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 attempt to do so would be guilty of misconduct in his public character, for which he would be liable to prosecution.[499]
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.[500]
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.[501]
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.[502]
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.[503]
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.[504]
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.[505]
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.[506]
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.