The Forest of Essex: its history, laws, administration and ancient custom, etc

Front matter

GRANT TO RICHARD DE MUNFICHETT OF THE STEWARDSHIP OF THE FOREST OF ESSEX 36. H. Wbty Sfixmt taj $m%. ITS HISTORY, LAWS, ADMINISTRATION AND ANCIENT CUSTOMS, AND THE WILD DEER WHICH LIVED IN IT. Iplj Haps wA o%r |JIa$iratw«3. BY WILLIAM EICHAED FISHER, OF LINCOLN'S INN, BARRISTER-AT-LAW. Author of "The Law of Mortgage and other Securities upon Property.' %onHaxi : BUTTERWORTHS, 7, FLEET STREET. DUBLIN : HODGES, FIGGIS & CO., GRAFTON STREET. CALCUTTA : THACKER, SPINK & CO. MELBOURNE : G. ROBERTSON & CO. MANCHESTER : MEREDITH, RAY & LITTLER. EDINBURGH: T. & T. CLARK; BELL & BRADFUTE. 1887 [All Rights Reserved.'] LONDON : PRINTED BY C F. ROWORTH, GREAT NEW STREET, FETTER LANE, E.C.

Preface

. following the old chroniclers, or j^væ. one another, have dwelt much upon the cruelties i practised under the Forest laws, but have told us very little about the Royal Forests themselves or their Purlieus ; or of the manner in which the laws were administered. Of the Forest of Essex in particular we have little or no information from the County historians, beyond occasional notices of the holders of Forest offices, or of the position of their estates within the bounds of the Forest. Yet the district which from time immemorial was Royal Forest formed no small part of the County ; and nearly the whole of it was at one time or another made subject to the Forest laws. The encroachments made by the early Kings upon the rights of the inhabitants of this and other Forest districts, were for hundreds of i

PREFACE.

. years the subjects of dispute, and their history forms an important part of the history of England. The rights of lopping wood and of pasturing cattle on the wastes of the Forest of Essex also deserve attention. The presence of the marked cattle on the Forest lawns, and of trees everywhere made into pollards by the wood-cutters, have for the most part been treated as the common incidents of a wide expanse of pasture and manorial waste, explained perhaps, as regards the wood cutting, by a supposed grant of right from Queen Elizabeth. Both in fact were the remains of an ancient agricultural system, extinguished in almost all parts of the country by improved methods of cultivation, and by the exhaustion of the woods, or the arbitrary acts of their owners, but preserved in this district by the restrictions of the Forest laws.

I have always regretted that the last complete remnant of these ancient rights of wood cutting which existed in the parish of Loughton, was not allowed to remain under regulations. It was of great value to the poor inhabitants, and as a relic of antiquity was not less worthy of preservation than Queen Eliza beth's Lodge or Ambresbury Banks. In the last two chapters of the Book will be found an account of the great work of the Corporation of London in rescuing much of the illegally inclosed land,

PREFACE.

. V and buying and dedicating to public use the whole of the Forest wastes, and of the events which led to it. It was to this action of the Corporation that my Book owes its origin ; for in order to enable me to advise them as to the nature of the rights of pasture, by establishing and enforcing which it was determined to stay the inclosures, it became necessary to study an immense mass of ancient and modern Forest documents, collected under the superintendence of Mr. Robert Hunter, who acted in the proceedings as the agent of the late Sir Thomas Nelson, then City Solicitor ; and to whose energy and acuteness in conducting the litigation its success was largely due. These documents, under permission given by Sir T. Nelson, I have used as the foundation of my work, which, however, has required much additional research, and has occupied my leisure during more than four years.

The "Cambridge MS." which I have often cited is a volume in the Cambridge University Library in handwritings of the first half of the 1 7th century ; the contents were probably extracted from original records in order to form instructions for some of the Ministers of the Forest. VI

PREFACE.

. The irregular spelling of the names of many persons and places may be noticed. Finding it impos sible to fix it with accuracy, I have adopted the spelling used in each document or part of a document, just as I found it. I am indebted to many friends for their assistance. The trustees of the late Lord Mornington have kindly lent me a great number of original documents relating to the office of Lord Warden of the Forest; and the re-production of one of these by the Autotype Company forms the frontispiece of the work. Mr. Crawford, the present City Solicitor, has also supplied me with many documents ; and I have to thank the Reverend J. M. St. Clere Raymond, of Belchamp Hall, for the loan of Chapman and Andre's large map of Essex, upon which are delineated many of the Forest boundaries laid down in 1641.

Mr. Walter de Gray Birch, Mr. E. Scott, and Mr. H. Jenner, ofthe British Museum, have also given me great assistance in the investigation of various questions which have presented themselves in the course of my labours, and in directing me to many sources of information. Guildford, November, 1887. CONTENTS.

Appendix

. Lists of Verderers, Foresters, Regarders and King's Woodwards 373 — 392 Perambulation of 1301 393 — 399 Abstract of Perambulation of 1641 400 — 403 INDEX 405 ERRATA. Page 8, line 3— For "stob or stock," read "stob and stock." 63, lines 9 and II— For "Ealderman," read "Ealdorman." 192, line 15 — For "vermn," read "vermyn." ,, 18— For "Later," read " Earlier." 262, line 18 — For "cover;" read " covert." 339, line 2— For " Her," read "His." 353, at end of line 8, add " the." 4th Inst. 319, Spelm. Gloss, THE FOREST OF ESSEX.

Chapter I

The General History of the Forest to the end of the vjth Century. " In the Forests also are the Kings' places of retirement and their " chief delights ; for to them they come for hunting, when they lay aside " their cares, that they may refresh themselves with a season of rest," 1 f$Ml'M HE Forest of Essex, known from the beginning JEggJal of the 14th century as the Forest of Waltham, and in modern times as Epping Forest, was one of those large districts called Royal Forests, which were once common in England ; and were so ancient, says Sir Edward Coke, as no record or history doth make any mention of their erections or beginnings. Being for the most part uninhabited and abounding in woods, they were set apart for the support of the King's wild animals ; and, though unfenced, were protected by fixed 1 Dialogues of the Exchequer, Book I. Chap. XI.

B boundaries, and by established laws, with magistrates, judges, officers, and ministers. The soil of these Forests was sometimes in the Crown, and sometimes wholly or partly in private owners ; but in either case, the right of forest, commonly known as the right of vert and venison, belonged to the Crown. From a very remote period, the right of hunting in the Royal Forests was the exclusive privilege of the Sovereigns, and of those whom they allowed to share with them the pleasures of the chase. SirRobt. Waltham Forest, which was one of their favourite Ae-a&. ™ places of resort, was described in the 17th century as chequer Bffls having "a very fertile and fruitfull soyle, and being EssetTani', full of most pleasant and delightful playnes and lawnes, No. 31 (1628). mQSt usefui anj commodious for hunting and chasing of the game of redd and falowe deare," and as having been " alwaies especiallie and above all theire other fforests, prized and esteemed by the King's Maiestie and his said noble progenito13 the Kings and Quenes of this Realme of England, as well for his and theire own pleasure disport and recreation from those pressing cares for the publique weale and safetie which are inseparablie incident to theire kinglie office, as for the interteynment of forreyne Princes and Embassador3, thereby to show unto them the honor and magnificence of the Kings and Oueenes of this Realme."

During the Commonwealth, and in later times as it came to be understood that the Crown lands belonged to the Sovereign only by virtue of his office, those parts of the Forests of which the Crown had both the soil and the forest right were used as nurseries for timber for the navy, as well as for their original purpose ; and when hunting in them by the Kings fell into disuse, and the timber was no longer wanted, these, and the rights of vert and venison in the Forests, the soil of which was not in the Crown, fell into the hands of a public body Second whose chief object was to administer them merely for select Com ., r , . i • 1 mittee on the purpose ot producing revenue at as little cost as oPen Spaces possible, and with a cynical disregard to the rights of Mr. Howard, the other persons interested. pp' 9 ~ I09' Except in the case of the New Forest, if in truth it be an exception, history is silent as to the dates at which the Forests became subject to the Forest laws.

The eihs on other Forests are only rarely and incidentally noticed in i.0™" ay' the Domesday Survey, which, ' except in mentioning a person in Writtel who was made forester of the King's Domesday, wood after the Conquest, contains nothing about the Forest of Essex.1 One document is extant, which, if it 1 Unless a grant, a copy of which is in the Chartulary of Glastonbury Abbey, in the Bodleian Library (Wood, i so. 234), and which is printed in Cod. Dipl. No. 398, and Vol. VI. p. 232 ; Cart. Sax. No. 800, may be excepted. It purports to be a grant by King Edmund, a.d. 944, of lands at Neteligtone (Nettleton in Wiltshire), the boundaries of which refer to Stratford and Woodford. There are places of these names in Wiltshire, but at the opposite end of the county, in which I cannot identify the other places named in the boundaries.

But Stratford and Woodford, together with Aldersbrook, the Mere dyke, Hengrave (Ingrave), and •perhaps, Abbanberge (Abridge ? Abury ?), which are all mentioned in the boundaries, are in Essex at no great distance from one another, and in or close by the ancient Forest. The only probable explanation of the difficulty which occurs to me, B were genuine, would afford conclusive evidence that the Forest was a Royal Forest before the Conquest. This professes to be a grant by Edward the Confessor is, that in the original document, of which that in the Chartulary is a copy, the boundaries of the land granted may by mistake have been written upon the wrong grant. If the boundaries belong to Essex, the interest of the document lies in the last boundary mark. This in the Chartulary is written the " ser ist sone," which Kemble reads " the forest stone."

If this be correct, as I think it must' be, we have" not only a Forest boundary more than 100 years before the Conquest, but a very unusual form ofthe word " Forest." Cod. Di^ Nos. 119, 2S8. Cart. Sax. Nos. 207, 321. During the Anglo-Saxon period the Royal Forests were called the King's woods (sylvæ regis or regales), and a forest was called deor waid, the word "deor" being applied to wild beasts in general. The words " foresta" and "forestarius" were used on the Continent at the beginning of the 9th century ; but in the 7th the phrase is " the King's woods " ; and I have been unable to find the word "Forest" in any Anglo-Saxon document, except the Latin version of the Forest laws, attributed to Canute, the date of which, however, is probably not long before the Conquest. " Forest " is commonly believed to be from " foris," something beyond certain boundaries, as opposed to "intus"; and "foris" is often so used in the Anglo- Saxon Charters; but according to a derivation proposed by the author of the Dialogues of the Exchequer, " forest " is from " feresta," the e being changed into 0, and the word being made out of " feramm statio," a habitation for wild beasts.

Baluzius, Vol. I. Capits. of Charlemagne, a.d. 8co. Lex Ripua riorum Ixxvi. Dagobert, A.D. 630. "£his is the only document in which I have found the word written according to this conceit of the Bishop of London, who is supposed to have written the Dialogues in the time of Henry II. Coke and Spelman fall into the curious error of supposing that the Anglo-Saxons called a forest "buck holt," i.e., sylva ferina. It is not certain that the sallow deer was a wild forest animal during the Anglo- Saxon period ; but if it were, the name of the stag or hart would certainly have been preferred to that of the buck. Buck holt is no doubt a corruption of boc holt, i.e., a wood held by book or charter. A corresponding compound is boc hurst, of which there were several examples in the Forest of Essex. One was a wood granted by John, under the name of La Bocherste, to the Monastery of Stratford, and was still " Bookhurst " in the time of Edward II. 4th Inst. 319.

Spelm. Gloss. '•Foresta." Rot. Chart. 5 John (1203) R. C 104b. Charter of Abbot of Stratford. Exch. Treas. of Rect. PI. For. 1 7 Ed. of the office of Keeper of part of the Forest to Randolf Buxton's Peperking and his family ; and it shows, as we have been Forest, p. 13. ed 1 gravely told, the nature of the functions originally en trusted to the chief officers of the Forest. This charter was long since declared by Morant to History of be a forgery, upon the ground that its language was 327, note. that of the 14th century.1 He took it to be the inven tion of some idle poetaster in the reign of Edward I. or Edward II. ; but takes no note of the possibility that it might have been a paraphrase or free translation in the dialect of that period, of a genuine Anglo-Saxon grant. There may be in it enough of the language of forest grants, to give colour to the suggestion that it was the work of an idler who had some knowledge of such matters ; perhaps of " A clerk foredoomed his father's soul to cross, Who penned a stanza when he should engross " but this, I think, is not the true explanation of its origin, mss.

Harl. 2115, so. 143b. It is known by a copy in the British Museum, written about the time of Henry VIII., and which runs as follows : — "A coppie made of a graunt by King Edward called the Confessor, before the Conquest, and remayng of record in the Exchequer.2 1 Kemble includes it in the Codex Diplomaticus (No. 899) without note or comment ; but it is not the only doubtful document contained in that work ; nor is its claim to authenticity improved by the fact that it was cited on behalf of the Crown in 1635 on the question as to the Forest boundaries. - Camden (Brit. 2. 43, Gough) refers to the Exch. Treasury of Rect. Hii. T. 17 Edw. II., which must have been an inspeximus Charter ; but a search for it has been unsuccessful. " Iche Edoard Kinge have yoven of my forreste y' keepinge Of the hundreth of Chelmer and Dawncing, To Randolphe Peperking and his kinling ; Wxith hart and hind, do and bokke, Hare and Fox, Catt and Brooke, Wylde foule with his flock, Partriche feasant hen and feasant cock ; With greene and wyld, stob and stock.

To kepen and to yeomen by all ther might, Bothe by daie and eke by night ; And hounds for to hould Good swyfte and Boulde Four greyhounds and vj Raches, For hare and fox and wild Cattes ; And therefore I make him my booke. Wittnes the Bysshop Wolfston And book y learned many a one And Swayne of Essex our Brother And liken to him many other And or Stuard Howelyn That besought mee for him." Ranulfus Piperellus, otherwise Ralph Peverell or Peperking, was a Norman, who is recorded in the Domesday Book to have held large estates in several of the Essex hundreds, including Chelmsford and Dengie, though it does not appear that he held them during the reign of the Confessor. Assuming that the document may be a paraphrase made about the 13th century, we may pass over the C0.Litt.233a circumstance that rhyme was very rarely used in Anglo- Saxon poetry.

But there are many other difficulties. The hundred of Dengie, here corrupted into Dawncing, was called Witbrictesherna,1 at and presumably before the date of the Domesday Survey. The grant to Peperking and his kinling is equivalent to a grant of the office in fee ; but though there were several foresters in fee in Essex, there is no trace of such an office in Chelmsford or Dengie. The Forest laws attributed to Canute, and which are probably at least as old as the time of the Confessor, must be assumed, in the absence of knowledge of any other Forest laws before the Conquest, to have been in force during the reign of the Confessor; and the supposed grant does not agree either with it or with the Norman Forest laws. It specifies the red and fallow deer, but omits the wolf, the wild boar, and the roe, which are all mentioned in Canute's laws; the wolf probably, and the boar cer tainly, being wild in the forests during Edward's reign.

The fox was not under the care of the Forest officers appointed by Canute's laws; nor do they -speak of the cat or the brock. The partridge, the pheasant, and the mallard were fowls of warren after the Conquest, but so far as I can find, they were not under the care of the Forest officers before it ; or protected by any Forest law 1 Query, Witbrict's horn or projection, in allusion to its position. Dengie is commonly supposed to be Danes eye=Danes Island. It has been suggested that " Den " in Dengie is a valley or low ground (Gough's Camden, 2. 33); but if it was called after a Dane, the transition to Danes Island is very easy. Manwood, ch. 18. Exch. Treas. of Rect. PI. For. 20 Ed. 1, Charter Roll,' Essex. except the general prohibition against the use of weapons, dogs, and snares, and against hawking.

If " stob or stock " is the right to have gallows and stocks,1 such a privilege was sometimes annexed to the estate of the lord of a manor,2 but not to the office of a Minister of the Forest. The right to hunt the hare, the fox, the cat, and sometimes the brock or badger, and to keep for the pur pose a fixed number of greyhounds and brackets (of which word "raches" is another form3) was often granted by the Plantagenet kings to Forest landowners in words4 so exactly corresponding to those used in the supposed grant by the Confessor, that it is impossible not to 1 Stob means a post or the trunk of a tree ; and Halliwell gives an instance of its application to the post of a gibbet (Dictionary of Archaic Words). In Scotland, to have "stob and staik" in a place, meant to be domiciled there (Jameson's Sc.

Diet. Supp.) ; but this meaning seems entirely inapplicable. 2 E.g., William Earl of Salisbury in 1630, and James Earl of Salisbury in 1670, in respect of their manors of Roydon Hall and Temple Roydon, claimed " pillories, tumbrells, and gallows " for punishing malefactors within the manors and the liberties thereof; and at the manor Court of" Rokholt" on the 21st May, 1532, it was presented that the lord of the manor might make a pair of stocks and a pair of gallows between the manor of Wanfield and the manor of Rokholts. s " Thre grehoundes he ledde on bond, And thre raches in on bond." — Arthur and Merlin, 172 (Halliwell). 4 Take, for instances, 1 Richard I. — Grant to Ralph de Hoodenk and his heirs through our whole Forest to take hare and fox and wild cat. 37 Henry III. — Grant to Richard de Tany and his heirs, to have if they will, eight harriers and twenty brackets, to course and hunt hare, fox, badger, and wild cat through our whole Forest of Essex, &c. Many claims made at the Courts of Justice Seat profess to be founded upon charters made in similar language. suspect that they were copied from a grant made in a later reign.

Again, the principal witness to the supposed charter is called " Swayne of Essex, our brother." Now Sweyn, the king's brother, must have been he who was the son of Earl Godwin, and the brother of Queen Eadgyth. But it was a different person whose large estates in the county are described in the Domesday Book under the head Domesday, " SVENI de Exssessa." He was a favourite of the 4ib?x' Conqueror, from whom he received large grants of land in Essex, and was the builder of Rayleigh Castle. His father's name was Robert. Lastly, there is no evidence that the two hundreds which formed the district included in this supposed charter were ever within the bounds of the ancient Forest. It was, on the contrary, found by those who made the perambulation of the Forest in 1 301, that the hundred of Ch. Misc. r .

RoIls,No.ii3. Denosie was beyond the Forest, because it was afforested 27— 29 Ed. 1, to J . .No. 12. after the coronation of Henry II. , and by the Kings Richard and John ; and that, except the vill of Writtel, which was Crown demesne, the hundred of Chelmsford was also beyond the Forest. This brings us to what I take to be the true explanation of the matter. In the 13th century it appears to cotton, Roil have been the practice to link together two hundreds or Jm" half hundreds for the purpose of Forest administration. Chelmsford and Danesei were so linked in 1250, when they were claimed as part of the Forest. They had in common one forester, with three sub-foresters, and four regarders, and each had two verderers, and woodwards of its own woods. Ex. Treas. of Rect. For. Rolls. Essex, No. 2.

The records of the Court of Justice Seat, held in 1292, also show that these hundreds then formed the bailiwick or district of one of the Riding Foresters, who was removable at the pleasure of the Steward of the Forest. And as the dialect of the charter agrees with the language then in use, it seems likely that this rhyming charter was forged about the end of the 13th century, in order that it might be produced at one of the inquiries which were held at that time concerning the bounds of the Forest, as evidence that these hundreds were legally afforested ; possibly also to support a claim by one of the descendants of Peveril1 to the office of forester in fee, against that of the Steward or Warden of the Forest to have the disposal of it. The absence of any documentary proof that the Forest of Essex had been placed under the Forest law before the Conquest does not, however, raise any inference that it was not afforested till after that time.

No traces have been found of any afforestations, except such as were enlargements of a Forest already in existence, and which it can hardly be doubted was so, long before the Conquest. We may learn something as to the manner in which this, and probably other forests in England became what they were, by considering the original state of the district ; the rights exercised over the land by the 1 Peveril had a grandson, known as William Peveril of Essex. Dugd. Baronage, 1. 437. early Kings and their nobles ;l and the position of the inhabitants. I may remind my readers that, during a long period before the Conquest, the Anglo-Saxon Kings and their Councils exercised the right of granting lands absolutely to different persons, including the Kings themselves, in severalty, subject to the usual burdens of military service, and the making and repairing of bridges and castles.

The grants were made by book or charter, and the land was thence called "boc land;" that from which it was taken being " folk land," that is, the people's land. But it was only treated as the people's land in the sense that it was used for the purposes of the state, and this use was at the discretion of the King and his witan. Such parts of it as were not granted by charter, or temporarily disposed of in the manner presently men tioned, were in practice used at the King's pleasure; and there seems to be no doubt, that from such of it as was suitable for the purpose, the Royal Forests were origi nally formed. When and by what process those which existed before the Conquest were made subject to the Forest laws is unknown ; but it is not necessary to assume that any formal act of afforestation took place.

The question as to the earliest introduction of a body of written Forest law in England depends upon 1 See upon this subject Allen on the Royal Prerogative ; Kemble's Saxons in England, and Introduction to Codex Diplomaticus ; De Laveleye, De la Proprietd et de ses formes primitives ; Seebohm on the English Village Community. the authenticity of the Code commonly attributed to Canute, and called Constitutiones de Foresta. This will be discussed in the next chapter ; and, if I am right in my conclusion that the Code is a Latin translation or reconstruction of a genuine body of Anglo-Saxon or Anglo-Danish Forest laws, its contents show that at a still earlier date than the reign of Canute, there were Forest laws or customs in England, which may have formed the foundation of the Code itself. Now in the Forest of Essex, originally a wild and uncultivated country, for the most part thickly wooded, but interspersed with lawns, plains, and marshes, there were formed in remote times a number of settlements conveniently placed for the use. of the woods and pastures, and for the cultivation of a sufficient quantity of land ; which according to a very ancient practice was held in open and common fields and meadows, some of which yet remain ; and with the existence of which the wood and pasture rights exercised in the Forest were closely connected.

The custom of wood-cutting in Loughton only ceased with the existence of the original constitution of the Forest in 1878 ; and it will be shown that similar customs once prevailed over the greater part, and probably over the whole of the Forest. Almost all the Forest vills which represent these ancient settlements are shown by the Domesday Book to have been in existence before the Conquest ; but except in the case of Waltham, which is said to have been founded by Tovi or Tofig^ the standard-bearer of Canute, we have no information as to the time of their settlement. It was probably long after their foundation that the boundary line of the ancient Forest was fixed; for that See map ofthe Forest accord part of it which has always been treated as forest only ingtoperamb. °f 1641, infra, included parts of several parishes.

Stratford, West 15 Repof T L. R. Com. Ham, East Ham, Gr^af and Little Ilford, Barking, 1793. APp. Dagenham, Navestock, and Theydonboys, were all divided by it ; and it seems to follow, either that these places, and the vills which were entirely within the Forest, must have been allowed to grow up in a district which was already" afforested, or that the Kings must have assumed a right to afforest at their pleasure the lands of their subjects. The right to do so was, as is well known, claimed by them after the Conquest, and enforced by the afforestation of large tracts of land in Essex and other counties. These, after a long struggle, their successors were compelled to give up, but the claim was revived in the 1 7 th century for the purpose of extorting money ; though it was stoutly denied by Coke, who declared that "the 4th inst 301. common law hath so admeasured the Kings' prerogatives that they should not take away nor prejudice the inheritance of any."

The difficulty may perhaps be explained in this way. There were large tracts of land in the possession of subjects, but which, being held neither for estates of in heritance, nor by charter, might have been made subject to the Forest laws without violence to the rights of the occupiers.1 These were the læn. (Anglice, loan) lands, 1 The population of course was thin. In the whole of the nineteen parishes which were wholly or partly in the Forest, there were at the date ofthe Domesday 2 priests, 313 villeins, 451 bordarii, 38 serfs, and upon which, either by way of reward for military services, or by favour of the Kings, people were allowed to settle without receiving grants of any permanent estate in them. Such lands were subject to various burdens, amongst which obligations to provide lodging and sustenance for the Kings, their huntsmen, horses, dogs, and hawks, and those who had the care of them, and to assist the King in his hunting, were common.1 It is probable that a right to hunt over these lands themselves would co-exist with these obligations, either by express reservation when the læn was granted; or because the original settlers may have squatted upon their lands either before the existence or during the suspense of any settled government, and may afterwards have been allowed' to retain them in the nature of læn land, and subject to the Forest and other rights of the Kings.