A Dispute Concerning Trees on Bewley Common

on Monday, 13 April 2015. 1 Posted in Lackham

In the autumn of 1706, James Montagu of Lackham sent his workmen to cut down some trees on Bewley Common, an area of land that abutted both Lackham and Lacock Manors. This commonplace country activity elicited a furious reaction from his neighbour, Sir John Talbot, the Lord of Lacock. Talbot disputed Montagu's right to fell the timber and retaliated by ordering his men to cut down all the remaining trees and remove the timber for his own use. Both parties insisted that they alone had the rights to the timber in accordance with established practice and ancient agreements, and the dispute rapidly escalated over the ensuing months.

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In confronting Talbot, Montague had taken on a formidable opponent. Sir John Talbot was in his 77th year, had been a long-term and very active member of Parliament, championing many causes and generally featuring at the forefront of political life for most of the second half of the turbulent 17th century (1). He was a committed Royalist, Protestant and Soldier and had commanded a number of regiments at various times. He survived the Glorious Revolution, despite having two arrest warrants issued against him after 1689, and was never implicated in Jacobite unrest. In short, he was a fighter, survivor, and a man experienced in the ways of the world. By contrast, Montague, aged 33, had had limited military experience and had served only three years as a rather inactive MP. He had trained as a lawyer and was a local Justice of the Peace (2).

It appears that as the dispute grew, Montague had resorted to the law to resolve the respective rights of the Manors of Lacock and Lackham to Bewley Common, to recover damages for the timber he claimed to have been stolen from him, and to bring those involved in 'his' timber's removal to justice. Court hearing were held in late 1706 but proved inconclusive and a further hearing was scheduled for January 1707. In the intervening period, apart from a verbal altercation in Lacock church, Montague and Talbot addressed the problem in a series of increasingly acerbic letters, despite both declaring to not like conducting "paper disputes".

Map of Bewley Common

In a letter dated 16 December 1706 (3), Montague reacted strongly against a response which Talbot had sent to the Justices in answer to the charges. In it, Talbot had admitted to instructing his servants to cut down the remaining trees after Montague's action and had dismissed Montague's case in contemptuous terms, accusing him of uneccessararily raising 'hue and cry' over the loss of the trees and suggesting that Montague had spoken ill of him (“you farther more mention in your letter as if I had spoke many things reflecting on you”). Montague maintained he was fully entitled to raise hue and cry over an unlawful act and strongly denied that he had ever spoken ill of Sir John Talbot. ("And to shew how cautious I was and what tender regard I had for your reputation and carachter ......... I beg'd the Justices to declare,  after ye matter was heard,  if I had not in every respect us'd you like a gentleman; which they readyly allowed in the affirmative: nay Sir for fear any thing might inadvertantly fall from me that in the least might carry the shaddow of a reflection, I there openly ask'd pardon.").

According to Montague, Talbot's letter gave "no satisfaction to the Justices" and that "both them and my self were wonderfully surprized" at its tone. As for the contempt of Montague, the Justices "themselves could not forebare takeing notice of it". Of particular concern to Montague was the accusation by Talbot that Montague, as a JP, was sitting with the other Justices in judgement of his own legal action, or, at least, gaining favourable treatment from his fellow JPs. The attack on his honour was refuted in the strongest terms with vivid references to the Law and his, Montague's, respect for it. ("As a Magistrate give me leave to tell you how fatall it must be to the Civil Libertys of England and English men should the Doctrine of being Judge in one's own case have any force; tis in my poor oppinion introducing a dissencing power which if not allowed in a Soverain God forbid should be tolerated in a Subject.")(3).

Talbot responded (4) with a claim that he could not remember denigrating Montague in his letter to the Justices (" I have noe copy of that letter by mee nor cann I charge my memories wth one word that could tend to such an interpretation") and if he had it was unintentional. He was more forceful in his insistence that, if Montague had the right to judge what was his own property, the same right should be accorded to him, Talbot ("why will you deny that libertie to mee, to judg of my  owne Right"). He also made it clear that he considered the case should never have been brought before the Justices ("Why should this interest of Tytle to land, claimed by two generall persons, bee litigated & brought before a Judicatory , in whom the Laws of England have not intrusted such a power of judging"). He also took great exception to Montague quoting a law which, Montague alleged, allowed the whipping of those who were involved in, or had procured, such an unlawful act if they were unable to pay restitution for the losses. Talbot while an MP had been involved in the framing of this law and, in a later letter (5), claims it gave no such power (“the 2 statutes you mencion, to convince mee that I may bee............lyable to the Whipping Penalties of that Act in compliance to yr. advice, I have carefully read over (the relevant act) and with some other persons whose judgmts. I much preferr to my owne, who doe not agree in judgmt with you, but doe wonderfully censure yr. proceeding in the method you have taken; it would bee very unhappy to mee if under ye. name of a Procurer I should be whipped by ye. sentence of a few Justices, upon their interpretation of an Act I was concerrn'd in the very frameing being then and very many years afterwards a member of Parlt. and gave as close an attendance (as any member of that Parlt.) and doe know that in all the progress of that Act noe man had ye. imprudence or confidence to propose an expression tending to ye. putting such a Power in ye. Justices of Peace to whipp or punish a Lord of a Manor as a procurer for hedgstraling.”).

He again took issue with Montague for being a Judge in his own case.

Christmas 1706 gave some respite but battle was rejoined shortly afterwards. Montague replied to Talbot’s letter on 28 December (6) repeating many of his previous arguments and still vigorously defending his right to use of the law to gain redress. (“With regard to what has been said give me leave to tell you if your ser:ts by your order had not thus contrary to law broke in upon my uninterupted possession, and devested me of that property I had a right too by law as well as possesion, but otherwise, if you thought your self injured, you had made use of those regular remedys the law has prescribed; neither you or I might have condemn'd each other in being Sole Judges of our property, and truly considering, what has been allways done there by my Ancestors in your fathers time and long before a why or a wherefore, I am amazed you should claym a right to that which most people by what I can find allow to be mine “).

As for being a Judge in his own case, “there is no true Judg:mts will be made of the balance till the beame is held up by the steady hand of a regular and proper judge who's busines is to adjudge matters in controversy between man and man; and who in some measure must condemn those that shall take upon them to be judges in their own cause; it being derogatory to his authority and power.

In a further letter dated 8 January 1706/7 (7), Montague returns to the possible penalties that could be applied in this case, again asserting that the law is clear that whipping can be ordered if damages cannot be paid and that Talbot has misunderstood the Act he helped to frame (“You Sr. that were at the making of (the Act) might remember that damage is first to be paid if the partys offending are able, otherwise Whipping, theres no doubt but all the persons concern'd in the fact are abilitys (sic) to pay me and my tennant our damages; so that Whipping will be out of the case”).

He also realises that he might have gone too far in suggesting that Talbot himself might suffer this fate as “I protest it never entered into my thoughts that you should ever so much as have a sight of the Rod, nay Sr. I've all along waved including you as one of those agt. whome ye complaint is made; tho I must take the freedom to tell you a Gentleman being Lord of a Mannor gives him no Authority to dispence with the Laws of England, and I fancy your order will hardly exclude them from the punishment of the Law”).

Here the ‘paper dispute’ ends. The next sitting of the Justices took place on 13 January 1706/7 but the outcome of the case is not recorded. Was satisfaction gained by either or both parties? Was the ownership of the trees established? Were any of Talbot’s servants whipped or otherwise brought to justice? Was the balance held in the steady hand of a regular and proper judge?  On these points, the record is silent. What the Lacock Archive does show is that this was only one dispute between Lackham and Lacock. Sir John Talbot had clashed with a previous owner of Lackham in the 1670s (8) over fishing rights and Sir John’s successor as Lord of Lacock, John Ivory Talbot, had further disputes with James Montague in 1720-1721 over Bewley Common. The rights to the Common appears to have been a major issue for the two Manors and their tenants for a considerable period and the relationship between Montague and John Ivory Talbot appears no better than that between James and Sir John. In an exchange of letters around 1720, concerning the management of the Common, Montague resorts to writing to a Mr Marsh, a servant of Talbot’s, rather than directly, asking Marsh to inform his master of the letter’s contents. Rapport had clearly broken down completely.

Some resolution was, however, reached in 1731; John Ivory Talbot and James Montague reached a legal agreement on the rights of their respective tenants and the Commoners of Bewley Common (9). Whether the tetchy neighbours then lived happily ever after is a good question!

Dr. Roger Cripps, volunteer.

References.

* James Montagu was not Lord of Lackham in 1706. He succeeded his brother Edward in 1710.

1.The History of Parliament: the House of Commons 1660-1690, ed. B.D. Henning, 1983. TALBOT, John (1630-1714), of Lacock Abbey, Wilts., Long Acre, Westminster and Salwarp, Worcs.

2. The History of Parliament: the House of Commons 1690-1715, ed. D. Hayton, E. Cruickshanks, S. Handley, 2002.MONTAGU, James II (1673-1747), of Lackham House, Lacock, Wilts.

3. WRO 2664/1/2H/7/2a

4.WRO 2664/1/2H/7/2b

5. WRO 2664/1/2H/7/2d

6. WRO 2664/1/2H/7/2c

7. WRO 2664/1/2H/7/3p

8. WRO 2664/1/2F/5/30

9. WRO 2664/1/2H/7/4g&h

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