THE COUNTY BOUNDARY AT GLASBURY: A CASE FOR THE QUEEN’S BENCH
The Queen v. The Inhabitants of the County of Brecon
(In the Matter of GLASBURY Bridge.)

The old parish of Glasbury straddled the counties of Brecon and Radnor, but the local boundary between the counties was not the River Wye. Part of the parish on the right bank of the river – an area of 470 acres – was in Radnorshire. In 1844 that changed. The Counties (Detached Parts) Act of that year transferred the 470 acres to Brecon. But because of the poor drafting of the relevant legislation there was at the time doubt about whether the transfer had been successfully effected. The uncertainty needed an early resolution because the right bank half of Glasbury Bridge was in disrepair. Who was responsible for repairing it? Brecon or Radnor? The question had to be decided in court. At the top of the page there is a link to the law report of the court case.

GLASBURY BRIDGE

The bridge of the 1840s was “a timber bridge, resting on thirteen timber piers with stone abutments at either end… the abutment on the right bank rises perpendicularly from the edge of the water in a line with right bank of the river”. No water passed through or under the abutment and it and the road above it were in good repair. It was the section of timber bridge between the abutment and the mid-channel of the river that was, in the language of the report, “broken, ruinous &c.”

THE LEGISLATION

1832 was the year of the Great Reform Act, but while that Act established certain principles for the future of parliamentary elections, it was left to another Act of that year to settle the detail of new constituencies. This was the Parliamentary Boundaries Act and is referred to in the law report as stat. 2 & 3 W.4. c.64. Section 26 of this Act was directed at what it called “isolated” or detached parts of counties. It referred to schedule M to the Act, which listed a number of these isolated parts of counties and fixed the counties to which they should be deemed to belong for parliamentary election purposes. The last entry in the list identifies “Part of Glasbury Parish” as isolated; it says it belongs to Brecknockshire, is “locally situate” in Brecknockshire or Radnorshire, and should be annexed to Brecknockshire. It is a muddle. As counsel argued some eighteen years later, the 470 acres had been in Radnorshire not Brecknockshire.

Why the Glasbury entry in Schedule M was worded as it was must be a matter of speculation. The reference in the third column, which was meant to identify the county in which the “isolated” part was locally situated, to “Brecknockshire or Radnorshire” might possibly be a mistaken consequence of the fact that the right bank part of Glasbury Parish had been partly in Brecknockshire and partly in Radnorshire. The question, “what county is the right bank of Glasbury Parish in?” could have been answered, albeit unhelpfully, “Brecknockshire or Radnorshire”. If the draftsman, or someone briefing the draftsman, had proceeded in the mistaken belief that the “isolated” part was the entirety of the parish on the right bank, that could explain why the third column was completed as it was. An alternative explanation is that “Breconshire or Radnorshire” was meant to express the fact that the “isolated” part was situated between Brecon and (the rest of) Radnor. None of this speculation offers an explanation of why the first column of the schedule was wrong.

Nonetheless, initially the efficacy of the Act was not questioned: it appears from the findings of the court that while before the 1832 Act voters in the 470 acres had voted for a knight of the shire (country MP) for the county of Radnor, following the Act they were registered and voted for a knight of the shire for the county of Brecon.
In 1844 the Counties (Detached Parts) Act was passed. It is referred to in the report as stat. 7 & 8 Vict. c.61. By this Act the isolated parts of counties annexed for parliamentary purposes by schedule M became so annexed for all purposes. So if the 1832 Act had successfully annexed the 470 acres to the county of Brecon and the county boundary had become the mid-point of the river, it would be the responsibility of that county not Radnor to repair the ruinous part of the bridge.

THE CASE IN COURT

The case was started by a Brecon justice of the peace, Richard Venables DD. At the general quarter sessions at Brecon in October 1847 he “presented” Glasbury Bridge for disrepair. The presentment asserted that because of the 1844 Act it was Brecon’s responsibility to repair it. The case was dealt with in three stages.

First there was an attempt to get the case dismissed for a procedural reason. It was argued that the right of a single magistrate to present a county bridge out of repair had been abolished by legislation, so the case had not been properly brought and should be quashed. This point was argued in London in 1849 before a court presided over by Chief Justice Denman. In short, he was unimpressed with this procedural objection and decided that the case should go to trial.

Secondly there was a trial at Hereford Summer Assizes in summer 1849. This was a trial with a jury and was presided over by Baron Rolfe. Its purpose was to establish the facts of the matter, leaving the legal arguments for the third stage of the proceedings. (“Baron” was the judicial title of the judges of the Court of Exchequer – see Notes below.)

The findings of fact are set out in the report from page 817. It was established that historically the county boundary above and below Glasbury was at the mid-point of the Wye, but at Glasbury it left the river to take into Radnor the 470 acres on the right bank. The boundary “proceeded from the mid-channel to the right bank… at The Staunces, and then, first in a south easterly direction for about a mile, and afterwards in a north easterly direction for about three quarters of a mile, through the portion of [the parish] which is situate on the right bank to a place called Healygare [Heol-y-Gaer], on the confines of the parish of Llanigon… and then returned along the boundary of the said parishes of Glasbury and Llanigon, to the mid-channel of the said river at a point where the said river Wye passes out of Glasbury parish.”

At page 820 is set out what had happened as to the 470 acres since the 1844 Act. No part of the area had been assessed for the county rate for either Brecon or Radnor! But the poor and highway rates continued to be collected by Radnor and those qualified to serve on juries were on the Radnor list not the Brecon one.

The third stage of the case was argued in London the following year. The essence of the argument for the Crown was that while the description in schedule M to the 1832 Act was inaccurate, the legislature clearly meant to annex some portion of Glasbury to Brecknockshire and that portion was either the 470 acres… or nothing. The intention of the legislature was sufficiently plain despite the inaccuracy of the schedule. The primary argument for Brecon was that, to paraphrase, the muddle was too great for the intention of parliament to be guessed at, the court should not proceed upon what would amount to a re-writing of the schedule and the failure of the Act in this particular should be accepted as such. There was a secondary argument: if the schedule could be construed as operating to transfer land to Brecon, it did not follow that the new boundary should be at the centre of the river. What had isolated the right bank land was the river, so the new boundary should be the right bank. If that was right, the whole width of the river would have remained in Radnor and so Radnor would have to repair the bridge.

The court was unimpressed with Brecon’s argument. The judges did not ask counsel for the Crown to reply to Brecon’s arguments: they had already formed their view. You can see which way the wind was blowing from Mr Justice Erle’s intervention during Mr Phipson’s argument for Brecon (begins at the bottom of page 823). The court was going to take a purposive approach to the interpretation of the schedule. The repair of the bridge was found to be Brecon’s responsibility. Mr Justice Coleridge did however pay Mr Phipson the compliment of describing his secondary argument as “ingenious”: he had done his best with a losing case.

WHAT HAPPENED NEXT

Brecon repaired its half of the bridge using stone. Radnor’s side remained timber. A photograph of this hybrid structure is reproduced at the top of this article. The bridge in this form survived until the 1920s.

Notes

1. The case is reported in Adolphus & Ellis’s Queen’s Bench Reports (New Series) Vol. 15 at p.813. The front page of the volume is reproduced before the report. Also reproduced are the relevant parts of the 1832 Act. The assistance of the librarians at the Middle Temple in locating the report is much appreciated.

2. Baron Rolfe rose in the law. He became Lord Cranworth and held the office of Lord Chancellor twice.

3. The Court of Exchequer disappeared, as did the Court of Common Pleas, as a result of the reform of the courts in the 1870s. In effect they were amalgamated into the Queen’s Bench Division of the High Court. In the period when the Glasbury case was heard judges of all three courts went on circuit.

.4. The Staunces (usually now “Stonces”), are the foundations that remain of the old church of St Cynidr, and are on the right bank, a little above where the Llynfi joins the Wye.

5. The 1830s Ordnance Survey map shows the boundary of the 470 acres substantially as described in the law report. The report says nothing of the map’s indication that the boundary, once it had returned to the mid-point of the Wye where it “passes out of Glasbury parish”, then took a short length of the left bank into Breconshire: that detail would have had no bearing upon what the court was called upon to decide.

6. The titles of the Acts in the law report follow the then practice of identifying statutes by reference to the year of the monarch’s reign in which they were enacted. 1832 straddles the second and third years of the reign of William IV, hence “stat. 2 & 3 W .4. c. [chapter] 64.” It was only in the last decade of the nineteenth century that “short titles” to Acts, using the calendar year, were introduced. Existing statutes were given short titles retrospectively.

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