Sweet Auburn: The Magazine of the Friends of Mount Auburn Lives of the Past Informing the Future | Page 5

sweet auburn | 2019 volume ii every person had the right to be buried in his or her parish churchyard, and the parish had the right to his or her body (and the fees assessed for burial). The Church took possession of the body after burial and served as its protector so long as it remained in consecrated ground. Seventeenth-century Anglican doctrine refers to the Church holding human remains “in trust” until the Second Coming of Christ. The body of law created by the Church of England to address matters under its authority, including cemeteries, was known as “ecclesiastical law.” Although many of the American colonies had rules consistent with ecclesiastical law, the states expressly refused to adopt English ecclesiastical law when they adopted English common law. The repudiation of ecclesiastical law and the lack of an established church in the United States meant that it was unclear who would serve as the protectors of the dead after burial. For decades, neither Congress nor the state legislatures acted to fill that void. It was Justice Story who finally established a protector for the dead in the United States, in Beatty v. Kurtz. The case of Beatty v. Kurtz, 27 U.S. 566 (1829) arose in the Georgetown neighborhood of Washington, D.C. Two developers established a subdivision in 1769 and designated one lot “for the Lutheran church.” A group of Lutherans took possession of the lot and established a church and burying ground. For decades, the Lutherans worshipped in the church; once that building decayed and was torn down, they continued to use the parcel as a burying ground. In the 1820s, the developer’s heirs decided that they were entitled to take control of the lot on the theory that it had been given to the Lutherans for church purposes and was no longer being used for worship. One of the heirs entered the lot and tore down fences and tombstones. A group of outraged Lutherans filed suit and the case quickly ended up in the U.S. Supreme Court. Justice Story, on behalf of a unanimous Court, wrote: This is not a case of a mere private trespass, but a public nuisance going to the irreparable injury of the Georgetown congregation of Lutherans. The property consecrated to their use by a perpetual servitude or easement, is to be taken from them; the sepulchers of the dead are to be violated; the feelings of religion and the sentiment of natural affection of the kindred and friends of the deceased are to be wounded; and the memorials erected by piety or love, to the memory of the good, are to be removed as to leave no trace of the last home of their ancestry to those who may visit the spot in future generations. It cannot be that such acts are to be redressed by the ordinary process of law. The remedy must be sought, if at all, in the protecting power of a court of chancery; operating by its injunction to preserve the repose of the ashes of the dead and the religious sensibilities of the living This paragraph establishes a few cornerstone principles of American cemetery law. First, the destruction of a cemetery is not a private harm but a public one. We are all damaged when a cemetery is disturbed, which means that it is society’s right and obligation to protect cemeteries. Second, it is not only the living who are harmed by the disturbance of graves, but the dead. Again, it does not matter if those ashes belong to any particular person who has a connection to a particular living person. Story establishes the foundation of the idea that the dead have the right to an undisturbed repose in perpetuity (an idea that was developed further by later courts). Third, Story identifies the guardian of the dead after burial in the United States, namely the courts. Normally, the default remedy for harm to a person or property is the payment of money. But Story had identified the harm as occurring to both the living and the dead. Money is of no use to the dead. So, extraordinarily, that meant that Story found protection for the dead in the “court of chancery,” which has the equitable power to issue injunctions to stop the destruction of cemeteries, and not merely to order the payment of money after disturbance has occurred. In Beatty v. Kurtz, Justice Story cites no case or law as the foundation for these revolutionary principles. Nearly a half century after the American Revolution, it was long past time for someone to invent cemetery law, and Justice Joseph Story did so. Tanya D. Marsh is Professor of Law at Wake Forest University School of Law. 3