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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