[p. 307] The Diplomatic of English Borough Custumals

“Binus actus inducit consuetudinem” (Gratian)

Borough custumals are a substantial and interesting component of English municipal archives, but they have been studied relatively little as a genre1. There are two principal reasons for that apparent indifference. On the one hand historians of individual towns have, naturally enough, seen the custumal as a valuable repository of local material in its own setting2. On the other, there is a distinguished general study of the customary usages of British towns amongst the earliest volumes of the Selden Society’s publications. Mary Bateson’s Borough Customs identified some 130 custumals, of various kinds3. Her preliminary list of sources, which includes bibliographical references and critical notes, is a valuable conspectus of the primary material available to the student, to which the present century has made only small additions. However, in a series devoted to the history of English law, the work is naturally concerned with customary law as a constituent. Its contents are therefore arranged by subject, with the entries under the names of individual towns. The study begins with the forms of action in borough courts, and proceeds through the entire range of the rules by which burghal communities and their individual members were defined and governed. It shows customs as a body of principles rooted in local experience and gradually assimilated to the common law of the kingdom. As a product of its time, it was also informed by the notion that there was a coherence in customary law which might be refined and extracted by careful comparison and analysis4. Such inquiries have their own justification, yet there are other ways of approaching the material.

The archival context of the written custumals is instructive. There were more than 600 boroughs in medieval England, that is to say an amorphous company [p. 308] of more-or-less privileged communities which ranged from small groups of enfranchised manorial tenants to self-regarding and resourceful bodies of merchants and craftsmen. Some of them were short-lived, many were only speculatively and theoretically enfranchised, and even the largest were subject to a degree of control by the crown. Town courts claimed and exercised prescriptive usages, but even before the Conquest they were assimilated to some general model5. Markets and mints were rigorously licensed from the earliest times, and William abated none of the powers of the Old English kings in imposing his own authority.

In that company some fifty or sixty towns are distinguished by the systematic keeping of records from a comparatively early date. Eleven of them have original administrative records surviving from a date before the accession of Edward I in 1272. If we advance the date to the end of the thirteenth century, there are more than twenty, and there are 60 by 1500. In many places there are references to records older than the surviving originals, and in particular it is clear that there have been extensive losses in London, where the earliest original rolls date only from 1252. The habit of record keeping was widely established in the larger towns before 12506.

There are some slight but suggestive indications of its remoter origins. The great survey of England in 1086-1087 which produced Domesday Book was conducted by panels of commissioners armed with a questionnaire. Between the name and lordship of each place and its annual value they inquired exhaustively of its agrarian resources : tillage, plough teams, tenancies, grazing, livestock, ancillary sources of income7. If the questions had not survived we could have reconstructed them from the systematic answers that they elicited from more than 13,000 communities. As it is, the speed and thoroughness of the inquiry attests the efficiency and sophistication of the administrative system which William had acquired. The nature of the questions, on the other hand, shows unsurprisingly how entirely the concept of wealth rested upon farms, fields, and crops.

However, every shire, or county, had a principal borough, sometimes called a civitas, characteristically a defensible place and centre of communications [p. 309] where the shire court met, and which housed a market, and a mint8. Amongst much else, the returns show that such boroughs, which were evidently far from the minds of those who fashioned the inquest, imposed their own interests on the commissioners. Like other settlements they had fields and common lands, but they were also centres of trade, with money about them, and they claimed many prescriptive rights. The commissioners seem to have been baffled by the answers which they received : only at Buckingham were they able to make their return in due form, and even there there was a distinctive variation9. For the rest they followed the sound administrative procedure of writing down what they were told and leaving others to make what they could of it. The result was that the material from the towns had to be digested and presented in a different form from the rest of the returns, and it seems to have made a particular impression on the king’s advisers when they consulted Domesday Book, as they frequently did, in the course of the next century10.

The townsmen were naturally concerned with their corporate rights and obligations, with their duties towards the king, and with the customary usages that distinguished their community. The citizens of Exeter claimed that they paid geld only when it was also levied on London, York, and Winchester. Elsewhere there were references to payments and services, to losses which impaired their ability to pay taxes, and at Cambridge complaints about the oppressive activity of the sheriff. Returns of the numbers of the king’s and of other lords’ burgesses were commonplace, but at Colchester the king’s burgesses were listed by name, with details of their houses and land. The list has every appearance of a rental, and was presumably offered by the burgesses themselves, and duly copied by the commissioners’ scribe11.

We have therefore in the pages of Domesday Book traces of self-regarding communities in eleventh-century England, with a collective memory that may [p. 310] already have been, probably was, sustained by written records. The earliest surviving original documents from the towns are just a century later, but in the meantime there was a flow of royal and seignorial charters addressed, some imperatively but others no doubt by request, to established and aspirant boroughs. The larger towns were almost all in the king’s hands. They were anxious to maintain and enlarge their established privileges, but in the twelfth century they sought chiefly to attain independence of the sheriff by paying their dues directly to the crown. They struck such bargains as they could, but it was not until the reigns of Richard I (1189-99) and John (1199-1216) that the king was so pressed for funds as to be willing to grant such licence in perpetuity.

The result was a flurry of charters in those reigns, in which the invocation of liber burgus provides something of an archetype of the self-governing urban community. The free burgesses of such a borough were said to hold the town with its liberties and free customs at fee-farm to them and their heirs, of the king and his heirs. They had their own court, and could not be impleaded elsewhere in respect of their burgage tenements. Both Richard and John commonly granted freedom from toll throughout their dominions, a bounty more restricted in John’s reign than it had been in his brother’s, but one which facilitated trade in England. There was also commonly though not invariably the grant of a gild merchant. The value of the fee farm comprised royal dues of every kind, including the profits of the court, the tolls of the market, and as later events showed, lordship of the soil12.

The free boroughs thus defined were in effect communities of tenants-in-chief. Progressively liberated from the authority of the sheriff, they had a secure place as units of local administration, and as long as they paid their dues they were largely left to their own devices. In contrast to many boroughs of seignorial foundation, their established customs and usages were thus taken for granted. With each borough assured of its own rights, and the royal courts increasingly assertive of their powers, it could be assumed that such conflicts as might arise between one and another would be resolved by the king’s justices. In seignorial boroughs, by contrast, the customs of some established community were often prescribed, and Norman lords often looked to home for their examples. The customs of the small Norman borough of Breteuil-sur-Iton were widely disseminated, especially in the marches of Wales, and later into Ireland13.

It is a curious fact that although the customs of Breteuil were probably invoked and prescribed in medieval England more extensively than those of any [p. 311] other town, no text of them has survived. The reason, apart from those workings of chance which determine the preservation or loss of any particular document, is that they were offered principally to new, small, and often speculative foundations. In many instances the community simply failed to prosper ; in others the customs were adapted pragmatically, and attenuated or overlaid. The result is that the original provisions, or what passed for them, are now matter only for conjecture14. The surviving texts of the customs of the older and larger boroughs are quite numerous, and their incidence is striking. Free customs are regularly invoked in charters and the towns’ own records, but they usually do not emerge in detail until the end of the thirteenth century. They are mentioned only in unspecific terms in royal charters, presumably because the townsmen preferred, and the king was content, to acknowledge them without defining them. That was an eminently practical arrangement. The king’s concerns, at all times, were with the security of his revenue and the maintenance of his peace. If the townsmen duly discharged their obligations they could be left to manage their own affairs. On their side the townsmen could enjoy the usages that already distinguished their community, and if need be could judiciously augment and amend them. A body of established customs might reasonably confer the grace of antiquity upon any acceptable innovation.

Innovation, however, imposed its own rules. Townsmen and others paid not only for the liberties that royal charters attested, but also for the charters themselves. Charters are evidentiary, they refer to a transaction already accomplished. They therefore did not confer a title, but were prized because they might serve to assure it. Written records of other public transactions accumulated in the course of the twelfth century, and their systematic preservation became in turn an administrative function. In England the royal chancery began to register outgoing letters of various kinds in the last decade of the century, and as senior clerks were rewarded with bishoprics the practice seems to have spread into the dioceses15.

The earliest surviving administrative records from the towns are registers of gilds : records of admissions and payments collected in the only form of association which townsmen had entirely under their own control16. Court rolls of specialized kinds followed soon after17. In the mean time one borough, [p. 312] Ipswich, had been at pains to make a record of the manner in which it received the charter, granted by John in the first year of his reign. The episode was probably not unique, but no comparable record has been recognized elsewhere. The townsmen assembled outside the principal church to hear the charter read, and then held a series of meetings at which they appointed their chief officers : two bailiffs, four coroners to keep the pleas of the crown, and a bench of twelve jurats called portmen. They also chose an alderman for the gild merchant which the charter had licensed, and lastly they ordered the compilation of a roll of the free customs of the borough, to be called the Domesday roll18.

The account of the proceedings at Ipswich has survived only in later copies, but the detail, which is interesting, is borne out by other fragments of evidence. The gild began at once to keep a roll of subscribing members very similar to the earliest gild roll at Leicester, which dates from 1196. A panel of burgesses at Northampton rehearsed the customary usages of that borough in 1190, shortly after the town received a charter from Richard I. From the middle of the thirteenth century the Anglo-Norman custumal of Exeter survives in an original text, and is indeed the earliest of the city’s records, the main series of which starts in 126419.

As the administrative records accumulated, however, it seems that custumals were not common amongst them. The largest single category of the texts enumerated by Mary Bateson, one-third of the whole, is of charters, and those predominantly to seignorial boroughs, which prescribe usages for new or emerging communities. Statements of customs from the larger towns begin rather towards the end of the thirteenth century, and increasingly are recorded in codices. The more striking they are in appearance, too, the later they are likely to be.

The proliferation of custumals in that period is to a certain extent a function of time. Written instruments were used more and more freely in the high Middle Ages, and the more numerous they were in any period the more likely they are to have survived. There are nevertheless reasons for thinking that a concentration of texts at that particular time has its own significance. Edward I (1272-1307) was an energetic and ambitious king. He returned from crusade in 1274, by way of Gascony, and busied himself at once with an inquiry into the condition of the kingdom which issued in the returns known as the Hundred [p. 313] Rolls, and subsequently in clauses of the Statute of Westminster I (1275), the first of the many enactments which characterized Edward’s reign20.

Later acts, such as the Statute of Mortmain (1279), and the statute known as Quia emptores (1290) made substantial changes in the laws touching lord and tenant, enfeoffment, and tenancy in chief. The consequences were far-reaching. Medieval society’s notion of itself as a compound of those who fought, those who prayed, and those who laboured had always been simplistic, but from Edward I’s reign at the latest the trinity had also to accommodate those who framed laws and those who interpreted and modified the law. The statutes were far from being royal decrees. They were complex texts in which the interests of the king and his tenants-in-chief, and even the concerns of other members of the political community were balanced by intensive debate and political and administrative compromise21. Their mere existence meant that copies of the statutes had to be prepared and widely circulated, and once in circulation they had to be kept up to date. Amongst others, town clerks and their employers had need of them.

The most searching of Edward’s inquiries was into the origin and exercise of franchises under the name of the writ Quo warranto22. It was an undertaking of debatable value to the crown, but it made a powerful impression on the king’s subjects. The towns were were minor actors and theoretically could plead their charters, though that would not avail them against a determined campaign23. On the whole the royal lawyers were in pursuit of bigger game, but nevertheless the time was one in which all who exercised authority were likely to look to their deeds of title, and if they had none, make shift to provide some. It was natural enough for towns to consider the customs that they used, or wished to be able to use, and which if they were genuinely ancient they had probably long taken for granted, and perhaps had never written down.

Such a concern might arise in various ways. At Ipswich the common clerk absconded in 1272, upon indictment, and took with him various rolls of pleas heard in the borough court and also the ancient roll called Domesday. The clerk, John Black, makes no other appearance in history, but he left his mark on the archives. He did not remove all the material in the common chest, and a subsequent ordinance forbidding the clerk to make alterations in the records [p. 314] suggests that he was chiefly concerned to remove evidence that might have been used against him if he had stayed. Whatsoever his motive the townsmen were left with a sense of loss, and a corresponding perception that their records were important. The episode, though unedifying, was not altogether negative in its effects.

The townsmen did not move immediately to repair their loss. From 1285 to 1291 the town was in the king’s hands, its courts conducted and its revenues administered by a royal officer, after the magistrates had failed to control a riotous assembly which insulted the king’s officers. When the liberties were restored by a new charter, however, a panel of twenty-four burgesses, “des plus sages et mieux avisez”, was appointed to reconstruct the customs and set them out in a new Domesday roll, which was to be authenticated by the common seal of the borough. The panel accordingly assembled a text of eighty-three chapters, of which fifty-two were concerned with the conduct of the courts, the rights of landlords and tenants, and the rules of inheritance in the borough, ten with the duties and privileges of the free burgess, and fifteen with the rules of hosting and the conduct of the market. Others concerned the officers, including the common clerk, who would always have the example of John Black before his eyes.

Black had not in fact emptied the muniment room, and there are indications in what he left behind him that when the customs were reconstructed they were not precisely the same as those of 1200, and included some reference to subsequent practice. The matter lies mainly in the number and kind of courts held in the borough, and in the volume of business which they discharged24. It would have been surprising if it had not been so, for the courts had developed over the century in response to demand, and if what is customary is good, it follows that what is good ought also to be customary. And then as good customs are necessarily ancient, new customs also become ancient by assimilation. The new Domesday roll, being constructed upon the best principles, could therefore fittingly take the place of the old.

Having recovered both its liberties and its ancient customs the town was now able to manage its own affairs again, with due circumspection. It seems that neither the constitution of the borough nor the Domesday roll itself lasted very long, but their association is instructive. Early in the fourteenth century the customs were copied in the form of a codex, and the occasion may have been a formal election in 1309 of the body of senior burgesses known as the portmen25. [p. 315] The care with which the manner of the election was set out seems to imply some sense of occasion, and perhaps therefore of novelty. There is no further reference to such a procedure in the town, though the portmen are mentioned particularly in 1200, and remained as an aldermanic bench until the final reform of municipal corporations in the nineteenth century.

The account of the election comes at the end of a volume in which the customs are set out with some ancillary material. Besides some precedents taken from the court rolls there are the rules of common porterage in the town, a list of payments contributory to the farm, lists of the knights’ fees in Suffolk of the honor of Lancaster, with notes of the tenants of Lancaster, Leicester, and Richmond, and then the election of portmen, with a note of the extent of the four leets or wards of the borough. The other additional material is directly relevant to the application of the customs, and mainly through the conduct of trade, and the regulation of access to the market. In that respect it represents only a modest enhancement of the contents of the Domesday roll.

The next copy of the customs, traditionally known in Ipswich as the Black Domesday, is fuller and more ambitious26. It can be approximately dated by the inclusion of two documents, one the charter granted to Ipswich by Edward II in 1318, and the other the unique copy of a set of ordinances made by the burgesses in 1320. The ordinances were framed to end a series of administrative abuses in the government of the town, and although they seem to have achieved their immediate purpose there is no further reference to them in the muniments. They were obviously the product of a long period of political excitement, and they were never again of such consequence as they were when they were made. They were not reproduced in the next copy of the custumal, the White Domesday, which was made not long after27. At the same time, however, the compiler of the Black Domesday gathered up his material not only from the earlier codex but from other sources. The most important single text is the account of the meetings at St Mary Tower in 1200, which is followed by the proceedings of an inquest into the status of forensic burgesses and then by the names of burgesses admitted to the freedom and the gild from the reign of John onwards. A note on the communal effort involved in making or recutting the town ditches in 1203 suggests that any fragment of evidence relating to the formal inauguration of the free borough at that time was turned to use. The volume is rounded off by a reference to the flight of John Black in 1272, a [p. 316] revision in 1274 of the rules governing the admission of forensic burgesses, and the names of such burgesses subsequently admitted.

There seems to be no doubt that British Library MS Add 25012 is the first, or at least the earliest surviving copy of the Domesday roll28. It is a small and unpretentious manuscript, devoid of ornament, and was presumably made as a precaution against further loss. Ironically the availability of additional copies of the customs resulted in the loss or abandonment of the Domesday roll itself, to which there is no further reference. The codex, however, flourished and multiplied. By the end of the Middle Ages there were at least six such copies of the customs and their associated material in use in the town.

As a work of reference a codex had many advantages over a roll, not least that its contents could be conveniently supplemented and extended. The townsmen seem to have been impressed by the innovation, but it was unfortunate in one respect, for the loss of the second Domesday roll seems to have followed hard upon it. However, the principle that historical material should be preserved and ingeminated was firmly established.

The Ipswich custumals have many interesting features, but one of the striking things about them is that there are comparatively few other series like them. That may be a result of losses elsewhere, but there seems, for example, to have been no duplication at Bristol of the substantial early fourteenth-century compilation known as the Little Red Book29. London produced a splendid set of volumes, one of which is called the Liber custumarum, which are not only on a uniquely grand scale, but represent a number of administrative initiatives spread over a long period of time30. In that respect they have some affinities with Ipswich, though the size of London, and the intensity and intricacy of its relations with the crown, make direct comparisons with the experience of other towns difficult.

There were, however, forces at work in all the towns from the thirteenth century onwards which left distinctive traces in the archives. One was simply, but significantly, the multiplication of written records. The habit of writing was long established, but by 1300 the accumulation of evidences was creating problems of its own, to which no perfect solution has yet been devised. Both London and Ipswich have early fourteenth-century indexes to their records. That from Ipswich consists now of a single membrane, later used as a wrapper, noting the distribution of court rolls between chests in the muniment room. It was drawn up in the early 1330s. In London there is an ambitious calendar of the Husting [p. 317] Rolls, a register of testaments proved and deeds of title registered in the Husting court. The earliest surviving husting roll dates from 1252, and the series increased greatly in bulk in the later years of the century. The calendar, which may have taken more than a year to compile, originally ran to 1313, and was then continued for another twenty years. It gives the names of testators, and of the parties to all the transactions recorded in the enrolled deeds, and must have aided substantially any search of the rolls for particular documents. Its immediate impact is marked by a change in the physical format of the rolls, which until that time are sewn chancery style, or head-to-tail, but thereafter in exchequer style, with the membranes tied or stitched at the head. The cumbrous handling of the chancery-style rolls, some of which are more than 25 metres long, must have impressed the indexers.

The calendar, with its early continuation and some refinements in the form of marginalia, was very probably the work of Andrew Horn, a citizen and fishmonger who served as chamberlain of the city from 1320 until his death in 1328. He is better known as the compiler of Liber Horn, a collection of charters, customs, and statutes which is the first of a series of such volumes in the corporation of London Record Office. Horn’s earliest interest in the records was probably political, in the early years of Edward II’s disturbed reign (1307-27), but if so it evidently soon became a matter of administrative concern, and then turned to the law, to precedents, and in a measure to history31. His work was copied and amplified, first in his own lifetime in the finely decorated volume of which two parts, the Liber legum antiquorum regum and the Statuta Anglie, are now bound out of sequence in the Liber custumarum32. Other copies and elaborations followed, in a series continued into the fifteenth century by the Liber albus, compiled for John Carpenter, common clerk of the city, in 1422, and the Liber Dunthorn, commissioned by his successor, William Dunthorn, fifty years later. Over that time individual clerks prepared more specialized collections, such as books of statutes, and the Liber de assisa panis, but customs were not distinguished amongst them. Collections of customs always attracted other material, as well they might in a changing world. Good and ancient customs were regularly invoked, and no-one spoke lightly of them, but current practice spoke for itself. In the meantime the marginal annotations of the working guides [p. 318] to the records of the husting court evolved into an alphabetical index : the first of many amongst the later records, but innovative in its time33.

The major custumals in London — and others elsewhere — have two striking characteristics. They contain a rich variety of material other than customs, and they are elaborately decorated. When customs are copied and recopied they are not left to stand alone, but their texts are preserved and presented with all ceremony.

The decoration — rubrication, illuminated and historiated initials, framing and marginal flourishes — reflects the taste of the age, but it also has a calculated effect. Some of the larger volumes, such as Liber Horn, may have been designed as couchers, that is to say intended for some measure of permanent display, but all are evidently made to impress the eye, whether or not the eye takes in, or is even able to read, the text.

The other materials associated with customs in municipal collections are commonly statutes, public instruments such as the writ Circumspecte agatis, records of sworn inquests, precedents, usually collected from the borough court rolls, and, occasionally, simple historical notes. Charters are less often collected, though the governing charter at any particular time may be inserted34. The practice of seeking inspeximus copies of previous charters in successive reigns, widespread amongst English towns, perhaps made cartulary copies seem redundant. On the other hand, charters themselves were frequently embellished with illumination at the recipients’ expense, to the same ends as the decoration of the custumals. A royal charter was evidence of authority bestowed by a sovereign act. Historical precedents had some of the same weight. Customs were matters of practice, legitimized by antiquity. They acquired a new status when they were written down, but they then took their place with other historical evidence, which all commanded respect.

The process is perhaps best documented at Ipswich. The townsmen showed an unusual determination to record their new dignity and their proceedings in 1200, and were then constrained to renew their testimony when the common clerk decamped. They said when they reconstituted the Domesday roll that the loss of the original had led to doubt and contention over procedures, but it seems that it was as much the text that they wished to replace as its details. The customs were the distinctive mark of the community, the rules of its own traditional way of working, and a pragmatic mixture of judicial and administrative precept and practice. Members of such communities were well able to keep such matters in their own heads, and could rehearse them at will. [p. 319] As time passed the customs were quite likely to be reduced to writing, though once they were it became more difficult to modify and adapt them than it had once been. They were then in danger of being venerated rather than observed, but from the late thirteenth century onwards that was their most likely fate. What was at issue was not a feat of memory, but an appropriate means of preserving the borough’s identity under the pressure of economic and political change.

The impulse to rehearse customs might vary from place to place. In Ipswich the arrival of the first charter was marked with elaborate formality, which included a recital of the customs which had brought the borough so far. The subsequent loss of the old Domesday roll was the occasion for a further round of copying without which all record of the events of 1200 might have disappeared. In the last decades of the thirteenth century, however, there was also Edward I to reckon with. The king’s use of parliament as a deliberative and legislative body, the concomitant growth of statute law, and the increasingly vigorous use of the common law, combined to reduce customs to the status of a talisman.

As a literal code the customs therefore stood alone for a comparatively short time. The borough could no longer, if ever it did, depend securely upon them to maintain its status ; there were new manifestations of authority and new rules to observe. At the same time the customs had their value in a broader context. They certainly circulated in Ipswich, where the three texts texts current in the 1320s, BL Add. MS 25012, and the Black and White Domesdays, were replicated by the middle of the century, with various additions, in at least two further copies. One of those, previously unrecorded, emerged from the remains of the Phillipps collection of manuscripts as recently as 1973. It was abstracted from the town before the eighteenth century, and then preserved by private collectors for the striking quality of its polychromatic illumination35.

All those are Anglo-Norman texts. The last medieval copy, now in the British Library, was made in the fifteenth century36. It not only contains an English version of the customs, but also rearranges the associated material with some slight sense of historical purpose. By that time the hierarchy of the [p. 320] borough courts was changing, and the town had an independent commission of the peace37. There is no reflection of those changes in the text, but there may be a perception that the antiquity which distinguishes the customs and other early evidences represents not only an earlier but a remoter phase of the borough’s existence. Such a view, if it were present, would still be far short of historical perspective as later ages have understood it, but it might mark a beginning.

What does emerge from custumals at large is that customs themselves are no sooner codified to take their place with the written laws of the kingdom than they take on an historical character. They justified and sometimes informed the workings of the borough courts, but unlike statute law and the accumulating body of precedents upon which the common lawyers drew, their form was fixed in the past. They were not automatically displaced by statutes38, and they were undoubtedly revised in some places, with varying degrees of ingenuity39. Their general interest has long been recognized ; they afford glimpses of a remote past, and they testify to the complexity of the medieval mercantile community. Contemporaries hardly saw them in that light, but in the respect which they afforded them, and especially in the manner in which they preserved them, they recognized, perhaps even against their will, that their customs had become historical in their own time.