[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
[MAP]
The Light Green represents the Banstead Commons. The Dark Green, Walton Heath & Epsom Downs.
[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; 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 by exchange for other land to Edward I., and thence forward remained in the possession of his successors
[190]
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 Carevve. On Carewe's subsequent attainder it reverted to the Crown, but Queen Mary regranted it to his son. In 1762 another Sir Nicholas Care we 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 Commence in 1379, and continue in unbroken succession, and in perfect order, till 1876. 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 ultimately concentrated in the hands of the Earl of Egmont, who held them at the time of the commencement 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
[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 Tad worth 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 regulations made by the homage of Banstead. It will be seen later that the judges recognised that Sir Charles Bussell, 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 Commenced 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 Commissioners, and was compelled to abandon the attempt. In the following year Mr. Alcock gave evidence
[192]
before the Committee of the House of Commons on the London Commons. He pointed out the difficulties 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 pubic, 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 an} proceedings could be initiated under the above Act, for the regulation of the wastes of his Manor. His representatives showed no disposition to carry out his intentions. 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
[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 copyhold 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 Railway 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
[194]
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 purposes 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 Commissioner, and an award was made by him specifying the persons who, in his opinion, had rights over the Common, and were entitled to compensation. This determination 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 r and, as the result showed, the conclusions of the Commissioner proved to be wholly untrustworthy. But such an inquiry by an independent official, with experience 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
[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 allotments 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]
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 Commoners, 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, ^nd 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
[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 filched 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. Eobert Hunter, who had been engaged in so many
[198]
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 Commoners, 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 b}'others.
[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. Eobertson 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. Eobertson 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]
Hartopp and his legal advisers in their ultimate success, and induced them to ojffer 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
[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 greatl}^ 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]
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, fraudulentl}' advised b}^ 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 j^roof in the suit, and made the question far more difficult to the
[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]
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
[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 ot 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]
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 Commoners. 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 Kussell'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.
[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 Eussell, they
[208]
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 pertinacity, 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
[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 Commoners, 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]
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
[211]
reaffirmed the law, which had been ahnost forgotten, that the Courts will interfere on behalf of the Commoners, 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.
