I’ve written before about the Scottish land access battles which eventually led – in 2003 – to their splendid Land Reform legislation, which allows responsible access to almost all Scottish land and waters. When I walk there I feel envious. We English, though we value the Countryside and Rights of Way Act 2000 (CRoW), very much recognise we are just – as usual – getting the crumbs from the table.
The Scottish land access was hard won over centuries.
I often think of it as we wander up Glen Tilt, one of our favourite Scottish glens. We were there the other day, a lovely fresh one for walking, passing the scene of the fight for Glen Tilt. Here are some extracts from the account in my book The Compleat Trespasser, which gives a history of the access battles on both sides of the border:
It was in Glen Tilt, a particularly scenic part of the Duke’s 200,000 acres, that one of the most memorable of Victorian access battles took place. The track through Glen Tilt, the only direct route from Blair to Braemar and Deeside, had been a drovers’ route for centuries and was much used by the growing number of recreational walkers, until the sixth duke began to forbid public access.
The first recorded conflict was in 1847 between the Duke and Professor Bayley Balfour and a party of botanical students from Edinburgh University, who were forced off the ancient track.
The professor and his students had set out from Braemar, observing the flora of the glen for some nine miles before they were challenged by a shooting party led by a Captain Oswald, a Captain Drummond and several ghillies and servants. The botanists were ordered to turn back to Braemar. They refused to do so and pointed out that the track was a public road. The walkers continued on their way until they encountered a locked gate at Tibby’s Lodge, where a ghillie evidently summoned up the Duke, who seems to have gone into a rage at their presence:
The Duke then said, “Well you must return; you don’t move an inch further, unless you break open the gate, which you may do, and take the consequences. Don’t spoil my walks with stamping. Come off that walk every one of you. Every step you take is a trespass – a new trespass. I shall not count it an additional trespass if you return on the main Walk.” Professor Bayley Balfour – “Oh, it’s a trespass then on the side walk, but not on the main walk.” The Duke – “I shall not waste any more words with you; you must return.”
Given that the passage through Glen Tilt is a considerable walking challenge, the trespassers refused to retreat back to Braemar, though they were forced off the track, as the press reported, and ‘in their desperation, they made their escape over a wall, hotly pursued by the Duke’s familiars.’
Unfortunately for Atholl, the case for access was taken up by the newly-created Edinburgh Society for the Preservation of Rights of Way, formed ‘for protecting the public against being robbed of its walks by private cunning and perseverance’. Three of its members, Alex Torrie, an advocate, Robert Cox, a Writer to the Signet, and Charles Law, a merchant, brought an action against the Duke in the Edinburgh Court of Session.
They argued that the road had been metalled a hundred years before and was kept in repair by statute labour. When the decision went against the duke, he appealed to the House of Lords, where he lost once again. While the case creaked through the Victorian legal system – mostly on Atholl’s argument that its pursuers had no right to bring the action – the Duke made headlines once more over a conflict with two Cambridge University students, who found themselves accosted by him and his retainers as they attempted to use the old drove road on a summer’s day in 1850. As one of the undergraduates told The Times:
On Friday, August 30th, we shouldered our knapsacks and left Castletown of Braemar with the intention of walking to Blair Atholl through Glen Tilt, a distance of thirty miles. We might have gone by another road through Blairgowrie and Dunkeld, but as this road was upwards of sixty miles in length, and we were informed by all persons of whom we inquired at Braemar that though the Duke of Atholl, in spite of the decision of the Court of Session, was still endeavouring to stop all who made use of the bridle-road or footpath through Glen Tilt, yet he would not dare use violence if one insisted on a right of passage, we determined to take the shorter road.
It was a decision that was to bring them into conflict with the Duke himself, as one of the undergraduates recorded in his letter to The Times:
“You must go back! Why didn’t you stop sir?” (The Duke yelled). I again took out my pocket book, and preparing to write, said “What is your name?” “I am the Duke of Atholl” he replied, upon which we immediately tendered him our card (which he read and pocketed) and stated that we wished to proceed to Blair Atholl. However he insisted that we must “go back” to which we urged that the Court of Session had decided that there was a right of way through Glen Tilt, and, therefore we could not be stopped. He replied angrily “It is not a public way, it is my private drive! You shan’t come down; the deer are coming, the deer are coming!” upon which we expressed our willingness to retire behind the lodge till his sport was ended, but he said we had been impertinent, we claimed it as a right, and we should not go down an inch.
Hereupon I said that in that case I certainly would go down, and if he stopped me it would be at his peril, upon which he became impatient, seized my companion by the collar of his coat, and attempted to force him back, refusing to listen to anything we had to say. This unseemly scene took place before the Duchess and another lady, for whose presence he had so little regard as to use oaths and other violence such as you would scarcely expect to hear from the lips of a gentleman. Finding his strength was of little avail, he shouted for help to his unwilling grooms, who were evidently enjoying the scene from a distance, and my companion, seeing opposition was useless against four men, allowed ourselves to be led away by a servant.
The students remained behind the lodge, being advised by a sympathetic highlander to wait around until dark and then sneak down to Blair Atholl. An attempt to escape up the brae was met by pursuit by two ghillies who at first threatened to take the students up as poachers, and then ordered them back to Braemar:
They told us that we would be closely watched, and if we stirred from the path we would be prosecuted for trespassing. On parting, they took care to tell us that it was not their fault; and I will do them justice to say that they did their work very reluctantly. Well now, there was nothing to do but to take the old ghillies advice, and wait till dark. The hills on each side were very steep, so that, besides the danger of being taken up for trespass, it would have been no easy matter to find our way to a village distant 10 miles. For four long hours, then, we were forced to walk up and down this bleak vale in order to ward off the chill autumn evening. When it became dark we proceeded on our way, which gave us no little trouble and uncertainty, as the darkness of the night was increased by the black shade of the pine forests. However, by midnight we reached the hotel, and soon recovered from the fatigue of a day, which, after all, gave us a good deal of amusement.
But this was not the end of the matter. Two days later The Times published a leader about the event. The editorial voice thundered:
The public have as perfect a right of “way” through the Vale of Glen Tilt as the Duke of Atholl has to the possession of any acre of the property which constitutes his estate. The right in the one case, as the title in the other, is the mere creature of law.
In point of fact there was not, at that time, a ruling on the right of way itself, only on the right of the Edinburgh Society to bring the matter to law. However, the Duke appeared to lose interest in the quarrel, perhaps not least because his actions led to him being lampooned in the magazine Punch and criticised in the correspondence columns of The Times.
Now, you can walk where you like in Glen Tilt.
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Text and pictures (c) John Bainbridge 2018
