One of the ways in which legal culture may be understood is through investigation of the language and idiom of law, in the use of certain terminology and its wider array of meanings.
This chapter explores the use of particular terms of art in court cases heard in the burgh of Aberdeen in the fifteenth century. In doing so it suggests that the written registration of a certain multilingual terminology of malice captured a record of social relations among the inhabitants of the town.
The significance of this terminology in its legal context is weighed up, and its importance is identified for understanding what it can reveal about motivation for hostility and about how the mechanisms of the law might serve to capture and record social relations of enmity.�Malice’ is a term detectable in Aberdeen’s medieval council registers, as are some of its variants. In one case before the court of the bailies in 1450 a man accused of �communi brigacione’ was ordered to abstain from his misdeeds or �malificijs’.1 In 1456 another man testified that he had come into the Gallowgate not out of any �provocation of malice’ but to conduct business. The burgh council in 1484 ordained that George Browne would lose his liberty if he were to do any offence or �provocation of malice’ against a family group he had been found guilty of assailing.2 There are also several references to offences done �maliciouslie in worde’3 or, in Latin, �in verbis maliciosis’.4 �Malice’ of course is a term current in Middle Scots and Middle English derived from French and Latin, denoting wickedness, ill will or rancour.5 Other terms broadly synonymous with malice may also be identified, such as in the stipulation that those chosen by the council in 1467 to lease the burgh’s property were to act without �favour or hattrende [hatred]’.6 About 1411, an attempt was made to debar a man from inclusion in a jury (in Scots called an �assize’) because he was the �mortalis inimicus’ of the principal party, and similarly in 1467 the council ordained that the �strublans and inimite [enmity]’ between two men was to be �forborn in tym to cum’.7 When a fugitive fled from an accusation of wrongs in 1484 which amounted to �public offens’,8 and he was noted to persevere �in his malice’, it was laid down that �the hale toune has takin and takis the querelle [on him]’.
All were required to act to detain the �trespassour’ if he showed his face.9 Finally, in three separate instances, parties involved in matters before the bailie court were to seek the forgiveness of their erstwhile victim, including one David Adamson in 1489, asked to �Remitt the Rancour of his hert for the saide offence done to him’ by James Cheyschame and John Halt.10Malice is perhaps most closely associated with matters criminal and, in the Anglo-American legal tradition, with the term �malice aforethought’ and the classification of homicide.11 Much of the history of the late medieval English law of homicide has turned on a parliamentary statute of 1390 which set out that no pardons should be allowed �pur murdre mort de homme occys par agait assaut ou malice purpense treson ou rape de femme’.12 Scholarly discussion has focused upon how many categories of culpable homicide were recognised in 1390 and how many operated in practice in its aftermath, and upon the extent to which the phrasing �ex malicia precogitata’ in indictments denoted deliberateness or actual premeditation.13 Some have argued that it could refer to true premeditation, but that �everything depended upon context’,14 and even the holder of the strictest view in favour of �deliberateness’ also acknowledges that �malicia precogitata’ was relevant to motive.15 More recent work on felony and anger in the thirteenth and fourteenth centuries has demonstrated the layered meanings of these terms in their legal and �nonlegal cultural contexts’, a point to which we shall return later.16 It has been shown that the actual specification of malice aforethought was rare in the early decades of the fifteenth century, and that it was only in the sixteenth century that the two categories of culpable homicide, murder (defined by malice aforethought) and manslaughter, would solidify in English law.17
With regard to the Scottish jurisdiction there is a small body of work that has explored the legal history of the parallel subject north of the border.18 The focus of attention there, given �the absence of recorded cases’19 and relatively sparse source survival from the later middle ages, has been on the legal treatise Regiam Majestatem,20 and on national legislation concerning the availability of remissions and sanctuary (and particularly the statutes enacted in 1370, 1372, 1469 and 1504).21 Sellar has argued that while the actual legal terms of art changed over time, the development of homicide and its terminology �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’. In the fourteenth century the term of art was the Latin �precogitata malicia’ which was translated into Middle Scots as �forthocht felony’.22 In an earlier study I showed that in the 1490s the justice ayre considered two main types of homicide, recorded in Latin as �interfectio’ and �precogitata felonia’ (with �murder’ only very rarely mentioned),23 and the case has been made by Grant that the term murder in Scotland denoted a specifically secret killing at least up to the end of the fifteenth century.24 Recent work undertaken by Dropuljic on homicide in the justiciary court in the seventeenth century suggests that murder in fact long remained a concept �in flux’.25 Dropuljic identifies a tree of homicide classifications starting with a division between murder and slaughter; then subdividing the latter into slaughter with �precogitat malice’ and slaughter without �precogitat malice’; and finally subdividing the latter into �slaughter chaudmella’ and �accidental slaughter’.26 The term �chaudmella’ is first attested in a statute of 1372 to describe excusable homicides committed in sudden heat of the moment, and appears in 1469 rendered into Scots as �suddante’.27
The copious legal cases recorded in Aberdeen’s municipal registers are ripe ground for interrogation of the terminology of malice in Scotland, and in fact they demand to be put to use, given the general dearth of surviving court records from the period.
Of course the cases recorded in the registers are not concerned with homicide – that fell within the jurisdiction of the sheriff and his records28 – but with non-lethal offences which the burgh courts were competent to hear. This presents another opportunity. Given that the Aberdeen case material turns the focus of attention away from homicide and its classification, the occurrences which are recorded show �malice’ at work more clearly than has previously been possible, freeing us from the need to evaluate the term in relation to types of killing.