CONSTITUTION Florilegium Urbanum
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Keywords: medieval Newcastle-upon-Tyne customs law distraint debt commerce liberties freemen privileges assizes burgage tenure custumals
Subject: Customs of Newcastle-upon-Tyne
Original source: Public Record Office, Chancery Miscellanea
Transcription in: Charles Johnson, "The oldest version of the customs of Newcastle Upon Tyne," Archaeologia Aeliana, 4th series, vol.1 (1925), 170.
Original language: Latin
Location: Newcastle-upon-Tyne
Date: tempore Henry II


TRANSLATION

These are the laws and customs which the burgesses of Newcastle upon Tyne had in the time of Henry, king of England, and ought to have. Burgesses may distrain upon outsiders in the marketplace or outside it, in their houses or outside them, and within the borough and outside it, without the permission of the reeve, unless the county court is in session in the borough or [the outsiders] are [serving] in the army or castle-guard. A burgess may not make distraint on another burgess without permission from the reeve. If a burgess makes in the borough a loan of anything of his to outsiders, the debtor shall return it to him if he acknowledges [the debt]; if he denies [the debt] he should answer to justice in the borough. Pleas which are initiated in the borough should be tried and brought to conclusion there, except those which belong to the crown. If any burgess is accused in a suit, he shall not plead outside the borough unless the court fails [to do justice]. Nor, except in matters involving the crown, should he defend without day and term [being assigned] unless first he falls into error in his pleading. If a ship comes to harbour at Tynemouth, then wishes to depart, the burgesses may [first] buy whatever they wish [of its cargo]. If a plea arises between a burgess and a [travelling] merchant, it is to be brought to conclusion before the third ebb-tide. Merchandize of whatever kind brought by sea ought to be put ashore, except for salt, while herring should be sold in the ship. If anyone holds land in burgage for a year and a day, lawfully and without claim [against it], he is [thereafter] not answerable to any claimant, except one who has been out of the kingdom or who was a child not old enough to bring legal action. If a burgess has a son [living] with him, the son shall share in the liberty of his father. If a villein comes to reside in the borough and lives there for a year and a day as if a burgess, he may stay in the borough forever, unless he or his lord had previously announced that he would reside only for a set term. If anyone accuses a burgess of anything, he cannot [prosecute by] combat with the burgess, but the burgess may defend himself by his law, unless [the accusation] is of treason whereby he is obliged to defend himself by battle. Nor can a burgess do combat against an outsider, unless he first quits the burgage. No merchant, unless a burgess, can inside [or outside] the town buy wool, leather, or other merchandize from anyone except burgesses. If a burgess commits a wrong, he shall give 6 ounces [of silver] to the reeve. There is no merchet, heriot, blodwit, nor stengesdint in the borough. Any burgess may have his own oven and hand-mill if he wishes, saving the rights of the king's oven. If a woman commits a wrong concerning bread or ale, no one should interfere except the reeve. If she commits the wrong twice, let her penalty be chastisement. If she commits wrong a third time, she is to be brought to justice. No-one except a burgess may buy cloth for the purpose of dyeing, nor make or cut [cloth]. A burgess may give or sell his land, unless [his right to] it is challenged, and go freely and peacefully wherever he wishes.



DISCUSSION

As its name indicates, Newcastle began as a settlement servicing the Norman castle built to guard a crossing of the Tyne. Within a century it had its own distinctive society and economy, as revealed in the list of customs above. Three different versions of the custumal are known. That which Johnson believed the oldest is very similar to the customs of a group of Scottish boroughs – Newcastle at times (including the second quarter of the 12th century) having been under Scottish rule. The other versions were copied into the Percy Chartulary (pub. Selden Society, v.117, p.333) and a charter granted ca. 1180s to the borough of Wearmouth (Co. Durham), by its lord the bishop of Durham. The early charters of English kings granted to Newcastle, by John and Henry III, confirmed existing customs of the town from the time of Henry II. It is presumably the above customs that were meant, although the reference in the opening sentence to King Henry is more likely to Henry I.

The Newcastle-upon-Tyne custumal provides an early specification of the laws referred to only generally in charters. Few documents so well illustrate the interrelationship between charters of liberties and custumals. So much does this document resemble a charter's recitation of privileges granted, as opposed to an itemized or capitularized custumal, that Ballard adopted it as such in his comparative study of the earliest group of charters of liberties. The existence of this early custumal, which survives in several versions, has led to Newcastle's development as a borough being described as "precocious" (Edward Miller, "Rulers of Thirteenth Century Towns: The Cases of York and Newcastle upon Tyne," Thirteenth Century England I: Proceedings of the Newcastle Upon Tyne Conference 1985, Woodbridge: Boydell Press, 1986, 129). Although tempore Henry II the Newcastle customs did serve as a model for those granted to lesser towns in the north-east (Gateshead, Hartlepool, and Wearmouth), the seeming precocity may be an illusion consequent to the scarcity of written evidence of early borough customs. It is worth comparing these customs with those of the burgesses of Bury St. Edmunds, from a similar period.

flourish

NOTES

"had in the time of Henry"
The Percy version states that the laws were granted by Henry I to the burgesses, but this may be a scribal assumption.

"distrain upon outsiders"
The principle regarding distraint was that burgesses had to capitalize on almost any opportunity to compel outsiders – who were not usually accessible – to answer to legal actions brought against them. Whereas, the burgess' person and property were always on hand, and therefore distraint against them should go through due process. The Percy version identifies the outsiders more explicitly as country-dwellers, and clarifies that they may not be distrained if they have come to the borough to attend the county court. The Wearmouth allows as exemption from distraint only that the outsiders have come to town on business of the bishop, but this is evidently an adaptation of the original to Wearmouth circumstances (it being clear from other evidence that the laws had been edited with that in mind).

"a loan of anything of his to outsiders"
To the clause concerning loans to outsiders, the Wearmouth version adds the proviso that "burgesses not use this privilege to vex villeins unjustly" – reflecting what was later a growing tendency to use litigation as a pressure tactic – but again this may be a Wearmouth adaptation.

"error in his pleading"
This refers to miskenning.

"buy whatever they wish"
It was not uncommon for towns to claim a pre-emptive right over cargoes of ships which moored, however temporarily, within their boundaries. The Percy version incorporates a scribal error in adding "not" to "wishes to depart" and it is this version which found its way into Ballard's compilation. The Wearmouth version substitutes Wearmouth for Tynemouth.

"travelling"
This qualifier before merchant is made explicit in the other versions.

"sold in the ship"
The Wearmouth version gave the option for herring to be brought ashore to be sold in town.

"the son shall share"
Concerning the son's right to share in the burgess privileges of his father, the Percy and Wearmouth versions more explicitly state that this is while the son still lives under the same roof: "while in his house, at his table".

"villein comes to reside"
The alternate versions are rephrased to clarify the contrast between an (escaped?) villein who remains a year and a day without challenge by any lord, and a villein whose lord has given him licence to reside in town temporarily (e.g. in order to trade on behalf of his lord).

"quits the burgage"
This seems to imply that a man had first to give up his burgess status before he was allowed to choose judicial combat as a defence. The other versions extend the exceptions to include any serious felony (i.e. presumably punishable by death), while the Wearmouth version specifies the preferred defence of a burgess as compurgation by 36 supporters.

"or outside"
The version of the laws found in the Scottish boroughs includes "outside the town" among the prohibited locations, and the PRO version appears from the wording to have accidentally omitted this. The Percy version specifies the locations as "neither in the marketplace nor in the countryside"; presumably the immediate countryside within the jurisdictional boundaries of the borough were intended, since it is hard to see how a borough could control the actions of a merchant outside its jurisdiction. However, some have interpreted this clause as the grant of (or a claim on) a regional monopoly on trade in these items. Newcastle certainly wanted to control commerce in the face of market competition from other settlements along the Tyne. The point of this clause may simply be to restrict wholesale commerce to residents of the locality who had formal burgess status, a privilege more typical of its time. On the other hand it may relate to claims by Newcastle that a stretch of the Tyne and its banks was within the territorial franchise of the town and thereby subject to the local monopoly.

"6 ounces of silver"
According to Johnson, this was worth 10s. Judging from the equivalent, more explicit clause used by the Scottish boroughs, it relates to a ceiling on the amount the borough court could fine a burgess.

"merchet, heriot, blodwit, nor stengesdint"
Merchet was a fee for a lord's permission for his villein's daughter to marry, and heriot something similar to a death duty, payable, in cash or kind, to the lord of a deceased villein or free tenant. Towns were anxious to be free of dues or services associated with agricultural communities. Blodwit was a fine for an assault drawing blood. Stengesdint was a fine for striking with a stick (i.e. causing injury without drawing blood).

"oven and hand-mill"
The point about personal ovens and hand-mills was that there were typically communal facilities for baking and, especially, milling that burgesses were expected to use (since the revenues therefrom went towards paying the borough farm). The Percy version omits the proviso about the king's rights, while the Wearmouth version substitutes the rights of the bishop.

"wrong concerning bread or ale"
This related to breaking the assizes of bread and ale, first set down in writing in the time of Henry II. The Newcastle customs indicate that a first offence met with a warning, a second offence with a stern, public warning, but on the third the offender would be brought before the court for punishment. Women were much involved in selling the products of their baking and brewing; the Percy and Wearmouth versions, however, do not specify a sex of the offenders, and they seem to leave it to the discretion of the reeve as to whether a small fine was required for the first and second offence.

"justice"
A later version adds that the punishment due the offender will be decided by communal decision of the burgesses.

"cut"
Probably meaning cut a cloth into smaller pieces in order to retail it.

"give or sell his land"
The Wearmouth version is more explicit in stating that the right to dispose of real estate was a freedom from requiring any licence from a lord or from obtaining the advance agreement of one's heirs. In contrast to the latter freedom, at Nottingham heirs were permitted to redeem property sold by a relative, even against the purchaser's will, so long as they promised in the gildhall to pay the purchaser, within a year and a day, the price he had given for the property; compensation for improvements to or deterioration of the property since its sale might also be negotiated.




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Created: August 18, 2001. Last update: October 19, 2017 © Stephen Alsford, 2001-2017