332 THE POPULAR SCIENCE MONTHLY. 



move. Burial in the British Islands may possibly remain, for many 

 generations, subject exclusively to "ecclesiastical cognizance;" but 

 in the new, transjolanted England of the Western Continent the dead 

 will find protection, if at all, in the secular tribunals, succeeding, by 

 fair inheritance, to the primeval authority of the ancient, uncorrupted 

 common law. 



It is gratifying, however, to perceive that, even in the English 

 courts, traces are becoming discernible of a disposition to recognize 

 the ancient right of burial at common law. In the year 1820, a legal 

 claim was made by one Gilbert to bury, in a London churchyard, the 

 body of his wife in an iron coffin, but it was resisted by the church- 

 wardens. Buzzard and Boyer, on the ground that it would injuriously 

 prolong the period when the natural decay of the body and of a 

 wooden inclosure would make room in the grave for another occu- 

 pant. An application had been previously made in the same matter 

 to the King's Bench, for a mandamus (reported in 2 Barn, and Aid., 

 p. 806), on which occasion the distinguished counsel, Mr. Scarlett and 

 Mr. Chitty, claimed that the right of interment existed at common 

 law. In refusing the application, Chief-Justice Abbott said : " It may 

 be admitted, for the purpose of the present question, that the right 

 of sepulture is a common-law right^ but I am of opinion that the m,ode 

 of bicrial is a subject of ecclesiastical cognizance." Mr. Justice Hol- 

 royd, after duly rejjroducing Coke's caro data vermibus, declared that 

 " burial is as much a matter of ecclesiastical cognizance as the prayers 

 that are to be used, or the ceremonies that are to be performed at the 

 funeral." 



The matter, which had caused some public disturbance in London, 

 was thereupon carried into the Ecclesiastical Court, then adorned by 

 the learning and talents of Sir William Scott (since Lord Stowell). 

 In the very elaborate and eloquent opinion delivered by the accom- 

 plished judge on that occasion (reported in 3 Phillimore, p. 335), he 

 reviews the whole history of burial, from the remotest antiquity, pliilo- 

 sophically tracing the progress of interment through the heathen and 

 the Christian ages. DraAving a distinction between the coffined and 

 uncoffined funerals of early times, he admits that many authoritative 

 writers assert the right of a parishioner to be buried in his own parish 

 church-yard, but he denies that it necessarily includes the right to 

 bury a " trunk or chest " with the body. " The riglit^'' says he, 

 " strictly taken, is, to be returned to the parent earth for dissolution, 

 and to be carried there in a decent and inoffensive manner." The 

 honest sense and feeling of the judge were evidently struggling with 

 ecclesiastical law and usage, but he came to the conclusion that no 

 mode of burial could be permitted which would prolong the natural 

 decay of the body, or needlessly preserve its identity ; that the lapse 

 of a single generation is practically sufficient for mingling human re- 

 mains with the earth, and destroying their identity; that, the dead 



