Popular Science Monthly/Volume 8/January 1876/The Ownership of the Dead
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.
The judicial history of the Romish Church in England, from the sixth century to the thirteenth, exhibits its earnest efforts and its steady and all but uninterrupted progress, not only in strengthening its proper spiritual power, but in obtaining the exclusive temporal, judicial cognizance of all matters touching the ecclesiastical edifices and their appendages, and especially their places of burial. During that period, the office of sepulture, originally only a secular duty, came to be regarded as a spiritual function—so much so, that the secular courts, in the cases as early as the 20th and 21st Edward I., cited in 2 Inst., 363, in determining whether or not a building was a church, inquired only whether it had sacraments and sepulture.
It is generally stated that burial in church-yards was introduced into England by Cuthbert, Archbishop of Canterbury, in the year 750. The form of their consecration is even yet preserved, in some of its essential features, by the Established Church. The invocation, as given by Burn, in his "Ecclesiastical Law," vol. i., p. 334, after declaring that the duty has been taught by God, "through his holy servants, in all ages, to assign places where the bodies of the saints may rest in peace and be preserved from all indignities," asks the divine acceptance "of the charitable work, in separating the portion of ground to that good purpose."
The sagacious policy of the Romish ecclesiastics, in attaching the place of interment to the church, was duly strengthened by the stringent provision of the canon law, which prohibited heretics from Christian burial. To repose in any but consecrated earth soon came to be ignominious; and thus the church-yard became a vital portion of the material machinery for enforcing spiritual obedience and theological conformity. Nor was the power neglected. It governed Europe for several hundred years, and it was but shortly before the Protestant Reformation in England that one Tracy, being publicly accused in convocation of having expressed heretical sentiments in his will, and being found guilty, a commission was issued to dig up his body, which was done accordingly.—(1 Burn, "Eccl. Law," p. 266.)
During the early portion of the Anglo-Saxon period, the power of the clergy over the dead was kept in check by uniting the lay with the clerical order in the ecclesiastical tribunals; but their jurisdictions were separated soon after the Norman conquest, and the effect upon the dead is plainly discernible. The exclusive power of the ecclesiastics, denominated in legal phrase "ecclesiastical cognizance," became not only executive, but judicial. It was executive, in taking the body into their actual, corporeal possession, and practically guarding its repose in their consecrated grounds; and it was judicial, as well in deciding all controversies involving the possession or the use of holy places, or the pecuniary emoluments which they yielded, as in a broader field, in adjudicating who should be allowed to lie in consecrated earth, and, in fact, who should be allowed to be interred at all.
The deplorable superstition that could induce people to intrust such a power to any but its civil government and civil courts is amazing, and yet we find the sturdy English nation, under the government of William of Normandy, stripping their cherished Anglo-Saxon courts of all power to protect the dead, and yielding them up blindfold to priestly cognizance. As Sir William Blackstone well says, it was a "fatal encroachment" on the ancient liberties of England. Eight centuries have not sufficed to repair the mischief. Anselm and Becket, in modern garb, live even yet.
The deep-seated, fundamental idea of human burial lies in the mingling our remains with the mother earth. The "dust to dust! earth to earth! ashes to ashes!" of the Church—echoing, in deeper solemnity, the "ter pulvere" of Horace, and hallowing the dying wish of Cyrus—finds a universal response in the holiest instincts of man in every age. Here, then, was the tender spot for subtle power to touch. Logically pursuing this idea, the ecclesiastical process of excommunication prohibited burial in the earth at all, whether consecrated or not. The precise words of the formula, as used in the tenth century, gave over the body of the contumacious offender for food to the fowls of the air and beasts of the field: "Sint cadavera eorum, in escam volatilibus cœli, et bestiis terræ." In some instances the sentence was more definite and specific, confining the corpse to the hollow trunk of a tree, "in concavo trunco repositum." The essence of the idea being to keep the body out of the earth and on the surface, it was sometimes figuratively expressed, in monkish rhetoric, by "the burial of an ass," or by a stronger and more characteristic image, as "a dunghill:" "Sepultura asini sepeliantur, et in sterquilinium super faciem terræ sint." The afflicted but sinful laity, to hide the horror of the spectacle, were wont, at times, to cover the festering dead with a pile of stones, thereby rearing a tumulus, or "bloc;" so that the process came to be commonly known, in mediæval Latin, as "imblocare corpus."—(Du Cange, Glossary, "Imblocare.")
The same dominant idea of the unfitness of spiritual offenders to pollute the earth can be distinctly traced through the judicial ecclesiastical condemnations for several centuries. John Huss and Jerome of Prague being at the stake for heresy, early in the fifteenth century, under the ecclesiastical order of the Council of Constance, their ashes were not allowed to mingle with the earth, but were cast into the Rhine.
The legal process of scattering the ashes of the heretic was evidently a very significant and cherished feature in the ecclesiastical code of procedure, and it was executed in the different portions of Christendom with all attainable uniformity and precision. Within its comprehensive range it embraced not only the ashes of the heretic freshly burnt, but the mouldering remains of any who had been suffered, through mistake or inadvertency, to slip into their graves. Wycliffe, the first English translator of the Scriptures, had ventured, in life, to question certain points of dogmatic theology, but, dying in his bed, in the year 1384, had been allowed to sleep for forty-one years in a church-yard in Leicestershire. The assembled dignitaries in the Council of Constance, after duly disposing of the ashes of Huss and Jerome, judicially declared the heresy of Wycliffe, and his bones were accordingly dug up and burnt, and the ashes thrown into the river Avon, in the due exercise of the executive branch of ecclesiastical cognizance, in the year 1425 of the Christian era.
Nor was the ecclesiastical cognizance of the dead confined to delinquents of low degree, or in the plainer walks of life. The Emperor of Germany, Henry IV., the victor of more than sixty battles, dying under papal excommunication by Hildebrand, the seventh Gregory, was compelled to lie for five years unburied, in the very sight of the majestic cathedral of Spires, which his father had commenced, and he had completed.
But the high and transcendent energy of ecclesiastical cognizance was completely developed in England in the thirteenth century, when it reached its culminating point, with the whole kingdom as the defendant. From the year 1207 to the year 1213, the interdict of Innocent III. kept out of their lawful graves all the dead, from the Channel to the Tweed. No funeral-bell in the kingdom was permitted to toll; the corpses were thrown into ditches, without prayer or hallowed observance, and the last drop of priestly malice and vengeance was exhausted, in compelling all, who wished to marry, to solemnize the ceremony in the church-yard.
It was during this unbridled career of papal aggrandizement through these dark and dismal ages, that the ancient civil courts of England gradually lost their original legitimate authority over places of interment, as private property, and their proper and necessary control over the repose of the dead. The clergy monopolizing the judicial power over the subject, burial was committed solely to ecclesiastical cognizance, while the secular courts, stripped of all authority over the dead, were left to confine themselves to the protection of the monument, and other external emblems of grief, erected by the living. But these they guarded with singular solicitude. The tombstone, the armorial escutcheons, even the coat and pennons, and ensigns of honor, whether attached to the church edifice or elsewhere, were raised as "heirlooms" to the dignity of inheritable estates, and descended from heir to heir, who could hold even the parson liable for taking them down or defacing them.
The reverent regard of the common law for these memorials is curiously manifested by Coke in the "Third Institute," page 203, where he expatiates upon a monumental stone, in his time more than four hundred years old, inscribed with the name of a Jewish rabbi, and inlaid in the ancient wall of London—as if to intimate that the law would protect from injury that venerable piece of antiquity.
But at this point the courts of the common law stopped, and held, in humble deference to the ecclesiastical tribunals, that the heir could maintain no civil action for indecently or even impiously disturbing the remains of his buried ancestor, declaring the only remedy to belong to the parson, who, having the freehold of the soil, could maintain trespass against such as should dig or disturb it. The line of legal demarkation established in this subject, between the ecclesiastical and the common-law courts, is thus defined by Coke: "If a nobleman, knight, esquire, etc., be buried in a church, and have his coat-armor and pennons, with his arms, and such other insigns of honor as belong to his degree or order, set up in the church, or if a gravestone he laid or made for memory of him, albeit the freehold of the church be in the parson, and that these be annexed to the freehold, yet cannot the parson, or any, take or deface them, but he is subject to an action to the heire and his heires, in the honor and memory of whose ancestor they were set up" (1st Inst., 4, 18 b). In the "Third Institute," page 203, he asserts the authority of the Church, as follows: "It is to be observed," says he, "that in every sepulchre that hath a monument, two things are to be considered, viz.: the monument, and the sepulture orof the dead. The buriall of the cadaver, that is caro data vermibus" (flesh given to worms), "is nullius in bonis, and belongs to ecclesiastical cognizance; but as to the monument, action is given, as hath been said, at the common law for the defacing thereof."
With all proper respect for the legal learning of this celebrated judge, we may possibly question both the wisdom and the etymology of this verbal conceit, this fantastic and imaginary gift, or outstanding grant to the worms. In the English jurisprudence, a corpse was not given or granted to the worms, but it was taken and appropriated by the Church. In Latin, it was a "cadaver" only because it was some thing fallen (á cadendo), even as the remains of fallen cities, in the letter of Sulpicius to Cicero ("Lit. Fam.," 7), are denominated "cadavera oppidorum."
The learned lexicographers and philologists Martinius and the elder Vossius, both of them contemporaries of Coke, wholly dissent from his whimsical derivation. Martinius derives "cadaver" from "cadendo, quia stare non potest," "Lexicon Philologicum Martinii," 1720; while Vossius unequivocally reproves the derivation in question, as an act of pleasant but inflated trifling. "Suaviter nugantur," says he, "qui cadaver conflatum aiunt, ex tribus vocibus, caro data vermibus" ("Etymologicon Linguæ Latinæ," Amsterdam, 1662). And yet this inflated Latin trifle, the offspring only of Coke's characteristic and inordinate love of epigram, has come down through the last three 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, 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 not only lived as early as the second century of the Christian era, but actually assisted (as Selden states in his "Appendix to Fleta") in the judicial administration of Britain, He was the contemporary, and doubtless the personal and professional friend, of the celebrated prætorian-prefect Papinian, himself the most distinguished lawyer of his age, and chief administrator, in the year 210, of the Roman government at York, Selden glowingly depicts the judicial illumination of that early British age, as flourishing alike under the "Jus Cæsareum," the imperial law, and its able administration by those two most accomplished and illustrious Romans, "viri peritissimi, illustrissimique è Romanis.—(Selden's "Appendix to Fleta," p, 478.)
Nor is there any reason to believe that the Romanized British, when released, in the fifth century, from their political allegiance to the empire, abandoned the civilization, or abrogated the laws or usages which they had so long enjoyed; still less that they would seek or desire, in any way, to withdraw from their sepulchres and graves the protection which those laws bad so fully secured. There is not a shadow of historical evidence that, under the Saxon invaders, who succeeded the Roman governors, any less respect was shown for the buried dead. On the contrary, it is distinctly shown by the Scandinavian historians, that these partially civilized Saxons had been specially taught to reverence their places of burial by their great leader Odin, the father of Scandinavian letters, distinguished for his eloquence and persuasive power, and especially commemorated as being the first to introduce the custom of erecting gravestones in honor of the dead.
In the dim and flickering light by which we trace the laws of these long-buried ages, the fact is significant and instructive that, of the several founders of the seven little Saxon kingdoms constituting the Heptarchy, nearly all deduced their descent, more or less remotely, from Odin himself. Hengist, who led the Saxon forces into Britain, and became first King of Kent, claimed with peculiar pride to be his great-grandson—rendering it quite improbable that during the rule of himself or his race, or that of his kindred sovereigns, which lasted from three to four hundred years, Saxonized Britain learned to abandon its buried ancestors, or hold them, in law, "nullius in bonis."
Nor do we find, in the occasional inroads of the Danes temporarily disturbing the Saxon governments of England, any evidence that they obliterated, in the slightest degree, the reverential usages in the matter of the dead, coming down from Odin. The early laws of that rude people, carefully collected in the twelfth century by the learned antiquary Saxo Grammaticus, speak with abhorrence of those who insult the ashes of the dead, not only denouncing death upon the "alieni corruptor cineris," but condemning the body of the offender to lie forever unburied and unhonored.—("Law of Frotho," Saxo Grammaticus, lib. v.)
The law of the Franks, near neighbors of the Saxons, cited by Montesquieu ("Spirit of Laws," lib. 30, chap. 19), not only banished from society him who dug up a dead body for plunder, but prohibited any one from relieving his wants, until the relatives of the deceased consented to his readmission—thus legally and distinctly recognizing the peculiar and personal interest of the relatives in the remains.
We are, indeed, so surrounded by proof of the universal reverence of the Gothic nations for their buried ancestors that we are justified in assuming it to be historically certain that the barbarous idea of leaving the dead without legal protection never originated with them; that the enlightened provision of the Roman jurisprudence, which protected in Britain the individual right to their undisturbed repose, not only remained unaffected by the Saxon invasion, but was implanted by that event still more deeply in the ancient common law of England; and that it must have been vigorously enforced, as well by the earliest secular courts of the Anglo-Saxons, as in that transition period of their judicial history, when the sheriff and the bishop, sitting side by side on the bench, united the lay and the ecclesiastical authority in a single tribunal.
Nor was the right to protect the dead eradicated by the Norman conquest. It is true that the swarm of Romish ecclesiastics which poured into England with the Conqueror exerted themselves actively and indefatigably to monopolize for the Church the temporal authority over the dead; but that by no means proves that they were left unprotected. On the contrary, it was a concentration in the ecclesiastical body of every right which any individual had previously possessed, to secure their repose. The individual right was not extinguished, it was only absorbed by the Church, and held in suspense, until some political revolution or religious reformation should overthrow the ecclesiastical power which had thus secured its possession.
The ecclesiastical element was not eradicated from the framework of the English Government, either by the Reformation or the act of Parliament establishing the Protestant succession, but in the portion of the world which we inhabit the work has been more thoroughly accomplished. The English emigration to America—the most momentous event in political history—commenced in the very age when Chief-Justice Coke was proclaiming, as a legal dogma, the exclusive authority of the Church over the dead. The liberty-loving. God-fearing Englishmen who founded these American States had seen enough and felt enough of "ecclesiastical cognizance," and they crossed a broad and stormy ocean to a new and untrodden continent, to escape from it forever.
It may well be that some of the legislative enactments of these weather-beaten men, in the early morning of their political life, while yet unused to the meridian light of religious freedom, are disfigured by the same intolerance they had left behind them. They may have even mingled in their general scheme of civil policy an ecclesiastical element sterner and more searching than that of the Church from which they dissented. The curious historian may analyze, if he will, the earnest puritanism of early New England, or even the sturdy bigotry of early New Netherland; it is enough for the Commonwealth of New York, "by the grace of God, free and independent," to know that its first written constitution, born in 1777, in the very depths of the Revolutionary struggle, extirpated from the body politic every lingering element of ecclesiastical cognizance or spiritual authority. On all its features it bears the unextinguishable love of religious freedom, brought to our shores by the refugees from ecclesiastical tyranny, not only in England, but in Holland and France. Its ever-memorable declaration of religious independence—offspring of the lofty intellect and noble heart of John Jay, and growing bright with his Huguenot blood—proclaims to the world the fundamental resolve, "not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance wherewith the bigotry and ambition of weak and wicked priests and princes have scourged mankind."
Following up this fixed determination, and yet with wise regard and unaffected reverence for the Christian Church in its purity, the illustrious authors of this Magna Charta of our religious liberty, prohibit any "minister of the gospel, or priest of any denomination," from holding any office, civil or military, within the State; inscribing in the organic law, thus unmistakably, their settled purpose to deliver both dead and living from ecclesiastical cognizance, to emancipate the courts of justice from every priestly and mediæval fetter, and to allow them to breathe, through all coming time, the invigorating air of ancient, Anglo-Saxon freedom.
It is a striking proof of the inveterate attachment, even of the most enlightened nations, to prescriptive authority, that the monkish idea of the church-yard as an engine of spiritual power not only lingers in England, but is boldly proclaimed in its very metropolis. Within the last two years, the Archdeacon of London, in an official address to the clergy of the Established Church within his district, openly complains of modern legislation in the British Parliament, in establishing extra-mural cemeteries around their crowded cities; for, says he, "the church and the church-yard of the parish have hitherto been one of the strongest ties, to bind the people at large to the communion of the Church." And again, "Burial bound, I say, the people, in the metropolis, to the Established Church."
It certainly is not for us to interfere with the ecclesiastical law of England, nor needlessly to criticise its claims to the respect of the people whom it binds. We only ask to banish its maxims, doctrines, and practices from our jurisprudence, and to prevent them from guiding, in any way, our judicial action. The fungous excrescence which required centuries for its growth may need an efflux of ages to remove. Burial in the British Islands may possibly remain, for many generations, subject exclusively to "ecclesiastical cognizance;" but in the new, transplanted England of the Western Continent the dead will find protection, if at all, in the secular tribunals, succeeding, by fair inheritance, to the primeval authority of the ancient, uncorrupted common law.
It is gratifying, however, to perceive that, even in the English courts, traces are becoming discernible of a disposition to recognize the ancient right of burial at common law. In the year 1820, a legal claim was made by one Gilbert to bury, in a London churchyard, the body of his wife in an iron coffin, but it was resisted by the churchwardens. Buzzard and Boyer, on the ground that it would injuriously prolong the period when the natural decay of the body and of a wooden inclosure would make room in the grave for another occupant. An application had been previously made in the same matter to the King's Bench, for a mandamus (reported in 2 Barn, and Aid., p. 806), on which occasion the distinguished counsel, Mr. Scarlett and Mr. Chitty, claimed that the right of interment existed at common law. In refusing the application, Chief-Justice Abbott said: "It may be admitted, for the purpose of the present question, that the right of sepulture is a common-law right, but I am of opinion that the mode of burial is a subject of ecclesiastical cognizance." Mr. Justice Holroyd, after duly reproducing Coke's caro data vermibus, declared that "burial is as much a matter of ecclesiastical cognizance as the prayers that are to be used, or the ceremonies that are to be performed at the funeral."
The matter, which had caused some public disturbance in London, was thereupon carried into the Ecclesiastical Court, then adorned by the learning and talents of Sir William Scott (since Lord Stowell). In the very elaborate and eloquent opinion delivered by the accomplished judge on that occasion (reported in 3 Phillimore, p. 335), he reviews the whole history of burial, from the remotest antiquity, philosophically tracing the progress of interment through the heathen and the Christian ages. Drawing a distinction between the coffined and uncoffined funerals of early times, he admits that many authoritative writers assert the right of a parishioner to be buried in his own parish church-yard, but he denies that it necessarily includes the right to bury a "trunk or chest" with the body. "The right," says he, "strictly taken, is, to be returned to the parent earth for dissolution, and to be carried there in a decent and inoffensive manner." The honest sense and feeling of the judge were evidently struggling with ecclesiastical law and usage, but he came to the conclusion that no mode of burial could be permitted which would prolong the natural decay of the body, or needlessly preserve its identity; that the lapse of a single generation is practically sufficient for mingling human remains with the earth, and destroying their identity; that, the dead having no legal right to crowd the living, each buried generation must give way to its successor; and that, therefore, an iron coffin, which would unduly and unlawfully prolong the period for identifying the remains, was ecclesiastically inadmissible, unless an extra fee were paid to the Church.
The court will perceive, by the proofs in the case now under examination, that the remains of the exhumed body are identified beyond doubt or question. The skeleton of the "posthumous man" is now legally "standing in court," distinctly individualized; with his daughter, next and nearest of kin, at his side, to ask that the tribunal whose order for widening the street ejected him from the grave will also direct his decent interment.
It was the pride of Diogenes, and his disciples of the ancient school of cynics, to regard burial with contempt, and to hold it utterly unimportant whether their bodies should be burned by fire or devoured by beasts, birds, or worms; and a French philosopher of modern days, in a somewhat kindred spirit, descants upon the "glorious nothingness" of the grave, and that "nameless thing"—a dead body. The secular jurisprudence of France holds it in higher and better regard. In the interesting case reported in "Merlin's Répertoire," title "Sepulture," where a large tract of land near Marseilles had necessarily been taken for the burial of several thousand bodies, after the great plague of 1720, it was adjudicated, by the secular court, that the land should not be profaned by culture even of its surface, until the buried dead had mouldered into dust. The eloquent plaidoyer of the avocat-général' upon that occasion dwells with emphasis on the veneration which all nations, in all ages, have shown for the grave—adding, however, with some little tinge of national irreverence, "C'est une vénération toujours revocable! et toujours subordonnée au bien public."
In portions of Europe, during the semi-barbarous state of society in the middle ages, the law permitted a creditor to seize the dead body of his debtor; and, in ancient Egypt, a son could borrow money by hypothecating his father's corpse; but no evidence appears to exist in modern jurisprudence of a legal right to convert a dead body to any purpose of pecuniary profit.
It will be seen that much of the apparent difficulty of this subject arises from a false and needless assumption in holding that nothing is property that has not a pecuniary value. The real question is not of the disposable, marketable value of a corpse, or its remains, as an article of traffic, but it is of the sacred and inherent right to its custody, in order decently to bury it and secure its undisturbed repose. The insolent dogma of the English ecclesiastical law, that a child has no such claim, no such exclusive power, no peculiar interest in the dead body of its parent, is so utterly inconsistent with every enlightened perception of personal right, so inexpressibly repulsive to every proper moral sense, that its adoption would be an eternal disgrace to American jurisprudence. The establishment of a right so sacred and precious ought not to need any judicial precedent. Our courts of justice should place it, at once, where it should fundamentally rest forever, on the deepest and most unerring instincts of human nature, and hold it to be a self-evident right of humanity, entitled to legal protection, by every consideration of feeling, decency, and Christian duty. The world does not contain a tribunal that would punish a son who should resist, even unto death, any attempt to mutilate his father's corpse, or tear it down. the grave for sale or dissection; but where would he find the legal right to resist, except in his peculiar and exclusive interest in the body?
The right to the repose of the grave necessarily implies the right to its exclusive possession. The doctrine of the legal right to open a grave in a cemetery, after a certain lapse of time, to receive another tenant, however it may be sanctioned by custom in the English church-yards, or by Continental usage at Père-la-Chaise and elsewhere, will hardly become acceptable to the American mind, still less the Italian practice of hastening the decomposition of the dead by corrosive elements. The right to the individuality of a grave, if it exist at all, evidently must continue, so long as the remains of the occupant can be identified—and the means of identifying can only be secured and preserved by separate burial. The due and decent preservation of human remains by separate burial is preeminently due to Christian civilization, which, bringing in the coffin and sarcophagus, superseded the heathen custom of burning, and "gave," in Lord Stowell's vivid phrase, "final extinction to the sepulchral bonfires."