(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."
In "An Exhortation, to be spoken to such Parishes where they use their
Perambulation in Rogation Week; for the Oversight of the Bounds and
Limits of their Town," is a curious passage, which I subjoin:
"It is a shame to behold the insatiableness of some covetous
persons in their doings; that where their ancestors left of their
land a broad and sufficient bier-balk, to carry the corpse to the
Christian sepulture, how men pinch at such bier-balks, which by
long use and custom ought to be inviolably kept for that purpose;
and now they quite eat them up, and turn the dead body to be borne
farther about in the high streets; or else, if they leave any such
meer, it is too straight for two to walk on."--_Homilies_, ed.
Corrie, p. 499.
It may perhaps be considered not quite irrelevant here to state that
there seems once to have been an opinion, that the passage of the
sovereign across land had the effect of making a highway thereon. The
only allusion, however, to this opinion which I can call to mind, occurs
in Peck's _Antiquarian Annals of Stanford_, lib. xi. s. xii.; an extract
from which follows:--
"From Stanford King Edward, as I conceive, went to Huntingdon; for
in a letter of one of our kings dated at that town the 12th of
July (without any year or king's name to ascertain the time and
person it belongs to), the King writes to the aldermen and
bailiffs of Stanford, acquainting them, that, when he came to
Stanford, he went through Pilsgate field (coming then I suppose
from Peterborough), and, it being usual it seems that whatever way
the King rides to any place (though the same was no public way
before) for everybody else to claim the same liberty afterwards,
and thenceforth to call any such new passage the King's highway;
being followed to Huntingdon by divers of his own tenants,
inhabitants of Pilsgate, who then and there represented the damage
they should sustain by such a practice, the King by his letters
immediately commanded that his passing that way should not be made
a precedent for other people's so doing, but did utterly forbid
and discharge them therefrom. His letter, directed 'to our dearly
beloved the alderman, bailiffs, and good people of our Town of
Stanford,' upon this occasion, is thus worded:--'Dear and
well-beloved friends, by the grievous complaint of our beloved
lieges and tenents of the town of Pillesyate near our town of
Staunford, we have understood, that, in as much as, on Tuesday
last, we passed through the middle of a meadow and a certain
pasture there called Pillesyate meadow appertaining to the said
town of Pillesyate, you, and others of the country circumjacent,
claim to have and use an high way royal to pass through the middle
of the said meadow and pasture, to the great damage and disseisin
of our said lieges and tenents, whereupon they have supplicated
for a remedy; so we will, if it be so, and we command and charge
firmly, that you neither make nor use, nor suffer to be made nor
used by others of our said town of Staunford, nor others
whatsoever, no high road through the middle of the said meadow and
pasture; but that you forbear from it entirely, and that you cause
it to be openly proclaimed in our said town, that all others of
our said town and the country round it, do likewise; to the end
that our said tenents may have and peaceably enjoy the said meadow
and pasture, so, and in the manner, as they have done before these
times, without disturbance or impeachment of you or others, of
what estate or condition soever they be, notwithstanding that we
passed that way in manner as is said. And this in no manner fail
ye. Given under our signet at Huntyngdon the 12th day of July.'"
I am unable to say whether the opinion it was the object of the above
royal letter to refute was general, or was peculiar to the "good people"
of Stanford, "and others of the country circumjacent."