Where does one find the right to bury the dead?
We started to investigate this in the last post, which described the origins of In re Widening of Beekman Street, 4 Bradf.Sur.R. 503, 522-23 (Sur.Ct. of N.Y. County 1856), or what’s commonly cited as “the Ruggles report.” As I explained in my recent CLE on the right of sepulcher, the report itself is as intriguing as its background.
First, he depends on the religious independence of the “commonwealth of New-York,” which he says is clear from its founding documents, and results in a sharp distinction between church and state. This, he says, points to the founders' “settled purpose to deliver both dead and living from ecclesiastical cognizance, to emancipate the courts of justice from every priestly or mediaeval fetter, and to allow them to breathe, through all coming time, the invigorating air of ancient, Anglo-Saxon freedom.”
Second, it includes a fascinating account of history, complemented by and expanded upon in later decisions such as Larson v. Chase and Melfi v. Mount Sinai Hosp. Ruggles goes back to Ancient Greek and Roman jurisprudence and traces the honor of the rights of the dead thence through the Saxons and Scandinavian invaders, and the Franks and Normans, and to the “self-aggrandizement” of the ecclesisatical courts.
Third is the extent to which natural law permeates Ruggles’s report. If reasoning can be said to be primal, his is—which befits a right he finds rooted in a nearly primal source, i.e. “the deepest and most unerring instincts of human nature.” Look what a pure and idealistic analysis this is:
“The insolent dogma of the English ecclesiastical law, that a child has no such claim, no such exclusive power, no peculiar interest in the dead body of its parent, is so utterly inconsistent with every enlightened perception of personal right, so inexpressively repulsive to every proper moral sense, that its adoption would be an eternal disgrace to American jurisprudence.
… The world does not contain a tribunal, that would punish a son who should resist, even unto death, any attempt to mutilate his father's corpse, or tear it from the grave for sale or dissection; but where would he find the legal right to resist, except in his peculiar and exclusive interest in the body?”
And of course, the report is also important for its holdings.
Neither a corpse nor its burial are subject to ecclesiastical law
The right to bury a corpse and preserve its remains are legal rights cognizable in a court of law
Absent a will, this right belongs exclusively to the next of kin
This right to protect the remains includes the right to preserve them by separate burial, to select the place of sepulture, and to change it at pleasure;
“That if the place of burial be taken for public use, the next of kin may claim to be indemnified for the expense of removing and suitably reinterring the remains.”
There’s a few remarkable things about this, which don’t necessarily square with decisions issued on the right of sepulcher since then. One is the specific reference to the absence of a testamentary disposition. Other cases have refused to recognize this right when it is referenced in a will - though they’re in the minority. Another is Ruggles’s recognition that the right of sepulcher includes the right to change the place of sepulcher at pleasure, which is a slightly more whimsical standard than courts have imposed since.
That the right of sepulcher is inextricable from existential questions which can never be answered makes the legal side of it rather satisfying. Though no one can know what happened to the man who was Moses Sherwood, we can at least resolve what should become of his remains.