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]).