Catalogue description LEGAL PAPERS ON THE ASHDOWN FOREST CASE

This record is held by East Sussex Record Office

Details of Ashdown
Reference: Ashdown
Title: LEGAL PAPERS ON THE ASHDOWN FOREST CASE
Description:

CONTENTS

 

INTRODUCTION

 

The Ashdown Forest Case (1876-1882)

 

The Papers

 

The Papers as a source of local history

 

THE DESCRIPTIVE LIST

 

1 DE LA WARR v MILES and HALE

 

In Chancery

 

Proceedings in the Action

 

Briefs and Papers relating to Evidence

 

Briefs, Instructions and Memoranda on Pleadings

 

Briefs, Instructions and Memoranda on the trial of the Action

 

Papers relating to Evidence

 

Maps

 

Transcripts from the shorthand notes of the trial of the Action

 

Drafts

 

Correspondence

 

Newspapers and Law Reports

 

Court of Appeal

 

Briefs and Papers relating to Evidence

 

Briefs, Instructions and Memoranda

 

Papers relating to Evidence

 

Transcripts from the shorthand notes of the trial of the Action

 

Drafts

 

Law Reports

 

Costs

 

Proceedings in the Action, Briefs and Papers relating to Evidence, and Draft

 

Associated Papers

 

Proceedings in the Action

 

2 HALE and others v. DE LA WARR

 

In Chancery

 

Drafts

 

Proceedings in the Action

 

Instructions and Papers relating to Evidence

 

Correspondence

 

Maps

 

Newspaper cuttings and periodicals

 

3 TRANSFER OF THE PAPERS

 

4 FARM ACCOUNT BOOKS

 

APPENDIX

 

List of tenements in the Evidence of User

 

List of tenants and employees giving Evidence of User

 

BIBLIOGRAPHY

 

[Note, Nov 2003. This Introduction has not been revised since it was written by Brenda Chapman soon after the collection's deposit in 1959. Since then there have appeared two substantial studies making use of this and related collections, to which the reader is referred

 

Raymond Cocks, 'The Great Ashdown Forest Case', in T. G. Watlein (ed.), the Legal Record and Historical Reality (1989), 176-97; and

 

The introduction to Brian Short (ed.), The Ashdown Forest Dispute 1876-1882. Environmental Politics and Custom, Sussex Record Society 80 (1997), which includes an edition of W. A. Raper's notebooks (ESRO, ACC 3715).]

 

THE ASHDOWN FOREST CASE (1876-1882)

 

(Information which appears within square brackets appeared as footnotes in the paper catalogue)

 

The former royal Forest of Ashdown, otherwise known as Lancaster Great Park, is an area of hilly moorland country, comprising 13,991 acres in Sussex. Roughly triangular in shape, it lies between East Grinstead on the west and Tunbridge Wells, Kent, on the east, with its apex stretching southwards. It has a long history which can be traced back beyond the association with John of Gaunt and the Duchy of Lancaster to prehistoric times when it formed part of the forest of Anderida which covered a large part of Kent, Sussex, Surrey and Hampshire. [For printed accounts see the Bibliography at the end of this introduction.]

 

Through the centuries Ashdown Forest has had many owners and lessees, but one question recurrently in dispute has beset them all - the rights of common claimed by the inhabitants of certain tenements round the forest, which conflicted with the interests of the former in enclosing their lands. The Commoners were entitled to let their cattle graze on the forest undergrowth, to turn out swine to feed on the beech mast and acorns, and to take birch, willow and alder wood for fuel and the repair of their tenements; such rights had been exercised from time immemorial (see AMS3912). There was much friction between the two sides and an abortive law suit in 1666 (the Attorney General on behalf of George Digby, 2nd Earl of Bristol v Sir John Gage, 4th Bart, of Firle) in the Duchy Court of Lancaster (see AMS3898)

 

A settlement was eventually made, however, in 1693, by decree of the Duchy Court in the suit of Charles Sackville, 6th Earl of Dorset v. John Newnham and others, under which 6,400 acres were set aside as subject to rights of common and permission given for the rest to be enclosed (see AMS3959). It failed to solve the problem. The owners encroached on the 6,400 acres to protect their game and for financial profit. The Commoners, on the other hand, were jealous of their rights, and, taking a wide interpretation of the decree, tended to enlarge them, for example, by litter-cutting. In the late nineteenth century, the 7th Earl De La Warr, successor in title to the Dukes of Dorset, on his accession, began a number of actions against Commoners for trespass, one of which was against Sir Spencer Maryon Wilson, 10th Bart., for digging and carrying away stone from the forest (see AMS4005, 4006, and 3912 p 37). These culminated in a test case against John Miles and his employer, Bernard Hale (who was a prominent Commoner, a barrister, Deputy Lieutenant of Sussex and Chairman of the East Grinstead Bench and Board of Guardians) for litter-cutting which the defendants claimed as a right of common

 

Litter consists of the undergrowth of the forest - brakes (the common brake fern), heather, furze or gorse, broom and coarse grass. The practice was to cut it down by scythe in the autumn and cart it away to spread for litter in the cattle yards; subsequently it was used as manure on the land. Earl De La Warr contended that litter could only be taken by the mouth of cattle as a common right

 

The action De La Warr v Miles and Hale, begun in the High Court of Justice, Common Pleas Division (1877 D 617), was transferred to the Chancery Division (1878 D 154) and had a long and tedious trial before Vice-Chancellor Bacon in 1880 (see AMS3914-3927). The defendants claimed a right to cut litter under the Duchy of Lancaster decree of 1693, and, as having exercised that right continuously for sixty years, under the Prescription Act, (see AMS3780/2,4), they were defeated on both grounds (see AMS3927) and lodged an appeal. In 1881, Lords Justices James, Brett and Cotton reversed the judgment in favour of the defendants, under the Prescription Act, and awarded them the general costs of the action (see AMS3975, 3983). A later application for the costs of the shorthand notes of evidence was unsuccessful (see AMS3990-3995)

 

The body of Commoners included a number of wealthy and influential Sussex landowners, of whom the foremost were :- Henry Fitzalan Howard, 15th Duke of Norfolk, Henry North Holroyd, 3rd Earl and 3rd Baron Sheffield, Reginald Charles Edward Abbot, 3rd Baron Colchester, Louisa Elizabeth Anne, widow of Sir John Villiers Shelley, 7th Bart, and Sir Spencer Maryon Wilson, 10th Bart. An Association was formed in 1875, as on other occasions in the past, notably 1816 and 1830, to safeguard the Commoners' rights, and since Counsel advised that the judgment re Hale would not adequately protect his fellow members (see AMS4045), a cross-action was undertaken, at the common expense, with three representatives, Bernard Hale, Robert Melville and Sir Spencer Maryon Wilson, as plaintiffs, under the direction of the London solicitors who had, in 1874, successfully concluded the analagous Epping Forest case [Epping Forest, Essex. For printed accounts of the case, The Commissioners of Sewers (on behalf of the Corporation of London) v Glasse, see: The Law Reports or the Incorporated Council of Law Reporting, Equity series, vol XIX, The Council: London, 1874, pp 134 foll.; and George John Shaw-Lefevre, 1st Baron Eversley, Commons, Forests and Footpaths, London, 1910, pp 93-102.] for the Corporation of London

 

The plaintiffs claimed an injunction restraining Earl De La Warr from interfering with their rights by encouraging the impairment of the common pasture by stone quarries and gravel pits, the growth of firs and larches, and the settlement of squatters on the forest (see AMS4014). The action (1878 H 513) was heard in chancery by Mr Justice Fry and a settlement subsequently made by consent, established the right to cut litter of all those entitled to rights of common under the Duchy of Lancaster decree made in 1693. The total costs of the Commoners amounted to £6,194. 11s 7d (see AMS4047)

 

The Committee of the Commoners' Association also obtained a Provisional Order for the regulation of the forest under the Commons Act of 1876, although Earl De La Warr refused to associate himself with their application. It was confirmed by Act of Parliament in 1885 (48/9 Victoria c.56) [A copy of the subsequent Inclosure Award (1887) with two maps of Ashdown Forest annexed is in the East Sussex Record Office (QDD/6/E 15).] and the Committee became the Board of Conservators, which after reconstitution in 1937 (by 1 Edward VIII and 1 George VI c.52) to receive financial assistance from local government funds [See also the East Sussex County Council Committee Minutes re Ashdown Forest, 1936, East Sussex Record Office C/C/11/72/1) and 1967 (ESRO C/C/11/3/59).] has continued to look after the Commoners' interests down to the present day

 

THE PAPERS

 

The Papers relating to the test case against Hale, and the cross-action, which were deposited by his solicitors, Messrs. Raper and Fovargue of Battle, in the East Sussex Record Office, Pelham House, Lewes, 16 July 1959, are concerned with the history of rights of common on Ashdown Forest from the late thirteenth to the nineteenth centuries. As the area covered by the forest and the tenements having rights of common extends into seven parishes, namely Buxted, East Grinstead, Fletching, Hartfield, Maresfield, West Hoathly and Withyham, they contain, especially among the "papers relating to evidence", much information on local history

 

Legal papers in local repositories are usually calendared briefly as a group - I do not know of any comparable list in print. This list may therefore prove useful also as an indication of the types of legal documents to be found among the "papers on the case" in so many family and lawyers' archives either in situ or in some record office

 

The papers had been sorted roughly into bundles of Proceedings, Briefs, Drafts etc. before leaving the office of the London solicitors in 1883 (see AMS4101). Careful examination, however, has revealed a large number of duplicates, besides the spare prints mentioned in AMS4100. These have now been eliminated with the permission of the depositors, and the total bulk thus reduced by half. Some papers, on the other hand, in particular the briefs on trial of both actions, have not survived at all

 

Seven volumes from the group were given to the Sussex Archaeological Society by W.A. Raper in 1934 and may be consulted in the library at Barbican House, Lewes. I have noted them in the appropriate sections of the list (see pp. 9, 15, 16 and 29). Other material relating to Ashdown Forest held by the Society includes the working papers of Ernest Straker [These supplement his article cited in the Bibliography. They are briefly described in Sussex Notes and Queries, vol 9, 43-44.], a manuscript volume containing a copy of the proceedings in the Duchy Court of Lancaster in 1691 and 1693, and several maps and Minute Books (1745-1805) for the Manor of Duddleswell

 

"Proceedings in the Action" which supplement the originals and check the copies in the East Sussex Record Office are extant in the Public Record Office, Chancery Lane, London. The legal case as such could be reconstructed step by step from them, but it would be a slow and laborious task since they must be sought year by year among other cases in each of the various sections of the Chancery Court archives, namely, Pleadings, Affidavits, Reports and Certificates, Entry Books of Decrees and Orders. [See Giuseppi, M S : Guide to the Public Records, vol. I, legal records etc, London, 1923, pp.261-269. That the case is of interest to lawyers may be seen from its inclusion in the current edition of Halsbury's Laws of England, p. 600.] For local history, however, it is the supporting papers, not found in the Public Record Office, that give the fullest information

 

The "papers on the case" from the other side are still among the De La Warr family archives which are not as yet available to the public. There are no relevant items among the records of a related family, the Sackvilles of Knole, co. Kent, which are now in the record office at Maidstone co. Kent

 

The records of the Association of Commoners are held by the present Clerk to the Conservators of Ashdown Forest, Mr. P.A. Williams, at Messrs. Whitley, Hughes and Luscombe, solicitors, East Grinstead. They consist of volumes of Minutes dating from 1875, also accounts, and miscellaneous papers which cover the period 1896 to 1930, comprising licences of sporting and other rights over the forest, correspondence relating to the military use of the forest in war-time [See also a map re the local inquiry into the use of Ashdown Forest for military purposes, showing St John's Camp, Crowborough, 1948, in the East Sussex Record Office (QDP 825).], and reports of the Audit and Forest Poor Committees and of Forest Rangers

 

THE PAPERS AS A SOURCE OF LOCAL HISTORY

 

The Papers are, first and foremost, invaluable to anyone interested in the history of the forest itself, and not only as a record of the nineteenth century and earlier litigation. They also contain transcripts (some certified) and notes on a large number of documents of various kinds ranging in date from the thirteenth to the nineteenth centuries, and taken from several sources that may now be time consuming or inconvenient of access, or even inaccessible to the researcher. In the first category come the records of the Duchy of Lancaster in the Public Record Office, London [See also Public Record Office lists and Indexes, vol XIV, List of records of the Duchy of Lancaster, London, 1901, and Robert Somerville, History of the Duchy of Lancaster, vol. I, 1265-1603, London, 1953.], and the court records (1607-1925) of the manor of Duddleswell, now in Messrs Adams, solicitors, 213 High St., Lewes; in the second the family papers, namely those of Earl De La Warr, Lord Colchester, Bernard Hale and Robert Melville. The presence of these copies (AMS3887, 3939, 3959) in the East Sussex Record Office would therefore save much work being done in London or elsewhere by a researcher interested in the history of Ashdown Forest

 

The papers contain, secondly, information on the topography of several parishes and on the customs of their inhabitants, and are therefore of interest to the historian of those parishes and of individual properties for example Tablehurst Farm and the Pixton Hill estate, East Grinstead [The title deeds to these two properties have been deposited in the East Sussex Record Office by Messrs. Whitley, Hughes and Luscombe.] They also contain, thirdly, oral testimony relating to the nineteenth century, which would otherwise have been lost. People from a class of society which leaves few imprints on records generally - the labourers and domestic servants on property round the forest, gave evidence of user and with it sometimes personal details of interest (see AMS3904, 3905 and the Appendix)

 

There is a little other material relating to Ashdown Forest in the East Sussex Record Office, besides the records noted above namely a Woodmote roll for 1414 and a few seventeenth century deeds among the additional manuscripts (AMS 799, 683, 715-730)

 

Thanks are due to all the people who have given help in the compilation of this list, in particular to Messrs. Raper and Fovargue for depositing the records, to Mr F W Steer, County Archivist of West Sussex, my supervisor, and Mr R F Dell, Archivist of East Sussex, for their guidance, and finally to Miss E Melling of the Kent Record Office, the Staff of the Public Record Office, London, and Messrs. Whitley, Hughes and Luscombe of East Grinstead, for giving information and making their records available to me

 

Note: All places are in the county of Sussex unless otherwise stated

 

BIBLIOGRAPHY OF PRINTED MATERIAL RELATING TO ASHDOWN FOREST

 

S.A.C. - Sussex Archaeological Collections

 

S.N.Q. - Sussex Notes and Queries

 

See Indexes to these passim: only the more important articles are listed below

 

Anonymous: "Ashdown Forest", S.N.Q. vol. V. pp.146-147

 

Cox, J. Charles: The Royal Forests of England, London, 1905

 

Ellis, William Smith: The Paths and Forests of Sussex, Lewes, 1885

 

Eversley, George John Shaw-Lefevre, 1st Baron: Commons, Forests and Footpaths, London, 1910

 

Giuseppi, M.S.: Guide to the Public Records, vol. I, Legal records, etc., London, 1923

 

Hills, Wallace Henry: The History of East Grinstead, East Grinstead, 1906

 

Horsfield, Thomas Walker: The History, Antiquities and Topography of the County of Sussex, vol. I, Lewes, 1835

 

Lower, Mark Antony: A Compendious History of Sussex, Topographical, Archaeological and Anecdotal, vol. I, Lewes, 1870

 

Madge, Sidney J.: The Domesday of Crown Lands, A Study of the legislation, surveys and royal estates under the Commonwealth, London, 1938

 

Margary, Ivan D.: "Roman roads in Ashdown Forest", S.N.Q. vol. III (1930) pp.1-5

 

"A Celtic enclosure in Ashdown Forest", ibid pp.71-72

 

"King's Standing, Ashdown Forest", ibid. pp.72-76

 

"The mystery mounds on Camp Hill and Stone Hill, Ashdown Forest", ibid. pp.101-106, 190

 

"The parliamentary surveys of Ashdown Forest - topographical details", S.A.C. vol. LXXXI (1940) pp.137-139

 

"The Straker Papers", S.N.Q. vol. IX (1943) pp. 43-44

 

"Ashdown Forest and its enclosures - a postscript", ibid. pp.64-66

 

Marsh, S.J.: Ashdown Forest, privately printed, London, 1935

 

Public Record Office Lists and Indexes, vol. XIV: List of records of the Duchy of Lancaster, London, 1901

 

Somerville, Robert: History of the Duchy of Lancaster, vol. I, 1265-1603, London, 1953

 

Straker, Ernest: Wealden Iron, London, 1931

 

"Lost mills of Ashdown", Sussex County Magazine, vol. XII (1938) pp.203-206

 

"Ashdown Forest and its enclosures", S.A.C. vol. LXXXI (1940). pp.121-135

 

A Descriptive Report on the Quarter Sessions etc. Records of East and West Sussex, Lewes and Chichester, 1954

 

Sutton, Rev. C.N.: A Short history of Withyham and Buckhurst, Tunbridge Wells, 1893

 

Historical Notes of Withyham, Hartfield and Ashdown Forest, together with a history of the Sackville family, Tunbridge Wells, 1910

 

Turner, Rev. Edward: "Ashdown Forest", S.A.C. vol. XIV (1862) pp.35-64

 

Tyssen, John Robert Daniel: "The parliamentary surveys of the county of Sussex, 1649-1653", ibid. vols. XXIII (1871) and XXIV (1872)

 

Victoria County History of Sussex, vol. II, ed. William Page, London, 1907

Date: (1876 - 1882)
Held by: East Sussex Record Office, not available at The National Archives
Language: English
Creator:

Raper and Fovargue, Battle, solicitors

Physical description: 4 Subfonds
Access conditions:

Records are open for consultation unless otherwise indicated

Immediate source of acquisition:

Deposited by Messrs Raper and Fovargue, Solicitors, Battle on 16 July 1959 (Acc 334)

Subjects:
  • East Sussex
  • Land tenure

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