Hi i-1 UNIVERSITY OF CALIFORNIA AT LOS ANGELES H MKiflK kB ||| 1 '' '.!t*4 Parliamentary Debates, Vol. 199, p. 259. EPPING FOREST. 141 with the Lords of Manors, and proceeded on the line of admitting their past inclosures, and allowing them to inclose the remainder of the Forest, on the con- dition of their consenting to set apart an allotment of it for the recreation of the public. It is difficult, with our subsequent experience, to believe that such a proposal could ever have been made to Parliament. It was, in fact, a measure for the inclosure of what remained of the Forest. Of the 3,000 acres still uninclosed, it provided that 2,000 should be given up to the Lords of Manors, free from the forestal rights of the Crown; that of the 1,000 remaining, 400 acres should be sold by Commissioners, to be appointed under the Act, for the purpose of compensating the Commoners for their rights over the whole, and that the residue of 600 acres only, or one-tenth of the present Forest, should be secured and appropriated for the recreation and enjoyment of the public. This proposal caused great dissatisfaction amongst those who were chiefly interested in the preservation of the Forest and other open spaces. It is, however, fair to record the fact that, even among members of the Commons Society, there was difference of opinion as to whether this measure should be resisted and rejected in toto, or whether it should be accepted as the basis of a compromise with the Lords of Manors, with the hope of improving upon it at a later stage. At a meeting of the Society held on July 23rd, 1870, within a few days after the introduction of the Bill by Mr. Ayrton, a long discussion took place upon it. Mr. U2 EPPING FOREST. John Stuart Mill thereupon moved a resolution that "the Society, considering the Bill introduced by the Government as in direct opposition to the principles for the assertion of which the Society was constituted, do resist it to the utmost." An amendment on this was moved by Mr. Andrew Johnston, then member for the county of Essex, " that the principle of the Bill may be held to be the assertion that some settlement is desir- able, and that therefore it is not desirable to oppose the Second Reading. " On a division the amendment was rejected by a single vote only. Mr. Fawcett accordingly gave notice to move the rejection of the Bill on the Second Reading. This determination of the Society to refuse the proposed compromise, and to oppose the Bill, led to its withdrawal by the Government. It was also found to be against the Standing Orders of Parliament to introduce such a Bill without notices. In the following session another effort was made to force the Government to take steps for the pre- servation of the Forest. Mr. Cowper Temple moved that it was expedient that measures should be adopted, in accordance with the address to the Crown of the previous year, for keeping open those parts of Epping Forest which had not been inclosed with the assent of the Crown, or by legal authority. The motion was opposed by the Chancellor of the Exchequer, Mr. Lowe, who urged that the Government had fairly performed their promises of the previous year by the proposals in Mr. Ayrton's Bill. He contended that this measure was one of conciliation, the result of negotiation with the EPPING FOREST. 143 Lords of Manors, and that under it the public would secure 600 acres, where now they had no legal rights whatever. He also argued against the Government expending the general taxpayers' money for the benefit of a purely Metropolitan improvement. He enforced this argument by offering to allow the Metropolitan Board to make whatever use that body might think expedient of the Crown rights, and saying that he was at a loss to know in what other way the Government could respond to the motion. In spite of this speech, the Government was defeated in the division by a majority of more than two to one 197 to 96 showing how strong was the feeling in the House that steps should be taken to save the Forest. In consequence of this hostile motion, Mr. Ayrton again tried his hand at legislation for Epping Forest. He now proposed a measure for the appointment of a Commission of enquiry into the condition of Epping Forest, and as to the respective rights of the Crown, of the Lords of Manors, and of the Commoners, with directions for the preparation of a scheme for the preservation of the open land of the Forest. This measure passed through Parliament without opposition. A week before it received the Eoyal assent, the Cor- poration of London commenced its great suit against the Lords of the Manors and other inclosers of the Forest. In the following year an attempt was made to get rid of the Corporation suit. It was found necessary to amend the Epping Forest Act, and it was proposed in the Bill for this purpose to stay all the legal proceedings 144 EPPING FOREST. in the various suits affecting the Forest, pending the Report of the Commission. Strong objection, however, was taken to this, so far as the Corporation suit was concerned, and finally an exception was made of this suit, on the ground that it might materially assist the Commission, if the legal issues in the case were heard and determined by a competent legal tribunal . Thus it happened that two great inquiries as to Epping Forest were started and proceeded with at the same time the one before the Courts of Law, in which the validity of the past inclosures was at issue, and the rights of the Commoners were to be decided ; the other before a Royal Commission. Being at the time a member of the then Government I was unable to take part in the above discussions in Parliament. I had ceased also for a time to be Chairman of the Commons Society, but I continued to attend its meetings, and took a part in guiding its general policy and action. In the discussions on Epping Forest I was not in favour of the attempt to urge the Government into proceedings for the enforcement of the Crown's forestal rights. I believed the legal difficulties opposed to such a course were very great, especially in view of the fact that the deer had been killed down, and that more than half the Forest had been already freed from the Crown's rights. I considered that by far the most promising line of action, for the abatement of inclosures and the preservation of the Forest, was through the medium of the Commoners and by enforcing their rights in the EPPING FOREST. 145 Courts of law. I was personally much opposed to the course of bringing pressure upon the Grovernment, until the issues in the great Corporation suit should be heard and determined by a judicial tribunal. I rather feared the effect of a compromise at an earlier stage. The sequel has shown that I was justified in my view of the posi- tion. It cannot now be doubted that the main, if not the sole, cause of success in saving the Forest was the decision of the Master of the Rolls defining the legal posi- tion of the Commoners, and giving an injunction against inclosure by the Lords of Manors. On the other hand, the Report of the Royal Commission was not without value in determining the scheme, which was ultimately applied to the Forest. Pending the report, the Forest Court of Attachments was revived, and verderers were appointed. For nearly three years the two inquiries went on pari passu ; witnesses were examined and cross-examined before the Royal Commission, and made affidavits in the Chancery suit. The composition of the Royal Commission was not such as to inspire much confidence in their conclusions, so far as the public interests were concerned. Strange to say, the Lords of Manors were equally animated with distrust of the Commission, and desired to have a legal decision as to their rights. The Corporation not very wisely, as it seemed, offered to suspend the proceedings in their suit, and to take the decision of the Commission. The Lords of Manors refused this offer with something approaching contempt, and insisted upon the suit being tried out in the Law K 146 EPPING FOREST. Courts. The Commission therefore withheld their report pending the decision in the Eolls Court. Finally, on the 24th of July, 1874, exactly three years from the commencement of the suit, after a most protracted inquiry into the history of the Forest, and of the several Manors within it, and into the rights of the Commoners, involving a stupendous amount of evidence, the Master of the Eolls, Sir George Jessel, gave judgment. The arguments occupied twenty-three days, and the ablest men of the Bar were engaged on either side; but on the conclusion of the Defendants' case, Sir George Jessel, without calling upon the Corporation to reply, or taking time for consideration, and speaking without a note, summed up the case in a masterly manner,* and, in a most elaborate judgment, affirmed the case of the Corporation on all its main points of contention, and granted an injunction against the Lords of Manors, prohibiting them from inclosing in the future, and requiring them to remove all the fences erected within twenty years before the commencement of the suit. The Lords of Manors had contended for two main * Sir George Jessel, when at the Bar, had held a brief for some of the Defendants in the early stages of the proceedings, and had argued their case on the demurrer. But at the request of all the parties to the suit, he agreed to hear it. In the course of the trial he said: "I objected to hear this case because I had a prejudice against the Plaintiffs' case, and I told them so in Chambers. I had been Counsel for the Defendants, not on the merits. In the first instance I declined to hear it on that ground ; but it was very much pressed upon me, and I was told that it could not be heard at all unless I consented, and therefore I reluctantly consented." EPPING FOREST. 147 propositions the one that the Manors within the Forest were independent of one another, and that there was no general right on the part of the Commoners to turn their cattle on to the whole of the waste of the Forest ; the other that the lords had, by custom or otherwise, the right of inclosing. The evidence on either side in this great case included all the documents connected with the Forest and its Manors from the earliest of times, and an immense amount of testimony showing the practice of recent years. Sir Greorge Jessel decided against the lords on both points. On the question of costs he said, " If I am right in the view I have taken of the law, the Lords of Manors have taken other persons' property without their consent and have appropriated it to their own use. They will retain under the proposed decree, of land covered with houses and of land inclosed more than twenty years ago, considerable portions of the property which they have illegally acquired. It does not appear to me that litigants in this position are entitled to any consideration as to costs. But I go further ; as regards the bulk of the Defendants, they have been parties in a litigation, in which they have endeavoured to support their title by a vast bulk of false evidence. Considering that this evidence must be wholly discredited, I cannot make them otherwise than responsible for the acts of their agents who got up that evidence without sufficient care, and, I think, should have avoided raising the issues on which they fail, if they had exercised more diligence and more discretion."* * Glasse v. Commissioners of Sewers, L.R. 19 Eq., 137. K 2 148 EPPING FOREST. A few months later, in March, 1875, the Eoyal Commission on Epping Forest also made their first report, and having waited for the decision of Sir George Jessel, they came to the same conclusions as that great judge, as to the legal position of the Commoners and the illegality of the acts of the Lords of Manors. They had sat for 102 days, had examined 239 witnesses, and had collected together a vast number of documents bearing on the Forest. They found that the inclosures made within twenty years before the passing of the Epping Forest Act were unlawful against the Crown where the forestal rights had not been released, and were unlawful against the Commoners 'where the forestal rights had been released. They stated that the wastes of the Forest consisted of 6,021 acres, of which 3,006 acres had been unlawfully inclosed. They found that the inhabitants of Loughton had, from time immemorial, exercised the right of lopping the trees for firewood in that parish during the winter months, and they expressed their opinion that this right was valid at law. They also stated that although the public had been in the habit of using the Forest without objection on the part of the Crown or of the Lords of Manors, the}' were unable to say that a legal right had been acquired by such user. In 1877 the Commission made their final report. In this they recommended the disafforesting of the Forest, and the preservation and management of the waste land, still uninclosed, as an open space for re- creation. With regard to land which had already been EPPIKG FOREST. 149 wrongfully inclosed by the Lords of Manors, and had been sold or given to other persons, the Commission made the extraordinary proposal that these persons should be quieted in possession of the land thus stolen from the Forest, but that they should be required to pay certain rent-charges towards the fund for managing the remainder of the Forest, which was to be kept open. The effect of this proposal would have been to diminish the area of the Forest by 700 acres, dispersed about, and greatly to interfere with its general aspect and beauty. This project gave general dissatisfaction, and as there was reason to fear that the Government, in framing their measure for dealing with the Forest, would act upon it, and would not insist upon the abatement of these inclosures, the Commons Society took early steps to prevent this objectionable part of the scheme being carried into effect. They organised a deputation to the First Commissioner of Works, introduced by the writer, which protested in the strongest manner against the proposal. They indicated their intention to oppose the "whole scheme, if this arrangement should form part of it. They also urged the Corporation of London to resist it. Their view was further supported by the action of Mr. George Burney, an active member of the Society, who was' also a landowner and Commoner in the Forest. He determined, without waiting for the decision of the Government, to take matters into his own hands. With the aid of a large body of men, he forcibly removed the fences from many of the inclosures. 150 EPPING FOREST. The consequent litigation involved him in heavy law expenses, for it was held by Sir George Jessel that his action, in pulling down the fences, was a proceeding- which was contrary to the terms of the Epping Forest Act of 1871, and therefore (for the time being) illegal, though it was quite clear that in other times he would have acted legally in removing the fences. A considerable part of these expenses, however, was ultimately repaid to Mr. Burney by the Corporation, on the ground that his action had an important influence in inducing the Government to disregard the recommendations of the Commission on this point. Certainly the Corporation was not averse to having the hands of Government forced. In 1878, Sir H. Selwin-Ibbetson (now Lord Eook- wood), on behalf of Lord Beaconsfield's Government, introduced and carried a measure for the final settle- ment of Epping Forest. The position had been some- what simplified by the fact that the Corporation of London had, in the interval since the determination of their suit, bought up the interests of the Lords of Manors over a considerable part of the Forest in all amounting to about 3,000 acres. They gave an average of about 20 per acre a very small sum in proportion to the value of the land, if the Lords of Manors had been able to inclose, but a large sum in proportion to the interests of the lords on the assumption, now determined to be the case, that they could not inclose. In fact, the purchase of the lords' interests was scarcely necessary, though it facilitated somewhat the settlement of the question, and was probably justified in the view of EPPING FOREST. 151 the Corporation, mainly because it secured to them the management of the Forest. The scheme, sanctioned by the Government measure, vested in the Corporation of London the future control and management of Epping Forest ; it directed that the Forest should remain open and uninclosed, for all time to come, for the enjoyment and recreation of the people. It put an end to the Crown rights, to the Forest Courts and officers, and to any burthensome customs or Forest Laws. It directed that all the illegally inclosed land that is, land inclosed within twenty years before the commencement of the Corpora- tion suit whether in the hands of the Lords of Manors or their grantees, should be restored to the Forest, except so much of it as, on the 14th of August, 1871, was already built upon, or was used as gardens and cur- tilages for such houses. The Corporation were required to purchase such of the wastes of the Forest as lay open, or would be thrown open, and which had not already been acquired by them. They were directed to keep the Forest unbuilt upon, and to protect and manage it. Queen Elizabeth's Lodge was made over to them, and any deer existing in the Forest were also transferred to them. The Queen was empowered to appoint a Banger, in whom certain formal duties were to be vested, such as the issue of bye-laws for the police of the Forest. An Arbitrator, Lord Hobhouse, was appointed, with power to decide many questions left unsettled by the Act. He was to determine what land should be thrown back 152 EPPINQ FOREST. into the Forest, what land was to remain attached as gardens and curtilages to houses erected before the specified time, and what rent-charge should be paid by the owners of such houses and curtilages towards the funds of the Conservators, in acknowledgment of their illegal inclosures. The Act provided that all rights of lopping the trees for firewood were to cease in the future. The Arbitrator was directed to assess the value of wood assignments which was to be paid by the Conservators. The Act preserved the other rights of the Commoners, but gave power to the Conservators to regulate such rights. It provided that in the future the four Verderers were to be elected every seven years by the registered Commoners, and that the}'' were to be associated with a Committee of the Corporation in the future manage- ment of the Forest. With respect to the customary right of the inhabit- ants of Loughton to lop the trees in the Forest during the winter months for firewood, the measure, as first proposed, contained no power for awarding compensa- tion. It simply declared such lopping to be illegal in the future. I endeavoured to rectify this omission by moving in Committee on the Bill, in the House of Commons, a clause admitting the validity of the custom, and directing the Arbitrator to assess the value of it in compensation to the inhabitants of Loughton. The Corporation of London very unfairly, as I thought opposed this, and were most unwilling to recognise the right or custom in any way, in spite of the fact that so great an advantage had been derived ErPING FOREST. 153 from the preliminary suit on behalf of this custom by Willingale. The utmost I succeeded in effecting for the Loughton people was the insertion of a clause directing the Arbitrator to inquire into the custom, and, if satisfied of its validity, to award compensation for it, in such manner as he might think fit. Apart from this, the measure passed through Parlia- ment with little or no amendment. The duties of the arbitrator, Lord Hobhouse, proved to be most laborious ; they lasted over four years. On the 24th of July, 1882, he signed his final award, including a map of what was thenceforward to constitute Epping Forest. During the interval he held 114 public and many private meetings, and settled innumerable cases of dispute as to boundaries and compensation. He directed the payment of the sum of 13,000 for the fuel assignments in the Manors of Waltham and Sewardstone. With reference to the Loughton lopping custom, the claims of the inhabitants were strongly resisted by the Corporation. Having regard to the past interest taken by the Commons Society in this right or user, and to the important effect of the litigation on behalf of Willingale, I was determined that every effort should be made to maintain it, and to defeat the Corporation in what I considered their unworthy attempts to defeat the claim. When the 10th of November arrived, in the year 1879, the midnight of which by the Act was to be the last occasion on which the old custom of perambulating the Forest and lopping the trees would take place, I 154 EPPING FOREST. went down to Loughton, with Mr. Burney, as represen- tatives of the Society, and joined in the demonstration. The whole population of the district turned out at midnight to the number of 5,000 to 6,000. They perambulated the Manor by torchlight, and then held a meeting previous to commencing the lopping. I addressed this midnight meeting in the Forest, and in- formed the people that it would be the last occasion on which such lopping would be permissible by law. I explained their position to them, and the effect of the Epping Forest Act. I said that Counsel had been instructed by the Commons Society to argue their claims before the Arbitrator, and expressed the utmost confi- dence that the decision would be in their favour. On the hearing of the case before Lord Hobhouse, the Corporation appeared also by Counsel, and did their best to resist the claim of the Loughton people, arguing, as Mr. Maitland had done, that such a custom could not be enjoyed by so uncertain a body as the inhabit- ants of a parish, and that they could not prescribe for a right of a profitable character. Lord Hobhouse in his decision brushed away these miserable technicalities. He held that, in view of the evidence that the people had in fact, from time immemorial, enjoyed and exercised this right, he was justified in admitting it, and indeed was bound to find a legal origin for it. " The oral evidence/' he said, "appears to me to establish the following propositions : That in point of fact the practice has been for the inhabitants of houses to lop trees on the waste ; that the lopping is limited to begin at a given instant of time, EPPING FOREST. 155 and to end at a given instant of time ; that it is limited also in point of space, inasmuch as two portions of the waste Monk's Wood and Loughton Rise are not subject to it; that it is further limited by the obligation to leave uncut all branches within a certain height from the ground, so as to afford cover and browse for the deer, and also to leave the spears or maiden trees ; that persons occupying the positions of Head Keeper of the Forest, Purlieu Keeper, Woodward, and Bailiff of the Manors have attended and watched the operations ; that these operations have never been interfered with in any effectual way ; and that if attempts have been made by foresters or others to restrict it, they have been very few, and have been entirely set at naught. The evidence on these points, stating what the old witnesses say of their own knowledge, and what they must in their boyhood have heard their grandfathers say, must go back for at least 100 years. . . . Now it seems to me impossible to say that a well-defined, orderly, methodical, long-continued, recog- nised enjoyment, such as I have described, can have grown up at haphazard. It was calculated to injure both the Crown and the Lord of the Manor, and I cannot doubt that it would have been excluded from Loughton, as it was from Chigwell or Woodford, just over the borders, if it could have been rightfully excluded. ... It must have had some foundation of a formal kind ; and it is the duty of the lawyer to find a legal origin for it, if such can be found. I might quote many authorities to this effect, but I can quote none stronger than the language used by the Master of the Rolls (Sir George Jessel), in the suit which established the right of forestal commonage. He says, ( Where user has been proved of a right for sixty years that is not con- tradicted by anything else, the law presumes a gi-ant. . . 1 am not at liberty to guess whether it is probable or improbable that there was such a grant. . . . T understand Lord Mans- field to say he would presume an Act of Parliament. I do not think I am at liberty to guess whether it is probable or improb- able there was a grant/ Iu plain English, this presumption of grants is a legal fiction resorted to for the purposes of justice." 156 EPPING FOREST. After discussing at length the legal authorities on the subject, he said, " Epping Forest is one of the ancient forests whose origin is lost in obscurity. All we know is that it was a Koyal Forest in the time of Edward the Confessor, when the Crown was also Lord of the Manor of Lough ton. If, therefore, the grant we are seeking for was made by Edward the Confessor or by one of his predecessors, it would surely have antiquity enough to satisfy these authorities. " If therefore the phenomena are such that they cannot be reasonably explained otherwise than by a long-standing belief and tradition among the inhabitants, I think that the strict rules of law warrant me in rinding a legal origin for their prac- tice by presuming either a grant of such antiquity as to be prior to the rule of law which requires incorporation, or a grant which effected corj^oration for the purpose of securing its due enjoy- ment/'' Lord Hobhouse consequently awarded to the inhabitants of Loughton the sum of 7,000 in compensation for their rights. He was good enough to consult me as to how he should appropriate this fund, and at my suggestion he directed 1,000 to be paid to those of the cottagers who had actually exercised the right and derived profit from it, and the residue to be expended in building a village hall at Loughton, to be used as a reading-room and a place of meeting for the inhabitants, and to be called the Loppers' Hall. It may be worth while to mention the sequel of this award. The day came, some two years later, when the foundation-stone of this village hall was to be laid, and it was made the occasion of a popular demonstra- tion at Loughton. With singular infelicity, the local managers responsible for it invited the Lord Mayor of ETPING FOREST. 157 London to perform this ceremony, unmindful of the fact that the Corporation of London had done their very utmost to defeat the claim of the inhabitants to any compensation for their rights. The Lord Mayor drove down in state to Loughton. The proceedings were there opened with a prayer by Mr. Maitland, the rector of the parish, and Lord of the Manor, who had also done his utmost to inclose the whole of the waste of his Manor, and to defeat the claim of the inhabitants of Loughton, and who had caused the imprisonment of Willingale and his sons for endeavour- ing to exercise them ! There were those who were of opinion that a white sheet would have been the most appropriate garment for the rector on the occasion ! The local managers had at least the good taste not to invite any members of the Commons Society to take part in the proceedings in such company. It was with some difficulty that the Corporation of London was later induced to give to the widow of old Willingale the paltry pension of five shillings a week. His son has kept up the tradition of the family, by maintaining the cause of the smaller occupiers of land to rights of common over the Forest, which the Corporation are now disposed to dispute and deny. Apart from this, all questions affecting the Forest have been set at rest. The Forest was thrown open to the public by the Queen in person, at High Beech, in the presence of a great assemblage of persons, on May Gth, 1882. Restitution was thus in a sense made by the Sovereign, of land which in very ancient times had 158 EPPING FOREST. probably been taken from the folk-land for the purpose of a Royal Forest, and the Forest was dedicated for ever to the use and enjoyment of the public. It has been stated that the total cost of the proceedings of the Corporation, in vindication of their rights, in the purchase of the interests of the Lords of Manors, and in the extinction of the rights of lopping and other rights held to be detrimental to the Forest, was about 240,000. Of this, 33,000 was spent in litigation, and in the expenses incurred in Parliamentary Com- mittees and before the Epping Forest Commission. There was recovered as costs from the Lords of Manors the sum of 4,000, which, it is understood, represented but a fraction of the real outlay. The amount thus paid for the purchase of the rights of the Lords of Manors was an unnecessary expenditure. There was no reason why those rights should not have been allowed to exist, subject to proper regulations. The whole of the outlay was provided for out of the metage of grain duty, which was specially con- tinued and appropriated by Parliament for such purposes, and not out of the general funds of the Corporation. Out of the same fund there was paid the sum of 8,000, the balance due on the purchase by the Corporation of Wanstead Park, formerly the resi- dence of Lord Mornington, with 184 acres of land, a most valuable addition to the Forest. Some outlying portions of the Forest, of little importance to it, but of great value for building purposes, were given in exchange for the Park. This Park had in 1545 been inclosed EPPIXG FOREST. 159 from the Forest. It contains some beautiful lakes and a heronry. They also purchased, and added to the Forest, Highams Park, consisting of thirty acres, at a cost of 6,000, as well as a few small inclosures essential to the Forest. Though I have had occasion to criticise the proceed- ings of the Corporation in some particulars, they cannot be too warmly commended for their spirited action in stepping forward as champions of the rights of the Commoners, and in freely spending the funds entrusted to them by conferring upon London a pleasure ground of exceptional size and beauty, and of rare historic interest. Their conduct stands in striking contrast to that of the late Metropolitan Board of Works, a body which never stirred a finger to fight the battle of the public, but, on the contrary, on many occasions embarrassed the efforts of those engaged in the contest, by offering money to Lords of Manors, and by indicating very plainly that its sympathy was rather with them, than with the Commoners and the public. Amongst those in the ranks of the Corporation who exerted them- selves most actively to preserve the Forest for the public, should be mentioned Mr. Deputy Bedford, who was the first chairman of the Epping Forest Committee ; and the late Sir Thomas Nelson, the City Solicitor, who mainly guided the policy of the Corporation in its later stages. It should also be mentioned that the late Mr. Justice Manisty, then at the Bar, powerfully contributed to the complete success of the Commoners in the 160 EPPING FOREST. proceedings before the Epping Forest Commission, and in the great suit, by the conspicuous tact and ability and untiring care with which, in the position throughout of leading Counsel, he conducted the case. The late Mr. W. E. Fisher acted also most ably throughout as Junior, and has left a valuable and exhaustive treatise on the Forest of Essex, as a lasting memorial of his connection with the case, and to which I have been largely indebted in my short account of the history of the Forest. None of the above, however, would have been able to achieve success if it had not been for the great experience in such cases of Mr. Robert Hunter, and the extraordinary care and ability with which he collected and sifted all the facts and evidence relating to the Commoners from the earliest times, by means of which their rights over the Forest were finally vindicated in so complete a manner, and the greatest of all the Commons suits was brought to a successful conclusion. It may be confidently affirmed that never in the past experience of the Law Courts was there a de- cision by which upwards of 400 persons were compelled to disgorge 3,000 acres of land wrongfully inclosed, and by which there was secured for ever an area of double the size for the enjoyment for all time to come of the people of London. 161 CHAPTEE IX. Ashdown Forest and Malvern Hills. Another very important case in the South of England, but beyond the limits of London, was that of Ashdown Forest in Sussex. This ancient Chase is undoubtedly one of the remain- ing part of the great Forest of Anderida, which in very early times covered a large part of Kent, Sussex, Surrey, and Hampshire, extending from the Romney Marshes nearly to Portsmouth, and comprising the greater part of the district known as the Weald. In the time of Edward III., 1372, so much of it as then remained forest, consisting of about 14,000 acres, and lying between Tunbridge Wells and East Grinstead, was granted by the name of the Free Chase of Ashdown, together with the Castle of Pevensey, to John of Gaunt, Duke of Lancaster, and thenceforth, till after the Restoration, was attached to the Duchy of Lancaster. In 1560, the Mastership of the Forest, together with the keepership of the "wild beasts" therein, was granted to Sir Richard Sackville, the ancestor, through the Dukes of Dorset, of the present Earl De la Warr, and the owner of several Manors in the neighbourhood of the Forest, including that of Buckhurst. This was the first connection of the family with the Forest. Shortly after the accession of Charles I., the Earl of L 162 ASHDOWN FOREST. Dorset and his son, Lord Buckhurst, were appointed Keepers of the Forest in succession for their lives. The Earl took the side of the King in his struggle with the Parliament, and his office of Keeper of the Chase, together with other privileges which he enjoyed in the Forest, were forfeited to the Commonwealth. In 1650, a careful survey of the Forest, under the name of the Great Park of Lancaster, was made by order of the Commonwealth, on behalf of the trustees for the sale of the Crown rights. The surveyors on this occasion reported that, according to the usual rate of the pasturage, there was a surplus of forest, and that part should be allotted to the Commoners, and part appropriated by the State. This suggestion appears to have been adopted by the Commonwealth, for in 1658 a further survey was made, under which the Forest was allotted between the State and the Commoners, each parish extending into the Forest having a Common Allotment set apart for it, based upon the number of cattle turned out in respect of lands situated within it and conferring a right, the rate of allotment being one acre and a half for every head of cattle. The scheme of allotment, however, was not completed at the time of the restoration of the monarchy, when all the proceedings by the Common- wealth respecting the Forest were annulled. After the Restoration, in 1660, a grant was again made by Charles II., under the Great Seal, of the Keepership of the Chase to the Earl of Dorset and his son, Lord Buckhurst, for their successive lives. The Earl was ASHDOWN FOREST. 163 not satisfied with this, but desired to have an absolute grant of the Forest. The Earl of Bristol, however, had the greater influence at Court, and obtained a lease of it for ninety-nine years, together with the Manor of Duddleswell and the Honor of Aquila. In the lease then given, the King granted and declared the dis- afforesting of the Forest and Chase, and the disparting of the park and all woods, grounds, etc., within the limits thereof ; and as a result of this the disafforesting of Ashdown took place. Leave was also given to the Earl of Bristol to plough up, divide, and inclose the Forest, and to allot to such persons as had rights of common and other rights, privileges and profits in it, parts of the soil in recompense and satisfaction of their rights, all such allotments to be confirmed by decree of the Court of the Duchy of Lancaster. There was also a grant of warren in the Forest to Lord Bristol, and a rent was reserved of 200 a year. Lord Bristol thereupon began to inclose under this lease. The Commoners strenuously resisted, and litiga- tion followed. A suit was commenced by Lord Bristol against the Commoners, but was not heard, probably owing to the forfeiture of the lease of the former. About the same time the dispute between Lord Dorset and Lord Bristol was settled by a renunciation by the former of his interest as Keeper of the Forest, on payment to him of 100 a year for ninety-nine years. Shortly after this, Lord Bristol failed to pay his rent to the Duchy, and consequently his lease was for- feited; and in 1673 a fresh lease was granted to l 2 164 ASHDOWN FOREST. trustees for the children of Colonel Washington. The rent reserved was purely nominal, and we must presume that a considerable sum of money was paid for the lease. There was a covenant by the Duchy for the further and more effectual division and allotment of the Forest among the Commoners and the Grantees. The Trustees, finding themselves unable to make a profit out of the Forest, assigned their interest in the lease to Sir Thomas Williams, a gentleman who was described as a Doctor of Medicine, but who was probably one of the class of speculators in Crown grants of waste lands, with a view to inclosure, a speculation not uncommon in those times. He further secured the reversion of the Forest to hold in fee, at a fee-farm rent of 100 a year. Having effected this, he inclosed 500 acres of the Forest for the benefit apparently of Lord Dorset. Lord Dorset also about this time obtained a grant from the Crown of the fee-farm rent payable by Sir Thomas Williams. Sir Thomas Williams then proceeded with his en- deavours to inclose the Forest. Various proposals were made, but the Commoners still objected; and in 1689 Sir Thomas Williams commenced a suit, on behalf of him- self and Lord Dorset, against the Commoners, 144 in number, praying that he might be quieted in the possession of the inclosures he had already made, and protected in further inclosures of the Forest, and that the Defendants, if they proved that they were entitled to any common rights, might have a proportion of the land allotted to them for the exercise of their rights, so that the improvement of the Forest might be ASHBOWN FOREST. 165 proceeded with. The Commoners made a joint purse to defend themselves against this aggression. The suit came on for hearing, in 1691, in the Court of the Duchy of Lancaster before the Chancellor and the Council, assisted by Sir John Holt and Sir John Turton, Judges of the Court of Exchequer. The Court held that it was fully satisfied that there was sufficient common left uninclosed, of which parts might be approved, still leaving a sufficiency for the Commoners, and they directed that a Commission should issue to set out for the Defendants sufficient common, according to their respective rights, and in convenient places. In 1693, the Commissioners made their return to the Duchy Court. They stated that they had agreed that 6,400 acres of the Forest would provide suf- ficient pasture and herbage for the Defendants, the Commoners, and others claiming common in the Forest, "so as they should enjoy the sole pasturage thereof, and the Plaintiffs, owners and proprietors of the soil, be excluded from all rights of pasturage either for sheep, horses, or cattle." The}' further stated that they had laid out the 6,400 acres in the most con- venient places, contiguous and adjacent to all the several vills, towns, and farms, lying round the Forest, to which common rights attached. They had also left "the shares and proportions of the Crown grantees allotted for inclosure in several parts and parcels, and distinguished and divided them from the Defendants' and Commoners' parts set out for common, by metes, marks, and boundaries." 166 ASEDOWN FOREST. On this report, the Council of the Duchy, by the advice of Sir John Turton and Sir John Powell, made a decree in accordance with it. Under these arrange- ments about 7, COO acres of the Forest were inclosed, or if already inclosed, were quieted in possession ; and the residue, 6,400 acres, was declared to be set apart for the rights of the Commoners. Soon after the decree of 1693, the interest of Sir Thomas Williams in what remained of the Forest was divided between three persons Staples, Holland, and Lechmere and passed from them through various hands, until Lord Dorset bought them out in 1730, and became possessed of whatever rights remained in the Crown grantees over the Forest. During the interval, the Forest appears to have been largely denuded of its trees, for when Lord Dorset purchased, the timber was valued at no more than 210. The Dorset family having thus become possessed of the Crown rights and of the Manor of Duddleswell, commenced a series of acts, which have been continued down to very recent times, for the purpose of curtailing- and getting rid of the rights of the Commoners. With this object persons were warned not to cut turf or to trespass on the Forest. In 1795, the then Duke of Dorset submitted a case to Mr. Serjeant Hill, in which it was stated "The farmers adjoining the Forest, many of whom are Copyholders of the Manor, and as such have right of Common- age, as well as many others who are not Copyholders and have no such right, have for many years past made a practice of ASHDOWN FOREST. 167 committing depredations upon the Forest by cutting and carrying away the heath to the amount of many thousands of loads in the course of a year, by means of which the herbage is not only destroyed, and the tenants who have rights of Commonage prejudiced, but the Lord of the Manor, who is entitled to the timber in the Forest, is much injured, inasmuch as the young oak trees, which may be coming up amongst the heath, are cut down by the scythe, and consequently no timber can ever grow where these cuttings take place. Independently of this injury, the black game which used to abound in this Forest, and which the Duke is extremely desirous of preserving, are by this practice almost extirpated. His grace is therefore determined to put a stop to it if it is possible to do so/' Mr. Serjeant Hill does not appear to have favoured the Duke's view, for he gave as his opinion " that if the Commoners had been accustomed to cut heath for estovers as long as any living witnesses could remember, they could not be restrained from doing so." Later, in spite of this opinion, a notice was issued forbidding altogether the cutting of litter within the Forest. The taking of turf, peat, and stone was also prohibited, with certain exceptions in favour of the poor of the adjoining parishes. From thenceforward these questions were perpetually in dispute between the Dukes of Dorset and their successors in their property the Earls De la Warr and the Commoners of the Forest. These Commoners were not a class of small owners and occupiers of land, as in many other cases, little able to oppose a powerful and wealthy Lord of the Manor. They contained in their ranks many of the principal landowners of that part of Sussex Lord 168 ASHDOWN FOREST. Sheffield, Lord Henniker, Sir John Shelley, Lord Colchester, Sir Spencer Maryon Wilson,* Mr. Freshfield, and others. These gentlemen and others formed a Com- mittee to resist the aggression, and finally, in 1867, the dispute culminated in a suit by Lord De la Warr against Mr. Bernard Hale, one of the Commoners, to restrain them from cutting heath and brake in the Forest for use as litter, and subsequently as manure on their farms j and in a cross suit, by Mr. Hale and others, on behalf of the Commoners, praying for a declaration of their rights, and for an injunction against Lord De la Warr to restrain him from inter- fering with their rights and inclosing any part of the Forest. The case turned mainly on the right to cut litter from the Forest, and in support of this, several ancient surveys were relied upon, and evidence was given of user in the past by numerous witnesses of great age. The case came on before Vice- Chancellor Eacon in 1880, and was argued for the Plaintiff by Sir Henry Jackson and Mr. Elton, and for the Defendants, the Commoners, by Mr. Joshua Williams, Sir William Harcourt, and Mr. (now Sir) E. E. Webster. The Vice- Chancellor ultimately decided in favour of Lord De la Warr. "At no j>eriod of the history of the Forest," he said, " is there to be found a trace of * It is to be observed that Sir Spencer Maryon Wilson, who was so ready to inclose at Hampstead, where he was Lord of the Manor, had in his time been a Commoner of Ashdown Forest, and his nephew took an active part in preserving it. ASHDOWN FOREST. 169 the claims of right of the Commoners to cut and carry away pasture or herbage, or brakes, heather, or litter. On the contrary, there is more than negative evidence that no such right was ever claimed or law- fully exercised. There is no ground on which I can hold that at any time there existed within the Forest, of Ashdown a special custom conferring a right on the Commoners to cut and carry any part of the growth of the soil." Neither would he admit that the long-continued user of cutting heather, by the Defendants, constituted any right by prescription on their part. The Commoners appealed against this decision, and on February 5th, 1881, the Lords Justices Brett, James, and Cotton overruled Sir James Bacon on the point of the user by the Defendants of cutting heather for their litter. " In my opinion," said Lord Justice James, " the Defendants have proved that for a period of sixty years they have claimed to take, and have taken, not by way of permission, but as a right, the litter of the Forest for their farms. That is clearly within the Prescription Act. It appears to me that if we were to hold that it was not, we should be repealing that Act." On the other hand, the Court of Appeal held, upon the construction of the decree of the Duchy Court in 1693, which they regarded as in the nature of an approvement under the Statute of Merton, that the Commoners were not to have any new common nor any new rights in the herbage or pasturage, but that they were to have the enjoyment, as under the old right, of common of pasture, exclusive of the Lord of the Manor, sole 170 MALVERN HILLS. as against the lord, but common as between them- selves, and that the lord was to be excluded from having any right of common. " I am of opinion," said Lord Justice James, " that we cannot enlarge the words of their decree so as to include the right to take litter." This victory, although on one line only of the defence, was decisive. Litter-cutting had been universal with the Commoners; and Lord De la Warr subse- quently consented to a decree declaring the right to exist in all the Commoners entitled to pasturage. Subsequently the Commoners' Committee obtained a Provisional Order for the regulation of the Forest, under the Commons Act, 1876, and it is now managed and protected by a representative body of Commoners. If the judgment of the Court of Appeal had been in favour of Lord De la Warr, there can be little doubt that he would have been ultimately able to force the Commoners to inclose ; as it is, the Commoners' rights have saved the Forest, which is an exceedingly beautiful and valuable open space.* MALVERN HILLS. A very similar case to Ashdown Forest was that of the Malvern Hills. This range of Hills, which adds so much to the attraction of Malvern, consists of about 6,000 acres of open land, subject to common rights. The Hills were originally subject to Forest Laws, and with the adjoining lands were known as the " Foreste de * The litigation in this case, which was very heavy, was con- ducted by Mr. Hunter, in conjunction with Mr. Raper of Battle. MALVERN HILLS. 171 Malverne." The Forest was on the same footing as that of Epping, in the sense that the waste or common lands were claimed by the Lords of the thirteen Manors of the district, the Crown enjoying only forestal rights over them, and over the inclosed lands adjoining. The earliest reference to the Forest in extant docu- ments is a grant by Henry III., a.d. 1228, to the Monks of St. Mary of Malvern, of inclosures in the Forest. Edward I. granted the Forest to Gilbert de Clare, Earl of Gloucester, on marriage with his daughter Joan, where- upon the Forest became, technically speaking, a chase- The chase passed subsequently through the hands of the Despencer family and that of the Earl of "Warwick. It afterwards reverted to the Crown, and so remained till the reign of Charles I. Charles sold his interest in it to the Dutch engineer, Cornelius Vermuyden, with the understanding that it should be disafforested. The attempt to effect this gave rise to fierce disputes between the Grantee, the Commoners, and the Lords of Manors. For long the " countrie remained verie untractable," to use the language of one of the proceedings of the time. The outcome was that one-third of the waste lands was given to Vermuyden, in lieu of the forestal rights of the Crown, the other two-thirds being left to the Lords of the Manors and their Commoners, and to form the open Hills of the present day. It appears that the small holders of land, at the time of the disafforest- ing, attached great value to their rights over the Commons. In one of the many suits between the 172 MALVERN HILLS. Commoners and the Crown Surveyor, the order of the Court of Exchequer contained the following passage : " Forasmuch as the Court is nowe informed that the Comoninge in the said Chase concerneth tenne thousand poore people, and that the not havinge and enjoyinge thereof maye turne to their utter overthrowe and undoinge , therefore, it is now ordered by the Court that the said inhabitants and Commoners there shall be at libertie to take and receive such reasonable comon within the said Chase as they have been accustomed and of rights they ought to have" An Act of Parliament was passed in 1664 confirming the disafforesting. In recent years encroachments have been made on the Commons in various parts, not only by the Lords of Manors, but by outsiders and squatters ; and actions were from time to time successfully instituted against them. These acts culminated about the year 1878 in the erection of a building on the summit of the Worcestershire Beacon, the most prominent of the Malvern Hills. This was followed by a number of petty encroachments on other parts. There appeared to be danger of the permanent loss or disfigurement of the magnificent open space which these Hills afford. The matter was taken up with spirit by the inhabitants of Great Malvern. The Commons Society was consulted, and their solicitor was employed. Fortunately litigation was avoided, as the Messrs. Hornyold, who claimed as Lords of the Manor of that part of the Hills, and had let the summit to the person who had built on it, w T hen they became aware of the strong feeling of their neigh- bours, came forward and agreed to dedicate their rights MALVERN HILLS. 173 to the public, and to remove several fences and erections. In 1882, an inclosnre was attempted of one of the Commons, not part of the Hills, but adjoining them, and included in the limits of the old chase. An action was brought in the County Court of the district to abate this inclosure, by Mr. Henry Lakin, an old inhabitant of Malvern. The judge of the Court, Sir Rupert Kettle, an able lawyer, after long argument, recognised the old right of common over all the wastes of the ancient chase, without distinction of parish or manor boundaries, and ordered the fences to be removed. His judgment proceeded on the same lines as that of Sir Greorge Jessel in the Epping case. The decision greatly facilitated a general arrangement. The Malvern Committee, under the guidance of Mr. Edward Chance, and, after his untimely death, of Sir Edmund Lechmere, Bart., M.P., a large landowner in the neighbourhood, then negotiated with the Lords of Manors of the district, the Ecclesiastical Commissioners, and others. Ultimately the consent of all was obtained to a general settlement of the question, and to the regulation of all the Commons forming the Malvern Hills, under a special Act of Parliament passed in 1884. The Act places the control and management of the Hills under a body of Conservators, partly elected by the vestries of surrounding parishes, and partly nomi- nated by the Lords of Manors therein. This fine range therefore is safe from all future encroachments, and is free for the enjoyment of the public. 174 CHAPTER X. COULSDON, DaUTFORD, AND WlGLEY COMMONS. COULSDON. While the Epping Forest case was wending its slow course in the Law Courts, two other cases arose in respect of Commons of great importance to London, namely, the Coulsdon Commons and Dartford Heath. The Parish of Coulsdon, conterminous with the Manor, and lying between the Parishes of Croydon and Caterham, within easy reach of London, consists of 4,815 acres, of which 400 acres are open downs on the Surrey Hills, at no great distance from Epsom and Banstead Commons. Two of the downs, Eiddles- down and Farthingdown, respectively of 77 and 126 acres, are in the north of the Parish ; Kenley and Coulsdon Commons, of 77 and 88 acres, are in the southern part. There are also three village greens, parts of the waste of the Manor. Domesday Book states that the Manor was then in the hands of the Abbey of Chertsey. It so continued till the dissolution of the Abbey, when Henry VIII. gave it to Sir Nicholas Care we. It then passed through various hands, till it was sold, in 1783, to Mr. Thomas Byron, the ancestor of the Lord of the Manor, who, after the Report of the Committee of 1865, set to work to appropriate the Commons. COULSDON COMMONS. 175 The Court Eolls are extant from the year 1359, and are in Latin, with the usual break for the Common- wealth, till 1732. There is an entry in these Eolls for the year 1359, showing the dependent state of the labouring people of the Manor. It records the payment of a fine, apparently by a free tenant, for marrying without leave the relict of Adam King, a born bonds- man of the Lord of the Manor. Later, in 1363, there is an entry of an order given to seize a tene- ment into the lord's hands, because it had been acquired by a born bondsman of the lord, without his leave. In 1762, a careful survey of the Manor showed that the waste lands then amounted to 551 acres. Since then, Hartley Down, consisting of 150 acres, appears to have been inclosed and appropriated by the Lord of the Manor. Mr. Byron, after failing to induce the Inclosure Commissioners to take proceedings for the inclosure of the remaining Commons, entered into communication with the principal landowners of the Manor, with the object of obtaining their concurrence to an inclosure without the sanction of Parliament. He encountered strong opposition to this course from some of the Commoners, including the Messrs. Hall, who subsequently undertook the suit against him. He found some willing confederates in other quarters. He then broached the idea that the Commons, instead of being all parts of the waste of the same Manor, where all the Commoners had the right of turning out cattle equally upon every part of them, were separate in 176 COULSDON COMMONS. the sense that the Commoners could only exercise their rights over the Commons nearest to them. In this view he abandoned the intention of inclosing all the Commons. He made arrangements with some of the Commoners, by promising grants to them of portions of the waste, in extinguishment of their rights, and then began to inclose some parts of it. He also commenced the sale of turf from Coulsdon and Riddlesdown Commons on a very great scale, in such manner as to ruin their surface. It was in consequence of all these acts, which in the aggregate amounted to an assertion of absolute right over the Commons, that the Messrs. Hall com- menced a suit against the Lord of the Manor, claiming in the usual way, on behalf of the Commoners, a determination of their rights, and asking for an injunction to restrain the inclosures and the excessive digging of gravel and loam. Mr. Byron replied, deny- ing the rights of common, whether in the Messrs. Hall or in the class of persons on whose behalf they claimed, and asserting that no general right of common existed over all the different Commons in the Manor, but that each Commoner was restricted to a particular Common. As in all the other Commons' cases, the investigation of the history and customs of the Manor, and the determination of the persons entitled to common rights, gave rise to protracted, difficult, and expensive pro- ceedings. After some years the case was ultimately heard by Vice-Chancellor Hall in 1877, and occupied eight consecutive days. In the end the Judge was GOULSDON COMMONS. Ill satisfied that one of the Messrs. Hall had proved his case. In the course of his judgment he said * " The law I take it to be that the Lord of the Manor may- take gravel waste, loam, and the like, in the waste, so long as he does not infringe npon the Commoners' rights. His right to do so is quite independent of the right of approvement under the Statute of Merton or at common law, and exists by reason of his ownership of the soil, subject only to the interests of the Commoners. Judge Bayley, in ' Arlett v. Ellis/ said that the lord has rights of his own reserved upon the waste I do not say subservient to, but concurrent with the rights of Commoners. And when it is ascertained that there is more Common than is necessary for the cattle of the Commoners, the lord, as it seems to me, is entitled to take that for his own use." He went on to say that in the case of gravel dig- ging, the " onus probandi " that it interfered with the right of common, rested with the Commoner, and not, as in the case of approvement, with the Lord of the Manor. He gave, however, an injunction to restrain Mr. Byron from making inclosures, and from carry- ing away or destroying the loam and gravel of the waste, or the pasture or herbage growing thereon, so as in any manner to prevent, disturb, or interfere with the exercise by Mr. Hall, or the other persons entitled, of these rights over the waste lands of the Manor. The Judge also found against the attempted restric- tion of rights of common to particular Commons of the Manor, holding that the arrangements of this character * Hall v. Byron, L.R. 4. Ch. Div., 667. M 178 BAETFOBT) HEATH. which had from time to time been made were only in the nature of temporary bye-laws, made by consent, and did not affect the rights of the Commoners. The decree was a very substantial victory for the Messrs. Hall and the Commoners, and was the first of the more recent cases, which restrained the excessive digging of gravel and loam, which was being carried out in many other Commons. Unfortunately, the Judge refused to give the plaintiffs the costs of the suit as against Mr. Byron, and the result was that the Messrs. Hall had to bear the burthen of their own great costs in this expensive litigation amounting to a very large sum. Ultimately, the Corporation of London was induced to purchase the rights of Mr. Byron over the Commons, and as a part of this arrangement, to relieve the Messrs. Hall of some of the burthen of their costs. The Coulsdon Commons are now under the safe custody of the Corporation, and are practically secured to the public. DARTFORD HEATH. The case of Dartford Heath was very similar to that of the Coulsdon Commons, and need not be described at length. The Heath, in the Manor of Hartford, consists of 334 acres. The Manor was originally in the hands of the Knights Templars, and later in those of the Knights Hospitallers of St. John of Jerusalem. On the dissolution of that Order, it vested in the Crown. It was subsequently re-granted, and ultimately came into the possession of Mr. Augustus Morgan. Mr. DARTFORD HEATH. 179 Morgan, like many other Lords of Manors between 1865 and 1S69, began to assume ownership over the Common, and with a view to that, commenced the digging of gravel on an extensive scale, so as to ruin and deface its surface. The cudgels on behalf of the public were in this case taken up by Mr. Charles Minet, the owner of a considerable property, called Baldwyns, in the same Manor. This estate had formerly belonged to Cardinal Wolsey, who gave it to Cardinal College, Oxford ; but on the attainder of Wolsey, it was seized by Henry VIIL, who later granted it to Eton College. Subsequently it was exchanged for other property, and came into the possession of Mr. Minet, who, by the advice of the Solicitor of the Commons Society, Mr. Hunter, brought a suit against Mr. Augustus Morgan, in respect of his common rights, belonging to Baldwyns, to restrain the inclosure of the Heath and the exces- sive digging of gravel. Mr. Minet unfortunately died before the suit came to a hearing, leaving six daughters his co-heirs. Ultimately, one of these ladies undertook the task of saving the Heath, and was prepared to prosecute the suit. Mr. Morgan, however, thought it imprudent to contest the case any further. On June 9th, 1874, a decree was made by consent, under which the Commoners were quieted in the posses- sion of rights of common, and the Lord of the Manor was restrained from digging, in any one year, more than two roods of gravel, and two of peat, or more than two acres of turf. He was also restricted in all m 2 180 WIGLEY COMMON. excavations of loam and peat, and the cutting and paring of turf to the supply for the inhabitants of the parish. No inclosures were to be in future permitted, save such as were temporarily necessary for the digging of gravel. The Common was thus permanently saved from inclosure and disfigurement. WIGLEY COMMON. In spite of the warnings which it was to be expected would be drawn from the results of the many recent suits respecting attempted inclosures of Commons, another Lord of the Manor was found bold enough to encounter the risk, and to inclose in one swoop the whole of a Common in the neighbourhood of the New Forest. There are two adjoining Manors there those of Cadnam and Winsor, and Wigley. The wastes of these Manors also adjoin, that of Cadnam and Winsor being no more than 95 acres, and that of Wigley about 460 acres ; they are separated only by a small stream, which cattle can easily cross ; and as the pasturage of Wigley is far better than that of Cadnam, the cattle turned out on the latter generally find their way to the former, in search of a good nibble, and the Commoners of Cadnam have always claimed this as a matter of right. These two Manors had in ancient times been in the possession of the Prioress of Amesbury, a monastery about twenty miles distant, and on the dissolution of the religious houses, they were granted away by Henry VIII., and passed through various hands, WIGLET COMMON. 181 till in 1587 they were bought by William Poulett, who, in 1647, sold Wigley Manor to William Stanley, the ancestor of the present owner, Mr. Hans Sloane Stanley. Successive members of this family had by de- grees bought up all the land in the Manor of Wigley, and the Manor practically ceased to exist. A neighbour- ing landowner, Mr. Briscoe Eyre, had also bought the great majority of the holdings in Cadnam Manor, but his farm tenants and the remaining tenants of the Manor continued to turn out their cattle on Wigley and Cadnam Commons. The Manor of Cadnam and Winsor belonged to Sir Henry Poulett. The grandfather of Mr. Sloane Stanley commenced the scheme of inclosure. Being an ardent sportsman, he inclosed, about thirty years ago, a part of Wigley called Black Hill, on account of its being the resort of black game ; the fences, however, do not appear to have been sufficient to keep out the cattle. In 1880, the present owner proceeded to inclose the whole of Wigley Common with a stone fence. Mr. Briscoe Eyre, who was an active member of the Commons Society, was not the man to allow such a proceeding at his very gate without opposition. He addressed an earnest remonstrance to Mr. Stanley, backed by a memorial numerously signed, urging him to abstain from a step so ruinous to the district and with so little pecuniary advantage to himself. Mr. Stanley, however, positively declined to suspend his inclosure even until some friendly inquiry might be made into the precise legal position of the Common, and the accuracy of his 182 WIGLEY COMMON. own view of his legal rights. He claimed the Common absolutely as his private property, and his answer, in effect, to those who approached him, was that they should mind their own business, and leave him to do as he liked with his own. Mr. Briscoe Eyre, therefore, was compelled either to assert his legal rights or to acquiesce in the inclosure. He commenced a suit at once on behalf of the tenants of Cadnam and Winsor against Mr. Stanley, in the usual form. A meeting of the tenants of Cadnam Manor was then held. At this meeting it was ascertained that it was reputed among them that their rights over Wigley Common had been declared by an " old paper," which was in possession of one of the tenants. No one knew the contents of the paper or what was its origin. The inquiry was pursued, and in the possession of one of the copyholders, John Wake, was found a heavy box with three locks. This box was known by the tenants as " the monster." All that Wake re- collected of it was that his grandfather, soon after he was admitted as tenant of the Manor, brought it home and said : " See, I have brought home the monster ! " On opening the box there was found an exemplifica- tion, under the Great Seal, of a decree by Lord Chancellor Hatton, in the time of Queen Elizabeth, declaring that the tenants of the Manor of Cadnam were entitled to a right of pasture over the waste lands of Wigley. It appeared from this decree, dated April 26th, 1591, that the tenants of the Manor of Cadnam and Winsor WIGLEY COMMON. 183 had in those days brought a suit to determine their rights against the Lord of the Manor of "Wigley, William Poulett ; in this they graphically said, " that the said Complaynants were poore Coppieholders of the Manor of Cadnam and Winsor, and their whole estates and livynge depended upon the same, soo that yf they should be abridged of their ancyent customs it would be their utter undoinge." They claimed that "The Custom of the Manor of Wigley was, by all the tyme aforesaid begune, that the Coppeholde and customarie tenants of the Mannor of Cadnam had and ought to have comon of pasture for all their cattell that they doe reare and breade upon their Coppeholde and customarie landes and tenements within the said Manor, as well in and upon the Comon fieldes belonginge to the said Mannor, as in the waste ground of Wigley, and in those places that in ancyent time the tenants of the said Mannor have used to have Comon of pasture in as large and benefecyall manner as their ancestors tenants of the said Mannor have used to have and enjoye the same." The suitors then alleged that Poulett, having bought the Manor, and seeking to make the best advantage thereof, had impugned the customs set forth, and among other things, " utterly refused to permit the said com- plainants to have an}*- Common of pasture for their cattle in the waste lands and in the places where they had usually had Common." The Defendant in his answer, after alleging his purchase of the Manor, traversed the customs alleged, and in particular, " that the said Coppieholders ought to have, comon of pasture for their cattell in the ffeilds t 184 WIGLEY COMMON. and Comons belongeing to the said Mannor, as in the said Bill was alleaged." The decree then stated that a Commission was awarded by the consent of the parties for the examina- tion of witnesses for the proof of the said customs, and was executed and returned and published, and that mention was made to the Court alleging that by such evidence "and by anncient coppies, customarye Rolles, and other evidence yt appeared that the said Complaynants had in sub- stance proved the said customarye privileges, rightes and usages by theme set fourthe in their right." The decree followed in these words : " It is therefore this p'sent tearme of Easter that ys to saye on Monday the six and twentieth daye of Aprylle in the three and thirteth yeare of the raigne of our Soveraigne Lady Eliza- beth by the grace of God Queen of England France and Ireland Defender of the Ffaithe, etc., by the Right honorable Sir Christopher Hatton of the most noble Order of the Garter Knight Lord Chancellor of England and by the said heighe Courte of Chauncery ordered adjudjed and decreed by and with the consent of the said Complaynints and defendante their Counsellors and Attorneyes that the said customs privileges rights and usages bee ratefyed and confirmed by this Courte. And the said Complaynints their heires and assignes and all clayminge from by or under them or any of them shall frome hencefurthe for ever more have, hold, andenjoye all the customes priuileges rightes and usages by them set fourythe in these tyll yealdinge payeinge and doeinge their yearelye rents and services as if right had been dewe and accustomed an such ffynes and heryotts as are before also sett fourthe and declared against the defendante his heires and assignes and all claymynge from by or WIGLEY COMMON. 185 under hym or them or by his or there means consent command- ment or hearement." This exemplification of the decree under the Great Seal was handed to the tenants of the Cadnam Manor as the charter of their rights. In the Court Rolls of the Manor there is an entry dated December 9, 1783, to the effect that "At this Court Mr. Richard Marsh, executor and trustee named in the last will and testament of John Holloday deceased, one of the customary tenants of this Manor, delivered the decree of the Court of Chancery touching the rights and privileges of this Manor, which was at the time of the death of the said John Holloday lodged in his hands, and by the unanimous consent of this Homage the same is deposited for safe keeping in the hands of Mr. Thomas Lovell one of the customary tenants of the said Manor." Lovell on December 16, 1785, produced a box prepared by him for the safe custody of the decree touching the rights and privileges of this Manor, with three locks and keys thereto. The Homage directed that the box should be kept in the possession of Thomas Lovell "with one of the keys thereof," one other key was to be kept by Mr. Henry Hartley, the third by Mr. John Comly. The precautions taken by Lovell were fully justified. But for the big box, which impressed itself on the traditions of the tenants, as connected with their rights, the deed might have been lost. It is singular that the recollection of the decree should have so completely faded away. Mr. Eyre had never heard of it. He 186 WIG LEY COMMON. entered upon the suit without any knowledge of it, and simply upon the fact that the tenants of Cadnam had in practice turned out their cattle on Wigley Common. Wigley had in some way lost its name, and the waste was described in the Ordnance Maps as Half Moon Common. On the same day that the box was discovered, the Solicitors of the Commons Society, employed by Mr. Eyre, after vainly searching in the records of the Court of Chancery under the title of Half Moon Common, discovered under the title of Cadnam and Winsor a reference which resulted in the finding of the original decree in the Public Record Office. The decree was decisive on the point that the tenants of Cadnam had rights over Wigley Common. This could not be reopened. The only question in the new suit was whether the land which Mr. Stanley in- closed was part of the Wigley Common referred to in the decree. The Defendant expended much time and money in endeavouring to dispute this, but the decision of the Court was against him, and judgment was pronounced by Mr. Justice Field on August 8, 1882, in favour of Mr. Briscoe Eyre, and confirming the tenants of Cadnam in their rights of common over the waste of Wigley Manor. The present conditions of the two Manors present some interesting features. The Manor of Cadnam consists of 493 acres of cultivated land in seventeen holdings of from three to sixty acres. Forty years ago there were as many separate owners, of whom the great majority WIGLET COMMON. 187 cultivated their own land. In the interval Mr. Briscoe Eyre has himself, or through his father, acquired nine of these holdings with 331 acres ; of the remainder, five only are now owned by their occupiers. The holdings, however, still remain small, and there cannot be a doubt that the common rights attached to these small holdings account largely for their continued existence. If Mr. Sloane Stanley had succeeded in his inclosure, these small holdings would have been rendered un- profitable, and there would necessarily have followed a consolidation of farms, and probably three or four large farms would have superseded the small holdings. It is quite certain, on the other hand, that but for Mr. Briscoe Eyre and his fortuitous connection with the Commons Society, the inclosures would not have been abated, and Mr. Stanley would have succeeded in effect- ing his purpose. Not one of the smaller holders would have ventured to cope with him in the law courts. The aggregation of lands in a single owner has been carried even further in Wigley Manor. In 1840 there were eleven distinct owners of land, tenants of the Manor ; they have now all been merged in a single owner Mr. Sloane Stanley. The two Manors well illustrate the process of the gradual extinction of small owners of land. That the small holdings have not been merged in large farms has undoubtedly been owing to the existence of the Commons. 188 CHAPTER XI. Banstead Commons. The last, but not the least important, of the great suits affecting Commons within reach of London, was that of the Banstead Commons. Indeed, no other suit has been more pertinaciously fought through long years of litigation, or was subject to more strange and un- expected vicissitudes. Commenced in the year 1S77, it was not concluded till 1890, and only in the past year, 1893, has the future of the Commons been definitely provided for by a Regulation scheme, under the Metropolitan Commons Acts, in spite of the most determined opposition of those representing the Lord of the Manor before Select Committees of both Houses of Parliament. Seventeen years, therefore, have been spent in resisting the efforts to appropriate these Commons, and in securing to the Commoners and the public the enjoyment and management of them. The Commons of Banstead consist of four distinct and separate areas, with an aggregate of about 1,300 acres. They lie on the summit of the North Surrey Downs, at an altitude of 500 to 600 feet above the sea, with splendid views, on the one side, of the Valley of the Thames, with its teeming population, on the other, of the Weald of Surrey and Sussex. Together with Epsom Downs, Walton Heath, and Coulsdon Commons, BANSTEAD COMMONS The Light Green represents the Banstead Commons. The Dark Green, Walton Heath & Epsom Downs. BANS TE AD COMMONS. 189 they form a range of open land of the utmost value to London, the most bracing district within easy reach of it, from which salubrious breezes reach the crowded valley below, unaffected by any impurities. Banstead Down, the second in size of these four Commons, lies immediately above the populous and growing suburb of Sutton. Banstead Heath, the largest, adjoins Walton Heath, which is in a separate parish and manor. Between them lie the Park Down and Burgh Heath the one a range of open land near to the woods of Banstead Park, the other a small but picturesque area, nearly covered with gorse and bracken. The Parish of Banstead consists of 5,528 acres, and is conterminous with the Manor of Banstead, and its dependent Manors of North and South Tad worth, Preston, Great Burgh, and Southmerfield. The earliest mention of the Manor of Banstead is in Domesday Book, which informs us that it was in the hands of the Bishop of Bayeux, and held of him by the Earl of Clare. It is probable that at some time in the reign of Edward the Confessor, the whole Parish was held by the King, and that subsequently it was divided into the several Manors above described. The Manor of Banstead passed, in 1198, into the hands of Mabel de Mowbray, wife of Nigel de Mow- bray j and in 1223 into those of Hubert de Burgh, Earl of Kent, who secured a grant of Free Warren in Banstead from the King. In 1273 it reverted b}~ exchange for other land to Edward I., and thence- forward remained in the possession of his successors 190 BAXSTEAD COMMONS. to the throne for 270 years till 1543, when Henry VIII., having previously annexed it to the Honour of Hampton Court, granted it to Sir Nicholas Carewe. On Carewe's subsequent attainder it reverted to the Crown, but Queen Mary regranted it to his son. In 1762 another Sir Nicholas Carewe sold it to Rowland Frye, from whom it passed through other hands by purchase, till in 1832 it was bought by Mr. Thomas Alcock, whose representatives, in 1873, sold it to Sir John Hartopp. The first general survey of the Manor was in 1325. It is still to be found in the charters of the British Museum. There was another survey of the parish in 1598, in which the common lands are described as extending over 1,300 acres. The Court Rolls com- mence in 1379, and continue in unbroken succession, and in perfect order, till IS 76. The history of the de- pendent Manors can be traced with equal precision from the earliest times, and, indeed, they form an interesting study from an historical and archaeological standpoint, as bearing upon the subject of the creation of Manors. All the land in three of them was ulti- mately concentrated in the hands of the Earl of Egmont, who held them at the time of the commence- ment of the suit hereafter described, with the exception of Tadworth Park, which was the demesne land of the Manor of South Tadworth, and which was bought, a few years ago, by Sir Charles Russell, Q.C. There was also another Manor, that of Chaldon, not in the Parish, but dependent on the Manor of Banstead. This, at the BAN STEAD COMMONS. 191 time of Domesday Book, was also held by the Bishop of Bayeux, and passed through various hands till a few years ago, when it was the property of Lord Hylton. Much turned, in the suit, upon the relations of these minor Manors to the principal one of Banstead, and upon whether the owners of land within them had rights of common over the waste lands of the Banstead Manor. This was confirmed by the surveys already alluded to, and by numerous extracts from the Bolls of the Manors. Thus, in 1578, an order was made by the Court Leet of Banstead Manor that none within Banstead or Tadworth should keep in the Common of Banstead more than two sheep per acre. This admitted a right on the part of the owners of Tadworth to use the Commons, subject, however, to the orders and regula- tions made by the homage of Banstead. It will be seen later that the judges recognised that Sir Charles Russell, as owner of the demesne lands of Tadworth, was entitled to rights of common over the Commons of Banstead. In 1864, Mr. Alcock, then Lord of the Manor and the owner of a property in the neighbourhood the demesne lands of the Manor conceived the idea of inclosing the four Commons of Banstead, and com- menced proceedings with that view before the In- closure Commissioners, but the proposal roused so much opposition from his neighbours, the Commoners, that he received no assistance from the Commis- sioners, and was compelled to abandon the attempt. In the following year Mr. Alcock gave evidence 192 BAN STEAD COMMONS. before the Committee of the House of Commons on the London Commons. He pointed out the diffi- culties he had experienced, as Lord of the Manor, in preserving order over the Banstead Commons, and expressed his desire to dedicate his rights and interest in them to the public, so that they might be secure against inclosure, and that he might be relieved of the burden of protecting them. The Committee referred to his proposal in their Report, as an argument in favour of their scheme for regulating Commons and placing them under some protecting local authority or governing body. In the same year Mr. Alcock joined the Commons Society as one of its first members ; and when the Society propounded its scheme, which ultimately developed into the Metropolitan Commons Act, for regulating Commons within fifteen miles of the Metropolis, he strongly supported it. Had he lived, there can be no doubt that he would have placed the Banstead Commons under the protection of the Act, in such a manner that no future inclosure could have been attempted. Unhappily, Mr. Alcock died, in 1866, before any proceedings could be initiated under the above Act, for the regulation of the wastes of his Manor. His repre- sentatives showed no disposition to carry out his in- tentions. They renewed application to the Inclosure Commissioners for the inclosure of the Commons, and when their proposal was rejected, they sold, in 1873, their interest in the Banstead Commons to Sir John Hartopp. Unfortunately, the Manorial rights thus became separated BANS TE AD COMMONS. 193 from the demesne lands, and the purchaser acquired only the soil of the waste of the Manor, subject to the rights of common over it, and the quit rents, heriots, and fines of the freehold and copjdiold tenants of the Manor. Sir John Hartopp, having bought these manorial wastes and rights for a comparatively small sum, endeavoured to turn his purchase into a land building speculation, by getting rid of the Commoners and inclosing the Commons. In spite of the lessons which Lords of the Manors must or should have drawn from the experience of the recent litigation in respect of Berkhamsted, Plumstead, and Coulsdon Commons, and still more of Epping Forest, his legal advisers appear to have persuaded him that he could without difficulty convert the Commons into private property, free from common rights. The prize would have been a great one, for the land would have been most valuable for villa residences. The difficulty hitherto in such cases had been the uncertainty as to who were the owners of land within the Manor entitled to common rights, and whose assent it was necessary to obtain by agreement or purchase, before attempting inclosure under the Statute of Merton. In the Banstead case, the course of approvement, under the Statute, had apparently been buoyed out by recent proceedings, under the authority of Parliament. In 1866, the London and Brighton Eailway Company had obtained power to construct a branch to Epsom, and to carry this line through Banstead Down. Not only was this a great disfigurement and injury to the N 194 BANSTEAD COMMONS. Common by cutting it in two, but it was the cause of great danger to it, by affording the opportunity of ascertaining the exact limit of the persons entitled to common rights. Under the provisions of the Lands Clauses Act, the compensation payable in respect of the land, thus taken from the Common for the pur- poses of the railway, was paid into Court, and it was referred to the Inclosure Commissioners to apportion this sum between the Lord of the Manor and the persons who could maintain their claim to it as Commoners. For this purpose an inquiry was held at Banstead by Mr. Wetherell, an Assistant Inclosure Commis- sioner, and an award was made by him specifying the persons who, in his opinion, had rights over the Com- mon, and were entitled to compensation. This deter- mination was not in law a final one, in the sense that it precluded any claim in future legal proceedings, on behalf of persons not recognised by him as Commoners ;. and, as the result showed, the conclusions of the Com- missioner proved to be wholly untrustworthy. But such an inquiry by an independent official, with ex- perience in such matters, confirmed to some extent by the rolls of the manor and by some old surveys, appeared doubtless to Sir John Hartopp's advisers to be of very high authority, and it was, perhaps, not to be wondered at that he should think it conclusive as to the rights affecting the Commons. He was, no doubt, advised that if he could, by purchase or otherwise, get rid of the rights of the persons thus designated as BANSTEAD COMMONS. 195 Commoners, in the award of the Commissioners, he would be able to inclose under the Statute of Merton, or even to treat the Common as his freehold, discharged of any rights. With this object, then, in view, Sir John Hartopp set to work to buy off the persons whose common rights were admitted in the award of Mr. Wetherell. One by one the Commoners were so dealt with. To some the temptation offered was the enfranchisement of their copyholds free of charge ; to others, money payments. To two at least the promise was made of large allot- ments of the Common when inclosed. As he reduced in this manner the number of Commoners who could resist his scheme of inclosure, so the terms of the remainder rose, and it became necessary to expend very large sums in buying off those who held out the longest. In none of the other Commons cases had there been such an assiduous and well-devised effort to clear away the rights of Commoners, with the object of converting the wastes into private property. It is said that Sir John Hartopp expended in this manner not less than 18,000, and in so doing got rid of the rights of twenty-seven persons in respect of 1,400 acres of land. The largest landowner in the Manor, having rights of common, was the late Earl of Egmont. His con- sent was obtained by a mixed process of threat and bribe. Lord Egmont was opposed in principle to the inclosure of the Common, but he was advised by his lawyers that Sir John Hartopp had already acquired n 2 196 BANSTEAD COMMONS. such a predominant interest in and power over it, that he could inclose the greater part of it, under the Statute of Merton ; and threats were held out that the part thus inclosed would be selected so as to be injurious to Lord Egmont's property. Under this threat, Lord Egmont consented to share in the appropriation of the Commons, and to take in compensation for his rights the whole of Burgh Heath. In the same manner another large landowner in the district was induced to consent to the inclosure, by the promise of the allotment to him of Park Down. By the year 1876, Sir John Hartopp had so far progressed in his scheme of purchasing out the Com- moners, that he thought he might safely commence his proceedings for the inclosure of the Commons. He began to show his hand by erecting a row of houses on Banstead Downs, and by inclosing some parts of Ban- stead Heath. In spite, however, of his efforts to ward off opposition, there remained many persons owning property in the district, who strongly objected to his schemes, who greatly valued the stretch of open land, .and who had been induced to reside there on account of the Commons, and under the belief that they were safe from inclosure. Some of these had rights of common, and had rejected overtures of purchase; others had no such rights, but were interested in supporting any movement against inclosure. By the advice of the Commons Society, a meeting was held at Sutton in December, 1876, to protest against Sir John Hartopp's inclosures ; and a Committee was BANSTEAD COMMONS. 197 formed, under the title of the Banstead Commons Protection Society, for the purpose of resisting them. Of this Committee Mr. Hamilton Fletcher was chair- man, and Mr. James Nisbet Eobertson and Mr. Garrett Morten were the most active members. Mr. Eobert- son was the owner of a house and twenty acres of land, and Mr. Morten of three acres of land, with undoubted rights of common attaching to them. These gentle- men undertook to challenge at law the proceedings of Sir John Hartopp. They were joined by two other copyholders named Bennett, who owned a small pro- perty on Burgh Heath, and who had for many years taken furze and sand from the Common. They also strengthened their position by purchasing a small pro- perty on Burgh Heath, in respect of which rights over the Commons undoubtedly existed. They formed a somewhat slender nucleus of opposition to Sir John Hartopp, and it was, perhaps, a great risk to commence a suit against a Lord of the Manor, who had shown such determination to spare no expenditure that was necessary to assert his right to inclose ; but there was no alternative but to see the Commons gradually niched away, and the Banstead Committee and their advisers rightly judged that when public opinion was so much roused on the subject of open spaces, it needed only a sturdy and judicious resistance to achieve success, though the precise means might not be altogether obvious. These gentlemen, however, by the advice of Mr. Robert Hunter, who had been engaged in so many 198 BANS TE AD COMMONS. others of the Commons suits, undertook the risk, and commenced a suit against Sir John Hartopp on January 8th, 1877, on behalf of the Commoners, claiming the usual rights of common, and asking that the lord might be restrained from inclosure. They were sup- ported to some extent by local contributions, and by promises of assistance from the Corporation of London. With a view to reinforce their legal position as Com- moners, a deputation was introduced by the writer to the present Lord Egmont, who had lately succeeded his uncle in the title and property, and tried to persuade him to throw in his lot with the Commoners against the inclosure, and to withdraw from the arrangements with Sir John Hartopp. Lord Egmont replied that he was much averse to the inclosure, and would far sooner see the Commons left open as they were, but he felt pre- cluded by his predecessor's agreement with Sir John Hartopp from joining in opposition to it. Upon a motion for an interim injunction, Sir George Jessel put Sir John Hartopp under terms that, in the event of the suit being decided against him, he should pull down the buildings he had erected. Thence- forward for thirteen more years the suit dragged on its weary course through every form of litigious pro- ceeding that could be devised. The originators of the suit could have little foreseen the maelstrom of litigation in which they were involved, but they never flinched from the task. Mr. Hamilton Fletcher and Mr. Nisbet Kobertson died before the conclusion, but their places were filled by others. BAN STEAD COMMONS. 199 The first brush in the courts of law arose upon the title of Mr. Robertson. This gentleman was only the lessee of the house and land, in respect of which he maintained the suit, but he had the right under his lease to purchase the freehold from his landlord before Michaelmas, 1878. His landlord, after giving this lease, but before the commencement of the suit, had sold the rights of common attached to his reversion to Sir John Hartopp. Mr. Robertson contended that this sale was void as far as he was concerned, and that he was entitled to claim the property, with the rights of common attached, in the condition in which it stood at the commencement of the lease. He gave notice to his landlord of his intention to exercise his option of purchase of the property, and demanded a grant of the rights, which had been attached to it. Sir John Hartopp refused to join in the conveyance, or to release the rights of common which he had purchased. It became necessary, therefore, for Mr. Robertson to join Sir John Hartopp in the suit against his landlord for a specific performance. This preliminary suit was decided in favour of Mr. Robertson, and an order was made by Sir George Jessel, requiring Sir John Hartopp to join in a conveyance of the rights of common, together with the property, to him. This victory was of considerable importance, for it amounted to a legal recognition that Mr. Robertson was entitled to rights over all the Banstead Commons which could not be gainsaid. It was, perhaps, this defeat that abated the confidence of Sir John 200 BANSTEAD COMMONS. Hartopp and his legal advisers in their ultimate success, and induced them to offer terms of compromise. They proposed to give up one-half of the Commons, and to secure it for the enjoyment of the public, provided they were allowed to inclose the other half. The Banstead Committee consulted the Commons Society as to a compromise. As Chairman, I had strongly opposed, in every Commons case, proposals of this kind, as detrimental to the interests of the public in the particular cases, and as likely to offer inducements to Lords of Manors to attempt inclosures in other instances. But in the case of Banstead the obstacles in the way of ultimate success were most formidable. There was great difficulty in obtaining funds for the proper conduct of the case; and the rights of common, at that time known to exist, were few in proportion to the extent of the Commons. A compromise therefore appeared to be expedient in this case. Fortunately, however, before any arrangement was come to, most unexpected events occurred, which completely changed the aspect of affairs, and made success almost certain to the Commoners. In 1884, Sir John Hartopp's solicitors, who had been mainly responsible for the action which he had taken, and who were in some way partners in the speculation, became insolvent, and absconded, leaving their affairs and those of their client in the greatest confusion. Sir John Hartopp himself was involved in their ruin, and became bankrupt. The negotiations for a compromise came suddenly to an end for want BANSTEAD COMMONS. 201 of parties to conduct them, and much to the relief of those who desired to save the whole of the Commons. Lord Egmont at this point, finding that Sir John Hartopp was no longer in a position to carry out any understanding with him, felt himself relieved of any obligation under his uncle's agreement, and transferred his interest to the side of the Commoners. As his property within the Manor consisted of no less than 2,000 acres, and his rights of common were propor- tionately extensive, this made a most important accession of strength to the Plaintiffs. About the same time also, Mr. Francis Baring purchased the Banstead Park estate, and became greatly interested in maintaining the Commons. He joined the Committee for their preservation, and contributed largely to their funds. Sir Charles Eussell also bought the Tadworth Court estate in the parish, which gave him interest in the matter, and induced him to join the Committee. Thus reinforced, the Committee found itself able to push forward the litigation with energy, and was supported with funds, which had before been greatly wanting. Moreover, Lord Egmont's adherence to the Commoners' cause altogether altered the proportion between the acreage of land to which common rights were attached, and that of the Common. Thence- forward it became absolutely certain that inclosure could no longer be justified under the Statute of Merton. It was hoped indeed that the bankruptcy of Sir John Hartopp would lead to an abandonment of the defence to the suit, and of further attempts at inclosure. 202 BAN STEAD COMMONS. It turned out, however, that the interest of the Lord of the Manor in the soil of the Commons, subject to common rights, but with the possibility of inclosure, whatever it might be, had been mortgaged for the sum of 31,000 to two ladies, who were clients of the Messrs. Parker, and who had been, it is to be feared, fraudulently advised hj them to embark their money upon what was, at best, a most shadowy and dangerous security, dependent wholly for its value on the success of the suit. These mortgagees now took possession of the Commons under their mortgage deed. They at once en- deavoured to realise an income for their unfortunate in- vestment by excessive cutting of turf and digging of gravel, for sale, and refused to listen to any remon- strances of the Committee of Commoners. They stripped large areas of the Commons of their natural turf, and carted away the soil upon which the value of the land for pasturage depended. The Commoners, therefore, felt it necessary to revive the suit. They made the mortgagees parties to the action, and claimed an order to prevent the reckless destruction of the surface of the Commons to the detriment of their own rights. The point at issue was no longer directly the right of the lord to inclose ; the immediate question was the right to destroy the Commons by stripping them of turf and robbing them of loam. Indirectly this would have involved ultimately the fate of the Commons. The new issue altered the onus of proof in the suit, and made the question far more difficult to the BAN STEAD COMMONS. 203 Commoners. Where the right to the land of a Common is challenged by the Lord of the Manor, by inclosure under the Statute of Merton, it is well recog- nised by the Courts, upon the construction of the Statute, that the onus of proof that sufficiency of common is left for the remaining rights of other persons, rests with the Lord of the Manor who incloses. But when the question in dispute is the right to more or less digging of loam, or cutting of turf, it is equally well established by law that the onus of proof, that the acts of the lord constitute an injury to the Commoners' rights, is thrown upon the Commoners themselves. This was a much more difficult task for the Plaintiffs in the Banstead case, for it necessitated their proving exactly the number of persons entitled to rights, and showing that the paring of turf and digging of loam, as carried out by the Lord of the Manor, was such as to interfere substantially with their rights of common, and that the Commons in their impaired condition could not support cattle which might be kept on the land by the Commoners during the winter months. Upon the Commoners of Banstead, therefore, the onus rested to establish in their suit against the mortgagees that there were still in existence rights, in respect of an acreage of land so large that the Commons, in their existing conditions with their surface injured by the cutting of turf and digging of loam, could not produce food enough for the cattle which might be kept upon such lands. For this 204 BANSTEAD COMMONS. purpose the rights pertaining to Lord Egmont's land, consisting of 2,000 acres, and to Sir Charles Russell's property, were of great importance, for if it could be shown that the whole of this land was entitled to common rights in addition to other lands, whose rights were no longer disputed, there could be little question as to the insufficiency of the Commons, as treated by the lord, to maintain the requisite number of cattle. The rolls of the manor and the evidence of living persons showed that, from time immemorial, rights had been claimed and exercised in respect of nearly every farm in the parish, and particularly by the occupiers of Lord Egmont's and Sir Charles Russell's properties. On the other hand, the defendants relied on an old survey of 1680, and on Mr. Wetherell's award of the money paid by the Railway Company in compensations to the Commoners, which limited greatly the extent of land in the district entitled to rights. Every effort also was made to narrow the rights of common, and to prove that sufficient pasture re- mained on the wastes for all the sheep that could be turned out. The issue involved most lengthy and costly investigations into the conditions and rights of every farm in the manor. At length, in July, 1886, nine years after the commencement of the suit, the case was tried before Mr. Justice Stirling. The hearing lasted for several days. The result was not altogether satisfactory to the Commoners. Sir John Hartopp, who was not repre- sented by counsel, was restrained from inclosing or BANSTEAB COMMONS. 205 destroying the pasturage of the Commons ; and an order was made for the abatement of his inclosures. He was also ordered to pay the costs of the suit up to the hearing ; but this was of no value to the plaintiffs, for Sir John was already a bankrupt. The Judge, how- ever, declined to decide, as against the mortgagees, whether the destruction of the surface of the Commons was of such a character as to warrant an injunction. He directed a reference to Mr. Meadows White, Q.C., to inquire who were the persons entitled to rights of common, what their rights were, and whether there was sufficiency of common on the waste lands for the persons entitled to the rights. For the purposes of this inquiry, the right of common for sheep was directed by the Judge to be taken as limited to two sheep to every acre of land to which the right attached. This was the first occasion on which, in the course of legal proceedings for the protection of Commons, an inquiry had been directed of this kind into the extent of the rights of common existing over the land. It was a course much to be deprecated, as it enormously increased the costs of the suit, without, as Lord Justice Fry, in giving judgment in the Court of Appeal, said, " lessening the intricacy of the arguments " used before the Court. It will be obvious that if the report of Mr. Meadows White had been adverse to the Commoners, it would have buoyed out the course for a future inclosure under the Statute of Merton. The proceedings before the referee were most lengthy and costly ; they occupied forty days. The 206 BANS TE AD COMMONS. mortgagees were represented at each sitting by two or three counsel ; the Commoners on their part were represented by Mr. Percival Birkett, the solicitor in the suit, and legal adviser of the Commons Society, whose knowledge and experience on such subjects are very great. Mr. Meadows White was unable to make his report till March 11, 1888, nearly two years after the date of Mr. Justice Stirling's order. It was generally favourable to the contentions of the Com- moners. Exceptions were taken to it on various legal points, which had to be argued at great length, and it was not till April 11, 1889, that Mr. Justice Stirling delivered his final judgment on this case, entirely favourable to the Commoners. The mortgagees ap- pealed against this, and on December 21, 1889, nearly thirteen years from the commencement of this pro- longed suit, Lord Justice Fry delivered the unanimous judgment of the Court of Appeal.* This decision entirely vindicated the claims of the Commoners. The Court determined that there were rights of common in respect of 320 acres held as of the Manor in other words, taking the agreed stint of two sheep to the acre, there were rights of common for 640 sheep. They also found that from three of Lord Egmont's farms 600 sheep had been turned out on the Common in such a manner as to maintain a right, and that from Sir Charles Eussell's property of Tad- worth 200 sheep had been turned out. Thus pasturage was needed for 1,440 sheep in all. The Court further * Robertson v. Hartopp, 43 Ch. Div., 484. BANSTEAD COMMOXS. 207 held it to be proved that the Commons would not furnish pasture for more than 1,200 sheep, even if they were kept and turned out on the wastes according' to the modern practice of sheep-farming; while if the sheep were turned out to get all their sustenance from the land during the summer months, according to the old practice, the Commons would not carry more than 600 sheep. The Judges repudiated the doctrine contended for by the mortgagees that the measure of the rights of the Commoners was the average number of sheep which had actually of late years been turned out a doctrine which involved the conclusion that because full use of their legal rights had not been made by the Commoners, they had therefore lost them. They also declared that the Commoners were entitled to the several rights which they claimed over the wastes, that the mortgagees were not justified in continuing Sir John Hartopp's inclosures, and that the cutting of the pasture, herbage and turf, and the digging" of loam by the mortgagees, were excessive, and consti- tuted distinct injuries to the rights of the Commoners and should be restrained ; and they directed that the costs of the whole proceedings from the time when the mortgagees were made parties to the action should be paid by them. There could not have been a more triumphant victory for the Commoners. The judgment established all their claims. It is probable that, even without the accession of Lord Egmont and Sir Charles Russell, they 208 BANSTEAB COMMONS. would have succeeded. With these rights their case was complete, and indeed overwhelming. The case was also a thorough and final vindication of the principles laid down by the Committee of 1865, and always insisted upon by the Commons Society namely, that practically it is not possible to inclose a Common under the Statute of Merton without the sanction of Parliament, and that if contested in the Courts of Law with adequate resources, such attempted inclosures would certainly prove to be invalid and would be abated. In this case the policy of buying up and ex- tinguishing rights with a view to such inclosure, was carried out with a pertinacit}^ and with a disregard of expense, exceeding that in any other attempted inclosure. Sir John Hartopp spared no exertions and no money. He expended many thousands of pounds, and gave up enfranchisement dues, valued at many more thousands. He thought he had left so few Commoners outstanding that they might be safely defied. The result showed that all this was to no purpose. The rights still subsisting proved, after full inquiry, to be far more than enough to prevent inclosure of a single rood of the Commons. Sir John Hartopp, who had originally embarked on this policy, and the mortgagees, who advanced their thousands upon it, must have cursed the day when they acted upon the advice of their lawyers. The Commoners would gladly have compromised with the mortgagees after the failure of Sir John Hartopp, by paying a few thousand pounds, in order to secure BANSTEAD COMMONS. 209 the Commons for ever, and to avoid further legal pro- ceedings. Their overtures were disregarded, and the mortgagees were induced to plunge further into this sea of litigation, with the result only that they lost every- thing, and were mulcted in enormous costs. The Com- moners, in spite of their victory on every point, had to pay their costs in the suit against Sir John Hartopp, in consequence of his bankruptcy ; but they had at least the satisfaction of knowing that their efforts had saved the wastes, not only from immediate and prospective inclosure, but from the destructive practices of the lord, which were defacing the surface and destroying the beauty of the Banstead Commons. The battle, however, did not end with the litigation in the Law Courts. The Commoners, having succeeded there, were determined to strike further while the iron was hot, and to put the Commons in such a position that their interests would be no longer neglected. They applied to the Agricultural Department for a scheme for regulating Banstead Commons, under the Metropolitan Commons Act. The Agricultural Department, hitherto, had generally been unwilling to pass regulation schemes when the Lords of Manors opposed. In this case, how- ever, the circumstances were so exceptional, the argu- ments arising from the action of the lord, in his long efforts to inclose and to injure the surface of the Commons, were so potent, that the Department after protracted pro- ceedings gave way on the point, and made a scheme for the regulation of the Banstead Commons in spite of the vehement opposition of the mortgagees of the Manor, o 210 BANSTEAD COMMON'S. This Order came under the review of Parliament in 1893 in a Confirmation Bill. It was bitterly and obstinately opposed by the mortgagees before Select Committees in both Houses of Parliament. Money was again poured out for lawyers' briefs before the most expensive tribunal in the world, but with the result only of again encoun- tering defeat. Both Houses after long inquiries affirmed the Regulation Scheme. The Banstead Commons therefore are henceforward safe, not merely from any danger of inclosure, but from the bad treatment of their surface, and the neglect of the Lord of the Manor. Practically the Commons are taken out of the control and management of the lord. Conservators elected in the district have power to make bye-laws for the order and good government of the Commons, with a reservation, however, of any rights which the lord or his mortgagees may have. The case therefore forms an epoch in the history of Commons, and a striking example of the measures taken for their preservation. The Committee of the Banstead Commons not only triumphed in frustrating the most systematic and deter- mined effort ever made to get rid of rights of common, by purchase and private bargains, and to turn a Common into building land, but they have also asserted the principle that a Common may be taken out of the hands of the Lord of the Manor, against his will, and vested in those of a local committee, with powers to make bye-laws to preserve order and to prevent nuisances. The Court of Appeal has also laid down principles in this case, of the utmost value. It has BANSTEAB COMMONS. 211 reaffirmed the law, which had been almost forgotten, that the Courts will interfere on behalf of the Com- moners, not merely to protect a Common from inclosure, but also to restrain the lord from destroying its utility and beauty by reckless defacement of its surface. The case ranks in importance with those of Berkhamsted Common and Epping Forest, and these three cases, together with the others referred to, have been a complete vindication of the policy of the Commons Society in resisting in every case, to the very end, and at all costs, the inclosure of a Common, otherwise than by the special sanction of Parliament. o 2 212 CHAPTER XII. TOLLARD FARNHAM COMMON AND ROWLEY GREEN. TOLLARD FARNHAM. From these numerous and splendid successes in vindica- tion of the rights of Commoners, for the prevention of inclosure, it is now necessary to turn to the cases of two reverses, where there was failure to defeat aggression. In 18/4 assistance was asked of the Commons Society to investigate the total inclosure of a Common at Tollard Farnham, a purely rural parish, about seven miles from Blandford, in the County of Dorset. Upon this Common the cottagers of the village had been in the habit, from time immemorial, of cutting furze and hazel tops, for the purpose of fuel, and for con- sumption in their own houses only. The hearths of all the cottages in the village were constructed for burning this kind of fuel, and were unsuitable for coal, which in former days it was impossible to procure, and which, in more recent years, could only be pur- chased in the village at a high price. The cessation of the supply of the customary fuel, it was alleged, had caused great inconvenience, and was the subject of serious complaint in the district. While the Society was making inquiries into the inclosure, the Lord of the Manor, the late Lord Rivers, commenced actions against three villagers who had TOLLARD FAUN HAM. 213 persisted in exercising what they considered their rights, according to ancient custom, and had continued to cut their wood in spite of the inclosure. The Society was unwilling that these poor men should lose, from want of means, and from lack of proper legal assistance, what they believed to be, and what there was strong prima facie evidence to believe was, their right, and therefore resolved to give its support to them. Before the case came on for trial at the Assizes, an order was obtained from the Court, directing that the issues in the three actions should be ascertained by an arbitrator, in the form of a special case, for the opinion of the Court of Exchequer. Numerous meetings were held by the arbitrator, Sir A. E. Miller, Q.C., and eventually a case was drawn up by him, and laid before the Court. It appeared that the Manor of Tollard Farnham was in very ancient times dependent on, or carved out of, the Manor of Cranbourne, which was part of the Chase of Cranbourne, extending over a yet wider district, and differing only from a Forest in that it was held by a private owner, and not by the Crown, and did not possess distinctive Courts. The Manor and Honour of Cranbourne are mentioned in Domesday Book as the property of the King. In the time of William Rufus the Manor and Chase appear to have been given to Fitz-Hamon, Lord of Corboile, in Normandy, together with numerous other Manors, constituting the Honour of Gloucester. They were escheated for want of heirs to Henry II. in 1175. They remained in the 214 TOLL ABB FABNHAM. hands of successive Sovereigns till they were granted by Henry III. to the De Clares, Earls of Hertford and Gloucester. On the death of the last male of this family, they descended to his three sisters co-heiresses. A partition was then made of De Clare's lands, and Cranbourne Chase and Manor fell to the lot of Elizabeth, wife of John De Burgh, and from her descended through the De Mortimers, Earls of March, Plantagenet, Earl of Cambridge, and Richard, Duke of York, till they vested in King Edward IV. The}'' remained in the possession of the Crown till 1611, when James I. granted them to the Earl of Salisbury, from whom the Manor, but not the Chase, has come down to the present owner, the Marquis of Salisbury. The Manor of Tollard Farnham, we learn from an early survey, dated 6 Edward VI., was held of the Manor of Cranbourne by knight service, by the Earl of Pembroke. Later it was pur- chased by Sir Thomas Arundel, in whose family it remained till 1820, when it was sold by the then Lord Arundel to Lord Rivers. In 1828 the Chase of Cranbourne, which had been separated from the Manor, and was vested in Lord Rivers, was disfranchised, in the sense that all rights of sporting were done away with. The Act effecting this states in its preamble that Lord Rivers claimed to be the owner of K a certain Franchise or Chase called Cranbourne Chase, ex- tending over divers Manors, and a large tract of land, situate in the counties of Dorset and Wilts, and as such owner is possessed of divers valuable and extensive rights and privileges over the TOLLARD FARNHAM. 215 same, and whereas the said Lord Rivers, in right of the said Chase, hath constantly exercised a privilpge of feeding and preserving the deer within the said Chase, and the number of deer now fed and preserved therein, it is computed, amounts to upwards of twelve thousand, but does not exceed twenty thousand, and the deer range over the property of the different proprietors of land, within the limits of the Chase, and whereas the exercise of such privileges and of feeding and preserving deer in right of Chase is extremely injurious to the owners of lands within the limits of the Chase, and is a great hindrance to the cultivation of such lands, and tends greatly to demoralise the habits of the labouring classes and of the inhabitants residing in and near the Chase; and whereas the said Lord Rivers is willing to accept the clear yearly sum of eighteen hundred pounds, as a compensation and satisfaction for the extinguishing of his said rights ; . . .** The Act proceeded to enact that "thenceforward all right of feed and range of deer, and all privileges of protecting them within the limits of the Chase, and all franchises and privileges in respect of the Chase, should cease, determine, and be for ever extinguished, and the Chase should thenceforward be disfranchised." In return for this a charge was imposed on the property within the Chase for the yearly sum of eighteen hundred pounds, in favour of Lord Rivers. The statute, how- ever, expressly reserved all other rights. Even to a late period, subsequent to this Act, deer are said to have roamed over the district, and to have found covert not unfrequently on Tollard Farnham Common. The whole of the parish of Tollard Farnham was in the Chase of Cranbourne. The Chase rolls are extant from an early year of Edward III. They 216 TOLLABD FABNIIAM. contain many presentments of offences against the deer and wood. Many of them relate to Tollard Farnham. For several years a Chase officer, called a verderer, was sworn for it, and attended the Leet Courts. There can be no doubt that, from time imme- morial, the inhabitants of Tollard Farnham had in fact exercised the custom or right of cutting furze and hazel wood, called " haskets," on the waste lands of the Manor from Old Michaelmas Day till Old Lady Day, and that they derived from this source their only supply of fuel. The case, therefore, closely resembled that of the Loughton rights of lopping trees in Epping Forest, which have already been described, the only difference being that Cranbourne Chase was held by a private owner and not by the Crown. It had, however, often been in the possession of the Crown, and there was no more reason why a grant from the Crown should not have been presumed in the Tollard Farnham case than in that of Loughton. Up to the year 1850 the parish of Tollard Farnham was a very interesting case of common-field cultivation. The parish consisted of 950 acres, of which 300 acres were held in severalty ; 224 acres were in copses or woodlands in the hands of the Lord of the Manor; 159 acres were in Common, the waste lands of the Manor ; and 207 acres were laid out in common fields, which were allotted amongst the tenants of the Manor, and held by them in severalty for purposes of tillage ; these were farmed upon the three-course system : one part being in wheat, another in barley, and a third TOLLABD FARNHAM. 'Ill fallow or in clover. When the crops were carried, the common fields were thrown open for the benefit of all the tenants of the Manor. Cattle were first turned in, and subsequently sheep. The cattle appear to have been fed from the time of carrying" the corn till November, and the sheep to have been folded on the fields during the winter. The fallow field was not to be broken up till Midsummer. The hedges round the common fields were repaired by the severalty holders, in proportion to their holdings in such fields. There were grass banks called lanchards in the common fields, which it was forbidden to plough up. The cattle were not pastured on these until the corn was carried. The ownership of land in each of these three common fields was minutely divided each owner having three or four, and often more, detached lots in each of the fields. These lands were held by two kinds of cus- tomary tenure (1) Copyholds held not absolutely, but during three lives, renewable upon the dropping of a life, on payment of a fine of considerable amount ; (2) Leaseholds for a term of 99 years, if certain persons named in the lease should live so long. These leases were granted by the lord, on payment of a fine, at a small yearly reserved rent. They had probably been substituted for some more certain tenure, such as that which the copyholders enjoyed. There appear, in 1814, to have been thirty-five such customary tenants, of whom twenty-six were leaseholders. Up to the date of the sale by Lord Arundel to Lord Eivers, the tenancies of the Manor continued in much the same 218 TOLLARD FALNHAM. condition ; both copyholds and leases were renewed from time to time. When Lord Rivers became owner, he took steps to extinguish this system of tenure, and to get the land into his hand, and by the year 1850 the greater number of holdings had, by non-renewal of leases and acqui- escence by, or purchases from, the tenants, and other- wise, been in fact got rid of. There is no doubt that, previous to the extinction of such tenancies, the tenants, or owners, had rights of common over the waste land, and were rated for them, but after the change of tenure they lost their legal rights. In 1850 the common fields were inclosed and allotted, under the Act for facilitating the inclosure of such commonable lands. Having got rid of customary tenancies and the common-field system, and having freed the Common of the rights pertaining to it, the late Lord Rivers began to inclose. In 1851 he took up twenty acres of the waste, and in 1854 sixty -four acres. In 1850 he inclosed the residue of the Common, of seventy-five acres. The main object of these operations appears to have been that of game preserving, as it was stated that the land quickly became covered with wood, and that paths were cut and the game preserved in the woodland. No one seems to have objected to these inclosures, on the ground of being entitled to rights of turning out cattle or sheep on the land, for practically no Commoners were left. The three vil- lagers who, in 1807, committed the alleged trespass by entering the land thus inclosed, and cutting and TOLLABD FABNHAM. 219 carrying away underwood and furze, alleged that they and others had done so continuously ever since the inclosure, and without objection or remonstrance from the lord. It was stated by the arbitrator that it had been proved before him " That from the commencement of legal memory, down to the date of the inclosure, there had been ' user ' on the Common by a very large number of persons in the cutting 1 of furze and hazel wood for fuel. Such user was exercised continuously, openly, and as of right. . . There was no evidence to show that any person, living in any house in the parish of Tollard Farnham, had ever been prevented from exercising such user. Furze and haskets constituted the principal fuel in the village, and the construction of the houses prevented the use of coal. . The user has in every case been proved to be unin- terrupted down to the time of the inclosure. No evidence has been adduced by Lord Rivers of any permission or licence given by him, under which the user took place, and there is no reference to any such permission or licence in the Court Rolls of the Manor, nor is such right made the subject of express devise in any lease which has been produced of any tenancy in respect of which user has been proved/' It was also shown clearly that the defendants' relatives in past times had exercised their user, and had often been presented at the Court Leet for cutting in an irregular manner. The case stated by the arbitrator was argued before the late Chief Baron Kelly, and the Judges of the Exchequer Court, during several days, by Mr. Bowen (now Lord Bowen) for Lord Eivers, and Sir Edward Clarke for the villagers. On August 8th, 220 TOLLABB FABNEAM. 1878, Chief Baron Kelly delivered judgment, on behalf of the Court, in favour of Lord Rivers, and refused to admit the claim of the villagers. " If," he said, " such a right could be claimed by custom there is evidence of user which, coupled with the evidence of reputation, might raise a question whether the custom did not exist. But the right claimed is ' a profit a prendre' in the soil of another, and the authorities are uniform, from Gateward's case in Coke's Reports, that such a custom is bad in law. . . Many sound reasons are given in the authorities for this conclusion. " It might be added that where inhabitancy is capable of an increase almost indefinitely, and if the right existed in a body which might be increased to any number, it would necessarily lead to the destruction of the subject-matter of the Common. There cannot, therefore, be such a custom ; and for the same reason and others there cannot be a prescription, and there could not be a valid grant to so fluctuating a body, or a body so in- capable of succession, in any reasonable sense of the term, so as to confer a right upon each succeeding inhabitant. " There was a considerable argument before us upon the effect of a grant by the Crown to the inhabitants of a parish or village. The question seems to have arisen in early times, and there are several decisions in the year books on the subject; and the effect of them appears to be that where there is a grant by the Crown to the inhabitants of a particular parish, if the grant is made for a specified purpose, it has the effect of in- corporating them so as to carry that purpose into effect. . . '* In this case we are called upon to say that because there has been user in the inhabitants, there has been a grant in such a form as to make them into a body corporate, having perpetual successors. It appears to us that we ought not to make this presumption, not because it is impossible, but because it is TOLLABD FARNHAM. 221 inconsistent with the past and existing 1 state of things. We are to presume that a corporation has been formed many hundred years ago, when there is no trace at any time of its having ever existed. If the inhabitants had held meetings in reference to this right, or appointed any person to look to the right, or done any act collectively of that description, the case would be different. We should then have the inhabitants acting in a corporate capacity in reference to their right, and from their doing so, and from their existence de facto as a corporation, we might according to the ordinary rule find a legal origin by a grant from the Crown ; but to say that a corporation was created, which never existed, would be carrying the fiction of a grant further than has been ever done or than is consistent with reason." * The decision may well be compared with that of Lord Hobhouse in the Lough ton Lopping case. It may safely be said that if the one decision was right the other was wrong. In the one case we find a great Judge holding it to be his duty, if possible, to find a legal origin for a custom, which had undoubtedly existed from time immemorial. In the other we have the Court of Exchequer pushing legal technicalities to their extreme, in order to refuse recognition to a custom of at least equal age and equal certainty a custom which was part of the very existence of the people in olden time. It need not be said that those who supported the vil- lagers were very dissatisfied with this judgment. They believed it might be upset by a higher tribunal on appeal ; but they found themselves unable to incur the * Rivers v. Adams. 3 Exch. Div. 361. 222 TOLLARD FARNHAM. heavy cost of taking it there. The expenses of the in- vestigation into the history of the Manor, and of the pro- ceedings before the arbitrator and the Court, had been already very serious. It was only by the forbearance of the professional men engaged in the case that the cost was able to be met, and it was found impossible to raise funds for further litigation. Lord Rivers therefore maintained his victory. He had whatever satisfaction was to be derived from wresting from the labouring people of one of his many parishes an user and custom which had undoubtedly existed from time immemorial, and the deprivation of which rankled in their minds, and created grave discontent. This was part of his scheme for concentrating in his own hands all the property in the parish, and for turning the Common into a game preserve. How many other similar cases may there not have been in rural districts where no one has been fortunate enough to find assistance from outside to fight the great owner of the district, and where ancient and established customs have been arbitrarily set aside, and the labouring people still further depressed by their being deprived of the last vestige of a sense of property in the land on which they were born and bred ! It cannot be doubted that such acts are to some extent responsible for the exodus of population irom the country to the towns, which landowners (as well as others) are at last beginning to deplore. The case, thus described, was decided before the judgment of Lord Hobhouse in the Loughton Lopping TOLL ART) FARNHAM. 223 case, which has already been dealt with, and it formed a main topic of the counsel employed by the Corporation of London to resist the claims of the inhabitants of Loughton. Lord Hobhouse discussed the Tollard Farnham case in his judgment, and succeeded in drawing a distinction between the facts of that case and those before him. n The Judges of the Exchequer/' he said, M considered that the evidence of user was such as to raise a question whether a corresponding custom did not exist ; but they held there could not be such a custom. On the question of prescription they gave their general conclusion upon an examination of the evidence which they do not give in detail. That conclusion is that the evidence entirely fails to prove the user by the inhabi- tants generally, or as inhabitants, such as to justify the pre- sumption of a grant by the Crown. . . . On the question of incorporation they felt great difficulty. They held that it was necessary to enable the inhabitants to take an interest, and that they could not presume it in the absence of all evidence of corporate acts, and when there was another body legally existing viz. the tenants of the Manor, who are exercising unrestricted rights and publicly asserting their entire control over the underwood on the Common." It is difficult to grasp the distinction between the facts of the two cases. Chief Baron Kelly and Lord Hobhouse arrived at different conclusions from the facts before them. It appears almost certain that Lord Hobhouse, upon the principles he laid down, would have felt himself bound to find a legal origin for an user on the part of the inhabitants of Tollard Farnham, which was clear and definite, and went back to ancient times. It is almost as certain that the Barons of 224 ROWLEY GllEEX. the Exchequer would have decided the Loughton case against the inhabitants, for the reasons which they gave in the Tollard Farnham case. The two cases are good illustrations of the old saying that " Where there is the will there is a way." The Loughton case had the good fortune to go before a great lawyer who had the will to find a legal origin for the custom. That of Tollard Farnham had the misfortune to go before a Bench of Judges who appear to have had no desire to find a legal origin for the user which had undoubtedly existed. It cannot be denied that differences of this kind with reference to popular rights are to be found on the Bench, equally as on the political platform, and in the uncertainties of legal decisions of olden times there is ample excuse for Judges taking a course, in one direction or the other, as may be most conformable to their instincts. ROWLEY GREEN. The other case in which a reverse was experienced was that of a Common known as Rowley Green, in the Parish of Shenley, in Hertfordshire. The question involved was whether the Lord of the Manor had the right to inclose portions of the waste, with the consent of the homage of the copyholders, and making his own selection of the tenants to form such homage-jury for the occasion. The Common is one of the few remaining attractive open spaces to the North of London. The Manor consists ROWLEY GREEN. 225 of 300 acres of land held by free tenants, 200 acres by enfranchised copyholders with rights of common, and 52 acres of waste land or Common. On April 5th, 1887, at a customary Court of the Manor, a piece of land about half an acre was granted by the lord, with the consent of the homage of copyholders, to Eleanor Ramsey. The land was part of the waste in a green lane communicating with the Common, and the inclosure almost blocked the public way to it. This proceeding aroused a strong feeling in the parish. It was considered an unwarrantable encroachment on the rights of the Commoners, and a hideous disfigurement of the Green. It was also regarded as a dangerous precedent for the whole Common. It was not, how- ever, till May, 1891, that any action was taken, and that some of the inhabitants removed a part of the obstruc- tive fence. Thereupon a suit for trespass commenced. The defendants justified tbeir proceedings as Commoners. On the other hand, the Lord of the Manor defended his course on the ground of a custom of his Manor to inclose with the consent of the homage. It appeared that the Steward summoned certain or the copyholders to be members of the homage for the occasion, and the proposed grant was submitted to these nominees of the lord, who gave their assent to it. The defendant in the case was an enfranchised copyholder, who had no longer any right to be summoned, but who retained his right of common under the Copyhold Act. He claimed that, whatever might be the validity of the alleged custom to inclose 226 ROWLEY GllEEN. with the consent of the homage, as against copy- holders, it could not be valid as against a person who had ceased to be a copyholder, but who still retained his rights of common. The case was tried before Mr. Justice Day and a special Jury, in Middlesex, on October 27th, 1892. The Judge held that the defendant was bound by the custom of the Manor, after the enfranchisement equally as before, when he was a copyholder ; and as the Rolls of the Manor showed that on several previous occasions from 1700 the earliest date from which they existed small portions of the waste had been inclosed with the consent of the homage, he directed a verdict for the lord. The case was subsequently argued in the Court of Appeal, which upheld the ruling of Mr. Justice Day. The defendant was advised that there was every prospect of success, if an appeal were made to the House of Lords, on the two points : first, that such a custom cannot be valid against others than copyhold tenants of the Manor; and, secondly, that the custom alleged that the Lord of the Manor, with the consent of his own nominees on the homage, might inclose was unreasonable, and one that could not be sustained at law. The question would have been one of the utmost importance, for there are many Manors where customs of this kind are alleged to exist, and it would be a most serious matter if their lords could maintain their right to inclose the waste, with the consent of a homage nomin- ated by themselves, and without leaving a sufficiency ROWLEY GREEN. 227 of Common for the other Commoners. Fortunately, however, within a few weeks after the inclosure which was the cause of this action, the Copyhold Act of 1887 was passed into law, a clause of which as will be fully explained later has practically made it im- possible for Lords of Manors to avail themselves in the future of such customs, with any chance of success. No similar inclosure is ever likely to take place hereafter, and Rowley Green, it may be confidently expected, will be safe from any further aggressions of this kind. Under these circumstances it did not seem to be worth while to incur the heavy costs of an appeal to the House of Lords, in respect of a matter which, important as it was before the Copyhold Act of 1887, was no longer a serious question, and which affected only the inclosure of a plot of land not exceeding half an acre in extent. The two cases, however, of Tollard Farnham and Rowley Green, decided as they were by Common Law Judges, confirmed the view which the Commons Society formed at the commencement of their proceedings, that such cases are far better dealt with by the Equity Judges, who do not seem to be so closely bound by technicalities, and who have a wider range of knowledge of the older law relating to Commons and Customs. p 2 228 CHAPTEE XIII. The New Forest and the Forest of Dean. the new forest. The origin of Koyal Forests in England (with two exceptions) is lost in antiquity. They certainly existed before the Norman Conquest, a. d. 1006. Whether they were created or reserved as such by the early Saxon kings, or even at some more distant time, we know not. The only two of whose origin we know anything are the New Forest, created by William the Conqueror, and that of Hampton Court, due to Henry VIII. There are said at one time, in England alone, to have been sixty-eight Forests in the possession of the Crown, and thirteen Chases, or Forests in private hands. All the sixty-eight Forests have long ago been disafforested, in the sense that the Sovereign has no longer the privilege of maintaining deer and other game in them for sport, protected by special laws and tribunals. A few only exist in the popular sense of the term, that the land is still uncultivated and covered wholly or partially by woods such as the New Forest, the Forest of Dean, Epping Forest, Windsor Forest, Wolmer Forest, the Forest of Bere and Dart- moor. Some of these, such as Windsor Forest and Wolmer Forest, have been converted into the exclusive property of the Crown, free from any common rights. THE NEW FOREST. 229 We have it on the authority of some of the earliest historians, such as Walter Mapes, the Chaplain to Henry II., and Henry of Huntingdon, his con- temporary, that William the Conqueror, in creating the New Forest, devastated a wide district of cultivated land, demolished thirty-six churches, exterminated the inhabitants, and converted the land to the use of wild animals ; and the late Mr. Freeman, the able historian of the Norman Conquest, gave to this legend the weight of his great authority, though admitting that there may have been some exaggeration. With all respect, however, to this eminent writer, it is difficult for anyone who knows the Forest to believe the story, to the extent that he has done. That the Forest was established as such by this King admits of no doubt. He lived mainly at Win- chester, when in England, and the district between the liiver Avon and Southampton Water was conveniently near ; but the physical condition of this district and the miserable soil of the greater part of the Forest seem to negative the suggestion that it could ever have been thickly peopled, or have contained thirty-six churches, beyond what still exist there. The Saxon Chronicle, written during the lifetime of William, by no means in a friendly tone to him, which gives in great detail the other important incidents of his reign, and which condemns in strong language the passion of the great monarch for the chase, makes no mention of the formation of the New Forest. Such an event as the devastation of a wide district and the 2^0 THE NEW FOREST. demolition of thirty-six churches could hardly have escaped the notice of the Chronicler. It is probable that the district in which the Forest was created was wild and almost wholly uncultivated, interspersed, perhaps, with a few hamlets in the more fertile valleys. There are many indications in Domes- day to this effect. We know, also, that many of the Manors, of which the Forest consisted, were in the hands of religious bodies before the Conquest. It may be surmised that William took the wastes of these Manors forcibly from these bodies, and converted them into one great Forest subject to forestal law ; and that he may also in some cases have appropriated the land of private owners for the purpose. There is a passage in Domesday Book, quoted by Freeman, to show that the King did take property, from one person at least, for the purpose of adding it to the Forest. He may also have extended the limits of his Forest over contiguous private lands, in the sense already described in the case of Epping Forest namely, that while leaving the owners in possession of them, he subjected them to the Forest laws, and forbade the erection of fences above a certain height, or the cutting-down of trees without his con- sent, or the exercising the right of sporting over such private domains. The extension of a Forest in a legal sense in this manner, and the enforcement in it of the cruel game laws, must necessarily have caused great indignation in the district, and the early detractors of the Conqueror may have magnified the transaction into the story told and repeated by others. The misfortunes THE NEW FOREST. t>31 which fell upon William's family in connection with the Forest the violent deaths of two of his sons and of a grandson when hunting there may have acted as a motive to the monkish historians to find an adequate explanation for such calamities, which must have appeared to them to be of divine origin, as a retri- bution for some great crime connected with the Forest.* That William, having constituted the Forest in this region, administered and enforced the Grame laws in it with rigour and cruelty, cannot be doubted. The Chronicler of 1087 said of him, " He set mickle deer-frith and laid laws therewith, that he who slew hart or hind, that man should blind him. He forbade the harts, and so eke the boars ; so sooth he loved the high deer, as though he were their father. Eke he set by the hares that they should fare free. His rich men moaned at it and the poor men bewailed it ; but he was so stiff' that he recked not of their hatred ; but they must all follow the King's will, if the}*- would live or have their land or their goods or well his peace." The Forest thus created was extended by his immediate successors, and at one time it was thirty miles in length, embracing all the land between the Avon and Southampton Water. But these extensions were given up by Henry III. and Edward I., in defer- ence to popular agitation, and from that time till the disafforesting took place in modern times the Forest * The subject of the alleged devastation of villages by the Con- queror in order to form the Forest is fully discussed in Lewis's " History of the New Forest," and in the " History of Hampshire " by Woodward and Lock hart. 232 THE NEW FOREST. was about twenty miles from north to south, and fifteen from east to west, and embraced an area of 92,000 acres. Of this, however, nearly one-third, or 27,000 acres, was land in possession of private owners. Since the deer have been killed down, the Crown no longer attempts to en- force rights on enclosed lands. The Forest now prac- tically consists of 65,000 acres, of which a little over 2,000 are the demesne lands of the Crown, inclosed and cultivated, and the residue belongs to the Crown, but is, except so much of it as has been temporarily inclosed for the plantation of trees, open and unin- closed, and subject to the rights of common of a very large body of owners and occupiers of cultivated lands in the neighbourhood of the Forest rights of turn- ing out cattle and horses, of turning out pigs to feed on the acorns and mast in the Forest, and rights of turbary and of digging loam, etc. A great part of this wide range is open heath and moor. Other portions of it are covered with groves or plantations of oak and fir. The trees belong to the Crown, and from an early time supplied oak timber to the dock- yards for the construction of vessels of war, so long as the days of wooden vessels existed. Large numbers of deer (for the most part fallow deer, but including some red deer) were formerly maintained in the Forest, and when they found food scarce in the uninclosed land, they ranged over the land of private owners, in such numbers as to make cultivation very un- profitable. My father, in the early part of this century, inherited a property in the Forest, known as Burley, THE NEW FOREST. 233 of about 800 acres, one of the ancient reservations, completely surrounded by forest land. I have often heard him say that the deer came upon his land in such numbers, and so devastated the crops, that it was impossible to let the property, or to cultivate it to any advantage, and not being able to reside there, he was ultimately obliged to sell it at a very low price. This was at the time when the forestai laws were still maintained, and when it was not lawful for any owner, within the limits of the Forest, to erect fences, so as to exclude the deer. Great abuses existed in the Forest from an early time, not merely as regards the timber, but also in respect of the deer. Poaching became a trade, and. demoralised the people in the neighbourhood. It was proved before a Committee in 1848 that not more than 110 bucks were annually killed for the Crown on the average of years, and that each buck cost upwards of 100. The greater number of these were given to owners of land in the neighbourhood, in return for preserving the deer. Of the wooded parts of the Forest, a portion consists of groves of ancient timber of natural growth and of very great beauty. In these the oaks and the beeches stand in groups separated by irregular patches of dwarf gorse and heather, or by glades fringed with ferns, or by broad lawns or moor. Many of the trees have been pollarded in past times to browse the deer. Bratley Old, JBramshaw Wood, Denny Wood, and Mark Ash, are among the noblest relics of the ancient Forest. In 23-t THE NEW FOREST. Mark Ash especially an adequate idea can be formed of a real Forest unspoilt by man. The trees stand wide apart, and are all of great size ; at the edge of the wood they are fully developed, and the boughs feather to the ground, but within it the growth tends upwards. Mixed with them are thickets of hollies and hawthorns with a setting of fern, forming a sylvan scene of unique beauty. Other portions of the Forest, in the true sense of the term, consist of woods planted by the Crown under legislative powers, which gave the right to inclose land for the purpose, and to shut out the Commoners until the trees should be grown to a size at which the cattle could do no harm to them. During the Civil Wars of Charles I. and the Commonwealth the Forest was much wasted of its timber. Later, the fear arose that there would not be a continuous supply of timber for the Navy. Power was, therefore, given by Parliament in 1698 to inclose G,00() acres for planting. This was strictly limited to the growth of timber for national purposes. The planta- tions were to be made gradually 2,000 acres were to be inclosed at once, but the remainder at a rate not exceeding 200 acres in any one year; and the planta- tions were again to be thrown open to the Commoners so soon as the trees were past damage by the cattle and deer. When auy part of the 6,000 acres had been thrown open, a similar quantity might again be planted on the same terms. Under these provisions about 10,000 acres w r ere inclosed and planted prior to 1851, but the whole extent had been thrown open again, with the exception of THE NEW FOREST. 235 4,000 acres. The restriction as to oaks, and the selection of areas for planting, resulted in the general features of the Forest being little altered by these operations. There was no dull uniformity in the plantations, and most of those which still exist exhibit all the wild beauties of Nature. When thrown open, the cattle soon trod down the banks. In 1851, in consequence of the abuses which were then made public, it was determined to do away with the deer in the Forest, and to disafforest it, in the sense of getting rid of all the exceptional laws respecting them. There were said to be 3,000 deer at that time. The Sovereigns no longer came to the Forest for sport, and there was no object in maintaining the deer. As the removal of them, it was thought, would add to the pasture for the Commoners' cattle, and would make it no longer important to prevent the turning out of cattle during the fence month, when the does were dropping their fawns, or during the winter heyning, when the Forest was reserved for deer, it was thought that the Crown ought to take some compensation for its forestal rights, in the shape of increased power to inclose parts of the Forest land for the planting of timber. The Act of 1851, therefore, on this understanding, provided that the Crown should be empowered to in- close and plant an additional extent of 10,000 acres over and above the (5,000 acres already allowed under the Act of 1G98. Under the joint provisions of the two Acts the Commissioners of Woods and Forests, in whom the later Act vested the control and management 236 THE NEW FOREST. of the Forest, claimed that they had the right to inclose successively the whole of the open lands of the Forest, whether timbered or not, on condition that, by successively throwing down the fences of previous inclosures when the trees were of a height to save them from destruction by cattle, they should avoid keeping more than 16,000 acres at any one time within fences. It is clear that, from the year 1851, the Commissioners of Woods assumed the position with reference to the Forest that Lords of Manors have taken up of late years as to Commons. They asserted that the Crown was practically owner of the Forest, that the Commoners' rights were of little value and might be disregarded, and that as officers of the Crown they were bound to make the very utmost income out of the Forest, with- out regard to the interests of the Commoners or of the public. In 1854, under the authority of the Act of 1851, a Commission, of which Mr. Coleridge, now Lord Coleridge, was a member, sat for the purpose of deciding upon the claims of persons entitled as Commoners ; and in spite of the fact that many persons neglected to put in claims, and that the presumptions of the Commission appear to have been rather against the extension of rights, it was held that the owners and occupiers of no less than 65,000 acres of land, not waste of the Forest, situate in sixty-three parishes, were entitled to turn out their cattle and horses, and to exercise other rights in the Forest, and that the occupiers of 1,200 houses were entitled to take turf in it for fuel. THE NEW FOREST. 237 There can be no doubt that these rights of common over the Forest had been, from time immemorial, of the greatest value to the small owners of land, copyholders, and tenants in the neighbourhood, and were the main cause that many small owners still existed, and had resisted the tendency elsewhere to aggregate land in few hands, and, still more, that small holdings of land prevailed, and had not been consolidated into large farms. They were also of equal value to the cottager with his half-acre of land attached, in respect of which he could turn out a cow or a pony, and could drive his pigs into the Forest to feed on the acorns. The neighbourhood of the Forest is the best place in England one of the very few still remaining for studying the condition of small owners, tenants, and cottagers under such circumstances, and for appreciating the effect, upon such classes in the agricultural com- munity, of the great in closures of past times. The existence of these rights undoubtedly accounts for the large measure of prosperity among these people, and for the absence of pauperism. The Forest itself, on account of its varying conditions, its great variety of soil and water-supply, of shelter and exposure, is peculiarly suitable for the turning-out of hardy cattle and ponies. They can at all times, and in every kind of season, find fitting places for feed and shelter ; any deficiency in one part is supplied by sufficiency or excess in another ; and the animals travel long distances to find the most suitable conditions, whether for water and shade in dry seasons, or for dry land 238 THE NEW FOREST. when in wet seasons the lower ground is cold and swampy. The existence of these rights favours greatly the smaller owners and tenants, and the cottagers. The larger the farm the less use is made by its tenant of the Forest. The land of the large farm is of better quality, and the proportion of meadow is sufficient ; the improved breeds of cattle are too delicate to turn out in the Forest. The wastes of the Forest are mainly for the benefit of the smaller occupiers and cottagers. The}'" make it their business to turn out the proper kind of stock. The right also of cutting turves for fuel is of the utmost value to them. The rough turf formed of roots of heather makes an excellent fuel in combina- tion with wood bought from the Forest. This turf- cutting does no injury to the surface, the rule being to cut one and leave two turves. The old heath being removed, a grow 7 th of new heath is insured, and short grass often comes up in the pared spaces. The turf renews itself in seven year* ; meanwhile the pas- ture is improved. The right of turning out pigs is also of great importance. When the prospect of beech-mast and acorns is good, the cottager buys his pigs as early and cheaply as he can, and may rely upon a clear profit often shillings on a pig. Cottagers have been known to make twenty pounds in a year by their pigs. The turning - out of a mare or a cow is likewise much valued by them. The possession of an animal for this purpose is often to a young labourer the first step on the ladder the inducement to him to save, with a view to becoming the THE NEW FOREST. 239 tenant of a larger holding ; and many are the men who have risen in this way from the position of labourer to that of farmer. Thus it is that there has grown up round the Forest a class of small occupiers, thrifty and fairly prosperous even in these days of agricultural depression, independent and with the sense of property, and to the last degree tenacious of their rights. As time went by, after the Act of 1851 it became more and more clear to the Commoners, and to those interested in the Forest from a public point of view, that the scheme of that Act, if carried out in the manner in which it was being put in force, would result in the destruction both of the beauties of the Forest, and of the value of the Commoners' rights over it. When an inclosure for planting was determined on, the whole of the ancient timber within the area was cleared away ; the land was then drained by wide open drains, and was closely planted with Scotch firs and young oaks. These new plantations, owing to the preponderance of firs, were formal and gloomy in the extreme. All the former pasturage in the area was destroyed, and the growth of new feed in these closely -planted inclosures was impos- sible. It became apparent, from the disinclosed speci- mens of the much less mathematical and scientific method of planting under the Act of 1698 in the time of the early Georges, that the "nurseries" authorised by the Act of 1851 would replace the wild and picturesque woodlands with plantations of a most monotonous and artificial appearance, fatal to the natural beauty of the scenery, which they would destroy past all chance of restoration, 240 THE NEW FOREST. whilst in themselves of little importance to the ship- builder and of no value to the Commoners. The only defence of the Commissioners of Woods and Forests, who were responsible for the policy thus described, was that they were bound by their duty, as public servants, to look at the questions affecting the Forest from the point of view of the public revenue only, and to enforce their strict legal rights to the utmost. They did not pretend that their object was any longer to supply timber for the navy ; it was notorious that, owing to the almost universal use of iron in shipbuilding, the demand for oak had almost disappeared. The timber of the New Forest had for many years been of no practical value to the navy. The change of public opinion which occurred after 1865, on the subject of Commons, resulted in directing attention to the condition of the New Forest ; and a movement grew up having the double motive of preserving to the Commoners the full enjoyment of their rights, and of securing to the public that the Forest, as far as possible, should be maintained in its state of Nature, as a kind of national park or recreation ground, and shouid not be regarded only from the utilitarian point of view of the greatest possible revenue it could produce, without respect to these other considerations. In 1871 this movement had its result in a motion in the House of Commons, proposed by Mr. Fawcett, to the effect that, pending further legislation on the subject, no fresh inclosure or felling of timber should take place in the New Forest. The Government, under the THE NEW FOREST. 241 pressure of opinion in the House, somewhat reluctantly assented to it. In 1875, when a change of Government had taken place, it was intimated to the residents in the Forest that this resolution of the House of Commons could not be considered as binding for an indefinite time, and that some steps must be taken to bring the subject to an issue. Thereupon Lord Henry Scott (now Lord Montagu, and then member for the division of Hampshire in which the Forest was situate) moved for a Select Committee "to inquire into and report upon the condition of the New Forest, into the operation of the Deer liemoval Act of 1851, and particularly into the exercise and effect of the powers of inclosure given by that Act." The case of the Commoners and of the public was presented before this Committee by Mr. Robert Hunter, on behalf of the New Forest Association, a body repre- sentative of the Commoners, and of the Commons Society ; and among others Mr. Fawcett gave evidence as to the disastrous effect of the Act of 1851, if further enforced, in destroying the beauties of the Forest. Many also of the smaller Commoners appeared, and much impressed the Committee with the strength of their case, and with their conviction that the Act would result in their ultimate ruin and extirpation. Meanwhile, the attention of the public was aroused to the subject of the Forest by an exhibition of pictures and sketches of scenery in the district, pro- jected by Mr. Briscoe Eyre and Mr. George Mor- rison, and the expression of opinion these evoked was Q 242 THE NEW FOIiEST. embodied in several very influential petitions presented by Mr. Fawcett. The Committee was presided over by the late Mr. W. H. Smith, and among the members were Mr. Cowper Temple and Sir William Harcourt. The result was eminently satisfactory. The report of the Committee consisted of a series of resolutions favourable to the Commoners, and to the maintenance of the Forest in its then state. The more important were as follows : 1. That the New Forest should remain open and unin- elosed except to the extent to which it was expedient to maintain the existing- right of the Crown to plant trees. 2. That the ornamental woods and trees should be care- fully preserved, and the character of the scenery maintained. 3. That the power of inclosure conferred by the statutes of 1698 and 1851, should be exercised on that area which had till then been taken in at various times, and been either kept or thrown open. . . That the rolling power of inclosure over the open portion of the Forest, not then planted or inclosed under the two Acts, should cease. In 1877, an Act was passed embodying these proposals. It also reorganised the ancient Court of Yerderers on a popular basis of representation of the Commoners, so as to enable it to represent and protect their interests. This measure, whicb was strongly supported by the Commons Society, passed without THE NEW FOREST. 243 opposition, and became law under the title of the "New Forest Act, 1877." The result was a victory both for the Commoners and the public. Under the Act of 1851, about 8,000 acres had been inclosed in addition to the 10,000 under the Act of 1698, and of these 18,000 acres 8,000 had been thrown open, and 10,000 remained inclosed. The Act of 1877 provides that the power of inclosure enjoyed by the Crown should be confined to these 18,000 acres, which comprise the best land in the Forest, and which may be thrown out and re-inclosed at will, provided that not more than 16,000 acres are actually inclosed at one time. The Commoners are thus secured in the remainder of the 63,000 acres, or 45,000, of which about 6,000 are partially covered with old timber. It is laid down by the Act as a matter of principle that the natural beauties of the Forest are to be preserved, and the right of the public to the enjoyment of it is fully recognised and perpetuated. At the first election of the Verderers, Mr. Briscoe Eyre, who had done so much to preserve the Forest, and to protect the interests of the Commoners, was returned at the head of the poll. Owing to his exer- tions a serious blot in the Act was remedied in 1879. A large number of owners and occupiers of land in the neighbourhood of the Forest, but not on the authorised Register of Commoners, through various causes, had been allowed by the Verderers to turn out cattle in the Forest ; but on account of the fact that registered Commoners were taxed under the Act of H 2 244 THE NEW FOREST. 1877, for the maintenance of the Forest, it was held that those, who were not registered, would thence- forward be wholly excluded from the Forest. Such a course would have brought hundreds of families to the workhouse. Fortunately, the Government was induced to pass, in 1879, a short Act authorising the Verderers to allow persons not registered to turn out cattle in the Forest on payment of a small fee. In 1891, another, and it is to be hoped a last, attack was made on the New Forest. At the fa distinctly laid down that all the male persons born and abiding in the Hundred of St. Briavel, and of the age of twenty-one j r ears and upwards, who should have worked a year and a day in coal or iron mines within the Hundred, should be entitled to be registered as Free Miners ; and that only Free Miners should have the exclusive right of having gales or works granted to them by the officer, called the gaveller, to open mines within the Hundred. Such gales or grants confer an interest in the nature of real estate, and are perpetual, subject to conditions for the payment of certain rents and royalties to the Crown. These royalties are fixed on the assumption that, after the coal or iron has been reached, the Crown is entitled to one- fifth of the net profit of working the mine. In case of dispute the royalty is settled by arbitration, and then remains fixed for twenty-one years. The Free Miner can sell his gale, and a large part of the mines in the district are not now held by Free Miners, but by persons who have purchased up the interests in .their gales. Nearly the whole of the coal field in the Forest is now included in existing gales. Under this system the mining industry has grown up. The output of the coal mines now averages about 900,000 tons a year, and that of the iron mines about 100,000 tons. The royalties to the Crown produce annually about 12,000 for coal and 5,000 for iron. The existing gales of coal and iron are 2G0, of which not more than 80 are worked. It would seem that the growth of population r 2 260 FOREST OF DEAN. caused by this great increase of mines, has long ago necessitated the appropriation of parts of the Forest for their accommodation. Of the 24,000 acres, of which the Forest consisted in the time of Charles II., only 18,500 acres are now forest or waste, 700 acres belong to the Crown, and 4,800 acres are the property of private individuals, as a result of encroachments from time to time on the waste, eventually recognised by the Crown. On this private land has grown up the town of Cinderford, and several other villages, in a very irregular manner, often without adequate drainage. In 1874, in consequence of complaints of the want of sufficient accommodation for the population, and of the sanitary defects of the district, a select Committee was appointed by the House of Commons to iuquire into the condition of the Forest. The inquiry escaped the notice of those interested in Commons, and the Com- mittee, then appointed, contained no member who represented the views of the Commons Society. The Committee reported that the rights of Free Miners tended to obstruct the advantageous develop- ment of the Forest mineral field, and were detrimental to the interests of the Crown, and of the public ; that the rights were almost valueless to those not already holding gales ; that the general feeling in the neigh- bourhood was in favour of the commutation of the legal rights of the Commoners ; and that the convenience of the mining population, and of the mining works, required that the Crown should have power to sell portions of the Forest free from Common rights. They FOREST OF DEAN. 261 stated that the existing plantation was in a thriving condition, varying in age from ten to seventy years, and that in about fifty years a large proportion of them would reach maturity. The Committee did not con- sider that it would be expedient to destroy or alienate the existing oak plantations, or any large part of them ; but that, as far as possible, the sales of land should be confined to the outskirts of the Forest, and to the vicinity of existing houses. In the following year, 1875, a Bill was introduced by the late Mr. W. H. Smith, then Secretary to the Treasury, for the purpose of carrying these recommend- ations into effect. It was in fact an Inclosure Bill. It gave power to the Crown to ascertain and buy off the Commoners' rights, and to convert the Forest into its absolute property. As regards the Free Miners, it proposed that in future no fresh gales should be granted, and that the Crown should be empowered to buy up and extinguish existing gales. It very soon appeared that the Committee of 1874 had been entirely misled as to the feeling of the people of the district, on the subject of their rights of common over the Forest, and as to the maintenance of the rights of Free Miners. Indignation meetings were held in the district to protest against the Bill. Numerous petitions were presented against it by the Free Miners and the Commoners, and the Commons Society was appealed to, to assist in defeating the measure The Society, while not averse to giving power to the Crown to provide for the necessities of the district by selling 232 FOREST OF BEAN. sites for houses, gardens, and allotments, free from common rights, were of opinion that the conversion of the whole Forest into the absolute ownership of the Crown was unnecessary and unadvisable, and they lent their aid to defeat the scheme. The Bill was dropped for that year; but in the following autumn, notices were issued of the intention of the Government to introduce the Bill again in the ensuing Session. Thereupon, on behalf of the Commons Society, I entered into a correspondence with Mr. W. H. Smith, in which I pointed out the objections on principle to the inclosure of the Forest. I contended that there were precisely the same reasons against adopting this course, as had been asserted by the Committee of the House of Commons in 1875, of which Mr. W. H. Smith himself had been Chairman, against the inclosure of the New Forest ; that the object and intention of that Committee was to preserve the New Forest open and uninclosed, for the benefit of the Commoners and the public enjoyment ; that the Forest of Dean was not unworthy of the same treatment ; and that, although there was less of ancient timber left in it, it had some natural advantages superior even to the New Forest. I further informed him that we had reason to know that very strong opposition would be made by the Commoners and Free Miners of the Forest to the pro- posed Bill ; but that I was authorised to say that these people would not object to the inclosure by the Crown, free from common rights, of portions of the open land of the Forest near to the towns FOREST OF DEAN. 263 and villages, to the extent of 1,000 or even 2,000 acres, sufficient to meet all the necessities of the district for increased accommodation of the population, for residences, gardens, and allotments. I also pointed out that there could be no reason why a different policy should be pursued in respect of the two Forests ; that both of them in their present condition were valuable legacies to the nation ; that, if reduced into absolute ownership of the Crown, they could not be recovered ; while, so long as they were subject to Commoners' rights, they could from time to time be adapted to any necessary want, such as that now existing in the Forest of Dean for sites for miners' houses and for allotments, without depriving them of their value for public- enjoyment and recreation. The effect of this correspondence was that the Government announced that they did not intend to proceed further with their measure for inclosing the Forest ; and that they were advised by their Law Officers that they had, under an existing Act, power to sell limited parts of the waste, from time to time, for the necessities of the population. It resulted, therefore, that practically the same policy was laid down with respect both to the New Forest and the Forest of Dean. They are both to be preserved henceforth in the interest of the public and of the commoners, while the Crown is secured in its long established right of making large but temporary inclosures for the planting and growth of timber. 264 CHAPTER XIV. Burn ham Beeches. Of the Commons within twenty- five miles of London, easily accessible by railway, and every year becoming more and more the resort of Londoners, the most renowned for its beauty is that knowm as Burnham Beeches. It lies within three or four miles of Slough, at no great distance from Stoke Poges Church. It owes this reputation not so much to the lie of the land, as to its splendid groves of ancient beech trees. The poet Gray lived for some time within half a mile of it, and is supposed to have composed his celebrated Elegy on a Country Churchyard when walking in it. Writing to a friend he said : " The Common is covered with most venerable beeches that, like most ancient people, are dreaming out their old stories to the winds * Arid as they bow their hoary tops relate In murmuring sounds the dark decrees of fate ; While visions, as poetic eyes avow, Cling to each leaf and swarm on every bough/ " The beeches are of very great size ; each tree stands out by itself. They were evidently pollarded at some long distant date. Tradition says that this was done in Cromwell's time, in order to make stocks for mus- kets. They form a rare and unequalled picture of sylvan grandeur and beaut}', quite unique of its kind. BURNHAM BEECHES. 265 The Common consists of 374 acres, of which about half is planted with these splendid beeches, and forms part of the Manor of Burnham. This Manor was at the time of Domesday in posses- sion of the Bishop of Lincoln ; later it was escheated to the Crown. Henry ITI. granted it to the Abbess of the neighbouring Convent of Burnham. On the disso- lution of the Abbey, the Manor was granted away by Henry VIII., and for generations remained in the pos- session of the Eyre family. The last representative of this ancient family was Captain Popple, who, in 1812, sold the reversion, after his death, of his property, including large demesne lands and the Manor, for a considerable sum, to Lord Grenville, the well-known statesman, the owner of the domain of Dropmore, within the same Manor. Dropmore itself is said to have been inclosed by Lord Grenville from a Common. Its park and pleasure grounds, consisting of 600 acres, are celebrated for their collection of trees. This and other purchases within the Manor, made Lord Grenville the owner of nearly the whole of it. The acquisitions were in pursuance of the policy of the Grenville family to consolidate their political influence in the county. Captain Popple, contrary to all actuarial expectation, lived on till 1830, and Lord Grenville then at last came into possession of the Manor, to enjoy it only for a few months, to appreciate that he had made a very bad bargain, and to be conscious that the Reform Act, then imminent, would sweep away the political influence which he had so carefully built up. His 266 BURNHAM BEECHES. widow survived for many long years to a very advanced a g e - There is a most interesting account given of the parish of East Burnham, in her collected papers, by Mrs. Grote,* the widow of George Grote, the historian, and herself a woman of powerful intellect and inde- pendent judgment. The Grotes lived in the Manor for twenty years. Mrs. Grote gives a most graphic account of the neglected state of the parish, and of the evils brought about by the concentration of property in a single owner, when that owner is unwilling or unable to perform any of the duties pertaining to such a position. The cottages were neglected and allowed to fall into dilapidation. Several of them were pulled down, to such an extent that the accommodation was insufficient, and great hardship was inflicted on some of the labourers, employed in the parish, by their having to walk long distances to their work. The highest rents were screwed out of the cottagers, increased by the fact that residents in the parish were entitled to the benefit of certain charities. The two public-houses were leased to brewers, who endeavoured to make up their high rents by selling deleterious mixtures to their customers. The Game Laws were enforced with the utmost severity. The owner never came near the hamlet. The agent lived in Cornwall and was seldom visible. "The current impression in the place/' says Mrs. Grote, * " Collected Papers of Mrs. Grote," John Murray, 1862. BURNHAM BEECHES. '267 " was that Lady Grenville entertained a feeling akin to spite and aversion towards this portion of her estates ; and certainly if such were the case, no one could wonder at it, after learning what I have narrated concerning- the mistaken calculation which her husband fell into in purchasing the reversion to it at so high a rate. I never heard of her ladyship setting foot in any one of the cottages or farms on this estate during the twenty years of my connection with Burnham." What, however, is more pertinent to the present narrative is that Lady Grenville, by the advice probably of her agent, began a series of arbitrary acts with reference to the Common, such as indicated a determina- tion to assume absolute ownership over it, and to deny the rights of any others. The people of the district, whether Commoners by virtue of the ownership of land, or as tenants of the land of others, had been in the habit of cutting turf for fuel in the boggy parts of the Common, and firewood in its coppices. Mr. Grote, like others, had availed himself of this right for the benefit of the labourers he employed. Lady Grenville forbade the exercise of it, and when remonstrated with, her agent declared the Common not to be " a Common of turbary," and that Lady Grenville was entitled to the exclusive jurisdiction over it, to the entire abrogation of all rights or privileges on the part of any other per- sons. " If she granted leave," he said, " to anyone to take away any portion of the soil, such as turf, gravel, peat, and the like, it was as a matter of favour which might be annulled at pleasure." Mrs. Grote says that she found but one feeling ex- isting on the subject among the people of the parish 268 BURN HAM BEECHES. that of extreme dissatisfaction, coupled with a sense of injustice. The cottagers asserted that carts belonging to persons living at a distance were continually sent to carry away from the Common, by permission of the steward, quantities of peat, sand, fallen leaves, and turf. They complained that these parties were allowed to benefit by the Common, although they contributed nothing to the rates, whilst not one of these very ratepayers could take a single barrow-load without going to Dropmore to ask leave. " They felt, in short, that Lady Grenville was seeking to establish an ' absolute ' rather than a manorial property in the soil ; giving away the same out of the parish in any quantity she thought fit, and preventing any one but herself from using the soil unless specially authorised by herself." Mrs. Grote goes on to say that she felt a strong desire to probe the whole matter, and to contest Lady Grenville's rights, in the interest of the labouring people ; and that she would willingly have taken steps to this end, but she found herself deterred by the fear of bringing down upon the heads of the labouring people the vengeance of the agent. " He had lately, it seems, explicitly given them to understand that whoever moved in the matter or furnished information, tending to call in question Lady Grenville's supremacy, would be immediately turned out of their tenements. This menace had the effect of tying up the tongues of all her tenants, and of inducing them to wish that no further ' stir ' should be made. The whole of the inhabitants, it may be said, rented cottages under Lady Grenville, with the exception of my gardener, Mr. Ludlam's three tenants, and one or two cottages on the Common , BUBNIIAM SEECHES. 26!) so under these considerations, knowing how grievous a penalty the quitting a tenement would be to any East Burnham resident, I was obliged to lay aside whatever intention I had before cherished of seeking to aid my poor neighbours in this matter." While tenacious to the last degree of her rights, or supposed rights, Lady Grenville took no pains to preserve order or even decency in the Manor. The roads were neglected. The gates which had formerly prevented cattle from straying from the Common were not maintained. Pigs, unrung, were allowed to tear up the surface of the Common. Mrs. Grote attributed much of the evil to the fact that Lady Grenville, on account of her great age, delegated her power to an irresponsible and ignorant agent. " The situation in which the large estate of Lady Grenville found itself at this period is one not unfrequently exhibited in England, but which is not only unfavourable to the interest of the inhabitants, and of those who are in any way dependent on the property, but is, in a minor degree, inconvenient to all residents in its vicinity. An aged landed proprietor delegates her authority over her lands and Manors to persons of an inferior station in life, who cannot take the same view either of public interests, or of the credit attaching to the condition of a gentleman, as the proprietor herself. . . . The whole system under which the district was administered revolved round Lady Grenville represented by a paid agent (living three hundred miles away in Cornwall), and he again by a young deputy instructed to keep down expenses and to maintain ' rights/ The poor were left without anybody to care for them, all trembling at the nod of 1 the steward.' " The annoyance, vexation, and sense of injustice 270 BURNHAM BEECHES. resulting from this state of things, at last induced the Grotes to leave the district in which they had spent twenty years. " The oft-recurring vexations incident to the position I occupied," Mrs.Grote sa} T s, "namely that of a lady residing in the centre of a population dominated by a young servant, armed with the authority of the owner of all the land, manorial privileges, and cottages (nearly all) in my district, from whose arbitrary control no appeal could be made on account of Lady Grenville's advanced age ; these oft-recurring vexations made me feel very uncomfortable." She felt there was no redress. Mr. Grote was not prepared apparently to take up the cudgels against Lady Grenville in the Law Courts. Tliey left the district in consequence, in 1858, some years before the revived interest in Commons, and before the decisions in the Law Courts which might have fortified their position against Lady Grenville. The incident of Mrs. Grote's connection with Burnham Common is the more important from the fact, as she told me later, a short time before her death, that she had been the cause of a change of opinion in John Stuart Mill on the subject of Commons. Mill, like the earlier economists, had been strongly in favour of inclosing them, with a view to the greater production of the soil ; but she was able to point out to him, from her personal experience, the importance of common rights to the labouring people ; her narrative of what occurred in Burnham completely turned the current of his views on the subject, and was the cause of the active support which he gave to the preservation BURNHAlf BEECHES. 271 of Commons as a member of the Society, from the year 1866 to the end of his life. Nothing more was heard of Burnham Beeches till 1 870, when on the death of Lady Grenville's successor to the property, the Manor with its Common and the beautiful beeches, together with 175 acres of freehold land adjoining, was offered for sale by public auction, separated from the great landed estate, of which it had for some years been a part, and which was possibly to some extent a security that the Common would not be inclosed. In the particulars of sale, the common rights, existing over the Common, were represented to be few and unimportant, and expectations were held out that the purchaser would be able to inclose. At all events, there was danger that a wanton purchaser might do so ; and might cut down the celebrated beeches, or otherwise interfere with the beauties of the place. The attention of the Commons Society and of the Kyrle Society was directed to the subject ; inquiries were made as to the common rights, and bearing in mind Mrs. Grrote's account of the manner in which Lady Grenville had endeavoured to get rid of these rights, it was thought very desirable that all danger to the Common should be removed by the purchase of it by some local authority, in the interest of the public. Negotiations were entered into with the vendors, and a refusal was obtained for the property at an agreed price for a week. The subject was then brought under the notice of the Corporation of London, which had recently obtained 272 BURN HA. VI BEECHES. a private Act enabling them to deal with all Commons within twenty-five miles of London. A deputation consisting of members of the Society, and of the Kyrle Society, was introduced by the writer to the Committee of* the Corporation having charge of the subject of open spaces. The only difficulty in the way of the Corpora- tion was that their powers under their Act were limited to Commons, and did not extend to the purchase of adjoining freeholds. Sir Henry Peek, however, at the instance of Mr. Robert Hunter, who was at that time acting both for the Corporation in relation to open spaces and for Sir Henry, came forward most promptly to relieve the Corporation of this difficulty, and agreed to acquire the whole property as put up for sale, to retain himself the freehold, consisting of 175 acres, and to resell the Common to the Corporation at an agreed price. The Corporation, relieved of this difficult}', readily adopted the suggestion of purchasing the Common for the very moderate sum of 6,000, or less than 20 an acre, not a tenth part of the value of the land, on the assumption that it was free from common rights. This most interesting place, therefore, with its groves of noble beeches, presenting hundreds of pictures of sylvan grandeur, came under the protection of the Corporation of London, and has been secured for ever for the enjoyment of the public. 273 CHAPTER XV. Rural Commons. The movement for the preservation of Commons, which commenced in 1864, was for the first five years mainly directed to the saving of the Commons round London from arbitrary inclosure. In 1869, the late Mr. Fawcett became an active member of the Commons Society, and ab his instance its operations were ex- tended to rural Commons, in the interest mainly of agricultural labourers. In the same year his attention was directed to the proposals then before the House of Commons, in the annual Bill of the Inclosure Commissioners, under which many rural Commons were scheduled for in- closure, with an aggregate area of 6,916 acres. Of this it was proposed by the schemes to appropriate the miser- able pittance of three acres for the recreation of the people of the districts dealt with, and of six acres for allotments for labouring people, in lieu of their cus- tomary user of the common lands. Among the Commons included in the Bill for in- closure was that of Wisley, an open space on the road from Kingston to Gruildford, just beyond the pine woods of St. Georges Hill, one of the beautiful Surrey Commons, which add so much to the beauty and residential charm of that county, and which are admitted to be of no value s 274 BUBAL COMMONS. for cultivation. It was very near to Fox Warren, the residence of the late Mr. Charles Buxton, and through him the inexpediency of the inclosure of this Common became generally known. Mr. Knatchbull- Hugessen, later Lord Brabourne, the Minister in charge of the Bill, agreed to treat Wisley separately, and to refer the question of the expediency of inclosing it to a Select Committee, but he pressed on the measure so far as it concerned the other Commons. It was at this stage that Fawcett' s attention was directed to the matter. He had already, in writing a few years before on the subject of the agricultural labourers, pointed out the injurious effect on their con- dition, of the inclosures of the past 200 years. He was now to deal with the subject in his quality of a practical statesman. The measure for confirming the inclosure of the Commons referred to had already reached its last stage. It was treated, as had been the custom since the Inclosure Act of 1845, as a mere matter of routine, not involving the responsibility of the Minister in charge of it. Fawcett gave notice of a motion for the recommittal of the Bill, upon the third reading, in order to extend the provisions in the schemes as to the allotments for labouring men. This was opposed by the Government, and night after night, until the early hours of the morning, Fawcett was in his place, with a dogged persistency, to prevent the measure being taken at a time when there would be no opportunity of discussing the matter, with any prospect of engaging public interest. At last, on April 9th, 18G9, BUBAL COMMONS. 275 the Bill came on at a reasonable hour, and Fawcett made his motion. Aided by the late Mr. Locke, Q.C., and Mr. Thomas Hughes, he produced such an impres- sion on the House that the Government was compelled to refer the subject to a Select Committee, and mean- while to suspend further proceedings on the Bill. The Chairman of this Committee was Mr. Cowper Temple ; Sir William Harcourt and Fawcett were among its mem- bers. The Committee went fully into the question of inclosures, and the policy of the Inclosure Commis- sioners in giving their approval to them, and framing their orders. It became abundantly clear from the evi- dence, that the Commissioners acted on the principle that it was their duty, in carrying out the policy of Parliament, to facilitate and promote inclosures as far as possible. The Committee came to the conclusion that the provision made for the public and the labouring people, where inclosures took place, was most inadequate. They recommended many amendments of the Inclosure Act of 1845, with the object of rectifying this great scandal. They insisted upon the necessity of local inquiries at hours, when the labourers would hav-3 the opportunity of presenting their views. They advised that no further schemes should be sanctioned until the Act of 1845 had been amended. They struck out the cases of Wisley Common, and Withypool Com- mon, in Somersetshire, from the Bill before them the one pending another inquiry as to the expediency of extending the Metropolitan Commons Act to twenty- five miles' distance from London, which would include s 2 276 BUBAL COMMONS. Wisley ; and the other, because the provision of a single acre for recreation, out of 1,800 proposed to be inclosed, appeared to them to be wholly inadequate. Subject to these exclusions, the Inclosure Bill was pushed on by the Government of the day, in spite of Fawcett's oppo- sition, and was ultimately carried. Owing to the recommendation of the Select Com- mittee that inclosures should be suspended until the General Act had been amended, several schemes were stopped for the time. It was not till 1871 that the question again came on the tapis of Parliament. In that year I was for a short time Under Secretary for the Home Office, and in that capacity I had to deal with the subject of Commons. I accordingly introduced a Bill, founded on the recommendations of the Committee of 1869, and going much beyond them on several important points. It proposed that where inclosure of a Common was authorised, it should be only on the condition of an assignment to the public, either for re- creation purposes, or for allotments, of one-tenth of the Common, where the acreage was 500 and under, and where above this, of not less than fifty acres, or more than one-tenth of it. It further proposed to prohibit altogether the inclosure of Commons within a certain distance of towns, varying between one mile for a town of 5,000 inhabitants, and six miles for one of 200,000 inhabitants. It extended, within these limits, the provisions of the Metropolitan Commons Act of 1866 for the regulation of Commons. It contained an important clause, enabling local authorities of London, BUBAL COMMONS. 277 and other towns, within such limits to purchase, or take by gift, rights of common, and to hold them in gross, with a view to the maintenance and improvement of Commons under regulating schemes. I did not profess that the measure went so far as I personally desired, but proposed it as the maximum which was possible, under the then state of public opinion. It was referred to a Select Committee, of which Sir W. Harcourt, Fawcett, and myself were members, and by a large majority of which it was substantially approved; but it was not possible to carry the Bill further that year in consequence of the press of other business. In the following year it was introduced in the House of Lords, in the shape in which it had been settled by the Committee, and it formed the subject of long discussions in that House on several occasions. The clause requir- ing that one-tenth of the Common proposed to be inclosed, up to fifty acres, should be assigned for public purposes, for recreation or labourers' allotments, was specially singled out for hostile criticism. Lord Salis- bury said of it : " The Lord of a Manor and his Commoners were entitled to ask from Parliament the means of obtaining a full enjoyment of their rights, and Parliament was now asked to interpose and levy blackmail upon them It was certainly spoliation to enact that, when the Lord and the Commoners desired to inclose, they should be forced to concede to other persons rights which were perfectly new."* * Hansard, vol. 212, p. 1507. 278 BUBAL COMMONS. Finally, on the third reading of the Bill, the Duke of Northumberland moved its rejection, on the ground that it was an invasion of the rights of property. The motion was carried against the Government by a majority of sixty-five to fifty-three. It was not till the } 7 ear 1876, that the subject again came before Parliament. In the meantime no further inclosure orders were confirmed. Schemes for thus deal- ing with thirty-eight Commons, with a large acreage, had been approved by the Commission, and awaited confirmation by Parliament ; but no new proceedings were initiated. In these thirty-eight schemes, in consequence of the views of the Select Committee of 1869, a considerable addition was proposed by the Commissioners to the public allotments for recreation and field gardens. Thus, in the case of Wisley, it was proposed to devote sixteen acres to this purpose, in lieu of the original two acres. In the case of Withy pool, the one acre of 1869 was now increased to ten and a half acres. But in the view of the Commons Society even these allotments were insufficient in many cases, and several of the Commons, included in the list, were such as ought not to be inclosed, on the ground that no public advantage was to be expected from such a course. In 1876, the Home Secretary, Mr. Cross, now Lord Cross, introduced a measure for amending the Inclosure Act of 1845. In many important respects it fell be- hind the Bill of 1871, especially in the requirement of allotments for public purposes. It left the question of the quantum of allotments to the discretion of the Com- BUBAL COMMONS. 279 missioners. It did not extend the Metropolitan Commons Act to other Commons near to towns. It proposed, however, an alternative for inclosures of Rural Commons, in schemes for their regulation ; but it pro- vided that such schemes could only be adopted with the same consents as those for inclosure, namely on the approval of two-thirds, in value, of the Commoners, and also of the Lord of the Manor while the essential feature of the Metropolitan Commons Act was that a scheme could be applied for by any one or more Commoners, and could be carried, not only without the approval of the Lord of the Manor, but in spite of his opposition. Mr. Cross, in introducing the Bill, pointed out that the circumstances had greatly altered since the Inclosure Acts of 1801 and 1845. " The feeling of the country/' he said, " had changed, and the reason for it was not difficult to find. In the first place, the necessity for increasing the food supply of the people by the cultivation of Commons was not by any means so pressing as formerly. . . . Then the general increase of the popula- tion was so large that in discussing the expediency of inclosing lands, they had to consider not merely how to increase the food supply, but what was really best calculated to promote the health and material prosperity of the people. Whatever could be done in this way without interfering with private rights, it was their duty to do, and the question of Commons, viewed in this light, was perhaps of even greater importance now than it was in 1801 and 1845/' * The Commons Society did not consider that the Bill, as introduced, fulfilled these expectations or the * Parliamentary Debates, vol. 227, p. 189. 280 BUBAL COMMONS. promises made by the Home Secretary. They held that it was deficient in the following respects, that it left too much to the discretion of the Inclosure Commissioners ; that it did not forbid Parliamentary inclosure in the neighbourhood of towns ; that it did nothing to put a stop to arbitrary appropriation of Commons without the sanction of Parliament, which had only been checked by the expensive and dilatory litigation of the previous few years; and that the regulation clauses would be little used owing to the veto of the Lord of the Manor. I moved a resolution to this effect, and was supported by Fawcett, who contended that the Bill would promote mclosures. Mr. Cross, in reply, denied that the Bill was intended to have this result. " The object of the Bill, he said, was as far as possible to prevent the inclosure of Commons, and to give facilities for keeping them open for the benefit of the people ; so that not only those having rights of common should enjoy them, but that the public themselves might enjoy the use of these free spaces of land improved, drained, and levelled." * After this assurance the motion was not pressed to a division. On the Committee stage of the Bill, Fawcett returned to the charge, and moved a resolution to the effect that the Bill did not sufficiently protect agricultural labourers, nor provide adequate security against the inclosure of Commons required for recreation. He supported this with a vigorous speech, but was defeated on a division by 234 to 98. In Committee on the Bill, the representa- * Parliamentary Debates, vol. 227, p. 543. BUBAL COMMONS. 281 tives of the Commons Society, Mr. Fawcett, Lord E. Fitzmaurice, Sir Charles Dilke, Sir William Harcourt, Mr. Bryce, and myself, combined in a determined effort to improve the Bill. We succeeded in inducing the House to adopt a considerable number of amend- ments in the direction of strengthening the measure against inclosures, and also in the interests of agri- cultural labourers. We obtained the insertion of a pro- vision of the utmost value, directing the Inclosure Commissioners not to proceed in any case, nntil they were satisfied that the inclosure would be for the benefit of the neighbourhood, as well as for private interests. The preamble was also altered in accord- ance with this direction to the Commissioners. Securities were taken for the adequate ascertainment of local opinion, by means of public meetings at a time when the labourers could attend ; and amend- ments were made in the provisions with respect to recreation grounds and allotments. The Commissioners were also instructed to lay out paths and roads, so as to give access to the tops of hills or to picturesque parts of the lands inclosed. A locus standi was given to local authorities to object to the inclosures of Commons. Finally, the thirty-eight schemes which had originally been scheduled in the Bill for confirmation of inclo- sure, were taken out of it, and were relegated again to the Commissioners, to be dealt with, ad initio, on the principles laid down in the measure. As a result of this, the Commissioners eventually reported that they could not recommend inclosure in eighteen out of the 282 RURAL COMMONS. thirty-eight cases, inasmuch as it was not proved to their satisfaction that such a course was for the benefit of the neighbourhood a striking commentary on the previous proceedings, and on the new principle asserted by Parliament. On the other hand, we failed altogether in Committee on the Bill to make the clauses with respect to the regulation of Commons more elastic and workable, either by reducing the required proportion of assents of Com- moners, or by removing the veto of the Lord of the Manor. We failed also in numerous attempts to put an end to arbitrary inclosures of Commons otherwise than by the sanction of Parliament. The utmost we succeeded in obtaining was a clause directing persons, intending to inclose portions of Commons, to give three months' notice in a local newspaper of their intention to do so 5 and a further clause taken from the Bill of 1871, enabling local authorities to purchase land with rights of common attached to it, with the object of giving them a voice in the management of Commons and the right of objecting to inclosure. After the passing of the Act, a Standing Committee of the House of Commons was appointed, to which all schemes for the inclosure or regulation of Commons under the Act were referred. On this Committee two members of the Commons Society have always sat. Mr. Fawcett and Sir William Harcourt were on the first Committee, and, later, were replaced by Mr. Bryce and myself. By their efforts, every scheme has been subjected to the strictest examination, before BUBAL COMMONS. 283 approval or rejection by the Committee. In several cases the Committee has insisted upon an increase of the appropriations of land for recreation or allotments. In others it has refused inclosure of parts of Commons, on the ground that no public benefit would result. The case of Maltby Common, which came before this Committee in 1879, is a good illustration. This Common, of seventy-eight acres, is situate six miles from Rotherham and twelve from Sheffield. It is much frequented by visitors from both these towns, and there are no other Commons within the same distances. It was originally included in the list of thirty- eight schemes approved by the Inclosure Commissioners, under the Act of 1^45, and it was then proposed to assign three acres for a recreation ground and three for allotments. The Commission now again sanctioned a scheme for its inclosure, but with the requirement that twenty-four acres should be set apart for recreation, and five for garden allotments. There was strong opposition to the inclosure from the people of Sheffield and Rotherham. There was no evidence that any public benefit whatever would result from it. It was represented indeed that part of the Common was damp; but this might have been remedied by a regulation scheme. It was threatened by the promoters of the scheme, that if Parliamentary sanction to the inclosure were refused, they would, by agreement with the Commoners, effect the desired object without such authority, and that in such case the public would lose the benefit even of the twenty-nine acres, proposed to be allotted to them. Under the influence of this fear 284 BUBAL COMMONS. the Committee, by a small majority, approved the scheme for the inclosure of Maltby Common. But on the motion of Lord Edmond Fitzmaurice, the following clause was inserted in the Report of the Committee, pointing out the anomalous state of the law in allowing inclosures otherwise than by the sanction of Parliament, and without the securities for the public interest which were in their opinion necessary. u It was pointed out to the Committee that if the provisional order for inclosing Maltby Common were not accepted by Parliament, there was a possibility of the parties interested coming to terms and inclosing the whole Common, and that, if that were done, the intentions of Parliament for the protection of the rights of the poorer inhabitants, and the health, comfort, and convenience of the neighbourhood would be thereby frus- trated, and that persons might arbitrarily inclose common land on the chance of nobody interfering. It is evident that this condition of the law might materially impair the free action of the Commissioners, and interfere with the intentions of Parliament, if the Commissioners were informed that, should they not accept the exact terms proposed by the majority of the parties interested, the inclosure would be carried out in another way without any reference to the Acts of Parliament bearing on the subject." The opposition to the inclosure of Maltby Common did not end with the Committee. Mr. Mundella gave notice to move the rejection of the Bill in the House, and as the Government gave no assistance for the discussion of the Bill, at a time when it could be taken, it must be presumed that it was hostile to the scheme. In any case the scheme did not receive the sanction of Parliament; the inclosure was abandoned; and Maltby RURAL COMMONS. 285 Common still remains open to the public, though much in need of a regulating scheme. A case of somewhat opposite character was that of Thurstaston Common, near Birkenhead. The Common, of about 150 acres, was one of great beauty, occupying the highest land on the peninsula between the Dee and the Mersey, and commanding fine views of the estuary of the Dee and the Welsh mountains. Its surface was also picturesquely diversified by masses of rock; and it contained one stone of much antiquarian interest called Thor's Stone, believed to have been a place of sacrifice in the time of the Danes. Unfortunately almost the whole of the parish was owned by two landowners, the Lord of the Manor and another wealthy proprietor, the remaining thirty acres being glebe. A threat was held out to the Inclosure Commissioners that if Parliament would not consent to the inclosure of the Common under the Act, the Lord of the Manor would by agreement with the other two persons interested, effect its appropriation. The Inclosure Commissioners in their report to Parliament, said that, considering the growing population of Birkenhead and the almost equal nearness of the great city of Liverpool, they would have declined the application for inclosure in order to keep the entire Common for public resort ; but seeing that the owners might by agreement appropriate the whole Common for themselves to the exclusion of the public, they thought it better, by consenting to the scheme, to secure a part of it for the public. They agreed to the proposal, therefore, upon the terms that forty-five acres 286 BUBAL COMMONS. would be reserved for public enjoyment. The standing Committee took the same view, and approved the in- closure of the residue. By the action of the Committee and by discussions in the House of Commons, an entirely new policy with respect to inclosures has been forced upon the Inclosure Commissioners. The very name of the Commission, which was misleading, as it seemed to point out to them the duty of inclosing, has disappeared. In 1887, it was changed to the Land Commission, which has since been merged in the Board of Agriculture. In the sixteen years which have elapsed since the Com- mons Act of 1876, twenty-four Commons only have been inclosed, with a total area of 26,500 acres, of which 498 acres have been devoted to recreation ground, and 280 acres to field gardens and allotments. Two- thirds of the applications for inclosure of Commons, which have come before the Inclosure Commissioners and their successors, the Board of Agriculture, have been rejected, on the ground that no advantage would accrue to the public from thus dealing with them. In many of the latest schemes for inclosures of mountain lands, a provision has been inserted, securing to the public a right of access over the land, so long as it should not be tilled or planted. Since 1886 there has been only one case of inclosure. The change in public opinion marked by the Commons Act of 1876, and still more by the mode of administering it, can only be realised by those who have given close attention to the subject. To RURAL COMMONS. 287 Mr. Fawcett this change was most largely due. It was his dogged perseverance, in 1869, which forced the question into public notice, and which compelled legis- lation for amendment of the Inclosure Act of 1845 in a manner so beneficial to the labouring people and to the public* * For a more detailed account of Mr. Fawcett's personal share in the movement for the preservation of Commons, see Mr. Leslie Stephen's " Life of Henry Fawcett," chapter vii. (Smith, Elder, &, Co., 1885). But for this I should have amplified this chapter. 288 CHAPTER XVI. Road Side Wastes. Closely analogous to the question of Commons is that of the road-side wastes, so often to be found in rural parts of England, and not unfrequently even in the suburbs of our great towns. It need not be pointed out how valuable they are to the public. To horsemen they are welcome as affording soft turf, in lieu of the hard road, for a gallop. They are often the only playground for the children of labouring men. Where the fences are irregular, and the space between them and the road is interspersed with bushes and brambles, beneath which wild flowers find luxuriant growth, or with gorse or broom, the picturesqueness of the rural scene is greatly enhanced. Such strips of land are of far greater value in their present condition, than if added to the adjoining fields, even though the produce of the soil might be slightly increased ; and no owner of land, who has any regard for public interests, would dream of advancing his fences so as to appropriate them. Yet such is the desire to add to their domains even a few yards of frontage, that many landowners and especially small owners seem to be unable to resist the tempta- tion of inclosing these strips, when they can do so with impunity. The soil of these road-side wastes is generally ROADSIDE WASTES. 289 vested in the owners of the adjoining land, as is the case with the soil of the roads, subject to the rights of the public over them ; but not unfrequently they are the property of the Lords of Manors of their districts, as part of the wastes of their Manors, and are therefore not sub- ject to inclosure, without the consent of the Commoners. It often happens, however, that the main part of the waste has been inclosed, and that nothing remains of it but the road-side strips ; and where this is the case, but for the rights of the public, the lord may venture to inclose without much fear of being called to account. Fortunately, there is no doubt as to the law, or as to the right of the public to the continued use and enjoy- ment of the road-side wastes. The law, however, is apparently little known, even to those whose right it is to put it in force, and to abate inclosures of these strips of land ; for complaints are frequent, from all parts of the country, that encroachments take place, and that the highway authorities, so far from preventing them, are too often aiders and abettors in them. It has been well-settled law, for many years past, that the public have the right of way over the road-side wastes, no matter what the width of the metalled road may be, and that any obstruction erected on them, in the way of fences or otherwise, is a nuisance, for which the author may be indicted in a Criminal Court. The highway authorities have no power to consent to such encroachments on the rights of the public, aud though the law has not cast upon them the same obligations to protect the road-side waste as in T 290 ROADSIDE WASTES. regard to the road itself, yet they are clearly justified in removing any obstructions upon it. The principal case bearing on this subject, in which the law was clearly laid down, was that where a telegraph company, wishing to compete with another company, obtained the consent of the owners of the adjoining land to erect their poles on the road-side wastes, along the route where they desired to carry their wires. The obstruction caused by the poles was scarcely perceptible to the ordinary public. The rival company, however, acting ostensibly in the interests of the public, but really in their own interests only, with the object of preventing opposition, indicted the company, which had erected the poles, for obstructing the Queen's Highway. In the trial which took place, Baron Martin directed the jury as follows: u In the ease of an ordinary highway, although it may be of a varying and unequal width, running between fences, one on each side, the right of passage or way, prima facie, and unless there be evidence to the contrary, extends to the whole space between the fences, and the public are entitled to the use of the entire of it as the highway, and are not confined to the part which may be metalled or kept in repair for the more convenient use of carriages or foot passengers. . . A permanent obstruc- tion created on a highway, and placed there without lawful authority, while rendering the way less commodious than before to the public, is an unlawful act, and a public nuisance at common law, and it' the jury believed that the defendants placed, for the purpose of profit to themselves, posts, with the object and intention of keeping them there, and the posts were of ROADSIDE WASTES. 291 such a size and dimension and solidity as to obstruct and prevent the passage of carriages and horses or foot passengers upon the part of the highway where they stood, the jury ought to find the defendants guilty upon this indictment/' * The jury, upon this direction of the judge, found the defendants guilty of obstructing the highway. The summing-up of Baron Martin was subsequently approved by the Exchequer Judges. The right of the public has been further vindicated by the advice of the Commons Society, during the last, few years, in two cases, where, although there was no decision in the Courts of Law, it is certain that if any shred of law could have been found to sustain them, the inclosers of road-side wastes would have appealed to it. In the first of these cases the late Marquis of Salisbury, in the year 1807, inclosed the roadside wastes over a wide district in the neighbourhood of Hatfield, where he was Lord of the Manor, and claimed as such the ownership of the soil of the wastes. For nearly two miles of road, where this was effected, the present Earl Covvper was owner of the adjoining land. He found the frontages of his land to the highways cut off by narrow strips of land thus in- closed. It would be difficult, therefore, to conceive a more glaring and obnoxious case of inclosure of road- side wastes. Lord Cowper having in mind the then recent action of Mr. Augustus Smith, in removing the fences in the * Reg. v. United Kingdom Electric Telegraph Co., 3, P & F, 73. T 2 292 ROADSIDE WASTES. Berkhamsted case, took the advice of the Commons Society and of its solicitor, Mr. P. H. Lawrence. He was recommended to follow the example of Mr. Smith, and to make an emphatic demonstration of the illegality of the encroachments, by forcibly removing the fences, and by employing for the purpose a body of men so large, as to render any opposition on the part of Lord Salisbury's employes impossible. Lord Cowper, acting on this counsel, collected a large body of tenants and labourers, who, under his personal superintendence, removed the whole of the fences in the night and early morning. Having effected this, he sent a servant on horseback to Hatfield with a letter, informing Lord Salisbury of what had been done, and of his reasons for doing it. It was stated at the time that the late Lord Cairns then Lord Chancellor was a guest at Hatfield, when this missive arrived, and it was surmised that his advice on the legal aspects of the case restrained his host within prudent bounds. However that may have been, Lord Salisbury contented himself with issuing a writ for trespass against Lord Cowper, but took no further action upon it ; he submitted to a defeat, and never attempted to question the legality of Lord Cowper's action in remov- ing the fences, or to assert his own right to erect them. A mutual friend of the two peers, it was said, en- deavoured to induce Lord Cowper to tender an apolog3 r to Lord Salisbury for so violent a course, upon the understanding that no further attempt would be made ROADSIDE WASTES. 293 to inclose the roadside wastes ; but Lord Cowper, with very proper spirit, replied that apology was due rather to himself by the author of the arbitrary and illegal fencings, than by himself for removing them. It is satisfactory to know that this encounter between the two Hertfordshire magnates did not permanently disturb the relations between Hatfield and Pansh anger. In this case the public were fortunate in finding a great landowner, able and willing to vindicate its rights, as well as his own. But for that, it may be doubted whether any smaller fry in the district would have been willing to enter the lists against the Lord of Hatfield. The other case was one in which I was personally concerned. In 1875, I was residing at Ascot, where I own a property adjoining the main road from Windsor to Reading. This road is a conspicuous illustration of the advantage of roadside wastes. On either side of it are broad strips, where horsemen are able to ride on soft turf, and which add much to the beauty of the district. Returning from the Continent in the autumn of that year, after some months of absence, I found that in the interval the numerous owners of land and houses, for nearly a mile on one side of this road near the church, had inclosed the roadside waste, by advancing their fences up to fifteen feet of the crown of the metalled road, and had planted the land, thus filched from the waste, with shrubs and trees. One of these owners had erected along this new line, for about 500 yards, a most solid and expensive wall. In common 294 ROADSIDE WASTES. with the other encroachers, he had obtained the consent of the Surveyor of Highwa3 7 s of the district. It was obvious that if these inclosures were to be recognised as lawful, the example would be followed by all the other landowners on either side for miles, and that the road would be reduced from its splendid width and beauty to a narrow one of thirty feet, with high fences on either side. It was essential, therefore, in the public interest, to upset these encroachments. I found, as is usual in such cases, that there was a general feeling of indignation on the subject, but that no one knew how to act, or whether these proceed- ings were legal or not. I called together a Committee of neighbours in- cluding the late Sir William Hayter, the late Mr. John Delane (then Editor of the Times), the late Mr. J. B. Smith, M.P., and others and we determined to contest the legality of the inclosures. As the owners of ad- joining land, who had inclosed the wastes, had been allowed to do so, without remonstrance pending the erection of their fences, and had obtained the consent of the. Highway Board, it was felt that we should not be justified in forcibly abating the obstructions, and leaving the parties aggrieved to take action in the Law Courts, if so advised. We adopted the more moderate and con- ciliatory course of offering to remove all the fences, and to replace them, at the expense of the Committee, on their old and proper line, the cost being estimated at from 600 to 700. The owners of the fences, when they found them- ROADSIDE WASTES. 295 selves confronted by a body able and willing to enforce its conclusions, with one exception gave way, and, while protesting they had not acted illegally, allowed us to replace their fences on the legal line. The one exception was the owner of the substantial wall already referred to. This gentleman refused our offer with contumely, informed us that he was advised by the best authority that he was legally justified in his encroachment, and threatened that he would resist us in the Law Courts, and fight his case up to the House of Lords. Nothing daunted, we were equally sure of our position as members of the public, whose rights to the roadside waste we believed to be undoubted. We were advised by Mr. Robert Hunter, the solicitor to the Commons Society, that our best course was to apply to the Attorney-General for his consent to lay an information in his name against the encroaching land- owner, for interfering with the public right of way. The Attorney-General gave his consent, and an in- formation was filed in the Court of Chancery on the relation of certain members of the Committee, asking that the author of the obstruction should be ordered to remove it. One of the members of the Committee Mr. Ferard was also Lord of the Manor of Wingfield, in which the strips lay, and a claim was in the same proceedings made on his behalf to the ownership of the soil of the strips. When tackled in this way, our opponent felt himself unable to defend his encroachment. He submitted to 296 ROADSIDE WASTES. a decree without contest in the Courts, and we had the satisfaction of seeing him remove his beautiful wall and re-erect it on its proper site, at his own cost, instead of at ours. So angry was he, however, that he subse- quently ploughed up the strip of land which he was forced to throw out. Process was then taken before the magistrates at Maidenhead, and this foolish and ill-tempered attempt to annoy the public was visited with an appropriate sentence. This vindication of the public rights put an end to the encroachments on roadside wastes in that district. We felt, however, that we had only performed a duty, which ought to have been under- taken by the local authority of the district, on behalf of the public. The difficulty consisted not in the law, but in the absence of a local authority interested, on behalf of the public, in enforcing it, in the ignorance of the law on the part of the highway authorities, and in the want of summary means for enforcing it. The law already gives a summary remedy by penalty, in the case of any obstruction within fifteen feet of the centre of the highway, and most highway boards are under the impression that this is a legal definition of the width of the road, and that adjoining owners are entitled to advance their fences up to this point, so as to inclose the roadside waste. This, however, is a distinct error, and although there is no summary remedy outside the limit of fifteen feet, yet it is clear that the public are entitled to the use of the land beyond, which is within the definition of a roadside ROADSIDE WASTES. 297 waste, and that the Surveyor of Highways is justified in removing any obstruction.* In 1878, I proposed a clause in the Highway Bill of that year for remedying the defect of the law, by extend- ing the summary remedy for obstructing a highway to obstructions on the roadside waste, beyond the fifteen- feet limit ; but the Government of the day refused their assent to it. It was not till some years later that there was another opportunity of advancing the question. In 1888, I proposed an amendment of the Local Govern- ment Bill, declaring it to be the duty of County Councils to protect the roadside wastes, in the case of main roads committed to their charge. The amend- ment was, in the first instance, opposed by the Minister who had charge of the Bill, but the feeling of the House was so strong in its favour that the Government found itself compelled to give way, and the amendment was adopted and became law. The measure which has passed the House of Commons for the constitution of District Councils, contains a similar provision in respect of roadside wastes in the case of roads which will be under the control of these new local authorities. The question, therefore, is in a fair way for final settlement, and it is to be hoped that it will * I hear on going to press that Mr. J. T. Brunner, M.P., a member of the Commons Society, has been successful in obtaining the removal of a mile and a half of fencing, which had reduced a tine Roman road, between North wich and Middle wich, from a width of 60 feet to 30 feet, with the consent nay, strong approval of the Highway Board. 298 ROADSIDE WASTES. not in the future be necessary for private individuals to take upon themselves the invidious, thankless, and expensive task of protecting public rights over road- side wastes, against the ignorant encroachments of their neighbours. 299 CHAPTER XVII. Village Greens. It has already been pointed out that the law has not recognised the validity of any custom of the inhabi- tants of a district, manor, or parish, for the enjoyment of a right of a profitable nature ; and that so vague and uncertain a class of people, as the inhabitants of a place, cannot claim such a right by prescription. The judges, however, have admitted the possibility, subject to very narrow and strict limitations, of the inhabitants of a village claiming a right by custom to play games on the village Green, or even on land belonging to a private owner. The custom must be of a very definite character ; it does not extend to mere recreation, in the sense of roaming about an open space ; it must, ap- parently, be distinctly for games. It must also be alleged on behalf of the inhabitants of a parish, manor, or defined district, and not on behalf of all the world ; for it would seem that the older authorities have laid it down that a custom alleged on behalf of the public generally would be part of the general law of the land, and could not, therefore, be proved as existing only in a particular place. There must also be evidence of a continuous user without any commencement of the custom. The right of villagers to play games on a village 300 VILLAGE GREENS. Green appears to have been for the first time recognized by the judges in the time of Charles II., when, per- haps, there was a reaction in favour of such amuse- ments, after the stricter notions and habits of puri- tanical times. In the seventeenth year of the Merry Monarch, the inhabitants of a parish in Oxfordshire, in an action for trespass on land belonging to the plaintiff in the case, pleaded " that all the inhabitants of the village, time out of memory, had been used to dance there at all times of the year for their recreation," and justified their entering on the land for this purpose. It was objected that such a claim " to dance on the freehold of another, et spoil son grass" was void, especially as it was laid at all times of the year, and not at seasonable times, and that it was also ill-laid in the inhabitants who " claim easements as in Gateward's case, yet there ought to be easements of necessity, as ways to a church, etc., and not for pleasure." The judges, however, held it was a good custom, and that it was " necessary for the inhabitants to have their recreation." * This case was followed by another, in which the inhabitants of a parish claimed by custom, from time immemorial, to have enjoyed the liberty of playing at all kinds of lawful games, sports and pastimes, in a certain close, at all reasonable times of the year, at their free will and pleasure. The judges in this case acknow- ledged the validity of the previous decision. " It has been objected," they said, " that it is not alleged that * Abbott v. Weekly. Levinz, 176. VILLAGE GREENS. 301 the pastimes were allowed for the necessary recreation of the inhabitants, but the case in Levinz decides that it is necessary for the inhabitants to have such recreation ; if so it is matter of law." But this case, while it confirmed the previous decision, also laid down that a claim which was set up for a similar custom, averring the right to be in " all persons for the time being in the said parish," was as clearly bad as the other claim was good. " How that which may be claimed by all the inhabitants of England," said Mr. Justice Buller, " can be the subject of a custom, I cannot conceive. Customs must be in their nature con- fined to individuals of a particular description, and what is common to all mankind can never be claimed as a custom." * The distinction between a class of persons, or the inhabitants of a district, and the public generally, was clearly brought out in two cases with regard to race- courses. In the one, a custom for all the freemen and citizens of the city of Carlisle to hold horse-races over the close of Kingsmoor on Ascension Day in every year was held good.f In the other, the trustees of New- market Heath had warned off the course a gentleman, who had made a violent attack on their conduct. He refused to leave, and an action at law was brought, to which he pleaded an immemorial custom on the part of the public to go and see the races held at Newmarket. The judges decided that the custom having been laid * Fitch v. Rawlings. 2, H. Bl. 393. f Mounsey v. Ismay. 1863, 34, L.J., Ex. 02, 302 VILLAGE GREENS. in the Queen's subjects generally, was bad ; that the public had no right to be there ; but they intimated that if the defendant could have claimed as an in- habitant of Newmarket, he might possibly have main- tained the custom.* This distinction between the user by the public generally, and that of the inhabitants of a parish, was also brought out clearly in a later case, that relating to Woodford Green, forming a part of Epping Forest. In this case a claim was made on behalf of the inhabitants of the village to the enjoyment of the Green, and to prevent the inclosure of it by the Lord of the Manor. It was maintained in the first place that there was a right of way in all directions over the Green, and secondly that the inhabitants were accustomed to play at all lawful games on the Green. In sum- ming up this case to the jury, Mr. Justice Wightman said : "The question is, first, whether there was a right of way over the spot where the hurdles were put up. In one sense there was a way there, for it appears that the Green was part of the ancient forest, and the effect of the evidence is that people went wherever they liked, and so in that sense the whole forest was one great way. . . But there was no distinct evidence of any definite way in any particular direction, and though there were tracks from time to time, which might last for a few weeks or months, there was no beaten or enduring track in any one direction which had lasted for years. Then, as to the alleged custom, it is laid in the inhabitants ; but the proof is wider than the plea, for it appears that all the world went * Coventry v. Willes. 12, Weekly Reporter, 127. VILLAGE GREENS. 303 wherever they pleased. It may be a question whether that would be a good custom in law, and, of course, if in point of fact, it is proved as to all the world, it is proved as to the inhabitants. On the other hand, if the plea be taken to mean that the subject is only in the inhabitants, it is disproved, for the proof shows it to be, if it exists at all, in all the world." Under this direction the jury found a verdict for the Lord of the Manor who had inclosed ; and what was undoubtedly a village Green, where the inhabitants of Woodford had been in the habit of playing games, would, but for the action of the Corporation of London some years later, have been lost to them for ever, because the population of London had in recent years joined in the user of the Green, and it could no longer be proved that the custom was confined to the inhabitants of the place. This unfortunate and, it would seem, most narrow and technical view of the case, was followed by an even greater lawyer, the late Sir George Jessel, in the case of Stockwell Green. Stockwell is, or rather was, until swallowed up by the ever-extending population of London, a hamlet in the parish of Lambeth. In the centre of it was a small open space, part of the waste of the Manor, of a little more than an acre, known as Stockwell Green, and so marked in all the old maps. It was till a comparatively recent date open to the public, and the evidence showed that the people of Stockwell had been accustomed to play games upon it. The growth of population, however, and the want of means for regulating it, made it a nuisance to the people living in the adjoining houses. 304 VILLAGE GREENS. In 1813, a gentleman of large means, named Barrett, living near the Green, took a lease of it from the Lord of the Manor for sixty-one years, with the option of purchase for 200. The lease contained a covenant to inclose the Green, and to plant it with shrubs, and not to erect any building without the lessor's assent. Barrett did this for the purpose of preventing the place being a nuisance to the neighbourhood. In the correspondence with his neighbours, he expressly disclaimed having taken the lease with a view to profit, and he offered to let them join in the enterprise, bearing their share in the expense. The Green was then fenced and planted, but for some time the inhabitants made use of the Green, breaking down the fence. In 1S55 a Committee was formed of the inhabitants, for the purpose of collect- ing subscriptions to erect a new fence round the Green, and to restore it from its then disgraceful state. A sub- lease was obtained from Barrett's successor, and a new fence was erected. The Green was then drained and laid down with turf. This was done with the object of preventing nuisances and maintaining the decency and appearance of the place ; but the public were excluded. In 1874, the sub-lease came to an end, and a Mr. Honey, who had obtained an assignment of Barretts lease from his representatives, and had exercised the option of purchasing the fee from the Lord of the Manor, commenced building operations on the Green, and when remonstrated with by the inhabitants of the adjoining houses, demanded 8,000, as the price for sur- rendering his interest in this acre of land. VILLAGE GREENS. 305 A Committee was then formed, who brought a suit against Mr. Honey, to restrain him from building on the Green, and claiming, on the part of the inhabitants, a right to the land as the village green of the hamlet of Stockwell. The question turned largely upon what was the use made of the Green before 1813, when it was fenced by Barrett. Sir George Jessel decided against the inhabitants, professedly on the ground that the evidence before 1813 showed that the Green was used as a place for games and recreation, not by the people of Stockwell only, but by people from all parts of London, though, no doubt, the fact of the inclosure (of a kind) since 1813 greatly influenced his decision. " In the proof of usage/' he said, "the usage must be not only constant to the custom, but not too wide. For instance, if you allege a custom to dance on a Green, and you prove in support of that alleged custom not only that some people danced, but that everybody else in the world who chose not only danced, but played cricket, you have got beyond the custom. Your custom is not confined to what you say it was ; if your evidence* is good for anything, you will prove a great deal more. As I understand the evidence, before the time of inclosure by Barrett, anybody who liked might recreate himself at his will and pleasure- on the Green. There was no limit to the little boys, whether they were Stockwell boys or boys from Brixton, or anywhere else. I do not think many men played on the Green at any time, but I think occasionally girls played there, principally little girls, though some of them might be girls of a larger growth j and I think occasionally young men played on the Green. It was hardly big enough for men's cricket, but I have no doubt that anybody who liked played on the Green. . . . The Green seems to have been open to everybody who wanted to go there, and whether there were or not constables of the vill, no- U 306 VILLAGE GREENS. body ever interfered, and there is no pretence of anybody inter- fering with the right of recreation, if it may be called a right, or amusing themselves in any way they chose, by anybody who went on this piece of land, without the slightest regard to the fact whether he was or was not an inhabitant of the vill or hamlet of Stock well. If that be so, the case is at an end/'* The effect of these decisions seems to be that as a great town extends, and absorbs the smaller villages surrounding it, and the village greens become places of enjoyment for games and recreation to a wider class of persons than the inhabitants of the village, and, there- fore, are more valuable, the right to play games and to prevent inclosure is lost, because it can no longer be averred or proved that the custom of playing games thereon is confined to the inhabitants of the village. The same very technical distinction between the inhabi- tants of a village or parish, and those of a wider district or great town, or the public generally, has operated to prevent the judges drawing a legal analogy between the village and its green, and London and its much- frequented Commons, such as Hampstead, Hackney, Blackheath, and others, however close the analogy may be in fact. It has resulted that, no matter how much the people of London have in the past used and enjoyed any one of these Commons for games, the law does not recognise that any right has grown up. On the other hand, so long as those Commons remained open and uninclosed, there was no means known to the law, by which persons roaming over them * Hatnmerton v. Honey. 6, W.R., 603. VILLAGE GREENS. 307 in all directions could be punished, provided they did no injury to the property of the Lords of the Manor or of the Manorial tenants. The public were at law trespassers, but they were dispunishable trespassers. They had no right to claim that the Common should remain in statu quo, or that inclosure should be prevented ; their continued enjoyment of the Common therefore depended on the maintenance by the Commoners of their rights over the land. Where a great popu- lation has grown up round the Common, people have practically taken the place of cattle, but the law, which had originally recognised the user of copyholders to turn out their cattle on the Common, and had given it the sanction of right, has failed to adopt the same course with respect to the still more important user by people. There are not wanting, however, signs that the judges are disposed to take a more popular view of the rights of the public to recreation, and not to be bound too closely by the doctrine of extinction of the local rights by the more general user by the public at large. Quite recently, in 1892, an important case was tried and determined at the Bristol Assizes, in which, though it was in the hands of a local solicitor, the advice of the Commons Society had been taken as to the right of inhabitants to a Common for recreation. It arose in respect of Walton Common, which lies on the edge of the hills stretching along the coast-line of the Bristol Channel from Clevedon to Portishead. On the level ground at the top of this hill is a well- u 2 308 VILLAGE GREENS, marked circular camp, corresponding to that on Cadbury Hill, on the other side of the marshy valley which stretches from Clevedon to Portbury; and those who climb the hillside to reach the level ground are rewarded by a splendid view. The villagers of Walton-in- Gordano set great store on their Common Hill as their place of recreation. The turf is close and soft and springy, as it always is on the tops of these limestone hills, and the sheep and horses of the Commoners kept the grass always short. The Common is in the Manor of Walton, which is vested in the Trustees of Sir C. Miles, the owner of Leigh Court, who is also owner of most of the land in the parish. The Lord of the Manor had from time to time bought up any land for sale in the parish, with the object of extinguishing the rights of common ; and a series of'aggressions took place, in the shape of inclosures of parts of the Common. The object apparently was to convert the Common into a game preserve. The villagers, tenants of the owner, who had been in the habit of turning out animals to graze on the hill, were warned not to do so, and so far as they were concerned, the warning was equivalent to a command, as they had but two alternatives, namely, to submit or to leave the parish. A considerable fringe of the Common was in- closed and planted. Barbed wire fences were erected across it. Thorns were planted in various parts of it. The footpaths over the hill were blocked up. A large portion of the Common was stocked with rabbits, and the shooting on it was let. VILLAGE GREEKS. 309 The Common Hill had been used from time im- memorial for games by the villagers. They had played there football, rounders, and cricket. It was distinctly larger than an ordinary village Green, consisting of sixty-four acres, but the whole of it had been used by the people for recreation, and many parts of it for games. These were now prohibited. On the lord's agent being requested to explain the grounds on which the changes were made, and what justification there was for the keepers interfering with the use of the Common for games and recreation, he replied that the Lord of the Manor intended to prosecute any persons who in any way trespassed on the hill, over which he claimed absolute control; if the claim, he said, were persisted in, the question would have to be settled in a Court of Law. Mr. Virgo, a working gardener and florist, with land adjoining the Common, then took up the case of the C )mmoners and the public. He was in- formed that, in consequence of his action, the Lord of the Manor would stop him from using a cart-road across the Common, which afforded the only access in one direction. He was also told that the Lord of the Manor had ample means at his disposal, and that he must expect no quarter. Undeterred by these threats, Mr. Virgo brought an action at law against the trustees for interference with the right of the inhabitants to play games on the Common, and claimed an injunction to restrain them from so doing. The case was tried at Bristol before a special jury by Mr. Justice Wills, in August, 1892. 310 VILLAGE GREENS. There were numerous witnesses to prove that the in- habitants had been in the habit of going on the Common, from time immemorial, for recreation and games. The defendants relied mainly on evidence to negative this user and on the smallness of the population, which was only 147 at the beginning of the century; and they contended that there could not have been a custom for so small a body of inhabitants to play games on so large a Common, and that it was not confined to the people of the parish. The judge submitted the case to the jury, who found their verdict for Mr. Virgo ; and an injunction was given to restrain the defendants from inclosing the Common, from erecting barbed fences on it, and from planting it with bushes. Sir A. Wills gave an im- portant opinion in the course of this case, on the right of outsiders to contribute to the maintenance of such a suit. In answer to objections which were raised on this score, he said that it was perfectly lawful for anyone to subscribe to a suit, where it was believed that the public interest was at stake. In the following year Mr. Yirgo returned to the charge, and in his quality as a Commoner, claimed the restitution to the Common of a portion of it known as Common Hill Wood, which had been inclosed a few years previously. The defendants did not dispute the right of common, and the only question was whether the portion claimed was originally part of the Common. This was again tried before a jury at Bristol, who also gave their verdict in favour of Mr. Virgo. The case is VILLAGE GREENS. 311 another illustration that these attempts on the part of Lords of Manors, if resisted, will almost certainly fail. It was of the greatest importance, as showing the extent to which the judges will permit the claim for recreation to be maintained. If a small village population can maintain rights of recreation and of playing games on a Common of 64 acres, it is difficult to understand why the people of a large town should not be allowed to maintain similar rights over its adjoining Commons. There are 79 open spaces within the Metropolitan Police district, described in the Ordnance Survey as village greens, and ranging in size from 2 roods to 25 acres. Of these 12 have been included in Eegulation schemes of adjoining Commons under the Act of 1866. Many of the others, under the decisions referred to, appear to be endangered by the growth of London, and by the fact that it can no longer be proved that the customs to play games on them are restricted to the inhabitants of their districts. It is clear therefore that some remedy should be provided for the better security of these playgrounds. 312 CHAPTEE XVIII. The Eegulation or Commons. It has already been shown that there are two very distinct processes by which Commons may be placed under schemes of regulation ; viz : (1) Under the Metropolitan Commons Act of 1866, and (2) under the Commons Act of 1876. The first of these Acts, applying to Commons within the Metropolitan Police area, about fifteen miles from Charing Cross, provides that the Agricultural Department, on the application of any Commoners, of the Local Authority of the district, or of twelve inhabitants,* may approve of a scheme for the regulation of a Common, subject to its confirmation by Parliament. Under such a scheme the Common may be practically taken out of the hands of the Lord of the Manor, and placed under the charge and management of the Local Authority, or of a body of Conservators specially constituted, for the main- tenance of order, the prevention of nuisances, and the due regulation of the various rights over it, with power to make bye-laws for the purpose. If the Lord of the Manor gives his consent, the scheme is thence- forward binding upon him and his successors, and the Common can never be inclosed, wholly or partially, under the Statute of Merton, or otherwise. If he does * See "Metropolitan Commons Amendment Act, 1869." REGULATION OF COMMONS. 313 not give his consent, it is still in the power of the Board of Agriculture to approve the scheme, and it will be valid for all the purposes contained in it, save that the rights of the lord, whatever they may be, under the Statute of Merton or otherwise, are reserved, and, like other rights over the Common, cannot be materially interfered with without compensation. The lord may still put in force his rights of digging gravel and turf, and the Commoners may still exercise their rights of turning out cattle, subject to regulations made by the Conservators. Under the Commons Act of 1876, which applies to all Commons beyond the Metropolitan Police area, schemes of the same nature may be made for the regulation of Commons, whether in urban or rural dis- tricts. There is, however, the important difference that a scheme can only be entertained by the Board on the application or consent of one-third of the Commoners, and it cannot be finally approved by the Department, unless two-thirds (in value) of the Commoners agree, and the Lord of the Manor consents. The lord, in fact, has an absolute veto on such a scheme. Schemes in respect of rural Commons are generally applied for, not in the interest of the public, but for the purpose of defining and regulating the rights of Commoners, in cases where inclosure is not likely to be approved, or where it is not worth while to inclose and fence the land in fact, where the object is to turn them into stinted pastures, leaving them unin closed and open to the public. In cases of this kind the Board of Agriculture almost invariably 314 REGULATION OF COMMONS. inserts clauses, securing to the public the right of access to and of walking and riding over the Commons. As regards Commons within the Metropolitan Police district, the Act of 1866 was brought into operation very slowly, and a large number of them still remain unregulated. This was due in part to the unwillingness of the late Metropolitan Board to adopt the Act, in part to the objections of the Inclosure Commissioners to give their sanction, where Lords of Manors objected to the schemes, and partly also to the litigation in progress, with respect to so many of the Commons round London, which deterred persons con- cerned from applying for schemes, until the Courts of Law had determined on the validity of the claims of the lords. The Metropolitan Board would not readily abandon their alternative plan for the purchase of the Commons within their area, in spite of its rejection by the Committee of 1865, and of the protests of the Commons Society. They lost no opportunity of purchasing the rights of Lords of Manors, often giving large sums for them, wholly regardless of the fact that every such pur- chase tended to raise the hopes and demands of other lords, and to encourage them in the view that they had a valuable property or interest to dispose of. They took advautage, however, of the decisions of the Judges against the right of the lords to inclose, and in some cases bought the interests of lords at very reduced rates as compared with their original demands. Thus they bought the lord's rights over Hampstead Heath REGULATION OF COMMONS. 315 for 45,000 in lieu of 400,000, his original demand ; in 1873 they bought the manorial rights over Tooting Bee Common for 10,200. Two years later, the Board purchased Mr. Thompson's interest in Tooting Grave ney Common, which it has already been shown he had been restrained from inclosing, for 3,000. The acquisition appears to have been effected under com- pulsory powers.* The first case of a scheme under the Act of 1866 was that relating to Hayes, a very beautiful Common near Bromley in Kent, and within the Metropolitan Police area. What is popularly known as Hayes Common, is in fact partly in the Manor of Baston, and partly in that of West Wickham ; the waste in the former Manor being about 200 acres, and in the latter, till within recent years, about 100 acres. These Com- mons were not separated by any fence or defined boundary. The Lord of both Manors was Sir John Lennard. A short time before 1865 this gentleman inclosed about fifty acres of West Wickham Common, and disposed of them as sites for villas. There was great fear in the district that he intended to deal in the same way with the residue, consisting of a most picturesque open space, with a grove of the oldest and most beautiful oak trees to be found within twenty miles of London. He was owner of nearly the whole of the inclosed land in the Manor. Prima facie inquiries on behalf of the Commons Society failed to discover any * The Metropolitan Board of Works (Various Powers Act), 1875. 316 REGULATION OF COMMON'S. Commoner with rights, on whose behalf proceedings could be taken against the lord, either to compel restitution of the fifty acres already abstracted, or to obtain a declaration of rights, so as to save what re- mained. In the Manor of Baston, Sir John Lennard was not so predominant. There was a considerable body of Commoners, who, in 1868, applied to the Inclosure Com- missioners for a scheme of regulation of their Common. The lord gave his consent to the scheme, and in the following year an Act was passed to confirm it. By this Act a Board of Conservators was constituted, of which the lord and representatives of the Vestry were members. This part of Hayes Common, therefore, was placed in a position of permanent security. West Wickham Common was not so fortunate. It was not included in the Baston scheme. From time to time public attention was called to the past inclosures of this Common, and to the danger which appeared to threaten what remained, but repeated inquiries by the Society failed to discover any Commoners. Three or four years ago there were renewed indica- tions of an intention to inclose the residue. Wire fences were erected, cutting it off from Hayes Common. When appealed to on the subject, Sir John Lennard denied that it was a Common, and claimed the land as his freehold, free from an}'- Commoners' rights. About that time a local society was formed for the preservation of Commons and footways in the neigh- bourhood of Bromley. A discovery was made by this REGULATION OF COMMON'S. 317 body of a property in West Wickham Manor, with undoubted rights of common over this waste, and whose owner was prepared, with adequate support, to contest Sir John Lennard's right to inclose. The, time which had elapsed since the past inclosure was so long, that it was hopeless to contend for restitution, but at least what remained of the Common might be saved. Proceedings were commenced with this object, and a meeting was summoned at Bromley, to be presided over by the writer, with the view of raising funds and arousing public feeling on the subject. Fortunately, however, before the meeting took place it was ascer- tained that Sir John Lennard was willing to part with his interest in the fifty acres for 2,000, on con- dition that the Common should be kept open. As the litigation, even if successful, would have involved an expenditure not far short of this, it was thought advisable to compromise on these terms, and the meet- ing was turned into one for raising this money for the purchase of the lord's rights.* The sum of 1,500 was obtained locally by subscrip- tion, and the residue was made up b} r the Corporation of London. The purchase was effected. The Common was vested in the Corporation as conservators, and is now safe from further encroachments. The case afforded yet another proof of the truth of the contention before the Committee of 1805, that no matter how hopeless the * The feeling of the meeting was so strong against inclosure, that I had some difficulty in persuading it to adopt the compromise rather than to light the Lord of the Manor in the Law Courts. 318 REGULATION OF COMMONS. position of a Common might appear to be, there would always, on investigation, be found common rights sufficient to prevent inclosure. It is to be regretted that in this case the discovery of rights was not made in time to claim restitution of the fifty acres inclosed before 1865. The example of the regulation of Hayes Common was followed in 1871 and 1872 by schemes for the regulation of Blackheath, Shepherd's Bush Common, and the Hackney Commons, under the conservancy of the late Metropolitan Board. Blackheath, consisting of 267 acres, is one of the most valued of the London Commons. It immediately adjoins Greenwich Park, and is the playground of the great population which has grown up near it. For many years the now popular game of golf was played on this heath, when it was quite unknown elsewhere in the south of England. The Blackheath Grolf Club claims to date from the time of James I., and to be one of the oldest clubs in the United Kingdom. The Earl of Dartmouth, the owner of a large property in the neighbourhood, now nearly covered by houses, was the Lord of the Manor, and very readily gave his consent to the scheme, which has put the Common under the permanent pro- tection and management of the authorities of London. The case of the Hackney Commons differs in many respects from those of most of the London Commons. They consist of the Hackney Downs, of 40 acres, the London fields, of 27 acres, the Hackney Marshes, by the side of the river Lea, of 337 acres, and a few smaller areas. The first two of these open spaces are REGULATION OF COMMONS. 319 perhaps more important to the health and enjoyment of the people of their district than any others in London. They are in the centre of a dense population, very in- adequately supplied with open spaces and breathing- places. They are worn almost bare by the constant use of the public for games. None of these spaces are Commons in the ordinary sense of the term. They are commonable lands, or common fields, survivals of the early system of communal tenure, referred to early in this work. They used to be inclosed during a part of the year, to be held in severalty by divers owners for the haying season, and to be thrown open to the cattle of all on Lammas day. This closing of the land in severalty had long fallen into disuse, in the case of Hackney Downs and London Fields, and no cattle were ever turned out there. The custom of shutting up for severalty was continued in the Hackney Marshes till recently. Mr. Tyssen Amherst, now Lord Amherst of Hackney, the owner of a great property in the dis- trict, which has of late years become most valuable for building purposes, is the Lord of the Manor of Hackney. His interest in these Commons, having regard to the rights in severalty of the tenants of his Manor, must have been very small. In 1872, the Inclosure Commissioners approved of a scheme for the regulation of Hackney Downs and London Fields, not including the Marshes. The Lord of the Manor, in spite of his great interest in the district, and comparatively small interest in the Common Fields, did not consent to it, though he 320 REGULATION OF COMMONS. does not appear to have activety opposed. The scheme proposed to make the Metropolitan Board the Con- servators of the Commons. It contained, however, no provision, as required by the Act of 18G6, that really beneficial rights should not be substantially interfered with without compensation. This serious defect was in vain pointed out to the Board by the Commons Society. It followed, after the confirmation of the scheme by Parliament, that the Lord of the Manor con- tinued to dig gravel from the two Commons in a manner prejudicial to their user by the public, and contrary to the bye-laws made under the scheme. The Metropolitan Board thereupon brought a suit against him in 1879, to restrain him from doing this. The Master of the Eolls, Sir George Jessel, decided against the Board, on the ground that the Act of 1866 gave no power to the Board to restrain the gravel digging (if there was a right to dig antecedent to the scheme, a point which he did not decide and which was not raised by the Board) without compensation, and that the scheme contained no provision for compensation. In other respects the judgment was a complete vindica- tion of the policy of the Metropolitan Commons Act, for it held that the scheme could properly restrain the lord in the exercise of mere acts of ownership, which were not of a beneficial character to himself; so that he could not keep people off the Common, and could not prevent the Board from appointing Common- keepers, or putting up seats, or draining, levelling, REGULATION OF COMMONS. 321 aud improving the surface, and preventing illegal en- croachments ; but that it could not substantially inter- fere with rights without compensating for them, though it might regulate them. The Board in fact had made a grave mistake in tactics. It ought to have questioned the right of the lord to dig gravel on Lammas Land, in the name of a Commoner. The Board, when it discovered its mistake, consulted, through its solicitor, the Commons Society, and it was arranged that the Society should, in the name of two Commoners, institute a suit against Mr. Amherst, asking for a declaration of rights in the Commons, and claiming an injunction against him for excessive digging of gravel. Proceedings were accord- ingly commenced, and were conducted to a point when there appeared to be certainty of success. At this juncture the solicitor of the Metropolitan Board died ; his successor took a different view as to these proceed- ings ; he advised the Board to withdraw its support from the Commons Society and from the suit, and to enter into negotiation for purchase. It resulted that an arrangement was made with Mr. Tyssen Amherst for the purchase of his interest for 33,000. This rendered the further prosecution of the suit unneces- sary, and the cost of the proceedings in it fell upon the Society. In the opinion of the Commons Society, the purchase of Mr. Amherst's very shadowy rights for this consider- able sum was wholly uncalled for, and would have been avoided, if the suit had been allowed^to proceed, and 322 REGULATION OF COMMONS. had been properly supported. It was also a bad pre- cedent for other cases. It followed, when some years later, in 1893, it became necessary to deal with Hackney Marshes, and to propound a scheme for placing this other important space under proper regulation, that Lord Amherst again put forward a claim for compensation on a scale commensurate with the pre- cedent of 1872 ; and the London County Council, hampered doubtless by the bad policy of its predecessor, refused to give its support to the scheme, unless an arrangement were come to with the Lord of the Manor. Negotiations were entered into with him, and the other persons interested in the Common, and it was ultimately arranged that 75,000 should be paid for all the interests in the land, of which 50,000 was to be provided by the London Council, 15,000 by the Hackney Local Board, 5,000 by a private contribution from Lord Amherst, and the remaining 5,000 by public sub- scription. The scheme thus matured was later confirmed by Parliament. It was, however, in the opinion of those who had conducted the movement, contrary to the spirit and intention of the Act of 1866, in so far as it provided for the payment of so great a sum to the owners of the soil and the Commoners. Fortunately it is the last transaction where the ratepayers' money in London will be drawn upon for such a purchase, as no other Common now remains undealt with within the district of the London Council. Clapham, Plumstead, Streatham, Barnes, and REGULATION OF COMMONS. 323 Tooting Graveney Commons, and Bostall Heath and others, which are within the area of the London Council, have been successively dealt with by regulating schemes. In the case of Barnes Common, consisting of 120 acres of most charming scenery, the Dean and Chap- ter of St. Paul's had been in the position of Lords of the Manor for upwards of 1,000 years under a grant made long before the Norman Conquest. They had always treated the neighbourhood with consideration, and had allowed the management of the Common to be in the hands of a local Committee, supported by voluntary contributions ; and this Committee had appointed a Common keeper, and had expended money on improve- ments. In 1870 it was thought expedient to legalise this arrangement, by a scheme of regulation, placing the Common under the conservancy of the Vestry. The Ecclesiastical Commissioners, representing the Chapter of St. Paul's, without insisting upon any pur- chase of their rights, gave a ready assent to it. The case of Clapham Common was very similar. The Manor of Clapham is mentioned in Domesday Book as being in the possession of De Manneville. In the time of King Stephen it was granted to Pharamus de Bolonia, nephew of his wife Maud. The daughter and heiress of Pharamus married De Fienes, who was slain at Ascalon in the Holy Land in 1190. King Eichard restored the Manor to the widow of De Fienes, and empowered her to marry whom she liked. It then passed through various hands till it became the property of the Bowyer family. It appears that the Common, v 2 324 REGULATION OF COMMONS. consisting of about 200 acres, in about equal parts in the Manor of Clapham and in that of Battersea and Wandsworth, was, in the beginning of this century, little better than a morass, till the late Mr. Christopher Baldwin, a resident on the Common, used his influence to form a committee of residents to manage it, and to drain and plant it. In consequence of this, it became one of the best ordered and most beautiful of the London Commons. In 1877, on the application of this committee, and with the consent of the Lords of the two Manors, it was placed under a regulation scheme, with the Metropolitan Board as conservators, 18,000 being very unnecessarily paid for the manorial rights. Beyond the limits of the London County Council, but within the Metropolitan Police area, the district to which the Act of 1866 applied, there are very numerous Commons, with an aggregate of more than 7,700 acres, exclusive of Epping Forest. Of these, 17 Commons, with an area of about 3,500 acres, have been placed under regulation schemes, including Staines Common, 353 acres; Chislehurst, 116 ; Hayes, 200 ; Banstead, 1,300 ; Mitcham, 570, and others. Of these it may be worth while to mention the case of Mitcham, as an illustration of the difficulties arising from the uncertainty as to the persons entitled as Lords and Commoners. The history of Mitcham Common, which formerly contained nearly 900 acres, but which has been reduced to 570 acres, is very remarkable, and the Common, it is believed, stands in an unique position. The Common originally lay in the parishes of Mitcham, Beddirjgton, REGULATION OF COMMONS. 325 and Wallington, and the Lords of no less than seven Manors viz., Mitcham, Ravensbury, Biggin and Tam- vvorth, Vauxhall, Beddington, and Wallington claimed that parts of it were wastes of their Manors. There have never been any boundaries between the various Manors, so far as the Common was concerned, and it had been left, therefore, for a long period of time in a most neglected and uncared-for state. Lords of Manors had wrought havoc on its surface by gravel- digging, and railway companies had done their best to destroy it by running lines in several directions over it. The Manors, in which the Common is supposed to lie, are all recorded in Domesday Book. The Prior of Merton, the Prior of St. Mary, Southwark, and the Prior of Canterbury acquired some of these Manors in very early times, and at the dissolution they were granted by Henry VIII. to Sir Nicholas Carewe and other persons . This Common has been the subject of dispute,* as regards the rights of the Commoners, from the earliest times to the present day. As long ago as the 24th year of Henry III., a.d. 1239, an action of trespass, then known as an assize of novel disseisin, was brought by the Prior of Merton, Lord of the Manor of Biggin and Tarn worth, against the owners of land in Beddington, because the latter had driven off and impounded the Prior's cattle. The jury found that the owners of lands in all the parishes, or " vills," named above, had intercommoned on Mitcham Common as one waste. Later, disputes con- stantly arose between the Lords of the different Manors 326 REGULATION OF COMMONS. of Mitcham and their Commoners, with respect to in- cisures, but the great uncertainty as to the boundaries of the Manors made it difficult to resist. In 1535, a hundred acres were inclosed by the Lord of the Manor of Beddington, and 200 acres were inclosed in 1820. In 1882 the Lord of the Manor of "Wellington commenced to assert his right to inclose a small portion of the Common. The Commoners and inhabitants determined to oppose. Mr. Bidder, Q.C., a resident in the district, put himself at the head of the movement, and brought a suit in the usual form to restrain the inclosure, alleging his rights over Mitcham Common. Owing, however, to the extraordinary conflict of evi- dence in the early and late records, it was impossible to show conclusively that the piece inclosed was part of this Common, and the Court held that the plaintiffs had failed to establish their case. Looking at all the documents dispassionately from 1086 to the present day, one is almost driven to the conclusion that this fine tract of Common never formed part of the possessions of any Manor. It appears that, in very early times, the King held all of the Manors interested, and granted them out without any specific reference to the Common, and also granted out smaller tracts of land in the same parishes as those in which the Manors were situated. The consequence may have been that the Common was retained as a Crown possession, or, perhaps, was looked upon as public property, or " folk-land," upon which all the neighbouring land- owners might exercise common rights. REGULATION OF COMMONS. 327 Happily the Common is now out of danger. By the advice of Mr. Birkett, the Solicitor to the Commons Society, an influential meeting of the inhabitants was held, in 1891, who decided to avail themselves of the provisions of the Metropolitan Commons Act. The usual steps were taken and inquiries held, and notwithstanding considerable opposition, the Common was placed under an elective body of Conservators. The small piece of waste, referred to as being in- closed by the Lord of Wallington, was unfortunately omitted from the scheme at the last moment, and litigation in respect to it has broken out afresh, and it has yet to be determined whether the lord can inclose against those who have rights of common in respect of that Manor. The waste of this Manor is, however, but a small fraction of Mitcham Common, and sub- stantially the Common has been put into a position of safety under the guardianship of the ratepayers of the district. There remain very numerous Commons with an aggregate area of about 4,000 acres, within the Metro- politan Police district, which might be brought under regulation schemes under the Act of 1866. Among them are the Epsom Commons, 870 acres ; Tottenham Marshes, 180 acres; Hadley Common, 174 acres; Car- shalton, 150 acres; Stanmore, 127 acres; Dartford, 360 acres; Ham Common, 126 acres; the Thames Ditton Commons, 300 acres, and others. Of these it may be well to refer to Epsom Common. In 1865 the Inclosure Commissioners approved and certified to Parliament a 328 REGULATION OF COMMONS. scheme for the inclosure of Epsom Downs and Epsom Common. The subject was carefully inquired into by the Committee of 1865. The Steward of the Manor, and the promoters of the inclosure, gave strong evidence as to the expediency of this course, and as to the exclu- sive interest of the Lord of the Manor. On the other hand, there was evidence of a powerful local feeling to the contrary. The Committee reported against the in- closure, and the scheme was defeated. Since then, the relations of the Lord of the Manor, the Commoners, and the inhabitants of Epsom, have been in a state of tension, aggravated by the position of the Grand Stand Asso- ciation, who claim certain rights in respect of the annual races held on the Downs, by virtue of a lease from the Lord of the Manor. A course of petty encroachments has been pursued by the Lord of the Manor, intended to confirm his claim to an absolute ownership of the land. In 1888 a Com- mittee of Commoners, including Lord Rosebery, the owner of an adjoining property, commenced a suit against the Lord of the Manor and the Grand Stand Association. This suit was stayed pending an applica- tion to the Agricultural Department for a scheme for regulating the Common. On their part the Board of Agriculture have declined to proceed with a regulating scheme so long as the suit is undetermined. A deadlock has consequently ensued. It is to be hoped that one result of the Banstead scheme will be to remove the difficulties respecting a scheme for Epsom Common. Under the Act of 1876 there have been schemes REGULATION OF COMMONS. 329 passed for regulating twenty-three Commons beyond the Metropolitan Police district, with an aggregate area of 31,300 acres. Most of these have been cases of moun- tain districts, where the object has been to define and regulate the Commoners' rights. Some of them, how- ever, have been cases of Commons in populous parts, such as Red Hill Common, near Reigate, of 324 acres ; Totternhoe, in Hertfordshire, 234 acres, and Clent Common in Worcestershire. In these and other cases, special provisions have been inserted giving to the inhabitants of the districts the right of walking and playing games over the whole of the Commons. Ash- down Forest, of 6,000 acres, was also placed under a regulating scheme, after the long litigation to which it was subjected. Other Commons have been dealt with for special reasons under private Acts, based on the principle of regulation. Thus the beautiful range of open land in the Malvern Hills, near Malvern, of 6,000 acres, has been subjected to regulation under a special Act, and thus secured for public enjoyment. Torrington Common and Bournemouth Common have been similarly treated. There can be no doubt that very numerous other Commons would be placed under regulating schemes, if it were not for the very rigid requirements of the Act of 1876, namely the consent of two-thirds in value of the Commoners and of the Lord of the Manor. There can be no possible reason why the same facilities which have been found expedient and necessary in the interest of the public in the case of Commons within fifteen 330 REGULATION OF COMMONS. miles of London, should not be extended to all other Commons in the country, or why the Lords of Manors should be allowed an absolute veto to schemes. After the decision of Parliament in the case of Banstead Common, in which, in spite of the most determined opposition in both Houses, it was approved that the Common should be practically taken out of the sole hands of the Lord of the Manor and placed under the control and manage- ment of a popularly elected body, it will be impossible to resist the extension of this policy to all other Commons in every part of the country. In cases near to towns, the municipal authorities would be the proper guardians and managers of their Commons. In regard to rural Commons, either the County Council or the District Council should be the Conservators, with certain duties delegated to Parish Councils.* * In the Appendices will be found lists of Commons, which have been regulated under the Acts of 1866 and 1876 respectively. 331 CHAPTER XIX. Attacks by Eailway Companies. Chief among the dangers to which Commons were exposed before 1865, were the invasions of them by Railway Companies. Already several Commons had been seriously disfigured, if not irreparably injured, by railway companies having, in a very needless way as it appeared, intersected them with their lines, severing one part com- pletely from another, interfering with their prospects, and destroying that charm, which results from rural solitude, and which constitutes, in the case of Commons near to towns, so much of their value. This was notably the case with Wandsworth, Banstead, Tooting, Mitcham, and Barnes Commons. It seemed that neither the local authorities of the district, if any, nor the inhabitants generally, nor even individual Commoners, were allowed a locus standi to appear before Select Committees of either House of Parliament for the purpose of objecting, in the interest of the public, to private Bills promoted by companies, or even of pointing out how the objection- able features of the schemes might be avoided or minim- ised. TheLords of Manors were generally not concerned in protecting their Commons from such invasions ; it was rather their interest to invite them ; for they realised their interest in the portions of Commons taken, and the award of the purchase money might necessitate 332 ATTACKS BY RAILWAY COMPANIES. an ascertainment, by legal proofs, of those entitled to Common rights, and might give important assistance in any schemes for buying up the rights and inclosing under the Statute of Merton.* The promoters, so far from avoiding Commons, appear to have intentionally laid their lines through them, because they were certain of finding no opposition, and because the purchase money payable for the land would be less than for private and inclosed land. This arose not only from the fact that the la*nd was waste and uncultivated, but from the mode in which compensation was (and is still) ascertained and paid. The land in such case is not valued as a whole, and -the compensation subsequently divided amongst the Lords and Commoners. The Lords' interest in the soil is first purchased by agreement or assessment ; the Commoners are then called upon to appoint a committee, and with this committee the Company treats for the acquisition of the Common rights. It is obvious that this method enables the Company to cheapen the Lords' rights by reference to the Commoners, and the Commoners' rights by the Lords, and in this way to pay considerably less than the full value of the land, taken as a whole, for the amount would be less than for private and uninclosed land. It was left to chance whether Parliamentary * At Banstead, for example, as has been shown, the awards of the Inclosure Commission distributing the money paid by the Brighton Company for cutting through the downs, suggested to the Lord of the Manor the idea of purchasing the rights of common and inclosing the Commons. ATTACKS BY RAILWAY COMPANIES. 333 Committees, to whom railway schemes were referred, had their attention directed to the injury done to public interests by the destruction of the value of Commons, or took any steps to protect them. To reject the whole of a scheme for a new line of railway, necessary for the advantage of the people at either end, because at one point it did injury to the public by intersecting a Common, would appear to most Committees a very serious responsibility. The Commons Society determined, at the outset of its proceedings, to do its utmost to oppose and prevent such invasions in the future, and to make promoters of railways understand that it was their interest to avoid injury to Commons, if they hoped to carry their schemes. Railway companies were not the only offenders in this direction. Local authorities not unfrequently cast their eyes upon open spaces, with a view to convert them into sewage farms,* cemeteries, and water works, at a cost less than would have to be paid for inclosed lands. It was necessary to control these bodies, and to enlighten local opinion as to the importance of restraining the authorities from doing permanent injury to their Commons. It was determined to attack such schemes in the * On the eve of the transfer of Lord Spencer's rights in Wim- bledon Common to the public, the Wimbledon Local Board (on which were some prominent members of the Local Commons Preserva- tion Committee) proposed to acquire 300 acres of the Common for a sewage farm, and the proposal might probably have been carried, had not the Crown as a Commoner interfered by litigation to prevent it. 334 ATTACKS BY RAILWAY COMPANIES. House of Commons, on the second reading of the Bills containing them. Fortunately, the Society had within its ranks several members of Parliament, who were willing to undertake this task one which in its in- ception was invidious, as the course was a novel one, and the House was unwilling to debate private Bills, before referring them to Select Committees. It was felt, however, that questions of public welfare were far better dealt with in the full light of the whole House, than in Committees where the railway com- panies were represented by the ablest counsel of the day, and where public interests as a rule had been disregarded or not protected. In the first three years after the constitution of the Society, it resisted and defeated three or four schemes of railway companies for invading London Commons, notably cases for intersecting Barnes Common, Hamp- stead Heath and Mitcham Common. It also defeated a proposal of the Kingston Corporation to take 100 acres of Wimbledon Common for a sewage farm. It was hoped that these cases had given a lesson to promoters, and for some few years there was no serious attack on the London Commons. By 1877 the lesson appeared to have been forgotten, and several proposals came before Parliament involving grave injury to Com- mons by railways and other schemes. One difficulty which occurred arose from the fact that it was by mere chance that information was obtained as to whether, in any year, the multitudinous Private Bills before Parliament, with schemes for every part of the ATTACKS BY BA1LWAY COMPANIES. 335 country, contained any objectionable proposals in this direction. It was an impossible task to search through the Books of Reference and deposited Bills, with a view to discover whether an}' Commons were threatened. To obviate this difficulty, I moved, in 1877, an amendment to the Standing Orders of the House of Commons, requiring promoters of private Bills to advertise, in the London Gazette and in local papers, whether they proposed to take any portions of Commons for their works, and to state the extent which it was sought to acquire, and also to deposit plans with the Home Office, showing the details of the appropriation. The House of Commons willingly assented to the Standing Order. It had an immediate and important effect in disclosing the nature and extent of the invasions by promoters of all kinds on Commons, in every part of the country, and in enabling the Commons Society to take measures for opposing and preventing them. In every succeeding year it appeared that there were very large numbers of such schemes, more or less interfering with and injuring Commons, amounting in 1880 and 1881 to forty and forty-one respectively, and in other years to somewhat smaller numbers. These were submitted to careful examination by the Society, and formed the subject of local inquiry. Communications were made with the local authorities and people of the districts thus threatened, and negotiations were entered into with the promoters. There are very few Commons near London which have not been menaced, during the last twenty years, 336 ATTACK^ BY RAILWAY COMPANIES. with expropriation of parts of their areas by railway companies or local authorities, but fortunately these attempts have almost always been defeated. In 1877 a determined effort was made by the railway companies to prevent interference with their schemes in this respect. A proposal came before Parliament on behalf of the London and Brighton Kail way, to make a branch line through the centre of Mitcham Common, severing it in two and taking eight and a half acres for the purpose of the line a project which would have practically ruined the Common. I moved the rejection of this Bill on its second reading. The railway companies gathered together all their force of directors in the House. They were supported by the Government whips, and by the Chair- man of Committees. They defeated the motion by 143 to 100. The majority was mainly composed of railway directors. They only achieved this victory by agreeing to waive objection to the locus standi of the inhabitants of Mitcham to be heard before the Select Committee. As a result of their evidence, the Com- mittee rejected this part of the proposals of the Company, and the Common was saved. * In the same year the Croydon Local Board proposed in a Bill to * It has frequently been the case, as in this instance, that a motion on second reading, though rejected by the House on a division, has saved the Common or open space threatened by the Bill,, by leading to the subsequent rejection or amendment of the Bill by the Select Committee. ATTACKS BY RAILWAY COMPANIES. 337 expropriate 100 acres of Mitcliam Common for a sewage farm. This was opposed by the Commons Society and was ultimately withdrawn. In the same year the London and South- Western Kail way introduced a Bill for taking a considerable slice of Barnes Common, for a coal-siding. The Local Board of Richmond also proposed to expropriate a part of the same Common for a cemetery. Both of these schemes were successfully opposed. Thenceforward scarcely a year passed in which there were not several schemes before Parliament for taking portions of Com- mons for railways, sewage farms, or cemeteries. They were uniformly resisted by the Commons Society, and were almost invariably defeated. Thus Wimbledon Common was saved in 1880 from a serious invasion of a railway company. Epping Forest was attacked in the same way, in 1880 and 1883, and on each occasion the proposals were defeated. In 1883 Mr. Bryce moved an amendment on the second reading of a Bill for this purpose, that " the House, while expressing no opinion as to the propriety of making a railway to High Beech in Epping Forest, disapproves of any scheme which involves the taking of any part of the surface of Epping Forest, which by the Epping Forest Act, 187S, was directed to be kept ' at all times uninclosed and unbuilt on, as an open space for the enjoyment of the public' ' This was carried by a majority of 230 to 82, and the Bill was rejected. In the same year the Didcot, Newbury, and Southampton Railway Company proposed to construct a line through the very centre of the w 338 ATTACKS BY RAILWAY COMPANIES. most beautiful part of the New Forest ; this also was suc- cessfully opposed, with the aid of Sir William Harcourt. Numerous other cases of the same kind occurred. It came at last to be understood by railway companies that they had far better come to terms with the Commons Society, than attempt to fight it in the House of Commons. The Society in its negotiations with com- panies, has insisted that, where possible, new lines of railways should altogether avoid passing through Commons, especially when in the neighbourhood of towns ; that where such a course was inevitable, the line should be constructed either in a tunnel or on the principle of " cut and cover," so as to avoid disfiguring the Common ; and that where as was often the case small parts of Commons were required, the companies should undertake to add equivalent land in other directions so as to avoid reducing their areas. The Society has also come into conflict with powerful Corporations. In 1878 the Corporation of Manchester proposed a scheme for taking Lake Thirlmere, in Cumberland, as a reservoir for the suppty of water to their city, and it also proposed to expropriate a great area of Commons in the adjoining hills as a collecting ground for the water. The public had always enjoyed access to these open spaces, and it would have been possible for the Corporation, by acquiring these lands, to exclude them in the future. By threatening opposition, the Society induced the Corporation to insert a clause in their Bill to the effect "that the access heretofore enjoyed on the part of the public and tourists to the mountains and ATTACKS BY RAILWAY COMPANIES. 339 fells surrounding Lake Thirlmere shall not be in any manner restricted or interfered with by the Corporation." In 1892 a similar proposal was made by the Corporation of Birmingham, on even a larger scale, in connection with the supply of water to their town. They introduced a Bill to enable them to purchase, in the mountain regions of South Wales, the sources of the rivers Elan and Clair wen, with a very great area of adjoining land, and with no less than fifty square miles of open and uninclosed land subject to common rights. It proposed to buy up all the rights over this immense district, and to convert it into the private property of the Corporation. The rights of common were enjoyed by a great number of small farmers to whose occu- pation they were essentially necessary as a means of existence ; the public also had largely resorted to these hills for the sake of their fine air and scenery. It appeared to the Commons Society that though it might be requisite that the Corporation, for the sake of securing the purity of its water supply, should have large powers over the collecting ground, yet it was quite unnecessary to deprive the small farmers of their rights of common, or to convert the land into private property. The scheme, in fact, was in this respect a great inclosure, without any of the securities afforded to the public, the commoners, and the labouring people of the district by an ordinary Inclosure award, which would have to be submitted to local inquiry, approved by the Agricultural Department, and confirmed by the Standing Committee of the House of Commons. W 2 M ATTACKS BY RAILWAY COMPANIES. The Society determined to come to issue with the Corporation of Birmingham on this point. I moved on its behalf in the House of Commons, on the second reading of the Bill, that it should he an instruction to the Committee " to inquire and report whether it was necessary to extinguish the rights of common and the user of the Commons by farmers over so wide a district, and whether provisions should be inserted for securing to the public free access to the Commons proposed to be acquired." The instruction was at first vehemently opposed by Mr. Chamberlain, on behalf of the Birming- ham Corporation, but the sense of the House was so strongly in favour of it that he withdrew his opposition, and the instruction was carried. As a result, the Committee to whom the Bill was referred, conceded all that we asked for. A clause was inserted, at the instance of Mr. Birkett, the solicitor of the Commons Society, saving the Commoners' rights over the district, and also securing to the public for ever the right of entering upon the land and walking freely over the range of hills. The clause went beyond that in the Thirlmere Act. That measure only secured to the public the same access to the hills as they had enjoyed in the past. The Bir- mingham Act gave to the public a jus spatiandi, or the right of roaming over the districts concerned. It has not always been possible to induce Corpora- tions to forego their schemes, framed in the interest of ecanomy, to expropriate portions of Commons in their neighbourhood for the purpose of cemeteries. Two such cases have occurred in the last few years those ATTACKS BY RAILWAY COMPANIES. 341 affecting Bui well Common, near Nottingham, and the Bournemouth Commons. It is believed, however, that these are rare exceptions, and the view is now gener- ally held that it is not wise to reduce the area of open land near towns for such purposes. In the case of the Corporation of Torrington, in Devonshire, a Bill came before Parliament in 1889, raising a kindred question. The Commons near this town are beau- tifully situated, lying on the crest of a lofty ridge rising abruptly from the river Torridge, and with an area of 300 acres. There had been disputes between the Commoners and the owners of the Rolle estate for many years, and the Bill was designed to put an end to them. It was proposed to vest these lands in the Corporation, giving them power to inclose and lay out for building purposes 100 acres, or one-third of them. The Commons Society gave notice of their intention to oppose the scheme, on the ground that it was not to the general welfare that these open spaces should be reduced by so large an amount. Public interest in Torrington was aroused on the subject ; meetings were held to protest against the scheme, and ultimately, negotiations with the Corporation resulted in their abandoning this part of their measure. The Torring- ton Commons, therefore, will remain intact and secured for the public use and enjoyment. These proceedings in Parliament, in opposition to Railway Companies and Corporations, had an indirect effect beyond their immediate object. They gradually educated public opinion to a full perception of the great 342 ATTACKS BY RAILWAY COMPANIES. importance of preserving such open spaces, and they strengthened continually the idea that the Commons are in a sense public property. For what end should attacks by Railway Companies be resisted, if later the Lords of Manors were to be allowed, under the Statute of Merton, or otherwise, to inclose and appropriate them for purely private purposes ? These discussions therefore contributed, in no small degree, in combination with the great suits, which have been described in this work, to lead public opinion to the point, when it was possible at last to deal with the Statute of Merton in the manner which will be indicated in the next and last chapter. 343 CHAPTER XX. Tub Repeal of the Statute of Merton. It was shown in an early chapter that the Committee of the House of Commons, on London Commons, in 1865, advised by a large majority, as the first and most important step for securing them to the public, that the Statute of Merton should be repealed. They contended that the Statute, originally passed in the interest of agriculture, had long ago ceased to have this justification ; that for centuries it had been recognised by most, if not all lawyers, that inclosures could not safely or justly, with regard to all the interests concerned, be made under it, or without the special sanction of Parliament ; that the proposition urged on behalf of the Lords that the non-user of rights of pasture over Commons, near London or elsewhere, had amounted to an abandonment of them, and that the Lords had practically become owners in fee of the land, free from any rights, was unsound and would not be maintained, if inclosure was resisted in the Law Courts ; that the temptation to revive the obsolete Statute for the purpose of convertiug the London Commons into building land should be removed ; and that Lords of Manors should not be allowed arbitrarily to inclose portions of Commons under the Statute, trusting to the Commoners being 344 STATUTE OF MERTON. unwilling or unable to bear the heavy cost of resisting them by legal proceedings. The Government of the day unfortunately refused to adopt this advice and to repeal the Statute of Merton. There followed the long series of aggressions on Commons which have been described in this work. The Lords of Manors did their utmost to put in force their doctrines, and, by inclosing, to realise the great differ- ence between the value of the Commons, as waste land, and as building sites. There resulted that which the Committee of 1865 expected and predicted. In every case of attempted inclosure, some public-spirited persons Avere found to undertake the cause of the Commoners, and indirectly of the public, and to contest the legality of the inclosures. Years passed by while this protracted and expensive litigation was proceeding, and as one by one the cases came to issue in the Courts, the conten- tions of the Committee were confirmed, and the pretensions of the Lords of Manors were condemned and irustrated. Out of the seventeen cases which have been tried in the Courts, in proceedings for the purpose of preventing inclosure of Commons, by the advice of the Commons Society, and generally with the assistance of their able lawyers, there was not one in which the Lord of a Manor was able to justify his proceedings under the Statute of Merton. The cases of Berkhamsted, Plum- stead, Tooting, Coulsdon, Epping Forest, Ashdown Forest, Dartford, Banstead, Wigley, Malvern and Walton formed an unbroken series of victories. In STATUTE OF MERTON. 345 four other cases there was practical surrender by the Lords of Manors without coming to a decision in the Courts. This was doubtless due to successes which had been achieved in the other and principal cases. The only two cases in which the results were unsatisfactory, those of Tollard Farnharn and Rowley Green, were not inclosures under the Statute of Merton. The Tollard Farnharn case turned upon the right of the inhabitants to provide themselves with fuel under a local custom. In the Rowley Green case, the inclosure was justified under a special custom of the Manor, not under the Statute of Merton. Although these decisions in the Courts of Law completely bore out the contentions of the Committee of 1865, that the Statute of Merton was practically obsolete, aud that inclosures under it, if resisted, would be defeated, yet there remained a constant danger of the Act being used for arbitrary inclosures, owing to the unwillingness or inability of the Commoners to oppose them in the Law Courts. The spirit of encroachment may slumber for a time, but is always on the watch for opportunities. The fear of resistance may deter the inclosure of open spaces in populous districts, but it is not of much avail to prevent the niching of bits of rural Commons. It was scarcely less important a year ago, as a measure of precaution, than it was thirty years ago, to repeal the Statute, or to deprive it of its danger. As the Commons suits were decided in the Law Courts, it appeared that the arguments in favour of the repeal of this Statute, under which such wrongs 34G STATUTE OF ME ETON. were attempted to be perpetrated, were greatly strengthened ; and from time to time the question was raised in the House of Commons, at the instance of the Commons Society. Thus, in the year 1871, in the Select Committee on the Commons Bill which I had introduced, Mr. Cowper Temple moved an amend- ment for the repeal of the Statute of Merton. He was defeated by a majority of ten to four, in spite of the fact that a majority of the members of the Com- mittee were Liberals. Again, in the discussions in Committee on Lord Cross's measure in 1S76, the same question was raised in various forms. I proposed myself a new clause to secure that no Commons should thenceforward be inclosed without the sanction of Parliament. The Minister in charge of the Bill had said on this that " he hoped no British Parliament would ever consent to a scheme of pure confiscation, such as was involved in the proposal." The clause, at his instance, was rejected by a majority of 206 to 82. Lord Edmund Fitzmaurice, at a later stage, renewed the proposal by moving a new clause for the repeal of the Statute of Merton. It was negatived by a majority of 79 to 28. Lastly, Sir William Harcourt proposed a clause providing that the " unlawful in- closure of am' Common, or part of a Common, should be deemed to be a public nuisance." This would have made it possible for any outsider to raise a ques- tion as to the legality of an inclosure, quite irrespective of whether he had any right of common or not, and would have enabled the local authorities of a district STATUTE OF MERTON. 347 to undertake the cause of the Commoners, and to fight their battle against an inclosing Lord of the Manor. The clause was rejected by G4 to 30. One definite advantage, however, resulted from these discussions. The Government at length consented, at the instance of Lord Henry Scott (now Lord Montagu), to insert a clause providing that any person proposing to inclose Common land otherwise than under the Inclosure Acts, should advertise his intention in the local papers, three months in advance. It will be seen that, combined with recent legislation, this provision may become of considerable value. Later, between the years 1880 and 1890, the Com- mons Society, in every recurring Session, endeavoured through its members to obtain a discussion on a Bill for the repeal of the Statute of Merton, but never suc- ceeded in doing so. Lord Meath, in a Bill dealing with Commons, introduced in the Lords in 1890, proposed a clause with this object. It was discussed in the Grand Committee of the Lords, and was strongly supported by Lord Herschell, on the ground that the Statute was obsolete, and that the long course of litigation of late years had proved that it was only put in force in the hopes that Commoners would be unwilling to incur the heavy expense of resisting inclosure. The clause was rejected by a large majority of their Lordships. It seemed, therefore, hopeless to expect that any measure would ever pass both Houses of the Legislature for effecting our purpose, and for repealing an Act which had been COO years on the Statute Book. 348 STATUTE OF MERTON. Most unexpectedly, however, a remedy was found at last, which had its origin not in the representative House, but in the House of Lords. It came about in this man- ner. It has been already pointed out that in many Manors the practice had obtained of inclosing small portions of the waste, under the authority of a custom to make new copyhold grants, with the consent of the homage of Copyholders. Probably the practice originated in the desire to legalize encroachments. Some labouring man squatted on a Common, and took in a piece of the waste for a garden, pig-sty, or cart- shed to his adjoining cottage. Neither the Lord of the Manor nor any one else wanted to throw out such a petty encroachment. If, however, it was suffered to remain without condition of any kind, both Lord and Commoners were prejudiced. Again, if the Lord simply levied a rent, the Commoners were damnified. Under these cir- cumstances, the idea occurred to some one, probably to an ingenious steward, of a copyhold grant. The encroacher was made to petition the lord at a Common Court for a grant of the piece of land in question. The tenants present on the homage-jury were consulted, and if they approved, the land was granted, with their consent and on such conditions as they might impose, to be held by copy of Court Boll. After a time the legality of this practice was challenged. It was argued that, as copyhold tenure depends absolutely on ancient custom, all copyhold land must be deemed to have been such from time immemorial, and the creation of a new copyhold was inconsistent with the very nature of the STATUTE OF MERTON. 349 tenure. Under these circumstances the Law Courts did what they have so often done; they invented a theory to justify arrangements, which were considered to be convenient. They upheld the custom on the ground that the whole waste, of which portions were from time to time granted, must be deemed to have been demisable by copy of Court Roll time out of mind, and might, there- fore, be actually so demised or granted in portions from time to time. This decision was given in 1803.* Under its authority grants of waste multiplied, and the practice was probably introduced in many Manors where it had not previously obtained. The custom was carried in the case of Rowley Green, as has been shown, to the point of allowing the Lord of the Manor to select himself three or four copy- holders to form the Homage, and with their consent to inclose not only as against other copyholders not present and not summoned, but against other persons with rights over the Common, quite independent of the copy- holders, f This creation of new copyholds did little harm, while the practice was confined to its original object, that of legalizing small encroachments, made in the interests of the labouring class, or of effecting some trifling inclosure for a public purpose. But as land in- creased in value in the neighbourhood of London and large towns, advantage was taken of the custom to make money for the Lord. Either valuable inclosures * Lord Northwick v. Hanway : B. and P., 34G. t Supra pp. 225-7. 350 STATUTE OF MERTON. were granted for considerable sums of money, or arrange- ments were made by which the lord bimself obtained the benefit of the grant, and consequent inclosnre. In Epping Forest, to quote a striking case, no less than 1,8S3 acres were inclosed under the assumed sanction of customs to create copyholds out of the waste ; and part of this area was granted to trustees for the Lords, and thus passed into the Lords' hands. At the same time the consent of the tenants was reduced to a mere form. The homage-jury of tenants attending at the Court was selected by the Steward ; no public notice of any proposal to grant such was given ; and in many cases the grant became a simple matter of arrangement between the grantee and the Steward, confirmed by the verdict of two or three copyholders, who had themselves obtained land on easy terms by the same means, or hoped to do so in the future. These facts had long been known to the advisers of the Commons Society, and the usage of creating new Copyholds, at the expense of Commoners, was # looked upon as one of the most dangerous weapons of inclosure which the Society had to encounter. But it was not easy to devise a means to protect Commons from a danger to which the general public were hardly alive. In 1887, however, a Bill was introduced to bring about the speedy enfranchisement of Copyholds and the total abolition of the tenure. It occurred to Mr. Robert Hunter, who had seen the dangers attending the course of the custom, in prosecuting the litigation relating to Epping Forest and other Commons, that this Bill STATUTE OF MERTON. 351 afforded an opportunity of checking a pernicious practice. The Bill was introduced hy Lord Hobhouse in the House of Lords, and referred to a strong Com- mittee, of which the noble Lord was Chairman, and on which the late Lord Bramwell, Lord Kimberley, and other prominent Peers sat as members. Lord Hobhouse had acted as arbitrator in the Epping Forest Case, and had seen something of the working of the custom. Mr. Hunter suggested to him that provision should be made by the Bill to prevent the creation of new Copyholds, and was invited to give evidence before the Committee. He explained the nature of the custom of granting waste as copyhold, the extent to which it prevailed, and the abuses which had been grafted upon it ; and he urged that it was inconsistent to pass a measure designed to effect a speedy and general enfranchisement of existing Copyholds, without some provision which should prevent the creation of new tenures. Mr. Hunter also pointed out that all the objections to the continuance of existing Copyholds, such as the com- plication of titles from the intermixture of freehold and copyhold lands, would be perpetuated if it were allowed to bring new Copyholds into existence. He further urged that a practice which had originated in a claim to meet public requirements, had been con- verted into a new means of aggrandizing Lords of Manors, while at the same time the safeguards which had form erly held the practice in check had disappeared. He repudiated the suggestion that compensation should be paid to the Lord if the custom were abolished, and 352 STATUTE OF MERTON. proposed that, if it was thought necessary to provide any substitute, it should take the form of the grant of small farms as freehold, with the consent of the Vestry of the Parish, after due public notice. The Committee, in the result, substantially accepted the views thus placed before them, substituting the con- sent of the Land Commission for that of the Vestry, and inserted in the Bill (which afterwards became law under the title of the Copyhold Act, 1887) a clause in the following words : "After the passing of this Act, it shall not be lawful for the Lord of any Manor to make grants of land not previously of Copyhold tenure to any person to hold by copy of Court Roll, or by any tenure of a customary nature, without the previous consent of the Land Commissioners, who, in giving or withholding their consent, shall have regard to the same con- siderations as are to be taken into account by them on giving or withholding their consent to any inclosure of Common lands ; and whenever any such grant has been lawfully made, the land therein comprised shall cease to be of Copyhold tenure, and shall be vested in the grantee thereof to hold for the interest granted as in free and common socage." * The exact legal effect of this clause may in some respects be open to doubt. While it absolutely nega- tives the creation of new Copyholders, it assumes that the power of grant previously used will be maintained, and it does not in terms release any land, which a Lord may grant with the consent required by the Act, from the common rights previously existing over the land. But the important point in the interests of open spaces is, that no grant of any part of a Common, under any * 50 and 51 Vic. c. 73, sec. 6. STATUTE OF MERTON. 353 alleged custom, can in future be made without the con- sent of the Board of Agriculture, who are directed, in effect, not to sanction the grant unless they are convinced that it is for the public benefit. Thus all inclosures under such alleged customs are brought under public control. The principle of the clause is far-reaching, and, as we shall see, has paved the way for a treatment of the Statute of Merton, which will render that Act also harmless in the future. It was not, however, till some time after the enactment of this clause, and till ex- perience had been obtained of its working, that the Commons Society perceived the use which might be made of it as a precedent for dealing with other inclosures. During the four years after the passing of the Copy- hold Act, six applications were made to the Agricultural Department for approval of inclosures under this clause relating to grants of the wastes of Manors. In two only of them was the consent of the Board given. These were cases of applications fortw r o very small plots of land, sufficient only for wells, which were required for the supply of water to the public. The other cases were refused on the ground that no public benefit could be shown to result from the inclosures. The Department therefore have acted in full accord with the spirit of the clause, and with the principles laid down in the preamble of the Commons Act of 1870. Practically, therefore, it may be concluded that no further proceedings will be possible under these customs of Manors, unless it be proved that the public interest is distinctly concerned in them. x 354 STATUTE OF ME I? TON. The consideration of these cases at the beginning of last year, 1893, first suggested to me that the prin- ciple of the clause in the Copyhold Act might be applied equally to inclosures under the Statute of Merton, and that the argument in favour of such a course might be used with great force, and with every prospect of success in the House of Lords, where the clause had originated. In this view a Bill was drawn in exact accord with the clause in the Copyhold Act, but apply- ing to inclosures under the Statute of Merton. Lord Thring was induced to take charge of this measure on behalf of the Commons Society. It was hoped that, under the shadow of the precedent of 1887, it might pass the Lords without much notice. It was, however, detected by Lord Salisbury, who made a powerful speech against it on the second reading. " This is a Bill/' he said, " simply to take away from land- owners or Lords of Manors a right which they have had under Statute for six centuries, and to take it without a whisper or shadow of compensation ... I do not believe the Statute of Mer- ton, as it at present acts, does any harm. On the contrary, I believe that in the past it has done a great deal of good, and that it is largely the cause of the extensive cultivation of the poorer land in this country. But be that as it may, this right has been in the Lords of Manors without contest for six centuries, and it is contrary to all the principles by which Parliament guarantees the sanctity of property in this country, that property should be taken without some compensation. " * In a later speech in the Grand Committee on the Bill, he spoke of the Bill as a measure of spoliation, and * Parliamentary Debates, vol. xv., p. 604. STATUTE OF MERTON. 355 added -"Except in the neighbourhood of large towns, all this cry about Commons preservation has a very large element of bunkum in it." The Bill was defended on the second reading by Lord Thring, Lord Hobhouse, Lord Ribblesdale, Lord Selborne, and the Lord Chancellor ; and to the sur- prise of everyone Lord Salisbury, who had moved its rejection and who was supported by Lord Cross, was defeated in the division. The measure was read a second time by 32 votes to 23, and was ultimately carried through the House of Lords without much further difficulty. In the House of Commons it also passed without opposition or even discussion.* It is difficult to exaggerate the importance of this Act. It is most significant of the change of public opinion that it should have passed through the House of Lords, in spite of the opposition of the leader of the majority there, and through the House of Commons, without a single protest. It has practically achieved the object which those who have advocated the right of the public over the Commons have aimed at since the commencement of the movement thirty years ago, but always hitherto in vain. Although it does not in terms repeal the Statute of Merton, it completely takes the sting out of that measure, and renders it quite in- nocuous, and will prevent its being made use of in the future by Lords of Manors for arbitrary inclosures, in the manner so often described in this work. Henceforth, any Lord of the Manor desiring to * Commons Law Amendment Act, 56 & 57 Vict., c. 57. x 2 356 STATUTE OF MERTON. inclose under these Statutes, must obtain in advance the consent of the Board of Agriculture. This alone will be a most valuable security, for it will entail publicity, and will give opportunity for inquiry, and for the raising of objections on the part of Commoners or the public. But the Act goes much further, for it directs that the Board, in giving or withholding their consent, are to take into consideration the same ques- tions which they are bound to entertain before con- senting to inclosure under the Commons Act of 187G. In other words, it must be proved to their satisfaction that the inclosure will be of benefit to the public. The public interest is therefore imported for the first time by the Act of 1893, as a necessary condition to future proceedings under the Statute of Merton. Furthermore, the clause in Lord Cross's Act of 1876, requiring a Lord of the Manor to give notice of his intention to inclose a portion of a Common, by an advertisement in the local papers three months before effecting it, becomes, in combination with the recent Act, for the first time a provision of value and effi- ciency. The Board of Agriculture, as in the case of inclosures under the Copyhold Act, will in the first instance, before entertaining a proposal to inclose under the Statute of Merton, insist that this notice shall have been given ; the notice will give rise to objections. The Board must then be satisfied by the lord that the inclosure will be of benefit to the public. There will further. arise the question whether a sufficiency of Common will be left for the Commoners. The Board STATUTE OF MERTON. 357 will not give their consent unless there be some strong proof of this. But their decision will not prevent any Commoner from appealing to the Law Courts. The most important bar, however, to inclosures under the New Act, will be the necessity of proving that the public interest will be promoted by them. This introduces a new element, fatal to the general pretensions of Lords of Manors. Hitherto they have not been compelled to have regard for public interests in their transactions under the ancient Statute. Private gain and aggrandisement, the desire to convert the Common into building land, or to add it to their parks or game preserves, have been their main or only motives. It is only necessary to consider how this new principle would have operated in the proceedings, which have been described in this work, to appreciate what a protection to the public it would have been. It may be claimed, with the utmost confidence, that in no one of these cases could the Board of Agriculture have been satisfied that the public interest was concerned in inclosure. It is certain, then, that if this Act had been passed thirty years ago, not one of these inclosures, which have been resisted and abated at such enormous cost, could possibly have been attempted, nor would the Lords of Manors have ventured to ask the approval of the Board of Agriculture on the ground of public advantage. The Act must be taken in connection also with the recent decision of Parliament in the Banstead Commons case, in which, as has already been pointed out, the principle has been finally affirmed that a Common may 358 STATUTE OF MEUTON. be taken out of the sole management and control of the Lord of the Manor, and, in spite of his opposition, placed under the management of a Board of Conserva- tors elected by the ratepayers of the district. The two measures taken together amount practically to this that Commons are no longer to be regarded as the private property of the Lords of Manors (subject only to the rights of a limited body of Commoners), entirely under their control and management, and liable to inclosure in respect of so much of them as may not be wanted to satisfy existing rights ; but that, on the contrary, the public interest is to prevail over that of the Lords of Manors ; that, if the lords neglect or are unable to protect them from nuisances and disorder, or to maintain them in a proper condition, the Commons may be taken out of their hands, and placed under the control and management of local authorities, with power to expend the ratepayers' money upon their maintenance ; that, subject to this, the lords' rights such as those of sporting, of gravel digging, or of timber will be preserved ; but that the right of inclosing under the Statute of Merton will practically be reduced to nil by the requirement that such inclosures shall not be permitted unless it be proved, to the satis- faction of the Board of Agriculture, that the public is interested in their being carried out. It has taken nearly thirty years of sustained efforts to effect this revolution in the position of Lords of Manors, and to obtain this recognition of public interests in common lands. The result has only been reached CONCLUSION. 359 after prolonged and costly litigation, and after frequent discussions in Parliament and the Press. It may be interesting to point out that what has in England taken thirty years to effect, through a com- bination of efforts in the Courts of Law, in Parliament, and in the Press, was accomplished more completely in Prance, at the time of the great Revolution, by a few speedy enactments. The position of common lands in that country, under the feudal system, was strictly analogous to that in England. There was the same conflict through many centuries between the Seigneurs and the Communes. Successive Sovereigns of France endeavoured, from time to time, to restrain the rights of the Feudal Lords within reasonable bounds in favour of the Communes, but with little success, for arbitrary in- cisures of communal lands were the subject of frequent complaint. At the time of the Revolution, the National Assembly abolished all the feudal rights of the Seigneurs over such lands, and vested them in the Communes of their districts, without reservation of any kind. In England there is no evidence that the Sove- reigns in olden time ever sided with the people against the landowners. The landowners on their part were all- powerful in Parliament till within very recent years. The Judges also assisted them by pedantic fictions and devices under which the rights of the public of the district were set aside. As a result, the function of a Lord of a Manor, originally rather in the nature of a trust for the benefit of the people of the petty lordship committed to his charge, came to be regarded as a property, subject 360 COXCLUSIOX. only to the rights of pasture of a comparatively limited number of persons those owning land within the Manor. The result of the movement described in this work has been to reverse this idea of absolute owner- ship of Lords of Manors in the waste lands of their districts, and so far to restore to the Commons some- thing of the attributes of the ancient Saxon Folk- Land, and to establish the principle that they concern the interests of the people of the district, and the public generally, even more than of the Lords of the Manors and their Commoners. Much has still to be done to complete this change, and to carry it to its logical con- clusion. All the remaining Commons should be placed under the protection and management of local authori- ties, and subjected to schemes of regulation. For this purpose the provisions of the Metropolitan Commons Act should be extended throughout the country, and the re- quirement of the assent of two-thirds in value of the Com- moners, and of the Lord of the Manor, to a regulating scheme, should be dispensed with. Although the Statute of Merton has been virtually repealed by the recent Statute, there still remains the danger that a Lord of the Manor may purchase up every single right of com- mon, and by so doing practically extinguish the Manor and convert the Common into private property, in which case inclosure would be effected, not under the Statute of Merton, but by Common Law, on the plea that the land has ceased to be legally a Common and has become private property. So long as a single right of common CONCLUSION. 361 subsists, this would be impossible. It is most important, therefore, that the powers now conferred on Urban Authorities, of acquiring rights over Commons within their area, should be extended to other Local Authorities in rural districts, and should be acted upon. The ac- quisition in this way of a single right over a Common, will suffice to prevent the extinction of the Manor. It is also time that the pedantic and senseless doc- trines that the inhabitants of a parish or district are too vague a body to enjoy a "profit a prendre," or to pre- scribe for such a right, and that a custom to be valid must be proved to be enjoyed by the inhabitants of a district only, and not by the public generally doc- trines which it has been shown have been used to defeat claims and customs of a just and necessary character must be reviewed by the light of modern ideas and common sense. These matters, however, are easy and certain of accomplishment compared to what has been effected during the past thirty years. The result achieved during this period has not been without prevision. It was deliberately devised and steadily pursued through a long course of years. It has already been pointed out that at the commencement of the movement, when it was found necessary to fight the battle of the Commons in the Courts of Law, it was determined to use every effort to reverse the current of previous decisions, and to bring back the Judges to the older view of the relations of the Lords of Manors to their Commoners, and to accustom them to the idea that public rights and interests might be 362 CONCLUSION. supported and vindicated through the medium of the Commoners' rights. The success of this work was largely due to the progress of public opinion on the subject. It would be a mistake to suppose that the Judges are not within certain limits amenable to public opinion. It would be very unfortunate if it were other- wise. Public opinion is an environment or atmosphere in which all functionaries, equally with legislators, perform their duties. Even the highest Judges in the land have many opportunities of almost unconsciously deferring to it. If public opinion had been in the opposite direction on the subject of Commons, it would have been quite possible, and indeed easy, for the Courts to have opposed obstacles to the use which was made of the Commoners' rights on behalf of the public. The insistence on what were really technical, rather than substantial, rights of common, for the purpose of preventing inclosures, os- tensibly in the interests of Commoners, but really for a wholly different object, namely to secure the land for use and enjoyment by the public, might at one time be considered as scarcely worthy of the aid of the Courts of Law ; whereas at another time, and with an universal desire to save such open spaces for the public, they might be welcomed as perfectly justifiable and efficient weapons for the purpose. In this view it was essentially neces- sary to proceed cautiously, and in no way ahead of public opinion, while at the same time discussions in Parliament and elsewhere gradually educated that opinion. This change made itself felt in the Law Courts, and doubtless lent its aid to the suits which were CONCLUSIOX. 363 in progress there. Thus it came about that the battle, which was fought so largely in the Law Courts, owed its success in no small degree to efforts in Parliament and in the Press. The experience of the past thirty years has also abundantly vindicated the opinion of the Committee of 1865, that the Commons within fifteen miles of London are none too large for the health and enjoyment of the ever-growing population of the district, and that the policy of the Metropolitan Board of Works, to sell portions of them in order to obtain full possession of the remainder, was both unwise and unnecessary. Not an acre of Common land has successfully been inclosed during this period. Much that was previously niched from Epping Forest has been restored to the public. So far from selling portions of Commons, the London authorities have found it necessary to add to the areas of several of them. Hampstead Heath, it has been already shown, has been more than doubled in size by the purchase of Parliament Hill ; Bostall Heath has been also doubled by the acquisition of Bostall Wood. By the combined action of the London County Council, the Cambervvell Vestry, and private subscribers, an addition of 4 ( J acres has been made to Peckharn Eye Common at a cost of 50,900. Even that portion of Epping Forest which is nearest to London, namely Wanstead Flats, has been increased by the purchase by the Corporation of London of Wanstead Park, consist- ing of 184 acres, and of Higham Park, of 30 acres. West Ham Park, of 80 acres, has also been purchased by the 364 CONCLUSION. Corporation for 25,000. Within the same period numerous additions have been made to the London Parks. Clissold Park, one of the most beautifully laid out and planted parks within the Metropolitan area, and with an area of 53 acres, was bought by the joint action and contributions of the Metropolitan Board, the Local Board, and private subscribers, at a cost of 95,000. The same method was adopted for the purchase of Brock well Park, in the parish of South wark, consisting of 78 acres, at a cost of 122,000 ; of the Hilly Fields, 42 acres, for 42,000; of Ravenscourt Park, in 188S, of 32 acres, at a cost of 01,600. Sir Sydney Water- low, in 1891, made the generous gift of 26 acres at Highgate, now known as Waterlow Park. The Dulwich College Trustees made a similar gift of 72 acres for the formation of a public park at Dulwich. These are strik- ing evidences of the strength of feeling which has grown up of late years, as to the necessit}*- of ample open spaces for the recreation and enjoyment of the teeming multitudes of our great city. In looking back on this long contest of thirty years, extending over more than an average generation, it is sad to recall what breaches have been made in the ranks of those engaged in it. Of the early coadjutors in the movement, John Stuart Mill, Henry Fawcett, Charles Buxton, Lord Mount Temple, and many other true friends, have not lived to see the success of the cause. The great Judges to whose decisions the victory was so largely due Lord Romilly, Lord Hatherley, Sir George Jessel, Sir Charles Hall, and Sir W. M. James are no CONCLUSION. 365 longer in their places on the Bench. Of the eminent counsel, by whose advocacy and learning the cases were successively presented in their most favourable light, and the Courts were brought back to the almost for- gotten view of the importance of common rights, Mr. Manisty (afterwards Mr. Justice Manisty), Mr. Joshua Williams, Mr. W. E. Fisher, and Mr. McClymont have passed away.* Of the public-spirited men who took upon themselves the burden of fighting against the inclosures, Mr. Augustus Smith, Mr. Grurney Hoare, Mr. Frederick Goldsmid, Mr. Hall of Coulsdon, Mr. Hamilton Fletcher and Mr. Nisbet Robertson of Ban- stead, Mr. William Minet of Dartford, and old Willin- gale of Loughton, are no longer alive to celebrate the final success. Enough, however, remain of the earlier and later friends of the cause, to recollect the perilous position of Commons at the commencement of the movement, to appreciate the revolution which has been effected in the relations of Lords of Manors to their Commoners and to the public, and to rejoice in the conclusion that never again in the future will it be said with truth " Our fenceless fields the sons of wealth divide, And e'en the bare- worn common is denied." Goldsmith's "Deserted Village.' 1 '' * Lord Selborne, who rendered such great services in the earlier cases, still happily survives, as does also Mr. P. H. Lawrence, to whom the initiation of the movement was largely due, and who, when called to the Bar, in 1876, was employed as Counsel in several of the later cases. 366 APPENDIX. APPENDIX I. COMMONS WITHIN THE METROPOLITAN POLICE DISTRICT WHICH HAVE BEEN SUBJECTED TO REGULATION SCHEMES, UNDER THE METROPOLITAN COMMONS ACT, CONFIRMED BY PARLIAMENT. Year in which Con- firming Act passed. Name of Common. Managing Body. Acreage of Common. 1869 Hayes Common. Local Conservators. 200 1871 Blackheath. London County Council. 267 > Shepherd's Bush Common. M > 8 1872 Hackney Commons (3). )> >) 166 1873 Tooting Bee Common. >! >> 144 1876 Barnes Common. Local Conservators. 120 1877 Ealing Commons. Ealing Local Board. 50 J> Clapham Common. London County Council. 200 ) Bostall Heath (Plumstead). >> 55* 1880 Staines Moor (2). Staines Local Board. 353 1881 Eelbrook Commons, Fulh'm. London County Council. 27 1882 Acton Commons. Acton Local Board. 12 Chiswick Common and Chiswick Local Board. 21 Turnham Green. yy Tottenham Commons. Tottenham Local Board. 4S 1884 Streatham Common. London County Council. 66 1886 Chislehurst Common (with St. Paul's Cray). Local Conservators. 182 )> Farnborough Common. >> > 45 1891 Mitcham Common. >) >> 570 1893 Ban stead Commons (4). i >) 1,300 Total 3,834 * Without including Bostall Woods. APPENDIX. 367 APPENDIX II. COMMONS WITHIN THE METROPOLITAN POLICE DISTRICT WHICH HAVE BEEN SECURED TO THE PUBLIC AND REGULATED UNDER SPECIAL ACTS OR WHICH HAVE BEEN BOUGHT BY LOCAL AUTHORITIES. Name of Common. \ Managing Body. Acreage. Remarks. Hampstead Heath. London County 240* Lord's rights Council. bought for 45,000 Wimbledon Com- Local Board of 1,000 Annuity of mon. Conservators. 1,200 secured to lord. Wandsworth Com- London County 194 Annuity of 250 mon. Council. secured to lord. Tooting Graveney >! 63 Lord's rights Common. bought for Plumstead Common. 100 3,000. Woolwich and The War Office. 187 Charlton Commons. Hounslow Heath. 270 Wormwood London County 193 Scrubbs. Council. Peckham Rye. 64 Epping Forest. Corporation of 6,027 Lords of Manors' London. right bought at 20 per acre. Coulsdon Commons n 400 Lord's rights (4). bought by Corporation. West Wickham >i 50 Lord's rights Common. bought for 2,000. Hackney Marshes. London County 337 Council. Total 9,125 Without including Parliament Hill. 368 APPENDIX. APPENDIX III. COMMONS OF OVER TWENTY ACRES EACH, WITHIN THE METROPOLITAN POLICE DISTRICT, NOT YET PROTECTED IiY REGULATION SCHEMES UNDER THE METROPOLITAN COMMONS ACT, 1866. Name of Common.. County in which Situate. Acreage. Dartford Common. Kent. 360 Dartford Briinp. Kent. 60 Eltham Common. Kent. 42 Keston Common. Kent. 55 Carshalton Common. Surrey. 150 Chelsham Common. Surrey. 30 Epsom Common. Surrey. 443 Epsom Downs. Surrey. 430 Esher Commons (2). Surrey. 315 West End Common. Surrey. 134 Farley Commons (2). Surrey. 40 Ham Common. Surrey. 126 Palewell Common. Surrey. 20. Petersham Common. Surrey. 20 Piggs Marsh, Mitcham. Surrey. 53 Rushet Common. Surrey. 20 Sheen Common. Surrey. 83 Thames Ditton Commons (4). Surrey. 309 Walton Commons (2). Surrey. 500 Walton-on -Thames Heath Surrey. 150 Wocham's Heath, Chelsham. Surrey. 90 Qolden Green, Hendon. Middlesex. 27 Hadley Common. Middlesex. 174 Harrow Weald Common. Middlesex. 44 Ruislip Common. Middlesex. 60 Stanmore Commons (2). Middlesex. 147 Tottenham Lammas Lands. Middlesex. 250 Rowley Green (Shenley). Hertfordshire. 119 Totteridge. Hertfordshire. 52 Waltham Marshes, Cheshunt. Hertfordshire. 154 Walthamstow Marshes. Essex. Total 140 4,597 APPENDIX. 369 APPENDIX IV. ROYAL AND PUBLIC PARKS WITHIN THE METROPOLITAN POLICE DISTRICT. Year in which In whom Xame of Park. opened to the Public. By whom opened. vested Acreage Hyde Park - . - "1 O no oo The Crown 350 Kensington Gardens - iggo tD ? 270 The Green Park - St. James's Park > a, & 1 v'-Z 31 . _H 00 > 53 91 Greenwich Park - ,2j ft ft . o P S 148 Richmond Park - >, 2 =0 X <*1 M il ,, 2050 Bushy Park - - J H 680 Hampton Court Gardens 1838 Queen Victoria 36 Regent's Fark Various ( dates \ William IV. Queen Victoria 275 Kew Gardens 1841 Queen Victoria 243 Primrose Hill - 1843 u 62 Hampton Court Park 1893 M 630 Victoria Park 1842 The State The County Council - 214 Kennington Park- 1854 The Duchy ol Cornwall 20 Battersea Park - - , - 1858 The State 198 Finsbury Park - - 1869 The Metropoli- tan Board ol Works - 115 Southwark Park - 1869 Jt 63 West Ham Park - 1884 TheCorporation The Cor- of London - poration 80 Highbury Fields - 1885 The Metropoli- TheCounty tan Board ol Council - 27 Works - Ravenscourt Park 1887 32 ClissoldPark 1889 The County Council 53 Dulwich Park 1890 Dulwich College 72 Waterlow Park - - 1891 Sir Sydney Waterlow 26 Brockwell Park - 1892 The County Council > 78 Hilly Fields. Brockley- 1893 >) 42 Fulham Park 1893 The Ecclesias- tical Commis- sioners - Total 19 5,957 N.B. In the cases of Ravenscourt, Clissold, and Brockwell Parks, and of the Hilly Fields, the Vestries, the Charity Commissioners, and others, contributed to the cost of purchase. Y 370 APPENDIX. APPENDIX V. COMMONS REGULATED OR ENCLOSED UNDER THE COMMONS ACT, 1876. I. SUBJECT TO PROVISIONAL ORDEKS FOR REGULATION. Year in which Act passed. Name of Common, j County. Acre- age. Allotments for Recreation. Allotments for Field (iardens. 1879 East Stainmore j Westmore- (part of) land 6,383 Matteidale Com- Cumber- 2,665 Privilege of playing mon (part of)- land games on 30 acres, and right to walk over 420 acres. 1880 Abbotside - York - 9,700 Privilege of recreation over Staggs Fell Plain, about 80 acres. Clent Worcester 172 Pri vilege of recreation over the whole. Lizard Common Cornwall 70 Privilege of recreation (part of)- over regulated parts. 1881 Beamsley Moor York - 699 Privilege of recreation on certain portions. Langbar Moor - York - 668 Do. do. Shentield - - : Essex 38 Privilege of recreation over whole common. 1882 Stivichall - - Warwick 4 Privilege of recreation over whole common, and 11 acres to be added by a citizen. Crosby Garrett - Westmore- land 1,806 Privilege of walking over the whole and playing games on a part. Privilege of walking 1884 Redhill and Surrey - 324 Earlswood and playing games over the whole. 1883 Drnmburgh 1 Cumber- 275 Do. do. Common and land - Moss Ashdown Forest Carried Sussex - forward - 6,000 28,804 APPENDIX. APPENDIX V. (continued). 371 Year in which Act pass-d. Name of Common. County. Acre- age. Allotments for Kecreation. Allotments for Field Gardens. 1886 Brought Totternhoe forward - Herts 28,804 234 Privilege of walking Stoke Warwick 66 and playing games over the whole, with a small exception. Privilege of walking and playing games over the whole. 1887 Ewer Hants 28 Do. do. Laindon - Essex 26 Do. do. 1888 Thir field - Herts 431 Do. do. 1889 Amberswood Lancashire 32 Do. do. 1890 Cleve Gloucester 1,100 Do. do. 1893 West Tilbury Essex 105 Do. do. Middleham York 363 Do. do. Henfield - Sussex - Total 75 Do. do. 31,264 II. SUBJECT TO PROVISIONAL ORDBRS FOR ENCLOSURE. Year in which Act pissed. Name of Common. County. Acre- age. Allotments for Recreation. Allotments for Field Gardens. A. R. r. A. R. y. 1878 Orford Suffolk - 46 6 Riccall York - 1,297 6 20 Barrowden Rutland - 1,925 9 20 North Luffen- Rutland - 1,636 7 1 8 20 ham South Luffen- Rutland - 1,074 15 ham 1879 Matterdale Cumber- 2,794 10 10 (part of)- - land East Stainmore Westmore- 4,075 40 10 (part of)- land South Hill Cornwall 402 10 10 Whittington Stafford - 53 8 10 I860 Lizard Common (part of)- Cornwall 280 20 Steventon - Carried Berks forward - 1,373 14 20 14,955 116 1 8 1 M Y 2 372 AIT END IX. APPENDIX V. (continued). Year in which Act passed. Name of Common. County. Acre- age. Allotments for Hecreation. Allotments for Field Gardens. A. it. P. a. k. r. Brought forward - 14,955 116 1 8 loo Heady Bank Radnor - 131 ( Privilege of recrea- \ \ tion over parts ' Llandegley Rhos Radnor - 322 \ uncultivated or ( ( unplanted. ) Llanfair Hills - Salop 1,034 10 and Offa's Dyke. 15 1881 Wibsey Slack and Low Moor York 400 67 2 9 Scotton and Lincoln - 1,605 10 48 Ferry Thurstaston Chester - 210 45 5 1882 Arkleside - York - 450 Privilege of walking on all unplanted or uncultivated parts 20 Bettws Disserth Radnor - 656 Do. do. Cefn Drawen Radnor - 893 Do. do. 1883 Hildersham Cambridge 1,175 8 15 1885 Llanybyther Carmar- then - 1,891 Privilege of walking on all unplanted or uncultivated parts. 1886 Totternhoe Com- mon Fields - Herts 1,717 No allotment from these common fields, but the Commons, consisting of 234 acres, are dedicated to the public. 25 1891 Mungrisdale Cumber- land 500 4 2 6 Total - 26,539 498 289 APPENDIX. 373 APPENDIX VI. ACREAGE OF COMMONS AND COMMON FIELD LANDS IN EACH COUNTY IN ENGLAND AND WALES. COMPILED FROM THE TITHE COMMUTATION MAPS OF 1834, SO FAR AS THEY EXIST, WITH ESTIMATE BASED ON SAME AVERAGE FOR PARISHES WHERE MAPS DO NOT EXIST. Parliamentary Return, 1874 (85). ENGLAND. County. Total Aiea. Area of Commons. Area of Common Fields. Acres. Acres. Acres. Bedford - - 295,516 4,630 19,981 Berks .... 455,035 7,663 15,932 Bucks .... 468,574 10,438 4,680 Cambridge - - - - 547,427 5,919 7,476 Cheshire .... 715,835 17,633 715 Cornwall - - - - 857,608 68,260 901 Cumberland ... 973,510 187,718 2,045 Derby .... 642,794 21,139 1,757 Devon .... 1,657,749 165,007 1,157 Dorset .... 628,225 38,713 7,603 Durham - 699,626 54,461 1,207 Essex - 994,608 12,974 4,909 Gloucester - - - - 810,995 15,069 7,313 Hereford - 540,539 10,203 2,498 Hertford .... 390,828 5,345 11,096 Huntingdon - 230,486 597 3,672 Kent- .... 1,002,972 8,176 4,309 Lancaster - - - - 1,205,037 68,875 3,298 Leicester - - - - 511,428 676 135 Lincoln .... 1,725,641 13,432 17,081 Middlesex .... 178,466 4,316 1,567 Monmouth - 345,722 27,802 67 Norfolk .... 1.352,291 16,510 3,954 Northampton ... 633,286 2,947 17,549 Northumberland - 1,236,655 53,214 51 Nottingham ... 529,281 1,513 10,899 374 APPENDIX. APPENDIX VI. {continued). County. Total Area. Area of Commons. Area of Common Fields. Oxford .... 467,306 3,834 8,959 Rutland - 92,696 2,268 9,656 Salop - - - - - 852,493 33,814 525 Somerset - - - - 1,043,879 32,828 8,522 Southampton ... 1,027,673 41,502* 6,388 Stafford .... 729,248 12,281 1,540 Suffolk .... 943,166 7,534 2,579 Surrey - 479,921 42,936 4,009 Sussex - 925,076 21,222 3,091 Warwick - - - - 565,448 1,216 2,440 Westmoreland - - - 508,115 172,344 784 Wilts .... 869,233 9,286 22,670 Worcester - - - - 463,730 4,519 4,253 Yorkshire, North Riding - 1,336,268 253,772 787 Yorkshire, East Riding 742,701 11,039 11,405 Yorkshire, West Riding 1,727,176 225,823 10,849 York, City of 52,479 601 559 Total 32,450,742 1,700,049 250,868 Wales .... 4,700,431 668,416 13,439 Total 37,157,173 2,368,465 264,307 Total, subject to Common Rights, 2,632,772. From this has to he deducted inclosures under private Acts between IS 34 and 1845; inclosures made under the Commons Act of 1876; and inclosures since 1834 under the Statute of Merton, or under customs of Manors. * This does not appear to be accurate, as the New Forest alone consists of 63,000 acres. INDEX Abbey of Chertscy, and Tooting Gi-aveney, 84 ; and Coulsuon Manor, 174 Abbey of Waltham Cross, 108 Abbot of Westminster and Wandsworth Manor, 99 Acreage of inclosures, made from the fall of the Stuarts to 1846, 20 ; between 1845 and 18(39, 23 ; since the Com- mons Act of 1876, 286 Act, the first Inclosure, 12 ; for the Bounds of Forests (Charles I.), 113; Commons (1866) (nee Metropolitan Commons Act) ; Commons, of 1876, 5, 278-281, 312, 313. (For other Acts and motions in Parliament on Common Lands, see Parliament.) Acton Common, Extent of, 327 Acts, Inclosure, between the fall of the Stuarts and 1846, 20 Agricultural Department (we Board of Agriculture) Alcock, Mr. Thomas, and Banstead Manor, 190, 192; purchases the rights of commoners, 195 ; suit against, 198- 209 Alfarthing, Manor of, 100 Althorpe, Viscount, and Earl Spencer, and the Manor of Mortlake, 92 Amherst, Lord, his interest in Hackney Commons, 319; the Metropolitan Board loses the action against, 320 ; purchase of his interest in Hackney Downs and London Fields, 32 1 ; pur- chase of his interest in Hackney Marshes, 322 Anderida, Forest of, 161 Anne, Queen, legislation to facilitate in- closures in the reign of, 19 Arbitrator of Epping Forest, 151 Area, of commons near London, 3 ; of Epping Forest, 3 ; of commons in England and Wales, 4, 5 Arundel, Lord, and the Manor of Tol'ard Farnham, 214 Ascot, Inclosures of roadside wastes at, 293-296 Ashdown Forest, remaining portion of the Forest of Anderida, 161 ; early owners of, 161-166; surveys under ttie Com- monwealth of, 162 ; disafforestation by Charles II., 163; inclosures made by Lord Bristol of, 163; iuclos ires made by Sir Thomas Williams of, 164 ; decision of the Court of the Duchy of Lancaster respecting in- closures in, 165 ; curtailments made by the Dorset family of commoners' rights in, 166, 167 ; result of the suit of Lord de la Warr against the commoners of, 168-170; regulation of, 329 Ashridge, Demesne of, 58, 59 Ayrton, Mr., his Bill for dealing with Epping Forest, 140, 141; his motion for the appointment of a Commission of Inquiry into the condition of Epping Forest, 143 Bacon, Vice-Chancellor, his decision in the suit of Lord de la Warr against commoners of Ashdown Forest, 168, 169 Baldwin, Mr. Christopher, and Clapham Common, 324 Banstead Commons, 3 ; and Mr. Doulton's Committee, 32 ; lengthened litigation concerning, 188 ; extent of, and views from, 188; Mr. Alcock's proposals regarding, 191, 192; Sir John Har- topp's attempt to inclose, 193 ; pur- chase by Sir John Hartopp of commoners' interests in, 195, 196: Sir John Hartopp's encroachments on, 196 ; the litigation between the commoners and Sir John Hartopp respecting, 198-2J9; scheme of the Agricultural Department for the regulation of, 209, 210; conservators of, 210 ; regulation of, 324 Banstead Commons Protection Societv, 197 Banstead Down, 189 37G INDEX. Banstead Heath, 189 Banstead Manor, extent of and early owners of, 189, 190 Banstead Park, 189 Baring, Mr. Francis, and Banstead Com- mons, 201 Barnes Common, 3 ; and Mr. Doulton's Committee, 32, 33 ; extent of, 323 ; regulation of, 323 ; proposed coal- siding and cemetery on, 337 Baston, Manor of, and Haves Common, 315, 316 Battersea, Manor of, 99 Bayeux, Bishop of, and Plumstead Manor, 78 ; and the Manor of Mortlake, 90 ; and the Manor of Banstead, 189 Baynes, Adam, Manor of Mortlake bought by, 91 Beachy Head, downs on, 4 Bedford, Mr. Deputy, his activity in the preservation of Epping Forest, 159 Berkhamsted, 58 ; charter of incorpora- tion granted by James I. to, 69 ; its incorporation rights, 75 Berkhamsted Common, 3 ; inclosure of, 39, 42 ; extent and beauty of, 58 ; formerly the property of the Crown, 58 ; leased to the owners of Ash- ridge, 59 ; Lord Brownlow's trustees erect fences round, 61 ; measures taken by Mr. Augustus Smith to remove the fences round, 64, 65 ; ancient history of, 67-73 ; fences re- moved by Edlyn on, 70 ; decision of the House of Lords (1641) respecting, 71, 72; inclosure again pulled down from, 72 ; Edlyn's success during the Commonwealth in preventing the in- closure of, 73; Lord Bomilly's de- cision in the case of Mr. A. Smith against Lord Brownlow respecting, 74 " Betterment " principle, The, as applied to the maintenance of Wimbledon Common, 98 Betts, Mr., and Tooting Graveney Com- mon, 42, 85 Bidder, Q.C., Mr., and Mitcham Common, 326 Birch, Captain, and the works for char- ring coal in the Forest of Dean. 257 Birkett, Mr. Percival, 41 ; and Wigley Common, 186 ; and the Banstead case, 206 ; and the Birmingham water- supply scheme, 340 Bisley Common, 99 Black Book of Canterbury, 93 Blackheath, 3 ; and Mr. Doulton's com- mittee, 32; regulation of, 318 Board of Agriculture, formerly the In- closure Commissioners, 44, 286 ; its scheme for the regulation of Banstead Commons, 209, 210; its action with regard to the regulation of Commons, 313, 314; powers of, 356, 357 Bodleian Library, Copy of survey of Waltham Forest in,'ll0 Bolingbroke, Viscount, and the Manor of Wandsworth, 100 Bondsmen, emancipation of, 14 Bostal Common, 3 ; inclosure of, 39, 79 ; view from, 77 ; purchase by the Board of Works of the interest of Queen's College in, 83 ; regulation of, 323 : extension of, 363 Boughton, Sir Edward, and Plumstead Manor, 78 Bournemouth Common, 329. 341 Bo wen, Lord, and the Tollaid Farnham case, 219 Brabourne, Lord, and the Inclosure Bill of 1869, 274 Brett, Lord Justice, and the Ashdown Forest case, 1 69 Bridgewater, Earls of, and the domain of Ashridge, 59, 69 Bristol, Earl of, and Mortlake Manor, 91 ; and Ashdown Forest, 162, 163 Brockwell Park, 364 Brownlow, Lord, and the inclosure of Berkhamsted Common, 42 ; his deed of gift of a portion of the Common for the benefit of the town, 61 ; Mr. Smith's action against, 67, 74, 75 ; his friendly relationship with the people of Berkhamsted, 75 Brunner, M.P., Mr. J. T., and inclosures of roadside wastes near Northwicli, 297 (note) Bryce, Mr., 40, 41; and the Commons Bill of 1876, 281 ; and the Standing Committee on Commons, 283 ; and the Epping Forest Railway Bill, 337 Buckhurst, Lord, and Ashdown Forest, 162 Buller, Mr. Justice, on the custom of playing on village greens, 301 Bulwell Common, 34 1 Burgh H-ath, 189, 196 Burney, Mr. George, 41, 149, 154 Burnham Beeches, beauty of, 264 ; the poet Gray on, 264; extent of, 265; Lady Grenville's arbitrary pro- ceedings with regard to, 267-270 ; INDEX. 377 put up to auction, 271 ; intervention of the Commons and Kyrle Societies to prevent the sale of, 271 ; purchased by the Corporation of London assisted by Sir Henry Peek, 272 ; its preser- vation ensured, 272 Burnham, Manor of, early history of, 265 ; acquired by Lord Grenville, 265 ; Mrs. Grote's account of, 266 ; neglected condition of cottages in the, 2o6 Burrell, Mr. Joseph, 40, 95 Bushey Park, 3 Buxton, Mr. Charles, 40, 274 Buxton, Mr. E. X., 41; his "Epping Forest " quoted (note), 108 Buxton, Sir T. Fowell, 40 ; and the Willingale case, 127 Byles, Mr. Justice, on the rights of free miners, 257 Byron, Mr. Thomas, and Coulsdon Manor, 42, 174, 175 Cadnam, Manor of, 180 ; Lord Chancellor Hatton's decree concerning the, 182 185; extent of, 186; small holdings in, 187 Cairns, Lord, and the inclosure of roadside wastes at Hatfield, 293 Carew, Sir Nicholas, and Coulsdon Manor ; 174 ; and Banstead Manor, 190 Carmarthen, Marquis of, and Mortlake Manor, 91 Cattle, rights of turning out, 1 ; in ancient times, 8. 10 Cecil, Sir Edward, and the Manor of Mortlake, 91 ; created Viscount Wimbledon, 91 Cecil, Sir Thomas, and the Manor of Mortlake, 90. Cemetery, proposed to be formed on Barnes Common, 337, on Bulwell Common, 341, on Bournemouth Common, 341 ; at Torrington, 341 Chaldon, Manor of, 190 Chamberlain, Mr. Joseph, and the Bir- mingham water-supply scheme, 340 Charities of the City of London, 57 Charity Commissioners, The, and the purchase of Parliament Hill, 57 Charles I., forestal rights of, 112; fixes forest bounds, 112, 113; his scheme for the disaftorestation of Waltham Forest, 113; authorises the dis- afforestation of Malvern Forest, 114, 171 ; sells mineral rights and trees in the Forest of Dean, 251 Charles II., hunting in Waltham Forest, 115; disafforests Ashdown Forest, 163; proceedings of the Common- wealth in the Forest of Dean nulli- fied by, 253 Charles, Prince, and the Manor of Wands- worth, 100 Charring coal, AVorks in the Forest of Dean for, 257 Charta de Foresta of King John, 105 Chigwell Manor, 109 (note) Chingford, 109 (note), 137 Chislehurst Common, 3, 324 Cinderford, 260 Clapham Common, 3 ; early records of, 323 ; extent of, 324 ; drained and planted, 324 ; regulation of, by the Metropolitan Board, 324 Clarke, Sir Edward, and the Tollard Farn- ham case, 219 Clent Common, 329 Clissold Park, 364 Coal in the Forest of Dean, 256 ; the present output of, 259 Colchester, Lord, and commoners' rights in Ashdown Forest, 168 Coleridge, Lord, and Crown rights over Epping Forest, 139, 140; and the New Forest Commission of 1854, 236 Collective ownership of land, ancient system of, 7 Commissioners appointed by Cromwell for inquiring into Forest rights, 114, 115 Commissioners, Inclosure. (rant for digging coal in the Forest of Dean made by James I. to, 256 People's Land, The, 8 Pepys, Mr. Secretary, and the Spanish intentions regarding the Forest of Dean, 251 ; and Sir John Winter's new- lease for the Forest of Dean, 254 ; and the coal in the Forest of Dean, 256 Pevensey, Castle of, granted to John of Gaunt, 161 Pitstone Common, 62 Plumstead Common, 3 ; inclosure of, 39, 42 ; its extent, 77 ; its ownership in early times, 77, 78 ; its present owners, 78 ; encroachments on, 79 ; action taken against the owners, and the decisions of Lords Romilly and Ilatherley, 79-82; addition by the County Council to, 83 Plumstead Manor, mentioned in Domes- day Book, 77 Poaching in the New Forest, 233 Pol^, Cardinal, and the Manor of Mort- lake, 90 Pole, Mr. Wellesley. (See Mornington, Lord.) Pollock, Mr. Justice, 40, 95 Poor, the. Advantages of commons to, 3 Popple, Captain, sells the Manor of Burn- ham to Lord Grenville, 265 Porter, Mr., and an inclosure on Wands- worth Common, 100 Portman, Lord, and the Royal Commission on Crown Lands of 1849, 118 Poulett, William, and Wigley Common, 181, 183 Powell, Sir John, and Ashdown Forest in- closures, 166 Press, the, Influence of, in the commons struggle, 363 Public opinion, Influence on judges of, 362 Putney Heath, Proposed sale of, 28 ; 92 Queen Elizabeth's Lodge, Epping Forest, 104 ; made over to the Corporation of London, 151 Queen's College, Oxford, Manor of Plum- stead bequeathed to, 78 ; inclosure of Bostall Heath and Shoulder of Mutton Green by, 79 ; action brought by Messrs. Warrick, Goldsmid, and Jacobs against, 80-S3 Railways, Attacks on commons by, 29, 33, 100, 193, 331-342; payments made to Lords of Manors by, 331; the oppo- sition of the Commons Society to the invasions of, 333 Ranger of Epping Forest, 151 " Ranges Act," The, 244 Ravenscourt Park, 364 Recreation on commons, 2 Recreation grounds, Acreage set apart for, between 1845 and 1869, 23 Red Hill Common, 329 Regulation of Commons, the, Two schemes INDEX. for, 312 ; provisions of the Metro- politan Commons Act of 1866 for, 312, 313; under the Commons Act of 1876. 313; within the Metropolitan Police district, 314; action of the Board of Works with regard to, 314, 315: in relation to Hayes Common, 315-318; with regard to Black] u at h. Shepherd's Bush Common, and the Hackney Commons, 318-322; with regard to Clapham, Plumstead, Streatham, Barnes, and Tooting Graveney Commons, and Bostall Heath, 322-324; with regard to Mitcham, and other commons, 324- 327 ; with reference to Epsom Com- mons, 327, 328 ; schemes under the Act of 1876 for, 328, 329 ; further action desirahle with regard to, 329, 330 Rihblesdale, Lord, and the Commons Law Amendment Act, 355 Richmond Park, 3 Kiddlesdown, 174 Rivers (the late), Lord, his action against villagers of Tollard Farnham, 212, 219, 220 Roadside Wastes, their value, 288 ; their frequent inclosure, 288, 289 ; the law on the suhject of, 289 ; telegraph posts on, 290, 291 ; inclosures at Hat- field by the late Lord Salisbury of, 291-293; inclosures at Ascot of, and their removal, 293 296 ; proposed amendment to the Highway Bill for the protection of, 297 ; amendment made to the Local Government Bill for the protection of, 297 ; provisions in the Parish Councils Bill for the protection of, 297 ; inclosure near Northwich of, 297 (note) Robertson, Mr. James Nisbet, 197, 198 Romilly, Lord, Judgment with regard to inclosures, of, 43 ; and Mr. Gurney Hoare's suit against Sir Thomas Wilson, 51, 52; and the case of Berkhamsted Common, 66 ; his de- cision in the case of Mr. Augustus Smith against Lord Brownlow, 74 ; and the Plumstead case, 81 ; and the Tooting case, 86 ; on the rights of lopping in Epping Forest, 128, 129 ; on the demurrer entered by Lords of Manors in the Epping Forest case, 136 Rookwood, Lord, introduces Bill for the control of Epping Forest, 150 Rosebery, Lord, his suit with reference to Epsom Common, 328 Rowley Green, Inclosure in 1887, by the Lord of the Manor, on, 225 ; the lord's action for trespass against commoners of, 225, 226 Royal Commission on Epping Forest, 143, * 144, 145; first report of, 148; final report of, 148, 149 Royal Commission, " for the redress of inclosures," appointed by the Pro- tector Somerset, 18 ; on Crown Lands (1849), 118 Royal Patriotic Society's Asylum on Wandsworth Common, 100, 101 Ruckholt Manor, 124 Rural commons, Various measures for the preservation of, 273-287 Russell, Q.C., Sir Charles, and the Manor of South Tad worth, 190, 191, 201, 204, 206 Sackville, Sir Richard, and the Mastership of Ashdown Forest, 161 Salisbury, Marquis of, and the Manor of Cranbourne, 214 ; on the Commons Bill of 1871, 277; on the Commons Law Amendment Act of 1893, 354, 355 Salisbury (the late), Marquis of, his in- closure of roadside wastes at Hatfield, 291-293 Scilly, The Lord of, 63 Scotch Land Act, 6 Scotland, Rights over forests and moors in, 4,6; no common lands in, 6 Scott, Mr., City Chamberlain, and the suit of the Corporation against Lords of Manors, 132 Selborne, Lord, 87 ; and the Commons Law Amendment Act, 355 ; 365 (note) Sclwyn-lbbetson, Sir H. {See Rookwood, Lord.) Serfs, Emancipation of, 13, 14 Sewage farm, proposed to be erected on Wimbledon Common, 334 ; and on Mitcham Common, 337 Sewardstone, Manor of, 153 Sheffield, Lord, and Ashdown Forest, 168 Shelley, Sir John, 168 Shepherd's Bush Common, Regulation of, 318 Shoulder of Mutton Green, 77 ; inclosure of, 79 Smith, Mr. Augustus, and the case of the commoners of Berkhamsted against Lord Brownlow, 42, 63-67, 74, 75 ; INDEX. 389 the Lord of Scilly, 63 ; his work in Seilly, 63, 64 ; his cross suit against the Brownlow trustees, 67 ; Lord Romilly's decision in liis favour, 74, 75 Smith, M.P., Mr. J. B., 294 Smith, Mr. W. H., 41 ; and the New Foi'est Committee of 1875, 242 ; intro- duces Bill for inclosing the Forest of Dean, 261 ; correspondence between the Commons Society and, 262 ; with- draws the Forest of Dean Bill, 263 Somerset, Protector, Royal Commission " for the redress of inclosures " ap- pointed by, 1 8 Spanish Armada, instructed to destroy the Forest of Dean, 250 Spencer, Earl, Proposal made respecting Wimbledon Common hy, 27, 28, 94 ; resents the interference of the com- moners, 95 ; Mr. Peek's suit against, 95-97 ; his compromise with the Committee of Commoners, 97 ; and Wandsworth Manor, 100 ; annuities from Wimbledon and Wandsworth Commons to, 98, 102 Spencer (the late), Earl, and the Manor of Mortlake, 92 Spencer, John, Mortlake Manor be- queathed to, 91 Staines Common, 324 Standing Committee of the House of Commons for considering schemes relating to commons, 282 ; Maltby Common and the, 283 ; and Thur- staston Common, 285, 286 Stanley, Mr. Hans Sloane, and Wigley Common, 181 Stanley, William, and Wigley Common, 181 Stanmore Common, 3; extent of, 327 Statute of Merton, 5 ; passed by Henry III.'s Barons, 11 ; extracts from the, 12; disputes arising from the, 13; regarded as obsolete, 19; attempt to re-enforce the, 25, 26 ; as affecting the inclosure of a part of Wimbledon Common, 29 ; Mr. Doulton's Com- mittee on the, 33, 36, 37, 38 ; view ol judges on the, 43, 44 ; action of Par- liament in 1893 respecting, 44 J 169; cases in which it failed to justify in- closures, 344 ; proposals for the repeal of, 346, 347 ; the Copyhold Act of 1887 in relation to, 351-353; effect of the Commons Law Amend- ment Act of 1893 on, 355, et pattim, Stephen, Mr. Leslie, 41 ; allusion to his " Life of Henry Fawcett," 287 (note) Stirling, Mr. Justice, and the Banstead case, 204, 205, 206 Stixwold, Claim to turn out cattle of the village of, 14 Stockwell Green, used for recreation, 303 ; fenced and planted by Air. Barrett, 304 ; building operations commenced on, 304 ; decision of Sir George Jessel in the suit respecting, 305, 306 Stormont, Lord, and Ken Wood, 55 Sti - eatham Common, 3, 322 Strype's Memorials, quoted, 18 Surrey Downs, 3, 4 Sussex, Open spaces in, 4 Sutton, Surrey, 189 " Sylva," Evelyn's, quoted, 250, 251 Tad worth, 189, 190, 201 Telegraph posts on roadside wastes, 290, 291 Temple, Mr. Cowper. [See Mount- Temple, Lord.) Thames Ditton Common, Regulation and extent of, 327 Thirlmere water-supply scheme, 338 Thompson, Mr. W. S., and Tooting Graveney, 42, 84 ; proposes to in- close Tooting Common, 85 Three-course system of husbandly in ancient times, 8 Thring, Lord, 41 ; and the Commons Law Amendment Act, 355 Throgmorton, Sir Bayham, inclosure in the Forest of Dean by, 251 Thurstaston Common, its picturesque ap- pearance and the views from, 285 ; its inclosure agreed to, with the reservation of a portion for the public, 285, 286 Thwaites, Sir John, scheme for dealing with commons proposed by, 34, 37 Timet, The, Remonstrances on the inclosure of Berkhamsted Common in, 62 Tithe Commutation awards, 5 Tollard Farnham Common, 9 ; inclosures of, by the late Lord Rivers, 212, 218 ; action against villagers for cutting turf on, 213; dependent on the Manor of Cranbourne, 213 ; early history of, 213, 214; Chief Baron Kelly's decision on the arbitrator's case respecting, 219-221 Tollard Farnham, Manor of, 213-217; common- fields of, 216, 217 Tooting Bee Common, 84, 315 390 INDEX. Tooting Graveney Common, 3 ; and Mr. Doulton's Committee, 32 ; inclosure of, 39, 42, 85 ; extent of, 84 ; men- tioned in Domesday Hook, 84 ; fence removed from, 85 ; action against ihe Lord of the Manor of, 8(5, 87 ; and the Board of Works, 315 Torrington Common, 329, 341 Tottenham Common, 3 Tottenham Marshes, Extent of, 327 Totternhoe Common, 329 Trees of Epping Forest, 104, 105 Trustees of Lord Brownlow, and Berk- hamsted Common, 59, 60, 61 Tudor times. Inclosed lands in, 9 Tunhridge "Wells Common, 4 Turf, Rights of digging, 1 ; in ancient times, 8 ; as decided by the Stixwold case, 1 5 Turner, Mr. J. B., 88 Turton, Sir John, and inclosures in Ash- down Forest, 165, 166 Tylney, Earls of, 120 Yerderers, of Epping Forest in former times, 105, 106; reappointment of, 145, 152 ; of the New Forest, 243 Yermuyden, Cornelius, and the dis- afforestation of Malvern Forest, 114, 171 Victoria, Queen, throws open Epping Forest to the public, 157 Village communities, Ancient system of, 7 Yillage Greens, The right to play games on, 299, 300 ; the opinion of judges in the time of Charles II. on the right of playing on, 300 ; Mr. Justice Buller on the custom of taking re- creation on, 301 ; cases at Carlisle and Newmarket as hearing upon public rights over, 301, 302 ; the cases of Woodford and Stockwell Gre'.ns with relation to the rights over, 302-306; state of the Law with regard to rights over, 306, 307; the case of Walton Common in relation to recreation rights on, 307-311 Yilleins, 10 Yirgo, Mr., his action against the Lord of the Manor for the removal of in- closures on Walton Common, 309, 310 Wake, John, and the " monster " box containing Lord Chancellor Hatton's decree, 182 Wales, Small ownerships in, 21 Wales, Prince of (son of James I.), and Berkhamsted Common, 68, 69 Waltham Forest, Extent of, 107 ; laws for the control of, 104-106; unin- closed parts of, 107; a favourite resort of sovereigns, 110, 111; Act passed under Charles I. concerning, 113; threatened during the Common- wealth, 114; Charles II. hunting in, 115 AValtham, Manor of, 153 Walton Common, its situation, 307 ; in- closures on, 308, 309 ; action taken by Mr. Virgo to uphold public rights to, 309, 310 ; decision of Sir A. Wills with regard to inclosures on, 310 Walton-in-Gordano, 308 Walton Heath, 189 Wandsworth Common, 3 ; and Mr. Doulton's Con.mittee, 32, 33 ; en- croachments on, 100; extent of, 100; railways through, 100 ; Royal Patriotic Society's Asylum on, 100, 101 ; agreement between Lord Spencer and the commoners re- specting, 101 Wandsworth Common Act, 101 AVandsworth, Manor of, the, Early historv of, 99, 100 Wanstead Flats, 363 Wanstead, Manor of, 123, 131. Wan stead Park, purchased by the Cor- poration of London, 158, 363 War Department, The, and proposed ranges in the New Forest, 244, 245 Warrick, Mr. John, 42 ; and Plumstead Common, 79, 80 Warwick, Earl of, and the perambulat on of Epping Forest, 113 Washington, Colonel, Children of, and Ashdown Forest, 164 Waterlow Park, 364 Waterlow, Sir Sidney, his gift of Water- low Park to the public, 364 Weald, The, 161 Webster, Sir K. E., and the suit of Lord De la Warr against the commoners of Ashdown Forest, 168 West Ham, Manor of, Sale of, 117 West Ham Park, 363 West AYickham Common, 315, 316; pur- chase of part of the Lord of the Manor's interest in, 317 Westminster, Abbot and Convent of, and the Manor of Hampstead, 47 Westminster, Duke of, 55 Westmorland, Small ownerships in, 21 INDEX. 391 Wetherell, Mr., Assistant Inclosure Com- missioner, his award respecting the rights of commoners on Banstead Commons, 194, 204 Whateley, Mr. A. P., 88 Whetstone, Sir Bernard, L< rd of the Manor of "Woodford, suit against, 106 White, Colonel, his report to the House of Commons with regard to the de- struction of fences in the Forest of Dean, 253 White, Q.C., Mr. Meadows, and the rights of commoners on Banstead Commons, 205, 206 Wightman, Mr. Justice, his decision in the Woodford Green case, 302, 303 Wigley Common, Extent of, 180 ; early owners of Manor of, 180, 181 ; claims of Mr. Sloane Stanley to, 181, 186 ; Mr. Eyre's action against Mr. Stanley for encroachments on, 182, 186; the " monster "hox containing Lord Chancellor Hatton's decree concerning, 182, 184, 185; called " Paulton's Common," 186 Wildman, Major, and the works for charring coal in the Forest of Dean, 257 William the Conqueror and his formation of New Forest, 228-230; in the Forest of Dean, 249 Williams, Q.C., Mr. Joshua, 87, 168 Williams, Sir Thomas, and Ashdown Forest, 164 Williams, Mr. William, 95 Willingales, Case of the, and lopping in Epping Forest, 126-130, 157 Wills, Mr. Justice, his decision in the Walton Common case, 309, 310 Wilson, Sir Spencer Mary on, and the Manor of Hampstead, 47 ; transfers Hampstead Heath to the Metropolitan Board of Works, 53 ; and his pro- perty adjacent to Hampstead Heath, 54, 55 Wilson, Sir Thomas Maryon, 42 ; and the Manor of Hampstead, 47 ; assertion of his rights over Hampstead Heath, 48 ; makes application to Parliament for power to grant building leases, 48, 49 ; declaration of his intentions regarding Hampstead Heath. 50 : erects houses on Hampstead Heath, 51 ; Mr. Gumey Hoare's suit against him. 51, 52 ; and commoners' rights in Ashdown Forest, 168 Wimbledon Common, 3; Earl Spencer's proposal of 1864 respecting, 27, 28 ; in Saxon times, 89 ; Cassar's Camp on, 89 ; duels on, 89, 90 ; its early history, 92 ; extent of, 92 : pollard oaks and rights of cutting fuel on, 93 ; rights of turning cattle on to, 93 ; appointment by the Homage of sur- veyors for, 93 ; gravel-digging on, 94 ; suit against Earl Spencer re- specting, 95-97 ; conveyed to Trustees for the public, 97 : proposal to erect a sewage farm on, 334 Wimbledon, Manor of, Earty history of, 90, 91 ; and the Spencer family, 91, 92 ; Rolls of, 92 Wimbledon and Putney Bill, The, 97 Wimbledon, Viscount. (See Cecil, Sir Edward.) Winter, Sir John, Mineral rights and trees in the Forest of Dean sold by Charles I. to, 251 ; assignment of his rights in the Forest of Dean to General Massy r , 252 ; regains his rights in the Forest of Dean, 253 ; makes fresh inclosures in the Forest, 253 ; his inclosures under a new lease, 254 ; destroys the trees in the Forest, 255 Wisley Common, struck out from the Inclosure Bill of 1869, 275; proposal to devote a portion of it to recreative purposes, 278 Withypool Common, 275, 278 Woodford Green, Decision of Mr. Justice Wightman on the inclosure of, 302, 303 Woodford, Manor of, 124 Worcestershire Beacon, The, 172 Yarranton, Andrew, " The Improvement of England bv Sea and Land," bv, quoted, 248, 249 (note) Yeomen, Small, Hardships suffered from inclosure of lands by, 17, 18; ex- tinction of, 20 I'kixtkd bv Casski.l & Company, Limited, La Belli Sauvagk, London, E.C. Cloth, 10s. 6d. 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