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The Laws of a country are necessarily connected with every thing belonging to the people of it; so that a thorough knowledge of them, and of their progress would inform us of every thing that was most useful to be known about them; and one of the greatest imperfections of historians in general, is owing to their ignorance of law.
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T H E LEGAL STATUSOF SUICIDEIN EARLY AMERICA: A ,
WAYNE LAW REVIEW
CONTENTS
ANALYSIS,AND EMPIRICALSTUDYOF ITS EFFECTI N MICHIGAN..... (^) 91
RIGHTS- T H E SCOPEOF 42 U.S.C. 5 1982......................^203
AUTOMOBILESREVISITED.................................... 241
WAYNE LAW REVIEW [Vol. 29:
tions in early A m e r i ~ a. ~Perhaps the most surprising discovery of this group has been that there was no unified legal or political develop- ment among the original thirteen colonie~.~Quite to the contrary, scholars have demonstrated that several factors, including geography, religion, and occupation, "tended to create markedly different kinds of society."' With respect to the colonial American legal culture, the most important differenti,ating factor appears to have been the source of the rules and practices that were ultimately adopted. Several of the American colonies drew heavily upon the English experience for their laws and institutions, while others looked primar- ily to the Scriptures for guidance." good many of them borrowed lib- erally from the collected legislation and doctrine of their neighbors.= Throughout the colonial period, in addition, laws and practices were tailored to fit local conditions and needs. As a result of this multiplici- ty of sources, colonial law was a veritable mishmash of rules, policies, sanctions, and institutions. Because there was no comprehensive reception or uniform devel- opment of law in early America, it is impossible for the historian to generalize broadly about "the colonial legal culture." There is no such animal. Instead, the scholar seeking an understanding of a particular
"every thing that was most useful to be known about them." Laws are essentially "registers of social values," and only imperfect descriptions of social conditions. See S. FOSTER,THEIRSOLITARYWAY: THEPURITANSOCIALETHICIN THE FIRSTCENTURY OF SETTLEMENTIN NEW ENGLAND,at xiii (1971). And yet, though "[mlen may not
their style of action... ." Id. at xvii. There is thus both a descriptive and a prescrip- tive component to legal rules; laws simultaneously define and shape social reality. In this article, emphasis is placed primarily on the prescriptive component of legal rules, and it is therefore best viewed as an intellectual, rather than as a social, history.
Garraty ed. 1971).
19821 SUICIDE 5 9
area of colonial law must study the colonies individually, and only
then suggest certain patterns, similarities, and differences.' As in so
many other areas of colonial law, the legal status of suicide varied
widely among the several colonies, depending, in large part, upon
whether the English common law was followed closely, roughly, or not
at all. Suicide8 is as old as humankind. It existed in the societies of ancient
Greece and Rome, and the Hebrew Bible recorded five acts of self-de-
struction, including that of the first Israeli king.9 Suicide is also ubi-
quitous, as it is observed in every human society. To date, anthropolo-
gists have studied it in African, Eskimo, Trobriand Islander, Oriental,
and American Indian cultures,1° as well as in all of the industrialized
societies of the West." Despite its universality, however, suicide has
never been looked upon with approbation in any human society.lP
Orthodox Christians condemned suicide as a sin because, among other
things, it deprived the actor's family of a means of livelihood. They
also believed that suicide indicated the presence of evil spirits within
the body.l3 Medieval clerics insisted that the souls of "those who wan-
tonly destroyed their lives"14 would spend an eternity in Hell. The
Romans, less concerned with metaphysics and theology than eco-
nomics, punished suicide among their soldiers and slaves in the hope
that others would be deterred from acting in a similar fashion. l5 It was
19821 SUICIDE 61
with local condition^.^^ For reasons only dimly understood at this point, the American colonies differed radically in the legal status that they accorded suicide. Four discrete patterns of treatment are iden- tifiable. The first pattern is illustrated by the experiences of Virginia, North Carolina, South Carolina, Georgia, New York, and New Hampshire, all of which received the English common law without es- sential alteration. As in England, these colonies characterized suicide as a crime, and thus prescribed punishments for those who committed it. Virginia is representative. As "one of the American colonies that most closely adhered to the full-fledged common law system of the mother country,"26Virginia punished suicide by exacting a forfeiture of the goods and chattels of the deceased2' and by denying him or her a Christian burial.2BThis tandem of punishments had long existed in England.Zg Arthur Scott reported that on August 27,1661, a coroner's
jury in Virginia ordered the burial of a suicide at a "cross path," and
in 1706, the estate of another suicide was sold at public auction. These cases show not only that the enforcement of laws forbidding suicide was taken seriously by colonial authorities, but that the English background was vitally important in shaping those laws. The situation in the Carolinas was similar to that in Virginia. In 1712, the South Carolina Assembly formally received the English com- mon law:
note 19, at 488. SO. A. S c o r r , supra note 27 at 198 n.15. Both instances illustrate the societal condemnation of suicide. However, Scott reported that suicide "was not uncommon, particularly among servants and slaves." Id. at 198 (footnote omitted).
62 WAYNE LAW REVIEW [Vol. 29:
And be it further Enacted by the Authority aforesaid, That all and every part of the Common Law of England, where the same is not altered by... the particular Constitutions, Customs and Laws of this Province,... is hereby made and declared to be in as full Force and Virtue within this Province, as the same is or ought to be within the said Kingdom of England.... 5 1
North Carolina followed suit in 1715, with the following flourish: "[Tlhe Laws of England are the Laws of this Government, so far as they are compatable [sic] with our Way of Living and Trade... ." Presumably, the criminalization of suicide was compatible with Carolinian life, for no statute was enacted abrogating that aspect of English law during the Colonial period. In fact, there is evidence that suicide was treated as a crime in South Carolina even before formal reception of the common law. On April 9, 1706, the South Carolina Assembly enacted a statute
which charged coroners' juries with investigating and declaring the
circumstances under which people died. In each case presented to a
jury, the panelists were required to determine whether the deceased
had died as a result of "Felony or by Mischance and Accident, and if by Felony, whether of his o w n or another."55 If the deceased had "died of his own Felony, then [the jurors were required.] to enquire of the Manner, Means and Instrument, and Circumstances con~urring."~' Perhaps the best evidence of the criminal character of suicide in South Carolina is found in the oath that coroners' jurors were obliged to take:
If it appear to be Self-Murder, the Inquisition must conclude after this Manner, mx.
And so the Jurors aforesaid say upon their Oaths, that the said A.B. in Manner and Form aforesaid, then and there voluntarily and feloniously as a Felon, of himself did kill and murder himself, against the Peace of our Sovereign Lady the Qeen, [sic] her Crown and Dignity.
31. 1 THEEARLIESTPRINTEDLAWSOF^ SOUTHCAROLINA, 1692-1734, at 322 (J. **Cushing ed. 1978) (emphasis in original).
64 WAYNE LAW REVIEW [Vol. 29:
Massachusetts, authorized as early as 1629 to make "all Manner of Wholesome and reasonable Orders, Lawes, Statutes and Ordinnces,...
not contrairie to the Lawes of this our Realme of England, "44 criminaliz-
ed suicide in 1660. Its statute betrayed both a religious purpose and a secular justification:
SELF-MURTHER.
This Court considering how far Satan doth prevail upon several persons within this Jurisdiction, to make away themselves, judgeth that God calls them to bear testimony against such wicked and unnatural practices, that others may be deterred therefrom;
Do therefore Order, That from henceforth, if any person In- habitant or Stranger, shall at any time be found by any Jury to lay violent hands on themselves, or be wilfully guilty of their own Death, every person shall be denied the privilege of being Buried in the Common Burying place of Christians, but shall be Buried in some Common High-way where the Select-men of the Town where such person did inhabit shall appoint, and a Cart-load of Stones laid upon the Grave as a Brand of Infamy, and as a warning to others to beware of the like Damnable practice^.^^
Rhode Island followed the examples of its predecessor (Providence Plantations) and its neighbor (Massachusetts) in enacting suicide legislation in 166S.44This legislation was a virtual mirror of the 1647 Providence Plantations statute. Not until 1700 did Rhode Island receive the common law from England. The third pattern of treatment of suicide in the colonies differed markedly from the others. Instead of mimicking the English exper- ience, these colonies rejected the notion that suicide is-or rather should be- a crime. William Penn is particularly responsible for the divergence. In 1681, Penn received a proprietary charter from King Charles I1 of England,48a charter which, among other things, granted Penn exclusive law-making power over his subject^.^' On April 25,
42. J. GOODENOW, supra note 37, at 207; D. BOORSTIN, supra note 5, at 20. 43. THECOLON~ALLAWSOF MASSACHUSETS 137 (W. Whitmore ed. 1887). 44. THEEARLIESTACTS AND LAWSOF THE COLONYOF RHODE ISLANDAND PROVIDENCE PLANTATIONS, 1647-1719, supra note 39, at 59. 45. I d. at 181. The common law applied "where no particular law of this Col- ony hath provided a remedy." I d. 46. D. BOORSTIN, supra **note 5, at 33.
19821 SUICIDE 65
1682, Penn exercised this power by issuing a "Frame of Government
for Pennsylvania" and a body of laws known as the "Great Law of
1682."" The "Great Law," reflecting both Penn's idealism and his
belief in the fallibility of human instit~tions,'~"made a spectacular
departure from English criminal law,"bo particularly in the area of
capital punishment. Daniel Boorstin wrote that: "Instead of the
numerous capital crimes in the England of that day, only treason and
murder were punishable by death in Pennsyl~ania."~'Penn's influence
was-also strong in the area of suicide.
In 1701, William Penn issued a "Charter of Privileges to the Pro-
vince & Counties" of Pennsylvania and D e l a ~ a r e. ~ ~This document, which set forth the rights and duties of Penn's subjects, contained the
following provision: "EIGHTHLY: If any person, through Tempta-
tion or melancholly, shall Destroy himself, his Estate, Real & Personal,
shall, notwithstanding, Descend to his wife and Children or Relations
as if he had Died a natural death... The effect of this provision
was to decriminalize suicide, for forfeiture had been the primary
means of punishing self-destruction in England and in those colonies
which had followed the English pra~tice.~'Penn's "Charter of Privi-
leges" has been called "remarkably liberal for the times,"bband indeed
it was; it was not until after the Declaration of Independence, some
seventy-five years later, that states began, as a general matter, to in-
corporate into their constitutions broad provisions for the abolition of
forfeiture s a n c t i ~ n s. ~ ~These states illustrate the fourth pattern in the
early American treatment of suicide. Maryland and New Jersey received the English common law upon
prietor, together with the freemen, full powers to make laws not inconsistent with the laws of England, subject only to the approbation of the crown." THE EARLIEST
generally D. BOORSTIN, supra note 5, at 47.
48. D. BOORSTIN, supra note 5, at 34, 42, 47. 49. See id. at 42-43; THE EARLIESTPRINTEDLAWS OF PENNSYLVANIA, 1681-1713, supra **note 48, at vii.
19821 SUICIDE 6 7
Whereas before 1776 suicide had been characterized as a crime sub-
ject to an array of punishments, after 1776 it was a legally unobjec-
what intellectual and social forces produced this shift in policy. For
present purposes, it is enough to explore some of the reasons that were
advanced for characterizing suicide as a crime in the first place.
Early legal scholars adduced at least three distinct arguments for characterizing suicide as a crime. Because these arguments tend to be esoteric, some background on the English conception of law is neces-
sary. To Henry de Bracton, law was more than just an instrument of
punishment. To be sure, it had its corrective component: "Law is a general command, and the decision of judicious men, the restraint of offences knowingly or unwittingly committed, the general agreement of the res p ~ b l i c a. " ~ ~ But Bracton also believed that law had a peda-
gogical function; it existed, in part, to instruct people in correct
modes of behavior. "[Law's] special meaning is a just sanction, order-
ing virtue and prohibiting its opposite."66In this view, law was expec-
ted to step in and "nudge" people toward rectitude whenever they fail-
ed to live up to their potential as rational, moral actors.
When the American colonies began to enact legal codes, they ac-
cepted this dual capacity of the law both to punish and to guide. A
1647 statute of Providence Plantations expresses both goals: "The law
is made or brought to light, not for a righteous man, who is a law unto
himself, but for the lawless and disobedient.... [W]e do agree to
make or rather to bring such laws to light for the direction or correc-
tion of such lawless persons... ."68 William Penn, writing some
thirty-five years later, insisted: "They weakly err, that think there is no
other use of government, than correction, which is the coarsest part of
it: daily experience tells us, that the care and regulation of many other
affairs, more soft, and daily necessary, make up much of the greatest
part of government... ."69 The ancient notion that law was a
65. 2 H. BRACTON, supra note 20, at 22 (emphasis added). 66. I d. 67. Lon Fuller said that there are two fundamental types of morality, and that
ity of duty starts at the bottom. It lays down the basic rules without which an ordered
PROVIDENCEPLANTATIONS,1647-1719, supra note 39, at 14 (emphasis added).
69. 5 FEDERALAND^ STATECONSTITUTIONS, supra^ note 52, at 3053. Nearly a century later, in 1776, the Pennsylvania constitution provided that "Laws for the en-
68 WAYNE LAW REVIEW [Vol. 29:
teacher, as well as a disciplinarian, helps to explain why suicide was characterized as a crime in both England and several American col- onies. 70 To the modern mind, suicide may appear to be an act without social ramifications because it involves an act of inward violence. It was not so conceived by English jurists and certain colonial American legislators. William Blackstone, for instance, firmly believed that
suicide, like other crimes which "affect and injure individuals or
private s~bjects,"~'had social ramifications:
Were these injuries indeed confined to individuals only, and did they affect none but their immediate objects, they would fall absolutely under the notion of private wrongs, for which a satisfaction would be due only to the party injured.... But the wrongs which we are now to treat are of a much more extensive consequence... .7x
Blackstone's typology of homicide is evidence that he regarded suicide as a crime not "confined to individuals only." In this typology, he plac- ed suicide under the heading of "homicide," which he defined as "de-
stroying the life of man."7Vn explanation, Blackstone wrote that:
"[Tlhe law sets so high a value upon the life of a man that it always in- tends some misbehavior in the person who takes it away, unless by the
command or express permission of the law."74 It did not matter to
Blackstone, apparently, that in the case of suicide, the person whose
life was "taken" and the person who "took" that life were one and the
same. Colonial Americans, especially in New England, 75 had little diffi-
culty conceiving of suicide as an offense against society, and thus in
characterizing it as a crime. Their social ethic emphasized order, co-
couragement of virtue, and prevention of vice and immorality, shall be made and con-
NICOMACHEANETHICS 28 (D. Ross trans. reprint ed. 1980).
70 WAYNE LAW REVIEW [Vol. 29:
A decision from the King's Bench more than a century later confirmed this view of suicide as murder: "[Tlhis is as hainous [sic] a murder as any, and is done rather to avoid the shame and loss of their p ~ s t e r i t y. " ~ ~Virginian authorities eventually concurred in this inter- pretation, for they regarded suicide as "the murder of one's self." However interpreted, as a form of felonious homicide or as murder, suicide retained its status as a criminal offense. Three reasons were usually advanced for characterizing suicide as a crime. First, it violated one of nature's most fundamental "laws," that of self-preservation. Second, it infringed upon the king's peace, therefore depriving him of one of his subjects. Third, it prevented the actor from realizing his or her potential as a contributing member of the community. Each of these reasons was cited, at one time or another, by judges and legislators concerned with prohibiting suicide. The argument that suicide violated a "fundamental law" of nature was first advanced by St. Thomas Aquinas. He wrote: "It is altogether unlawful to kill oneself,... because everything naturally keeps itself in being, and resists corruptions so far as it can."85 The Commons Bench of England employed a similar line of reasoning in the case of
Hales v. Petit in 1562, where the court submitted that suicide was
"contrary to the rules of self-preservation, which is the principle of nature, for every thing living does by instinct of nature defend itself from destruction... ; to destroy one's self is contrary to nature, and a thing most h ~ r r i b l e. " ~ ~The Massachusetts Code of 1660, as we have seen,87described suicide as a "wicked and unnatural practice[]," thus continuing the reliance upon natural law concepts. However, these judges and legislators consistently failed to justify their predica- tion of legal rules upon the natural "order," which may or may not have been correctly d e s ~ r i b e d. ~ ~
(1964) (emphasis added).
19821 SUICIDE 7 1
The argument that suicide "infringes upon the king's peace" has an even more ancient origin. Aristotle reportedly wrote that a suicide "treats the state unjustly;"g0Aquinas argued: "Every man is part of the community, and so, as such, he belongs to the community. Hence by killing himself he injures the c~mmunity."~'This reasoning was fol- lowed by the Commons Bench in Hales v. Petit,gP which stated that "James [Hales], not having God before his eyes, but seduced by the art of the devil,... voluntarily entered into the... river, and himself therein then feloniously and voluntarily drowned, against the peace of the... late King and Queen. "95 In killing himself, SirJames had "killed one of the King's subjects,"g4and thus deprived the king of an economi- cally-functioning individual. This rationale was sometimes phrased in terms of disloyalty to the community: The suicide "had enjoyed the sup- port and protection of the civil and political body during his infancy and youth, and, by taking his own life, he shook off the responsibilities and shirked the duties devolving upon him as a member of the com- r n ~ n w e a l t h. " ~ ~This statement reinforces the view, at least in New England, that the individual was subservient to the c o m m ~ n i t y. ~ ~ The third rationale for the criminalization of suicide is perhaps the most removed from modern experience, for it draws upon the
sometimes forgotten Christian underpinnings of English law. Ortho-
dox Christian morality holds that in addition to the the duties owed
or herself for the benefit of other individuals, because either the actor's genes themselves, or genes substantially similar to them, will survive and continue to spread themselves throughout the population. Examples of this would include assisting those who are likely to reciprocate in the future (enhancement of the actor's long-run sur- vival prospects), and taking steps to promote the welfare of one's family members (preservation of identical genes). In this view, there are most certainly suicides which have evolutionary survival value-those which result in the preservation of family members who would otherwise (for one reason or another) die. Suicide can thus be viewed as a "natural" response in certain situations. See generally E. WILSON, SOCIOBIOLOGY:THENEWSYNTHESIS(1975); R. DAWKINS,THESELFISHGENE(1976); P. SINGER,THEEXPANDINGCIRCLE:ETHICSAND SOCIOBIOLOGY(1981). In any event, it is patently fallacious to argue that because something "is" the case, it "ought" to be the case. For useful discussions of this "Naturalistic Fallacy," see P. SINGER, supra; R. HARE,THELANGUAGE OF MORALS79-93 (1964); Frankena, The Naturalutic Fallacy, in READINGSIN ETHICALTHEORY54 (W. Sellars & J. Hospers 2d ed. 1970).
19821 SUICIDE 7 3
ted suicide was "invading the prerogative of the Almighty and rushing
into his immediate presence uncalled for."loB It is impossible to overemphasize the extent to which colonial law
reflected religious doctrine. It has been said that "the primary objec-
tive of criminal law in the prerevolutionary period was to give legal ef-
fect to the community's sense of sin and to punish those who breached
the community's taboos."l10 This interrelationship between crime and
sin was most evident in Puritan New England, where it was believed
that "God had rules for civil policy as well as for ecclesiastical... ."ll One of those "rules" was that it was wrong to commit suicide, and the Puritans were quick to transform that "wrong" into a legal proscrip-
tion. The 1660 Massachusetts statute that criminalized suicidellP as-
cribed the self-destructive impulse to "Satan," and warned the citi-
zenry that "God calls them [suicides] to bear testimony against such wicked... practices... ."llS By an imperceptible but powerful'proc- ess of reasoning, the Puritans derived a duty to others from a duty to God. Crime, in a manner of speaking, had become synonymous with sin.
Initially, all homicides were treated alike under English law. It was
not until the medieval period that "royal lawyers [began] to distin-
guish between the guilt of various forms of homicide by reference to
the circumstances under which they were committed."ll4 Gradually,
exceptions were carved out for misadventure (accident) and self-de-
fense, and ultimately the various shadings of culpability described by
Blackstone1l6were used as the basis for criminal punishment.l16 It be-
came an established feature of English criminal law that a particular
act could be considered objectively "wrong," and yet not deserve punishment because the actor was not deemed to be " b l a m e ~ o r t h y. " ~ ~ ~
**109. Id. at *189.
WAYNE LAW REVIEW [Vol. 29:
Thus, the wedge was driven between the concepts of "wrongfulness" and "culpability. That same wedge was used very early on with respect to suicide, where the evil intent of the actor became the sine qua non of legal cul- pability. According to Bracton, conviction of a crime could not occur without a malicious state of mind: "Remove will and every act will be indifferent. It is your intent that differentiates your acts, nor is a crime committed unless an intention to injure exists; it is will and purpose which distinguish maleficia.""9 This emphasis upon the state of mind of the actor resulted in two major exceptions from, or defenses to, the general rule that suicide was a culpable act.
253, 259-60, 75 Eng. Rep. 387, 397 (1562), some three centuries later, where the other extreme is taken. There, the Commons Bench divided the suicide act into three parts: the "imagination," the "resolution," and the "perfection." In assigning weights to these parts, the court submitted that "the doing of the act is the greatest in the judg- ment of our law, and it is in effect the whole, and the only part that the law looks upon to be material. For the imagination of the mind to do wrong, without an act done, is
presence of both of these elements-th; subjective mens re= and the objective actus reus-before conviction can occur. See, e. g. , MODELPENALCODE 55 2.01-.02 (Pro- posed Official Draft 1962).
