This suit is brought by John Gilbert, parishioner of St. Andrew, Holborn, against John Busward and William Boyer, churchwardens, for the offence of obstructing the interment of his wife, Mary Gilbert. The criminating articles state in substance, that she was a parishioner, that she died 2d March, 1819, the body was deposited in an iron coffin, and proper notice given of the intended interment on the 9th; but that the churchwardens prevented by force the burial taking place, and in consequence thereof the body was deposited in the bone-house; that such iron coffin takes up less space than a wooden coffin, and is so constructed as to prevent the corpse from being taken out. That again on the 14th April, in the present year, a written notice was given to the rector, churchwardens, and sexton, of an intended funeral on the 18th, and a written answer returned by the churchwardens, that they would not permit it; that the demand for interment was made on the day mentioned, but the churchwardens refused to permit the interment, unless the body was taken out of the iron coffin, and forbad any grave to be prepared, The defensive allegation states in substance that the account given by Gilbert misrepresents the transaction; that nothing was said by Gilbert, or the undertaker, about an iron coffin in the first inquiries, though then informed that the parish would not receive one; but Gilbert said, it was to be of wood. He paid the usual fees, and then declared it to be of iron, refusing to take back the fees; that a select Vestry being assembled, and informed of it, passed a resolution not to admit the iron coffin, and a copy of such resolution was served upon the undertaker, who threatened the officer who brought it. That on March 9, a forcible entry was made into the burial ground and church-yard, and a disturbance created, but the body was returned to the bone-house, that the parish is large and populous, 30,000 parishioners, and increasing, annual burials above 800, and increas ing, three burial grounds, besides the church-yard, all nearly filled with corpses; that they would all soon be rendered useless by the introduction of iron coffins; that it is not possible to get a new burial ground, but at a great expence, and also at a great distance, and that their proceedings had been all guided and authorised by the Select Vestry, and by the parish at large. It appears that the suit was begun under great mutual irritation, which is now properly subsided; and the parties have agreed to take the opinion of the court on the dry question of right, without introducing with that question any imputation of the conduct on either side, or engrafting on it any demand of penalties to be inflicted, or of costs to be decreed. In this act of amnesty the court entirely concurs, and, therefore, forbears to repeat any of the wanderings into which this case has strayed since the transaction which gave it birth. Before entering upon the immediate question, it may not be totally useless or foreign to remark, briefly, that the most ancient modes of disposing of the remains of the dead recorded by history, are by burial or burning, of which the former appears the more ancient. Many proofs of this occur in the sacred history of the patriarchal ages, in which places of sepulture appear to have been objects of anxious acquirement, and the use of them is distinctly and repeatedly recorded. The example of the Divine Founder of our Religion, in the immediate disposal of his own person, and those of his followers, has confirmed the indulgence of that natural feeling which appears to prevail against the instant and entire dispersion of the body by fire, and has very generally established sepulture in the customary practice of Christian nations. Sir Thomas Brown, in his Treatise on Urn Burial, thus expresses himself, (it is his quaint but energetic manner:)-"Men have been fantastical in the singular contrivances of their corporal dissolution; but the soberest nations have rested in two ways, of d e d f d simple inhumation and burning. That interment is of the elder date, the examples of Abraham and the patriarchs are sufficient to illustrate. But Christians abhorred the way of obsequies by burning, and though they stuck not to give their bodies to be burnt in their lives, detested that made after death; affecting rather a depositure than absumption, and properly submitting unto the sentence of God to return not unto ashes but unto dust again." But burning was not fully disused till Christianity was fully established, which gave the final extinction to the sepulchral bonfres. The mode of depositing in the earth e bas, however, itself varied in the practice of nations. "Mihi quidem," says Cicero, antiquissimum sepulturæ genus id videtur fuisse quo apud Xenophontem Cyrus utilar.” That great man is made by that author to say, in his celebrated dying speech, "that he desired to be buried neither in gold nor in silver, nor in any thing the, but to be immediately returned to the earth. What, says he, can be more blessed than to mix at once with that which produces and nourishes every thing excellent and beneficial to mankind?" There certainly, however, occurs very ancient mention (indeed the passage itself rather insiBates it indirectly) of sepulchral chests, or what we call coffins, in which the bodies being enclosed, were deposited, so as not to come into immediate contact with the earth. It is recorded specially of the patriarch Joseph, that when dead he was put into a coffin and embalmed; both of them perhaps marks of distinction to a person who had acquired other great and merited bonours in that country. It is thought to be strongly intimated by several passages in the sacred history, both old and new, that the use of coffins, in our sense of that word, was made by the Jews. It is an opinion, that they were not in the use of the two polished nations of antiquity. It is some proof that they were not, that there is perhaps hardly in either of them a word exactly synonymous to the word coffin, the words in the Grecian language usnally addaced, referring rather to the feretrum or bier on which the body was conveyed, rather than to a chest in which it was enclosed and deposited; and the Roman terms are either of the like signification, or are mere general words, chests or repositories for any purposes (Arca and Coculus, de.) without any funereal meaning, and without any final destinations of their de position in the earth. The practice of the sepulture has also varied with respect to the places where in high request; mère private gardens or other demesnes of the families, enclosed spaces out of the walls of towns, or by the sides of roads, and, finally, in Christian countries, churches, and church-yards, where the deceased could receive the pious wish of the faithful who resorted thither in the various calls of public worship. In our own country the practice of burying in churches is said to be anterior to that of burying in what are now called churchyards, but was reserved for persons of preeminent sanctity of life; men of less memorable merit were buried in enclosed places not connected with the sacred edifices themselves. But a connexion imported from Rome in 750, by Archbishop Cuthbert, took place at that time, and churches were surrounded by church-yards, appropriated entirely to the burial of those who had in their lives continued to attend divine service in those churches, and who now became entitled by law to render back into those places their remains into the earth, the common mother of mankind, without payment for the ground which they were to occupy, or for the pious offices which solemnized the acts of interment. In what way the mortal remains are to be conveyed to their last abode, and there deposited, I do not find any positive rule of law or of religion that prescribes. The authority under which they exist is to be found in our manners rather than in our laws; they have their origin in sentiments and suggestions of public decency and private respect; they are ratified by common usage and consent; and being attached to subjects of the gravest and most impressive kind, remain unaffected by private caprice and fancy, amidst all the giddy revolutions that are perpetually varying the modes and fashions that belong to lighter circumstances in human life. That a body should be carried in a state of naked exposure, would be a real offence to the living, as well as an apparent indignity to the dead. Some coverings have been deemed necessary in all civilized and Christian countries; but chests containing the bodies, and descending into the grave along with them, and there remaining in decay, don't plead the same degree of necessity, nor the same universal use. In the western part of Europe, the use of sepulchral chests has been pretty general. An attempt was made in our own time by an European sovereign to abolish their use in his Italian dominions; much commended by some philosophers, on the physical ground that the dissolution of bodies would be accelerated, and the vi rulence of the fermentation disarmed by the performed. In ancient times, caves were speedy abruption of all noxious particle into the surrounding soil. Whatever might be the truth of the theory, the measure was enforced by regulations, prescribing that bodies, of every age, and of both sexes, of all ranks and conditions, and of all species of mortal disease, and every form of death, however hideous and loathsome, should be nightly tumbled, naked and in the state they died, at the sound of a bell into a night cart, and thence carried to a pit beyond the city walls, there to rot in one mass of undistinguished putrefaction. This system was so strongly encountered by the established habits, as well as by the natural feelings of a highly civilized and polished people, that it was deemed advisable, at no great distance of time, to bury the edict itself by a total revocation. In the southern American establishments of the Euro pean nations, coffins do not appear to be used. In our country the use of coffins is extremely ancient They are found of great apparent antiquity, of various forms and of various materials of wood, of stone, of metals, of marble, and even of glass. (See Gongh's Sepulchral Monuments.) Coffins, says Dr. Johnson, are made of wood, and various other matters. From the original expense of some of these materials, or for the labour necessary for the preparation of them for this use, or for both, it is evident that several of them must have been occupied by persons who had filled the loftiest stations of life. In modern practice, chests, or coffins of wood or lead, or both, are commonly used for persons who can afford to pay for them; for persons of abject poverty, whom the civil law distinguishes by the title of the miseraliter egeni, what is called a shell is used, and which I under stand to be an imperfect coffin, and in very populous parishes is used successively for different individuals, unless charity, public or private, supplies them with a better. Persons dying at sea, are, I believe, usually committed to the deep in their bed clothes and hammock, but I am not aware that any of these are nominally and directly required. A statute (30th Charles II.) has required that the funeral vestment shall be made of wool, and coffins must by the same statute be lined with wool, but the use not enjoined. I observe, that in the funeral service of the Church of England, there is no mention (and, indeed, as I should rather collect, a studied avoidance of the mention) of coffins. It is throughout the whole of that service the corpse or the body. The officiating priest is to meet the corpse at the gate of the church-yard; at certain parts of the service dust is to be thrown, not upon the coffin, but upon the body, Certain parts of the service are to be recited whilst the corpse is making ready to be put into the grave. I observe likewise, that in old tables of parish fees, a distinction is stated between coffined funerals and uncoffined funerals, in point of payment. There is one of 1627, quoted by Sir Henry Spelman, in his Tract de Sepultura, where a certain sum is charged for coffined burials, and half the same sum for uncoffined burials; and expresss under those general heads of coffined and uncoffined fanerals. From whence I draw this conclusion of fact, that uncoffined funerals were at that time by no means so unfrequent as not to require a particular notice and provision. The The argument therefore that rests the right of admission for particular coffius upon the naked right of the parishioner to be buried in his church-yard, seems rather to stop short of what is requisite to be proved, the right of being buried in a large chest or trunk of any material, metallic or other, that his executors think fit. law to be found in many of our authoritative text writers, certainly says, that a parishioner has a right to be buried in his own parish church-yard; but it is not quite so easy to find the rule in those authorities that gives him the right of burying a large chest or trunk along with himself. This is no part of his original abstract 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 there for that purpose in a decent and inoffensive manner; when those purposes are answered, his rights are perhaps satisfied, in the strict sense in which his claims in the nature of absolute rights can be supposed to extend. At the same time, it is not to be denied, that very natural and laudable feelings prompt to something beyond this; to the continuation of the frame of the body beyond its immediate consignment to the grave, and an indulgence of such feelings very naturally engrafts itself upon the ori ginal rights so as to appear inseparably with it, in countries where the practice of it is habitually indulged. For however men may feel or affect to feel an indifference about the fate of their own mortal remains, few have firmness, or rather hard. ness of mind, sufficient to contemplate without pain the total and immediate extinction of the remains of those who were justly dear to them in life. A feeling of this kind has been supposed to have caused the preference of burial to the process of burning, and has likewise given rise to extravagant means for preserving human remains for a period of time long after the term at which any memory of the individuals themselves, or any affection of their survivors, can be supposed to extend. Amongst such extravagancies the use of coffins is not to be numbered; they are temporary securities, certainly not of longer duration than is necessary for the protection of the bodies they contain; from the ravages of the reptiles of the earth, if any such ravages are to be apprehended; in later ages and in populous cities other more formidable invasions are to be apprebended; more, I mean, committed by persons employed in furnishing subjects for dissection, an employment which, whatever be its necessity, is certainly conduct ed not without lamentable violations of natural feelings, and occasionally of public 世 decency itself. It is particularly, I presume, with a view to prevent such spoliations of the dead, that the use of the coffins in question is pressed in the present application to the court. The purpose of security against such spoliations is, as I understand, proposed to be effected by some ingenious mechanical contrivance, which prevents these iron coffins being opened when once effectually closed. I don't find that any objection is made to the contrivance itself on the ground of inefficacy, or any other, The objection is to the metal of which the coffin is composed, the metal of iron; and I must say, that knowing of no rule of law that prescribes coffins, and certainly none that prescribes coffins of wood exclusively, and knowing that modern and frequent usage admits coffins of lead, a metal of a winch more indestructible nature than iron, I find a difficulty in pronouncing that the me of this latter metal is clearly and universally unlawful in the structure of coffins, and that coffins so composed are inadmissible upon any terms whatever. These coffins, being composed of thin lamina, occupy, I presume it is alleged, rather less space than those of wood itself-there athen no objection on that ground; and the objection that they may be magnified to any inconvenient size seems to apply to coffins constructed of this substance no more than to those of any other. But the claim on the part of these coffins is (which quarrelled with, though not distinctly arowed), that they shall be admitted on the same terms of pecuniary payment as the ordinary wood. This claim cannot, I think, be reasonably maintained, but under the support of one or other of these propositions, either that there is no difference in the duration of the coffins of wood and coffins of iron, or that the difference of duration, be it what it may, ought to make no difference in the terms of admission. Upon the first of these points, the comparative duration, a wish was expressed by the court, that it might be assisted by opinions obtained from persons more scientifically conversant in such subjects than I can describe myself to be; but being left to my own unassisted apprehensions on such a matter, I must confess that it was not without a violent revolt of every notion that I entertain, that I heard it rather indeed insinuated in argument than directly asserted or maintained, that iron coffins would not keep a longer possession of the ground than those of wood. To me it appears, without any experimental knowledge that I can venture to claim, that upon all common theory, it must be otherwise rust is the process by which iron travels to its decomposition. If the iron coffin, deposited in the ground, contracts no rust at all from want of air or moisture, then it preserves its integrity unimpaired; but contra, if from the moisture of the soil in which it is deposited, or from the occasional access of a little air, it contracts rust-that rust, until it scales off, forms an external covering, which protects the interior parts, and retards their decomposition; whereas the decay of the external parts of the wood, propagates inwardly its own corruption, and promotes and hastens the dissolution of the whole. It is the fault of the party complainant, if being left by him to judge of this matter without sufficient information, I judge amiss in holding, that coffins of iron are much more, perhaps doubly more, durable than those of wood. It being assumed that the court is justified in holding this opinion, upon the fact of comparative duration, the pretension of these coffins to be admitted on equal terms must resort to the other proposition, which declares that the difference of duration ought to make no difference in the terms of admission, Accordingly it has been ar gued, that the ground once given to the interment of a body, is appropriated for ever to that body; that it is not only the domus ultima, but the domus æterna of that tenant, who is never to be disturbed be the condition of that tenant himself what it may. It is his for ever, and the insertion of any other body into that space, at any other time, however distant, is an unwarrantable intrusion. If these posi tions be true, 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 cannot be an inextinguishable title, a perpetuity of possession, belonging to a perishable thing; but the fact is, that "man" and "for ever" are terms quite incompatible in any state of his existence, dead or alive, in this world. The time must come when his posthumous remains must mingle with and compose a part of the soil in which they have been deposited. Precious embalmments and splendid monuments may preserve for centuries the remains of those who have filled the more commanding stations of human life, but the common lot of mankind furnishes them with no such means of conservation. With reference to men, the domus æterna is a mere flourish of rhetoric. The process of nature will resolve them into an intimate mixture with their kindred earth, and will furnish a place of repose for other occupants of the grave in succession. It is objected, that no precise time can be fixed, at which the mortal remains, and even the chest which contains them, shall undergo the complete process of dissolution: and it certainly cannot, being dependent upon circumstances that differ, upon difference of soils and exposure of climate and seasons; but observation can ascertain it sufficiently for practical use. The experience of not many years is required, to furnish a certainty sufficient for such purposes. Founded on these facts and considerations, the legal doctrine certainly is, and remains unaffected, that the common cemetery is not res unius ætatis, the exclusive property of one generation, now departed, but is likewise the common property of the living, and of generations yet unborn, and subject only to temporary appropriation. There exists a right of succession in the whole, a right which can only be lawfully obstructed in a portion of it, by public anthority, that of the ecclesiastical magistrate, who gives occasionally an exclusive title in a part of the public cemetry, to the succession of a single family, or to an individual who has a claim to such a distinction; but does not do that with just consideration of its expediency, and a due attention to the objections of those who oppose such an alienation from the common use. Even a brick grave without such authority, is an aggression upon the common freehold interest, and carries the pretensions of the dead to an extent that violates the just 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 common local usage has fixed it, is an act of injustice, unless compensated in one way or other. In country parishes, where the population is small, and the cemeteries are large, it is a matter less worthy of consideration. More can be spared, and less is wanting. But in populous parishes, in large and crowded cities, the exclusive possession is unavoidably li mited, for unless limited, evils of formidable magnitude would take place. Churchyards cannot be made commensurate to 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, Now cemeteries are to be purchased at an enormous expense to the parish, and to be used at an increased expense to the families, and at the inconvenience of their being compelled to resort to very incommodious. distance for attendance upon the offices of interment: three additional burial grounds in this very parish have been so bought. This is the known 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 insure to the bodies a much longer possession, the evil will be intolerable. A comparatively small portion of the dead will shoulder ont the living and their posterity. The whole environs of this metropolis must be surrounded by a circumvallation of churchyards, perpetually enlarging, by becoming themselves surcharged with bodies; if indeed land owners can be found 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, "Qua terra fruges ferre, et, ut mater, cibos suppeditare possit, eam ne quis notis minuat neve vivos neve mortuus.” If therefore, these iron coffins are to bring additional charges upon parishes, they ought to bring with them a proportionate compensation; upon all common principles of estimated value, one must pay for the longer lease which you actually take of the ground. And what is the exception to be pleaded for iron? If you wish to protect your deceased relative from the spoliators of the dead, by additional securities which will press upon the convenience of the parish, we do not blame the purpose nor reject the measure; but it is you, and not the parish, who must pay for that purpose. I am aware (as I have already hinted) that very ancient canons forbid the taking of money for interment, upon the notion that consecrated grounds were among the res sacræ, and that money payments for them were therefore acts of a demoniacal complexion. But this has not been the way of considering that matter since the Reformation, for the practice certainly goes up at least as far; it appears founded upon reasonable considerations, and is subjected to the proper control of an authority of inspection. To in land and populous parishes, where funerals |