How New York’s infrastructure created the right of sepulcher

The right of sepulcher - the right of a dead person’s next of kin to immediate possession of the person’s body for the limited purpose of ensuring a proper burial - isn’t often litigated. 

And although other areas of the law are also traceable to ancient traditions, such as property and contracts, there aren’t many where the history is as routinely cited or as key to the analysis as with the right of sepulcher. That the origins of this right are so specifically identifiable makes it especially interesting - so much so that I had to describe it to my colleagues in a recent CLE.

The first articulation of the right of sepulcher in US courts arose from the expansion of New York City. In the 1850s, the Brick Presbyterian Church - now on the Upper East Side - was located on Beekman Street in Manhattan, near the present base of the Brooklyn Bridge. It had a graveyard attached. As the city grew, local officials eventually decided to widen Beekman Street, which required some bodies in the graveyard to be relocated. 

One grave in the part to this property to be overtaken contained the body of Moses Sherwood, who was buried in 1801. His daughter, Maria Smith, wanted his remains re-interred in a place of her choosing. No one contested her right to this—in fact a fund of $28000 was set aside to account for these very costs—but given the novelty and sensitivity of the issue the Church wanted court direction.

The Surrogate's Court of New York County assigned the determination of the parties’ rights to one Samuel B. Ruggles. At the time Ruggles took up his post, by English jurisprudential tradition—which had apparently not been challenged on this issue in the US—a dead body was considered ecclesiastical property, under jurisdiction of the Church. In this context Ruggles identified the issue before him as whether Sherwood’s daughter was "entitled to payment … for the expense of re-interring the remains of her father, whose grave was taken away in widening the street? or to damages, for disturbing said grave?”

With this background, in the next blog post we'll see what happened.