322 THE POPULAR SCIENCE MONTHLY. 



THE OWXEKSHIP OF THE DEAD.' 



By SAMUEL B, KUGGLES, LL. D. 



IN resorting to England for light on this subject, we encounter a 

 body of law grown up under circumstances difi'ering widely from 

 our own. The jurisprudence of that country is peculiarly compound- 

 ed, 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 Itoman, 

 Saxon, and Norman conquests, it is diflicult to fix with precision the 

 period when tlie judicial authority began to be divided between the 

 state and the Church. Christianity had made some progress in Brit- 

 ain while yet remaining under the Roman power, but does not ap- 

 pear to have mingled itself materially with the governmental admin- 

 istration. The Saxon conqueroi'S, who succeeded the Roman in the 

 fifth centurj'-, 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 im- 

 portant and desirable element of spiritual dominion. It was the 

 sagacity, n.ot less than the piety, of that distinguished pontift", Avhich 

 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 in- 

 duced more frequently to pray for their repose. Occasional inter- 

 ments in places of worship, or their immediate vicinity, had indeed 

 been made by the early Christians, as far back as the reign of Con- 

 stantine ; 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 wor- 

 ship, and subjected by formal consecration to ecclesiastical authoi'ity. 



' Extract from a report on tlie " Law of Burial," made to the Supreme Court of the 

 State of New York in 1856, by Hon. Samuel B. Ruggles, referee, in respect to compensa- 

 tion to owners of vaults in cemeteries, and to relatives of individuals buried in graves 

 disturbed by legal proceedings. Reprinted in Providence, R. L, 1872. 46 pages 



