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From Sanctity to Property:  
Dead Bodies in American Society and Law, 1800-1860

by David Burrell
American Legal History
Professor Kermit Hall
Spring 1997

If Americans in the antebellum United States were concerned about dead bodies, they certainly didn't impress this fact upon visitor Frances Trollope. Twice she came across dead bodies while walking along the Chesapeake and Ohio canal in Maryland, to which rude shock she found a more glaringly nonchalant attitude than she could imagine. "The circumstance was related as a sort of half-hour's wonder; and when I asked particulars of those who, on one occasion, brought the tale, the reply was, 'Oh, he was murdered I expect; or may-be he died of the canal fever; but they say he had marks of being throttled.'" The incident occasioned no outrage, no call to authorities, no inquest, no move to bury the dead bodies - in short, virtually no response at all. Her best-selling travel account, Domestic Manners of the Americans, gloomfully recorded that "no more sensation was produced by the occurrence than if a sheep had been found in the same predicament."

Were it only for a sense of decorum, embarrassment, or even a taboo forbidding the discussion of death, Trollope might have found a measure of justification for this defect of American character. But what Americans lacked in concern they made up in crassness and sensationalism. During her stay in Cincinnati, Trollope was witness to the full force of the American legal machinery, the jubilant social carnival of a hanging. The late summer festival caused a sensation "so great from the strangeness of the occurrence (no white man having ever been executed at Cincinnati) that persons from sixty miles' distance came to be present at it." The Cincinnati Chronicle wrote of the swarm of visitors and locals, perhaps 25,000 in all, who gathered to witness the event, a remarkable cross section of society commingling without class, gender, or professional distinctions. A special interest and attraction was planned by local scientists, as professors of galvanism hawked tickets of admission to witness "the horrible contortions to be produced upon the dead body of Birdsell after the penalty of the law had been paid." Though the Chronicle called this public exhibition "unheard of, we believe, in the history of any community," the showmanship was both precedented and legally sanctioned - indeed, legally encouraged as a final insult upon the body of one who had transgressed society's laws. Though Frances Trollope and the Chronicle saw the display as "totally at variance with all the decencies and refinements of civilized and religious life," the execution and the galvanic performance were part of a careful balance by which American law mediated attitudes toward dead bodies. At other times, a mob might rage against violation of the human body, even if the body belonged to a convicted criminal. In Birdsell's case, however, popular sentiment sought justice, entertainment, and scientific advance.

The prospective corpse alone refused to cooperate. At the last minute, on display before his fellow citizenry, Birdsell accepted a commuted sentence long offered by the governor. The vastly-anticipated dead man walked off the stage and the assembled throng went home disappointed, as if mourning.

Trollope's account of the American character was roundly opposed in the United States as malicious and wrong. Yet whether or not she had misread the nature of American attitudes toward death, Trollope's experience hit upon a central struggle in the cultural - and thus legal - milieu. Her work, this paper, and a central problematic of the time thus frame the question: to Americans of the antebellum era, what value was there in a dead body?

The bedrock for an American law of cadavers was the principle of English common law that dead bodies could not be owned. Custom, traditions, morals, and common doctrine recoiled from the notion that one could hold a property right in a dead body. Blackstone's Commentaries, for instance, statedthat "stealing the corpse itself, which has no owner (though a matter of great indecency) is no felony." The origins and rationale for this probably requires little historical imagination, for contemporary Western society also imagines this notion of bodily sanctity. Yet whatever coarseness of language there is presuming one could "own" a dead body, such ownership was both a plain fact and an evolving legal principle in early nineteenth century America. Hundreds of physicians and medical students laid claim to bodies and bones in varying states of decay, many under the strict respect of American laws. In addition, an alarming number of bodies were being stolen from their place of repose, a development increasing with each new medical school and the advance of anatomical studies. In an age when even the cadavers owned under the strictest protections could stir rage and riot, however, this development could not go without response. One path to resolution might have included more comprehensive enforcement: policing the cemeteries and placing harsher penalties upon both bodysnatchers and renegade anatomists. Those who could afford such protections did so in increasing numbers, utilizing such innovations as metal coffins, spring guns, and rural cemeteries to protect middle- and upper-class dead bodies. In general, however, laws in America sought not to defend dead bodies more rigorously but to more selectively enforce them. Dead body sanctity would be based upon a new right to property and an new "enlightened" standard of protection.

In addition to nineteenth century medicine and law, a vast number of economic, religious, scientific, political, and emotional forces also helped to marshal support for a conceptually new death. Though these larger forces are only tangentially developed in this paper, it appears that the law did not so much create a path to resolving this conflict as much as simply uncover one already being developed. Legal institutions engaged, represented, and responded to the conceptual conflict as much as determining it. Moreover, they did not "solve" the relationship between society and its dead bodies, for the problem remains today. Yet the extent to which the nineteenth-century redefinition ameliorated the problem is remarkable. When even a scholar deeply immersed in the twentieth-century debate over organ donations can ask "Has the dead human body ever had any other kind of intrinsic value?" and answer negatively, one must marvel at the deftness and completeness with which the conflict was subsumed and forgotten. Still it is important to recognize that the conflict did indeed exist in nineteenth century America and occasioned much debate, criminal activity, and popular justice before it was provisionally "solved."

This paper cannot detail the entire redefinition of such complex symbols as dead bodies, for the result necessarily would be simplified and probably simpleminded. Since this paper is an attempt to begin the investigation, however, an outline of my slowly developing argument is clearly in order. One of the most central elements of this study, for instance, is the idea that human bodies comprise a "liminal" element in society. That is, the body is important not only as "a sine qua non of funeral procedure" but because it is threshold for many other changes, "a point on which a whole series of policing practices are pinioned." As Michel de Certeau writes, the law can be thought of as being inscribed or "intextuated" in the human body. While obscurantist language clearly identifies this idea as having originated in Foucaultian critiques, the meaning is relatively plain. In the same way that "images of women as strong and muscular may destabilize feminine bodily identities and confuse gender in ways that open up the space for alternative gender arrangements," a new pattern in using dead bodies can allow for new conceptions of death.

Allowed more time and space, I might also argue that the definition of death is intimately related to a definition of personhood, itself undergoing important changes in antebellum America. Speaking of death is thus crucial to the law of personal status and party to debates regarding women, children, ethnicity, and perhaps most importantly, American slavery. So too is death a factor in the transformation of American religion, both driving and continually reflecting patterns of thought which relate the mundane world of mankind to the infinite.

Conceptions of death were both central to American society in the early nineteenth century and undergoing significant change. For instance, historian Gary Laderman has located the period from 1800 to 1860 as unusual for the degree of conflict over the place and interpretation of the dead. Martin Pernick agreed, stating that although all historical period evince a certain discomfort over the uncertainty of death, "one era of particularly intense concern began about 1740 and lasted through the middle of the next century or longer." Lewis Saum, Carl Bode, Phillipe Aries, and most people who study Abraham Lincoln concur: nineteenth century Americans were preoccupied with death. Much evidence could be brought in to reinforce this point, but the evidence will be saved for another day.

More important is the recognition that a fictive or quasi-right to property was created when none had existed before. This point and its implications will make the core of this paper. In order to accommodate an obsessed society and an evolving definition of dead bodies, I argue, the law adapted existing concepts of property to fit the status of dead bodies. The means by which and the reasons for which this should be done were dramatically underscored by urban violence, scientific arguments, religious literature, and emerging economic imperatives. Moreover, this new legal fiction took on new life: the de-sacralized and de-christianized body in which one could hold property helped to mediate the social costs of industrialization within an evolving conception of death damages. While the value of a dead body is to be understood as distinct from the value a dead person, it is argued here that the idea of property in dead bodies could be taken up by tort law for similar purposes. What ultimately emerged was a legal and cultural conception of dead bodies largely stripped of its earlier encumbrances, de-sanctified and, for a time, very nearly de-personalized.

To speak of more of the arguments - which directly relate the newfound conceptions of death with the professionalization of medicine and the need to absorb industrialization costs - would be to damn the paper to boredom and simplicity, neither of which would do it justice.

Public law, bodysnatching & medicalized bodies (1790-1840)

There was a time in America when "human ghouls" stalked the night and the dead emerged from their graves in frightening numbers. It was also an age of market revolution, religious evangelism, and newly-founded colleges of medicine. These facts were not unrelated.

Anatomical examinations were not new to America, but rather came with the nation's English heritage. John Eliot's diary alludes to an autopsy by "Mr. Giles Firman (now in England)" as early as 1647. Sam Sewall remarks that he spent most of September 22, 1676 with six other men "dissecting the middle-most of the Indians executed the day before." Dr. William Shippen and Dr. Samuel Clossy both started anatomy lectures in 1763, the former in Philadelphia and the latter in New York City. Not coincidentally, the first medical school in British America in 1765 was in Philadelphia, and a second school, King's College (now Columbia), was founded in New York in 1768. Clearly bodies were being used, but in limited numbers.

Colonial ideas regarding the use of dead bodies were consonant with their theological and social contructs. Through funeral processions, church bells, broadsides, mourning dress, elegies, Sunday homilies, and various forms of mortuary art, death in Puritan America was manifestly integrated into the social activity of life. An elaborate series of death rituals - shaving, laying out, the wake, and the like - similarly reveals an intimate connection of colonial Americans with their corpses. And in an era which generally held funeral biers, centrally-located cemeteries, and burial shrouds as communal property, it should not be surprising to find dead bodies similarly communal in orientation:

The corpse, therefore, does not belong to the family of the deceased, but to the community. Even more than during life, when a man or woman could be excluded from the church or resign from membership, he or she is the inalienable property of all. One could also say that the corpse belongs to God and, therefore, to the church as his earthly representative. Both explanations amount to the same, to saying that the dead are lost to their relatives, but not to the community as a whole.
 
 

Moreover, English common law supported such views fully. No person could own a body, and transgressions upon the grave were to be prosecuted as gross offenses to decency and morals. Importantly, this offense was construed as violating not any person or family but the entire community. Perhaps the rarity of offense may also show the general consensus on this issue, for violations are difficult to find. If the question of bodysnatching or violating the sanctity of dead bodies did arise in this era of religiosity, few doctors, and no medical schools, they have eluded detection.

What demand there was for cadavers was could easily have been met through legal means, for common law supported the use of convicted murders for anatomical investigations. This may indeed have been a means by which the condemned were reintegrated into social life, investing their socially-disruptive lives with new purpose both as a warning to others and as an aid to medical science. Though this practice offered a limited supply of bodies (one per year per English guild or medical society), it apparently met the demand. Only upon a growth of medical schools - encouraged by Francis Bacon's call for increased medical research and the goal of alleviating human problem of disease and death - did the need become a serious problem on both sides of the Atlantic.

The problem became evident much earlier in Britain than North America, and the dearth of legally-obtained cadavers forced anatomists and the various medical training programs to resort to extralegal methods. The need was judged by some to exceed 2000 bodies in London alone, causing the rise of an elaborate black market for bodies throughout the area. Regional price fluctuations may have been in place, for six bodies from the best graverobbers in London could cost as little as £72, while a body in Edinburgh might cost between £10 and £20. The new occupation of "graverobbers," "body-snatchers," "resurrectionists," and "sack-'em-up men." discovered innovative tactics designed to help fill the need, and sometimes banded together to create virtual corporations. One gangs in England recorded "harvests" of 1211 adult bodies in the just five years from 1809 to 1813. Indeed, a veritable international trade arose from the areas and groups best able to fill the need. Ccorpses could be illegally imported from places such as Ireland and France and travel to various ports, perhaps the first and certainly unwilling immigrants in their family. Glasgow, Liverpool, Bristol, Leith, and Aberdeen became cadaver clearinghouses, while Dublin and Le Havre served as the hub of this commodity export. Great anatomists like Robert Liston would align with shadowy figures such as "The Corpse King," Benjamin Crouch while the redoubtable Sir Astley Cooper, President of the Royal College of Surgeons in London, would proudly wear the label, "King of the Resurrectionists." Undertakers were bribed into providing weak fastenings on coffins; women were employed as fake mourners to disable spring-guns placed on graves; and medical students were expected to help obtain the means by which they would learn the trade. At a school in Aberdeen, for instance, this expectation was made explicit in the institutional rules: "every person absenting himself from depositing or taking up a dead body should be fined 10s 5d, unless indisposed." Bodies were valuable and British laws were insufficient in providing them.

Though there were more medical schools in England and accounts suggest the medical problem was more drastic, similar imperatives drove changes in the American system as well. Evidence of a similar market of dead bodies does exist for America, though such things are notoriously difficult to come by and have been almost wholly neglected by American historians. Still it is striking to see that even in Georgia, where slave bodies might appear sufficient to fulfill medical demands, cadavers were could be (and were occasionally) purchased from Baltimore, New York City, and Savannah. Threatened with an outraged local populace, the faculty of a medical college in Woodstock, Vermont felt confident enough to stand on a promise that, "We will not use or suffer to be used… any human body that will be disinterred hereabouts; it may appear to be invidious to set limits but we are willing to say the State of Vermont." For such purposes as seemed to be emerging in America, the English common law would stand both as a store for precedents and the similar problem which stood in the way of their resolution.

Violations of the law respecting cadavers were common enough to occasion a wide assortment of responses in America. Mortsafes, torpedo coffins, Nigg stones, night watchmen, mortuaries, landmines, spring guns, quick lime, cemetery walls, and scattered items like ashes, flowers, twigs, pebbles, or sea shells (to show footprints) all were resources helping Americans to cope with ineffective laws against bodysnatching. Riots were even more vital expressions of this sentiment. Townspeople of West Haven and New Haven descended upon Yale Medical School in 1824; those of Hubbardton, Vermonters attacked the Castleton Medical School in 1830; residents of Scituate, Rhode Island rioted in 1801; and New Yorkers revolted against New York Hospital in 1788 in what became known as the "Doctor's Mob."

The "Doctor's Mob" was related by contemporary physician James Thacher in his 1828 American Medical Biography. The riot began on April 12, 1788 - perhaps not coincidentally, a Sunday - when a mob attacked the hospital on a "suspicion" that physicians were robbing graveyards to procure subjects for dissection:

The concourse assembled on this occasion was immense, and some of the mob having forced their way into the dissecting-room, several human bodies were found in various states of mutilation. Enraged at this discovery, they seized upon the fragments, as heads, legs and arms, and exposed them from the windows and doors to public view, with horrid imprecations. The rioters had now become so outrageous, that both the civil and military authorities were summoned to quell the tumult, and the medical students were confined in the common prison for security against the wild passions of the populace.

The riot raged for two more days, and though accounts vary, as many as 15 people may have been killed or wounded. Baron Stueben and Secretary Jay are both reported to have attempted to quell the rioters, with little effect.

It is interesting to pause here and offer counterpoint to how death was portrayed by Trollope as against how it will be portrayed as medical men seek new laws in the 1820s and 1830s, of which the account above is a good example. Clearly the account is given from a physician's point of view and places the "rage" and "wild passions of the populace" at fault. Given the 1828 publication date of Thacher's work, it is perhaps not surprising that this is the same argument employed by the profession as it lobbies for the reform of dead body laws. Moreover, it provides interesting counterpoint to Trollope's 1828-31 perspective on Americans' concern for dead bodies, which she claims is lacking. Though this incident (and many like it) cannot support that perspective, her attribution of sensationalistic tendencies between Americans and their dead bodies certainly is given ample warrant.

It is safe to say that the medical profession was no more pleased at the state of affairs with dead bodies than were the angry local communities. Doctors and medical students, after all, were the targets of these venomous attacks. Even the holders of (mostly) legally-sanctioned dead body property such as Dr. Shippen in 1763 were attacked by stone and gunshot, and frequently threatened with mob violence, despite his protests that his bodies were not stolen objects of affection but only executed criminals, suicides, and "now and then one from the Potter's Field." Medical men thus found their professional efforts virtually criminalized. Forced either to become graverobbers themselves or to pay for bodies from others, those who wished more bodies to study for science and human betterment were forced to operate outside the existing law.

A legal straitjacket thus constrained the professionalization of medicine. Should they utilize the bodies of murderers and suicides alone, they would be stranded at the realm society's medical executioners. Should they continue to raid cemeteries in increasing numbers, they would be viewed as ghouls menacing the sacred bodies of the dearly departed. And should they quit dissection altogether, medical professionals would learn no more of the basic human apparatus than the homeopaths, midwives, and folk doctors they hoped to rise above. Bacon's clarion call, the advance of science, and the extension of human life thus stood on one side of the balance; dead bodies and the law on the other.

Perhaps most interesting, then, in the "Doctor's Mob" account above is the interposition of civil and military authorities. They come to the aid of the medical students and seek to reason with the crowd, much as those who seek to change laws in the 1820s do. And where are the medical students kept in the meantime? In the common prison.

Any effort to professionalize medicine would have to overcome the issue of cadaver legality. As an English editorial of 1832 wrote, "It is disgusting to talk of anatomy as a science, whilst it is cultivated by means of practices which would disgrace a nation of cannibals." In 1829, an anonymous posting entitled, An Address to the Public, similarly belittled science for its economic impositions upon dead bodies: "The husband, the wife, the offspring, toothless age or toothless infancy, are marketable. Such is the march of intellect, such is the rage of science." Aside from the numerous riots, which gave violent expression to public opposition, at least one village in New Hampshire utilized the machinery of politics and law against the practice, voting never to sponsor a doctor who had dissected a human body.

The English common law principle that no one held ownership rights in a dead body, that it was nullis in bonis, needed revision. Though much of this is evidenced and conditioned by the medical context in which the greatest stirrings over dead bodies occurred, evolutionary shifts in religion also foreshadowed developing opportunities for redeveloping a more "useful" concept of man's material shell. Certain absurdities in the principle itself also contributed. For example, "no property right" meant that once a medical school obtained physical control of the body, the corpse might not be ordered returned, because nobody had any right of property or ownership in it. This probably explains the strange situation referred to by Margaret Coffin:

In another escapade Transylvania students snatched a corpse and were caught by vigilantes. The were hurried to the courthouse, where their astute lawyer quoted Genesis so convincingly - "for dust thou art and unto dust shalt thou return" - that the boys were allowed to keep their treasure and merely pay a one-dollar fine for the "dust" they had stolen.

In all likelihood, the judicial decision not to order the body's return did not hinge upon any "convincing" quote of Genesis (though religion, too, should be understood as underlying nullis in bonis), but because the right to sue for something must inhere in a preceding right to control or own. Ironically, then, the fictive right to property in a dead body became necessary partly in opposition to the anatomists who had applied market values to dead bodies in the first place.

Frances Trollope's fear that Americans responded with no more urgency to a dead human body "than if a sheep had been found in the same predicament" was thus factually incorrect. At least legally (not morally and not commercially), in most American states and in England prior to the Anatomy Act of 1832, a human body actually was worth less than the body of a sheep. As Englishman William Cobbett indignantly noted out in 1822: "to steal the body of a sheep, or pig, or calf, or ox, or fowl of any sort, is a capital felony, punished with DEATH," yet since a human body could not be property, stealing one was not a crime at all. Indeed, since the shroud in which bodies were encased was worth more than the body itself, early cases hinged upon proof of the shroud's theft and not the dead body. The predictable result? Bodysnatchers began to drop the garments and remove only bodies.

The large sums of money for dead bodies apparently did not go unnoticed by the living. According to at least one historian, people sometimes" offered to sell their bodies for dissection. Here then was a potential solution to the medio-legal conflict. Bodies could be sold by their actual "owners" in life and given up in death, thus providing for expansion of available bodies while avoiding the transgression of those who considered their own bodies sacrosanct. Why couldn't one simply mortgage his own body?

Dear Sir, just a few lines to ask you if I could get 5 or Ten pounds on my body as I have a 100 pounds worth of silver on me as I was wounded in the War and I am an ExSoldier but I do not want any body to know I want it kept quiet when should I call please let me know your Truly. James C---

Nullis in bonis once again forestalled possible development. Even if made in good faith, such an agreement was engaged in selling something inalienable (a body) and thus could not be enforced by a court of law. Given the length of time that could ensue between purchase and receipt of the goodas well as the fickleness of the product, the risk was not one a legally-astute person would take. Consider, for instance, the fanciful verse of real-life resurrectionist Tom Hood, 1799-1845, who wrote: "Ten guineas did not quite suffice, / And so I sold my body twice; / Twice did not do - I sold it thrice./ Forgive my crimes! / In short I have received its price / A dozen times!" Whether by moving away, reconsidering the deal, or simply committing fraud, prospective cadavers could invalidate these mortgage agreements and the law could do nothing to aid an aggrieved medical man. We must therefore read Hood's notion of these transgressions as "crimes" as mere poetic license.

The law of bodily ownership began to develop in several common law decisions of the late eighteenth and early nineteenth centuries, and was codified and significantly expanded in statutory regulations of the 1810s through the 1830s. The foremost case of this earlier period was Rex v. Lynn in England, 1788, which said that "common decency" required that the bodysnatching be ended, that it was "highly indecent," and "contra bonos mores at the bare idea alone of which nature revolted." Moreover, "the purpose of taking up the body for dissection did not make it less an indictable offense." Since this case was putting forth a somewhat novel principle, however, the defendant might not have been aware of his "crime," and so the fine would be only five marks. Meanwhile, the foremost American common law decision is reflected in In re Kanavan (1821). In keeping with common law and older Puritan standards, the judgment was ordered against the defendant not for trespass against a person but for "an outrage to the public feelings, and torturing to the afflicted relatives of the deceased."

An increasing number of violations forced revision. As Commonwealth v. Cooley explained, "The reason why cases of this sort are not to be found in the earlier reports is very obvious, namely, that the dissection of human bodies was not so extensively practiced in former times." Statutes redefining the dead bodies under a legal fiction of property rights began to emerge. One such law was the pioneering Massachusetts statute of 1814 criminalizing not only the "digging, removing and carrying away" of dead bodies, but the "knowing and willfully receiving" the same. Both bodysnatchers and their medical allies were indicted.

One might assume that the laws were written to oppose the pernicious activities of anatomists, but such was not the case. As suggested above, anatomists had their own reasons for reforming laws, yet were fairly widely viewed as ogres. As an essential push toward professionalization, therefore, medical men first had to distance themselves from bodysnatchers, claiming the latter group as primarily reprehensible for the morbid practice of profiting from bodies. Sir Astley Cooper's testimony before the Committee on Anatomy of Parliament called such resurrectionists "the lowest dregs of degradation." Some historians retained such distinctions in later narratives, with medical men representing "the highest type of medical chivalry and intellectual culture... forced to gain their practical knowledge of anatomy by the dissection of bodies which had been stolen... [by] human hyenas, the most degraded of creatures, the scum of the earth" Yet the distinction between anatomist and bodysnatcher was never so rigid. Indeed, Cooper, who was called the "King of the Resurrectionists," boasted to the same Committee on Anatomy that he could obtain any body he wished to dissect - whenever he wished.

In both England and America, "lawmakers based their explanations for legislative action based on the reasoning of those involved in medicine... [as] an enlightened, pragmatic approach." Much like other developments in the social structure of science at this time, anatomists and medical men sought to support the value of rationality in dead body usage. "In a setting rather prone to grands peurs... it was important to show that the reason of these tribunals would in principle govern the irrationality of the subordinate." Medical supporters sought to supersede the irrational fears of many in American society, and, again like other movements in contemporary science, "tried to shift the evidential context from the body itself to some wider natural philosophical concern." At least partly this could be done by anatomists' drawing upon a general (and perennial) wish to afford longer lives to people. The report of a select committee of the U.S. House of Representatives in 1830 similarly championed these "wider" interests: "Who would not prefer, were his own feelings only concerned, to be useful even after death, to his survivors, rather than fester and decay - to feed the numerous worms and undergo the slow and disgusting process of chemical decomposition?" Finally, religious ideology could be employed with similar results: "It is ever the common result with the uninformed mind, to bestow that reverence on the external form, which if properly directed, should be given only to the acting cause and controlling spirit."

Starting with Massachusetts in 1831, American state laws began to recognize a right to will bodies for the purposes of dissection, giving the deceased a right to control their bodies. "Consent" thusbecame a key concept regarding the use of cadavers, as evident in such cases as Tate v. State (1841): "The offense does not consist merely in the removal of a dead body, but in its removal without the consent of such deceased person obtained in his or her lifetime, or of the near relatives of the deceased since his or her death." Meanwhile Commonwealth v. Slack (1837) revealed a new relation of anatomy to the law. Whereas Rex v. Lynn (1788) had suggested that "the purpose of taking up the body for dissection did not make it less an indictable offense," Slack insisted that an indictment had to aver an "intention to use and dispose for the purpose of dissection" to be actionable at all. Since legislatures had begun to allow medical schools to harvest bodies from prisons and poorhouses (evident at least as early as 1824 in Connecticut and 1832 in England), dead bodies soon became sufficiently available to enforce a prohibition of bodysnatching. Important changes resulted, most notably the idea of consensual transfer of bodies for the purposes of science and a lessened fear of bodily violation after death. From the needs of both the anatomists who wanted bodies and the public at large which feared their desecration, aligned with developments in the cultures of religion and science, a quasi-property right in dead bodies had been formed.

Private law, death damages & industrialism costs (1847-1860)

Rather than falling away or becoming culturally irrelevant, the concept of having "ownership" in the dead retained use and flexibility for mid-nineteenth century America. When further strands of societal tension emerged involving affective relationships and the social costs of industrialization, it could again be adapted. The legal status of death had not been foreclosed to development.

In 1847, the state of New York passed a "novel" law regarding the right of a decedent's representatives to pursue damages for pecuniary loss if such death had resulted from a wrongful act. In a rapid and relatively uniform manner, states around the country followed suit. By 1855, Connecticut, New Hampshire, Ohio, Vermont, Kentucky, Missouri, New Jersey, and Pennsylvania, among others, had enacted similar legislation. A U.S. statute on death damages was passed in February 1853, and the British Parliament adopted the idea just a few years later. A protection husbands had traditionally enjoyed to sue for recompense for a dead wife, child, or servant was now extended to widows or next of kin; widows or next of kin now could sue for damages should a husband or father be wrongfully killed. Importantly, the victims not construed as being the deceased themselves but their surviving families. The value of these dead persons was to be determined strictly by the amount of financial support torn away when a money earner - husband, wife, or child - was wrongfully killed.

These laws were formed mainly as a response to the rise of industrialization, mechanization, and the "transportation revolution." As Judge Gridley wrote in Baker v. Bailey (1852), "It is probable that the legislature had in their mind mainly the deaths caused by the carelessness of the agents of railroad and steamboat corporations" Indeed, the very name of Kentucky's act identifies its purpose: "An act for the redress of injuries arising from the neglect or misconduct of railroad companies or other." Trollope would probably find especially significant, given her concern for human versus animal life, that the first two sections of this act address the problem of "the destruction of the life of persons or of stock."

In Wise v. Teerpenning (1849), Judge Edmunds of the New York Supreme Court found the action "a novel one" which "had been unknown to our law for very many years" but for which precedent could be found in "our Saxon ancestors many hundred years ago." The judge said that the law harkened back to the reign of King Athelstan (924-940), during which "Every man's life had its value, called a were or capitis estimatio." Under this most ancient system, the king's were would be valued at 30,000 thrymsae; that of a prince or earl, 15,000; an earlderman, 8000; a thane, 2000; and a common person, 267 thrymsae. Such fines were offered to the relatives of the deceased as private retribution for their loss. If the king were killed, however, half of the were would go to relatives and half to the kingdom for an offense against the public (much like the dead body law). And if the deceased had no relations or were a stranger, half went to the king and half to the deceased's "most intimate companion." Edmunds also related that he had seen the same in effect among native Americans about a dozen years earlier, though under somewhat different circumstances.

It seems unlikely that the legislature sought to resurrect as system nearly a thousand years past or to emulate the legal framework of Native Americans. The nearness of such innovations as the married women's property acts might be taken as a better tool for understanding the 1847 act regarding these claims on wrongful death suits. If the married women's property acts were designed "to protect wives from the pecuniary embarrassments of their husbands," death damage reforms were designed to sanctify the pecuniary obligation of husbands even beyond their death. Certainly the affective revolution and changing domestic status of wives and husbands were at issue as well, as the widows and kin were to be shielded from the turmoil of industrialization. So too can death damages can also be viewed in the context of a state taking additional responsibility in enforcing financial welfare of children, following the common law doctrine of parens patriae. Finally, gender, family relations, and personal status aside, these laws should be recognized both as a legacy of the evolving "property in dead bodies" doctrine and as a response to the social upheaval of industrial revolution.

In the area of death damages, and more broadly tort law dealing with the costs of industrialization, historians have sharply disagreed about who paid the most: victims or capitalists. Some have suggested that a middle ground was struck, but this could not have been done without a conceptual modification of dead bodies. To address the needs of victims, human lives would be construed as having a legally-actionable value, and to assuage the concerns of runaway liabilities for capitalists, this value would be determined by reference to a person's economic value alone. Did anyone lose? Granted access to certain monies not previously available and required only to qualify for redress, victims certainly gained a great deal and lost virtually nothing by the statutes. On the other hand, capitalists were asked to forfeit a considerable amount of money for deaths they wrongfully created. Yet even they were not asked to pay as much as expected, or as much as ordinary human valuation would warrant. Rather than compensating for the entire loss of a person - including the injury or destruction of a vast array of social relations, religious objects, and especially emotional forces inherent to human personal life - the actionable interest was reduced to pecuniary interests alone. As strange as it appears, then, this compromise over industrialization was borne not solely by capitalists and victims, but by dead bodies as well. These dead persons had been entities imbued with a complex body of values that determined not simply "life" (for sheep were alive), or even a "human" (for day-old infants and slaves were undoubtedly humans), but socially, politically, emotionally recognized "persons." Where doctors had before sought to rid cadavers of their religio-superstitious character, capitalists and victims here agreed such bodies could be "de-personalized" as well and valued in accordance with pecuniary - and particularly capitalistic - values:

...they [the juries] would not be at liberty to wander from the narrow path thus pointed out, in order to indulge their sympathy with the loss which the widow and the orphans had sustained, or to gratify their vengeance for a grievous wrong done, or to afford an example to deter others from like offenses; that they would not even be at liberty to calculate the value of human life at large, but they were to be confined to the single question, what was its value to the family of the deceased? So that he who earned for his family only some $150 a year would necessarily be of less value, under this statute, than he who earned $1500; and, on the other hand, he who earned nothing, but yet was in the enjoyment of a large income...might, under this statute, be justly deemed of less value than he would be who earned his half a dollar a day, and whose family were dependent for support on such earnings alone.

The Georgia case of Southwestern Railroad Co. v. Paulk (1856) applied these standards rigorously. In the case of a railroad negligence, the jury was asked to consider evidence with respect to the proper degree of recompense to provided the widow of the late Uriah Paulk. Allen G. Bass testified that Paulk was "worth no more than $400 per year to his family." Ralph O. Howard lowered the estimate and claimed these "services were worth $250 per year to his family." R. M. Pitts simply claimed he "was worth to his family as much as an overseer." Daniel Royal added that he believed Paulk's total services were worth $1500 to $2000, the same figure as that offered by Asa Marshall. As Pennsylvania R. Co. v. Ogier (1860), told the jury, "much is left, and much must always be left, to your sound discretion." What was a jury member to do?

Unlike New York, New Jersey, Connecticut, and other states, Georgia had no rule limiting compensation to $5000. In fact, in the case of Central Railroad Co. v. DeBray, an award of $4700 was given to 23-year-old who had lost only his hand, with the court averring that compensation "was not only not excessive but was quite moderate." The jury had not only to consider the conflicting values of the decedent's annual worth, but estimate how long he or she might have lived. For this purpose, both the president and the secretary of Mutual Life Insurance Company were on hand with tables of life expectancy. Life insurance was a booming business in America, growing from only nine companies and $600,000 worth of policies in 1830 to forty-eight companies and $97,000,000 worth of policies by 1850. Perhaps partly because of the evolution of laws regarding the body as property, these concepts of bodily value and scientific longevity would be applied to determine "a fair average" by which to frame the value of a human life cut short. Judge Lumpkin admitted that "whatever may be adopted as the present value of one's services, it offers no security for the future. They may, hereafter, yea, the very next year, be worth a great deal more or a great deal less.... The best reply to all this, is, the uncertainty of all sublunary things. One kills your slave; you recover of him a thousand dollars. Had he been let alone, he might have died of disease in less than a month's time." In any event, through extensive mathematical calculations and reference to present and accrued values of a hypothetical annuity, the court found the judgment awarded the plaintiff, $12000, reasonable.

The opinion in Pennsylvania Railroad Co. v. Zebe (1858) revealed this unenviable task of placing value on bodies as an unfortunate responsibility placed in the hands of the court:

Rights should be better defined. And although from the inherent difficulty in estimating the value of life, when called upon to compensate for its loss, we cannot lay down what properly be called rules, to guide in making the estimate, yet it is our duty to announce such principles of compensation as we think the legislature intended.

Judge Lumpkin agreed: "I believe it would, as a preventative, be better to do this [consider all deaths capital felonies] than to treat human life as stock to be paid for in money." Yet the New York case of Johnson v. Hudson River R. Co. (1857) explicitly affirmed that statistical longevity was a scientific fact and thus could be used in deciding the worth of a person's estimated remaining life. The notion of a "sort of statute life insurance against loss from specific risks; the interest in the amount assured, accruing and becoming vested, by the fact of the death" with implicit policy ownership in the hands of living relatives, remained.

Though it might have eased the difficulties if the legislatures or courts had promulgated single standards to be applied upon the loss of human life - for instance, 267 thymsae for the death of commoners, 8000 for the loss of an alderman, and so on - they resisted. Rulings in the late 1850s showed increasing evidence that property in death might be based upon more than simple pecuniary values, a revulsion against the strict policies initially submitted. In City of Chicago v. Major (1857), for instance, Judge Caton based the right to bring action "not in right of the estate, but as trustee for those who had a more or less direct pecuniary interest in the continuance of the life of the deceased, and who had some claims, at least, upon his or her natural love and affection." Meanwhile, Judge Read remarked in Pennsylvania R. Co. v. Vanderver (1860) that certain cases might be "well calculated to excite our sympathies, and to urge us to disregard the undoubted rights of the parties." Most interestingly, Judge Allen of New York held that the personal refinements of Charles Green's "educated and amiable" could be taken into account when estimating the extent of his loss:

there is no error... in saying to the jury that they might take into consideration the fact that the deceased was an educated and amiable woman. The pecuniary interest of a husband might and could be advanced more by a wife possessing these characteristics, than by one of an opposite character and temperament. The services of a refined and amiable wife would, upon the truest scale of pecuniary estimate, be more valuable than those of a vulgar and unamiable shrew.

Finally, then, we have arrived the legal status of dead bodies in 1860, a shift clearly evident in a return to the law of cemeteries and cadavers. We find traces of common law heritage, but considerable innovation as well. In Bogert v. City of Indianapolis (1859), Judge Perkins addressed "a grave question" regarding what to do with dead bodies located in a cemetery. Though incorporated with the understanding that it would "forever remain a burial place for the dead," the cemetery in question was to be dismantled in favor of a more profitable use of the land. Such was not uncommon in this period, for demographic growth and capitalistic motives greatly increased the problem of dead bodies needing protection. The needs of living people, changes in anatomy laws, and new laws regarding death damages all would affect the status of those who had died long before these shifting attitudes.

In the mid-eighteenth century, Blackstone had stated that "stealing the corpse itself, which has no owner (though a matter of great indecency) is no felony." In the mid-nineteenth-century, however, Judge Perkins' understanding of the dead body was significantly different: "we lay down the proposition, that the bodies of the dead belong to the surviving relations, in the order of inheritance, as property..." The doctrine of nullis in bonus has herein become a rationally-ordered system of property right based on family relations. Yet in keeping with the common law emphasis on the morals and decency of the community, Judge Perkins admonishes the survivors that their right of ownership is not unlimited; they may not, for instance, "create a nuisance by" the dead bodies.

Most instructive is the citation in this case. The decision of Judge Samuel Ruggles in In re Brick Presbyterian Church (1857), directly quoted by Perkins, offers terrific insight into the differences in dead body law that had arisen in such a comparatively short period of time. Three provisions seem particularly poignant in this respect:

...neither a corpse, nor its burial is legally subject, in any way, to ecclesiastical cognizance, nor to sacerdotal power of any kind.

...the right to protect the remains includes the right to preserve them by separate burial, to select the place of sepulchre, and to change it at pleasure.

...if the place of burial be taken for public use, the next of kin may claim to be indemnified for the expense of removing and suitably reinterring their remains.

The first provision directly contradicts Coke's Institutes, which states very nearly the opposite: "the carcass that is buried belongeth to no one; but is subject to ecclesiastical cognizance." The second provision expresses a right to choose, select, and change a dead body's burial place "at pleasure," giving far greater ownership and personal control over the once communally-owned bodies. And the third takes both the language and the procedure of dead body rights as given in the death damages statutes. Of these provisions, perhaps only the second would even have been conceivable in terms familiar to common law of the 1790s.

The law of dead bodies had changed dramatically due to a score of changes in disparate fields. Religion, science, law, medicine, and the economy account for only a few of the observable changes. The Civil War and the rise of scientific naturalism would soon transform the concept of dead bodies still further. Yet by the time of Darwin much of the sacredness of human bodies had already been lost, and by the era of corporations and America's second industrial revolution a growing sense of bodies as property already had been gained.
 
 

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