National legislation
Before proceeding with the local evidence we must first consider its national context. In the late fourteenth and early fifteenth centuries the Scottish parliament enacted legislation concerning the definition and procedure to be applied to non-lethal violent offences.
The first came in 1384 and in Latin it specified that accusations of mutilation, wounding or beating done �ex precogitata malicia’ should be brought before a judge according to a procedure similar to that set out for homicide, and that these cases should end in redemption of a convicted defender and payment of satisfaction to the complaining party.29 The matter of intent could be expressed in other language in this period too, but more generally one writer has argued for an extension of �precogitata malicia’ to cover non-lethal violent wounding.30Then in 1426 an act (given in Scots, the language used generally for legislation in the personal reign of James I from 1424) concerned with �kepin of the kyngis pece’ set out procedures to be followed by officers of law, including bailies of burghs, when receiving complaints of peace breaking. They were to �inquer diligently’ whether the deed was �done apon forthocht fellony or throu suddande chaudemellay’. In the former case the officers of the law were to charge the persons accused (�trespassouris’) with breaking the king’s peace, then see the victim compensated according to the degree of their injury (�assythit eftir the quantyte of the skaythe that he has sustenyt’) and finally place the life and goods of the �trespassouris’ in the king’s will, which meant that satisfaction was also to be made to the crown. In the latter case, also described as �sudane chaucemelle’, the injured party was to pursue their claim against their opponents according to the �ald lawis of the realme’.31 In 1432, more specific provision addressed fighting in burghs and elsewhere, regardless of whether a complaint was made by the victim.
The king’s officers (aldermen, bailies or sergeands in burghs) were to arrest both parties involved and before the sun set convene an assize to determine whether �it be forthocht felony or suddand don’. In the latter case, the �auld law’ was to be followed, and in the former case the offender was to be put in prison until amends were made to the victim.32 This was followed by a statute specifically for fights in towns. That addressed pursuit of anyone accused of �forthocht felony’ who escaped arrest in town. The urban officials were immediately to alert the sheriff or the officers of the jurisdiction to which the fugitive had fled of his presence and his �mysdeid’.33 It is clear from this legislation that the terminology best known in terms of homicide was relevant to a wider field of violent offences. It is also noteworthy that by 1432 a fight (�bargane’) itself could be described in shorthand fashion as �forthocht felony’, even if this simply denoted the circumstance of the offence. A similar usage can be seen in pardons (known as remissions in Scots law) which are recorded in the register of the royal privy seal.34