LEGAL STATUS OF THE DEAD BODY
Disposal and Obligations to Dispose of the Same—There is no right of property, in the ordinary sense of the word, in a dead human body; but for the health and protection of society it is a rule of the common law, and which has been confirmed by statutes in civilized states and countries, that public duties are imposed upon public officers, and private duties upon the husband or wife and the next of kin of the deceased, to protect the body from violation and see that it is properly interred, and to protect it after it is interred. A parent is bound to provide Christian burial for a deceased child, if he has the means, but if he has not the means, though the body remains unburied so long as to become a nuisance, he is not indictable for the nuisance although he could obtain money for the burial expenses by borrowing it of the poor-law authorities of the parish, for he is not bound to incur a debt. (Reg. v. Vann, 2 Div. C. C., 325; 15 Jur., 1,090.) On the other hand it has been held in England, that every householder in whose house a dead body lies is bound by the common law, if he has the means to do so, to inter the body decently, and this principle applies where a person dies in the house of a parish or a union. (Reg. v. Stewart, 12 A. & D., 1,272.) And the expense may be paid out of the effects of the deceased. (Tugwell v. Hayman, 3 Camp., 298, and note.)
In Pierce v. The Proprietors Swan Point Cemetery, 10 R. I., 227, s. c., 14 Am. Rep., 667, the Court said: “That there is no right of property in a dead body, using this word in its ordinary sense, may be well admitted, yet the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by some one toward the dead; a duty, and we may also say a right, to protect from violation; it may, therefore, be considered as a sort of quasi property, and it would be discreditable[298] to any system of law not to provide a remedy in such a case; … but the person having charge of it 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.” See also Wyncoop v. Wyncoop, 42 Pa. St., 293; 4 Albany Law Jour., 56; Snyder v. Snyder, 60 How. Prac., 368; Weld v. Walker, 130 Mass., 422; Guthrie v. Weaver, 1 Mo. Apps., 136; Johnson v. Marinus, 18 Abb. N. C., 72, and note.
The law casts the duty of burial of the wife upon the husband, and of the husband upon the wife. In Secord v. Secord (cited in note 1 above), the Court said: “There are cogent reasons connected with public policy and the peace of families, where in the absence of testamentary disposition the possession of a corpse and the right to determine its burial should follow the administration of the estate.” Inasmuch as the husband has the first right to administer upon the estate of the wife, and the wife upon the estate of the husband, the law imposes the correlative duty of burial upon the person having such right; and so it has been held that the husband is liable for the necessary expense of the decent interment of his wife from whom he has been separated, whether the party incurring the expense is an undertaker or mere volunteer.
Where the deceased leaves a will appointing executors, the executors have a right to the possession of the body, and the duty of burial is imposed upon them, but it has been doubted whether at common law a direction by will concerning the disposal of the body could be enforced, and therefore the right to make such direction has been conferred by statute in several States.
And where a widow ordered a funeral of her husband, it was held that she was liable for the expense, although she was an infant at the time, the Court holding that the expense fell under the head of necessaries, for which infants’ estates are liable.
If there be no husband or wife of the deceased, the nearest of kin in the order of right to administration is charged with the duty of burial.
Such acts as casting a dead human body into a river without the rites of sepulture (Kanavans Case, 1 Me., 226); stealing a corpse (2 East, PC., 652) or stealing for dissection a dead body of one executed when the death sentence did not direct dissection (Rex v. Cundick, D. & R., n. p., 13), were indictable offences at common law.
In the works of the early dramatists, and by some writers of fiction, it has been stated, or implied, that the body of a deceased person could be seized and detained to compel the payment of his debts. This was never the law. In Jones v. Ashburnham, 4 East, 460, it was held that to seize a dead body on pretence of arresting for debt would be contra bonos mores, and an extortion on the relatives, and that case distinctly overrules any authority to be derived from the case of Quick v. Coppleton, 1 Vent., 161, to the effect that forbearance to seize or hold a body upon such a pretence would afford any consideration for a promise to pay a debt. So, also, where a jailer refused to give up a body of a person who had died while a prisoner in execution in his custody, to the executors of the deceased, unless they would satisfy certain claims against the deceased due the jailer, the Court issued a peremptory mandamus in the first instance, commanding that the body should be delivered up to the executors (Rex v. Fox, 2 Q. B., 247). And in R. v. Scott, 2 Q. B., 248, it was said, that a jailer who should[300] attempt to do so would be guilty of misconduct in his public character, for which he would be liable to prosecution.
How and by Whom the Dead Human Body may be Removed or Exhumed
Where the right of burial has been exercised, and the body interred in its final resting-place, no person has any right to interfere with it without the consent of the owner of the grave, or of the properly constituted public authorities. In Foster v. Dodd, 8 D. & E., 842-854, it was held, that a dead body belongs to no one, and is, therefore, under the protection of the public. If it lies in consecrated ground, ecclesiastical authorities will interpose for its protection; but whether in ground consecrated or unconsecrated, indignities offered to the remains or the act of indecently disinterring them, are the ground of an indictment.
Even the purchaser of land upon which is located a burial-ground may be enjoined from removing bodies therefrom, if he attempts to do so against the wishes of the relatives or next of kin of the deceased. Every interment is a concession of the privilege which cannot afterward be repudiated, and the purchaser’s title to the ground is fettered with the right of burial.
On the other hand, the right of the municipal or state authorities, with the consent of the owner of the burial lot or in the execution of the right of eminent domain, to remove dead bodies from cemeteries is well settled.
After the right of burial has once been exercised by the person charged with the duty of burial, or where such person has consented to the burial by another person, no right to the corpse remains except to protect it from unlawful interference.
On the other hand, where a husband did not freely consent to the burial of his wife in a lot owned by another person, it was held that a court of equity might permit him, after such burial, to remove her body, coffin, and tombstones to his own lot, and restrain any person from interfering with such removal.
In Rhodes v. Brandt, 21 Hun, N. Y., 1, the defendant brought an action against one Beelard to recover for services rendered by him, as a physician, in treating a child of Beelard’s for a fracture of the thigh-bone, in which action Beelard set up malpractice on the part of the defendant as a defence. During the pendency of the action the child died and was buried. Subsequently Beelard, the father, acting under the advice of his counsel, directed and allowed the plaintiff, a physician, to cause the body of the child to be exhumed, and a portion of the thigh-bone to be removed, in order that it might be used in evidence on the trial of the question of malpractice. After the bone was removed, the body was returned to the grave. The defendant thereupon caused the plaintiff to be arrested for unlawfully removing the body from the grave contrary to the provisions of the statute, and the plaintiff sued the defendant for malicious prosecution. The Court held that the plaintiff had not removed the body from the grave “for the purpose of dissection or from mere wantonness,” as these terms were used in the statute (3 R. S., 6th ed., 965), for violation of which he had been arrested, nor had he committed any offence against public decency or the spirit of the statute.
Autopsies, by Whom Ordered; the Rights of Relatives and Accused Persons
As shown in a previous article in this volume, on the Powers and Duties of Coroners and Medical Examiners, in cases of sudden or suspicious death, it has been the law for nearly a thousand years that an inquisition or inquest super visum corporis must be held by an officer known as a coroner, and that this office and its powers and duties were inherited by this country as part of the English common-law system in force at the time of the formation of the republic of the United States. When a body has been buried, and the coroner believes that an inquest is necessary, he has power to disinter the body and hold an inquest, and he may direct a post-mortem examination to be made, but after having done so he must cause the body to be reinterred. It is now well settled that in holding such an inquest, and making such an autopsy or post-mortem examination required by his official duty, the coroner has authority to employ, and it is his duty to employ, professional skill and aid, and his contract will bind the county to pay a reasonable compensation for the same.
As will be seen below from a synopsis of the statutes relating to this matter, many of the States have enacted statutes defining and prescribing the duties of the coroner and other public officers in such cases. At an early period in England (see 2 and 3 Will. IV., chap. 75, sec. 7) it was enacted by the English Parliament that any executor or other person having lawful possession of the body of a deceased person, and not being an undertaker or other party entrusted with the body for the purpose only of interment, might lawfully permit the body of such deceased person to undergo an anatomical examination, unless to the knowledge of such executor or other party such person should have expressed his desire during his life in writing, or verbally in the presence of two or more witnesses during his illness whereof he died, that his body after death might not undergo such examination, or unless the surviving husband or wife or known relative of the deceased shall require the body to be interred without such examination. By another section of this statute (sec. 10), professors of anatomy and other persons duly licensed were declared not liable to punishment for having in their possession human bodies when having such possession according to the provisions of the act.
Section 308 of the New York Penal Code, subdivision 3, as amended by chapter 500, Laws 1889, enacts that whenever and so far as the husband, wife, or next of kin of the deceased, being charged by law with the duty of burial, may authorize dissection for the purpose of ascertaining the cause of death and no further, the right exists to dissect the dead human body. The same statute also provides that whenever any district attorney of that State, in the discharge of his official duties, shall deem it necessary, he may exhume, take possession of, and remove the body of a deceased person, or any portion thereof, and submit the same to a proper physical or chemical examination or analysis, to ascertain the cause of death, which examination or analysis will be made on the order of a justice of the Supreme Court of the State, or the county judge of the county in which the dead bodies shall be, granted on the application of the district attorney, with or without notice to the relatives of the deceased person, or to any person or corporation having the legal charge of such body, as the court may direct. The district attorney shall also have power to direct the sheriff, constable, or other peace officer, and employ such person or persons as he may deem necessary to assist him, in exhuming, removing, obtaining possession of, and examining physically or chemically such dead body, or any portion thereof; the expense thereof to be a county charge paid by the county treasurer on the certificate of the district attorney.
The matter of ordering autopsies and dissections of dead bodies, or exhuming the same for that purpose or other purposes, is a matter of so much public importance that it has been regulated in nearly all of the United States by statutory enactments, which together with the other statutes relating to the subject-matter of this article are hereunto appended.
The author of this article is greatly indebted for assistance in preparing the same, and in compiling these statutes, to Mr. Amasa J. Parker, Jr., of the Albany, N.Y., bar.
Adopted From: MEDICAL JURISPRUDENCE-1894
TRACY C. BECKER, A.B., LL.B.
Counsellor at Law, Professor of Criminal Law and Medical Jurisprudence in the University of Buffalo.
