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This page intentionally left blank
Posthumous Interests

Daniel Sperling discusses the legal status of posthumous interests and

their possible defeat by actions performed following the death of a
person. The author first explores the following questions: Do the dead
have interests and/or rights, the defeat of which may constitute harm?
What does posthumous harm consist of and when does it occur, if at
all? This is followed by a more detailed analysis of three categories of
posthumous interests arising in the medico-legal context: the propriet-
ary interest in the body of the deceased, the testamentary interest in
determining the disposal of one’s body after death and the interest in
post-mortem medical confidentiality. Sperling concludes that if we
acknowledge the interest in one’s symbolic existence and legally protect
it, not only do some interests survive a person’s death but we should
also enjoy a peremptory legal power to shape in advance our symbolic
existence after death.

Daniel Sperling teaches philosophy of law and bioethics at Netanya

Academic College.
 Cambridge Law, Medicine and Ethics

This series of books was founded by Cambridge University Press with

Alexander McCall Smith as its first editor in 2003. It focuses on the law’s
complex and troubled relationship with medicine across both the developed
and the developing world. In the past twenty years, we have seen in many
countries increasing resort to the courts by dissatisfied patients and a growing
use of the courts to attempt to resolve intractable ethical dilemmas. At the same
time, legislatures across the world have struggled to address the questions posed
by both the successes and the failures of modern medicine, while international
organizations such as the WHO and UNESCO now regularly address issues of
medical law.
It follows that we would expect ethical and policy questions to be integral to the
analysis of the legal issues discussed in this series. The series responds to the high
profile of medical law in universities, in legal and medical practice, as well as in
public and political affairs. We seek to reflect the evidence that many major
health-related policy debates in the UK, Europe and the international community
over the past two decades have involved a strong medical law dimension. Organ
retention, embryonic stem cell research, physician assisted suicide and the allo-
cation of resources to fund health care are but a few examples among many. The
emphasis of this series is thus on matters of public concern and/or practical
significance. We look for books that could make a difference to the development
of medical law and enhance the role of medico-legal debate in policy circles. That
is not to say that we lack interest in the important theoretical dimensions of the
subject, but we aim to ensure that theoretical debate is grounded in the realities of
how the law does and should interact with medicine and health care.

General Editors
Professor Margaret Brazier,
Professor Graeme Laurie, University of Edinburgh

Editorial Advisory Board

Professor Richard Ashcroft, Queen Mary, University of London
Professor Martin Bobrow, University of Cambridge
Dr Alexander Morgan Capron, Director, Ethics and Health, World
Health Organization, Geneva
Professor Jim Childress, University of Virginia
Professor Ruth Chadwick, Cardiff Law School
Dame Ruth Deech, University of Oxford
Professor John Keown, Georgetown University, Washington, D.C.
Dr Kathy Liddell, University of Cambridge
Professor Alexander McCall Smith, University of Edinburgh
Professor Dr Mónica Navarro-Michel, University of Barcelona
Marcus Radetzki, Marian Radetzki, Niklas Juth
Genes and Insurance: Ethical, Legal and Economic Issues
978 0 521 83090 4
Ruth Macklin
Double Standards in Medical Research in Developing Countries
978 0 521 54170 1 paperback 978 0 521 83388 2 hardback
Donna Dickenson
Property in the Body: Feminist Perspectives
978 0 521 86792 4
Matti Häyry, Ruth Chadwick, Vilhjálmur Árnason, Gardar Árnason
The Ethics and Governance of Human Genetic Databases: European
Perspectives
978 0 521 85662 1
Ken Mason
The Troubled Pregnancy: Legal Wrongs and Rights in Reproduction
978 0 521 85075 9
Daniel Sperling
Posthumous Interests: Legal and Ethical Perspectives
978 0 521 87784 8
Keith Syrett
Law, Legitimacy and the Rationing of Health Care
978 0 521 85773 4
Posthumous Interests
Legal and Ethical Perspectives

Daniel Sperling
SJD, BA (Philosophy)
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521877848

© Daniel Sperling 2008

This publication is in copyright. Subject to statutory exception and to the provision of

relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
First published in print format 2008

ISBN-13 978-0-511-39594-9 eBook (Dawsonera)

ISBN-13 978-0-521-87784-8 hardback

Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
For my beloved parents,
Rina and Adrian Sperling
 Contents

Acknowledgements page xiii

Table of cases xiv
Table of national provisions xxiv

Introduction 1
1 Posthumous harm, posthumous interests and symbolic
existence 8
Harm 9
General 9
Interests 9
Posthumous harm: the real puzzles 15
The experience problem 15
Death as harm 17
The Epicurean argument 19
Surviving interests 20
The problem of retroactivity 22
The moment of harm 23
Solving the problem of posthumous (non-)existence 25
Existence as a possibility 25
Existence in after-life 27
Harm and change without existence 28
Harm in no particular time 31
Persistent existence of the Human Subject 34
My proposal 34
The nature of the Human Subject 36
The relation between the Human Subject and the person 37
Strengths of the Human Subject model 38
Symbolic existence 40
The concept of social self 43
Legal support for the interest in symbolic existence 45
Conclusion 47
2 Posthumous rights 49
Specific theories of posthumous rights 53
Hillel Steiner 53
Annette Baier 57

ix
x Contents

Carl Wellman 59
Raymond Belliotti 61
General theories of rights 63
The choice theory 63
Critique of the choice theory 64
The exclusion of right-holders 67
The dead as right-holders 69
The interest theory 71
Versions of the interest theory 73
The idea of interest 76
Applying the interest theory to the dead 79
Should the dead be actual right-holders? 80
Content of posthumous rights 83
Duration of posthumous rights 84
Conclusion 86
3 Proprietary interest in the body of the deceased 88
Is there a proprietary interest in the body of the deceased? 89
The ‘no property’ rule 89
Haynes’ Case 90
Coke’s commentary 91
R v. Sharpe 92
Exelby v. Handyside 93
Common law exceptions to the ‘no property’ rule 94
Possession with regard to the duty to bury 94
The ‘work and skill’ exception 103
The ‘long-dead’ exception 107
Undermining the ‘no property’ outcomes 110
Undermining the ‘no will’ rule 111
Undermining the ‘no theft’ rule 113
Should there be a proprietary interest in the body of the deceased? 114
Possible theoretical models for acquiring property in the body
of the deceased 114
Transfer of property 114
Property vests in the state 115
Abandonment 117
Res nullius 121
The conceptual meaning of a proprietary interest in the body
of the deceased 122
Ownership 123
Possession 126
Use and management 127
Disposal 127
Transferability and the right to enjoy fruits 128
General rationales for a proprietary interest 131
Property as a natural right 131
Property as the advancement of autonomy and freedom 132
Property as constituting personality 132
Property as a system of distributive justice 134
Property as a form of utilitarianism 135
 Contents xi

Procedural advantages of a proprietary claim with regard

to the human corpse 136
Conclusion 141
4 Determining the disposal of one’s body after death 143
Constraints of autonomy interests 145
Legal barriers to enforcing bodily testaments 150
Alternatives to the will mechanism 154
Human tissue gift laws 154
Donor cards 155
Living wills 156
Trust 158
Agency 163
Contract 164
Alternatives to the property classification criterion 165
Substantial limitations of enforcing bodily testaments 171
Limitations directly established under legislation 172
Limitations directly established under case law 173
Clear and convincing demonstration by competent
and credible testimony 173
Reason, decency and accepted customs of mankind 174
Limitations indirectly established under case law 174
Timing 175
Cost 176
Practicability 177
Harm to society 177
Public mores and vulnerabilities of other groups 179
A more general opposition to public policy 180
Procedural obstacles 181
Protection from harm to third parties 181
Quality of familial relationship 182
Conditioned bodily testaments 183
Quality of relationship to place of disposal 183
Conclusion 184
5 Medical confidentiality after death 186
Introduction 186
Post-mortem confidentiality in ethics and law 188
Ethics of post-mortem confidentiality 188
The legal position 189
International law 189
Canada 190
The USA 191
The UK 192
General justifications for confidentiality 194
Consequentialism 194
Rights-based justifications 196
Privacy 196
Autonomy 198
Property 200
xii Contents

Fidelity (equity) 203

The durability of the obligation to act in confidence 204
Survivability of the physician–patient relationship 204
An analogy from posthumous attorney–client privilege 206
The duty to keep promises: a contractual justification 207
Practical solutions to breach of confidentiality 212
General solutions to post-mortem confidentiality 212
More weight to confidentiality during life 212
The ‘no-difference’ approach 214
More weight to post-mortem confidentiality 214
Casuistical case analysis of post-mortem confidentiality 215
Disclosure to protect at-risk third parties 215
Disclosure in the best interests of another patient 216
Disclosure in death certificates 216
Autopsy disclosures 219
Disclosure prior to performing an autopsy 220
Disclosure from the autopsy procedure itself 220
Publication of autopsy reports 222
Disclosure to providers of disposal services and organ
procurement organizations 226
Disclosure of research outcomes concerning dead subjects 226
Disclosure for teaching purposes 229
Disclosure for contesting a will or supporting an insurance claim 230
Disclosure of the medical history of public figures 231
Conclusion 234

Conclusions 236
The application of the interest in the recognition of one’s symbolic existence 238
The proprietary interest in the body of the deceased 238
The testamentary interest in determining the disposal of one’s
body after death 241
The interest in post-mortem confidentiality 243
Possible objections to the idea of symbolic existence 244
Subject of interest 244
Duration of symbolic existence 245
Balancing the interest in the recognition of one’s symbolic
existence with other interests 246
A right to the recognition of symbolic existence 247

Select bibliography 250

Index 265
 Acknowledgements

This book is a development of the ideas explored in my SJD thesis,

written for the University of Toronto, and its production took almost
four years. I am grateful and indebted to my SJD supervisor, Bernard
Dickens, who guided and supported me as much as possible, making the
experience of writing this book lively and stimulating. Special thanks and
much appreciation are also owed to Wayne Sumner and Trudo Lemmens
for reviewing my work in progress and contributing significantly to its
development.
Further gratitude is owed to Matthew Kramer, who invited me to the
University of Cambridge and supported me while I was there. Matthew
also read a considerable part of my book and contributed extensively to its
enrichment and flourishing.
Throughout the work on my book I discussed my ideas with many people,
some of whom also read and reviewed parts of my manuscript. I wish to
thank John Broome, Hanoch Dagan, Abraham Drassinower, David Enoch,
Martin Friedland, Ruth Gavison, Alon Harel, Halvard Lillehammer, Onora
O’Neill, Guy Pessach, Denise Réaume, Arthur Ripstein, Julian Savulescu,
Dominic Scott, Shmuel Shilo, James Warren and Joshua Weisman.
The financial support I received in the last four years enabled me to
concentrate on my work and devote myself to its progress. I am grateful
for receiving such support and would like to thank the Faculty of Law
and the School of Graduate Studies at the University of Toronto, the
Lucille Norris Graduate Fellowship, Strauss Fellowship in Law and
Biotechnology, Bell University Laboratories Graduate Fellowship and the
Lady Davis Fellowship. Special thanks are owed to Canada Institutes
for Health Research Fellowship for providing three years of financial sup-
port and organizing annual colloquiums to present my work in progress.
I wish to thank Colleen Flood, Jocelyn Downie, Tim Caulfield and
Chrystal Gray for all their support and help in this regard.
Finally, I wish to show gratitude to my parents who provided endless
love, support and encouragement all the way through, and to Aryeh with
whom I shared my personal experiences while writing this book.
xiii
 Table of cases

A v. C [1985] FLR 445 129

AB et al. v. Leeds Teaching Hospital NHS Trust et al. [2004] EWHC 644
(QB) 100
Aida Abeziz v. Benjamin Harris Estate 3 WDCP (2d) 499, [1992] OJ No.
1271 (Ont. Gen. Div.) 95, 112
Airedale NHS Trust v. Bland [1993] 1 All ER 821 2, 11, 45, 71
Aldreman v. Ford 146 Kan. 698, 72 P 2d 981 (1937) 137
Andrus v. Allard 444 US 51 (1979) 128
In re Application of D’Agostino, MD 181 Misc. 2d 710, 695 NYS 2d 473
(1999) 191
Dwayne Arnaud et al. v. Charles Odom et al. 870 F 2d 304 (5th Cir.
1989) 100
Attorney General v. Guardian Newspapers (No. 2) [1990] AC 109 207
Auld v. Cathro 20 ND 461, 128 NW 1025 (1910) 215
AW v. CW [2002] NSWSC 301 107, 137

Larry S. Baker v. City of Westland 245 Mich. App. 90, 627 NW 2d 27

(Ct App. Mich. 2001) 225, 231
Beverly Bartlett v. Annie Roberts Bartlett WL 1161586 (Cal. App. 4
Dist. 2002) 181
Bastien v. Ottawa Hospital (General Campus) (2001) 56 OR (3d)
397 137, 139
Bellah v. Greenson 146 Cal. Rptr 535, 81 Cal. App. 3d 614
(1978) 210
Belle Bonfils Memorial Blood Bank v. Hansen 665 P 2d 118 (Colo.
1983) 129
Birch v. Birch et al. 123 Misc. 229 (Sup. Ct N.Y. 1924) 137
R v. Black [1995] Crim. LR 640 140
R v. Bristol Coroner, ex parte Kerr [1974] 1 QB 652 97
Brotherton v. Cleveland 923 F 2d 477, 482 (6th Cir. Ohio 1991) 98,
103, 137

xiv
 Table of cases xv

Virginia Brown v. Delaware Valley Transplant Program 420 Pa. Super.

84 (Sup. Ct Pa. 1992) 98
Browning v. Norton Children’s Hospital 504 SW 2d 713 (Ct App. Ky.
1974) 120
Buchanan v. Milton [1999] 2 FLR 844 95
Bullivant et al. v. Attorney General for Victoria [1900–3] All ER
812 214
Burnett v. Surratt et al. 67 SW 2d 1041 (Tex. Civ. App. 1934) 182

Calma v. Sesar (1992) 106 FLR 446 137, 162

Susan D. Camilli v. Immaculate Conception Cemetery 244 NJ Super.
709, 583 A 2d 417 (N.J. Super. Ct 1990) 137
Canadian AIDS Society v. Ontario (1995) 25 OR (3d) 388 (Gen.
Div.) 248
In re Capers’ Estate 34 Pa. D & C 2d 121 (1964) 180
Carney v. Knollwood Cemetery Association 514 NE 2d 430 (Ohio App.
1986) 102, 139
Child and Family Services of Manitoba v. L and H [1997] 123 Man. R
(2d) 135 (CA) 71
David Cohen et al. v. Groman Mortuary Inc. et al. 231 Cal. App. 2d 1 (Ct
App. Cal. 1964) 95, 137
Ivan Cohen et al. v. Guardianship of Hilliard Cohen 896 So. 2d 950 (Fla.
2005) 173
Robert Colavito v. NY Organ Donor Network Inc. et al. 356 F Supp. 2d
237, (2005) 127
Commissioners of Income Tax v. Pemsel (1891) AC 531, 61 LJQB
290 159
Owen Cooney v. George English et al. 86 Misc. 292, 148 NYS 285 (N.Y.
Sup. Ct 1914) 150, 175
Constance E. Correia v. Kenneth V. Sherry et al. 760 A 2d 1156, 335 N.J.
Sup. 60 (2000) 206, 215
Crocker v. Pleasant 778 So. 2d 978 (Sup. Ct Fla. 2001) 137
Cruzan v. Director, Missouri Department of Health 497 US 261, 110 S
Ct 2841 (1990) 2, 45, 71
Culpepper v. Pearl St Building Inc. 877 P 2d 75 (Colo. 1978) 129

Darcy v. Presbyterian Hospital in the City of New York 202 NY 259 (Ct
App. N.Y. 1911) 90
Darnell v. Indiana 674 NE 2d 19 (Ind. 1996) 208
Davidson v. Garrett [1899] CCC 200 99, 139
Davis v. Davis 842 SW 2d 588 (Tenn. 1992) 237
xvi Table of cases

Re Dean (1889) 41 Ch. D 552 160

Alma Deeg v. City of Detroit 345 Mich. 371 (Sup. Ct Mich. 1956) 103
R v. Department of Health, ex parte Source Informatics Ltd [2000] 1 All
ER 786, [2000] 2 WLR 940 230
John J. Detwiller v. David Hartman et al. 37 NJ Eq. 347 (N.J. Ct Ch.
1883) 159, 160
Dewar v. HM Advocate (1945) SLT Rep. 114 (High Court of Justiciary
of Scotland) 113
Dobson et al. v. North Tyneside Health Authority et al. [1996] 4 All ER
474, [1997] 1 WLR 596, [1997] BMLR 146 106, 107, 127, 137
Jane Doe v. Joan Roe et al. 93 Misc. 2d 201 (N.Y. Sup. 1977) 208
Thomas Donaldson et al. v. Daniel Lungren as Attorney General et al. 4
Cal Rptr 2d 59 (Calif. Ct App. 1992) 181
Doodeward v. Spence (1908) 6 CLR 406 (Aust.) 88, 94, 95, 98, 99,
103, 106, 108, 109
Dorman v. Rodgers 148 CLR 365 (Aust. HC) 128
Dougherty v. Mercantile Safe-Deposit & Trust Co. 387 A 2d 244
(1978) 129
Elizabeth Dougherty v. Mercantile Safe-Deposit & Trust Co. 282 Md.
617, 620 (Ct App. Md. 1978) 96
R v. Downey (1994) 15 Cr. App. R (S) 700 141
Drew v. Nunn [1874–80] All ER 1144 163

Edmonds v. Armstrong Funeral Home Ltd [1931] 1 DLR 676 (Ala.

Sup. Ct) 98, 137
W v. Egdell [1990] 1 All ER 835 233
Re Eighmie [1935] Ch. 524 160
Enos v. Snyder 131 Cal. 68 (Sup. Ct Calif. 1900) 95, 115, 137, 150, 160
In the Matter of the Estate of Anna M. Beck 177 Misc. 2d 203, 676 NYS
2d 838 (1998) 178
In the Matter of the Estate of Benjamin B. Eichner 173 Misc. 644 (Surr.
Ct N.Y. 1940) 96, 113, 177
In the Matter of the Estate of Clive Wishart ACWSJ Lexis 34836, 129
NBR (2d) 397 (1992) 180
In the Matter of the Estate of Esther Scheck 172 Misc. 236, 14 NYS 2d
946 (1939) 173
In the Matter of the Estate of James Walker 64 NY 2d 354 (1985) 178
Evans v. Rite Aid Corp. 478 SE 2d 846 (S.C. 1996) 208
Exelby v. Handyside [1749] 2 East PC 652 93–4
Eyerman v. Mercantile Trust Co. 524 SW 2d 210 (Miss. Ct App.
1975) 178
 Table of cases xvii

F v. West Berkshire Health Authority [1989] 2 All ER 545 2

Feller v. Universal Chapel Inc. 124 NY Supp. 2d 546 (1953) 182
Fidelity Union Trust Co. v. Arthur E. C. Heller et al. 16 NJ Sup. 285, 84
A 2d 485 (N.J. Sup. Ct 1951) 161
Fischer’s Estate v. Fischer 1 Ill. App. 2d 528, 117 NE 2d 855 (Ct App. Ill.
1954) 150, 174
Finley v. Atlantic Transport Corporation Ltd 220 NY 249, 115 NE 715
(Ct App. N.Y. 1917) 137
Finn v. City of New York 335 NYS 2d 516 (N.Y. Civ. Ct 1972) 137
In re Flint’s Estate 34 P 863, Cal. 1893 (Sup. Ct Calif. 1893) 214, 215
Queen v. Fox [1841] 114 ER 95 95
Re Freeman 46 Hun 458, 12 NYSR 175 (1887) 212
Frost v. St Paul’s Cemetery Association 254 NYS 2d 316 (1964) 102, 163
Fund for Constitutional Government v. National Archives and Records
Services 656 F 2d 856 (CADC 1981) 232

Mary Gadbury v. J. J. Bleitz 133 Wash. 134 (Sup. Ct Wash. 1925) 137
US v. Garber, 607 F 2d 92 (1979) 130
Georgia Lions Eye Bank Inc. v. Lavant 335 SE 2d 127 (Ga. 1985) 98
R v. Gibson [1991] 1 All ER 439 (CA) 141
John Gibson et al. v. The Methodist Hospital et al. 822 SW 2d 95 (Ct
App. Tex. 1991) 129
Globe Newspaper Co. et al. v. Chief Medical Examiner 404 Mass. 132,
533 NE 2d 1356 (1989) 225
Anthony Gotskowski v. The Roman Catholic Church of the Sacred
Hearts of Jesus and Mary et al. 262 NY 320 (1933) 139
In re Grand Jury Proceedings Involving Vickers 38 F Supp. 2d 159
(DNH 1998) 125
Green v. Commissioner 74 TC 1229 (Federal Tax Ct 1980) 125
Grinnan et al. v. Fredericksburg Lodge 88 SE 79 (Sup. Ct App. Va.
1916) 99
Sandra Grisso v. Dillard Nolen 262 Va. 688, 554 SE 2d 91 (Sup. Ct Va.
2001) 137
Charles Guerin v. Rose Cassidy 38 NJ Super. 454 (1955) 150

George J. Hague v. William E. Williams 37 NJ 328, 181 A 2d 345 (N.J.

1962) 231
Hall v. Fertility Institute of New Orleans 647 So. 2d 1348 (Ct App. La.
1994) 115
Hammonds v. Aetna Casualty & Surety Company 243 F Supp. 793 (ND
Ohio 1965) 197, 208
xviii Table of cases

Hasselbach v. Mount Sinai Hospital 173 AD 89, 159 NYS 376 (Sup. Ct
N.Y., 1916) 101
Haynes’s Case 77 ER 1389 (1614) 88, 90, 91, 92, 121
Deborah Hecht v. The Superior Court of Los Angeles County 16 Cal.
App. 4th 836 (Ct App. Calif. 1993) 115
James Helmer v. Daniel D. Middaugh 191 F Supp. 2d 283 (ND N.Y.
Dist. Ct 2002) 99
Henderson v. Johnston [1956] OR 789, 5 DLR (2d) 524 (HC) 203
In re Henderson’s Estate 13 Cal. App. 2d 449, 57 P 2d 212 (Dis. Ct App.
1936) 160, 161
R v. Herbert [1961] 25 JCL 163 (Wallington magistrates) 125
Sarah Herold v. Henry Herold et al. 3 Ohio NP (NS) 405 (Ct Com. Pl.
1905) 181–2
In re Herskovits 183 Misc. 411 (1944) 150
Hoare v. Osborne (1866) 1 Eq. 585 160
Holland v. Metalious 105 NH 290, 198 A 2d 654 (N.H. Sup. Ct
1964) 113, 183
R v. Hunter [1974] 1 QB 95 140
Hunter v. Hunter (1930) 65 OLR 586, [1930] 4 DLR 255 (Ont. High
Ct) 88, 95, 111

International News Services v. Associated Press 248 US 215

(1918) 126

In re Johnson’s Estate 7 NYS 2d 81 (Sup. Ct N.Y. 1938) 90, 171

Rose Kasmer et al. v. Guardianship of Roman Limner 697 So. 2d 220

(Dist. Ct App. Fla. 1997) 175
Katz v. National Archives and Records Administration 862 F Supp. 476
(DDC 1994) 222
In re Kaufman’s Estate 158 NYS 2d 376 (Sup. Ct N.Y.
1956) 171, 177
R v. Kelly and Lindsay [1999] QB 621, [1998] 3 All ER 741 103, 105,
106, 107, 114, 125
Kohn v. US 591 F Supp. 568 (EDNY 1984) 139
Valentin Koump v. James E. Smith 25 NY 2d 287, 250 NE 2d 857
(1969) 211

Lambert et al. v. Garlo et al. 19 Ohio App. 3d 295, 484 NE 2d 260

(1985) 214, 224
Larson v. Chase 47 Minn. 307 (Sup. Ct Minn. 1891) 92, 95, 102, 139
 Table of cases xix

Lisa A. Lawson et al. v. Vincent Meconi et al. 2005 WL 1323123 (Del.

Ch. 2005) 222, 225
Leschey v. Leschey et al. 374 Pa. 350, 97 A 2d 784 (Sup. Ct Pa.
1953) 177
Lloyd v. Lloyd (1852) 2 Sim. (NS) 225 160
Loft v. Fuller 408 So. 2d 619 (Fla. App. 1981) 221
Long v. Chicago, RI and P Railway Co. 86 P 289 (Okla. SC
1905) 103
Lott v. State 225 NYS 2d 434 (Ct Cl. 1962) 139
Carolyn D. Luce v. State of New York 266 AD 2d 877, 697 NYS 2d 806
(1999) 211
R v. Lynn 100 ER 394 (1788) 92–3
Lyon v. US 843 F Supp. 531 (D. Minn. 1994) 98

Paul MacDonald v. O. W.Clinger 84 AD 2d 482 (NYAD 1982) 208

Mackey v. US (1993) 8 F 3d 826 (Ct App. D.C. Cir.) 96
Re Manser [1905] 1 Ch. 68 160
March v. Kulchar [1952] 1 SCR 330 139
Mason v. Westside Cemeteries Ltd [1996] 135 DLR (4th) 361 139
Re Matheson (deceased) [1958] 1 All ER 202, 1 WLR 246 (Liverpool
Consistory Ct) 111
Reianne Mayorga v. Robert Tate 752 NYS 2d 353 (N.Y. 2002) 214
McCaw v. Turner 126 Miss. 260, 88 So. 705 (1921) 215
McFall v. Shimp 10 PD & C 3d 90 (Allegheny County Ct 1978) 216
Elizabeth McInerney v. Margaret MacDonald [1992] 2 SCR 138 194,
200, 203, 204
Meagher v. Driscoll 99 Mass. 281 (Sup. Jud. Ct Mass. 1868) 99
Meksras Estate 63 Pa. D & C 2d 371 (Pa. Com. Pl. 1974) 178–9
La Métropolitaine, Compagnie D’assurance-Vie c. Raymond Frenette et
Hôpital 89 DLR (4th) 653, [1992] 1 SCR 647 211
R v. Mills [1986] 1 SCR 863 248
R v. Mills [1999] 3 SCR 668 196
Miner v. Canadian Pacific Railway 3 Alta. LR 408, 18 WLR 476
(1911) 95, 108, 139
Mitchell v. St Michael’s Hospital 29 OR (2d) 185, 112 DLR (3d) 360
(1980) 203
Mitty v. Oliveira 111 Cal. App. 2d 452 (1952) 179
Mokry v. University of Texas. Health Science Center 529 SW 2d 802
(Tex. Civ. App. 1975) 139
John Moore v. The Regents of the University of California et al. 215 Cal.
App. 3d 709, 249 Cal. Rptr 494 (Ct App. Calif. 1988) 119
xx Table of cases

John Moore v. The Regents of the University of California et al. 793 P

2d 479, 51 Cal. 3d 120 (Sup. Ct Calif. 1990) 118, 119, 120, 125,
129, 135
R v. Morgentaler [1988] 1 SCR 30 248
Morristown Trust Co. v. Mayor and Board of Aldermen of Town of
Morristown et al. 82 NJ Eq. 521 (1913) 160
R v. Moyer [1994] 2 SCR 899 140

National Archives and Records Administration v. Favish 541 US 157

(2004) 198, 222
National City Bank v. Case Western Reserve University 369 NE 2d 814
(Ohio 1976) 178
New York Times Co. v. NASA 782 F Supp. 628 (DCC 1991) 220
Robert Newman et al. v. L. Sathyavaglswaran 287 F 3d 786 (Ct App. 9th
Cir. 2002) 98
Donald Nicoletta v. Rochester Eye and Human Parts Bank Inc. 519 NYS
2d 928 (Sup. Ct N.Y. 1987) 98
Bagatz 9232/01 Noach, the Israeli Association of the Organizations for
Animal Protection v. The General Attorney et al. (available at http://
62.90.71.124/files/ 01/320/092/s14/01092320.s14.HTM, accessed on
2 January 2005 (Isr.) (in Hebrew)) 49

O’Connor v. City of Victoria 4 WWR 4, 11 DLR 577 (Ala. Sup. Ct

1913) 98, 99
O’Donnell v. Slack 123 Cal. 285, 55 P 906 (Sup. Ct Calif.
1899) 150, 171
Onyeanusi v. Pan Am. 952 F 2d 788 (3d Cir. 1992) 130
In re Organ Retention Group Litigation [2004] EWHC 644 (QB) 103
Owens v. Liverpool Corporation [1939] 1 KB 394 (CA) 139

In re Palethorp’s Estate 249 Pa. 389 (Sup. Ct Pa. 1915) 160

Palmer et al. v. Order of United Commercial Travelers of America 191
Minn. 204, 253 NW 543 (Minn. 1934) 187
Mattie Parker v. Quinn-McGowen Company Inc. 262 NC 560 (Sup. Ct
N.C. 1964) 137
R v. Pawsey [1991] 3 Med. LR 39 (Ct Crim. App. Tasmania) 204
Re Pearce [1946] SASR 118 176
People First of Ontario v. Porter, Regional Coroner Niagara 5 OR (3d)
609 (Ont. Ct Gen. Div. 1991) 224, 225
Peter Petrowski v. Joan Petrowski [2005] CarswellAlta 1823, 1
December 2005 (Alta. Ct Queen’s Bench) 191, 231
 Table of cases xxi

Pettigrew et al. v. Pettigrew et al. [1904] 207 Pa. 313 94, 102, 162
Phillips v. Montreal General Hospital 4 ELR 477, 33 Que. SC 483
(1908) 90, 137, 139
Pierce v. Proprietors of Swan Point Cemetery 10 RI 227 (1872) 101–2,
137, 152
Pierson v. Post 3 Caines Reports 175 (N.Y. Sup. Ct 1805) 126
State v. Powell 497 So. 2d 1188 (Fla. 1986) 46, 94, 98, 139
Powell et al. v. Boldaz et al. 39 BMLR 35 [1998] (CA) 206
Queen v. Price (1884) 12 QBD 247 93, 95
R v. Purcy (1933) 24 Cr. App. R 70 140

In the Matter of Quinlan 335 A 2d 647 (1976) 146

Lynn Ramirez v. Health Partners of Southern Arizona 193 Ariz. 325, 972
P 2d 658 (Ariz. App. Div. 1998) 137
Reid v. Pierce County 136 Wash. 2d 195, 961 P 2d 333 (Sup. Ct Wash.
1998) 221
Reinhan v. Dennin 9 NE 320 (N.Y. 1886) 214
Renga v. Spadone et al. 60 NJ Sup. 353, 159 A 2d 142 (N.J. Sup. Ct
1960) 162
Ritter v. Couch 76 SE 428 (W.Va. 1912) 139
Susan Roche v. Ronald Douglas [2000] WASC 146 107, 137
Rodriguez v. Attorney General of Canada et al. [1993] 7 WWR 641, 107
DLR (4th) 342 248
R v. Rothery [1976] Crim. LR 691 (CA) 125
Ruckelshaus v. Monsanto Co. 467 US 986 (1984) 122

Kassem Saleh v. Andreas Reichert (1993) 50 ETR 143, 104 DLR (4th)
384 (Ont. Ct Jus.) 88, 95, 112
W. Rufus Sanford v. Maude Ware 191 Va. 43 (Sup. Ct Va. 1950) 137
Scarpaci v. Milwaukee County 292 NW 2d 816 (Wis. 1980) 102, 139
Schembre v. Mid-America Transplant Association 135 SW 3d 527
(Ct App. Mo. 2004) 98
Schloendorff v. Society of New York Hospital 211 NY 125, 105 NE 92
(1914) 153
Gertrude Schmidt v. Hugo Schmidt 49 Misc. 2d 498, 267 NYS 2d 645
(Sup. Ct N.Y. 1966) 137
Schuyler v. Curtis et al. 42 NE 22, 147 NY 434 (Ct App. N.Y. 1895) 244
R v. Sharpe 169 ER 959 (1856–7) 92–3
In re Shepp’s Estate 29 Pa. D & C 2d 385 (1962) 161
Shults v. US 995 F Supp. 1270 (D. Kans. 1998) 101
xxii Table of cases

Sidaway v. Board of Governors of the Bethlem Royal Hospital and the

Maudsley Hospital [1985] 1 All ER 643 203
Charles J. Simek v. Superior Court of the County of San Mateo 117 Cal.
App. 3d 169 (1981) 211
Juanita Sims v. Charlotte Liberty Mutual Insurance Company 257 NC
32, 125 SE 2d 326 (1962) 210
Smart v. Moyer 577 P 2d 108 (Utah 1978) 150, 174
Smart v. Sandars (1884) 5 CB 895, [1843–60] All ER 758 164
Austin and Janie Smith v. City of Artesia et al. 108 NM 339, 772 P 2d 373
(N.Mex. Ct App. 1989) 198
Smith v. Tamworth City Council et al. [1997] (Sup. Ct Equity Div.,
NSW, Australia) 99
Snyder v. Holy Cross Hospital 30 Md. App. 317 (Ct App. Md. 1976) 99,
115, 137
Sopinka et al. v. Sopinka et al. [2001] 55 OR (3d) 529 (Ont. Super. Ct
Jus.) 95, 139
Southern Life & Health Ins. Co. et al. v. Morgan 21 Ala. App. 5 (Ct App.
Ala. 1925) 137
Spates v. Dameron Hospital Association 114 Cal. App. 4th 208, 7 Cal.
Rptr 3d 597 (2003) 101, 139
Spiegel v. Evergreen Cemetery Co. 117 NJL 90 (1936) 102
The State of Washington v. Armida D. Petersen and Harold Petersen 47
Wash. 2d 836 (Sup. Ct Wash. 1956) 223
R v. Stephenson (1884) 13 QBD 331 140
R v. Stewart (1840) 113 ER 1007 94, 95
Stewart v. Schwartz Bros.–Jeffer Memorial Chapel Inc. 606 NYS 2d 965
(Sup. Ct 1993) 102, 150
Strachan v. John F. Kennedy Memorial Hospital 538 A 2d 346 (Sup. Ct
N.J. 1988) 137
Suarez v. Pierard 663 NE 2d 1039 (Ill. App. 1996) 208
Superintendent of Belchertown State School v. Joseph Saikewicz 373
Mass. 728 (Sup. Jud. Ct Mass. 1977) 146
Joe Swickard v. Wayne County Medical Examiner 475 NW 2d 304, 438
Mich. 536 (Sup. Ct Mich. 1991) 222, 224, 225, 232
Swidler & Berlin and James Hamilton v. US 524 US 399 (1998) 206
Stanley Sworski et al. v. B. H. Simons et al. 208 Minn. 201 (Sup. Ct
Minn. 1940) 137

Tarasoff v. Regents of the University of California 188 Cal. Rptr 129, 529
P 2d 533 (1974) 210
Re Thompson 18 OR (3d) 291 (Ont. Ct Gen. Div. 1994) 205
 Table of cases xxiii

Thompson v. Deeds 93 Iowa 228, 61 NW 842 (1895) 242

Alma Tillman v. Detroit Receiving Hospital et al. 138 Mich. App. 683
(Mich. Ct App. 1984) 98, 198
Sampson Tkaczyk v. Kenneth Gallagher 26 Conn. Supp. 290 (1965) 175
Queen v. Toohey (1982) 158 CLR 327 (Aust. HC) 128

United Blood Services v. Quintana 827 P 2d 509 (Sup. Ct Colo.

1992) 129

R v. Vann 169 ER 523 (1851) 96

Re Vaughan (1886) 33 Ch. D 187 160
Charles Venner v. State of Maryland 30 Md. App. 599
(1976) 117–18, 125
R v. Videoflicks Ltd (1984) 48 OR (2d) 395 248

Waldman v. Melville (City) [1990] SJ No. 13 (Sask. Ct Queen’s

Bench) 96
Elizabeth Gilpin Wales v. Leonard G. Wales et al. 21 Del. Ch. 349
(1936) 152
Walser v. Resthaven Memorial Gardens 633 A 2d 466 (Md. Ct Spec.
App. 1993) 139
Welch v. Welch 269 Ga. 742 (Sup. Ct Ga. 1998) 95
Nathaniel Weld v. Gideon Walker et al. 130 Mass. 422 (Sup. Jud. Ct
Mass. 1881) 95, 137
Re Wells, Swinburne v. Howard [1933] 1 Ch. 29 (CA) 121
R v. Welsh [1974] RTR 478 (CA) 125
Westover v. Atena Life Insurance Co. 1 NE 104 (N.Y. 1885) 214
Whalen v. Roe 429 US 589 (1977) 210
Whaley v. County of Tuscola 58 F 3d 1111 (Ct App. 6th Cir. 1995) 98
Whitehair v. Highland Memory Gardens Inc. 327 SE 2d 438 (W.Va.
1985) 102, 139
Williams v. City of Minneola 575 So. 2d 683 (Fla. Dist. Ct App. 1991) 140
Williams v. Williams (1882) 20 Ch. D 659 88, 92, 94, 95, 150
Wilson v. St Louis & SFR Co. 160 Mo. App. 649 (Ct App. Mo. 1912) 137
Winston v. Lee 470 US 753 (Va. 1985) 125
Wint v. Alabama Eye and Tissue Bank 675 So. 2d 383 (Ala. 1996) 101
Wood v. E. R. Butterworth & Sons et al. 118 P 212, 65 Wash. 344
(1911) 150, 184

Mark A. Zueger et al. v. Public Hospital District No. 2 of Snohomish

County et al. 57 Wash. App. 584, 789 P 2d 326 (Wash. App.
1990) 224, 225
Another Random Scribd Document
with Unrelated Content
bank behind which the hillside door may have lain, nor did any try to
frame a definite image of the scenes amidst which Joseph Curwen
departed from the horrors he had wrought.
Only robust old Captain Whipple was heard by alert listeners to
mutter once in awhile to himself, "Pox on that ——, but he had no
business to laugh while he screamed. 'Twas as though the damn'd
—— had some 'at up his sleeve. For half a crown I'd burn his ——
house."
 3. A Search and an Evocation
Charles Ward, as we have seen, first learned in 1918 of his descent
from Joseph Curwen. That he at once took an intense interest in
everything pertaining to the bygone mystery is not to be wondered
at; for every vague rumor that he had heard of Curwen now became
something vital to himself, in whom flowed Curwen's blood.
In his first delvings there was not the slightest attempt at secrecy; he
talked freely with his family—though his mother was not particularly
pleased to own an ancestor like Curwen—and with the officials of the
various museums and libraries he visited. In applying to private
families for records thought to be in their possession he made no
concealment of his object, and shared the somewhat amused
skepticism with which the accounts of the old diarists and letter-
writers were regarded.
When he came across the Smith diary and archives and
encountered the letter from Jedediah Orne he decided to visit Salem
and look up Curwen's early activities and connections there, which
he did during the Easter vacation of 1919. At the Essex Institute,
which was well known to him from former sojourns in the glamorous
old town of crumbling Puritan gables and clustered gambrel roofs, he
was very kindly received, and unearthed there a considerable
amount of Curwen data. He found that his ancestor was born in
Salem-Village, now Danvers, seven miles from town, on the
eighteenth of February (O. S.) 1662-3; and that he had run away to
sea at the age of fifteen, not appearing again for nine years, when he
returned with the speech, dress, and manners of a native
Englishman and settled in Salem proper. At that time he had little to
do with his family, but spent most of his hours with the curious books
he had brought from Europe, and the strange chemicals which came
for him on ships from England, France, and Holland. Certain trips of
his into the country were the objects of much local inquisitiveness,
and were whisperingly associated with vague rumors of fires on the
hills at night.
Curwen's only close friends had been one Edward Hutchinson of
Salem-Village and one Simon Orne of Salem. Hutchinson had a
house well out toward the woods, and it was not altogether liked by
sensitive people because of the sounds heard there at night. He was
said to entertain strange visitors, and the lights seen from his
windows were not always of the same color. The knowledge he
displayed concerning long-dead persons and long-forgotten events
was considered distinctly unwholesome, and he disappeared about
the time the witchcraft panic began, never to be heard from again. At
that time Joseph Curwen also departed, but his settlement in
Providence was soon learned of. Simon Orne lived in Salem until
1720, when his failure to grow visibly old began to excite attention.
He thereafter disappeared, though thirty years later his precise
counterpart and self-styled son turned up to claim his property. The
claim was allowed on the strength of documents in Simon Orne's
known hand, and Jedediah Orne continued to dwell in Salem till
1771, when certain letters from Providence citizens to the Reverend
Thomas Barnard and others brought about his quiet removal to parts
unknown.

Certain documents by and about all of these strange matters were

available at the Essex Institute, the Court House, and the Registry of
Deeds, and included both harmless commonplaces such as land
titles and bills of sale, and furtive fragments of a more provocative
nature. There were four or five unmistakable allusions to them on the
witchcraft trial records; as when one Hepzibah Lawson swore on
July sixteenth, 1692, at the Court of Oyer and Terminen under Judge
Hathorne, that "fortie Witches and the Blacke Man were wont to
meete in the Woodes behind Mr. Hutchinson's house," and one
Amity How declared at a session of August eighth before Judge
Gedney that "Mr. G. B. (George Burroughs) on that Nighte put the
Divell his Marke upon Bridget S., Jonathan A., Simon O.,
Deliverance W., Joseph C., Susan P., Mehitable C., and Deborah B."
Then there was a catalogue of Hutchinson's uncanny library as
found after his disappearance, and an unfinished manuscript in his
handwriting, couched in a cipher none could read. Ward had a
photostatic copy of this manuscript made, and began to work
casually on the cipher as soon as it was delivered to him. After the
following August his labors on the cipher became intense and
feverish, and there is reason to believe from his speech and conduct
that he hit upon the key before October or November. He never
stated, though, whether or not he had succeeded.
But of greatest immediate interest was the Orne material. It took
Ward only a short time to prove from identity of penmanship a thing
he had already considered established from the text of the letter to
Curwen; namely, that Simon Orne and his supposed son were one
and the same person. As Orne had said to his correspondent, it was
hardly safe to live too long in Salem, hence he resorted to a thirty-
year sojourn abroad, and did not return to claim his lands except as
a representative of a new generation. Orne had apparently been
careful to destroy most of his correspondence, but the citizens who
took action in 1771 found and preserved a few letters and papers
which excited their wonder. There were cryptic formulae and
diagrams in his and other hands which Ward now either copied with
care or had photographed, and one extremely mysterious letter in a
chirography that the searcher recognized from items in the Registry
of Deeds as positively Joseph Curwen's.

Providence, 1 May
Brother:
My honour'd Antient friend, due Respects and earnest Wishes to
Him whom we serve for yr Eternall Power. I am just come upon That
Which you ought to knowe, concern'g the Matter of the Laste
Extremite and What to doe regard' yt. I am not dispos'd to followe
you in go'g Away on acct. of my yeares, for Providence hath not ye
Sharpeness of ye Bay in hunt'g oute uncommon Things and
bringinge to Tryall. I am ty'd up in Shippes and Goodes, and cou'd
not doe as you did, besides the Whiche my Farme, at Pawtuxet hatht
under it What you Knowe, that Wou'd not Waite for my com'g Backe
as an Other.
But I am not unreadie for harde fortunes, as I have tolde you, and
have longe Work'd upon ye Way of get'g Backe after ye Laste. I laste
Night strucke on ye Wordes that bringe up YOGGE-SOTHOTHE,
and sawe for ye Firste Time that face spoke of by Ibn Schacabac in
ye ——. And IT said, that ye III Psalme in ye Liber-Damnatus holdes
ye Clavicle. With Sunne in V House, Saturne in Trine, drawe ye
Pentagram of Fire, and saye ye ninth Verse thrice. This Verse
repeate eache Roodemas and Hallow's Eve, and ye thing will brede
in ye Outside Spheres.
And of ye Sede of Olde shal One be borne who shal looke Backe,
tho' know'g not what he seekes.
Yett will this availe Nothing if there be no Heir, and if the Saltes, or
the Way to make the Saltes, bee not Readie for his Hande; and here
I will owne, I have not taken needed Stepps nor founde Much. Ye
Process is plaguy harde to come neare, and it uses up such a Store
of Specimens, I am harde putte to it to get Enough, notwithstand'g
the Sailors I have from ye Indies. Ye People aboute are become
Curious, but I can stande them off. Ye gentry are worse than ye
Populace, be'g more Circumstantiall in their Accts. and more believ'd
in what they tell. That Parson and Mr. Merritt have talk'd some, I am
fearfull, but no Thing soe far is Dangerous. Ye Chymical substances
are easie of get'g, there be'g II. goode Chymists in Towne, Dr.
Bowen and Sam. Carew. I am foll'g oute what Borellus saith, and
have Helpe in Abdool Al-Hazred his VII. Booke. Whatever I gette,
you shal have. And in ye meane While, do not neglect to make use
of ye Wordes I have here given. I have them Righte, but if you
Desire to see HIM, imploy the Writinge on ye Piece of ——, that I am
putt'g in this Packet. Saye ye Verses every Roodmas and Hallow's
Eve; and if yr Line runn not out, one shal bee in yeares to come that
shal looke backe and use what Saltes or stuff for Salte you shal
leave him. Job XIV. XIV.
I rejoice you are again at Salem, and hope I may see you not longe
hence. I have a goode Stallion, and am think'g of get'g a Coach,
there be'g one (Mr. Merritt's) in Providence already, tho' ye Roades
are bad. If you are disposed to travel, doe not pass me bye. From
Boston take ye Post Road, thro' Dedham, Wrentham, and
Attleborough, goode Taverns be'g at all these Townes. Stop at Mr.
Bolcom's in Wrentham, where ye Beddes are finer than Mr. Hatch's,
but eate at ye other House for their cooke is better. Turne into Prov.
by Patucket falls, and ye Rd. past Mr. Sayles's Tavern. My House
opp. Mr. Epenetus Olney's Tavern off ye Towne Street, 1st on ye N.
side of Olney's Court. Distance from Boston Stone abt. XLIV miles.
Sir, I am yr olde and true friend and Servt. in Almonsin-Metraton.
Josephus C.
To Mr. Simon Orne,
William's-Lane, in Salem.
This letter, oddly enough, was what first gave Ward the exact
location of Curwen's Providence home; for none of the records
encountered up to that time had been at all specific. The place was
indeed only a few squares from his own home on the great hill's
higher ground, and was now the abode of a Negro family much
esteemed for occasional washing, housecleaning, and furnace-
tending services. To find, in distant Salem, such sudden proof of the
significance of this familiar rookery in his own family history, was a
highly impressive thing to Ward; and he resolved to explore the place
immediately upon his return.
The more mystical phases of the letter, which he took to be some
extravagant kind of symbolism, frankly baffled him; though he noted
with a thrill of curiosity that the Biblical passage referred to—Job 14,
14—was the familiar verse, "If a man die, shall he live again? All the
days of my appointed time will I wait, till my change come."

Young Ward came home in a state of pleasant excitement, and spent

the following Saturday in a long and exhaustive study of the house in
Olney Court. The place, now crumbling with age, had never been a
mansion; but was a modest two-and-a-half story wooden town house
of the familiar Providence Colonial type, with plain peaked roof, large
central chimney, and artistically carved doorway with rayed fan-light,
triangular pediment, and trim Doric pilasters. It had suffered but little
alteration externally, and Ward felt he was gazing on something very
close to the sinister matters of his quest.
The present Negro inhabitants were known to him, and he was very
courteously shown about the interior by old Asa and his stout wife
Hannah. Here there was more change than the outside indicated,
and Ward saw with regret that fully half of the fine scroll-and-urn
overmantels and shell-carved cupboard linings were gone, whilst
much of the fine wainscotting and bolection moulding was marked,
hacked, and gouged, or covered up altogether with cheap wall-
paper. It was exciting to stand within the ancestral walls which had
housed such a man of horror as Joseph Curwen; he saw with a thrill
that a monogram had been very carefully effaced from the ancient
brass knocker.
From then until after the close of school Ward spent his time on the
photostatic copy of the Hutchinson cipher and the accumulation of
local Curwen data. The former still proved unyielding; but of the latter
he obtained so much, and so many clues to similar data elsewhere,
that he was ready by July to make a trip to New London and New
York to consult old letters whose presence in those places was
indicated. This trip was very fruitful, for it brought him the Fenner
letters with their terrible description of the Pawtuxet farmhouse raid,
and the Nightingale-Talbot letters in which he learned of the portrait
painted on a panel of the Curwen library. This matter of the portrait
interested him particularly, since he would have given much to know
just what Joseph Curwen looked like; and he decided to make a
second search of the house in Olney Court to see if there might not
be some trace of the ancient features beneath peeling coats of later
paint or layers of mouldy wall-paper.
Early in August that search took place, and Ward went carefully over
the walls of every room sizeable enough to have been by any
possibility the library of the evil builder. He paid especial attention to
the large panels of such overmantels as still remained; and was
keenly excited after about an hour, when on a broad area above the
fireplace in a spacious ground-floor room he became certain that the
surface brought out by the peeling of several coats of paint was
sensibly darker than any ordinary interior paint or the wood beneath
it was likely to have been. A few more careful tests with a thin knife,
and he knew that he had come upon an oil portrait of great extent.
With truly scholarly restraint the youth did not risk the damage which
an immediate attempt to uncover the hidden picture with the knife
might have done, but just retired from the scene of his discovery to
enlist expert help. In three days he returned with an artist of long
experience, Mr. Walter C. Dwight, whose studio is near the foot of
College Hill; and that accomplished restorer of paintings set to work
at once with proper methods and chemical substances. Old Asa and
his wife were duly excited over their strange visitors, and were
properly reimbursed for this invasion of their domestic hearth.
As day by day the work of restoration progressed, Charles Ward
looked on with growing interest at the lines and shades gradually
unveiled after their long oblivion. Dwight had begun at the bottom;
hence since the picture was a three-quarter-length one, the face did
not come out for some time. It was meanwhile seen that the subject
was a spare, well-shaped man with dark-blue coat, embroidered
waistcoat, black satin small-clothes, and white silk stockings, seated
in a carved chair against the background of a window with wharves
and ships beyond. When the head came out it was observed to bear
a neat Albemarle wig, and to possess a thin, calm, undistinguished
face which seemed somehow familiar to both Ward and the artist.
Only at the very last, though, did the restorer and his client begin to
gasp with astonishment at the details of that lean, pallid visage, and
to recognize with a touch of awe the dramatic trick which heredity
had played. For it took the final bath of oil and the final stroke of the
delicate scraper to bring out fully the expression which centuries had
hidden; and to confront the bewildered Charles Dexter Ward, dweller
in the past, with his own living features in the countenance of his
horrible great-great-great-grandfather.
Ward brought his parents to see the marvel he had uncovered, and
his father at once determined to purchase the picture despite its
execution on stationary panelling. The resemblance to the boy,
despite an appearance of rather greater age, was marvelous; and it
could be seen that through some trick of atavism the physical
contours of Joseph Curwen had found precise duplication after a
century and a half. Mrs. Ward's resemblance to her ancestor was not
at all marked, though she could recall relatives who had some of the
facial characteristics shared by her son and by the bygone Curwen.
She did not relish the discovery, and told her husband that he had
better burn the picture instead of bringing it home. There was, she
averred, something unwholesome about it; not only intrinsically, but
in its very resemblance to Charles. Mr. Ward, however, was a
practical man of power and affairs—a cotton manufacturer with
extensive mills at Riverpoint in the Pawtuxet Valley—and not one to
listen to feminine scruples. The picture impressed him mightily with
its likeness to his son, and he believed the boy deserved it as a
present. In this opinion, it is needless to say, Charles most heartily
concurred; and a few days later Mr. Ward located the owner of the
house—a small rodent-featured person with a guttural accent—and
obtained the whole mantel and overmantel bearing the picture at a
curtly fixed price which cut short the impending torrent of unctuous
haggling.
It now remained to take off the panelling and remove it to the Ward
home, where provisions were made for its thorough restoration and
installation with an electric mock-fireplace in Charles' third-floor
study or library. To Charles was left the task of superintending this
removal, and on the twenty-eighth of August he accompanied two
expert workmen from the Crooker decorating firm to the house in
Olney Court, where the mantel and portrait-bearing overmantel were
detached with great care and precision for transportation in the
company's motor truck. There was left a space of exposed brickwork
marking the chimney's course, and in this young Ward observed a
cubical recess about a foot square, which must have lain directly
behind the head of the portrait. He found, beneath the deep coatings
of dust and soot some loose yellowed papers, a crude, thick copy-
book, and a few moldering textile shreds which may have formed the
ribbon binding the rest together. Blowing away the bulk of the dirt
and cinders, he took up the book and looked at the bold inscription
on its cover. It was in a hand which he had learned to recognize at
the Essex Institute, and proclaimed the volume as the "Journall and
Notes of Jos. Curwen, Gent., of Providence-Plantations, Late of
Salem."
Excited beyond measure by his discovery, Ward showed the book to
the two curious workmen beside him. Their testimony is absolute as
to the nature and genuineness of the finding, and Dr. Willett relies on
them to help establish his theory that the youth was not mad when
he began his major eccentricities. All the other papers were likewise
in Curwen's handwriting, and one of them seemed especially
portentous because of its inscription: "To Him Who Shal Come After,
How He May Gett Beyonde Time and Ye Spheres." Another was in a
cipher; the same, Ward hoped, as the Hutchinson cipher which had
hitherto baffled him. A third, and here the searcher rejoiced, seemed
to be a key to the cipher; whilst the fourth and fifth were addressed
respectively to "Edw. Hutchinson, Armiger" and "Jedediah Orne,
Esq.", "or Their Heir or Heirs, or Those Represent'g Them." The
sixth and last was inscribed: "Joseph Curwen his Life and Travells
Bet'n ye yeares 1678 and 1687: of Whither He Voyag'd, Where He
Stay'd, Whom He Sawe, and What He learnt."

We have now reached the point from which the more academic
school of alienists date Charles Ward's madness. Upon his discovery
the youth had looked immediately at a few of the inner pages of the
book and manuscripts, and had evidently seen something which
impressed him tremendously. Upon returning home he broke the
news with an almost embarrassed air, as if he wished to convey an
idea of its supreme importance without having to exhibit the
evidence itself. He did not even show the titles to his parents, but
simply told them that he had found some documents in Joseph
Curwen's handwriting, "mostly in cipher," which would have to be
studied very carefully before yielding up their true meaning. It is
unlikely that he would have shown what he did to the workmen, had
it not been for their unconcealed curiosity. As it was he doubtless
wished to avoid any display of peculiar reticence which would
increase their discussion of the matter.
That night Charles Ward sat up in his room reading the new-found
book and papers, and when day came he did not desist. His meals,
on his urgent request when his mother called to see what was amiss,
were sent up to him; and in the afternoon he appeared only briefly
when the men came to install the Curwen picture and mantelpiece in
his study. The next night he slept in snatches in his clothes,
meanwhile wrestling feverishly with the unraveling of the cipher
manuscript. In the morning his mother saw that he was at work on
the photostatic copy of the Hutchinson cipher, which he had
frequently showed her before; but in response to her query he said
that the Curwen key could not be applied to it. That afternoon he
abandoned his work and watched the men fascinatedly as they
finished their installation of the picture with its woodwork above a
cleverly realistic electric log, setting the mock-fireplace and
overmantel a little out from the north wall as if a chimney existed,
and boxing in its sides with panelling to match the room's. After the
workmen went he moved his work into the study and sat down
before it with his eyes half on the cipher and half on the portrait
which stared back at him like a year-adding century-recalling mirror.
His parents subsequently recalling his conduct at this period, give
interesting details anent the policy of concealment which he
practiced. Before servants he seldom hid any paper which he might
be studying, since he rightly assumed that Curwen's intricate and
archaic chirography would be too much for them. With his parents,
however, he was more circumspect; and unless the manuscript in
question were a cipher, or a mere mass of cryptic symbols and
unknown ideographs (as that entitled "To Him Who Shal Come After
etc." seemed to be) he would cover it with some convenient paper
until his caller had departed. At night he kept the papers under lock
and key in an antique cabinet of his, where he also placed them
whenever he left the room. He soon resumed fairly regular hours and
habits, except that his long walks and other outside interests seemed
to cease. The opening of school, where he now began his senior
year, seemed a great bore to him; and he frequently asserted his
determination never to bother with college. He had, he said,
important special investigations to make, which would provide him
with more avenues toward knowledge and the humanities than any
university which the world could boast.
During October Ward began visiting the libraries again, but no longer
for the antiquarian matter of his former days. Witchcraft and magic,
occultism and daemonology, were what he sought now; and when
Providence sources proved unfruitful he would take the train for
Boston and tap the wealth of the great library in Copley Square, the
Widener Library at Harvard, or the Zion Research Library in
Brookline, where certain rare works on Biblical subjects are
available. He bought extensively, and fitted up a whole additional set
of shelves in his study for newly acquired works on uncanny
subjects; while during the Christmas holidays he made a round of
out-of-town trips including one to Salem to consult certain records at
the Essex Institute.

About the middle of January, 1920, there entered Ward's bearing an

element of triumph which he did not explain, and he was no more
found at work upon the Hutchinson cipher. Instead, he inaugurated a
dual policy of chemical research and record-scanning; fitting up for
the one a laboratory in the unused attic of the house, and for the
latter haunting all the sources of vital statistics in Providence. Local
dealers in drugs and scientific supplies, later questioned, gave
astonishingly queer and meaningless catalogues of the substances
and instruments he purchased; but clerks at the State House, the
City Hall, and the various libraries agree as to the definite object of
his second interest. He was searching intensely and feverishly for
the grave of Joseph Curwen, from whose slate slab an older
generation had so wisely blotted the name.
Little by little there grew upon the Ward family the conviction that
something was wrong. His school work was the merest pretence; he
had other concernments now; and when not in his new laboratory
with a score of obsolete alchemical books, could be found either
poring over old burial records downtown or glued to his volumes of
occult lore in his study, where the startlingly—one almost fancied
increasingly—similar features of Joseph Curwen stared blandly at
him from the great overmantel on the north wall.
Late in March Ward added to his archive-searching a ghoulish series
of rambles about the various ancient cemeteries of the city. His quest
had suddenly shifted from the grave of Joseph Curwen to that of one
Naphthali Field; and this shift was explained when, upon going over
the files that he had been over, the investigators actually found a
fragmentary record of Curwen's burial which had escaped the
general obliteration, and which stated that the curious leaden coffin
had been interred "10 ft. S. and 5 ft. W. of Naphthali Field's grave in
ye——." Hence the rambles—from which St. John's (the former
King's) churchyard and the ancient Congregational burying ground in
the midst of Swan Point Cemetery were excluded, since other
statistics had shewn that the only Naphthali Field (obit. 1729) whose
grave could have been meant had been a Baptist.

It was toward May when Dr. Willett, at the request of the senior
Ward, and fortified with all the Curwen data which the family had
gleaned from Charles in his non-secretive days, talked with the
young man. The interview was of little value or conclusiveness, for
Willett felt at every moment that Charles was thoroughly master of
himself and in touch with matters of real importance; but it at least
forced the secretive youth to offer some rational explanation of his
recent demeanor. Of a pallid, impassive type not easily showing
embarrassment, Ward seemed quite ready to discuss his pursuits,
though not to reveal their object. He stated that the papers of his
ancestor had contained some remarkable secrets of early scientific
knowledge. To take their vivid place in the history of human thought
they must first be correlated by one familiar with the background out
of which they evolved, and to this task of correlation Ward was now
devoting himself. He was seeking to acquire as fast as possible
those neglected arts of old which a true interpreter of the Curwen
data must possess, and hoped in time to make a full announcement
and presentation of the utmost interest to mankind and to the world
of thought.
As to his graveyard search, whose object he freely admitted, but the
details of whose progress he did not relate, he said he had reason to
think that Joseph Curwen's mutilated headstone bore certain mystic
symbols—carved from directions in his will and ignorantly spared by
those who had effaced the name—which were absolutely essential
to the final solution of his cryptic system. Curwen, he believed, had
wished to guard his secret with care; and had consequently
distributed the data in an exceedingly curious fashion. When Dr.
Willett asked to see the mystic documents, Ward displayed much
reluctance and tried to put him off with such things as the photostatic
copies of the Hutchinson cipher and Orne formulae and diagrams;
but finally showed him the exteriors of some of the real Curwen finds
—the "Journal and Notes," the cipher (title in cipher also) and the
formula-filled message "To Him Who Shal Come After"—and let him
glance inside such as were in obscure characters.
He also opened the diary at a page carefully selected for its
innocuousness and gave Willett a glimpse of Curwen's connected
handwriting in English. The doctor noted very closely the crabbed
and complicated letters, and the general aura of the seventeenth
century which clung round both penmanship and style despite the
writer's survival into the eighteenth century, and became quickly
certain that the document was genuine. The text itself was relatively
trivial, and Willett recalled only a fragment. But when Dr. Willett
turned the leaf, he was quickly checked by Ward, who almost
snatched the book from his grasp. All that the doctor had a chance to
see on the newly opened page was a brief pair of sentences; but
these, strangely enough, lingered tenaciously in his memory.
They ran: "Ye Verse from Liber-Damnatus be'g spoke V
Roodmasses and IV Hallows-Eves, I am Hopeful ye Thing is breed'g
Outside ye Spheres. It will drawe One who is to Come if I can make
sure he shal bee, and he shall think on Past thinges and looke back
thro' all ye yeares, against ye which I must have ready ye Saltes or
That to make 'em with."
Willett saw no more, but somehow this small glimpse gave a new
and vague terror to the painted features of Joseph Curwen which
stared blandly down from the overmantel. Ever after that he
entertained the odd fancy—which his medical skill of course assured
him was only a fancy—that the eyes of the portrait had a sort of
tendency to follow young Charles Ward as he moved about the
room. He stopped before leaving to study the picture closely,
marveling at its resemblance to Charles and memorizing every
minute detail of the cryptical, colorless face, even down to a slight
scar or pit in the smooth brow above the right eye.
Assured by the doctor that Charles' mental health was in no danger,
but that on the other hand he was engaged in researches which
might prove of real importance, the Wards were more lenient than
they might otherwise have been when during the following June the
youth made positive his refusal to attend college. He had, he
declared, studies of much more vital importance to pursue; and
intimated a wish to go abroad the following year in order to avail
himself of certain sources of data not existing in America. The senior
Ward, while denying this latter wish as absurd for a boy of only
eighteen, acquiesced regarding the university; so that after a none
too brilliant graduation from the Moses Brown School there ensued
for Charles a three year period of intensive occult study and
graveyard searching.

Coming of age in April, 1923, and having previously inherited a small

competence from his maternal grandfather, Ward determined at last
to take the European trip hitherto denied him. Of his proposed
itinerary he would say nothing save that the needs of his studies
would carry him to many places, but he promised to write his parents
fully and faithfully. When they saw he could not be dissuaded, they
ceased all opposition and helped as best they could; so that in June
the young man sailed for Liverpool with the farewell blessings of his
father and mother, who accompanied him to Boston and waved him
out of sight from the White Star pier in Charlestown. Letters soon
told of his safe arrival, and of his securing good quarters in Great
Russell Street, London; where he proposed to stay, shunning all
family friends, till he had exhausted the resources of the British
Museum in a certain direction. Of his daily life he wrote but little, for
there was little to write. Study and experiment consumed all his time,
and he mentioned a laboratory which he had established in one of
his rooms. That he said nothing of antiquarian rambles in the
glamorous old city with its luring skyline of ancient domes and
steeples and its tangles of roads and alleys whose mystic
convolutions and sudden vistas alternately beckon and surprise, was
taken by his parents as a good index of the degree to which his new
interests had engrossed his mind.
In June, 1924, a brief note told of his departure for Paris, to which he
had before made one or two flying trips for material in the
Bibliotheque Nationale. For three months thereafter he sent only
postal cards, giving an address in the Rue St. Jacques and referring
to a special search among rare manuscripts in the library of an
unnamed private collector. He avoided acquaintances, and no
tourists brought back reports of having seen him. Then came a
silence, and in October the Wards received a picture card from
Prague, Czecho-Slovakia, stating that Charles was in that ancient
town for the purpose of conferring with a certain very aged man
supposed to be the last living possessor of some very curious
mediaeval information. He gave an address in the Newstadt, and
announced no move till the following January; when he dropped
several cards from Vienna telling of his passage through that city on
the way toward a more easterly region whither one of his
correspondents and fellow-delvers into the occult had invited him.
The next card was from Klausenburg in Transylvania, and told of
Ward's progress toward his destination. He was going to visit a
Baron Ferenczy, whose estate lay in the mountains east of Rakus;
and was to be addressed at Rakus in the care of that nobleman.
Another card from Rakus a week later, saying that his host's carriage
had met him and that he was leaving the village for the mountains,
was his last message for a considerable time; indeed, he did not
reply to his parents' frequent letters until May, when he wrote to
discourage the plan of his mother for a meeting in London, Paris, or
Rome during the summer, when the elder Wards were planning to
travel in Europe. His researches, he said, were such that he could
not leave his present quarters; while the situation of Baron
Ferenczy's castle did not favor visits. It was on a crag in the dark
wooded mountains, and the region was so shunned by the country
folk that normal people could not help feeling ill at ease. Moreover,
the Baron was not a person likely to appeal to correct and
conservative New England gentlefolk. His aspect and manners had
idiosyncrasies, and his age was so great as to be disquieting. It
would be better, Charles said, if his parents would wait for his return
to Providence; which could scarcely be far distant.
That return did not, however, take place until May, 1925, when after
a few heralding cards the young wanderer quietly slipped into New
York on the Homeric and traversed the long miles to Providence by
motor coach eagerly drinking in the green rolling hills, the fragrant,
blossoming orchards, and the white steepled towns of Connecticut in
spring; his first taste of ancient New England in nearly four years.
Old Providence! It was this place and the mysterious forces of its
long, continuous history which had brought him into being, and which
had drawn him back toward marvels and secrets whose boundaries
no prophet might fix. Here lay the arcana, wondrous or dreadful as
the case might be, for which all his years of travel and application
had been preparing him. A taxicab whirled him through Post Office
Square with its glimpse of the river, and up the steep curved slope of
Waterman Street to Prospect. Then eight squares past the fine old
estates his childish eyes had known, and the quaint brick sidewalks
so often trodden by his youthful feet. And at last the little white
overtaken farmhouse on the right, and on the left the classic Adam
porch and stately bayed façade of the great brick house where he
was born. It was twilight, and Charles Dexter Ward had come home.
Ward was now visibly aged and hardened, but was still normal in his
general reactions; and in several talks with Willett displayed a
balance which no madman—even an incipient one—could feign
continuously for long. What elicited the notion of insanity at this
period were the sounds heard at all hours from Ward's attic
laboratory, in which he kept himself most of the time. There were
chantings and repetitions, and thunderous declamations in uncanny
rhythms; and although these sounds were always in Ward's own
voice, there was something in the quality of that voice and in the
accents of the formulae it pronounced, which could not but chill the
blood of every hearer. It was noticed that Nig, the venerable and
beloved black cat of the household, bristled and arched his back
perceptibly when certain of the tones were heard.
The odors occasionally wafted from the laboratory were likewise
exceedingly strange. Sometimes they were very noxious, but more
often they were aromatic, with a haunting, elusive quality which
seemed to have the power of inducing fantastic images. People who
smelled them had a tendency to glimpse momentary mirages of
enormous vistas, with strange hills or endless avenues of sphinxes
and hippogriffs stretching off into infinite distance. His older aspect
increased to a startling degree his resemblance to the Curwen
portrait in his library; and Dr. Willett would often pause by the latter
after a call, marvelling at the virtual identity, and reflecting that only
the small pit above the picture's right eye now remained to
differentiate the long-dead wizard from the living youth. Frequently
he noted peculiar things about; little wax images of grotesque design
on the shelves or tables, and the half-erased remnants of circles,
triangles, and pentagrams in chalk or charcoal on the cleared central
space of the large room. And always in the night those rhythms and
incantations thundered, till it became very difficult to keep servants
or suppress furtive talk of Charles' madness.
In January, 1927, a peculiar incident occurred. One night about
midnight, as Charles was chanting a ritual whose weird cadence
echoed unpleasantly through the house below, there came a sudden
gust of chill wind from the bay, and a faint, obscure trembling of the
earth which everyone in the neighborhood noted. At the same time
the cat exhibited phenomenal traces of fright, while dogs bayed for
as much as a mile around. This was the prelude to a sharp
thunderstorm, anomalous for the season, which brought with it such
a crash that Mr. and Mrs. Ward believed the house had been struck.
They rushed upstairs to see what damage had been done, but
Charles met them at the door to the attic; pale, resolute, and
portentous, with an almost fearsome combination of triumph and
seriousness on his face. He assured them that the house had not
really been struck, and that the storm would soon be over. The
thunder sank to a sort of dull mumbling chuckle and finally died
away. Stars came out, and the stamp of triumph on Charles Ward's
face crystallized into a very singular expression.

For two months or more after this incident Ward was less confined
than usual to his laboratory. He exhibited a curious interest in the
weather, and made odd inquiries about the date of the spring
thawing of the ground. One night late in March he left the house after
midnight, and did not return till almost morning; when his mother,
being wakeful, heard a rumbling motor draw up the carriage
entrance. Muffled oaths could be distinguished, and Mrs. Ward,
rising and going to the window, saw four dark figures removing a
long, heavy box from a truck at Charles' direction and carrying it
within by the side door. She heard labored breathing and ponderous
footfalls on the stairs, and finally a dull thumping in the attic; after
which the footfalls descended again, and the four men reappeared
outside and drove off in their truck.
The next day Charles resumed his strict attic seclusion, drawing
down the dark shades of his laboratory windows and appearing to be
working on some metal substance. He would open the door to no
one, and steadfastly refused all proffered food. About noon a
wrenching sound followed by a terrible cry and a fall were heard, but
when Mrs. Ward rapped at the door her son at length answered
faintly, and told her that nothing had gone amiss. The hideous and
indescribable stench now welling out was absolutely harmless and
unfortunately necessary. Solitude was the one prime essential, and
he would appear later for dinner. That afternoon, after the conclusion
of some odd hissing sounds which came from behind the locked
portal, he did finally appear; wearing an extremely haggard aspect
and forbidding anyone to enter the laboratory upon any pretext. This,
indeed, proved the beginning of a new policy of secrecy; for never
afterward was any other person permitted to visit either the
mysterious garret workroom or the adjacent storeroom which he
cleared out, furnished roughly, and added to his inviolably private
domain as a sleeping apartment. Here he lived, with books brought
up from his library beneath, till the time he purchased the Pawtuxet
bungalow and moved to it all his scientific effects.
In the evening Charles secured the paper before the rest of the
family and damaged part of it through an apparent accident. Later on
Dr. Willett, having fixed the date from statements by various
members of the household, looked up an intact copy at the Journal
office and found that in the destroyed section the following small item
had occurred:
Nocturnal Diggers Surprised in North Burial Ground
Robert Hart, night watchman at the North Burial Ground, this
morning discovered a party of several men with a motor truck in the
oldest part of the cemetery, but apparently frightened them off before
they had accomplished whatever their object may have been.
The discovery took place at about four o'clock, when Hart's attention
was attracted by the sound of a motor outside his shelter.
Investigating, he saw a large truck on the main drive several rods
away; but could not reach it before the sound of his feet on the
gravel had revealed his approach. The men hastily placed a large
box in the truck and drove away toward the street before they could
be overtaken; and since no known grave was disturbed, Hart
believes that this box was an object which they wished to bury.
The diggers must have been at work for a long while before
detection, for Hart found an enormous hole dug at a considerable
distance back from the roadway in the lot of Amosa Field, where
most of the old stones have long ago disappeared. The hole, a place
as large and deep as a grave, was empty; and did not coincide with
any interment mentioned in the cemetery records.