THE ROMAN LAW ON BURIALS AND BURIAL GROUNDS

Author(s): Olivia Robinson

Source: Irish Jurist , SUMMER 1975, new series, Vol. 10, No. 1 (SUMMER 1975), pp. 175-
186
Published by: Irish Jurist

Stable URL: https://www.jstor.org/stable/44026221

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 THE ROMAN LAW ON BURIALS AND BURIAL GROUNDS

Olivia Robinson*

The particular interest to lawyers of this topic is the interweaving of

sacral, public and private law in a pattern dissimilar to our own. In the
early period of the Monarchy and into the primitive Republic, sacral law,
or at least its guardians, influenced all law, so that practices connected
with topics like burial only emerge into secular law as and where the latter
overtook sacral law. But by the time of Cicero, through whom most of
our knowledge of the early period comes, the separation between the
ius pontificale and secular lex is quite clear and, though Cicero is not
concerned with this distinction, the latter can by this stage be divided into
public and private law. While the rulings of the early Republic seem almost
all to emanate from the pontiffs, the actual extent of pontifical control
before, and indeed concurrent with, the praetor's interdict de mortis
infer endis or the actio de sepulchro violato is disputed (i). The public
authorities, Senate, magistrates, emperors, were concerned with public
decency and safety but the exercise of their powers seems restricted rather
than dominant. The pontiffs had a limited jurisdiction which provides the
sacral law of the later Republic and the early Empire. What does emerge
from the evidence of the legal classical period is the very considerable
element of private law, one citizen dealing with another, in the regime of
graves and graveyards.
The earliest or purportedly earliest information we have comes from
the so-called Leges Regiae through Plutarch and Pliny the Elder in the
first century A.D., and through the jurist Marcellus and the antiquarian
Festus, both of the second century. Numa was traditionally the king who
established religious practices and one finds ascribed to him such rules as
"One shall not sprinkle the funeral pyre with wine" (2): the times allowed
for mourning are variously limited (3): a pregnant woman may not be
buried before a Caesarian operation has been attempted ( 4 ): a man killed
by lightning is not to be moved nor buried with the ordinary ritual (5).
All these are clearly rules of sacral law, though the attempt to extract the
child from the womb of its dead mother was aimed, or so it was held later,
at protecting the life of the child rather than at organising the burial of the

♦Lecturer, Department of Civil Law, University of Glasgow.

(i) See F. de Visscher, Le droit des tombeaux romains , Milan 1963, ch. ix.
(2) Numa 7 : vino rogum ne re spar git o.
(3) Numa 10.
(4) Numa 12.
(5) Numa 14.

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 176 The Irish Jurist , 1975

woman. In the Twelve Tables matters have become m

10 is the relevant part and our knowledge of it is almos
Cicero's de legibus . We are told that a dead person s
or burned in the City (6); this does not seem to spring f
taboo, for Vestal Virgins and a few others continued
have the right to be buried, within the City, and furth
early inhumations in the area that became the Forum af
had drained it. On the other hand, Cicero also tells us (7
of pontiffs had declared it unlawful for a grave to b
(and indeed had ordered large scale exhumation outsid
a complement to the unlawfulness of building in a lo
motive for this law may be the need to keep land fr
public places in the developing City, or it may be, as
avoid the fire hazard created by funeral pyres, in wh
would seem to have been pretty common, but both in
existed together. The attempted control of fire hazards
in the prohibition on building a new pyre or burning m
of the building of another, without his consent ( 8 ). It
hygiene was at this stage a motive for prohibiting buria
But, whatever the balance of factors behind this law
issued by the pontiffs, in later ages when it was repeate
enforced by the secular authorities. Sacral law is indeed
Twelve Tables in such matters as the prohibition on
man's bones to make a second funeral (9) except whe
in battle) (10), the repetition of the prohibition on s
with wine (11) and other sprinklings or anointings (12),
for a man to be buried with any crowns for valour h
other provisions may have a sumptuary as much as
"one shall not smooth a funeral pyre with an axe" (14
of the expenses of a funeral and of the excesses of mour
law that gold was not to be added to a corpse (though go
be extracted) (16). It is not clear what motive lay behind
may have been a religious element but it seems quite lik
which had lost her place in the widespread trade of t

(6) T.T. 10.1 : hominem mortuum in urbe ne sepelito neve urito.

(7) De leg . 2.23.58.
(8) T.T. 10.9: rogum bustumve novum vetat propius LX pedes ad
domino.
(9) 10.5.a.
(10) 10.5b; a similar ruling is found in canon law, e.g., Codex iur
and its interpretation.
(11) 10.6b.
(12) 10.6a.
(13) 10.7.
(14) 10.2: rogum ascea ne polito .
(15) 10.3-4.
(16) 10.8.

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 The Roman Law on Burials and Burial Grounds ill

needed to conserve her resources to face her many enemies (17). The fina
provision of the Twelve Tables as traditionally printed is a matter pertain
ing to private law; the usucapion of the vestibule of a place of burial
burning mound was forbidden (18). De Visscher put forward (19) an
attractive theory that there was in fact another provision in this Tab
on violation of sepulture. Cicero quotes an Athenian law forbidding
burial in an existing tomb of someone not so entitled, and penalising the
violation or destruction of a funeral monument (20); he is using precisely
the same form of comparison as when he deals with the restrictions
women's mourning and this is generally accepted as forming part of
Twelve Tables, so it seems to me likely that the offence of violation
sepulture did exist in early Roman law.
Cicero is our only source for a general treatment of sacral law; h
sets out to consider the gods of the lower world, and he tells us (21) that
one could view as connected with religion that part of the ius civile whic
dealt with graves. But the fundamental interest of the pontiffs he describ
as in the permanent maintenance of the traditional rites (22) to ke
undying the memory of the dead; all other rules of sacral law in this fie
are subsidiary to this, for example in laying down who shall perform suc
rites, and Cicero here diverted his argument into an attack on the Scaevo
for obscuring this basic duty with the complications of civil law,
instance in finding a way for a substantial legatee to avoid the burden of
the rites (23). He goes on to tell us that it was sinful to bury in a grave a
corpse from an alien clan (24), in this context clearly a matter of sac
law, not public or private law as in the passage on violation of sepult
quoted in the previous paragraph; it was the approval by the pontiffs
the correct rites that made a place of burial religiosus (25), presumably a
approval implicit in most cases. The distinction is clearly drawn in t
dialogue at this point between the ius pontificale which has gone bef
and what lies in legibus which Cicero deals with next; so the dialogue lead
on to the quotation from the Twelve Tables of the prohibition on bu
or cremation within the City, of the removal of pyres from buildings, a
of the inability to usucape the entrance court of a tomb. He then ci
other rules based on custom, and seemingly in his mind part of the secu
law, concerning funeral games, laudationes and restrictions on mourning

(17) One finds sumptuary legislation in other times of crisis, e.g., the /. Oppia of 215 B
(18) 10.10: Forum bustumve usu capi vetat.
(19) F. de Visscher, op. cit., pp. 148-50.
(20) De leg. 2.26.64: Poenaque est "si quis bustum aut monumentum aut colum
violarit, laeserit, fregeriť.
(21) De leg. 2.19.47.
(22) perpetua sint sacra.
(23) De leg. 2.21.52-3, cf. A. Watson, The Law oj Succession in tne Later Koman
Republic, Oxford 1971, pp. 6 and 7.
(24) De leg. 2.22.55 : extra sacra et gent em inferri fas negent esse.
(25) De leg. 2.22.57.

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178 The Irish Jurist, 1975

he goes on to ascribe to Solon the ruling mentione

violation or destruction of tombs, etc. and to Demetriu
that funerals should take place before daybreak (26), a
repeated by the Emperor Julian in A.D. 363 (27). Af
of the law as it was among the Athenians, and also
the Romans, Cicero turns to Plato who would not
used for burials and also would limit the size of any
with these notices he closes his review of the laws rela
From Cicero's time onwards we have a wider range o
on our topic. Quite a considerable body of priva
burials and burial grounds even though it does not
them. One of the causes of legal complication was th
particular, it was perfectly lawful in both sacral and s
someone anywhere, or at least anywhere on one's ow
another's ground with the owner's permission was
burial on another's ground against the owner's will mig
religiosus but would not do so if the pontiffs declared
If it was held to have become locus religiosus , and
available for commerce, the injured owner had an actio
price of his land (29); a cenotaph, a monument to s
where, did not make where it stood religious (30). On t
landowner threw out bones or a body without havin
the pontiffs or the emperor, he was liable for iniuria
private law there were situations, such as the buria
deceased in land that was left conditionally while th
pending, where the site did not become religiosus (3
in many other sacral matters, counted as much as a fr
cemeteries, particularly attached to towns; we know
gates of Rome, for instance the Esquiline Field or t
the via Flaminia, but the Romans saw no need for an e
our conventions insist on, though the English Buri
Act 1880 says that no parson is bound to conduct
secrated ground but that he may do so if he wishe
burials are those of executed convicts, suicides, the
excommunicate. An excellent example of the diffi
organised burials could create is the sententia Senec
of the defender, Rufinus, had bought certain bui

(26) De leg. 2.26.66.

(27) C.Th. 9.17.5; there is no apparent link with the early la
have been in his mind.
(28) D. 11.7.41, Callistratus, and 11.7.43, Papinian.
(29) D. 11.7.7 pr., Gaius.
(30) D. 11.7.6.1, Ulpian.
(31) D. 11.7.8 pr., Ulpian.
(32) D. 11.7.34, Paul.
(33) ILS 8391 =FIRA 3.86.

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 The Roman Law on Burials and Burial Grounds 179

land; the buildings were unencumbered with any sepulchre so the sale
was good so far as it concerned them, but the fields had so many tombs
scattered through them (34) that they were res religiosae and no title to
them could be transferred to the buyer; however the family of the original
seller, the Patulci, could not claim title to the land which was in the
possession of Rufinus; Senecio had inspected the site himself and the
inscription breaks off where it appears that he was to confirm the right of
the Patulci to keep up the tombs. We have this particular case to illustrate
that Ulpian's statement of the law (35) was not superfluous; a clause in
the contract excluding any ground which was religious or sacred from the
sale was valid if the land was of large enough area not to be materially
diminished; as with the sale of a freeman the jurists gave the innocent
buyer an action on the sale even though the contract was strictly void (36).
The Patulci then may have been given access to the tombs; this problem
of access for the continuing duty of performing the family sacra led to a
special development in the law of servitudes. We find a group based on
iter designed to ease such performance, for example an inscription to a
sandalmaker (37), where there is recorded a hut and a cistern for the care
of the monument together with right of access and movement around the
monument and of drawing water and gathering firewood; a very similar
inscription with detailed provisions for making due sacrifice can be dated
to A.D. 149 (38); then there is the memorial to C. Novius Minyas (39)
who granted for the better care of his sepulchre a walled garden with
buildings, 280 feet along the front by 360 feet deep, and a right of way
through the greater gate of the Meropian estate; Augustus left around his
mausoleum a substantial area to be used as a public park (40); another
very brief inscription (41) simply says "a frontage of ten feet, twenty feet
in depth; the right of way to the monument is to be six feet wide". The
essentially private law nature of such arrangements is well illustrated by
a text of Paul (42) pointing out that a right of iter ad sepulchrum can be
surrendered to the owner of the servient land, and that it can also be
acquired after the tomb has made the place religiosus, and indeed there
is an inscription (43) which mentions such a purchase of a right of way, a
further right of access to a well and the right to draw water. Ulpian tells

(34) plurima et dispersis locis sepulchra.

(35) D. 18.1.22, 24.
(36) D. 18.1.4, Pomponius, and the popular view of this was probably the practical one
that a sale was possible: see, e.g., ILS 8269: huic monimento vendundi potestas
nulli sit.
(37) ILS 7249= FIRA 3.84a.
(38) ILS 8364= FIRA 3.84b.
(39) ILS 8345.
(40) Suet., Aug. 100.
(41) ILS 8354.
(42) D. 8.1.14.1.
(43) ILS 8356.

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180 The Irish Jurist , 1975

us (44) that where a seller of land had reserved a site

a right of access was then implicit; in other cases if
tomb had no servitude right and had been denied acc
land owner, it was proper to seek a grant precario ( 4
tion (46) records the judgment, presumably as an arbiter
imperial freedman, giving a 2' foot right of way to and
monument. But Ulpian goes on to tell us that a provi
presumably also the Urban Prefect) could extra ord
compel the creation of a servitude at a just price. Admin
here impinging on private affairs.
Tombs and sepulchres frequently carried inscriptions
generally - the widespread "hoc monumento dolus m
we also find attempts at warding off more specific evils,
to us; a certain Marcus Camurius had a monument for h
on it was engraved this fact and the warning "Si hoc
candidati nomen inscripsero, ne valeam" (47). Another
appears in a memorial to a veteran on which is wri
urinam faciat" (48), and another inscription from early
A.D. echoes the Twelve Tables "huic monumento ustr
licet" (49). These all seem to be threats or expressions
are other cases where if some offence is committed agai
the tomb, a penalty is given for which the heir of the
which is forfeit to some body like the local town council
the Roman treasury. In Spain someone ordered his f
any more remains in his tomb on penalty of 10,000 s
the fellow freedmen of the offender (50); one of Hadria
his sepulchre protected by a penalty of 30,000 sester
pontifical chest (51); on a young decurion's tomb at P
that any disturbance of it makes due a fine of 20,0
municipality (52); the freedman of an imperial aunt
down or had prescribed for him a penalty of 20,000 s
the aerarium for any attempt at selling or buying t
from which the informer was to take a quarter (53); ma
tions (54) record such indirect means of procuring offic
their burial places.

(44) D . 11.7.10.
(45) D. 11.7.12 pr.; it may be such a limited grant in ILS 8359.
(46) ILS 8363.
(47) ILS 8205. "Woe to the writer of political slogans", cf. ILS 8206-07a.
(48) ILS 8203=FIRA 3.83h; this should, I suppose, be translated "Commit no
nuisance".
(49) CIL 6.4410=FIRA 3.83g; "it is forbidden to light a fire beside this monument".
(50) ILS 8212.
(51) ILS 8227.
(52) ILS 8236.
(53) ILS 8217.
(54) E.g., FIRA 3.83k-r.

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 The Roman Law on Burials and Burial Grounds 181

The line between public and private was, however, narrow; it is not
clear what force there was in the inscription from Verona which simply
said "Stercus intra cippos qui fecerit aut violarit nei luminibus fruatur"
but the awful warning suggests to me that this was a private sign (55)
A very similar notice was put up around 80 B.C. by a praetor, acting on
the recommendation of the Senate, marking the stones at the limits of the
cemetery used by the poor in the Campus Esquilinus; on the city side o
this boundary there were to be lit no cremation fires nor were corpses
or dung to be dumped; on another stone was painted "Keep your dung
away or suffer for it" (55). The prohibition on burning comes from th
Twelve Tables, and we have seen it occurring in a private inscription.
Both it and the check on refuse we find earliest in a decree of the Senate
known as the SC de pago montano (57), also dealing with the Campus
Esquilinus. This imposed on the plebeian aediles the duty of making
sure no fires were lit, no dung heap made, no earth thrown (perhaps earth
closets?) within the cemetery, which was perhaps reserved for inhumation
burial because of the fire risk. (Though note that there were in Rome
crematoria; Ashby's Topographical Dictionary lists among others the
ustrinum domus Augustae in the Campus Martius and the ustrinum Anton -
inorum). The aediles seem to have had powers of seizure and fine to enforce
these prohibitions. In another inscription from Rome (55) we find a
family tomb where it is left to the aediles to permit burials. The aediles,
as part of their cura urbis , were the magistrates responsible for the general
control of graveyards and funerals; we find evidence for this even in the
poets (59). In the provinces it was the duty of the governor to see that
bodies or bones (after cremation) were not delayed or maltreated but were
allowed the use of the public roads on their way to burial {60). There was
also the praetor's interdictal protection (61). So clearly the magistrates
exercised a degree of public control over such matters even where the
private law prevailed.
Public law has a more specific role to play in dealing with the
municipalities; but the law of the end of the Republic seems essentially
the same as that of the early Republic. There is a fragment, which seems
to be part of a colonial law, which lays down that an unauthorised
burial - we do not know what this means in the context - incurred a
fixed penalty and was not to make a place locus religio sus; anyone could

(55) ILS 8207b. "May he who puts refuse within these boundary stones no more enjoy
the light".
(56) ILS 8208= FIRA 1.53; stercus longe auf er ne malum habeas.
(57) ILS 6082= FIRA 1 .39.
(55) ILS 8388=FIRA 3.85f.
(59) Ovid, fast. 6.663-4: Adde quod aedilis, pompam qui funeris irent . artifices solos
iusserat esse decem.
(60) D. 11.7.38, Ulpian.
(61) D. 11.8.1, Ulpian.

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182 The Irish Jurist , 1975

plough such land, but apparently no one was to kee

been suggested (63) that this curious prohibition is c
cemetery was a public place, to the aediles' restrictio
animals near the highway. I find this unsatisfactory
point here is that there is not a proper burial ground; b
of a likely explanation for the bees, unless this is a quit
tion on, for example, keeping bees anywhere without li
have thought ploughing likely to disturb the corpse or
obvious text linking corpses and bees is from Virg
that a swarm of bees can be acquired de novo by puttin
calf (64), but I do not feel that this curious piece of adv
lex coloniae Genetivae Iuliae seu Ursonensis (65) is a m
organisation in many ways. Paragraph 73 forbids t
bodies, burials and cremations within the formal limits
also the building of funeral monuments ; such building w
by the municipal magistrates {duumviri or aediles),
brought within the city, they must make the necessary
an actio popularis for 5,000 sesterces for any offence ag
Paragraph 74 kept new burning mounds at least half a m
on pain of a 5,000 sesterces fine, also obtained through
As well as keeping graveyards and crematoria at a de
law to some extent also dealt with the offence of vi
praetor gave an actio de sepulchro violato certainly from
this seems to have been an actio popularis from the
quod vi aut clam may have preceded it and, on de Vi
Twelve Tables dealt with it. There is one early piece of i
probably from Augustus, threatening capital pénal
tion (66), but it seems not to have been a general law
with some local custom in the Eastern part of the Em
third century do we get a change in the State's attit
violation of sepulture certainly a crime rather than
not be coincidental, as Christianity was spreading in
governing classes, that it is about this time that the
acquired as yet unofficial control over the graves of
De Visscher sees the end of a private and individua
replaced then by the beginnings of canon law; he repor
(A.D. 236-50) "multas fabricas per cimeteria fieri iuss

(62) C.I.L. 1.1 409= Bruns7 33: . . . qui volet exarato. Item ne quis
(63) Ancient Roman Statutes, ed. A. C. Johnson, P. R. Cole
Bourne, University of Texas Press 1961, p. 128, footnote 2.
(64) Georgics 4. 295-315.
(65) ILS 6087= FIRA 1.21.
(66) FIRA 1.69.
(67) See briefly my "Blasphemy and Sacrilege in Roman Law" (1973) 8 Ir. Jurist 356,
363-65.
(68) Le droit des tombeaux romains, p. 276. "He ordered many works to be executed
in the graveyards."

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 The Roman Law on Burials and Burial Grounds 183

Not that there had not been a third strand in the control of burials;
sacral law naturally had always had some part to play. Mostly the pontiffs
seem to have been concerned with things like the kind of animal to sacrifice
or who was properly called heir and so entitled to burial in the family
tomb, but they also defined the point at which a locus became relig-
iosus (69), deciding, as we saw, that it did not do so if the burial was in a
public place, res publica rather than res communis . One specific function
of theirs was to authorise the transfer of a corpse when flood threatened
or a sepulchre became dangerous or there was some other good reason (70);
I cannot find any case of a highway being routed through a graveyard wit
the consequent problems modern law has to face in this circumstance (71).
Nowadays canon law controls exhumation and reburial but in the contex
of what is permitted by the law of the state. An inscription (72), probably
of the first century B.C., records that the college of pontiffs decreed that
the body of a girl could be moved; similarly an inscription of A.D. 13
records (73) the moving of thirteen year old remains "by the permissio
of the college of pontiffs". Pliny addressed a similar problem to Traja
as pontifex maximus (74); Trajan replied that it was hard for provincia
to have to take such matters to Rome, and that Pliny should follow loc
custom. But we see here the origin of the interpolated "seu iussu principis"
when Ulpian, writing on the edict, made the point that such jurisdictio
belonged to the pontiffs (75). (Paul incidentally tells us that where th
body is in different bits there is still only one locus religiosus, and that is
where the head is (76).) Marcian (77) quotes a decree of the Divi Fratre
forbidding disturbance of a corpse, but permitting the transfer of a coffi
with its contents to some more convenient place if circumstances required
A place where a coffin was left temporarily, as in the carriage of Augustu
body from Nola to Rome (78), did not become religious (79). There is
singular inscription (80) where bodies were moved permissu trib. plebi
it may just be possible that this refers to the emperor. Another task that
fell under sacral rather than public or private law, at least until the Later
Roman Empire, was the repair of tombs and monuments; an inscrip
tion (81) asking the pontiffs' permission to repair a monument confirm

(69) Cicero, de leg . 2.23.58 again.

(70) E.g., I.L.S. 8380.
(71) E.g., Re St. John's, Chelsea [1962] 2 All E.R. 850.
(72) I.L.S. 8381 =FIRA 1.63.
(73) C.I.L. 6. 1884= FIRA 3, 85e.
(74) Ep. 10.68-9.
(75) D. 11.7.8 pr.
(76) D. 11.7.44.
(77) D. 11.7.39.
(78) Suet., Aug. 100.
(79) D. 11.7.40, Paul.
(80) I.L.S. 8389.
(81) I.L.S. 8382=FIRA 3.85°.

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184 The Irish Jurist, 1975

Ulpian(#2): "pontífices explorare debebunt qu

desiderio reficiendi operis medendum sit". Marci
is forbidden to make the state of a tomb worse, but
collapsed monument provided one does not touch
There seems a fairly clear division between the 7
pagan period from the Twelve Tables on and
Justinian's Code most of the constitutions in th
sumptibus funerum (84) are, unusually, from Diocle
Many of them are confirmations to particular
legal rules, for example Caracalla tells a certain Hilar
land against his will will not make it religious (8
woman called Faustina that a locus religiosus cann
land adjoining a funeral monument can undou
Diocletian confirms that the right of burial may
heirs but not to someone who is neither (87). Others
Caracalla's rescript to Dionysia, whose son's grav
river, giving power to the provincial governor to au
the body and its reburial (88). But we are clearly in
Republic; it is just that in the declaration of sacral l
replaced the pontiffs and in secular law they are in t
ing the jurists. Alexander Severus laid down (89) t
divide among themselves a family tomb but could
again (90) that a monumental inscription could
rights of sepulture or ownership of unaffected l
praescriptio might avail them if there was a iusta ca
that a man could add statues and other ornamen
monument as long as it was not prohibited (91), whi
to the operis novi nuntiatio which Pomponius (92
from the builder of a tomb. In sum, private law, in
among themselves, had still a part to play in the th
But the few texts we have from the Christia
concerned with private rights. Gratian, Valentini
concerned to prevent illicit burial within the City b

(82) D. 11.8.5.1 : "if a place is religious, the pontiffs should

to meet the need of putting the structure in proper con
religion".
(83) D. 47.12.7.
(84) C.J. 3.44.
(85) h.t. 2.
(86) h.t. 9.
(87) h.t. 13.
(88) h.t. 1.
(89) h.t. 4.
(90) h.t. 6; this is to be distinguished from Ulpian's statement in D. 11.8.4 that long
possession did not avail the man without a right.
(91) h.t. 7.
(92) D.ll.8.3.

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 The Roman Law on Burials and Burial Grounds 185

wanted their own bodies to share a resting place with the remains of the
saints and martyrs (93); five years later there is another constitution
forbidding the transfer of corpses, which is clearly aimed against those
trafficking in relics (94); the undated and unprefixed constitution (95)
which prohibits payment for the moving of a body is presumably dealing
with the same problem. Justinian issued two Novels (96) on funeral
expenses. These, with Julian's prohibition of daytime funeral proces-
sions (97), are all the constitutions we have from the Later Roman Empire
on the topic of graves and burial grounds and this paucity is itself
significant. The evidence from inscriptions, as I have found them in
Dessau's representative selection, shews a similar decline in interest from
the point of private or even public law, though people were still concerned
with keeping their tombs exclusive. One of many examples from Salo in
Spain records the burial in A.D. 358 of a deacon and his wife with a
penalty of 50 pounds of silver to be paid to the local church if the tomb
were opened (98). Others trusted to good feeling; Flavius Alatancus and
his wife Bitoria besought all the clergy and the whole brotherhood (of
believers) that no one else should be buried with them, for it is written
"Do as you would be done by" (99); another grave records: "Here lies
in peace Honorata, wife of Tzittanus, who lived in this life 40 years and
was laid to her rest on 1st February, 568. 1 pray to Almighty God and to
Jesus Christ of Nazareth that you do not touch me nor violate my sepulchre
as you shall answer for it before the judgment seat of the eternal lord" (100).
Under the Christian régime there was little room for private law; to
take, for example, the ownership of tombs, in English canon law a tomb-
stone actually belongs to the man who erected it and either his heirs or
possibly the heirs of the commemorated deceased, but the faculty jurisdic-
tion of the Ordinary, the bishop, leaves hardly any effective right of
ownership (101). This organization by the Church for the faithful predates
the Later and Christian Roman Empire. Pope Dionysius (259-263)
ordered that individual churches should be in the charge of individual
priests, and each was to have his own right in his parish and cemetery (102).
It is apparent that, perhaps linked with the Christian belief in the resurrec-
tion of the body, the Christian hierarchy was starting to exercise a control
over burials of a different order from the restrictions of pagan law. Some

(93) C. Th. 9.17.6=C.J. 1.2.2.

(94) C. Th. 9.17.7 =C. J. 1.2.3 and 3.44.14.
(95) C.J. 3.44.1 5 =Bas. 59.3.15.
(96) Novels 59 and 60, dealing mainly with the guilds' burial clubs, and with preventing
creditors interfering with the dying and the dead.
(97) Ch. Th. 9.17.5.
(98) I.L.S. 8254.
(99) I.L.S. 8257= FIRA 3. 80y: quod tibi fieri non vis, alio ne feceris .
(100) I.L.S. 8258.
(101) E. G. Moore, An Introduction to English Canon Law, Oxford 1967, p. 101.
(102) Gratian II C. 13 q.lc.l : ecclesias singulas singulis presbiteris dedimus; parrochias
et cimiteria eis divisimus ut unicuique ius proprium habere statuimus .

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186 The Irish Jurist , 1975

of the earlier prohibitions began to be ignored or abando

law; the secular authorities, as we have seen, had en
intra mural graves, if only to prevent churches built ov
being overwhelmed with the burials of the devout, bu
Council of Braga permitted burials around the walls o
old ban was soon put aside (103), In France this exclus
was given effect again in a law of 1804 which placed them
outside a town; and this same law gave to the maire gene
control of cemeteries in the interests of order, decency
a role rather similar to that of the aediles. Other prohib
been the concern of secular law we find later enforc
admittedly it is a jump to the early thirteenth century,
height of the dominance of ecclesiastical jurisdiction Inn
ing that land set aside for burials cannot be sold {10
control for the church was in the consecration of gravey
more than the simple recognition of res religiosae by
Codex Iuris Canonici expects the diocesan bishop to p
secration or at least a benediction (/05); modern E
insists on the bishop's participation in the consecrati
Such consecration was clearly normal and indeed nece
century, and quite likely earlier, as can be seen from Greg
In 587 Gregory wrote to the abbess of Poitiers to p
Queen Radegund who had founded the monastery; t
"What shall we do if the local bishop does not come? f
she should be buried has not been consecrated"; clea
time, for Gregory attended the funeral a few days later
The absence of private law is the outstanding differen
régime of burials and burial grounds in the period o
classical Roman law, and that which we observe in the Ch
succeeded that régime, and in the secularized modern
secular law, has in recent centuries gained again in
expense of canon law, which had more than replaced the
pontiffs; we have given some French examples, and
instance, the Town and Country Planning Act 1944
considerable powers, by which the appropriate minis
could make orders modifying the effects of consecrat
of the pagan period were not in practice as outside co
of the law allowed, but they were largely private, and w
hedged about with the restrictions of mediaeval canon
planning legislation.

(103) R. Naz, Dictionnaire de Droit Canonique 111 , Paris 1942, c

(104) Decretals III 28.13.
(705) canon 1205 § 1.
(705) De gloria confessorum , eh. cvi, as quoted by Naz, op. cit., c
(707) The History of the Franks , Penguin 1974, ix, 2.
(108) S. 28.

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