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

Forethocht Felony 57
making a false analogy in the later middle ages between the 'chaudemellee'
of Scots law and the English 'chance medley'. 62 Since Kaye wrote, however,
as already noted, Green has pointed to the use of 'chance melle' in England
as early as 1388, and suggested that the terms chaudemelle and chance melle
(or medley} were at that stage interchangeable. 63 It is curious, certainly, that
chaudmellee should appear on the Scottish record in 1372, sixteen years before
the first recorded English use of chance melle. I doubt, however, if Kaye is
right to suggest that the term 'chance medley' would have been 'meaningless'
to the judges of Edward III. 64
The correspondence between Scots law, where the distinction between
forethocht felony and chaudemellee appears already in 1370, and English
law can hardly be accidental; and the borrowing is more likely to have
been from English law to Scots rather than vice-versa. 65 The meaning to
be attached to 'malice aforethought' or 'malice prepense' in the English law
of homicide in the late fourteenth and fifteenth centuries should surely be
re-examined, the more so given the light which Bonet's Arbre des Batailles
throws on contemporary patterns of thought about homicide.
Be that as it may, the divergence between the later Scots and English
law of homicide is instructive. The widening of the meaning of 'murder'
to extend from a secret killing to all cases of forethocht felony or malice
aforethought was related in both jurisdictions to a strengthening of public
justice and an increasing emphasis on the mental element in the crime of
murder. In the sixteenth century the English courts advanced a stage further
by developing the defence of provocation and distinguishing between 'murder'
and 'manslaughter'. The Scottish courts did not follow suit; nor indeed did
Scots law develop the exception of 'benefit of clergy' to temper the strict
severity of the law and further develop the classification of homicide, as
happened in England. The Scottish debate on the place of the doctrines of
provocation and self-defence and their relationship to the mental element in
homicide did not gather momentum until the later seventeenth century. By
then the Act of 1649 and increasing civilian influence determined that Scots
law would follow a different course from England.
The term 'casual homicide', already present in Skene's tract of 1609, and
sanctioned by the statute of 1649, has been in regular use in Scots law
ever since. Sir George Mackenzie, and later Hume, devote some space
to its proper definition. Hume divided homicide into murder, culpable
homicide, casual homicide and justifiable homicide. Gerald Gordon classifies
homicide in modern Scots law as criminal or non-criminal: criminal homicide
62
Above, at n.15. It is perhaps worth noting that Sir James Balfour in Scotland equated chance
medley and chaudemellee (above at n.40) just as did Sir Edward Coke in England.
63
Above, at nn.17-19.
64
Op. cit. n.7, 583.
65
A closer examination of the various terms of art used in England and Scotland in connection with
homicide than has been possible in this paper might help to settle the issue.