Case outcomes
The entries presented earlier for Fichet & Voket v. Chene & Mad show a typical outcome for cases involving offences done �ex precogitata malicia’ – typically a fine, arrangements for compensation and possibly a pledge to keep the peace in the form of lawburrows.
We have seen that the thrust of national legislation in this area was to limit the scope for pardons, or to introduce a rigorous procedure for offences done out of malice (as opposed to chaudmella) such as seeking to confine an offender to prison until emendation was paid to the injured party, or arresting both parties involved in the case of a fight and instantly convening an assize to determine the matter. By contrast, the non-lethal cases recorded in the Aberdeen registers do not suggest that this process was closely adhered to, or at least that if it was followed, it was not recorded in detail (however, the case noted earlier of Henry of Kyngorn involved his confinement in the tolbooth). In fact, parties were accused of acting out of malice (and an assize convicted or acquitted on the matter) in a small proportion of cases. Only 47 are found across the whole century, in the context of thousands of recorded cases (and of a total number involving perturbacio or strublance numbering more than 1,500). There is only one occurrence in the entire corpus of a case which seems to be an equivalent to chaudmella. In 1465, the bailies sitting �pro tribunali’ themselves accused David de Hill of the �iniuste perturbacione’ of Andrew Williamson, the mair of Buchan, in the exercise of his office. Presumably the mair of Buchan had been accosted while present within the jurisdiction of the burgh, although this goes unstated in the entry. Hill took advice from his forespeaker and denied the charge. An assize of nine was elected (their names are given in the entry) to determine the matter, and declared that Hill had not acted against the mair in exercise of his office but �ex subitanea Ira’ – out of sudden anger. He was thus acquitted by the assize, although he then confessed to the offence and was to make amends according to law.69When offences were found to have been done with �precogitata malicia’ or �forthocht felony’, there seems to have been no specific consequences to follow from such a verdict that differed from a conviction for perturbacio or strublance alone. In the vast majority of cases with malice, the guilty party was fined (amerced) by the court and instructed to make emendation to the victim. If particular consequences had flowed from a conviction of acting out of malice, it might suggest that the finding was relevant in terms of indicating a degree of deliberateness or premeditation of the wrong. It should be said that the level of fine imposed was not recorded, so it remains possible that these offences were amerced at a heavier rate of penalty. However, in practice, malice brought no special consequences, and these records suggest that all that mattered was that the question of malice was considered by the court as to whether it existed as a motivation for the offence and that the finding was placed on record. The question that seems to have been under examination was whether an injury had arisen from a prior enmity – a �malice’ or �felony’ – existing mutually between the parties or harboured by one party against another. The formal consideration of this question in court thus made that prior hostility a fact openly acknowledged.70 Placing it on a shared, communal record seems to have been what mattered most. In one case the victim of perturbacio done out of aforethought malice went further and asked for a notarial instrument to record the court’s finding against his adversary.71 In another, one man asked for a �testimonial’ of the court to record how his counterparty had challenged him in court to �fecht in the said querel’ by casting down his hat, to which he responded by asking for the matter to be �determyt be the law and the assise’.72
It is possible to test the point by looking for evidence in the wider ARO corpus to suggest that pre-existing enmities did, in fact, colour some of the cases under consideration.
One such example explains the motivation for hostility between two townsmen. This concerns the entry for Alexander de Strathachyne v. Thomas Blyndsele in 1449. Some four years earlier, Strathachyne had been fined in the bailie court for �bustwiss spekyn to Tom Blindzell the ballye in his office doyng’, and the assize enjoined him that in future he must be �nothir barganour [quareller] na twlyour [trouble-maker] bot at his powar to let sic thing to be done’. He failed to adhere to this requirement. In 1449 both men were convicted of perturbacio against each other, but it was recorded separately that the assize found Strathachyne to have acted �ex precogitata malicia’.73 Another example relates to the confrontation of Thomas Quelp v. David Dun in 1456, where both parties broke their sureties out of aforethought malice, and the entry convicting Quelp recorded that this was done �ex precogitata malicia inter ipsum et Dauid Dun’. A search reveals that in the preceding year Quelp had been fined for the perturbacione of Dun, and seven years earlier Dun had been accused of the perturbacione of Quelp.74 This evidence suggests that prior hostility could leave its traces in the legal record giving weight to how a �malice’ or �felony’ was understood when it came to be alleged in court.