Herts History: The Battle of Berkhamsted

Lord Brownlow (Image: National Trust)

Lord Brownlow (Image: National Trust) - Credit: national trust

A trainload of navvies, a truculent lord and a night-time raid were at the heart of an extraordinary civil rights battle in Berkhamsted which took place 150 years ago this month. Michael Long investigates the events that left a lasting legacy for our rights to roam

A practice trench still visible in the vegetation

A practice trench still visible in the vegetation - Credit: Archant

Berkhamsted Common sits on a chalk ridge overlooking Berkhamsted. It is thickly wooded in parts, there are sweeping vistas of bracken elsewhere and in spring bluebells and wood anemones carpet the ground, while overhead in summer, red kites circle on thermals. The landscape here shows evidence of thousands of years of human activity. For locals, access to the common is part of daily life. It is an open space to spot wildlife, a place to walk the dog and exercise – it provides a sense of local ownership and identity. It seems it has remained unchanged for centuries. Yet it could all be very different; 150 years ago this month, the common became a battleground for civil rights that would have a widespread impact, in a fight known as the Battle of Berkhamsted Common.

The common was once part of the royal estate of Ashridge where Elizabeth I spent time in her formative years. When the estate was sold in 1604, records indicate the right to use the common was claimed by more than 2,000 people. This usage was not for recreation but for the important practice of grazing animals, collecting fallen wood and gorse for fuel and bracken for animal bedding, as well as extracting chalk to fertilise fields. These rights were established in Common Law. It is a popular misconception that common land was (and is) owned by the public, with everyone having unrestricted right of access. In fact, most common land was owned by local lords who permitted villagers these rights under the law.

By 1864, Ashridge estate was owned by the Brownlow family. As elsewhere in England, ancient rights of access for commoners had fallen into disuse. In 1865, parliament recommended that common rights be transferred to the public at large and the government should legislate accordingly. Lords of the manor became alarmed at such a suggestion and moved to take existing common land into their estates before any law was passed. In Berkhamsted, 24-year-old Lord Brownlow decided that the rights of the people no longer applied to his land and enclosing the common would keep them out.

He was not alone in this view and in response to this attack on freedom of movement the Commons Preservation Society was founded in July 1865. It was led by George Shaw-Lefevre, a reforming Liberal MP, supported by well-known radicals including John Stuart Mill, Thomas Huxley and author Thomas Hughes. A solicitor to the society, Sir Robert Hunter, went on to form the National Trust 20 years later alongside housing reformer Octavia Hill and Lake District clergyman Canon Hardwicke Rawnsley.

In August 1865, Brownlow, more concerned with his own aristocratic privileges than the interests of the community, proposed to fence off more than 400 acres of Berkhamsted Common. Letters of protest were written to The Times and Brownlow’s solicitors responded, arguing, ‘The public has no more right to pass over the common than a stranger has to pass through a private garden.’

A member of the preservation society, radical MP Augustus Smith, had been born at Ashlyns in Berkhamsted and tried to tried to dissuade Brownlow but in February 1866 a 5ft iron fence was erected around 434 acres of the common. With no gates or access points, it cut off all paths and bridleways.

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Reacting with a radical plan to test the legality of Brownlow’s actions, Smith and Shaw-Lefevre hired 120 tough Irish navvies from the East End of London and organised a special train to carry them from Euston on March 6, 1866. There were copious supplies of alcohol on the train, which arrived at Tring Station at 1.30am. The destination was chosen to lessen the chance the group would be spotted and the alarm raised.

The men arrived at the common under cover of darkness at 3am and proceeded to dismantle two miles of iron fencing. Ordered not to damage it, the navvies punched out the metal rivets and stacked the sections in neat piles in an attempt to prevent a charge of trespass with intent to cause damage. Brownlow’s agent appeared at 7am but, alone and angry, he was powerless to undo the night’s work.

The audacity of the night-time attack caught the attention of the popular press and in turn the public imagination. The Bucks Advertiser recorded that ‘people flocked to the scene; and tested the reality by strolling on the common to prove the place was their own again’.

An enraged Brownlow brought a legal case against Smith for trespass and criminal damage, with his counsel arguing in court that those present that night were violent anarchists intent on the destruction of private property. Meanwhile, the government introduced the Metropolitan Commons Act, giving local authorities power to protect and maintain common land for the public good.

Brownlow died in 1867 and did not see the outcome of the case. His death however did not prevent the matter dragging on in the courts until 1870, when Lord Justice Romilly determined that pulling down a fence was no more violent an act than erecting one. The case, he said, rested on the legality of Brownlow’s actions in having erected the fence in the first place and the legal right of people to use the land. He ruled in favour of Smith.

It was a landmark legal decision that resonates to this day across the country. Berkhamsted Common has remained open ever since and the public allowed rights of way. Today, a common cannot be fenced off without legal permission.

The Battle of Berkhamsted Common was an early example of non-violent direct action. It was to defend historic rights of the public at large to use ancient common land. It was a major contribution to the Common Law of England and civil liberties.

A free exhibition marking the 150th anniversary of the Battle of Berkhamsted Common is on until March 31 at the National Trust visitor centre on Ashridge estate.

A commemorative walk will run from Dick’s Camp car park at 4pm on Sunday March 6 around the area Lord Brownlow attempted to enclose in 1866. Leaflets of the 6k and 3.5k routes can be picked up at the visitor centre or downloaded from the National Trust website. Tickets are £15 (children £10), including bbq and mulled wine. Call 01442 851227.

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