No Crime Unless Clearly Forbidden by Law
To burn a dead body, instead of burying it, is not a misdemeanor, unless it is so done as to amount to a public nuisance.
If an inquest ought to be held upon a dead body, it is a misdemeanor so to dispose of the body so as to prevent the coroner from holding the inquest.
The Court was asked, whether it is a misdemeanor at common law to burn a dead body instead of burying it.
Held: The jury was directed to acquit the defendant. Stephen J said: ”the great leading rule of criminal law is that nothing is a crime unless it is plainly forbidden by law.’ . . and ‘After full consideration, I am of opinion that a person who burns instead of burying a dead body does not commit a criminal act, unless lie does it in such a manner as to amount to a public nuisance at common law. My reason for this opinion is that upon the fullest examination of the authorities, I have, as the preceding review of them shews, been unable to discover any authority for the proposition that it is a misdemeanor to burn a dead body, and in the absence of such authority I feel that I have no right to declare it to be one . .
It is not my place to offer any opinion on the comparative merits of burning and burying corpses, but before I could hold that it must be a misdemeanor to burn a dead body, I must be satisfied not only that some people, or even that many people, object to the practice, but that it is, on plain, undeniable grounds, highly mischievous or grossly scandalous. Even then I should pause long before I held it to be a misdemeanor, for many acts involving the grossest indecency and grave public mischief – incest, for instance, and, where there is no conspiracy, seduction or adultery – are not misdemeanors, but I cannot take even the first step.’
Stephen J
[1884] UKLawRpKQB 17, (1883-1884) 12 QBD 247
Commonlii
England and Wales
Crime
Leading Case
Updated: 02 November 2021; Ref: scu.655021