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Res Religiosae and the Roman Roots of the Crime of Violation of Sepulchres

Document Cited in Related
Vincent
DOI10.3366/elr.2018.0503
Author
Pages347-367
Published date01 September 2018
Date01 September 2018
INTRODUCTION

Violation of sepulchres is a common law crime in Scotland.1 The essence of this crime is the occurrence of some unauthorised and irreverent interference with a corpse which has been buried or otherwise entombed.2 The crime penalises all unlawful interference with interred cadavers,3 from gross abuse of the body once it has been dug up,4 to very mild or slight disturbance of the body while it remains in its grave.5 Consequently, the human corpse while it is buried is not subject to the ordinary laws of property and does not benefit from the ordinary legal protection offered to the integrity of proprietary rights.6 The nature of the crime of violation of sepulchres is such that the unauthorised removal and carrying-off7 of a cadaver from its resting place will not amount to the crime of theft,8 but will rather be tried as this distinct crime.9

Unlike the position in England, where there is a long-established general rule precluding the existence of ‘property’ in corpses10 (whether buried11 or unburied),12 there is significant Scottish authority to suggest that corpses here can be the subject of theft,13 provided that the corpse is appropriated prior to its burial.14 The courts of England and Wales, and, indeed, the wider Common law world, have been forced to employ “creative judicial reasoning” to escape from some of the more absurd consequences of the “no property in a corpse” rule,15 and so the position ostensibly adopted by Scots law is preferable.16 There are a number of good reasons for treating unburied bodies as capable of being owned, not as an exception, but as a rule, not least to protect the interests of laboratories in respect of tissue samples and museums in respect of exhibits.17

With this in mind, it is notable that the reason why, precisely, a cadaver ceases to exist within the ambit of property law once interred is presently under-theorised. Indeed, while it now appears settled that a corpse can be stolen prior to burial, but not once it has been interred,18 it has been noted that the law is silent on the subject of the lawfully exhumed cadaver.19 It is not yet known if a corpse which had, at one time, been buried but has since been lawfully removed from its grave remains nullius in bonis20 and thus incapable of being stolen, or if, in such circumstances, it becomes subject to ordinary property law once more.21 Leverick and Chalmers suggest two possibilities: either the body is completely removed from the auspices of ‘property’ after burial; or after burial ownership of the corpse falls to the Crown due to its earlier ‘abandonment’ in the grave.22 Neither of these two suggestions is satisfactory. The former possibility seems both arbitrary and irrational. The latter contradicts one of the the general purposes of funerary rites (that is, affording recognition to the memory of the deceased) and fails adequately to explain why an interred cadaver cannot be stolen. As such, a re-analysis of this area of law is warranted.

This article suggests a third possible explanation for the present state of affairs. It is submitted that a res religiosa (an object not subject to the ordinary rules of property) is created in law when a body is placed to rest in a grave.23 This suggestion draws on the historic connection between the contemporary crime of violation of sepulchres and the Roman crimen violati sepulcri.24 This article expounds the reason for Roman law's treatment of interred cadavers as res divini iuris – things consigned to divine law – and posits that, notwithstanding the fact that post-Reformation Scots law was generally reluctant to recognise the existence of consecrated or ‘sacred’ grave-sites,25 the concept of res religiosae was nevertheless received into Scots law by dint of the evolution of the crimen violati sepulcri. If this is indeed the case, then it follows that a lawfully exhumed cadaver may, again, become the subject of theft, since the constitutive elements of any res religiosa return to their profane state in circumstances in which the body is separated from the grave-site.26

 THE ROMAN CRIMEN VIOLATI SEPULCRI

Roman private law was divided by Gaius and Justinian under three distinct headings. In their respective Institutes each jurist stated that “all the law that we make use of has reference either to persons or to things or to actions”.27 This tripartite division of law proved extremely influential. The later ius commune jurists and Scottish institutional writers employed and expanded upon it,28 ultimately developing the division of private law into four categories of persons, property, actions and obligations.29 This four-way division retains relevance in mixed and Civilian legal systems in the present day.30

As might be inferred from the evolution of the original tripartite division into a quadripartite division, and from the nature of that later division itself, the Roman ius quod ad res pertinet (the law pertaining to things) encompassed not only what would now be termed the law of ‘property’,31 but extended to cover what would now be understood as the law of ‘obligations’ as well.32 The Latin word ‘res’ itself must consequently be understood as meaning ‘thing’33 in preference to ‘property’ in translation, in spite of some claims that the word ‘thing’ is too ‘undignified’ a term to describe such an important area of law.34 Undignified and mercurial though the word may be,35 the use of this term allows for the most apposite interpretation of the Roman law as it pertains to res. Indeed, the mercurial nature of the English language understanding of the word ‘things’ reflects the “elusive”36 and indefinite nature of the word res itself.37

Res were, themselves, divided into two discrete sub-categories: the Roman jurists recognised the import and existence of both res corporales (corporeal things); and res incorporales (incorporeal things).38 Although some later commentators suggested that the jurists had only corporeal things in mind when considering the law pertaining to things,39 such a suggestion can be shown to be false by reference to the nature of the word ‘res’ as it is used in the context of the Gaian and Justinianic rerum divisione (the division of things).40 The res incorporales are explicitly listed as types of juristic things created by law to be amenable to ‘ownership’. Thus it can be inferred that, just as one might exercise dominium in respect of a res corporalis, so too might one exercise the same in respect of a res incorporalis.41

The claim that the word “…res, in Roman law, denoted anything that could form part of a person's property”42 can, however, also be shown to be false, again by reference to the original Roman sources. In their respective Institutes, the Roman jurists divided the law pertaining to things in two, separating the law of res humani iuris (things subject to human law) from the law relating to res divini iuris (things subject to divine law).43 Only things which fell into the former category could legally form a part of the patrimony of a legal person.44 Thus the divide is described as being one between res in nostro patrimonio – things which may be owned – and res extra nostrum patrimonium – those which may not.45

Gaius himself considered the separation of res divini iuris and res humani iuris to be the fundamental division of things. Later jurists would consider his division between the res corporales and res incorporales to be of greater significance.46 At the outset of Book II, the jurist explicitly noted two species of res divini iuris – res sacrae and res religiosae47 – before going on to state that certain things – the res sanctae – also fell to be considered under this heading due to their important societal function.48 Res Sacrae were ‘sacred things’ created when an object was consecrated as such by the authority of the Roman people.49 Res religiosae were dead bodies which had been “relinquished to the gods”50 – that is to say, corpses which had been reverentially buried.51 Gaius emphasises that res religiosae are created by the act of burying the dead in land owned by the burier or land in which the burier was authorised to place the body to rest.52 Unlike res sacrae, which depended for their existence upon an act of consecration from the church or state authority,53 or the res sanctae, which were protected by divine sanction due to their secular importance,54 the creation of res religiosae did not require the presence of a priest or the authority or sanction of the state.55

The fact that res religiosae could be created by any private citizen56 had the potential to undermine the law of private property.57 While the Republican jurists did not appear overly concerned with this potential issue,58 perhaps because interference with grave-sites carried no secular penalty59 and lawyers of that time period were content to leave the gods to take care of their own affairs,60 by the time of Justinian, the creation of res religiosae was regulated rather more strictly.61 It is stated in Justinian's Institutes that, while anyone could create a res religiosa,62 the body must either be interred in land owned by the burier, or in land co-owned by the burier with common consent of all co-owners (unless the land was previously used for sepulchre).63 A res religiosa could be created if the body was buried in land owned by another, or in land in which another enjoyed usufructus, but only in circumstances in which the other owner or holder of usufructus consented.64

Although the distinction between res mobiles (moveables) and res immobiles (immoveables, or heritable property) was of limited significance in Roman law,65 particularly when one considers the importance of this divide in later legal thought,66 res religiosae were exclusively immobilis in the post-Republican era.67 The cadaver was not, itself, a res religiosa,68 nor was any place in which the corpse was stored prior to or in preparation for burial.69 The act of interment...

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