records of the Bishop of Durham's administration of the palatinate of Durham

The Palatinate or County Palatine of Durham consisted of the pre-1974 County Durham (sometimes referred to as the land between the rivers Tyne and Tees or "the Bishopric"), together with an area known as North Durham (made up of Holy Island and Islandshire, Norham and Norhamshire and Bedlington and Bedlingtonshire), which was a detached part of County Durham until it was transferred to Northumberland in 1844, plus Crayke in North Yorkshire, which also formed a detached part of County Durham until 1844, when it was transferred to Yorkshire. The ecclesiastical peculiars of Allerton and Allertonshire and Howden and Howdenshire in Yorkshire did not form part of the Palatinate, although they are sometimes wrongly described as such. The boundaries of the Palatinate differed from the boundaries of the diocese of Durham and from the boundaries of the Durham bishopric estates.

A palatinate is the territory of a count palatine, that is a magnate who has certain rights of local jurisdiction which, unusually, are exclusive of the royal courts. An English palatinate was an independent franchise with judicial and administrative systems which were modelled on the system of royal courts and government but which came under the control of the count palatine rather than of the crown (although in practice the power of the palatine courts in Durham was always limited by the paramountcy of the royal prerogative).

Durham, where the Palatinate was held by the Bishop of Durham (or by specially appointed royal officials during vacancies in the see) is generally regarded as the most ancient of the great English exempt jurisdictions (which also included the palatinates of Chester and Lancaster). No charter of its creation is known to exist, and the powers of its ruler seem to have been based on prescriptive rights and on the need for a powerful lord to be based in the border areas, able to exercise justice efficiently and effectively in times of frequent wars and skirmishes and poor communications. The survival of the independence of the Durham Palatinate long after those of Chester and Lancaster had been absorbed into the national system of government doubtless reflects not just its strategic importance as a buffer between England and Scotland and the remoteness of the region, but also the status and influence of Durham and its shrine of St Cuthbert.

The Palatinate's judicial institutions, modelled on those of the kingdom but formally independent of them, developed rapidly during the 13th century, although the term "palatinus" was not used until the late 13th century, during the episcopate of Anthony Bek (1284-1311). As well as running their own courts and appointing their own temporal chancellor and justices of the Peace the bishops also exercised within the Palatinate such regalian privileges as exacting mineral rights, enforcing forest jurisdiction, minting their own coins and granting charters for markets and fairs. The bishop also had the right to claim wrecks, royal fish, treasure trove, waif and stray and deodands, as well as the lands of convicted felons.

The bishops of Durham were at the height of their powers as counts palatine between 1300 and 1400, although even then certain of their claims to power were disputed by various kings. The Palatinate's independence lingered on because national government was weakened by long-running disputes during the 15th century, but it could not withstand unscathed the centralizing forces at work from the late 15th century onwards. By an Act of 1536 the bishop of Durham effectively lost his criminal jurisdiction and his judicial supremacy. The palatine courts remained as before, and continued to be organized separately from other courts, but they were now the king's courts, not the bishop's. Even after 1536, however, the bishop still retained his right to nominate justices of the peace for the Crown to appoint (and the bishop's nominations were generally accepted). The bishop and his temporal chancellor were themselves justices ex officio . The bishop also still retained his supremacy over civil jurisdiction and civil government in the Palatinate and was still automatically lord lieutenant of Durham. Until 1836 he also seems to have either himself continued to serve as custos rotulorum or else at certain periods to have appointed representatives to carry out the duties of this office on his behalf. He still kept his chancery and admiralty jurisdictions and continued to appoint various officials, e.g. the temporal chancellor, sheriff, under-sheriff, county clerk, gaoler, prothonotary, clerk of the peace etc.. He could still preside in some courts and was entitled to receive the fees from various judicial proceedings, as well as retaining rights over boroughs and guilds, remaining the chief feudal lord in the area and maintaining his financial administration. In 1646, during the Civil War, the Palatinate was abolished, but in 1660, at the Restoration, the palatine rights as they had existed in 1646 were restored to Bishop Cosin, who made deliberate efforts to revive the dignity of the Palatinate. However, the 1660 Statute of Tenures ended the bishop's rights as chief feudal lord in the Palatinate. Just before 1688 an attempt was made to abolish the Palatinate by Act of Parliament. This was strongly opposed in Durham, where the local courts were popular, and the attempt failed. At certain periods during the 18th century there was much criticism of the administration of the Palatinate, notably by Gilbert Spearman (see Publication note), although no particular attempt was made to abolish the system itself.

During the period of general reform in the 1830s the government suggested abolishing the Palatinate courts but this proposal met with so much local opposition that it was decided to reform them instead. By an Act of Parliament of 6 & & William IV [1836], c.19 the Durham palatine jurisdiction was separated from the bishopric of Durham and vested in the Crown as a franchise and royalty separate from the Crown, to be "exercised and enjoyed" by the king "as a separate franchise and royalty". The Palatinate's County Court was abolished but, following strong local pressure, led by Lord Londonderry, the separate Durham Court of Pleas and Durham Chancery Court were retained. Both these courts were, however, now under central rather than episcopal control, and the Crown appointed the custos rotulorum from 1836 onwards. Thus, with the loss of his civil jurisdiction and remaining regalian rights, the bishop of Durham in 1836 finally ceased to be a count palatine.

The courts and their records For a more detailed account of the courts see TNA's online guide http://www.catalogue.nationalarchives.gov.uk/default.asp and K. Emsley and C.M. Fraser, The courts of the County Palatine of Durham ... (see Publication note).

1. The Durham County Court: this descended from the medieval shire court attended by all the free men of the Palatinate under the presidency of the sheriff of Durham. It declined from the 14th century with the rise of Sessions of the Peace. From the 17th to the 19th centuries it continued as a court for small civil pleas under the county clerk, not the sheriff. The Palatinate County Court was abolished in 1836. No records of it are known to survive. From 1836 onwards Durham had a County Court identical to those for other counties. These in turn were abolished by the County Courts Act of 1846 and replaced by new courts; the records of the post-1846 Durham County Court are in Durham County Record Office (DCRO).

2. The Durham courts of common law: the Durham Court of Pleas and the Assizes. These mirrored the similar royal courts. Officers of the Palatinate seem to have regarded the Court of Pleas and the Assizes as two aspects of the same court. After the Court of Chancery the Court of Pleas was the most important Durham court. Its chief officer and custodian of its records was the prothonotary, sometimes called the clerk of the justices itinerant in the County Palatine of Durham. At first the Durham Court of Pleas dealt mainly with civil cases, many of them relating to debt, but by the 15th century it was also dealing with criminal cases, e.g. murder, riot, thefts and horse and sheep-stealing. In 1536 the Durham criminal jurisdiction was resumed by the Crown and thenceforth the Crown commissioned the justices of assize and gaol-delivery, whose business became predominantly criminal. The Palatinate Court of Pleas, now under the Crown, thereafter dealt mainly with civil cases, chiefly relating to debt and the recovery of property, but also with some criminal cases left over from the Assizes. Business often proceeded slowly. From 1690 until 1873 the court was in decline, with a growing number of appeals being made against its decisions. The Durham Court of Pleas was retained in 1836 but in 1873 was abolished as a separate court and merged in the Supreme Court. Most surviving records of the Durham Court of Pleas and Assizes are in TNA but some records of the Court of Pleas are in this collection.

3. Durham justices of the peace and Quarter Sessions. Justices of the peace in the Palatinate of Durham were commissioned by the bishop of Durham until 1536 and thereafter by the Crown (although see also under History and administration above). Records of the justices and of Quarter Sessions were in the custody of the clerk of the peace. They were kept separately from the main body of Palatinate records and were left in Durham in 1868 when most Palatinate Records were transferred to TNA (see Custodial history). The bulk of them are now in DCRO.

4. The Durham Chancery Court. This originally existed as a registry or secretariat, and at first also ruled on certain specific common law matters, but its work increasingly came to concentrate on equity as opposed to common law cases; equity is a distinct system of law, involving recourse to general principles of justice to correct or supplement the provisions of common or statute law. In the 17th and early 18th centuries numerous inclosures of common lands in the Palatinate were also carried out by decree of the Durham Chancery. The chief officer of the Durham Court of Chancery was the temporal chancellor of Durham (different from the spiritual chancellor, who headed the diocesan administration). The temporal chancellor was appointed by the bishop of Durham until 1836 and thereafter by the Crown. He presided in the Chancery Court and had custody of the Great Seal of the Palatinate, used for sealing all documents issuing from the Durham Chancery, as well as writs and mandates proceeding from the Durham Exchequer and the Durham Court of Pleas. The chancellor was usually a senior lawyer in the royal courts and most of the day-to-day work of the court was carried out by the Chancery registrar (or register), who was also appointed by the bishop until 1836. The secretarial/registry functions of the Durham Chancery were the responsibility of the clerk of the Chancery, later known as the cursitor, who was also an episcopal apointee until 1836. He ranked second to the chancellor and was usually responsible for the care of the Chancery records. He issued most Chancery writs and his remit covered matters such as inquisitions post mortem as well as enrolments of episcopal letters patent and close, charters, fines, recognizances, deeds etc.. His work diminished from the 17th century onwards and, although the office survived the changes of 1836, it was abolished by an Act of 1868. Until 1855 the Chancery Court sat in the bishop's exchequer in the Exchequer Building on Palace Green, Durham (currently part of Durham University Library). In 1855 it moved to a building in Owengate, Durham, which is currently part of Durham University Law Department (2010). The judge's bench from the court has been re-erected in the Durham Heritage Centre. By the 19th century the Durham Chancery Court heard few cases but it was retained in 1836, although it thereafter came under the Crown rather than the bishop. Its procedure was reformed by the Palatinate Court of Durham Act of 1889, which led to increased local use of the court. It survived until 1971, when it was merged with the Chancery division of the Supreme Court. The bulk of the records of the Durham Chancery, including all the medieval material, are in TNA. Many inclosure records and some later court records are here (See Custodial history and Immediate source of acquisition for more details).

5. Admiralty jurisdiction. Matters relating to the bishop of Durham's regalian rights as count palatine in respect of wreck, royal fish, regulation of ports and river commerce and cases arising from various naval and commercial activities were originally dealt with in the regular palatinate courts. In the mid-17th century, however, a separate Durham Vice-Admiralty court, based in Sunderland, developed. After the Restoration appeals from this court went to the royal court of Admiralty. The work of the Sunderland court seems to have ended with the creation by an Act of 1717 of the River Wear Commissioners, who held their own court. Few records of the bishop's court survive (but see Gibson Volumes under Related material - same repository).

From the guide to the Palatinate of Durham Records, ca.1617-1952, (Durham University Library, Archives and Special Collections)