. In fact the 15 men* whose task it was to determine Patrick Sellar’s guilt or innocence had more in common with Sellar than with the folk he had allegedly maltreated. Some of the 15, because (like Sellar) they came from Moray, would not have considered themselves in any sense ‘Highland’. But they would have been perfectly at ease, for all that, with those other jurymen whose homes were in Inverness or its immediate hinterland. Since jurors were then drawn only from society’s upper echelons, the Sellar jury consisted of landowners, substantial farmers, a lawyer and a couple of ‘merchants’ or businessmen. Some, perhaps a majority, would have been known to one another. One or two at least (and possibly more) could well have had dealings either with Sellar personally or with his lawyer father. All or almost all were men with a financial or professional stake in agricultural and other development of the sort that had already transformed the Inverness and Moray areas, and was now being introduced to Sutherland. It followed, then, that when jury members took their seats that April morning in 1816 and looked across the Inverness courtroom at Patrick Sellar in the courtroom’s ‘panel^† box’, they saw someone whose standing, outlook and involvements were similar to their own. When, a little later, the court began to hear (through an interpreter) from the Gaelic-speaking Strathnaver residents called to testify against Sellar, jurors (few of whom would have been fluent in Gaelic) are most unlikely to have felt even the slightest solidarity with people divided from them not only by language but also by their being products of a social order that men of the jury’s background thought hopelessly outmoded.

Patrick Sellar, in ruling out any attempt to get proceedings moved to Edinburgh, seems to have had a better grasp than his legal team of the possibilities inherent in those Highland realities. This was evident from the manner in which he arranged to be accompanied throughout a trial which was to last (all such trials then having to be completed in a single session) into the early hours of the day following its commencement. ‘Mr Reed, Kilcalmkill, and Mr Ross, Clyne, sat with Mr Sellar in the panel box the whole fourteen [in fact 15] hours,’ William Young noted. Subsequent reform would make it impossible for accused persons to be supported in this way, and it is easy, in light of Sellar’s tactics, to see why. Gabriel Reed (as indicated previously) was one of the best known and most successful sheep farmers in the north. Walter Ross was a Sutherland minister (his parish of Clyne included Strathbrora) and high-profile supporter of ‘improvement’, not least because of the opportunities it gave him to engage (as will be seen) in farming and related activities. Sellar perhaps derived some comfort from being flanked in this way by friends and allies. This, however, was not the primary purpose of Ross and Reed being there. By so overtly backing Patrick Sellar, Gabriel Reed and Walter Ross were signalling to jurors that their eventual decision, as well as determining Sellar’s fate, would amount to a verdict on agrarian change of a type in which not just Sellar, but Reed, Ross and, for that matter, they, the jury, had a substantial stake.8

The claim that to condemn Sellar would be to condemn ‘improvement’ was in accord with the stance taken by the factor himself ever since the first surfacing of allegations of criminal behaviour on his part. It was also a claim which, doubtless at their client’s instigation, his advocates were to major on in Inverness, one of them, James Gordon, ‘maintaining to the jury that . . . the question at issue involved the future fate and progress of agricultural and even moral improvement in the county of Sutherland’. Were jurors to find Patrick Sellar guilty, Gordon went on, then, though they might think themselves to be upholding ‘the laws of this country’, they would actually be aiding ‘abettors of anarchy and misrule’, Sellar’s accusers, according to Gordon, were committed not simply to ‘opposing the improvement’ of the Sutherland Estate but to subverting, by means of their attacks on Sellar, the rights of ‘the noble persons to whom the property belonged’. At a time when the French Revolution was a recent memory and when (as will be touched on later) social unrest was an ever-present threat in many parts of Britain, it was sound strategy thus to present Patrick Sellar as having fallen victim to subverters of established order. As men of property themselves, it was none too subtly being implied, the jury’s duty was to stand by property’s defenders, of whom Sellar, it was further implied, was clearly one.⁹

None of this, it should be underlined, would have saved Patrick Sellar had the High Court jury been presented with an overwhelmingly convincing case against him. No such case, however, was forthcoming. That at least is the impression conveyed strongly by the only comprehensive account of Sellar’s trial, an account which, though compiled and published by one of Sellar’s lawyers, deals at some length with what was said by both sides.

At first glance, to be sure, the indictment in which the charges against Sellar were set out was as compendious as John Munro, John MacKay and other victims of Rhiloisk’s 1814 clearance could have wished. In the indictment’s second sentence, Sellar (addressed directly throughout) was accused of ‘culpable homicide . . . oppression and real injury’ – an accusation substantiated, or so it appeared, by page after page of detail. Sellar had ‘wickedly and maliciously’ set fire to hill pastures ‘of great extent’. He had engaged in ‘violently turning out’ of their homes ‘pregnant women’ and people who were ‘aged’ or otherwise ‘infirm’, thus ‘cruelly depriving’ those people ‘of cover or shelter’. This had been accomplished by means of ‘setting on fire, burning, pulling down and demolishing . . . dwelling houses, barns, kilns, mills and other buildings’.10

Sellar’s destruction of Rhiloisk’s barns and kilns in advance of their owners being able to harvest their crops was arguably illegal (for reasons explored earlier) in its own right, and was certainly assumed to be so in the indictment presented to the High Court. His destruction of Rhiloisk’s homes (though not in itself unlawful) had been conducted, according to the indictment, in a manner that, first, was ‘oppressive’ and, second, resulted in crimes of great seriousness: ‘You . . . Patrick Sellar did . . . culpably kill Donald McBeath, father of Hugh McBeath, then tenant in Rimsdale . . . by unroofing and pulling down, or causing to be unroofed and pulled down, the whole house in Rimsdale . . . where the said Donald McBeath was then lying on his sick bed, saving only a small piece of the roof to the extent of five or six yards, whereby the said Donald McBeath was exposed in a cold and comfortless situation, without cover or shelter, to the weather; and he, the said Donald McBeath, in consequence of being so exposed, never spoke a word more, but languished and died about eight days thereafter, and was thereby culpably killed.’¹¹

There was more: ‘And further, you . . . Patrick Sellar did . . . set on fire, burn and demolish, or cause and procure your assistants to set on fire, burn and demolish, the dwelling-house, barn, kiln, sheepcot and other buildings then lawfully occupied by William Chisholm in Badinloskin . . . although you knew that Margaret McKay, a very old woman of the age of ninety years, less or more, and who had been bedridden for years, was at the time within the said house . . . [A]nd the flames having approached the bed whereon the said Margaret McKay lay, she shrieked aloud in Gaelic, “O Teine”, that is to say, “O the fire”, or words to that effect; and was forthwith carried out by her daughter, Janet McKay, and placed in a small bothy . . . [A]nd the said Margaret McKay . . . 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 McKay was thereby killed by you, the said Patrick Sellar.’12

Even at this remove, those words – their impact enhanced by their having had the potential to set Sellar on a pathway to a gallows – retain their power. However, the document from which they are extracted, in consequence of its being so rambling and repetitive as to verge at times on the incoherent, is cumulatively less than impressive. Although it appears (as indicated earlier) that Archibald Colquhoun, the lord advocate in whose name Sellar was charged, was of the view in June 1815 that a Sellar prosecution should proceed, Colquhoun – in part, no doubt, because of pressure brought to bear by James Loch and others – had retreated rapidly from this position. Whether in the early nineteenth century or later, the precognoscing of witnesses to alleged crimes was normally succeeded promptly by indictment and trial. But in this instance, the lord advocate and his colleagues had been party to repeated attempts either to postpone or, better still, avoid bringing Patrick Sellar before the High Court. Those attempts had culminated, during December 1815 and January 1816, in efforts (akin to those made formerly by the Marchioness of Stafford and Earl Gower) to persuade Strathnaver’s evicted families to opt for an arbitrated settlement of their complaints. It was only with the foundering of this initiative that the Edinburgh authorities concluded, as William MacKenzie reported, that they ‘had no other course to follow’ but to bring Sellar to trial. The nature of the indictment they then prepared – a meandering summary of precognitions taken by Robert McKid months before – is suggestive of its being the work of men whose heart was not in the job to which they had at last been obliged to set their hand. The same lack of commitment is evident in the less than resolute way Sellar’s prosecution was undertaken in Inverness by Henry Home Drummond, the advocate depute to whom the task had been allocated, who appeared at times to have positively welcomed opportunities to backtrack from the possibility of there having been wrongdoing at Rhiloisk.¹³

Just such an opportunity arose right at the start of the trial when one of Sellar’s advocates, Patrick Robertson, took issue, unsurprisingly, with an indictment which, he pointed out, failed repeatedly to deal in ‘specific crime[s]’ and took refuge instead in ‘general charges’ of ‘destroying a number of houses’ or injuring ‘a number of tenants’. Drummond at once responded by announcing that he would not press any such charges. This, in turn, provoked an intervention from Pitmilly. While it would be ‘improper’ for him to comment at that stage on either the prosecution or defence cases, the judge said, he wanted to place on record his opinion of ‘the publications’ to which Robertson had alluded moments before. By publications, Robertson had made clear, he meant the many articles about Sellar carried by the Military Register, articles Robertson described as ‘false’, ‘mischievous’ and ‘disgraceful’. Pitmilly concurred. The Military Register’s coverage of events in Sutherland, he said, ‘appear[ed] to be of the most contemptible nature’. This was an early indication that the day might eventually go Patrick Sellar’s way. When Home Drummond called his first witness, another such indication followed.14

The witness in question was Robert McKid, to whom Sellar’s defence immediately objected on grounds of his having ‘evinced malice’ against Sellar. Drummond having failed to have this objection overruled, the defence was now permitted by Pitmilly – greatly to Sellar’s benefit – to explore the extent to which Sutherland’s sheriff-substitute, in initiating the factor’s prosecution, might have been motivated less by a concern for justice than by his desire to be revenged on a man who had more than once done him harm.¹⁵

Witnesses, with whom Sellar’s lawyers would have had prior contact on this point, were duly called to testify as to prejudice on McKid’s part. Hugh Ross, Sutherland’s procurator fiscal, recalled his 1814 warning to Sellar – this warning (as noted previously) having been to the effect that McKid had expressed a wish, as Ross now told the High Court, ‘to have it in his power to injure Mr Sellar’. William Young, called after Ross, recollected a conversation he had had with McKid on the day following Sellar’s arrest, a conversation in the course of which, as Young had reported at the time, the sheriff-substitute remarked that ‘Sellar must be hanged or at any rate sent to Botany Bay*’.¹⁶

From a prosecution standpoint, what Young and Ross had to say was damaging. Hugely more damaging, however, were the contents of the letter now read to the court, the sheriff-substitute had written to the Marquis of Stafford hours prior to Sellar’s imprisonment. In this letter McKid (as already mentioned) had listed Patrick Sellar’s supposed offences. That he had thus entered into communication – ‘in confidence’ as he wrote – with Lord Stafford was bad enough. Worse was the extent to which the supposedly impartial sheriff-substitute, elated by his having (as he thought) brought Sellar to book, expressed himself in ways that (in advance of any trial) both assumed the factor’s guilt and (for all McKid’s stated ‘regret’ about what had occurred) took obvious pleasure in so doing. ‘A more numerous class of crimes perpetrated by an individual’, McKid had written, ‘has seldom disgraced any country.’17

Because of his reluctance to make it appear as if the marquis and marchioness were throwing their weight behind a possible criminal, James Loch, with Lord Stafford’s strong endorsement, had for months been turning down Sellar’s requests that McKid’s letter be made available to him and his lawyers. The marquis, Loch told the factor, in October 1815 was clear as to ‘the impropriety, and therefore impossibility, of furnishing [Sellar] with a copy’ of what, Loch pointed out, had been a piece of private correspondence. Continued badgering by Sellar drove Loch to contemplate a leak enquiry (as it would be called today) in order to discover how the factor had come to learn of McKid’s letter, while Sellar, for his part, threatened to have Lord Stafford brought north as a trial witness if that should turn out to be the only way of having the letter flushed into the open. The prospect of Stafford thus being put under oath in an Inverness courtroom, it seems, helped force a change of stance on both Loch and his employer. On 8 April, with Sellar’s trial only a fortnight away, they consented – albeit grudgingly – to the letter’s release. Corresponding subsequently with the marquis, Sellar wrote: ‘I beg humbly to thank your Lordship for the communication of Mr McKid’s letter.’ He was right to do so. By making the letter available, Lord Stafford, as the marquis well knew, did Sellar a great favour.¹⁸

Following the McKid letter’s emergence in the High Court, and in the wake of James Ross and William Young’s revelations about their various exchanges with McKid, Home Drummond announced that, in these new circumstances, he would take no evidence from the sheriff-substitute. By thus acknowledging – if only tacitly – some degree of bias on Robert McKid’s part, the advocate depute was in effect conceding the possibility that Sellar, as Patrick Robertson had contended when opening for the defence, was a victim of ‘conspiracy’. Might Home Drummond have avoided this debacle? Probably not entirely. But he could have taken steps to forestall its occurring at so an early stage in proceedings. His not having done so resulted (because McKid had collected the evidence on which charges against Sellar were based) in the entire prosecution case being launched in circumstances of all too apparent disarray.¹⁹

Immediately prior to the McKid letter being read aloud in Inverness’s congested courtroom, Henry Home Drummond declared himself ‘totally ignorant’ of it. The advocate depute could not have been unaware, however, of Robert McKid’s well-known detestation of Patrick Sellar. Nor could he have been under any illusions as to the likelihood of McKid’s loathing of Sellar being drawn, by one means or another, to the High Court’s attention. For much of the preceding year, after all, Archibald Colquhoun, Drummond’s principal, had been harried by people – not just Sellar himself but James Loch and others – who were firmly (and by no means unjustifiably) of the view that Sutherland’s sheriff-substitute, even if not actively engaged in an anti-Sellar conspiracy, certainly had his own axe, or axes, to grind in the Sellar affair. Why, then, did the advocate depute make Robert McKid his first witness? McKid knew nothing at first hand of Sellar’s alleged crimes; and even had the sheriff-substitute’s letter to Lord Stafford not been in the defence’s possession, he was bound to have been cross-examined in ways intended to expose the disputatious, not to say confrontational, nature of his relationship with the man seated in the courtroom’s panel box. While there are no grounds – other than the way he went about things in Inverness – for supposing that Home Drummond wanted such an outcome, it is a fact that, had the advocate depute been trying to sabotage his own prosecution, he could scarcely have done better than he did.20

Subsequent to the drama surrounding the McKid letter’s unheralded appearance, matters took something of an anticlimactic turn. David Ross, McKid’s Ross-shire counterpart, was sworn in as interpreter, and 11 Strathnaver people – with whom all exchanges had to be conducted through Ross – were interrogated about the circumstances surrounding their enforced removal from their homes in June 1814. First to appear were William Chisholm and his wife* Henrietta, the burning of whose house at Badinloskin, together with the subsequent death of Henrietta’s mother, was central to the prosecution case. Like a number of other prosecution witnesses – notably Hugh McBeath whose father was the other person said to have died as a result of Patrick Sellar’s actions – Chisholm appears to have been questioned closely by Sellar’s advocates whose preparations, in contrast to Henry Home Drummond’s, had been exhaustive. The defence team’s ‘brief’, the Marchioness of Stafford had been told, was ‘near 400 pages in length’ and, as was plain throughout the Inverness proceedings, its contents ensured that Sellar’s lawyers were acquainted with every facet of the case against their client. But there were, for all that, to be no more defence successes on a par with the discrediting of Robert McKid. Some parts of the evidence from Strathnaver – as usually happens in criminal cases of any complexity – were shown to be out of kilter with other parts. But no Strathnaver witness departed in any substantial way from the testimony McKid had collected in May 1815.21

This was not for lack of attempts to challenge the veracity of what was said. Thus John MacKay, one of the Rossal men who had witnessed the burning of the Chisholm home at Badinloskin, was made to reveal that, though still resident at Rossal, he had ‘been warned out’ by Sellar – an admission the defence hoped would detract from the Rossal tenant’s standing as a supposedly uninvolved observer of the Chisholm family’s eviction. Still more strenuous objections were lodged against a further prosecution witness, another John MacKay. This was the man who, subsequent to his removal from Rivigill to Rhinovie, had become John Munro’s close collaborator in the Strathnaver campaign to have Patrick Sellar brought to trial. His efforts in that connection, Sellar’s defence team now insisted, demonstrated ‘undue and busy interference and agency’. So embroiled had John MacKay been in anti-Sellar activity, in other words, he could have no credibility, or so it was asserted, as a witness to what the factor had or had not done. That accounts for the aggressive way MacKay was questioned about matters such as the time he had spent in Caithness when collecting cash to help with the action Strathnaver people had been intending – in the absence of movement (at that point) in Edinburgh – to raise against Sellar.²²

This assault did not produce the desired result. ‘No agency has been proved,’ Lord Pitmilly said of John MacKay. ‘I cannot therefore reject this witness as inadmissible. But’, the judge added by way of a further broad hint as to where his sympathies lay, ‘the jury have heard the objection, and will give what credit to the witness they think he deserves.’²³

With the exception of David MacKenzie, the minister whom Sellar had successfully intimidated some months previously and who (whether or not in consequence) had little of significance to say, just one more Strathnaver witness was heard after John MacKay. This was Murdo MacKay, whose brief testimony was in accordance with much of what had gone before. ‘The barn house and kiln in Ravigill belonging to the witness were thrown down in June 1814,’ the court was told. ‘There were eight or nine barns and as many houses demolished in Ravigill . . . at [the] desire of Mr Sellar. John MacKay, Hugh MacKay, Charles Gordon, Adam MacKay [and] Donald MacKay as well as the witness sustained loss in their crops in consequence of the want of their barns. By the custom of the country, these barns belong to the outgoing tenant until he thresh out his crop.’24

Murdo MacKay should not have been the prosecution’s last Strathnaver witness. ‘Some other witnesses were called’, runs the relevant paragraph in the published record, ‘but [were] rejected in respect that they were erroneously described in the list served on the panel.’ Since it was reported in Edinburgh that ‘the whole tenants complaining [of Sellar’s conduct] were cited as witnesses’, this explains why John Munro, the most prominent such complainant, was denied an opportunity to testify in Inverness. His not having had that chance accounts, in turn, for the Military Register’s claim that ‘by far the most material witnesses for the prosecution’ were not heard. Since everything known about Munro points to his having been as formidable as he was determined, that was fair comment. By failing to ensure that names, places of residence and other necessary details were got right, Henry Home Drummond had deprived himself of testimony that would have been helpful to his case. This was one more pointer to slipshod preparation on Home Drummond’s part. Equally indicative of inadequate groundwork by the advocate depute was the uninformed nature of his cross-examination of William Young, the only senior representative of the Stafford family, other than the accused, to put in an appearance at Inverness.²⁵

When Young was obliged to disclose, exactly as William MacKenzie had feared, that his allocation of crofts to Rhiloisk’s outgoers had postdated the deadline for their removal, Home Drummond, as far as can be judged, made nothing of this admission. There were no houses on the ‘allotments’ pointed out to them, Young acknowledged, but, he went on, ‘there were barns and byres into which the people might have gone’. By the advocate depute, predictably, there was no probing of its thus being thought acceptable for evicted families to bed down in other people’s cowsheds. Continuing silence on Home Drummond’s part meant that it was left to Pitmilly to ask Young if it would have been possible for those same families, even after they had been forced from their former homes, to continue to tend – and ultimately to harvest – their crops. ‘The new allotments were so near the places from which the tenants were removed’, William Young said, ‘that they [the Rhiloisk farm outgoers] might easily have carried away their corn.’ This was to set aside the extent to which, subsequent to the 1814 clearance, standing crops – left unwatched on abandoned rigs – were eaten and otherwise damaged by Sellar’s sheep. It was also to rely on Home Drummond having done next to nothing to inform himself about Strathnaver. Since John Munro’s new home at Rhinovie, to cite one instance of the distances involved, was separated from his previous home at Garvault by at least 15 then largely roadless miles, Young – though testifying under oath – was lying when he said that post-clearance homes were ‘near’ their pre-clearance predecessors. But the advocate depute, no doubt as ignorant of Strathnaver geography as he was unacquainted with other aspects of his case, let the lie slip by unnoticed.26

On Young standing down, the precognition which Robert McKid had taken from Patrick Sellar in Dornoch Jail in May 1815 was read (without comment or addition) into the court record, the advocate depute, at that point, ‘declar[ing] the proof for the prosecution concluded’.²⁷

By way of commencing their client’s defence, Patrick Sellar’s advocates, James Gordon, Henry Cockburn and Patrick Robertson, produced three letters testifying, as they put it, to ‘Mr Sellar’s character’. The letters had been sought from Sir George Abercromby, a leading Banffshire landlord, George Fenton, Moray’s sheriff-substitute, and James Brodie, one of that county’s estate owners. ‘I have known him intimately from his infancy,’ Brodie wrote of Sellar. ‘I always considered him a person of the strictest integrity . . . incapable of being even accessory to any cruel or oppressive action.’ Abercromby, for his part, thought Sellar ‘incapable of being guilty of the charges brought against him’. Fenton knew Sellar ‘to be a man of sympathy, feeling and humanity’.²⁸

Two equally prominent individuals were then called to make the same points in person. Thomas Gilzean, Inverness-shire’s sheriff-substitute and someone who dealt regularly with Sellar’s father, had ‘known the panel from his boyhood’ and ‘conceive[d] him incapable of doing anything cruel or oppressive’. Sir Archibald Dunbar, a further landlord, considered Sellar ‘a young man . . . of a good heart’ and one ‘incapable of doing a cruel or oppressive action’.²⁹

In securing endorsements of this kind from men like Dunbar, Gilzean, Fenton, Brodie and Abercromby, Patrick Sellar’s lawyers – just as when agreeing to their client being accompanied into the High Court panel box by Gabriel Reed and Walter Ross – were making clear to the jury that Sellar was believed blameless by people of standing. No equivalent character references, needless to say, were available to Sellar’s Strathnaver accusers, their minister, David MacKenzie, from whom evicted tenants had hoped to obtain such references, having seen to it that none were forthcoming.

With evening now advancing, it remained only to call witnesses whose evidence was intended by the defence to counter and cancel out what Strathnaver people had had to say about Sellar’s conduct at the time of their eviction. Those witnesses, seven in all, were Robert Gunn, John Dryden, Duncan Ross, Andrew Ross, Alexander Sutherland, James Fraser and John Burns. Cumulatively, their testimony suggested that much of what had been said earlier in the day was, to varying degrees, exaggerated or untrue. ‘Mr Sellar’, Duncan Ross insisted, ‘gave strict instructions to hurt nothing belonging to the people . . . [A]fter everything was out of the houses, the [evicting] party, in the gentlest manner, took out the pins [holding roof supports in place] and let the couples fall.’ There had been ‘no instance of cruelty’, Andrew Ross maintained. ‘Mr Sellar’, according to Alexander Sutherland, ‘said [at Rimsdale] . . . that there were sick people in that place and that, therefore, they must not proceed in the ejections’.30

There was more to the same effect. None of it appears to have been challenged by Henry Home Drummond. Nor was the advocate depute inclined to replicate the forceful manner in which the credentials of some of his own witnesses had been queried by the defence. This was despite the fact that virtually everybody called by Sellar’s defence team was either implicated in the Rhiloisk evictions or had something to lose had they failed to align themselves with Sellar. Robert Gunn was Patrick Sellar’s foxhunter and John Dryden his head shepherd. The two Rosses, Andrew and Duncan, were employed by the Sutherland Estate. James Fraser and Alexander Sutherland were among the sheriff-officers involved in the firing of the Chisholm home at Badinloskin. Only John Burns, a Caithness farmer, was in any way extraneous to what had occurred, and even Burns, since he had presumably come to Strathnaver at Sellar’s invitation, was by no means a wholly neutral party.

A committed prosecutor might have made much of such circumstances. Home Drummond, however, was now intent on giving up. In the course of closing comments to the jury, he revealed that, out of all the numerous charges contained in the indictment presented to the jury at the start of Sellar’s trial, he proposed to take forward only two. One arose from Sellar’s destruction of barns – destruction the advocate depute described as ‘irregular’, ‘illegal’ and ‘oppressive’. The other concerned what Home Drummond called ‘the case of the old woman [whom he does not appear to have dignified with a name] at Badinloskin’. ‘He certainly did not think the evidence in this last case was sufficient to establish culpable homicide’, the advocate depute assured the court, ‘but he argued that the circumstances proved were sufficient to . . . [show that] she had been removed at the risk of her life’.³¹

James Gordon, for the defence, concluded by returning to the manner in which ‘certain persons’ – acting in accordance with ‘a preconcerted plan’ – had supposedly ‘instigated the people of Strathnaver’ to press for Patrick Sellar’s prosecution. Pitmilly then summed up.32

Of the two charges Home Drummond had retained, the judge disposed quickly of the first. ‘There could be no doubt of the practice of the country of retaining . . . barns till the crop should be threshed out,’ Pitmilly conceded. ‘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 citing a Court of Session judgment in a civil case, the judge was clear that, though the Rhiloisk outgoers had certainly been entitled in law to harvest the crops they had sown before their departure, Sellar ‘was not bound’ legally to leave their barns intact and, it followed, was not guilty of any crime in having had those barns destroyed. This meant, Pitmilly continued, that the jury were left with just one alleged offence to consider: the one relating ‘to the injury charged to have been done [at Badinloskin] to Margaret MacKay’.³³

Prosecution witnesses had given one account of events at Badinloskin, defence witnesses another. ‘It was the duty of the jury to balance betwixt these two sets of witnesses,’ Lord Pitmilly advised. ‘If the jury were at all at a loss, they ought to take into view the character of the accused . . . Now here there was, in the first place, real evidence [concerning] . . . the conduct of Mr Sellar in regard to the sick, for this in several instances had been proved [in the course of testimony the jury had heard] to be most humane; and, secondly, there were the letters of Sir George Abercromby, Mr Brodie and Mr Fenton . . . [together with] the testimonies of Mr Gilzean and Sir Archibald Dunbar – all establishing Mr Sellar’s humanity of disposition.’

If this is an accurate rendering of Pitmilly’s words, he was surely overstepping what were even then the bounds of judicial propriety in asserting that Sellar’s conduct had been proved humane. In fact it had merely been said by defence witnesses (themselves party to the evictions that had given rise to the trial) to be humane. But that, perhaps, is neither here nor there. Pitmilly, when back in Edinburgh, would tell one of William MacKenzie’s friends ‘how much he [the judge] was satisfied’ of Sellar’s innocence ‘and how evident was the existence of a combination against him’. Hence the steer given from the bench to the High Court’s jury. Short of directing the jury to acquit, Lord Pitmilly could not have been clearer as to the verdict he expected. That verdict was duly forthcoming. Fifteen minutes after the jury’s retiral, they were back – at around one o’clock in the morning of Wednesday 24 April – to say they had unanimously found Patrick Sellar not guilty.34

Pitmilly now ‘observed,’ as if this needed stating, ‘that his opinion concurred with that of the jury’. Scarcely less pleased, it seems, was Henry Home Drummond: ‘The advocate depute declared that he thought it fair to the panel . . . 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.’³⁵

Turning to Patrick Sellar, Pitmilly 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 effects on the minds of the country which have been so much, and so improperly, agitated.’³⁶

Throughout the preceding day and into the night, or so George MacPherson Grant was told by one of Patrick Sellar’s lawyers, ‘Sellar bore up very well, but when the verdict of acquittal was pronounced, he burst into tears.’ This, MacPherson Grant added, ‘had a great effect on the audience’, contributing, no doubt, to what Sellar afterwards described as the ‘truly gratifying’ way in which so many of the people present in the still-crowded courtroom now rushed to congratulate him.³⁷

Writing decades later, Donald Sage, whose father had been Kildonan’s minister and who was by then a veteran clergyman himself, commented of Patrick Sellar’s trial: ‘The final issue of it was only what might have been expected when a case came to be determined between the poor, as the party offended, and the rich, as the lordly and heartless aggressor.’ That has been very much the judgement of lots of others down the years. But what mattered in 1816 was not the opinion of posterity but the trial verdict’s more immediate implications. For people known to have contributed to having had Sellar brought before the High Court, those implications were severe.³⁸

While declaring himself ‘quite overpowered with the sympathy and kindness of [his] friends’, Patrick Sellar was also intent on being avenged on everyone implicated in what he called ‘the late most dangerous conspiracy’. In this he had the backing of the Staffords and their aides. Prior to Sellar’s High Court appearance, the marquis, the marchioness, James Loch and other senior figures in the Stafford camp had distanced themselves from their second-in-command (after William Young) in Sutherland. In Sellar’s Inverness triumph, however, they saw an opportunity both to reassert their commitment to ‘improvement’ and to crush all Sutherland opposition to it.39

Writing to Sellar on 29 April 1816, the day news of the Inverness verdict reached London, Loch was little short of gushing: ‘I cannot let a post leave . . . without congratulating you upon the event of the trial at Inverness, and I am sure you will not think me any less sincere in my congratulations when I say that such a termination was [as] . . . essential for the future progress and prosperity of Sutherland as it was for your future comfort . . . I went to Cleveland House [the Stafford family’s London residence] where I found everyone most happy.’⁴⁰

This, from Sellar’s perspective, was heartening. The ‘permanent improvement of the [Sutherland] Estate’, he remarked in response, depended on ensuring that ‘the new colony planted here’ – by which Sellar meant people like himself – was permitted to ‘flourish’. But that would not happen if there were to be any ‘repetition’ of the ‘atrocious attacks’ he had had to endure over the preceding two years. Highlanders, Sellar told Loch, were ‘crafty . . . and they act in wonderful concert’. In the Highlands, he went on, ‘the lower ranks are entirely led by those above them. It occurs to me to be very essential to find out and punish the leaders of the people.’ This did not mean, however, that humbler opponents of clearance ought to be spared retribution. They too, Sellar thought, required urgently to be dealt with.⁴¹

In so thinking, Sellar was at one with George MacPherson Grant, Sutherland’s newly returned MP. Grant, whom an English politician called ‘a toad of Lady Stafford’s’, was then intent – as if by way of living up to the Englishman’s description – on proving to the marchioness and her husband that he could be relied on to do better by them than his immediate predecessor, James Macdonald. In an earlier indication of his readiness to do Stafford bidding, Grant, who first represented Sutherland in parliament between 1809 and 1812, had uncomplainingly stood aside to make way for Macdonald, one of the marquis’s nephews. But on his getting to Westminster the latter had taken up an unexpectedly independent-minded stance on policy matters, and had thus become, as a historian of parliament puts it, ‘heavily estranged’ from his uncle. Secure in the knowledge that most of early nineteenth-century Sutherland’s two or three dozen electors* would fall in automatically with their wishes, the marquis and marchioness duly eased out Macdonald and replaced him, as the same historian observes, with ‘the more compliant Grant’. That was in March 1816. Just months later Grant, who had put a lot of effort into modernising tenure arrangements on his own landed properties, embarked on what he described as ‘an excursion into the interior of the Sutherland Estate’. The MP’s aim was not so much to reacquaint himself with his constituency as to obtain insights into how best to proceed with ‘improvement’.42

His enquiries in Strathnaver persuaded George Macpherson Grant that, as Rhiloisk farm’s evicted families always maintained, William Young had been at fault in ‘neglecting to have the allotments intended for dispossessed tenants . . . pointed out to them in proper time’. But Strathnaver’s subsequent ‘disturbances’, Grant reported to James Loch, would not have got off the ground had it not been for the lead given by John Munro, with whom the MP met in the summer of 1816. Munro, Grant believed, was ‘the active instigator’ (as indeed he was) of Strathnaver people’s persistent and ultimately successful efforts to have Patrick Sellar put on trial. Munro, Grant continued, had been aided (as indeed he had) by John MacKay. ‘Those two men’, the MP felt, ‘should be removed from the [Sutherland] Estate as an example.’⁴³

Loch agreed. In a memo of 19 August 1816, he wrote: ‘No delay should take place in communicating to the following persons in Strathnaver, who were connected with the late occurrences, that they are to be turned off at Whitsunday [1817], which ought to be done without fail.’ The people Loch named were MacKay and Munro. What happened to them when, three years after their expulsion from Rivigill and Garvault, they and their families were once more evicted – this time from Rhinovie – is not known.⁴⁴

Reporting to James Loch on his Strathnaver encounter with John Munro, George MacPherson Grant noted: ‘He [Munro] admits that he was advised by Captain Sutherland in London.’ This was Alexander Sutherland who, in the Military Register, was still inclined – the April verdict notwithstanding – to insist on Patrick Sellar’s guilt. Had it not been for ‘the zeal, ingenuity and ability of his counsel’, coupled with bias on the part of a judge linked with the Stafford’s Edinburgh lawyers, then Sellar, or so the Register implied, would have received the punishment that ought to have been his due. As it was, everything that had taken place in connection with the Sutherland ‘improvements’ since 1813 should be subjected, the paper urged, to parliamentary inquiry.⁴⁵

There was, for the moment anyway, no chance of this. But for as long as Alexander Sutherland’s anti-Stafford and anti-Sellar tirades were ‘tolerated’, William Young warned James Loch, ‘the people’ (meaning the Staffords’ Sutherland tenants) would ‘know they [had] him to make a noise’ on their behalf. MacPherson Grant concurred. ‘I find [Alexander] Sutherland making shameful insinuations as to the impartiality of Sellar’s trial’, he commented in the course of one of his letters to Loch, ‘and really if such publications are permitted there is an end to all [estate] management.’46

Sellar’s own thirst for vengeance on all the many people he regarded as his persecutors had meanwhile been intensified by his discovering on his getting back to Culmaily from Inverness that 20 recently purchased – and expensive – sheep had had their throats cut in his absence. This ‘outrage’ by ‘pure barbarians’, he raged, had to be countered by having its perpetrators found and ‘punished with the utmost severity of the law’. As for Alexander Sutherland, whom Sellar regarded as ‘the fomentor of all . . . [Sutherland Estate] disturbances if not the very author of them’, it was essential ‘to give [him] battle’ at the earliest opportunity. Hence Patrick Sellar’s positive response when, in May 1816, James Loch, with the Marchioness of Stafford’s backing, advised him to engage English counsel with a view to suing Sandy Ink, the Military Register, or both, for libel.⁴⁷

To Sellar’s disappointment, this plan had scarcely been sanctioned when it was abandoned – presumably because, on reflection, Loch and the Staffords realised that it would have done them no good to have the Badinloskin burning, plus other problematic episodes in Strathnaver and the Strath of Kildonan, examined in a London court. But if Alexander Sutherland thus remained beyond the reach of Sellar, Loch, the marquis and the marchioness, it was otherwise with his brother John – seen by the Stafford camp as a key player in the anti-Sellar and anti-clearance activity of the preceding two or three years. The Sciberscross tacksman’s lease being due to expire in 1818, it was made clear to him that there was no chance of its being renewed.⁴⁸

Sciberscross, in the upper part of Strathbrora, is some two or three miles beyond Ascoilemore where Jessie Ross (with whom this book began) was probably more taken up in the spring of 1816 with the care of her first child, born in February that year, than with the repercussions of Patrick Sellar’s trial. But it is certain, despite this, that Jessie, her husband Gordon and their neighbours would quickly have become aware that John Sutherland had been left with no option but to quit a spot where his forebears, according to John’s son William, had ‘lived . . . since 1416’. The Ascoilemore Rosses, to be sure, are unlikely to have had much contact with the Sciberscross Sutherlands, who, being daoine uaisle or gentry, would have kept themselves apart from the wider population of Strathbrora. But this wider population, for all that, is bound to have been alarmed by news of the planned severing of the Sutherland family’s connection with Sciberscross. Irrespective of whether or not William Sutherland was exact in his dating, this connection had lasted for several hundred years. Its termination, as people up and down Strathbrora would at once have recognised, was a clear signal that evictions of the kind Patrick Sellar had implemented in Strathnaver might soon affect them also. If the Sutherlands of Sciberscross, for so long the locality’s principal family, could be ordered out of Strathbrora, so – it followed – could everybody else.49

Nor was it any easier emotionally for the Sutherlands to leave Sciberscross, where their substantial home was set among what agricultural writer John Henderson called a ‘shrubbery of birch, alder and hazel’, than it was for other displaced families to quit long-familiar surroundings. That is evident from a letter sent by John Sutherland’s wife Mary to the Marchioness of Stafford: ‘How can I describe my . . . feelings at the idea of quitting Sutherland for ever! It is so dreary to me that I dread it like annihilation.’ Signing herself Mary Maxwell Sutherland to make the point that she had been named for the marchioness’s mother, also Mary and a daughter of Kirkcudbrightshire laird William Maxwell, Mary Sutherland (a MacDonald by birth) made clear that her husband was perfectly willing to match, or more than match, whatever Sciberscross rent might be available from others: ‘If your Ladyship and Lord Stafford would have the goodness and condescension to continue the present possession of Sciberscross [meaning its occupation by her and her family] on terms equal to any other offer, or on any [other] terms agreeable to your Ladyship, God who delights in mercy and forgiveness would reward [that] generous action.’⁵⁰

Mary Sutherland’s plea for ‘mercy and forgiveness’ on the marchioness’s part stemmed from her husband having acknowledged, in one of his own letters to Lady Stafford, that he had indeed played a part – in association with his brother Alexander – in publicising various acts of resistance to ‘improvement’. But he had meant only ‘to expose’ her ‘agents’, John Sutherland informed the marchioness in the course of a continuing exchange of correspondence, and he resented suggestions that he had been ‘engaged in a kind of sedition’ or ‘had committed a criminal action’.⁵¹

This in no way weakened Stafford resolve to be rid of the Sciberscross tacksman. Nor did the latter’s appeals to history. His father, John Sutherland reminded the marchioness, had come promptly and effectively to the aid of her grandfather, Sutherland’s 17th earl, when Dunrobin Castle and the rest of the Sutherland Estate were menaced in the course of the 1745 Jacobite Rebellion, which the earl had opposed. Lady Stafford, John Sutherland continued, ‘ought to remember [his] father’s services’, for which that earlier Sciberscross tacksman had been ‘promised Sciberscross . . . all his life free, and to his son after him, by your noble grandfather’.52

Neither John nor Mary Sutherland’s appeals having made any impression on the marchioness, it was left to their son William to make a last attempt. Like his father, his London-based uncle and lots of others of tacksman background, William had opted for a military career, and by 1816 had attained the rank of captain in the 93rd Regiment. The 93rd, following its Chalmette mauling, had been sent to Ireland to recuperate, and it was from there – from Limerick specifically – that William Sutherland now wrote to Lady Stafford. ‘Although my father has unfortunately, and I am sure unintentionally, incurred your Ladyship’s displeasure’, runs his letter, ‘I trust . . . [this] feeling does not extend to his children.’ Because it would sadden him to see his family ‘entirely removed’ from an estate where that same family had ‘been so long cherished’, William went on, he would be much indebted to the marchioness if she were to consider granting him a lease of Sciberscross ‘on equal terms with [those on offer from] any other candidate’.⁵³

Like his father’s identical proposal – and as had happened when Kildonan people similarly offered to match the rents Gabriel Reed and William Clunes had agreed to pay for their lands – this suggestion was rejected. ‘There can be no change in our determination,’ the Marchioness of Stafford commented. From May 1818, Sciberscross would be tenanted, it was announced, by James Hall. One of the two men who had had to ride for their lives out of the Strath of Kildonan at the start of January 1813, Hall came originally from Roxburghshire. In his mid-forties when he moved into Strathbrora, James Hall was by trade a shepherd who, prior to his embarking on his Sciberscross venture, had been other people’s waged employee. He was of similar background, then, to the Northumberland-born John Cleugh, who had already taken on the tenancy of Pollie, with which Sciberscross shared a boundary. Such men, supremely skilled managers of sheep, were in time to make themselves wealthy. But they had begun life in anything but elevated circumstances. This must have made his departure from Sciberscross all the harder for John Sutherland to bear. He had been displaced, in effect, by a Borders shepherd he is sure to have regarded as having had far, far lowlier origins than himself. To that extent, James Hall’s acquisition of Sciberscross – a development redolent of inherited status and privilege giving way to something else entirely – can be seen as a revolutionary moment. The revolution in question, however, brought little or nothing by way of benefit to Strathbrora’s population.54

‘His general intelligence, integrity and kindness of disposition’, an obituarist would write of James Hall, ‘made him much esteemed and respected by his friends and acquaintances.’ Even allowing for the fact that obituaries almost always deal in positives, there is no reason to quarrel with that statement. But Hall – caring and kindly though he may have been – had no option but to comply with the conditions of his lease. Those were to the effect that his Sciberscross farm was to be cleared in advance of his taking occupancy and kept free of people – Hall’s shepherds excepted – thereafter.⁵⁵

If being rid of Sciberscross’s tacksman pleased the Staffords and their managers, ousting Robert McKid delighted them. McKid’s fate had been sealed not so much by Patrick Sellar’s Inverness acquittal as by the exposure, in the High Court, of the sheriff-substitute’s less than scrupulous handling of Sellar’s prosecution. ‘McKid’, George MacPherson Grant reported to the Marchioness of Stafford in the immediate aftermath of Sellar going free, ‘is made as black as possible.’ William MacKenzie, the marquis and marchioness’s Edinburgh lawyer, was of the same opinion. ‘McKid’s punishment and dismissal should follow as a consequence [of the trial outcome],’ he commented on news of the Inverness verdict reaching the Scottish capital. Lord Pitmilly, MacKenzie informed Lady Stafford some days later, was of the view that McKid had been ‘at the bottom’ of the entire campaign to bring Sellar to trial. The judge, MacKenzie added, planned to make clear to George Cranstoun, Sutherland’s sheriff and McKid’s immediate superior, ‘what he [Pitmilly] thinks of the conduct of his substitute’.⁵⁶

Not long before Patrick Sellar’s trial, McKid had agreed – perhaps because he suspected things might not go his way at the High Court – to give up his tenancy of Kirkton farm. But he appears to have been in no way abashed, in the short run anyway, by his Inverness experiences. McKid, the marchioness learned from William Young some three weeks after the Sellar verdict, was certainly preparing to move out of Kirkton where he had arranged a ‘roup’ or sale of livestock, farm implements and other items. But the sheriff-substitute, it appears, continued to fulfil all his official functions with an ‘assurance’ Young found ‘astonishing’.⁵⁷

This was a state of affairs Patrick Sellar, for one, was determined to end. In June, with the support of the Staffords and James Loch, Sellar launched a defamation suit against Robert McKid, who was accused, in papers served by Sellar’s lawyers, of ‘circulating false reports to [Sellar’s] prejudice, perverting and abusing his official duty . . . depriving the pursuer [meaning Sellar] of his liberty . . . [and] joining a conspiracy of persons . . . to ruin the pursuer’. McKid, as soon became common knowledge, was being sued for ‘exemplary’ or punitive damages of £5,000. This sum, equivalent to several hundred thousand pounds today, was one the sheriff-substitute could not possibly have found. But being determined (or so it seemed initially) to fight his corner, McKid engaged the legal services of Joseph Gordon, ex-laird of the Carrol Estate and (as underlined already) a man with no time for the Staffords or for the land management policies they were imposing on Sutherland.58

‘I shall make a point of having McKid well trounced,’ Patrick Sellar told Lady Stafford. So it turned out. Although Joseph Gordon lodged defences on the sheriff-substitute’s behalf, McKid at last concluded that he had no option but to throw himself on Sellar’s mercy. Gordon duly arranged for the Sellar suit to be dropped on condition that McKid met Sellar’s legal expenses of £200 (an amount for which Joseph Gordon stood surety) and made full acknowledgement of his having been at fault in having Sellar charged, arrested and jailed.⁵⁹

The required apology was infused with self-abasement: ‘Sir,’ McKid wrote, ‘Being impressed with the perfect conviction and belief that the statements to your prejudice contained in the precognition which I took in Strathnaver in May 1815 were to such an extent exaggerations as to amount to absolute falsehoods, I am free to admit that, led away by the clamour excited against you, on account of the discharge of the duties of your office as factor for the Marchioness of Stafford . . . I gave a degree of credit to those mis-statements of which I am now thoroughly ashamed and which I most sincerely and deeply regret.’⁶⁰

When bringing George Macpherson Grant up to date with McKid’s abject surrender, Sellar observed: ‘I found the miserable man involved in such difficulties on all hands, and his family . . . so certainly about to be beggared by my bringing him to heel, that I was well pleased to wash my hands of him.’ With his wife and several children – children to whom Donald Sage acted for a time as private tutor – Robert McKid had meanwhile quit Sutherland (as many others did during the clearance era) for Caithness. His resignation from the post of sheriff-substitute was registered formally in the records of Dornoch Sheriff Court, where he had previously presided, on 29 November 1816. At about the same time, McKid was reported to ‘be shipping off his furniture [presumably from the Meikle Ferry pierhead] . . . on board a vessel for Thurso’.* He would play no further part in the public life of Sutherland.⁶¹

Neither, it transpired, would George Cranstoun. The sheriff had first incurred the Stafford camp’s suspicions when, in 1813, he was thought by William Young and Patrick Sellar to have been insufficiently hard on the Kildonan rebels. But it was Cranstoun’s conduct during 1815 that made it imperative, from a Stafford perspective, to have him ousted. In the spring of that year, as both Sellar and the Staffords were well aware, Cranstoun had been directly in touch, through John Munro, with the Strathnaver dissidents. Worse, he was suspected (correctly) of having encouraged Robert McKid to push ahead with his investigations into Sellar’s Rhiloisk evictions. Hence Lady Stafford’s increasingly strident denunciations not just of Sutherland’s sheriff-substitute but of the county’s sheriff also. ‘I am convinced Cranstoun wished to support him [McKid] if he could against us,’ the marchioness observed in June 1816. His so doing, she added, stemmed ‘from the democratic feeling all those people have in spite of themselves’.⁶²

While the notion that George Cranstoun harboured quasi-revolutionary sympathies was – to put it mildly – exaggerated, it was nevertheless the case that his views were at odds with those of a political establishment given to cracking down on dissent of all kinds. This is clear from the extent to which, in the period following Sellar’s trial, Cranstoun was prepared to come to the aid of people who found themselves accused of subversion. Prominent among such people was Andrew McKinlay, a radically-inclined Glasgow weaver brought to trial on charges of high treason. For little or nothing in the way of payment, Cranstoun lent his support to McKinlay’s defence team and had the satisfaction of seeing the weaver go free as a result of highly plausible allegations that the advocate depute in charge of the case had offered inducements to (or, more bluntly, bribed) a key Crown witness.⁶³

The advocate depute in question was Henry Home Drummond. Although there is no surviving evidence to this effect, it may be that George Cranstoun derived some satisfaction from the consequent discomfiture of the man who had made such a poor fist of Patrick Sellar’s prosecution. Cranstoun is also likely – for more personal reasons – to have welcomed the way in which the McKinlay case’s collapse redounded greatly to the discredit of the government minister responsible for having brought the weaver and other pro-democracy activists to court. This was Alexander Maconochie, who in July 1816 had succeeded Archibald Colquhoun as lord advocate – a development quickly followed by Maconochie (an especially reactionary member of Lord Liverpool’s profoundly illiberal administration) becoming party to a well-organised campaign to have George Cranstoun eased out of his position as Sutherland’s sheriff-principal.

This campaign’s mastermind was James Loch, who within weeks of the new lord advocate taking office had supplied him with ‘a series of papers’ summarising the extent of anti-clearance protest in localities like Strathnaver and highlighting, as Loch put it, ‘the necessity of some steps being taken’ to remedy what Loch called ‘the extremely defective execution of the laws’ throughout Sutherland. Maconochie could not have been more compliant. ‘Acquainted as you are with what is going on in that part of the country,’ the lord advocate assured Loch, ‘I shall be most happy to receive any communications you will be so obliging as [to] make me upon the [administration] of justice [in] Sutherland and the remedies which you . . . recommend as the most likely to prove effectual for removing the present evils.’64

Loch now had his opening. McKid, he explained to Maconochie, could not long survive the exposure of his prejudiced treatment of Patrick Sellar. But Cranstoun too had to be ousted. What was needed, Loch went on, was a sheriff-principal who, unlike Cranstoun, was prepared to take up permanent or semi-permanent residence in Sutherland – a sheriff, Loch pointed out, being supposedly obliged to spend a minimum of four months a year in his sheriffdom.⁶⁵

Because of safeguards parliament had put in place with a view to guaranteeing judicial independence on a sheriff’s part, the lord advocate, in the absence of definitive proof that George Cranstoun had engaged in serious wrongdoing, could not have him sacked. But he could and did put Cranstoun under pressure, with the result that, just three or four weeks after he had first contacted Maconochie, James Loch was able to report to Lady Stafford that the lord advocate or one of his aides had more than once ‘told [Cranstoun] that he ought to give up the [Sutherland] sheriffship’. Shortly after, Cranstoun – angered no doubt by his treatment but relieved perhaps to have got clear of his Sutherland embroilments – tendered his resignation.⁶⁶

Loch’s correspondence with the lord advocate now moved on to the question of who was to take Cranstoun’s place. Sutherland’s next sheriff, Loch instructed Maconochie, must be ‘of a firm and independent character’. But as so often with Loch, his words are not to be taken at face value. In Sutherland, he had commented in the course of an early letter to the lord advocate, ‘a long continuance of old usages and customs’ meant that ‘improvement’ and its attendant need for clearance were ‘considered . . . an infringement of the natural and established rights of the inhabitants’. The ‘independence’ Loch had in mind, then, had less to do with impartiality than with an acceptance that the supposed ‘rights’ of Sutherland residents – rights, Loch felt, to which Cranstoun was overly attached – should automatically be overridden if they conflicted with what the Stafford family wished to do with their property. Hence Loch’s alarm when it began to look as if Maconochie might settle on Cranstoun’s replacement in advance of his having had an opportunity to satisfy himself of the new man’s suitability.67

Matters were proceeding so rapidly in Edinburgh, Loch informed Lady Stafford, that he feared the lord advocate ‘might take some steps [in relation to a Sutherland appointment] without any communication with your Ladyship and Lord Stafford. I wrote to him accordingly, stating that this would not do.’ Maconochie was reassuring: ‘I never intended to recommend anyone to be sheriff [of Sutherland] without Lady Stafford’s approval, which I thought indispensable.’ He had hoped to meet with the marchioness and the marquis when they were briefly in Edinburgh in the early autumn, the lord advocate continued. That had proved impossible. But he would ‘probably be in London before anything is done’, and he and Loch would then ‘have plenty of time to talk over the subject’.⁶⁸

Maconochie and Loch duly met. They agreed that – subject to the quickly forthcoming consent of the Marquis and Marchioness of Stafford – Sutherland’s sheriff-principal should be Charles Ross. A much less prominent lawyer than his predecessor, Sutherland’s new sheriff, as would be shown by the way he and his subordinates became party to James Loch’s persecution of Strathbrora schoolmaster Gordon Ross, was as amenable to manipulation as Loch and the Staffords could have wished. When, in 1815, tenants evicted from their Strathnaver landholdings by Patrick Sellar looked to George Cranstoun* for assistance, they did not look in vain. Future casualties of clearance would receive no such help from Sheriff Ross or from John Law, the lawyer who now moved from Aberdeen to take over Robert McKid’s role as Sutherland’s sheriff-substitute. Henceforth, as would become painfully evident to Gordon Ross in the summer of 1821, the administration of justice in Sutherland would be subordinate to the requirements of the Staffords and James Loch.

* Like most Scottish tolbooths, Inverness’s served various functions: as a toll or tax collecting point, a town council meeting place, a courthouse and a jail.

* Prior to the twentieth century, only males served on Scottish juries.

† Panel was, and is, the term applied formally to a defendant in Scots law.

* Britain’s penal colony in Australia.

* In Inverness, where it appears to have been taken for granted on all sides that Henrietta was indeed William’s wife, the earlier allegation that Chisholm had entered into a bigamous marriage did not surface, a fact that creates some doubt as to the story’s truth.

* Prior to the Reform Act of 1832, Scottish county electorates, as a result of voting rights being confined to just a few men of property, were vanishingly tiny.

* In Thurso McKid set up a legal practice and went into business. Although he got into financial difficulties after three or four years, those proved temporary. First in Caithness and later in Ross-shire, McKid appears to have done reasonably well.

* His loss of his sheriffdom did not, in the end, impede Cranstoun’s advancement. In 1826 he was made a judge.