New-York daily tribune., 1856-06-07
the case .AA state Of Nsxyora, mat no. Be y,e..d

tniy over the burid, but over the corpse it,e by
some cumpstent legal tribui a. win appear q. once 4
contc the consequences of is abandonment II
no one has any Legal interest in corpse, no one can
efsy determine the place Of its nterment eIclu-
| sivsly retain is custody. will have no legal
night TO retain the remains Of hs father husband
OF bic wife, one moment afer death. f4tber caopot
legally protect bis daughters remains from exposure or
insult, bosev.r indecent outrageous, nor demand
their reburial If dragged from the grave The dead
deprived Of the legal guardisrsbip however partial
which the Church 20 long had thrown around them,
and left unprotected by the civil courts Will become in
law nOthing-but public nusances and their custody
will belong only to the guardians Of the public health
to remove and destroy the offending matter, with al
| practicable economy and dispatch. The criminal
courts may punsh the body snatcher who invsdes the
grave. but will be poweriess TO restore its contents
The bonored remains Of Alexander Hamilton reposiDg
in Oldest churchy ard, wrapped in the very bosom
Of the CONN entity, built up TO greatness by bis con-
SUNNI ate genius, Will become nuAius an 1oats, and
| belong TO Tat community no longer. The sscred
relics Of Mount Vernon may be torn from their " man.
"sion Of rest" aud exhibited for hire IN our very
midst aud civil authority can remand them to the
tomb.
Applied TO the case now under examination, the doc
triie will deny daughter, whose hlai love had fol-
lowed her father TO the grave, and reared moi ueDt
10 bic memory, all right 20 ask that his remains up
rooted by the city authorities and cast into the street,
iban again be decenty inferred. In England, with
JUDICIAL function divided between the State and the
Church. the secular tribunals would protect the monu.
men the winding sheet .be grave clothes, even down
the Church would guard the tkull and bones. Which
Of these relics best deserves toe legal protection OF the
Supreme Court of law and equity of the State OF New
YoIk1 Does not every dictate OF common sense AMI
common dtcency demand a common protection for the
grave and all its contents and appendsges Il TIL
bupa ike this, under any legal necessity for measur-
ing it's judicial and remedial action by the narrow rule
and fettered movement Of the common law of England
crippled by ecclesastcal interference but may it not
put forth its larger powers and nober attributes,
court Of enlightened equity and reason
The due protection of the dead engaged the earnest
attention of the great wgvers of the poshed nations
of antiquity The laws Of the Greeks carefully guarded
the private rights of individuals in their places of n-
ternent; and similar spirit shines forth, in the clear
intelligence and high refinement Of the Roman luris
prudence. In the digest Of the Civil Law, p ~ tit.
i2 we find the benehcent and salutary provision,
which gave civil remedy, by the SepucAr, r'ota'
actio" to every interested for any wanton dis
turbance Of sepucher and where" CLPIAs, prss,0r,
" ait-CujDs dolo mao sepulchrum vioiatum esss
" dicetur in cum in fectum juoicium dabo ut e. od
quem pertineat, quaint OBJ cam rem @quum videoa-
" tur cOndemDetur. 81 memo crit ad qdem pertineat,
a" sive sgere nOet quicuDque agere violet, e centum
" aureoI un, actionem dabo;' sepucher being com
prehensivey defined by another clause, to be, any
place in which the body or bones of q man were de-
posited-" Sepulch,um est u6i corpus ossare homin'',
condita sunt." Dig pl. 7, sec. 2.
Nor does the dictum Of Coke, now under consldera-
ton assertion historically il would not be true-that
Individual right to protect the rePose OF the dead
had ever existed under the common law OF Engiand
So far fiom that, in the provision above ex-
tracted 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, is forciby observed by Chancellor
Kent the Roman civilization laws, ussges, arts and
manners must have left deep Impression, aud have
become intermxed and incorporated with Saxon laws
and usages, and constituted the BODY o. me dHc'em
common lac. Kent Com 57.
The provision in question had been introduced nto
the Roman jurisprudence long before its systematic
codification by Justinan. 1t bears on its face the
nome of Ulpan the great Roman jurst who not only
lived as early the second century OF the Chnstlan
era, but actually assisted las Stden states III his APP
pendix TO Fletal in the Judicial admnistr alton of
Britain. He the contemporary and doubtless the
personal friend of the celebrated pr@toran pretect
PapinaD, himself the most distinguished lawyer OF hs
age ard chief administrator III the year 2lo OF the
the Roman Government at York. Selden gowingly
depicts the judicial illumination OF that early British
age Us fourishing alike under the d" Jus Cosdreum.
the imperial law, and its able administration by taose
two most accomplished and illustrious Romans, vim
"peritissimi. iIustrissnique c. Romanis. loe'de"
App. TO F2etd, 47e.
Nor is there any reason to believe that the roman
lied British when released, in the fifth century, from
tbeis political allegiance to the Empire, abandoned the
civilization or abIogated the laws or usages whien
they had long enjoyed s less that tney ,hn;r
sepucbers and graves the protection which those aw
had 80 fully secured. There is not shadow OF MS
torical eyder that under the Saxon invaders VINO
spcceeded the Roman govenors any less respect was
81 own for the buried dead. On the contrary u Is as
tncy shown by the Scandinavian historians tha. tueso
PARTIALLY civilized Saxons had been specially taught 10
10 reverence their places Of burial by their great
leader Odin the father of scandinavian letter. Gus,
tpguished for his eloquence and persuasive power
and especiay CONNIE morated as being the frst 10 in-
roduce the custom of erecting grave-stones IN hoho
Of the buried dead.
Tn the dim and fickerpg light, by which we trace
the laws of these long buried ages the iact Is sgni
cant and instructive, that o 'he revtr ho HsU NJ
the seven little Saxon Kingdoms constituting the hep-
tarcby nearly ali deduced their deectt, more OF ices
remotely, from Odin himself. Hengist, who Ieu the
saxon forces into Britain and became hrst hmg VI
Kent claimed with peculiar pnde to be MS great
orspdsou-rendering It quite improbable that during
The rule of himself his race or that OF his hindrod
soyerecps, which lasted from three to four hundred
years, Saxonized Britain learned 10 aoaiaon S
ancestors or hold them in law "SuHtus IN Roh'.
Nor do we find in the occasional nroads OF the
Danes temporarily disturbing the Saxon GoveInmeMMs nus
OF England, any evidence ihst tney g. az
slightest degree the reverental usages IN the ms''I
oftbe dead coming down from Odin. Inc cary iaSs
of that rude people, carefully collected 10 tue ,weu.h
century by the learned antquary SaSo Giauhiacus;
snesk with adherence Of those who nsu the ashes o
he dead not only denouncing death upon the alehl
corrpptor cipers" but condemnng the booy OF the
ofender 10 lie forever un buried and III honored Law
of Frotho, Saxo Grammaticus LIB. ..
The law of the Franks, near nelghbors Of Tie sax ak
ops cited by MontesQuieu Spirit of Ls~s Lap. 80, ca.
o. not only banished from society nun Wno aug uP
tta body for plumber but prohibited any one ho@ re-
heyrg his wants until the ridt'res o. me dseeas.a CON
ecoer zng the peculiar and personal interest OF The re-
l0tiyes in the remains.
We sre indeed 30 surrounded by proof OF the uui,
.,sal reve,ence of the Gothic nations for their buried
ancestors that We are justified in assuming It to be
historically certain that the barbsrous idea OF leaving
the DE ad without legsl protection never orignated
with them; that the enlightened provision of the Ro-
man jurisprudence which protected in Britain the n-
dyidual right to their undisturbed repose not only re-
mail ed unaf, cttd by the Saxon INVASION but was ni-
nsnted by Al AT eyeIt still more deeply in the ancient
common law OF England; and that it must have been
,,;,o,ou.y .uCorc. As well by the earliest secular