Carnegie of Finhaven
Encyclopedia
Carnegie of Finhaven is famous for his trial for the killing of Charles Lyon, 6th Earl of Strathmore and Kinghorne
which resulted in the not guilty verdict becoming a recognised part of Scots law
and establishment the right of Scots juries
to judge the whole case and not just the facts, a right known as jury nullification
.
, was burying his daughter. Before the funeral, he entertained the Earl of Strathmore
, his own brother James Carnegie of Finhaven
, Mr Lyon of Bridgeton, and some others, at dinner in his house. After the funeral, these gentlemen adjourned to a tavern, and drank a good deal. Carnegie of Finhaven got extremely drunk. Lyon of Bridgeton was not so intoxicated, but the drink made him "rude and unmannerly" towards Finhaven. Afterwards, the Earl of Strathmore went to call at the house of Mr Carnegie’s sister, Lady Auchterhouse (a distant relative of the Earl) and the others followed.
This group, like a large proportion of the Forfarshire gentry of the time supported the Jacobites
: and the 6th earl’s late brother (the 5th Earl
) had fallen at the battle of Sheriffmuir
in 1715 fighting for the Old Pretender, as had Patrick Lyon of Auchterhouse
, the husband of the lady they were visiting. Bridgeton did not conduct himself as appropriate in the presence of the lady and he even had the audacity to pinch his hostess's arms. Bridgeton was very rude to Finhaven and spoke of: "his not being willing to marry one of his daughters to Lord Rosehill, about his having no sons, about his debts ... and he even used some rudeness towards the lady herself."
It was with the utmost difficulty that Lord Strathmore induced his two companions to leave the house. About dusk, the party sallied forth into the street, and "now that the modified restraint of a lady's presence was removed," Bridgeton pushed Carnegie of Finhaven into a "deep and dirty kennel" (ditch) which ran along the roadside. Carnegie emerged covered nearly head to foot with mud and furious. "Such an insult could only be wiped out with blood." So Carnegie of Finhaven, rose and drawing his sword, ran up to Bridgeton, with deadly design. The earl, seeing him advance, imprudently threw himself between the two antagonists with the intention of diverting the blow and unhappily received the lunge full in the middle of his own body, the sword passing right through the Earl. The Earl died forty-nine hours after the incident.
His defence counsel tried to argue that in the circumstances of the case he was guilty not of murder
, but of manslaughter
. However, the court, "sacrificing rationality to form and statute," overruled the defence on the basis that the prisoner had "given the wound whereof the Earl of Strathmore died."
The killing being indisputable, Carnegie would have been condemned if the jury had merely given a verdict on the point of fact. In these circumstances, his counsel, Robert Dundas of Arniston
, told the jury that they were entitled to judge on "the point of law" as well as the "point of fact". He asserted that they should only decide whether in their conscience Carnegie had committed murder, or whether his guilt was not diminished or annihilated by the circumstances of the case. Quite unexpectedly the jury did not give a verdict of either "proven" or "not proven
" but instead gave a verdict of "not guilty", thus establishing a great constitutional principle of a Scottish Jury's right to jury nullification
and endowing Scots with the verdicts: "proven", "not proven" and "not guilty" which remain contentious to this day.
Charles Lyon, 6th Earl of Strathmore and Kinghorne
Charles Lyon, 6th Earl of Strathmore and Kinghorne was a Scottish peer and the son of John Lyon, 4th Earl of Strathmore. His exact date of birth is unknown but he was baptised on 12 July 1699....
which resulted in the not guilty verdict becoming a recognised part of Scots law
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
and establishment the right of Scots juries
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
to judge the whole case and not just the facts, a right known as jury nullification
Jury nullification
Jury nullification occurs in a trial when a jury reaches a verdict contrary to the judge's instructions as to the law.A jury verdict contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of acquittals develops in response to repeated attempts to...
.
Death of the Earl of Strathmore
On 9 March 1728 Mr Carnegie of Lour, residing in the burgh of ForfarForfar
Forfar is a parish, town and former royal burgh of approximately 13,500 people in Angus, located in the East Central Lowlands of Scotland. Forfar is the county town of Angus, which was officially known as Forfarshire from the 18th century until 1929, when the ancient name was reinstated, and...
, was burying his daughter. Before the funeral, he entertained the Earl of Strathmore
Charles Lyon, 6th Earl of Strathmore and Kinghorne
Charles Lyon, 6th Earl of Strathmore and Kinghorne was a Scottish peer and the son of John Lyon, 4th Earl of Strathmore. His exact date of birth is unknown but he was baptised on 12 July 1699....
, his own brother James Carnegie of Finhaven
Finavon Castle
Finavon Castle lies on the River South Esk, about a quarter of a mile south of Milton of Finavon village and five miles to the north-east of Forfar in Angus, Scotland...
, Mr Lyon of Bridgeton, and some others, at dinner in his house. After the funeral, these gentlemen adjourned to a tavern, and drank a good deal. Carnegie of Finhaven got extremely drunk. Lyon of Bridgeton was not so intoxicated, but the drink made him "rude and unmannerly" towards Finhaven. Afterwards, the Earl of Strathmore went to call at the house of Mr Carnegie’s sister, Lady Auchterhouse (a distant relative of the Earl) and the others followed.
This group, like a large proportion of the Forfarshire gentry of the time supported the Jacobites
Jacobitism
Jacobitism was the political movement in Britain dedicated to the restoration of the Stuart kings to the thrones of England, Scotland, later the Kingdom of Great Britain, and the Kingdom of Ireland...
: and the 6th earl’s late brother (the 5th Earl
John Lyon, 5th Earl of Strathmore and Kinghorne
John Lyon, 5th Earl of Strathmore and Kinghorne was a Scottish peer and the son of John Lyon, 4th Earl of Strathmore and Kinghorne. He died fighting with the Jacobites in The Battle of Sheriffmuir in 1715...
) had fallen at the battle of Sheriffmuir
Battle of Sheriffmuir
The Battle of Sheriffmuir was an engagement in 1715 at the height of the Jacobite rebellion in England and Scotland.-History:John Erskine, 6th Earl of Mar, standard-bearer for the Jacobite cause in Scotland, mustered Highland chiefs, and on 6 September declared James Francis Edward Stuart as King...
in 1715 fighting for the Old Pretender, as had Patrick Lyon of Auchterhouse
Patrick Lyon of Auchterhouse
Patrick Lyon of Auchterhouse was a Scottish politician.He was the second son of Patrick Lyon, 3rd Earl of Strathmore and Kinghorne and his wife Helen, daughter of John Middleton, 1st Earl of Middleton...
, the husband of the lady they were visiting. Bridgeton did not conduct himself as appropriate in the presence of the lady and he even had the audacity to pinch his hostess's arms. Bridgeton was very rude to Finhaven and spoke of: "his not being willing to marry one of his daughters to Lord Rosehill, about his having no sons, about his debts ... and he even used some rudeness towards the lady herself."
It was with the utmost difficulty that Lord Strathmore induced his two companions to leave the house. About dusk, the party sallied forth into the street, and "now that the modified restraint of a lady's presence was removed," Bridgeton pushed Carnegie of Finhaven into a "deep and dirty kennel" (ditch) which ran along the roadside. Carnegie emerged covered nearly head to foot with mud and furious. "Such an insult could only be wiped out with blood." So Carnegie of Finhaven, rose and drawing his sword, ran up to Bridgeton, with deadly design. The earl, seeing him advance, imprudently threw himself between the two antagonists with the intention of diverting the blow and unhappily received the lunge full in the middle of his own body, the sword passing right through the Earl. The Earl died forty-nine hours after the incident.
Public outcry
There was a huge public outcry to the intended prosecution of Carnegie of Finhaven as illustrated in "A Letter from a Gentleman in Forfar, to his Friend at Edinburgh."
- SIR, Forfar, May 16th, 1728.
- ACCORDING to your Desire, I have sent you an Account of the lamentable Catastrophe, which happen'd on Thursday the 9th of May instant, which has filled all the Kingdom with an universal Regret ; and this Part of it with the utmost Grief and Confusion imaginable, which is to be seen in the Faces young and old, all over the Country ; the Fact is as follows,
- On Thursday being the 9th Instant, several of the neighbouring Gentlemen were invited to this Place to a Burial, and among the rest the Earl of Strathmore, Carnegie of Finhaven, and Mr. Lyon of Brigton; after the Burial was over, a great many of the Gentlemen; among whom were these three before mentioned, went to a Tavern, where after they had been there some Time, Finhaven and Brigton fell a quarrelling, as some say, concerning the Lady Kinfawns, whose Brother Finhaven is; and others say it was about the Marriage of a Daughter of Finhaven's to a young Gentleman in this Country ; but however that be, Finhaven went to take his Horse, and had one foot in the Stirup, as his Servants say, when Brigton attack'd him, and threw him in a Mire, where he had certainly perish'd, had not his Servants come to his Rescue, together with the deceast Earl; Finhaven was no sooner recover'd, and his Servants endeavouring to make clean his Cloaths, but he drew his Sword; and the Earl stepping in to prevent any Mischief that might happen, received from Finhaven a mortal Wound, about an Inch below his Navel, which wounded his Puddings in three Parts, and went quite throrow his Body. His Lordship, after he received the Wound, spoke little till Saturday's Night he called for his Lady, endeavouring to comfort her, and grasping her Hand, he died about 12 a Clock that Night. This is the unfortunate End of this universally beloved Nobleman, whose rare Qualities render'd him an Ornament to his Country, a Pattern of Youth, and the Admiration of all that knew him.
- I am Yours, &c.
The trial for murder
Carnegie was tried on 2 August 1728 for premeditated murder, a charge supported by "long arguments and quotations of authority," as was common at that time. The accused man swore that as God was his witness he had no grudge against the earl, but instead he had had the greatest kindness and respect for him. "If it shall appear," he had said, "that I was the unlucky person who wounded the earl, I protest before God I would much rather that a sword had been sheathed in my own bowels." He did not admit his guilt except to say: "I had the misfortune that day to be mortally drunk, for which I beg God’s pardon." Carnegie said that in this state he did not remember seeing the earl when he came out of the ditch.His defence counsel tried to argue that in the circumstances of the case he was guilty not of murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, but of manslaughter
Manslaughter
Manslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
. However, the court, "sacrificing rationality to form and statute," overruled the defence on the basis that the prisoner had "given the wound whereof the Earl of Strathmore died."
The killing being indisputable, Carnegie would have been condemned if the jury had merely given a verdict on the point of fact. In these circumstances, his counsel, Robert Dundas of Arniston
Robert Dundas, Lord Arniston, the elder
Robert Dundas, Lord Arniston, the elder was a Scottish judge.The second son of Robert Dundas he served as Solicitor General for Scotland from 1717 to 1720 and as Lord Advocate from 1720 to 1725...
, told the jury that they were entitled to judge on "the point of law" as well as the "point of fact". He asserted that they should only decide whether in their conscience Carnegie had committed murder, or whether his guilt was not diminished or annihilated by the circumstances of the case. Quite unexpectedly the jury did not give a verdict of either "proven" or "not proven
Not proven
Not proven is a verdict available to a court in Scotland.Under Scots law, a criminal trial may end in one of three verdicts: one of conviction and two of acquittal ....
" but instead gave a verdict of "not guilty", thus establishing a great constitutional principle of a Scottish Jury's right to jury nullification
Jury nullification
Jury nullification occurs in a trial when a jury reaches a verdict contrary to the judge's instructions as to the law.A jury verdict contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of acquittals develops in response to repeated attempts to...
and endowing Scots with the verdicts: "proven", "not proven" and "not guilty" which remain contentious to this day.