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The King's Peace, the Royal Prerogative and Public Order: the Roots and Early Development of Binding Over Powers

Published online by Cambridge University Press:  16 January 2009

David Feldman
David Feldman
Affiliation:
Lecturer in Law, University of Bristol.
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Extract

One of the most useful and most-used powers that criminal courts1 have is the power to bind people over to be of good behaviour or to keep the peace. Magistrates form the view that a person (“the principal”), who might be a person of previously unblemished reputation, is likely to breach the peace or commit criminal offences. They require him to enter into a recognisance, in form a voluntary covenant or agreement, to keep the peace, or to be of good behaviour, sometimes in a set sum (say £100) for a set period. If he refuses, he can be imprisoned, regardless of the seriousness or triviality, lawfulness or unlawfulness, of the behaviour that originally brought him to court, perhaps as a witness. He may also be required to find sureties, other people who are prepared to promise that they will forfeit a sum of money (say £50 each) if their principal fails to behave. If the principal misbehaves, debts to the Crown arise of £100 from the principal and £50 from each surety. The mechanics are therefore rather similar to bail. Binding over operates today in two ways. First, it can be used after conviction for an offence as an alternative to sentence. The accused enters into a recognisance to keep the peace or be of good behaviour. If he breaches his undertaking, he can be summoned back to court to be sentenced for the original offence. Secondly, it can be used after conviction for an offence as an alternative to sentence. The accused enters into a recognisance to keep the peace or be of good behaviour. If he breaches his undertaking, he can be summoned back to court to be sentenced for the original offence. Secondly, it can be used as a preventive measure to deal with people who are before the court but have not been convicted. This latter use provides a flexible way to deal with cases arising out of disputes between neighbours and minor public order problems without the need for a full hearing. It saves time and money.

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The Cambridge Law Journal , Volume 47 , Issue 1 , March 1988 , pp. 101 - 128
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Copyright © Cambridge Law Journal and Contributors 1988

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References

I am grateful to Miss Della Evans for her comments on a draft of this paper.

1 Statute has given binding over powers to all courts of record exercising criminal jurisdiction, as well as magistrates' courts: Justices of the Peace Act 1968, s.1(7); Magistrates' Courts Act 1980, s.115.

2 For accounts of the binding over powers see Williams, D. G. T., Keeping the Peace, chapter 4; Law Commission Working Paper No. 103, Criminal Law. Binding Over: The Issues (London:H.M.S.O., 1987)Google Scholar.

3 Gouriet v. Union of Post Office Workers [1978] A.C. 435 at p. 498, [1977] 3 All E.R. 70 at pp. 97–8, per Lord Diplock.

4 A. H. Thomas, Calendar of the Plea and Memoranda Rolls of the City of London 1323–1364, pp. xv–xvi; see note 30, below. Putnam, Bertha Haven, Proceedings before the Justices of the Peace, Edward III to Richard III, Ames Foundation, London, 1938 (hereafter Proceedings), p. xxxGoogle Scholar, says of Justices of the Peace, “their right to take surety of the peace is not based on statute but on common law;. …”

5 Sayles, G. O., The Medieval Foundations of England, London, 1948, p. 170Google Scholar.

6 Laws of Edward the Confessor, II.1 (probably compiled about 920 A.D.).

7 Stubbs, William, Select Charters, 9th ed., Oxford, 1913 (ed. Davis, H. W. C.), hereafter Stubbs, p. 76Google Scholar. The source used for the early collections of laws is Wilkins, D., ed., Leges Anglo-Saxonicae Ecclesiasticae & Civiles (London, 1721)Google Scholar. Athelstan's Judicia Civitatis Lundoniae contains the earliest extant legislative mention of a procedure akin to binding over to be of good behaviour: capital offenders under the age of 15 were to be given the opportunity to enter into an undertaking “ut semper ab omni malo abstineat,” followed by servitude, as an alternative to suffering death.

8 Secular Ordinance (959–962), c. 6; Stubbs, p. 83.

9 Ordinance relating to frith-bot, c. 1; Stubbs, pp. 84–5.

10 Ethelbert, Laws, c. 17.

11 Ine, Laws, c. 45, about 690 A.D.; Stubbs, p. 68.

12 Ine, Laws, c. 6.

13 Alfred, Laws, c. 15.

14 Cnut, Secular Dooms, cc. 12 (Wessex), 15 (Danelaw); Stubbs, p. 86.

15 Pollock, F., Oxford Lectures and other Discourses, London: Macmillan, 1890, pp. 65–90Google Scholar.

16 ibid., pp. 80–82.

17 Ibid., pp. 77–78.

18 Ibid., p. 79.

19 Edmund. Laws, ii.7.

20 Ethelred, Laws, iii.l. For examples of safe conducts of this type under the Angevins, see Patent Rolls 1216–1225, pp. 15, 86.

21 On frithborh, see Pollock and Maitland, History of English Law, vol. 1, pp. 568–571.

22 Stubbs, p. 83.

23 The same principle appears under Cnut: Secular Dooms, c. 16; Stubbs p. 86.

24 Morris, William A., Introduction to The English Government at Work, 1327–1336, vol. 1 (ed. Willard, James F. and Morris, William A.), Cambridge, Mass.: Medieval Academy of America, 1940, pp. 6, 7, 8–10Google Scholar.

25 However, this consequence did not always follow. See the case of Shakespeare, Hugh, Lincoln Assize Rolls (ed. Stenton, D. M.), Lincoln Record Society, 1926, no. 855Google Scholar, discussed below, section D.

26 Poolc, A. L., Domesday Book to Magna Cana, 2nd ed., Oxford, 1955, p. 403Google Scholar; Maitland, F. W., Select Pleas of the Crown, Sclden Society, vol. 1, 1888, nos. 23, 59, 78, 99Google Scholar.

27 Maitland, Select Pleas, nos. 81, 84, 86, 87, 91, 95.

28 Edmund, ii.7; terms would then be fixed for payment by instalments. See Pollock, op. tit., n. 15 above, at p. 77.

29 Harding, Alan, Introduction to Roll of the Shropshire Eyre of 1256, Seldcn Society, vol. 96, 1980, p. liiiGoogle Scholar.

30 Thomas, A. H. (ed.), Calendar of the Plea and Memoranda Rolls of the City of London 1323–1364, Cambridge, 1926, pp. xv–xviGoogle Scholar. Thomas mistakenly says that they were bound over for their good behaviour. On the Scots action of lawburrows, see Alan Harding, “The medieval brieves of protection and the development of the common law,” 1966 Juridical Review 115–149 at p. 125.

31 Curia Regis Rolls (hereafter CRR), vol. 15, no. 277 (roll 113, m. 4), Norfolk.

32 CRR vol. 16, no. 1153, Trinity 23 Hen. III.

33 CRR vol. 16, no. 1478 (roll 121, m. 16d), Hilary 25 Hen. III.

34 CRR vol. 16, no. 836, Trinity 23 Hen. III.

35 See the action brought by the Prior of St. Swithin's, Winchester against William de Hammes, CRR vol. 15, no. 234 (roll 113, m. 2d), Michaelmas 17–18 Hen. III (1233). An undertaking to keep the peace, supported by sureties, was often an incident to being bailed pending trial. Mainprise was used in this way when Hugh Pourte, Sheriff of London, impleaded Roger de Lincoln, a draper, of trespass in the City of London in 1303: Thomas, A. H. (ed.), Calendar of Early Mayor's Court Rolls of the City of London 1298–1307, Cambridge, 1924, pp. 145–146Google Scholar.

36 For the rule against impleading except before the king's courts, see van Caenegem, R. C., Royal Writs in England from the Conquest to Glanvill, Selden Society, vol. 77, 1959, p. 212Google Scholar et seq. In Scotland, by contrast, the sheriff both created the protection by binding over potential offenders to keep the peace and enforced the protection offered by royal brieves in the action of lawburrows: see Alan Harding, op. cit., note 30 above.

37 This description of the statute was by the Norwich chronicler Bartholomew Cotton in Historia Anglicana (ed. Luard, 1859), p. 166, translated in SirPowicke, Maurice, The Thirteenth Century, Oxford, 1953, p. 369Google Scholar.

38 Edict of Archbishop Hubert for the preservation of the peace; Stubbs, pp. 257–8.

39 Stubbs, p. 257.

40 Beard, Charles Austin, The Office of Justice of the Peace in England in its Origin and Development, New York, 1904, p. 18Google Scholar.

41 Putnam, , “The Transformation of Keepers of the Peace into the Justices of the Peace 1327–1380,” Transactions of the Royal Historical Society, 4th series, vol. xii (1929), pp. 19–48CrossRefGoogle Scholar (hereafter “Transformation”).

42 Bellamy, J. G., “The Coterel Gang: an anatomy of a band of fourteenth-century criminals,” English Historical Review, vol. 79 (1964) pp. 698–717CrossRefGoogle Scholar.

43 Poole, A. L., Obligations of Society in the XII and XIII Centuries, Oxford, 1946Google Scholar, chapter 5 (“Amercements”).

44 Holt, J. C., Robin Hood, London, 1982, chapter 6, esp. pp. 142–158Google Scholar. Holt's view is not universally accepted: compare Keen, M. H., “Robin Hood—peasant or gentleman?” Past and Present vol. 19 (1961), pp. 7–15CrossRefGoogle Scholar and The Outlaws of Medieval Legend, 2nd ed., London, 1977; Maddicott, J. R., “The birth and setting of the ballads of Robin Hood,” English Historical Review, vol. xciii (1978), pp. 276–299CrossRefGoogle Scholar.

45 Select Cases in the King's Bench, ed. Sayles, G. O., Selden Society vol. 76, 1957, p. 93Google Scholar; Strones, E. L. G., “The Folvilles of Ashby-Folville, Leicestershire, and their associates in crime, 1326–1347,” Transactions of the Royal Historical Society, 5th series, vol. 7 (1957), pp. 117–136, esp. at pp. 134–136CrossRefGoogle Scholar; J. G. Bellamy, op. cit., note 42 above; Bellamy, , Crime and Public Order in England in the Later Middle Ages (London, 1973)Google Scholar, chapter 3.

46 Stones, op. cit., note 45 above, at p. 21 on the employment of the Folvilles by the Cistercian house of Haverholm to smash a rival's water-mill; Bellamy, op. cit., note 42 above, on the employment of the Coterel gang by the chapter of Lichficld at pp. 703–704, who comments, “There was no lack of worldly knowledge in the Lichfield cloisters.”

47 Stones, above, note 45, at pp. 128–129.

48 Compare Putnam, “Transformation,” note 40 above, at pp. 47–48, who points out that the Crown preferred to rely on feudal magnates to keep order, and the Justices of the Peace conflicted with the private jurisdictions as much as (or more than) the county court.

49 Calendar of Close Rolls, 1307–1313, pp. 204–205 (1 April 1310); Putnam, (ed.), Kent Keepers of the Peace 1316–1317, Kent Records, vol. 13, Kent Archaeological Society, Records Branch (1933), p. xviiiGoogle Scholar (hereafter Kent Keepers).

50 Putnam, Kent Keepers, pp. xviii–xix.

51 D. Hughes, The Early Years of Edward III, p. 229; Putnam, “Transformation,” p. 48.

52 For the halting development of the justices' criminal jurisdiction, see Beard, op. cit., note 39 above, and Putnam, “Transformation” and introduction to Proceedings, note 4 above.

53 Putnam, “Transformation,” esp. at p. 48.

54 Statute of Westminster 42 Edw. III, c. 4 (1368). For cases of Keepers being elected locally where the royal appointee had died or proved incompetent, see Beard, op. cit., note 39 above, pp. 23–28.

55 Beard, loc. cit., note 54 above; Parliamentary Writs, 1. 390.

56 Putnam, Kent Keepers, pp. xix–xxi.

57 Putnam, Kent Keepers, pp. xx–xxi.

58 See section B.3 above. The classic account of the duties of citizens to maintain the peace at common law is that of Tindal, C. J. in the Charge to the Bristol Grand Jury (1832) 5 C. & P. 261Google Scholar, following riots in Bristol when the troops moved to the aid of the civil magistrates. For a critique of the law, see Greer, S., “Military intervention in civil disturbances: the legal basis reconsidered” [1983] P.L. 573–599Google Scholar.

59 Putnam, Proceedings, p. xxiii.

60 See Crofts and Corbet's case (1988) Mich, Y. B.Google Scholar. 2 Hen. VII, f. 2, pl. 7, described below, section D.

61 A. H. Thomas, Calendar of the Plea and Memoranda Rolls of the City of London 1323–1364, p. 103, roll A3, m. 2.

62 Ibid., p. 235, rollA6, m. 5.

63 Ibid., p. 327, roll A6, m. 5b.

64 Putnam, Kent Keepers, pp. xxviii–xxix.

65 Putnam, Proceedings, p. xxiii.

66 (1486) Y. B. Mich. 2 Hen. VII, f. 2, pi. 7.

67 Lincoln Assize Rolls, ed. Stenton, D. M., Lincoln Record Society, 1926, no. 855Google Scholar, discussed in A. L. Poole, Obligations of Society in the XII and XIII Centuries, p. 83. On the average wage, see Poole, op. tit., p. 78.

68 Poole, op. cit., p. 83. For an earlier example, born of humanity rather than pragmatism, see note 7 above.

69 On the Piers Gaveston saga, see McKisack, May, The Fourteenth Century 1307–1399, Oxford, 1959Google Scholar, chapter 1.

70 See Stones, op. cit., note 45 above, at pp. 128–129; Bellamy, op. cit., note 42 above, at pp. 709–712 (especially the history of James Coterel at pp. 711–712); Harding, Alan, The Law Courts of Medieval England (1973), pp. 105–106Google Scholar. This process was extended in the fifteenth century, being used by the High Court of Parliament and the Privy Council as well as the king: Harding, Alan, The Law Courts of Medieval England (1973), pp. 105–106Google Scholar; Baldwin, J. F. (ed.), Select Cases Before the King's Council, 1243–1482, Selden Society, vol. 35 (1918), p. xlvGoogle Scholar. or the reign of Henry VI, see Rotuli Parliamentorum, IV, 253–260 and 275 and Proceedings and Ordinances of the Privy Council, III, 354–357. For Edward IV, see P. M. Barnes, “The chancery corpus cum causa file, 10–11 Edward IV,” in Medieval Legal Records, ed. R. F. Hunnisctt and J. B. Post, 1978, pp. 430–476, esp. p. 438. For Richard III binding over people to be “of good and true bearing” following the 1483 rebellion, sec Calendar of Close Rolls 1476–85, nos. 365, 366, 369; see also 365, 369, 388, 419, 420, 426 (binding over to keep the peace). For Henry VII, see Lander, J. R., “Bonds, coercion and fear: Henry VII and the peerage,” in Lander, Crown and Nobility 1450–1509 (1976), pp. 267–300Google Scholar, esp. at p. 276.

71 CRR vol. 14, no. 446 (roll 106, m. 17d), Trinity 14 Hen III (1230).

72 P.R.O. Statute Roll (Chancery), no. 1, m. 10, printed by Crump, C. G. and Johnson, C., “The powers of Justices of the Peace,” English Historical Review xxvii (1912), pp. 226–238 at p. 234Google Scholar.

73 Statues of the Realm, vol. 1, p. 364, gives Lib. Scacc. Westm. IX and MS. Cott. Nero C. I as Che manuscript copies containing 'ne.” To them, Putnam, , Early Treatises on the Practice of the Justices of the Peace in the Fifteenth and Sixteenth Centuries, in Oxford Studies in Social and Legal History, ed. Vinogradoff, P., vol. vii Oxford, 1924 (hereafter Early Treatises), p. 205Google Scholar, n. 1, was able to add MS. Lansdowne 474; BM MS. Harl. 751; MS. Lansdowne 469; Lincoln's Inn; Hale MSS. LXIX (74), Magna Carta to 2 Hen. V (which reads “qe sount de male fame”); BM MS. Lansdowne 464; Bodl. Douce MSS. 362.

74 Statutes of the Realm, vol. 1, p. 364.

75 C. G. Crump and C. Johnson, op. tit., note 72 above.

76 Putnam, Early Treatises, chapter 6, esp. pp. 203–206.

77 See above, section B.3.

78 [1914] 3 K.B. 229.

79 Abridgement, tit. Suertc, no. 21.

80 Eirenarcha, pp. 109–116.

81 (1486) Y. B. Mich. 2 Hen. VII, f. 2, pi. 7. Sec also (1498) Y. B. Mich. 14 Hen. VII. f. 7, pi. 19.

82 Sec Putnam, Early Treatises, pp. 205–206 on “good fame” and “bad fame.”

83 Cap. 24; McKisack, op. cil.., note 69 above, pp. 16–17.

84 Warwick v. Lorimer (1321), in Eyre of London 14 Edw. II, vol. 2, Selden Society, vol. 86, 1969, p. 108.

85 Sec section B.3 above.

86 Sec above, section D, text at note 68.

87 Hclmholz, R. H., Select Cases on Defamation to 1600, Scldcn Society, vol. 101 (1985), pp. xxii–xxiv, xxxv–xxxviGoogle Scholar.

88 See (1498) Y. B. Mich. 14 Hen. VII. f. 7, pi. 19; Lansbury v. Riley [1914] 3 K..B. 229; R. v. London County Council, ex pane Comr. of Police of the Metropolis [1948] 1 K.B. 670.

89 Op. cit., note 72 above.

90 Council for Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, [1984] 3 All E.R. 935, H.L.

91 R. v. Secretary of State for the Home Department, ex pane Northumbria Police Authority, The Times, 19 November 1987, C.A., where the royal prerogative once more came directly into conflict with claims to enforce accountability to local bodies.