The King's Bench was the highest court of common law in England and Wales, with jurisdiction over both civil and criminal actions. Civil business was conducted on the 'Plea Side' and criminal business on the 'Crown Side'. This research guide is concerned only with the records generated by the latter. It covers the period from the Glorious Revolution, the aftermath of which brought about significant changes in the court's procedures, until the court's absorption into the High Court in 1875.
Crown Side had three separate jurisdictions:
- Original jurisdiction over all matters of a criminal and public nature as the custos morum of all the subjects of the realm;
- Supervisory powers over inferior courts;
- A local jurisdiction, in that its presence within any county extinguished the rights of all other courts to hear and try criminal cases. In practice, since the court had become fixed at Westminster by the fifteenth century, its local jurisdiction was over Middlesex and its subordinate jurisdictions (principally Westminster and the Tower Hamlets).
Although the King's Bench (Crown Side) was the highest court of criminal law, it did not deal only with serious offences. Its several jurisdictions enabled it to hear an extensive range of cases, from obstructing the highway to high treason. The way in which a case was initiated was the principal factor in determining its course through the court and its records. Process in the King's Bench was complex and so are the records. There is no single point of entry. In order to trace all the proceedings in a case it is necessary to use several sets of inter-connected types of record, using means of reference that are generally inadequate. Like other legal records, the formal documents (indictments, informations, writs, plea rolls) are in Latin until 1733, and are written in distinctive legal scripts.
Until the nineteenth century very few cases in the King's Bench actually went to trial. Going to law was regarded as a socially unacceptable method of resolving a dispute. Accordingly there was heavy pressure on litigants to come to some agreement without trial.
Such agreements, which often involved some form of financial compensation, were not illegal in cases of misdemeanour and they were encouraged by the judges and officials of the court, who gave higher priority to the reconciliation of the parties involved than to the punishment of offenders. The process of settling a case often generated full and informative affidavits describing the incident in question in considerable detail.
2. Starting a search
As indicated above, there is no single point of entry to these records. The way to start a search depends on the type of case. It is necessary to distinguish between the sort of case that would have been prosecuted by information or indictment (in which case the key document will be the indictments files) and one that would come before the court by means of a prerogative writ (in which the key document will be in the recorda files).
Note that writs of certiorari could be filed either in the indictments files or in the recorda files, depending on their purpose. Certioraris removing indictments, convictions or special verdicts from lower courts were filed with indictments; certioraris removing orders were filed in the recorda files.
3. Searching for named defendants in criminal cases
Many cases failed before an information was exhibited. Such cases may nevertheless have generated considerable documentation and may also have been through a preliminary hearing. They may have established important points of case law and be reported in the contemporary press or law reports. Tracing these cases involves speculative searches through the rule books (KB 21), the draft rule books (KB 36) or the depositions (KB 1), for which an approximate date is needed.
If you are looking for a named defendant and are sure that he or she was the subject of a successful indictment or information, first check to see if an index to defendants survives for the right period. In using these indexes bear in mind that spot checks suggest that there are occasional omissions, especially in the London and Middlesex volumes.
There are indexes to London and Middlesex defendants for the period from 1673 to 1843 in IND 1/6669-6677.
Provincial defendants for 1638-1704 and from 1765-1843 are indexed in IND 1/6680-6684.
Two further volumes index London and Middlesex defendants and some defendants in northern counties for the period from 1682 to 1699. They are in IND 1/6678-6679.
These indexes are arranged alphabetically by the first letter of the surname, and then chronologically by term. The number to the left of the surname is the number of the indictment or information on the relevant indictments file: London and Middlesex indictments files from 1675 to 1844 are in KB 10; provincial files for the same period are in KB 11.
For the period 1844 to 1859 only, the crown rolls (KB 28) can be searched from Discovery, our catalogue by names of prosecutors, defendants, places and subject. The crown roll records the formal outcome of cases in which judgement was entered: it does not record the many cases that either failed or were withdrawn before judgement. The entry on the plea roll recites each stage of process in full, thus making it unnecessary to track the case across all the classes of records that are described below. Nevertheless further information is likely to be found by using the rule books (KB 21) for details of the sentence and the depositions (KB 1) for illuminative detail.
If you think that a named defendant has been omitted from the indexes, or if there is no index for the period in question, then it is necessary either to search all the relevant indictments files OR search the first section of the relevant term entries on the controlment rolls (KB 29). Searching the controlment rolls is probably the easier option. They list all the prosecutions begun in each term and give, in the left hand margin, a direct numerical reference to the indictment or information in KB 10 (London and Middlesex until 1844), KB 11 (provincial or 'out counties' until 1844), or KB 12 (all counties after 1845).
The indictment or information gives the substance of the allegation against the defendant, expressed in standard legal terminology. The exact charge is sometimes obscure, but there is often an annotation at the bottom left hand corner which summarizes it (e.g. riot, assault, nuisance).
In order to trace the outcome of the case, go to the second section of the term's entries on the controlment rolls (KB 29). It may be necessary to check several successive terms. The entries on this section (the 'roll of entries') note, for cases that proceeded beyond the initial summons, all the proceedings, from appearance to final judgement. For London and Middlesex cases for the period from 1737 to 1820, you may prefer to use the process books in KB 15/22-29. They similarly record the proceedings in each case. They are easier to use than the controlment rolls, but are more likely to omit occasional cases.
It is important to note that, as with other legal records of the period, the notes of process are placed above rather than below the relevant entries.
Using the annotations to items in the roll of entries in KB 29 or the process books in KB 15, you can identify the terms for which it is worth searching the depositions (KB 1 and KB 2), the rule books (KB 21) and the draft rule books (KB 36). Until the nineteenth century, very few cases reached trial, so it will rarely be necessary to trace a case into the crown rolls (KB 28) or posteas (KB 20), which record the formal judgements. Both the crown roll and the postea recite all the process in each case; if you have traced the case across the records in the manner suggested above, such entries will rarely add to your knowledge of the case. The entry will normally be found in the term in which judgement was given.
If the case is concerned with sedition or treason, it may be worthwhile check the class list for the Baga de Secretis (KB 8). This contains information relating to the prosecution case in trials that were of particular concern to the state.
4. Searching for named subjects of non-criminal actions (prerogative writs)
If the person you are looking for was the subject of some form of custody dispute (eg runaway wife, child, slave, apprentice or alleged lunatic), you are probably looking for the issue of a writ of habeas corpus.
If the person was involved in a dispute about appointments to local government office or other temporal or spiritual office, or about local taxes, you may be looking either for an information in the nature of a quo warranto, which can be traced in the same way as an ordinary criminal case (see above), or for a writ of mandamus.
If the case involves the review of an administrative order (especially one concerned with the removal of a pauper under the settlement laws), you are probably looking for a writ of certiorari. (Reviews of summary convictions should be traced in the same way as an ordinary criminal case, see above).
Writs of mandamus can be traced using the third or special writ section of the term's entries on the controlment rolls (KB 29). They are entered there in full, together with the return (if any). Original returned writs are in the recorda files (see below); it is not clear whether all writs of mandamus were entered on the controlment rolls, and the safest course of action may be to follow the procedures outlined below for tracing writs of habeas corpus and certiorari on orders.
Writs of habeas corpus and certiorari on orders must be traced using the annual recorda files (KB 145 until 1690 and KB 16 thereafter), together with the rule books (KB 21) and depositions (KB 1). There are no indexes. As the jurisdiction of the writs covered the whole realm, it is not possible to search by locality.
The rule books contain orders relating to writs issued or returned during the term time. The recorda files contain returned writs. It is not unusual to discover that writs were not returned and that rules and depositions exist in the absence of an item on the recorda files. It is not safe therefore to rely on the recorda files alone.
No depositions exist in the case of writs issued by, or returned to, a judge in chambers during vacation.
5. Indictments files
1. Informations ex officio (those exhibited by the crown in the name of the attorney general or, when that office was vacant, by the solicitor general). Procedurally, informations ex officio were quite distinct from informations exhibited by the master of the crown office (see below), in that it was not necessary for the attorney general to establish any kind of prima facie case against the accused.
2. Ordinary criminal informations were exhibited by the king's coroner and attorney (usually known as the master of the crown office) on the complaint of a private individual. After 1692, as a result of the Malicious Information in the Court of King's Bench Act (4 Will & Mary c18), the court came to require complainants to establish a prima facie case against the defendant. The defendant was given an opportunity to rebut the accusations. This was increasingly done by means of written affidavits (now in KB 1). Ordinary criminal informations came to be overwhelmingly concerned with cases of criminal libel, but they were also used to prosecute forgery, perjury and riot. The evidence copy of an alleged criminal libel may also be found in KB 1.
3. Informations quo warranto, properly so called, were exhibited by the attorney general. They are extremely rare after 1688, having in effect been superseded by informations in the nature of a quo warranto. These were brought under the Municipal Offices Act (9 Anne c25) and tested whether an office (mayor, bailiff, portreeve, burgess, freeman, etc) was legitimately held by a particular individual. The preliminary procedure mimicked that of an ordinary criminal information in that it required the leave of the court. Applications therefore generated affidavits from both the prosecution and the defence setting out the material circumstances of the case, even if no information were granted. These affidavits are now in KB 1.
4. Informations qui tam were prosecutions initiated by an informer for specific offences created by statute. A variety of offences were punishable by information qui tam, but its use was most often associated with offences against the game laws. The proceedings required an initial affidavit of the facts but they were filed separately from the main class of depositions and do not survive, having been destroyed by the Public Record Office under a schedule of 1907.
5. Indictments removed by certiorari. An indictment, at this time, was an accusation or bill of complaint drawn up in form of law and submitted to a grand jury. If the grand jury found the accusation to be true the complaint was endorsed 'a true bill' and forwarded for trial by a petty (trial) jury. Until almost the mid nineteenth century indictments removed by certiorari were mainly for relatively trivial offences. Depositions made in support of a term-time application for certiorari on indictment are in KB 1; those made for applications in vacation do not survive.
6. Summary convictions removed by certiorari. In order to remove a summary conviction, it was necessary to serve notice both on the convicting magistrate and on the informer. The writ was a discretionary one if the applicant was the party convicted, and by the early nineteenth century an affidavit of the facts stating the objections to the conviction(s) was also required. Such affidavits and notices, if made in term time, are in KB 1.
7. Special verdicts. These were also removed by certiorari. Special verdicts were returned in cases in which neither judge nor jury knew how to apply the law in particularly difficult cases, and they consist of a resume of the facts as found by the jury. For special verdicts after 1848, see below (Court for the Consideration of Crown Cases Reserved).
8. Indictments of the first instance. These arise from the local jurisdiction of the King's Bench in Middlesex, and are thus only to be found in the London and Middlesex indictments files (KB 10 until 1844 and KB 12 thereafter).
For fuller details of the distinguishing formulae and purpose of informations see the series description to the lists of KB 10, KB 11 and KB 12. For fuller details of indictments see the series description to ASSI 5.
The indexes to indictments are described in the section on starting a search, above.
6. Recorda or writ files
These are in KB 145 (until 1690) and KB 16 (thereafter). Copies of writs of mandamus, together with any return, are often entered on the special writ section of the controlment rolls (KB 29). The recorda files contain returned writs, including:
1. Habeas corpus. This was used to test whether a named person was or was not legally detained. It was rarely used in connection with persons imprisoned for alleged crimes, except (for technical reasons) in Middlesex before 1785. It was more commonly used to test the legality of a detention by some private person or persons, such as a press gang, spouse, parent or keeper of a lunatic asylum. Applications were often supported, or contested, by means of depositions (KB 1), which are usually full and informative.
No depositions survive in the case of writs of habeas corpus issued by, or returned to, a judge in chambers during vacation.
2. Mandamus. This was used to compel the admission or restoration of persons to office (whether spiritual or temporal), to university degrees, meeting houses, etc. It could also be used to order the production, inspection or delivery of books and papers (including rate books), and to compel the holding of inferior courts.
3. Orders of lower courts were removed by certiorari (usually by the consent of both parties) in order to obtain the opinion of the court on a difficult point of law. They relate mainly to orders removing paupers under the settlement laws and a high proportion appear in the printed law reports.
7. The controlment rolls
As indicated above, in order to trace the progress and outcome of a case it is necessary to follow it through several series of records. The most useful of these is the one used by contemporary clerks, the controlment rolls in KB 29. They are arranged chronologically by term and consist of three sections.
The first section (the bag roll) simply lists each prosecution begun in that term, with (in the left hand margin) direct numerical references to the indictment or information in KB 10, KB 11 and KB 12. The left margin also includes the geographical jurisdiction of the prosecution, so that it is easy to pick out indictments relevant to a particular city or county.
The second section (the roll of entries) notes all the proceedings, from appearance to final judgement, in each case that proceeded further than the initial summons. As with other legal records of this period, the notes of process are placed above rather than below the relevant entries.
The third section (the special writ roll) contains copies of special writs that had been issued that term, together with any return. Such writs, if returned, are also enrolled on the crown roll (KB 28). Original returned writs are in the recorda files (KB 145 or KB 16).
Perhaps the most rewarding source for the searcher will be the depositions and related documents in KB 1. The affidavits are usually very informative both about the subject matter of the case and about pre-existing disputes between the parties. They also include a mass of incidental detail, which is often extremely valuable in itself. Detailed accounts of costs sometimes also survive, particularly during the later eighteenth century.
A contemporary index to the depositions in KB 1 is in KB 39. Its usefulness is somewhat limited. The earliest volume begins in 1738 and appears to be a fee book, listing depositions copied rather than those actually filed in court. The early volumes give only a rough indication of the term bundle in KB 1 in which the item is to be found. They probably do not include affidavits filed in failed attempts to exhibit informations. They do not index the many other documents found with the depositions such as general releases (the formal document recording the settlement of a case before trial).
The volumes after 1768 become more satisfactory as indexes. Even so, they do not normally list affidavits individually but by case, for example '6 affidavits to show cause against X'.
A separate series of affidavits concerning offences against customs and excise, 1727-1829, is in KB 32/1-4.
9. Rule books
Rule books record orders of court. The entries, which are chronological, relate mainly to rules granted in order to enable a case to proceed to the next stage. There are two series of rule books. The ones in KB 21 are the fair copies; those in KB 36 are the drafts. The draft rule books sometimes contain material that was omitted from the fair copy.
There are no indexes to the rule books.
10. Supplementary finding aids
The great docket books record, in chronological order, steps in process, such as entries of pleas, writs, etc. It is difficult to find all the entries relating to a single case, but the entries, once found, often give direct references to the controlment rolls and indictment files.
The modern pye books cover the period from 1844 to 1898 and are the successors to the indexes to indictments described above in the section on starting a search. They are of limited use in that they are not arranged alphabetically but chronologically. They give names of defendants, attorneys, the county of jurisdiction and a summary of the proceedings.
11. Court for the consideration of Crown cases reserved
The procedure in respect to special verdicts changed in 1848 with the creation of the Court for the Consideration of Crown Cases Reserved, under the Administration of Criminal Law (Amendment) Act (10 & 11 Vict c78). Order books (which contain material similar to that previously contained in special verdicts) and pleadings for that court are in KB 30 and KB 31 respectively.
12. Articles of the peace
These could be exhibited in the King's Bench by persons in fear of attack. The court did not question the allegations, it considered only whether the threats were sufficient to justify intervention. The defendant was not permitted to dispute the articles except by means of an indictment or information for perjury.
Original articles of the peace do not, in general, survive, although there are some examples in KB 32 and KB 33. They can now be traced only through the rule books (KB 21), draft rule books (KB 36) or, occasionally, by means of notices or affidavits relating to bail amongst the depositions (KB 1). No details of these cases can be reconstructed from these sources, unless there is a related indictment for assault.
13. Coroners' inquisitions
Until at least the early eighteenth century, coroners were expected to hand in all their inquests to the twice yearly assizes. Those which resulted in verdicts of murder or manslaughter (including many that would now be regarded as misadventure) are normally found in the indictments or depositions files of the relevant circuit. The remainder were forwarded to the King's Bench.
As London and Middlesex were anomalous jurisdictions without assize courts, their inquisitions were not treated in the same way. Coroners' inquisitions therefore survive only for the out-counties and they are filed with the out-county indictments in KB 11.
Coroners' inquisitions are also in KB 13 and KB 140. These classes include a significant number of items from the mid to late eighteenth century, although the practice of forwarding all inquisitions to the King's Bench appears to have fallen into disuse in the early eighteenth century. Inquisitions on prisoners who died in the King's Bench prison are in KB 14.