A tall but true tale: Charles Byrne, the Irish Giant
The authors argue that it is time a London museum released the remains that were unlawfully snatched on the way to a man's funeral
A tall tale: Charles Byrne’s life
The story of Charles Byrne, the “Irish Giant”, has all the drama, adventure, and tragedy that you could hope to find in the very best of novels or films. But in this case, the story is real. And more than that, it raises some fascinating legal questions.
Byrne was born in 18th-century Ireland in County Derry, living from 1761-1783. By his early teens he was growing into a “giant” – he had the condition known today as pituitary gigantism, where excess hormones are released that lead to dramatic growth. At the point of his untimely death, aged only 22, Byrne measured upwards of 7ft 7in, and was still growing.
G F R Barker has recorded (“Charles Byrne”, Dictionary of National Biography (1920 ed)) that “His father was an Irishman, and his mother a Scotchwoman, but neither of them was of extraordinary size.” Viewed by onlookers as a “wonderful Irish giant”, Byrne set off from Ireland in his late teens in search of fortune and adventure.
Intending to exhibit himself as a human curiosity to an eager paying public, he first made for Scotland, where his success and celebrity quickly spread. “[A]t Edinburgh”, Barker writes, “he alarmed the watchmen on the North Bridge one morning by lighting his pipe at one of the lamps without standing even on tiptoe.” Eric Cubbage adds in The Tragic Story of Charles Byrne “The Irish Giant” that “The giant encountered great difficulty in manoeuvring up and down the narrow stairs of the old town, resorting to crawling on his hands and knees in attempts to navigate his way through the confined spaces.”
By around early 1782 Byrne had arrived in London, where he shared his company with amazed onlookers for a small fee, fast becoming a renowned celebrity. But the Irish Giant’s links to Scotland do not end with his move to London. One of the greatest anatomists of the age, eminent Scots surgeon John Hunter (1728-1793), born in East Kilbride, was living and working in London at this time. Hunter began to obsess about getting hold of Byrne’s corpse for study and display.
Byrne was fearful of this outcome, and, young as he was, a run of misfortune suddenly made his death an imminent possibility. Serious complications relating to his medical condition and a penchant for alcohol were starting to bear heavily on him, and these problems were compounded when the savings he had built up were stolen in their entirety from him one night while he was drinking in a London pub.
Within two months of this theft, in a physically ill and emotionally depressed state, Byrne lay dying at his London lodgings. Fearful that his remains would be sold into the anatomists’ hands by graverobbers even if he was buried in the ground, the dying giant directed his friends to weigh down his coffin and bury his body at sea.
The death of the giant
After Byrne died in early June 1783, the Edinburgh Evening Courant (quoted in Edward J Wood, Giants and Dwarfs (London: Richard Bentley, 1868), 162) reported that: “Yesterday morning, June 6, the body of Byrne, the famous Irish giant (who died a few days ago), was carried to Margate, in order to be thrown into the sea, agreeable to his own request, he having been apprehensive that the surgeons would anatomize him”.
However, unbeknown to the party burying Byrne's coffin in the Margate sea, the giant’s remains were not in there, for Hunter had already bribed an undertaker to secretly swap the corpse for dead weight and bring the body to him. Some four years later Hunter put Byrne’s giant skeleton on display.
His skeleton remains on show in a controversial exhibit in John Hunter’s memorial museum, the Hunterian Museum in London. On 6 June 2018, writing out of Stirling Law School, the first named author (Muinzer) addressed the case in The Conversation, the online magazine used by legal (and other) academics to present research in a journalistic style for the general public. Entitled “Why a London Museum should Return the Stolen Bones of an Irish Giant”, the commentary made the case that it is high time for Byrne's remains to be withdrawn from display by the Hunterian Trustees and released for burial in accordance with his wishes.
In the Conversation commentary, it was stressed that a large and increasing campaign exists that has been expressing pronounced public dissatisfaction with the treatment of the remains. It was also stressed that the Hunterian has recently closed for refurbishment, meaning that the trustees have a golden opportunity to rethink the exhibit, and indeed can reopen the museum after the refurbishment without the skeleton on display.
Extensive media coverage followed, and after extended pressure from many quarters the Hunterian trustees issued a statement to the effect that the skeleton may potentially be withdrawn from display by the time the museum reopens in 2021: see the Guardian, 22 June 2018: “'Irish Giant' may Finally get Respectful Burial after 200 years”. The case has caught the Scottish imagination in particular, having been covered in a “Special Report” in the Sunday Herald of 24 June 2018, explored on BBC Radio Scotland's Newsdrive on 25 June, etc.
Muinzer has examined the legality of the museum’s treatment and behaviour in relation to the remains, and concluded that, while the treatment of the skeleton is ethically unsatisfactory, it is legally sound: “Bones of Contention: The Medico-Legal Issues Relating to Charles Byrne, 'the Irish Giant'”, Queen’s Political Review (2014) 2:155-166. Nevertheless, Byrne's story cannot be accused of being devoid of fascinating legal elements.
First, it is of historical legal interest and contemporary ethical interest to acknowledge the law’s bearing on the fate of Byrne's body back in Georgian times. Secondly, the law’s bearing on the skeleton’s circumstances in the present is also of interest. (Since the pertinent facts arise within England, English law rather than Scots law is at issue here.) The first thing one notices here is just how similar the law was then to now. In particular, the law then as now did not grant binding weight to the deceased’s actual burial instructions (the law operated under this general assumption, with the position being specifically clarified by Williams v Williams (1882) 20 Ch D 659), and as such Hunter and those in his pay did not act unlawfully in preventing the specific (sea burial) wishes themselves from being carried out.
Further, the law applied a “no property” rule to dead bodies (Haynes’ case (1614) 12 Co Rep 113; Dr Handyside’s case (1749) 2 East PC 652; R v Lynn (1788) 2 TR 733; Re Sharpe (1857) Dears and Bell 160; R v Price (1884) 12 QBD 247), that is to say, Byrne's corpse was not capable of amounting to property and thus was not capable of being owned. This rule remains the law at present, subject to certain narrow exceptions that have since been developed, most importantly a “work or skill” exception (Doodeward v Spence (1908) 6 CLR 406). Here, a dead body (or a dead body part(s)) that has been subjected to special work or skill to the extent that it has “acquired some attributes differentiating it from a mere corpse” (per Griffith CJ at para 414) can achieve a proprietary status permitting ownership interests to crystallise. (Doodeward is an Australian authority that has been received into the law of England & Wales. See, e.g. Dobson v North Tyneside Health Authority  1 WLR 596; R v Kelly and Lindsay  2
All ER 741. It also laid the basis for s 32(9)(c) of the Human Tissue Act 2004.)
Since one cannot steal that which cannot be owned, it follows that Hunter and his allies were not guilty of the theft of Byrne's corpse.(1) As to the present, the Trustees of the Hunterian Museum currently have lawful custody of the remains. Although it is questionable whether the “no property in the dead body” rule would apply at all, insofar as the remains now take the form of a skeleton rather than a corpse, the Hunterian Museum has produced a sophisticated mounted skeletal arrangement and filled in elements of missing bones, such that the display would likely fall within the purview of the “work and skill” exception. Thus, there appear to be solid grounds for concluding that the skeleton is the “property” of the Hunterian Museum. At any rate, the trustees certainly have lawful custody of the remains. See further the analysis in Muinzer, “A Grave Situation: An Examination of the Legal Issues raised by the Life and Death of Charles Byrne, the 'Irish Giant'”, International Journal of Cultural Property (2013) 20: 23-48.
In Byrne's time, however, the law did require corpses to be disposed of on grounds of public health and decency, and as Mr Justice Abney stated in Andrews v Cawthorne (1744) 125 ER 1308, “by the common law of England… burial… is de jure or of common right”. (Note too the role of ecclesiastical law at the time: “The carcasse that is buried belongeth to no one, but is subject to ecclesiastical cognizance if abused or removed… yet taking up a dead body, though for the purpose of dissection, is an indictable offence at law, as an act highly indecent and ‘contra bonos mores’”: Burn, Ecclesiastical Law (London: Sweet, Stevens & Morton, 1842), 271(a).) Thus, the common law came to develop a “duty to bury” principle, imbuing certain persons with a custodial right to the corpse for burial purposes: Muinzer, “The Law of the Dead: A Critical Review of Burial Law, with a View to its Development”, Oxford Journal of Legal Studies (2014) 34(4), 791-818.
This remains the case today. Presently, the primary entitlement falls to the executor of the deceased’s will (Williams v Williams (1882) 20 Ch D 659), and in instances of intestacy the custodial hierarchy is expressed in the Administration of Estates Act of 1925, at s 46. For example, the legal duty to bury a husband falls to the deceased’s wife (in an instance of intestacy), with the wife acquiring a possessory right to the remains for the purpose. In Byrne's era, an equivalent intestacy distribution framework model could be found in the Statute of Distributions, enacted in 1670.
Muinzer has suggested, therefore, that Hunter and his allies appear to have unlawfully interfered with Byrne's right to a burial and the “duty to bury” principle, and, further, with reference to Jenkins v Tucker (1778) 126 ER 55, that Hunter’s “treatment of the corpse is also likely to have contravened the common law’s public decency standards” (“Bones of Contention”, above, at 161). He has also suggested that “the action of switching the body for dead weight and thereby causing the weight rather than the body to be buried” at Byrne's sea funeral may arguably “fall within the parameters of the longstanding common law offence of ‘preventing the lawful burial of a body’”.(2)
In terms of the present day, it is noteworthy that none of the giant’s blood relations are known, but if such blood relatives did exist, Muinzer has noted that “they could endeavour to activate a familial possessory right to the remains for the purposes of burial under the duty to bury principle” (“Bones of Contention”, at 162). Such creative efforts would have an ethical appeal, but no doubt they would have no basis for success in a court of law. Too much familial distance has passed over more than two centuries to afford the relation(s) locus standi, and further time limitations would no doubt provide an additional prohibitive factor (see, e.g. Administration of Estates Act 1925, s 54).
For these and other reasons, the law does not seem to offer assistance in securing the release of Byrne's remains from his stark glass case in the Hunterian Museum. However, there exists a powerful argument favouring this course on moral grounds. Given the trustees’ recent statement, it is anticipated that withdrawal of the remains will likely occur, and this could be followed by a respectful burial, arranged by the trustees in accordance with the deceased’s wishes.
Dr Thomas Muinzer is a lecturer in environmental and public law at the University of Stirling, and a member of the Law Society of Scotland's Education & Training (Policy) Committee. Anna-Marie McAlinden is a director in the Commercial Property team with Mills Selig Solicitors, Belfast
(1) That said, Haynes’ case (above) revolved around the activities of Haynes who was caught digging up graves, removing four bodies, stealing the winding sheets that covered the cadavers and then re-burying the bodies into graves. Although Haynes has become an authority for the “no property” in dead bodies rule, interestingly, Haynes was found guilty of petty larceny for stealing the winding sheets. Given that the Royal College of Surgeons' records show that the Hunterian Museum preserve in their collection a shoe, boot, stockings and a glove worn by Charles Byrne, the question arises as to how it obtained such items. If (as is likely) the answer is that they were part of John Hunter’s collection, then they were probably on Byrne's corpse when it was removed from the coffin, and it would follow that Hunter and/or his allies may have committed petty larceny. Consequently, although the skeleton of Charles Byrne is not “stolen property”, the Hunterian Museum might still count amongst its collection items procured by petty thieves.
(2) Muinzer, “Bones of Contention”, above, at 162, drawing on Hirst, “Preventing the lawful burial of a body”, Criminal Law Review 96 (1996), 101-103. See also McBain, “Modernising the Law on the Unlawful Treatment of Dead Bodies”, Journal of Politics and Law (2014, (7) 3), 94, which highlights the cases of R v Lynn  2 TR 733 (100 ER 394) and R v Hunter  QB 95 as authorities for prevention of the burial of the body being an indictable misdemeanor. Lynn “was designed to put an end to the practice of grave robbing in order to supply bodies for dissection. The defendant was convicted on an indictment charging him with entering a burial ground and unearthing a coffin from which he extracted a corpse which he took away for the purpose of dissection. The case noted that the common law did not – it appeared – as yet make this a criminal offence. The report states: “The court said that common decency required that the practice should be put a stop to. That the offence was cognizable in a criminal court, as being highly indecent, and contra bonos mores; at the bare idea alone of which nature revolted. That the purpose of taking up the body for dissection did not make it less an indictable offence”.
Hunter was a case “where the defendants went with a girl at night to a playing field where she died by accident. The defendants hid her body under a pile of stones where it remained hidden for four months. The defendants were convicted of conspiring to prevent the burial of a corpse. On appeal, it was held that it was a crime to prevent the proper burial of a corpse without lawful excuse. In this case Cairns J stated (at p 98): ‘conspiracy to prevent the burial of a corpse is not, so far as this court is aware, a charge that has ever been laid in modern times. It is however, stated in Russell that to prevent the burial of a dead body is an indictable misdemeanour and the authority cited is the unreported case of Rex v Young. We see no reason to suppose that Russell is wrong in concluding that this is still an offence. It is pointed out on behalf of the defendants that Rex v Young was a charge against the master of a workhouse where the person had died and another defendant. But if it is a crime for a person responsible for burial to prevent it, there is no reason for regarding the act of a stranger in preventing burial as any less reprehensible. We think that in this connection burial means lawful and decent burial… if a decent burial is prevented without lawful excuse, we consider that this is an offence'.” The case of Rex v Young was unreported but highly relevant, as it was likely to have been very close to the time of Charles Byrne's death: in R v Lynn, counsel (Garrow) referred to it as a “case of one Young a few years ago”.