Samuel B. Ruggles

“ 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 ”

“ 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 ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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 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. ”

“ 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 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. ”

“ 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 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 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 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. ”

“ 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 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. ”