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James Carnegie of Finhaven (died 1765) [1] 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.
James Carnegie was the second son of James Carnegie of Finavon (or Findhaven) in Angus, and a grandson of David Carnegie, 2nd Earl of Northesk. Although his elder brother Charles did not die until 1712, James succeeded to the family estate on his father's death in 1707, under an entail made in 1703.
Carnegie married firstly Margaret, daughter of Sir William Bennet of Grubbet; they had two daughters. His second wife was Violet, daughter of Sir James Naismith of Posso. They had one son and three daughters:
On 9 May 1728 Mr Carnegie of Lour, residing in the burgh of Forfar, 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" [2] 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: [2] 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." [2]
It was with the utmost difficulty that Lord Strathmore induced his two companions to leave the house. [3] About dusk, the party sallied forth into the street, and "now that the modified restraint of a lady's presence was removed," [3] 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." [3] 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. [3] The Earl died forty-nine hours after the incident.
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. [4]
Carnegie was tried on 2 August 1728 for premeditated murder, a charge supported by "long arguments and quotations of authority," [2] 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, but of manslaughter. However, the court, "sacrificing rationality to form and statute," [2] 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 the constitutional principle of a Scottish jury's right to render one of three verdicts: "proven", "not proven" and "not guilty" which remain contentious to this day.
Glamis Castle is situated beside the village of Glamis in Angus, Scotland. It is the home of the Earl of Strathmore and Kinghorne, and is open to the public.
Jury nullification (US/UK), jury equity (UK), or a perverse verdict (UK) occurs when the jury in a criminal trial gives a not guilty verdict regardless of whether they believe a defendant has broken the law. The jury's reasons may include the belief that the law itself is unjust, that the prosecutor has misapplied the law in the defendant's case, that the punishment for breaking the law is too harsh, or general frustrations with the criminal justice system. Some juries have also refused to convict due to their own prejudices in favor of the defendant. Such verdicts are possible because a jury has an absolute right to return any verdict it chooses.
Earl of Strathmore and Kinghorne is a title in the Peerage of Scotland and the Peerage of the United Kingdom. It was first created as Earl of Kinghorne in the Peerage of Scotland in 1606 for Patrick Lyon. In 1677, the designation of the earldom changed to "Strathmore and Kinghorne". A second earldom was bestowed on the 14th Earl in the Peerage of the United Kingdom in 1937, leading to him being titled as the 14th and 1st Earl of Strathmore and Kinghorne.
Not proven is a verdict available to a court of law in Scotland. Under Scots law, a criminal trial may end in one of three verdicts, one of conviction ("guilty") and two of acquittal.
Clan Lyon is a Scottish clan.
Robert Dundas of Arniston, the elder, 2nd Lord Arniston (1685–1753) was a Scottish lawyer, and Tory politician who sat in the House of Commons from 1722 to 1737. In 1728 he reintroduced into Scottish juries the possible verdicts of guilty or not guilty as against proven or not proven. He was Lord President of the Court of Session from 1748 to 1753.
Thomas Lyon, 8th Earl of Strathmore was a Scottish nobleman, and Tory politician who sat in the House of Commons from 1734 to 1735, when he resigned upon succeeding to the peerage as Earl of Strathmore.
Charles Lyon, 6th Earl of Strathmore and Kinghorne was a Scottish peer and nobleman. He was the son of John Lyon, 4th Earl of Strathmore and Kinghorne. His exact date of birth is unknown but he was baptised on 12 July 1699.
Susan Lyon, Countess of Strathmore and Kinghorne was a Scottish noble. She was the daughter of John Cochrane, 4th Earl of Dundonald, wife of Charles Lyon, 6th Earl of Strathmore and Kinghorne, and "Scotland's fairest daughter", to quote a chronicler of the time. She married Charles Lyon, 6th Earl of Strathmore and Kinghorne, but he was killed in an unfortunate brawl at Forfar by Carnegie of Finhavon in May 1728, leaving no heir. The resulting trial is famous for establishing in Scots law the "not guilty" verdict. Later the Countess married her servant and was shunned by her family until she died in Paris leaving a daughter who was left penniless by her rich relatives.
Claude Bowes-Lyon, 13th Earl of Strathmore and Kinghorne, styled The Honourable Claude Bowes-Lyon from 1847 to 1865, was a British peer. He was the 13th holder of the Earldom of Strathmore and Kinghorne, the paternal grandfather of Queen Elizabeth The Queen Mother, a great-grandfather of Elizabeth II, and great-great-grandfather of Charles III.
Alexander Lindsay, 4th Earl of Crawford (1423–1453) was a late medieval Scottish nobleman, and a magnate of the north-east of that country.
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. The name is applied both to a ruined 17th-century castle, as well as the 19th-century mansion house 130m to the west.
James Lyon, 7th Earl of Strathmore was a Scottish peer and freemason.
John Lyon, 4th Earl of Strathmore and Kinghorne was a Scottish nobleman and peer. He was the son of Patrick Lyon, 3rd Earl of Strathmore and Kinghorne. He married Elizabeth Stanhope on 21 September 1691 and was succeeded as Earl by his son John Lyon, 5th Earl of Strathmore and Kinghorne.
Charles Noel Carnegie, 10th Earl of Southesk JP DL, was a Scottish nobleman.
Philip Herbert, 7th Earl of Pembroke, 4th Earl of Montgomery KB was an English nobleman and politician who succeeded to the titles and estates of two earldoms on 8 July 1674 on the death of his brother William Herbert, 6th Earl of Pembroke.
Elizabeth Lyon, Countess of Strathmore and Kinghorne, was an English noblewoman and the wife of Scottish peer John Lyon, 4th Earl of Strathmore and Kinghorne. Born to Lady Elizabeth Butler and Philip Stanhope, 2nd Earl of Chesterfield, her paternity was in doubt. It is possible that her actual father was James, Duke of York, who would in 1685 ascend the throne as King James II of England.
Patrick Lyon of Auchterhouse was a Scottish politician.
James Carnegie of Finavon or Findhaven was a member of the Parliament of Scotland.
Thomas Lyon (1741-1796), was a Scottish politician who sat in the House of Commons between 1768 and 1778.