The judicial history of the Romish Church in England, from the sixth century to the thirteenth, exhibits its earnest efforts and its steady and all but uninterrupted progress, not only in strengthening its proper spiritual power, but in obtaining the exclusive temporal, judicial cognizance of all matters touching the ecclesiastical edifices and their appendages, and especially their places of burial. During that period, the office of sepulture, originally only a secular duty, came to be regarded as a spiritual function—so much so, that the secular courts, in the cases as early as the 20th and 21st Edward I., cited in 2 Inst., 363, in determining whether or not a building was a church, inquired only whether it had sacraments and sepulture.
It is generally stated that burial in church-yards was introduced into England by Cuthbert, Archbishop of Canterbury, in the year 750. The form of their consecration is even yet preserved, in some of its essential features, by the Established Church. The invocation, as given by Burn, in his "Ecclesiastical Law," vol. i., p. 334, after declaring that the duty has been taught by God, "through his holy servants, in all ages, to assign places where the bodies of the saints may rest in peace and be preserved from all indignities," asks the divine acceptance "of the charitable work, in separating the portion of ground to that good purpose."
The sagacious policy of the Romish ecclesiastics, in attaching the place of interment to the church, was duly strengthened by the stringent provision of the canon law, which prohibited heretics from Christian burial. To repose in any but consecrated earth soon came to be ignominious; and thus the church-yard became a vital portion of the material machinery for enforcing spiritual obedience and theological conformity. Nor was the power neglected. It governed Europe for several hundred years, and it was but shortly before the Protestant Reformation in England that one Tracy, being publicly accused in convocation of having expressed heretical sentiments in his will, and being found guilty, a commission was issued to dig up his body, which was done accordingly.—(1 Burn, "Eccl. Law," p. 266.)
During the early portion of the Anglo-Saxon period, the power of the clergy over the dead was kept in check by uniting the lay with the clerical order in the ecclesiastical tribunals; but their jurisdictions were separated soon after the Norman conquest, and the effect upon the dead is plainly discernible. The exclusive power of the ecclesiastics, denominated in legal phrase "ecclesiastical cognizance," became not only executive, but judicial. It was executive, in taking the body into their actual, corporeal possession, and practically guarding its repose in their consecrated grounds; and it was judicial, as well in deciding all controversies involving the possession or the use of holy places, or the pecuniary emoluments which they yielded, as in a broader field, in adjudicating who should be allowed
