bility of its historical form. Think not that, though my hour has been expended in buttressing the external evidences of our faith, I am unconscious of the graver moment and profounder interest appertaining to those traits of moral, spiritual fitness, beauty, and grandeur, in which the Gospel is its own witness. But these depend for their fulness of manifestation on the integrity and authenticity of their record. They are blurred and marred by whatever casts discredit on the identity of the Christ of the Gospels with the Jesus who actually lived in Judæa. Thus, in our labor of love upon the walls and about the outer courts of the temple of our faith, we are defending its holy of holies, guarding its mercy-seat, warding off sacrilegious hands from the ark of its covenant.

But let it not be forgotten, on the other hand, that the intrinsic divineness of the Christian doctrines and ethics of itself attaches added weight of probability to the alleged history of Christianity, so that either branch of its evidences, so far from superseding, subsidizes the other. The one makes its appeal to the intellect, the other to the moral nature; jointly enabling us to believe in Christ, as we would love our God, with all the mind and with all the heart.

That faith might thus rest on the twin pillars of enlightened reason and fervent devotion, our fathers consecrated this, their first shrine of learning, to Christ and the Church. May those who have entered upon their heritage advance with equal pace in that culture, in which through the science of nature and of man they may go up to Christ and God, and in that through which piety shall clasp her zone of perfectness around their attainments, and add to the long-enduring yet fading green of their academic laurels her amaranthine

crown!

1856.]

The Law of Burial.

335

ART. II. THE LAW OF BURIAL AND THE SENTIMENT OF DEATH.*

ONE of the oldest church edifices in New York, yielding to the rapid encroachments of trade upon what, fifty years ago, formed the arena of eligible dwellings, has recently been sold, and at the same time several feet of the cemetery attached thereto were appropriated by the city to widen one of the most frequented thoroughfares. Two legal questions arose from these incidents the trustees of the property claimed a specific indemnification for the public occupancy of their land, and a descendant of one of the individuals buried within these precincts claimed that the church should provide another and satisfactory place of sepulture, and assume the expense of the reinterment. This latter demand involves the consideration of the rights inherent in, and related to, the dead and their resting-place, a subject, in its ultimate and indirect consequences, of large and peculiar interest, and one which, in the absence of precedents, requires a distinct code. The court appointed Samuel B. Ruggles to examine the laws bearing on the case, and report a legal opinion, and the reasons thereof, as to the rights of the church, the city, and the kindred of the deceased respectively. The result has been, not only a satisfactory statement of conflicting claims on a basis of sound judgment and equity, but a valuable treatise on the law of sepulture. Not satisfied with bringing his researches and arguments to bear on the special case thus submitted to him, Mr. Ruggles has taken a comprehensive, historical, and detailed view of the general subject; and demonstrated the defects of the present laws, as well as the social and religious importance of adequate legislation adapted to the exigencies continually arising, and based on the spirit of our institutions, which obviously require provisions in this regard anticipated in older countries by ecclesiastical law and religious authority. The scope of the question, in the present instance, is thus briefly stated:

* An Examination of the Law of Burial, in a Report to the Supreme Court of New York. By SAMUEL B. RUGGLES, Referee. New York: D. Fanshaw.

1856.

"The proper disposal of this question by this court will be important, not so much in the pecuniary amount involved in the present instance, as in furnishing a rule for other cases where cemeteries may be disturbed, either by their proprietors or by public authority. It broadly presents the general question, which does not appear to be distinctly settled in this State : Who is legally and primarily entitled to the custody of a dead body? and as a necessary result, who is legally bound to bury it? and further, if a body be ejected from its place of burial, who then is legally and primarily entitled to its custody, and who is bound to re-bury it?

"The widening of Beekman Street by the Corporation of New York removed every building and other impediment which stood in its way. Among them was the grave, the 'domus ultima' of Moses Sherwood, over which a marble tombstone, inscribed with his name, had been standing more than fifty years. His skull and bones, and portions of his grave-clothing, were found lying in his grave. Had any one any legal interest in that grave, or any right to preserve the repose of its occupant? or any legal interest in the monument, or right to preserve its repose? Do these rights come within the legal denomination of private property,' which the Constitution forbids to be taken for public use without just compensation?

6

6

"Property has been concisely defined to be, the highest right a man can have to a thing.' Blackstone spreads out the definition into the sole and exclusive dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.' 2 Black. Comm. 2.

"The things which may thus be exclusively appropriated, and thereby made private property,' are not confined to tangible or visible objects, for light and air are 'property,' and belong exclusively to the occupant so long as he has possession. The right to the mere repose of a grave, although intangible or invisible, may none the less be property. The dividing line between property' as a thing objectively appropriated by a person, and a personal right as subjectively belonging to a person, is not always entirely distinct. The proprietary right to a gravestone, and the personal right to its undisturbed repose, may measurably partake of both. In a certain sense, even a purely personal right may be said to be appropriated. Nor is the distinction very essential; for if there be a right in a grave or its contents, or appendages, which the law will recognize, it matters little whether the right is appropriated by or belongs to its possessor. Is there, then, a right of which a court of justice will take cognizance ? ”

pp. 33, 34.

1856.]

Necessity of Legislation.

337

He subsequently illustrates the requisiteness of the protection insisted on:

"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 re-burial 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 despatch. The criminal courts may punish the body-snatcher who invades the grave, but will be powerless to restore its contents.

66

Applied to the case now under examination, the doctrine will deny a daughter, whose filial love had followed her father to the grave, and reared a monumeut 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 windingsheet, 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? But may it not put forth its larger powers and nobler attributes as a court of enlightened equity and reason? pp. 43, 44.

We have not space to follow Mr. Ruggles through the very able reasoning, and the eloquent applications of the facts of history and jurisprudence, to the elucidation of these questions. It is seldom that a legal report con

tains so much to excite and enlist the better sympathies of humanity. It is, in fact, a learned and finished discourse on the Law of Burial, as a great social interest and sacred private duty, with examples drawn from antiquity and hallowed by the universal instinct of mankind. The inference arrived at is condensed in the following five points, which should be the basis of that legislative enactment which we trust will reward this effective plea.

"1. That neither a corpse, nor its burial, is legally subject, in any way, to ecclesiastical cognizance, nor to sacerdotal power of any kind.

"2. That the right to bury a corpse, and to preserve its remains, is a legal right, which the courts of law will recognize and protect.

"3. That such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin.

66

"4. That the right to protect the remains includes the right to preserve them by separate burial, to select the place of sepulture, and to change it at pleasure.

of re

"5. That, if the place of burial be taken for public use, the next of kin may claim to be indemnified for the expense moving and suitably re-interring the remains." pp. 58, 59.

Meantime we cannot better promote the object in view than by improving the occasion to consider the importance, in this age and country, of not only protecting by law, but encouraging through art and by the most emphatic recognition, memorials of the departed, the feeling of our common nature which environs Death with sacredness,-the sentiment of retrospection and reverence which embalms for ever the examples of the benefactors of our race, and endears the loved and lost of our affections.

It is rare for American legislation, or discussions incident thereto, to go beyond economical and material interests; and when, as in the instance before us, it is proposed to vindicate a sentiment by law, to attest a right founded entirely upon the better instincts, we deem the circumstance memorable and suggestive. The only constant minister to the sense of the beautiful among us is Nature, the only universal appeal to reverence is Death; historical associations are too