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Enclosure, Rights of Way, Justices and Magistrates


 Posted by Caroline on August 21, 1998 at 12:07:14:


In response to Right of way, written by Julia on August 21, 1998 at 03:06:33


To L and T index 
Nice to see you over here! Welcome!
A Justice of the Peace was, at the time, the head of the local Law and Order bunch, before proper police forces came into being. A JP had under him a bunch of stalwart, elected volunteers , and went around locking up drunks, arresting minor criminals (such as poultry-rustlers and gypsies that assault young Harriets) A JP wasn't a lawyer, but a worthy personage appointed by the government and was originally unpaid. If I remember rightly, it was Henry Fielding who got JP's some money for their pains, making them less open to bribery.
A Magistrate isn't a Lawyer, either. In Austen's time it was a worthy person, often the local landlord, who had the power to act as Judge in cases involving local by-laws, civil disputes and minor criminal infringements of the local law. In other words, the JP arrested the Gypsies and turned them over to the Magistrate to decide what to do with them. In , Tom Jones, Squire Allworthy gets landed with the baby Tom, because he is the Magistrate.- He has to decide what happens to it, and how Jenny Jones and the Schoolmaster , Tom's ostensible parents, should be punished for landing the Parish with an abandoned baby.  Magistrates also had a hand in the administration of the poor fund, establishment  of civil boundaries, and arbitrated in cases of disputes over trespass, poaching and similar cases.
Mr Knightly, as local gentry and as a person of integrity who happens to have a lawyer for a brother, is ideally suited to be a Magistrate.
Okay, now to the footpath. I agree with you that it's towards the end of the time of Enclosure fever, but that doesn't rule it out completely.Enclosure has actually been going on since the Black Death (1362?). Surrey wasn't as subject to enclosures as other counties, having an enclosure rate of less than 10% between 1760 and 1820.I think you've really got to look for other reasons why the path should be moved. One possibility is simply that land use was changing generally. Highbury is an hour or so from London, and the city was expanding all the time. Without giving you a great long lecture on the Geography of Surrey and Farming Practices ( I could go on at length, I warn you!) suffice it to say that the farmers would be starting to think less about growing food for the immediate area, and more about providing it for the metropolis. The government had for some years encouraged a turn from grazing, especially for horses, to arable farming, as the population of the country grew, and trade was restricted by the war with France. Emma is right at the end of this war, so I think you can assume that this government pressure had an effect on Highbury.
We are told that the footpath in question goes through the 'home meadow'. 'Meadow ' is grazing land, and pretty wet. Perhaps they were thinking of draining it and converting to arable crops here. Alternatively,it might be something as simple as moving the path to a drier area, as a convenience for everyone.

Yes, there are laws and statutes regarding roads and footpaths in England. Some of these footpaths have been around since before the Romans,  and it is the public's right to be able to walk them unhindered. This right is very old indeed, and it could be that Mr Knightly's footpath is part of that ancient network. These roads cannot be blocked, or ploughed up; however, they can be diverted slightly, by public consent. Jane Austen doesn't tell us if the path is one of these old paths or whether it's just a local route from Donwell to the Home Farm, so I guess we'll never know if Mr Knightly is just being a general all-round nice guy, or whether he is constrained by law to take notice of the ancient paths in this case. Either way, it's the Magistrate's job to decide such a thing, and he needs the old map to work that one out, and see which is the best new route.
In Mavis Batey's book  Jane Austen and the English Landscape  (details in the bibliography) it is pointed out that JA's brother, Edward Knight(ly), wanted to change the footpath through the meadows from Farringdon to Chawton and asked Jane to look out the estate map for him, so that he could see the best way to do it.

I hope that helps!





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