Page:Popular Science Monthly Volume 8.djvu/346

332. 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