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

48 Legal History in the Making
I (1165-1214) when it appears as one of the pleas of the crown, excepted
from the grant of Annandale to Robert de Brus: 'Exceptis regalibus que ad
regalitatem meam spectant Scilicet . . . Causa de murdra'. 27 At this time it
presumably bore its original meaning of a secret killing. The earliest known
classification of homicide in Scots law occurs in the treatise known as Regiam
Majestatem, once thought to date from the first half of the thirteenth century,
but now dated later, probably to the years shortly after 1318. This section of
the Regiam is lifted almost verbatim from 'Glanvill's' De Legibus, compiled
over a century previously, and reflects the ancient use of the term 'murder' to
denote a secret killing:
Duo autem genera sunt homicidii: unum quod dicitur murdrum quod nullo vidente
vel sciente clam perpetratur . . . secundum genus homicidii est illud quod dicitur
simplex homicidium. 28
'Murder', therefore, is contrasted in the Regiam with 'simple' homicide.
The next evidence for the classification of homicide in Scotland comes from
two well known statutes of 1369/70 and 1371/72. The 1370 statute of David
II enacted that the king should not grant a remission for homicide until an
inquest had determined whether the killing had been committed per murthyr
vel per praecogitatam malitiam. 29 The statute of Robert II, two years later
- perhaps rather statutes, as there are a number of separate provisions -
follows the same classification, and enacts that when homicide has been
committed an inquest or assize should determine whether the killing was
committed ex certo et deliberato proposito vel per forthouchfelony sive murthir
vel ex calore iracundiae viz chaudemellee . 30 The 1372 statute also uses the
shorter formulation of per forthouchfelony vel per murthir in contrast to per
chaudemellee: if the assize finds forethocht felony or murder then sentence
is to be carried out without delay; if, on the other hand, it finds chaudmellee
the accused is to have the exceptions and defences already permitted by
law and custom - 'habebit dilaciones et defensiones legitimas et debitas per
leges Regni et consuetudines hactenus approbatas'. The statute continues
that in the case of a killer seeking sanctuary an assize should determine
whether the deed was per murthir sive per forthouchfelony or whether it
was per chaudemelle. Only in the latter case should benefit of sanctuary be
allowed.
Two near contemporary formularies, the Bute manuscript and Formulary
E, show that these statutes were no dead letter. Each contains a style directing
the holding of an inquest to determine whether someone had killed another by
27 Regesta Regum Scottorum II: The Acts of William I, G.W.S. Barrow, ed. (Edinburgh, 1971), 179.
28 Regiam Majestatem, Lord Cooper, ed., Stair Society, xi (Edinburgh, 1947), iv, 5; (iv, 4 in the
A[cts of the] Parliaments of] S[cotland], T. Thomson and Cosmo Innes, ed. (Record Commission,
1814-75), 633. And see Glanvill, G.D.H. Hall, ed. (1965), xiv, 3.
29 A.P.S., i, 509.
30 A.P.S.,i, 547-48.