James Carnegie of Finhaven

James Carnegie of Finhaven (died 1765)^[1] was laird (landlord) of the Finavon Estate, Angus, Scotland from 1712 until his death. He inherited the estate by entail and became laird after his older brother died in 1712.

In 1716, Finhaven was arrested, likely at the Battle of Sheriffmuir, and charged in Carlisle for the being a Jacobite. He pleaded for pardon as he was backmailed into uprising by his brother-in-law, Patrick Lyon of Auchterhouse.^[2]

Finhaven is famous for his trial for the accidental 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 established the right of Scots juries to judge the whole case and not just the facts.^[3]

James Carnegie was the second son of James Carnegie of Finavon Castle (also known as Finhaven) in Angus, and a grandson of David Carnegie, 2nd Earl of Northesk. The family seat, Finavon Castle Tower, is a scheduled monument.James Carnegie of Finavon Tower Castle ^[4]

Carnegie married twice:

• First, on 24 March 1711, to **Margaret Bennet**, daughter of Sir William Bennet of Grubbet.^[5] They had two daughters:
  • **Ann Carnegie** (died 1 December 1750), who married Sir John Ogilvy, 4th Baronet of Invercarity.
  • **Margaret Carnegie** (died 1815), who married firstly Foulis of Woodhall, and secondly Charles Lewis.
• Secondly, to **Violet Naesmyth**, daughter of Sir James Naesmyth of Posso, Baronet. They had:
  • **James Carnegie** (1743–1777), the legal heir. He was formally recorded in the Service of Heirs on 4 May 1757.^[6] He later died unmarried in Lisbon.
  • **Barbara Carnegie**, who married Alexander Douglas.

James Carnegie died in 1765.

Sir James Carnegie (father) created an entail 1703 making James his second son heir. As Charles his eldest brother suffered (likely) a cerebral haemorage, around 1702-03, making him unable to walk and talk with any clarity. After their fathers death Charles challenged his brother's entail in 1707. The case was heard in the Court of Session Edinburgh. James agreed to allow his older brother to hold the barony title for his lifetime. The Courts agreed and this was the final ruling. ^[7]

Charles died in 1712 and then James became Laird and holder of the estate under the entail. Meaning he could not change the line of succession.

The Will and Testament of James Carnegie d 1763 was held in London for his personal effect. His heir was his son M2 James Carnegie d 1777 unmarried and without issue in Lisbon. James inhereted under Scots law via his grandfathers entail. Before probate could be granted in Courts of Canterbury James Carnegie died and the probate record 1779 identifies his daughter Barbara Douglas (née Carnegie) James Carnegie 3rd Sister as the "lawful daughter of the deceased and first heir of entail", and granted her administration as the executrix.^[8]

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"^[9] 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:^[9] 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. Lady Margaret Auchterhouse was Finavons sister. 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, rudely commented that Carnegie was a man of only daughters and not sons, was very rude to Finhaven and spoke of: "his not being willing to marry off one of his daughters. Impolitely mentioned Finavons debts ... and he even used some rudeness towards the lady herself." In fact Carnegie was well provided for and the debt was in fact to him from Strathmore.^[9]

It was with the utmost difficulty that Lord Strathmore induced his two companions to leave the house.^[10] About dusk, the party sallied forth into the street, and "now that the modified restraint of a lady's presence was removed,"^[10] 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."^[10] 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.^[10] 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.^[11]

Carnegie was tried on 2 August 1728 for premeditated murder, a charge supported by "long arguments and quotations of authority,"^[9] 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,"^[9] 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.

In addition what is clear is that "The Debt of Annualrents was not James' but the Earls to James: Wedderburn depones that James told him "the Earl was his debitor, and was owing him several years annualrents" (interest on a loan).^[12]

Transcript of the above: From the Trail Records above Dated 1728: TR Alexander Wedderburn of Blackneſs, ſolemnly ſworn, purged, examined and interrogate, De. poned, That about the end of October one thouſand ſeven hundred and twenty ſix, there was a meeting of che gentlemen of the ſhire of An concerning their affairs, in the town of Forfar, oo the deceaſt Earl of Strathmore was choſen Preſes of the meeting; and that the Laird of Finbaven, who was there alſo, called down thedeponent to the ſtreet, and expreſt himſelf to this. purpoſe 3 That he had met with ſeveral diſobli. gations from the Earl of Strathmore, of which there was juſt now an inſtance, That the Earl being Preſes of the meeting, had kept him out of a committee that was then choſen ; That the Earl was his debitor, and was owing him ſeveral] years annualrents; That he did not much notice, but that he would reſent, or make the Ear] repent what he had met with, or words to that purpoſe: And this he ſaid with an afſeveration, and deſired the Deponent to acquaint the Earl with what he had ſaid: But the Deponent refuſed it, and ſaid they were all friends together, and he would forget it againſt to-morrow. And deponed, That he the Deponent, that ſame night did ſpeak to my Lord Gray, 1o ſpeak to my Lord Strathmore, -'t

get Finhaven added ro the committee, ſaying, ha would make all things right: bũt my Lord Gray retur-

ned no anſwer to the Deponent. Cauſa ſcientiæ patet.

And this is the truth as he ſhould anſwer to Gop. Alex. Wedderburn.

WA. PRINGLE

^[1]