Historic law

If you take a train journey through the Midlands you will probably see fields which still bear the traces of selions — the ridges and furrows which were the hallmark of the ancient open-field system of farming.

Traces of ancient law remain too.  Someone seeking to prove the existence of a highway, for example, may need to go a long way back in time. Records prepared under the Finance Act 1910 may be relevant;  and it may be necessary to go even further back.  In one case in 2010* the judge had to trace the history of a lane in Wiltshire from 1669 — an extreme  case, of course.

The process of inclosure — the parcelling-up of the open fields into separate holdings of land — started in medieval times.  It was in full swing  by the mid-eighteenth century, and was streamlined to some extent  by the Inclosure Consolidation Act 1801. It was a startlingly rough and ready process, not just by modern standards.  As barrister Thomas Coventry put it, writing in 1827**:

“Inclosure commissioners assume to themselves the most arbitrary control in the management of all matters concerned with their trust. The advice of counsel they not only never take, but uniformly reject when submitted to them.  The remarks of solicitors too, are usually treated in a way to prevent repetition….”

Phew.  The work of inclosure needs to be understood by anyone concerned with land transactions affected  by it.

Historic law is a subject of special interest to us.  In addition to the standard books on modern law we have a small library of legal texts (including Mr Coventry’s book) going back to the late eighteenth century, and will be happy to advise on issues which depend wholly or partly on past law.



* Fortune v Wiltshire County Council, [2010] EWHC B33 (Ch). The judge concluded that a public vehicular right of way had been created.

** Observations on the Title to Lands derived through Inclosure Acts.