THE RIGHTS OF SEPULTURE.

THE Hon. Samuel B. Ruggles, as Referee, has recently acted upon a case of much importance, involving one of the most interesting questions of society; and that is, the custody or possession of the dead bodies of our relatives and friends. The Roman Catholic church, it is known, (an example in which she is to some extent followed by the State church in England,) lays claim to the human body after interment, to the exclusion of all relatives and friends; and one of the great powers and sources of revenue of the Catholic church is in this claim and possession of churchyards, with the privileges, preroga tives, and appurtenances belonging thereunto. An interesting case has recently occurred.

When Beekman Street was recently widened, a portion of a Roman Catholic cemetery (Calvary) was cut off, containing eighty graves. The persons buried in the eighty graves were identified in only five instances, one of whom, Moses Sherwood, buried in 1801, was identified by his daughter, by a ribbon with which his hair was tied in a queue, found lying with his skull and bones. This daughter (Maria Smith) claims that these remains be interred in a separate grave, with the existing monument over them, and that the moving expense be paid by the church, out of the funds it has received for the land lost in the widening of Beekman Street. The church interposes objection only so far as to ask of the court what is its legal duty in this and parallel cases, which duty it is perfectly willing to discharge. The court referred the whole case to Mr. Ruggles to state the facts and to give his opinion upon them.

The facts are elaborately set forth by Mr. Ruggles, in a very interesting manner; and, in giving his opinion upon the law, he has entered into a learned and historical investigation of the rights of sepulture, and the conflicts of jurisdiction that have taken place in different ages between the ecclesiastical and civil courts. We regret that our columns do not afford space to republish in full his reasonings; but they may be stated briefly as follows:

The judicial history of the Romish church in England, from the sixth to the thirteenth century, shows a constant struggle of the Romish clergy to control places of burial. Cuthbert, Archbishop of Canterbury in 750, introduced burial in churchyards. To strengthen the priestly power, the canon law prohibited heretics from Christian burial. To repose in any thing but consecrated earth soon came to be ignominious, and thus the churchyard became a vital portion of the material machinery. The Anglo-Saxons checked this assumption of the Romish clergy as much as possible, but soon after the Norman conquest the Ecclesiastical courts became not only executive but judicial powers. William of Normandy stripped the Anglo-Saxon courts of all power to protect the dead from the courts of the priests. Hence, often to aggravate the terrors of the church, the dead bodies of schismatics were refused earthburial, "dust to dust," &c., and doomed to be "food for the fowls of the air and beasts of the field." The ashes of John Huss and Jerome of Prague, burned at the stake, were not allowed to mingle with the earth, but were cast into the Rhine. Wickliffe, after sleeping forty-one years in a churchyard, was dug up, his bones burned, and the ashes thrown into the river Avon, in 1425, because, living, he had questioned certain points in the Romish theology. Even Lord Coke, in his day, yielded all this custody of the dead to the ecclesiastical courts; and the clergy went on to claim and to take, even from relatives, all custody and possession of the dead.

Mr. Ruggles then analyzes the Roman Civil Law of Burial, and the Saxon Law, and the law of the Franks,—the Common Law of the Gothic nations,— which he contrasts with the Romish Law, introduced under the hordes of ecclesiastics that came over to England under William the Conqueror,-from whom came the monkish idea of the churchyard as an engine of spiritual power; and he shows how the Romish ecclesiastics broke down the Roman Civil Law and the Anglo-Saxon Common Law. To show how strong, even yet, is the monkish idea of the church-right over the dead body, he recalls

the case made by Gilbert, in 1820, to bury in a London churchyard the body of his wife, in an iron coffin, resisted by the church-wardens, on the ground that thus the body would not decay fast enough to make room for another occupant. The court (Sir William Scott) ruled, that the mode of burial is a subject of ecclesiastical cognizance.

Mr. Ruggles goes on to reason that a corpse is property, heritable as other property, to heirs; and hence, that there is a right to the individuality of a grave, a vault; that Maria Smith, as the heir of Moses Sherwood, has a right to remuneration for the disturbance of his remains: and so he decides that she must be paid the expenses of reinterment, as well as a stated sum for the vault. The points Mr. Ruggles makes are the following:

1. That neither a corpse nor its burial is legally subject, in any way, to ecclesiastical cognizance, nor to sacerdotal power of any kind.

2. That the right to bury a corpse and to preserve its remains is a legal right, which the courts of law will recognise and protect.

3. That such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin,

4. That the right to protect the remains includes the right to preserve them, by separate burial, to select the place of sepulture, and to change it at pleasure.

5. That if the place of burial be taken for public use, the next of kin may claim to be indemnified for the expense of removing and suitably interring the remains.

These are very important principles; and in a country like ours, where there is no established church,—that is, State religion,-it follows almost as a matter of course that such principles should be and must be maintained. It is fortunate that now, while the Roman Catholic clergy are setting up such arrogant claims over the body, dead as well as living, a case has arisen, the agitation of which only will check their operations in our country.-New York Express.

Bistorical and Biographical.

THE following valuable and interesting contribution to the history of the Presbyterian church is from the pen of the Rev. J. W. K. HANDY, who has more papers in store on the general subject. The article originally appeared in the Christian Observer. We hail it as a triumph of true historical inquiry.

REV. JOSIAS MACKIE.

I HAVE long felt curious to know more of that early Presbyterian minister, the Rev. "John Mackey," who was settled somewhere on Elizabeth River. His name is not reported as a member of the mother presbytery; but in the Minutes of 1712 the following record occurs:"A complaint of the melancholy circumstances under which the Rev. John Mackey, on Elizabeth River, labours, [being made] by Mr. Henry, the Presbytery was concerned, and Mr. John Hampton saying he designed to write to him on an account of his own, Presbytery desired him to signify their regard to and concern for him." This is the only item of history

concerning "Mr. Mackey" heretofore known to any of our Presbyterian antiquaries.

It has lately been my good fortune, after diligent search, to rescue from oblivion a number of additional facts. These have come into my possession through the courtesy of Arthur Emerson, Esq., our amiable and accomplished County Clerk, and by whose permission I have been allowed unrestrained access to the numerous old records under his care.

The venerable Dr. Hill was of opinion that "Mackey" was an Irishman; and, from the interest manifested in his case by Mr. Henry, that they must have come to America in company. Dr. Hodge thinks, "His name would rather lead to the conjecture that he came from Scotland, whence it is known that Makemie endeavoured to procure ministers for this country." Dr. Foote, in his sketches of Virginia, says, briefly, "Around where Norfolk stands there was a congregation of Presbyterians. After Makemie's death, the people enjoyed the labours of Mr. Mackey. How long Mr. Mackey served them is unknown."

From the documents now before me, it appears that all of these historians are somewhat in error. Mackey did not come over with Henry, as suggested by Dr. Hill. On the contrary, it is not improbable that he crossed the Atlantic with Makemie himself. The first notice which I have found of him appears August 15th, 1692, in a record of his renunciation, by a formal oath, before two Justices, of all connection with the Roman Catholic church, and declaring his approbation of the "Articles of Religion," with certain exceptions, as allowed in the case of Dissenters. He also, at this time, took the oath of fidelity, and received permission to preach at certain designated places. This event took place just eighteen years before the arrival of Mr. Henry, who came in 1710. The earliest account recorded of Makemie bears date February 14th, 1690. Mackie's oath before the magistrate was taken January 16th, 1692, about sixteen months after this first notice of Makemie. The Rev. Mr. Webster, of Mauch Chunk, Pennsylvania, has found two letters of Mackemie's, bearing date 1684 and 1685. I hope also to find further traces of Mackie in an adjoining county; when it may appear that he too was settled in Virginia some years earlier than the date of his oaths.

Dr. Hodge "fights hard for a Scotchman." So says Dr. Hill. Mackie was not a Scotchman, his name to the contrary notwithstanding. He was the son of "Mr. Patrick Mackie, sometime of the county of Donegal, of the kingdom of Ireland." At the time of his death, there were yet living his three sisters, Mary, Margaret, and Rebecca. In his will he directs that "all the remaining part of his money, which is in ready cash, in Virginia, should be equally divided" between these sisters; and he wishes that it may be transmitted, "in bills of exchange at his own cost and charge, direct to such person or persons as his executors should think best in the city of London, and from thence to Mr. John Harvey, of Londonderry, merchant, and from him transmitted to the children" of his three sisters.

Dr. Foote is also mistaken in the supposition that Mackie was the successor of Makemie on Elizabeth River. Makemie died in 1712. Mackie had then been preaching some twenty years at different places on the river. On the 22d of June, 1692, he obtained permission to preach and hold public worship in "a house at Mr. Thomas Joy's, in Eastern Branch; a house belonging to Richard Phillpot, in Farmer's Creek precincts, and a house belonging to John Roberts, in the Western Branch." On the 18th

of November, 1696, he certifies that he had selected another "place of meeting for preaching the gospel." This was at the house of Mr. John Dickson, in Southern Branch. Mackie was not, then, the successor of Makemie.

It is probable that Mackie, like his cotemporary Makemie, was to a considerable extent employed as a planter and merchant. It is certain, at least, that he owned "one hundred and fifty acres of land, lying and being in Princess Ann county, near the Back Bay;" and, as it is stated in the will that this was "the remainder of a tract of land purchased of Captain Francis Moore," it is to be presumed that he had once owned a farm of much larger dimensions, and which, perhaps, he had recently sold, that the proceeds might be sent to his relatives in Ireland. He appears, also, to have been possessed of "a valuable stock of horses, which he kept at the sea-side." From this stock he bequeaths eight choice mares to various friends, and gives his "riding-horse, bridle and saddle, to Thomas Butt, son of Thomas Butt, deceased."

I suppose Mackie to have been a merchant, from the various debts due him, as mentioned in the will, and from the character of various items referred to. On the 19th of May, 1697, he was fortunate in a suit against the estate of George Newton, who was indebted to him in a bond for £40. For this he was allowed, by an arbitration, 5223 lbs. of tobacco. Various sums were due him from merchants in London, probably for tobacco, which he had received in payment for goods: all of which money is devised to the children of his sisters in Ireland. To Elizabeth and John Wishard, and William and Mary Johnson, he bequeathed all his "new goods, both woolling and lining," with certain exceptions, "to be equally divided between them; and the said Wishard to have their parts immediately after his decease, and the said Johnsons when they shall come of age or married." To Richard Butt he gives his "great riding-coat, with twenty yards of brown lining that is in the chest of goods."

A library is not always the test of one's scholarship; but it is hardly probable that a Presbyterian minister in the seventeenth century would have brought to the wilds of America a cumbrous load of books simply for the sake of owning them. Mackie's library must have been just such a one as would be valuable to a well-educated divine. "I give," says he in the will," my more scholastic books of learned languages, as Latin, Greek, Hebrew, to be equally divided between Mr. Henry, Mr. Hampton, and Mr. Mackness, non-conforming ministers at Pokamoke, or thereabouts." For the proper disposal of the rest of his books, he left a paper of directions, and requests his executors "well and truly to observe" them. Mr. Richard Butt is requested to attend to the payment of certain debts; and, as a remuneration for his services, his "will and desire" was "that the said Richard Butt have a good portion of his English good books."

Although Mackie's name does not appear in the records, as a member of the mother presbytery, I am not so certain that he was not. It is evident, from the notice which was taken of him by that body, as well as from the disposition which he made of his "more scholastic books," that a close intimacy existed between himself and the members of presbytery. May not the difficulties to which Mr. Henry referred have had something to do with his inability, from special causes, to attend the meetings of the judicatory? It is not unfrequently the case, even now, that the name of

a non-attending member is, by neglect, omitted. It is hoped that some light may yet be obtained on this subject.

Mackie was an unmarried man; and, as neither wife or children are mentioned in the will, it is more than probable that he was an old bachelor.

It is worthy of note that the name of this early Presbyterian minister was not "John Mackey," as heretofore written, but Josias Mackie. I had the pleasure of examining the original will, as signed by his own hand. It is in a remarkable state of preservation. The first nameJosias-is written in a large, bold hand. The Mackie is also large, but it bears evident marks of having been written in extremis, and when there was but little control of the pen.

The Rev. Josias Mackie died some time between the 7th and the 16th day of November, 1716. The will is dated on the 7th, and was proved on the 16th. From these dates, and the date of his first oath,-August 15th, 1692,-it is certain that he had been living on Elizabeth River at least twenty-four years.

I am not able to communicate any thing concerning the labours of Mr. Mackie. Something valuable may yet come to the light. It is certain, however, that he was a good man, a true Presbyterian,--bold, active, and laborious. With the care of a farm and a store, he found time to preach at four places of meeting; and, in prospect of death, he leaves the solemn and interesting record :-" Being heartily sorry for my sins past, and most humbly desiring forgiveness of the same, I commit my soul to Almighty God, trusting to receive full pardon and free justification through the merits of Jesus Christ."

Truly yours,

ISAAC W. K. HANDY.

PORTSMOUTH, Va., March 6th, 1856.

Brief Words for AII.

DR. DWIGHT'S IDEA OF A SERMON.

1. THE gospel ought to be preached so plainly as to be clearly and easily understood by those who hear. Technical or scientifical language is to be excluded from popular sermons. A still greater trespass against plainness of speech is committed in what is called metaphysical preaching. Even Paul, one of the most profound of all reasoners, never appears to choose abstruse discussions when the subject will allow of any other; and returns with apparent pleasure to a plainer mode of discourse, as soon as the case will permit. Our Saviour treats every thing in the most direct manner of common sense, although he often discourses concerning things of a profound nature.

2. Variously. By this I intend that both the manner, and especially the subjects, should be diversified.

3. Boldly. He who brings a message from God ought never to be afraid of

man.

4. Solemnly. All things pertaining to divine truth are eminently solemn.