The legal termpeace, sometimesking's peace (Latin:pax regis)[1] orqueen's peace, is thecommon-law concept of the maintenance of public order.[2]
The concept of the king's peace originated inAnglo-Saxon law, where it initially applied the special protections accorded to the households of theEnglish kings and their retainers. A breach of the king's peace, which could be either acrime or atort, was a serious matter. The concept of the king's peace expanded in the 10th and 11th centuries to accord the king's protection to particular times (such as holidays), places (such as highways and churches), and individuals (such as legates). By the time of theNorman Conquest, the notion of the king's peace became more general, referring to the safeguarding of public order more broadly. In subsequent centuries, those responsible for enforcing the king's peace (besides the king himself) included theKing's Bench and various local officials, including thesheriff,coroner,justice of the peace, andconstable.
In modern Britain, thepolice services are responsible for keeping the peace, a duty distinct from their duty oflaw enforcement. The concept has remained relevant inEnglish law; inR v Secretary of State for the Home Department, ex parte Northumbria Police Authority (1989), theCourt of Appeal forEngland and Wales held that the government could exerciseprerogative powers to maintain the peace of the realm.
The notion of "king's peace" originates inAnglo-Saxon law.[3] Historian Bruce R. O'Brien notes that the concept was "a vague statement of theinviolability of the king or his palace" under the earlyEnglish kings.[3]
Maitland andPollock describe the origins of the concept of the king's peace as arising from (1) "the special sanctity of the king's house" (theroyal household ormund), "which may be regarded as differing only in degree from that which Germanic usage attached everywhere to the homestead of a free man"; and (2) "the special protection of the king's attendants and servants, and other persons who he thought fit to place on the same footing."[2] Thus, Maitland and Pollock noted that "breach of the king's peace was an act of personal disobedience, and a much graver matter than an ordinary breach of the public order; it made the wrongdoer the king's enemy" who could be declared anoutlaw.[2]
Over time, the notion of king's peace expanded,[2][3] particularly in the 10th and 11th centuries.[3] The expansion of the concept coincided with the expansion of the king's household to encompass governmental institutions, including thechancery,exchequer, chamber, and royal courts of law.[2] Under the reigns ofÆthelred andCnut, the concept of king's peace had already extended to designated times, places, individuals, and institutions.[3][4] Individuals and institutions under the king's peace includedlegates, churches, and assemblies.[3]
Following theNorman Conquest, the "king's peace" had extended to refer to "the normal and general safeguard of public order" in the realm,[2] although specially granted peaces continued to be given after this period.[4] Under theLeges Edwardi Confessoris (Laws of Edward the Confessor), the four great highways of the realm (theRoman roads ofWatling Street,Icknield Street,Ermine Street, andFosse Way) as well asnavigable rivers were also under the king's peace.[5][4][6] TheLeges Edwardi Confessoris provided that the weeks forChristmas,Easter, andPentecost were under the king's peace as well.[4] Maitland commented that the king's peace had begun to "swallow up lesser peaces" such as the peaces of locallords of the manor.[7] For example, roads other than the four great Roman roads were formerly under the sheriffs' peace, but by the end of the 14th century had been brought under the king's peace.[5]
A breach of the king's peace could be either a crime or atort; one who breached the king's peace could be pursued by anappeal of felony orwrit of trespass (brought by the victim of the breach) or by anindictment of felony or indictment of trespass (brought on behalf of the king, frequently at the request of the victim).[8] One who breached the king's peace was subject to punishment for both the breach and for the underlying conduct,[3] which could be in the form of a fine,forfeiture, imprisonment,corporal punishment, orcapital punishment.[3][8]
TheCharter of Henry I, issued upon Henry's coronation in 1100, stated: "I establish a lasting peace throughout the whole of my kingdom and command that it henceforth be maintained."[3] HistorianJohn Hudson had commented that Henry I's cornational declaration of peace was non-specific, but did emphasize "the association of both the ideals and the practical enforcement of good order with firm kingship" as characterized by, among other things, an expansion of royal judicial activity.[4] Hudson writes: "Thus the later precise legal notion of the king's peace may have developed more from ideas of the general king's peace, as manifest perhaps inshrieval grants and Henry's coronation decree, than from specific grants of royal protection."[4]
Thebinding over power ofmagistrates, which was first codified in theJustices of the Peace Act 1361, has partial roots in the early use of sureties of the peace, which "emerged from the peace-keeping arrangements of Anglo-Saxon law, extended by the use of the royal prerogative and royalwrits to bestow the king's peace where the king wished until the peace became a nationwide legal reality."[9][a] Sureties of the peace were replaced in the 13th and 14th centuries, as the institutions of keeper of the peace and thenjustice of the peace were established.[5] The 19th-century legal commentatorJames Fitzjames Stephen wrote that the conservators of the king's peace were the king, thegreat officers of state, and theKing's Bench on the national level, and thesheriffs,coroners,justices of the peace, andconstables on the local level.[10]
In traditional common law, a killing of a human was a murder only if the victim was "under the king's peace" (i.e., not an outlaw or an enemy soldier in wartime).[11][12] This was predicated on the notion that, because the outlaw lived outside the king's peace, the king would not punish offenses against the outlaw.[12][b]
Historically, evenhomicidesse defendendo (inself-defence) were considered offenses against the king, in that they deprived the king of the use of his subjects. As a result, killings in self-defense were treated as anexcuse that required a royal pardon, rather than ajustified act.[14][15][16] Similarly, themaiming of a person was an offense against the king because it reduced "the value of ahuman resource, in this case, by rendering him incapable of military service."[16]
Today, the preservation of the King's Peace is the major responsibility ofpolice services.[17][18][19]Lord Scarman, in hisreport on the1981 Brixton riot, defined the "Queen's Peace" as the maintenance of "the normal state of society" (i.e., a "state of public tranquility") and defined it as the first duty of a police officer, ahead of the second duty ofenforcing the law.[20] In a 2011 speech to the Police Foundation,Lord Judge (theLord Chief Justice of England and Wales) said, "The concept Queen's Peace as it now is, unbreakably linked with the common law, is arguably the most cherished of all the ideas from our medieval past, still resonating in the modern world."[21] He noted that the police officers take an oath to "cause the peace to be kept and preserved and prevent all offences against people and property."[21]
In the controversial decision inR v Secretary of State for the Home Department, ex parte Northumbria Police Authority (1989), theCourt of Appeal forEngland and Wales held that theHome Secretary could exerciseprerogative powers to maintain the peace of the realm. The court thus ruled that theHome Secretary had the power to purchasecrowd control devices, such asplastic bullets andCS gas, even without statutory authorization or the approval of the localpolice authority.[22]
In modern English law, abreach of the peace is not itself a crime.[23][24][c] However, "where a breach of the peace has been committed or, alternatively, where such a breach is reasonably believed to be imminent, a police officer, or for that matter a member of the public, has the power at common law to arrest withoutwarrant the individual or individuals who have either committed or are about to commit that breach of the peace even though no offence has actually been committed."[24] This is a form of preventive arrest.[24][25] Under theMagistrates' Courts Act 1980, a magistrate has the power to "bind over" a person to keep the peace (i.e., to forfeit a sum of money upon a subsequent breach of the peace), and "refusal to be bound over to keep the peace is an offence in English law, punishable by up to six months' imprisonment."[25] Moreover, the obstruction of an officer engaged in preventing a breach of the peace is a criminal offence.[23]
The caseR v Howell (1981) defined breach of the peace as "harm ... actually done or likely to be done to a person or, in his presence, his property or is put in fear of being harmed through an assault,affray, riot, unlawful assembly or other disturbance."[23] In the 1998 case ofSteel v UK, theEuropean Court of Human Rights decided that this was a lawful restriction of thefreedom of assembly underArticle 5 andArticle 11 of the European Convention on Human Rights.[23]
Unlike medieval England, there is no strong evidence "for a strong conceptual and ideological royal peace" concept inmedieval Scotland; however, historian Alan Harding argues that 12th-century royal brieves of protection issued byScottish kings implicitly reflect the same concept.[13] HistorianPatrick Wormald suggests that Anglo-Saxon law andScots law developed in parallel, and that the "seminal notion of vesting social security in the protection afforded by the king's peace" applied in both Scotland and England, with very early origins.[26]
After theAmerican Revolution, American law merely adapted the common-law concept of the king's peace to refer to the maintenance of public order,[2] and the concept of "an offense against the king's peace" to refer to an offense against the new sovereign—the people or the state.[16] In the United States, thecommon law offense of breach of the peace was supplanted by thestatutory offense ofdisturbing the peace. The separate offense ofdisorderly conduct has no common-law roots, but in most U.S. jurisdictions this offense "often is indistinguishable from" disturbing the peace.[27] The application of criminal statutes on disturbing the peace and disorderly conduct have been limited by constitutional jurisprudence on theFirst Amendment, including theU.S. Supreme Court's rulings inChaplinsky v. New Hampshire (1942) andColten v. Kentucky (1972).[27]
As a common-law nation, the notion of "breach of the Queen's peace" endures in Australia.[28] In theHigh Court of Australia decisionLipohar v R (1999), a decision dealing with jurisdiction to try a case for the common-law crime ofconspiracy to defraud, JusticesGaudron,Gummow, andHayne quoted a 1973 decision by the English judgeLord Wilberforce that "the common law treats certain actions as crimes" on the ground that the "actions in question are a threat to the Queen's peace, or, as we would now perhaps say, to society."[29]
The concept of the king's peace is significant in thehistoriography of medieval England, particularly regarding the study of the origin of the idea ofcrime.[13]Black's Law Dictionary defines the term as "the king's guarantee of peace and security of life andproperty to all within his protection."[1] The notion of the king's peace is linked to the idea ofpolice power and, more generally,sovereign power.[16]
