§ 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.