Battle of Berkhamsted Common Walk: Transcript

Waypoint 2. Old Trackway: Background to the Battle.

Hello, and welcome to the Battle of Berkhamsted Common Walk. This is Waypoint 2. There’s no audio at Waypoint 1, so don’t worry: you haven’t missed anything. This is the bit where I give you the background to the Battle of Berkhamsted Common in 1866.

‘Loured the foul London gaslights,
       And made the gloom more deep,
The million-peopled city’s sons
       Were in their early sleep,
When from the Euston Station
       Glided the special train
That bore the force that went to win
       Berkhampstead’s waste again.’1

Two hundred years ago, if you had seen a boy of seven or eight on the common, he wouldn’t have been playing: he’d have been working.2 A lucky boy might have been sheep dunging – collecting sheep droppings to sell for manure. A bright lad might even be trusted as a shepherd. Others might find themselves raking leaves on the Ashridge Estate, or pulling up nettles and thistles from the sides of the drives across the common. A less lucky boy would find himself in a group of about forty or fifty boys, breaking flints for Lord Bridgewater’s road-building projects.3

That’s not to say that Lord Bridgewater was an ogre. He was, by the standards of the day, a paternalistic employer. If it was a particularly cold day, he made sure to tell his steward, an ex-army man, to give the boys a cross-country run, to warm up before starting work.

This story also involves a boy at the other end of the social scale. When John William Spencer Brownlow Egerton Cust inherited the Ashridge Estate in 1851 he became, overnight, the richest twelve-year-old boy in England.4 On his coming of age, he gave a dinner party for five hundred and fifty of his tenants, from Lincolnshire, Shropshire and elsewhere, ferried from local railway stations in twenty London omnibuses. His birthday cake was six feet high, covered with frosted silver and decorated with flags.

Commons are privately owned land over which other people have rights, such as the right to graze animals or remove gorse and firewood for their hearths. Lord Brownlow bought Berkhamsted Common from the Duchy of Cornwall in 1860. Today the common is part-owned by the National Trust and Berkhamsted Golf Club.

The system of commons dates back to before the Norman conquest, perhaps into pre-history. In the year 1600, somewhere between thirty and fifty per cent of the total area of England was common land. Today common land accounts for perhaps three or four per cent of the total land area.

In 1866 Lord Brownlow erected two miles of iron fences, which were five feet high, and had no gates, cutting off access to the central part of the common (about four hundred acres). Why he did this is not altogether clear. The reasons given at the time – to protect the common from development and to combat crime – are not plausible: Lord Brownlow owned the common, so there was no risk from predatory developers, and there was certainly no crime on a scale that would merit the exclusion of local people, or travellers, from their common. Most probably he acted because he judged (quite rightly) that the tide of political opinion was shifting against enclosure, and that it was ‘now or never’.

Resistance to Lord Brownlow’s precipitous action in the first instance came not from Berkhamsted, but London. In fact, Berkhamsted had been divided and for some time, Lord Brownlow’s agents had been ‘buying’ the rights of commoners as a first step to enclosing the common through the normal legal channels.

‘When John William Spencer Brownlow Egerton Cust inherited the Ashridge Estate in 1851 he became, overnight, the richest twelve-year-old boy in England.’

The mid-nineteenth century saw a rapid expansion of London, which was a city notorious for cholera and slums. Influential Whig politicians and their friends came to realise the importance of protecting green spaces, like Epping Forest, Hampstead Heath and Wimbledon Common, for city dwellers. In 1865 the Commons Preservation Society was formed to galvanize public interest, to raise money for legal battles and, where necessary to take direct action to protect common land for its public amenity value. They were the precursors of today’s National Trust and the Ramblers. In fact, the CPS itself still thrives in a modern incarnation, The Open Spaces Society.

It was they who took up the gauntlet thrown down by Lord Brownlow. They immediately contracted workers to take the fences down and, in the meantime, looked for a local landowner with commonable rights, who could act as a figurehead for the legal battle. They found him in Augustus Smith who owned Ashlyns Hall, but now spent most of his time between the Scilly Isles, of which he was the uncrowned King, and the House of Commons, where he was the radically-minded MP for Truro.5

Soon after midnight on 6 March 1866, a team of one hundred and twenty railway workers left Euston station on a specially chartered train. One of the carriages was reserved exclusively for their tools. They had been told only that they were contracted for a ‘night job, down Tring way’. Reaching Tring at about 1.30 am, the representative of the Commons Preservation Society on the train, a young legal clerk, George Mickelwright, realized he had a rather delicate problem. The contractor and sub-contractor (so the story goes) had whiled away the first part of the evening in a pub next to Euston Station (we’ve all done that, to be fair) and were now both too drunk to lead the expedition. Mickelwright himself had to lead the workers the three miles to the common, and oversee the work. By 6.00 am two miles of fences had been dismantled and stacked in neat piles. What Lord Brownlow said when informed of the night’s events by his land agent, William Paxton, is sadly not known.6 What he did, is part of the public record. He sued Augustus Smith for damages.

Meanwhile The Commons Preservation Society continued their battle in a way familiar to our own times: through the media. This poem in Punch is a flavour.

‘Augustus Smith, of Scilly,
      By Piper’s Hole he swore
That the proud Lord of Brownlow
      Should keep the waste no more.
By Piper’s Hole he swore it,
      And named a trysting night,
And bade his myrmidons ride forth,
      By special train from London’s north,
To venge the Common Right.

Bold was the deed and English
      The Commoners have done,
Let’s hope the law of England, too,
      Will smile upon their fun.
For our few remaining Commons
      Must not be seized or sold,
Nor Lords forget they do not live
      In the bad days of old.’

The court case would lapse when Lord Brownlow died, aged twenty-five, of tuberculosis in Mentone in February 1867. But meanwhile, Smith, at the Commons Preservation Society’s instigation, had taken out a counter-claim, to prevent enclosure ever happening again, and for a legal ruling to clarify the rights of the commoners. The case would continue against the estate of the deceased earl. The Battle of Berkhamsted Common would be fought, not through the gorse and bracken of the Chiltern hills, but through the courts. It was a battle that would drag on for the next four years.

Waypoint 3. Roads.

This is a surveyor’s drawing from 1806. This was a precursor to the ordnance survey map. It clearly shows two roads or trackways running west-east along the top and bottom of the common. Both of these were blocked by Lord Brownlow’s fences in 1866. We’re standing near to the bottom one, which ran round the common at the edge of the fields. This was the old road to Dunstable, from Berkhamsted, before Northchurch New Road was built. We’ve more to say on roads at Waypoint 5, but here’s an interesting thing. The seventeenth century enclosure gave the common its distinctive arc or horseshoe shape. Our ancestors, focussing on the shape of the enclosure rather than the common, referred to this part of the route as ‘Bowfield Corner.’

The silver birch trees you can see today, show that this is a relatively young wood. This part of the common would have been a gorsy heath in the nineteenth century – and for several hundred years before that. Commoners, harvesting wood and gorse for their fires, and grazing animals, kept the landscape open. We’ll look at this in more detail at our next stop.

Waypoint 4.1. Coldharbour Farm Meadow

In 1866 the court would hear viva voce evidence from interviews conducted in the King’s Arms, Berkhamsted. The witnesses’ average age was over sixty. Their testament, twenty-five thousand words, paints a fascinating picture of the common in the first half of the nineteenth century.

The most surprising thing to me was the scale of use being made of the common, which sometimes caused tension between the estate and other users. Several witnesses remembered an event in May, 1835, when the common was driven at the behest of the estate: that is to say, all the grazing animals were rounded up and put into a field at Coldharbour Farm, to be claimed by their owners. It was thought that some outsiders – interlopers – were turning their sheep on the common and the common was becoming overstocked.

‘Joseph Swaby, aged fifty-seven, states as follows:

I know every part of Berkhamsted common well. The first summer I lived at the Old Dairy, the common was drove up to a meadow on Coldharbour Farm. I was present and had orders from Mr William Spicer, the head keeper, to assist in driving the cattle into the meadow. All animals we found grazing on the common, whether horses, sheep, or cows, were driven into the meadow. I think this was in the month of May. We drove a great many sheep into the meadow, it is called the Big Meadow, and a few horses.

Afterwards, several of the owners came into the meadow and claimed their sheep. I recollect that Benjamin Cook of Potten End, Mr Costin, George Watson, Francis Thorn, Isaac Saunders, John Bedford, John Cook, Daniel Bedford, Mr. Sutton of Rossway, and several others whose names I do not recollect came there and claimed their sheep. The sheep were afterwards allowed to go on the common, but orders were given afterwards to report the names of all those persons who turned sheep on the common who held no land and they were reported accordingly, and afterwards they ceased turning on.’

Is anybody brave enough to guess how many sheep were wondering about Berkhamsted Common in May, 1835?

The surprising answer is, more than five thousand; and that might underestimate the true figure. News that the common would be driven was leaked in advance and some sheep had been removed in anticipation.

Waypoint 4.2. Coldharbour Farm Furze Field

Modern place names sometimes hold a clue to past land use. The wood you can see to the south-west is called ‘Furzefield Wood’. Furze we now call ‘gorse’ or ‘whin’ and you can see from the 1840 tithe map that furze was being grown as a crop.7 It was a very valuable crop.

‘The Battle of Berkhamsted Common would be fought, not through the gorse and bracken of the Chiltern hills, but through the courts.’

Much of the witness testimony concerns furze, which grew all over the common. It was a key resource for agriculture and industry. The young shoots could be grazed by sheep throughout the year, but especially in early summer when local farmers wanted to use their own meadows for hay. Furze was also much prized as a fuel. It has a ‘high calorific value’, which means it burns very hot, very quickly, and leaves little ash. It was especially prized for bread making and brewing – ovens couldn’t burn coal in those days, even if anybody could afford it – it was also used by farmers and smallholders for the bottoms of ricks – a kind of breathable base layer. Many commoners, when other work was short, cut furze for a basic living. The furze on the common was a valuable and renewable community resource. Its chief industrial use was in brick making. We’ll let Thomas Cox take up the story.8

‘Thomas Cox, aged seventy-eight, states as follows:

I live at Ringshall. I was born at Pitstone, lived there ’till I was about thirteen years old. I then went to farm service and enlisted for a soldier in the year 1805, in the marines, was at the Battle of Trafalgar, and got my discharge in 1815. In 1816, I went to Ashridge and worked on the estate forty-seven years. After I had been at work on the estate for about five or six years, I was employed brickmaking on the estate. The first place I burnt at was Ivinghoe Common. The next place was Outwood Kiln, in Aldbury Parish. We used furze for burning. The furze was cut on Berkhamsted Common and carted to the kilns. We cleared the common of furze. It took a thousand furze to burn a kiln of bricks. One kiln held about sixteen or seventeen thousand bricks. The second kiln would require seven hundred furze and would burn ten thousand bricks. Each season we should burn about twenty-eight kilns (fourteen in each kiln). We were burning constantly for about eight years. In the eight years, we cut the furze fields belonging to Cold Harbour Farm twice. They consist of about thirty acres. During the eight years, I cut the furze on the common (that was when we had no work at the kiln) several times and was never interrupted.

I recollect Mr Hemmings setting out the ride leading from Aldbury to Potten End. Before he done so this ride was like the rest part of the common. The furze was stocked up and a ride made. The ride was widened and levelled from time to time and always kept in order for Lady Bridgewater. Lady Bridgewater used to ride a great deal on horseback. I recollect Mr Hemmings forming most all the rides. I recollect the common when there was scarcely a ride about it.’

So to build his mansion, between about 1808 and 1814, Lord Bridgewater cleared the common of its most precious commodity. William Bell remembered that by the end ‘you could not find a bit of furze about the common as high as your shoe’. Thomas Waterton remembered that whilst it was being built, there were twenty full-time furze cutters but at last ‘the furze was cut so low we were obliged to mow it’.

The trashing of a renewable community resource didn’t keep Lord Bridgewater awake at night. Why? He had his own supply: he owned Coldharbour Farm.

Waypoint 5. Woodyard Cottage

The Bridgewaters had been poaching bits of the common long before Lord Brownlow inherited the estate.

Woodyard cottage was built on the common by Lord Bridgewater for his wood bailiff, Theophilus Hemmings. The road to Coldharbour Farm, which we have just walked down, was built at the same time. The dell hole that you can see in the garden on the north side of the house, was an old gravel pit, later converted to a garden pond, dug to block an old road across the common between Aldbury and Hemel. When the Woodyard was built the park pales were moved out on to the common and a strip several hundred yards long laid into the park.

The evidence is mixed on the status of the blocked road: some estate loyalists suggest that it was never a proper road. Others remember a good hard road that could be used by loaded carts. In favour of the latter, the line of the road is shown clearly on the estate’s own plan (1762).

‘William Waterton states as follows:

I reside at Potten End. I am fifty-nine years of age next birthday. I was born at Frithsden and lived there until I was twenty years old. I know Berkhamsted Common and have been employed on the common by the Ashridge Estate. The first work I did was digging gravel. We dug it between Dairy Park Corner and the woodyard. I dug it before the cottages near the woodyard were built. There was a way from Dairy Park Corner under the park pales, through Bungays Gate to Little Gaddesden, and straight on to Frithsden. It was a byway or a cartway, not a regular road. I recollect the pond being dug across the way and I also recollect the woodyard being fenced in and taken off the common. Part of the old way now forms part of the woodyard. The old way was thus destroyed, and gravel pits at places were dug in it. At the time the woodyard was made, Lord Bridgwater made a new road from the woodyard to Coldharbour Farm across the common, destroying the furze in the line of the route.’

It is ironic that the Wood Bailiff, Theophilus Hemmings, who managed all the woodland on the estate and common, and who represented the law on both – he had almost the power of life and death over its users – was living in a house, on land which had been stolen from the common.

It is difficult here not to call to mind another poem about enclosure by one of England’s greatest ever poets: anon.

‘The law locks up the man or woman
      Who steals the goose from off the common
But lets the greater villain loose
      Who steals the common from off the goose’

When Lord Romilly, the Master of the Rolls, gave his judgement on the case he could not have been clearer. Smith’s lawyers had proved every commonable right – with one or two exceptions. The evidence, Lord Romilly found, was comprehensive, conclusive and uncontradicted. The viva voce evidence was ‘all one way’.

Ironically, he found that there was no right to recreation, which was the ultimate purpose of the Commons Preservation Society: to protect commons because of their amenity value to the general public. But the effect was the same: the fences would stay down. Few people were inclined to see the result as anything other than a stunning victory for the society – and indeed society in general, but particularly for local people, who continue to enjoy their right to roam their old domain, whenever the mood takes them, in the hills beyond the town.

(c) Richard Shepherd, 2020

Select Bibliography

The court papers, 1866-1876, are held by HALS (Hertfordshire Archives and Local Studies) ref: DE/Ls/B178. I consulted various other documents at the archive. They were nearly all filed between DE/Ls/164 and DE/Ls178 which contain ‘Papers concerning Berkhamsted Common and litigation over rights between The Bridgewater Estate and tenants’. They are thoroughly described online at item level, so I shan’t duplicate the list here. I also consulted Grey’s Estate plan of Ashridge, 1762, HALS ref: AH2770, and have reprinted a detail from the map in Augustus Smith’s Printed Statement showing the iron fences on the common (1866), HALS, ref: DE/Ls/B177.

Common Land, Graham Bathe, Open Spaces Society; Pitkin Publishing, 2015

The History of Berkhamsted Common, George Whybrow, Commons, Open Spaces and Footpaths Preservation Society, London, 1934.

Who Owns England? How We Lost Our Green & Pleasant Land & How to Take it Back, Guy Shrubsole, William Collins, 2019

Beechcombings, The Narrative of Trees, Richard Mabey, Chatto & Windus, London, 2007

Gorse, Broom and Heathlands, Chris Howkins, 2007

‘A Most Felicitous Foray’, Dean Juniper, in History Today, Volume 52 (9), September 2002

‘The Commons Preservation Society and the Campaign for Berkhamsted Common, 1866–70’, Ben Cowell in Rural History, Vol 13 (2), October 2002, Cambridge University Press.

Chilterns Commons Project
https://www.chilternsaonb.org/about-chilterns/chilterns-commons-project/history-project.html

Open Spaces Society
https://www.oss.org.uk/

Berkhamsted Local History & Museum Society
https://berkhamsted-history.org.uk/

Hertfordshire Archives and Local Studieshttps://www.hertfordshire.gov.uk/services/libraries-and-archives/hertfordshire-archives-and-local-studies/hertfordshire-archives-and-local-studies.aspx

National Trust Ashridge Estate
https://www.nationaltrust.org.uk/ashridge-estate

Heritage Open Days
https://www.heritageopendays.org.uk

  1. ‘Lay of Modern England in Punch, March 24 1866.
  2. Girls’ and women’s work on the common generally does not show up in the official record. They may well have worked in an unofficial capacity: eg collecting furze and bracken – and sheep dung. A glance at census records for the trial witnesses suggests that straw plaiting may have been more common among the wives and daughters of Berkhamsted Common workers than one might expect from the broader population. In the first half of the nineteenth century, about a fifth of local women and girls in the countryside around Berkhamsted worked as straw plaiters. Their work was destined for Dunstable and Luton, to be made into hats. Population, economy and family structure in Hertfordshire in 1851, Nigel Goose, 1996.
  3. John William Egerton, the 7th Earl of Bridgewater, was a former cavalry officer and Tory politician when he inherited the Ashridge Estate on the death of ‘The Canal Duke’ (Francis Egerton, the 3rd Duke of Bridgewater) in 1803. It was the 7th Earl who built the present house at Ashridge, between 1808 and c1821. When he died in 1823, his wife, Charlotte Catharine Anne Egerton, Lady Bridgewater, lived at the house until her death in 1849.
  4. John William Spenser Egerton Cust (1842-1867), the 2nd Earl Brownlow, inherited the estate, and several others, after a long lawsuit pursued on his behalf, in 1854. His mother, Lady Marian Alford, a widower, administered the estate until his coming of age in 1863. The 2nd Earl’s health had always been frail, and he spent much time in Italy and elsewhere, seeking a cure. He died, of tuberculosis, in Mentone in 1867, aged 24. Lady Marian Alford died at Ashridge in 1888.
  5. Smith, Augustus John (1804–1872), landowner and philanthropist. His father, James, built Ashlyns Hall:
    James Smith (1768-1843), landowner and scion of a Nottingham banking family (DNB). He was High Sheriff of Hertfordshire in 1808. Ashlyns Hall was built c1800.
  6. William Paxton was the nephew of Joseph Paxton, gardener and architect of The Crystal Palace.
  7. My knowledge of gorse, particularly its relationship to sheep farming on common land, comes from Chris Howkins, Gorse, Broom and Heathlands, (2007). Chris Howkins is an ethnobotanist.
  8. Hertfordshire Court Rolls show that both the Royal Marines and the 4th Dragoon Guards were recruiting in St Albans in 1805. Though Thomas Cox was a volunteer, others joined as an alternative to jail. Bartholomew Humphreys joined the guards, having been convicted of stealing one sow, valued at ten shillings.