An Analysis of Town Lands
Freemen are jealously proud of their ancient inherited property. Politicians and their lawyers from time to time bring lands once commonly known as belonging to Freemen into question. The argument over ownership has been a bone of contention for many years dating back to 1835. It is a sensitive subject that can cause confusion and frustration among freemen in towns throughout England and Wales
The question arises over who actually ‘owns’ the land. Land and property privileges, the subjects of royal or seigniorial charters, anciently granted to the ‘Freemen’ (or burgesses) of a town have met with several statutory changes over the years. Councils and Freemen each claim ownership and where the Charity Commissioners have created ‘perpetual charities’ then the Trustees will claim the freehold.
Following the reforms that took place under the directions of the Municipal Corporations Act, 1835, property in general passed from the old Corporations to the newly formed, elected Councils. However, the Act protected any personal rights and properties of individual freemen and citizens. This was to ensure that they would not suffer personally from the reform of local government and could continue to enjoy any such previously held privileges. Along with these privileges was, in the majority of the towns in those days, the right to graze certain town pastures (often referred to as the Freemen’s land).
The result of the actions under the Municipal Corporations Act was that in the majority of cases (nearly all) the land has remained the ‘freehold’ of the Council while the surfaces (grass or herbage) of the pastures were determined to remain in the ‘ownership’ of the Freemen. Without doubt this is a case of dual ownership. The joint responsibility for these lands means that each carries equal authority with regard to any sale, modification or development of these lands.
Town and city councils throughout the Country have been frustrated by the burden of ‘freemen’s rights’ that they regarded as a hindrance to the developments of housing and recreation for the town. In the many years since the passing of the 1835 Act, a great number of town councils have successfully bought out freemen’s rights and thereafter becoming the sole owners of these lands which have then been disposed of in various ways. This has also been a contributory factor in the disbanding of town guilds and freemen’s associations in many towns.
With the considerable value of the town pastures and particularly with their close proximity this has meant that councils, over the years, have sought legal counsel ‘opinions’ in an attempt to claim the outright ‘ownership’ of these lands. The confusion has been with the council’s coming to terms with the knowledge that they own the freehold of the lands, but that their ‘possession’ is legally with the freemen. Likewise, the Freemen having, in their possession or at least in their understanding, a sovereign’s charter that gave the land to the freemen of their town, perhaps “for ever” find it difficult to accept that this was subsequently repealed. The several Charities Acts have been instrumental in preventing any return to undemocratic monopoly. Trustees today govern most of the Freemen’s properties, with heed to the Charity Commissioners.
The many 19th and 20th century ‘Town Acts’ passed by Parliament were introduced to assist enclosure and the development of the towns. These will in most cases mention specifically the lands and property with conditions given to freemen. In so doing this has provided formal protection that can safeguard any legal attempts to remove these statutory rights (the hereditary property of the freemen).
Subsequent registration of land and freemen’s grazing rights, recorded under the Commons Registration Act, 1965, if recorded correctly will provide protection of such rights. The issue regarding ‘ownership’ is particularly one of freemen’s hereditary successions. Town pasturelands today are valuable, often scenic areas that provide open recreation for the town and general public. Conflict between the Freemen and York City Council came to a head in 1985 when the City Council introduced a private ‘York City Bill’ to provide themselves with greater powers over the management of the several ‘Strays’.
At the House of Lords, Select Committee, the Earl of Halsbury, of the eminent legal family, referred to the Enclosures Acts of the 18th century proceedings through to the 19th century. “Inhabitants of freeholds – ancient messuages in the City of York and rights associated with these buildings – Two key points- the ancient messuages can no longer be identified, no freeman can point to his house associated with the awards passed under the Enclosures Acts. Also rights under these trusts are not being exercised. No one in fact is pasturing his or her beasts on any of these strays any longer. No freeman can say on oath – I am exercising my grazing rights and have been doing so for years past as my father did before me and I am a freeman resident in an ancient messuage in such and such ward.
These comments were enough for the House of Lords to pass the Bill (in favour of the City Council) which later was thrown out by the Commons. It is as well that the Freemen should be very cautious when assuming that their case for absolute rights is seen in the modern context. It is difficult to counter such arguments in today’s circumstances. I myself had great difficulties coming to terms that the Sudbury Common lands were no longer ‘owned’ by the Freemen. When the ‘Freemen’s Lands’ were put in trust, it was for “the benefit of the Freemen”. Charity law will not allow such a monopoly and have subsequently changed this to “for the benefit of the town”. The Sudbury Common Lands trustees (typically) are made up of Town Councillors, Freemen, and members of local society. Ownership (freehold) is now in the hands of the Charity Trust.
Those who proudly recognise their ancestral connections and exclusively retain freemen’s hereditary rights (not for money) hold them in a symbolic and honoured way.
The context of ‘ownership’ may require reconsideration. Freemen’s lands are invariably in dual ownership owned jointly with the local authority. Town-land meadows in the past were an essential asset of the freemen to sustain their cattle and horses. This is no longer the case and the proximity to an ancient burgage has no relevance in today’s society.
The newly elected Councils were entitled under the Municipal Corporations Act, 1835, to the freehold of lands and buildings the former property of the old Corporations. Freemen with legal rights (not simply customary) are exclusively entitled to the beneficial property over the surfaces of the aforesaid lands. Freemen therefore have the lawful ‘possession’ of the land.
Freemen should not simply rely on custom or gift of an ancient charter. Where there is a town Act, passed by Parliament, usually for the purpose of enclosure, that mention the allocation of freemen’s rights or use (for specific purposes) then the legal ownership over the land surfaces will have statutory foundations. These will usually be personal rights held “in gross” and in law recognised (not simply as common rights) exclusively as “sole vesture” to the Freemen.
Many of the newly formed Councils after the 1835 Act bought out the freemen’s rights and these are unlikely to be recoverable. We can gain a clearer understanding of the ownership issues and of the current circumstances affecting the following example towns and cities:
Freemen’s Property in England & Wales
The Freemen’s Estate of 3,500 acres comprises An Outer Moor and an Inner Moor. The Council employs land agents. Clearly there is a dual arrangement between the Council and the Freemen.
Corporation Act 1843 – established the Resident Freemen’s rights in the property vested in the Borough.
The M.C. Act 1835 – The lands with all other property would have been vested in the newly elected Council. Freemen have governance over the beneficial properties within their rights.
Meadows – cannot be sold or leased except by or on behalf of the freemen. Income is charitably shared (after expenses) with the Borough. Attempts by the Council to buy out the Freemen’s interests have been resisted by legal defences. A Private Act of Parliament similar to that promoted by York Council was dropped. Freemen’s protection is in accord with a co-operative arrangement between the Freemen’s Guild and the Council.
1836 Pasture Act places around 1200 acres of commons under the control of 12 pasture masters, elected annually from the Freemen.
Freemen have property rights with part title to use 4 rooms in the Guildhall (Redness Hall).
Following the Municipal Corporations Act 1835, freemen’s property was transferred into the Municipal Charities of Chester, authorised by Charity Commissioners.
Rents (Divi’s) are derived from common lands and distributed via a charitable Trust. An 1870 Select Committee Return stated ‘rents’ brought in £400 p.a. In 1976 income from the Freemen’s Charity of £284 was paying £2 per freeman.
Trustees manage income from two Inclosure awards and the combined income of various charities that have been brought together.
Following the 1835 Act, the common lands were enclosed with some land sold to the Railway, the proceeds were invested (held by Trustees) and a half yearly dividend is paid to resident freemen.
The Low Pasture (550 acres) rights extinguished and compensated by payment and the Crimpsal Stray was sold to the Railway in 1840 dividends from Trustees were paid to resident freemen (in 1973 only 3 resident freemen were remaining to collect payment).
Freemen are Trustees with representatives of the Council over land that is now public recreation.
The Gloucester Corporation Act 1894 extinguished freemen’s rights and compensatory money was invested into the Gloucester Charities Trust that includes representatives of the Council and the Freemen.
Freemen receive dividends twice yearly from a ‘Pastures Roll’ on rents received in respect of land vested in the Freemen.
Under the Portfield Inclosure Act 1838, of 600 acres, 251 acres were allotted to trustees (in lieu of grazing rights) ‘for the benefit of the Freemen’ and a dividend from lettings is distributed each year to each freeman.
Freemen’s lands were acquired by the City Council and compensatory payments invested. Freemen’s rights were secured by Leicester Freemen’s Acts of 1845, 1898 and 1922. A ‘Board of Deputies’ now administer an estate of 35 bungalows at “Freemen’s Holt” awarded to freemen rent-free as a charitable trust for needy resident freemen and widows.
Rights over certain commons were extinguished by the 1851 Railways act, Lincoln City Commons Act 1870, and the 1915 Lincoln Corporation Act – compensation from sale proceeds were invested into the Lincoln Senior Freemen’s Fund and the Freemen’s Charity Fund. Payments by seniority are paid to resident freemen and widows.
The freemen have grazing rights over 284 acres of Burgess Lands that are administered by Town Trust 1883 set up by the Charity Commission.
The old Corporation resisted the initial reforms of the 1835 Act by arguing that they were directed by royal charter and were not a regular municipal organisation. A local Enclosure Act in 1821 divided Malmesbury Common into about 280 allotments of a little over an acre each. These allotments are governed by a charitable Trust and income is distributed to freemen and to local good causes. The freemen today style themselves ‘The Old Corporation of the Warden and Freemen of Malmesbury. They were eventually brought under the general reforms by the Malmesbury Borough Act 1883 that ensured the civic authority was with the elected Council and that local government was in line with all other boroughs. The freemen’s ownership of property is through ‘possession’ of their personal rights.
Around 90 acres of ‘Flos Lands’ are vested in Trustees under a legal scheme, – provides a net income distributed to resident freemen.
Local Act 1859 Proceeds net of the sale of 214 acres of commons invested. The Newcastle Burgess Act 1967 extended the powers of investment.
Freemen’s rights have been secured under the Town Moor Act 1988, which updated several past Acts to ensure the freemen’s legal entitlement over the land surfaces.
The Northampton Corporation Act 1882, provided income from surrendered rights through a ‘perpetual charity. This was ceased in exchange for a lump capital sum of £10,000 under the Northampton Act 1988.
A committee of 8 Freemen Trustees and 14 Consolidated Charities Trustees manages The 80 acre Town Close Estate. A distribution of income includes freemen’s pensions and children’s education.
The Freemen of the City of Oxford have grazing rights over Port Meadow of 300 acres it is not clear if they receive any distribution income. The land is the freehold of the City Council who also manages the grounds. A small pension for aged freemen and widows is paid from invested compensation money from the sale of land to the Railway in 1850.
Burgesses had stinted grazing rights, recognised by the 1835 Act, but these have subsequently lapsed and are subject to further investigation.
Historically the Free Burgesses have held rights to “Acre” allotments in once a 70 acre area known as the Coton Field. In 1830 the Corporation occupied the ‘Coton Field’ a part of the estate of Earl Talbot the Lord of the Manor of Coton. In 1836 the Corporation drew up formal regulations as Trustees (no one to hold more than one plot). A dispute led to an enquiry in 1874 through Chancery that recognised that the land was the property of the Corporation under an earlier decree. An Enclosure Act 1880 extinguished burgesses rights over various lands and further regulated the Coton field letting with preference being given to senior Freemen and entitling the retention of an allotment for life. The free burgesses were able to gather more lands and by 1976 this amalgamated to 200 acres to be called ‘Stafford Common’.
Freemen have rights over 33 acres of meadow and a right to place a stall on the market.
Freemen anciently inherited grazing rights to the wastelands and over stubble of arable lands throughout the borough. The Sudbury Lands (enclosure) Act 1838 was introduced to extinguish the freemen’s burdensome rights in order to allow development of the Town. Allocation of lands in compensation increased the sole grazing lands exclusively the ‘Freemen’s Lands’. An 1897 Scheme was set up to form the Sudbury Common Lands Charity, the Trustees made up of Freemen and Councillors managed the lands ‘on behalf of the Freemen’. In 1987 the scheme was revised, by direction of the Charity Commission, and the distribution of income from letting grazing rights (sold annually) and the proceeds are distributed to benefit elderly, needy freemen and for local good causes.
Until the 1840s the four municipal wards each with their own ‘Stray’ each managed the exclusive grazing rights of the ward freemen. A local York Enclosure Act 1907 took control of the Micklegate Strays and compensated the freemen with £1,000 annually before in 1930 commuting this to a lump sum of £33,333. The other three strays came under the control of the corporation by mutual agreement in 1947, 1948 and 1958, the City Council agreed to maintain the strays for the benefit of the freemen and to make a small annual payment to the Ward Freemen. This agreement was subsequently found to be “ultra vires” so the corporation ceased to make the payment and have refused to return the strays. An attempt by the Council to take complete control over the strays, through the York City Council Bill introduced 1985/86 failed. The City Council continue to manage the lands while refusing to have any meaningful dialogue with the Freemen’s Strays Council.
Many of the old borough freemen in towns throughout England and Wales may have done little to resist the changes that left them deprived of their personal property rights. It is most probable that a large majority of the civic-minded members of the old corporations simply transferred to become elected councillors. In such cases they probably were more able to hang on to some of their old privileges and traditions. In towns where the freemen were persuaded to sell off their privileges it is unlikely that their rights could be re-established. Freemen elsewhere that, even today, do little to protect their rights may regret their lack of actions. The dual ownership that clearly exists suggests that the best course of future actions should be carefully delivered in a harmonious and professional partnership between Freemen and Council or Charity Trust Committee when they apply.