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

Forethocht Felony 51
There is a further example of the use of the term forethocht felony in
fifteenth century Scots which is very instructive. It occurs in Sir Gilbert of the
Haye's translation into Scots (c. 1456) of Honore Sonet's Arbre des Batailles 35
Bonet lived c. 1340-1410 and his Arbre des Batailles is a celebrated early
work on what would now be termed public international law. In c. 3 Bonet
discusses the morality of a challenge to combat as a means of settling a dispute.
He aims to show that such a challenge is expressly forbidden by all laws, God's
and man's. First, he says, it is against the law of nature. Here he is in Haye's
rather free translation:
And first and formast, I preve it be resoun naturale. For gage of bataill cummys ay
[comes always] otforethochtfelouny. Bot naturaly all maner of creature naturale has
a passioun of nature that is callit the first movement; that is, quhen a man or beste
is sudaynly sterte, thair naturale inclinacioun gevis thame of thair complexioun to
a brethe, and a sudayn hete of ire of vengeance quhilk efterwart stanchis efter that
hete. Bot bataill taking cumis oflangforset and forethocht purpos of malice that is
nocht naturale to man. 36
This is a most valuable passage, for not only does it duplicate the terms of art
used in the law, but it gives an insight into the mentality, the way of thinking,
which distinguished between slaughter 'on a suddanty', or chaudemellee, and
forethocht felony.
At this point it is worth noting in parenthesis that Lord Cooper, in the
notes to his edition of Regiam Majestatem, interpreted the development of
the law of homicide in Scotland rather differently. 37 Partly, it would seem,
through misdating the style which appears in the Bute formulary, Cooper
placed the first appearance of the distinction between murder and forethocht
felony, on the one hand, and homicide ex iracundiae inconsulto calore on the
other, in the thirteenth century - a hundred years or more too early. He
then continued, 'It is likely enough that these humane distinctions tended
to become blunted and obscured during the Wars [of Independence with
England], and it may be on this account that the matter had to be taken
up afresh under French influence two generations later'. He then pointed
to the French Ordonnance of 1356 which classified the more serious forms
of homicide as those perpetres de mauvaiz agait, par mauvaise volonte et par
deliberation, 38 and suggested that David II brought back from France the ideas
which prompted the Scottish legislation of 1370 and 1372. Even if one lays
aside the misdating of the Bute style, this scenario is quite speculative and
would need considerable further supporting evidence to be rendered credible.
In fact, it is the close correspondence between Scots and English law which
35
Gilbert of the Haye's Prose Manuscript, i, The Buke of the Law ofArmys, J.H. Stevenson, ed.,
Scottish Text Society, xliv (Edinburgh, 1901).
36
Ibid., c. ex, 256 (my italics).
37
Cooper, op. cit., 255.
38
Ordonnances des Rois de France (Paris, 1723-1849), iii, 129.