Chapter 2

A Unique Document

 For much of the information contained in this and subsequent articles on the Stray, we owe a debt of gratitude to the late Mr. Alec Currie who more than half-a-century ago came into possession of a file and cuttings book which had belonged to Samuel Powell Jnr., who succeeded his father as Under Steward of the Honour of Knaresborough and who was far and away the foremost lawyer in the area and the progressive spirit who chiefly influenced the process whereby Harrogate was transformed from two villages into a united and prosperous town.

Mr. Powell's commonplace book contains a wealth of information about old Harrogate. Without it, for example, the history of the Stray from 1778 to about 1850 would not now be known. Mr. Currie, many readers will remember, was for many years from the early 1930s a leading member of the Stray Defence Association. His precious volume is, among other things, a source of information about controversies which took place before local newspapers existed to record them. It was a singular act of friendship on his part, for which one is forever grateful, that he gave me the unique opportunity of studying Mr. Powell's memoranda in detail.

The early history of the Stray contained in the book starts 14 months after the issue of the 1778 Award, on October 21, 1779. Within the first year, the gateholders found that the abuses which could have been foreseen were being practised. Unauthorised people were grazing cattle on the Stray and, possibly, some gateholders themselves were grazing more animals than their stint allowed.

The law recognised only two actionable offences in relation to the Stray. To exceed the stint or to pasture without any authority would be a trespass for which the remedy could be at the suit of the gateholders themselves. To dig pits, pollute the springs, or dump rubbish on the Stray would be a public nuisance.

In respect of unauthorised pasture it was necessary to sue for trespass; but who would sue? Some gateholders would have leased their right to pasture to others, as they were entitled to do, just as they were entitled to sell their gates. Others, with a tiny holding of half a gate would not greatly care who pastured what, since their grazing rights were so very limited. In short, there would be no hope of getting all the gateholders to take a common action in trespass against offenders.

Thus it was that in 1779 a numerical majority of gateholders got together and subscribed to a deed in which they undertook to take group action to protect themselves against trespasses by unauthorised persons who were putting cattle on the 200 acres either in excess of their stint or. more probably, having no stint at all allotted to them.

The deed was signed by 15 gateholders. It appointed Matthew Thackwray, innholder (not, I think, of the Crown Hotel but more probably one of the High Harrogate Thackwrays) and John Dearlove, butcher (very probably father of the John Dearlove who came to own the Queen Hotel) to be responsible for conducting or defending cases in connection with the Stray including cases involving their "pinder" and herdsman who was responsible for impounding trespassing animals. In a sense, this was taking a stick to crack eggs. They could look for no more than damages at the end of a possibly tedious action in trespass.

How long this arrangement by deed held good it is impossible to say. The ownership of Straygates tended to change hands and in any event when a Straygate holder died whoever acquired the holding would hardly be held to have inherited the obligation to group action contained in the deed. Clearly, no voluntary grouping of either some or all of the gateholders for any particular purpose could be sustained for very long. In any event, even where a majority agreed to act in a common cause they would resent the failure of the minority to share in the responsibility. The most solemnly signed and binding deed would be vulnerable to those circumstances. The likelihood is that the only people to benefit from the 1779 deed were the lawyers who engrossed it and who would be paid for that service.

It seems to have taken about ten years for the realities to sink in about this admittedly strange situation where private ownership of grazing rights conflicted with public rights of access and where wrongs could be righted only doubtfully. At last it was realised that the one certain means of changing the situation by way of improving it would be an unanswerable instrument of law and from 1778 onwards this meant nothing less than another Act of Parliament.

This prospective new Act would constitute the fourth Enclosure Act for in addition to the 1770 Act and the 1778 Award which ranked as an Act there had been an Act of 1774 fortunately not in the least concerned with the Harrogate Stray.

What will forever be remarkable about the new Act which was passed in 1789 is the fact that it remained a dead letter in the sense that its. instructions were never acted upon. Nevertheless, its provisions are essential to an understanding of the history of the Stray and the relationship between the public and the Straygate holders because, dead letter though it was, it established some ideas which were to inhibit all progress over the next 50 years.

The 1789 Enclosure Act was to no small extent the brainchild of the Straygate holders. One might guess as much from its contents in any event, but we have in the Powell File a most interesting document which precedes the 1789 Act but which is undated. We can identify it as to time (i.e. circa 1789) by what it says and by whom it is signed. It contains eight signatures all gateholders, six of whom were named in the original 1778 Award and who also had been among the signatories to the 1779 deed. The eight were: John Ingilby, Charles and James Brown, Thomas Russell, Thomas Wilks, William Bainbridge, John Watson, and Robert Burnand. Of these William Bainbridge and Robert Burnand were not signatories to the 1779 deed.

This document asks for certain clauses to be included "in the Bill now depending in Parliament for amending the Act for dividing and inclosing the waste etc. of the Forest of Knaresborough".

Though the gateholders were, as always, primarily concerned with protecting their own interests, their suggested clauses ranged a little further and included the protection of the wells. Clearly, the need for reform had extended well beyond the mere need for the gateholders to be protected against "pirates". But in seeking to cater for their needs and the need to protect the mineral springs they worked on hypotheses which were to become established.

For example, the gateholders were of the opinion and held it as a fundamental principle that they should not be exclusively responsible for improving the ground by draining and levelling it. obviously though they would benefit from the improvements which would ensure better feed for their cattle.

The solution to the need to improve the woeful condition of the Stray, as they saw it, and to protect the wells, should be by voluntary subscription. Access to the waters, and the waters themselves, should forever be free. The only revenue by imposition would come from penalties for abuses or non-observance of rules; all other revenue would be given voluntarily and that included gateholders.

The document noted that "divers gentlemen and others resorting to Harrogate have declared themselves ready to contribute." The machinery for putting these ideas into effect should be by the appointment of Trustees for making rules, directing improvement and generally enforcing good government. There was no provision in the suggestions for perpetuating the body of trustees but then the gateholders wisely left it to Parliament to alter and amend the suggested clauses as it saw fit.

Also in this document we get some practical suggestions about improvements. Not surprisingly, the gateholders put their own interest first. As soon as sufficient money has been raised voluntarily, the Stray should be drained and levelled. Not more than a total of 15 acres should be fenced and planted with trees (one charitably assumes that fencing meant cattle guards to protect the saplings from the grazing cattle) and converted into walks and otherwise ornamented for the advantage (note the sequence) of the owners of cattlegates thereon and "for the health, convenience, and recreation of the company resorting to Harrogate". No building should be erected in any such enclosure for the sale of wine, spirits, or any other necessary of life.

Parliament passed the 1789 Act much, one assumes. at the instance of the Duchy of Lancaster (which had an abiding interest in the area) and in doing so exercised its wisdom a little differently from the ways suggested by the gateholders.

Acknowledging that the 1770 Act had contained no sufficient powers or directions for improving the Stray, planting on it, and for securing the springs from injury, the 1789 Act granted an additional 15 acres of land along the verges of adjacent Forest roads, hitherto the property of the Crown. which should rank as Stray to make good the loss of land on the Stray proper which would be occasioned by prospective improvements, trees, paths, and walks.

Instead of setting up a body of Trustees, as the gateholders had asked, for the future management and improvement of the land and springs, the 1789 Act harked back to the self-same Enclosure Commissioners who had made the General Award of 1778 and required them, or any two of them, to make rules for (a) preventing and punishing abuses which arose from turning cattle on the "spot" (200 acres!) contrary to the stint as limited by the Award; (b) improvement; and (c) for protecting the wells from pollution or other injury. The commissioners in making rules could provide for moderate penalties not exceeding 40s. for any one offence.

When the Enclosure Commissioners had made the rules their authority would cease and the right to amend, vary, or enlarge the rules would be vested in the Duchy Chamber of Lancaster "as that court from time to time should think expedient".

Two important restrictions were laid on the commissioners in making the rules. The regulations laid down about the stint by the 1778 Award (i.e. the number of animals which could be grazed) must not be changed and (here we get the great stumbling block for the future) the rules must not contain by any method whatever the levy of an assessment or charge on anyone to provide for the improvements to the Stray or for the protection of the springs. Any rules about expenditure must be based on the understanding that only monies raised by voluntary subscription could be used.

Thus the provisions of the 1789 Act ensured that the public's right of free access and free consumption and use of the water should be maintained; that all improvements of any kind should be met out of voluntary subscriptions; that no charges could be levied for any such purpose; and that the gateholders were not to be made financially responsible for any improvements to the land they grazed. The commissioners were to devise the rules but thereafter only the Duchy could alter or amend them.

It is idle to speculate on how things would have gone had the Enclosure Commissioners made the rules the Act of 1789 required of them.

Ever afterwards in petitions and requests for action to be taken to get the management of both Stray and springs on an organised footing it was stressed that the Enclosure Commissioners had failed to make any rules under the 1789 Act, and that in the absence of these the Duchy Court was powerless to act since there was nothing to amend, alter, or enlarge. Worse, the commissioners finally died off and it was then self-evident that the Act itself was effectively a dead letter which nevertheless enshrined two principles; the 1779 stint must not be varied and no charges should ever be levied for improvements.

Here, thanks again to the Powell File, we have an item of hitherto unknown history. The commissioners did in fact draw up rules which were never ratified. In the file is an original and unique document, the draft of rules compiled by three commissioners in 1792. Why this draft was never ratified is something of a mystery though the explanation may lie in the fact that the document is headed "for improving and ornamenting Harrogate Stray". Perhaps a further set of rules was envisaged, for the document significantly omits any mention of the management of the stint or its protection from abuses of trespass. The document is wholly concerned with the public's interests.

Be that as it may, the document remained, and remains to this day, in Mr. Powell's file. Its interest lies in telling us how, within the restrictions imposed on them, the commissioners hoped to safeguard the public's interests. Under the draft rules, five gateholders were initially to form a committee for the dual purpose of improving the Stray and protecting the wells. A special kind of vestry meeting of the wealthier land-owners or tenants was to be held each year to elect the committee which, though its members could seek re-election, need not thereafter wholly consist of gateholders.

The improvements envisaged make interesting reading. The Stray was to be drained and levelled and trees were to be planted. A dry ride was to be made on the part of the Stray then known as The Circle which in effect one judges to have been the racecourse.

As for finding the money for all this, the rules as drafted contained the principle enunciated in the Act which. had obviously been inspired by the gateholders who were to have no direct responsibility for raising funds. All must be by voluntary subscription.