A STRANGE TALE OF STONEHENGE

Given that the summer solstice is fast approaching, it provides the excuse to regale those interested in highway law with a tale which comes close to being very strange.  

It has to do with culs de sac[1], ancient monuments, the “vulgar public” and too much Latin.

Lord Eversley’s book “Commons, Forests and Footpaths The Story of the Battle During the Last Forty-Five Years for Public Rights Over the Commons, Forests and Footpaths of England and Wales” (Cassell & Co.) was published in 1910.  He was the president of the, then, Commons Preservation Society (which later became the Open Spaces Society by merger).  In part, the book explains the background to the fencing around Stonehenge and the legal battle which then ensued over it.

As a broad generality, it is fair to say that it is difficult to show that a cul de sac is a highway.  The problem being, of course, that it is not a through route.  The conventional wisdom is that a highway is a route which connects two separate points.  The conceptual basis for this conventional wisdom is somewhat unclear and not necessarily logical; but the best that a lawyer can do is to point to decided case-law and leave it at that, at least for the moment.

One of the leading cases was Attorney General v. Antrobus (1905).[2]  This had to do with the erection of fencing around Stonehenge in 1901.  The then owner of Stonehenge and surrounding lands was Sir Edmund Antrobus.  In 1901 it was feared that the establishment of a military camp on Salisbury Plain might lead to damage being done to the monument.  Whether this was a fortuitous occurrence is unclear; however, Antrobus then proceeded to fence around the monument.  A hut was erected at the entrance to the lands thus enclosed and an entrance fee of one Shilling a head was charged to visitors.

Objection was taken by a number of people including the Durrington Parish Council and the Commons Preservation Society[3] .  The Plaintiffs argued that the fences were obstructing public rights of way up to and around the monument.  After much discussion with Antrobus, the Plaintiffs obtained the consent of the Attorney General to a ‘relator action’ calling for the removal of the fences.[4]  The case came before Mr. Justice Farwell.  A fair reading of his judgment might lead some to wonder at his approach to the case, particularly when one has regard to Lord Eversley’s account of it.

The judgment was predicated, in the main, on the basis that the tracks leading to and from Stonehenge were culs de sac and, as such, could not normally be highways.[5] Somewhat unusually, the judgment was accompanied by a plan showing the monument and the disputed inter-connected tracks.  None of those tracks were, in terms of geometry, a cul de sac.  Not only this, but the judge's own evaluation of the evidence indicates that those resorting to the monument did not always go to it and then return by the same tracks.  This notion of a cul de sac appears to have arisen from the fact that many people were using the tracks to visit the monument as some form of attraction. 

The judgment proceeded on the basis that it was incumbent upon the Plaintiffs to show that the asserted public rights of way had arisen against the owners by way of long user.  This aspect of the argument then turned upon whether or not the public had acquired rights against the owners of the land in question.[6] Having reviewed the evidence, Farwell J. dismissed the claim. 

The Plaintiffs did not have a sanguine view of Farwell J.’s  approach to the case.  First, they were not impressed by his evaluation of witness evidence.  The Plaintiffs produced 15 witnesses with respect to the disputed track from Salisbury to Durrington.  They were mostly carters who gave evidence as to the user of the track for 50 years back with, according to Lord Eversley, remarkable clearness and evident truthfulness.  They were in no way personally interested. Lord Eversley said that this evidence was set aside by the judge on the ground of that they were persons not likely to be stopped on the way along the track by the tenants of the land through which it passed, or that they were untrustworthy in the sense that they were “illiterate, obviously exaggerating and inaccurate”.  Lord Eversley said that, by way of contrast, he accepted, against their cumulative evidence, the testimony of a single farmer, who was a tenant for a few recent years of part of the land on the route of the track.  He testified he had never seen persons use the track, except one, and after seeing him five or six times stopped him.[7]

Lord Eversley had this to say about Mr. Justice Farwell:

“It appeared to present itself to him as one in which the owner of the Monument had been compelled, is a matter duty, to erect the fence for its protection.  He assumed that damage had already been done to it, though there was no evidence to this effect, and as this was not an issue in the case, the relators[8] could not tender evidence to show that the stones had in no way been injured.  He appeared to regard with equanimity the exclusion from the Monument to the great bulk of the public.  He was evidently under the impression that the vulgar populace had, by their destructive propensities, disqualified themselves as visitors to a place of antiquarian interest.  He quoted the well-known [9] lines of Horace as to the deteriorating habits of succeeding generations of men.  He seemed to be inspired by another equally well known line of the same poet “Odi profanum vulgus et arceo” which may be freely translated “Let us fence out the hateful vulgar public.”

Indeed, the judgement ends on a somewhat odd note, where Farwell J. refers to an article by Sir Norman Lockyer who said:

“The real destructive agent has been man himself; savages could not have played more havoc with the monument than the English who have visited it at different times for different purposes.  I feel no confidence that the majority of tourists have improved, nay, rather, “Aetas parentum pejor avis tulit nos nequiores”.[10]

Thus we have two perspectives, both suitably underpinned by portentous Latin homilies.  No doubt Mr. Justice Farwell would argue that his judgement was well founded.  On the other hand, the Plaintiffs would argue that he was in some way biased.  Stonehenge is a place of many mysteries and this case appears that this is one of them.

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[1]     The exact plural of the expression is something of a debating point.  As I once said to a planning inspector, you are either a ‘culs de sac’ person or a ‘cul de sacs’ person.

[2]     [1905] 2 Ch 188

[3]     For the purposes of this essay called collectively the “Plaintiffs”.

[4]     In those days, a member of the public did not have legal standing to issue such proceedings in his own name and had to persuade the Attorney General to lend his name to the action.

[5]     There was a debate about whether the public could have prescriptive right to wander at large, but the Plaintiffs’ case clearly turned on the use of defined tracks for access and egress.

[6]     However, Stonehenge existed long before Antrobus and his ancestors had acquired any proprietary interest in it, even if the latter were Neolithic hunter-gathers with territorial ambitions.

[7]     The usual cross-examination of such a witness is to ask whether he looked at the track for 24 hours a day all year round !  Absence of evidence is not evidence of absence.

[8]     i.e the Plaintiffs

[9]     Sir Edward Marshall Hall KC once defended an Irish labourer. When asked by the judge, "Is your client not familiar with the maxim res ipsa loquitur?”  He replied, "My lord, on the remote hillside in County Donegal where my client hails from, they talk of little else."

[10]    More of the well known Horace !  Loosely translated “”The Age of our fathers, worse than that of their fathers, has bred us even worse than them”. Perhaps Horace Rumpole is more edifying here: “ Even judges are human. Not many people know that.”