UNLV Theses, Dissertations, Professional Papers, and Capstones 5-1-2015 Regulating the Dead: Rights for the Corpse and the Removal of San Francisco's Cemeteries Lance Muckey University of Nevada, Las Vegas Follow this and additional works at: https://digitalscholarship.unlv.edu/thesesdissertations Part of the Common Law Commons, and the United States History Commons Repository Citation Muckey, Lance, "Regulating the Dead: Rights for the Corpse and the Removal of San Francisco's Cemeteries" (2015). UNLV Theses, Dissertations, Professional Papers, and Capstones. 2395. http://dx.doi.org/10.34917/7645985 This Dissertation is protected by copyright and/or related rights. It has been brought to you by Digital Scholarship@UNLV with permission from the rights-holder(s). You are free to use this Dissertation in any way that is permitted by the copyright and related rights legislation that applies to your use. For other uses you need to obtain permission from the rights-holder(s) directly, unless additional rights are indicated by a Creative Commons license in the record and/or on the work itself. This Dissertation has been accepted for inclusion in UNLV Theses, Dissertations, Professional Papers, and Capstones by an authorized administrator of Digital Scholarship@UNLV. For more information, please contact [email protected]. REGULATING THE DEAD: RIGHTS FOR THE CORPSE AND THE REMOVAL OF SAN FRANCISCO’S CEMETERIES By Lance David Muckey Bachelor of Arts in History University of Northern Iowa, Cedar Falls, Iowa 2001 Master of Arts in American History University of Nevada, Las Vegas 2004 A dissertation submitted in partial fulfillment of the requirements for the Doctor of Philosophy - History Department of Hstory College of Liberal Arts The Graduate College University of Nevada, Las Vegas May 2015 We recommend the dissertation prepared under our supervision by Lance D. Muckey entitled Regulating the Dead: Rights for the Corpse and the Removal of San Francisco’s Cemeteries is approved in partial fulfillment of the requirements for the degree of Doctor of Philosophy - History Department of History David Tanenhaus, Ph.D., Committee Chair Colin Loader, Ph.D., Committee Member Michael Green, Ph.D., Committee Member Shelia Bock, Ph.D., Graduate College Representative Kathryn Hausbeck Korgan, Ph.D., Interim Dean of the Graduate College May 2015 ii ABSTRACT REGULATING THE DEAD: RIGHTS FOR THE CORPSE AND THE REMOVAL OF SAN FRANCISCO’S CEMETERIES A specialized facet of American common law developed throughout the nineteenth century; that being mortuary law or the law of the corpse. This jurisprudence transferred limited property rights to dead bodies, which was a radical departure from the treatment of the dead under the English common law tradition that the United States had adopted after the American Revolution. The dead fit into a unique category in law. Legally they do not exist and therefore have no voice. It thus falls to the state to speak for them in the form of statutes and judicial decisions, which represents a continuation of common law doctrines. In addition, this study contributes to a fuller understanding of the contradictory laissez-faire image of Progressive Era courts by examining the judicial interpretations of the police power, individual’s property rights, and due process claims through the lens of cemetery regulation and removal. iii TABLE OF CONTENTS ABSTRACT………………………………………………….....……………………..…iii ACKNOWLEDGEMENT………………………………………………………….……..v INTRODUCTION………………………………………………………………..………xi CHAPTER ONE INTRODUCTION…………………………………………………….1 CHAPTER TWO COMMON LAW OF THE CADAVER AND COMMODIFICATION OF THE CORPSE…………………………………….8 Public Perceptions of Burial and Public Health……………………….…………...…11 Common Law and Police Power in the United States…………….……………….....16 Common Law and the Cadaver……………………………….……………………....28 English Common Law of the Cadaver……………………………………..…………31 American Common Law of the Cadaver…………………………..…………………37 Commodification of the Cadaver……………………………….…………………….38 Punishing Grave Robbery……………...……………………………………………..56 CHAPTER THREE CONTROL OF THE CORPSE…………………...………………64 Rights of Interment…………...………………………………………………………65 Order of Inheritance……………………………………………….………………….82 Limitations and Exceptions to the Right of Inheritance…………….………………100 CHAPTER FOUR LEGAL CONTROL OF THE GRAVE………..…..…...……...…105 No Grave Ownership in Religious Denominational Cemeteries……..……………..106 No Grave Ownership in Private or Public Cemeteries……………………...………127 Public Cemeteries…………………………………………………………………...133 Closure of public cemeteries……………………….…………………...…………...135 Control of Buried Remains…………………………………………………....…….142 CHAPTER FIVE THE LEGAL STRUGGLE OVER GRAVEYARD REGULATION IN SAN FRANCISCO, 1896 - 1910…….......…………………..……152 The Courts and Cemetery Regulation in San Francisco…………………………….153 Cemetery Removal for the Benefit of the Living……………...……………………169 CONCLUSION……………………………………………………………………… 172 BIBLIOGRAPHY………………………………………………………………………178 CURRICULUM VITAE…………….…………………………………………………206 iv ACKNOWLEDGEMENTS Over the years I spent in graduate school in preparation for my doctorate and during the research and writing phase of the dissertation I came into contact with so many people that I honestly cannot remember then all. Reflecting on those years it seems that I was constantly knocking on someone’s door checking on available classes, getting one signature after another, or generally seeking additional information on the topic at hand. Some people were more helpful that others, but everyone I met contributed to my educational experience. I wish to thank the past and present administrative staff in the History Department at UNLV for their time and kindness. I quickly learned that they ran the department, so to speak, and were invaluable sources of information on how to maneuver through the quagmire of the Graduate College. None of the departmental administrative staff that I dealt with ever refused to provide me with information when requested; it may not have been correct, but it was a lead in a new direction. Ladies and gentlemen, thank you! I would also like to thank the faculty and staff at the Wiener-Rodger Law Library at the William S. Boyd School of Law at UNLV. It must be frustrating for them to have to answer non-law students basic law school 101 questions repeatedly. Yet they always did so for me in an extremely courteous and professional manner. Gary Holman and his daughter Karen Alexander were especially kind to me for trusting me to manage their family business while I completed my dissertation. They v also allowed me to arrange my work schedule around my teaching schedule at CSN. An opportunity that I feel made me a better instructor. I appreciate their faith in me. Dr. William Deverell, Director of the Huntington USC Institute on California and the West, thank you for inviting me to participate in a workshop on the “Subterranean History of the West.” This gave me the opportunity to explore another facet of the history of American burials, that being the removal of San Francisco’s cemeteries. That work laid the foundation for the final chapter in this dissertation. Dr. Eugene Moehring, I took several of your classes, served as your Teaching Assistant, and had you on my Masters Thesis Committee. You were a hard, but fair, taskmaster and I am better for it. Throughout my program you occasionally offered words of encouragement, I thank you for them. Distinguished Professor Andrew Fry, I also took courses from you, served as your Teaching Assistant, and had you on my Masters Thesis Committee. In one of the historiography classes you taught, you gave me an A- as a final grade. I asked you why several months later and you said something to the effect of, “You could have done more,” you were correct. I only wish that I could remember as much history as you have forgotten. Dr. Elisabeth Nelson, you were a challenging professor. I only took one of your classes. At the time I was glad, but looking back, I should have taken others. You served on my doctorial comps committee and wrote me one of the two questions that I was comfortable with. During my follow up oral comps, I was afraid that I had blown it until you began to question me, after that I relaxed. Additionally, I would like to thank you for vi your helpfulness as the department’s Graduate Coordinator. You have been a valuable resource in that capacity. I would especially like to thank the members of my dissertation committee. Without the generosity of their time, patience, and expertise this project would not be completed. Dr. David Wrobel, Dr. David Holland thank you for agreeing at some point or another to serve on my dissertation committee. Even though neither of you are any longer affiliated with UNLV, I appreciate your willingness to have been on my committee. Law Professor Bret Birdsong I am sorry that your extended leave prevented you from continuing to serve on my committee. I was looking forward to a lawyer’s opinion on some of my analysis. I would especially like to thank Dr. Shelia Bock. Dr. Bock had never met me when she agreed to sit on my committee and the fact that she would devote the necessary time to my project I found remarkable. Her edits were helpful and her questions thought provoking. Dr. Colin Loader you are also a rigorous taskmaster. I learned valuable lessons from you that I employ in my own teaching from taking one of your mixed under and upper graduate courses and serving as your Teaching Assistant. I especially cherish the summer classes I took from you that were one-on-one or one-on-two instruction covering the development and function of European nationalism. Your insights were fascinating. Thank you for serving on my doctoral committee and best wishes for your retirement! Dr. David Tanenhaus, where do I begin…this is difficult. When I arrived at UNLV, you were the legal historian, which is the subject of my passion. I determined to attach myself to your coat tails, so to speak, and haven’t looked back since. You have been my vii advisor through my masters and doctoral program. How you put up with me, I don’t know. Yet, you constantly gave me direction, challenges, and inspiration at every turn and I am better for it.