New-York daily tribune., 1856-06-07
EXTRACT FROM THE REPORT.


The remaining question upon which the order OF the
Court requires the undersigned to report ms opn'oh'
E the following:
Is the claimant, Maria Smith, entitled to payment
ut of the said fund for the expenses of renerrng the
emains of her father Moses Sherwood, whose grave
was taken away in widening the street, to damages
or disturbing the grave
The proper disposal Of this question by this Court
will be important, not much in the pecunisry
,nount involved in the present instance, az nfur.
pshing a rule for other where cemeteries may
he disturbed either by their proTrietors or BY public
authority II broadly presents the general question,
which does not appear TO be distinctly settled in tha
State: Who is legally and primarily entitled 10 The
custody of dead body and, az necessary result
Who is legally bound to bury u ana; further
BODY be elected from its place OF bural no. theo,
leoaly and primarily entitled to its custody, aud whs
il bound to rebury 1t :!
TIE widening Of Beekman street by the Corporation
Of New York, Ieu owed every building and other In
n, dimeut which stood IN its way. Among themwu
he grave tho " domus uh,ma" of Moses Sherwood,
over which marble tombstone Inscribed with
name had been standing mote than fifty years de
skull and bones, and portions OF his grave clothing.
we,e found living in bis grave. fad any one any legal
interest in that gave, any night to preserve the TO
lose Of ts occupaat or any legal interest 10 the mon1
nt or right to preserve its reporel DO these rights
conn. within the legal denomination Of private prop
public use without just cOmpepsationf
Property has been concisely defined to be, "te
"hghest right man can have 10 thing. bak'
s,oue spreads out the definition into tho "so'e aud ex
"cnsiye dominion which one man clans and exercises
ov.r the external things Of the world in total eKelu
,on of tb. right Of any other individual IN the ua
"verse." . Black. Comm. ?.
The things which may thus bs exclusively sppropr-
sted. ard thereby made "private property, are not
COZ fined to tangible visible objects, toi light and or
sre property" and belong exclusively to the occu'
pant so long Ms be- has possession. The right 70 toe
mere repose of grave although intnngi9e OF nysr ~
BE MAY none the ess be- property. The dividing line
betu cen "p,operty" 40 thing objectivey apPro-
niated by a peisos anu "personsi right as sdD'
tectlv,ly belonging 10 person, Is not always ehtrI
distinct. The proprietary right to grsve"tone' ana
m.asrraby part Ike of both. In ccrtaa sense even
purely personal right may be ssidto be sPProprirteo
Nor il the distinction very essential; for thero DC
right in a grave its contents or appendages wh'cs
the law will recognize, matters little whether the
right Appropriated by or belongs toits Po.sessor Ia
here, then, a tight Of which court OF Justice will
take 1OgIiZanceI go .
I'm resorting 10 England for light ou ths subject W
ncounter a body of law grown up unter circuu-
tances differing widely tr )m our own fhe lu ispru'
.nc- of that country Is peculiarly Compounded en-
racing largely the ecclesiastical slemeDt from which
IN in exempt; and it has given birth to anomalies
which we sre hardly required to adopt. This stink
ngly manifested III the matter of the dead, IN shlca
he partition Of uridical authority betweenthe Church
materially narrowed the powers and the action Of
cour,s of common law. II is believed that an atsea
tive examination of the history OF this division OF ~
cicial power will show that il Is wholly pecuiMN
ppland and that the decisions and dicfd OF taer
courts and legal writers this subject, ought nos
exert any controlling influence over our legal n
bupas.
In surveying the various changes in the orgsuss
ton and powers of the British courts OF Justice pN
duced excessively by the Rouan, Saxon and Nomn
conouests it Is difficult to fix With precision the penn
when the judicial authority began to be divldeaE
tween the State and the Church. Chrsuanty nh
made some progress in Britain while yet renalnyas
der the Roman power, but does not appear " nAw
mingled itself materially with the governmental %,
minirtlstion. The Saxon cOnquerors, who suceeeaos
the Roman in the fifth century, brought IN rsgsa.s.
for about $50 year; bat IT was extrpate.i aooa' @
clo.e of the sixth century by the vgor of st. Augusu
under the pontiicate Of Gregory the Great. sqlM
apparent that the clear-sght ncumbens fthe hy
See, by that time, had perceived In the buns Oh ~
dead a very import ant and desirable element oi spun
ual dominion. 1t was the sagacty not ie;s rsa
piety of that distinguished pontff which led hia
Introduce the custom of burial ia churches, TO the e
as be ceclared that the relatives and friends o. W
q. a5 might be induced more frequently TO pryM
tLeir rrpoee. Occasional interments in places w.
shin or their nmee late vicinity had indeed been msa
by the carry Christ Ians, far back az the rei9a
Con.t antine but il not until after the pontihcs
of Grs cory, and the rapid increase 10y his successor
the temporal power Of the Church. that budsLgran@
were gen. rally attached TO places OF worship aud eS
jscted by formal conservation 10 ecclesisstie@ ~
tkority.
The juridical history OF the Romish Church 10 ~
gland, from the sixth century to the thlrteee.n,
6ibits It's earnest Efforts and steady and al oa rD
interrupted progress not only in rtreDythen%s
proper spiritual power but in obtaining tno s;,,
tmroral Judicial cognz zance Of oil matters sn3
the escssssticsl edIbces and thef sPl .t.s nerioA
.suecialy their places of burial. during '' auiv
tbt oa;ce of .eunltar. originally only secular usy
came 10 be regarded spiritual iuncu 10 a. tbe
that the secular courts, IN the cssr s' ,ea I, de
2Oh and 21rt Edward |. cited IN Ins'' ayarch IN.
MINING wbetLe or not a building wa. q cnoI.,
ouir, Il only whether il had sacrancHh ana 'eP,a "a
II IL gen,ra.ly tsted that Durai III ch1rcl d
lniro-lneed into England by Cubbeft, A,cIps c,a-e-
Cai IL bury in TIE year 7So Inc torm " .H ass,iJ
c,.,,op +. even vet pre- served IN some oi fs .c,
tntu.e. by the E-,abl-h, Church. lbe in'V,ia
a, given by Burnr IN lis Ecclesis-t!cai Law, ~, 81
"a ait.r {. oarI that the duty hss been .at
God "tbrough h!s holy ser'ant-, in ~ hs.-, "a, u
"rlsees W ere ,be bodies OF the SAINTS ma! ,.ks
"r M, AID lie tr, served from all iadigafTy ~ u
,tr Divine acceptance 4" Of ;Le charitable wi wi oaf.
"seraratrg TIE poIti, OF ground 10 ''''
"pose." , ,esia. .tics 70
attach, the plac of nteImept u The saa of the
dnI, ar, pethen.d by the stringent pro'i c.r.,iss
canon s a. which prohibited herctics iryu' ,os
burial To repose in any but oouseera'eu ra'euesvsrib eib
came to be ignominious snH thus t.e t.ssry r es
cane a vsl portion Of the material insen "o.s,,uay
So,.iuC sniritual obedience ana theological cyP Pany
Nor ras the power neglected IT goyser,ssSS ssSSoriyt
for several hundred years; and II was d pu' tssf
Trscy. being publicly accused, in convocstion' .dr
pc eipr,~sd heretic4l sentiments n has .a, vr
ns fosnS guilty, commission was issucd 70 aS
boty. which was done accordingly. ba'"
Turng the early portion Of .he Anglc-S'xop.
m. ROVER of the clergy over the dead wa, ,SSRb
chett. by uniting TIE lay with the clericI c ,'o.
ecc.esiasiiosl tribunals: but their junsdnssod sod "
separated coon Aster the Norman conqnes" fA@
eject uRoa the eesd 10 plainly direrni''''