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56 Legal History in the Making
comprising casual homicide and justifiable homicide. 56 With the exception of
the first, these categories are, broadly speaking, still in use today. Hume noted
that 'casual homicide' had sometimes been taken to include chaudemellee in
the past, but considered that it was more appropriate to restrict the term
to 'pure misadventure without any act of the killer's will'. 57 Of murder he
said, 'The characteristic of this sort of homicide is that it is done wilfully
and out of malice aforethought'. 58 Note that in Hume the polite English
'malice aforethought' has taken over from the native forethocht felony. After
Hume the familiar question arose again as to whether 'malice aforethought'
necessarily involved premeditation, or whether it merely signified a deliberate
and wilful killing. The point was finally settled in favour of the latter in the case
of Charles MacDonald in 1867. 59 After that the term 'malice aforethought' was
otiose and gradually passed out of Scots law after a life of 500 years or more.
The Scottish evidence may be sparse but it seems clear enough. It points
to the consistent and uninterrupted use of the term malice aforethought to
describe a premeditated, rather than a merely deliberate homicide, from at
least the later fourteenth until the eighteenth century. The actual legal term of
art changes from the Latin praecogitata malitia of the statute of 1370, through
the Scots 'forethocht felony', to the more familiar 'malice aforethought'.
Maitland thought the Scottish evidence was relevant to an understanding of
the development of the English law of homicide. Kaye was not convinced.
He wrote that the evidence of the statutes of David II and Robert II should
not be pushed too far in view of the generally accepted belief that Scots law
at this period owed more to France and the civil law than to England. 60 Here
Kaye relies too much on Lord Cooper's distinctly speculative account of the
development of homicide noted above. There is, per contra, good reason to
believe that the impact of the Anglo-Norman law on most areas of Scots law,
including the criminal law, was a lasting one - or, at any rate that it lasted until
long after the Wars of Independence put an end to amicable relations between
Scotland and England. For my part, I am at least as impressed by the English
as by the French connection, and, like Maitland, would be inclined to view the
English case of De Warenne v. De la Zouche in 1270, dismissed by Kaye, with
its reference to praecogitata malitia, as part of the jigsaw. 61
Kaye points to the dearth of early recorded cases in Scotland. From the
standpoint of the richer English record this is undoubtedly true; yet the burden
of the Scottish evidence is clear. Kaye also believed there to be a danger of
56
Baron David Hume, Commentaries on the Law of Scotland respecting Crimes (Edinburgh, 1797),
i, 282.
57
Hume discusses the 1649 Act and chaudemellee at i, 369-76. The quotation is from p.283.
58
Ibid., 390.
59
(1867) 5 Irv. 525.
«) Op. cit. n.7, 376.
61
In fact, the wording of the French Ordonnance of 1356 (perpetres de mauvaiz agait, par mauvaise
volonte etpar deliberation) seems closer to the 1390 statute's par agait, assaut ou malice prepense than
to any Scottish parallel.