The city of Durham
Jurisdictions

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Victoria County History

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William Page (editor)

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1928

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53-62

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'The city of Durham: Jurisdictions', A History of the County of Durham: Volume 3 (1928), pp. 53-62. URL: http://www.british-history.ac.uk/report.aspx?compid=42605 Date accessed: 21 October 2014.


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JURISDICTIONS

Under the Municipal Corporations Act 1835 Durham was made up of a series of jurisdictions built round the central castle area over which the constable held sway. To the north of the castle lay the Bishop's borough, with its suburb of Framwellgate across the Wear. East of the Bishop's borough lay the borough of Gilesgate—formerly subject to Kepier Hospital—whilst within that borough lay St. Mary Magdalen, a separate jurisdiction subject to the convent. Elvet (both borough and barony) and the old borough of Crossgate on the other side of the Wear, which were subject to the convent, complete the jurisdictions.

Taking first the CASTLE AREA, it may be remarked that the term 'the castle' is now restricted to the buildings at the northern end of the cathedral plateau occupied by University College, but in the Middle Ages the whole of this plateau was called 'the castle.' Though the North and South Baileys might be included as part of 'the city' they stoutly resisted any attempt to treat them as part of the borough. There is no trace of any such attempt before the Dissolution, but when, in the 17th century, the mayor and corporation of the borough were gradually extending their influence through the medium of the gilds, the bishop found it necessary to make an order restraining the mayor from coming with his halberts above the Gaol Gates, otherwise called the North Gate of the castle. Above these gates he asserted they had no 'magisterial' or other jurisdiction and the inhabitants of this privileged area were subject to the constable of the castle and to his court. (fn. 1)

The North and South Baileys form a street with houses on the western side abutting on the road on the one side and on the castle wall on the other. Originally these houses were part of the estate of the bishop's principal military tenants—the barons of the bishopric—who were responsible for the defence of the castle. It was, however, the estates outside the city of Durham which carried the burden of castleward, not the houses in the Bailey. Thus, when, in the 13th and 14th centuries, these houses were sold, the vendors reserved accommodation for themselves and their horses when they had to do their turn of duty in the castle.

In an inquisition on the death of Jordan de Dalden in 1348 it is stated that his houses in the Bailey were held of the bishop by barony like the other houses in the Bailey. (fn. 2) A typical reservation of accommodation—a chamber and stabling for four horses—will be found in Reginald Bassett's conveyance of his house in the Bailey to the convent at the beginning of the 13th century. (fn. 3) Many of the families mentioned in the 1166 return of knights' fees can be traced as owners of houses in the Bailey, namely, Dalden, (fn. 4) Fishburn, (fn. 5) Fitz Meldred, (fn. 6) Amundeville, (fn. 7) Hilton, (fn. 8) Foletebe, (fn. 9) Escolland, (fn. 10) Basset, (fn. 11) Lumley, (fn. 12) Eppleden, (fn. 13) Brumtoft, (fn. 14) Monboucher, (fn. 15) Dragon, (fn. 16) Ralph Fitz Roger, (fn. 17) Kellawe, (fn. 18) Bruninghill (fn. 19) and Conyers. (fn. 20)

The Palace Green between the castle and the cathedral was the centre of the Palatinate administration. As we have already seen, (fn. 21) the courts, (fn. 22) the Exchequer, the Gaol and the Mint were all situated there, and later, in the 17th century, when the county began to return members to Parliament, the elections took place on the Palace Green. (fn. 23)

The government of this area appears to have been vested in the constable of the castle. In an order of 5 September 1674 it is stated that 'the North and South Baileys are within the Guard and Precinct of the castle of Durham and the inhabitants thereof have done suit at the court held within the said castle by castleguard tenure and never appeared at the city courts or did any service there.' (fn. 24)

At the beginning of the 19th century the first great change was made when the courts and the gaol were transferred to Elvet, whither the whole of the county administration offices have gradually been transferred. The Palace Green is now the centre of activity of the Durham section of the University of Durham.

The BOROUGH OF DURHAM, (fn. 25) before the Municipal Corporations Act 1835, included the parish of St. Nicholas and part of Framwellgate, viz., 'both sides of the street from the Clock Mill at the foot of Crossgate to the cross at the head of that street (Framwellgate) leading to Newcastle by the bounder of the burgages and garths thereunto adjoining,' (fn. 26) i.e., Framwellgate from its junction with Milburngate to the cross which formerly stood at the point where Sidegate diverges from the old road to Newcastle. On the right bank of the river the boundaries are clear, namely, the castle on the south, Gilesgate on the east and the river on the other sides.

In the case of Framwellgate the exact area within the jurisdiction is uncertain. It would appear that Sidegate was without the borough, but whether Castle Chare, formerly an important exit from the town to Witton Gilbert and Lanchester, was within or without the borough seems doubtful. Generally speaking, the borough may be described as the Market Place (fn. 27) and the streets leading out of it.

It is not known when the borough came into existence, but as early as 1130 it was sufficiently wealthy to pay a fine of 100s. (fn. 28) The fact that the pasture area for the borough burgages lay across the river at Framwellgate seems to indicate that it was established subsequent to 1112 when Bishop Flambard founded Kepier Hospital, and endowed it with Gilesgate Moor, which otherwise would have been the natural position for the borough pastures. (fn. 29)

The conjecture that the borough was founded by Bishop Flambard is strengthened by the facts that he cleared the population from Palace Green, and had to find accommodation for it elsewhere, and he built Framwellgate Bridge, which gives ready access to the borough pastures.

The first charter to the burgesses of Durham was that granted by Bishop Pudsey in or before the year 1179. The text is as follows (fn. 30) :—

Hugo dei gratia Dunelm' Episcopus Omnibus hominibus totius episcopatus sui clericis et laicis Francis et Anglis Salutem, Sciatis nos concessisse et presenti carta confirmasse Burgensibus nostris de Dunelmo quod sint liberi et quieti a consuetudine quae dicitur intol et uttol et de merchetis et herietis et ut habeant omnes liberas consuetudines sicut burgenses de Novo Castello melius et honorabilius habent. Testibus, Radulpho Haget viecomite, Gilleberto Hansard, Henrico de Puteaco, Johanne de Amundeville, Rogero de Coisneres, Jordano Escollant, Thoma filio Willelmi, Gaufrido filio Ricardi, Alexandro de Helton, Willelmo de Laton, Osberto de Hetton, Gaufrido de Torp, Ranulpho de Fisseburn, Ricardo de Parco, Michaeli filio Briennii, Ricardo de Puntcardum, Radulpho Bassett, Rogero, Philippo filio Hamonis, Rogero de Epplindina, Patrico de Ufferton et multis aliis.

It will be noticed that the deed does not create the borough but merely grants certain mercantile and other pecuniary privileges and contains no reference to any right of self-government. It might be thought that the grantees were the members of a gild merchant, but of the existence of such a body there is no evidence. (fn. 31) Of the privileges granted, the freedom from toll was probably the most important. According to a note of somewhat later date the tolls exacted in the palatinate were—'at Chesterle-Street from those coming from the south and at Sunderland from the north; at Wolsingham, Rainton, Houghton and Sedgefield from those travelling north and at Norton from those travelling south, and at Grindon Moor from all directions.' The note finishes 'apud Dunelm veniunt quieti et ibi dabunt tolnetum et capient signa.' (fn. 32)

Unlike the charter to Wearmouth, also granted by Pudsey, the customs of Newcastle are not set out. (fn. 33) The adaptation of the Newcastle clauses in the Wearmouth charter to meet the conditions of the Palatinate should be noted as likely to apply also to Durham—especially the 'appeal' clause which permits the burgess to defend himself 'per legem civilem, scilicet, per xxxvi homines.' (fn. 34) The Wearmouth charter is also of interest as indicating the rights of the burgesses of Durham to take both timber and firewood under conditions not specified in that charter. The Gateshead charter, also granted by Pudsey, (fn. 35) contains elaborate provisions limiting the right to wood required for use and not for sale.

In an eyre held at Durham in 1242 the burgesses claimed the exclusive right of buying and selling between the Rivers Tyne and Tees, though they admit a doubt as to Sadberge, then but recently added to the Palatinate. That they were confident in their claim is shown by their seizing the sheep of one of Robert Fitz Meldred's men, which had been sold outside the liberties of the borough without the licence of the burgesses. As at this period Robert Fitz Meldred was one of the most powerful men in the Palatinate, the burgesses must have been either very sure of their ground, or have acted with a singular lack of discretion. The roll also records the claim of the burgesses to seize by way of distress the horses of the squires of knights, and complaints appear of the action of the burgesses in searching for dyed wool in the country districts. (fn. 36)

It is somewhat difficult to find any passage in the Newcastle customs sufficiently wide to cover the Durham claim to a monopoly of trading. (fn. 37) Such a right was generally of preConquest origin, (fn. 38) and it is of interest to note that the monopoly clause was omitted from the Wearmouth charter. The power of distress seems to be within the scope of the Newcastle clause, (fn. 39) and the search for dyed wool indicates that the burgesses of Durham claimed a monopoly of the wool trade. (fn. 40)

The first reference to a lease of the borough appears in Boldon Book, (fn. 41) but, beyond the somewhat heavy rent of 60 marks, no other information is given, except that the mill was not included in the lease. From 1183 to Bek's roll in 1308–9 no information has survived, but in the latter year James the apothecary or the spicer is stated to be the lessor of the borough and the mill. (fn. 42) The rent was £66 13s. 4d., which did not include the furnaces. Unfortunately the names of the bailiffs for the year in question have not survived, but Spicer was bailiff in 1304 and 1306. (fn. 43)

There is in 1352–3 a reference to a lease for three years of the borough to Sir Thomas Gray, the bishop's steward, and John of Alverton, but it was not until 1387 that we obtain definite information as to the terms of the lease. (fn. 44) In 1387 the bishop (Fordham) leased to John Lewyn, Walter Coken, Roger Aspour and Henry Shirburn the borough of Durham with all manner of rents and services, courts and customs belonging to the borough together with the common furnace and the mill, and all profits from the markets, 'skamelynghires' and tolls as well from residents as from strangers. The lease also included the right of licensing innkeepers, a toll of 7d. from each tenant of the Prior of Durham who sold goods in the great fair of St. Cuthbert in September, and all fines for breaches of the peace within the borough. The bishop reserved to himself all escheats and forfeitures, and also the right to have his corn ground on certain terms. The lease was for six years and the annual rent was £83 13s. 4d. with a provision for allowance in case of the breakdown of the mill or common furnace, and for reduction in case of war or pestilence. This appears to have been the form of lease which was from time to time renewed to a group of prominent burgesses who doubtless acted for the general body of their brethren, though of this there is no proof. (fn. 45) In 1435 there was a lease to Hugh Boner, Robert Werdale, William Conyers and William Smith for six years, the rent being 84 marks. (fn. 46) Boner, it will be noticed, was one of the bailiffs in 1421. (fn. 47)

Bishop Pilkington's charter (fn. 48) granted, on 30 January 1565, that all the inhabitants in Durham and Framwellgate 'sint et erunt re, facto et nomine una societas et unum corpus de se imperpetuum et habeant successionem perpetuam.' The governing body consisted of an alderman, twelve assistants and twelve inhabitants—the first alderman and assistants being appointed by the bishop, the former for his year of office, the latter for life if the bishop pleased. Yearly on 3 October the twelve assistants were to elect twelve inhabitants, and on the following day the joint body of twenty-four were to elect an alderman for the ensuing year. In case of failure to elect, the bishop was to appoint. The corporation had power to plead as the alderman and burgesses, to hold property up to 100 marks in value and to have a common seal, to make bye-laws and to receive the fines for their infringement. The weekly markets and the three fairs with the profits incidental to them and to the piepowder court were granted to the alderman and burgesses and their successors. The city constables were directed to obey the lawful orders of the alderman for the time being, and the charter ends with a command that neither the alderman nor the twelve assistants (the twelve inhabitants are not mentioned) were to wear the livery of any nobleman. It will be noticed that no mention is made of the power to hold courts (other than the piepowder court incidental to the fairs).

Bishop Matthew was the next to grant a charter. In 1602 he incorporated the burgesses, men and inhabitants—'sint et erunt unum corpus politicum et incorporatum in re facto et nomine per nomen majoris aldermanorum et communitatis'—with power to plead, hold property up to 100 marks and have a common seal. The aldermen, twelve in number, had to be both burgesses and inhabitants; they were to hold office for life. On 3 October in every year they and the mayor were to elect the twenty-four—two from each of the twelve gilds mentioned in the charter. The members of the twenty-four had to be inhabitants, but no burgess qualification is mentioned as in the case of aldermen. The twenty-four, with the mayor and the aldermen, were to form the common council of the city, and on 4 October of every year they were to elect one of the aldermen as mayor for the ensuing year. In like manner they had power to fill vacancies in the bench of aldermen and in the number of the twenty-four. They had power also to appoint the city serjeants and other corporation officers. In the case of elections of mayors and aldermen the quorum must include seven aldermen in the former case and the mayor and six aldermen in the latter. Similar provisions to those in Pilkington's charter, but in a somewhat fuller form, are contained as to bye-laws, markets and fairs, with the addition that the mayor is to act as clerk of the market. The charter then proceeds to grant to the mayor, aldermen and community a court to be held fortnightly on Tuesday before a steward to be by them appointed. This court had power to deal with both real and personal actions without limit as to amount, provided they arose within the city limits. To enable this jurisdiction to be exercised effectively, an extensive power of attachment was given. The profits of this court were to belong to the corporation, whose jurisdictional powers were further increased by a grant of the view of frankpledge and the assizes of bread and ale. (fn. 49)

No 16th-century lease of the borough has survived, but on 13 October 1627 the bishop leased it to Thomas Man, Thomas Cook, Thomas Tunstall and William Wallton, of whom both Cook and Man figure in the list of mayors. The lease includes the Tolbooth with all shops, houses and buildings under the same, borough rents, landmales, rents, free rents, duties, customs and services of the burgesses, freeholders and inhabitants, benefit of admitting freemen, markets kept weekly on Saturday, fairs kept yearly from time to time, the profits, commodities, perquisites, pickages, stallages, scavilhires, scavilcorn or scavage corn, tolls, customs, duties and usages of the said markets and fairs, borough court, court leet, court baron held before the steward of the borough together with suit and service of burgesses, freeholders and inhabitants at the said head and other courts and all profits of court. The term of the lease was 20 years and the rent £20: in addition the lessees were responsible for the repair of the Tolbooth. (fn. 50)

During the Commonwealth the borough, as part of the bishop's possessions, was sold on 18 April 1651 for £200 to the mayor, aldermen and commonalty of the city of Durham. The parcels include all the property, rights and privileges set out in the 1627 lease together with the house or building called the Tolbooth, the office of Bailiwick, the court of piepowder, passages, pontage, and the office of clerk of the market. As the clauses relating to the borough court are the only accurate source of information on the subject, they are set out in full. They are as follows:—'the courts usually held within city as well as courts leet, view of frankpledge, courts baron and borough courts, with their and every of their appurtenances, also the charter court and court of pleas heretofore usually holden or to be holden within the said city or borough every Tuesday from fifteen days to fifteen days before the steward there. Together with suit and services from time to time of all and every the burgesses, freeholders, freemen and inhabitants of the said city of Durham and of the borough of Durham and Framwellgate aforesaid to the said courts respectively belonging, with full power and authority to nominate and appoint all officers and ministers incident and belonging to the charter court, for executing the precepts of the said court, and for the hearing and determining of all and all manner of actions, suits, plaints and demands, real and personal, as well as of debts amounting to any sum or sums of money, as of accounts, trespasses, detentions, deceipts, actions upon the case, matters and contracts, whatsoever and all other causes and pleas, personal, real, and mixed happening or arising within the said city or borough of Durham and Framwellgate, or within the limits, bounds and precincts, to be levied and offered in the said charter court, and the parties, defendants in the said suits, actions, plaints, and demands, to bring into the said court by summons, attachment or distress, if they be sufficient, and if they be found not sufficient, that then by the attachment of the bodies of such parties.'

With the Restoration the old state of affairs was restored and the leases of the profits of the borough continued to be granted. (fn. 51) In 1835 the Municipal Corporations Commissioners reported that the tolls were leased to trustees in trust for the mayor and his successors. The rent was £20 and the lease was renewed without fine although the corporation then let the tolls for £213. (fn. 52)

Bishop Crewe's charter granted in 1685 is, as we have seen, almost exactly similar in terms to Bishop Matthew's, and, as already stated, the charter soon ceased to be operative. (fn. 53)

The circumstances in which the grant of a new charter by Bishop Egerton in 1780 was rendered necessary have already been stated. (fn. 54) In general terms the charter confirms the rights given by Bishop Matthew's charter; the points in which it differs from the latter charter are that the mayor is to hold office until his successor is appointed, that no quorum of aldermen is necessary at an election, and that mayor, aldermen and common councillors need no longer be resident within the somewhat narrow borough limits, but may be drawn from an area which corresponds with that of the present city. The power to appoint a recorder and town clerk is also given. (fn. 55) This charter remained in force until the Municipal Corporations Act.

We know little of the early government of the borough. It had its court held at the Tolbooth in the Market Place, and the burgesses were apparently the burgage holders within the borough. William Folker, in the middle of the 14th century, held five burgages in Durham, of which four were held of the bishop by fealty and three suits a year at the bishop's court at the Tolbooth, and doing all other services as other burgesses. The other burgage was held of the Prior of Durham by fealty and the payment of half a pound of pepper yearly. There was usually also a small sum payable to the bishop at the Tolbooth for landmale. (fn. 56) In the earlier deeds there is a distinction between an ordinary tenement and a burgage, but this distinction later becomes lost. (fn. 57)

From the series of deeds in the Treasury at Durham which are dated 'in curia burgi' or 'in plena curia burgi,' the first witnesses are usually the bailiffs of the borough whose names are followed by those of about half a dozen other persons who, we may imagine, were burgesses attending the court. These other persons in turn appear later as bailiffs and the former bailiffs fall into the position of ordinary witnesses. There appear to have been three bailiffs, and it is tempting to think that a new bailiff was appointed each year to serve a term of three years, but the evidence is too fragmentary to confirm this view. Whether the bailiffs were elected by the burgesses or appointed by the bishop is not known. In 1516–17 John Gower was appointed by the bishop as the sole bailiff, and after this date there was only one bailiff, a salaried officer of the bishop holding office for a considerable period. The bishop continued to appoint the bailiffs after the charters of 1565 and 1602, as a result of which the scene in the Tolbooth of 1609, already referred to, occurred. (fn. 58)

In 1617 John Richardson, steward of the borough court, drew up an important though strongly biassed statement as to the government of the borough. (fn. 59) He said that the city by prescription and for three hundred years had been governed by a bailiff appointed by letters patent from the bishops at a yearly fee, who had rendered his accounts yearly at the Exchequer of Durham. This statement, however, cannot be substantiated by documentary evidence, for no patent appointing a bailiff can be traced earlier than that granted to John Gower in 1516–17. (fn. 60) That the bailiff, he goes on to say, had for a like time a steward who kept the courts for the city and borough, received the profits and accounted for them.

It would appear that the earliest reference to a steward of the borough court is to William Fynimer appointed in 1447. (fn. 61) Thomas Roos was appointed in 1457 with a fee of 26s. 8d. payable by the bailiffs or farmers of the borough out of the profits of the mill. (fn. 62) In 1559 John Taylfar had a grant of the reversion of the office of steward or clerk of the courts of the boroughs of Durham, Gateshead, Bishop Auckland and Darlington on the death of Christopher Brown. (fn. 63) On the strength of Bishop Matthew's charter, the mayor, aldermen and commonalty appointed William Smyth of Gray's Inn, their steward to hold the borough courts. (fn. 64)

The bishops, Richardson continues, for a like time had ordained 'Corporations and Societies of Arts and Mysteries,' and made certain constitutions as to freedoms and fellowships by fines, compositions and penalties which the bailiff by his serjeants and officers and by the wardens and governors of the several trades had received for the use of the bishops. The government by a bailiff so continued, according to Richardson, until 8 Elizabeth (1565), when Laurence Haley, then bailiff and servant to Bishop Pilkington, by agreement between him and some of the citizens, petitioned the bishop to have an alderman ordained for the government of the city. The bailiff at the same time assigned his grant of the bailiwick to these citizens, and the bishop made them a grant of an alderman and assistants. The alderman, who retained also the office of bailiwick, held the borough court before the bishop's steward and took all profits of courts, landmales, rents, fines of tradesmen, free tolls of fairs and markets in the bishop's name, and accounted for them to the bishop, paying the steward's fee and taking the yearly allowance to the bailiff. This form of government continued until about 42 Elizabeth (1600), when a certain 'religious gentleman possessed of great personal estate,' who can be identified with Henry Smith, the founder of Smith's Charity, (fn. 65) conveyed his property 'to good uses to the City of Durham.' The then alderman and 'others of that Society,' being his executors, misemployed the estate and compounded with the then bishop for a grant of a mayoralty. The bishop incorporated them by the name of a mayor and alderman. Their charter was confirmed by an inspeximus of the King which they 'ignorantly conceive' to be an immediate grant from the Crown. Eventually the bishop's successor made an inquiry as to the misemployment of the funds and procured a commission under the Statute of Charitable Uses. It was found by the commission that only £9 remained out of £900, of which sum the mayor and aldermen were required to account for £400. The bishop was further offended 'with that crying sin of robbing the poor, and perceiving their pride in government to be intollerable,' and being also informed that the grant of the mayoralty contained many things prejudicial to the jurisdiction of the courts incident to the county Palatine, desired a conference with the corporation. This they refused, and a suit in the Court of Exchequer ensued, which resulted in a decree in favour of the bishop. Since that decree (1611) the bishop had by his bailiff governed the city and retained possession of all the revenues and rights. Although frequently petitioned, the bishop had refused to renew the grant of the mayoralty.

With regard to the early courts of the borough, we learn from the dispute of 1609 that the ordinary borough courts were held at the Tolbooth once a fortnight on Tuesday, and that the head borough court, the 'plena curia burgi' of the 14th-century deeds, was held twice yearly at Easter and Michaelmas. At the latter court, which corresponded to the 'curia capitalis' of the convent boroughs held three times a year, the grassmen and trade searchers were sworn, the bishop's burgesses did suit, and the titles of heirs and purchasers of burgages were presented and recorded, before such heirs and purchasers were admitted as burgesses. There seems to have been conflicting evidence as to whether the burgesses owed suit at the sheriff's tourn held twice yearly at the Moothall on Palace Green, the explanation apparently being that the suit claimed to be due was for the rights of common on Framwellgate Moor, which was parcel of the various burgages and not in respect of holdings in the borough.

With the increasing control over the borough by the gilds the time of the court was largely taken up with their affairs and the enforcement of their regulations. The Tolbooth had now become the Guildhall, (fn. 66) although there is evidence that as early as 1434 it bore that name. (fn. 67) To enforce the orders of the court there were stocks, a pillory and a 'duck pool.'

Owing to the disappearance of the borough records it is difficult to trace the subsequent history of the courts. Some of their local government duties were transferred to the vestry, (fn. 68) until the passing of the Paving Acts brought the special Commissioners into existence. In 1835 the Municipal Corporation Commissioners reported that the Durham Corporation exercised no jurisdiction either criminal or civil, but that a manor court of very limited jurisdiction was held within the city. (fn. 69)

The OLD BOROUGH or CROSSGATE included that part of Durham lying on the north or left bank of the Wear south of Framwellgate. It was divided from the latter district by the Milburn, a small stream rising in Flass Bog and now covered over most of its length by the modern North Road. From Elvet Barony it was divided by the small stream running parallel to Potters Bank.

The Old Borough comprised South Street, Crossgate and Allergate (formerly Alvertongate), a considerable area of arable ground known as Bellasys, (fn. 70) whilst the pasture area extended over Crossgate Moor and over the adjoining Elvet Moor, until the latter moor was divided off from the former.

The evidence for a settlement in Elvet before 995 has been mentioned already; the origin (fn. 71) of the Crossgate settlement may be found in the junction of the roads from the west and south, which meet where the church of St. Margaret now stands, just above the ford over the Wear, whereby travellers from the west proceeded on their way to Wearmouth and the Raintons. The first reference to the borough here is in 1141, when, during the Cumin incident, it is mentioned as follows: 'partem quoque burgi quae ad monachorum jus pertinebat igni tradiderunt.' (fn. 72) As the borough of Elvet is of later foundation, this must refer to the Old Borough. It is suggested that the Old Borough is the original trading centre at Durham, and that the Bishop's Borough was only founded after the division of the estates between the bishop and the convent; a division which gave the Old Borough to the convent and left the bishop without any area specially appropriated as a trading centre. Whilst the lands were held in common, there would be no necessity for more than one borough, and that borough would appear to have been the Old Borough and not the Bishop's Borough, which, until the Framwellgate Bridge was built, was much more difficult of access from the surrounding country than the Old Borough.

Though the founding of the Bishop's Borough would doubtless draw some trade away, it was the building of Elvet Bridge and the creation of the borough of Elvet by Bishop Pudsey which seriously affected the Old Borough. Until Elvet Bridge was built, all traffic from the south passed through the Old Borough along South Street, but when a readier access to the Bishop's Borough and the Castle was provided through Elvet, the importance of the Old Borough was seriously diminished, as its only thoroughfare became the road leading to the west of the county by Brancepeth and Willington. Of the trade carried on in this borough we know but little. The Marescalcia Roll of the convent for 1392 (fn. 73) mentions a weaver, a tailor, a seller of wool, several shoemakers, bakers and brewers. The fulling mill at the west end of the dam just below the cathedral would help to attract trade, whilst at the Clock Mill (fn. 74) on the Milburn, which formed the northern boundary of the borough, (fn. 75) the local corn would be ground. The quarry at the southern end of South Street (fn. 76) and the convent stew-ponds and orchard (fn. 77) to the west of South Street should also be mentioned. Lastly, Potters Bank recalls an industry long extinct. (fn. 78)

The burgesses of the Old Borough, unlike their brethren of Elvet, do not appear to have obtained any charter from the convent: their rights being based on ancient usage, no such grant was probably necessary. They do not appear to have ever obtained the right to elect their bailiff or to have leased the profits of the borough. As in the case of Elvet, the convent appears to have retained direct control over the borough, to have appointed the bailiffs (fn. 79) and to have received the profits. The centre of jurisdiction was the Tolbooth, situate at the north end of Crossgate, (fn. 80) where the courts were held, and to maintain his jurisdiction the Prior had a prison in South Street. (fn. 81)

The survival of the draft entries for the Crossgate Court Book (fn. 82) at the beginning of the 16th century enables a fuller account of the working of this court to be given than of any of the other borough courts. First it must be noted that Crossgate as well as Elvet was withdrawn from the ordinary manorial jurisdiction of the Prior and convent, whose Halmote Books contain no entries relating to either Crossgate or Elvet. The court sat every week if necessary for the dispatch of business, (fn. 83) and thrice a year—in January, April and October—the 'curia capitalis' was held, at which a jury was sworn to make presentments. In addition to debt collecting, the work of the court was most varied; many are the injunctions against pigs being allowed to run loose in the street; card playing and other illicit games, and drinking after 9 p.m. were forbidden; bad language was discouraged and bad characters required to remove themselves. Ale tasters were appointed and fines inflicted on ale sellers for not calling them in, and bad meat was condemned. Despite much fining, the condition of the streets left much to be desired owing to the presence of refuse and manure. (fn. 84) The use of the borough well in the Banks for washing clothes was forbidden, and the tenants of South Street ordered to repair the vennel leading to it. Tailors not of the Gild were reported as working, whilst a Scot was ordered to remove himself. (fn. 85) The presentation of a criminal at the Sheriff's tourn when the offence was committed within the jurisdiction of the borough court is duly noted. Over two hundred years later, in 1757, (fn. 86) we find the same kind of offences being presented, and the state of the streets, judging from the numerous presentments for manure, had not improved. In 1835 Crossgate became part of the area subject to the corporation.

The BARONY AND BOROUGH OF ELVET is that portion of Durham which lies in the loop of the River Wear south-east of the market place. (fn. 87) It consists of Old and New Elvet and the two continuations of the latter, namely, Church Street, leading to the south road to Darlington, and Hallgarth Street, whereby Yarm and Stockton are reached. (fn. 88) In addition to the urban area, Elvet formerly included a considerable area of arable land and a somewhat small moor, over which latter area the inhabitants had grazing rights. Until the Municipal Corporations Act of 1835, Elvet was divided into the Borough and the Barony. The former comprised the low-lying area north of Raton Row (now Court Lane) and its continuation eastward along the north side of the railway line; (fn. 89) everything south of the Raton Row belonged to the barony.

Though Old Elvet is now a cul-de-sac, in the 15th century it formed one of the main routes south by Shincliffe, and was then known as New Elvet, whilst New Elvet, then known as Old Elvet, (fn. 90) ceased to be the principal route to Shincliffe until the river washed away 'New Way,' where it passed under Maiden Castle Wood. Raton Row was formerly a much more important thoroughfare, as it led to the Scaltok Mills.

Except for references in the forged foundation charters of the convent, (fn. 91) nothing certain is known about Elvet until the grant of the Borough Charter by Prior Bertram (1188–1208). Probably the original settlement would be on the high ground somewhere near the site (fn. 92) of the Manor House, which stood in Hallgarth Street just off the road from Shincliffe Bridge to the Old Borough. When in 995 the Castle plateau was occupied, the Elvet area would develop as the best access from the south to the Castle area. (fn. 93) However this may be, at the end of the 12th century the history of Elvet was marked by two important events, namely, the building of Elvet Bridge by Bishop Pudsey and the foundation of the Borough of Elvet. It is probable that these two events were connected. Why the convent, which already had a borough in Crossgate, should found another in Elvet, is not quite apparent, unless the difficulty of communication between the convent and Crossgate is borne in mind. In addition, the level nature of the Elvet area rendered it more suitable for commercial purposes than Crossgate's uneven surface. That the new borough of Elvet soon became more populous and prosperous than the old borough of Crossgate seems clear. (fn. 94)

Prior Bertram's charter (fn. 95) does not expressly create the borough, but the phrase 'novo burgo nostro' implies that it had been recently created. After defining the area of the borough the charter gave the burgesses exemption from customs, exactions and aids (courts and pleas excepted) and the right of devising their lands. In return a yearly rent of an amount not then fixed was to be paid, and the burgesses were to grind their corn at the convent mill—the multure being fixed at 1/18;th. In addition the burgesses were to have a market and a fair if the bishop granted the necessary licence. At a somewhat later period a further grant (fn. 96) was made, whereby the burgesses had not to plead outside the borough and were to have pasture for their beasts with the men of Elvet (i.e., the barony) outside the enclosed land of the hostellar of the convent.

The qualification of a burgess appears to have been the ownership of a burgage in respect of which a rent called landmale was payable to the hostellar of the convent, (fn. 97) in whom the lordship of both the borough and the barony was vested. In addition the burgesses owed suit to the then principal courts of the borough.

Of the government of the borough of Elvet but little can be said, as none of the court rolls have survived, and from the middle of the 14th century but little distinction seems to have been made between the borough and the barony. Before the year 1315 the profits of the borough were leased, (fn. 98) but after that date the convent did not farm them. Elvet was not, however, treated like the ordinary manors of the convent, which were subject to the jurisdiction of the steward, who visited them three times yearly when the prior's halmote courts were held. (fn. 99) The Elvet tenants never appear to have owed suit to these courts, but to have appeared at a special court held for Elvet. This court was held once a fortnight on Wednesdays at the prior's manor house in Hallgarth Street for the dispatch of ordinary judicial business, but three times a year, namely, at Easter, Michaelmas and Epiphany, a special court (curia capitalis) was held, at which all suitors had to be present. (fn. 100)

Footnotes

1 There are two cases on the subject, one in 1674 (Durh. Reg. Com. P.R.O. bdle. 52, Durh. Reg. Orders, Vol. M (3), f. 289) dealing with the question of suit to the borough mill, and the other about 1699 (Arch. Aeliana, ii, N.S., 208) deals with a question of building by 'foreigners.'
2 Randall MS. i, 45.
3 Feod. Prior. Dunelm. (Surtees Soc.), 196.
4 Randall MS. i, 45.
5 Durh. Treas. Cart. ii, f. 264.
6 Feod. Prior. Dunelm. (Surtees Soc.), 196.
7 Ibid. 197.
8 Ibid.
9 Ibid. 195.
10 Ibid. 196.
11 Ibid.
12 Durh. Treas. Cart. ii, f. 266.
13 Ibid.
14 Surtees, Hist. Durh. iv, 162.
15 Ibid.
16 Durh. Treas. i, 16 spec. 45.
17 Ibid. 57.
18 Ibid. 62. This deed indicates that at the end of the 13th century during time of war the period of service was 40 days.
19 Durh. Treas. Cart. ii, 267.
20 Inq. p.m. Simon Lane, 5 Hatfield; Randall MS. i, 50.
21 See above, p. 24.
22 When the first regular court house was built is unknown. It is evident from the 'Attestationes Testium' in connection with the 'Convenit' that no regular court house existed at the beginning of the 13th century. Feod. Prior. Dunelm. (Surt. Soc.), 252.
23 Mickleton MS. f. 94d, 106, 122d.
24 Durh. Rec. Entry Bks. Decrees and Orders, bdle. 4, no. 3, f. 289.
25 The materials for the history of the borough of Durham are unfortunately somewhat meagre. With the exception of the charters and some recent minute books, the whole of the corporation papers have disappeared. It seems that during the 19th century a corporation official who had custody of the missing documents had a dispute with the corporation as to certain fees and claimed that he had a lien on the documents in question. The dispute was not settled, and every effort to trace the missing papers, which apparently remained in the hands of the official, has been unsuccessful. The Dean and Chapter Treasury contains a considerable number of 13th and 14th century deeds relating to houses in the borough belonging to the convent; also a paper book of the time of Bishop Booth containing (inter alia) copies of leases of the borough, the mill and the furnace. The main source of information, however, is the Exchequer Depositions (Durh. East. 8 Jas. I, no. 41), taken in connection with a dispute between Bishop James and the corporation at the beginning of the 17th century (see above, p. 35). Occasional references are to be found in the Mickleton MS. in Bishop Cosin's Library, Durham, and we have to thank Dr. H. H. E. Craster for a reference to Carte MS. 129 (ff. 250–284), where a number of documents relating to the government of the borough in the 17th century are copied.
26 Exch. Depos. ut supra.
27 The Market Place is bounded by St. Nicholas Church on its northern side and may originally have been the churchyard which gradually became more and more devoted to trade. It was in the Market Place that the Tolbooth, the centre of the borough administration, stood.
28 Hunter, Mag. Rot. Scacc. (Rec. Com.), 130.
29 It is not possible now to ascertain where the arable area attached to the burgages lay; a certain amount of land would be available between Claypath and the river, and in addition there was land at the south end of Framwellgate Moor, but most of this was held in connection with extra-burghal holdings.
30 The charter, with the bishop's seal attached, is in the custody of the corporation. There is a copy in the Durh. Treas. Reg. ii, pt. 2, f. 3. We have to express our thanks to the late Mr. F. Marshall, the town clerk, for permission to copy the charter.
31 The reference in the Chester deeds to the gild merchant at Durham, Hist. MS. Com. 8th Rep., 355, is an error for Dublin: See Round, Feudal Eng. 465.
32 Durh. Treas. Reg. ii, f. 184 d. The entry was made in the 14th century.
33 The Wearmouth charter is printed in Boldon Bk. (Surtees Soc.), xli. The Newcastle charter is in Stubbs' Select Charters, 110. They can best be studied for the purposes of comparison in Ballard, Brit. Boro. Ch. 1042–1216.
34 See Boro. Customs (Selden Soc.), II, xxvii.
35 Boldon Bk. (Surtees Soc.), xli.
36 Durh. Assize R. (Surtees Soc.), cases 284–291. There is a separate verdict from each of the four Durham boroughs.
37 Ballard, Boro. Ch. 211.
38 Ibid. lxvi; see also Chadwick, Studies in Anglo-Saxon Inst.
39 Ballard, op. cit. 160.
40 Ballard, op. cit. 211.
41 V.C.H. Dur. i, 306, 327.
42 Boldon Bk. (Surtees Soc.), xxxii.
43 The rubric in the roll under which the rent appears is 'Receptio de ballivis burgorum,' but Spicer is described as 'firmarius.' It should be mentioned that he was a bishopric official and died rich—dabbling in municipal finance in the early part of the 14th century was apparently not wholly unprofitable. Kellaw's Reg. (Rolls Ser.), ii, 110.
44 Durh. Halmote Bks. P.R.O. A.79d. Both lessees were bailiffs in 1353. It seems doubtful if Grey was a burgess.
45 Durh. Cursitor R. cl. 3, no. 32, m. 8 d. Three of the lessees, John Lewyn, Walter Coken and Roger Aspour, appear in the list of bailiffs at this period.
46 Durh. Cursitor R. cl. 3, no. 37, m. 12 d.
47 The other 15th-century leases are as follows: 27 Sept. 1466, lease of borough, mill and furnace for one year, rent 90 marks; 11 Jan. 1470, lease of tolls and 'Scamylhire Burgi' for one year, rent 60s.; 9 Oct. 1473, lease of borough for one year, rent £13 6s. 8d.; 10 Jan. 1475, a similar lease. All the lessees were tradesmen and the leases appear in Liber Recog. et dimis. temp. Laur. epis'. (Durh. Treas.), ff. iii, 174, 291, and 29.
48 The charter is printed in Hutchinson, Hist. Durham, ii, 21.
49 The charter is printed in Hutchinson, op. cit. ii, 29; see above, p. 33, as to circumstances attending the granting of these charters.
50 Mickleton MS. i, 410d.
51 This appears from the constant litigation as to tolls in the 18th century.
52 Municip. Corp. Rep. 1835, p. 1515.
53 See above, p. 41.
54 Hutchinson, op. cit. ii, 50. This charter is in English.
55 For lists of recorders and town clerks, see Hutchinson, op. cit. ii, 70, 71.
56 In 1835 the mayor's wife received this sum. Municip. Corp. Rep. p. 1514; Durh. Acct. R. (Surtees Soc.), 704.
57 D. and C. Rec. Repert. Magn.
58 See above, p. 35.
59 Mickleton MS. IA, 10, 105. This statement by Richardson was no doubt drawn up to rebut the claims by the mayor on the occasion of the visit of James I to Durham in 1617 (see above, p. 37).
60 P.R.O. Durh. Rec. cl. 3, no. 70, m. 18.
61 P.R.O. Durh. Rec. cl. 3, no. 43, m. 18.
62 Ibid. no. 45, m. 8.
63 Ibid. no. 77, m. 16.
64 Mickleton MS. IA, p. 103. For later stewards, see Surtees, op. cit. iv, pt. ii.
65 Ibid. p. 26.
66 That the gilds met in the Tolbooth in the 17th century, see Mickleton MS. xxiii, 119d; xxxii, 118d.
67 Durh. Treas. Almoners' Rental. After the Reformation the Earl of Westmorland built a house called the New Place on the site of the present Town Hall. The Mayor's Chamber, which adjoins the Town Hall, occupies the site of the old Gild Hall.
68 Longstaffe MS. ix. In 1646 Easter vestries of St. Nicholas, two pant-wardens, four collectors, two bridgemasters, two grassmen and two drivers were elected.
69 Municip. Corp. Rep. p. 1515.
70 In the Sacrist Rental for 1500 (Durh. Treas.) there is a detailed list of the arable holdings in Bellasys belonging to the various burgages.
71 The history of Crossgate in Durh. Treas. Cart. iv, f. 90, see Feod. Prior. Dunelm. (Surt. Soc.), 192, is untrustworthy; it is part of a case relating to Bearpark Moor prepared with the object of showing that the Old Borough had no existence in the time of Richard I, and that the tenants therefore had no rights on Bearpark Moor, the coronation of Richard being the period of limitation of actions. Pollock and Maitland, Hist. of Engl. Law, ii, 81.
72 Simeon of Durh. (Rolls Ser.), i, 159.
73 Durh. Acc. R. (Surtees Soc.), ii, 349.
74 The Clock Mill appears to have been the least important of the city mills.
75 The Milburn now runs in a culvert under the 'North Road' for the greater part of its length.
76 In Durh. Treas. Almoner's Rental for 1424 the quarry is stated to be next 'Farthingcroft,' the small field just south of the 'White Gates.' The quarry belonged to the Sacrist; a large amount of stone has been worked from it in the Middle Ages; there is no trace in the accounts of any working in recent times.
77 The new part of St. Margaret's Churchyard was formerly the orchard (Durh. Treas. Almoner's Rental, 1424). Until quite recently traces of the stew-ponds were visible behind (west of) St. Margaret's Rectory.
78 No reference to actual working has been found before the 17th century in the Chapter Records, but the surname Potter was not uncommon in the Middle Ages: see Durh. Acc. R. (Surtees Soc.), Index, sub nom.
79 The fact that there was only one bailiff and that he held office for a considerable period is in marked contrast to the Bishop's Borough and indicates that the method of selection was different.
80 Durh. Treas. Sacrist's Rental, 1500.
81 Durh. Treas. Almoner's Rental, 1424. It was evidently near the southern end of the street.
82 Durh. Treas. The entries cover the period from 1498–1524. The 'curia capitalis' is stated to be held before the sacrist, of whose estate the lordship of Crossgate formed part. There are some older rolls (Doc. iv, no. 229) relating to the latter part of the 14th century, the entries in which relate almost entirely to actions for debt.
83 In 1501 the court sat on 23 days.
84 The existence of pasture rights on the adjoining moor was not an unmixed blessing so far as the public health was concerned. The cows were kept in the houses, and the consequent accumulation of manure must have rendered the houses unhealthy. See below, p. 62, as to the Elvet regulations.
85 'William Maser is forbidden for the future to show hospitality to any vagabonds or Scots for more than one day and night and not more than three Scots.' This entry indicates the feeling of the burgesses to their northern neighbours.
86 Rolls for 1757 and 1764 exist in the Durham Treasury.
87 The Dean and Chapter Treasury at Durham contains a number of documents relating to Elvet. In addition there are rentals and some court rolls. References to it will also be found in the Hostellar's accounts, as Elvet was under that official's special jurisdiction. These all relate to the period before the Dissolution; for later periods the material is scanty.
88 In the Middle Ages the terms Church Street and Hallgarth Street were not used; houses in those areas are sometimes differentiated as being in Elvet Superior. Durh. Treas. 4, 16, spec. 131.
89 The boundaries of the Borough of Elvet are in Prior Bertram's Charter, 1188–1208. Feod. Prior. Dunelm. (Surt. Soc.), p. 199.
90 A careful comparison of the boundaries given in the deeds in Durh. Treas. 4, 16 spec. and 1, 17 spec. makes it clear that Old and New Elvet have changed names. Ibid. 1, 17 spec. 54, gives the Wear as the northern boundary and the King's Highway as the southern boundary in 'New' Elvet. Ibid. 3, 17 spec. 46, gives the 'manerium de Elvethall' as the boundary of two tenements in 'Old' Elvet. But the clearest evidence is the 15th-century sketch (Durh. Treas. Misc.Charters, 7100; see below, p. 63, n. 1). When the change was made is doubtful; the old nomenclature was in force when the Repertorium Magnum (Durh. Treas.) was drawn up in 1456, but a hundred years later leases in the Dean and Chapter registers made it clear that the change had taken place. At first the terms 'Old' and 'New' Elvet did not apply to streets, but to areas, Old Elvet meaning the barony district and New Elvet the borough. (See entries in Repertorium Magnum, Durham Treasury.)
91 On the forged foundation charters, see Feod. Prior. Dunelm. (Surtees Soc.), p. xxxiv et seq. It must be borne in mind that the forgeries were made early in the 12th century and may therefore be accepted as evidence of the state of affairs then, and the passage in the charter in the Liber Vitae (Surtees Soc.), p. 75, 'Aeluet ut ibi XLta mercatorum domos monachi ad usum proprium habeant, qui prorsus ab omni episcopi servitio sint liberi nisi forte merceries civitates sit reparanda ad quam non magis quam de tot civitates mercatoribus opus ab eis exigitur' as indicating the intention of adding a mercantile community to the agricultural population of Elvet.
92 Farm buildings and some ancient tithe barns still mark the spot.
93 By Water Lane and King's Gate.
94 As evidence of this the Marescalcia Rolls of the convent may be cited. When in 1392 the weights and measures of the Old Borough of Elvet were tested 22 tradesmen appeared from Crossgate and 62 from Elvet—20 from the barony and 42 from the borough. Durbam Account Rolls (Surtees Soc.), ii, pp. 346, 350. Again in the Convenit and the Attestationes relating to the dispute between the bishop and the prior at the beginning of the 13th century all the references are to Elvet except one in the Convenit. The greater importance of the Scaltok (Elvet) mill as compared with the Clock (Crossgate) mill may also be cited.
95 This charter is printed in the Feod. Prior. Dunelm. (Surtees Soc.), p. 199. Bertram was Prior 1188–1208, but Bishop Pudsey's charter (ibid. 198) indicates that Bertram's charter was made before the bishop's death in 1198. Pudsey's charter bears out the statement in Coldingham, Scriptores Tres (Surtees Soc.), 12, that Pudsey made the borough of Elvet and afterwards resigned it to the convent to whom it belonged as of right. Unfortunately the order of Pudsey's various actions in regard to the borough of Durham, the building of Elvet Bridge and the borough of Elvet, is not known. The effect on both the borough of Durham and Elvet of the building of the New (Elvet) Bridge must have been great. Until it was built the main traffic between north and south would pass through the Old Borough and Crossgate, but immediately Elvet Bridge was built this traffic would be diverted from South Street to Elvet and the bishop's borough, to their great advantage.
96 Feod. Prior. Dunelm. (Surt. Soc.), 199. It would almost appear that the grant as to pleas was ultra vires, but the extract from the following deed (Durh. Treas. 2, 17, spec. 27) shows that the grant was acted on 'quod quidem burgagium ego Gilbertus Araunam in curia Burgi prenominati (Elvet) die Jovis proxima ante festum sancti Martini (A.D. 1294) per quoddam breve de recto de Rogero de Fferye coram Dominis Johanne Seleby tunc hostelario Prioratus Dunelmensis et Johanne Skyreloe tune loci ejusdem senescallo ad hoc assignatis.'
97 Durh. Treas. Reg. ii, f. 21 d. Inq. p.m. 2 Fordham, Joh. de Elvet. The amount of landmale was generally very small—1½d., though in one case 10 burgages paid 4s. 11d.
98 This appears from a note in a list of tenants fined 'in curiis de Elvet hall et Novi Burgi' for allowing their animals to trespass in the demesne lands (Durh. Treas. Loc. ii, no. 14). The note goes on to state that several rolls 'consumpti sunt partem per pluviam partem per ratones et mures.' This may account for the non-existence of any court rolls of the borough, whilst a separate court was held for that area as distinct from the barony. If any court rolls for the borough had existed when the 'Repertorium Magnum' was drawn up (1456), they would have been entered under Loc. iv—the entry there only refers to the barony.
99 See Durh. Halmote Courts (Surtees Soc.), Introduction.
100 The few Elvet rolls which have survived will be found in Durh. Treas. Loc. iv; with the exception of a roll (in a very bad condition) for 1360 (no. 116), the other rolls, nos. 99, 101, 102, 119, 124, 128, 129, 131 and 132, all relate to the period 1398–1402. The general heading is 'Curia Baronie de Elvett,' but from a reference in the roll for 1398 (no. 96) to fines for allowing pigs to trespass in Smythalgh, which is within the borough, it would appear that the court had jurisdiction over the borough as well as the barony. Further evidence that the differentiation between the borough and the barony ceased to exist in the 15th century is the use of the term burgage in reference to a house in the barony (Hostellar's Acct. 1446/7, Durh. Acct. R. i, 145). In the 14th century the term burgage was not used in reference to property in the barony.