44 
THE MODERN CEMETERY. 
The Law with Regard to Removal of Bodies. 
Of all things, it would seem as if the expressed 
or implied wish of a person as to his last resting 
place would be treated as the most sacred. Still 
there are persons, inhuman and improbable as it 
must sound, who will even go to the length of re- 
moving ancestral remains from valuable burial lots 
so as to sell the latter. Besides, there are many 
more removals for less censurable reasons which 
ought never to be permitted, if on no other ground 
than that they violate the will of the dead. 
The policy of the law is entirely against any re- 
movals alter interment, except for good cause. “A 
proper respect for the dead,” said Mr. Justice Pratt, 
in Secor’s case “a regard for the tender sensibilities 
of the living and the due preservation of the public 
health require that a corpse should not be disinterred, 
or transported from place to place, except under ex- 
treme circumstances of exigency.” “There is a vast 
difference,” the Philadelphia Court of Common 
Pleas declares, “between the question who is ori- 
ginally entitled to bury a human body and the 
question of the removal of that body subsequently 
to some other place of sepulture after it has been 
committed to the earth with the rites of religion in 
the presence of sorrowing relatives and friends. 
Questions which relate to the custody and disposal 
of the remains of the dead do not depend upon the 
principles which regulate the possession and owner- 
ship of property, but upon considerations arising 
partly out of the domestic relations, the duties and 
obligations which spring from family relationship 
and the ties of blood; partly out of the sentiment so 
universal among all civilized nations, ancient and 
modern, that the dead should repose in some spot 
where they will be secure from profanation; partly 
out of what is demanded by society for the preser- 
vation of the public health, morality and decency, 
and partly often out of what is required by a proper 
respect for and observance of the wishes of the de- 
parted themselves.” 
The Supreme Court of Rhode Island states, in 
the leading case of Pierce v. Proprietors of Swan 
Point Cemetery, that the right of a person to direct 
his place of sepulture is generally recognized. 
Strictly speaking, a dead man cannot be said to 
have rights. Yet it is common so to speak, and 
there is a qualified sense in which it is allowable to 
speak of the rights of the dead there being what 
may be termed “rights” which ought to be protect- 
ed. There is a duty imposed by the universal feel- 
ings of mankind to be discharged by some one to- 
wards the dead; a duty, and we may also say a right, 
to protect from violation; and a duty on the part of 
others to abstain from violation. The person hav- 
ing charge of a body cannot be considered as the 
owner of it in any sense whatever; he holds it only 
as a sacred trust for the benefit of all who may from 
family or friendship have an interest in it, and a 
court of equity may well regulate it as such, and 
change the custody if improperly managed. In the 
case of Stephen Girard, the court said that if it had 
been applied to in time it would have prevented the 
removal of his body, when it did not consider that, 
under the circumstances of the case, it should inter- 
fere after the removal had been made. In this 
Rhode Island case, the court required the widow to 
restore the remains of her husband to a lot provided 
by him where she first had his body buried and 
from which she afterwards had it removed. 
Another famous case is that of Reg v. Sharpe, 
decided by the Court of Criminal Appeal of Eng- 
land in the year 1857. In this case it is held an in- 
dictable misdemeanor at common law to remove a 
corpse without lawful authority, although the mo- 
tive of the person so acting may be pious and laud- 
able. This was a case, where it is so held, in which 
a son, from motives of filial affection and religious 
duty, removed the corpse of his mother from a dis- 
senter’s burial ground, for the purpose of its inter- 
ment together with that of his father, in a conse- 
crated churchyard. The accused, in person, argued 
that the grave was the private property of his family; 
and there had been no indecorum or improper mo- 
tive in his proceedings. He alluded to the circum- 
stance that the bodies of many illustrious persons 
had, at various times, been removed from one place 
of interment to another. The court says, among 
other things, that there ps no authority for saying 
that relationship can justify the taking of a corpse 
from the grave where it had been laid. Further- 
more, statutes have been passed in several of the 
states forbidding the removal of bodies, except un- 
der certain circumstances. 
Besides all this, whoever has the freehold of the 
soil, may bring an action of trespass against such as 
dig and disturb it. 
The law would, therefore, appear to be ample 
to secure the protection of graves and prevent im- 
proper removals. But to accomplish this it is nec- 
essary for some one to set the law in motion. If 
the heirs and friends of the deceased are indifferent, 
or connive at the removal of his remains there is 
not likely to be any one else who will care to inter- 
fere. There is, however, another pertinent sug- 
gestion in the Rhode Island case to be noticed in 
this connection. The court says that the cemetery 
corporation holding the lands for certain purposes 
had no doubt a certain control over same, but that 
control was to be exercised in such man- 
ner as to carry out, at least not to interfere with, 
the legal rights of those holding burial lots under 
