330 THE POPULAR SCIENCE MONTHLY. 



The law of the Franks, near neighbors of the Saxons, cited by 

 Montesquieu (" Spirit of Laws," lib. 30, chap. 19), not only banished 

 from society him who dug up a dead body for plunder, but prohibited 

 any one from relieving his wants, until the relatives of the deceased 

 consented to his readmission thus legally and distinctly recognizing 

 the peculiar and personal interest of the relatives in the remains. 



We are, indeed, so surrounded by proof of the universal reverence 

 of the Gothic nations for their buried ancestors that we are justified 

 in assuming it to be historically certain that the barbarous idea of 

 leaving the dead without legal protection never originated with 

 them; that the enlightened provision of the Roman jurisprudence, 

 which jDrotected in Britain the individual right to their undisturbed 

 repose, not only remained unaffected by the Saxon invasion, but was 

 implanted by that event still more deeply in the ancient common law 

 of England ; and that it must have been vigorously enforced, as well 

 by the earliest secular courts of the Anglo-Saxons, as in that transi- 

 tion period of their judicial history, when the sheriff" and the bishop, 

 sitting side by side on the bench, united the lay and the ecclesiastical 

 authority in a single tribimal. 



Nor was the right to protect the dead eradicated by the Norman 

 conquest. It is true that the swarm of Romish ecclesiastics which 

 poured into England with the Conqueror exerted themselves actively 

 and indefatigably to monopolize for the Church the temporal author- 

 ity over the dead ; but that by no means proves that they were left 

 unprotected. On the contrary, it was a concentration in the ecclesi- 

 astical body of every right which any individual had previously pos- 

 sessed, to secure their yepose. The individual right was not extin- 

 guished, it was only absorbed by the Church, and held in suspense, 

 until some political revolution or religious reformation shoi;ld over- 

 throw the ecclesiastical power which had thus secured its jDOssession. 



The ecclesiastical element was not eradicated from the framework 

 of the English Government, either by the Reformation or the act of 

 Parliament establishing the Protestant succession, but in the portion 

 of the world which we inhabit the work has been more thoroughly 

 accomplished. The English emigration to America the most mo- 

 mentous event in political history commenced in the very age when 

 Chief-Justice Coke was proclaiming, as a legal dogma, the exclusive 

 authority of the Church over the dead. The liberty-loving. God-fear- 

 ing Englishmen who founded these American States had seen enoug;h 

 and felt enough of " ecclesiastical cognizance," and they crossed a 

 broad and stormy ocean to a new and untrodden continent, to escape 

 from it forever. 



It may well be that some of the legislative enactments of these 

 weather-beaten men, in the early morning of their political life, while 

 yet unused to the meridian light of religious freedom, are disfigured 

 by the same intolerance they had left behind them. They may have 



