The meanings of malice and felony
We have already seen in the preceding discussion of homicide and national legislation that the Latin terms �precogitata malicia’ and �precogitata felonia’ appear to have been interchangeable in the later middle ages.
This point is perhaps made most explicit in an entry in the so-called Aberdeen �sasine register’, a volume with diverse contents covering the period 1484–1502. An entry in that register dated 30 June 1487 records the remission secured by the accused killers of Andrew Suither: �pro morte … per ipsos ex precogitatamalissi
malici[a] seu
phelo
felonia’.57 Here the clerk seems to have struggled with the correct spelling of �malicia’ and �felonia’ (perhaps as he listened to a document read out loud), and the phrasing appears to be taken from the royal letter of remission which nevertheless made explicit that �malicia’ and �felonia’ were to be understood as carrying an equivalent meaning. Further linguistic complexity comes in the translation between Latin and the Middle Scots vernacular. In the Aberdeen council register volumes used in the present survey and set out in Table 11.2, there are ten occurrences of �forthocht felony’ (including one duplicate entry) and one instance of �forthocht malice’. This suggests a clear equivalence between �felony’ and �malice’ in Middle Scots, as well as in Latin.58
TABLE 11.2
Entries including accusation of
precogitata malicia
/
forthocht felony
Term of art
Year
Reference
Term of art
Year
Reference
precogitata malicia
1444
ARO-4-0384-03
precogitata malicia
1447
ARO-4-0470-07
precogitata malicia
1447
ARO-4-0470-08
precogitata malicia
1447
ARO-4-0480-06
precogitata malicia
1447
ARO-4-0498-05
precogitata malicia
1448
ARO-4-0510-04
precogitata malicia
1448
ARO-4-0510-05
precogitata malicia
1448
ARO-4-0510-06
precogitata malicia
1448
ARO-5-0024-03
precogitata malicia
1448
ARO-5-0024-04
precogitata malicia
1449
ARO-5-0028-04
precogitata malicia
1450
ARO-5-0096-06
precogitata malicia
1450
ARO-5-0096-07
precogitata malicia
1456
ARO-5-0286-06
precogitata malicia
1456
ARO-5-0286-07
precogitata malicia
1457
ARO-5-0321-03
precogitata malicia
1459
ARO-5-0363-08
precogitata malicia
1460
ARO-5-0393-04
precogitata malicia
1460
ARO-5-0393-05
forsocht felony
1461
ARO-5-0424-09
precogitata felonia
1462
ARO-5-0508-03
felonia precogitate
1462
ARO-5-0508-04
precogitata felonia
1464
ARO-5-0518-02
precogitata malicia
1465
ARO-5-0527-08
precogitata malicia
1467
ARO-5-0599-02
precogitata malicia
1467
ARO-5-0607-02
precogitata malicia
1467
ARO-5-0610-02
precogitata malicia
1467
ARO-5-0612-07
forthoucht felny
1469
ARO-5-0732-02a
precogitata malicia
1470
ARO-6-00110-06
forthoucht felony
1469
ARO-6-0084-04
forthoucht felny
1471
ARO-6-0138-08
precogitata malicia
1471
ARO-6-0166-06
for thocht fellon’
1472
ARO-6-0178-01
forsocht felloune
1472
ARO-6-0184-03
precogitata malicia
1472
ARO-6-0184-04
precogitatam maliciam
1474
ARO-6-0318-04
precogitata malicia
1474
ARO-6-0318-08
forthocht felony
1474
ARO-6-0327-03
precogitata malicia
1475
ARO-6-0390-05
precogitata malicia
1476
ARO-6-0425-05
felonia precogitate
1477
ARO-6-0494-07
precogitata malicia
1479
ARO-6-0589-08
forthocht malice
1482
ARO-6-0721-04
precogitata malicia
1489
ARO-7-0152-08
forthocht fellone
1492
ARO-7-0337-03
forthocht fellone
1493
ARO-7-0462-04
forsoicht fellone
1496
ARO-7-0746-04
Total
47 (48a)
a Duplicate of ARO-6-0084-04.
In Latin, in fourteenth- and fifteenth-century Scotland, there are very few references to be found to �felonia’ used in any context other than �precogitata felonia’.59 There is one parliamentary item which mentions the offences of �felonia et proditione’ in 1344, but this appears to be an exception.60 Historians familiar with English legal history will be well aware that in the later middle ages �felony’ came to acquire a particular technical meaning in England.
Wrongs were divided into felony and trespass. The class of offences that were of the most heinous nature (i.e. concerning the �pleas of the crown’) came to be known as felonies, and that technical terminology has survived in the Anglo-American tradition.61 Work by Kamali on the �layered’ meanings of felony in medieval England has also helped to nuance how the historical term �felony’ is to be understood: a legal wrong but also a choice of action that was wicked and closely linked to ideas of premeditation, deliberation and malice.62 By contrast to England, despite some gestures in this direction in the 1240s, the law in Scotland did not use �felony’ to describe a particular class of serious offences. Instead, if we look at examples in the vernacular, we can see a different path taken by this word in Scotland.63 In the parliamentary records only a very few occurrences of the term appear apart from the context of �forthocht felony’.64 If we turn to the wider contextual meanings of �felony’, taking examples from Middle Scots writing, the range of associations carried by this term in the later middle ages is instructive. Whereas Scotland differed from England in not adopting felony as a class of offence, it remained in step with the English cultural context explored by Kamali. What is more, it arguably had a further specific connotation in Scotland. William Dunbar wrote in his Dance of the Seven Deadly Sins: �Nixt in the dance followit Invy/fild full of feid and felony/hid malyce and dispyte/for pryvie hatrent that tratour trymlit’.65 A similar pairing of �fellony or feid’ occurs in The Buke of the Howlat, and in another text felony is closely linked with the identification of a �mortale inimy’.66 John Barbour’s Brus offers numerous further examples, including the line �Na felloune betwixt thaim was’.67 Thus the range of meanings of �felony’ conveyed in these indicative examples encompassed fierceness, cruelty and wickedness – a very similar semantic field to that of �malice’, and indeed there appears to have been fluidity between the two words.68 The usage of �felony’ in the illustrations just given also points to a sense in which the term more precisely connoted a state of feud and mortal enmity.