By rmay 28 June 2009.
The law relating to
orders to ‘keep the peace’ was enshrined in English law in the fourteenth
century,[1]
although the notion is of Anglo-Norman origin,[2]
and is little changed 650 years later. A person can be
bound by a magistrate to keep the peace and be of good behaviour, either generally or towards a specific person/s, for a stipulated period.
When binding a person, a magistrate will usually stipulate a fine to be paid if
the person later breaches that order. If the person breaches the conditions, he
or she can be compelled to return to court where the magistrate may impose the
fine or otherwise dispose of the case.
Orders to keep the peace are founded in concern with public order and
are not categorised as a criminal
conviction/punishment.
They can be made against an accused, witness or claimant and usually concern a case involving violence or the threat of it and some complainants will drop a claim
if the accused agrees to be bound over to keep the peace.
An
eighteenth-century justice of the peace might resolve disputes between
quarrelsome neighbours by requiring that those involved were bound by
recognizances to ‘keep the peace’ until they made an appearance at the quarter
sessions, at which time they would generally be released from their obligations
if no new complaints were made against them. In practice, responses to acts of violence were
measured in terms of social hierarchy, individual means and contemporary
attitudes to the nature of the offence. Therefore, when John Umphelby, a gentleman, was accused of an assault by
shooting at Francis Hunt, he was released from court on his recognisance of
£500 to keep the peace and four additional sureties of £200 each.[3] During
the period 1765-1775, 105 cases have been identified from the Beverley
quarter sessions where four women and 101 men appeared at various times on
their recognizances and received orders to keep the peace. The relative absence
of orders against women to keep the peace may be explained in part because of
an interpretation of the law that stated that a man might be released on his
own ‘surety for the peace’ but doubted the ability of a married woman (femme covert) or a child under the age
of twenty-one to be legally bound without additional securities provided by
their friends or families “for
they are incapable of engaging themselves to answer any debt”.[4]
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Drunken Lovers by Thomas Rowlandson (1798)
Drunken Lovers by Thomas Rowlandson (1798)
Just over half the orders for men to keep the peace arose out of an
incident involving another man. Of the female complainants of male ‘nuisances’,
one-third were wives of other men but
without more information it is difficult to assess how many complaints arose
out of allegations of unwarranted sexual attention. Complaints by wives against
their husbands represent less than 10 per cent of all the orders against men
but they provide rare evidence that some justices of the peace were prepared to
take some steps to protect a wife from a violent husband, although the
initiative lay with the abused wife and a justice’s powers were limited. Because of guidance that additional sureties should be taken before a
woman could be bound to keep the peace, it is possible that women who caused a
nuisance were dealt with by being ‘handed over’ to their father, husband or
master without any further orders, which would explain why very few orders are
found for women in Yorkshire to keep the peace. In the one exceptional case, in
which a husband felt strongly enough to make a public complaint against his
wife, the justice of peace took recognizances from another
man in the community (possibly a relative of the complainant’s wife) requiring Diana Foster to be of good behaviour and keep
the peace towards her husband.[5] In such cases the resort to patriarchal authority had clearly broken
down.
It is difficult to estimate the extent to which these orders were
policed by the community, although, a requirement for additional sureties obliged
members of the family or local community to monitor behaviour. Alternatively,
reciprocal orders allowed for self-policing between argumentative neighbours:
when John Askam, a gentleman, farmer of Wilberfoss in the East Riding received
an order to keep the peace towards Joseph Smith, a farmer from the same
village, a reciprocal order required Smith to keep the peace towards Askam.[6]
Otherwise,
when the behaviour of any individual became too disruptive, a magistrate had
authority to commit him or her to the house of correction until the following
quarter sessions.
18th Century Chastisement: French illustration
While a few violent men in Yorkshire
were ordered to ‘keep the peace’ towards their wives, very few of them were
separately convicted of an assault during the periods surveyed (1735-45 and
1765-75). James Barber was fined 1shilling in 1740 for an
assault on his wife and widowed
mother-in-law and ordered to find sureties for his good
behaviour because of his history of “frequently cursing, abusing, assaulting,
beating and grievously threatening both women”.[7] Likewise,
in 1765, John Winn
was accused of an assault on his wife, for which he was ordered to remain
in gaol until he found sureties for his good behaviour towards his wife.[8] Both
orders suggest concern for the future protection of their wives, rather than
punishing the offender. In a different domestic setting, Elizabeth Dickinson
was the victim of an assault by her son for which he was found guilty and
ordered to remain in gaol until the next assizes, by which time he was expected to
find two sureties for an order that he keep the peace.[9] The sentence removed the
source of the problem for six months, after which time two members of the
community were bound to supervise any delinquent behaviour which broke ‘social
norms’. These orders also demonstrate contrasting attitudes towards a husband’s
right to ‘chastise’ his wife and social expectations that a son should treat
his mother with respect which Garthine Walker similarly observed in
seventeenth-century Cheshire.[10]
It is not
known what level of behaviour forced the husband of Diana Foster to make public
the fact that he had lost control of his wife, to the extent that he sought an
order that she keep
the peace towards him.[11] That case was unusual at
a time when men, who were dishonoured by the behaviour of their wives, might
expect to be mocked by their neighbours by displays of charivari.
William Hogarth, Charivari
It was generally male family members or
men from the wider community who were encouraged to police the behaviour of
troublemakers by acting as sureties for other men and the occasional woman who
had been bound over to keep the peace. The relative absence of orders against women to keep
the peace in Yorkshire is likely to have arisen because of doubts about the
binding nature of financial orders against infants and femmes covert without additional sureties, rather than
the timidity of women.
[1]
34 Edw. III, c.1 (1361) Justices of the Peace Act: Who shall be Justices of the Peace. Their
Jurisdiction over Offenders; Rioters; Barrators; They may take Surety for good
Behaviour.
[4]
Blackstone, William (1765, first
edition) Commentaries on the Laws of England: Of Public Wrongs, vol. 4, Oxford:
Clarendon Press, p. 251; and see, Burn, Richard (1755) Justice
of the Peace and Parish Officer, vol. 2, London, p. 431.
[5]
ERY Beverley, QSF/246/C/8, Christmas 1769, recognizance of Henry Markham of
Wressle.
[10]
Walker, Garthine (2003) Crime, Gender and Social Order in Early Modern
England, Cambridge: Cambridge University Press, pp. 66-67.
[11]
ERY Beverley, QSF/246/C/8, Christmas 1769, recognizance of Henry Markham of
Wressle.
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