Letter – George Grey to Nicholas Walton – 17 Sep 1739

A State of the case between the Commissioners of Greenwich Hospital and the Tenants of Thornthwait



      The Tenants of the Manor of Thornthwait in Com[itatus] Cumb[erland] formerly belonging to the Earl of Derwentwater and now under the Direction of the Govern[or]s of Greenwich Hospital Hold their Customary or Tenant right Estates there by the payment of reasonable Arbitrary Fines upon the Death of the Lord Called General Fines and upon the Death or Alienation of the Tenants called Dropping Fines. Their Admittances are to hold during the Joint Lives of Lord and Tenant at the Will of the Lord According to the Custom of the Manor and are in all respects what are called in that County Customary Tenants at the Will of the Lord.

      By the Common Custom of Tenant right used within the said County the Lords are intituled to all Timber Trees and other Trees (Except Brushwood or underwood) growing upon the Lands of their Tenants Allowing the Tenants reasonable Houseboot, Plowboot and Hedgeboot and as the Freehold of these estates is in the Lord the Tenants do not Pretend to Sell their wood or have any other tight in it than to take reasonable Estovers without the assignment of the Lords Bayliff. [In LH margin:] Estovers

      As the Lords of the Manor have time out of mind had a great deal of wood growing upon their own Demesnes and there has been but little upon the Lands of the Tenants, it cannot be proved that the Lords usually Cutt down and Disposed of any of the Tenants wood But where a tenant has been Building upon his Customary Estate and has not had wood Sufficient of his own the Lords Bayliff has Assigned him wood in the Lands of another Tenant. 

      It cannot be proved that the Tenants of this manor ever offered to Sell Underwood [*] or wood of any kind either growing in their Hedgerows or Elsewhere in their Customary Estates till about [small blank space] Years agoe [**] some of them Ingratiating themselves with the Bayliff did sell some of the wood out of their Hedgerowes and the Bayliff connived at it but had always the Bark or some other gratuity for his Connivance. And about two or three years since when severall of the Tenants Pretending that they were Absolutly intituled to the wood growing in their Hedgerows began to Cutt down and dispose of the same & then the Bayliffe of the Manor thereupon Informed ag[ain]st them and they were all Convicted before a Justice of the Peace and paid their Fines.

[* In LH margin:] Q[uery] if since the Rebellion

[** In LH margin:] the time cannot be Fixed

      Mr Jefferson a Customary Tenant  of this Manor about [ left blank]  Years agoe sold a Great Number of Birch Trees and Eller Trees growing upon his Customary Estate but not in the Hedgerowes to one Miles for above Eight Pounds and some oak trees to other Persons for about three pounds, Jefferson pretending that the Birch Trees and Eller Trees are underwood and that he has therefore a Right to Cutt them down and sell them and has given Miles a Security to Indemnifye him for Carrying them off and Miles has now begun to Lead them away, the Oak trees were Carryed off some time agoe.

Q[uery]

      Whether as the Freehold of these Customary Estates i in the Lord, and the Tenants have nothing but a Particular Interest in them, All the Timber trees and other Trees of what kind soever growing upon the Customary Lands do not belong to the Lord of Common right, tho it cannot be proved that the Lords have need to Cutt wood there for their own use. And whether tho the Ten[an]ts have usually Cutt Brushwood and underwood in their Hedgerows without  the Lords Licence for their Estovers they are thereby Intituled to Cutt and Sell such Brushwood or underwood And whether large Birch Trees and Eller Trees are Strictly underwood. [In LH margin:] Estovers

All Timber and other Trees growing on those Customary Estates do prima facie belong to the Lord, the Tenants being only intituled to their proper Bootes, And the Lord has a right to cutt the Timber  Trees for his own use, tho there be no Instance of his doing it, for the Tenants cannot cut them, and if the Lord had not that Poswer they must [rot] on the Land. As to underwood or Brushw[oo]d  [we’re] of opinion the Tenants cannot sell it without a full proof of a Custom for that Purpose, for if they could sell it they might destroy the whole and thereby alter the N ature of the Evidence By Converrting Woodland into Arrable or Meadow which is Adjudged to be Waste; Birch and Eller are not commonly reputed Timber Trees unless in such places where oak, Ash and Elm are not to be gott.



2d Q[uery]

     In case the Tenants should be able tol give 2 or 3 Instances of their Cutting and Selling wood and it should appear either that they Applyed for the Bayliffs leave to Sell and gave him a Gratuity for his  Consent or that the wood was sold and Carryed off privately will this Establish their Right to Cutt and Sell wood at their Pleasure.  And can the usage and Customs observed in other Neighbouring Customary Manors as to the Lords right of cutting his Tenants wood be given in Evidence in this Case or any ways Influence it.

I Do not think it a reasonable Custom (in case it can be proved) for the Tenants to cutt and sell Timber Trees And their Claim to Cutt and Sell other Trees ought to be fully provd to Maintain their right, or in Case it can be proved, that Applicatioln for leave was made to the Steward, or that the wood was Carryed off privately, it will destroy their pretence. The Custom in other Neighbouring Manors is not Material in this Case



3d Q[ery]*

     If upon the whole Circumstances of this Case Jefferson has rightfully Cutt down and Sold these Birch Trees oak Trees and Eller Trees and if not what Remedy have the Gov[ewrnor]s of Greenwich Hospitall  and Against whom for Cutting Selling and Carrying away these trees.

The King being Lord of the Manor, All the Trees belong to his Majesty, and since the Tenants Claim to Cutt and Sell by Pretence of Custome, I thgink the most adviseable Method is by Information in the Exchequer which will settle the rights, and is better than bringing an action at Law.



Geo: Grey

Sept 17. 1739