having no legal right to crowd the living, each buried generation must give way to its successor; and that, therefore, an iron coffin, which would unduly and unlawfully prolong the period for identifying the remains, was ecclesiastically inadmissible, unless an extra fee were paid to the Church.
The court will perceive, by the proofs in the case now under examination, that the remains of the exhumed body are identified beyond doubt or question. The skeleton of the "posthumous man" is now legally "standing in court," distinctly individualized; with his daughter, next and nearest of kin, at his side, to ask that the tribunal whose order for widening the street ejected him from the grave will also direct his decent interment.
It was the pride of Diogenes, and his disciples of the ancient school of cynics, to regard burial with contempt, and to hold it utterly unimportant whether their bodies should be burned by fire or devoured by beasts, birds, or worms; and a French philosopher of modern days, in a somewhat kindred spirit, descants upon the "glorious nothingness" of the grave, and that "nameless thing"—a dead body. The secular jurisprudence of France holds it in higher and better regard. In the interesting case reported in "Merlin's Répertoire," title "Sepulture," where a large tract of land near Marseilles had necessarily been taken for the burial of several thousand bodies, after the great plague of 1720, it was adjudicated, by the secular court, that the land should not be profaned by culture even of its surface, until the buried dead had mouldered into dust. The eloquent plaidoyer of the avocat-général upon that occasion dwells with emphasis on the veneration which all nations, in all ages, have shown for the grave—adding, however, with some little tinge of national irreverence, "C'est une vénération toujours revocable! et toujours subordonnée au bien public."
In portions of Europe, during the semi-barbarous state of society in the middle ages, the law permitted a creditor to seize the dead body of his debtor; and, in ancient Egypt, a son could borrow money by hypothecating his father's corpse; but no evidence appears to exist in modern jurisprudence of a legal right to convert a dead body to any purpose of pecuniary profit.
It will be seen that much of the apparent difficulty of this subject arises from a false and needless assumption in holding that nothing is property that has not a pecuniary value. The real question is not of the disposable, marketable value of a corpse, or its remains, as an article of traffic, but it is of the sacred and inherent right to its custody, in order decently to bury it and secure its undisturbed repose. The insolent dogma of the English ecclesiastical law, that a child has no such claim, no such exclusive power, no peculiar interest in the dead body of its parent, is so utterly inconsistent with every enlightened perception of personal right, so inexpressibly repulsive to every proper
