328 THE POPULAR SCIENCE MONTHLY. 



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 winding-sheet, 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 ? May it not put 

 forth its larger powers and nobler attributes, as a court of enlightened 

 equity and reason ? 



The due protection of the dead engaged the earnest attention of 

 the great lawgivers of the polished nations of antiquity. The laws 

 of the Greeks carefully guarded the private rights of individuals in 

 their places of intei'ment ; and a similar spirit shines forth, in the 

 clear intelligence and high refinement of the Roman jurisprudence. 

 In the " Digest of the Civil Law," pi. 47, title 12, we find the benefi- 

 cent and salutary provision, which gave a civil remedy, by the " Se- 

 pulchri violatl actio,'''' to every one interested, for any wanton distur- 

 bance of a sepulchre, and where " Ulpian, prsetoi", ait ; Cujus dolo 

 malo sepulchrum violatum esse dicetur in eum in factum judicium 

 dabo ut ei ad quern pertineat, quanti ob earn rem aequum, videbatur 

 condamnetur. Si nemo erit ad quern pertineat, sive agere nolet ; 

 quicunque agere volet, ei centum aureorum, actionem dabo " a sep- 

 ulchre being comprehensively defined, by another clause, to be, any 

 place in which the body or bones of a man were deposited : " Sepul- 

 chrum est, uhi corpus ossave hominas, condita sunt.'''' ("Dig.," pi. 7, 



2.) 



Nor does the dictum of Coke, now under consideration, assert 

 for historically it would not be true that no individual right to pi'o- 

 tect the repose of the dead had ever existed, under the common law 

 of England. So far from that, we see in the provision above extracted 

 from the "Digest," that the individual right did exist, during the 

 greater part of the four hundred years when England, then called 

 Britain, formed part of the Roman Empire. In the six centuries of 

 Saxon rule which succeeded, as is forcibly observed by Chancellor 

 Kent, "the Roman civilization, laws, usages, arts, and manners, must 

 have left a deep impression, and have become intermixed and incor- 

 porated with Saxon laws and usages, and constituted the body ' of the 

 ancient English common law.'''''' (1 Kent's "Commentaries," p. 547.) 



The provision in question had been introduced into the Roman 

 jurisprudence, long before its systematic codification by Justinian. 

 It bears on its face the name of Ulpian, the great Roman jurist, who 



