THE OWNERSHIP OF THE DEAD. 327 



hundred years, copied and recopied, and repeated again and again by 

 judges and legal writers, until it has imparted its tincture to the laws 

 of the dead, throughout every portion of the earth which listens to the 

 English tongue. 



But even the dictum itself, if closely examined, will not be found 

 to assert that no individual can have any legal interest in a corpse. 

 It does not at all assert that the corpse, but only that the " hurialV is 

 " nullius in bonis ; " and this assertion was legally true in England 

 where it was made, for the peculiar reason above stated, that the tem- 

 poral office of burial had been brought within the exclusive, legal 

 cognizance of the Church, who could and would enforce all necessary 

 rules for the proper sepulture and custody of the body, thus rendering 

 any individual action in that respect unnecessary. The power thus 

 exercised by the ecclesiastical tribunals was not spiritual in its nature, 

 but merely temporal and juridical. It was a legal secular authority, 

 which they had gradually abstracted from the ancient civil courts, to 

 which it had originally belonged; and that authority, from the very 

 necessity of the case, in the State of New York, must now be vested 

 in its secular courts of justice. 



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 abandon- 

 ment. If no one has any legal interest in a corpse, no one can legally 

 determine the place of its interment, nor exclusively retain its cus- 

 tody. 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 exposvire or insult, 

 however indecent or outrageous, nor demand their reburial, if dragged 

 from the grave. The dead deprived of the legal guardianship, how- 

 ever 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 dispatch. The criminal courts may 

 punish the body-snatcher who invades the grave, but will be j^ower- 

 less to restore its contents. The honored remains of Alexander Ham- 

 ilton, reposing in our oldest church-yard, wrapped in the very bosom 

 of the community, built up to greatness by his consummate genius, 

 will become " nullius in bonis,'''' and belong to that community no 

 longer. The sacred relics of Mount Vernon may be torn from their 

 " mansion of rest," and exhibited for hire in our very midst, and no 

 civil authoritv can remand them to the tomb. 



Applied to the case now under examination, the doctrine will 

 deny to a daughter, whose filial love had followed her father to the 

 grave, and reared a monument to his memory, all right to ask that 

 his remains, uprooted by the city authorities and cast into the street,. 



