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I believe this question could be asked in either the English Language, Legal, or History stack, but I believe the historical aspect of this question is, by far, the most interesting, and I think will find the widest interest on the History stack. I will be answering my question, but still hoping for other answers to add to what I have found. But first, background information.

I was researching an incident that happened in 1845 in Ballinhassig, Ireland. Modern accounts of this incident are in stark contrast to the newspaper accounts of the day found in the Cork Examiner and Southern Reporter and Cork Commercial Courier, which depict the incident as overzealous cops slaughtering innocent villagers. Modern accounts portray the people as the aggressors. Either way, what was argued in court was (as told via the two newspapers) that if a cop accidentally shoots an innocent bystander while intending to shoot a lawful target (i.e. an assailant) then the officer is not culpable for the innocent's death, and it calls this situation "chaud melee". This mention is found in the 14 July 1845 edition of the Cork Examiner (paywall). It says: Mention of Chaud Melee in 14 July 1845 edition of the Cork Examiner

I googled "chaud melee" and wiktionary brought up "chaud-medley" with the alternative form "chaud-mellé". The definition given is "hot affray". Going back to Google, I found this article, titled "Chaud-mellé: A Sudden, Unplanned, Intense, Heated Fray". This article makes the argument that chaud melee was an ancient Scottish legal concept that granted someone remission for the crime of murder, so long as it could be proved that the murder was unpremeditated.

The source it gives is the 1826 "Dictionary of the Law of Scotland". The reference supports the claim. It says:

"CHAUD MELLE, is a term in our ancient law, applied to homicide committed on a sudden, and in heat of blood. The person guilty of this offence had the benefit of sanctuary, from which, however, he might have been taken for trial, but if he proved chaud melle, he was returned safe in life and limb."

The law dictionary goes on to say that the "privilege of sanctuary" was "abolished at the Reformation." And, then I believe it is saying that the concept was held onto, basically, to differentiate between degrees of murders.

Now, this article takes the law dictionary to mean that,

"Any chance encounter that suddenly went south seems fair game...As much as we have pub brawls that erupt today, Scotland in the 1400s and 1500s surely had its share. And it seems such encounters may have been covered by this law, protecting those who killed others in unfortunate situations."

This mass murder free-for-all, where all unpremeditated murders were given remission did not sit right with me. Even with all the violence in Scotland's history, it just sounds so contrary to a prosperous society. Of note, the law dictionary usage of the term sort of contradicts the usage in the 1845 paper. It could be argued that the first usage (in the 1845 Ballinhassig affair) is a special type of unpremeditated murder, but the way the lawyer puts it, it sounds like he is using to me a police officer accidentally shooting an innocent in a hot affray, because he is already being kind of shady in usurping a Scottish legal concept for an Irish trial. Admirably, the author of the Medium.com article admits, "I'm unable to find absolute specifics on this, by way of examples." Further adding, "I'd love to hear confirmation from that from any authorities on the matter." While, far from an authority, I hope to add clarity to the matter.

In order to do so, I searched the term on the British Newspaper Archive (paywall for most/it has some well-known editions available to the public).

The earliest mention I can find appears in the 7 May 1753 edition of The Scots Magazine (purportedly the oldest still operating magazine in existence, though it's operation has not been continuous). It being in Scotland matches the law dictionary. The article using the term is about the trial of James Stewart. The way it uses the term is thus:

"And, first, it will observed, that the murder is not said to have been committed from a sudden passion, or chaud mella, as the law expresses it, but to have been premeditated and resolved upon for some days before it was committed."

It does not say what the punishment should have been had it been a chaud mella. So, it would appear that this earliest mention agrees with the definition given in the Sottish law dictionary, not the first mention I found (in the 14 July 1845 Cork Examiner).

The next time the term pops up in the British Newspaper Archive is 25 years later, in the Caledonian Mercury, published in Midlothian, Scotland. This article is difficult for me to parse thanks to all the Latin (though, Google Translate does make it comprehensible), but, from what I gather, it does not use the term in the manner of the Irish 1845 use. It says, "...there was no forethought felony, but only casual chaud-melee."

The next use I find is in the 20 October 1827 London Evening Standard and is reprinted verbatim 10 days later in the Cork Constitution. Interestingly, the Cork Constitution is published in the same city that the Cork Examiner of 17 July 1845 was published in (in case you didn't know Cork was a city). Also, if you read the coverage of the "Ballinhassig Slaughter" in the Cork Examiner and Southern Reporter and Cork Commercial Courier, you will see that the lawyers involved in that case read the Cork Constitution. While I can't say for sure that is where the lawyers first encountered the term chaud melee, it is interesting to note that these lawyers, in 1845 at least, were reading the newspaper that first (as far as I can tell) printed this term in Ireland (the two prior usages were in Scotland and on in London) in 1827.

Now, the article is actually just a reproduction of the story "The Two Drovers", by Sir Walter Scott. I won't lie. By this time, everything was starting to seem monotonous and I was getting impatient, so I didn't read the whole article. Instead, I found a summary of the story on Wikipedia, which is just copied verbatim from [Henry Grey's 1882 book "A Key to All the Waverly Novels, in Chronological Sequence"] (https://www.google.com/books/edition/A_Key_to_All_the_Waverley_Novels_in_Chro/hJzgCzqBkcwC?hl=en&gbpv=1&dq=In+1795,+Robin+Oig+was+just+starting+from+Doune+with+a+drove+of+cattle+for+England&pg=RA1-PA28&printsec=frontcover). Taken together, the story tells of how two men got into an argument. One man hit the other, who fell to the ground unconscious. When he regained consciousness, he went and fetched his sword then stabbed his antagonist to death. At the trial, he plead chaudé melée; however, the judge determined that the 12-mile walk it took for him to retrieve his sword was enough for him to come to his senses, so chaudé melée was denied, and he was hanged for killing his aggressor.

I found a few other mentions, but all were used in the manner similar to the law dictionary, and provide no further insight. However, I changed up my search query and found something that provides more clarity on the subject. I will elaborate in an answer.

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    French mêlée : clash, skirmish ; chaud : heated. Think in the heat of battle. Nov 22, 2022 at 23:32
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    This is one of those rare cases where the background research on the question was so thoroughly done and well documented that I'm left wondering what exactly is still at question.
    – T.E.D.
    Nov 23, 2022 at 0:04
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    @T.E.D. From the first paragraph: "I will be answering my question." This should have been broken up into a question and an answer instead of the essentially blog entry we have it as now.
    – cmw
    Nov 23, 2022 at 5:53
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    The text speaks of "chaud melee", while the title refers to "chaude melee", I believe the title should be fixed to match the text. "chaude" may be the correct one in French, but it's not what the text refers to. Nov 23, 2022 at 8:48
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    There is no question mark in the body text. What exactly are you asking for? Perhaps other historic references to the term?
    – Daron
    Nov 23, 2022 at 10:16

2 Answers 2

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According to the OED, 1928 edition; a misspelling: as the only entry between Chaud and Chaudpisse is:

Chaud-melle, mella. Sc. Law. [a. OF. chaude mellee (in med. L. calida melleia) 'heated affray or broil': see Melee. (By Selden and others erroneously identified with chance medley, from the partial coincidence of sense and form.)]
A sudden broil or affray arising from the heat of passion; hence, the wounding or killing of a man in such an affray, without premeditation.

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While I appreciate the first answer, it is somewhat lacking in explanation. That answer does touch on its origin, however. The 1425 mention found in "WYNTOUN Cron. VI. xix" on that answer says "...Be ony of the Thaynys kyne." I'll explain, but I have to reverse course first. As stated above, I changed my search query. I found a 15 July 1830 edition of the Perthshire Courier (printed in Perthshire, Scotland). The article is says it is an excerpt from William Chambers "The Book of Scotland.". This excerpt from that book is actually an excerpt of another Walter Scott book "Minstrelsy of the Scottish Border" vol. iii. (Which is super nerd funny to me because the article claims, 'From the cursory inspection which we have given the volume it appears to us to be entitled to its claim of being free from the "paste and scistors" stain—that is, of being a mere compilation of old descriptions and opinions in a modern guise', then it proceeds to copy and paste an old book. In Chambers' defense, he does at least admit to using Scott's work, unlike some other plagiarisms I have found in newspapers of the era.)

This 1806 book covers the "Law of Clan McDuff". This section of the book (pg.271 of the Archive.org version) details some particulars of Scottish history. It says, when Macbeth was "dethroned and slain" by Malcolm III, Malcolm III granted the thane of Fife three wishes. It doesn't say specifically, but it is revealed that the chief of Clan Macduff is the thane of Fife. The third wish was

"this privilege of Clan Macduff, whereby any person, being related to Macduff within the ninth degree, and having committed homicide in chaude melle (without premeditation), should, upon flying to Macduff's cross, and paying a certain fine, obtain remission of their guilt. Such, at least, is the account given by all our historians."

The part that interests me, however, is the following, in which Scott interjects some particulars. He says,

"Nevertheless, there seems ground to suspect, that the privilege did not amount to an actual and total remission of the crime, but only to a right of being exempted from all other courts of jurisdiction, except that of the lord of Fife. The reader is presented with an old document, in which the law clan Macdufff is pleaded on behalf of one of the ancestors of Moray of Abercairny; and it is remarkable that he does not claim any immunity, but solely a right of being repledged, because his cause had already been tried by Robert earl of Fife, the sole competent judge. But the privilege of being answerable only to the chief of their own clan, was, to the descendants of Macduff, almost equivalent to an absolute indemnity."

Scott says that

"Fordun and Wintoun state, that the fine, to be paid by the person taking sanctuary, was twenty-four merks for a gentleman, and twelve merks for a yeoman. Skene affirms it to be nine cows and a colpindach (i.e. a quey, or cow of one or two years old)."

One merk equals 13 shillings 4 pence, so 24 merks would be about 16 pounds. According to Measuring Worth, this was no small sum of money.

The 1425 mention in Wyntoun's Chronicle seems to support this claim to some degree. The only open questions on this now, would be if someone could provide the sources mentioned in the above answer (i.e. Wyntoun's Chronicle 1425; Skene's De Verb; Selden's Notes on Hengham) or the mentions from Scott's entry in the Minstrelsy book(i.e. Fordun, lib. 5, cap.9; Wintoun's Chonykel b. 6, ch. 19; Skene, ut supra). I imagine the Skenes and Wintouns are the same. I just can't seem to find specifically what is being referenced. I am still looking, but I thought I would publish this last piece of the puzzle. Possibly, more to follow...

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