Page:The Green Bag (1889–1914), Volume 17.pdf/372

 LEGAL RIGHTS IN THE REMAINS OF THE DEAD cited by Dr. Tristram were discussed, With other cases, by Sir James Stephen in Queen v. Price, already referred to, in which case they were cited to show that cremation was a crime. He criticized the authority of those opinions on the ground that the courts said nothing whatever about cremation; that the question had not been raised; that the courts went on the assumption that a man wished Christian burial in the accus tomed form and did not consider the possi bility of a man's entertaining or acting upon any other view. Continuing, he said:1 "If it is a duty to give every corpse Christian burial the duty must be violated by burn ing it. I do not think, however, that the cases really mean to lay down any such rule. The question was not before the court in either case." The opinions are not to be taken too literally, for "the expression 'Christian burial' is used, which is obviously inapplicable to persons who are not Chris tians, Jews for instance, Mahommedans, or Hindus," * This opinion seems to dispose of the authority cited by Dr. Tristram for the ec clesiastical practice, and the practical rea soning of Lord Stowell is so secular in char acter that one would expect it to startle a spiritual court out of the doctrine that the existence of the right to "Christian burial" forbids cremation unless by the wishes of the deceased. Lord Stowell 's reasoning certainly illus trates the truth of Mr. Ruggles' character ization of the ecclesiastical authority in such matters as "legal" and "secular," and it is obvious that the English precedents on the subject are entitled to little weight in this coffin, on the ground that, although the right of sepulture may be a common law right, "the mode of burial is a subject of ecclesiastical cog nizance alone." This seems inconsistent with Dr. Tristram's statement of the common law. 112 Q. B. D. at p. 253. Wickes, 3 Phill. 264 at pp. 269, 272 and 300, in which he discusses the duty of the incumbent of a parish as to the burial of Dissenters.
 * Cf. Sir John Nicoll's opinion in Kemp v.

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country, where all secular authority is vested in the civil courts.1 To sum up this branch of the subject, in spite of such differences as have been pointed out, of reasoning and phraseology in different cases, the rules of precedence and of rights of relatives throughout this country are, in the absence of statute, sub stantially those herein stated; and in Eng land, although at present the doctrine of "Christian burial " and the rights of relatives are limited, as above stated, it seems prob able that in the near future, when the public becomes more accustomed to the idea of cremation and its advantages and the courts have more thoroughly digested the opinion of Sir James Stephen in Queen v. Price, the law will gradually develop along the lines of the American cases. That this is the natural development demanded by modern conditions and its accomplishment seems to be merely a question of time and of overcoming conservative ideas. The gradual progress in this direction is reflected in the English "Cremation Act, 1902, "2 a legislative recognition of the practice of cre mation, which provides that burial authori ties may construct crematories, and the Sec retary of State may regulate the cases and conditions under which cremation may take place.3 1 Cf. statement by Sir John Nicoll in Kemp v. Wickes, 3 Phill. 264 at p. 276. Stephen, J. in Reg. D. Price, 12 Q. B.D.247 at p. 249; Reports of Com missioners on the Ecclesiastical Courts of Eng land and Wales of 1832, pp. 19-22. 2 2 Edw. 7, Chap. 8. 3 See Section 7 of the act. In this connection the following provision of the act is interesting : § ii. " The incumbent of any ecclesiastical parish shall not, with respect to his parishioners or persons dying in his parish, be under any obli gation to perform a funeral service before, at, or after the cremation of their remains, within the ground of a burial authority, but, on his refusal so to do, any clerk in Holy Orders of the Estab lished Church, not being prohibited under eccle siastical censure, may, with the permission of the bishop and at the request of the executor of the deceased person, or of the burial authority, or other person having charge of the cremation, OJ