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.
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