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33. I understand that Great Malvern is only three miles away?-Within the six-mile radius.

39. There has been no mention made that either the Local Authorities or the public of Great Malvern have ever used it to any great extent?-The Great Malvern Local Authority were represented, and they rather associated themselves with Worcester in the feeling that it was very desirable that this common should be regulated, as they regarded it as an open space of great benefit to the inhabitants of Great Malvern. I am not binding them, but that was the general impression made on my mind at the Inquiry.

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42. I am rather inclined to think is there not an Act of 1844 or 1845 which stipulates that the Board must assumeI am not sure of the wording of it-that the person claiming to be the Lord of the Manor must be deemed to be the Lord of the Manor?-Well, Sir, you are taking me over ground I am rather unfamiliar with.

43. I rather think the man who claims to be the Lord of the Manor is entitled thereon to take objection to the application of the Act of 1899?-That is right.

44. But you are not bound to inquire whether or not he is the Lord of the Manor if he is alleged to be the Lord of the Manor?

Mr. Gibbins.] But in this case there an overwhelming demand against this Order.

Wars

Mr. Forestier-Walker.

45. The Earl of Beauchamp is prac

[Continued.

tically the owner of it after all?-He is the owner of the soil.

Chairman.] The Act of 1845 says that the person who is alleged to be the Lord of the Manor shall be deemed to be the Lord of the Manor. It is a very stringent provision indeed and we came across it and had a Select Committee about 1916 or 1917 on it, and there were some proposals made then, but they have never been put into effect.

was

Mr. Gibbins.

46. Up to now how many people have been using the common: Is that known at all? I should like you to ask the applicants themselves, but I think there were certainly seventy or eighty present at the Inquiry, and I do not think that was quite all of them. Perhaps you will address that question to Messrs. Hastie, they have one or two witnesses. I do not want to give you a wrong figure. Chairman.] May I call the attention of the Committee to the fact that there a Select Committee in 1913, and this is one of their Recommendations, No. 24: Your Committee recommend that in all cases where a person claiming to be the Lord of the Manor or owner of the soil takes objection to a Regulation or Order, such person shall be required to prove the title under which he claims to exercise manorial or other rights over the common." That the recommendation of the Select Committee in 1913, but unfortunately it is not statutory, with the result that I believe we must assume the person who alleges himself to be the Lord of the Manor is the Lord of the Manor, then, as in this case, there can be no proceedings under the Act of 1899. I hope I am clear.

was

Mr. O'Grady.] I am glad you raise the legal points, Mr. Chairman, but I do hope we shall be satisfied upon the points you have raised, otherwise I should strongly object to the Order. There is the question of expenses. I cannot understand the nebulous character of the provisions with regard to the raising of expenses on the common; for instance, "As far as any expenses incurred by the Conservators in the execution of their powers and duties shall be defrayed out of voluntary contributions by private individuals." It is quite clear that the people subscribing in a form of that kind will demand something back for their voluntary contributions probably later on. They have

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rights over certain forms of contribution, and with regard to the Local Authorities who are to be involved in this matter I should like to be fairly clear before we agree to this Provisional Order what the Local Authorities are going to pay and by what method they are to raise it. It seems to me that unless something is done in that direction, the whole common will go to ruin from the point of view of damage.

Chairman.

47. Can you give us any guidance on that point?-With regard to the contributions of private individuals, I think that is a general clause which is inserted, and I do not think that it can lead to quite what the last speaker referred to, but I suggest for example that the Lord of the Manor might make a contribution if he liked over and above what he would have had to pay in rates. I submit to the Committee that it is just as well to get private individuals to pay if there is any kindly disposed person, and I should like to leave the possibility of getting contributions in that way rather than strike it out. I do not think I can say anything on the point of the Local Authority making a contribution, but if they are interested in the common I cannot conceive of their not making a contribution, and if they did I assume it would come out of the rates.

48. They are voluntary?—Yes.

Chairman.

49. They are compulsory rates, are not they?-Quite,-as regards the Commoners. Mr. Forestier-Walker.] But they cannot impose a rate for this purpose.

Chairman.] It says: "So far as such expenses are not defrayed as aforesaid, then by means of a rate or rates to be levied by such of the Conservators as are persons entitled to rights of Common upon the persons so entitled "; that is, the parties claiming the right of common are the persons on whom you can make a rate. My legal point still remains, whether or not the Corporation will have any commonable rights. I question it very much, but we can leave that till we are considering our report.

Mr. Piers Thompson.

50. I want to know what are the terms of the appointment of the Valuer, and is

[Continued.

it open for objections to be made to him? -The appointment of a Valuer varies, of course, with the different Orders. We have had Orders that were confirmed by Parliament years ago, and the Valuer is still engaged on his duties, but in this case I am hopeful that, as he has the comparatively (I say advisedly "comparatively ") small duty of determining who the Commoners are, he will merely do the work in his own time, he will summon meetings and give notices, and when he has completed that work, by making an award to the Ministry for confirmation, his duty will be ended.

Chairman.

51. Will he be a local man or a Government official?-Not a Government official; he is appointed by the persons interested; they meet together and appoint John Smith to do the work. It is a purely temporary job.

52. If ten years hence a claimant turns up who claims common rights?-Then I think he must be for ever silent, if he does not make his protest now. Of course, the commoners are not far away from the seat of the common, and it is open to the Valuer to advertise that he is holding meetings and is open to hear claims.

Sir H. Buckingham.

53. I should like to be satisfied on one point, and that is, as I understand it, until the Valuer has entered into the claims of the alleged commoners, it is not known who the commoners are?-That is strictly the case.

54. That being so, I do not understand what this means exactly: "The written consent of persons representing not less than two-thirds of the property affected have to be notified to the Ministry "?— Quite so.

55. In that case it is just possible that two-thirds of the 70 or 80 people, or whoever they are, might be shown not to possess the right?-Exactly. I am afraid the Ministry has to proceed under the present Act by putting the cart before the horse. I should have hoped, as a matter of fact, the Valuer probably would have looked through the names of the people who signed this document; but the best advice I could obtain locally

56. Is not it possible the whole of this application is out of order, because the

16 July, 1924.]

Mr. A. T. A. DOBSON.

[Continued.

people making the application may have. no right to make it?-I think, strictly speaking, that is so, but that is the fault of the Act of 1876, I am afraid.

57. It is rather an important point?-I think it is.

58. We may be making inquiry into something which is not required by anybody having a right to make it.

Mr. Forestier-Walker.

59. Do you think there is any doubt who are the people entitled ?-I think if you go to a village with a limited number of inhabitants, and they all come to the Meeting and know all about it, you may be fairly sure as to who are generally entitled-but I may say when I first held this Meeting this was entirely new to me, and it did seem to me it was a question of putting the cart before the horse; but it was the way it had to be done, I am afraid.

Chairman.

60. I believe that there is only one definition of the persons entitled to a night of Common in this country, and they are the occupiers of land, and the occupiers of a house under certain circumstances to estover. The general idea that everybody in a village has the right to turn pigs and geese on to a Common is all wrong?—I think that is quite wrong, but I think, as a matter of fact, notwithstanding, that that has been, to a certain extent over-looked on the one or two rare occasions when this procedure has been adopted under the Act of 1876. I may say that Messrs. Hastie represent the applicants, who are, strictly speaking, the promoters, but I regard them rather as applicants, and I think they want to address you; and there are some witnesses they are producing. Mr. Hastie himself is here on their behalf.

(The Witness withdrew.)

ARTHUR H. HASTIE, called in; and examined.

Chairman.

Lord

61. I think you represent Lord Beauchamp in this matter?-Yes. Beauchamp put this Scheme forward as what he believes to be for the advantage of the inhabitants, and of course I have heard what has been said about the one Act and the other Act, and I would just like to say this: that I am, I think, responsible for the selection of the Act. There are two ways of dealing with a Scheme of this kind, to make it very local, as it was in the old days of the Manors, or to extend it for the general benefit of the public. It happens that I have had a good deal of experience from the time when the thing first began in the regulation of Ashdown Forest, which I think is a matter which has been very well done; it is a very, very large common, and what has been done there has really been done in the interests of the larger area, and I thought that that was the proper way to do this.

Mr. Forestier-Walker.

62. Under the Act of 1876?-Yes. If I am wrong I am wrong; there was the choice between those two methods, and it seemed to me that, in these days of improved transport, and so on, it was better to have the wider area; that is the reason why this method has been chosen.

Lord Beauchamp really has very little interest in this matter, except that he wants to do what is best for the inhabitants, and he is incurring the whole of the expense down to the time when the Order will be made.

Chairman.

63. May I ask: Do you agree with me as to the strict meaning of the words "commonable rights," and that they are only vested in the occupiers of land?-The rights of common, as I have always understood, are that the owners and occupiers of certain lands are entitled in the summer to turn out as many cattle as they can have levant and couchant on their ground during the winter.

64. That really, technically, excludes the rights of any residents, as such, unless they occupy land? Of course, that is so; there are those people who have got legal rights, and there are, nowadays particularly, a very large number of people who have not legal rights who would like to take them from those who have, and every person you put in who has not got the right takes so much away from a person who has. Public policy seems to have got rather out of the bounds of common honesty a long time ago. Of course, if you have to do that you must do it.

65. I see you agreed, on behalf of Lord Beauchamp, I take it, to conservators being appointed representing

16 July, 1924.]

Mr. ARTHUR H. HASTIE.

the Councils of the City of Worcester and Great Malvern?—Yes.

66. Strictly speaking, the inhabitants of those districts have no right on these commons, and the point I was going to put to you was this (you may not want to answer): Would Lord Beauchamp be willing that we should put words in the Order which would make it quite clear that the Valuer could not exclude these people?-I heard what you said, but I cannot entirely agree with your view that people could practically be removed from the common. There is no law of trespass in England in the ordinary sense of the word, except that you can be restrained by an injunction from going on to common land; but that is only done rarely.

67. I have seen it done; that is the reason I put the question.-When some hunting man asked the late Lord Chief Justice Cockburn what he should do if he was stopped by a farmer when he was crossing a field, the answer was: "Throw him a shilling and tell him you claim no right." I think that is the way to deal with a claim of that kind. If you say you are not claiming any right you will find that no Court would grant an injunction; there is no summary procedure against a man for trespass, unless he actually does damage.

68. If it would facilitate the granting of this Order, would Lord Beauchamp and the Trustees of the Croome Estate agree that we should put words in the Order making it quite clear that the residents of these urban districts have certain rights over the common: would Lord Beauchamp agree to it? I am sure he would. I think I am entitled to say that anything this Committee wished to put in which they conceived to be to the public benefit, Lord Beauchamp would agree to.

Mr. Forestier-Walker.

or

69. That is the point I should like cleared up. My own impression is that the Valuer will have no power of deciding whether or no (I do not think it is his job) the inhabitants of Worcester Great Malvern have or have not a right there. I do not think it is his job?-I am afraid that my knowledge is not as extensive as it might be; but, certainly, with regard to Ashdown Forest, which was one of the large commons regulated under these schemes, everybody passes freely all over the place.

Chairman.

[Continued.

70. Unfortunately the legal adviser of the Board is not here, otherwise we could have his opinion, but I have always understood that the Valuer can really decide that if an Applicant does not hold land in the parish he has no commonable right over the waste?-Is it possible that we are disagreeing about what is meant by "commonable rights"; commonable rights are the rights of pasture, they are not the rights to go over the common; those belong to the whole of the public. The right of common is the right to take herbage, it used to be supposed it was by the bite of beast; but the House of Lords decided it could be taken by the scythe as well. It used to be only to take it by the bite of beast. Commonable right has nothing to do with the right to walk over a

common.

71. My submission would be this, and that is the point I want to deal with, that the public, as such, have no right at all over a common, that they could be excluded by the Lord of the Manor, if there was no doubt about the Lord's title to the manor; all I would like to make clear, is this: if it would facilitate the granting of this Order, would Lord Beauchamp and the Trustees of the Croome Estate agree that there is no doubt as to the right of access?-As Mr. Thompson puts it, the only question is whether you could get your clients to agree to words being inserted in the Order; they are not, I think, in the draft Order? I think they are not in the draft Order, but, on behalf of Lord Beauchamp, I am sure he would agree to that.

Sir H. Buckingham.

72. In the draft Order the Conservators are to be given the power to regulate all those things?-I think that meets the point.

Chairman.

73. I will argue that later on, if I may?-Does not that cover it? I remember that is in it now.

74. It is quite understood, I take it, that, so far as you are concerned, you would be prepared to advise Lord Beauchamp to that effect, and you think he would agree?-I am certain.

75. It would facilitate the granting of the Order if that were done?-For what it is worth, I may say the Solicitor to the Croome Estate is here also. I may say

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ALEXANDER SLATER, called in; and examined.
Chairman.

77. I think you are head Forester for Lord Beauchamp?—Yes.

78. And you have held that post for 27 years? Yes.

79. You are more or less in touch with the smallholders who claim common rights? Yes.

80. Would you mind telling the Committee all that you can about the smallholders and the rights they claim?-As far as I know the rights have always been recognised. The smallholder was always a man who had a little pasturage of some kind, even if it was only a small orchard to keep a few sheep in, or held land of two or three acres. A good many of the smallholders have land, let from the Estate, adjoining Old Hills, where they can easily turn out from the pasturage on to the Old Hills, to the common adjoining, and a good deal of the land so used is let to the smallholder for that purpose really. Perhaps more so years ago thar lately.

81. There is no limit on the number of animals? That is where the chief trouble is; there has been no limit since the Court Leet. They had a Committee in the old days when there was the Court Leet, but they are practically obsolete

now.

At that time the Court Leet had a Committee (which I think Mr. Brickell, one of the witnesses, would know more about) to say practically how many animals should be turned out on to the common. This last few years there has been no Court. With regard to what has been said as to the number of animals turned out in each case, it was chiefly smallholders practically that were turning out on the common a limited number of sheep and cattle.

82. You say many of the holders hold pasture or orchard in addition to their cottage? That was a small orchard of a half or a quarter of an acre which was recognised in the old days, where the man could keep his animals during the winter.

83. What animals could a man keep on a quarter of an acre orchard?-Three or four sheep.

84. To your knowledge, apart from people who occupied land, did anyone else exercise any right of common?-Chiefly land holders.

85. Anyone else?-Well, We are in doubt whether some men have no business there; it is very difficult to define who are on the common at the present day.

86. You are rather inclined to think, or suspect, that there are people who do not hold land who do turn animals on the common?-We have known that there have been horses brought out from the City of Worcester on to the Old Hills when they have no right or privilege to use Old Hills.

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87. Is there any cutting of firewood there? Very seldom. We are not troubled much with the cutting of firewood. We have been troubled with fires. Two years ago, when we had that warm weather, a good deal of the gorse and that was destroyed

88. Have any cottagers claimed the right to cut firewood?-No.

Mr. Forestier-Walker.

89. Is there any wood to cut?-Yes, there is some very old historical timber, and when there has been any dead timber we have observed the very old right that if there is any timber the Lord of the Manor takes its away; but we say the cottagers have a right to the firewood.

Chairman.

90. What about turf?-No, turf has never been allowed to be cut.

91. You have a phrase in your statement which I do not understand; it is my ignorance, no doubt: "Within the last six years, since there has been no Hayward in charge ". What does that mean? -The Hayward was chosen by the Court Leet A Hayward is a kind of warden of the hill.

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