1882 Scrapbook of Newspaper Clippings Vo 1 021

8

BURIAL LAW.

We are indebted to Mr. John H. Corwin, of New
York, for a copy of his very interesting and
scholarly brief in Johnston v. Marinus, 18 Abb. N.
C. 12

The action was brought by the brothers and sisters,
only next of kin, of Emma Marinus, deceased, against
her husband, the board of health of the city of Brook-
lyn, and the Greenwood Cemetery Association, to
prevent the removal of her remains from the receiv-
ing vault in said cemetery and their interment in the
burial plot of the husband in Cyprus Hills Cemetery.
The action was held not maintainable. Mr. Corwin,
as counsel for the defendants, submitted a brief, going
very learnedly into the cases on the subject, where
we have not space to follow him, and must content
ourselves with the following extracts:

"Everybody feels that the husband is the natural
guardian of the sacred dust of her whose honor it was
his duty to defend in life. The burial places and re-
mains of the departed have ever been sacred in human
history. The policy of our laws, statutory and un-
written, protects their sleeping places. There has
been no change in these human sentiments of rever-
ence and regard for the sacred dust of the dead since
the time
'When feelings were young and the world was new.'

"To cast so much as dust upon the remains of the
dead has been a sacred office from the burial of Abel
to the mariner who talked with the ghost of Archytas,
and from then till now. The living have desired
'beauty for ashes,' and in their life-time taken infinite
pains to secure an undisturbed repose in death.

"Shakespeare's bones would long ago have been en-
shrined in Westminster Abbey but for this epitaph:

'Good Friend for Jesus' sake forbear
To digge Y-e dvst Enclosed H E R E
Blest be Y-e Man Y-t spares T-Hs Stones
And cvrst be He Y-t moves my bones.'

"The history of mortuary customs from the earliest
times confirms the husband's right of sepulture.
Abraham was none too faithful a husband to Sarah,
for he twice said, for fear of Pharoah and Abimelech,
'She is my sister,' and resigned her thus to the em-
braces of other men, but we are not told that his next
of kin adduced this as a reason for intrusion upon his
right of burial. The purchase of the field of Ephron
for a private cemetery is the first recorded mercantile
transaction; as touching a story for the sentimental-
ist and as interesting to the economist. There Abra-
ham buried Sarah, his wife; there Isaac buried Re-
bekah, his wife; there Jacob buried Leah. It was Ja-
cob, and not the children of Laban, who set the pillar
upon the grave of Rachel; 'that,' says the sacred histo-
rian, 'is the pillar of Rachel's grave unto this day,' and
six centuries later her sepulchre was still preserved.
I Sam. x, 2. And so have men continued to bury their
wives and to be buried with them ever since. So that
the memory of man 'runneth not to the contrary' of
such a custom. Few, if any, have been those who
dared to assert a right in opposition to it; to the
credit of human nature, 'for sorrows humanize our
race:' and so husband and wife, with rare exception,
have been laid beside each other 'in mother earth's
cold, silent bosom,' and it has been thus that those
who were 'lovely and pleasant in their lives,' in death
'were not divided.' * * * Unto this day every in-
stinct of humanity, every sentiment of religion and
decency, suggest that it should be Jacob's pillar, and
not another's, upon the grave of every Rachel.

"The husband's exclusive claim is sustained by the
few text-writers who have given the matter attention.
Such is the view entertained by John F. Baker in an
interesting article 10 Alb. L. J. 70, entitled, 'Legal
Custodian of Dead Bodies -- Who is?' cited above.
Mr. R. S. Guernsey, who has written several learned,
and in some lines exhaustive, articles upon the burial
law, is of the same opinion. His articles, with many
others, are cited in a manuscript note by W. H. Win-
ters, of the New York Law Institute, to be found in a
copy of 'Wickes on Sepulture,' in the library of the
Institute, and here given in full. Its value merits a
wider dissemination. The claim of the husband as
against the next of kin is amply sustained by these
writers. See particularly interesting articles by R.
Vashon Rogers, Jr.: 'Funeral Meditations,' 18 Alb.
L. J. 458; 'Dissection and Resurrection,' 28 id. 106.
No writer has asserted the contrary except Mr. Moak
in his note to In re Bettison, 12 Eng. Rep. 656.

"The ancient Greeks and Romans were particular
to carry out the directions of the deceased respecting
the disposition of his body. Democritus wished to be
embalmed in honey, and it was done. Thucydides
says that the bones of Themistocles, by his own com-
mand, were privately carried back from Magnesia to
Attica, and buried there; and Plutarch tells us, that

at the request of Lycurgus, his ashes were thrown into
the sea. A similar story is related of Solon by Dio-
genes Laertius. Demosthenes (Timocr.) recites So-
lon's funeral law as follows: 'Let the dead bodies be
laid out in the house according as the deceased gave
orders,' etc. The body of Muna was not burned, as
was the usual custom, because he himself forbade it,
as Plutarch relates. In modern times universal re-
gard has been paid to these mortuary bequests, though
some of them have been whimsical enough, the most
noted perhaps being the well-known disposition made
of his body by Jeremy Bentham as a dried specimen
in a medical college.

"The law of New York more than follows these un-
written and ancient customs and the law of Solon, for
by a recently-enacted statute it is provided that 'a
person has the right to direct the manner in which his
body shall be disposed of after his death, and also to
direct the manner in which any part of his body which
becomes separated therefrom during his life-time shall
be disposed of.' This remarkable law provides for a
man, minutely, down to his teeth and toe-nails, and
certainly admits of splitting a hair if one be so in-
clined. It protects us from the rapacity of the sur-
geon, the dentist, the chiropodist and the barber.
Henceforth we may be buried, cremated or preserved
in alcohol. One may devote his intestines to fiddle-
strings or his skin to be made into parchment.

"In the case at bar the husband's moral claim, if not
his legal, is strengthened by the testimony that he
gives as to his wife's request to place her body where
it now lies, and afterward to remove it to a place
where, when the summons comes to him, his dust may
repose beside her own. She has said to him almost in
the language of Bryant:

'Leave at my side a space
Where thou shall come at last
To find a resting-place
When many years are past.'

"This was the highest evidence of the mutual affec-
tion and kindly existing between this hus-
band and wife. Hers was that deep love for her hus-
band with which Ruth clung to Naomi, saying: 'En-
treat me not to leave thee or to return from following
after thee; for whither thou goest I will go; and
where thou lodgest I will lodge; thy people shall be
my people; where though diest will I die, and there will
I be buried. The Lord do so to me, and more also, if
aught but death part thee and me.'

"The place to which the defendant intends to remove
the body is a suitable and permanent place of inter-
ment. If weeds have grown upon the defendant's
plot, it is hardly a matter of enough import for this
court to consider, besides who made your honors ar-
biters in matters of taste, however appropriate such a
selection might be? Weeds upon a grave, neglect of
the spot of burial, the absence of a monument, are no
necessary signs of want of reverence or affection for
those who lie beneath the sod:

'Praises on tombs are trifles vainly spent.'

It may be--
'There is an eye that could not brook
A moment on that grave to look.'

One who can say:
'I will not ask where thou liest now,
Nor gaze upon the spot;
There flowers or weeds at will may grow
So I behold them not;
It is enough for me to prove
That what I loved, and long must love,
Like common earth can rot;
To me there needs no stone to tell;
'Tis nothing that I loved so well.' "

Mr. Corwin appends the following list of "Law Lit-
erature of Burial Grounds Burials, etc.," by W. H.
Winters, Esq.: Grave-Yard Law, C. B. Elliot, 16 Cent.
L. J. (1883) 161-167. Law of Funerals and Graves, R.
V. Rogers, Jr., 18 Alb. L. J. (1878) 485-488. Property
in Cemetery Lots, William C. Schley, 19 Am. L. Reg.

Albany Law Journal
Mch. 9. '89

MOUNT AUBURN SIXTY YEARS AGO.

Just sixty years ago to-day - Sept. 24th, 1831 -
I was present at the consecration of Mount
Auburn (until then known as Sweet Auburn)
a very romantic spot and visited only by those
who sought retirement and solitude. I remem-
ber the day and the associations connected with
it distinctly. The exercises took place about
three o'clock of a Saturday afternoon. I was
then a boy of only seventeen, but seeing the
crowd wending their way thither, I eagerly
followed, and was well repaid for my long
walk to the spot where I found workmen busy
making ready the rustic seats in Consecration
Dell, where the services took place.

The day was one of the finest of our autumnal
days, bright and warm, the showers of the
morning made all things fresh and pure, and
when the procession arrived from Elmwood
(where the corporation had held a session) with
the old Brigade Band, the music and the scene
was truly inspiring. The address was by Judge
Story, and his name alone is sufficient to say
that it was pertinent to the occasion, and was
listened to with perfect silence by the vast
multitude, enabling him to be heard at the most
distant parts of the beautiful amphitheatre, and
then the hymn, in which not less than a thous-
and voices joined, as it swelled in chastened
melody, found an echo in every heart and per-
vaded the whole scene. It was a day and scene
never to be forgotten.

What changes have sixty years produced!
The native wildness of the place is now softened
and subdued by the hand of labor and art. The
native flowers now mingle their fragrance with
the flowers planted and cared for by the hand of
affection, and most of the trees found in
our forests are here to be seen. The visitor now
sees the marble urn and the obelisk marking
the spot where repose the relics of departed rela-
tives or where the living have provided resting-
places for themselves and families. Where but
a few years ago was the habitation of the field-
mouse and the squirrel, is now a city of the
dead, and in its ample bosom repose the rever-
end pastor, the venerable statesman, the accom-
plished jurist, the rich merchant, the soldier,
the philosopher and they who have earned their
bread by the sweat of the brow.

"There softly lie and sweetly sleep
Low in the ground.
The storm that wrecks the wintry sky
No more disturbs their deep repose."

The natural features of Mount Auburn are
admirably adapted for the purpose for which it
is held sacred. There is not in all the untrodden
valleys of the West a more secluded or more
appropriate spot for the religious exercises of
the living or for a Garden of Graves. When the
hand of taste shall supplement the luxuriance of
nature, we may challenge the world to produce
another such residence for the spirit of beauty.
Where else shall we go with the musings of
sadness or for the indulgence of grief; no
sweeter spot for the whispers of affection among
the living; none lovelier for the last rest of our
kindred and loved ones.

September 24th, 1891.
J. L.