Page:Popular Science Monthly Volume 8.djvu/342

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328
THE POPULAR SCIENCE MONTHLY.

shall again be decently interred. In England, with judicial functions divided between the state and the Church, the secular tribunals would protect the monument, the winding-sheet, the grave-clothes, even down to the ribbon (now extant) which tied the queue; but the Church would guard the skull and bones. Which of these relics best deserves the legal protection of the Supreme Court of law and equity of the State of New York? Does not every dictate of common-sense and common decency demand a common protection, for the grave and all its contents and appendages? Is a tribunal like this under any legal necessity for measuring its judicial and remedial action by the narrow rule and fettered movement of the common law of England, crippled by ecclesiastical interference? May it not put forth its larger powers and nobler attributes, as a court of enlightened equity and reason?

The due protection of the dead engaged the earnest attention of the great lawgivers of the polished nations of antiquity. The laws of the Greeks carefully guarded the private rights of individuals in their places of interment; and a similar spirit shines forth, in the clear intelligence and high refinement of the Roman jurisprudence. In the "Digest of the Civil Law," pl. 47, title 12, we find the beneficent and salutary provision, which gave a civil remedy, by the "Sepulchri violati actio," to every one interested, for any wanton disturbance of a sepulchre, and where "Ulpian, prætor, ait; Cujus dolo malo sepulchrum violatum esse dicetur in eum in factum judicium dabo ut ei ad quem pertineat, quanti ob earn rem æquum, videbatur condamnetur. Si nemo erit ad quern pertineat, sive agere nolet; quicunque agere volet, ei centum aureorum, actionem dabo"—a sepulchre being comprehensively defined, by another clause, to be, any place in which the body or bones of a man were deposited: "Sepulchrum est, ubi corpus ossave hominas, condita sunt."—("Dig.," pl. 7, § 2.)

Nor does the dictum of Coke, now under consideration, assert—for historically it would not be true—that no individual right to protect the repose of the dead had ever existed, under the common law of England. So far from that, we see in the provision above extracted from the "Digest," that the individual right did exist, during the greater part of the four hundred years when England, then called Britain, formed part of the Roman Empire. In the six centuries of Saxon rule which succeeded, as is forcibly observed by Chancellor Kent, "the Roman civilization, laws, usages, arts, and manners, must have left a deep impression, and have become intermixed and incorporated with Saxon laws and usages, and constituted the body 'of the ancient English common law.'" (1 Kent's "Commentaries," p. 547.)

The provision in question had been introduced into the Roman jurisprudence, long before its systematic codification by Justinian. It bears on its face the name of Ulpian, the great Roman jurist, who