Chapter XIX: On the Right of Burial

Right of burying the dead founded on the law of nations—Origin of this right—Due to enemies—Whether due to those guilty of atrocious crimes—Whether to those, who have committed suicide—Other rights also authorised by the law of nations.

I. THE RIGHT of burying the dead is one of those originating in the voluntary law of nations. Next to the right of ambassadors Dion Chrysostom places that of burying the dead, and calls it a moral act, sanctioned by the unwritten law of nature: And Seneca, the elder, ranks the law, which commands us to commit the bodies of the dead to their parent earth, among the UNWRITTEN precepts, but says, they have a stronger sanction than the RECORDED laws of all ages can give. For, in the language of the Jewish writers, Philo and Josephus, they are marked with the seal of nature, and under the name of nature, we comprehend the customs, that are common to all mankind, and agreeable to natural reason.

We find it some where said by Aelian, that our common nature calls upon us to cover the dead, and some writer, in another place, observes that all men are reduced to an equality by returning to the common dust of the earth. Tacitus informs us, in b. vi. of his Annals, that, when Tiberius made a general massacre of all, who had been connected with Sejanus, and that he forbad them the rites of burial, every one was struck with horror to see the last offices of humanity refused; offices, which Lysias the orator calls the common hopes of our nature.

As the ancients measured the moral character of every people by their observance or neglect of these rights, in order to give them a greater appearance of sanctity, they ascribed their origin to the authority and institutions of their Gods; so that in every part of their writings we meet with frequent mention of the rights of ambassadors, and the rights of burial, as founded upon divine appointment.

In the Tragedy of the Suppliants, Euripides calls it the law of the Gods, and in the Antigone of Sophocles, the heroine makes the following reply to Creon, who had forbidden any one under pain of death, to give the rites of burial to Polynices, “A prohibition, like this, was not revealed by the supreme will, nor by that heaven-born justice, which has established those laws of respect for the dead: nor did I think that you could command mortals to transgress the unwritten and inviolable laws of God. They were not established to-day, nor yesterday, but from all eternity and will for ever be in force. Their sources are unknown. Am I through fear of a mortal, and by obeying his unjust commands, to incur the wrath of Heaven?”

The authority of Isocrates, and of Herodotus, and that of Xenophon, in the sixth book of his Grecian History, may be appealed to in support of the honours, that have at all times been paid to the dead. In short, these offices of humanity are recommended by the conspiring testimony of the orators, historians, poets, philosophers and divines of all ages, who have dignified them with the names of the most splendid virtues.

II. There seems to be no general agreement of opinion upon the origin of funeral rites, and the variety of ways, in which they were performed. The Egyptians EMBALMED, and most of the Greeks BURNED the bodies of the dead before they committed them to the grave. Cicero, in the 22d chapter of his second Book on Laws, speaks of the interment alone, which is now in use, as the most ancient method, and that, which is most congenial to nature, and in this he is followed by Pliny.

Some think that men paid it as a VOLUNTARY debt of nature, which they knew that, AT ANY RATE, they would be obliged to discharge. For the divine sentence, that the body should return to the dust, from which it was taken, was not passed upon Adam only, but, as we find it acknowledged by the writings of Greece and Rome, extended to the whole human race, Cicero, from the Hypsipyle of Euripides, says, “Earth must be returned to earth,” and in the twelfth chapter of Solomon’s Ecclesiastes, there is a passage to the same purport, that “the dust shall return to the earth as it was, but the spirit to God, who gave it.” Euripides has enlarged on this subject in the character of Theseus in his Suppliants, “Suffer the dead to be laid in the lap of the earth; for every thing returns to its original state, the spirit to heaven, and the body to the earth: Neither of them is given in plenary possession, but only for a short use: The earth soon demands back the bodies, to which she had given birth and nourishment.” In the same manner Lucretius calls the earth “a prolific parent and a common grave.” Pliny also describes the earth, as receiving us at our birth, cherishing our growth, supporting us to the very last, and, when all the other parts of nature have forsaken us, taking us to her maternal bosom, and covering us with a mantle.

There are some, who think that the custom of burial was bequeathed to us by our first parents as a testamentary hope of a resurrection. For we are instructed by Democritus to believe, that our bodies are preserved in the earth under the promise of a restoration to life. And Christians in particular have frequently ascribed the custom of decent burial to the same hope. Prudentius a Christian poet says, “What can be the meaning of hallowed rocks, or splendid monuments, except that they are the depositories of bodies, consigned not to death, but to a temporary sleep?”

But the most obvious explanation is to be found in the dignity of man, who surpassing other creatures, it would be a shame, if his body were left to be devoured by beasts of prey. It is an act of compassion then, said Quintilian, to preserve the bodies of men from ravages of birds and beasts. For to be tore by wild beasts, as Cicero observes in his first book ON INVENTION, is to be robbed of those honours, in death, which are due to our common nature. And the Roman Poet, makes a lamentation over one of his heroes, that he had no pious mother to lay his body in the grave, but he would be left a prey to birds, or thrown into the river as food for fishes. Aen. x. 557–560.

But to speak from still higher authority, God, by the mouth of his prophets, threatens the wicked that they shall have burial like that of the brutes, and that the dogs shall lick their blood. Such a menace denounced against the wicked, as a punishment, shews that it is an indignity done to our nature, when, in the words of Lactantius, the image of God is cast out, to the insults of beasts of prey. But in such indignity if there was even nothing repugnant to the feelings of men, still the nakedness and infirmities of our perishable nature should not be exposed to the eye of day.

Consequently the rights of burial, the discharge of which forms one of the offices of humanity, cannot be denied even to enemies, whom a state of warfare has not deprived of the rights and nature of men. For, as Virgil observes, all animosity against the vanquished and the dead must cease. Aen. xi. 104. Because they have suffered the last of evils that can be inflicted. “We have been at war, I grant, says Statius, but our hatred has fallen, and all our enmity is buried in the grave.” And Optatus Milevitanus assigns the same reason for reconciliation. “If there have been struggles among the living, your hatred surely must be satisfied with the death of an adversary. For the tongue of strife is now silenced.”

III. Upon the principles advanced above, it is agreed by all that public enemies are entitled to burial. Appian calls it the common right of war, with which, Tacitus says, no enemy will refuse to comply. And the rules, respecting this, are, according to Dio Chrysostom, observed, even while the utmost rage of war still continues. “For the hand of death, as the writer just quoted observes, has destroyed all enmity towards the fallen, and protected their bodies from all insult.” Examples to this purpose may be found in various parts of history. Alexander ordered those of the enemy, that were killed at the battle of Issus to be honoured with the rites of burial, and Hannibal did the same to Caius Flaminius, Publius Aemilius, Tiberius Gracchus, and Marcellus, the Roman Generals. So that you would suppose, says Silius Italicus, he had been paying these honours to a Carthaginian General. The Romans treated Hanno, and Pompey Mithridates in the same manner. If it were necessary to quote more instances, the conduct of Demetrius on many occasions, and that of Antony to king Archelaus might be named.

When the Greeks were at war with the Persians, in one part of their military oath they swore to bury all the dead belonging to the ALLIES, and when they were victorious, to bury even the BARBARIANS. After a battle, it was usual for both sides to obtain leave to bury the dead. Pausanias, in his account of the Athenian affairs, mentions the practice of the Athenians who buried the Medes, regarding it as an act of piety due to all men. We find from the Jewish writers, that for the same reason, their high priests, who were forbidden to come near a dead body, if they found one, were obliged to bury it. But Christians deemed BURIAL an act of such importance, that they would allow their church-plate to be melted down, and sold to defray the expences as they would have done to maintain the poor, or to redeem captives.

There are some few instances to the contrary, but they are reprobated by the universal feelings of mankind, and such cruelty deprecated in the most solemn terms. Claudian calls it a bloody deed to plunder the dead, and still more so to refuse them the covering of a little sand.

IV. Respecting those, who have been guilty of atrocious crimes, there is reason to entertain some doubt, whether the right of burial is due to them.

The divine law indeed, that was given to the Hebrews, and which is fraught with every precept of virtue and humanity, ordered those, who were crucified, which was the most ignominious kind of punishment that could be inflicted, to be buried on the same day. Owing to this law, as Josephus observes, the Jews paid such regard to burial, that the bodies of those, who were executed publicly as criminals, were taken away before sun-set, and committed to the ground. And other Jewish writers are of opinion that this was intended as a degree of reverence to the divine image, after which man was formed.

To allow burial to criminals must have been the practice in the time of Homer: for we are told, in the third book of the Odyssey, that Ægisthus, who had added the crime of murder to that of adultery, was honoured with funeral ceremonies by Orestes, the son of the murdered king. It was the custom with the Romans, as may be seen from Ulpian, never to refuse giving the bodies of criminals to their relatives, to bury. The Emperors, Diocletian, and Maximian, in a rescript, declared, that they did not refuse to deliver up, for burial, those, who had deservedly been put to death for their crimes.

In reading the history of civil wars; we find more frequent instances of indignities offered to the dead, than in the accounts of any foreign wars. In some cases, the bodies of executed criminals are exposed to public view, and hung in chains, a custom the propriety of which is very much doubted both by Theological and Political writers. So far from approving of the practice, we find such writers bestowing praises upon many, who had ordered funeral honours to be paid to those, who would not themselves have allowed the same to others. An action of this kind was done by Pausanias the Lacedaemonian, who, being urged by the people of Aegina to retaliate upon the Persians for their treatment of Leonidas, rejected the advice, as unbecoming his own character and the Grecian name. The Pharisees allowed burial even to King Jannaeus Alexander, who had treated the dead bodies of their countrymen with every kind of insult. Though indeed on certain occasions, God may have punished some offenders with the loss of such a right, he did so by virtue of his own prerogative, which places him above the restrictions of all law. And when David exposed the head of Goliah, it was done to one, who was an alien, and a despiser of God, and might be justified by that law, which confined the name and privileges of neighbour to the Hebrews.

V. There is one thing not improper to be observed, that the rule prevailing among the Hebrews with respect to burying the dead, contained an exception, as we are informed by Josephus, excluding those, who had committed suicide. Nor is it surprising that a mark of ignominy should be affixed to those, on whom death itself cannot be inflicted as a punishment. Aristotle in the fifth book of his Ethics, speaks of the infamy universally attached to suicide. Nor is the observation at all weakened by the opinions of some of the Grecian poets, that as the dead are void of all perception, they cannot be affected either by loss or shame. For it is a sufficient reason to justify the practice, if the living can be deterred from committing actions, for which they see a mark of infamy set upon the dead.

In opposition to the Stoics, and others, who admitted the dread of servitude, sickness, or any other calamity, or even the ambitious love of glory to be a just cause of voluntary death, in opposition to them, the Platonists justly maintain, that the soul must be retained in the custody of the body, from which it cannot be released, but at the command of him, who gave it. On this subject there are many fine thoughts in Plotinus, Olympiodorus, and Macrobius on the dream of Scipio.

Brutus, following the opinions of the Platonists, had formerly condemned the death of Cato, whom he himself afterwards imitated. He considered it as an act of impiety for any one to withdraw himself from his allegiance to the supreme being, and to shrink from evils, which he ought to bear with fortitude. And Megasthenes, as may be seen, in Strabo book xv. remarked the disapprobation, which the Indian sages expressed of the conduct of Calanus: for it was by no means agreeable to their tenets, that any one, through impatience, should quit his post in life. In the fifth book of Quintus Curtius, there is an expression of King Darius to this effect, that he had rather die by another’s guilty hand than by his own. In the same manner the Hebrews call death a release, or dismission, as may be seen not only in the Gospel of St. Luke, ch. ii. v. 19, but in the Greek version of the Old Testament, Gen. xv. 2, and Numb. xx, towards the conclusion: and the same way of speaking was used by the Greeks. Plutarch, in speaking of consolation, calls death the time, when God shall relieve us from our post.

VI. There are certain other rights too, which owe their origin to the voluntary law of nations, such as the right of possession from length of time, the right of succession to any one who dies intestate, and the right resulting from contracts, though of an unequal kind. For though all these rights, in some measure, spring from the law of nature, yet they derive their confirmation from human law, whether it be in opposition to the uncertainty of conjecture, or to certain other exceptions, suggested by natural reason: points, all of which have been slightly touched upon in our discussions on the law of nature.

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