Doodeward v Spence [1908] HCA 45;

[6]

The authorities referred to in support of the decision of the Supreme Court, with one exception, relate (as was pointed out by Cohen J.) to human bodies awaiting burial, and they appear to assert a general rule that when a human being dies property in his body does not vest in anyone, although certain persons have duties, and perhaps rights, with respect to it. Thus, a mandamus will lie to compel delivery of a corpse to the person charged with the duty of burying it: R. v. Fox[1]. But it cannot at that moment, while awaiting burial, be the subject of larceny, since the ownership could not be laid in any one. The circumstance, however, that a thing was not the subject of larceny at common law did not determine the question whether an action of detinue could be brought in respect of it. For instance, deeds relating to land were not at common law the subject of larceny, but detinue would lie in respect of them (see Fitz-Herbert de Naturâ Brevium, p. 138 a). An unburied corpse awaiting burial is nullius in rebus. All that is said by the authorities to which we were referred, except Dr. Handyside's Case[2], appears to have been said from this point of view. It does not appear who was the plaintiff in that case, which might apparently have been decided on the ground that the plaintiff had not established any right of possession in himself. But it does not follow from the fact that an object is at one time nullius in rebus that it is incapable of becoming the subject of ownership. For instance, the dead body of an animal feræ naturæ is not at death the property of any one, but it may be appropriated by the finder. So, it does not follow from the mere fact that a human body at death is not the subject of ownership that it is for ever incapable of having an owner. If that is the law, it must have some other foundation. After burial a corpse forms part of the land in which it is buried, and the right of possession goes with the land. Even, however, if the asserted rule was intended to be of general application - which I doubt - it does not follow that there can be no exception to it. Many doctrines have been asserted on the supposed authority of learned persons, who, addressing themselves to one aspect of a question, have used language which has been generalized in a manner at which no one would have been more surprised than the supposed authors of the doctrines. I do not, myself, accept the dogma of the verbal inerrancy of ancient text writers. Indeed, equally respectable authority, and of equal antiquity, may be cited for establishing as a matter of law the reality of witchcraft. But in my opinion none of the authorities cited afford any assistance in the present case. We are, therefore, free to regard it as a case of first instance arising in the 20th century, and to decide it in accordance with general principles of law, which are usually in accord with reason and common sense.

[18]

But how far would the critic consider his surprise justified or his law applicable, upon further knowledge; upon learning what kind of "corpse" or "dead body" it is that his informant has been describing, and how far the object when seen conforms to the mental picture he had formed of a corpse awaiting burial? It has never existed independently of the physical attachment to the mother. It was never alive in the ordinary sense of human life. It has never drawn the breath of life so as to have expired, for it was still-born. It has been preserved in a jar or bottle with spirits since the day of its birth, now forty years ago. Add to these facts that it is an aberration of nature, having two heads. Can such a thing be, without shock to the mind, associated with the notion of the process that we know as Christian burial? Does it not almost seem indecent to associate that notion with such facts? Do not all these considerations lead us to doubt whether such a thing as a dead-born fœtal monster, preserved in spirits as a curiosity during four decades, can now be regarded as a corpse awaiting burial, the thing which Judges have discussed in decisions and lawyers in textbooks? It would have been difficult to admit that this dead fœtus answered that description at the time, almost immediately after its birth, when Dr. Donahoe was allowed to take it away and when he preserved it in spirits. The difficulty has increased since. If it were ever a corpse awaiting burial, was that a correct description of it when the plaintiff's possession of it was interfered with? It had then been in a state of preservation for thirty-nine years. It had acquired, as the evidence shows, a considerable monetary value, not as a corpse, but as something so unlike an ordinary corpse as to be a curiosity - a well-preserved specimen of nature's freaks. To take the simplest test, is it possible to affirm that the meaning conveyed by the term "unburied corpse" to one who had never seen such an object as this, would include it? There can only be one answer to the question.

[24]

Under these circumstances, I cannot see any reason for doubting that, if this corpse can be the property of any one, it is the property of the plaintiff as against the defendant. It is enough that the plaintiff was in possession of the corpse, and that the defendant took it having no better title to it than the plaintiff. But, in my opinion, there can be no right to recover in trover or in detinue in respect of a thing which is incapable of being property. The action of trover and the action of detinue are actions for wrongfully converting or wrongfully detaining the plaintiff's property. The foundation of the action is property. In pleadings, the goods converted or detained are stated to be the plaintiff's goods. It is true that a mere possessor is treated by the law as having the property in goods as against one who takes them from him wrongfully; and at first I thought that, even if there could be no property in this corpse, there could be a right of possession as against the defendant, who took it from the plaintiff. The law treats the right of the mere possessor as against one who takes the thing from him as "special property." But if there can be no property, there can be no "special property;" and there is no instance that I know of an action of trover or detinue lying for a thing which cannot be the subject of property. But in Fines v. Spencer[6] it was held that the possessor of a hawk - a bird not the subject of property until reclaimed or tame - could not succeed in trover against one who took possession of it as it was not "reclaimed or tame"; and see Lord Raymond, 251; Grimes v. Stacke[7]. The same rule applies to deer: Fines v. Spencer[8]. Property involves a right of exclusive and permanent possession. Trover lay for negroes, at the time when the British law recognized property in negroes: Chambers v. Warkhouse[9]. They were then merchandize - property. But no one ever heard of an action of trover or detinue for a human being whether alive or dead unless in the case of a slave. No one has heard, I think, of a guardian, entitled to the custody of his ward, bringing an action of trover for the ward. He has to proceed for a habeas corpus, or in equity. Perhaps the true basis of "special property," the right of a mere possessor to recover from a wrongdoer, is that possession furnishes an irrebuttable presumption as against the wrongdoer that the possessor is the owner; and that is the reason why a plaintiff, if a mere possessor, recovers the full value of the chattel from the defendant. The wrongdoer is estopped from disputing the plaintiff's title - if there can be a title. But he is not estopped from showing that there could never have been any title.

[32]

But in addition to all the positive statements of Judges such as Coke J., and of textwriters whose works are as weighty as most judgments, there appears to have been an express decision to the effect that trover will not lie for a corpse. According to 2 East's Pleas of the Crown, p. 652, one Dr. Handyside took away the bodies of a lusus naturæ - two children who grew together; trover was brought against him; and Willes C.J., held that the action would not lie "as no person had any property in corpses." The ground of the decision was, not that the particular plaintiff had not shown any right of property or of possession, but that no person had any property in corpses. This case is also to be found stated in the same way in Hawkin's Pleas of the Crown, 148 (n. 8), and it shows that the same law applies to what Lord Coke called "monsters" as well as to normal human beings. It seems that when the "monster" is double-headed, it is the Christian habit to baptize both heads: Taylor, Medical Jurisprudence, 4th ed., 277. It is illegal to destroy monsters; any one who kills a two-headed child born alive is guilty of child murder (ib. 209, 389). But for Handyside's Case[13], there might have been some doubt whether the doctrine of no property in corpses applied to such a being as this; but that was a case of lusus naturæ, and in both East and Hale that case is treated as an actual authority for the doctrine itself. In this case it is not pretended that the child was born before its due time. It had lived in the womb, and died there before birth. From the nature of the case it was more dependent on its mother than a child who has been born; but it had a distinct life. Taylor on Medical Jurisprudence refers to the vulgar opinion that the fœtus only receives life when the woman quickens; "but as ovum, embryo, or fœtus, the contents of the uterus are as much endowed with special and independent vitality in the earlier as in the later periods of gestation" (ib. 161). Except as to the double head, the body, so far as appears, was fully formed; and the being was fully as human as the Siamese twins. The doctrine of no property in corpses applies, not only to bodies awaiting burial, but to bodies after burial: Haynes' Case[14]. Burn's Ecclesiastical Law, I., 195, (ed. 1763); but in this case it is clear that the body has never yet been buried, and it still awaits burial if it can get it.

[33]

It appears, indeed, that the Supreme Court of Indiana has twice used expressions in favour of property in a corpse. In the only case to which I have access the action was for breach of contract, not for trover or detinue. A husband and wife employed undertakers to take care of and deposit the body of a daughter in a vault until they were prepared to inter; and the action was for breach of this contract: Renihan v. Wright[15]. The dicta in these cases in favour of a property in a corpse have been questioned by the Supreme Court of South Carolina in Griffith v. Charlotte, Columbia and Augusta Railroad Co.[16]. The Judges of South Carolina laid it down in accordance with the English authorities, that there was no property either absolute or special in a corpse; although they regarded the absence of a power of control, with a view to decent interment, as a reproach to the judicial system (see also notes to Wynkoop v. Wynkoop[17]. In Peirce v. Swan Point Cemetery[18] the Rhode Island Court, while admitting that there was no property in a dead body in the ordinary sense, interfered by injunction to prevent the removal of a man's corpse to another part of the cemetery against the will of his daughter and her husband. The Massachusetts Court (Meagher v. Driscoll[19]) has said: - "A dead body is not the subject of property, and after burial it becomes a part of the ground to which it has been committed, - earth to earth, ashes to ashes, dust to dust." The same Court - which is a Court of the greatest weight among the State Courts - has also said: - "Neither the husband nor the next of kin have, strictly speaking, any right of property in a dead body," but, inasmuch as there are no ecclesiastical Courts in the States, as in England, the Court asserted a right to interfere between a husband and next of kin in a controversy as to the place of burial of a woman: Weld v. Walker[20]. In Larson v. Chase[21] the Supreme Court of Minnesota held that a widow was entitled to damages for the dissection of her dead husband. The widow, it was said, had a right to the possession of the body for the purpose of decent burial; but it was admitted as quite possible that the body is not property in the common commercial sense of the term, even though the American Colonies had repudiated the ecclesiastical law and the ecclesiastical Courts. So that, even in the United States Courts, the great preponderance of authority is in favour of the old English principle - whatever we may think as to the peculiar jurisdiction - for purposes of burial only, which some of the Courts have asserted. From first to last, I can find no instance of any Court asserting any property in a corpse except in favour of persons who wanted it for purposes of burial, and who by virtue of their close relationship with the deceased might be regarded as under a duty to give the corpse decent interment. I confess that I am unable to see how we can ignore such definite decisions and pronouncements as to the law.

[36]

It is also urged that there must be property in skeletons and other such exhibits in museums and anatomical schools. It ought to be sufficient to say that this question is not the question before us. No doubt, these things are bought and sold - money is paid for them as for property. But we have not been referred to any instance in which any British Court has recognized a human skeleton as property. Such traffic as there is in skulls and bones is clandestine. If they come from dissecting rooms, they come in violation of the law; for, according to the New South Wales Anatomy Act 1901, following the British Act, no dead body can be used for dissection except under very stringent conditions, in anatomical schools, &c., and by authorized teachers; and when the dissection is over the body has to be "decently interred in consecrated ground, or in some public burial ground in use for persons of that religious persuasion to which the person whose body was so removed belonged" (sec. 15). Many of the pathological and other specimens exhibited in medical museums - growths, limbs, &c. - have been taken away after an operation by the surgeon with the consent, express or implied, of the living patient, who is only too glad to be rid of his trouble. But I rather think that sundry contraventions of the strict law as to dead bodies are winked at in the interests of medical science, and also for the practical reasons that no one can identify the bones or parts, and that no one is interested in putting the law in motion. Probably some amendment of the Anatomy Act may be required to meet modern conditions. But, subject to such regulations as Parliament may frame in the interests of science, all considerations - whether of the public health or of decency or of religion - seem to point to the importance of maintaining the long-standing British law, to the effect that the only lawful possessor of a dead body is the earth (unless there be cremation, which has been held to be lawful by Sir J. F. Stephen; R. v. Price[24].)

[37]

If the plaintiff is entitled to recover possession of this corpse, there is nothing to hinder any one from snatching the corpse of some eminent man, such as Napoleon, and keeping it in a bottle, or using it for degrading purposes. As Hamlet says, "Why may not imagination trace the noble dust of Alexander till he find it stopping a bung-hole?" But even more - according to the plaintiff - if some one else take away the corpse, the first snatcher must be assisted by British law to recover it. The Court is to be used as a catspaw by a body snatcher. The law is invoked, not only to recognize the right to snatch a corpse, under the "good old rule," but is asked to enforce the return of the body to the snatcher when he has not been able to keep it. The medical man in this case got possession of the corpse, and there is no evidence that the parents consented. But even the parents could not give him any right to the corpse. It was not theirs to give. I do not say that mere possession of the corpse is a misdemeanour on the part of the plaintiff, or unlawful in the sense of being an offence. I do say that the plaintiff - at any rate as he does not want it for burial or cremation - has not established any right to enforce possession. If the plaintiff is right, he could recover possession even from a person who takes the corpse from him with a view to burial. The plaintiff does not want the body either for burial or for cremation. He is under no duty to bury it (or to burn it). He has been exhibiting it for gain, and may possibly want it for gain in the future - if he can evade the police. We are not told why the plaintiff wants the corpse. If we say that he is entitled to get possession, he will be entitled to keep possession; for who is there that has title to take it from him? A right to keep possession of a human corpse seems to me to be just the thing which the British law, and, therefore, the New South Wales law, declines to recognize. But, if the body is to remain unburied, I do not see why the University Museum is not as much entitled to it as the plaintiff. Potior est conditio defendentis. For these reasons am of opinion that the Judges of the Supreme Court of New South Wales were right, and that this appeal should be dismissed.

Doodeward v Spence [1908] HCA 45; - HCA 1908 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 (31 July 1908)

Parties

Legislation Cited (1)

Cases Cited (1)