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|Title :||Common Rights (Pages 221 - 228)|
|Author :||Ed Kite|
|Book Type :||General History and Topography|
|Journal :||Wiltshire Notes and Queries. Vol. IV|
|Full Text :||Melksham Common Rights|
The following papers on this subject, in the possession of Mr. Thomas Awdry, of Ardath, Salisbury, have been kindly communicated by him.
They relate to a dispute which, in the year 1763, seems to have occurred between Lord Castleheaven, the then owner of Sandridge (anciently Blackmore, a part of Melksham Forest), and the inhabitants of Melksham, respecting certain Common Rights which the latter had, from time immemorial, been accustomed to enjoy when the entire Forest of Melksham, or Blackmore, was in the hands of the Crown, on payment to the King's "Agister", or farmer of the herbage and pannage of the forest, for the time being, one penny, called an Entring Penny, and other certain sums of money, called Fine Money.
In Hilary Term, 9 James I (1610-11), upon information of the Attorney-General that certain persons claiming these rights of pasture had exceeded their bounds, and overstocked the forest with their own cattle, to the stint of the King's deer and other game, which had in consequence become much decayed, a Decree was obtained in the Exchequer, by which certain parcels of the Forest, called the Cleeres, and Blackmore, were assigned to the Commoners, to be separated with rails of a certain height-the Crown reserving the remainder of the Forest to its own proper use-and the Commoners paying the Entring Penny, &C., as previously accustomed.
On the subsequent disafforesting, the Earl of Anglesey (Christopher Villiers) [Younger brother of the first Duke of Buckingham, created, 1623, Baron Villiers and Earl of Anglesey.] obtained from the Crown, 22 James I (1623-4), a grant of certain forest land in Wiltshire, including Sandridge- as part of Blackmore. He died in 1630, and his son and heir also died, without issue, in 1659.
This Decree of the Exchequer, 1610-11, and the grant of Blackmore from the Crown to the Earl of Anglesey, 1623-4, are the documents referred to in the following papers.
In 1763, James Touchet, whose ancestor had been created Lord Audley [The Earl, his great-grandfather, married the granddaughter of Charles Villiers, Earl of Anglesey.] and Earl of Castlehaven in Ireland, was owner of the Sandridge property contained in the grant of 1623-4 to the Earl of Anglesey. It had at that time long been the custom for the Cattle with which the Common was stocked to be marked on a certain day yearly, by Overseers appointed at the Court Leet of Mr. Walter Long, as Lord of the Manor of Melksham, and with their own mark - such as "M.F." - at a house in Melksham. But in this year (1763) the Earl of Castlehaven, claiming to be Lord of the Soil, erected a Pound in the Common, and inserted the following Advertisement in the Salisbury Journal, intimating that the several proprietors of Leazes were for the future to drive their Cattle to the new Pound which he had built on the Common, as Lord of the Soil, and there to have them marked, by such Overseers as he had appointed, with what he describes as "the ancient and customary Mark of Blackmore Forest".
"Melksham Common, Wiltshire.
Whereas, agreeable to ancient and usual Custom, all Persons who have Right of Common, or Feeding for Cattle, on Melksham Common aforesaid, ought to drive their respective Cattle, at a certain Day, to some certain Place in the said Common, there to be marked with the ancient and customary Mark of Blackmore Forest, by the Bailiff or Agent belonging to the Lord or Owner of the Soil of the said Common, and to pay the usual and customary marking Fee for the same; and in Default thereof, the Owners of all Cattle found feeding in the said Common, not having the said mark, were, from Time to Time, deemed Trespassers, and treated accordingly.- Now, in order that all Persons who have Right in the said Common may be acquainted with the said ancient and usual Custom, and comply therewith,
Notice is Hereby Given,
That they are to drive their respective Cattle yearly, on the 14th day of May, to the common Pound, in Melksham Common aforesaid, then and there to be marked by the Bailiff or Agent of the right Hon. the Earl of Castlehaven, Lord and Owner of the Soil of the said Common, (who is duly authorised for that Purpose) with the ancient Mark of Blackmore Forest, and then and there to pay to the said Agent or Bailiff for so doing the ancient, usual, and customary marking Fee of One Penny for each Bullock, and One Penny for each Horse; and all Cattle which shall be found in the said Common, not having the said ancient Mark, will be seized, impounded, and dealt with according to Law."
To the tenants some of whom held these Leazes with their estates, their yearly value was reckoned at not less than 20 shillings, as each of them entitled its holder to the feed of a poor beast from 14th of May (the day of Stocking) to Michaelmas, and afterwards to feed to his sheep. This being the case, it behoved the Parish to continue the Marking where it had been (it was believed) from the time of the Decree; and as the Earl of Castlehaven's estate at Sandridge, and the Common, although parts of one and the same Forest, were made separate Grants- the former to his ancestors- and the latter to the inhabitants of Melksham, in lieu of their Feed when it was a Forest- his Lordship's estate, or tenants, had never been entitled to so much as a Leaze at all since it was a Common.
It was, therefore, greatly to be apprehended that if the inhabitants of Melksham should acquiesce in the Earl of Castlehaven's claim - his tenants, two of whom he had appointed Overseers for the purpose of Marking, &c., would make it beneficial to themselves, and consequently, by the addition of their Cattle, and when they had a mind to oblige, the Common would no longer remain a stinted one, and the Feed become of much less value. Further, his Lordship had received no benefit from this Common, but from Cottages that had been run up by poor people in times past, through the negligence of the inhabitants of Melksham, some of the occupiers of which he had compelled to take Leases.
It was, therefore, thought proper to have a Meeting of the inhabitants of Melksham, at which it was resolved to oppose such an innovation, and a subscription was accordingly entered into for that purpose, and a case prepared, which is here given, together with Counsel's opinion thereon.
"CASE - The Parcel of Ground (now called Melksham Com'on) which, by the Decree, was allotted to the Inhabitants of Melksham for their Com'on, in lieu of their antient right to feed over the whole Forest, consists of upwards of 300 Acres, and is stinted to about the same number of Leazes, wch are appropriated to the several Estates in the Parish. Each Leaze intitles the Owner to the Feed of a Heifer or Bullock from the 14th May (the day for stocking the Com'on) to Mich'as, and after that time to feed of his Sheep. The Owners of these Leazes have by custom, time immemorial, brot their Cattle (previous to their putting them in the Com'on) to a certain [place within] the Town of Melksham, in order to be marked by Overseers appointed by the Lord of the manor of Melksham, at his Court Leet, with such Mark as has been agreed on, and all Cattle found in the Com'on witht such Mark have been impounded, &c., by such Overseers; and this method of stockg the Com'on has prevailed from the Time of the Decree, as there are no Evidences of a different Custom that they have heard of. But lately the Advertizemt annexed has appeared in the News Papers, and it is avowed by Ld Castlehaven, the Owner of the Estates contained in the Grant to the Earl of Anglesea, under whom he derives his Title; by Virtue of which Grant His Lordship now sets up a right of appointing Overseers for the purpose of marking, and to receive what he calls The Entring Penny. Accordingly he has appointed two of his own Tenants Overseers, the first step [of the kind] the Inhabitants of Melksham ever heard of. His Lordship's Estate [which] was formerly part of the same Forest of Blackmore, is the only Estate in the parish of Melksham that has no right of Com'on in the part allotted to Melksham, and the grant to the Earl of Anglesea (please to observe) is subsequent to the Decree.
"It my be true that before the Decree was obtained there might be a custom, when the Forest was entire, for the Persons who had a right to feed their Cattle in the Forest at large, to pay the Entring Penny to the King's Farmer of the Herbage, and the answers of the Defts to the Informatn exhibited by the Attorney Gen1 admitts it, as also an inclination in themselves to submit to the continuance of it, provided particular parts were allotted to them for their Com'on, and it is observable that in the Decretal part there is no Direction that such a Custom shall continue; but on the contrary. That the Parcells allotted to the Inhabitants of Melksham, &c., shall be enjoyed by them witht the hindrance or Interruption of the King's Farmers, &c.; and they have, therefore, constantly enjoyed it in the manner above set forth.
"Lord Castlehaven founds his Claim under the Grant to the Earl of Anglesea, and as Lord of the Soil of this Com'on, tho' it is not believed that he or his Ancestors have ever exercised the right of appointing Overseers, at least it is most certain that no such Step has come to the knowledge of the Inhabitants of Melksham. He has indeed compelled some poor Cottagers in this Com'on to take Leases, and some have refused to do it.
"The Consequence of his Lordship's succeeding in this Attempt wd be that the Com'on wod cease to be a stinted one, for he will be likely to appoint Overseers from amongst his own Tenants, who have now no pretence to a right of Com'on at all but will for the future mark [their own] Cattle, or those of any others they think proper.
"1st Q. - If the Decree does not give this Com'on to Melksham discharged from the Custom of paying the Entring Penny to the King's Farmers, &c., and wd the Crown afterwards grant to the Earl of Anglesey such a Duty?
"2nd Q. - If you are of Opinion that notwithstanding the Decree, such a right remained in the Crown, and that it passed by the Grant to the Earl of Anglesea. Will it not be expected, on a Trial of this Matter, that some Evidence shd be given of an Exercise of it, and in case no such Evidence shd appear, will not a constant regular immemorial Custom to the Contrary be sufficient to overturn it, after such a length of Time? or will its being the Case of a Claim under the Crown make any difference?
Endorsed.- "Mr. Burland is desired to peruse The copy of a Decree in the Exchr. Anno 9 Jas., and also The Copy of a Grant to the Earl of Anglesey Anno 22 Jas., and to give his Opinion on the within Case."
"Maddock & Green. Mrs Serjt. Burland 2 GS."
OPINION.- "I have perused ye Decree of ye Court of Exchequer, and ye King's Grant to ye Earl of Anglesey, abovementioned, &c.; and I am of opinion that this Grant does not convey any right to ye Soil of that Part of ye Forest of Melksham, otherwise Blackmore, which was before assigned to ye Inhabitants of Melksham, and ye other places, in lieu of their right of Common throughout ye whole Forest. For ye words of ye Grant are "of all ye Forest as it is now divided and inclosed in separate Parcels, now being in our Hands, and in ye Tenure or Occupation of the several Tenants following," and then ye Grant goes on and particularly enumerates ye sev1 Parcels, both those that were in ye Occupation of ye Tenants, and a particular House with 60 acres of Land, at that time in ye King's own Hands; so that nothing more of ye Forest, in my opinion, passes by this Grant, but ye Parcels particularly mentioned, and among these ye Common now in question is not specified. What farther confirms me in this opinion is that in a subsequent part of ye Deed there is a particular Grant of ye Wood, Trees and Timber growing upon this Spot, which is therein particularly expressed to have been thentofore assigned to ye free and customary Tenants of ye Manor of Melksham and as for and in satisfaction of ye Com' of Pasture wh they claimed to have within ye afs'd Forest. Now if ye Soil itself had been intended to have passed by ye Grant, there wod not have been a particular Grant of ye Trees growing thereon, for they would have passed with ye Soil, but as this Parcel of Lands is said to have been assigned to ye Tenants of ye Manor in Liew of their Com' it may fairly be presumed that ye Land itself (and not a bare right of feeding only) was granted to them, with a Reservation to ye King of ye Trees and Timber thereon growing.
"Another Proof of what I have said is, that Liberty is granted to ye sd Earl and his Assigns to inclose all ye Premisses before given Him; now he certainly wd not inclose this Common, because that wod destroy ye rights of ye Commoners. If therefore Lord Castlehaven derives his claim to ye Soil of ye Common under this Grant I think he will find himself much mistaken.
"And I am of opinion that after ye long and uninterrupted usage and enjoyment which ye Commoners have had of this Common, free and clear of any Controul or Jurisdiction of any Officers or Grantee of ye Forest, and exempt from any Payments customy or otherwise, it will be very difficult, if not impossible, for his Lordship now to make out any such demand; for tho' it might be shewn that whilst ye Commoners claimed and enjoyed a right of Common throughout ye whole forest they paid an Entring Penny to ye King's Farmers of ye Herbage; yet when they made a Composition and consented to be restrained to a certain Spot, and have (for ought appears to ye contrary) enjoyed that Spot ever since without making any Payment, it will be a very strong Evidence that such Exemption was part of ye Consideration for their narrowing and restraining their Rights. And this sort of Evidence, together with ye Clause in ye Grant to Ld Anglesey will be much better proof for ye Commoners than their Decree in ye Excheqr, which I think will do them more harm than good, and therefore shod not be relied on or made publick. If Ld Castlehaven shod distrain any of ye Cattle [for] this pretended Duty, ye owners must replevy them, and then upon his Lordship's Avowry, it will be [ ] to consider what Pleas in Bar shod be pleaded.
"J. Burland, "Essex Street, May 7th, 1763."
It would be interesting to know if any further steps were taken in the matter, or whether the death of the Earl of Castlehaven in 1769 put an end to subsequent litigation. The above papers, at least, supply some interesting details respecting the rights of the Melksham Commoners at this date.