Catalogue description Records of the Courts of Common Law (Common Pleas and Assizes)

The claim of the bishop of Durham to exercise common-law jurisdiction within his franchise was well established by the end of the twelfth century. Externally, Durham's special position with regard to the royal itinerant justices was recognised as early as the 1160s, when Bishop Puiset received from King Henry II a declaration that the entry of royal justices to hold the Assize of Clarendon should not form a precedent. Internally the bishop's court developed from a franchisal jurisdiction into a microcosm of the king's court: the bishop's justices sat to hear criminal and civil pleas involving the men of the bishop's franchise, who were in effect all the inhabitants of the county of Durham and its northern outliers.

Throughout the life of the royal general eyre, it was accepted that the king's justices did not enter the franchise of Durham sede plena, although they might do so sede vacante or when the franchise was in the king's hand. Normally, the bishop's justices held a general eyre when the king's justices visited the neighbouring shires.

Once they had obtained from the royal justices the articles of the eyre and certain writs in civil pleas, they were commissioned by the bishop to hold the eyre, the articles being reissued in the bishop's name. The demise of the eyre liberated the Palatinate from this system. One group of royal justices of oyer and terminer visited the Palatinate in 1305, but otherwise until 1536 the bishop commissioned at will his own justices of assize, gaol delivery and oyer and terminer, although the panel always included at least one royal justice.

Between eyres or special commissions, the bishop's court functioned as a permanent tribunal in Durham. There was no differentiation on the lines of the Westminster courts. The justices - many of whom held other senior palatine offices - sat as the equivalent of both King's Bench and Common Pleas. They were competent to hear pleas of the crown and won the power to hear all civil pleas. This court was the superior court of common law, from which appeal lay only to the bishop.

The regular pattern of combined commissions of assize and gaol delivery which emerged in the kingdom at large from the fourteenth century onwards was mirrored in Durham. The Palatinate was outside the regular royal assize circuits, and until 1536 the justices were commissioned by the bishop; nonetheless, the apparent isolation of the Palatinate was greatly reduced by the constant inclusion among them of justices of the northern circuit or the central courts at Westminster. Assize sessions were held annually in Durham City.

The Act of 1536 left the structure of the palatine courts intact, but henceforth the crown commissioned the justices of assize and gaol delivery - in practice, the northern circuit judges. Two vestiges of the bishop's power remained: in addition to the royal commission, the crown issued a warrant to the bishop to re-issue the justices' commission himself; and he retained a right to recommend to the Lord Chancellor persons to be included in the commission of gaol delivery.

Despite some disruption in the 1640s and 1650s, Summer Assizes were held annually in Durham until 1819, and thereafter twice annually down to and after the inclusion of Durham in 1876 in the newly-formed north eastern circuit. In the later centuries, the business of the Assizes was predominantly criminal.

Between Assizes, the Durham Court of Pleas, descendant of the bishop's court, sat mainly to deal with civil pleas, although it heard some criminal business carried over from the Assizes. Officers of the Palatinate appear to have regarded the Assizes and the Court of Pleas as two aspects of the same court. The Court of Pleas was abolished in 1646, but revived in 1660, and it continued to function into the nineteenth century.

It retained a measure of independence: only those formally admitted and enrolled as attorneys in the palatine courts could practise there, and there was a widespread, although not wholly accurate, assumption that pleas concerning palatine subjects and lands could be heard only there, and not in any Westminster court.

It retained aspects of both King's Bench (eg proceedings in ejectment) and Common Pleas (eg fines and recoveries). The Court of Pleas survived the abolition of the Palatinate in 1836, was regulated by the Common Law Procedure Acts of 1852, 1854 and 1860, and finally disappeared under the Judicature Act of 1873.

Much of the business of the Court of Pleas consisted of the fictitious actions of fines and common recoveries. Fines had been levied in the bishop's court at least as early as the 1220s; in later centuries fines on palatine lands levied in the Court of Common Pleas at Westminster were held to be void, except during the absence of the Durham Court of Pleas under the Commonwealth.