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 protected 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 transition 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 tribunal.
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 authority over the dead; but that by no means proves that they were left unprotected. On the contrary, it was a concentration in the ecclesiastical body of every right which any individual had previously possessed, to secure their repose. The individual right was not extinguished, it was only absorbed by the Church, and held in suspense, until some political revolution or religious reformation should overthrow the ecclesiastical power which had thus secured its possession.
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 momentous 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-fearing Englishmen who founded these American States had seen enough 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
