LEGAL RIGHTS IN THE REMAINS OF THE DEAD
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LEGAL RIGHTS IN THE REMAINS OF THE DEAD BY FRANK W. GRINNELL THE writer recently had occasion to time immemorial these directions have been prepare an opinion for the Massachu respected. See an interesting article in Vol. setts Cremation Society upon the subject xvii of the Law Journal (London), p. 149. indicated by the title of this article. It The following are instances of this prac .appeared that, although the subject had tice: been discussed from time to time in various Jeremy Bentham, whose learning and re books and periodicals as well as in judicial search in the law gives his example peculiar •opinions,1 there was still much confusion weight, bequeathed his body for dissection. arising, to a considerable extent, from rea William Pelham, Kt., in 1532, bequeathed soning based on misleading technicalities his body "to be buried in the chauncel of .and dicta. It has seemed worth while, there Laughton." John of Gaunt, in 1397, di fore, to write an article, using the opinion rected his body to be buried in the cathedral referred to as a basis, but covering a some church of St. Paul, "and that it be not buried for forty days during which I charge what broader field. It is, of course, to be understood that this my executors that there be no cering or examination has had especial reference to embalming of my corpse." Other refer the cause of the cremation of the dead as ences are given, in the article above cited, advocated by the society above mentioned, to old forms of wills in conveyancing books; .and also that the writer does not discuss the and the author tells us of the interesting statutory rules of different localities. fact that on September 26, 1769, a Mrs. The inquiry seems naturally to divide Pratt 's body was burned "in the new buryitself into three parts or questions : ing-ground adjoining Tyburn turnpike," I. What is the right of a person to con according to direction in her will. These trol the disposition of his own body? instances of the early English practice are II. What are the relative rights of mem similar to the early Massachusetts practice, bers of the family of a dead person and undoubtedly to the early practice in and others interested as among other parts of this country, to illustrate themselves? which the following clauses in wills are III. In what form and substance should chosen at random from local Probate Rec instructions be given by one desir ords. Moses Paine of Braintree, in 1643, by ing to control the disposition of his his will (see Suffolk Records, vol. i, p. 26 own body? orig. vol.) provided as follows: "My bodie to be buried wheresoever it shall please God to call me, at the discretion of my sonne THE RIGHT OF A PERSON TO CONTROL THE Moses whom I make mine executor." Com DISPOSITION OP HIS OWN BODY fort Starr, in 1659, by his will (see Suffolk It has long been the common practice for Records, vol. i, p. 353) directs and provides, persons to give directions in their wills for I commend and comit my soule into the the disposition of their bodies, and from hands of Almighty God . . . my body to ye earth fro whence it came to be burryed, 1 For bibliography of the subject see note to within ye usuall place of buriall in Boston, Johnston v. Marinus, 18 Abbott's New Cases (N.Y.) at p. 75; Pettigrew v. Pettigrew, 207 Pa. so neere my Late wife as may be possible 'St., 313; Perley " Mortuary Law," Am. and Eng. with conveniency." So in the will of John JEncyc. 2d ed., Title, "Dead Body." Kingsbury, in 1660 (Suffolk Records, vol. i,
