The Purpose of the Freemen of 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 March 2011 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 .

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 March 2011

FOOTNOTE: Coincidently, lands registered under the Commons Registration Act, 1965, have in some cases benefitted by their special protective ability to repel undesirable compulsory developments A Freeman!?

In ancient times, the native British inhabitants were found in tribal centres. Some small towns existed even before the Roman Conquest. The withdrawal of Roman government encouraged the steady invasion of the English people who would eventually mingle with, and dominate the native Celts.

'English' immigrants came from northern Europe in boats, gradually spreading across the country and settling in family groups. Place-names exist today that indicate the family name or tribal leader who settled at that time. Their way of life was crude, primitive and tribal. Immigration of the English happened during the fifth, sixth and seventh centuries.

The English (burh fortified town) was essentially a commercial centre, in contrast to the agricultural landscape with which it was surrounded. The Norman Conquest intensified the difference of character, when feudal system parcelled out the countryside, with the dedicated object of conscripting and supporting an army. This led to the 'Town' and 'Country' inhabitation of 'Freemen' and 'Yeomen'.

A Borough was a self managed entity. It came to develop a select caste of inhabitants, the full members of which were 'freemen'. Freemen were liable for scot and lot (taxation and duties). Freemen had the monopoly right to trade.

Pasturage in community use was reserved for the freemen. Common fields, typically called by names such as Springfield, Summer Meadow, North Common, Marshfield etc., surviving to this day. Inclosures came about, beginning from a theory that no man is likely to improve land that he does not own. So began the movement. Common fields were divided up, under parliamentary authority, and private ownership followed. Arable parcels were hedged around and became the modern landscape of the present day. Common fields confined to pasturage were set aside for use, specifically, of freemen present and future.

Closed community is privileged, and privilege was accused of abuse of power, 'Rotten ' of the eighteenth and nineteenth centuries were accused of unacceptable monopoly, and of restrictive practices. The principle of hereditary rule was not acceptable (with accusations of potential bribery and jobbery).

In 1835 the Reform Acts and Municipal Corporations Act brought changes to the old practices. Private ownership, with property rights were preserved for freemen ('though the rule of the towns were to be by democratically elected councillors).

The freemen's lands were held in trust. It is a fundamental principle of English Law that the purpose of a perpetual trust is that it be 'charitable' and beneficial to the community. Thereby it becomes subject to the authority of the Charity Commissioners. In 1882, a dispute between a Freeman and the Corporation of Colchester determined that freemen's funds were not private and therefore subject to the above. The 1835 Act had authorised continuance of Freemen's rights. This suggests that such rights (property in law) are private. However, the Huntingdon case (Peggs v Lamb, 1993) brought about a judgement that overruled this opinion and embraced the 'charity' rule. This means that all privileges must be seen to be in accordance with the publics' interest. Alan Shelley, October 2005 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 183 5 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 3 5 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 ofthe 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 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 modem 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, OWP, January 2011. Requirements of Freemen Protection and Application

To safeguard against any changes in legislation a gild preferably should, at all times, maintain and update 'living records'. Registers would contain the descriptions of their properties, privileges, charities, commitments and liabilities and of any changes as they may occur.

The records should include copies of any land/property registrations currently held by HM Land Registry and particularly any entries made under the Commons Registration Act 1965.

Every gild should maintain and regularly update a copy of the Freemen's .Roll of admitted freemen and freemen's widows.

For legal purposes, this information should be safeguarded and readily available whenever it may be required. NB The requirements of the Charity Commission will require that Freemen's income be seen to benefit the local community.

Rules of Conduct

A copy should be readily available of the Oath sworn by every Freeman upon their individual admittance.

Typical Freeman's Oath

Declaration for admission to the Freedom of London "I do solemnly declare that I will be good and true to our Sovereign Lady Queen Elizabeth II; that I will be obedient to the Mayor of this City; that I will maintain the Franchises and Customs thereof, and will keep this City harmless, in that which in me is; that I will also keep the Queen's peace in my own person; that I will know no Gatherings nor Conspiracies made against the Queen's Peace, but I will warn the Mayor thereof, or hinder it to my power: and that all these points and articles I will well and truly keep, according to the Laws and Customs of this City, to my power".

Sworn Oath on admission to the Freedom of Sudbury "I swear that I will be aiding and assisting unto the Town Mayor and Justices of the Town of Sudbury, for the time being, the Constables, Sergeants at Mace, and all other Queen's Officers and Ministers of the Town, in the due execution of Justice and performance of Her Majesty's service. I shall to the utmost of my power uphold, support, maintain, and defend all the good and lawful rights, privileges, customs, decrees, byelaws, orders, and hereditaments of and belonging to the town, and this I shall well and truly do and perform, So help me God!

(While freemen's oaths may differ from town to town the content will be generally similar).

Rules for the Conduct of Life (Created by Sir John Barnard in 1737)

A book entitled 'Rules for the conduct of life' is given, by the Chamberlain of the City, to all new admissions to the Freedom of London. Here are the rules briefly abstracted:

1 1. Consider your aim and its likely outcome. 2. Consider the means to end its aim. 3. When seeking a good end by proper means, let the end you aim at always be good. 4. Life is short and uncertain, always look beyond. 5. Death is unavoidable, never be careless. 6. Die well and at peace with God. 7. To live well is to be constantly obedient to God's commands. 8. Arm yourself and often beg of God to fix and firm your resolution. 9. Let your light be an example before men. 10. Fix right principles well in your mind. 11. Whatever you do or speak, let it always be done in its proper order and in a suitable manner. 12. Be in reality what you are willing to be thought to be- honest, just and virtuous. 13. Be in charity with all men, fill your heart with love of mankind, friends, strangers and even enemies - never hate but be gentle. 14. Affability in conversation tends to maintain goodwill and agreement. 15. Be always ready, according to your ability, to relieve the poor and help the distressed. 16. Be well content with your own condition whatsoever it be. Endeavour by honest labour and industry. 17. Meddle not with the affairs of another man. 18. Engage not in any party quarrels, public or private, further than laws of God or your country oblige you. 19. Lead not an idle life, be constantly employed in honest business, making good for yourself and others. 20. Be not slothful in business for this is as idleness. 21. Engage yourself in no more business than you are able to cope with. 22. When you are able to cope without assistance, never put off any part to be done by another. 23. Never put off until tomorrow what can be done today. 24. When confronted by too much business, do not be discouraged but consider it in its best order. 25. Be always a good manager of your time. 26. Call in speedy assistance to complete your business in time. 27. Always consider the probable consequences of what you intend to do. 28. Consult with others when necessary, but not too much. 29. Lawful gain is good, but greediness after gain is a mischievous thing. 30. Take proper times to relax from business, take time for entertainment, exercise and instruction. 31. Take care of your health and strength, be sober in eating and drinking. 32. Fly from temptations to sin, and take sanctuary in good thoughts and virtuous company. 33. Be cautious about friendships and acquaintances, to ensure your good reputation. 34. Be disposed to comply with all the innocent customs and manners of the place where you live and the company you keep. 35. Have God in your thoughts, study to know and to do his will.

2 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 levanCIJ 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, 15 February 2011 Defining Freemen's Rights over Lands

Statutory Right of Sole Vesture

Recent High Court declarations, concerning rights over land at , 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 , 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, ...

1 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 de pasture 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 , 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 1808, 48 Geo.lll 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, , 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 unti/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 until13 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.

2 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 8 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 PreseNation 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 10 April 2011 {A right of sole vesture includes entitlement to maintain an action for trespass)

FOOTNOTES 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.

3 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 'shalf 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-pres doctrine applies.

1 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 Profds 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 . .. '

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 a 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

2 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 April 2011

NOTES: Acceptable charity and the Cy-pres 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-pres 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.

3 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-pres scheme did not arise.

NB. The Charity Commission has the statutory power to apply cy-pres on behalf of a charity where no trustees remain or the necessary mandate cannot be agreed. It applies to Corporate or unincorporated associations. Cy-pres will not be applied where a charity has alternative powers to redirect its fund under its constitution.

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