Drake's Historia Anglo-Scotica.

—Will any of your learned readers inform me, for what reason and by what authority Drake's Historia Anglo-Scotica, published in 1703, was ordered to be burned by the hangman? And where I can meet with a report of the proceedings relating to it?

FRA. MEWBURN.

Darlington.

[Dr. Drake was not the author, but merely the editor of Historia Anglo-Scotica. In the dedication he says, "Upon a diligent revisal, in order, if possible, to discover the name of the author, and the age of his writing, he found that it was written in, or at least not finished till, the time of Charles I." It is singular, however, that he does not give the least intimation by what mysterious influence the manuscript came to be wafted into his library. It was ordered by the parliament of Scotland, on the 30th of June, 1703, to be burned by the common hangman.]

Replies.

CORPSE PASSING MAKES A RIGHT WAY.
(Vol. iii., p. 477.)

The fact of the passage of a funeral procession over land, from being an act of user of a very public character, must always have had some influence on the trial of the question whether the owner of the land had dedicated the same to the public; and it is not improbable that in early times very great weight was attached to evidence of this kind: so that the passage of a corpse across land came to be considered in the popular mind as conclusive and incontrovertible evidence of a public right of way over that land. With the reverence for the dead which is so pleasing a characteristic of modern refinement, it is probable that acts of user of this description would now have little weight, inasmuch as no man of right feeling would be disposed to interrupt parties assembled on so mournful and solemn an occasion. I recollect, however, having read a trial in modern times for a riot, arising out of a forcible attempt to carry a corpse over a field against the will of the landowner; the object of the parties in care of the corpse was believed to be the establishment of a public right of way over the field in question, the owner of which, with a body of partisans, forcibly resisted the attempt, on the apparent belief that the act of carrying a corpse across the field would certainly have established the right claimed. I regret I did not "make a Note" of the case, so as to be able to specify the time, place, and circumstances with certainty.

That the notion in question is of great antiquity may I think be inferred from the following passage in Prynne's Records, iii. 213., referring to Walter Bronescombe, Bishop of Exeter, 1258-1280 (and as the authority for which, Prynne cites Holinshed's Chronicle, 1303, 1304; and Godwin's Catalogue of Bishops, 326.):—

"He did by a Policy purchase the Lordship and House of Clift Sachfeld, and enlarged the Barton thereof by gaining of Cornish Wood from the Dean and Chapter fraudulently; building then a very fair and sumptuous house there; he called it Bishop's Clift, and left the same to his successors. Likewise he got the Patronage of Clift Fomesone, now called Sowton, and annexed the same to his new Lordship, which (as it was said) he procured by this means. He had a Frier to be his Chaplain and Confessor, which died in his said House of Clift, and should have been buried at the Parish Church of Faringdon, because the said House was and is in that Parish; but because the Parish Church was somewhat farre off, the wayes foul, and the weather rainy, or for some other causes, the Bishop commanded the corps to be carryed to the parish church of Sowton, then called Clift Fomeson, which is very near, and bordereth upon the Bishop's Lordship; the two Parishes being then divided by a little Lake called Clift. At this time one Fomeson, a Gentleman, was Lord and Patron of Clift Fomeson; and he, being advertised of such a Burial towards in his Parish, and a leech way to be made over to his Land, without his leave or consent required therein; calleth his Tenants together, goeth to the Bridge over the lake between the Bishop's Land and his; there meeteth the Bishop's men, bringing the said Corps, and forbiddeth them to come over the water. The men nothing regarding the Prohibition, do press forwards to come over the water, and the others do withstand, so long, that in the end, my Lord's Fryer is fallen into the Water. The Bishop taketh this matter in such grief, that a holy Fryer, a Religious man, his own Chaplain and Confessor, should be so unreverently cast into the Water, that he falleth out with the Gentleman, and upon what occasion I know not, he sueth him in the Law (in his own Ecclesiastical Court, where he was both party and Judge), and so vexeth and tormenteth him, that in the end he was fain to yeeld himself to the Bishop's devotion, and seeketh all the wayes he could to carry the Bishop's good will, which he could not obtain, until for redemption he had given up and surrendered his patronage of Sowton, with a piece of land; all which the said Bishop annexed to his new Lordship."