[217] CHAPTER XIX.

Of the Right of Sepulture.

I. 1 THE Laws of Nations voluntarily instituted, direct also the sepulture of dead bodies. Dio Chrysostom, among the usages, which he opposes to written law, mentions, after the rights of legation, the usage of not refusing burial to the dead. So Seneca the father, Philo, Josephus, Isidore of Pelusium, who calls this a law of nature, the general natural habits of man being included in the term nature, as elsewhere noticed. So Euripides, Aristides, Lucan, Papinius [Statius], Tacitus. He who prevents it, puts off humanity, as Claudian says; disgraces humanity, as Leo; insults decency, as Isidore says.

2 This right, as being common to all civilized men, was referred to the gods as its authors. So in the Supplices of Euripides; the Antigone of Sophocles. [See.]

3 So Isocrates in several places^*, Herodotus, Diodorus, Xenophon, Lysias and Aristides^†.

4 And names implying Virtue are given to this office, as humanity^‡, mercy, compassion, religion, a feeling for our common nature, a recollection of our human condition, a work of kindness. [See the authors.] The Donatists who refused burial to the bodies of Catholics are accused of impiety. So Papinius [Statius]. Spartian says that such are without reverence for humanity. So Livy, Homer, Lactantius. [See.]

II. 1 There are different opinions as to the origin of this practice of burying bodies; either first embalming them, as the Egyptians did; or burning them, as among the Greeks mostly; or without preparation, which Cicero notes as the oldest practice. Moschion thought the custom intended to be a memorial of the abolition of the practice of eating human bodies. [See.]

2 Others regard it as a willing payment of a debt to Nature, which, if not given, she will take. That man is made from earth, was not only told to Adam by God. Cicero also quotes from Euripides, Earth to earth; and in Eccl. xii. 7, we read, Then shall the dust return to the earth as it was, and the spirit shall return to God who gave it. See 218Euripides; Lucretius; Cicero, from Xenophon. Pliny says that the earth receives us when we are born^*, nourishes us as we grow up, feeds us at every age, and at last receives us into its bosom as a mother, when the rest of nature rejects us.

3 Others think that the hope of the resurrection was intended to be marked by this practice, and transmitted to posterity. So Democritus seems to have thought^†. The Christians often refer the practice of burial to this hope. So Prudentius; What mean hollowed stones, what mean sculptured tombs, save that what we trust to them is not dead, but sleepeth?

4 It is more simple to say, that considering the superiority of man to other animals, it was deemed unworthy of him that other animals should feed on him, and that sepulture was invented to obviate this. The pity of men protects the body from birds and beasts, says Quintillian. To be devoured by beasts was considered shocking. So Cicero, Virgil, Jerem. xxii. 19, 1 Kings xxi. 19, Lactantius, Ambrose.

5 And even without regarding such insults, it seems unfit for the dignity of man’s nature that his body should be torn and crushed. So Sopater, Gregory Nyssen.

6 Hence the office of burial is conceived as rendered, not so much to the man, that is, the particular person, as to Humanity, that is to Human Nature. So Seneca and Quintilian call it public humanity, Petronius, transferred humanity. And hence it follows, that sepulture ought not to be withheld, either from our friends or from enemies. See this thought in the Ajax of Sophocles: in Euripides: in Virgil, and the writer to Herennius, who quotes him^‡. So Papinius [Statius] and Optatus speak of death terminating all enmity.

III. 1 Hence all agree that sepulture is due to public enemies; and is a right of war. So Appian, Philo, Tacitus, Dio Chrysostom, Lucan, Sopater, Dio Chrysostom again.

2 And examples occur in abundance. Enemies were buried by Hercules, Alexander, Hannibal; of the latter case Silica says, You might have supposed the dead man a Sidonian leader. So the Romans buried Hanno; Pompey, Mithridates; Demetrius, several: Antony, Archelaus. The oath of the Greeks who marched against the Persians included this^§. And we constantly read in history that the vanquished obtained permission to bury their dead. So Pausanias says the Athenians buried the Medes.

3 The Hebrew High Priest, though on other occasions forbidden to have anything to do with a funeral, was yet commanded to bury a dead body if he found it by accident. Christians thought the burial of the dead so important, that in order to do it, as in order to relieve 219the poor, or to ransom captives, they thought it lawful even to sell the consecrated vessels of the church.

4 There are examples of burial denied, but they are condemned by the common judgment. See Virgil, Claudian, Diodorus.

IV. 1 With regard to great criminals, there seem to be doubts. The Hebrew law directed the bodies of those who were publicly executed to be taken away and buried before sunset: and the commentators note this as an evidence of reverence for the divine image in which man is made. Egisthus was buried by Orestes. Among the Romans, the bodies of those executed were not denied to their relatives or even to any who asked for them, as Paulus thought. So Diocletian and Maximian directed.

2 Examples of bodies thrown out unburied, are more common in civil than in foreign wars. And at this day, some criminals are gibbeted and left in public view: but whether this be a laudable practice, is disputed both by politicians and by theologians.

3 On the other hand, we find persons praised, for ordering the bodies of those to be buried who had themselves refused the rite to others, as Pausanias. So Statius makes Theseus act to Creon. So the Pharisees buried Alexander Jannæus. If God punished some by denying them sepulture, he did this by his own right. David’s proceeding with Goliath’s head was no general case.

V. 1 The Hebrews, however, made one exception, in the case of those who had died by their own hands. And this is fit; for there can be no other punishment, for those to whom death is no punishment. So the Milesian virgins, and the Plebs at Rome were deterred from suicide. So Ptolemy ordered the body of Cleomenes to be hung. And it is, says Aristotle, a common practice, as Andronicus explains him. And on this ground, Dion lauds Demonassa, queen of Cyprus. And it is no objection, that, as the poets sometimes say, the dead feel nothing, and are not affected by loss or shame. For it is enough if what is done to the dead deters the living.

2 The Platonists argued well, against the Stoics and others who thought that the need of a refuge from slavery and disease, and the hope of glory, were just causes of a voluntary death. They replied, that the soul must remain at its post in the body, and that we must not quit this life without His leave who placed us in it: as we find in Plotinus, Olympiodorus, Macrobius. On this ground, Brutus, at an earlier period, condemned the act of Cato, which he afterwards imitated. See Plutarch. And Megasthenes noted that the act of Calanus, [who burnt himself in the presence of Alexander and his army,] was blamed by the wise men of the Indians; for that their doctrine did not approve of such impatience of life. So Darius said, I would rather die by another’s crime than my own.

3 Hence the Hebrews called death dissolution and departure, not only Luke ii. 29, but also in the Greek version of Gen. xv. 2, Num. 220xx. 29; which mode of speaking was also used by the Greeks. See Themistius, and Plutarch.

4 Some of the Hebrews make one exception to the rule against suicide, in a case of a laudable retirement, if any one foresees that he will in future live to the dishonour of God. For since God, not man, has a right to our lives, they think that the presumed will of God is the only thing which excuses the purpose of anticipating death. To this they refer the examples of Samson and of Saul. The former saw that in his person the true religion was scorned. The latter was restored to a right way of thinking, after the shade of Samuel had predicted to him his death; and though knowing that this was at hand, he did not refuse to fight for God and his country; and fell on his sword to avoid the insults of the enemy: thus obtaining eternal praise, even from David. The third example is that of Razis, in the history of the Maccabees, 2 Macc. xiv. 37. In Christian history also, we read similar examples of persons who have killed themselves, lest under the pressure of torments they might renounce the Christian religion: and of virgins who have drowned themselves to save their chastity, and whom the Church places amongst its martyrs. But it is worth while to see what Augustine says of these cases.

5 I find that another exception obtained among the Greeks; which the Locrians objected to the Phocians: It was the common usage of Greece that sacrilegious persons should be cast forth unburied. So Dio Prusæensis. So traitors were treated at Athens, as Plutarch says.

But to return to my subject; the ancients were generally agreed in holding that war might justly be undertaken on account of sepulture denied; as appears by that history of Theseus which Euripides treats in the Supplices, and Isocrates in the Oration quoted.

VI. There are some other things which are due by the instituted Law of Nations; as possession by prescription, succession to intestates, and the results of contract, even if unequal. For all these, although in a certain way they have their origin in Natural Law, yet received from human law a certain firmness, both against the uncertainty of conjecture, and against exceptions which otherwise natural reason seems to suggest: as we shewed above in passing.