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

Forethocht Felony 49
forethocht felony or not. The texts are nearly identical and mirror the words
of the statute of 1372:
Inquisitio si talis interfecit talem per forthought felony vel non. Jacobus dei
gratia vicecomiti et balliuis suis salutem. Mandamus etc. quatinus per probos et
fideles homines patrie per quos rei veritas melius sciri poterit magno sacramento
interveniente diligentem et fidelem inquisitionem fieri faciatis si talis lator presencium
talem ex iracundie inconsulto calore nee per murthir nee per forthocht
felony interfecit. Et si et in quantum rei alias dedicit [sic] occasionem et causam sue
mortis expredicto inconsulto iracundie calore vel aliter. Et que et quales circumstancie
intervenerunt in morte et causa mortis dicti R. Et quid per diet am inquisitionem
diligenter et fideliter factam esse inveneritis sub sigillo vestro vicecomitis et sub
sigillis eorum qui dictam inquisicionem intererunt faciendum ad capellam nostram
mittatis et hoc breve. 31
The wording of the rubric, incidentally, clearly incorporating the category
of 'murder' within forethocht felony, shows that the vel and sive occurring
in David II's statute between murthyr and praecogitatam malitiam, and in
Robert IPs statute between ex certo et deliberate proposito, forthouchfelony
and murthir are conjunctive.
At least two fifteenth century Scottish statutes also mention forethocht
felony and contrast it with actions on a 'suddante' or chaudemellee. The
first, an Act of James I in 1425, is concerned not so much with homicide
specifically but more generally with breaches of the king's peace. 32 Should
anyone complain that the king's peace has been broken upon him, it runs,
the appropriate officer of the law is to summon both parties and inquire
diligently and without favour whether the deed was done upon forethocht
felony or 'throw suddande chaudemellay'. 'Ande gif it be fundyn forthocht
31 Inquest [to determine] whether one killed another through forethocht felony or not.
James by the grace of God to his sheriff and bailies greeting. We command etc. that you cause a
diligent and faithful inquest to be held, under application of the great oath, by good and faithful men
of the country by whom the truth of the matter can be better known to determine whether the bearer
of these presents [i.e. the petitioner] killed another in anger in the heat of the moment and not through
murder or forethocht felony; and whether and in what respect he [the deceased] gave him occasion and
cause for his death arising out of anger in the heat of the moment foresaid or otherwise; and what were
the general circumstances of the death and the cause of the death of the said R. And send whatever
you find transacted diligently and faithfully by the said inquest along with this brieve to our chapel
under your own seal as sheriff and under the seals of those who served on the said inquest.
(In translating I have utilized Bute's 'et si et in quantum ipse ei alias dederit', which is clearly
preferable to the 'et si et in quantum rei alias dedicit' of Formulary E).
The text is taken from Formulary E: Scottish Letters and Brieves, 1286-1424, A.A.M. Duncan,
ed. (Univ. of Glasgow, Scottish History Dept. Occasional Papers, 1976), no.14. The italics are mine.
Formulary E is Edinburgh University Library MS Borland no.207. Professor Duncan describes this late
fifteenth century manuscript 'as evidently a copy of an earlier MS, the date of which is indicated by
inclusion of legislation of 1424 and the absence of any later material'. This earlier material was itself
composite. Compare Bute MS - Register of Brieves, Lord Cooper, ed., Stair Society, x (Edinburgh,
1946), no.68. Duncan dates Bute to c. 1400.
32 A.P.S.,ii, 9.