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

50 Legal History in the Making
felony', the statute continues, 'the party salbe chalangyt incontinent of the
kingis pece breking be the officiaris of the lawe the quhilkis sail ger the party
hurte be fullely assythit [compensated] efter the quantite of the skaithe [harm]
that he has sustenyt'. Thereafter the malefactor is to be in the king's mercy as
regards life and limb. If, on the other hand, 'the trespass be done of suddande
chauldemelly the party scathit sail folowe [pursue the action] and the party
trespassande sail defende eftir the coursis of the auld lawis of the realme'.
This last sentence is in line with the provision in the 1372 statute that if the
inquest finds chaudemellee the defender is to have the exceptions and defences
allowed by law and custom.
The second statute dates from 1469 in James Ill's reign. 33 The preamble
complains of 'gret slachteris quhilkis has bene Richt commone ymang the
kingis liegiis now and of late baith of forethocht felony and of suddante'. Many
of those who have committed slaughter hope to be granted sanctuary, but the
law does not permit those who have committed 'forthocht felony tanquam
Incediator viarum etper Industriam' to enjoy sanctuary. An assise is therefore
to determine whether there has been forethocht felony or not, and only if it
finds 'suddante' is sanctuary to be granted. As Lord Cooper pointed out, the
statute's tanquam Incediator viarum et per Industriam follows the Vulgate's
rendering of Exodus xxi, 14 which speaks of a manslayer coming tanquam
insidiator etper industriam. 34 This passage would have been familiar to all canon
lawyers as it heads the treatment of homicide in Decretals V, xii. According to
the rubric there, the incorrigible manslayer (homicida incorrigibilis) is to be
handed over to the secular arm to be put to death - ut moriatur - Exodus xxi,
14 being cited as authority for this proposition.
It is clear then that from the last third of the fourteenth century at latest a
new classification of homicide was beginning to replace the division between
murder and simple homicide found in Regiam Majestatem. Or rather, the new
classification came to exist alongside the old; it did not entirely supersede it.
The term 'murder' began to extend its ambit and move from its older and more
restricted meaning of a secret killing to cover all killing done with forethocht
felony. Killing by forethocht felony was contrasted with killing in the heat of
the moment, chaudemellee, killing which - or so it would appear - was not
premeditated. This second type of killing, although clearly culpable, was not
viewed with such outright disfavour as murder: unlike murderers, killers by
chaudemellee were not excluded from benefit of sanctuary, nor necessarily from
a royal pardon. This new classification has moved away from the world of the
blood feud towards a public criminal law. The king's peace extends over all the
land. All killing becomes technically criminal. The mental element in homicide
- never entirely disregarded - becomes more important. Which killers are to be
allowed to claim sanctuary? To whom shall the king extend his pardon? Cases
of pure misadventure and self-defence certainly, but what else besides?
33 A.P.S., ii, 95-96.
34 Cooper, op. cit., 255; see also Maitland, 'Malice Aforethought', 326-27.