In an attempt to curb frivolous prosecutions, Parliament
provided that no criminal prosecutions were to be
filed in court without an express order from the court or without taking a
recognizance (financial surety) from the
informant for an effectual prosecution.[1]
There were three types of recognizance relevant to the trial process: a
recognizance to prosecute (often issued to the victim of the alleged crime); a
recognizance to appear (issued to a man or woman accused of a non-felonious
offence) and witnesses recognizances (issued to prosecution witnesses). Coroners
were also empowered to bind key witnesses, including examining surgeons, to
attend the assizes.[2] Those accused of a felony were committed
to gaol pending trial.
The failure to take
a recognizance from a prosecutor or prosecution witness did not mean that they
could not appear at the trial but they could not be compelled to attend. In
contrast, witnesses for
the defence could not be bound or otherwise compelled to attend by the court
but appeared only at the request of the defendant. Legislation passed in 1749
introduced a requirement for a minimum of two witnesses be produced at trial to
support any claim in felony: thereafter, the use of recognizances to bind
prosecution witnesses to attend gained greater significance.[3]
It was not
always the case that the victim of a crime was bound to prosecute the accused,
particularly when the victim was female and had a parent or husband to act on
her behalf. Where the complaint related to a matter of homicide, a male member
of the family or community might more commonly be bound to prosecute. Because of
doubts concerning the capacity of married women to be contractually bound by their own
recognizance, conditions for the appearance of a woman in court might vary
according to whether she was married or single. When James Broadbent and others
were indicted for their part in a coining operation in the county, male
witnesses were bound in the sum of £40 each to secure their attendance while
the married, female witness was bound to give evidence ‘on
pain of imprisonment’ if she failed to attend.[4] Either
her husband was unable to
provide sufficient sureties on her behalf, or she was deemed more susceptible
to intimidation or corruption.
+13+Nov+1765+Recog.jpg)
Recognizance, Leeds Quarter Sessions (1765) QSL 1/6
When Robert Waddington was accused of the rape of Ann
Rawson (a spinster) a recognizance of £50 was issued for her to give evidence
against Waddington, while William Rawson (probably her father) was ordered to
enter into a recognizance for £25 to prosecute him.[5] However, when Jane Smith
(a married woman) accused John Hallott of an attempted rape, George Smith (her
husband) was ordered to enter into a recognizance of £40 on the condition that
he and his wife appeared at the next assizes to prosecute Hallott.[6] In that respect, the
justices differentiated between the relationships of husband and wife and
father and daughter, by placing the daughter more firmly in the position as the
property of the father, when she was only required to give evidence, whereas
the married woman was named as co-prosecutor.
Even when women played a key role in the investigation of
a crime, the decision to bind a woman to prosecute depended on her financial
independence. Therefore, when Elizabeth Frazier and Barbara Thompson were
ordered to prosecute Ann Parcivall for infanticide,
recognizances for their appearances were provided by Frazier’s father and
Thompson’s husband.[7] When a female victim lacked any male
support, the terms of her recognizance might be potentially more onerous
because of her susceptibility to threats or intimidation to withdraw her
complaint. Ann Knowles (a widow) was bound by a recognizance for £100 to
prosecute two men and a woman for the theft of a large quantity of clothes and
household items from her house.[8] Witness recognizances were
taken from William Clark and his wife in the sum of £80, as they were said to
have bought items of female clothing from one of the accused. A third witness,
Richard Winterburne was bound in the sum of £50 for his evidence against
another of the accused, having bought an item of stolen clothing from her. A
fourth witness, Ralph Winterbottom, entered into a recognizance of £20 to give
his evidence against all three defendants relating to his suspicions that they
were the people who had committed the burglary. The fact that Knowles entered
into a recognizance to pursue the prosecutions in her own right reflected both her
status as a financially independent woman and, at the same time, her
susceptibility as a woman to intimidation by any one of the witnesses, who were
themselves involved in the purchase of stolen goods. In contrast, the different
bonds ordered in each witness recognizance reflected the role played by each
individual in the events described and the likelihood of their wishing to avoid
giving evidence, rather than any specific issues of gender.
+Recog.jpg)
Recognizance, Newcastle Assizes (1740) TNA ASSI 45/21/4
The rules for binding prosecutors have been criticized
for having “transformed the role of the private accuser from option to
obligation” because of the condition that
prosecutors would forfeit their recognizances if they failed to appear
at the gaol delivery to give their evidence.[9] However, there is little
evidence to suggest that magistrates regularly insisted that a victim proceeded
with a prosecution if he or she did not wish to do so. Neither is there any
evidence in Yorkshire to support Landau’s assertion that corrupt justices could
abuse the system of recognizances to threaten and intimidate witnesses.[10]
Some
judges were willing to aid the prosecution case by postponing hearings while
settlements were negotiated, during which time a defendant might be remanded in
custody if he or she were unable to find recognizances for their appearance at
a later hearing. For example, Elizabeth Bruce and Thomas Richardson were
jointly indicted for an assault on a man when attempting to rescue livestock.
They were ordered to remain in gaol until the next assize, unless they were
able to provide their own recognizances in the sum of £50, plus two sureties
each of £25.[11]
The case was discharged when the victim reported to the court that he had
‘received satisfaction’. In those circumstances, the threat of imprisonment was
sufficient to force the defendants to reach a compromise with the complainant.
Bail and committal procedures
Different issues became relevant in the consideration of
the grant or refusal of bail to an accused, where the alternative was
imprisonment until the day of the trial. When George Bainton, a local attorney, was jointly
accused with another man and woman of forgery, he was released on his
recognizance of £200, with sureties of £100 from two other men.[12] There is no evidence that
either of his accomplices were offered the opportunity to find sureties for
their return to court and it seems likely that Bainton’s social standing
influenced the committing justice’s decision to grant bail. Nevertheless,
Bainton and his male accomplice were convicted and sentenced to death and the
female accomplice was acquitted. While Bainton ‘flattered himself with the hopes
of a reprieve to the very last moment’, it was his accomplice who succeeded in
martialling support for a petition for mercy.[13] Likewise, when in July
1765 Jane Henderson was accused of arson, Mary Dixon
of the murder of her baby and Thomas Hutton of forgery, Henderson and Dixon
were remanded in prison until the following assizes while Hutton was made
subject to a subpoena for his attendance.[14] The
remand of Henderson and Dixon was inevitable because their offences fell within
the category of felonies, but forgery was also a felony for which Hutton should
have been remanded in gaol. However, forgery was an offence of the literate,
with the accused often coming from a higher social group than other common
criminals. Hutton was in fact a school master and allowing him his freedom may
be greater evidence of his access to legal advice, an ability to pay any legal
costs and his appearance as a comparatively ‘sympathetic’ defendant, rather
than providing evidence of male/female discrimination.
For those on the lower end of the social scale, not even
pregnancy or mental illness were automatic grounds on which a magistrate might
veer from the statutory provisions in ordering a committal for gaol, as
demonstrated by a note found in the quarter session-records for Beverley: “I
send you two women one of them big with child & troubled with fits so if
you should let her have the use of a bed for a while I will set you a
reasonable allowance for it”.[15] These
cases appear to provide not so much evidence of gendered discretion but the
influence of money and social status.
Where the facts of a potential felony might be
interpreted in terms of a trespass to goods, a circuit judge or magistrate was
empowered to determine the case under their civil powers and order compensation
in settlement of the dispute. Thirty-four cases located in the quarter sessions
for the East Riding (1765-1775) are marked as determined under the justices’
civil power and includes at least one assault and one theft of hens, both of
which fell within the civil powers as trespasses to the person and to property.
The advantage to a defendant was that the right to bail was automatic in all
civil proceedings. Even so, because of the
restrictions imposed by the bail and committal acts, it has been estimated that
bail was granted in less than 10 per cent of criminal cases and only then for
very minor offences.[16]
Failure to prosecute a case committed for trial was an offence
punishable by imprisonment as it served to undermine the judicial process, yet there is little evidence that those who failed to appear
were required to forfeit their recognizances to prosecute. To that extent both
victims and magistrates were complicit in the punishment of many suspects who
were remanded in gaol or the house of correction pending trial, without giving
the accused an opportunity to clear his or her name when released following an
aborted trial. There is a clearly a complex story behind the grant or
refusal of recognizances and it is an area that would benefit from wider
examination.
[1]
The Bail and Committal Acts of 1554-1556 (together known as the ‘Marian Acts’);
4 Wm. & M. c.18 (1692) Committal Act.
[3]22 Geo. II, c.24 (1749).
[9] Langbein, John H. (1973) 'The
Origins of Public Prosecution at Common Law', The American Journal of Legal
History, vol. 17, pp. 313- 335.
[10] Landau, Norma
(2002) Law, Crime and English Society, 1660-1830, Cambridge: Cambridge
University Press.
[13]
TNA SP 36/56, 10 May 1740, petition on behalf of John Gilley.
[16] Beattie,
J.M. (1977) ‘Crime and the Courts in Surrey 1736-1753’, in J.S. Cockburn (ed) Crime
in England 1550-1800, London: Methuen & Co Ltd.
