The local evidence: typology and chronology of cases
The extent to which any of this national legislation was received or implemented in local practice may now be considered. In the cases heard before Aberdeen’s various courts in the fifteenth century (1398–1501) there are 47 case entries which include an accusation of �precogitata malicia’ or �forthocht felony’.
There are none which appear in the register volume which covers 1501–1511.35 This tally excludes entries which mention such terms indirectly, as in the example of Henry of Kyngorn in 1459. Following his condemnation for �perturbacione’ of several men, including the alderman (the town’s leading official, also known as the provost), Henry was to submit before the alderman and bailies at high mass to ask forgiveness and to be admonished not to commit again �sic like trespass na bargane noght of forthocht felowny or of his provocacion’ on pain of banishment, and he was to be confined in the tolbooth until this act of submission was completed.36 These 47 entries, which do include an accusation of acting out of aforethought malice or felony, are set out chronologically in Table 11.2. A typical selection may be found among cases heard in the bailie court on 9 January 1448, when John Fichet was accused of �iniusta perturbacione ex precogitata malicia’ against William Chene and Simon Mad his servant. Fichet denied this and an assize acquitted him. In the next entry, John Voket the son was also accused of �perturbacione ex precogitata malicia’ of the same William and Simon; he too denied this and was acquitted. Then, William and Simon themselves were accused of the �dicta perturbacione ex precogitata malicia’ and were convicted by the assize. This was followed by a fourth entry recording that the convicted men gave sureties (in lawburrows, a procedure for making pledges to keep the peace) that John Fichet, John Voket and all other neighbours within and without the burgh would be kept from harm, and that they were to make emendation to the injured parties.37These inter-related entries for Fichet & Voket v.
Chene & Mad are illustrative of the wider group of cases, in that they occurred in the bailie court (the curia ballivorum). All entries occurred in this jurisdiction except for four which are to be found before the �curia legalis tenta per ballivos’ (1450, 1450, 1465, 1469),38 two in a court held �before the aldirman and ballies’ (1479, 1482)39 and one in which the court is unspecified (1467).40 All this suggests that a range of burgh courts, not just those associated with a greater degree of formality in regularity or officials, were competent to treat these cases.41 The selection of entries just mentioned is also illustrative in other ways. The parties involved were all men, and this is always so among the 47 cases (bar a single exception).42 This exceptional case also presents �precogitata malicia’ in association with the offence of �perturbacio’. As can be seen in Table 11.1, of the 47 offences relevant here, 36 included �iniusta perturbacione’ (some 76.6 per cent). The Scots translation of this offence is �wrangwise strublance’,43 and the registers are replete with cases alleging this transgression (by men and women), particularly in the Latin form up to the 1480s, and in the vernacular from the 1460s onwards. The fullest comment to date on �strublance’ comes from a recent study on later sixteenth-century Scotland by Falconer. The analysis presented there identifies strublance as a broad category of offence in Aberdeen which encompassed a general sense of causing a disturbance, either to an individual person, or to a town official, or to a court or the town itself, and normally carried out in a public place. Strublance could be conducted in word or in deed, and it amounted to �the disturbance of the community through breach of peace involving verbal or physical violence’.44 Falconer’s analysis is relevant to the cases of perturbacio and strublance observed in the fifteenth century, particularly in emphasising the sense of peace-breaking involved, either the personal peace of an individual or the corporate peace of the town. What is more, it may be tentatively suggested that strublance was never strictly defined, and so it enabled the burgh courts to exercise a flexible jurisdiction over a range of violent affairs that might otherwise be competent only to the sheriff court. All that said, only a small minority of the total number of strublance offences in the registers were in fact associated with �precogitata malicia’. Several other associated offences are set out in Table 11.1, including disobedience to a town officer, the breaking of a surety and certain acts of personal violence (vulneracione, percussione, lesione).TABLE 11.1
Offences associated with
precogitata malicia
/
forthocht felony
Offence
No.
Perturbacione/strublance (only, or with other offences)
36
Felonia precogitata/forthocht felony (only, or �action’ of)
3
Breaking of surety (only)
2
Forthocht felony and breaking of surety (together)
1
Violenta vulneracione (only)
1
Percussione (only)
1
Iniusta lesione (only)
1
Inobedencia (against burgh officers)
1
Forthocht malice (done to a servant �in the fisching of his wattir’)
1
Total
47
There are two occasions when an �action of forthocht felony’ was brought in court, one simply to note that the action was to be delayed until the alderman’s return (1461) and the other that the action was continued to a future date (1469).45 The �actiones’ between the parties involved in the latter case some weeks later were assigned to be put before the abbot of Arbroath �ad finiendum’ when he next came to town, and the following month an ordinance by the alderman and council appears to have made a final pronouncement on the �distrublans’ between the parties.46 In a third case (1462), a party found a legal surety to promise he would respond to the bailies for a �felonia precogitata’ of which he was accused, suggesting this described the offence itself.47 There is frustratingly little to be said about these �actions’ of �forthocht felony’, although it should be clear that the sense of the term action as used here appears to refer to a general sense of a legal matter moved by one party against another, rather than the more specific sense of the various actions which came into use before the superior courts of the lords auditors and lords of council (described as the �conciliar session’ by present-day historians) in the later fifteenth century.48 As with the remissions for �forthocht felony’ in the privy seal register already noted, there is a lack of information recorded about the precise nature of the wrong in these cases.
The years in which each case entry occurs are set out in Table 11.2.
The year of the first entry’s appearance is 1444. Given the national legislation reviewed earlier, which was of legal relevance since the 1380s, why cases involving �precogitata malicia’ should only begin to be recorded in a local jurisdiction like that of Aberdeen in the mid-1440s – more than ten years after the legislation of 1432 which made specific provision for burghs – is an obvious question. The bailies’ broadening of the scope of their attention to include �precogitata malicia’ may well be related to unrecorded discussions about the range of local authority during the turbulent minority of James II (which lasted from 1437 through to 1449). In 1440 and again in 1441, the council had appointed a baron influential in the town’s hinterland, Sir Alexander Irvine of Drum, to the office of �captain and governor’ of the burgh. This position was not renewed in 1442, and in 1445, the council resolved that they would not do so again, agreeing that no lord should be made a captain of the burgh in future.49 In the same year, on 30 April 1445, the council declared its intention to petition for a grant of the �fredome to be schirrefis’ within the burgh, and made provision for the costs of this endeavour to be estimated. There is no evidence that Aberdeen was successful in securing this shrieval jurisdiction, but in later decades other burghs were granted such powers, for instance Edinburgh in 1482 and Stirling in 1501.50 It is perhaps probable that the appearance of cases involving �precogitata malicia’ in the mid-1440s was related to the interest of the burgh elite in seeing the various urban jurisdictions for which they were responsible exercised more fully than in the past.It is even more difficult to venture a satisfying explanation for why the run of cases comes to an end in the 1490s. The last entry to be found is from 1496, one of only three that decade and following upon just two in the 1480s. These decades were generally a time of experiment and accelerated change in the law and in legal procedure at the national level.51 Similar patterns may be detected locally in Aberdeen, too.
In this period the number and length of entries in the registers expands, coincident with greater use of the vernacular. The revival of procedure for doom falsing was an innovation to be found at this time, as was discussed in the introduction to this volume.52 It was also in 1496 that the last reference to the �curia legalis’ occurs in the registers.53 So it may be that in a time of general dynamism and fluidity the local jurisdictional experiment begun in the 1440s with �precogitata malicia’ and �forthocht felony’ drew to its end. In these decades perhaps it was another jurisdiction, like that of the sheriff or of the justice ayre, which took over or re-absorbed cases of non-lethal �precogitata malicia’ from the burgh courts. Yet if this were so, the records of the Aberdeen sheriff court from 1503 to 1600 as calendared by Littlejohn give no indication of the use of these terms, and the justiciary records relating to Aberdeen do not survive until later in the sixteenth century.54 Evidence may be found, however, of a similar jurisdiction exercised in another burgh about this time. In 1500 an action was brought before the superior court of the lords of council against a bailie of Haddington and other men of that town. The lords presiding found that the bailie had proceeded disorderly �in defraud of justice’ having led to the acquittal of those accused in an �accione of blude and as is presumyt of forthocht felony’.55 Thus, Aberdeen appears not to have been alone in exercising such a jurisdiction even if it ceased to do so in the 1490s. Further investigation of the fragmentary records of other burghs from the fifteenth century, and those which survive in much greater quantity from the following century (including those of Aberdeen after 1511), may yet help to build up the wider legal context of this type of offence more fully.56