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“Petty vexations applied to such a constitution of mind may certainly in time wear out the animal machine, but still they are not cases of legal relief: people must relieve themselves as well as they can by prudent resistance—by calling in the succors of religion and the consolation of friends; but the aid of courts is not to be resorted to in such cases with any effect.”
How much of spirit and vivacity is contained in the following sketch of the origin of a suit in Doctors Commons.
“Two persons marry together; both of good moral characters, but with something of warmth and sensibility, in each of their tempers; the husband is occasionally inattentive; the wife has a vivacity that sometimes offends and sometimes is offended; something like unkindness is produced, and is then easily inflamed; the lady broods over petty resentments, which are anxiously fed by the busy whispers of humble confidantes; her complaints, aggravated by their reports, are carried to her relations, and meet perhaps with a facility of reception, from their honest, but well-intentioned minds. A state of mutual irritation increases; something like incivility is continually practising ; and, where it is not practised, it is continually suspected; every word, every act, every look, has a meaning attached to it; it becomes a contest of spirit in form, between two persons eager to take, and not absolutely backward to give, mutual offence; at last the husband breaks up the family connexion, and breaks it up with circumstances sufficiently expressive of disgust: treaties are attempted, and they miscarry, as they might be expected to do, in the hands of persons strongly disaffected towards each other; and then, for the very first time, as Dr. Arnold has observed, a suit of cruelty is thought of; a libel is given in, black with criminating matter; recrimination comes from the other side; accusations rain heavy and thick on all sides, till all is involved in gloom, and the parties lose total sight of each other's real character, and of the truth of every one fact which is involved in the cause.
“Out of this state of darkness and error it will not be easy for them to find their way. It were much to be wished that they could find it back again to domestic peace and happiness, Mr. Evans has received a complete vindication of his character. Standing upon that ground, I trust he will act prudently and generously; for generosity is prudence in such circumstances. He will do well to remember, that the person he contends with is one over whom victory is painful; that she is one to whom he is bound by every tie that can fasten the heart of one human being to another; she is the partner of his bed!—the mother of his offspring ! And, if mistakes have been committed, and grievous mistakes have been committed, most certainly, in this suit, she is still that person whose mistakes he is bound to cover, not only from his own notice, but, as far as he can, from that of every other person in the world. “Mrs. Evans has likewise something to forget; mistakes have been made to her disadvantage too in this business: she, I say, has something to forget. And I hope she has not to learn, that the dignity of a wife cannot be violated by submission to a husband.” We find him occasionally indulging in a strain of graceful humor, never forgetting however the dignity of a judge or the decorum of a gentleman.
“The basis of the fact is extremely slight, and all beyond it is color—is exaggeration—is passion. It has been pleaded that Mr. Evans accustomed himself to distress his wife by making a violent noise with a hammer close to her, while she was in a very weak and sickly state. I do not believe that it could have entered into the conception of the most ingenious person in this country to have imagined how this would have ended—to have imagined that it should end in this gentleman's cracking almonds in an adjoining room with a hammer, which, being proper for such a purpose, could be no very ponderous instrument; and his afterwards coming to eat them in his wife's apartment. I do protest it is so singular a conceit, that, if I did not see a great deal of unhappy seriousness in other parts of this cause, I might rather suspect that some levity was here intended against the court. I am sure of this, that if a man wanted to burlesque the ecclesiastical courts, he could not do it more effectually than by representing that such a court had
seriously entertained a complaint against a husband, founded on the fact of his having munched almonds in the apartment of his wife. An additional fact of cruelty is that he refused the nurse the elbow-chair. That, every one knows, is one of the high prerogatives of these ladies, and one would have expected that the nurse would have complained with no little acrimony on that account; but, on the contrary, she is examined, and I do not find that this circumstance of the elbow-chair has made that impression on her mind, which it seems to have done on that of Mademoiselle Bobillier, whose depositions are very descriptive, full of imagery and epithet, something in the style really of a French novel, or the trash of a circulating library.”
One of his most celebrated judgments in the consistory court was delivered in the case of Gilbert v. Buzzard reported in Phillimore's Rep. vol. iii. p. 346, a case which we cannot but wonder that the American editor of the condensed Ecclesiastical Reports had the heart to omit. This was a suit brought by a parishioner of St. Andrews, Holborn, against the church-wardens, for obstructing the interment of his wife. The body had been deposited in an iron coffin, and the church-wardens refused to permit the interment, on the plea that the burial grounds would be soon filled with iron coffins. The following is an extract from the judgment in that case.
“It may not be totally useless or foreign to remark briefly that the most ancient methods of disposing of the remains of the dead, recorded by history, are by burial or by burning, of which the former appears the most ancient. Many proofs of this occur in the sacred history of the patriarchal ages, in which places of sepulture appear to have been objects of anxious acquirement, and the use of them is distinctly and repeatedly recorded. The example of the divine founder of our religion, in the immediate disposal of his own person and those of his followers, has confirmed the indulgence of that natural feeling which appears to prevail against the instant and entire dispersion of the body by fire; and
has very generally established sepulture in the customary practice of christian nations. Sir Thomas Browne, in his ‘Treatise on Urn Burial, thus expresses himself (it is his quaint but energetic manner): “Men have been fantastical in the singular contrivances of their corporeal dissolution, but the soberest nations have rested in two ways of simple inhumation and burning. That interment is of the older date, the examples of Abraham and the patriarchs are sufficient to illustrate. But christians abhorred the way of obsequies by burning; and, though they stuck not to give their bodies to be burnt in their lives, detested that mode after death; affecting rather a depositure than absumption, and properly submitting unto the sentence of God, to return not unto ashes, but unto dust again.” But burning was not fully disused till christianity was fully established, which gave the final extinction to the sepulchral bonfires. The mode of depositing in the earth has, however, itself varied in the practice of nations. ‘Mihi quidem,” says Cicero, “antiquissimum sepulturae genus id videtur fuisse, quo apud Xenophontem Cyrus utitur.” That great man is made by that author to say, in his celebrated dying speech, that he desired to be buried neither in gold, nor in silver, nor in any thing else, but to be immediately returned to the earth. “What,’ says he, “can be more blessed than to mix at once with that which produces and nourishes every thing excellent and beneficial to mankind.” There certainly, however, occurs very ancient mention (indeed the passage itself rather insinuates it indirectly) of sepulchral chests, or what we call coffins, in which the bodies, being enclosed, were deposited, so as not to come into immediate contact with the earth. It is recorded specially of the patriarch Joseph, that when dead, he was put into a coffin, and embalmed; both of them perhaps marks of distinction to a person who had acquired other great and merited honors in that country. It is thought to be strongly intimated by several passages in the sacred history, both old and new, that the use of coffins, in our sense of the word, was made by the Jews. It is an opinion that they were not in the use of the two polished nations of antiquity. It is some proof that they were not, that there is hardly perhaps in either of
them a word exactly synonymous to the word coffin; the words in the Grecian language usually adduced referring to the feretrum, or bier, on which the body was conveyed, rather than to a chest in which it was enclosed and deposited, and the Roman terms are either of the like signification, or are mere general words, chests or repositories for any purposes, arca and arculus, without any funereal meaning, and without any final destination of these depositions in the earth. The practice of sepulture has also varied with respect to the places where it has been performed. In ancient times caves were in high request; mere private gardens, or other demesnes of the families, enclosed spaces out of the walls of towns, or by sides of roads: and finally, in christian countries, churches and churchyards, where the deceased could receive the pious wishes of the faithful who resorted thither in the various calls of public worship. In our own country, the practice of burying in churches is said to be anterior to that of burying in what are now called churchyards, but was reserved for persons of preeminent sanctity of life ;—men of less memorable merit were buried in enclosed places, not connected with the sacred edifices themselves. But a constitution imported from Rome, by Archbishop Cuthbert, in 750, took place at that time, and churches were surrounded by churchyards. In what way the mortal remains are to be conveyed to their last abode and there deposited, I do not find any positive rule of law or of religion that prescribes. The authority under which they exist is to be found in our manners rather than in our laws. They have their origin in sentiments and suggestions of public decency and private respect: they are to be ratified by common usage and consent, and being attached to subjects of the gravest and most impressive kind, remain unaffected by private caprice and fancy, amidst all the giddy revolutions that are perpetually varying the modes and fashions that belong to lighter circumstances in human life. That a body should be carried in a state of naked exposure would be a real offence to the living, as well as an apparent indignity to the dead. Some coverings have been deemed necessary in all civilized and christian countries; but chests containing the bodies, and de