Everything about Carnegie Of Finhaven totally explained
Carnegie of Finhaven is famous for his trial for the murder 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.
Death of the Earl of Strathmore
On
March 9 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 wasn't 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: About dusk, the party sallied forth into the street, and "now that the modified restraint of a lady's presence was removed,"
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'd no grudge against the earl, but instead he'd had the greatest kindness and respect for him. "If it'll appear," he'd said, "that I was the unlucky person who wounded the earl, I protest before God I'd much rather that a sword had been sheathed in my own bowels." He didn't 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 didn't 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,"
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 wasn't diminished or annihilated by the circumstances of the case. Quite unexpectedly the jury didn't 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.
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