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Just Published: Cemetery Law: The Common Law of Burying Grounds in the United States

Blogging Funeral and Cemetery Law: Historical Background

The second installment of Funeral and Cemetery Law, the blog version.  You can find the Introduction here.

Class Two: A Short History of Funeral and Cemetery Law

There are two phases in the historical development of U.S. funeral and cemetery law. From the Revolution to the the turn of the 20th century, the law was almost exclusively, common law. Since the early 1900s, the law has become increasingly statutory, and the framework of those statutes is the occupational licensing of funeral homes, funeral directors, and embalmers, and the licensure of for-profit cemeteries.

Later this semester we will examine the statutory regimes that regulation funeral service and cemeteries. But today's class addresses the first phase of historical development—the common law. As a general matter, U.S. common law is derived from English common law.  For example, Article I, Section 14 of the Constitution of the State of New York provides:

Such parts of the common law … as … did form the law … on the nineteenth day  of  April,  one  thousand  seven  hundred seventy-five… shall be and continue the  law  of  this state … [b]ut all such parts of  the  common  law … as are repugnant to this constitution, are hereby abrogated.

This idea is contained in the constitutions or statutes of all states, and reinforced by the Supreme Court of the United States in the case of Van Ness v. Pacard (1829) where Justice Joseph Story made the following famous pronouncement about the adoption of the common law:

The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.

So the new United States adopted either the express pronouncements of English common law or, at least, its "general principles." But funeral and cemetery law posed a problem—the common law of England at the time of the Revolution had very little to say about funeral and cemetery law.  In the 18th century, English common law did not govern graves and cemeteries. Instead, the established Church of England had jurisdiction and authority over the disposition of human remains over the bodies themselves after disposition in the consecrated ground of a churchyard.

The state legislatures could have taken this opportunity to create a uniquely American body of statutory law on this subject, but beyond the random statute, they did not do so.  Instead, disputes fell to the courts to resolve. American courts attempting to address issues related to funeral and cemetery law could not find any general principles or doctrines in English common law, but that did not mean they were rudderless. Instead, as they often do when they cannot locate any binding precedent, they relied upon shared principles and values.  And in 18th and 19th century America, the culturally dominant principles and values were derived from the customs and practices of European Christians, particularly English Protestants.  So, even though U.S. courts could not and did not expressly adopt the ecclesiastical law of England (i.e. the law of the Church of England), they ended up relying heavily upon it when shaping U.S. common law regarding funerals and cemeteries.

To trace the source of U.S. funeral and cemetery law, our first stop is English ecclesiastical law (and, to a lesser extent, English common law).

But what is the source of English ecclesiastical law?  By the time of the American Revolution, the Church of England was Anglican–Protestant. But until Henry VIII decided he wanted to ditch Katherine of Aragon in favor of Anne Boleyn, the Church of England was Roman Catholic.  English ecclesiastical law is very close to canon law–the law of the Roman Catholic Church.   And what is the source of canon law?  Christian doctrine, certainly, but also Roman law. 

Therefore, the historical progression is:

  1. pre-Christian Roman law
  2. canon law
  3. English ecclesiastical law
  4. U.S. common law

Roman Law

So we begin with Roman law. 

In Chapter 2.2 of Cemetery Law, it is explained that there were several phases of Roman funerary practices.

1.  The first phase was the family tomb.  The author of Chapter 2.2 [Olinto L. Spadoni, in an excerpt from Tombs and Catacombs of the Appian Way (1891)] explains that in Rome, "family" was a different and broader concept–much closer to a clan, and included people unrelated by blood but united by close connection, such as slaves. All of the members of the family were entitled to be buried in the family tomb.  The family tomb was controlled by the paterfamilias, the head of the family, but it was not owned by him or by anyone else. Instead, Roman law distinguished between two kinds of property—res divini juris and res humani juris

What is the difference between these categories and why do we care?

Res divini juris is property subject to divine law.  It includes places that are sacred or religious in nature – temples, shrines, and tombs.  This is significant because under Roman law, res divini juris was the property of no one. According to the commentaries of Gaius: “Quod autem divini iuris est, id nullius in bonis est.”

Once a piece of land was classified as res divini juris, it stayed that way.  It could not be used for secular purposes. In modern U.S. law, we would understand this to be a perpetual dedication.

It was long the law in Rome that human remains could not be buried within the city walls.  44986_appian_tombsAs a result, family tombs lined the roads that led into town.  The most famous of these is the Appian Way, and it is still studded with the remains of tombs.

The Romans entombed intact bodies in their family tombs until around 78 B.C..  They then began to primarily dispose of bodies through cremation, and the cremains were placed in the family tombs.

Meanwhile, to the east and south, the Old Testament tells us that the Hebrews had long been practicing ground burial and entombment.

The Hebrews (as told by the Old Testament)

As you may recall, one of the central figures in the Old Testament is Abraham.  Abraham and his wife Sarah had a son, Isaac.  Isaac and Rebekah had two sons, Jacob and Esau. Jacob had twelve sons, the second youngest of which was Joseph

The story of Abraham’s family is important because it has been cited dozens of times in U.S. court cases, treatises, and works by those who created U.S. cemetery law as the baseline of allegedly universal funerary customs and practices.

We begin with Sarah’s death in Genesis 23.  After Sarah dies, Abraham purchases a field and cave from Ephron the Hittite, to create a buryingplace for “his dead.” 

4 I am a stranger and a sojourner with you: give me a possession of a buryingplace with you, that I may bury my dead out of my sight.

Note that Abraham did not ask for a place only to bury Sarah—he wanted to purchase land in order to establish a buryingplace for his dead. This suggests the establishment of a family tomb similar to those used by the Romans. The permanency of Abraham's buryingplace is reinforced later in Genesis. Fastforward to the death of Jacob, who died in Egypt.  When Jacob was on his deathbed, he asked his son Joseph to make sure that he was not buried in Egypt, but carried out of Egypt to lie with his fathers in the burying place established by Abraham.  Joseph swore that he would. According to Genesis 47:

29 And the time drew nigh that Israel must die: and he called his son Joseph, and said unto him, If now I have found grace in thy sight, put, I pray thee, thy hand under my thigh, and deal kindly and truly with me; bury me not, I pray thee, in Egypt:

30 But I will lie with my fathers, and thou shalt carry me out of Egypt, and bury me in their buryingplace. And he said, I will do as thou hast said.

31 And he said, Swear unto me. And he sware unto him. And Israel bowed himself upon the bed’s head.

Skip ahead slightly to Genesis 49:

And Jacob called unto his sons, and said, Gather yourselves together, that I may tell you that which shall befall you in the last days. …

29 And he charged them, and said unto them, I am to be gathered unto my people: bury me with my fathers in the cave that is in the field of Ephron the Hittite,

30 In the cave that is in the field of Machpelah, which is before Mamre, in the land of Canaan, which Abraham bought with the field of Ephron the Hittite for a possession of a buryingplace.

31 There they buried Abraham and Sarah his wife; there they buried Isaac and Rebekah his wife; and there I buried Leah.

32 The purchase of the field and of the cave that is therein was from the children of Heth.

33 And when Jacob had made an end of commanding his sons, he gathered up his feet into the bed, and yielded up the ghost, and was gathered unto his people.

So what are the principles that can be derived from this story?

The placement of remains matters, specifically:

  • It is important to be buried;
  • It is important to be buried with other members of the family; and
  • It is important to be buried in the “homeland."

The practices and customs in the Old Testament are important not so much as a historical record of what the ancient Hebrews actually did or did not do, but for the precedental value – what did Christians believe they did?

When Christianity began to infiltrate the pagan Rome, there were similarities and differences in practices: Pagan Romans practiced cremation; Christians believed in burial. Pagan Romans used family tombs.  The Hebrews did too, but the Christians believed that burial in consecrated ground was important. Pagan Romans buried people outside of city limits. Christians buried in churches and churchyards, which were largely inside the cities.

Why did Christians care about the burial of intact remains and burial in consecrated ground?

They believed in the resurrection of the dead.

For if the dead rise not, then Christ is not raised:  and if Christ be not raised your faith is in vain; ye are yet in your sins. Then they also which are fallen asleep in Christ are perished. If in this life only we have hope in Christ, we are of all men most miserable.

—1 Corinthians 15:16-18

The resurrection of the dead is the Christian’s confidence. By believing it we are what we claim to be.

—Tertullian, on the Resurrection of the Flesh

As Daniel Gibson wrote in Chapter 3.1 of Cemetery Law:

The Apostle Paul argued Christianity was in vain and Christians were without hope if the dead were not raised. Without resurrection, Christ had not conquered sin and Christians were saved for now but doomed the death in the afterlife. The Church Fathers, early Church creeds, and Ecumenical Councils expounded upon this belief. The Apostles’ Creed and Nicene Creed both affirm belief in the resurrection of the dead. The Councils clarified the physical, bodily nature of Christ’s life, death, and resurrection, thus affirming the bodily resurrection of Christians.

The doctrine of resurrection created a respect for the dead. Christian burial practices, therefore, disfavored cremation, dissection, and mutilation of the dead body. Catholic and High church Protestants (e.g. Anglicans, some Methodists, and some Presbyterians) afforded the body much respect, practiced ornate funerals, and some venerated the remains of saints and martyrs.  Low church Protestants (e.g. Presbyterians, Puritans, and Baptists) regarded such practices as superstitious Catholic beliefs harmful to the living and not beneficial for the dead. All Christians, however, agreed body and soul were united at resurrection. A corpse was not merely a useless, shell of a person; rather, it was a seed sown in hope of resurrection. The body would be raised eternal but how and when were divine mysteries.

English Law and Custom

As described in Chapter 5.1 of Cemetery Law, after the mission of Saint Augustine of Canterbury to Britain, the power over funerals and cemeteries was given to the ecclesiastical authorities.  According to the Ruggles Report [to be discussed next class]:

The exclusive power of the ecclesiastics denominated, in legal phrase, “ecclesiastical cognizance,” became not only executive, but judicial. It was executive, in taking the body into their actual, corporeal possession, and practically guarding its repose in their consecrated grounds; and it was judicial, as well in deciding all controversies involving the possession or the use of holy places, or the pecuniary emoluments which they yielded, as in a broader field, in adjudicating who should be allowed to lie in consecrated earth, and, in fact, who should be allowed to be interred at all.

So, the Church took remains into their care – they were held in trust until the resurrection.  The Church determined who would be entitled to be buried in consecrated ground and it also, as Ruggles notes, adjudicated all cases involving disputes over the dead, both in its role as the owner in fee simple of the ground in which they lay, but also as the dead’s spiritual guardian.

That was the state of things when America was settled, through the Revolution.  English ecclesiastical law controlled the dead and common law had very little to say on the subject.  American courts could get past the first problem—the silence of English common law—by indirectly using the principles of English ecclesiastical law. But a second problem arose—how do you adapt a system of laws that assume an established church to a country with no established church?  Who acts as guardian of the dead?  That is the question that the Supreme Court of the United States had the opportunity to address in Beatty v. Kurtz (1829).

Beatty v. Kurtz, 27 U.S. 566, 584 (1829)

In 1829, the United States Supreme Court was called upon to adjudicate competing claims of title to a parcel of land in Georgetown. Charles Beatty and George Frazier Hawkins laid out “Beatty and Hawkins’ addition to Georgetown” in 1769. A parcel was designated for the German Lutheran church to be used for religious purposes and the use of the congregation. The Lutherans erected a church and a burying-ground. Approximately forty years later, the church building “fell down” as a “consequence of inevitable decay,” although the parcel remained in use as a cemetery. The heirs of Beatty and Hawkins asserted that the Lutherans had conditional title to the parcel, which terminated when the church fell down and was not replaced. They entered the cemetery and “threw down the fence and tombstones.” The Lutherans filed a complaint to quiet title and for an injunction.

Justice Joseph Story, writing on behalf of the Court, affirmed a perpetual injunction against the defendants. 

This is not the 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 sepulchres 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 so 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 brief pronouncement—that the remedy must be sought in the protecting power of a court of chancery—established a foundational principle in the U.S. law of human remains: courts of equity have jurisdiction over the dead and serve as their protectors. Beatty v. Kurtz is also notable because it characterized the invasion of the cemetery not as a "mere private trespass" but as a "public nuisance."  What elevated the crime? Justice Story suggests that it is the need both to protect the "religious sensibilities" of the living and "the sentiment of natural affection of the kindred and friends of the deceased" as well as "the repose of the ashes of the dead." 

Although Story does not explicitly state that the dead deserve the protection of the courts, it is implicit given the facts of the case. The German Lutheran cemetery did not appear to be in recent use; it did not include fresh graves. It was not the friends and family of the deceased who were being privately injured, it was the community as a whole—it was a public nuisance. But why, absent a particular interest in the occupants of those particular graves, would the living care about the dead?  Justice Story does not propose an answer for that question, but appears to assume that the "sepulchres of the dead" and the "repose of the ashes of the dead" should be protected in their own right. The answer may be that in the 19th century, belief in literal resurrection was still strong—disturbing the graves in consecrated ground could have jeopardized the chances for the dead to be resurrected and find eternal salvation.

For the Next Class:

Topic: The Ruggles Report

Reading: Chapter 7 of Cemetery Law: The Common Law of Burying Grounds in the United States

Feel free to pose questions through the comment feature.

Tanya Marsh

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