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

Abstract

Violation of sepulchres is a common law crime in Scotland. This crime ensures that interred human corpses are not subject to the ordinary laws of property, but are instead protected under this distinct heading of law. While it now appears settled that a corpse can be stolen prior to interment, it remains unclear if a corpse which was once buried, but has since been lawfully removed from its grave, remains incapable of being stolen, or if it becomes susceptible to theft again when exhumed. This article suggests that the latter occurs in Scots law since a res religiosa – an object not subject to the ordinary rules of property – is created when the body is placed in its grave. This suggestion draws on the connection between the contemporary crime of violation of sepulchres and its Roman ancestor, the crimen violati sepulcri. The article suggests that though the overtly religious overtones of the term 'res religiosa' appears to be at odds with an increasingly secularised society, the law surrounding res religiosae functionally explains the absence of 'property' in buried bodies, thus providing a logical basis for the proposition that an unburied body may be stolen, but a buried body may not be.