Page:Popular Science Monthly Volume 8.djvu/341

From Wikisource
Jump to: navigation, search
This page has been validated.
327
THE OWNERSHIP OF THE DEAD.

hundred years, copied and recopied, and repeated again and again by judges and legal writers, until it has imparted its tincture to the laws of the dead, throughout every portion of the earth which listens to the English tongue.

But even the dictum itself, if closely examined, will not be found to assert that no individual can have any legal interest in a corpse. It does not at all assert that the corpse, but only that the "buriall" is "nullius in bonis;" and this assertion was legally true in England where it was made, for the peculiar reason above stated, that the temporal office of burial had been brought within the exclusive, legal cognizance of the Church, who could and would enforce all necessary rules for the proper sepulture and custody of the body, thus rendering any individual action in that respect unnecessary. The power thus exercised by the ecclesiastical tribunals was not spiritual in its nature, but merely temporal and juridical. It was a legal secular authority, which they had gradually abstracted from the ancient civil courts, to which it had originally belonged; and that authority, from the very necessity of the case, in the State of New York, must now be vested in its secular courts of justice.

The necessity for the exercise of such authority, not only over the burial, but over the corpse itself, by some competent legal tribunal, will appear at once if we consider the consequences of its abandonment. If no one has any legal interest in a corpse, no one can legally determine the place of its interment, nor exclusively retain its custody. A son will have no legal right to retain the remains of his father, nor a husband of his wife, one moment after death. A father cannot legally protect his daughter's remains from exposure or insult, however indecent or outrageous, nor demand their reburial, if dragged from the grave. The dead deprived of the legal guardianship, however partial, which the Church so long had thrown around them, and left unprotected by the civil courts, will become, in law, nothing but public nuisances, and their custody will belong only to the guardians of the public health, to remove and destroy the offending matter, with all practicable economy and dispatch. The criminal courts may punish the body-snatcher who invades the grave, but will be powerless to restore its contents. The honored remains of Alexander Hamilton, reposing in our oldest church-yard, wrapped in the very bosom of the community, built up to greatness by his consummate genius, will become "nullius in bonis," and belong to that community no longer. The sacred relics of Mount Vernon may be torn from their "mansion of rest," and exhibited for hire in our very midst, and no civil authority can remand them to the tomb.

Applied to the case now under examination, the doctrine will deny to a daughter, whose filial love had followed her father to the grave, and reared a monument to his memory, all right to ask that his remains, uprooted by the city authorities and cast into the street,