Page:Popular Science Monthly Volume 8.djvu/336

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322
THE POPULAR SCIENCE MONTHLY.

THE OWNERSHIP OF THE DEAD.[1]
By SAMUEL B. RUGGLES, LL. D.

IN resorting to England for light on this subject, we encounter a body of law grown up under circumstances differing widely from our own. The jurisprudence of that country is peculiarly compounded, embracing largely the ecclesiastical element, from which ours is exempt; and it has given birth to anomalies which we are hardly required to adopt. This is strikingly manifest in the matter of the dead, in which the partition of juridical authority between the Church and the state, forming one composite system, has materially narrowed the powers and the action of the courts of common law. It is believed that an attentive examination of the history of this division of judicial power will show that it is wholly peculiar to England, and that the decisions and dicta of their courts and legal writers on this subject ought not to exert any controlling influence over our legal tribunals.

In surveying the various changes in the organization and powers of the British courts of justice, produced successively by the Roman, Saxon, and Norman conquests, it is difficult to fix with precision the period when the judicial authority began to be divided between the state and the Church. Christianity had made some progress in Britain while yet remaining under the Roman power, but does not appear to have mingled itself materially with the governmental administration. The Saxon conquerors, who succeeded the Roman in the fifth century, brought in paganism for about one hundred and fifty years; but it was extirpated about the close of the sixth century by the vigor of St. Augustin, under the pontificate of Gregory the Great. It is quite apparent that the clear-sighted incumbents of the Holy See by that time had perceived in the burial of the dead a very important and desirable element of spiritual dominion. It was the sagacity, not less than the piety, of that distinguished pontiff, which led him to introduce the custom of burial in churches, to the end, as he declared, that the relatives and friends of the dead might be induced more frequently to pray for their repose. Occasional interments in places of worship, or their immediate vicinity, had indeed been made by the early Christians, as far back as the reign of Constantine; but it was not until after the pontificate of Gregory, and the rapid increase by his successors of the temporal power of the Church, that burial-grounds were generally attached to places of worship, and subjected by formal consecration to ecclesiastical authority.

  1. Extract from a report on the "Law of Burial," made to the Supreme Court of the State of New York in 1856, by Hon. Samuel B. Ruggles, referee, in respect to compensation to owners of vaults in cemeteries, and to relatives of individuals buried in graves disturbed by legal proceedings. Reprinted in Providence, R. I., 1872. 46 pages