THE OWNERSHIP OF THE DEAD. 323 



The judicial histoiy of tlie Romish Church in England, from the 

 sixth century to the thirteentli, exhibits its earnest efforts and its steady 

 and all but uninterrupted progress, not only in strengthening its proper 

 spiritual power, but in obtaining the exclusive temporal, judicial cog- 

 nizance of all matters touching the ecclesiastical edifices and their 

 appendages, and especially their places of burial. During that pe- 

 riod, tlie office of sepulture, originally only a secular duty, came to be 

 regarded as a spiritual function so much so, that the secular courts, 

 in the cases as early as the 20th and 21st Edward I., cited in 2 Inst., 

 363, in determining whether or not a building Avas a church, inquired 

 only whether it had sacraments and seindtiire. 



It is generally stated that burial in church-yards was introduced 

 into England by Cuthbert, Archbishop of Canterbury, in the year 

 750. The form of their consecration is even yet preserved, in some 

 of its essential features, by the Established Church. The invocation, 

 as given by Burn, in his "Ecclesiastical Law," vol. i., p. 334, after de- 

 claring that the duty has been taught by God, " through his holy ser- 

 vants, in all ages, to assign places where the bodies of the saints may 

 rest in peace and be preserved from all indignities," asks the divine 

 acceptance " of the charitable work, in separating the portion of 

 ground to that good purpose." 



The sagacious policy of the Romish ecclesiastics, in attaching the 

 place of interment to the church, was duly strengthened by the strin- 

 gent provision of the canon law, which prohibited heretics from 

 Christian burial. To repose in any but consecrated earth soon came 

 to be ignominious; and thus the church-yard became a vital portion 

 of the material machinery for enforcing spiritual obedience and theo- 

 logical conformity. Nor was the power neglected. It governed 

 Europe for several hundred years, and it was but shortly before the 

 Protestant Reformation in England that one Tracy, being publioly 

 accused in convocation of having expressed heretical sentiments in 

 his will, and being found guilty, a commission was issued to dig 

 up his body, which was done accox'dingly. (1 Burn, " Eccl. Law," 

 p. 266.) 



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 oi'der in the ecclesiastical tribunals; but their juris- 

 dictions 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 cogni- 

 zance," became not only executive, but judicial. It was executive, 

 in taking the body into their actual, corporeal possession, and practi- 

 cally guarding its repose in their consecrated grounds ; and it was 

 judicial, as well in deciding all controversies involving the possession 

 or the use of holy places, or the pecuniary emoluments which they 

 yielded, as in a broader field, in adjudicating who should be allowed 



