In the article on 'The Dulwich Woods' in our first Supplement (pp.11-14) we mentioned the importance in medieval times of manorial woodland, and how there was often conflict between inhabitants anxious to retain their ancient rights of common and landlords, motivated by commercialism, equally anxious to oppose them.  In passing, we referred to such a dispute which took place in Dulwich in the 1570s, and the purpose of this article is to expand on the circumstances of that case, because of the light it sheds on the wider issue of 'common rights'.  We shall also examine a legal dispute in which Dulwich College became embroiled during the 17th century, which also concerned the woods and former woods of Dulwich manor.

 

In 1574 a number of Dulwich residents and tenants challenged Nicholas Calton, who was at that time the owner of Dulwich manor, in the Court of Chancery.  Some of the tenants did not actually live in Dulwich, but were prosperous inhabitants of Camberwell parish: men such as Mathew Draper (lord of the neighbouring manor of Camberwell Friern) and John Dove (one of the local gentry whose family had farmed in Dulwich and Camberwell for generations).  They said they were taking action on behalf of all the local people: all the tenants of Dulwich manor, both freeholders and copyholders, and "all other inhabitants within the Lordship of Dulwich".

 

They told the Court that it had been the custom for the tenants, even the poorest, "to have the free liberty at their leisure to take, fell, cut down and carry away for their necessary fuel, to be spent and burned in and upon their small tenements and for their necessary hedgebote [stakes used for fencing and hedging] all woods and underwoods standing and growing and being upon the common of Dulwich".  Only trees such as ash, oak and elm were excepted, but they were allowed to take the 'sprays' of these.

 

They accused Nicholas Calton of "a covetous mind and hard disposition, seeking the subjection and overthrow of the complainants' custom".  They alleged that Calton had cut down 30 acres of woodland (probably as a prelude to enclosure and cultivation of crops), and that he intended to cut down a further 30 acres every year.

 

Nicholas Calton agreed that he had "caused the same woods to be felled in such reasonable time and order".  He then challenged the reputation of the plaintiffs by saying that after the felling "a great number of disordered persons had assembled themselves together whereof some were women and some were men (as the defendant had heard reported), some of them disguised and arrayed in and with women's apparel", who "did very riotously and unlawfully by force take and carry away some of the wood".  He accused the plaintiffs of having incited the disorder.  However, Draper, Dove, and the other plaintiffs vigorously denied all these allegations.  The Court of Chancery finally decided the case against Nicholas Calton, and decreed that the plaintiffs should continue to "take, possess and enjoy all the said woods and underwoods for their necessary fuel and hedgebote".

 

As it happens, these rights, for which the denizens of Dulwich had fought so hard, soon lost most of their significance.  A right of common could only be enforced by someone who was, to use the technical term, 'seised of' (i.e. owned) a particular holding to which that right attached.  As leasehold was not regarded as a proper form of tenure during the middle ages, only a freeholder or copyholder could properly be seised of a tenement, and could therefore enforce such rights of common.  Edward Alleyn not only purchased the manor of Dulwich in 1605-6, he also (between 1605 and 1622) acquired all the freeholds which had not been owned by Calton and, as tenant, all but 15 acres of the copyholds, which thus merged with the freeholds.  By the time he died, in 1626, the whole of Dulwich (except those 15 acres, which remained copyhold until the 1870's, and the Dulwich woods and Common) was let out on 21 year leases, and a tenant who held such a lease had no rights of common (unless, as in fact was often the case, the lease specifically granted them) over the considerable area which Alleyn had left unenclosed.

 

How big was this area?  There is no firm evidence that it ever extended further north than Dulwich Common road, although prior to Alleyn's time it is possible that the southern half of Dulwich Park and the area between that and the road was common land. However, the whole of Dulwich south of what is now the South Circular, except for about 30 acres between Park Hall Road and Gipsy Hill, was ancient common.  That would include not only the woods (the acreages for which were set out in our previous article) but also the wastes and what was often described as "fursie, bushie and pasture".  The most accurate measurement of the extent of Dulwich Common seems likely to be the Tithe Award survey for Camberwell parish carried out in 1837, which stated that Dulwich College paid œ6 annually to the owner of the 'great or rectorial tithes' in respect of "lands in Dulwich now or formerly covered with wood.  Lands previously common lands.... containing 702 acres, 2 roods and 2 perches".

 

This brings us neatly to the second legal dispute referred to in our opening paragraph, or perhaps one should say series of disputes, since the case rumbled on intermittently over sixty years during the 17th century.  It began when Edward Alleyn 'grubbed up' Cokers (47 acres between Dulwich Common road and the Golf Course), cleared the land, and planted crops.  At this time the lay rector of St Giles Church Camberwell (which for Dulwich was the local parish church) was Sir Edmond Bowyer, lord of the manor of Camberwell Friern.  It was the rector who had the right to appoint the incumbent or vicar, and the right to receive the great tithes, payable not only on woodland (assuming the woodland had not, at some stage in the past, been declared free from tithes) but on land which had formerly been woodland and had been converted to arable use.  Bowyer accordingly demanded a tithe of corn from Alleyn, but Alleyn refused to pay.  The parties eventually agreed to refer the dispute to arbitration, but both died before the case was heard.

 

Litigation, now between the College and Bowyer's nephew and successor, also Sir Edmond, continued throughout the 1630s as further stretches of woodland were enclosed, to clear the land for crops or to farm the woods as coppices, but without the issue being resolved.  It may be said in passing, however, that the surviving documents relating to the case, of which there are many in various depositories, serve to provide much background information on those Dulwich residents who were called upon to make statutory declarations in support of one or other of the parties. For instance, we discover that in 1638 Thomas Hammond was 45, and had lived in Dulwich all his life, as had John Bodger (aged 59) and John Casinghurst (aged 64, and born in the Manor House, i.e. Dulwich Court Farm).  Richard Peare, aged about 80, claimed to have lived in a house on Rigates Green (we know this was the site of the Grove Tavern) for over 50 years, while Edmond Curson was aged 50 and had known Dulwich for 12 or 14 years.

 

The case erupted again in 1694, when Anthony Bowyer sued George Gibbs, who had been given a franchise by the College to cut down and carry away the wood and underwood from most of its coppices over several previous years.  Bowyer claimed that tithes of œ80 were owing to him, but in his defence (which was supported by a 'cross bill' from the College) Gibbs claimed that the woods were exempt from tithes, as having been part of the possessions of the Monastery of Bermondsey.  Much of the legal argument which followed turned on this point, and the eventual outcome was that the Court "absolutely dismissed" the College's cross bill, found that the woodlands had not been part of the manor of Dulwich at the time of the dissolution of Bermondsey Abbey in 1538, and that accordingly tithes of œ6 a year (the figure referred to in the Tithe Award Survey of 1837) were payable on them.

 

One cannot help feeling that the Court's findings were somewhat perverse in view of the evidence.  Great weight was attached to the fact that when, in 1530, Bermondsey  Abbey leased the manor of Dulwich to John Scott, the Dulwich Common and woods were not included.  To use the technical expression, they were "excepted and reserved" from the lease, but it is nonsense to cite this in support of the argument that they did not form part of the manor.  If the Abbey had not owned them, there would have been no need to "except and reserve" them, and indeed no need to mention them in the lease at all.  The fact that the Abbey did own the woods is also borne out by its appointment, in 1533, of Thomas Henley (a yeoman farmer of Dulwich, who occupied Hall Place, then called Knowlis, and whose brother held lands in Peckham) to the office of "bailiwyche of the Lordship of Dulwich", the duties of which included the provision of wood for the Abbey's "spring wood sales".

 

What may really lie at the heart of the 'Bowyer Tithe Dispute', as it is convenient to call it, was a reluctance on the part of Edward Alleyn (and the College may well have thought it disrespectful to his memory not to follow the same line) to accept that Sir Edmond Bowyer was entitled to receive the 'great tithes' annexed to the rectory of St Giles, precisely because Alleyn himself should have been receiving them.  Advowsons (another technical term, this time meaning the right to appoint the incumbent to a Church benefice and to receive the tithes) were treated as valuable investments and were frequently bought and sold.  Henry VIII's sale of the manor of Dulwich and other property in 1544 to Thomas Calton included the advowson of the parish church of St Giles, Camberwell.  However, unless the right to present the incumbent was actually exercised, the person who had bought it could lose it, and it seems that (largely as a result of the religious upheavals during the 1550s and '60s) this is precisely what happened.  That did not stop Thomas Calton's grandson, Sir Francis, from including the advowson in his sale of Dulwich manor to Edward Alleyn, and indeed Alleyn was more than a little put out at being made to pay an extra œ800 for it. The discovery that this particular investment was apparently valueless may well have been the reason why he, and later the College, fought the case so long and so hard.

 

                                                      Patrick Darby & Rosemary Warhurst

 

[from 'History Supplement No. 3, first published by the Dulwich Society, October 1984]