No. LX.
Much has been said and written, of late, here and elsewhere, on the subject of intra mural interment—burial within the walls or confines of cities. This term, though commonly employed by British writers, is wholly inapplicable, in all those rural cities, which have recently sprung up among us, and in which there are still many broad acres of meadow and pasture, plough-land and forest. In these almost nominal cities, the question must be, in relation to the propriety of burying the dead, not within the confines, but in the more densely peopled portions—in the very midst of the living.
I have an opinion, firmly fixed, and long cherished, upon this important subject; and, considering myself, professionally, an expert, in these matters, I shall devote the present article to their consideration.
There is no doubt, that a cemetery, from its improper location, or the mass of putrefying material, which the madness, or folly, or avarice of its proprietors has accumulated there, or from the indecent and almost superficial deposition of half-buried corpses, may become, like the burden of our sins—intolerable. It is not less certain, that it may become a public nuisance—not merely in the popular sense—but legally, and, as such, indictable at common law. Neither can there be any doubt, that the city authorities, without a resort to the process of indictment, and as conservators of the public health, have full power, to prevent all future interments in that cemetery. This is true of a cemetery in the suburbs—a fortiori, of a cemetery in the city.
At the present day, it may seem astonishing to many, that any doubt ever prevailed, in the minds of respectable members of the medical faculty, as to the unhealthy influences of the effluvia, arising from animal corruption. Orfila, Parant Duchâtelet, and other Frenchmen, of high professional reputation, have maintained, that such effluvia are perfectly innocuous. It seems to be almost universally agreed, at the present day, to reject such extraordinary doctrines entirely; although it is admitted, by the highest authorities, that the exhalations from vegetable corruption are the more pernicious of the two.
So far as the decision of this question concerns the remedy, by legal process, it is of no absolute importance. The popular impression, that exhalations, of any kind, cannot constitute a public nuisance, in the technical import of those words, unless those exhalations are injurious to health, is erroneous. Lord Mansfield held this not to be necessary; and that it was enough, if the air were so affected, as to be breathed by the public, with less comfort and pleasure, than before.
Interment, beyond the confines of the city, was enjoined, some eighteen hundred years ago. It was decreed in Rome, by the twelve tables—hominem mortuum in urbe ne sepelito.
A writer, in the London Quarterly Review, vol. 73, p. 446, has written, very ably, on this interesting topic. He supplies some facts of importance, connected with the history of interment. A. D. 381.—The Theodosian code forbade all interment within the walls of the city, and even ordered, that all the bodies and monuments, already placed there, should be carried out.
A. D. 529.—The first clause was confirmed by Justinian. A. D. 563.—The Council of Brague decreed, that no dead body should be buried, within the circle of the city walls.
A. D. 586.—The Council of Auxerre decreed, that no one should be buried in their temples. A. D. 827.—Charlemagne decreed, that no person should be buried in a church. A. D. 1076.—The Council of Winchester decreed, that no person should be buried in the churches. A. D. 1552.—Latimer, on Saint Luke vii. ii., says, “the citizens of Nain had their burying places without the city; and I do marvel, that London, being so great a city, hath not a burial place without,” &c. A. D. 1565.—Charles Borromeo, the good bishop of Milan, ordered the return to the ancient custom of suburban cemeteries.
Sir Matthew Hale used to say, “churches were made for the living, not for the dead.” The learned Anthony Rivet observed—“I wish this custom, which covetousness and superstition first brought in, were abolished; and that the ancient custom were revived to have burying places, in the free and open fields, without the gates of cities.” In 1832, fifteen Archbishops, Bishops, and others, ecclesiastical commissioners, in London, recommended the abolition of all burials in churches.
At great expense, the City Government of Roxbury have judiciously selected a spot, eminently beautiful, and remote from the peopled portion of the city, for the burial of the dead. The great argument—the manifest motive—was a just regard for the health of their constituents. If the present nuisance should continue much longer, and grow much greater, may not the question be respectfully asked, with some little pertinency, what has become of that just regard?
Surely there is no lack of power. In 1832, the government of Boston said to the town of Roxbury, not in the language of David to Moab—thou shalt be “my wash pot”—but thou shalt be the receptacle of our offal—of all, that is filthy, and corruptible, within our borders. The City Government of Boston went extensively then into the carrion and garbage business, and furnished the provant for a legion of hogs, the property of an influential citizen of Roxbury. This awful hoggery was located on the road, now called East Street. The carrion carts of the metropolis of New England, eundo, redeundo, et manendo, dropping filth and fatness, as they went, became an abominable nuisance; and, as Commodore Trunnion beat up to church, on his wedding day, so every citizen, as soon as he discovered one of these aromatic vehicles, drawn by six or eight horses, tossing up their heads, and snorting sympathetically, was obliged to close-haul his nose, and struggle for the weather gage.
Then again, the proprietor of this colossal hog-sty, with his burnery of bones, and other fragrant contrivances, created a stench, unknown among men, since the bituminous conflagration of the cities of the plain—Sodom and Gomorrah; and which terrible stench, in the language of Sternhold & Hopkins, “came flying all abroad.” In the keeping of the varying wind, this “arria cattiva,” like that from a graveyard, surcharged with half-buried corpses, visited, from day to day, every dwelling, and nauseated every man, woman, and child in the village. Four town meetings were held, upon this subject. Roxbury calmly remonstrated,—Boston doggedly persisted; and, at last, patience having had its perfect work, the carrion carts, while attempting to enter Roxbury, were met, by the yeomanry, on the line, and driven back to Boston. Chief Justice Shaw having refused an application for an injunction, the complaint was brought before the grand jury of Norfolk. Bills were found, against the owner of the hogs, and the city of Boston. My learned and amiable friend, the late John Pickering, then the City Solicitor, defended them both, with great ability; and the present Judge Merrick, then County Attorney, opposed the whole swinish concern, with the spirit of an Israelite, and the power of a Rabbi. The owner of the hogs and the city of Boston were both duly convicted, and, entering into a written obligation to sin no more, in this wise, the indictment was held over them, for a reasonable period, until they had given satisfactory evidence of their sincerity.
In the testimony of Dr. George Cheyne Shattuck, which was published, at the time, after sustaining the prosecutors amply, in their allegation, in respect to the deleterious effect of the nuisance, he remarks—“The Creator has established, in the sense of smelling, a sentinel, to descry distant danger of life. The alarm, sounded through this organ, seldom passes unheeded, with impunity.”
Dr. John C. Warren and sixteen other respectable physicians concurred in this opinion.