Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

Forethocht Felony 45
'malice aforethought'. As the Scottish evidence has occasionally been brought
into play in the medieval English debate, I hope that this study will provide
further ammunition for English legal historians. I believe, too, that the study
of the historical development of the law of homicide in these islands and,
in particular, the changing meanings attached to the term 'murder' prompts
reflection on the modern debate as to how far it is desirable or even possible
to frame a watertight statutory definition of the crime. Many Scots lawyers
will be surprised, incidentally, to learn that the notion of malice aforethought
or 'forethocht felony' was part and parcel of their law for over 500 years, as it
plays no part in Scots law today.
To return briefly to the history of homicide in England, Maitland believed
that 'malice prepense' in the statute of 1390 did indeed signify premeditation,
and that this constituted the essential ingredient in the crime of murder.
During the fifteenth century, he argued, premeditated killing or murder could
be contrasted with killing in the heat of the moment, deliberately perhaps,
but without premeditation. Maitland, like Stephen before him, argued for
a continuous development in the law from the statute of 1390, through the
fifteenth century, to the distinction made in the sixteenth century between
murder and manslaughter. He used Scottish evidence from the fourteenth and
fiftenth centuries as a link in the chain of his argument. He also pointed back
to the English case of John de Warenne v. Alan de la Zouche in 1270, in which
actings ex praecogitata malitia were contrasted with those ex motu iracundiae
in apparent anticipation of the later distinction between malice aforethought
and chance medley or chaudemellee. 13
Maitland's view was generally accepted until the publication in 1967 of
Kaye's articles. Kaye set out to prove that malice prepense in the statute
of 1390 denoted a killing done 'wickedly' or 'wilfully' or 'without lawful
excuse', but not necessarily with premeditation. He saw no line of continuous
development between the statute of 1390 and the emergence of the distinction
between murder and manslaughter in the sixteenth century. In Kaye's view
the courts redefined murder and manslaughter in the middle of the sixteenth
century 'making the distinction between them depend on the presence or
absence of premeditation: thus manslaughter, or chance medley, came to
mean a deliberate killing "upon a sudden occasion'". Manslaughter or chance
medley, argued Kaye, had previously described not a deliberate, but 'an
accidental killing which took place in the course or furtherance of an act of
violence not directed at the person slain or any member of his company'. 14
He also argued that 'chance medley' was distinct, not only etymologically
but also conceptually, from 'chaudemellee' - actings in hot blood. 15 Kaye
13 F. W. Maitland, The Early History of Malice Aforethought' (1883), Collected Papers (Cambridge,
1911), i, 304-28. See also Pollock and Maitland, History of English Law, 2nd ed. (Cambridge, 1898;
rptd. 1968, with an introduction by S.F.C. Milsom), ii, 468-69 and 485-88.
14 Ubi supra n.7, 369-70.
15 Ibid., 376.