Conclusions
As to findings more strictly concerned with Scottish legal history, it was noted earlier that Dropuljic’s study of homicide in the seventeenth century found a category of �slaughter’ with precogitat malice, �in the sense of prior discord between the panel and the defunct, as opposed to forethought or planning of the actual killing’.75 That point would tend to support the view I have taken here that �precogitata malicia’ or �forthocht felony’ in non-lethal affairs in the fifteenth century was used in practice to record a prior hostility between the party injured and the party complaining.
In turn, reflecting on Dropuljic’s later evidence, an implication of the present study would be to suggest in fact that �forthocht felony’ and �precogitat malice’ shared an interchangeable meaning that may have mattered in the seventeenth century as much as in the earlier period.76More generally, an examination of malice in the urban courts of Aberdeen offers a new vantage point into the language of enmity in late medieval Scotland. Sellar argued that in terms of homicide, the emergence of the categories of �forthocht felony’ or �precogitata malicia’ and chaudmella in the later fourteenth century (alongside the older categories of murder as secret killing and simple homicide, given in Regiam) marked a move �away from the world of the blood feud towards a public criminal law’ where �all killing becomes technically criminal’.77 For Sellar, actual premeditation was the significant point.78 Yet the evidence considered here does not suggest that, in non-lethal affairs, determining a �malice’ or �felony’ was significant because it measured deliberateness or premeditation in an offence. What it does suggest, if anything, is that simply recording a �malice’ or �felony’ was most important in those cases which came before the burgh’s judicial officers.
National legislation in the form of parliamentary statutes was not translated swiftly into local operation and practice. Even when in 1444 the Aberdeen courts first recorded a case involving �precogitata malicia’, they do not appear to have followed the legislated procedure in any strict manner. The determination of malice was appended to a pre-existing process for cases of perturbacio or strublance which had a wide jurisdictional utility. In this regard, it would seem that the �world of the blood feud’ – or, at least, a world with a vocabulary of enmity describing hostile social relationships – was not left behind with the emergence of �forthocht felony’. Rather, the courts were used as a means to register these hostile relations in writing. What is more, this was not the world of rural landowners and the nobility, but the urban milieu of merchants, artisans, shipmen and those who served as important civic officials themselves. Here we can see an aspect of a late medieval enmity culture operating among townspeople and recorded in their use of the law. Noting the observations on gender made earlier, we can go further to say that this was a culture that operated almost exclusively among townsmen.It was noted earlier that three mentions of �forthocht felony’ alone identify the legal action. As with remissions for �forthocht felony’ in the privy seal register counted by Grant or those cases of �precogitata felonia’ found in the justice ayre records of the 1490s,79 we have no information about the precise offences involved. Are we to assume that such a case if heard before the ayre (or a sheriff court for that matter) was likely to involve homicide, whereas such a case if heard before a burgh court rather involved a non-lethal assault? What follows from the discussion presented here is the suggestion that what was most important for the parties who appeared in court – the assizes elected to reach a decision and the presiding officials – was simply the determination of a prior hostility.
This would help to explain the ambiguity encompassed in actions and offences identified as �forthocht felony’ alone. The actual underlying offence was of secondary significance. Of primary importance when this occurred was putting to work the mechanisms of the law and its terms of art to record the relevant social relations. If the evidence bears the weight of this suggestion, the Aberdeen records point to a similarity with late medieval Marseille in that the burgh courts and their records were used as a means to determine the existence of malice and register it with the authority of publicity in �the written archive of knowledge’.80 For urban cultures of law, there is the wider problem, yet to be fully understood, of how the legal terminology of malice related to the language of social emotion and conflict more generally, in the sense of hatred and enmity. That problem is one to be pursued in a European context.81