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Chelmsford, Friday, March 12. - The King, v. Wellesley Pole Tilney Long Wellesley. - This was an indictment which excited considerable interest in the county, as it was to try the right of the public to a right of way through Wanstead-park.
Mr. Serjeant Best, on the part of the prosecution, stated, that he appeared, to vindicate the right of the public against an attempt, which, for the first time, had been lately made to deprive them of an ancient right of way. The defendant, as they well knew, was a gentleman of high rank, who had lately married an heiress of most extensive possessions in their county. For him and his family, the serjeant professed he felt the most profound respect; but within a "little month" after his marriage, while it might have been expected the defendant would have been far differently amused, he began to new-model all the household. The ancient and approved servants of the family were dismissed, and the administration of family affairs confided to new hands. They began to discover rights, which those who for a series of many years had managed the estates, had never dreamt of; and one of their first acts was, to attempt to shut the public out of Wanstead-park, through which there had been an immemorial right of way. He should prove, that the way existed even before the way was enclosed as a park. Wanstead house had belonged to many eminent persons, and among others, to chancellor Rich; from hence it descended to sir Josiah Child, who was the ancestor and founder of the Long family. The earl of Castlemain inherited it from the Childs : from lord Castlemain it descended to sir James Tylney Long; and the present defendant married the heiress of that family. None of these persons whom he had mentioned had ever ventured to dispute the right of the public - it remained for the present defendant to make that bold attempt. In fact, he had already stated, that the place in question was formerly part of the public forest of Waltham; and although the king might of his grace have granted to some of these noble persons the right to enclose a part of the forest to make it a park, yet he could grant no more than belonged to him; he could not grant away the subjects right; he might give away his own land, but nothing short of an act of parliament could deprive the subject of his right of road. He, therefore, should call his witnesses to show that at all times there had been a public road through the park. He had 32 witnesses present, and he should go on calling them until his learned brother should cry out, "hold, enough." Many of them were the most respectable magistrates in the county, and many of them aged persons, who would carry the thing as far back as human memory could well do. He understood that some distinction was to be taken as to waggons, &c.: but the law of England knew but three sorts of public roads - a foot-road, a bridle or horse-road, and a carriage-road; and if he proved it a carriage-road for any one sort of carriage, it was a road for all purposes; for where a chariot had a right to go, a dung-cart had an equal right to follow; but if they should prove that no loaded waggons were ever seen in the park, he had a very easy answer, for there was a sharp and steep bank as one part of the road, which made it more convenient for a loaded cart to go round, and he should prove empty ones in abundance passing through the place. He would call his witnesses, and incontestibly prove these facts.
Benjamin Bigg, the first witness, was a surveyor; he produced a plan of the roads claimed. The one was from Ilford and Romford to Woodford or Wanstead, which entered at a gate called the Flat or Forest gate, went through the park in front of the house, and went out at a gate called Wanstead gate; the other was from Laytonstone to Ilford, and entered at the iron gates in front, and nearly passing the house, joined into the other road. He had known the park for many years, and always had used these roads as public highways; the gates were swinging gates; and had no locks upon them.
- Appleton, late steward in the family, stated, that, in the month of April last he shut up the gates by order of Mr. Wellesley, by a chain and lock. Mr. Wilson came with a blacksmith, and forced them open; he again, by like orders, chained them, and ordered a trench to be dug across the road. Once, during sir James Tylney Long’s time, be shut the gate, but, Mr. Bosanquet and Mr. Bamber Gascoigne immediately sent to sir James, and insisted the gate should be opened. Sir James told him to re-open the gates, saying, he did not choose to have a rumpus about it. Except on these occasions the road had always been open.
Thomas and John Wilson, esqrs. two gentlemen of the neighbourhood, had known the park all their lives, and they never knew any interruption to the public in using these roads.
James and Josiah Ogle, esqrs. - one had known the park 32 years the other nearly as many. They proved it had always been used as a public road.
A brewer, at Laytonstone, proved, that all his time his loaded dray went through the park without interruption.
- Osborne, an undertaker, proved that he accompanied the funeral of Mr. Hatch, of Claybery in this county, and also that of his son, and that they went through the park in their road from Claybery to Little Ilford.
Robert Wilkie, esq. Mr. W. Raikes, late sheriff of the county, and John Manby, esq. all gave evidence of its being a public road during their memory. .
J. Vincent, a post-chaise driver at the Red Lion at Ilford, for 28 years bad driven hired chaises through the park.
Timothy Lewin, another post-chaise driver, proved, that be had done the same for many years.
Thomas Gribble, a very fine old man of 86, and a great grandson of one of Cromwell’s captains, proved, that when he was a lad, a relation of his, who lived at Wanstead, always drove him for an airing in the park, he having had a fit of illness.
Mr. Justice Heath here interposed, and said, surely the right of a public road was proved enough, unless it could be explained.
Mr. Serjeant Shepherd admitted that it was, and said that a great deal of this (what must be considered as usurpation on the part of the public) had arisen, in a great measure, from the peculiar state of this property. It had not been under the eye of any owner for many years. The period immediately preceding the present action had been one of a long minority. Sir James Tylney Long, the last proprietor, had visited the place but seldom, choosing rather to reside in a distant county, where he had another estate. His immediate predecessor, lord Tylney resided the latter years of his life abroad; and died abroad; so that for the last fifty years there had been no proprietor on the spot to vindicate his right; and during that long period, that which had commenced in aggression, by lapse of time had assumed the appearance of right. He therefore justified the conduct of Mr. Wellesley in at least inquiring into this certainly most inconvenient practice of passing through his Park, and claiming a right to go under his very windows, and offend his princely mansion with the passage of unseemly carriages. If the right were with the public, Mr. Wellesley would cheerfully submit to the verdict; but surely, under such circumstances, he was justified in instituting the inquiry. The answer he had to give to this case was, that the right had not always been exercised without interruption: But although this estate had been left, as he had stated, in a manner defenceless for many years, yet sometimes the servants would stop persons going through, and make them turn back. He should show these instances in evidence, and it would be for the jury to say, whether, when they had heard that testimony, coupled with the situation in which the estate had been for so many years, it did not explain the evidence which had been given on the other side, The serjeant then called some witnesses, but their testimony was so weak, that the learned Judge directed the jury to find the defendant guilty, which they did without hesitation.