6. The October 1866 Chancery Proceedings

This is an extract from Thomas Willingale, Lopping Rights and the saving of Epping Forest, my research into the Willingale family’s involvement in the saving of Epping Forest.

In October 1866 Thomas Willingale filed a suit in Chancery against John Maitland, and others, in support of the lopping rights. Thomas was advised by the Commons Preservation Society and a fund of £1,000 was raised to support the case, with half coming from Sir T. Fowell Buxton. (21) To raise funds, adverts were placed in certain journals, John Maynard being noted as one of the trustees in an advert in The Entomologist. No details were given of the amount raised, although one of the trustees states in a subsequent advert ‘[…]must express my disappointment at its smallness[…]’ (112)

The original bill of complaint states Queen Elizabeth granted a Royal Charter that allowed the labouring or poor people of Loughton to lop wood in the forest. The bill continues

“The inhabitants of the said parish of Loughton have, since the making of the said Charter, continually exercised and they still exercise the rights thereby granted to them; and in particular the Plaintiff, who is a poor inhabitant of the said parish, and who has a wife and family of children, has, for upwards of twenty-five years last past, exercised the said right of cutting wood at the times aforesaid from trees growing on the said wastelands, and of using and selling the same to other inhabitants of the said parish for fuel, and by so doing has gained or greatly improved his livelihood in the winter seasons during the said period.” (66)

Loppers in the Forrest
Loppers in the Forrest

Maitland responds by denying the existence of any lopping rights. He states his father, in 1857 bought 1,377 acres of forest waste including rights of Free Warren and Free Chase, the conveyance being completed during 1860.

Maitland states that certain freeholders and copyholders were compensated for the extinguishment of certain forestall rights, mention being made of payments to Elizabeth Tyser, Thomas Willingale’s landlady. As such Maitland asserted that Thomas had no right to any claim. Maitland also goes on to query the CPS involvement

[…] The Plaintiff has in fact no interest whatever in this suit and that this suit though instituted nominally by the Plaintiff on behalf of himself and the other inhabitants of the said parish of Loughton is in fact and in truth instituted at the instigation for the purpose of and at the cost of a certain society or association known as the “Commons Preservation Society” and that the Plaintiff is acting throughout this suit under an indemnity as to costs as well past as future given by aid of the said society or association.” (72) Maitland also queries Thomas’s income and thus his ability to fund the court action.

Thomas denied that that the case was being brought on his behalf by the CPS, and further denied accusations that Phillip Henry Lawrence, his solicitor, who was also Hon. Solicitor to the CPS, had tracked him down and requested he instigate this suit against Maitland. (67) Although this is contradicted in the book ’The Loppers of Loughton’ which states “Lawrence hunted out old Willingale, who lived on the borders of the forest and got some information from him ” (49) Whilst Addison gives a different story as to the origin of the court case: Old Tom Willingale , despite his age, made it clear to everyone that he would fight the rector across every heath and through every copse to the last ditch. On hearing this, Sir Thomas Fowell Buxton of Warlies sent a message to Thomas Willingale encouraging him to stand his ground and promising financial support if his right to lop was challenged in the courts. (22)

Maitland also mentions Thomas’s appearance before the Epping bench, stating that he abandoned his claim that he was lopping and agreed not to repeat the offence in return for the summons being withdrawn. (78)

In the ‘Answer of the Plaintiff’ filed on the 3rd December 1866, Thomas claims that the Thomas Willingale mentioned in the court rolls of 1828 was not him. Thomas also denies abandoning his claim of Lopping Rights at his earlier court case. He stated that the main prosecution witness advised during proceedings “that a large piece of the forest had been set apart for lopping by the poor’. The day after this case Thomas visited Maitland and requested details of this land, but Maitland denied any knowledge of this. Thomas confirmed he had continued to lop during that season, except when prevented by ill-health. (67)

Whilst the case was on-going, the CPS arranged events to keep the fight for the forest in the public eye. An open-air meeting of the East London committee of the Commons Preservation Society was held opposite the King’s Oak Tavern, High Beech, Loughton on 22nd April 1867. This heard from a Mr George Burney of Bow, who stated that Rev Maitland had purchased 1,400 acres from the crown commissioners at £100 per acre and £4 10s per acre for crown rights. Now, if that land was sold for building purposes it would fetch about £1,000 per acre. He contended that the whole affair was illegal, because the rights of the people had not been considered and could not be bartered away. (39)

A Dr. Bowkett of Poplar stated that he had been talking to a man who was sentenced to imprisonment for cutting wood in the forest, and who afterwards was offered money to give up his right to do so. It was clear this man had a right, or the money could not have been offered to him. During the course of the meeting several sturdy fellows inquired if they would be legally justified in pulling down the fence, as they were anxious to do so. In reply it was stated that the committee did not advise such action at present, until some legal steps had been taken. (39)

On 16th September 1867 an excursion of the Commons Preservation Society to Loughton took place. Some were under the impression that the object of the excursion was to throw down the palings which had been erected by Rev Maitland. However the event was simply to view the enclosures and consider the best means for their removal. The excursionists did however roam the forest, including the enclosed lands to their hearts content, as the gates to the enclosures could not be closed as the Chancery proceedings were still continuing.

The extent of the forest enclosures can be seen on this map, the red areas being enclosed and returned to the Forest by Sir George Jessel's judgment in 1874
The extent of the forest enclosures can be seen on this map, the red areas being enclosed and returned to the Forest by Sir George Jessel’s judgment in 1874.

During the excursion Mr Maynard gave an address on forest and common rights, during which “Willingale (plaintiff in the suit of Willingale v. Maitland) arrived upon the ground, and was greeted with loud cheers”.

Two resolutions were passed during the meeting, the first being:

That this meeting views with indignation the wholesale enclosure of the ancient waste forest lands, which have always been open to the free use and enjoyment of the people at large; which enclosures we look upon as being illegal as they are unjustifiable. And we hereby pledge ourselves to give our most strenuous support to the Epping Forest Preservation Society, in their efforts to support by every legal means the ancient rights of the people to the use of those lands; and to secure those rights to the use and enjoyment of the people for ever”.

The second resolution was as follows

“That the thanks of this meeting are due, and herby given to those gentlemen who have so nobly and generously come forward to defend by their personal influence and pecuniary aid, the forest and common rights of the people”. (35)

The chancery case was never brought to a final hearing and lapsed on Thomas’s death in 1870. However whilst the case was proceeding, further enclosures and development of the forest were put on hold. (20) (31)

Nevertheless, legal argument during the course of the case proved that the commoners did have a legal right to lop. A demurrer, which means an objection to legal claim, which admits the facts of an opposing argument but asserts that those facts alone are not adequate to make the case was found in Thomas’s favour. The original case stated that:

“[…] Her Majesty Queen Elizabeth, being then lady of the manor of Loughton, by her Royal Charter granted to the inhabitants of the parish, that the labouring or poor people inhabiting the said parish, and having families, might at all times commencing from the hour of twelve at night on the 11th day of November in every year, until the same hour on the 23rd day of April in the succeeding year, cut or lop the boughs and branches above the height of seven feet from the ground on the trees growing upon the waste lands of said manor and parish. […]”

Although Willingale later amended the claim to all inhabitants of Loughton, not just the labouring poor.

The court found:

“A grant by the crown to the inhabitants of Loughton. which was a crown manor and parish within a royal forest, that the labouring or poor people inhabiting the parish, and having families, might, during a certain period of every year, cut or lop the boughs and branches above seven feet from the ground, on the trees growing on the waste lands of the manor and parish of L.oughton for their own use and consumption, and for their own relief or any of the inhabitants for their consumption within the parish for fuel.

Held upon demurrer, a valid grant.” (10)

Fisher, in his definitive work The Forest of Essex, confirms that this “Preliminary legal objection was found in favour of the plaintiff, but it was afterwards found that the origin of the right so claimed had been mistaken”. (42) The ‘origin of the right’ refers to the lopping rights being conferred by Queen Elizabeth, this seems never to have been confirmed, however as the bill was deferred to, this was taken as fact. (43)

Another interesting fact from the court case was:

“The right claimed by the bill is neither uncertain nor unreasonable, the wood cut is only to be sold to the inhabitants, for their own consumption, within the parish; and the cutting of boughs above the height of seven feet, that is to say, out of the reach of the deer in browsing, and during the season where the boughs are not growing, would rather tend, by stimulating the growth of the lower branches, to improve the covert and pasture of the deer”. (10)

During the course of this case Thomas was apparently offered considerable sums of money to abandon the case, but held firm until the end. Lord Eversley quoting a figure of £500. Alfred’s obituary went as far as to say “Large sums were offered him to give up the suit, but he declared that he would die like his son before he would surrender the people rights”. (17)(22)(21)(3)

It’s interesting to note that during the course of this case, Maitland summoned another three individuals before the magistrates for lopping (who these three ‘labouring men’ were is not stated), the three men claimed it was their right to lop under ancient charter. On this occasion the case was dismissed, as the Chancery case was still proceeding. Some viewed this as an attempt to subvert the Chancery case. (24) This or a similar case is also reported in the Daily News of 6th May 1867, although this report states “two poor men brought before the local magistrate”. The report goes on to say at least one of the sitting magistrates had benefited from the forest enclosures. Luckily these two men had a barrister representing them and ‘after several hours of warm discussion’ the case was dismissed. (36)

Another case came before the Epping Petty Sessions in December 1867, this time for lopping in the Manor of Waltham Holy Cross. The loppers seem to have been attempting to revive the lopping rights in this parish. However the loppers admitted their error in court and agreed to pay the Lord’s costs thus far in return for the prosecution being dropped. (80)

The Commons Preservation Society also helped fund another case, concurrently with Willingale’s case, Castell v. Maitland, this concerning the freeholder’s right of common. (35)

An idea of the costs involved in this case can be seen from some of the invoices which survive in the Maitland family records. The author identified five separate bills from a large bundle of documentation, specifically relating to this case which totalled £1,011 15s 8d. (63)

It seems Jack Straw, the Labour politician, also at some point viewed these records and picked up something the author did not, in the margin of one of these documents Maitland supposedly wrote “Why should a twenty-five shilling a week labourer be allowed to sue me, the Lord of the Manor?” (111)

 

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