HOW do you define Southampton Common?

No doubt it was land protected under a statute passed by George IV.

But what else? Was it a park, pleasure ground, or even an avenue and a close bordered by plantations?

The fierce debate was the centre of a unique case in 1854 when William Golding, 32, appeared at the town’s Quarter Sessions, accused of stealing three oak trees owned by the mayor and corporation from what was colourfully described as “the lungs of Southampton.”

The prosecution’s case was simple – anyone taking trees with an aggregate value of £1 was committing a felony.

The defence countered: “Let’s talk plain English. A common is a common and nothing else.”

Having considered that issue, the jury were then left to decide how many oaks were taken or what was their worth, enough to fall in or outside the law.

The hearing concerned the loss of five large trees of 20 years growth felled in an area seldom frequented by the public. Two of them, it was alleged, were recovered at Golding’s home and at least one other had been recently used for fencing his property.

“He has given no account how he came into possession of them,” Mr Sewell, acting for the Crown, told jurors. “Having proved their value, I think you will find no hesitation is saying he is guilty.”

Turning to the law, he submitted: “Where depredations of this kind have been committed, the corporation, in the discharge of their public duties, feel morally, and almost legally, bound to bring offenders to justice,” stressing that as a master builder and clerk to Highfield Church, Golding’s duties and habits should have taught him to respect public rights and not violate them.

Local inhabitants had rights of common over it but the the preservation of the 350 acres was vested in the corporation who took care to plant it, make plantations, rides and drives with workmen employed for the express purpose of keeping it in such a state as to be a pleasure ground.

“That is to say, taking it, in the real common sense view of the case, a place in which the public might resort in their own time to seek their own enjoyment. There is no legal definition as to what a pleasure ground means and it will be for you to say whether or not the Common is not a place kept for the recreation and enjoyment of the people of Southampton.”

Its entirety was fenced in, and although it had gates in it, the place was enclosed and therefore, he submitted, answered to the general description of the word ‘park’.

Sewell then called only two witnesses, one of them testifying the trees had been cut down at a spot in the north east corner of the Common, about 300 yards from where Golding lived.

Defence barrister Mr Saunders asked no questions in cross-examination, and once the prosecutor had finished his address, he set about ridiculing his case.

“A park is a park and not a common, and it would be a perversion to call it a pleasure ground. It is known as The Common. It is common land and like any common, is a place for pleasure and pastime but it does not constitute a pleasure ground within the meaning of the statute which was passed for the purpose of protecting a particular kind of property.

“It is a common and nothing else. The plantations are mere fringes to give it an appearance and make it ornamental. There is a racecourse there but it’s no more a pleasure ground within the meaning of the act than is Epsom or Newmarket. If anyone in Southampton was asked ‘what is a park?’, they will know. Everyone calls it, what it is, a common.”

As for the alleged theft, Saunders submitted there was no evidence who had cut down the wood and erected the fence. “There is no tittle of proof he had been seen going to or returning from the spot.”

In his definition of theft, Recorder Smirke warned jurors however mischievous or improper conduct was towards anything growing, larceny could only be committed on what was moveable and not on what attached to soil.

“You have to decide whether he took the oaks. Then did he take all three of them, and if he did not, did he take the two found on his premises. Secondly, is the place a park or a recreation ground? Thirdly, if you consider it is a pleasure ground, you will have to determine whether three were taken at the same time because if there were only two, their value will not amount to £1 but 15s.”

Having viewed the missing property being found in his possession as seemingly conclusive, the judge suggested the jury should first consider how many oaks he had stolen. They found he had taken two.

Smirke then asked them to determine whether the plantation from which they had been taken amounted to a pleasure ground. “It is called in the indictment an avenue, park or pleasure ground, but it strikes me, if either of the three, it is the latter.”

Jurors returned a verdict it could not be termed a pleasure ground.

“Then I presume you will not find that the two trees carried away were, as timber, worth £5.”

Jurors concurred.

Smirke said there was only one further question to be settled. In cutting and taking away the two oaks, was a direct injury to the extent of £5 done to the ground? They replied “no.”

But discharging Golding, he warned him: “Even supposing the property was not of the value required by the act to make it a felony, it does not follow you might not have proceedings taken against you in a different form and of a very serious character, upon of the finding of the jury, although on this particular indictment you could not be found guilty.

“The property on the Common is not quite under law, and if the magistrates thought as the jury have done, they no doubt would have taken a different course and convicted you in a different manner.”