The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• A Historical Sketch of Liberty and Equality As Ideals of English Political Philosophy From the Time of Hobbes to the Time of Coleridge 1 .
• ( a ): Liberty
• ( B ): Equality.
• The Law of Real Property 1
• The Laws of Wales.—the Kindred and the Blood Feud 1 .
• The Criminal Liability of the Hundred 1 .
• Mr Herbert Spencer’s Theory of Society 1 .
• I.: The Ideal State.
• II.: The Law of Equal Liberty.
• The Early History of Malice Aforethought 1
• The Seisin of Chattels 1 .
• The Mystery of Seisin 1 .
• The Deacon and the Jewess; Or, Apostasy At Common Law 1 .
• The Beatitude of Seisin 1
• The Suitors of the County Court 1
• The Shallows and Silences of Real Life 1
• Why the History of English Law Is Not Written 1

THE EARLY HISTORY OF MALICE AFORETHOUGHT1

While yet Mr Justice Stephen’s History of the Criminal Law is fresh in the minds of many readers, a few supplementary notes concerning the phrase “malice aforethought,” which has long formed part of our definition of murder, may perhaps be acceptable. To the very thorough historical account of that phrase, of which we are now happily in possession, little can be added that has any claim to be regarded as certainly true, but something may be guessed which may serve to make intelligible what is still a somewhat dark passage in the history of our law.

In 1531, wilful murder of malice prepensed became an unclergyable felony2 , and thenceforth there were two kinds of homicide for which the punishment was death, the one murder and an unclergyable felony, the other manslaughter and clergyable. But the phrase malice prepensed was by no means new in Henry the Eighth’s day. Seemingly it had been in use early in the 14th century, to distinguish that homicide for which a man should be hanged, from that excusable homicide for which he should have a pardon of course under the Statute of Gloucester1 . Then, in 1389, it received statutory sanction. An Act of Richard the Second2 provided that a pardon for homicide should be of no avail if the deed had been done of prepensed malice, unless this aggravation of the crime was specially mentioned in the pardon.

The word murder, on the other hand, was a very old word, but had early gotten a very strange and technical meaning. Of this it was robbed by the Statute of 1340, which abolished the presentment of Englishry3 . It had been murder if one whose English parentage could not be proved was found slain and the hundred did not produce the slayer. Before the Statute of Marlbridge4 , it had in some parts of the country been accounted a murder if a foreigner by any accident came to a violent death, that is to say, even in this case a murder fine had been levied. Mr Justice Stephen5 shows very clearly that the Statute of Marlbridge does not countenance the doctrine put forward in the Year Book of 13486 , and repeated with exaggerations by Coke7 , namely, that before this statute a man was hanged if he slew another in self-defence. The statute merely abolished the practice of fining the hundred when a foreigner perished accidentally. Probably this practice, of which there is good evidence8 , was an abuse which had gradually grown up. It is not countenanced by the earliest authorities which speak of the murder fine, but to judge from the Pipe Rolls murder fines at one time formed no inconsiderable source of royal revenue, and since we know that one very strange presumption, namely, that every slain man is a foreigner, became firmly established, we need not be surprised that in some districts the rule was even stricter, and that a foreigner’s violent death was always reckoned a murder, and a sufficient occasion for bringing money to the royal treasury. It may be worthy of note that Hobbes1 long ago pointed out that Coke had misunderstood the Statute of Marlbridge, but Hobbes himself blundered into the very reverse of the truth, and said that the murder fine was levied only when the slain man was of English birth.

However, in 1340, the word murder lost this, its technical, meaning. But the word itself was a very old word, and we read of morth long before the time when the murder fine makes its first appearance. It occurs in several of the German Folk Laws or Leges Barbarorum and seemingly always points to some attempt at concealment, more especially to the hiding away of the dead man’s body. In England, before the Conquest, it apparently bore a slightly different shade of meaning. It stood for manslaughter by poisoning, witchcraft or other diabolic practice, and such morth was punished as a true crime in days when mere deliberate manslaughter was hardly a crime at all in our sense of the word. But in Glanvill2 that the deed is done in secret is the one mark which distinguishes murdrum from homicidium simplex, for Glanvill says nothing about the murder fine and makes no distinction between Frenchman and Englishman. The only difference that he thinks fit to note in the treatment of the two crimes which he thus distinguishes, is what looks to us like a mere matter of procedure, namely that in the case of murder, only the nearest kinsman of the slain can bring an appeal, while in the case of simple homicide the appeal may be brought by anyone who is related to the slain by blood or tenure, and who has been an eye-witness of the deed. We should be rash in concluding that there was no other difference, for Glanvill’s treatment of the subject is extremely meagre. His distinction is very much that taken in the Assizes of Jerusalem1 and there we find this difference between murder and mere homicide the foundation of some very curious special pleading. However, this is all that Glanvill has to say. Bracton2 repeats Glanvill’s distinction, but immediately blurs and probably perverts it by mentioning the murder fine. Murder, he says, is secret homicide, for the slayer is unknown. By this he means that were the slayer known and produced there would be no murder fine, no murdrum. From this we may conjecture that the word had already lost the sense attributed to it by Glanvill, namely, that of manslaughter done in secret. When, therefore, in 1340, it was set free from the very technical and peculiar sense given to it by the practice of fining the hundred, it did not apparently ever regain its oldest meaning, but came in course of time to signify a manslaughter by what was called malice prepense.

As already said, Sir James Stephen has traced the phrase malice prepense back to the first years of the 14th century. A story told by a contemporary chronicler of good repute1 , enables us to follow the trail a little further. In the year 1270 a suit between John of Warenne and Alan de la Zouche came to a hearing in Westminster Hall. The litigation degenerated into a brawl. Some of Warenne’s retainers drew their swords and wounded Alan. Warenne fled away; Alan was left in the Hall half dead. With difficulty Warenne was brought to justice. He was sentenced to pay both a heavy fine to the king and heavy damages to the injured man; but besides this, he, with fifty knights, was to go on foot from the Temple to Westminster, and there they were to swear “quod non ex præcogitata malitia factum fuerat quod prædictum est, sed ex motu iracundiæ nimis accensæ.” The story is remarkable as giving an instance of compurgation in a criminal case, for clearly these fifty knights were compurgators. It is not a case of homicide, for though Zouche died of his wounds, he seemingly did not die until after Warenne had been sentenced and had made his law. Perhaps we ought not to draw from this story many inferences as to the ordinary course of law, for Warenne was a very great man and terms had to be made with him before he would submit himself to justice. Still it seems plain that already premeditated malice was a term of the law and was contrasted with sudden anger. Whether this very term can be traced yet further I do not know, but there is a very similar term which certainly has a longer history.

Sir James Stephen has brought to light the important and neglected fact that the words malice prepense occur in a statute of 1389, the statute touching pardons already mentioned. A pardon which in terms is but a pardon for homicide is to be unavailing in case the slain man has been murdered or slain “par agait, assaut, ou malice purpense.” Now these words, which are used several times in the statute to describe the worst kind of homicide, are most noticeable. Sir James Stephen remarks that they are very like the definition which the modern Penal Code of France gives of “assassinat,” and this observation opens up a field for speculation into which we may venture a little way.

First may be cited the articles of the French Penal Code1 , to which Sir James Stephen refers:—“L’homicide commis volontairement est qualifié meurtre. Tout meurtre commis avec préméditation, ou de guet-apens est qualifié assassinat . . . . . . . Le guet-apens consiste à attendre plus ou moins de temps dans un ou divers lieux un individu, soit pour lui donner la mort, soit pour exercer sur lui des actes de violence2 .” Certainly this “avec préméditation ou de guet-apens” may well remind us of the “agait, assaut ou malice purpense” of our own statute. Now it may somewhat confidently be said that the resemblance is not casual. Sir James Stephen sees no reason why the word “guet-apens” should have been introduced into the modern French code, and it is easy to believe that “the word seems to be regarded as surplusage by the Courts.” But whether or no there is any reason for its appearance, the cause of its appearance is doubtless just the same as that which preserves in our own law the phrase “malice aforethought.” It has a prescriptive right to take part in the definition of the worst form of homicide.

The appearance of “agait, assaut ou malice purpense” in the statute of 1389, and of “guet-apens” in modern French law may well set us asking whether any similar phrase had been known in England as a term of the law before the days of Richard the Second. Now this very phrase “guet-apens” occurs in a set of laws bearing the name of William the Conqueror1 . The date of the document in question is very doubtful, but I think, for reasons it were long to give, that we cannot ascribe it to a time later than the 12th century. In it we read as follows2 : “E ki enfreint la pais le rei en Merchenelahe cent souz les amendes. Autresi de hemfore et de agwait purpense. Icel plait afert a la curune le rei.” (And he who breaks the king’s peace, in the Mercian law, the fine is a hundred shillings; so also of housebreaking, and of premeditated ambush; this plea belongs to the crown of the king.) The writer is making a paraphrase of Canute’s laws, among which is found a well-known clause1 declaring what rights the king has over all men, in other words, what are the pleas of the crown. In Wessex and Mercia the king has mund-brice (otherwise grith-brice, breach of his special peace or protection), hamsocn (otherwise hamfare, or housebreaking), foresteal, and two other pleas here of no interest. There seems no doubt whatever that the writer of the Leges Willelmi used the French phrase agwait purpense, the modern guet-apens, as a translation of the English foresteal. Concerning this crime something may be learnt from the Leges Henrici2 : “Si in via regia fiat assultus super aliquem forestel est, et c. sol. emendetur regi, si ibi calumpniam habeat, ut divadietur vel retineatur ibi malefactor, vel si est in socna regis. . . . Forestel est, si quis ex transverso incurrat, vel in via exspectet et assalliat inimicum suum; sed si post eum exspectet, vel evocet, ut ille revertatur in eum, non est forestel, si se defendat.” The Latin of these Leges Henrici is perhaps the oddest ever written, but by light which falls from other quarters we may probably explain this passage to mean, that the crime called foresteal is committed, and the king becomes entitled to a fine of a hundred shillings if A lies in wait for B on the king’s highway, assaults him, and is taken in the very act, but it is not foresteal if A instead of attacking B on the flank lets him pass and calls him back, and then there is a fight in which B gets the worst. For most of this we have other authority. The Doomsday surveyors regarded foresteal as one of the ancient pleas of the crown, and mention the fine of one hundred shillings. Foresteal, says one old glossary1 , is “force faite en real chimin.” Another2 explains it as “coactio vel obsistentia in regia strata facta.” When Lanfranc in his celebrated suit asserted the privileges of the church of Canterbury, he proved3 that throughout the lands of that church the king had but three rights (consuetudines). Of these three, one was that if a man committed homicide or other crime upon the king’s highway and was caught in the very act, the king had the fine; if, however, he was not caught there and then, in that case the king had nothing. Foresteal, literally the anticipating of another, the placing of oneself before another, is then an ambush, a plotted assault upon the king’s highway. Gradually the word is appropriated by a crime of quite another character, and at last forestalling comes to mean anticipating others in the market—speculating for a rise in the price of corn. But its old sense is sufficiently plain and well attested, and probably the writer of the Leges Willelmi was quite right in translating it by agwait purpense. The French words, whose modern forms are guet, guetter, aguets, though themselves of Teutonic origin and seemingly related to our word watch, are the immediate progenitors of the English wait and await4 , and guet-apens is prepensed awaiting. Here then, we have premeditated assault upon the king’s highway a plea of the crown, at a time when by no means all assaults and by no means all homicides are pleas of the crown.

But has this any bearing on our later law? In Bracton’s day every homicide was a plea of the crown and a felony—at least every homicide that was neither justifiable nor excusable. When, however, we ask, as we ought to ask, how this came to be so, all sorts of difficulties meet us. The elaborate account of homicide given us in the Leges Henrici, which, at least in their present form, cannot be much older than the book we ascribe to Glanvill, though very diffuse and disorderly, is a tolerably consistent account, and it lets us know for certain that the writer did not regard mere intentional homicide as a felony, or as a plea of the crown, or as a capital crime. It could be paid for according to a fixed tariff. This tariff, however, owing to the feudalizing process and consequent multiplication of seignorial claims, was extremely intricate. In a large and always increasing number of cases a manslaughter was an infringement of the king’s special rights, because of the circumstances, place, time and the like, in which it was perpetrated, and very likely the fines and compositions had become so numerous and heavy that practically the slayer had often to pay with life or member for want of gold. Probably the old system would sooner or later have been found intolerable and have broken down of its own weight. But the strange thing, the great peculiarity of our criminal law, is that it was not supplanted by a myriad local customs, but by one royal and common law. At a very early date the king gathered into his hands almost all criminal justice, so that crime and plea of the crown became synonyms. The franchise of infangthief, dearly prized as it was, is but a poor reflection of what existed elsewhere. We may well regard as a curiosity the Halifax Gibbet Law, of which Sir James Stephen gives an interesting account; in Germany or Northern France it would have been no curiosity at all. Probably the chief device whereby the state of things represented by the Leges Henrici was converted into the state of things represented by Bracton, was legal fiction. Not of course that such fictions can really make any vast change in the conduct of human affairs; they can only be the machinery, not the working power. The facts which made possible the fictions are facts in the general history of England, but a word may be said of the fictions themselves.

It is perfectly true that of any fictitious machinery we see little on the surface of what Bracton writes about homicide and other crimes. But Bracton had a leaning towards Rome and Reason at a time when Romanism and Rationalism were all one, and this leaning, though it may have enabled him to lay down law for unborn generations and undiscovered continents, makes him an untrustworthy guide to the legal notions of his English contemporaries whenever he ventures beyond a mere description of what, as a matter of fact, was done in courts of law.

Without regard therefore to his theory of homicide, a theory derived from the Canonists, let us look at the words which were actually used in an appeal “de morte hominis.” The appellant says that B killed C “nequiter et in felonia et in assaltu premeditato et contra pacem domini regis ei datam1 .” Now all this may seem to us mere verbiage and common form. I imagine, however, that this brief formula contains no less than three legal fictions, the object of which is to show that the king’s rights have been infringed. The necessity for such fictions may seem to us as strange as the fictions themselves. We cannot imagine a manslayer admitting that he has taken life, but questioning why the king, of all people in the world, should interfere; nor can we fancy a slain man’s kinsfolk, or his landlord, or the landlord of the slayer protesting against any intervention of the king or his judges. But the twelfth century books require us to imagine all this. The king’s criminal justice is hemmed in on all sides by the rights of others, rights to fines and compositions and forfeitures, and besides all this there is in the background the old notion that the quarrel is a very pretty one as it stands, and that the king has no business to meddle with it. The words just cited had probably become merely formal, though they were formally essential words in Bracton’s day, and homicide was in all cases a plea of the crown, but none the less they had once had a serious meaning.

We may indeed pass by nequiter as a vituperative adverb, but the charge of felony (in felonia) contains, as I believe, fiction the first. Of course it is impossible in a casual sentence to say anything profitable about the word felony, but one remark may be pardoned, namely, that whatever may have been its original meaning, whether deceit or cruelty, it came into English law as a foreign word, and when it first appears in England it seems to be no general name for all grave crimes, but the name of a specific crime. That crime is treason, or rather, since the word treason also has changed its meaning, a breach of the obligation which binds a man to his lord; in short, very much such a crime as was afterwards called treason high and petty, when high treason still meant not a crime against “the State,” but a crime directly touching our lord the king. I believe that nowhere save in England did felony ever come to stand for a vast class of crimes, or to include such a matter as theft; and it may be observed that in England it soon lost all descriptive power. It came to stand for a number of crimes which could be enumerated, but no definition of felony ever was or could be formed. To say that felony means treason may seem contrary to the first principles of our law, but some of those first principles were only settled late in the day, and looking abroad, more especially to France, whence undoubtedly the word felony came to us, there is good reason for supposing that it once connoted a breach of the feudal tie. Such a crime had long been in England, as elsewhere, the worst of crimes; it had been regarded as the unpardonable sin, the sin of Judas who betrayed his lord, and what is more to our purpose, it had been a crime whereby a man’s lands were forfeited to his lord. The steps by which such crimes as mere manslaughter and theft became felonies it is now difficult to retrace, but probably the king’s court permitted plaintiffs to “add words of felony,” and did not permit the accused to dispute the charge thus made. Our foreign kings successfully asserted the principle that every man, whosesoever man he may be, is the king’s man, bound to the king by an immediate fealty; and perhaps to this principle the word felony owes the enormously wide meaning which it gained in England.

Whatever may be the truth about this charge of felony, the charge of breaking the king’s peace is almost certainly a fiction. It will be observed, that according to the words of the appeal, B killed C not merely “contra pacem domini regis,” but “contra pacem domini regis ei datam,” that is to say, the slain man had the king’s safe conduct, or in some other way was specially under the king’s protection, and breach of the king’s protection was undoubtedly an ancient plea of the crown. When in the Latin version of Canute’s code, and again in Doomsday, and in the would-be laws of Edward, William, and Henry the First, we read of a breach of the king’s peace, we ought certainly not to import notions from our later law and to imagine that every common assault or even every homicide could be supposed a violation of that peace, or to think of breach of the king’s peace as almost or altogether synonymous with offence. A charge of breaking the king’s peace was a definite charge of having done an act of violence to a person, or at a place, or on a day specially privileged. Probably this had lost all practical importance before Bracton’s time, and though of course it was absolutely essential to charge in words a breach of the king’s peace, this peace was thought of not as a peculiar immunity attached to places, persons, times and occasions, but as the general peace and order of the realm. Still, to make assurance doubly sure, it might be well to charge that a slain man enjoyed a peculiar peace ei datam, and thus make the crime a definite breach of the king’s grith or mund.

But the more important point is that the slayer was guilty of premeditated assault (in assultu premeditato). He is thus, I take it, charged with foresteal, agwait purpense, guet-apens. Bracton afterwards gives the words of an appeal “de pace et plagis,” an appeal of wounds, and in this the appellant charges that on a certain day he was in the peace of our lord the king in such a place, or that he was in the peace of our lord the king, “in chimino domini regis1 .” This may show a trace, though only a trace, of the old notion that the king had a special interest in crimes committed upon his highway, though by this time, just as the king’s peace was no longer a special privilege, so every highway had become, or was becoming, the king’s highway. But the main point to be noticed is that the appeals “de morte hominis, de pace et plagis,” and “de pace et mahemio,” all contain the charge of premeditated assault. That this premeditatus assultus was probably a Latin equivalent for the French guet-apens seems very probable when we remember that the procedure by appeal and wager of battle was French, not English, and compare an extremely similar form of appeal for wounds given in the Norman custumal2 . “Je me plaing de P., qui en la paix de Dieu et du Duc me assaillit félonneusement à ma charue, en aguet pourpense, et me first cest sang et ceste playe que je monstre à la justice.” In the Latin version it runs:—“Ego conqueror de T. qui ad carrucam meam, cum agueito prœcogitato, in pace Domini et Ducis me crudeliter assaltavit, et plagam, maleficium et sanguinem mihi fecit, quod demonstravi judicio.”

This charge of premeditatus assultus, which contains the germ of malice prepense, appears in the appeal “de morte hominis” as given by Fleta1 . At a much later date Staundford2 copies the old form of words from Bracton, and I suppose that so long as men waged battle in criminal cases the form remained unaltered. Probably this phrase had a well-known French equivalent. Certainly in the 13th century, and I know not how much earlier, there was a distinction in French law, or at least in the law of some parts of France, between murder and simple homicide, and the distinguishing note of the former was guet-apens. Beaumanoir, who towards the close of the century committed to writing the custom of Beauvais, says that there are four crimes for which a man shall be drawn and hanged and forfeit his possessions. These are murder, treason, homicide and rape. Murder and homicide he thus distinguishes3 :—“Murdres, si est quant aucuns tue ou fet tuer autrui en agait apensé, puis soleil couquant dusqu’à soleil levant, ou quant il tue ou fet tuer en trives ou en asseurement. . . . Omicides, si est quant aucun tue aucun en caude mellée, si comme il avient que tençons naist et de la tenchon vient lede parole et de le parole mellée, por le quele aucuns rechoit mort souventes fois.” This is very strikingly like English law as it emerges three centuries later in Staundford’s Pleas of the Crown. Murder is marked by guet-apens; manslaughter is killing in what we have chosen to call chance medley, but what doubtless should have been called, and must once have been called, even in England, chaude mêlée. In an ordinance of St Lewis1 , and in other French records of the 13th century, the same distinction appears, and guet-apens was so well-established a term of the law, that Frenchmen writing in Latin were at pains to make such words as agaitum, aguaitum2 . But the more classically-minded seem to have preferred insidiæ præpensatæ, or insidiæ præcogitatæ, and this introduction of the word insidiæ is of importance, because of a certain text in the Vulgate, of which hereafter.

Nevertheless, the punishment for simple homicide was, according to Beaumanoir, the same as the punishment for murder. It may be noted by the way that the French law in the 17th and 18th centuries was quite as strict as the English in holding that every one guilty of homicide is in theory liable to be put to death. In case of excusable homicide, there was, in France, the same necessity of obtaining from the king “lettres de grâce”—which, however, were granted as of course—that there was in England of obtaining a formal pardon3 . But whatever may have been the origin of this state of things, which perdured until the Revolution, criminal homicide not amounting to “meurtre” was a capital crime just as meurtre was. I believe that sometimes, and in some parts of France, the murderer was broken upon the wheel, while the mere manslayer escaped with a hanging, but in Beaumanoir’s time and district both were hanged. His distinction therefore may at first sight seem futile. Really it was of great importance, though it did not affect the fate of the criminal.

In France criminal jurisdiction was to a very large extent in other hands than the king’s—in the hands of great lords and chartered towns. Now murder was a plea which belonged only to the highest jurisdiction. In the records of the 13th century there are many entries touching disputes as to whether some lord’s jurisdiction extends to murders. A good illustration of the way in which the distinction between murder and simple homicide made itself felt may be found in a case which came before the king’s court in 12641 . A man had killed his wife. The mayor and jurats of Noyon hanged him. The bishop of Noyon was aggrieved by this, for that, as he alleged, jurisdiction over murder (justitia multri) was vested in him. The mayor, however, pleaded that there had been no murder, but just a simple homicide en chaude mêlée (simplex occisio facta ad calidam mesleiam). Even late in the 18th century there was this distinction: homicide by guet-apens was, while simple homicide was not, “un cas royal,” that is to say, a plea over which only the king’s judges had jurisdiction to the exclusion of the seignorial courts1 .

This, as it seems to me, may explain the appearance of premeditatus assultus in the form of words, whereby, according to Bracton, wager of battle is made. This plea, as say the Leges Willelmi, belongs to the king’s crown. This, as say the laws of Canute, is one of the rights which the king enjoys over all men. It is “un cas royal,” “placitum coronæ.” Perhaps the averment of premeditated assault was in Bracton’s day merely formal. The king’s judges must have been unworthy of their successors if they were not prepared to hold that an allegation giving the court jurisdiction cannot be contradicted, and somehow or another the great work of gathering into the king’s hands all criminal justice was successfully accomplished. If, however, we are apt to forget that any such work had to be done, we should try to realize the state of things pictured by the Leges Henrici, and consider how easily that might have developed into the state of things that existed in contemporary France; nor should we forget that Glanvill and Bracton give us but one side of a many-sided story, and that side the king’s.

From præmeditatus assultus it was no great leap to præcogitata malitia, not nearly so great a leap as it is now from assault to malice, according to the common use of words. Undoubtedly, as Sir James Stephen suggests2 , it is but gradually that malice has come definitely to mean a motive, namely, spite, malignity, pleasure in another’s pain. “Sufficit diei malitia sua1 “:—those familiar with such words as these can hardly have thought that malitia must always mean a wicked motive, nor did Wiclif scruple to translate them by “It sufficith to the dai his owne malice.” The transition from premeditated assault to malice aforethought is rendered even easier than it would otherwise have been by the statute of 1389, which combines them in the phrase “agait, assaut, ou malice purpense.” This probably is just such a generalizing crescendo as is at all times dear to the draftsman; “assault” is somewhat wider than “ambush,” and “premeditated evil” is a still more general phrase. The transition, however, is fortunately made yet easier for us by an almost contemporary French ordinance and an almost contemporary Scotch statute dealing with the very same subject-matter as this statute of 1389, for it seems that the royal prerogative of pardon was making itself felt as a nuisance in France and Scotland as well as in England.

In a French ordinance of 13562 this phrase occurs:—“Nous ne ferons pardons ne remissions de murdres ou de mutillacions de membres faiz et perpetrés de mauvaiz agait par mauvaise volunté et par deliberacion.”

A Scotch statute of 13693 , provides that no one asking a pardon for homicide shall be heard until inquisition has been made touching the crime, and if it appears “quod factum fuerit per murthyr vel per præcogitatam malisiam,” a pardon shall not be granted without consent of Parliament. Here, plain enough, is malice aforethought part of the Scotch definition of the worst form of manslaying just twenty years before the same phrase receives statutory sanction in England. But the vernacular phrase in Scotland seems to have been, not malice aforethought, but forethought felony. In 1373, this occurs as a technical term in a statute1 , such as would now be called a temporary Coercion Act. The king is to cause every manslayer to be seized and imprisoned “et incontinenti cognosci facere per assisam si homicidium fuit perpetratum ex certo et deliberato proposito vel per forthouch felony sive murthir, vel ex calore iracundiæ vz chaudemellee”; in the former case “incontinenti facienda est iusticia,” while in the latter the criminal is to be proceeded against in the ordinary course of law. From this time onwards the contrast between forthocht felony and chaude mellay recurs at intervals in the Scotch statute book. The chief consequence of the distinction became one not very unlike that which existed in England after murderers had been deprived of benefit of clergy. In Scotland, the privilege of sanctuary or grith (the church grith of our own old laws) seems to have been a more inviolable impediment to penal justice than it was even in England. At length, however, in 1469, just about the same time that petty treason was made unclergyable in England, and before murder was made unclergyable, the murderer was excepted in Scotland from the privilege of sanctuary2 . Those in charge of the sanctuary are to be informed “that sic a man has committit sic a cryme of forthocht felony tanquam Incediator [insidiator] viarum et per Industriam for the quhilk the law grantis nocht nor levis sic personis to Joise [enjoy] the Immunite of the kirk.”

Passing by for one moment this recurrence at a late date of the old notion that waylaying, insidiæ, guetapens are the true marks of the worst kind of man slaughter, we may note the close similarity between the phrases which in the latter half of the 14th century were employed in France, Scotland, and England, to designate the sort of crime which the king was not to pardon. In France it is perpetrated “de mauvaiz agait par mauvaise volunté et par deliberacion”; in Scotland “per præcogitatam malitiam,” “ex certo et deliberato proposito vel per forthouch felony”; in England “par agait, assaut ou malice purpense.” Probably, almost the same idea is expressed in all these phrases; it is a sort of homicide that is distinguishable from manslaughter en chaude mêlée. Some premeditation is of its essence, and the notion of waylaying or ambush is giving way to that of spite or malevolence.

But our last quotation from the Scotch statute book contains an allusion not to be missed. The Latin words “tanquam insidiator viarum et per industriam,” which are introduced into a statute written in the vulgar tongue, are of great historical value. They refer to a passage in Exodus1 . Our Authorised Version renders it thus:—“But if a man come presumptuously upon his neighbour, to slay him with guile; thou shalt take him from mine altar, that he may die.” In the Vulgate the words are, “Si quis per industriam occiderit proximum suum, et per insidias, ab altari meo evelles eum, ut moriatur.”

Such an one, therefore, the clergy could hardly protect, for this was not merely a text of the Bible, it was a text of the Canon Law1 . I imagine that this text had a most important influence on the criminal law of mediæval Europe. It draws a line between two kinds of culpable homicide, and sanctions the belief that insidiæ, waylaying, guet-apens, are the distinctive marks of the worse kind. There are other passages in the Pentateuch which in their Latin guise make odium as well as insidiæ characteristic of that manslaughter which is beyond the privilege of sanctuary. It may be conjectured that these passages helped not a little to establish the notion that the real test is subjective, and to supplant premeditated waylaying by malice aforethought2 .

It is not impossible that the texts in the Vulgate about insidiæ are the root of the whole matter, the cause why the old notion that murder is slaying in secret, or slaying with concealment, was after the formation of the Canon Law replaced by the theory that the differentia of the worst homicide is guet-apens, premeditatus assultus. I imagine, however, that at least a co-operative cause was the fact that waylaying, “force faite en real chimin,” was an infringement of the king’s own rights, “un cas royal,” an ancient plea of the crown, for that the highway was the king’s, and they that walked therein enjoyed his peace.

This may seem a superfluous attempt to explain the sufficiently obvious. We are wont to think, or to speak as if we thought that premeditated manslaying is the worst type of manslaying, and are perhaps rather surprised when Sir James Stephen points out that this is no universal truth. But whatever may be natural to us, we ought not to suppose that in the eyes of our remote ancestors the fact of premeditation would naturally have aggravated the guilt of manslaughter. The curious agreement between French and English law as to the necessity of obtaining a pardon in a case of excusable homicide, must suggest that this usage, for which Hale and Blackstone make half-hearted apologies, and which may have owed its long continuance partly to texts in the Old Testament, partly to the fees payable by those who sought a pardon, had its origin not in any accident, or in any desire to extort money, but in the utter incompetence of ancient law to take note of the mental elements of crime. Of this incompetence there is plenty of other evidence. The rank of the slayer, the rank of the slain, the rank of their respective lords, the sacredness of the day on which the deed was done, the ownership of the place at which the deed was done—these are the facts which our earliest authorities weigh when they mete out punishment; they have little indeed to say of intention or motive. When they do take any account of intention or motive, then we may generally suspect that some ecclesiastical influence has been at work, as when, for example, the compiler of the Leges Henrici borrows from Gratian and St Augustine that phrase about mens rea which has found a permanent place in our law books. Secrecy, or rather concealment, it may be allowed, was from of old an aggravation of manslaughter, so was the taking of an unfair advantage. Of this we see something in the definition of foresteal already quoted; it is foresteal to lie in wait for one’s enemy and to attack him on the flank; it is not foresteal to call him back and have a fight with him. But in the days of the blood feud, such days for example as are represented by the story of Burnt Njal, mere deliberation or premeditation cannot have been thought an aggravation of the crime; a man was entitled to kill his enemy provided that he was prepared to pay the price or bear the feud, but he was expected to kill his enemy in a fair, open, honest manner, not to take a mean advantage, not to fall upon him like a thief in the dark. In the fact therefore that premeditation became an element in the definition of murder, there is, as it seems to me, something that requires explanation, and towards such an explanation we have made some advance when we see that ambush or waylaying is an offence against the King, and that the book of Exodus excepts him who has slain another per insidias from the privilege of sanctuary.

[1]Law Magasine and Review, August, 1883.

[2]23 Hen. VIII., cap. I.

[1]6 Edw. I., cap. 9; Stephen, vol. III., pp. 36-41.

[2]13 Ric. II., stat. 2, cap. I.

[3]14 Edw. III., stat. I, cap. 4.

[4]52 Hen. III., cap. 25.

[5]Vol. III., pp. 36, 41, 42.

[6]Y. B., 21 Edw. III., p. 17b.

[7]2nd Inst., 148.

[8]Bracton, f. 135. Abbrev. Placit., p. 19. A certain man named Humfrey was drowned in the pond of Roger FitzEverard, at Herst; “Angleceria fuit presentata ad horam et terminum. Infortunium.”

[1]“Dialogue of the Common Law.” (Works, ed. Molesworth, vol. VI., p. 83.)

[2]Lib. 14, cap. 3.

[1]Capp. 84-92.

[2]f. 134 b.

[1]Chron. T. Wykes, ann. 1270. (Rolls Series, Ann. Monast., vol. IV., pp. 233-235.)

[1]Arts. 295-6-8.

[2]Littré defines guet-apens thus:—“I. Embῦche dressée pour assassiner, pour dévaliser quelqu’un, pour lui faire quelque grand outrage. 2. Fig. Tout dessein prémédité de nuire.”

[1]Will. Conq., I. (Thorpe, Ancient Laws; Schmid, Gesetze der Angelsachsen).

[2]Cap. 2.

[1]Canute, II. 12.

[2]80, secs. 2, 4.

[1]Hoveden (Rolls Series), vol. II., p. 242.

[2]Bromton (Decem Scriptores), p. 957; cf. Fleta, p. 63.

[3]Textus Roffensis. (Anglia Sacra, pp. 334–336; Selden’s Eadmer, p. 199.)

[4]Littré, s.v. guet, aguets; Skeat, s.v. wait, await; Ducange, s.v. wachta.

[1]Bracton, f. 138.

[1]f. 144.

[2]L’Ancienne Coutume de Normandie (ed. W. L. de Gruchy), cap. 74 (75).

[1]f. 48.

[2]Ed. 1583, f. 78 b.

[3]Les Coutumes du Beauvoisis, cap. 30, secs. 3, 6 (ed. Beugnot, vol. I., p. 412).

[1]Ann. 1245. Ordonnances des Rois de France, vol. I., pp. 56–57.

[2]Ducange, s.v. agaitum, aguaitum, insidiæ, pensabiliter, pensamentum.

[3]Jousse, Traité de la Justice Criminelle (ed. 1771), vol. III., pp. 481–482; Denisart, Collection de Décisions, s.v. homicide, grâce (ed. 1790); Bouteiller, Somme Rurale, ed. L. Charondas le Caron, 1611, p. 287.

[1]Les Olim, ou Registres des Arrêts (ed. Beugnot), vol. I., p. 592.

[1]Jousse, op. cit., vol. I., pp. 193–195.

[2]Vol. II., p. 118; vol. III., p. 56.

[1]S. Matth., cap. vi., v. 34 (Vulg.).

[2]Ordonnances, vol. III., p. 129.

[3]Acts of Parliaments of Scotland, vol. I., p. 151.

[1]Acts of Parliaments of Scotland, vol. I., p. 184.

[2]Ibid., vol. II., p. 96.

[1]Exod., cap. xxi., v. 14.

[1]Decret. Gregor. IX., lib. v., tit. 12, c. I.

[2]Num., cap. xxxv., v. 20, seq.; Deut., cap. xix., v. 4, seq.