Introduction by Alan G. Fallows, President (2010 ~ 2013)
Over the past 5 years or so I have been involved in attempting to identify the problems affecting freemen throughout England and Wales by the requirements of the 2002 Land Registration Act.
These deliberations have been complex to say the least and have, by necessity, involved not only the registration of land and the over-riding interests of freemen but also the questions of commons and commons registrations.
In both these matters I was most fortunate in being able to call upon the expertise of Alan Shelley who was a former Vice-President of FEW and has long remained active investigating the problems associated with commons both for his “Home Gild” of Sudbury and others.
Through this association I was most fortunate in being able to encourage Alan to take the position of Officer without Portfolio and thus share his expertise with us all.
Alan has been most prolific in preparing a complete series of papers to explain in sequence, from the early days of Sudbury Common registration to the latest problems of Oxford and Tewkesbury, the twists and turns to be placed upon the efforts of freemen by bodies such as The Commons Registrations Committee, DEFRA and the Courts of Justice.
The following sequence of papers will be invaluable to those wishing to understand the problems of freemen’s lands and who may yet become involved in their registration or control and I commend their reading to you all. Knowing Alan, I am sure they will be added to in future, so keep checking for extra items appearing on the website or printed in the Journal.
Alan Fallows ~ President
Alan Shelley ~ Officer Without Portfolio
Freeman of Sudbury
This is the sequence of papers submitted by Alan Shelley for which we are most grateful.
These are, in the main, location specific or the author’s personal opinions.
If you are experiencing difficulties, or challenges to your property rights then you should seek appropriate legal advice.
1) Sudbury Common Lands
2) Registration of Sudbury Common Lands
3) New Legislation on Town Freedom
4) Freemen's Trusts and the Charity Commissioners
5) The Status of the Freemen in England and Wales
6) The Function of the Freemen Today
7) An Opinion on Freemen's Property Rights
8) Tenuous Times for Freemen's Lands
9) How Can the Freemen Secure their Common Rights
10) Interference with Freemen's Inherited Rights over Land
11) The Purpose of the Freemen of England and Wales (FEW)
12) Erosion of Freemen's Rights over their Own Lands
13) Freemen’s Land Tribunal
14) Defining Freemen’s Rights over Lands
15) Freemen’s beneficial Rights over Pasture Lands
16) Freedom Past and Present
17) Freedom and Privilege
18) The Guilds and The Craft Companies
19) Fredom and Curteisye
20) Democracy and the Future of our Local Countryside
21) The Localism Bill and Act
22) Freedom Through Apprenticeship – Part I - A Modern Approach to Admission by Servitude
23) Application for Freedom Through Apprenticeship – Part II - The Practical Approach
24) Freedom Through Apprenticeship – Part III - The Importance and Arriving at a New Criteria
25) Land Registration? ‘Commons Act, 2006 has been Postponed’!
26) The Freeman’s Fraternal Gown
27) Freemen’s Property and Status
28) Local Green Spaces
29) Freemen’s “Exclusive” Grazing Rights
30) The Window is Closing!
31) Current Legislation affecting Land Registration (June 2013)
32) The Legal Case for Freemen’s Exclusive Rights
33) A Freeman’s “Modern” Apprenticeship
34) The Correction of Freemen’s Registered Rights
35) A Modern Approach to Freedom
36) The Ownership of Freemen’s Lands
37) The Dilemma
38) Camping on Borough Registered Common Land
39) The Privilege of Freedom
40) Freemen of the Borough
1) Sudbury Common Lands
The ancient market town of Sudbury in Suffolk was an important Saxon trading borough with its own mint. It became a centre for wool, cloth-making and subsequent silk weaving industry.
From time immemorial the freemen of the town have held grazing rights to lands at Sudbury. Pastoral meadows that lie in the flood plain of the river Stour, adjacent to the town, have been continuously grazed for more than a thousand years. The common lands at Sudbury are the oldest such recorded land in East Anglia.
These lands have their origins in the manorial system of the open fields existing in Saxon times. Some time after the Norman invasion at around 1260 AD a charter of then lord of the manor, Richard de Clare, Earl of Gloucester and Hertford, confirmed the free access over the meadow lands to the free burgesses of Sudbury and of their free successors by inheritance. By customary tradition, the freemen have held rights not only over most of the ‘waste’ grasslands but also over arable lands, after the fields were harvested. Such lands were commonly referred to as ‘shack-lands’.
The Freemen have jealously pursued their rights over these lands for many centuries. Eventually the ‘shack-lands’ were recognised to be preventing any development of the Town. In 1838 a Sudbury Lands Act, enacted by Parliament, directed the sale of arable lands that were restricted by rights of ‘shack’. Pastoral land was purchased in exchange and the freemen’s rights were transferred to the replacement lands.
Administrative problems led to the Council, in May 1897 through a High Court decision, removing their control over the Common Lands and vesting the title into the hands of the Charity Commission. Locally appointed Trustees took control over the management of the lands ‘on behalf of the Freemen of Sudbury’.
Sudbury Freemen, in consequence of wartime, in 1944 requested the Trustees to sell their rights of pasturage annually and this was carried through and practiced for more than forty years until 1987.
In 1987 the Freemen and Trustees were approached by the NHS, who wanted to purchase land (Harp Close Meadow, high above the flood plain) to erect a new hospital for Sudbury. Under threat of compulsory purchase the land was sold. The sale of this land influenced the Charity Commission to enforce a change to the Scheme governing the administration of the Common Lands. It was insisted that the Trustees would no longer manage the lands ‘on behalf of the Freemen’ but that the lands be ‘managed on behalf of the Charity’ (for the benefit of the inhabitants of Sudbury).
From 1987 limited payments, ‘in lieu’ of Freemen’s grazing rights, received from the Trustees of the Common Lands – have been redistributed through an independent trust formed by the Sudbury Freemen’s Society.
Who owns the Sudbury Common Lands?
Historically, when the Town had Borough status, the civic properties including the common lands were owned and administered by the Freemen. It was the Freemen that formed the Mayor, aldermen and officers of the Town and it is the Freemen of today that are their descendents.
The late John Wardman, former Chairman of the Common Lands Trustees, published a pamphlet in May 1991 entitled “Sudbury Common Lands – The Position as Viewed by the Chairman of the Trustees”. In his introduction he stated “I consider it unfortunate that the generally accepted name for the meadows is the Common Lands; the more historical name – The Freemen’s Lands – is slightly more accurate”. In his subsequent book ‘Sudbury Common Lands’ published 1996, he refers on page 33 to “. . . the Freemen who have the rights and claim to be the hereditary owners of the Common Lands”.
The 46 hectares of water meadows that constitute the Freemen’s Lands are not ‘open’ unfenced common as is generally the situation with commons elsewhere. These are cattle grazed lands that are enclosed ‘gated’ commons with stinted rights held ‘in gross’ (personally) by the freemen commoners. Isolated public functions, in the past, have been ‘permitted’ by agreement of the Freemen. Public access has been restricted to clearly defined ‘permitted’ footpaths set out in centuries past.
Following the Commons Registration Act 1965 much, but not all, of the lands were registered. The Freemen’s rights were also recorded under the Act and held in the Register at County Hall. The rights are entered, for each land area covered as follows: - “The right of every Freeman for the time being on the Freeman’s Roll of the Borough of Sudbury to graze two beasts and of every widow of every such Freeman to graze one beast in his or her capacity as a person entitled to the benefit of the charity called “The Sudbury Common Lands Charity” and now being administered and managed in accordance with a Scheme approved of the High Court of Justice (Chancery Division) on May 1897.
In consequence of the Countryside and Rights of Way Act 2000 the Sudbury Common Lands are now open to the general public for quiet recreation. In response to the Land Registration Act 2002 – requiring that all land and property be registered to gain better protection, I have taken preliminary actions.
- During 2005 I made various enquiries including to the Archivist of the Freemen of England. I also advised senior members of the Sudbury Freemen’s Society that we should record our interests by registration.
- The Commons Bill and subsequent Commons Act 2006 introduced new potential dangers to the Freemen’s rights in the reforms that were being proposed. The Bill called for the updating of all commons registers held by County Authorities.
- In order to safeguard our existing registrations I wrote to the Registrar at Suffolk County Council (11 Aug ’07) requesting confirmation that the entries meet the requirements under the new Act. Prompted by my telephone enquiry, on 16 August the Council replied ‘the issue was under consideration’. By letter of 25 September, the Senior Legal Officer of Suffolk County Council stated “no need to re-register rights – they are “safe” and will not be affected in any way by the Commons Act 2006”.
- On 14 August 2007 I wrote to the Land Registry at Hull, who are responsible for the registration of lands and property in Suffolk. I requested a simple entry advising land ownership ‘of the Freemen of Sudbury and of their rights, protected by the Trustees of the Sudbury Common Lands Charity’. This was accompanied by various documents and detailed maps. Initially, having been advised that no previous entries had been made on the index map, I phoned the Registrar at Hull who informed me that in such lands as these, freehold ownership is considered to be with the Charity Commission!
- On 17 September 2007 at a Committee meeting of the Sudbury Freemen’s Society I gave a talk on the subject of registration and proposed that I pursue some form of protection. This was agreed.
- On 26 September 2007 I submitted all documents to register a profit à prendre (an interest in the Sudbury Common Lands) by the corporate body of Sudbury Freemen.
- The Land Registry rejected (1 Oct.’07) any benefit of customary right as ‘not capable of being registered’. This being because the rights are rights in common and that rights of common cannot be registered under the Land registration Act 2002. See LR Practice Guide 16 section 5.
Another issue currently outstanding (for the last 10 years) is the transfer of rights previously held by the Freemen over Harp Close Meadow sold to the NHS, to new grazing land purchased by the Trustees. Traditionally the former rights should have been transferred but the Trustees have delayed any such action. It appears that mistrust lies beneath the surface of any negotiation between the Freemen and the Trustees and some personal intervention may be necessary. I have suggested to the Freemen that if the Trustees would accept our traditional rights over the ‘new land’ namely Wardman Meadows of 40 acres, then the Freemen might consider an agreement not to actually exercise their rights specifically over that land for the foreseeable future. This really is a matter of non-payment for that piece of grazing but importantly it would provide the necessary connection of the land with the Freemen. The new land (currently nature reserve) can remain ‘unregistered’ as common land and therefore not be subject to access (under the CRoW Act) by the general public.
Detailed Files held by AS: 1. Sudbury Common Lands Register. 2. Registration of Sudbury (Freemen’s) Common Lands. 3. Freemen’s Rights over Sudbury Common Lands.
Alan Shelley, BA DLA FRSA, Freeman of Sudbury, 3rd November 2008
2) Registration of the Sudbury Common Lands
The intention and expectation of the Land Registration Act 2002 is that all land in England should be registered. At present this is not compulsory but it is strongly encouraged for the benefit of all land transactions in the future. Registration also includes the ownership of any rights over or into the land.
It is expected that the register will provide a “complete and accurate reflection of the title of the land at any given time”. Better protection is intended for the registered landowners. Regarding boundaries, rules will enable owners to apply for the exact line of a registered boundary to be determined.
Benefits to the management of Sudbury Common Lands: Registration of the land will clearly define the boundaries and determine riparian borders of ditches, streams or river where any doubts exist. This will resolve any potential dispute over encroachments by bordering properties and prevent bridges (even temporarily) being placed to gain access to the Common Lands.
Advantage to the Freemen; by the clarification and endorsement of all grazing and sporting rights, they will gain greater protection than that provided by the records under the 1965 Commons Registration Act and the Commons Act 2006, currently controlled by the County Council.
Registration by the Trustees
The Sudbury Common Lands (held in Trust) have for centuries belonged to the Freemen of Sudbury.
Having carried out a thorough exercise into the processes necessary to register the lands, my conclusions are as follows:
- The lands of the Freemen were transferred by the old Borough Council into the trust of the Charity Commission.
- The Land Registry recognise the Charity Commission (under these circumstances) as the lawful freeholders.
- The Freemen undoubtedly have lawful rights of interest over the lands.
Points of Importance
- The Freemen of Sudbury recognise that the Trustees efficiently protect, manage and look after the lands.
- Past Counsel’s Opinion – has implied that Freemen’s ownership applies to the pasturage. As such, the lands themselves can reasonably be registered by the Trustees, providing reference is made to the Freemen’s rights over the surfaces of the lands.
- As the Freemen of Sudbury have a legal interest over the lands – any threat of removing these should be challenged by legal action.
Ideally the Trustees should register the lands as being in their protection, and include a statement to safeguard the existing rights of the Freemen of Sudbury over the lands.
Also, if the land known as Wardman Meadows is to be registered, the Freemen’s rights over that land (being transferred from the sale of Harp Close Meadow) is applicable. Traditional replacement of land. There is nothing technically preventing the Trustees from allowing the Freemen similar ‘transferred rights’ as those enjoyed within the existing Scheme – section 21 (2) 14 May 1987 –
“The Trustees when letting rights of grazing and sporting rights over land belonging to the Charity shall give preference to applicants for such rights who are Freemen or Widows of Freemen . . .”
The Charity Commission (Hd Office) have indicated that they see no reason to obstruct such an arrangement and will allow such a decision to be made locally by the Trustees.
Alan Shelley, Freeman of Sudbury, 24th February 2009
NB. I have comprehensive documents covering the subject for any discussions with a legal adviser.
3) New Legislation on Town Freedom
The Local Democracy, Economic Development and Construction Act 2009
The current local government Act, simply referred to as the ‘Local democracy Act’ has been causing some confusion among Freemen. It results from law being somewhat cobbled together from several sources (and some misunderstandings by its creators!).
With regard to the freedom of towns, initially a bill, known simply as the Beverley Bill was introduced by the Beverley Pasture Masters (supported by the ‘Freemen of England & Wales’) whose eligible Freemen were dwindling in numbers and they were seeking an improved means of recruitment. The main objective being to gain freedom for women who were otherwise barred on the basis of gender. Introduced in 2002, the Borough Freedom (Family Succession) Bill was caught up in a very busy Government programme. It passed smoothly through the Lords but lingered in the Commons. NB. - At a later period in the proceedings the FEW chose to withdraw their support for this Bill.
The Bill, which had it become an Act of Parliament would have altered all freedom admissions criteria in every town, was withdrawn in the 2006-7 session having been unable to make its way in the Commons. A second draft Beverley Freemen Bill this time called the ‘Borough Freedom (No2) Bill’ was introduced by Lord ‘Ted’ Graham. This was then to be a permissive Bill leading to a local Act altering the rules of admission exclusively applying to the freedom of Beverley.
In 2007 a ‘Freemen Bill’ was introduced by Derek Conway (the MP later unseated for irregular handling of personal expenses). It had a very long title which was shortened to simply become the ‘Borough Freedom Bill’. This Bill was intended to enable the relevant local authority and the existing body of freemen of that place to enable amendments to the right of admission to be made by Order in Council.
Finally an Act namely The Local Democracy, Economic Development and Construction Act 2009 has enacted changes in the law affecting admissions to the freedom of applicable towns.
Section 27 Local freedoms
- The Local Government Act 1972 (c.70) is amended to allow a son or daughter of a freeman to be admitted as a freeman whether born before or after the admission, as a freeman, of his or her freeman parent and wherever he or she was born.
Section 28 Power to amend law relating to local freedoms
Enables a woman to use the title “freewoman”.
To put a civil partner of a person admitted to freedom in the same position as a spouse.
Powers are given to amend royal charters.
Powers are given to amend laws established by custom (affecting rights of admission).
Confusion occurs between these clauses where section 27 clearly allows the admission of women etc., but that section 28 allows powers of amendment that may be interpreted in many ways and must then surely require the authorisation (with specific Town Acts) of the Secretary of State.
Reactions by some Guilds or Freemen’s Associations appear to stem from the distribution of privilege reducing financial income. Traditionalists are unhappy with the emancipation of women and with the introduction of ‘foreign’ names hitherto not associated with the history of that town. With regard to Sudbury – our arrangements, in place, are completely in order and our method of recording the female lines of admissions are completely satisfactory.
Alan Shelley, Freeman of Sudbury, 2009
4) Freemen’s Trusts and the Charity Commissioners
In an attempt to abolish undemocratic privileges and monopoly, the Reform Act and the Municipal Corporations Act intended to abolish freedom outright. However, English law would not prevent the application of individual rights, which were seen as being private property.
In the event, the law recognised the custom and practice of freedom as being lawful but extinguished monopoly and unfair privileges. Lands and property, previously administered by the old borough corporations were either retained under the auspices of the new ruling councils or partly portioned to within the continuing control of the Freemen’s Gilds or Associations.
In many cases land and property previously possessed by the freemen has been sold and the assets invested to form funds held under trust, on behalf of and for the benefit of the freemen. These trusts are referred to in English law as being ‘perpetual trusts’. Such a trust is not considered lawful unless the purpose of the trust is “charitable” and in some way for public benefit.
It follows that freemen’s pasture rights, property rental or income from investments are treated as ‘perpetual trusts’ regarded as charitable and accordingly subject to the authority of the Charity Commissioners.
The Charities Act 2006 and the Freemen
Freemen’s charities operation and distribution of benefit: For ‘Public Benefit’.
“Those who benefit from the charity must not be defined by a personal connection such as a family relationship or common employer” (p26 of Consultation Paper)
The Charities Act 2006 – Aims to
- Enable charities to administer themselves more efficiently and be more effective
- Improve the regulation of charity fundraising and reduce regulation on the sector, especially for smaller charities
- To provide a clear definition of charity with an emphasis on public benefit
- To modernise the Charity Commission’s functions and powers as regulator, increase its accountability and preserve its independence from ministers.
The Act allows easier rule changes and for decision-making. There are more powers to change property, to spend capital and to pay trustees for services or goods. Many of the aforesaid no longer require the Commission’s permission.
NOTE: The meaning of Charity and of Charitable purposes – in case law has been reasoned by analogy previously to the new Act – interpretation of the “Statute of Elizabeth” (Charitable Uses Act 1601). This has now been put on a statutory basis. Traditionally the law of charities is part of the law of trusts.
The Charities Act 1993 s97 states ‘charity trustees’ are persons having the general control and management of the charity… ‘trusts’ in relation to charity means the provisions establishing a charity and regulating its purpose and administration whether those provisions take effect as a trust or not.
Charity - To be recognised as a charity – the trust must have purposes which fall within the definition of charity. The Charities Act 2006 states in 1 (1) ‘charity’ means an institution which;
a) is established for charitable purposes only
b) falls to be subject to the control of the High Court in the exercise of its jurisdiction with respect to charities.
2 (2) Charitable Purpose (under the 2006 Act)
a) the prevention or relief of poverty
b) the advancement of education
c) the advancement of religion
d) the advancement of health or saving lives
e) the advancement of citizenship or community development
f) the advancement of the arts, culture, heritage or science
g) the advancement of amateur sport
h) the advancement of human rights, conflict resolution or the promotion of religious or racial harmony
i) the advancement of environmental protection or improvement
j) the relief of those in need by reasons of youth, age, ill-health, disability, financial hardship or disadvantage
k) the advancement of animal welfare
l) the promotion of the efficiency of the armed forces of the Crown or the efficiency of the police, fire, rescue, or ambulance services
m) any other purposes within subsection (4).
Advantages of Charitable Status
Motive of the donor: Reasons for donation are irrelevant to the charitable status of the gift.
Charities and the Human Rights Act 1998: The Act makes it unlawful for ‘public authorities including private bodies that carry out public functions’ to act in a manner incompatible with European Convention on Human Rights. Charities are not ‘public bodies’.
The purpose of trusts must be stated with certainty. This rule does not apply to charities.
Beneficiary principle: The Attorney-General, representing the Crown, appears on behalf of the objects or ‘beneficiaries’ of charities.
Perpetuity: Perpetual trusts require a limitation expressly stated in the gift. Charities are not bound by this rule and may last forever. Historic charities, where it is never possible to release the capital from the fund. Charities, are though, bound by the rule against perpetuities proper – a gift must vest within the perpetuity period.
Taxation and related advantage: Income Tax – Charities are not liable on any trading profits they make – provided they are spent exclusively on the purposes of the charity.
Requirement of Public Benefit
Donations are given tax relief. Inheritance Tax payments are not liable. Capital Gains Tax is not liable on charitable purposes. Rates are entitled to an 80% reduction in non-domestic rates on premises. Religious buildings are usually exempt. Some VAT relief’s apply on certain goods and on income from fund-raising events. The requirement of public benefit is that gifts must be for the benefit of the public.
The 2006 Act s2 (1) (b) states that to be charitable, a purpose must be for the public benefit. (It does not provide a definition). Charities must in general be for the enhancement of the wider society.
Alan Shelley, Freeman of Sudbury, 2009
5) The Status of the Freemen in England and Wales
Freemen are justly proud of their ancestral inheritance and connection with their hometowns. From time immemorial the freemen had been responsible for the governance and regulation of the old and ancient towns. Advantages that came from the exclusive position of being a freeman was seen by less fortunate ‘non-freemen’ as undemocratic privilege and in some restrictive practices, as corrupt. The monopoly of control by some corporations (of Freemen) led to their reference as “Rotten Boroughs”. Investigations resulted in the Great Reform Act of 1832 and subsequent Municipal Corporations Act of 1835.
In an attempt to remove all and any undemocratic monopoly, the position held by the freemen was changed in as much that they no longer had sole control over government or regulation. An important advantage held by freemen was their access to designated pasture (freemen’s common lands). Rights were held individually (personally) by freemen, over lands, of income from property and investments and were determined in English law to be privately owned by the freemen. In many towns it was left to the Guilds or corporate bodies of the Freemen to argue their ownership. This resulted in some cases where new councils, created under the 1835 Act, transferred freemen’s property rights into the administration of the newly formed borough councils. In many cases Freemen and their guilds were abolished altogether.
The report from the Select Committee on Freemen of Cities and Boroughs, 1840 listed 35 boroughs where no freemen existed, 97 where freemen had no possessions or property and 46 where they enjoyed property and privileges of various descriptions. (Harry Ward 1975)
While freemen clearly have legitimate ‘rights’ they are no longer entitled to profit from them. This became absolutely clear in the landmark verdict of ‘Peggs v Lamb’ re the Huntingdon Freemen in 1993 who were advised that any payments distributed from freemen’s funds must be seen to provide public benefit.
During the intervening years before the present day, legislation has restricted the wealth of Freemen’s bodies. Most if not all (freemen’s) funds are seen today as held under ‘perpetual trust’ and as such, the Charity Commissioners regard them as charitable and under present law they must benefit a wider public than the individual freemen! In the past, the vast majority of freemen, by custom had been male. A new law, under the briefly named Local Democracy Act 2009, dictates that women should be given equal access to freedom and for these reasons any distribution of income from freemen’s funds will be further reduced.
The Charities Act 2006, in reiterating the need for freemen’s charitable funds to be for ‘public benefit’ have severely restricted the uses of any remaining wealth previously held by the freemen. It would be wrong to believe that this should in any way erode the value of being a proud freeman anciently connected with a town. The honourable attachment to their perpetual institution and the connection with a body, of common origins, representing ‘your town’ is uniquely exclusive to the freeman of today.
A feature of the Freedom is that of national patriotism. Guilds and associations of freemen can be seen in symbolic regalia attending their ancient cities and towns. The presence of the Freemen adds colour and dignity to civic events. Service and duty remain important in our struggle for survival. ‘The Freedom should always be a dynamic force, not just preserving tradition but looking outwards as well’. (Jim Evans, Berwick, 2007)
Alan Shelley, Freeman of Sudbury, 2009
6) The Function of the Freeman Today
How does the freeman fit within civic society, in today’s changing cultural fabric?
The freeman is a steward of heritage and in this reforming modern society, he or she may need to be more attentive to keep the tradition alive.
Nearly forty years ago his grace the Duke of Westminster, in the preface to Harry Ward’s book, said of the freemen in fifty eight ancient towns – “Freemen everywhere must get to know each other better and co-operate in a number of ways”. He was warning against changes in legislation and calling upon the freemen to take a greater part in the towns and cities of which they are free.
Numbers of freemen had been diminishing before the influx of ladies under the action of the recent Local Democracy Act. However, the freemen are clearly an aging society and an initiative may be required to attract younger generations.
Undoubtedly, admission is a proud and enjoyable event, but beyond that memorable occasion new freemen may require some encouragement to retain their interest and involvement.
To prevent the freedom, in many towns, from gradually dwindling away, it will be necessary to promote the freemen’s image and to enhance the enjoyment of belonging to this unique society.
· Freemen have pride in their exclusive heritage and at suitable events they can present mobile exhibits of historical artifacts – representing their connections with the old Borough Corporation.
· Freemen can gain enjoyment from service to their town.
· Most freemen’s guilds or associations are involved with local charities (often with ancient origins) and this can be publicised in a reasonable manner.
· Freemen, in ceremonial robes, at civic occasions, are encouraged to accompany their mayor as mace bearers. At civic events the freemen, or at least their executive suitably robed, may follow a procession of town councillors, thereby indicating their historical links with the governance of the town.
· Freemen should be apparent at the town’s annual civic service, at the mayor making and other similar events.
· Where freemen have connections with town lands or property, they should ensure that they are noticeably in attendance at any event associated with that property.
· Camaraderie among the freemen and with their town associates can be much improved by common attendance at an annual civic supper hosted by the freemen.
· Fraternal links are enhanced by hosting (and visiting) occasional events involving the freemen of other towns.
For the tradition of freedom to survive beyond the next decade, the younger generation must be persuaded to take up their freedom. This will require active encouragement with promotional techniques. Heritage and traditions are in general continuously under threat from those who wish to reform society. Various actions under the past socialist government may have eroded some customs. The new Coalition, driven by both policy and a need for cuts, has promoted changes that may dilute some of the protection we currently enjoy. Problems may arise from the reduction of building regulations, lowering the controls of the Forestry Commission, the limiting of Charities and the disbanding of the Common Lands Commissioners.
We must look to our laurels!
Alan Shelley, Officer Without Portfolio, January 2011
7) An Opinion on Freemen’s Property Rights
The rights held, for many centuries by freemen over land, may be diminished through a lack of legal protection. Rights over land are normally associated with ‘common’ land. Such lands have been protected by custom and tradition and were subsequently governed by statutory regulations under the Commons Registration Act 1965.
Typically, rights are categorized by their association with particular pieces of land:
· Rights, where ownership of a property abounding a forest or common is regarded as a right ‘appended’ to a specific area of ground. Normally originating as a manorial privilege attached to a grant of arable land.
· Rights can be regarded as ‘appurtenant’, where it is the right of one person to turn out a beast on the land of another.
· Both appended rights and rights appurtenant are normally attached to a farm or other land held by the right-holder (commoner).
· In the past, the measurement of grazing rights would depend largely on the rules of levancy and couvancy. This would only allow that many beasts that could be sustained over winter on the commoner’s own land.
· Rights of common held in gross (held personally) are rights held by a person without land, this being the case with most freemen, who are no longer holding their own land. A right in gross is property that, in law, is capable of being bought and sold.
Freemen, no longer the proprietors of their lands, now held under charitable ‘Trusts’, are holding personal rights that are not approved of in today’s ‘democratic’ society. Academics, Defra and local politicians have voiced disapproval of such rights when they have been discussed.
Following the 1958 Royal Commission on Common Land, the 1965 Act was intended to protect the customs of common lands. In 1983 a Common Lands Forum was set up to formulate future commons legislation. Recommendations were made to sever the leasing of rights and to abolish existing rights held in gross.
The Commons Act 2006 was intended to up-date the regulations of the Law of Property Act 1925 and to modernise common land practices. The new Act has ‘repealed’ the 1965 Act outright. At present, the Land Registry, acting upon LRA 2002, will not reregister rights previously recorded under the CRA 1965. We are advised that common land with rights will (for the time being) continue to be protected within the old Registers.
I am doubtful that the system will continue to regard the entries under CRA 1965 as legal. Unlike independent registrations made by the Land Registry (over common land and rights) which are regarded as entirely legal and safeguarded. The commoning rights associated with farm buildings are likely (under the CRA 1965 Registers) to remain well protected. Rights held ‘in gross’ by many individuals may fluctuate (remaining volatile) are considered to have less substance worthy of protection. It is likely that personal rights, the likes of which are held by most freemen are very likely to be repealed in the near future (unless they can be protected under LRA 2002).
This is a personal opinion having attended many meetings and gauging the perceived views of many. Commoners with rights appended to land are regarded as custodians (to be supported). The holders ‘in gross’ are seen as merely income seekers.
Alan Shelley, Officer Without Portfolio, 15th February 2011
8) Tenuous Times for Freemen’s Lands
When the reforms took place following the Municipal Corporations Act of 1835, the freemen lost most of their former traditional powers.
Fortunately, many associations of freemen in towns and cities of England and Wales were able to retain properties, including pastoral land to graze their animals.
Many of these properties had been subject to Town Acts, approved by Parliament and run by Trustees. As such, they are regarded as perpetual charities providing certain benefits for the Town and for the Freemen.
In the cases of land, these ‘Town Acts’ (from the early 19th century) usually involved ‘inclosure’ extinguishing previously held rights over arable or pasture that hindered the development of housing and the general expansion of the town.
Specific areas of pasture (often subject to flooding) were retained for the exclusive use of the freemen/burgesses of the Town.
In effect, the land came under the ownership of the mayor representing the Town Council and the pasturage rights were with the freemen. “An exclusive right of pasturage effectively carries possession of the land”. (Charles Sparrow Q.C.)
Freemen at Huntingdon, in 1993, were condemned by a High Court judgment for personally receiving excessive benefit from large sums of income, distributed exclusively among a relatively small number of freemen.
This activity, by the freemen, was not consistent with the proper application of charitable funds and the law was changed to restrict such unreasonable practices.
In 1958, a Royal Commission was set up to evaluate all common lands and greens. Most of freemen’s grazing lands fell into the category of town commons and were subject to registration under the subsequent Commons Registration Act 1965.
The outcome, in many cases, is that lands previously subject of Town Acts also became regulated by the requirements of the CRA 1965.
A ‘Common Lands Forum’ set up in 1983, criticized among other things, the gross (personal) rights, held by most freemen attaching to town lands, as privileged undemocratic and burdensome. Pressure was put, that all commons should be freely available for recreation by the general public.
The eventual outcome was the Countryside and Rights of Way Act 2000 which put many of the Forum’s wishes into action. Other items were to be subject to an update of the Commons Act.
A new Commons Act 2006 repealed the CRA 1965 although much of its basis remains, including the application of the old registers, which merely form a record, correct or incorrect, of the entries made circa 1970. The new Act also includes further regulations to secure the land from development.
When the Land Registration Act 2002 came into operation, it had been expected to strengthen and safeguard the existing registration of freemen’s rights and to allow registration of rights omitted from the previous period of registration under the CRA 1965. However, this has not proved to be possible.
Two cases, currently being assessed in court, could change the freemen’s perspective over the future safety of their property.
At Tewkesbury, where the town common has come under threat by an American property developer who has applied to deregister the land. If this proves possible, then it will set a national precedent that may cause irreparable harm in many other places. The other case, being judged in court, involves an action at Oxford by Chiltern Railways who have ignored the rights of the Freemen over the Port Meadow. The legal representatives of the railway have refused to recognize the freemen’s beneficial ownership and insist that ownership is entirely with Oxford City Council.
If we look closely, firstly at the situation at Tewkesbury Common (The Severn Ham) we may note it was subject of an 1808 Parliamentary Act of Inclosure and was registered as common under CRA 1965. Freemen burgesses of Tewkesbury, living within the burgages fronting the three main streets, were entitled to pasture their animals on the common. NB these rights are therefore registered as rights in gross (personal rights). Freemen, as a body, no longer exist at Tewkesbury, but the heirs of the commoners appear to continue to claim their rights and receive a divi of the grazing sold in lieu.
At Oxford, the common (Port Meadow) was held by the burgesses (freemen) in 1086 and it was then identified as ‘Portmaneit’ (burgess island).
The pasture rights of Oxford men were attached to membership of the freemen body and not to the holdings in the Town. Control of Port Meadow remained with the City Council, as representative of the freemen, until the Municipal Corporations Act, 1835, when the new corporation could no longer claim to represent the freemen, whose rights over Port Meadow were nevertheless preserved. Supervision of the common meadow is the responsibility of the Sheriff who is appointed as conservator. NB He may not necessarily be a freeman.
The Freemen of Oxford have been disappointed that they were not consulted when the City Council apparently agreed that Chiltern Railways could access and possibly develop part of their common meadow. However, in consolation, some satisfaction has been arrived at by an action from the Sheriff who is to include a sentence in the City Council’s constitution (for full council meetings) to say:
“Matters relating to ownership and management of Port Meadow, including access, works, agricultural and public activities will be subject to consultation (and agreement) with the Freemen of Oxford and the Wolvercote Commoners, having regard to their respective rights on the Meadow”.
The results of these two important court cases may have a defining affect on the future of freemen’s rights over their ancient grazing lands.
Alan Shelley, Officer Without Portfolio, 4th March 2011
Footnote: It should be clearly recognized that the law of custom and practice may be repealed (or extinguished) and superseded by statutory law and regulation.
9) How Can the Freemen Secure their Common Rights
Voluntary Registration under the Land Registration Act 2002 (LRA 2002)
Freemen’s guilds or associations with customary rights over grazing lands may have previously recorded their rights under the Commons Registration Act 1965. This form of registration could become vulnerable in the future. To ensure that their property is adequately (and legally) secured, it seems advisable that they apply to register with H.M Land Registry, under the LRA 2002.
Applications made previously by freemen, specifically to register their rights, under LRA 2002, have been met with rejection ‘as being incapable’. However, registration may be possible when an inclusive application is made by a proprietor.
An arrangement for applications, under LRA 2002 to encourage wider registration, provides for ‘voluntary registration’. Freemen should take advantage of this opportunity by requesting the proprietor’s assistance to have the land and rights registered at one time and together. An approach, in a friendly manner, could be made to the proprietor of the lands, be that the town/city council or the trustees of a perpetual charity, requesting cooperation in the registration.
Why Register? (under LRA 2002)
The Title of the land and any interests in that land is then ‘guaranteed by the state’. Should any mistakes occur in the register and an owner suffer loss, then compensation can be sought.
Registered title provides legal evidence including any matters relating to the land and its ownership that are easily identified. Restrictions or Cautions can be applied to the Register to prevent actions occurring without prevention or adequate warning.
Voluntary Application for First Registration
S.3 of LRA 2002 applies to any unregistered legal estate. This will include the freehold and any rights applicable. Applications are to be made via form FR1.
Registration of substantial holdings of unregistered land can be conveniently dealt with as an entire holding. The applicant (under S.3 (2) must be a proprietor of a legal estate and be vested in that property. Sufficient details of the extent of the land are necessary for registration on the O.S. map.
A satisfactory plan of the land to be registered is accompanied by the nature and date of the deed containing the plan. An ‘ad hoc plan’ is acceptable where the above is unavailable. This must be prepared to a suitable scale, preferably based upon the O.S. map and accompanied by an approximate statement. Easements and other rights are normally to be included with the title.
The land may be typically described as agricultural, subject to flooding and valued at say £40 per acre. Charges for voluntary applications are discounted, to encourage registration. Ensure that the title includes the ‘burden of rights’ attaching to the land.
Alan Shelley, Officer Without Portfolio, 10th March 2011
Footnote: Voluntary registration has the potential to safeguard, but as it is an encouragement to register title of land, the Land Registry will not guarantee registration of a burden of rights. (Sometimes it is done and sometimes not!) It is to be tested.
10) Interference with Freemen’s Inherited Rights over Land
Recent actions by Chiltern Railways, regarding access onto Port Meadow, Oxford and by ADM Mills, to extinguish ancient rights over land at Tewkesbury, have done much to exercise my mind.
As we move through the twenty-first century, we are well aware of the scarcity and value of land. Ever increasing pressures for housing, commercial services and recreation are creating a constant demand for land by developers.
Freemen’s lands, often subject to flood conditions are nevertheless in such dominant locations and close by the urban conurbations that they are greatly desirable. This puts them under a constant threat by local politicians’. Councillors are led to believe that they are ‘owners of such land and this is simply not so.
These ‘town lands’ have been preserved for centuries due to the ancient tradition of inheritance. This factor must be uppermost when contesting any threat to their existence. A Freeman inherits their rights over specific lands in exactly the same way that the son of an aristocratic lord inherits a title and property from his father. This British legal tradition should not be violated by those who would wish to remove a freeman’s rights.
When and where Freemen’s inherited rights are at risk, particularly from local bills or actions, how should the Freemen respond to such challenges?
Any proposition that may ignore or attempt to extinguish the inherited rights of Freemen should be rejected on the grounds of illegality. Surely we can employ our own ‘Counsel’s Opinion’, given to us on various occasions by Charles Sparrow QC in-order to combat such an eventuality.
We must bear in mind his initial advice, that, Freemen must be quick and without prevarication in presenting their case, particularly with regard to a local bill. “At the Bar of Parliament, it is quite fatal for Freemen to be shown to have been silent and without coherent action or policy”. (Sparrow 1987)
Freemen’s lands are so called for the rights that are held over them. Grazing rights carry with them the legal ‘possession’ of the land. The Freemen’s entitlement to pasture is a right of exclusive pasturage. This means, in law that nobody else can claim to share, or to interfere with it. The result therefore, is that the exclusive right of pasturage amounts to effective ownership of the land. “And the law recognises that practical result”. (Sparrow)
Freemen’s lands regarded as being legally ‘vested in a local Council’ are simply operating under a paper title. The Council can have no effective rights in the land and therefore is no more than a Trustee. “The rights of Freemen belong to individuals, their rights are private property. It is a fundamental principle of English constitutional law that there can be no compulsory acquisition of private property, without proper compensation. Any arbitrary confiscation would be improper”. (Sparrow QC 1989)
When it comes to a Freemen’s ‘entitlement’ one must remember that the entitlement has yet to pass to Freemen yet unborn. The rights of such freemen have to be protected. Therefore, ownership of Freemen’s lands does not permit the power of sale and such lands must be retained.
Alan Shelley, Officer Without Portfolio, 18th March 2011
Footnote: Freemen’s grazing rights cannot legally be sold outright but may be let temporarily on an annual basis. Income from Freemen’s lands must also be seen to conform to the requirements of the Charities Act.
11) The Purpose of the Freemen of England and Wales (F.E.W.)
The Association is an overarching national body, formed in 1966, to represent the guilds and societies of freemen in towns and cities throughout England and Wales.
It is a non political organisation of likeminded men and women who, by inheritance, apprenticeship, purchase, or by honour conferred, enjoy participating in their civic heritage.
By affiliation of the various guilds and societies, the Association provides greater voice and purpose. Each town or city may have their own unique customary traditions and freemen are encouraged, by the Association, to participate in the events of each other towns to advance their knowledge and fraternal enjoyment.
It is a democratic association in that its leadership does not seek to dictate or to direct its members, but to offer guidance and support when and where it may be required.
Political matters affecting the Freedom, particularly regarding changes in legislation, are relayed via the F.E.W. Journal and are debated at Court Meetings.
Constitutionally, the objects of the organisation are, to advance public education in, and promote research into, the history and legal customs of the ancient towns of England and Wales and of the legal institution of the Freedom. In this way the Association can be seen to be a charitable institution.
Executive officers of the Association are elected by the members. Wardens are appointed to cover all areas of England and Wales, who provide an interface between the various guilds and the Association. There are ceremonial courts, emulating those of the past, where the freemen’s affairs are debated and voted upon. At these formal events, the guild members are attired in the robed regalia of their town and regions.
This is a very brief overview of the purpose of the Association and of course, more detailed information is to be found within the current ‘Constitution’ and within Harry Ward’s book ‘Freemen in England’ published privately in 1975.
Alan Shelley, Officer Without Portfolio, March 2011
12) Erosion of Freemen’s Rights over their Own Lands
The Freemen’s hold over their lands may gradually be losing its grip!
Freemen exclusively held pasture lands, in the close vicinity of their towns, since time immemorial. The Reform Acts of the 1830’s attempted to abolish freemen’s inherited rights over their lands, held in common. Parliament concluded (in English constitutional law) that these rights were personal property and incapable of violation.
The Freemen’s dominant rights are over the grazing of pasture lands. As such they are deemed, by this activity, to be ‘in possession’ of the land.
Over the years and in most instances today, freemen’s lands have become ‘vested’ into the management of a local authority or into the trustees of a perpetual charity.
From the 1830’s and right through the turbulence of the Local Government Act, 1972, the Freemen’s Lands continued being managed ‘privately’ by the combined agreement of proprietor and freemen.
In the 1960’s, following the actions of a Royal Commission into ‘Common Lands’ (set up in 1958) the Freemen were pressed to register their lands and rights under the Commons Registration Act, 1965. This was a huge dilemma for Freemen’s associations, who, with little money to afford quality lawyers, submitted to the requirements of the Registration Act.
Freemen’s lands, primarily private property, ‘gated’ against the public, but with ‘permitted’ footpaths, were becoming seen simply as ‘commons’. The Common Lands Forum set up in 1983, sought to publicise all commons and that they should be for the enjoyment of the general public. This culminated in the Countryside and Rights of Way Act, 2000, which gives the general public free access to registered common land.
In the mean times, chairmen of commons committees have been assuming ‘ownership’ of freemen’s lands, now registered as ‘commons’ under the 1965 Registration Act. They no longer recognise the significant difference in ‘ownership’ of Freemen’s Lands.
The vexed question of, ‘who owns’ the Freemen’s Lands, requires a justified decision, at law, by a Chancery Judge. Freemen (burgesses) rights stem from inherited property rights, held in gross. There are commoners elsewhere, with similar inherited burgess rights (held in gross) who, although are no longer practising freemen, have inherited their rights from former arrangements.
Recently, it has been noticeable how lawyers are passing off the Freemen’s connections with their lands, as merely a burden on the real ownership of registered lands. For the purposes of simplicity, HM Land Registrars and land conveyance lawyers appear to expect lands, held by trustees or by local authorities to be qualified as in freehold ownership. This confuses the true and just ‘possession’ of Freemen’s land and requires, in my opinion, proper analysis by an especially knowledgeable judge.
Alan Shelley, Officer Without Portfolio, March 2011
Footnote: Coincidently, lands registered under the Commons Registration Act, 1965, have in some cases benefited by their special protective ability to repel undesirable compulsory developments.
13) Freemen’s Lands Tribunal
The fraught question of ‘ownership’ of Freemen’s Land manifests itself in several ways. Legislation has recognised, in most cases, the local authority or board of trustees in whom the land has been vested, as the ‘owner’. In simple terms, the manager became the proprietor.
This has applied where Freemen’s lands were recorded under the Commons Registration Act, 1965, amended by the Commons Act, 2006. The Land Registration Act, 2002, encouraged land owners to ensure greater protection by registering with H.M. Land Registry.
Proprietors, in charge of Freemen’s lands, have, by their singular registration as owners, in several instances, omitted to include any reference to the ‘rightful users’ of these lands. There appears to be no straight forward machinery to adjust these anomalies. Registrars resist recording the Freemen’s lawfully inherited rights, as there is no requirement to do so and they, not wishing to include what they regard as a ‘burden’ on the titled land.
Freemen’s land, I believe, should receive special attention (to seek determination) particularly with regard to its ownership and relationship with the vested Trustee. It would be unjust if vested authorities can simply obtain full title to land in this way.
Shrewsbury “Quarry” and Durham “Sands” appear to have passed, by their L.A’s registration, into the full ‘freehold’ title of the local authorities and at present there has been no simple means to repeal, change or correct such a registration.
Any attempt to correct these situations will require testing within the ‘Lands Tribunal’. This can be an extremely expensive operation and carries with it a huge risk. Opponents may include the legislators themselves who would no doubt favour local authorities or charities as being the proprietors with full jurisdiction over the questionable lands.
The case of the Huntingdon Freemen (Peggs v Lamb) 1993, has done much damage and may well influence (by precedent) a judge’s decision. Preparation of a suitable ‘statement’ would require the close attention of an understanding and highly qualified Chancery Barrister/QC.
To contest a local authority’s registration would initially require a challenge to the entry on the Land Register. This is made to the Lands Tribunal. If the ‘statement’ is substantial, it is possible, although unlikely, that the Council (or Trustees) would withdraw their entry. In Court, the Tribunal would arbitrate. The ‘ownership’ of the lands may be proved independently of rights of the pasture (overriding interest) which can also be determined.
Alan Shelley, Officer Without Portfolio, 4th April 2011
The Lands Tribunal has recently been renamed ‘The Upper Tribunal’ (Lands Chamber). It is an independent and specialist judicial body that hears cases and appeals concerning land. Offices and permanent courtrooms are in London. Hearings can be especially arranged (more expensively) in courtrooms elsewhere in England and Wales.
Alternative dispute resolution (ADR) employs ways of resolving or settling disputes outside the court or tribunal process. ADR includes mediation, early neutral evaluation and ombudsman schemes.
NB. Claims should not be seen as a mercenary venture but simply as a correction of rightful ownership.
14) Defining Freemen’s Rights over Lands
Statutory Right of Sole Vesture
Recent High Court declarations, concerning rights over land at Tewkesbury, may provide some useful support in future dealings with Freemen’s land. Key factors involve custom, inclosure, town Acts and the amalgam of expressions applied to commons, including right in common, of common, commonable land, possession/ownership and the registrations under the Commons Registration Act, 1965.
An action for development at Tewkesbury threatened to extinguish grazing rights over common land and if successful would have also removed public access. The complication of changing legislation and the application of English Common Law causes even the most experienced Chancery lawyers some difficulty.
To understand the significance of these events one must begin with the background that provided the rights and the form that they appear to take today. In medieval time’s, villages, towns and cities operated similarly under the governance of lords of the manor. The countryside surrounded and reached into these settlements, where agriculture had a major influence on society. The manorial open field system was such that livestock could be seen freely roaming the grass verges, wastelands and over the aftermath of previously harvested fields (as well as designated pastures and meadows).
Customary and prescriptive rights, over lands, were acquired by the (free) citizens in return for scot and lot (duties and taxes) and although traditions varied slightly in different places they had similar characteristics. As the freemen burgesses increasingly accrued customary rights, the monarch or the baronial overlords would issue charters confirming the privileges of the citizens. Freemen’s rights and privileges were jealously protected and these inflexible traditions were preventing the development of the settlements over lands where the customary privileges extended.
At the early part of the nineteenth century Inclosure Acts were privately introduced and passed by Parliament to allow the borough Corporations to close ancient rights that existed over arable and pasture land required for housing and rising industries. The Town Acts set out new rights to compensate for the extinguishment of the customary traditions that had been in operation for preceding centuries. In most cases alternative provisions of land were made available, even in greater quantities than that removed from use. When insufficient alternative land was available, monetary payments were made in compensation. Similarly, the railways requirement for land was accommodated by compensatory land or monetary payments.
Freemen’s Rights, by virtue of the Parliamentary Acts became ‘statutory’ rights and frequently of ‘sole vesture’. According to Judge Lewison in the Tewkesbury case, such rights are not, strictly, ‘rights of common’ as has generally become their recognised status. The Commons Registration Act, 1965, adopted freemen’s rights (simply as common rights, in gross) and by doing so, (possibly) reduced their more powerful ‘beneficial ownership’ status and it maybe, for this reason that the Freemen’s Lands are not differentiated from other ‘commons’ in the eyes of the registration bodies.
Here are some passages, extracted from the 1808, Tewkesbury Inclosure Act that may typify the content of similar ‘Town Acts’ throughout the Country:
“An Act for inclosing Lands in the Borough and Parish of Tewkesbury, in the County of Gloucester, and for vesting the After or Latter Math of a Meadow called Severn Ham, within the said Borough and Parish, in Trustees for certain Purposes.”
“The Burgesses or Freemen of the Borough of Tewkesbury aforesaid, resident within the said Borough for the Time being and the Occupiers for the Time being of certain Houses [burgages] situate within the said Borough, are entitled to a Right of Common for a limited Number [stint] of their own Cattle only, . . . in the said Meadow called Severn Ham from the Twelfth Day of August to the Thirteenth Day of February in every Year, both inclusive.”
Section 24 of the Act provided that:
“ . . . the After or Latter Math of the said Meadow called Severn Ham, shall be, and the same are hereby declared to be, vested in the said Trustees and Their Successors, to be appointed by virtue of this Act, for ever freed and discharged of and from all Right, Title, Interest, Claim and Demand whatsoever, which any Person or Persons could or might have in or to the same, or any Part or Parts thereof, upon such Trusts nevertheless, and to and for such Uses, Intents and Purposes, as are mentioned, expressed or declared of and concerning the same in and by this Act.”
Section 34 appointed Trustees to carry the Act into execution.
Section 46 empowered the Trustees to let the after or latter math annually; to let it in pastures; or to grant 21 year leases of it. However, it precluded them from taking a fine, premium or foregift.
Section 47 imposed restrictions on the use of the Ham.
Section 48 provided that nothing authorized or empowered the landowners of Severn Ham to depasture any horses, cattle or sheep on the Meadow…
“between Hay Harvest and the Day on which the same would have become subject to Common if this Act had not been passed”. Nor were they authorized to cut the grass after 12 July, if it had been eaten off by their stock in the preceding part of the year: “but that the Grass and Herbage to grow upon such Part or Parts of the said Meadow which shall have been so eaten off or grazed as aforesaid, shall, from and after the Twelfth Day of July in every such Year, be vested in the Trustees by this Act appointed.”
Section 49 required the Trustees to divide up the rents between the burgesses and freemen of Tewkesbury who would have been entitled to rights of common but for the passing of the Act.
The Commons Registration (Severn Ham) Under CRA 1965
On 1 March, 1967, Mr Richard Woodfin applied to register a right of common, he described the land over which the right was claimed:
“The Severn Ham, Tewkesbury. That land enclosed by the River Severn, the River Avon to its junction at the Tewkesbury Lock with the Mill Avon, and the Mill Avon to its junction with the River Severn at Lower Lode. The rights are governed by an Act of Parliament 1808, 48 Geo. III and the Act and a large plan is deposited with the county Archivist.”
The right of common is described as ‘entitlement to the aftermath’. The register describes (19 May 1967) the land as Registration CL 21.
“The tract of about 178 acres known as the Severn Ham in the borough of Tewkesbury, Gloucestershire, as marked with a green verge line inside the boundary on sheet S083SE of the register map and distinguished by the number of this register unit.”
The register describes the right of common thus:
“Exclusive right to the Aftermath, that is the right of grazing from 12 August until 13 February in every year. From 12 August to 20 November 200 cattle or 200 horses or 1000 sheep may be grazed. (However, from 10 October to 20 November horses or neat cattle shall not be grazed unless there shall at the same time be stocked or depastured thereon three sheep at least for every acre). From 20 November until 13 February only 1000 sheep may be grazed over the whole of the land comprised in this register unit.”
This entry became final on 1 October 1970.
The Nature of the Rights Created by the 1808 Act
The essence of the right created by the 1808 Act was that it was an exclusive right to the Aftermath. The landowners of the Severn Ham were precluded by the Act from depasturing their own beasts on the land between the end of the hay harvest and the following 13 February. This kind of right is, strictly speaking, known to the common law as a right of sole vesture (sometimes sole herbage or sole pasture). This kind of right is not, strictly, a right of common. A right of common is a right to take something from the land of another, in common with the landowner. If the landowner is excluded from the land, then a right of common is exceeded. (Mr Justice Lewison 9 March 2011)
In the case of Johnson v Barnes (1873) the Court of Exchequer Chamber considered the nature of a right to depasture cattle over Lammas lands in Colchester. The issue was whether the right had been released by release of part of the land over which the right had been exercised. In Court, the argument turned on whether the right was a right of common appurtenant or a right of common in Gross. The case changed on appeal. Kelly CB said “It seems to me manifest that what the Corporation have exercised, from time immemorial, is a right which, though frequently spoken of as a right of common, was, in fact, an exclusive right of pasturage.”
Martin B said “I am clearly of the opinion, looking to the facts of this case, that this was an exclusive right of pasturage to which the Corporation of Colchester was entitled over certain lands during a certain season of the year, though it has been miscalled a right of common, as being exercised by the burgesses in common; but it seems to me that the right pointed to by all the facts as the use and enjoyment is certainly not a right of common in the legal sense of the word, but a right of exclusive pasturage.”
Even judges, eminently learned in matters of ancient law, referred to a right of sole pasturage as a right of common. In the same case Kelly CB went as far as to say that such a right was “frequently spoken of as a right of common”. In Elton’s Treatise on Commons (1868) the author said (p.27)
“ . . . there are other rights of pasture on commonable lands which resemble common of pasture, but are in reality of a different nature, being exercised by persons in whom the whole ownership of the herbage is vested, they being rather tenants in common than commoners.”
With regard to a sole vesture being exercised on ‘commonable lands’. The Inclosure Act, 1845 was intended to apply to all rights which could impede the free cultivation of the soil and that therefore
“ . . . other lands were included in the same list which are not subject to common of pasture, though popularly described as ‘commonable.”
In a Treatise by Sir Robert Hunter (1896) on the Preservation of Open Spaces he said (p.61)
“But there may be rights over a common which, without giving an interest in the soil, exclude the owner of the soil from all enjoyment of some particular product of the common, though for practical purposes they are of that nature.”
When the property legislation of 1925 was enacted, there was a looseness of terminology about commons, rights of commons and commonable lands. A right of sole pasturage was ‘frequently’ spoken of as a right of common; and land over which such a right was exercisable was popularly described as ‘commonable’. It would appear to be the likelihood when applying Sections 193 and 194 of the Property Act. (Justice Lewison March 2011)
Alan Shelley, Officer Without Portfolio, 10th April 2011
(A right of sole vesture includes entitlement to maintain an action for trespass)
Vesting - The gift, initially by the Corporation (made up of Burgesses/Freemen) “must vest in interest but not necessarily in possession.” – for the purposes of perpetuity.
LRA 2002 Seeks to reduce the number of overriding interests in the title of lands. It does this “by reducing the scope of some overriding interests and providing for the eventual abolition of others. CAUTION.
15) Freemen’s Beneficial Rights over Pasture Lands
In 1989 Charles Sparrow QC, in his address to FEW, stated that freemen’s rights are exclusive and private property, and that it is a fundamental principle of English law that there can be no compulsory acquisition of private property without compensation. The value of these rights has been considerable; even so, they have been under constant threat by modernising reforms.
It has been of great importance to freemen, in the face of the 21st century, to safeguard their ownership rights over town pastures. Freemen, typically those at Oxford (recently mentioned) who inherit such rights, can quite rightly expect to be involved in events that may affect their personal property.
From the earliest of times, freemen have exclusively enjoyed the use of local pasture lands. The benefit results from privilege gained and the scot and lot (taxes and duties) performed by their ancestors. Freemen in an agricultural community grazed their cattle and significantly, their horses necessary for business. A town green was something akin to a local car park today. The poorer freemen and those without animals were usually compensated with cash payments distributed annually. Such were the benefits that their exclusivity was the envy of all non freemen.
Maintaining agricultural land, especially when close by the urban conurbations, is expensive and rarely self-sufficient. Town land maintenance costs these days are often supplemented by grants and heritage/lottery type funding. Income from lettings to graziers and from various investments is handled by trustees and usually distributed charitably to local good causes. Traditionally, freemen-pensioners and widows in-need may be issued with support and a nominal sum may then be distributed to each of the freemen on the current roll.
It is important to stress that it is not for personal profit that freemen, in the modern world, value and protect their inherited rights.
We may prove positively that freemen have a statutory right over lands, deducted from both local town acts and from the Municipal Corporations Act 1835. However, the freemen may find difficulty in proving, as positively, a statutory right to income, following the court decision of Peggs v Lamb 1993 [The debacle of the Huntingdon Freemen]. This landmark case appears to have set a precedent, whereby removing any sizeable income that might previously have been expected by freemen from their pasture rights. The ‘charitable’ purposes now required from such income are somewhat contrary to the enactment of the Municipal Corporations Act, 1835.
A freeman’s right, over pasture, is not strictly a ‘right of common’, as is often suggested, but a right ‘in common’ with other freemen. It is inherited individually, in person, and will pass to subsequent generations. For those freemen not subject specifically to the detail of a local Town Act, the statutory right originates in s.2a of the Municipal Corporations Act 1835, to share the whole of the income of the commons [lands] equally between them. Section 2 of the 1835 Act provided that freemen of boroughs had ‘ the same Share and Benefit . . . of Common Lands . . . as he or she by any Statute, Charter, Bye Law, or Custom in force at the Time of passing the Act.’ Section 92c of the Act provided that any surplus on the borough fund ‘shall be applied under the Direction of the Council for the public Benefit of the Inhabitants and Improvement of the Borough.’
In the Huntingdon case, the Court held that the rights of the freemen, to the commons, arose out of a charitable trust and not by reason of s.2 of the 1835 Act. Prior to 1835, the Huntingdon commons were held on a charitable trust, which the 1835 Act did not affect. It was therefore found that the freemen did not have a statutory right to take the whole of the income of the commons equally between them. Determination: A charitable trust for the benefit of freemen could not be simply divided between them as it does not fall within the spirit of charitable uses (of 1601) Cy-près doctrine applies.
The Municipal Corporations Act 1835 came into effect 9 September 1835. Section 1. enacted that: - ‘so much of all Royal and other Charters, Grants, and Letters Patent now in force relating to the several Boroughs named in the Schedules (A) and (B) to this Act annexed, or to the Inhabitants thereof, or to the several Bodies or reputed Bodies Corporate named in the said Schedules, or any of them as are inconsistent with or contrary to the Provisions of this Act shall be and the same are hereby repealed and annulled.’
Huntingdon was referred to in Sch. B. Section 2, provided,
‘And whereas in divers Cities, towns and Boroughs the Common Lands and Public Stock of such Cities, Towns and Boroughs, and the Rents and Profits thereof, have been applied for the particular Benefit of the Citizens, Freemen, and Burgesses of the said Cities, Towns and Boroughs respectively, or certain of them, or of the Widows or Kindred of them, or certain of them, and have not been applied to public Purposes; be it therefore enacted That every Person who now is or hereafter may be an Inhabitant of any Borough and also every Person who has been admitted or who might hereafter have been admitted a Freeman or Burgess of any Borough if this Act had not been passed, or who now is or hereafter may be the Wife or Widow or Son or Daughter of any Freeman or Burgess, or who may have espouses or may hereafter espouse the Daughter or widow of any Freemen or Burgess, or who has been or may hereafter be bound an Apprentice, shall have and enjoy and be entitled to acquire and enjoy the same Share and Benefit of the Lands, Tenements, and Hereditaments, and of Rents and Profits thereof and of the Common Lands and Public stock of any Borough or Body Corporate, and of any Lands, Tenements, and Hereditaments, and any Sum or Sums of Money, Chattels, Securities for Money, or other Personal Estate, of which any Person or Body Corporate may be seised or possessed in whole or in part for any charitable Uses or Trusts, as fully and effectually, and for such Time and in such manner, as he or she by any Statute, Charter, Bye law, or Custom in force at the Time of passing this Act might or could have had, acquired, or enjoyed in case this Act had not been passed . . .’
[In simple terms, any property, rents and profits previously applied for the benefit of the citizens, freemen and burgesses – would continue unaffected by the passing of the Act].
The last of several provisos stated that nothing in the Act –
‘shall be construed to . . . strengthen, confirm, or affect any Claim, Right or Title of any Burgesses or Freemen of any Borough or Body Corporate, or any person, to the Benefit of any such Rights as are herein-before reserved, but the same in every Case may be brought in question, impeached, and set aside in like Manner as if this Act had not been passed.’
Section 3 abolished the ability to acquire the freedom of a borough by gift or purchase. Section 5 required the town clerk to maintain a roll of all those then or thereafter admitted to the freedom. Section 92 provided that any surplus on the borough fund ‘shall be applied, under the Direction of the Council, for the public Benefit of the Inhabitants and Improvement of the Borough.’ Section 94 provided, in effect, that no sale contracted after June 1835 might be carried out except with the consent of the Treasury.
Regarding Huntingdon, in 1898 the borough promoted a private Bill which would have vested the commons in the borough, free of any rights of the freemen, in return for a perpetual annuity. The Bill was defeated. From 1910 the Commissioners, and from 1915 the Revenue, have regarded the Commons and the Lammas rights as being held for a charity [the freemen]. From 1958 there were a series of compulsory purchase orders for roads and housings for London ‘overspill’ and by around 1990 large parts of the Commons were being sold for development. The freemen, who were diminishing in numbers, received impropriate sums, where previously around £20 each was distributed in 1981, it became £1,980 and in 1990 they each received £31,750. By that time only 15 freemen qualified to benefit. As at April 1992, the trustees had an income of £550,000 and capital cash of £3.8m as well as much of the original commons land rights and some 700 acres of agricultural land in which other proceeds of sale were reinvested.
It was not in dispute that both before and after 1835, the qualifying conditions were such as to render the acquisition by the class of qualifying freemen of a profit à prendre by prescription impossible in law. Nor was it disputed that a trust for such a class in perpetuity would be void on that account unless it was a charitable trust or authorised by Statute.
The first issue arises from the claim that an origin may be found in S2 of the 1835 Act. The freemen qualified in their possession of statutory rights of pasturage but could not be deemed to possess the rights to all income. Some rights belonged to the borough. The freemen contended their charitable status. If it was not a charity, then the Charity Commissioners had no right to interfere and the whole of the yield from the fund should go to the freemen. If the fund was deemed a charity, then the Charity Commissioners were entitled to intervene. The rule governing a perpetual trust is that to be ‘charitable’ it must in some way provide public benefit.
Perpetual trusts tie up property and remove it from the reach of the community. To remain as a perpetual trust it must be charitable. The Court, in a dispute in 1882, between a freeman and the Corporation of Colchester, did not consider a freemen’s fund to be simply a perpetual private trust and authorised the continuance of the freemen’s rights as expressed in the 1835 Act. Another important case, in 1886 was a claim, that the freemen of Norwich had since before 1204, exercised rights to pasture over the Town Close. From 1524 to 1699 the right of pasture had been enjoyed by the freemen exclusively. From 1700 to 1883, the land was let and the net rent divided amongst the freemen. The Corporation sought to apply it for public purposes. In these circumstances, the trust was declared a charity. The freemen contended that there was no charity. A Court of Appeal in 1888 found that such a trust is charitable.
Interpretation, by the Courts, concerning income for freemen would now rely upon a well constructed Scheme, indicating sufficient monetary proportions that could be recognised as providing charitable benefit to the local community. Any form of monopoly by the freemen would receive opposition. Even though the 1835 concession has not been fully explored, it seems clear that the Huntingdon case of Peggs v Lamb 1993 will set a precedent to which any subsequent challenge made by freemen will defer.
The circumstances that led to the Huntingdon decision were clearly the result of wrong practice. However, it does not necessarily remove all anticipated benefit from the freemen’s statutory rights. Eminent and most learned judges have been known to apply differing approaches and while I would not wish to proffer any false hopes, it is never entirely certain that all potential challenges would meet with the Huntingdon result.
The statutory right of participation, as dictated by the 1835 Act remains in place today. An alternative interpretation of certain trust funds, bypassing the demands of the Charities Acts, 1960 and 2006 would be extremely difficult to perceive, but not necessarily impossible.
Freemen can remain in the knowledge and enjoyment that they inherit the rights of centuries past and be satisfied that their involvement will benefit the local landscape and the charitable support given to their civic community.
In conclusion, it is perfectly clear that Chancery law recognises the freemen’s statutory right, but the beneficial income has been subject to interpretation. The income from a beneficial right has been subject to its monetary value and charitable nature. This issue has not been fully explored, although to do so would prove a very expensive exercise. At a practical level, concerning the freemen’s statutory rights over the land, it appears that Land Registry and conveyance legislation have been able, in many instances, to ignore or denigrate such rights to unacceptable ‘burdens on the title’ to land.
Alan Shelley, Officer Without Portfolio, April 2011
NOTES: Acceptable charity and the Cy-près doctrine. This arose in courts of equity. The doctrine originated in the law of charitable trusts (a form of lawsuit in which a large group of people bring a claim to court). This happens when an original objective of the settler or testator became impossible, impracticable or illegal to perform. The cy-près doctrine allows the court to amend the terms of the charitable trust (as closely as possible to the original intention of the testator or settler) to prevent the trust from failing.
The Freemen of Huntingdon contended that their rights did not arise out of a charitable trust but was a statutory right and therefore the question of applying the income under cy-près scheme did not arise.
NB. The Charity Commission has the statutory power to apply cy-près on behalf of a charity where no trustees remain or the necessary mandate cannot be agreed. It applies to Corporate or unincorporated associations. Cy-près will not be applied where a charity has alternative powers to redirect its fund under its constitution.
16) Freedom Past and Present
From times of yore the freedom had developed by custom and traditions employed in ancient towns and cities throughout the nation. Borough politics governed an independency that, in many ways, insulated communities from the compulsory (national) dictates that we experience today.
It was the monopoly formed by privilege that eventually brought freedom into disrepute and it came to a head in the nineteenth century when the Whig reformists abolished the government of the so called ‘Rotten Boroughs’. The freedom of today results from the modernising effects of the Municipal Corporations Act 1835, the Local Government Act 1972 and the impinging forms of subsequent legislation that diminish ancient rights and traditions.
Freemen’s traditions begin in the early English town that was based upon an agricultural society. The tún was normally a social organisation, composed not of people with divers proprietary rights and economic pursuits, but of households brought into definite and simple relations to each other in regard to rights and duties.
The Anglo Saxon tribes brought with them customs and traditions that included a form of freedom by heritage and a ceremony at adulthood. A town was akin to an oversized village and as with a manorial society, the lord had his demesne and an agricultural economy made up of common fields surrounded the town. Rights and duties were proportional to the size of the townsman’s tenancy and included a proportion of the associated agricultural land.
A burg/burgh or borough was a strategically positioned town with defences that provided sanctuary to its residents. The borough would normally be a trading centre, with liberty to hold markets and fairs. Resident burgesses held their tenancies by scot and lot and in early times they owed duties in return for the security supplied by their lord. These trading centres were referred to as ports (coastal or inland) and the leading citizen burgesses were called portmen. Hence we may see places named portmans croft or port meadow where grazing became exclusively theirs.
In the early period of borough development, fraternal ‘frith’ gilds formed a union of neighbours, pledged to one another for the preservation of peace. Such gilds are known to have existed in Æthelstan’s reign 925-40 and the gigildan is in the laws of Ine c 690. The earliest leaders, among the commoner citizens were the ‘port reeves’. Initially appointed ‘justiciar’ by the lord and later became elected by the townsmen. It is worthy of pointing out the importance of the Portreeve (on a par to Sheriff). It was the Portreeve of London that negotiated with William the Conqueror the independence of the City from the rest of the Country.
After the Norman Conquest came the development of the Gild Merchant and much later the trade and handicraft guilds. The burgesses were becoming wealthy enough to purchase the liberty of the town from their lord (or King in the case of royal boroughs) and to form a (liber burgus) independent self governing corporation. The Charters are the initial landmark in recognising legitimate freedom. Gilds provided the means of communication and their leets governed the towns and controlled regulation of trade and security (including their courts of pleas).
The liber burgus freedom implied collective responsibility and action of the townsmen. Of course the burgesses were required to pay their lord annually for the freedom of their town. The actual assessment (fee farm) of the borough, was called the Firma Burgi. Some boroughs appear to have gained a form of independence even before the Norman Conquest. It is important to understand that the towns, boroughs and cities developed in quite independent ways and were considerably insular in their traditions.
The charters of independence were confirmed by succeeding lords and eventually superseded by local town acts, passed by parliament to allow enclosure of the open fields to make way for the development of roads, housing and industry.
Before the Municipal Corporations Act 1835, the free burgesses of the borough voted for and elected from among their own body, the mayor, aldermen and officers of the corporation. The reforming Act removed the monopoly and introduced the democratic election of council members by the free and unfree members of the local community. While the Act set out to abolish the freedom altogether and to remove all property into the hands of the new elected councils, parliament prevented this course of action. The freemen’s personal rights were preserved and the Freedom was allowed to survive in a reduced form that we inherit today.
Timeline of Legislation affecting Freedom
600 – 1066 Anglo Saxon tribal customs
Charters Royal and by seigniorial Lordship prescriptions
1086 Domesday Survey - Inquest of freemen/burgesses and land ownership
1215 Magna Carta – Freedoms from Feudalism
1285 Statute of Merton – Safeguarding rights over Common Lands
1689 Bill of Rights – Removed the Royal Prerogative
1750 – 1860 Inclosures and Town Acts – Local changes
1835 Municipal Corporations Act – Changing Local Government
1960 Charities Act – (amended 1992) Regulation of Trustees / Perpetual Charities
1965 Commons Registration Act – Registering Freemen’s rights over common lands
1966 Creation of the association of Freemen of England (now FEW)
1972 Local Government Act, amended 1992 and 2000 Acts, Abolished the boroughs
1993 Huntingdon Freemen’s Case (Peggs v Lamb) – Affecting privileged income
2000 CRoW Act – ‘Permitted’ access over freemen’s land now open to general public
2002 Land Registration Act (Repealing Property Act 1925) providing ‘better protection’
2006 Commons Act – Repealing much of CRA 1965, but allowing some new registration
2006 Charities Act – Insisting that freemen’s income is charitable and for local benefit
2008 District reforms – Unitary authorities changing local government traditions
2009 Local Democracy Act – Relaxing regulations over Admissions to Freedom
2011 Localism Bill – Imperils the planning system and changes registration of town greens
Summary of subjects discussed in the recent ‘viewpoint papers’ affecting property and status
Paper 1. ‘Sudbury Common Lands’ typically describes freemen’s lands, managed by trustees and registered under the Commons Registration Act 1965 with the freemen’s rights recorded accordingly. In response to the Land Registration Act and the amendments inferred by the Commons Act 2006 it appeared necessary to safeguard the freemen’s future right holdings. I have recorded the procedures and outcomes for the benefit of hindsight and to indicate the hurdles preventing reregistering under the ‘new’ LRA 2002 which should have provided improved protection in future.
Paper 2. ‘Registration of Sudbury Common Lands’ describes the benefits and the essential need to register (under LRA 2002) newly acquired land purchased by the trustees in replacement of freemen’s land sold, under pressures to the NHS. Resistance by trustees chairman indicates the weaknesses that freemen find themselves today.
Paper 3. ‘New Legislation on Town Freedom’ describes the Local Democracy Act and some of the confusion initially caused. The final Act of 2009 relaxed the requirements for admission and has enabled daughters to be admitted to the freedom. These additional admissions are not only democratically just, but by enlarging the company of freemen, will slow the ever decreasing numbers that threaten the future of the freedom.
Paper 4. ‘Freemen’s Trusts and the Charity Commissioners’ describes the new emphatic position of perpetual funds and that the income from which must fit the ‘public benefit’ criteria. The new Act simplifies the rules and allows greater discretion to the trustees for decision making without referral to the Commissioners for permission.
Paper 5. ‘The Status of the Freemen in England and Wales’ describes the position of the freedom today and how we have moved from a position of advantaged privilege to that of custodians of our unique history. The freemen in England and Wales, men and women of highly principled views and values, proudly represent their towns and cities in both the past and the present.
Paper 6. ‘The Function of the Freeman Today’ describes how the freeman fits within the modern society. This paper encourages the freemen to fraternise as often as possible with other gilds and associations of freemen in other towns. The freeman should not assume superiority over their fellow townsmen but to enjoy the knowledge that they retain a heritage that is becoming more unique as time moves on. The freemen’s future depends more on good dutiful practices as stewards of the civic traditions and to keep themselves in focus at civic events (keeping their eye on the ball).
Paper 7. ‘An Opinion on Freemen’s Property Rights’ describes how freemen’s rights, recorded under the Commons Registration Act 1965, may lack the legal protection they properly require. The Commons Act 2006 repeals the former Act and the new legislators have shown unwillingness to fully support personal rights held in gross. HM Registry do not allow the rights to be reregistered under the Land Registration Act 2002 and we must continue in the hope that our rights are sufficiently protected.
Paper 8. ‘Tenuous Times for Freemen’s Lands’ describes how the actions leading from the Royal Commission on Common Lands caused unreasonable pressures on freemen’s associations to register their lands as commons and their rights as common rights. These registrations have weakened the former position that freemen had in terms of resisting change. This became apparent in two current situations. At Oxford the freemen’s rights were being overlooked in the case of a submission to develop a railway over freemen’s land. A development over land previously belonging to burgesses at Tewkesbury was threatened with deregistration and if such a precedent were set it would put all freemen’s land and rights over property at risk.
Paper 9. ‘How Can the Freemen Secure their Common Rights’ describes a possible avenue to registration under LRA 2002, by voluntary application in association with the proprietor, usually the Town Council, to get the rights included with the land title.
Paper 10. ‘Interference with Freemen’s Inherited Rights over Land’ describes how town lands have been preserved for centuries due to ancient tradition of inheritance. The freemen’s rights can be better protected if sufficient vigilance is applied. The counsel of Charles Sparrow QC should not be ignored if further threats, in the nature of a private local bill, are put forward by a Council wishing to acquire freemen’s land or to extinguish rights.
Paper 11. ‘The Purpose of the Freemen of England and Wales (FEW)’ describes briefly how the Association operates, its purpose, function and constitution. This may provide a brief for others wishing to know more about our organisation.
Paper 12. ‘Erosion of Freemen’s Rights over their Own Lands’ describes the weakness in the position where freemen’s land is vested in a Town Council who have assumed full ownership of that land and believe they can do as they please. Land once private, enclosed and ‘gated’ from the public has become ‘open’ recreational ground. Much of this dilemma may have been due to incorrect pressure and advice at the time of registration under the CRA 1965.
Paper 13. ‘Freemen’s Lands Tribunal’ describes the opportunity and procedure to challenge a registration of land under the LRA 2002, where considered to have been incorrectly applied (to freemen’s property) by a Town Council or other assuming proprietor.
Paper 14. ‘Defining Freemen’s Rights over Lands’ describes the statutory right of sole vesture and how this may provide freemen with a more powerful ‘beneficial’ property ownership than the ‘common rights’ they are normally associated with.
Paper 15. ‘Freemen’s Beneficial Rights over Pasture Lands’ describes in more detail how the Huntingdon Freemen’s case was determined and how this determination does not automatically form an absolute precedent of how income from proven private property is necessarily dispersed.
Issues currently concerning Registration
· Existing registration of Rights under CRA 1965 may not be safe, they are merely a record
· LRA 2002,assumed to provide ‘better protection’, will not permit re-registration of CRA entries
· The Commons Act 2006 repeals the CRA 1965; does this weaken our existing records?
· Freemen’s Rights should receive greater protection than standard ‘rights of common’
· The decision over the Huntingdon Freemen 1993 should not necessarily set a final precedent
· Should Freemen challenge registration by LAs and the regulations of Charity Commissioners
Freemen today have an honourable status; they proudly inherit a unique connection with the town of their forebears. Having given an oath to honour their Queen, Country, Town and the law, they must surely be recognised as a prime example of loyal patriots and custodians of their ancient towns.
We all, in England and Wales, are privileged with certain rights and these are tested in English Common Law. It is recognised that the land was initially ‘owned’ by communities. Our systems of government stem from tribal customs that originated in time immemorial. Regulation was greatly influenced by the operations of land use and the protective security necessary in society.
The politico-economic conditions of the twenty-first century have led us into a self sustaining environment that while providing greater self determination, has lost many of the benefits of communal reliance. The general freedom and liberty that we enjoy today is founded in antiquity and this is entwined in customs of early shared land use. Privileges arose from trading rules and the increasing enclosure of the communal open-field system. Statutory laws have tended to exploit benefits to the few and in many ways to limit the freedom that had existed in earlier times.
Alan Shelley, Officer Without Portfolio, 16th May 2011
FOOTNOTE: The Open Spaces Society (Commons Preservation) have issued a warning that the ‘seemingly harmless-sounding’ Localism Bill, now before Parliament, imperils the planning system on which we have depended for over 60 years to make the voice of conservation and the public interest heard. We will need to be vigilant.
17) Freedom and Privilege
Freedom is a condition and a status, meaning not bound nor constrained but at liberty to operate freely. For us freemen it is a commodity that has carried with it privilege.
The term ‘freeman’ meaning someone, who enjoys particular privileges, is of very ancient origin. In Anglo-Saxon and early medieval times the population of England and Wales consisted of the nobility, freemen and serfs. The country was divided up into estates and manors which were held under the crown by a lord of the manor, or by an abbey or priory, and it was from income from the manors that the nobility and the church derived much of their wealth.
An intrinsic part of the villages and hamlets on a manor were those inhabitants known variously as serfs, bondsmen, villeins, thralls or peasants. Although slavery was prohibited, and the buying of medieval serfs was illegal, if the manor changed hands the serfs went with it as part of the goods and chattels. The burden of serfdom could be benign or tyrannical and varied considerably from manor to manor according to local custom and lord. In principle a serf owned nothing, could do nothing and go nowhere except with the consent of his feudal lord.
Serf-tenant families supported themselves by growing their food and crops on the strips of the ‘common’ fields on the manorial land and by keeping some allowed livestock in return for which they worked the land and provided duties for the lord without wages. In addition the lord was able, by law and custom, to extract taxations in the form of selected serf crops or livestock. At the death of a serf, the lord was entitled to the deceased best animal and a fine was paid by a serf on the marriage of his daughter. Other taxes could be demanded at will. There were some opportunities occasionally for a serf to earn money even working on another manor. Such money, if saved, could buy his freedom, allowing him to rent or buy a few acres of land. Such a ‘free man’ was little different than a tied serf, often remaining within the manor, working the lord’s land as well as his own. As a free man he would have gained some rights and privileges and no longer be the property of the feudal lord.
Protection by Charter
Freedom from servitude could be achieved by running away from the feudal manor, usually to a town or city where the situation was more favourable. In time, some lords realised it would be in their best interest to turn their manors into ‘free’ towns and boroughs. The development of these towns, with fairs, markets and tolls would more than compensate the loss of serf-service and would require less administration. Many town dwellers became ‘free’ but were subjected to taxation for the protection provided by charters.
A runaway serf who made it to a chartered town or city and stayed within its walls for a year and a day could not be recaptured by his lord. His status as a ‘free man’ would much depend upon local custom and charters. In London, where it was comparatively easy to gain this form of personal freedom, it gave no right of protection. By the 14th century, serf origins were strongly discriminated against. It was ruled that no person born outside the City could be bound as an apprentice unless he first swore that he was the son of a free man. A serf remained defined as the child of a man who was a serf at the time of the child’s birth. Children born after the serf became free would be eligible for membership to an apprenticeship and to a guild.
As the serfs everywhere strove for freedom, the manorial system declined. The Black Death severely reduced the workers remaining on the land and in 1350 only half the population of serfs were remaining on the land. By 1600 there were no unfree serfs still working on the manors. Of course, as copyhold tenants of a manor, all workers would have been expected to perform customary duties for their lord as a part of their tenancy, and this in return for the protection given by their lord.
In early times Rome governed and introduced her civilization but never allowed the conquered Britons any share in government apart from local affairs. The Romans built and laid out towns and encouraged their ways of living within them. Those towns which were tribal centres became seats of local government and the natives were encouraged to adopt Roman habits. Trading activities were considerable during those times.
When the Roman legions left Britain the towns were in no condition to take active measures against invaders and only their massive walls prevented their complete destruction. For some considerable time Britain, bereft of central leadership and of trained armies could do little in defence of the invading Anglo-Saxons. The majority of the Roman cities were abandoned.
The Anglo-Saxons built no towns in Britain until long after they had control and were comfortably settled in. In fact it was not before the accession of King Alfred in 871 that Saxon towns and burghs were developed. Reoccupied Roman cities were materially different under the Saxons. The medieval towns which occupied the Roman cities were to some extent military centres and others were essentially trading places. They were no longer centres of administration.
By the time of Athelstan (924-939) town records indicate a new class in the community, the burgess-townsman. In early Anglo-Saxon society the social status was confined within the town’s community, often assessed on a monetary basis. Failure to perform services due (scot and lot) or damage to another person were assessed on his wergild. If someone was engaged in trade it would be a sideline and his position and monetary value alone determined his status in what was an agricultural community.
At the coming of the Vikings (mostly Danes) there were distinct trading towns namely the ports and the vics or wicks. Such places as Norwich, Dunwich, Harwich, Ipswich and Sandwich were of strategic importance and it is of my opinion that this word forms the origination of ‘Viking’. This would have been the Saxon expression for an early merchant adventurer. The Vikings were great traders, although they were also opportunists and likely to take what they could with the least resistance, their brutality is renowned.
Fortified Saxon towns were known as burhs or burghs. These sites were selected by Alfred’s son Edward the Elder and his sister Æthelflæda to a document known as the Burghal Hidege. These became the Borough towns.
In Anglo-Saxon times the traditional method of settling problems of local government was in folk-moots held in Shires and Hundreds. Customs varied considerably in different districts. Under the Normans and the Angevin Kings every effort was made to remove provincialisms. This altered the military importance of many towns such as York, Wallingford and Wareham. It became the King’s peace that promoted trade. Trade was stimulated by the new continental connections. The feudal system introduced additional types of law court.
The creation of many baronial towns brought different methods of control from the old royal towns and included the systematic building of castles, usually sited within the towns. Sheriffs were endowed with great powers. Henry I had to clip their wings and Henry II extended control to itinerant justices. Under Edward II we find central interference with trade shown by the ‘Ordinance of the Staple’ (1313) and control over the wool trade which was greatly extended by Edward III.
The complications of medieval government, central and local, continued to be confusing beyond the Tudor period. From a much earlier law by Edward the Elder, it was required that ‘all buying and selling must take place before a portreeve in a port’. The burh (fort) changed to a port, a trading centre. A reeve as King’s representative changed from burhreeve, military head, to a portreeve.
Within the town the burgess would have a house and for this he paid rent to an owner of the land. The burgesses fell into two groups, those with land and more than one house and those with only their house and dependency on trade. Landowners would have some liability for the repair of the town walls. Land outside the town was partially owned by individual burgesses but the majority belonged to the town as ‘common’ fields.
In the Royal towns the burgess was essentially a free man, only liable for payment for his own tenement, his trade dues and special taxes. Quite early in their history the majority of the Royal towns obtained the right to their own borough court, but this in the first place was presided over by the Portreeve who was representative of the King, usually under the sheriff and not under the town. A town assessment consolidated a payment required by the Crown called the fee farm of the borough (Firma Burgi). This was usually paid through the sheriff. The issue of town charters marked the beginnings of ‘privilege’. Liberties and free customs formed a set of civic by-laws of the town. These varied a good deal in their detail although there was a general uniformity in their effect.
A bailiff, as chief officer was elected yearly and charged with the defence of the town, a steward of learning was appointed to assist and give judgment in court and a town clerk was to keep the writings. Trade was limited to free citizens and to members of the Merchants Gild. There were regulations as to thieves and the control of trades such as bakers and brewers. In general the ‘customs’ of the towns are confined to trade control, the appointment of officials, the setting of taxes, duties as watch and word, repair town walls and paying an amount toward the town fee farm. With regard to the term ‘borough’, there was no legal definition available before the 1835, Municipal Corporations Act.
Freedom of the Borough
Surrounded for defence by their old town walls or by rivers and banks (ditch & rampart) the medieval cities and boroughs were insular by nature. Their location may have determined a predominant trading activity. The individuality of towns produced customs that would apply to their individual circumstances. In most towns the procedure to gaining freedom was similar. The majority were made free by patrimony. On gaining maturity (designated as aged 21) young men born in the town, whose father’s were free, would take an oath to support the officials and to apply the regulations.
Freedom, required to trade or for any form of business within the town, could be purchased by a ‘foreigner’ provided they met criteria and swore an oath of obedience. A third method of receiving freedom, to allow access to work and trade was by apprenticeship, usually of seven years, to a master craftsman. A less formal method was that of gifted freedom. This was intended as a method for paupers to have access to charitable funds, although it was sometimes misappropriated at election time when a lord of a manor interfered and abused the system.
Privileges enjoyed by the freemen would vary a little from town to town. Some freemen may have had access to the facilities within the town and were free from tolls, but be prevented from access to the pastures. Those freemen who had inherited their freedom were more likely to have the complete freedom of the town and town-lands along with a range of customary privileges. Without doubt, the greatest of importance to a freeman was his unique ability to vote, both for the local government and for a representative in parliament. This became a bone of contention that could and did lead to wide scale corruption. In 1833 a Royal Commission was set up to examine and reform the voting system.
The resulting Municipal Corporations Act, 1835 was based upon the Commission’s recommendations and by these, freedom by gift and purchase disappeared. We were left with patrimony and servitude (apprenticeship) and a limited number of cases acquired by marriage. An exception was made regarding London, who is not governed by national regulation and who has been allowed to continue providing freedom through purchase.
The reform took away freemen’s advantage and privileges jealously valued for centuries. However, much of the freemen’s property and rights over pasturelands that had been accrued over many years, were allowed to remain, for the benefit of the freemen and their ‘free’ descendants.
A new and more democratic system of local government, imposed upon the towns, brought voting to a wider public and elected Councils replaced the old Corporations.
An almost final blow came to the status of freedom occurred under the Local Government Act, 1972, that abolished the boroughs and ordained the disappearance of most local legislation. However, although this Act was destructive, it again preserved the principle status and basic rights of the freemen and allows them to continue, in their now rather less privileged, tradition.
The old boroughs and cities were mainly trading centres, they developed in an insular way and their citizens banded together for economic protection. Local government systems required that the residents shared in providing services and were allocated duties to perform. Freedom of the borough provided a means of regulation that would ensure standards were met and that the quality of products and services was controlled. Craftsmen jealously guarded their skills and their systems of apprenticeship. The requirements of ‘freedom’ ensured that there was no unfair competition.
Freemen of the borough shared the common goals of their fellow freemen. They would vote for officials from amongst themselves. They were free to enjoy the ‘liberties, laws and customs only granted to freemen’. Civic events and festival dinners were especially held by and for the freemen. A definition of a freeman was one partaking in the rights and privileges, laws and customs of the town. He would be quit of toll, passage, pickage, pannage and stallage and various other forms of taxation. Property such as the Moot Hall and the town pasture was exclusively for use by the freemen. Such were the privileges denied to a relatively large proportion of the local unfree population.
The 1832 Reform Act had every intention of changing the system of government and abolishing the freedom outright. Nevertheless, the freemen survived and even after the Municipal Corporations Act 1835, they were able to continue in their customary succession.
Freemen and freedom is in substance the same thing. In the past, freedom conferred and ordained by a borough charter, provided the freemen with freedom from taxes and dues even throughout the realm. It brought power to monopolise trade in the Borough. Freedom could be clearly seen, in its origin, as a commercial asset, long since lost within our modern democratic world today.
Freedom has a legal status and this status under the law cannot be altered in any way. In the same way that one cannot alter custom (local law). The law labels the Freedom as custom although there is no such thing as the Customary Freedom. Charles Sparrow QC, our late counsellor, on more than one occasion, made this point to dispel any possible belief by any persons wishing to call themselves a “Freeman of England”. There can be no such animal, as freemen only exist as individuals in relation to a specific place where the custom was generated.
The relevant rule or practice [of freedom] requires that it must be ancient. In the language of the law, the custom must have existed from time immemorial [beyond the accession of Richard 1 in 1189]. It is a requirement in law that the rule [concerning freedom] must be ‘reasonable’ to be recognised as customary. The effect of a borough charter was to formalise the legal personality of a town, which had previously rested upon custom. Charters and Town Acts allow provisions for revision and modification to enact new measures that may be necessary for good government. This has been employed to allow admission of daughters and to open boundaries where residence within the town had previously been a requirement.
In former times freedom carried with it privileges such as the valuable and exclusive right of pasturage, monopoly of trade, parliamentary vote and the freedom from various tolls and taxes. While only few privileges may exist today, the legal basis of the freedom still remains.
The people who developed the towns of England and Wales were mainly traders who banded themselves together to enhance their protection and provide a competitive force with which to do business. Traders formed guilds, in a similar way that trade unions are in operation today. Guilds governed the towns, regulated the trades and the local government was controlled by the power of a settled class of residents namely the freemen burgesses, the citizens of the borough.
Boroughs were trading enterprises where competition between crafts was significantly important. Patrimony and servitude were the main channels to freedom. Hereditary privilege and freedom are born of self-interest. It was the people known as ‘freemen’ who by residence and status exercised power within the borough.
How should we view the Freedom and Privilege today?
Wishing to belong to a specific group is a tribal instinct within human society. In today’s burgeoning modern society there has been an increasing interest in family history, ‘Who do you think you are?’ that makes the unique nature of inherited freedom a particularly desirable privilege. Being a ‘freeman’, with historic family connections to particular town, induces pride and pleasure that undoubtedly, would be the envy of many.
Alan Shelley, Officer Without Portfolio, June 2011
NOTE: The Fraternity Gilds, Craft and Trade Companies, including apprenticeships will be covered in a paper to follow.
18) The Gilds and the Craft Companies
‘Protecting trade and maintaining standards of workmanship’
Side by side with recognition by the burgesses of their corporate liability for the raising of their farm payment and the control of justice in their borough court, another type of grouping of the townspeople came into being in a great many towns. This was in the form of various gilds and in particular the ‘Gild Merchant’. The gild merchant played a material part in the development of towns and especially in their types of government. There was some variation in different towns but in most there was first the gild merchant and then later the trade gilds developed.
It was a post-Conquest development associated with the expansion of trade arising when there was trade to protect. Gilds were in conformity with the pattern of early English society, i.e. a community of effort in which the individual was subordinate to the society and worked within its framework, just as in the agricultural communities outside the towns.
King John’s charter to Ipswich in 1200 includes “they may have a Gild Merchant and their Hanse”. Likewise, in the same year, a charter of Ranulph III, 6th Earl of Chester, confirmed the grants of Gilda Mercatoria (gild merchant). Only members of the Gild could merchandise, except with the consent of the burgesses.
The Gild Merchant is an association of burgesses, who as traders were required to nourish and monopolise trade. Business was excluded from those not qualified by membership of the gild. This extended beyond the town and gave freedom from the universal tolls and dues. For their extensive privileges the members had to pay yearly dues. The gild met, not in the port-moot but in their own gild-hall in which the gild would be highly organised with its own seal, officers, steward, sergeants, clerks of the market and governed by a head alderman.
There was always a fraternal and religious side to the gilds, which particularly includes the subsequent craft gilds (or companies) that arose in the 14th century. The gilds celebrated festivals, held religious plays and processed on their Saints day. They were charitable and looked after the poor and infirmed. Owing to their religious nature, any actions brought against members were normally dealt within an ecclesiastical court.
An essential nature of the gilds was their ‘free’ fellowship. As I have previously alluded, the human tribal instinct is to band together, for protective purposes, into groups. This leads to fraternal mutual association to meet collective needs. Such was the early formation into ‘gilds’. Similar organisations were in existence even before the Norman invasion. The incorporations, by charter, began to take place in London during the 12th century and it was in the 14th century that there was a period of climax when other large communities began to assert their rights.
The origins of gilds may well have stemmed from the constitution and customs of the Germanic tribes, we have no certain evidence. Anglo-Saxon gilds were in existence in the ninth century and references to gild brethren (gegildan) are in the Laws of Ine (c 690). The earliest gilds, the frith (or peace) gilds, protected the interests of their brethren and in some places such as London the cnihten gild is thought to have been a union of the frith gilds. The cnihten-gild was dissolved in 1125 as the other gilds were emerging.
Social-religious fraternities are known to have been flourishing in the first half of the 11th century at Cambridge, Abbotsbury, Exeter and Woodbury. A Gild, in its body, is synonymous with lordship and carries similar strengths of position. They were akin with and countered the legal powers of the aristocratic landowning lords, their communion also gave them considerable political strength.
During this early period there was a problem with unlicensed or ‘adulterine’ gilds. These fraternities existed mainly for religious and social purposes and while providing goodwill and religious intent they pursued a variety of causes that were not approved of by the Crown. In 1180 an oligarchic rule required that the fraternities be approved and registered in a form of chartered incorporation.
Gilds were formed throughout Europe and across the globe even as far as China and they operated in a very similar manner to our own They were fraternities with religious connections and common interests that held courts, in gild-halls, very similar in nature to our own.
Soon after the Norman Conquest, the ‘Gild Merchant’ appeared as a local adaption of the gild idea to control the newly developing trade. It may well have been imported from Normandy where similar gilds were in existence. The gild became the department of town administration which maintained and regulated a monopoly over trade. It controlled the actions of the plebian class of the craftsmen and it is the ‘Gild Merchant’ that is credited, in local government, as being the source of municipality.
The Gild Merchant, in its early form embraced all the crafts, regarding every master craftsman as a merchant. Early gild merchant rolls indicate the specific craft against each burgess’ name. A major purpose of the gild was to make regulations for securing honest trading and for the examination of goods to keep them up to standard quality, to test weights and measures and to control trade malpractices. This control was mainly by fines and in severe cases would lead to expulsion from the gild. Such an action would almost certainly result in the ex member’s financial ruin.
The Fraternities of Crafts
The gilds in the medieval cities, in London and in the provinces, became a powerful economic, social and political force. Many of the gilds have shadowy beginnings without proper authorisation to regulate their trades. In time they claimed prescriptive rights by charter. Eventually, their powers were destroyed by the huge growth in population preventing their ability to exert authority upon so many competing craftsmen who set up without gild membership
Revolution was effected by the growth of private associations. The fraternities sought protection under the Church, which was the only practicable form in the Middle-Ages. Much later, from the twelfth century, they adapted to various social and political purposes. Very little is known about the inner life of the fraternities before the fourteenth century. The craft fraternities appear in records, almost entirely on their secular side. Earliest records of Weavers, Bakers and the Fishmongers gilds give no indication of any religious affiliation. The Weavers gild of Lincoln, like that of London, received a charter from Henry II. Nearly all the craft gilds, of which there are any records in England before the 13th century, were weaver’s gilds. Most of the provincial gilds, as far as is known, were constituted in the same way as at Lincoln. The Fishmongers appear to have been the most orthodox of the trades. In London in 1293, to celebrate a victory obtained by Edward I against the Scots, several trades made a show, and especially the Fishmongers with a very solemn procession, presented on St Magnus’ day.
Very early forms of craft gilds, unchartered, appear on record in London, as the Saddlers fraternity, the Goldsmiths (1272) the Tailors fraternity of St John the Baptist, whose Gild received an early charter in1300. The Mercers, known early, mentioned in deeds of the 13th century. In London, the Grocers fraternity of St Anthony and the Drapers fraternity of St Mary of Bethlehem were in existence before receiving their charters and there is a strong presumption that the same is true of the Skinners fraternity of Corpus Christi. The Skinners acquired a royal charter in 1327.
In most towns where craft gilds emerged, the Gild Merchant had disappeared by the 15th century. The craft gilds included most if not all the specific skills within the designated trade. Within the smaller towns several trades may be grouped together under fewer gilds.
Trade control by the gilds was finally abolished by the 1835 Reform Act.
FOOTNOTE: It is interesting to be aware, not only of the great importance of a gild’s charter but also of its every day practicality. The charter would regularly be introduced into trading matters, when for example there might be an argument by a port gild over shipping and cargoes being delivered to wrong docks to avoid taxes (as was often the case at Dunwich). The charter of liberties would be carried by a gild representative from town to market-situation as required. It was not a document to be held under lock and key but a political instrument.
The system of apprenticeship came into popular use during the 14th century although it must have been in existence in earlier times. It was necessary to gain the required standard of training in a craft to meet membership (and freedom) of a gild. Membership of the gild required the status of master craftsman. In order to gain the required standard of training necessitated a regulated apprenticeship.
A minimum of a seven year period of training was a legal requirement under the Statute of Apprentices of Queen Elizabeth I, 1563. The requirement was eventually abolished in 1814 by Statute of George III. Normally an apprenticeship would begin at an age of 14 years and have been completed by the apprentice’s maturity at 21 years, thus allowing him/her to gain their freedom of their gild.
Admission to the gild by an apprentice was achieved by ‘servitude’ (service) and this would normally have provided the means of freedom to the city/borough with all the inherent privileges applying to a master craftsman. Several cities and towns have, from early times, freely admitted women apprentices into the freedom. Even so, in later years there appears to have been restrictions applied which today, resulting from the Local Democracy Act 2009, no longer apply.
Freedom, and the inherent monopoly of controls, gave rise in the 18th century to the accusation of the ‘rotten boroughs’. Reform leading to the Municipal Corporations Act 1835 brought many of the freemen’s traditional practices to an end. Admission by servitude has continued, although on a minimal scale. Apprenticeship no longer requires the same rigid demands previously required by the gilds. The age of maturity has been reduced from 21 years to 18 years and the period has been reduced, in some cases to levels as low as only two years.
It is worthy of mention that apprenticeship today can provide a means of admission ‘by servitude’ to those towns where there are depleting numbers of freemen. Here is an ability to improve their position for the future. Perhaps freemen engaged in trade or a suitable business may be persuaded to lend their support. Apprenticeship could be provided in a (freeman’s) firm, trade, business or profession where training may be included within a potential apprentices’ employment. Care must be taken to record and endorse a proper document that covers the initiation and completion of the apprenticeship. Of course, before entering into such a scheme, it would initially require the approval of the authorizing body of the city or borough. Also, it would only be possible to reapply this scheme in towns where it could be argued as a resurrection of an earlier custom.
On this subject, Charles Sparrow QC our late counsellor has quoted from the ‘Law Relating to Apprentices’ that Austin observed firmly: “The notion which prevails that the ancient apprenticeship is dead, is erroneous”. He also made reference to the ‘Family Allowances Act 1965’ that defined the expression ‘Apprentice’ being applied to “training for any trade, business, profession, office, employment or vocation”. In conclusion, apprenticeship can exist and function (as a learner in any field of employment or business re ‘Black’s Law Dictionary’) in the world of today. The apprentice must be, as defined in Wharton’s Law Lexicon as “A person bound by indentures of apprenticeship to a tradesman or artificer, who covenants to teach him his trade or mystery”.
Charles Sparrow claimed that in essence, apprenticeship is an educational contract. The essentials of such a contract were indicated in the case of Edmonds v Lawson where the apprentice was simply obliged “to follow reasonable instructions”. The payment of a premium by the apprentice would be the deduction of a contract.
In some towns, such as Coventry, it would appear that the master craftsmen remained under their Merchant Gild and in the case of Coventry, the fraternal Guilds of St George and of St Catherine eventually came together to form an all powerful Trinity Guild. At Alnwick, fifteen companies were recorded in 1611 and seven are remaining today: the Cordwainers, Tanners, Black and White Smiths, Merchants, Skinners & Glovers, Butchers and the Carpenters & Joiners.
The craft companies at Chester hail from the mid 14th century, the Tanners in 1361 and the Weavers in 1399. Today there are 23 companies in operation at Chester. At Durham companies were created and eight are in existence today, Barbers, Butchers, Cordwainers, Curriers, Drapers, Joiners, Masons and Plumbers. At Haverfordwest, trade guilds were incorporated by authority of the Mayor and the borough corporation. Grants were made for each craft to have their own master and wardens. Any disagreement that could not be settled within the craft gild would be dealt with by the Mayor and the common council.
At Newcastle upon Tyne there are 28 companies still in existence, each controlling their own affairs. Apprentices are still being admitted by the Butchers, the Scriveners and the Master Mariners. At Shrewsbury, during the 14th and 15th centuries, tradesmen left the Gild Merchant to form their own specific trade companies and in the region of 14 trade gilds had received charters of incorporation by the end of the 15th century. Regrettably, with the repeal of all authority over the control of trade by the Reform Act of 1835, the Shrewsbury gilds were dissolved, but an active gild of hereditary freemen enhances the history of their borough alive today.
The gilds (and companies) have generally survived as social organisations whose members have become increasingly unconnected with their particular trade, and now operate as charitable bodies that are often able to dispense monies toward education and for cultural purposes.
Gilds still own halls, schools, almshouses, investments, land and substantial charity funds. They have proud histories, traditions, records and in some cases magnificent treasures. The survival of the gilds will be achieved by the fostering of traditional beliefs, trades and customs, serving their communities and developing a modern approach to the requirements of skills and professions necessary in today’s society.
I should not conclude on the subject of craft gilds without mentioning the Worshipful Companies of the City of London, generally referred to as the Livery Companies. Most of the ancient companies acquired royal charters and many have more than one, the earliest granted during the 12th century. By comparison to the dwindling situation with many provincial craft guilds, the London companies are positively dynamic. An increasing number of new companies, covering new trades, have recently been created. In the modern world membership of the guilds, as in the past, continues uniquely to provide business people with a social outlet and a valuable source of networking.
The social and economic conditions which gave birth to the medieval gilds have long been overtaken by the development of industry and commerce, but in spite of this the gilds have survived and flourished. Clearly this indicates a fraternity that encourages our ancient tradition and improves the future concept of Freedom.
Alan Shelley, Gildsman, and Liveryman of the Worshipful Company of Blacksmiths of the City of London, July 2011
POSTSCRIPT: The overarching Association of the Freemen of England & Wales was formed in 1966 to provide (by common endeavour) support and protection against damaging legislation. Among its objects are “to advance public education in, and promote research into the history of the ancient towns of England and Wales”. It is by fraternal interaction between the gilds and the individual freemen that our ancient traditions can best be protected.
19) ‘Fredom & Curteisye’
The application of the FEW motto depicted above and meaning ‘Freedom with Courtesy’ is worthy of some consideration. Freemen are justly proud of their inheritance and by representing their home towns and cities they fly the flag of patriotism and uphold their national traditions.
Freemen understandably (and quite rightly) are fervent in protecting their customs and privileges and in so doing, will recognize that exclusivity may lead others, less privileged, to be alienated and can thereby put freedom in an unfavourable light.
A freeman’s position is one of responsible stewardship, safeguarding historical traditions that form a part of our nation’s rich heritage. Secrecy and inward thinking on behalf of freemen, perhaps on an assumption that this will provide better protection, could damage the future of Freedom.
Privileged practices should never be boasted. Any pretence by a freeman seeming to assume exaggerated importance is at all times to be avoided. A freeman’s image is recognized as one of integrity, attendance to duty and of civil demeanor.
A balanced approach will often achieve amicable results without any detrimental effect on a freeman’s rights. In 1891, Lord Justice Bowen, in the case of Blount v Layard, said:
“. . . nothing worse can happen in a free country than to force people to be churlish
about their rights for fear that their indulgence may be abused, and to drive them to
prevent the enjoyment of things which, although they are matters of private property,
naturally give pleasure to many others, besides the owners, under the fear that their
good nature may be misunderstood.”
(Layard was sued for fishing a stretch of the Thames owned by Blount)
It is generally the case that where freemen’s rights persist, the local townspeople are granted ‘permitted’ access, thereby ensuring that the rights are maintained. In such cases a printed notice to that effect should always be applied.
In conclusion, the Freemen’s Motto denotes our intentions to be responsible and courteous citizens, distinct in duty and priding ourselves in being a dynamic force for the good of all society.
Long live the F.E.W. and long may ‘Freedom and Courtesy’ flourish.
Alan Shelley, Officer Without Portfolio, 7th September 2011
Postscript On the matter of courtesy, respect and inclusivity
Our Association enthusiastically welcomes the new lady freemen who until recently were prevented in several towns from admission to Freedom.
Survival of the Freedom had been threatened by ever diminishing numbers of freemen being admitted. Women were being undemocratically excluded and we should rejoice that our movement has positively encouraged their inclusion and will thereby be invigorated by their intake. The democratic inclusion of the ladies will advance and enhance our recognition in modern society.
It is also now time to more seriously consider increasing the admission of suitable young people by the reintroduction of apprenticeships and thereby ensure that the Freedom can truly flourish.
20) ‘Democracy – and the Future of Our Local Countryside’
(This subject is complicated by politics, economics and legislation)
Back in early May, as a footnote to my paper (16) ‘Freedom Past and Present’ I warned that the somewhat innocuously titled ‘Localism’ Bill imperils future planning and developments.
In order to economically house a rapidly expanding population, the government has recommended that planning regulations should be relaxed. The Coalition has recognized the need to plan ahead for a new and divergent society.
David Cameron’s philosophy of a ‘Big Society’ for Britain has brought about proposals for two reforming Acts, now in the pipeline. Firstly, the Localism Act that is intended to provide communities with the ability to plan and conduct their own developments. Secondly and closely linked is the ‘National Planning Policy Framework’ (NPPF) which is the Coalition’s move to rewrite and simplify the planning rules.
The dangers that such new legislation brings are liable to change forever the nation’s landscapes and affect traditions that have been in place for many years. Planning reforms would make it easier to build on previously inaccessible land. Government’s legal presumption, in favour of sustainable development will apply “even within the green belt”. The National Trust and various eminent protective organizations have campaigned against the Government’s proposals.
There is considerable anxiety in the country over the implications of the draft NPPF and in particular to its “presumption in favour of sustainable development”. This has been deepened by exposure of the worrying extent to which the new framework appears to be driven by economic rather than planning considerations, with the interests of developers placed above those of local communities.
Government has been adamant that this is not their intentions although ministers concede that they want fewer restraints placed by the planning system on developers. For decades the planning system has guided development to the places that need it. The system has protected open countryside, prevented sprawl and safeguarded the historic character of our cities, towns and villages.
Ministers are currently pushing through plans to replace more than 1,000 pages of planning regulations in England with just 52 pages in the NPPF. Campaigners have suggested the Government is trying to change the planning system so that it is biased in favour of promoting growth rather than protecting the environment.
Our concern, particularly as Freemen of England and Wales must be that any relaxation of green belt land, or the encouragement to build on open spaces, may lead to compulsory developments over Freemen’s lands. This could well be seen as the thin end of the wedge. Not only is our personal property in jeopardy but the national historic places and landscapes are put at risk of undesirable development.
Again, I would respectfully say we must be vigilant and as necessary respond positively.
Alan Shelley, Officer Without Portfolio, 1st October 2011
21) The Localism Bill and Act
A Brief Overview
David Cameron’s political philosophy for a ‘Big Society’ centres on ‘Localism’. This involves the decentralising of government to give back decision-making powers to cities, towns and local communities that have some resonance to our Freedom past.
The policy may be fraught with problems. It would be true to say that suddenly providing such democracy may lead to local squabbles, making it necessary to impose a number of rules.
Introduced to Parliament 13th December 2010, the Localism Bill proposed a shift of power from central government into the hands of communities and councils providing five key measures:
- Community Rights
- Neighbourhood Planning
- Housing Decisions
- General Power of Competence
- Empowerment of Cities and Local Areas
The Localism Act would thereby provide:
- New freedoms and flexibilities for local government
- New rights and powers for communities and individuals
- Reform to make the planning system democratic and effective
- Reform to ensure that decisions about housing are taken locally.
Different parts of the Act will come into effect at different times with rules and regulations stretching over a period of some time. The major measures are anticipated from April 2012 and these will include, general powers for local authorities, communities right to build, the planning reforms to enforcement rules and reforms to social housing tenure and council housing finance.
New freedoms and flexibility for local government will, for example include, public services, street lighting, social care, libraries and leisure centres. Councillors will be more accountable [democratically] to local people.
Local authorities will be freed [without fears of breaking laws] to do more for their locality. Power of competence is the legal capacity that can include local taxation. Similar powers are to be given to Fire and Rescue Authorities, Transport Services and to Economic Prosperity Boards. Councillors will be expected to operate with the highest standards of behaviour. There will also be greater local control over business rates.
The Act promotes directly elected mayors with four-year terms of office to allow long-term strategic decisions. Referendums are planned for May 2012 to decide whether or not to elect such a mayor. The Act will also enable Ministers to transfer local functions and remote quangos to local authorities in order to improve accountability or for the promotion of economic growth. Authorities are anticipated to be encouraged in the provision of innovated proposals.
Empowerment for Councils will enable them to provide facilities that suit their local circumstances. It is anticipated that the new rights and powers for communities and for individuals (voluntary groups etc) will encourage more things to get done. The Act gives a right to individuals to challenge council’s actions.
The Localism Act requires local authorities to maintain lists of assets of community value. Local people have rights over council tax and the management of services. This includes the transparency of council official’s pay. They will have more influence over planning issues.
The system is generally to be more democratic. Regional strategies are to be abolished. Neighbourhood planning will allow communities (residents and businesses) to determine outcomes. Neighbourhood development plans should be ‘inline’ with national planning policy. The Act is intended to give local groups the power to deliver the developments that their local community want.
AS View Point
These ideals are all very well meaning, but too much democracy may cause huge delays to decision-making and rapid deregulation may lead to some irreconcilable damage. I have previously mentioned my concerns over the deregulating ‘National Planning Policy Framework’, which frees up green spaces and could potentially affect our freemen’s lands. We should be ever vigilant and ready to influence any local planning considerations as may be necessary.
Alan Shelley, Officer Without Portfolio, February 2012
The basic principles of Conservatism are, the preservation of civic institutions and traditions, to maintain the sovereign state and to safeguard the monarchy and the Anglican Church.
David Cameron adheres to these principles and within his ability has attempted to improve and regain by reform much that has been lost in recent years.
Since Margaret Thatcher, back in 1987, famously commented that there was “no such thing as Society” there has been much debate. There is little doubt that the old ideals of communal support, family values and the forms of camaraderie that once existed within the work places have dwindled in the recent decades.
Mrs Thatcher was of the view even then, that many people had become inclined toward seeking assistance from the State rather than to attempt to achieve their ends by hard work or by self-motivation. Many people lacked responsibility for their own behaviour.
In recent years the Government has taken up many responsibilities and introduced many institutions to rule the Country. Perhaps David Cameron in his attempts to withdraw from the “Nanny State” should be applauded, if it is not too late to recover so many areas (including for example manufacturing apprenticeships) that were the spirit that has been proudly British.
22) Freedom through Apprenticeship
Part I - A Modern Approach to Admission by Servitude
Uptake of the freedom has been limited in most towns, boroughs or cities, by restrictive customary rules. In the past, in many towns, women were unable to gain admittance. It was not until recent democratic changes in legislation, thereby allowing women equality, and by swelling the numbers of admissions that the Freedom has again been able to flourish. Even so, the Freedom remains under the threat of ever diminishing growth.
Traditionally, freemen are admitted into freedom by customary rules laid down in their home town from time immemorial. The past methods of admission were by hereditary entitlement, by ‘honourable’ gift and by purchase. Since the reforming legislation of the 1830s only the freedom of London can be obtained simply by purchase.
A fourth method of gaining freedom, commonly employed in the past was that of ‘servitude’, in other words, gained through apprenticeship to a freeman.
To satisfy the rules of such a ‘servitude’ admission, the apprentice must legitimately be provided with training in a calling or skill that will result in useful employment. By necessity the ‘master’ freeman will provide suitable advice and training from a position recognised by others in that business, trade, craft or profession.
A time scale for the apprenticeship need no longer be the traditional seven years. Ideally a five year period or a minimum of three years is required to provide a substantial level of training and ultimate skill. The apprenticeship must be fully documented and have a formal start and finish. Personally, I would favour an ‘indenture’ drawn up in two parts to form a deed/contract. The two indented halves to be joined on completion.
The freeman and apprentice should appear together before a court or meeting of the respective Freemen’s Guild/Society to acknowledge the beginning and conclusion of the apprenticeship. At the concluding ceremony arrangements will be made for the apprentice to receive their permit to gain admission to freedom.
Teaching of the trade, calling, business, craft or profession – The custom must be established Does the custom of the relevant place [in the past] include the admission of apprentices of freemen? If it were previously eligible for male apprentices it must now be available to female apprentices.
The freeman will be bound for a particular term, to provide instruction or training. These conditions can be written/described in straightforward plain language.
The apprentice will be bound in return, to diligently follow all reasonable instructions. Our late honorary Counsellor Charles Sparrow QC has previously suggested that the payment [not a large amount] of a premium, included in the agreement, would put beyond doubt, the mutuality required for a contract. A suitable brief agreement could be drafted by a local solicitor.
Alan Shelley, Officer Without Portfolio, 8th July 2012
Indenture – an indented deed under seal, with mutual covenants, where the edge is indented [jagged zigzag cut] to enable authenticity to be confirmed (law) – it is a written agreement between two or more parties [apprentice and an employer].
23) Application for Freedom through Apprenticeship
Part II – The Practical Approach
In the past, a major source of admissions to borough freedom was through the satisfactory completion of a suitable period of apprenticeship. In the larger majority of towns where apprenticeship has subsequently lapsed we should consider the reintroduction of this principle means of admission.
If the Freedom is to flourish then there is clearly a need to introduce into our society the fresh blood and potential energy that can sustain its future. Most of the existing freemen of today are the descendants of previous craft and trading practices. As the old industries of England and Wales have diminished then so have the traditional industrial training practices lapsed.
It respectfully requires all guilds, not at present applying this means of admission, to give it their careful consideration. This method should certainly be within the capability of all the various gilds throughout the nation.
Firstly, where a freeman local employer can consider suitable candidates for freedom, then it may simply require approval of the local authority/Council before enacting a basic contract and subsequent application for admission to freedom.
Undoubtedly, freedom through apprenticeships would improve the reputation of the more commonly ‘closed’ privilege to descendants of freemen via patrimony. Children born after an apprentice has gained their freedom would of course be entitled to freedom through the custom of patrimony. Such new and suitable freemen resulting from a completed apprenticeship may be better recognised when taking up their role as useful members of the local community.
Freedom itself is custom and as such, the methods of apprenticeship and the time period employed, may depend on local custom. Generally, where these practices have long since disappeared then we may apply a simple agreement, supported by the local authority. Each town or city may operate their own scheme for apprenticeship to suit the characteristics of their community.
A freeman employee (or retired person) in a position of some authority, craft or trade, could in a modern form (interpretation) take the role of ‘Master’ to train a suitable candidate for freedom.
Where difficulties with a Local Authority are encountered then it may be possible to resort to the Local Democracy Act of 2009 for support. It is anticipated that F.E.W. in due course may be in a position to advise a guild or society if or when problems might occur.
This paper to be read in conjunction with Paper ‘Freedom through Apprenticeship’ (8th July 2012)
Alan Shelley, Officer Without Portfolio, 16th July 2012
24) Freedom through Apprenticeship
Part III – Stressing the importance of Apprenticeships and arriving at a new Criteria
In my two previous papers entitled ‘Freedom through Apprenticeship’, Parts I & II, I described the need (indeed the necessity) to encourage new potential freemen and thereby to enhance our image within modern society.
Charles Sparrow, our late counsellor, many times raised the need for support and where necessary to reintroduce apprenticeships:
· ‘Freedom by Servitude’ – York, 1983
He called for the genuine apprentice – who desires to learn a trade and to practice it for a living. He called for the genuine ‘master’ – in the same trade to give instruction.
He called for a regular and proper period of training (continuous) and a binding engagement in writing, and that it must be personal.
· Charles Sparrow at York, 1991
‘Women and their part in the Freedom’
3rd part ‘Apprenticeship’ – He mentioned “the influence of women in commercial life”
And, that ‘Women can gain freedom by right of apprenticeship’
NB. equality between sexes has not dissolved the principles of descent – these remain as custom – the Freedom has its own barrier against change.
The exact nature of the Freedom: - Freedom always rests upon tradition
Can we apply the power of amendment?
If freemen’s legal rights were explicitly preserved under the 1835 Act then although the 1972 Local Government Act extinguished all borough charters – it was part of the freemen’s rights – to retain the powers of amendment (as they stood in 1835)
· ‘Admission by Apprenticeship Today’ – Haverfordwest, 1996
“The functions of freemen with their status survived under the 1835 Act and were affirmed under the Local Government Act 1972. These Acts abolished admissions through ‘Gift’ and ‘Purchase’ and the decline in ‘Servitude’ is connected to changes in social circumstances”. Admission by apprenticeship in the past ensured responsible government of trade and borough administration, they understood the burden of local government – Legal discipline ‘scot and lot’ paying local taxes and accepting civic duties. Family succession and servitude may vary, as every place is unique [customary].
“Admission by apprenticeship is a crucial matter” [Sparrow] – being one of the only two grounds of admission available. It is a wholesome counterweight to hereditary freedom – and always has been down the centuries. It must be operated with care and understanding. It must be genuine and above board [not a backdoor to freedom].
It requires an established practitioner of an occupation to teach/instruct an apprentice over a reasonable period – a true recruit for an occupation that will allow admission to the freedom. “It cannot be fabricated for the sole purpose of gaining entry to the freedom”.
· ‘The Freedom Today and its Future’ – Newcastle upon Tyne, 2000
“Self Help Apprenticeship”
A scheme of tuition or training – must be in good faith and with a genuine bond – for an appropriate term. It should reflect a public interest [rather than family interest].
· ‘Learning from Apprenticeship’ – Great Grimsby, 2001
“The Golden Opportunity – for action to fend off extinction”.
Sparrow urged Freemen’s Associations to Act!
· ‘A Grave Menace’ – Durham, 2003
Sparrow’s final statement ‘The Future of the Freedom’ requires the addition of Women and the supplementation of apprenticeships
I have quoted the many times Charles Sparrow raised the subject of apprenticeship as a means of increasing the admissions to freedom. It was something of a mission that sadly does not noticeably appear to have been taken up?
Apprenticeships, until relatively recent times were the primary method of training to provide the necessary skills required for industry and trade. With a reduction of industrial practices and the development of technological processes, apprenticeships are no longer as readily available.
Schemes for apprenticeship in a modernised form, that apply the principle of learning through training, observation and examination, can possibly be constructed to meet the current needs.
In an effort to assist with this procedure perhaps the following may be of assistance:
‘Apprenticeships, Skills, Children and Learning Act, 2009, for ‘Completion of an English apprenticeship’, the requirements of an apprenticeship scheme are:
· It is entered into an agreement framework
· Recognition of the agreement is dated
· That the person has completed a course of training with an identifiable qualification
· That throughout the duration of the course of training the person was working under the apprenticeship agreement
· That the person meets the requirements specified
[Welsh apprenticeships only slightly differ]
The English certifying authority – Chief Executive of Skills Funding.
The English issuing authority – The Secretary of State may designate a person to issue apprenticeship, frameworks relating to a particular apprenticeship sector.
Employing the Local Democracy Act, 2009
Its purpose – ‘Strengthening democracy – contributing to local partnerships (Council’s actions)
The current economic situation has reinforced the crucial role that councils can play in supporting their communities. The best have taken steps to mitigate the worst impacts of the downturn through, for example, offering debt services, supporting new apprenticeships, or looking to create new jobs through the ‘Future Jobs Fund’. Councils are uniquely positioned not just to work with other partners, but to lead them in preparing for recovery and future growth. Local authorities are to plat a powerful new role – delivering entitlements and responding to emerging local challenges.
What is the Criteria and process for a Modern Apprenticeship?
The institution of Freedom is one of Custom and the custom uniquely applies in one particular place!
Sparrow’s views on Apprenticeship: -
1. Servitude is the most important aspect of the Freedom (York ’83)
2. A stimulating crusade – a proper place for freemen in the community today
3. It must have been a custom in the town – some towns do not offer or allow
4. Different town practices apply servitude in varying ways (reference the Coventry method)
· New and suitable blood into the Freedom
· The Freedom is custom and that must be recognised
· A new approach to a modern apprenticeship must include trial and test, it cannot and must not appear to be a backdoor method to gain freedom
· The apprenticeship should be beneficial, in some way, to the town community.
Admission Procedure (In order to preserve and perpetuate the Freedom)
The candidate for apprenticeship is to be of good character and should understand and appreciate the purpose into which they are engaged. Vocational training must include trial and test over a suitable period to maintain the recognition a ‘apprenticeship’ requires. The term of the apprenticeship should be no less than three years. An apprenticeship must not be fabricated for the sole purpose of gaining entry to the Freedom.
There need be no distinction between trade, calling or profession. The period of training can be set according to that required of the apprentice to gain the necessary skill in the business.
The object of the apprenticeship should be to train adequately a new tradesman “fit to take his/her place in the borough’s community.
Charles Sparrow QC, suggested that such a contract could take place outside or despite employment by a third person. The master and apprentice may be employees of another person or body.
At the commencement of the term – the master and apprentice should appear at the freemen’s court/formal meeting (or before the borough authority) and the details of the agreement be recorded in a suitable register.
A major benefit of freedom through apprenticeship will be to the image of the freemen in today’s society. Reflecting public interest and deflecting the suggestion of a closed privilege derived from patrimony. It enhances the contribution to commerce within the local community.
Elements for consideration:
1. The custom of apprenticeship must have existed in the borough.
2. There is no need to distinguish between trade, craft, business, profession or any other calling.
3. A freeman/master who can provide and approve the training of a suitable candidate for the eventual admission to freedom.
4. The product of the apprenticeship must be meaningful and have a commercial purpose.
5. On completion of the apprenticeship a rigorous assessment will determine suitability and approval given of eligibility for admission to borough freedom.
A customary requirement for an apprenticeship of seven years could be met by a five year term plus two years ‘internship’ before admission to freedom.
Where the master freeman may reside and trade from outside the town boundary, it may be possible to obtain a joint position with the leader of the local council, town clerk or even the mayor to arrive at an authorisation necessary to accomplish qualification.
It is essential that the types of apprenticeship provide a useful product or service and that the apprentice has gained a level of improvement that may be expected.
This paper should be read in conjunction with ‘Freedom through Apprenticeship’ Parts I & II.
Alan Shelley, Officer Without Portfolio, 20th July 2012
25) Land Registration? ‘Commons Act, 2006 has been Postponed’!
Don’t delay your Actions
The economic downturn has led the government/Defra to plead lack of resources. This has meant that they are putting things on hold and that they will fail to complete part 1 of the Act before 2015. In effect this really means at least 2016. The consequence of this is that the updating of the commons registers will also remain much unchanged!
This news will cause freemen and commoners alike much concern over the protection of their lands, and even the countryside in general. Any unregistered land (waiting on the Act) could be subject to predators looking for development. Planning reforms and the recent relaxation of protective regulations may provoke unwanted interests in unregistered land.
It is better that the concerned freemen are aware of this situation although they should not simply stand by and await the outcome.
The threat to common lands and open spaces is considerable and undoubtedly the organisations such as the Open Spaces Society, the National Trust and the Common Lands Coalition will be persistently lobbying the government to restore more immediate action.
In the meantime I would advise freemen and commoners who are in the process of applications to press on and for any intentional applicants to get their applications into their Authorities. This must provide a level of protection in the event that any poachers attempt to gain an advantage.
Alan Shelley, Officer Without Portfolio, 17th November 2012
26) The Freeman’s Fraternal Gown
Symbol of Fellowship
A freeman’s gown should not simply be seen as a ceremonial robe, it represents much more. It symbolises the unification and fraternity of brotherly and sisterly fellowship enjoyed within a gild.
Historically, the characteristics of gilds have emphasised ‘fraternity’ as the creative element within their associations. Nineteenth-century historians attributed the phenomena of gild life to the social instincts of man, to the human impulse to work, socialise and worship in common.
George Unwin, the recognised authority on London gilds, considered that fraternal association was more than a universal characteristic of gild association, it constituted the dynamic spirit of social and political progress in western history. The functions of voluntary associations, created by their founders to fulfil both personal and collective needs, exceeded the activities of mere private societies.
In the past, trade and craft fraternities have sought security and protectionism by association. Such were the necessities in those days but they may no longer apply today. Fraternities initially formed for protection, much like trades-unions, have long since become, in family terms, associates enjoying the company of others with similar aspirations and common endeavours.
The freeman’s fraternal gown is distinctive by design of the gild livery of the ancient town or company of which its fellow members represent. Up and down the nation, freemen proudly display their gowns in recognition of their fellowship and ancient traditions. The unifying effect promotes strong and emotional bonds of common fellowship.
At times on festive occasions, a freemen’s ‘loving cup’ may form a focal symbol at fraternal banqueting events. Such traditions provide an opportunity to pass the cup between the freemen as they toast each other in fraternal fellowship.
Most gilds in England and Wales hold festive banquets on at least one occasion each year and generally they have extended an invitation to members of other gilds to join in their conviviality’s. The Association of F.E.W. in its role as the national representative body, encourages all members to socialise at such events and to join in the annual festivities that generally follow their AGM held in a different town each year. It is at such events that lasting bonds of fraternal friendship with fellows of other gilds are formed.
In these somewhat straightened and reforming times, economic pressures may be variously affecting the gilds. I would respectively request that all freemen, as much as possible, encourage the younger and eligible generation, to join with our fraternity.
The Association of F.E.W. gives all of its members the opportunity to enjoy fraternal support and that will encourage the ‘Freedom to Flourish’.
Alan Shelley, Officer Without Portfolio, 12th January 2012
27) Freemen’s Property and Status
An understanding of the present circumstances
The ‘viewpoints’ I have posted as papers on the FEW website were mainly aimed to inform the hereditary freemen. My intentions have been to analyse recent legislation and to determine weaknesses or threats to freemen’s property.
In a summarising of these papers we may arrive at a general conclusion. Where freemen’s lands in the majority were subjected to the Common Lands Commission and that they were persuaded into registration under the 1965 Registration Act. This has contributed to some confusion among freemen as to the ‘ownership’ of such lands.
City Councils/Local Authorities adopted the freehold of the old Corporations and in most cases have assumed ‘ownership’ of freemen’s land. All common lands subsequently became subject to the Countryside and Rights of Way Act 2000, no longer ‘private’ and allowing open access by the public.
The subsequent Land Registration Act 2002 appeared to offer an opportunity to establish freemen’s rights of ‘beneficial ownership’. However, it has not proved possible to substantiate the case for freemen’s lands already recorded as commons.
In many places it would appear that an injustice has occurred by not recognising the unique difference of land ‘common to freemen’ and the traditional common lands. Rights over land designated by a Parliamentary (Town) Act, specifically for grazing by freemen (burgesses), could be defended as being subject of “statutory sole vesture” on behalf of the freemen. A recent High Court judgement may provide the necessary precedent in English Common Law for some action (even remedial action). This refers to the judgement made by Justice Lewison over Tewkesbury Ham, (ADM Milling Ltd v Tewkesbury Town Council and Others, March 2011). See Viewpoint Paper 14)
Another area of some concern appears to be that of harmonious associations between Town Councils and Freemen’s Committees. Local Authorities/City Councils took over the responsibilities (governance) of the old prior Corporations. Freemen today should aspire to form ‘joint management’ agreements – thereby forming ‘inclusive’ arrangements rather than applying ‘exclusive’ freemen’s committees that may not be recognised in our modern legal systems.
Finally –Whose property are the freemen’s lands?
- The soil is vested (in most cases) with the Council
- The surfaces, if by ‘right of sole vesture’ are with the freemen
- Land vested in a scheme formed by ‘local’ Act of Parliament (freemen’s land/property) is administered by Trustees
- Control over profit from income is subject to the regulations of the Charity Commission
- Society today (by law) requires some share in the benefits of freemen’s land !!!
It seems to me that it is imperative that there be further legal clarification (perhaps by FEW) to establish the ‘Freemen’s Right of Statutory Sole Vesture’. This could safeguard the very future of ‘Freedom’.
Protection by this right can prevent any development or modification to the surface of subject land without the express agreement of the Freemen.
Alan Shelley, Officer without Portfolio, May 2013
28) Local Green Spaces
Freemen may wish to be aware that the government, within their updated planning policy, have introduced a new classification for quiet open areas. Increased economic pressure for growth has stimulated the planning process (now more relaxed) and local developments are being promoted under new regulations.
The new designation of ‘Local Green Spaces’ (LGS) is somewhat ambiguous as they will appear to receive some safeguards but will not apparently be given the perpetual protection previously expected of ‘land registration’.
Under the ‘Localism Act, 2011’ new measures provided an opportunity for communities to designate green spaces. Local people are invited to specify, within the broad planning process, spaces for food production, recreation and leisure activities. The local authorities would be ultimately responsible for the management and of their overriding governance.
This forms a part of the National Planning Policy Framework (NPPF). The Local Green Space is a new designation introduced in March 2012 to be included within local neighbourhood development plans.
The designation should only be used where the land is not extensive, is local in character and reasonably close to the community; and where it is demonstrably special, for example because of its beauty, historic significance, recreational value (including as a playing field), tranquillity or richness of wildlife.
Policies within the local development plan for managing development within a Local Green Space should be consistent with the policies protecting Green Belt lands within the NPPF.
Once designated/recorded a Local Green Space may prevent undesirable development. However, the designation does not provide ultimate protection. The Open Spaces Society have declared the LGS designation as of little value. Unlike the registration of ‘Greens’ for example, the LGS designation confers no right for the public to use and enjoy such land. There will be a multitude of restrictions and the land may remain unprotected, thus receiving the same form of treatment as green belt lands!
Clearly the new policy is designed to skip the former (more rigid) registration process to speed up activities and to avoid restrictions that may eventually prevent future developments. It remains to be seen if an LGS gains the importance that eventually could have the ‘teeth’ for its own protection.
Alan Shelley, Officer Without Portfolio, 16th May 2013
29) Freemen’s ‘Exclusive’ Grazing Rights
A Discussion with Lawyers
Commoning rights, as a part of our agrarian history, have been an English custom dating back before the Norman Conquest. A majority of the pre-industrial population would rely upon ‘common lands’ to sustain their living.
Originally parcels of ‘common’ land were attributed to homesteads, sufficient to support the resident family. The land was often shared with adjacent families. Such rights of access were traditionally passed from father to son. By custom of inheritance we can see that such rights, in fewer places, are still being accessed today.
Common rights have generally applied to the grazing of animals and or the sharing ‘in land’ by several ‘in common’. With freemen’s rights, we can look back to ancient times when the freemen (burgesses) of towns or large villages lived in burgages, for which the paid their scot and lot. The burgesses were allocated grazing (town) lands closely associated with their burgage properties.
As time has passed, the population of towns and villages has outgrown the numbers of designated burgages (with rights attached). A system developed that has allowed descendents from the qualifying dwellings to participate in the common grazing, by right. New tradesmen who purchased the freedom of a town were often not entitled (by right) to access the common grazing but their descendants, on becoming freemen (by birth) were then entitled to access the town lands.
Here we can see how the commoning rights of townspeople (freemen) became in possession of ‘personal’ property, legally termed as “in gross”.
In previous discussions over freemen’s rights being disputed in the House of Lords, pertaining to the York City Council Bill (1986), Lord Halsbury argued in favour of the City Council ‘that no freeman today should anticipate grazing ‘by right’ as they would be unable to justify their ancient connections – a freeman would be unable to point to their qualifying ‘burgage’ nor to establish any clear original connection. Neither could any York freeman claim that his or her cows were being deprived of grazing’.
The subject of freemen’s inherited rights relate in principle to ‘real personal property’. Following the Enclosure Acts of the 18th and 19th centuries, Town Acts passed by Parliament, in many cases attributed rights specifically allocated to freemen over the grazing of certain town lands. In these instances the rights can be interpreted as ‘statutory sole vestures’ exclusive for the use of (and only) by recognised freemen of that town.
The Commons Registration Act, 1965 adopted freemen’s rights (simply as common rights) and by doing so have not recognised the ‘exclusive’ status of their ‘real property’. “Statutory right of sole vesture is a commonable right” (Section 193 of the Law of Property Act 1925), It is not a “right of common” within Section 194 of the 1925 Act).
Mr Justice Lewison, when summing up the inherited freemen’s (burgesses) rights over Severn Ham Common, (ADM Milling Ltd v Tewkesbury Town Council and Others, March 2011), made a clear distinction between similar rights where “a right which, though frequently spoken of as a right of common, was [is] in fact, an exclusive right of pasturage (Kelly CB) and Martin B – who referred to the Corporation of Colchester who had miscalled a right of common, as being exercised by the burgesses in common; but it seems to me . . . is certainly not a right of common in the legal sense, but a right of “exclusive pasturage”.
When the property legislation of 1925 was enacted, there was a looseness of terminology about commons, rights of commons and commonable lands. A right of sole (exclusive) pasturage was ‘frequently’ spoken of as a right of common; and land over which such a right was exercisable was popularly described as ‘commonable’. It would appear to be the likelihood when applying Sections 193 and 194 of the Property Act.
Mr Justice Lewison concluded his summing up of the Tewkesbury case by rejecting the plaintiff’s request to cancel the rights of common because the rights were, in fact, exclusive property of the inheritors of the burgesses who had ‘sole’ vested rights and therefore inviolable.
It would appear very likely that many freemen’s lands or rights will have been registered incorrectly and that a revision, by law, may be possible. Taking this case (at Tewkesbury) as a precedent and an example of how easily an incorrect interpretation could have been made, we may now have enough ammunition to take counter actions.
NB There is little doubt that in the majority of any such cases, the Councils will be the best disposed to continue with the management of these lands but potentially in association with the Freemen. Any profits, after the costs of maintenance, would (in today’s society) be required to be distributed by Trustees (charitably) for the benefit of the local communities.
It seems probable that ‘statutory sole vestures’ of other types of property may have been itemised in Town Acts – if this were the case it could bring about further actions over civic properties. Perhaps freemen could then be recalled to participate more effectively in today’s Municipal affairs.
Alan Shelley, Officer Without Portfolio, May 2013
30) The Window is Closing!
Registration (by LRA 2002) of Freemen’s Statutory Rights over Traditional Town Commons will be Coming to a Close in October.
Among other things, the Land Registration Act 2002 was specifically aimed at reducing the “circumstances in which overriding interests can exist”. A ten-year period was considered an adequate period in which such interests could be determined/registered.
The deadline for registration approaches. From midnight on 12th October 2013, certain third party rights will no longer have automatic protection under the LRA 2002. Registration of adverse rights has the potential to stifle undesirable developments.
An overriding interest is normally an unregistered interest in land – that binds an occupier/ landlord/owner or a new purchaser of that land. The effect of not registering interests at this time may be their expiry after the 12th October. Failure to enter notice (in good time) of an affecting interest may permanently release the burden of the overriding interest.
It has become clearly apparent that freemen’s statutory rights, registered under the 1965 Commons Registration Act as simply ‘common rights’ were defined incorrectly. And, although this registration provided an element of protection, it did not recognise and therefore provide the ‘property’ classification of ’sole vesture’. Freemen’s personal rights to benefit from the surfaces of common lands (formerly freemen’s town lands) where a Town Act prescribed them, were in effect sanctioned by Parliament and represent a permanent right of interest.
We, the executive of FEW, believe that there is enough evidence, particularly in the recent summing up of Justice Lewison re ADM Milling Ltd v Tewkesbury Town Council and Others, March 2011, to support a legal action that may determine ‘the freemen’s rights (real property) of beneficial ownership’.
I have attempted to draw (directly) on the services of David Ainger, a particularly experienced barrister of Lincoln’s Inn, but to no avail as he has completely retired from advocacy. I made overtures to George Laurence QC, very receptive but unable to take instruction without a full brief (for insurance purposes) supplied by a solicitor. Other recommended advocates were Vivian Chapman QC and Gregory Hills both of Lincoln’s Inn.
Solicitors have been promoted: - Bates, Wells and Braithwaite – Melanie Carter who represents the Ramblers, and specialist barristers for commons, town and village greens (Commons Act 2006) “Law at 12 College Place”, Fauvelle Buildings, Southampton SO15 2FE.
My personal credentials are as an Executive Officer of the Freemen of England and Wales
Freeman of Sudbury (rights holder over common land at Sudbury)
Committee member and Trustee of Sudbury Freemen’s Association
Guildsman and Liveryman (Wor.Co. of Blacksmiths) of the City of London
Representative of the commoners and common lands in Gloucestershire to the Gloucestershire Local Access Forum (statutory body under the CRoW Act)
Hon Conservator (life) of Highleadon Green and Common, Forest of Dean
Educ. Plumpton College of Agriculture, University of Gloucestershire, UWoE.
Alan Shelley, Officer Without Portfolio, 14th June 2013
31) Current Legislation affecting Land Registration (June 2013)
The Growth and Infrastructure Act 2013
A new section 15A is inserted into the Commons Act 2006. This requires the commons registration authority to keep a register containing prescribed information about statements deposited under this section, and the maps accompanying those statements.
The authority may fulfil this duty by including information on the register kept under section 31(6) of the Highways Act 1980. Enquiry 2(e) maps and statements deposited under s31(6) of the Highways Act 1980 on CON 29.
This duty applies to the ‘Assets of Community Value’ (ACV) and the ‘Community Infrastructure Levy’ (CIL) – duties of disclosure re incumbrances or burdens. If a property is included in the ACV list and the owner wishes to dispose of it, the owner must notify the local authority in writing. Items will include Roadways, footways and footpaths, nearby traffic schemes, railway schemes, flood defence notices, risks of coastal erosion and drainage agreements and consents.
Governing legislation for the Community Infrastructure Levy (CIL) is contained in Part II of the Planning Act 2008 and CIL regulations 2010. CIL is a fixed levy on new development, its purpose is to contribute towards the cost of local infrastructure.
Land subject to certain statutory development orders or identified for development in draft local plan policies are protected from applications for registration as a town or village green. (TVGs)
The Growth and Infrastructure Act 2013 introduced provisions that end the right for TVG applications in respect of land which is subject to a planning application or subject to an application for a Development Consent Order and in respect of land identified in local and neighbourhood plans, including draft plans.
This will also cover land subject to a Local Development Order (LDO); a Neighbourhood Development Order (NDO) or a Transport and Works Act Order (TWAO).
Alan Shelley, Officer Without Portfolio, June 2013
32) The Legal Case for Freemen’s Exclusive Rights
Correct Registration under the Land Registration Act 2002
Outline Brief for Legal Assistance
An ongoing misunderstanding of freemen’s rights over traditional lands requires corrective action. Rights of exclusive access by freemen over specific lands have wrongly been classified simply as ‘rights of common’ leading to losses of beneficial ownership and to widespread injustice.
Applications to register freemen’s rights over specific lands, previously recorded under the Commons Registration Act 1965, have been rejected by HM Land Registry under the new Act for their having already been registered as commons!
Freemen’s land and property rights were in most instances, originally associated with wasteland of the manor, designated for pasture, in Charters granted by a monarch or seigniorial lord. Subsequent Town Inclosure Acts have more clearly established specific lands over which exclusive rights were to be exercised. The Town Acts were brought about to assist with the expansion and commercial development of the old boroughs. Very often an Act might indicate the extinguishments of certain grazing rights over some lands (holding back development) to be specifically compensated by greater areas of other lands – provided exclusively for the use of the freemen.
The burgesses (freemen) of the ancient borough towns and cities have been entitled to graze their animals on lands specified for their exclusive use. These lands were initially released from their manorial owners by purchase of their ferm by the freemen. They gained their personal access by local duties and taxation. Rights of pasturage were passed on maturity, from fathers to sons.
Reforms to local government under the Municipal Corporations Act 1835, determined the continuance of the (real property) rights over the then ‘protected’ freemen’s lands. Even though the land itself passed to the ‘new’ borough Councils, the rights to pasturage over the land remained as the personal property of the freemen. These traditionally inherited rights were also upheld within the various changes that took place under the Local Government Act of 1972.
The Royal Commission for Common Lands required that all common lands and their overriding rights be recorded under the Commons Registration Act 1965. Much confusion was caused among the freemen who were directed (incorrectly) to record their lands as commons with commoning rights. A freeman’s right is not strictly ‘a right of common’ in common with a landowner, as the landowner is excluded from the land. “It was in fact, an exclusive right of pasturage” (Justice Lewison 9th March 2011).
The Land Registration Act 2002, appeared to provide an opportunity for freemen to better protect their inherited rights. As this has not proved to be the case a legal counsel’s ‘opinion’ is required to overrule the deterrent and incorrect regulation currently applied by HM Registry.
At present several applications for registration (under LRA 2002) have been held in abeyance. Determinations are to be sought in the cases of Shrewsbury Quarry and the Durham Sands. An application to register freemen’s rights over certain York Strays may be supported by ‘Freemen of England & Wales’. In the case of the Strays, although there has been no rejection for prior registration an opposition by the City Council may necessitate legal support in a court action.
It is anticipated that the Freemen of York will instigate their registration by making an initial application directly to HM Registry along with a simplified valuation of the Strays in question. Court action may only be necessary if the Freemen’s Rights are not recognised.
Precedent description of Freemen’s Exclusive Rights
The recent judgement (March 2011) by Mr Justice Lewison in the case of ADM Milling v Tewkesbury Town Council and Others, has provided a suitable explanation of the exclusivity of freemen’s beneficial rights.
A proposed development/conversion of an old flourmill into a hotel on land bounding an edge of the old town ham was in very close proximity of the general public who use the grounds for recreation. The meadow had been registered as common under the Commons Registration Act 1965 (finalised Oct 1970).
An action to extinguish ‘common rights’ over the meadow-land was intended to prevent the public access automatically provided to commons under the Countryside and Rights of Way Act, 2000. If commonable rights are extinguished under a statutory provision, then public rights of access will cease.
From ancient times the burgesses (freemen) of Tewkesbury borough town had rights of exclusive pasture over the Ham at certain times of the year. These rights were confirmed in the Town Inclosure Act 1808. Mr Justice Lewison determined that such rights should not be confused with common or commonable rights, and that these particular rights are exclusive, statutory rights ‘of sole vesture’. Nobody but the inheritors (descendants of the burgesses) can enjoy these beneficial rights.
For a full explanation and more detailed study of this case please refer to my Viewpoint Paper No 14 in the FEW Website ‘Defining Freemen’s Rights over Lands’ (Statutory Right of Sole Vesture) by A.S.dated 10th April 2011.
This Outline Brief is produced for discussion and possibly for advising a solicitor to instigate legal action.
Alan Shelley, Officer Without Portfolio, 17th June 2013
33) A Freeman’s ‘Modern’ Apprenticeship
Admission to Freedom by Servitude
For a formal apprenticeship leading to a suitable qualification there are several facets to be contemplated. Firstly there are the National Occupational Standards (NOS). These standards describe what people do in their field of work. They include a range of tasks and the required performance along with the underlying knowledge needed to support the task.
Standards are specified by each industry and supported by Government sponsored organisations known as the Sector Skills Councils (SSC’s). For example, LANTRA covers Land based industries, SEMTA for engineering, manufacture, science, ‘Constructive Skills’ for construction and ‘Creative & Cultural Skills’ (CCS) covering craft, design, cultural heritage etc.
The ‘Skills Funding Agency’, who have offices at Coventry, will consider applications made through the ‘Head of Sectors’. A functional map, detailing the NOS accredited units, will be required to be drawn up (spread sheet) that will be acceptable to the examining authorities (Skills Council and Funding Agency).
The awarding bodies typically are Edexel for B.Tech and City and Guilds to cover most craft activities. An ‘Apprenticeship Certificate’ would be awarded for people who finally qualify by study, training and assessment at NVQ Level 3 or equivalent. The certificate would provide the instrument of completion of a modern apprenticeship. This along with a satisfactory character assessment and the Guild Master’s recommendation can provide the means to elevate the apprentice into the borough’s freedom.
In order to meet the customary requirements of the Master/Apprentice relationship of the past, it seems to me, Guild Master (or Chairman in the case of a Freemen’s Society) could take the role of craft master for the duration of an apprentice’s term, even though it may extend beyond the Guild Masters term of office. A suitably vetted applicant would be signed up for an apprenticeship of a given period. A suitable scheme can be clearly planned on a spread-sheet indicating the stages of improvement/examination up to say NVQ Level 3 accompanied by say a City & Guilds qualification in their chosen craft. The apprentice would by necessity need to be assessed by a recognised ‘Skills’ authority.
It is unlikely that a Guild Master would be required to be patron of more than say three apprentices during their time of office and it is not envisaged that the responsibility would be anything other than an honourable role that each master could look back on with some pride and personal connection to the ‘new’ freeman eventually admitted into the guild.
Alan Shelley, Officer Without Portfolio, 1st August 2013
In effect the Guild Master simply endorses the external apprenticeship
NB.- For detailed apprenticeships and ‘new/current qualifications’ look up www.apprenticeships.org.uk
34) The Correction of Freemen’s Registered Rights
Commons Act 2006 updating Commons Registration Act 1965
Freemen throughout England and Wales may reflect upon that distant period when between 1965 and 1971 undue pressure from Government forced decisions to be made. Quite rightly at that time, there had been a need for registration to protect vast areas of commons and wastelands under pressure for commercial development and new housing.
For the many subsequent years since that period of registration there has been no allowance to rectify or change the recorded entries (pressurised) under the 1965 Act. Freemen’s beneficial rights were wrongly categorised in the same way as those agrarian users who had traditionally ‘commoned’ lands by custom.
Alan Fallows (immediate past President) and myself have been investigating the possibilities of applying the more recent Commons Act 2006 (intended to correct prior anomalies) to bring a case for the ‘exclusive identity of Freemen’s rights’. We have been too late to bring this under the Land Registration Act 2002, which closed 13th October 2013 just passed. However, the former registration of ‘common rights’ could possibly be reconsidered and strengthened in law.
If there are financial benefits to be gained from changes that provide an income, then it seems to me that these must be of a charitable nature and any distributions be dealt with by formal Trustees. There are many of us that would be pleased to see formal recognition of freemen’s ‘ownership’ and this can be achieved by an accompaniment of descriptive notices (a suitable plaque) where such lands/properties exist.
These issues may not provide any great financial advantages but will contribute towards our wishes to maintain the Freedom of England and Wales – ‘Long may it Flourish’.
Patience will be required regarding the ambiguities of the Commons Act 2006, presently postponed. We should pursue the legal recognition of the unique nature of freemen’s rights. These rights were never simply customary but wherever so, directed by a Town Act, they are the exclusive property of freemen.
Alan Shelley, Officer Without Portfolio, 14th October 2013
35) A Modern Approach to Freedom
Borough Freemen of England and Wales
In a changing society where many old traditions and practices have become a hindrance and thought of as ‘old fashioned’ we will need to reconsider the meaning of freemen and their association with ‘Freedom’. Firstly people will ask, “What is a freeman”? This term developed during the 12th century to define those citizens otherwise known as burgesses, the occupants of burgages (properties of the borough) who participated in the governance of the town. They had the civic ‘freedom’ of a town and were entitled to full political and civil rights. The leading freemen were called ‘portmen’ indicating their control over specific markets.
How should we view someone calling themselves a freeman today? This normally would be a person with close connections to a particular town or city, usually by birth or ancestry. They will have been admitted to the freedom of a town having met certain criteria and will have sworn a traditional oath of allegiance. Normally a freeman, either male or female, can be regarded as a respected person of innate integrity with a patriotic sense of responsibility particularly toward their home community.
In the past, a freeman would be required to carry out duties and specific responsibilities that assisted in the upkeep of their town. Over the years customs and traditions have varied from town to town and freemen today in some places, may inherit certain rights that may exclusively allow access to particular properties, lands or events otherwise precluded from non-freemen. In today’s society, elected politicians and councils govern towns and cities with paid staff specialising in the many civic requirements to run a municipal organisation.
Freedom may be regarded as a system that grew on the actions of the past and formulated the many principles upon which our national crafts, trades and commercial enterprises made Britain Great. If we are to enhance the freedom today and to prevent it from diminishing to become simply a thing of the past, we will need to modernise our approach to the honourable distinction that we call the ‘Freedom’. Our Association of ‘Freemen of England and Wales’ is in a position to recommend ‘for consideration’ some suggestions.
A method of increasing admission to freedom by the application of a new type of apprenticeship scheme has already been proposed. Such admissions could be made available to applicants who have completed an apprenticeship in a town but were born in another area not previously permitting them to make applications for freedom. New forms of apprenticeship and terms of training can also be considered. This would of course remain subject to the applicant’s suitability for admission to Freedom. It has also been suggested that consideration might be given to the recognition of some form of ‘journeyman’ rank that can be applied to a freeman moving from one town to the regions of another town or city.
The take up of Freedom by conventional (traditional) methods has diminished over the years and public awareness of the ‘Freedom’ is steadily declining. A revised approach to our past rigid customs may rekindle an interest that could well benefit our modern society.
Alan Shelley, Officer Without Portfolio, October 2013
See my papers ‘The Function of the Freemen Today’ Jan.2011 and ‘The Fraternal Gown’ Jan.2012
36) The Ownership of Freemen’s Land
An Analysis of Town Lands
Freemen are jealously proud of their ancient inherited property. Politicians and their lawyers from time to time bring lands once commonly known as belonging to Freemen into question. The argument over ownership has been a bone of contention for many years dating back to 1835. It is a sensitive subject that can cause confusion and frustration among freemen in towns throughout England and Wales
The question arises over who actually ‘owns’ the land. Land and property privileges, the subjects of royal or seigniorial charters, anciently granted to the ‘Freemen’ (or burgesses) of a town have met with several statutory changes over the years. Councils and Freemen each claim ownership and where the Charity Commissioners have created ‘perpetual charities’ then the Trustees will claim the freehold.
Following the reforms that took place under the directions of the Municipal Corporations Act, 1835, property in general passed from the old Corporations to the newly formed, elected Councils. However, the Act protected any personal rights and properties of individual freemen and citizens. This was to ensure that they would not suffer personally from the reform of local government and could continue to enjoy any such previously held privileges. Along with these privileges was, in the majority of the towns in those days, the right to graze certain town pastures (often referred to as the Freemen’s land).
The result of the actions under the Municipal Corporations Act was that in the majority of cases (nearly all) the land has remained the ‘freehold’ of the Council while the surfaces (grass or herbage) of the pastures were determined to remain in the ‘ownership’ of the Freemen. Without doubt this is a case of dual ownership. The joint responsibility for these lands means that each carries equal authority with regard to any sale, modification or development of these lands.
Town and city councils throughout the Country have been frustrated by the burden of ‘freemen’s rights’ that they regarded as a hindrance to the developments of housing and recreation for the town. In the many years since the passing of the 1835 Act, a great number of town councils have successfully bought out freemen’s rights and thereafter becoming the sole owners of these lands which have then been disposed of in various ways. This has also been a contributory factor in the disbanding of town guilds and freemen’s associations in many towns.
With the considerable value of the town pastures and particularly with their close proximity this has meant that councils, over the years, have sought legal counsel ‘opinions’ in an attempt to claim the outright ‘ownership’ of these lands. The confusion has been with the council’s coming to terms with the knowledge that they own the freehold of the lands, but that their ‘possession’ is legally with the freemen. Likewise, the Freemen having, in their possession or at least in their understanding, a sovereign’s charter that gave the land to the freemen of their town, perhaps “for ever” find it difficult to accept that this was subsequently repealed. The several Charities Acts have been instrumental in preventing any return to undemocratic monopoly. Trustees today govern most of the Freemen’s properties, with heed to the Charity Commissioners.
The many 19th and 20th century ‘Town Acts’ passed by Parliament were introduced to assist enclosure and the development of the towns. These will in most cases mention specifically the lands and property with conditions given to freemen. In so doing this has provided formal protection that can safeguard any legal attempts to remove these statutory rights (the hereditary property of the freemen).
Subsequent registration of land and freemen’s grazing rights, recorded under the Commons Registration Act, 1965, if recorded correctly will provide protection of such rights. The issue regarding ‘ownership’ is particularly one of freemen’s hereditary successions. Town pasturelands today are valuable, often scenic areas that provide open recreation for the town and general public. Conflict between the Freemen and York City Council came to a head in 1985 when the City Council introduced a private ‘York City Bill’ to provide themselves with greater powers over the management of the several ‘Strays’.
At the House of Lords, Select Committee, the Earl of Halsbury, of the eminent legal family, referred to the Enclosures Acts of the 18th century proceedings through to the 19th century. “Inhabitants of freeholds – ancient messuages in the City of York and rights associated with these buildings – Two key points- the ancient messuages can no longer be identified, no freeman can point to his house associated with the awards passed under the Enclosures Acts. Also rights under these trusts are not being exercised. No one in fact is pasturing his or her beasts on any of these strays any longer. No freeman can say on oath – I am exercising my grazing rights and have been doing so for years past as my father did before me and I am a freeman resident in an ancient messuage in such and such ward.
These comments were enough for the House of Lords to pass the Bill (in favour of the City Council) which later was thrown out by the Commons. It is as well that the Freemen should be very cautious when assuming that their case for absolute rights is seen in the modern context. It is difficult to counter such arguments in today’s circumstances. I myself had great difficulties coming to terms that the Sudbury Common lands were no longer ‘owned’ by the Freemen. When the ‘Freemen’s Lands’ were put in trust, it was for “the benefit of the Freemen”. Charity law will not allow such a monopoly and have subsequently changed this to “for the benefit of the town”. The Sudbury Common Lands trustees (typically) are made up of Town Councillors, Freemen, and members of local society. Ownership (freehold) is now in the hands of the Charity Trust.
Those who proudly recognise their ancestral connections and exclusively retain freemen’s hereditary rights (not for money) hold them in a symbolic and honoured way.
The context of ‘ownership’ may require reconsideration. Freemen’s lands are invariably in dual ownership owned jointly with the local authority. Town-land meadows in the past were an essential asset of the freemen to sustain their cattle and horses. This is no longer the case and the proximity to an ancient burgage has no relevance in today’s society.
The newly elected Councils were entitled under the Municipal Corporations Act, 1835, to the freehold of lands and buildings the former property of the old Corporations. Freemen with legal rights (not simply customary) are exclusively entitled to the beneficial property over the surfaces of the aforesaid lands. Freemen therefore have the lawful ‘possession’ of the land.
Freemen should not simply rely on custom or gift of an ancient charter. Where there is a town Act, passed by Parliament, usually for the purpose of enclosure, that mention the allocation of freemen’s rights or use (for specific purposes) then the legal ownership over the land surfaces will have statutory foundations. These will usually be personal rights held “in gross” and in law recognised (not simply as common rights) exclusively as “sole vesture” to the Freemen.
Many of the newly formed Councils after the 1835 Act bought out the freemen’s rights and these are unlikely to be recoverable. We can gain a clearer understanding of the ownership issues and of the current circumstances affecting the following example towns and cities:
Freemen’s Property in England & Wales
Alnwick The Freemen’s Estate of 3,500 acres comprises An Outer Moor and an Inner Moor. The Council employs land agents. Clearly there is a dual arrangement between the Council and the Freemen.
Berwick-upon-Tweed Corporation Act 1843 – established the Resident Freemen’s rights in the property vested in the Borough.
The M.C. Act 1835 – The lands with all other property would have been vested in the newly elected Council. Freemen have governance over the beneficial properties within their rights.
Meadows – cannot be sold or leased except by or on behalf of the freemen. Income is charitably shared (after expenses) with the Borough. Attempts by the Council to buy out the Freemen’s interests have been resisted by legal defences. A Private Act of Parliament similar to that promoted by York Council was dropped. Freemen’s protection is in accord with a co-operative arrangement between the Freemen’s Guild and the Council.
Beverley 1836 Pasture Act places around 1200 acres of commons under the control of 12 pasture masters, elected annually from the Freemen.
Carlisle Freemen have property rights with part title to use 4 rooms in the Guildhall (Redness Hall).
Chester Following the Municipal Corporations Act 1835, freemen’s property was transferred into the Municipal Charities of Chester, authorised by Charity Commissioners.
Colchester Rents (Divi’s) are derived from common lands and distributed via a charitable Trust. An 1870 Select Committee Return stated ‘rents’ brought in £400 p.a. In 1976 income from the Freemen’s Charity of £284 was paying £2 per freeman.
Coventry Trustees manage income from two Inclosure awards and the combined income of various charities that have been brought together.
Derby Following the 1835 Act, the common lands were enclosed with some land sold to the Railway, the proceeds were invested (held by Trustees) and a half yearly dividend is paid to resident freemen.
Doncaster The Low Pasture (550 acres) rights extinguished and compensated by payment and the Crimpsal Stray was sold to the Railway in 1840 dividends from Trustees were paid to resident freemen (in 1973 only 3 resident freemen were remaining to collect payment).
Durham Freemen are Trustees with representatives of the Council over land that is now public recreation.
Gloucester The Gloucester Corporation Act 1894 extinguished freemen’s rights and compensatory money was invested into the Gloucester Charities Trust that includes representatives of the Council and the Freemen.
Great Grimsby Freemen receive dividends twice yearly from a ‘Pastures Roll’ on rents received in respect of land vested in the Freemen.
Haverfordwest Under the Portfield Inclosure Act 1838, of 600 acres, 251 acres were allotted to trustees (in lieu of grazing rights) ‘for the benefit of the Freemen’ and a dividend from lettings is distributed each year to each freeman.
Leicester Freemen’s lands were acquired by the City Council and compensatory payments invested. Freemen’s rights were secured by Leicester Freemen’s Acts of 1845, 1898 and 1922. A ‘Board of Deputies’ now administer an estate of 35 bungalows at “Freemen’s Holt” awarded to freemen rent-free as a charitable trust for needy resident freemen and widows.
Lincoln Rights over certain commons were extinguished by the 1851 Railways act, Lincoln City Commons Act 1870, and the 1915 Lincoln Corporation Act – compensation from sale proceeds were invested into the Lincoln Senior Freemen’s Fund and the Freemen’s Charity Fund. Payments by seniority are paid to resident freemen and widows.
Llantrisant The freemen have grazing rights over 284 acres of Burgess Lands that are administered by Town Trust 1883 set up by the Charity Commission.
Malmesbury The old Corporation resisted the initial reforms of the 1835 Act by arguing that they were directed by royal charter and were not a regular municipal organisation. A local Enclosure Act in 1821 divided Malmesbury Common into about 280 allotments of a little over an acre each. These allotments are governed by a charitable Trust and income is distributed to freemen and to local good causes. The freemen today style themselves ‘The Old Corporation of the Warden and Freemen of Malmesbury. They were eventually brought under the general reforms by the Malmesbury Borough Act 1883 that ensured the civic authority was with the elected Council and that local government was in line with all other boroughs. The freemen’s ownership of property is through ‘possession’ of their personal rights.
Montgomery Around 90 acres of ‘Flos Lands’ are vested in Trustees under a legal scheme, - provides a net income distributed to resident freemen.
Newcastle-under-Lyme Local Act 1859 Proceeds net of the sale of 214 acres of commons invested. The Newcastle Burgess Act 1967 extended the powers of investment.
Newcastle-upon-Tyne Freemen’s rights have been secured under the Town Moor Act 1988, which updated several past Acts to ensure the freemen’s legal entitlement over the land surfaces.
Northampton The Northampton Corporation Act 1882, provided income from surrendered rights through a ‘perpetual charity. This was ceased in exchange for a lump capital sum of £10,000 under the Northampton Act 1988.
Norwich A committee of 8 Freemen Trustees and 14 Consolidated Charities Trustees manages The 80 acre Town Close Estate. A distribution of income includes freemen’s pensions and children’s education.
Oxford The Freemen of the City of Oxford have grazing rights over Port Meadow of 300 acres it is not clear if they receive any distribution income. The land is the freehold of the City Council who also manages the grounds. A small pension for aged freemen and widows is paid from invested compensation money from the sale of land to the Railway in 1850.
Shrewsbury Burgesses had stinted grazing rights, recognised by the 1835 Act, but these have subsequently lapsed and are subject to further investigation.
Stafford Historically the Free Burgesses have held rights to “Acre” allotments in once a 70 acre area known as the Coton Field. In 1830 the Corporation occupied the ‘Coton Field’ a part of the estate of Earl Talbot the Lord of the Manor of Coton. In 1836 the Corporation drew up formal regulations as Trustees (no one to hold more than one plot). A dispute led to an enquiry in 1874 through Chancery that recognised that the land was the property of the Corporation under an earlier decree. An Enclosure Act 1880 extinguished burgesses rights over various lands and further regulated the Coton field letting with preference being given to senior Freemen and entitling the retention of an allotment for life. The free burgesses were able to gather more lands and by 1976 this amalgamated to 200 acres to be called ‘Stafford Common’.
Stamford Freemen have rights over 33 acres of meadow and a right to place a stall on the market.
Sudbury Freemen anciently inherited grazing rights to the wastelands and over stubble of arable lands throughout the borough. The Sudbury Lands (enclosure) Act 1838 was introduced to extinguish the freemen’s burdensome rights in order to allow development of the Town. Allocation of lands in compensation increased the sole grazing lands exclusively the ‘Freemen’s Lands’. An 1897 Scheme was set up to form the Sudbury Common Lands Charity, the Trustees made up of Freemen and Councillors managed the lands ‘on behalf of the Freemen’. In 1987 the scheme was revised, by direction of the Charity Commission, and the distribution of income from letting grazing rights (sold annually) and the proceeds are distributed to benefit elderly, needy freemen and for local good causes.
York Until the 1840s the four municipal wards each with their own ‘Stray’ each managed the exclusive grazing rights of the ward freemen. A local York Enclosure Act 1907 took control of the Micklegate Strays and compensated the freemen with £1,000 annually before in 1930 commuting this to a lump sum of £33,333. The other three strays came under the control of the corporation by mutual agreement in 1947, 1948 and 1958, the City Council agreed to maintain the strays for the benefit of the freemen and to make a small annual payment to the Ward Freemen. This agreement was subsequently found to be “ultra vires” so the corporation ceased to make the payment and have refused to return the strays. An attempt by the Council to take complete control over the strays, through the York City Council Bill introduced 1985/86 failed. The City Council continue to manage the lands while refusing to have any meaningful dialogue with the Freemen’s Strays Council.
Many of the old borough freemen in towns throughout England and Wales may have done little to resist the changes that left them deprived of their personal property rights. It is most probable that a large majority of the civic-minded members of the old corporations simply transferred to become elected councillors. In such cases they probably were more able to hang on to some of their old privileges and traditions. In towns where the freemen were persuaded to sell off their privileges it is unlikely that their rights could be re-established. Freemen elsewhere that, even today, do little to protect their rights may regret their lack of actions. The dual ownership that clearly exists suggests that the best course of future actions should be carefully delivered in a harmonious and professional partnership between Freemen and Council or Charity Trust Committee when they apply.
Alan Shelley, Officer Without Portfolio, Freeman of Sudbury, October 2013
37) The Dilemma
Registration of the Freemen’s Lands under the Commons Registration Act 1965
Town lands were not Commonable!
The unique nature of traditional historic freemen’s lands posed a huge problem when town councils were required to register “all commons”.
Pasturage lands acquired/inherited by the freemen of many towns and cities in England and Wales were transferred into the ‘ownership’ of newly elected councils following the Municipal Corporations Act of 1835. The rights to graze those lands remained ‘exclusively’ with the freemen. Control over these lands became a joint cooperative partnership.
In some places ‘Pasture Masters’ elected by the freemen’s bodies, were appointed to manage grazing of the lands. In many towns, the council’s reached agreement by payment of compensation, to extinguish the grazing rights (for ever). Such payments were used either to purchase new land or as in the majority of cases, charitably invested into stocks and shares.
When posed with the requirements of the 1965 Act to register all common lands and any rights applying, the freemen were faced with a dilemma – “Would unregistered rights be unprotected? And “Could unregistered land become vulnerable to undesirable developments? Under such duress most freemen’s lands were registered under the 1965 Act.
Government in 1978 set up a ‘Common Lands Forum’, to assess the outcomes of the CRA 1965. The “Freemen of England” arranged a meeting in February 1979 at which representatives of the freemen of York, Newcastle, Oxford (Ernest Crapper) and Sudbury (Allan Berry).
They met with representatives of the Department of the Environment, the National Association of Local Councils and the Commons Preservation Society. Chairing the meeting Harry Ward, as President of the Freemen of England, explained that freemen had not expected freemen’s lands to be regarded as commons by the Royal Commission when making their enquiries.
The City of London had secured the exclusion of Epping Forest from registration. Freemen pressed for their lands to be excluded from legislation, quoting examples of the errors, conflicts and confusion caused by the failure of the Commons Registration Act to make proper provision for freemen’s lands.
References were made to difficulties, problems and inconsistencies arising at Berwick, Haverfordwest, Stamford, Beverley and possibly at Godmanchester, Huntingdon and Newport. Concern was expressed over the effects on Local Acts. Mr Paul Clayden of the Commons Preservation Society said that freemen have a good case for removing their lands from the Commons Register. They would have had a good case for not registering since their rights are not strictly common rights. The National Association of Local Councils regarded the policy as being one towards preservation rather than development. The Department for the Environment indicated that they understood and would consider the freemen’s difficulties!!
The Act of Registration of 1965 was an undesirable event and the exclusivity of the freemen’s rights was not fully appreciated. However, subsequent legislation, including the Countryside and Rights of Way Act 2000, The Registration Act 2002, the Charities Act 2006 and the Commons Act 2006 all have elements of repeal and reform. Had freemen’s rights not been registered under the 1965 Act, it is highly probable that much more could have been lost. The new Charities Act repealed any prescriptive rights, the charters of which are no longer recognised in law. It was commons registration that prevented encroachment of a new highway over a part of Sudbury’s land.
Many aspects of the 1965 Registration Act are unsatisfactory and the recordings (rather than proper registrations) remain weak from protection in law. Nevertheless, and accepting the dilemma, the ‘registered’ freemen have some ‘recognition of their rights’ which otherwise may have been lost through a lack of any protection. It appears to be unlikely that any better protection can be sought under the present administration of the Registration Act 2002.
NB It also seems unlikely that any freemen’s rights attached to unregistered land could be protected. Rights over lands, while real property, cannot imply full ownership or any complete control in a current assessment of the law.
Lands vested into Charitable Trusts (acting on behalf of freemen’s bodies) should have been excluded from registration. But I guess that is too late now to retract.
Alan Shelley, Officer Without Portfolio, February 2015
38) Camping on Borough Registered Common Lands
Travellers Impeding Public Access
For many decades it has been illegal to camp on borough commons and town greens. This was highlighted by the CRoW Act 2000, (under which the general public were given open access), and further endorsed by the Commons Act, 2006. The public have a legal right to full access for quiet, peaceful recreation.
Camping on a common or green is not an acceptable pastime and can prevent people from recreational exercise. Section 29 of the Commons Act 1876, (protection clause), prevents any enclosure, encroachment or erection on a common or green. It also protects the surfaces from being damaged. The landowner/proprietor has powers in common law to remove a trespasser .In this event a traveller is a trespasser and a nuisance in the law of Tort.
The CRoW Act 2000 section 17 requires the ‘preservation of order, prevention of damage and the avoidance of interference with the enjoyment of recreation by others’. Section 2 of schedule 2 expresses that “a person [undesignated] is not entitled to drive or ride any vehicle other than an invalid carriage on the common”. It also clearly states that there be “no engagement in camping”.
Section 77 of the Criminal Justice and Public Order Act 1994 provides bylaws to remove unauthorised campers. The Landowner/proprietor would need to pursue possession proceedings. The District Council has powers to act under section 23 of the Caravan Sites and Control of Development Act 1960.
In cases where common land has no registered owner, Section 45 of the Commons Act 2006 provides for the local authority to take any necessary steps – to protect the land against unlawful interference and institute proceedings against any person for any offence committed in respect of the land.
A town/parish council managing a green will have powers under the Open Spaces Act 1906 to maintain bylaws and to prosecute for interference with peoples rights. The Commons Act 2006 section 45, (where leadership is in doubt), confers a duty of care onto the District Council who is then required to take the necessary action.
Council must liase with the travellers and show that they are on land without consent and make enquiries regarding general health, welfare and children’s education. They must ensure that the Human Rights Act 1998 has been fully complied with. The Council are required to follow a set procedure in terms of proving ownership of the land, details of the illegal encampment, service of notices and summonses that will enable them to successfully obtain the necessary authority from the courts to order the Travellers to leave.
The Government says “There are sufficient powers for local authorities and the police to take action; Ministers have already reminded local councils of the need to act swiftly to stop unauthorised encampments being created”. Human rights are not gold plated and councils and the police have strong powers.
Section 61 of the Criminal Justice and Public Order Act 1994 provides ‘An extra provision’ that specifically covers registered common land and states that if a group of travellers attempt to stay on common land, then any person who has a right over the land can request police help if the conditions in section 61 are fulfilled. NB There is no ‘permission’ for travellers on commons.
Alan Shelley, Officer Without Portfolio, Freeman Commoner of Sudbury, Representing Freemen and Commoners, January 2016
39) The Privilege of Freedom
The civilization of Rome is known for its tradition of freedom. However, it was the Nordic influence of the Anglo-Saxon ‘Folkright’ that formed the culture of the English nation. Customary law based on kinship and inherited rights were principled on liberties, duties and obligations. Rights were determined by allowances and any deviance, losses or injuries were dealt with by compensation.
Folkright was the ancient common law of the people ‘the public right’. Every freeman ceorl enjoyed folkright. It is written into the coded laws of Alfred that established the laws of Ine and Offa c893. Alfred’s son Edward the Elder c920 is known to have commanded “All reeves must not neglect the customary folcrygt”. The importance of the Folkright was that families and communities were responsible for each other. Kings would normally swear, (at their coronation), to uphold the Folkright. Even William the Norman Conqueror swore to uphold this national tradition (folkryhtrebote). Of course the feudal system eroded folkright until it was eventually liberated by the actions leading to Magna Carta.
Rightfully held land was communally farmed under the customary sub-law of folkland. The remnants of those customs remain with our common lands of today. Estovers and botes are terms from folkright allowances still being applied to commons. Other parts of folkright continue in our observances of copyright and freedoms of the boroughs. Associated with Folkright is Frith, (or free), the Old English meaning of friendship, peace and protected freedom. Frankpledge came from the frith-borh or peace-pledge a system of surety during the Early Middle Ages. This again is an example of the basis of sharing responsibility through communal kinship. The tything of ten men, the examination of whom is a “view of frankpledge”.
The Folkright was discerned at folkmoots, (predecessors of our gild and town halls). Territory was represented in household ‘hides’ and ‘hundreds’. The shires were later formed by Cnud, (Canute), incidentally one of our most just and subsequently peaceful monarchs. Government was by the witan or in the Danelaw in wapentakes and by the things. Typically households were in hamlets surrounding larger central village tuns that would become fortified burghs, (and later borough towns). Or within the Danelaw the fortified villages were bors fortified in almost precisely the same way as the Anglo-Saxon burhs.
Danish common law even today is based on their customary freedoms. The duties and obligations included responsibilities to their leader earl or ealdorman and would include military service to the fyrd, (army). Personal liberties were by rights and inheritances and held great importance. Our English Common law was founded on customary practises, written up and modified by statute. The methods of compensation at one time applied to most deviations from the law. A wergeld fine applied a value on a man’s death manbote or damage to limbs or property. Today any damage or removal of common lands must be compensated for and this is one of the few remains from the ancient law of folkland.
In conclusion, it was the Nordic influence of rightful liberties that can still be seen within our English traditions. Privilege of Freedom – The customary rights of the Freemen of England & Wales remains their prerogative.
Alan Shelley, Officer Without Portfolio, January 2016
40) Freemen of the Borough
The early boroughs were small towns that had expanded from the 9th and 10th century defensive forts constructed against Viking attacks. As they became enlarged as safe havens to a local populace they would develop markets, tradesmen/craftsmen and a mint and became in effect independent lordships. The denizens had certain rights and civic duties within the feudal system. As individuals they were generally ‘free’ of manorial obligations. In fact they could exercise what were effectually the manorial rights of a ‘lord’.
The early members of a borough or burh were the burgesses, (burh members), who were ‘freemen’ that dispensed the local justice. The customary law developed from the early Anglo-Saxon procedure of the frið-borh. This was the ‘peace-oath’, which required all freemen, (members of the society), to pledge by oath to uphold the peace of the realm. They did this by binding each other in mutual cognisance, usually in an assembly of a tenth part, a tything of a hundred, (subdivision of a shire with a taxable value of a hundred hides). This procedure prefigured in King Alfred’s law codes by arrangement of the gegilden, (that eventually became the tenth century frith guilds).
Gegilden was an Anglo-Saxon word meaning ‘to pay’ the guilds set up to regulate standards. It also has the narrower meaning of illegal distraint. Gegilda = membership of the gild. This word is found in the code laws of Kings’ Ine and Alfred. Gegilden members together pay the wergeld [the value placed on every human being and piece of property]. The wergeld was applied to value compensation to be paid when a man was killed.
Frith guilds (gilds) of the tenth century = frith a word meaning peace, (freedom). (Friðu = Scandinavian fred or frid). Fred = state of no war and frid was a state of no disturbance. Frid-silver was a term applied in the Middle Ages for feudal payments. Frith was also used as an expression of fealty, (relationship between a lord and his people). We can see that the term ‘frith’ in Old English had the meaning of ‘friend and free’. The frith guilds became religious gatherings that would lead to the more specialist ‘craft and trades guilds’ of more modern times.
Christianity, Danelaw and the Burghal System
In the period we call the ‘dark-ages’, after 407 AD when the Roman soldiers had left Britain, Christianity was initially fairly widespread. The subsequent influence by the influx of Angles, Saxons and Jutes over the next century or so meant that Christianity gave way to Paganism. The Augustine mission in 597 from Rome to King Æthelbert of Kent set the re-emergence of Christianity on a large scale. King Edwin of Northumbria was baptised in 627 but only a relatively short while later in 632 he was killed in battle at Hatfield and the kingdom reverted to paganism. However there were isolated, deeply religious communities such as at the Lindisfarne Priory, which was targeted for its wealth and sacked by Vikings in 793.
A further sacking of Lindisfarne by the Vikings in 871 marked a concerted attack and plundering of the churches and monasteries. Spasmodic raids eventually developed into large-scale Viking invasions.
In 865 after many coastal attacks by Viking parties, England saw the first Viking settlers. Danish brothers Halfdan Ragnarsson and Ivor the Boneless spent winter in East Anglia and within five years had taken over Northumbria and all of East Anglia. They took Nottingham from Mercia in return for leaving Mercia in peace. Even so, by the end of 874 they had taken command of all of Mercia.
The Danish leader Guthrum invaded Wessex in 876 but was later forced back into Mercia. When he unsuccessfully attacked again, (battle of Edington in 878), he was forced to come to terms with King Alfred. The “Treaty of Alfred and Guthrum”, 888, agreed a settlement defining boundaries of their kingdoms. It was also agreed that the whole country should be Christian and that Guthrum would be baptised and adopt the Christian faith. Guthrum was then christened Æthelstan, King of the Danes in the Danelaw, he died c 890.
England was made up of seven major Anglo-Saxon regions known later as ‘the Heptachy’ comprising the seven kingdoms of East Anglia, Essex, Kent, Mercia, Northumbria, Sussex and Wessex. Each kingdom had an army and they each had their own rules, customs and traditions.
The Danelaw is the historical name given to the areas of England subject to Danish rather than Mercian or West Saxon law. In 876 part of a great army of the Danish Vikings settled to become farmers. This was followed similarly in 885 by another great invasion of settlers. The ‘Treaty of Alfred and Guthrum in 888 clearly defined territories. Danelaw amounted to cover approximately 15 counties including Yorkshire, the ‘Five Boroughs’ of Leicester, Nottingham, Derby, Stamford and Lincoln. It included Essex, East Anglia, (Cambridgeshire, Suffolk and Norfolk), and the East Midlands, (Northamptonshire, Huntingdonshire, Bedfordshire, Hertfordshire, Middlesex and Buckinghamshire). In total the area amounted to more than a third of all England.
It was recognised that the Danish areas had distinctive customary laws that differed from those of the West Saxons and Mercian laws in the west. In the Danish areas the language changed for the assessment of military service and taxation. The common measures, the Hundred, hide and virgate of the south and west became the Wapentake, carucute and bovate of the north and west.
The peasant classes appear to have had much greater liberty in the areas under the Danelaw. Not only were there more , (a class of personally free peasant attached to a lord rather than to the land), and liberi hominess than elsewhere, but there were also fewer bondari, cotteri and slaves in the Danelaw. In other ways much of the legal system and concepts were the same as that in the English territories. Danelaw continued to appear within legislation until as late as the twelfth century with the Henrici Prime.
Freemen met at the ‘Thing’, (Viking assembly), in the open air to settle problems, land settlements, animals and the punishment of crimes. Revenge could lead to ‘blood money’. Weregild or wergeld was a value placed on every human being and every piece of property – criminal guilt would be met by restitution payment of wergeld to the victim’s family. Alternatively blood revenge was a life for a life. Viking laws and customs had been passed down generations by word of mouth. Family loyalty was paramount. Women were important - a wife would keep the family valuables, run the home and the farm when a husband was trading or fighting.
Danegeld was the Danish taxation paid as a tribute to Viking raiders to save land and property from being ravaged. It was also a stipendiary to the defensive forces. A payment of 10,000 Roman pounds, (in silver), was made in 991 following the Viking victory at the Battle of Maldon.
In the Danelaw people spoke the same and lived much the same as in Scandinavia. Danish and English terms were interchangeable. The languages of Old East Norse and Old English were mutually comprehensive. The Danish place names ending howe refer to village and those ending thorp mean hamlet. Names ending ‘by’ such as Kirby or Kirkby are typically of Norse origin.
Danish influence over England later continued under the Danish Kings of England, with Sweyn Forkbeard from 1013 to 1014, the son of Harold Bluetooth King of Denmark whom he succeeded around 986. Sweyn successfully invaded England and wrested the kingdom from Ethelred II. Followed by Canute the Great 1016-1035, younger son of Sweyn who was chosen king by the Danish fleet on Sweyn’s death. At first he secured Mercia and the ‘Danelaw’ and was crowned Jan. 1017. In 1019, on the death of his brother he also became King of Denmark, (his ‘North Sea Empire’ included Norway and part of Sweden). His sons Harold and Hardicanute ruled England in turn, until 1042 when the throne reverted to the English monarch Edward the Confessor. A strong Danish influence remained well beyond the Norman Conquest.
The English Burghal (Borough) System
The burghality really began under Edward the Elder, (King Alfred’s son), and his sister Æthelfræd ‘the Lady of the Mercians’ as they regained the Danish territories in a series of campaigns in the 910s when some of the Danish Jarls, who submitted, were allowed to retain rule over specific lands. Viking rule virtually ended when Eric Bloodaxe was driven from Northumbria in 954.
Small towns, termed burhs or burghs, (boroughs), were fortified to defend the populations that surrounded them. The earliest uses of the word burgagium refer to the rights of the borough in general. In the mid-twelfth century the term was used as a reference to a tenement. The ‘Burghal Hidage’ was a military list of the burghs. Many burghs, (civil defences), were eventually founded amounting to more than 610 and stretching well after the Norman Conquest and into the 13th century. Occupants of the burgages were the burgesses that we now call the borough ‘Freemen’.
The Anglo/Danish Boroughs and the Feudal System
The initial 36 burghs of the Wessex ‘Burghal Hide’ quickly grew in numbers to meet the central defences required for military purposes under the feudal system. The Domesday Book usefully uses the terms borough or port to clearly determine the burghality. Likewise the Anglo-Saxon Chronicles provide detail where required. A small number of burhs referred to in the Chronicles will refer to temporary places of refuge as forts, (never reaching borough status), in times of trouble. Where ‘port’ is mentioned this is more indicative of a market town. Other expressions include burgus, burgagium and burgensis.
In Athelstan’s, (924-939), Laws there is clear information of particular towns, their inhabitants, rights and dues. They recognise the new class of inhabitant in a community of burgesses and townsmen. In Anglo-Saxon society each person had his or her place and social status. The Danish Vikings had two attributes, skill in attacking and the building of fortifications, (each for employment as a centre), and that they were born traders who extended their commerce over much of Europe. The line between trading and piracy, (opportunism), was a narrow one.
Edward the Elder’s burghs were typically created on a large area, (20 acres plus), enclosed with a ditch, an earthen rampart and a stockade, normally cut by four gates. Danish centres created, or recreate for Guthrum, included Norwich, Colchester, Ipswich, London and probably Thetford.
After the Norman Conquest, the chief instruments of the king’s government were the shire reeves, (who became Sheriffs), with advanced powers and duties. They collected the taxes and fee ferms of the borough towns. They also controlled the considerable income from the profits of justice along with their military responsibilities for the Shire in general.
At Domesday the county towns were quite small, Gloucester, Chester or Leicester were only equal to other market towns of 3,000 to 4,000 people. An ongoing law of Edward the Elder required that all buying and selling must take place before a portreeve in a port, (trading centre). The port-reeve was of course a fully authorised representative of the King.
In addition to land outside a town being owned by individual burgesses the town itself would also own a further large amount. Some towns such as Colchester, York, Exeter and Cambridge had a great amount while others, such as Oxford, Maldon and Dorchester, had very little.
Although the towns that started as burhs, (for military purposes), were at first a liability to the Crown, they eventually became considerable financial assets to the King. Quite early in their history, the majority of the Royal towns obtained the right to their own borough court – at first presided over by the king’s representative the Port-reeve.
Anglo-Saxon society was strongly aristocratic and the agricultural population was organised to support the monarchy and nobility both lay and clerical. Caste nobility, the eorleund, had been present in the Germanic tribes that settled Britain in the fifth century and it appeared again in the Scandinavian occupation in the ninth century. Thegns were in origin servants, who owed personal and military service. At one end of the scale were men who possessed estates even in several shires acquired through generations of royal service. At the other were men indistinguishable from land holding freemen except by rank. Ordinary freemen could rise to thegnage in royal service and even a merchant who ventured thrice across the North Sea using his own capital could acquire the rank with its privileges. Above the thegns were the eorls. Their number was small in the eleventh century and their estates vast. Their position was almost hereditary – but they remained servants of the king. From the King came grants of almost everything.
The monarch was the ruler who owned the nation; this was the essential feature of feudalism. In this basic institution two independent strands were joined, a personal bond between two free men – a superior (lord) and an inferior (vassal). Land tenure was by a vassal holding a benefice of his lord. His lord thereby protects the vassal. Thegn and cniht were of similar meaning and the Celtic gwas as vassus (Latin vassal). Solemn contracts and swearing of fealty would oblige a man to serve and obey his lord while the lord would be obliged to protect and maintain the man in return.
The founders of the boroughs came under three categories of royal lay seigniorial and ecclesiastical. Royal includes queens and princes but not earls, (or dukes), of Cornwall, Chester and Lancaster before the union of these estates with the Crown. Ecclesiastical takes in monastic houses and the estates of archbishops, bishops and cathedral chapters. A small group (around 3%) had joint founders.
A common denominator of boroughs was the possession of burgage tenure. Free tenure, distinct from the mass of villein tenures, marked out the burgess from the non-burgess as the name burgage marked out his place of living and work from the tofts and crofts, the messuages and curtilages of unprivileged contemporaries. The grant of burgage tenure was the basis of the economic fortunes of the majority of English medieval towns.
The national ‘Feudal System’ of vassal and superior where the former held land of the latter on condition of homage, military service or labour began to break down during the thirteenth century – even though ‘Feudal Tenure’ was not abolished before 1666. A ‘fief’ was an area of land held by grant (usually on condition of military service).
The English towns of the eleventh century were rudimentary and formless compared with the self governing, privileged urban republics of the high Middle Ages. But the towns of most importance under Edward the Confessor were still pre-eminent under Edward I and the reasons that had made them great in the eleventh century were those that made them even greater with time. Foreign trade enhanced a lively internal market transforming the more favourably situated Anglo-Danish boroughs into urban trading communities.
Complete feudalisation under the Normans unified and simplified the land law. All free holdings were assimilated to the fief. The great fiefs created by William for his more important vassals out of the confiscated estates of the ‘traitor’ thegns were all held by military service, (even those by the bishops and abbots).
The logic and symmetry of Anglo-Norman feudalism were due to its imposition on a conquered country by a strong king. William made sure he was unassailable. Feudal tenure provided the king with a garrison for his castles and a field force when required.
While villains were rightless, free socmen were customary freeholders who had obtained their position by traditions of free stock and possession without grant and feoffment.
As has been previously pointed out, much of the feudal impositions were eventually reduced or removed as a result of the reestablishment of the early Anglo-Saxon law codes of ‘Folkright’.
Freemen should remember: - the successful tradition of freedom is through communal kinship and fraternity. Recognition of the rightful borough freedom will continue under the protection of F.E.W. – ‘Long may it Flourish’
Alan Shelley, Officer Without Portfolio, January 2016