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Evolution of American Funerary Customs and Laws

The following is a guest post by Mattie Aguero, a former intern with the Digital Resources Division of the Law Library of Congress.

While cultural customs surrounding death may differ, every society practices some form of ritual for the final disposition of the deceased. In the United States, this ritual is referred to as funeral rites. A funeral is a ceremony that is held in remembrance of the life of the deceased, the collective nature of which allows for a shared experience of mourning and expression of grief for lost loved ones.

Today we will explore the evolution of the American funeral, and how funeral practices in the United States led to the creation of consumer protection laws that regulate goods and services in the death care industry.

Early American Funeral Practices

In early America, death was a frequent part of colonial life. The conditions of the seventeenth century in the United States were such that forty percent of children in society did not reach adulthood. The most profitable material produced by the colonial press was mourning broadsides containing eulogies for the deceased.

While Puritan funerals were silent, somber affairs, their wakes were lively communal events. The night before the burial, friends and family of the deceased gathered at the house of mourning to partake in a viewing, or a time of watching over the body, to make sure that the deceased did not awaken. The wake was accompanied by a large feast, where mourners celebrated with food and liquor. The rum bill was often the most lavish expense of the entire funeral.

As the population in the colonies grew, their funeral ceremonies became increasingly elaborate public displays of mourning. The exchanging of gifts became a major part of colonial death rituals, the most common being pairs of gloves and gold rings that were distributed to the attendees. At the funeral of Waitstill Winthrop, the grandson of the founding governor of Massachusetts Bay Colony, 60 rings were given to friends in attendance. The total expense of the entire ceremony was over six hundred pounds, which amounted to one-fifth of Winthrop’s entire estate.

Professor Steven C. Bullock, an academic expert on colonial history, puts the Winthrop funeral in context:

“In a year when all of Boston paid £1700 to the province for poll and property tax…Winthrop’s ceremony cost…more than the tax payments from any other locality in the colony—and more than twice as much as all Maine put together.”

The increasing grandeur of funeral ceremonies became a financial burden for many in the community, particularly for widows and children who became impoverished by spending the estate on funeral bills. Colonial legislators began to pass sumptuary laws to regulate extravagant funeral purchases. This legislation restricted the amount of money that could be charged for things like mourning garments, the tolling of the church bell, and undertaker services. It also enacted fines for excessive gift-giving and providing liquor at funerals.

For example, in 1761, the Massachusetts Bay Province enacted “An Act to Retrench the Extraordinary Expense at Funerals,” which ordered that:

No scarves, gloves (except six pair to the bearers, and one pair to each minister of the church or congregation where any deceased person belongs), wine, rum, or rings shall be allowed and given at any funeral, upon the penalty of fifty pounds, to be forfeited by the executor…to the will or estate the person interred; to be recovered by action…in any of his majesty’s courts of record” (Chapter 14, Section 1, pg. 1086).

Thus, colonial funeral practices paved the way for the creation of laws prohibiting excessive funerary expenses.

Black and white photograph of a gravesite with many items placed around to honor the deceased, including clocks, pots, goblets, cups.

Grave covered with various domestic items: clock, cup, goblet, pots; gravestone reads: “Hackless Jenkins, June 15, 1878-June 25, 1926; asleep in Jesus”. Ulmann, Doris, 1882-1934, photographer. Library of Congress, Prints and Photograph Division. //hdl.loc.gov/loc.pnp/cph.3b10109

Nineteenth Century: Birth of the Funeral Industry

The nineteenth century is considered to be the genesis of the modern American funeral industry. Towns grew into cities, which quickly became severely overcrowded. As local cemeteries ran out of burial space, the rural park cemetery emerged. Located far enough away from the city to require transportation, coffin makers began to offer additional services like carriage rentals and hearse transportation to the gravesite.

Over time, these coffin makers began to take on other duties of what is now considered “death care” – they offered mourning wear, burial clothes, flowers, preparation of the body, and coordination of the entire funeral service. These tradesmen began to refer to themselves as undertakers, for they were the people who “undertook” responsibility for funeral arrangements.

A special report on occupations prepared by the Census Bureau shows that in 1890, there were 9,891 people who indicated an occupation of “undertaker” on the eleventh census. In 1900, on the twelfth census, that number rose to 16,189 (an additional 6,298 in 10 years). The use of the term undertaker as common nomenclature for a professional who engages in specialized tasks associated with funerary practices, set the stage for the creation of the modern funeral director and the death care industry.

Black and white photograph of horses and carriages in front of a turn of the century funeral home with a sign that reads "Undertaker" on the front of the building

Horses and carriages in front of funeral home of C.W. Franklin, undertaker, Chattanooga, Tennessee. Du Bois, W. E. B. (William Edward Burghardt), 1868-1963, collector. Library of Congress, Prints and Photographs Division. //hdl.loc.gov/loc.pnp/cph.3c09101

The Civil War and General Order 39

The Civil War greatly impacted American funeral practices. Soldiers were desperate to avoid being buried on enemy soil. Likewise, families wanted their dead returned to them to give them a proper burial. However, the journey by train was long and the summer heat was not conducive to preserving the deceased.

The solution to this preservation problem was embalming, or treating a dead body with injected chemicals to slow decomposition. Dr. Thomas Holmes, today considered the “father of modern embalming” in the United States, embalmed the bodies of fallen Union soldiers for the Army Medical Corps until he resigned to privatize his embalming services.

Other entrepreneurial surgeons began to offer their embalming expertise at a price. They would advertise their services outside of their tents, with unknown soldiers embalmed and standing at attention in caskets. Embalming fees inflated as the rate of death increased, particularly for higher-ranking soldiers. This became such a widespread issue that the War Department issued General Order 39, an “Order Concerning Embalmers,” which required all embalmers to obtain a special license to practice on deceased soldiers and established “a scale of prices by which embalmers are to be governed.” This order represented the first major effort of the United States federal government to define and regulate professional requirements for undertakers.

Embalming President Abraham Lincoln

Embalming was not commonly practiced among the general population until the death of President Abraham Lincoln in 1865. Due to his popularity, government officials decided to take his body on a two-week national funeral procession from Washington, D.C. to Springfield, Illinois, his final resting place. In order to make such a long trip, embalming was necessary to keep the remains preserved. In fact, his body was re-embalmed at every city stop to maintain his “lifelike” appearance for the thousands of mourners who viewed him laid out in his coffin. By the end of the route, he was essentially mummified.

Death bed of Lincoln / A. Brett & Co. 83 Nassau St. A. Brett & Co. 1865. Library of Congress, Prints and Photographs Division. //hdl.loc.gov/loc.pnp/pga.00291

For many Americans, this was the first time that they saw an embalmed body, and Lincoln’s well-preserved appearance made quite an impression. Embalming of the deceased soon became a common practice, and body preparation shifted from the family home to the care of licensed undertakers. In 1882, undertakers formed the National Funeral Directors Association (NFDA), and the death care industry was born.

Starting with Virginia in 1894, states began to pass laws regulating the practice of embalming. Virginia established a state board of embalming, with the intent “to provide for the better protection of life and health, to prevent the spread of contagious disease, and to regulate the practice of embalming and the care and disposition of the dead” (Chapter 625). This act made the unlicensed practice of “the science of embalming” a misdemeanor, the penalty for which was a $50-$100 fine per offense. By 1900, 24 states had enacted similar statutes regulating licensing, education requirements, and the technical preparation necessary to practice the trade of embalming. By the late nineteenth century, undertakers had become professionals who provided a necessary service to the public in the form of an organized set of tasks performed for the “proper” disposition of the dead.

American Funerals in the Twentieth Century

The same year that the NFDA was formed, the first school of mortuary science was established in the United States to provide formal training and standardize practices across the funeral industry.

Funeral directors grew their businesses to include funeral home services, offering a neutral space for communities to mourn their dead. The 1900s saw an expansion of family-owned funeral homes across the country. The next few decades in America saw record numbers of deaths due to World Wars I and II, and the Great Depression.

In 1918, state governments mandated prohibitions on public gatherings in large cities, including funerals and wakes, and also required that flu victims be buried within 24 hours of a death to decrease the risk of disease spreading. This had a profound effect on funeral rites in the United States – grieving became less of a public endeavor, and more of a private, individual process due to public health concerns.

The FTC Funeral Rule

Funerals had become a commercial service, which required regulation for the protection of consumers. Following Senate hearings in July 1964, the Federal Trade Commission’s (FTC) Bureau of Consumer Protection investigated the funeral industry to determine how to address the unethical practices of some funeral directors against consumers. The result of their investigation was a final report proposing a “trade regulation rule on funeral industry practices.” After a lengthy process of public hearings with much backlash from funeral directors, the FTC introduced the “Funeral Rule”  (16. C.F.R. Part 453) in 1984. The current edition of the Code of Federal Regulations can be found online.

Per the FTC, the Funeral Rule “requires providers of funeral goods and services to give consumers itemized lists…that not only state prices and descriptions, but also contain specific disclosures.” Additionally, the Funeral Rule prohibits funeral directors from misrepresenting legal requirements, embalming without permission, and other deceptive or unfair practices. The FTC conducts yearly undercover secret shopper inspections of funeral homes to monitor funeral home compliance. As of January 2020, the civil penalty for violating the Funeral Rule is $43,280 per violation.

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