CHAPTER XII.

DISSECTION AND RESURRECTION.

A knowledge of the causes and nature of sundry diseases which affect

the human body, and of the best methods of treating and curing such

diseases, and of healing and repairing divers wounds and injuries to

which the human frame is liable, cannot be acquired without the aid of

anatomical examination. So saith the preamble to the British Anatomy

Act of 1832. The chief hindrances to the pursuit of the study of

anatomy have arisen from ignorance and superstition. A prejudice has

prevailed in all nations against the violation of the human body after

death. Even now, only philosophers like Jeremy Bentham are willing to

have their bodies dissected by their friends. Simple association of

thoughts causes the remains of a dead kinsman or friend to be treated

with respect and tenderness; in the same way, the horror of death

attaching to anything connected with the dead, and the religious idea

that the soul outlives the body, and continues in a ghostly way to

retain a connection with its old habitation of clay, have led to the

respectful disposal of the corpse among most nations.

The Ptolemy princes Philadelphus and Euergetes, who enabled their

physicians to dissect the human body, and prevented the prejudices of

ignorance and superstition from compromising the welfare of the human

race, were far in advance of their times. Long after their day, the

Koran denounced as unclean the person who touched a corpse, and |150|

the rules of Islamism still forbid dissection; the old Moslem doctors

only found opportunities of studying the bones of the human body in

the cemeteries. Not until the days of Henry VIII. did the law make any

provision for the cultivation and practice of the art of dissection.

In 1540, more perhaps to strike terror into malefactors, than from

any enlightened notion of forwarding knowledge, the Legislature gave

permission to the masters of the Mystery of Barbers and Surgeons of

London to take annually four persons, put to death for felony, for

anatomies, and to make incision of the same dead bodies, or otherwise

to order the same, after their discretions, at their pleasure, for

their further insight and better knowledge, instruction, insight,

learning, and experience, in the science or faculty of surgery [412].

Elizabeth, in 1565, made a similar grant to the College of Physicians,

that they, observing all decent respect for human flesh, “might dissect

the four felons.” By 25 Geo. II. cap. 37 (1752), the bodies of all

murderers executed in London and Westminster were to be given to the

surgeons to be dissected and anatomised. But the legal supply of human

bodies for anatomical examination still continued insufficient fully to

provide the means of knowledge; and in order to furnish the necessary

subjects, divers great and grievous crimes and murders were committed,

the money paid, being the incentive. So, in 1832, the Anatomy Act [413]

was passed. This Act proves clearly that Parliament regarded anatomy as

a legal practice, and it provides for the licensing of those practising

anatomy, allows any executor or other person, having lawful possession

of any dead person (and not being an undertaker, etc.), to hand over

the body for dissection (respect, however, being had to |151| the

wishes of the deceased or his known relatives). Inspectorships of

schools of anatomy were likewise established.

In Canada, the bodies of convicts who die in a penitentiary, if

unclaimed by the relatives, may be delivered to the professors of

anatomy in any medical college, or to an inspector of anatomy [414].

The first defender of the faith, Henry VIII., the illustrious Elizabeth

of most famous memory, and the enlightened James, had several statutes

passed in which the disinterring of the dead is mentioned, but they

were chiefly enactments against witchcraft, conjuration, the use

of dead men’s bones, and all sorts of sorceries. The parliament of

James solemnly enacted, “that if any person should consult, covenant

with, entertain, employ, feed or reward any evil and wicked spirit,

to or for any intent or purpose, or take up any dead man, woman, or

child out of his, her, or their grave, or any other place where the

dead body rested, or the skin, bone, or any other part of any dead

person, to be employed, or used, in any manner of witchcraft, sorcery,

charm, or enchantment * * every such offender, his aiders, abettors,

and counsellors, should suffer death as felons, and should lose the

privilege and benefit of clergy and sanctuary” [415]. This philosophical

enactment graced the statute book until the ninth year of George II.

While these statutes against sorcery were in force, and the Judges

still imbued with the superstitious spirit of the age, the presumption

was very strong that bodies disinterred were removed for purposes

of enchantment or witchcraft, and resurrection-men and students of

anatomy, as their aiders and abettors, were in imminent jeopardy of

suffering as felons; but as the belief in sorcery grew weaker the

prospect of these men grew brighter, and they were relieved from the

great danger that they ran. |152|

Under the laws of Constantine, a woman could without blame repudiate

her husband, if he was guilty of violating the tombs of the dead; and

we are told that the Ostrogoths allowed divorce for this same reason.

And among the Franks, one who took the clothing from a buried corpse

was banished from society, and none could relieve his wants until the

relations of the deceased consented [416]. As long ago as the tenth

year of James I., at the assizes in Leicester, a man was tried for

stealing winding sheets. Sir Edward Coke tells the matter thus: “One

William Hain had in the night digged up the graves of divers several

men and of one woman, and took the winding sheets from the bodies and

buried the bodies again; and I advising hereupon, for the rareness of

the case, consulted with the Judges at Sergeants’ Inn on Fleet street,

when we all resolved, that the property of the sheets was in the

executors, administrators, or other owner of them, for the dead body is

not capable of any property, and the property of the sheets must be in

somebody, and according to this resolution he was indicted of felony in

the next assizes; but the jury found it but petit larceny, for which he

was whipped, as he well deserved.” These learned people thought that

if a winding sheet had been gratuitously furnished by a friend the

property remained in the donor. For, quoth they, the winding sheet must

be the property of somebody; a dead body, being but a lump of earth,

hath no capacity; also, it is no gift to the person, but bestowed

on the body for the reverence toward it, to express the hope of the

resurrection; also, a man cannot relinquish the property he hath to his

goods unless they be vested in another [417]. Subsequently, lawyers have

generally concurred in these opinions; the coffin, too, is the property

of the personal representative of the deceased [418]. |153|

A still more interesting question arises as to who owns the corpse.

It has been generally held that there is no property in it. Blackstone

remarks, that, although the heir has a property in the monuments

or escutcheons of his ancestor, he has none in his body or ashes.

According to the law of England, after the death of a man, his

executors have a right to the possession and custody of his body

(although they have no property in it) until it is properly buried. A

man cannot dispose of his body by will or any other instrument [419].

A contract for the sale of a corpse, even to doctors, will not be

enforced; it cannot be made an article of merchandise [420]. The

relatives have the right of interring the body, and when this right

is once exercised they have no further interest in it than to protect

it from injury [421]. In Indiana, the Courts have diverged somewhat

from the beaten track, and held that the surviving relatives are

entitled to the corpse in the order of inheritance as property, and

that they have a right to dispose of it as such, subject to whatever

burial regulations are reasonable and proper for the public health and

advantage [422].

The English Anatomy Act, as has been seen, gives the executor or other

person having the lawful possession of the body of any deceased person

power to permit it to be anatomically examined. In England, the earlier

writers on criminal law say nothing of the taking of a body from the

grave, except that it is not theft. East, however, calls it a great

misdemeanor; and there have been several convictions for this as an

offence at Common Law. Doubtless the belief that it was an offence at

Common Law was nearly connected |154| with the idea of the bodies

being used for the dark purposes of the necromancer, and it would

appear that no distinct authority upon the abstract point has been

found in ancient legal records [423]. It is still an indictable offence,

punishable with fine and imprisonment, or both [424]. And this even

though the body has been taken in the interest of science, and for the

purpose of dissection; or even if the motives of the offender were

pious and laudable. In _Lynn’s_ case—(Lynn was indicted for entering a

burying ground, taking a coffin up, and carrying away a corpse for the

purposes of dissection)—it was urged that the offence was cognizable

only by the ecclesiastical courts; but the Judges of the King’s Bench

said that common decency required that a stop should be put to the

practice; that it was an offence cognizable in a criminal court as

being highly indecent, and _contra bonos mores_, at the bare idea alone

of which nature revolted; that the purpose of taking up the body for

dissection did not make it less an indictable offence. They refused to

stay proceedings, but inasmuch as Lynn might have committed the deed

merely through ignorance, they only fined him five marks. Since then

others have been more severely dealt with. And in a very recent case,

Stephen, J., said, “The law to be collected from these authorities

seems to me to be this:—The practice of anatomy is lawful, though it

may involve an unusual means of disposing of dead bodies, and though it

certainly shocks the feelings of many persons; but to open a grave and

disinter a dead body without authority is a misdemeanor, even if it is

done for a laudable purpose.”

It is, also, an indictable offence in many of the States to disinter a

corpse, unless the deceased in his life-time had |155| directed such a

thing, or his relatives consent to it; and that the resurrecting is for

the purpose of dissecting does not improve matters [425]. In New York,

removing dead bodies “for the purpose of selling the same,” or “from

mere wantonness,” is punishable by both fine and imprisonment [426]. And

in New Hampshire and Vermont such offences bring upon those convicted,

fines, whipping, and imprisonment, as the Court may see fit.

In Massachusetts, unclaimed dead bodies, and those of persons killed

in duels, or capitally executed, are assigned to the medical schools

of the State. The New York Act of 1789 must be considered as the

first American Anatomy Law. The first section prohibits the removal

of dead bodies for dissection, and the second section permits the

Courts, in passing capital sentence, to award the body to the surgeons

for dissection. Enactments similar to that of the New York Act, sec.

1, have been passed by the following States: Alabama, Arkansas,

California, Connecticut, Georgia, Illinois, Indiana, Iowa, Kansas,

Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi,

Missouri, Nebraska, New Hampshire, Ohio, Oregon, Pennsylvania, Rhode

Island, Tennessee, Texas, Vermont, Virginia, West Virginia, and

Wisconsin. The second section of the New York Act has developed into

the Acts of twenty-four States, which have thus legalized dissection,

and most of them have made specific provision for the dissection of the

bodies of certain deceased criminals, chiefly murderers; these States

are Alabama, Arkansas, California, Colorado, Connecticut, Georgia,

Illinois, Indiana, Iowa, Kansas, Maine, Massachusetts, Michigan,

Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York,

Ohio, Pennsylvania, Tennessee, Vermont, and Wisconsin. Some of these

States |156| have made no other provision for anatomical study beyond

that mentioned [427]. We have already referred to the Canadian Act on

this subject. In addition, the Ontario Act provides that the bodies of

persons found dead, publicly exposed, or who at time of death had been

supported in and by some institution receiving government aid (except

lunatics in provincial asylums), shall, unless the person so dying

otherwise direct, or the _bona fide_ friends or relations claim it, be

given to public medical schools in the locality, or to public teachers

of anatomy or surgery, or private medical practitioners, having

three or more pupils, for whose instruction such bodies are actually

required. Such medical practitioners must give security for the decent

interment of the bodies after they have served their purposes; and

then a written authority to open a dissecting room is given by the

Inspector of Anatomy of the city, town, or place. The Inspector’s duty

is to keep a register of bodies given up for dissection; a register

of the qualified practitioners desiring bodies; to make an impartial

distribution of the bodies in rotation; to visit the dissection rooms,

and to report to the police magistrate or chief municipal officer, any

improper conduct on the part of students or teachers [428].

A person may be found guilty of the offence of disinterring a corpse,

even though he was not actually present at the body-lifting, if with

the intention of giving aid and assistance he was near enough to afford

it, if required [429].

Besides the danger he runs of being brought before a criminal tribunal,

the body-lifter incurs the risk of civil proceedings being taken

against him. It is true, as Blackstone says, the heir has no property

in the body or ashes of |157| his ancestors; nor can he bring any

civil action against such as indecently, at least, if not impiously,

violate and disturb their remains when dead and buried; but that

learned commentator goes on to remark: “The person, indeed, who has

the freehold of the soil, may bring an action of trespass against such

as dig and disturb it” [430]. This has been clearly established in a

case in Massachusetts, where a father sued for the removal of the

remains of his child, and recovered a verdict for $837 in an action

of trespass _quare clausum fregit_. Mr. Justice Forster, in giving

judgment, remarks that a dead body is not the subject of property,

and after burial it becomes part of the ground to which it has been

committed, earth to earth, dust to dust, ashes to ashes. The only

action that can be brought is trespass _quare clausum_. Any one, said

the Judge, in actual possession of the land may maintain this against

a wrong-doer. The gist of the action is the breaking and entering, but

the circumstances which accompany and give character to the trespass

may always be shown either in aggravation or mitigation. Acts of

gross carelessness as well as those of wilful mischief often inflict

a serious wound to the feelings, when the injury done to property is

comparatively trifling, and we know of no rule of law which requires

the mental suffering of the party complaining, caused by the misconduct

of the wrong-doer, to be disregarded [431].

Willcock, in his “Laws relating to the Medical Profession,” in his

tenth chapter, when considering the lawfulness or unlawfulness of

taking bodies for the purpose of dissection, says: “The whole question

must depend upon the proper answer to these inquiries. Is it a

violation of property? |158| Is it a personal injury to any individual?

Or is it an injury to the public? Every lawyer who has mentioned

the subject has admitted that there is no violation of property in

respect of the corpse itself, which is necessary to constitute the

removal an offence; and Blackstone has distinctly stated that the only

property violated is the grass and soil of the land wherein the body

was interred, in respect of which the person may bring his action

of trespass, and the law has not provided any punishment as for an

offence. It is equally clear that it is not an injury to any person;

for the shrewd lawyers of Coke’s time determined that the body was

no person but a lump of clay; and the only injury which can give a

right of action to—that is which amounts to a violation of any legal

right of—a relative or master, is such as may be said to recoil upon

him, by causing him expense, labor, or loss of valuable service. The

unpleasantness which may arise from an attack upon prejudices, however

intimately blended with good feeling and delicacy of sentiment, is

ranked by the court with that class of wrongs which are technically

designated _damna absque injuria_.”

“In _Lynn’s_ case, the judges assumed to answer the third question,

that is to assert that it is an injury to the public. Society is not

injured by the disinterment of the dead for the purposes of science,

for it could hardly exist without such a sacrifice of fastidiousness;

society is not insulted by the secret abstraction of the corpse from

the vermin which crowd to pollute it, and they who so curiously seek

the remains of those they hold dear, behind the veil of science, would

do well to pry for one moment into the secrets of the sepulchre. They

alone are the violators of every sentiment of delicacy and benevolence

who insult the disconsolate relatives with the tale of the robbery and

the pursuit, and with the foul spectacle of dismemberment they may have

at length discovered.” |159|

It would appear that in a proper case the Court, in the interests

of justice, will compel the exhuming and examination of a dead body

which is under the control of a plaintiff, if there is strong reason

to believe that without such examination a fraud is likely to be

accomplished, and the defendant has exhausted every other method known

to the law of exposing it. However, such an order should be made

only upon a strong showing to that effect. “It would be a proceeding

repugnant to the best feelings of our nature, and likely to be in many

cases so abhorrent to the sensibilities of the surviving relatives,

that they would prefer an abandonment of the suit to a compliance

with the order.” Thus spake the court in a case where the order for

exhuming was asked for and refused as not being justified under the

circumstances. The action was on a policy of insurance, and the defence

was, that the insured had falsely warranted that he had never received

any serious personal injury, whereas his skull had been fractured in

boyhood, and had been healed by trephining. To prove this, the company

proposed to disinter his body, after the suit had been pending eighteen

months, upon the sole testimony of his physician, that the deceased

had said that he had been told of such an accident and operation. The

counsel for the plaintiff called the proposal “revolting,” and said

that to break the signet of the grave, and take from its resting place

the sacred property of relatives to gratify the corporation’s mercenary

curiosity, would be worse than Shylock’s demand [432].

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The Law and Medical Men · 第 12 / 15 章