§ 110. The Legal Status of Dead Men.
Dead men are no longer persons in the eye of the law. They have laid down their legal personality with their lives, and are now as destitute of rights as of liabilities. They have no rights because they have no interests. There is nothing that concerns them any longer, “neither have they any more a portion for ever in anything that is done under the sun.” They do not even remain the owners of their property until their successors enter upon their inheritance. We have already seen how, in the interval between death and the entering of the heir, Roman law preferred to personify the inheritance itself, rather than attribute any continued legal personality or ownership to the dead man.[[262]] So in English law the goods of an intestate, before the grant of letters of administration, have been vested in the bishop of the diocese or in the judge of the Court of Probate, rather than left to the dead until they are in truth acquired by the living.
Yet although all a man’s rights and interests perish with him, he does when alive concern himself much with that which shall become of him and his after he is dead. And the law, without conferring rights upon the dead, does in some degree recognise and take account after a man’s death of his desires and interests when alive. There are three things, more especially, in respect of which the anxieties of living men extend beyond the period of their deaths, in such sort that the law will take notice of them. These are a man’s body, his reputation, and his estate. By a natural illusion a living man deems himself interested in the treatment to be awarded to his own dead body. To what extent does the law secure his desires in this matter? A corpse is the property of no one. It cannot be disposed of by will or any other instrument,[[263]] and no wrongful dealing with it can amount to theft.[[264]] The criminal law, however, secures decent burial for all dead men, and the violation of a grave is a criminal offence.[[265]] “Every person dying in this country,” it has been judicially declared,[[266]] “has a right to Christian burial.” On the other hand the testamentary directions of a man as to the disposal of his body are without any binding force,[[267]] save that by statute he is given the power of protecting it from the indignity of anatomical uses.[[268]] Similarly a permanent trust for the maintenance of his tomb is illegal and void, this being a purpose to which no property can be permanently devoted.[[269]] Even a temporary trust for this purpose (not offending against the rule against perpetuities) has no other effect than that already noticed by us as attributed to trusts for animals, its fulfilment being lawful but not obligatory.[[270]] Property is for the uses of the living, not of the dead.
The reputation of the dead receives some degree of protection from the criminal law. A libel upon a dead man will be punished as a misdemeanour—but only when its publication is in truth an attack upon the interests of living persons. The right so attacked and so defended is in reality not that of the dead, but that of his living descendants. To this extent, and in this manner only, has the maxim De mortuis nil nisi bonum obtained legal recognition and obligation.[[271]]
By far the most important matter, however, in which the desires of dead men are allowed by the law to regulate the actions of the living is that of testamentary succession. For many years after a man is dead, his hand may continue to regulate and determine the disposition and enjoyment of the property which he owned while living. This, however, is a matter which will receive attention more fitly in another place.
§ 111. The Legal Status of Unborn Persons.
Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is none the less a real and present ownership. A man may settle property upon his wife and the children to be born of her. Or he may die intestate, and his unborn child will inherit his estate. Yet the law is careful lest property should be too long withdrawn in this way from the uses of living men in favour of generations yet to come; and various restrictive rules have been established to this end. No testator could now direct his fortune to be accumulated for a hundred years and then distributed among his descendants.
A child in its mother’s womb is for many purposes regarded by a legal fiction as already born, in accordance with the maxim, Nasciturus pro jam nato habetur. In the words of Coke: “The law in many cases hath consideration of him in respect of the apparent expectation of his birth.”[[272]]
To what extent an unborn person can possess personal as well as proprietary rights is a somewhat unsettled question. It has been held that a posthumous child is entitled to compensation under Lord Campbell’s Act for the death of his father.[[273]] Wilful or negligent injury inflicted on a child in the womb, by reason of which it dies after having been born alive, amounts to murder or manslaughter.[[274]] A pregnant woman condemned to death is respited as of right, until she has been delivered of her child. On the other hand, in a case in which a claim was made by a female infant against a railway company for injuries inflicted upon her while in her mother’s womb through a collision due to the defendant’s negligence, it was held by an Irish court that no cause of action was disclosed.[[275]] The decision of two of the four judges, however, proceeded upon the ground that the company owed no duty of care towards a person whose existence was unknown to them, and not upon the ground that an unborn child has in no case any right of immunity from personal harm.
The rights of an unborn person, whether proprietary or personal, are all contingent on his birth as a living human being. The legal personality attributed to him by way of anticipation falls away ab initio if he never takes his place among the living. Abortion is a crime; but it is not homicide, unless the child is born alive before he dies. A posthumous child may inherit; but if he dies in the womb, or is stillborn, his inheritance fails to take effect, and no one can claim through him, though it would be otherwise if he lived for an hour after his birth.