194 
PARK AND C EM ETERY. 
1 mean that a body is not property, 
and it has been repeatedly held not 
to be property. There is an inter- 
est that may be had in it arising out 
of family ties. The widow is not the 
sole person having that interest. She 
cannot keep out the rest of the family 
from their rights. 
Can they exclude her? 
No, they cannot. It is the purpose 
of this widow to reduce that body 
to ashes and keep those ashes in the 
house. Now that in itself is startling. 
Has the court anything to do with 
what is startling? 
Other Courts have had, your Hon- 
or. 
We have no right to interfere with 
any one’s conscience or religion. The 
body must be disposed of. If no 
one interested in kinship will do it, 
the public must. The public would 
have a right under some circum- 
stances to give it to a hospital for 
dissection. Now, whose duty is it 
to dispose of this body, Mr. Black? 
Your Honor can make the widow 
dispose of it. 
Then has not the widow the right 
to dispose of it? 
Yes. 
Would she not have a right to dis- 
pose of it according to her religious 
or sentimental feelings? 
She has not an absolute right. 
Has she not a right to dispose of 
that body as she pleases since it is 
her duty? 
Would your Honor say that she 
had a right to give this body to a 
hospital ? 
That question is not before the 
Court. It is the duty of the widow 
to dispose of the body on sanitary 
grounds. Since the law provides it 
is the duty of the widow as heir or 
next-of-kin to dispose of the body, 
what right have I in this case to in- 
terfere? Would she not have a right 
to dispose of it as she pleases under 
the seventh section of the Bill of 
Rights — 
“No person shall be compelled to 
attend, erect or support any place 
of worship, or maintain any form of 
worship, against his consent; and no 
preference shall be given by law to 
any religious society; nor shall any 
interference with the rights of con- 
science be permitted.” 
How can I interfere with her right 
of conscience, unless that conscience 
should be of such kind and nature as 
to be against the law or public policy 
or the Constitution? — 
“No religious test shall be required 
as a qualification for office, nor shall 
any person be incompetent to be a 
witness on account of his religious 
belief. Religion, morality, and 
knowledge, however, being essential 
to good government, it shall be the 
duty of the General Assembly to pass 
suitable laws to protect every re- 
ligious denomination in the peaceful 
enjoyment of its own mode of pub- 
lic worship, and to encourage schools 
and the means of instruction.” 
Mr. Black: I am claiming that it 
will outrage the sensibilities of these 
sisters to have this body cremated. 
The Court: That is why I asked 
the widow if it would be possible 
for her to join in some agreement 
with the sisters. I had hoped, this 
being a matter solely of conscience, 
that we could get these good people 
together on the conscience matter 
and put this body on a lot, and so 
have the controversy ended. But 
since I am a judge and must decide 
according to the law, and since this 
body belongs to the widow for dis- 
position, and since it is her wish that 
it shall be burned, how can I inter- 
fere? 
Your Honour in passing upon the 
disposition of this body is going fur- 
ther than any Court heretofore to 
give the body either to the wife or 
sisters. You are going to shock the 
sisters in allowing this body to be 
cremated. 
The Court: Suppose you follow 
that out, Mr. Black. I have to shock 
the conscience of either Miss Evans 
and her sisters, or Mrs. Evans, the 
widow — the conscience of someone is 
bound to be shocked. 
Mr. Black: I do not recall that 
she said that she did make this a 
matter of conscience. She was in 
favor of cremation because it was 
sanitary and she had protested 
against burial in the ground. 
The Court: And Mr. Evans had 
requested it beforehand, and she re- 
gards it from her standpoint as the 
proper disposition of dead people. 
Mr. Black: We not only asked 
for an injunction, but we ask for 
such further rights as we may be en- 
titled to in law and equity. My 
clients have been absolutely excluded 
from paying tribute of affection to 
the remains of their brother. It was 
this widow’s purpose to have quick- 
ly taken this body and consumed it 
to ashes and then kept the ashes 
about the house. I feel that the 
Court — there is no question but that 
the Court can, and I feel that the 
Court ought to require that the in- 
terment of this body be so deep that 
the conditions that the widow com- 
plains of as to the future would not 
happen. It ought to be on the con- 
science of this Court to require the 
interment of this body, but make the 
condition that it would be interred 
in such a way that no occasion of 
having the bones exposed, as Mrs. 
Evans testified to on the stand, would 
arise. How can this Court in any 
decency or justice allow this widow 
to cremate this body and keep the 
ashes around the house like a piece 
of bric-a-brac. I think that would 
be carrying the proposition down to 
the point of ridicule. 
The Court: How can I interfere 
with the morality or the right of 
conscience of anyone so long as the 
law is not broken? The widow is 
required to dispose of the body, 
therefore she has some ownership in 
it — a duty to perform. She may dis- 
pose of it in any way she sees fit, 
so long as she does not violate the 
law. Suppose the wife desired inter- 
ment in the ground and the sister 
desired cremation, what would you 
say should be done in that case? 
Mr. Black: I would say that your 
Honour could not order cremation. 
It is unusual — because cremation is 
extraordinary — it is a freak. 
The Court: Why do you call it 
unusual, Mr. Black? In other days 
it was the only method of disposing 
of the dead. 
Mr. Black: There was a case — a 
famous case— a leading case in 
America, upon what are property 
rights, in re Ruggles, 4, Bradford 
Surrogate, New York, 503, and I fail 
to find a case reported where a ques- 
tion of the dead arose, in which that 
case was not cited as a leading au- 
thority as the development of the 
attitude of the law on that subject. 
I want to read from that case: 
“The right to the repose of the 
grave necessarily implies the right 
to its exclusive possession. The 
doctrine of the legal right to open 
a grave in a cemetery after a certain 
lapse of time, to receive another ten- 
ant, however it may be sanctioned by 
custom in the English churchyards 
or by Continental usage at Pere-La- 
Chaise, and elsewhere, will hardly 
become acceptable to the American 
mind; still less the Italian practice 
of hastening the decomposition of 
the dead by corrosive elements. 
“The right to the individuality of 
a grave, if it exists at all, evidently 
must continue so long as the remains 
of the occupant can be identified — 
