Exposition of the English Law in respect to Perpetuities in Public Burial Grounds.

[From the decision in the case of Gilbert v. Buzzard and Boyer, 2nd Haggard’s Reports of Cases argued and determined in the Consistory Court of London, containing the Judgments of the Right Hon. Lord Stowell.]

In what way the mortal remains are to be conveyed to the grave, and there deposited, I do not find any positive rule of law, or of religion, that prescribes. The authority under which the received practices exist, is to be found in our manners, rather than in our laws: they have their origin in natural sentiments of public decency and private affection; they are ratified by common usage and consent; and being attached to a subject of the gravest and most impressive nature, remain unaltered by private caprice and fancy, amidst all the giddy revolutions that are perpetually varying the modes and fashions that belong to the lighter circumstances of human life. That bodies should be carried in a state of naked exposure to the grave, would be a real offence to the living, as well as an apparent indignity to the dead. Some involucra, or coverings, have been deemed necessary in all civilized and Christian countries; but chests or trunks containing the bodies, descending along with them into the grave, and remaining there till their own decay, cannot plead either the same necessity, or the same general use.

The rule of law which says, that a man has a right to be buried in his own church-yard, is to be found, most certainly, in many of our authoritative text writers; but it is not quite so easy to find the rule which gives him the right of burying a large chest or trunk in company with himself. That is no part of his original and absolute right, nor is it necessarily involved in it. That right, strictly taken, is to be returned to his parent earth for dissolution, and to be carried thither in a decent and inoffensive manner. When these purposes are answered, his rights are, perhaps, fully satisfied in the strict sense in which any claim, in the nature of an absolute right, can be deemed to extend.

It has been argued, that the ground once given to the body is appropriated to it for ever; it is literally in mortmain unalienably; it is not only, the domus ultima, but the domus æterna, of that tenant, who is never to be disturbed, be his condition what it may; the introduction of another body into that lodgment at any time, however distant, is an unwarrantable intrusion. If these positions be true, it certainly follows, that the question of comparative duration sinks into utter insignificance.

In support of them, it seems to be assumed, that the tenant himself is imperishable; for, surely, there can be no inextinguishable title, no perpetuity of possession, belonging to a subject which itself is perishable. But the fact is, that “man” and “for ever” are terms quite incompatible in any state of his existence, dead or living, in this world. The time must come when “ipsæ periere ruinæ,” when the posthumous remains must mingle with, and compose a part of, that soil in which they have been deposited. Precious embalmments, and costly monuments may preserve for a long time the remains of those who have filled the more commanding stations of human life; but the common lot of mankind furnishes no such means of conservation. With reference to them, the domus æterna is a mere flourish of rhetoric; the process of nature will speedily resolve them into an intimate mixture with their kindred dust; and their dust will help to furnish a place of repose for other occupants in succession. It is objected, that no precise time can be fixed at which the mortal remains, and the chest which contains them, shall undergo the complete process of dissolution, and it certainly cannot; being dependent upon circumstances that vary, upon difference of soils, and exposures of seasons and climates; but observation can ascertain them sufficiently for practical use. The experience of not many years is required to furnish a sufficient certainty for such a purpose.

Founded on such facts and considerations, the legal doctrine certainly is, and has remained, unaffected; that the common cemetery is not res unius ætatis, the property of one generation now departed, but is, likewise, the common property of the living, and of generations yet unborn, and is subject only to temporary appropriations. There exists in the whole a right of succession, which can be lawfully obstructed only in a portion of it, by public authority, that of the ecclesiastical magistrate, who gives occasionally an exclusive title, in such portion, to the succession of some family, or to an individual, who has a fair claim to be favoured by such a distinction; and this, not without a just consideration of its expedience, and a due attention to the objections of those who oppose such an alienation from the common property. Even a bricked grave, granted without such an authority, is an aggression upon the common freehold interests, and carries the pretensions of the dead to an extent that violates the rights of the living.

If this view of the matter be just, all contrivances that, whether intentionally or not, prolong the time of dissolution beyond the period at which the common local understanding and usage have fixed it, is an act of injustice, unless compensated in some way or other. In country parishes, where the population is small, and the cemetery is large, it is a matter less worthy of consideration; more ground can be spared, and less is wanted; but, in populous parishes, in large and crowded cities, the indulgence of an exclusive possession is unavoidably limited; for, unless limited, evils of most formidable magnitude take place. Churchyards cannot be made commensurate to the demands of a large and increasing population; the period of decay and dissolution does not arrive fast enough in the accustomed mode of depositing bodies in the earth, to evacuate the ground for the use of succeeding claimants: new cemeteries must be purchased at an enormous expense to the parish, and to be used at an increased expense to families, and at the inconvenience of their being compelled to resort to very incommodious distances for attending on the offices of interment.

In this very parish three additional burial-grounds are alleged to have been purchased, and to be now nearly filled. This is the progress of things in their ordinary course; and if to this is to be added the general introduction of a new mode of interment, which is to ensure to bodies a much longer possession, the evil will become intolerable, and a comparatively small portion of the dead will shoulder out the living and their posterity. The whole environs of this metropolis will be surrounded with a circumvallation of church-yards, perpetually increasing, by becoming themselves surcharged with bodies, if indeed land-owners can be found who will be willing to divert their ground from the beneficial uses of the living to the barren preservation of the dead, contrary to the humane maxim quoted by Tully from Plato’s Republic:—“Quæ terra fruges ferre, et, ut mater, cibos, suppeditare possit, eam ne quis nobis minuat, neve vivus neve mortuus.”