The Scottish legal system has a number of unique components that are necessary to understand both the defense and prosecution’s tactics during Brodie’s trial. The Scottish justice system is like that of English courts, but there are a few notable exceptions that will be covered through the rest of this chapter. For the moment, an overview of the Scottish criminal court proceedings will give one an idea of what Deacon Brodie was facing while he sat in the Tolbooth. When an inducement is brought to trial, the charges dictate in which venue a defendant’s case will be heard. Lesser crimes in Scotland are known as “summary” cases and are bound over to a Sheriff’s or Justice of the Peace’s Court where that single official rules on and passes sentence when defendants are found guilty. In modern times, over 90% of criminal charges are considered “summary” offenses and ruled in these lesser courts.   Since Brodie’s indictment was for a capital crime, his case fell into the category of a “solemn” case and was heard in a High Court. Solemn proceedings are jury trials and most closely resemble trials depicted in popular media.

One distinctive element of Scottish jurisprudence is that a jury can arrive at three possible verdicts. In addition to the binary “guilty” or “not guilty” verdicts the majority of the world’s legal system use, in Scotland a defendant’s charges can be found “not proven.”  In Scottish law recorded pre-1728 indictments were ruled either “proven” or “not proven” by juries. The innovation was actually the introduction of a “not guilty” verdict. The 1728 murder trial of James Carnegie of Finhaven would introduce the “not guilty” verdict into the Scottish legal system. In an odd twist of legal language, tradition, and juror’s mindsets since the Carnegie trial, “guilty” and “not guilty” have come to represent absolute culpability or innocence in Scottish justice. “Not proven” has become, what many in Scotland call, the bastard’s verdict. If a jury returns a “not proven” verdict, the defendant is released and double jeopardy rules against subsequent indictments for the same crime apply. Today, a jury’s message to a defendant with a “not proven” verdict is more of a , “we’ve not sure if you did it or not, but there’s enough gray area between the prosecution’s evidence and reasonable doubt that we in good conscious cannot convict” statement than a resounding cry for a defendant’s innocence.

The case that added a third verdict to Scottish justice involved James Carnegie of Finhaven standing trial for killing Charles Lyon the Sixth Earl of Strathmore and Kinghorne. The two men, along with a retinue, had tanned their fair share of pints after sharing the misery of Carnegie of Lour after the funeral of Lour’s daughter. The party started out a local tavern then began to amble about the town. A Mr. Lyon of Bridgeton joined the group at some point and his behavior chafed the sensibilities of James Carnegie. After Carnegie had called Lyon to task on everything from the Jacobite Rebellion to his untoward advances on a lady, Lyon evidently had taken his fill of Carnegie’s indignation. After moving the gathering from the house of the aggrieved lady in question, a fracas erupted and was described in a May 1728 broadside entitled, “A Letter from a Gentleman in Forfar, to His Friend at Edinburgh” and carried this verbatim account of Charles Lyon’s death:

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.

With “his pudding in three parts” Lyons died two days later and Carnegie of Finhaven would stand trial for his murder on 2 August 1728.

Carnegie of Finhaven’s defense team argued that their client should never have been charged with murder in the first place. The more sensible indictment for Carnegie should have been manslaughter given the circumstances of Lyon’s death and the fact Carnegie had no quarrel with Charles Lyon. The court took a strict interpretation of the statues citing that since Carnegie had struck the blow that killed Charles Lyon, the charge of murder would stand. The pubic, as well as the above-mentioned gentleman in Forfar, were outraged at the court’s strict observance of the murder statues. Attempting to ride on the coattails of public opinion, Carnegie’s defense council closed his arguments reminding the jury they not only could consider not only the facts of the case, but their deliberations should include the point of law in which Carnegie was indicted.

The jury in Carnegie of Finhaven’s trial took the middle ground when casting their verdict. Invoking what the jury called their “ancient right”, the jury found Carnegie “not guilty”. While it would have been within the court’s power to instruct the jury to return a proven or not proven verdict, the political expediency of allowing Carnegie to go free was likely all the inducement the court needed to accept the verdict. The implication with the verdict is that at one time juries in Scotland were allowed to perform an act of nullification based solely on their interpretation of law and fact. In time, a verdict of “not guilty” was taken for innocence and the “not proven” verdict turned into the hedge decision seen in today’s Scottish legal system. Today, “not proven” verdicts are returned in approximately a third of Scottish trial acquittals.

Considering the direct influence of Scotsmen in the writing of the Declaration of Independence and the United States Constitution, as well as the indirect weight the Declaration of Arbroath had upon these documents, one may wonder why a three verdict system never took hold in America.  The truth is that the United States had a brief moment where a not proven precedent could have been adopted into the judicial system. Those familiar with the outcome of former Vice President Aaron Burr’s 1807 treason trial may think that Burr was found not guilty of the charges. While the Burr verdict was technically “not guilty”, the jury pulled an end run around the two verdict system by returning the following decision into the court record:

We of the jury find that Aaron Burr is not proved to be guilty under the indictment by any evidence submitted to us. We therefore find him not guilty.

The idea and verbiage of “not proven” in the jury’s verdict didn’t just descend from the heavens into the minds of the jurors. Three of the jurors on the Aaron Burr trial had surnames indicating Scottish descent and it’s likely one, or a combination of all three, introduced the principle of “not proven” to the rest of the jury.

The efficacy of a three verdict system has been in debate since the precedence setting Carnegie of Finhaven trial. Some believe what the “not proven” verdict signifies gives criminals an unfair advantage in the Scottish justice system. The opposing point of view is that Scottish juries are empowered to strike down cases stemming from unjust laws to questionable Crown charges, thus adding a grassroots check-and-balance to the legal system.   No matter one’s feelings on the three verdict system, it was soundly in place during Deacon Brodie’s trail. Both the prosecution and defense teams would have been keenly aware that a “not proven” verdict was a distinct possibility in Brodie’s case. Brodie’s jury could just have voted the indictment was “not proven” believing a man of Brodie’s standing could not have committed such a crime. In examining Brodie’s defense, it will become fairly obvious through their tactics that a “not proven” verdict was the best they could hope for their client.