Law and the Dead

Technology, Relations and Institutions

Marc Trabsky

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780815375234
• eBook ISBN: 9781351240390
• Edition: 1
• Topic: History
• Subtopic: Social History
• Index: History

The governance of the dead in the eighteenth and nineteenth centuries gave rise to a new arrangement of thanato-politics in the West. Legal, medical and bureaucratic institutions developed innovative technologies for managing the dead, maximising their efficacy and exploiting their vitality. Law and the Dead writes a history of their institutional life in the nineteenth and twentieth centuries.

With a particular focus on the technologies of the death investigation process, including place-making, the forensic gaze, bureaucratic manuals, record-keeping and radiography, this book examines how the dead came to be incorporated into legal institutions in the modern era. Drawing on the writings of philosophers, historians and legal theorists, it offers tools for thinking through how the dead dwell in law, how their lives persist through the conduct of office, and how coroners assume responsibility for taking care of the dead.

This historical and interdisciplinary book offers a provocative challenge to conventional thinking about the sequestration of the dead in the nineteenth and twentieth centuries. It asks the reader to think through and with legal institutions when writing a history of the dead, and to trace the important role assumed by coroners in the governance of the dead. This book will be of interest to scholars working in law, history, sociology and criminology.

1 Law in the necropolis

It should not have been surprising for readers of The Argus newspaper to hear on Thursday, 11 November 1852, that another corpse had suffered an arduous journey towards the site of an inquest in the city of Melbourne. The dead body was discovered on Monday afternoon in the town of Prahran. Witnesses reported seeing the deceased suddenly stumble and collapse, presumably due to intoxication, inside a property belonging to another man. The district coroner ordered a police constable to transport the corpse into the city for the purpose of holding an inquest, but the constable found it difficult to secure a place to store the body until the hearing could be held. He carried the corpse from one public house to another, and, after a succession of rebuffs from disgruntled innkeepers, it was finally accepted by the landlord of the Queen’s Arms on Swanston Street. The partially decomposed body was stored in the cramped tavern for two days until an inquest could be held before the city coroner. The coronial jury, assembled by the coroner from an array of inebriated patrons at the Queen’s Arms, swiftly returned a verdict of ‘Found Dead’.

What differentiated this ordeal from other inquests reported on that day – one was conducted on the body of Fisher, who died on her way to Melbourne from the Bendigo goldfields, and another was conducted on the remains of Cunningham, who died on a schooner heading to Sydney – and what would have piqued the curiosity of The Argus readers, was a demand made by a Justice of the Peace, following the inquest, for the appalling incident to be investigated:

The Bench were of opinion there existed a great want of a place in this city where dead bodies could be placed until interred, a species of Morgue, as used in France, as through the crowded state of the city there was not actually room to be obtained in the different public houses where a corpse could remain. Some great dereliction of duty has occurred somewhere which demands an inquiry, how a dead body should be allowed to remain from Monday until Wednesday before an inquest could be held, and in a house crowded with lodgers. We very much question whether the publicans refusing admittance to the corpse cannot be called to account, but we do not wonder at their evincing unwillingness to receive a dead body, when they are likely to be annoyed with it, as in this case.¹

It was unclear whether the Justice was suggesting that a ‘dereliction of duty’ lay with publicans, who routinely refused to accommodate the dead in their lodgings; with the city coroner, who often took a couple of days to travel to the city from his seaside manor, or with the colonial government, who failed to provide adequate facilities for conducting inquests. Indeed, The Argus reporter seemed to criticise publicans for refusing to accept corpses into their taverns, yet also sympathised with them given the financial consequences, not to mention social implications, that a decomposing corpse would have for sites of imbibition. But for those newspaper readers who had long been sharing their dwellings with the dead, the answer to the question of who was derelict in their duties was deceptively simple, and the construction of a deadhouse to remove corpses from the public sphere was imperative.

The movements of coroners in the nineteenth century paint a grim portrait of the plight of the dead. When a corpse was found on a public street, coroners would carry it from one public house to another, hoping to find a hospitable innkeeper willing to let a room for holding an inquest. When a dead body was discovered in a prison or hospital, coroners would transform a cell or ward into a makeshift morgue. When a corpse was collected by constables from the muddy depths of the Yarra River, coroners would store it in an outbuilding until an inquisitorial hearing could be held. The footprints of coroners determined the itineraries of the dead. In walking through the city, in the performance of their civic roles, coroners not only walked with the dead. They also wrote histories of the dead and collected their memories. In ambulating through alleyways and strolling along promenades, in the routes they took and the trajectories they followed, coroners gathered material for writing an institutional history of the dead.

This chapter traces a spatial history of the death investigation process in Australia in the nineteenth century. It offers a historical account of how the movements of the coroner incorporated the dead into the institutional life of coronial law. The proximity of the dead to the living emerged as a spatial problem in Australia in the late eighteenth and early nineteenth centuries. The unburied corpse not only posed a danger to the physical health of urban dwellers, but its presence was also believed to breach the boundaries between the realms of the living and the dead. Coroners were appointed by colonial governments to collect, identify and investigate the remains of the dead, but also, importantly, to remove the unburied corpse from the public sphere. However, the manner in which they moved, the way they carried the dead through the streets of the city and how they set up inquests in taverns and stored remains in outhouses revealed the different ways in which they formed legal relations with the dead. The itinerant coroner harnessed a range of jurisdictional technologies, such as walking, hawking and building, to establish a lawful place for the dead in the city.

Of dead places

Transformations in attitudes towards the dead shaped the spatial arrangement of Western cities in the nineteenth century.² By the late eighteenth century, cities exhibited a morbid curiosity with the ‘death of the other’ (la mort de toi), which manifested in the personalisation of funerary rituals and a romanticisation of the cult of the dead.³ Le Cimetière du Père Lachaise, Paris’s most opulent resting place for the dead, opened on the outskirts of the city in 1804, and inspired a new wave of construction of garden cemeteries across the West. In 1833, Kensal Green, which was designed by John Claudius Loudon as a British counterpoint to Père Lachaise, was established as the first of many botanical necropolises in London. It was followed by Norwood in 1837, Highgate in 1838, Abney Park and Nunhead in 1840 and Tower Hamlets in 1841. As Catharine Arnold puts it, by the 1850s ‘London was more necropolis than metropolis, her bustling highways paved with good for the fortunate few, her side-streets reeking of decay [for everyone else]’.⁴

Western cities were transfigured by a rapid construction of elaborate graveyards, baroque mausoleums and moribund alleyway attractions in the nineteenth century. The dead were increasingly buried in individual tombs with personalised inscriptions, routinely visited by survivors seeking some sort of reassurance of their afterlife. Meanwhile the urban-dweller embraced moribund titillations in arcades and laneways, ranging from penny dreadfuls and macabre theatre, to waxworks and the scaffold. Even the Parisian morgue became a tourist attraction, exhibiting daily the wretched seas of human mortality. Signs of death were everywhere in the burgeoning metropolis. Yet, at the same time, the presence of the dead was something to be feared.⁵ The popular acceptance of miasmatic theories of disease causation depicted the human cadaver as a physical, moral and telluric threat to all living beings.⁶ By the end of the nineteenth century, the places of the dead – from the unburied corpse to the prison cemetery to the garden necropolis – were to be respected and dreaded, venerated and separated from the domains of the living.

The places of the dead returned as spatial problems in Western cities in the nineteenth century alongside transformations in attitudes towards the dead. The flesh and the soul reunited in the body of the deceased, a sign of a decline in religious beliefs of the resurrection of the immortal spirit. The living demanded that the mortal body be housed, buried and allotted a singular place within the city. As Michel Foucault writes in ‘Of Other Spaces’:

from the moment when people are no longer sure that they have a soul or that the body will regain life, it is perhaps necessary to give much more attention to the dead body, which is ultimately the only trace of our existence in the world and in language. … it is from the beginning of the nineteenth century that everyone has a right to her or his own little box for her or his own little personal decay.⁷

Cemeteries were subjected to a different kind of spatial arrangement within the city. Not only were they progressively moved from inner-city churchyards to the outskirts of suburbs, but they appeared as counter-sites to the domains of the living, insofar as they inverted, contested and reversed the images of a street, garden and park, while remaining firmly entrenched in those representations. The necropolis replicated an obverse residential estate with its arrangement of separate dwellings for the dead: mausoleums, crypts and charnel houses. It also conjured a paradoxical space: an absent space where time stood still, yet a place for regeneration that was perpetually in motion. The time of the cemetery was incongruous and asynchronous – it marked the end of duration as well as the continuity of life. For Foucault, this other place for the dead is ‘a place without a place’, or what he terms ‘heterotopia’.⁸

The concept of heterotopia was introduced to anglophone readers in the Preface to The Order of Things in 1970, but was discussed in more detail in a lecture Foucault delivered to architects in 1967, which remained unpublished in English until 1986. ‘Heterotopia’ was first used in medical discourses to define ‘displaced or dystopic tissue … a [biological] phenomenon occurring in an unusual place’.⁹ It was deployed to describe tissue that is out of place, but does not affect the normal functioning of the body. Foucault appropriates this anatomical term to denote institutions and places that are anomalous, because they ‘neutralize, or invert the set of relations that they happen to designate, mirror, or reflect’.¹⁰ He imagines the cemetery as an exemplary heterotopia, where another city is enfolded within the city, an underworld embedded on the surface of the world, a counterpart that interrupts the continuity of the space and time of the living. But this discontinuity is never conceived of as a radical break from the order of things, for the otherness of the cemetery is only experienced in relation to its surrounding milieu.

Unburied corpses threaten to disrupt this constitutive relationship between the city of the living and the heterotopia of the necropolis. They pose a metaphysical danger, as Robert Pogue Harrison points out, to the way humans give meaning to the world. In The Dominion of the Dead, Harrison argues that burial practices are integral to ‘the humic foundations of our life worlds’.¹¹ What he means by this is that the act of burying the dead prepares the land for human habitation and makes possible the formation of a place. He writes that burial practices humanise the earth by making sense of land as the groundwork of human history. History can only unfurl through the preservation of the past: ‘humans bury not simply to achieve closure and effect a separation from the dead but also and above all to humanize the ground on which they build their worlds and found their histories’.¹²

Burial practices thus transform space into place, which, as Paul Carter notes, is ‘a space with a history’.¹³ The most obvious way that they do so is through the sign of the grave, which signifies the presence of human place-making. The mark of ‘here lies’ historicises the ground, removes it from nature and founds a city, a nation on the entombment of ancestors. It ‘effectively opens up the place of the “here”, giving it the human foundation without which there would be no places in nature’.¹⁴ Thus, when the dead lay unburied in the streets of the nineteenth-century city, the heterotopia of the cemetery threatened to spread throughout the topos of the city. The places of the dead were feared to be at once everywhere and nowhere, and the city, to cite again Arnold’s description of London, was believed to resemble more a necropolis than a metropolis.

This spatial problem of the unburied corpse was evident in the...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Introduction
• 1. Law in the necropolis
• 2. Visual regimes of the dead
• 3. The bureaucratic logic of office
• 4. Dead records
• 5. Screening the corpse
• Bibliography
• Index