Smith v Earl Brownlow 1866

In 1866, Lord Brownlow, the wealthy owner of the Ashridge Estate, erected iron fences to enclose (privatise) about four hundred acres of Berkhamsted Common. Resistance came from the recently formed Commons Preservation Society. They demolished the new enclosure in a celebrated moonlight raid. Witness evidence from the subsequent trial, some of which is published here for the first time, gives a voice to people not often heard in the historical record, those whose working lives were spent on the common. It paints a fascinating picture of the common in the first half of the nineteenth century.

The Battle of Berkhamsted Common in 1866 was part of a long war. Riots met two seventeenth-century attempts to enclose it. The first was not successful in halting the enclosure of the central portion which became Coldharbour Farm and left the remainder of the common with its distinctive horseshoe shape. The second riot, in which soldiers garrisoned at Hemel Hempstead joined locals, was more successful: the fences stayed down for the next hundred years.

When Lord Brownlow put up fences in 1866, the Commons Preservation Society immediately sort contractors to take them down and found a local landowner with commonable rights to head up their campaign. They found their champion in Augustus Smith. Smith was second only to Brownlow as a local landowner. Although an absentee (he held the lease of the Scilly Isles) he had strong family ties to Berkhamsted. Moreover, he was a whig – an MP, in fact – and a natural ally of the recently formed pressure group.

The moonlight raid is justly famous, but it wasn’t a battle. The society chose nighttime to avoid the possibility of confrontation with estate staff. The fences were dismantled rather than torn down. Despite that, Lord Brownlow immediately sued Augustus Smith for damages. The case would lapse when Lord Brownlow died the following year. Meanwhile, Smith had taken out a counterclaim to seek a legal ruling protecting the rights of the commoners. This case would continue against the estate of the deceased earl. The real ‘Battle of Berkhamsted Common’ was fought, not across the gorse and bracken of the Chiltern hills, but through the courts.

In 1866 the court would hear viva voce evidence from interviews conducted in The King’s Arms in Berkhamsted. The witnesses’ average age was over sixty, some of them were much older: two of them died before the case concluded. Their testament, which runs to some twenty-five thousand words, draws on memories of the common stretching back, in some cases, into the eighteenth century.

The loyalties of the witnesses are sometimes visible, and their memories aren’t always reliable (whose are?). There is inevitably some repetition, occasionally to the point of boredom. But often the evidence surprises and delights a modern reader as the witnesses range freely over long working lives.

Finally, I should mention the documents aren’t an original discovery. George Whybrow, the author of A History of Berkhamsted Common, drew on them extensively for his book.1 This century, Richard Mabey wrote an account of the various enclosure attempts in a brilliant literary and ecological meditation on the common’s signature tree.2 Journal articles by Ben Cowell and Dean Juniper have shone new light on the role of the CPS in the battle.3

I hope that the publication of the court transcripts will add to those rich narratives.

  1. George Whybrow, A History of Berkhamsted Common, published by the Commons, Open Spaces and Footpaths Preservation Society (the successor to the CPS) in 1934.
  2. Beechcombings, Richard Mabey, published by Chatto and Windus (2007)
  3. ‘The Commons Preservation Society and the Campaign for Berkhamsted Common, 1866–70’, in Rural History Cowell, B, 2002
    ‘A Most Felicitous Foray’, in History Today, Dean Juniper, – Volume 52, Issues 7-12 – Page 29.