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Museums and the Return of Human Remains: An Equitable Solution?

Published online by Cambridge University Press:  21 April 2010

Steven Gallagher
Steven Gallagher
Affiliation:
Faculty of Law, Chinese University of Hong Kong. Email: stevegallagher@cuhk.edu.hk
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Abstract

Disputes over the retention of human remains in museum and other collections are further exacerbated by the common law's limited recognition of the human body and its parts as property. Equity has long recognised the rights of the personal representatives of the dead to possession of the corpse or its remains for decent disposal. This essay considers the possible application of equitable principles to applications for the return of human remains from museum and other collections.

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Articles
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International Journal of Cultural Property , Volume 17 , Issue 1 , February 2010, pp. 65 - 86
Copyright
Copyright © International Cultural Property Society 2010

The debate over the appropriateness of the terms “cultural heritage” and “cultural property” has centered on what can be classified as property, and the identification of property with “ownership.”Footnote 1 Thus it has been suggested that the word “property” and the use of property law to protect cultural heritage might be acceptable if used to designate stewardship rights of a people rather than used to signify and uphold individual property rights.Footnote 2 However, the description of human remains as cultural property is particularly controversial because death and the treatment of the dead are such emotive subjects.Footnote 3 It is accepted that human remains can be culturalFootnote 4—indeed, it is arguable that little is more cultural than the way in which a society treats its dead and their remains. However, there has been hesitation by many concerned with cultural heritage to categorize human remains as property,Footnote 5 because of the connotations of ownership and the reluctance to recognize ownership of the dead. This reluctance is shared by the common law, which has traditionally refused to recognize property in the corpse.Footnote 6 Thus, nearly 400 years ago, the common lawyer Coke wrote, “burial of the Cadaver (that is, caro data vermibus) is nullius in bonis and belongs to Ecclesiastical cognizance.”Footnote 7 The cadaver was “flesh for worms,” and as it was to the good of no man, the Church would protect it. This is often referred to as the “no-property rule.”Footnote 8

Although not regarded as property, human remains have often been retained and displayed in museums and other collections, and this has caused considerable controversy over the past 20 years.Footnote 9 This article will discuss the ongoing debate about the return of human remains from museum and other collections and the juridical position on ownership and competing claims for these remains. Most of the cases discussed involve claims by indigenous peoples for repatriation of human remains housed in museum and other collections in countries which were the former colonial powers. However, the word “return” has been used rather than “repatriation” as there are increasing calls for the return for reburial of all human remains in collections, even if the collection is within the state of origin.Footnote 10

Therefore, this article will discuss the legal basis for retention and return of all human remains in institutional or other collections, not just those of indigenous peoples. The current law will be discussed, and extending from recent judicial decisions, it is proposed that, although the common law may only recognize limited property rights in the corpse, the area of law known as equity may assist individuals and communities claiming the return of human remains in institutional or other collections by providing a remedy that should prevail against any refusal of a claim for return based on provisions in statute or trust. This may allow any individual or group claiming the human remains, with judicially recognized proximity to the deceased, to insist on their return. The remedy will be solely for the purpose of reburial or respectful disposal of the remains and should be applicable in any country with a legal system based on the common law.

1. The Return of Human Remains from Museums

Return of human remains from museum collections, especially to indigenous peoples, has been accepted and encouraged by many international bodies for some time. For example, the World Archaeological Congress adopted the Vermillion Accord on Human Remains in 1989, which focuses on respect for human remains generally, the wishes of the dead, and the community that claims them, and respectful disposal of human remains after study.Footnote 11

Within the United Kingdom, the legislative focus of return of human remains began with the Human Tissue Act 2004 (HTA), although return of human remains from English institutions was not unknown before the Act.

1.1 Repatriation of Human Remains from British Museums Pre-2004

It would be unfair to claim that Britain's museum and scientific collections had not recognized the need to repatriate and return human remains before the HTA. The growing international concern about the retention and display of ancestral remains of indigenous people,Footnote 12 and the often atrocious circumstances of their acquisition, had been reflected in the policy of some of Britain's institutions. For example, the Pitt Rivers Museum in Oxford had removed its display of moko mokai (Maori tattooed heads) from view in 1987 after comments by a visiting member of the Maori community, and in 1990, following a request from an Australian Aboriginal community, the museum returned skeletal remains.Footnote 13

There had also been a growing awareness that human remains should be seen as a special category of cultural heritage. For example, in 2003 the London Times ran a story that approved of the repatriation of Aboriginal human remains by the Manchester Museum and Horniman Museum and distinguished human remains from other forms of cultural heritage such as the Elgin Marbles, which it said,

should be kept among us, accessible. But physical remains can have a human and spiritual dimension that transcends the scientific imperative. When a case can be proved, those remains should be laid to rest in their native place.Footnote 14

The political moves toward a framework for repatriation of human remains from British institutions began with a joint declaration, in July 2000, from the Prime Minister of the UK, Tony Blair, and the Prime Minister of Australia, John Howard:

The Australian and British Governments agree to increase efforts to repatriate human remains to Australian indigenous communities. In doing this, the Government recognises the special connexion that indigenous people have with ancestral remains, particularly where there are living descendants.Footnote 15

Following a later visit by Tony Blair to Australia, the UK declared that it would work to address the issue of Aboriginal remains in British museums. A working group was set up with the Department of Culture Media and Sport (DCMS) to consider the treatment of human remains in museum and other collections. This group made recommendations, which largely became the section 47of the Human Tissue Act 2004.

1.2 The Human Tissue Act 2004

The primary purpose of the HTA is to “regulate the removal, storage and use of human tissue for listed activities, which include research and display.”Footnote 16 The HTA was largely a response to the public outcry over the Bristol and Alder Hey tragedies,Footnote 17 and so provides a requirement for consent for the retention and use or display of human bodies or relevant material.Footnote 18 However, this does not apply to deaths over 100 years before the commencement of the Act,Footnote 19 and the Human Tissue Authority, the body created by the HTA to oversee the study of human bodies and tissue, has tissue and bodies over 100 years old specifically excluded from its remit.Footnote 20 Consequently, most provisions in the HTA do not apply to museum collections. The relevant provision for the majority of the human remains in museum collections is section 47. This enables nine named institutions,Footnote 21 previously prevented by statute (e.g., the British Museum Act 1963),Footnote 22 to de-accession human remains from their collections if they are not more than one thousand years old. Most mummies are therefore excluded from the provision.

In addition to the HTA, s.47, the DCMS has issued nonstatutory guidance on best practice to all museums and institutions in England, Wales, and Northern Ireland that hold human remains in permanent collections, not just those listed in the provision.Footnote 23 The DCMS has also established the Human Remains Advisory Service to help smaller museums deal with claims for the return and repatriation of human remains from their collections.Footnote 24

In the DCMS guidance, the possible legal and regulatory framework controlling de-accession is identified as s.47 of the Human Tissue Act, any constitutional documents of a museum (creating for example a trust), other jurisdictions recognition of rights over human remains (e.g., the guidance cites the Native American Graves Protection and Repatriation Act [NAGPRA]), and the Human Rights Act 1998. The guidance states that the latter makes it unlawful for a public body to act incompatibly with the rights established by that HTA and postulates this may lead to judicial review of museums' decisions regarding human remains.Footnote 25

1.3 The Effects of the Human Tissue Act 2004, Section 47

As a direct result of this legislation and guidance, in March 2006, the British Museum returned Tasmanian ashes from its collection to Australia. Similarly, although not a named institution, the Wellcome Trust transferred three Australian Aboriginal skulls in its collection to Aboriginal representatives in June 2006.Footnote 26

However, where it was allowed and happened, return of human remains from collections in the UK was not without criticism. Many scientists highlighted the fact that, whereas most returned cultural property is usually placed in a museum or collection within the returnee state,Footnote 27 returned human remains are usually buried, cremated, or subject to religious or cultural prohibitions on further study. This has resulted in claims that valuable scientific material will be lost forever.Footnote 28

Thus, the immediate impact of the legislation was an angry debate between scientists concerned that they would lose valuable scientific material and those who recognized the claims of nations to this “material.”Footnote 29 Scientists criticized the legislation as being unnecessarily wide, as it allows the institutions to de-accession remains of any nation, not just the Australian Aboriginal remains that were initially discussed.

Pro-return critics would argue that, although the DCMS Report had recommended that the British Government adopt a policy “for the unconditional repatriation of all Aboriginal human remains to Aboriginal people”Footnote 30 (emphases added), the legislation is permissive only, it is merely an enabling measure, and it only applies to the nine named institutions. Therefore the nine institutions may refuse requests for return, and other institutions, even if willing to return human remains, may still be subject to charitable trust provisions that prohibit trustees from releasing property from their collections.

It should also be noted that, although the HTA allows the return of human remains from any nation, most of the remains returned under the provision have been to Anglophone countries, that is, Australia, New Zealand, and Canada.

1.4 Recent Developments

Many museums now embraced the idea of returning human remains from their collections, realizing that any claim to own the remains might be as barbarous as the means that often were used to collect them. For example, the Manchester Museum, in its published “Human Remains Policy,” states that there can be no ownership of human remains, only custody. Further, the museum has a proactive policy on the repatriation of human remains, consulting with interested groups and not limiting repatriation to Anglophone states.Footnote 31 However, such policies have not been welcomed by all those interested in the study of human remains, and English Heritage has criticized Manchester's policy as too proactive.Footnote 32

There have also been some well-known disputes over the return of human remains, which, returning to the debate over the use of the term “property” for human remains, have been expressed in terms of property and ownership. This is well illustrated by the dispute in 2007 involving the Natural History Museum in London and the Tasmanian Aboriginal Centre (TAC) over the remains of 17 Tasmanian Aborigines in the museum's collection. The dispute received much media coverage,Footnote 33 coinciding as it did with the 200th anniversary of the success of William Wilberforce's campaign to abolish slavery in Britain. Concerns that George Augustus Robinson, who collected the remains in the mid-19th century for the museum, may have stolen the remains from Aboriginal burial grounds were another reminder of Britain's ignominious colonial past.Footnote 34

The Natural History Museum had intended the repatriation of the remains to include a plan to extract DNA; chemically analyze slivers of bone; and take casts, photographs, and scans of the remains. This plan was abandoned after objections from TAC and an application by TAC to the High Court in Australia, where TAC was given limited letters of administration to seek the return of the remains or an injunction preventing interference with them.Footnote 35 The nonintrusive tests were allowed, but the museum agreed to “abandon the rest of the programme under a compromise deal.” Samples taken before November 2006 were returned to Tasmania with future testing or destruction of the samples subject to the consent of both parties.

Richard Lane, the museum's director of research, interpreted this last condition as saving the remains for future research: “The fact we have to agree means the DNA cannot now be destroyed.” It is submitted that Lane's statement reflects the attitude of the museum that it would, and should, have a continued control over, and proprietary interest in, the human remains.

The press coverage of the dispute and comments by the scientific community focused on the loss of the human remains to the museum and science and used terms that are linked to “ownership” and “property.” The London Times, in an article entitled, “Museum Surrenders Vital Clues to Human Evolution,” stated:

One of the World's most important collections of human remains has been lost to science, after the Natural History Museum gave up the specimens without first carrying out work that would have preserved clues to evolution.Footnote 36 (emphases added)

The scientific community seemed to view the repatriation as a bargaining exercise. Robert Foley, professor of Human Evolution at the University of Cambridge, said that the museum appeared to have compromised much more than the TAC:

The museum and scientific communities have moved considerably … despite concerns about the impact on science, but there doesn't seem to be any equivalent move on the other side.Footnote 37

The language used by the parties to the dispute over the repatriation of human remains must be considered against the unusual status of the corpse in law: first at common law, then in equity.

2. Ownership of the Corpse

2.1 The Common Law and the Corpse: No-Property or Quasi-Property

Mathews has identified that the judicial authorities relied on to reinforce the previously mentioned common law no-property rule are dubious to say the least.Footnote 38 Jurists have stated that the principle is derived from Haynes's case,Footnote 39 a case of theft of winding sheets or shrouds from graves. However, as Mathews explained, the phrase, “the dead body is not capable of it,” often quoted as justification for the no-property rule, was more likely a statement that the dead body was not legally capable of ownership of the burial shrouds, not a comment on the dead body as property.Footnote 40 Similarly, Dr. Handyside's Case,Footnote 41 another presumed authority, which involved an action by the father for the return of the corpses of conjoined twins retained by the “man-midwife” for display, had probably been settled before hearing and so serves no judicial precedent; indeed the judge's comments may also have been misinterpreted.Footnote 42

Later authorities then became self-sustaining. Thus, Erle J., in R v Sharpe,Footnote 43 in upholding the conviction of the defendant for removing his mother's corpse from the grave without lawful authority, stated, “Our law recognises no property in a corpse.”Footnote 44 However, he gave no authority for this principle.

Later,Footnote 45 it was stated that Kay J. had declared the law in Williams v Williams,Footnote 46 which was the following:

…there can be no property by the law of this country in a dead body, a person cannot dispose of his body by will, and that after death the custody and possession of the body belongs to his executors until it is buried… .Footnote 47

However, in declaring the law, Kay J. had relied on no more than the authority of R v Sharpe,Footnote 48 which did not rely on any authority.

Having become established, the common law recognizes two important judicially exceptions to the rule. The first exception to the no-property rule was referred to by Kay J. in Williams v Williams Footnote 49 and has been long acknowledged. This is the recognition of the deceased's personal representative's rights to custody, protection, or possession of the corpse for lawful disposal: rights referred to in some of the United States of America as “quasi-property” rights.Footnote 50 These quasi-property rights in the corpse merely refer to the duties of the executors and their right to possession of the corpse for “the sole purpose of burial and right to determine the place, time and manner of burial.”Footnote 51

The second acknowledged exception to the common law rule is the right to ownership of human body parts that have been subject to some application of work and skill in their dissection, preservation, or mounting for exhibition or teaching purposes.

This is derived from the dubious authority of Doodeward v Spence,Footnote 52 a case of the High Court in Australia, where Griffith C. J held that a stillborn two-headed foetus preserved in spirits was property with the rights vested in the present owner. Therefore the police had no right to confiscate the foetus. Griffiths C.J. stated:

When a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purposes of burial… .Footnote 53

In the more recent case of Dobson v North Tyneside HA,Footnote 54 the Court of Appeal was prepared to accept the skill exception but was dubious that Doodeward was authority for the principle.Footnote 55 Similarly in R v Kelly,Footnote 56 Rose L.J. stated:

… in our judgment, parts of a corpse are capable of being property … if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes… .Footnote 57

It is submitted that human remains within museum and other institutional collections, and indeed within private collections, if they are to have property status, will usually fall within the second exception to the no-property rule, they will have been subject to skill and care for preservation.

Charlotte Woodhead has considered this exception with regard to certain categories of human remains in museum collections and proposed that, although smoking moka mokai for preservation was not for “exhibition or teaching” but part of funeral rites, the additional and ongoing preservation of remains “is likely to satisfy the requirements of Rose L.J.” The ongoing preservation techniques used for the naturally preserved bog bodies may also have been within the exception identified by Rose L.J.

However, as Woodhead states that

the rights afforded by the exception in Doodeward v Spence were enforceable as against all but the person entitled to the delivery of the body for the purpose of burial. Even in the case of a modified corpse, identifiable personal representatives would be entitled to make a claim for possession of the body to afford it proper burial.Footnote 58

Thus the first exception to the no-property rule would “trump” the second.

It is further submitted that the skill and care exception identified in Doodeward, Dobson, and Kelly, presupposes “lawful possession” of the human remains and this cannot be evidenced for all museum specimens. Consequently, human remains obtained by what many originating communities would regard as theft from graves or in other dubious circumstances can never be property subject to this exception, as it is trite law to state nemo dat quod non habet (no one may give what he does not have).Footnote 59 This remains true no matter the amount of skill or work undertaken on the remains. Therefore, the only remains that should be subject to the second exception, and not overcome by a personal representative's claim for return for disposal, would be those that can be shown to have been obtained under a consent based donation scheme.Footnote 60

Although the common law recognizes a right to possession of the body by the personal representative to carry out his common law duty to dispose of it, the personal representative must go to equity to enforce this right.

2.2 Equity and the Corpse

The term “equity” is familiar in many legal systems as fairness or justice, but in common law jurisdictions equity is a separate area of law with its own remedies. Originally dispensed by the king himself, equity developed from petitions for the king's conscience to remedy injustice of the common law. Eventually petitions were made to the chancellor, the cleric who was keeper of the king's conscience, and then to the Court of Chancery.Footnote 61 Thus when the common law was inflexible, and rigid a remedy could be sought in the Court of Chancery. Equitable remedies could redress wrongs which the common law could not, thus literally filling in the gaps in the law and relying on the principles of justice and conscience to avoid harsh results. All divisions of the High Court can now administer the rules of both the common law and equity.Footnote 62 If there is any conflict between them, then the rules of equity are to prevail.Footnote 63

Equity's early links with the church and clergy may explain why much of the business of death (e.g., wills and probate) comes under its jurisdiction. Thus the personal representatives of the dead have rights that are recognized and enforced in equity.Footnote 64 Personal representatives are the executors, if the deceased has left a will naming executors, or administrators, if the deceased died intestate, who must apply to the Chancery Division of the High Court for letters of administration to undertake their role.

The primary responsibility for the disposal of the dead falls on the personal representative whether executor or administrator.Footnote 65 This duty is supported by the common law recognition of the right of the personal representative of the deceased to possession of the remains for the burial or disposal of the body.Footnote 66 However, as previously stated, the personal representative would seek an equitable remedy to enforce this common law right against the person, because equity acts in personam. Therefore the most appropriate remedy would be an injunction, which is an order of the court to do or to refrain from doing something,Footnote 67 in this case ordering the party in possession of the corpse to deliver it up to the personal representative. If the injunction were not followed, then the person or institution would be in contempt of court, which could result in imprisonment, sequestration of property, or a fine.Footnote 68

However, it should be noted that equitable remedies are discretionary, not available as of right, and the application of equity is governed by maxims that concern the conduct of the parties and the fairness of the outcome. For example, an equitable maxim is, “He who comes into equity must come with clean hands,” that is, must not have been guilty of improper conduct in regard to the subject-matter of litigation.Footnote 69

How then would an individual or group become the deceased's administrator and acquire such equitable rights?

2.3 Letters of Administration and Human Remains in Museum Collections

As previously stated, the personal representatives of the deceased may be either executors or administrators. The executors are named in the will of the deceased, but if a person dies intestate (without a valid will), then an application has to be made to the court for letters of administration. A person granted letters of administration is administrator of the deceased's estate and has virtually identical rights and responsibilities as an executor, subject to limitations in the grant.Footnote 70 The order of priority of entitlement to grant of letters of administration follows the general rules of intestacy; there generally must be a family connection, although the court can consider other factors.Footnote 71 The court can make the grant even if the deceased left no estate,Footnote 72 and there is no maximum limit of time within which a grant must be obtained.Footnote 73

There have been two well-publicized cases involving applications for letters of administration for the recovery and disposal of human remains: one for human remains consigned for sale at auction and one for the remains of the 17 Tasmanian Aboriginals in the Natural History Museum.

The first application involved the proposed sale of a moka mokai, a Maori tattooed head, at Bonham's, the London auctioneers, in May 1988.Footnote 74 (The proposed sale was described by Bernard Levin as just as offensive as trying to auction an authenticated lampshade made by the Nazis from the skin of flayed Jews.Footnote 75) The president of the New Zealand Maori Council applied for a grant of letters of administration to the High Court of New Zealand. His right to apply was recognized because of his roles as president of the Council and “Rangatira of the deceased's likely iwi” (literally, “chief of his people”).”Footnote 76 In granting limited letters of administration, Greig J. accepted that “the tattooing, method of preservation and circumstantial evidence provided by the auction catalogue” established that the deceased was a Maori who had died in New Zealand in about 1820, and that administration should be granted to allow the commencement of legal proceedings to accord the deceased “a proper burial according to Maori law and custom and to prevent further indignity being visited upon him.” The president of the Maori Council then sought an injunction in the High Court in London to prevent the sale of the head. Perhaps because of the adverse publicity this sale had attracted, the defendants gave an undertaking not to dispose of the head and an agreement was subsequently reached whereby the head was returned to New Zealand on July 3, 1988, for reburial.

Greig J. granted the administration because of the sale, identifying this as the particular reason and seeming to exclude future applications if the remains were being kept for archaeological and scientific reasons, stating,

There can be little, if any, dissent from the proposition that the sale and purchase of human remains for gain and for the purposes of curiosity is abhorrent to New Zealanders and, I hope, to any civilized person. There is a macabre circumstance to the proposed transaction that has some of the attributes of necrophilia. That is no reason to say, of course, that for archaeological and other scientific reasons human remains should not be kept for study and for consideration.Footnote 77

However, attitudes to the retention of human remains in museum collections have changed considerably since 1988. The second well-known application was the previously discussed application in 2007 by TAC to the High Court of Australia for letters of administration for the 17 Tasmanian Aboriginals whose remains were held by the Natural History Museum in London.Footnote 78 The application was brought because the museum had made it clear that it wanted to conduct intrusive tests on the remains before returning them. Underwood C.J., in the Australian High Court, called this “a most unusual” case, both because the Aboriginals had died more than 150 years ago, and there was no evidence that they had held any property nor that there was any existing estate. However, he granted limited letters of administration because the Australian High Court had an unfettered power, stating that Australian law had recognized a quasi-property right corresponding to the duty to bury a corpse, identified as the following:

… a body may be regarded as property “so far as to entitle the next of kin to legal protection from unnecessary disturbance or violation or invasion of its place of burial” … although the common law did not recognise property in a body, equity would intervene to protect the licence to bury the body.Footnote 79

Underwood C.J granted the letters to TAC because it had “a real interest in seeing that the remains get a proper burial in accordance with customary law,” and because of the lack of identification of the remains, there was no other better grantee.Footnote 80

The grant was limited:

  1. 1. to commencing legal proceedings seeking the return of the remains and/or preventing disturbance of them; and/or

  2. 2. taking the possession of the remains; and/or

  3. 3. affording the deceased proper burial according to Aboriginal law and custom.

The injunction in the High Court in London was not pursued because the museum agreed not to undertake the intrusive tests and to return the samples along with the remains. The “surrender” may have more to do with publicity and political pressure than concern that an injunction would be granted. However, it may be useful to consider the general principles of conflicts of law, as well as the duties and rights of personal representatives, if TAC had proceeded with the application.

2.4 Personal Representatives and Conflicts of Law

The general principle applied to foreign personal representatives in England is that “[a] foreign representative who wishes to represent the deceased in England must obtain an English grant.”Footnote 81 However, the High Court may have recognized the Australian grant as the Colonial Probates Act 1892, which applies to most of the commonwealth and allows that “a grant of representation made in a country to which the Act has been applied may be sealed with the seal of the probate registry and will thereafter have the same effect as an English grant.”Footnote 82 Alternatively, if these provisions do not apply, “the court will make a grant in the first instance to the person entrusted with the administration of the estate by the court of the deceased's domicile.”Footnote 83 In such circumstances, the English administration is said to be “ancillary” to the “principle” administration. This must not be taken as an assurance that an English grant would be made, but a presumption that it would, and that it would be in such terms as the principle administration, subject to the law in which the personal representative obtained the grant. There is also no reason that an application for administration could not be made directly to the High Court in England, given that the court has jurisdiction to make a grant in respect of any deceased person, even if the deceased left no property in England.Footnote 84

The main problem for any applicant would be establishing the standing for a grant. However, it is submitted that, following the persuasive judgment of Underwood C.J., any group establishing, “a real interest in seeing that the remains get a proper burial in accordance with customary law,” and where there is no other better grantee, could be granted letters of administration.Footnote 85 Any applicant should also remember that both the grant and any subsequent injunction for protection or return of the remains are equitable, and therefore the grant and injunction would be discretionary, not as of right, and all of the parties' conduct, relevant to the application, before, and during the application would be considered.Footnote 86

If an individual or group were granted letters of administration to recover and dispose of the remains, then as Griffith C.J. noted,Footnote 87 this should overcome any purported legal interest under the exception to the no-property rule for skill and care in the preservation of human remains. Their claim would be enforceable in equity, and the remedy would be an injunction to return the remains for disposal. If the injunction were not followed, those in possession of the remains would be in contempt of court.

2.5 Application of the Principle to Human Remains in Collections

If a museum or other institution that held human remains subject to letters of administration were subject to a trust, not to de-accession items in its collection, then the personal representative would have a claim enforceable against the trustees. If the trustees refused to return the property, the High Court would be able to issue an injunction for the return of the human remains.

If the institution were subject to a statutory prohibition on de-accession, as were the nine institutions covered by HTA, s.47, then equity may still enforce the remains' return to the personal representative for disposal. This may be explained by considering the case of the British Museum and the Natural History Museum before the HTA was enacted. The British Museum Act 1963, s.5, only allowed the trustees of the British Museum and Natural History MuseumFootnote 88 to dispose of items in the collections in very limited circumstances.Footnote 89 However, it is a constructional aid of equity, sometimes referred to as a maxim, that “equity will not permit a statute to be a cloak (or an engine) for fraud.”Footnote 90 The aid is used when a statutory provision intended to prevent fraud is now being used to avoid an obligation.Footnote 91 The principle could allow that, even if a museum were under such a statutory obligation to retain items in its collection, such obligations being usually introduced to prevent fraudulent behavior by the directors or trustees, thus if someone with an equitable interest, such as the administrator's right to possession, were to claim that item, then the directors or trustees of the museum would not be able to hide behind the relevant statutory provision to prevent the return of the item.

The statutory restriction on de-accessioning human remains over 1000 years old from the nine institutions in the HTA, s.47, may possibly be defeated by this constructional aid.

Thus, HTA, s.47, may have been mostly otiose, as the institutions could have relied on equitable principles to de-accession human remains from their collections. However, the legislation may always have had more of a political than legal purpose.

Finally, although at common law there is no recognition of property in a corpse above the right and duty of the personal representative to decently inter the body, it should be remembered that refusing to obey the injunction would be in contempt of court, and once the rights to possession and disposal of the corpse were identified, there could be prosecution for the common law offence of preventing the lawful and decent disposal of a corpse.Footnote 92

Conclusion

Since this piece was begun, the return of cultural property has again been in the newspaper headlines in the UK. The dispute between the UK and Greece over the Elgin Marbles has been recently reignited by the building of a new Acropolis Museum in Athens with the “airy top floor … reserved for when the marbles—as many Greeks devoutly hope—return.”Footnote 93

Human remains in museums in the UK have also been in the headlines as modern Pagan and Druid groups have called for the reburial of prehistoric human remains in Britain.Footnote 94 Such groups include Honouring the Ancient Dead, whose web site states that it was formed to “ensure respect for ancient pagan remains,” oppose archaeological investigations disturbing the dead, and which calls for the return and reinterment of human remains to the “tribal landscape” they have been exhumed from within the British Isles.Footnote 95 It is submitted that a Pagan claim would be supported by the comments of Underwood C.J., and that any group establishing “a real interest in seeing that the remains get a proper burial in accordance with customary law” and having no other better grantee could be granted administration.Footnote 96 Further, given that Pagans are now the seventh largest religious group in England, it may be politically expedient for the government to consider their views in recommendations to museums and the judiciary about return and reburial.

There have also been calls for the return and reburial of celebrity remains in institutional collections, for example, the Irish “giant” Charles Byrne, whose remains are still on display at the Royal College of Surgeons.Footnote 97 An application for limited letters of administration for his remains' return for reburial in Ireland could be based on the grounds that, although he had a horror of his body falling into the hands of anatomists and had arranged for his executors to have his body placed in a lead coffin for burial at sea,Footnote 98 his executors sold his remains to John Hunter for his museum.Footnote 99

Some Egyptian citizens living in England have also called on their government to seek the repatriation of mummies from some English museums. So far this has not attracted the support of Egypt's Supreme Council of Antiquities, which has stated that it considers the remains are well cared for in the particular institution concerned.Footnote 100

If the equitable principles considered herein are accepted, then any party establishing a link to human remains in an institutional or private collection could apply for letters of administration to dispose of the remains. If these were granted, then equity could intervene to order the return of the remains to the personal representative for the purpose of reburial; this would apply whether the institution was restricted by statute or trust from releasing the remains. Further, the extent of the right of the personal representative to the body was clarified by Peter Gibson L.J., in Dobson v North Tyneside HA,Footnote 101 “there is no authority stating that right is otherwise than for the interment or other proper disposition of the body.”Footnote 102 Thus, applying this to the supposed conditional return of the Tasmanian Aboriginal remains by the Natural History Museum, any museum attempting to add conditions for the nondisposal of human remains when returning them to a personal representative should find this an unenforceable agreement.

Any application might find difficulties with the court's willingness to recognize connections to, and thus the right to letters of administration for, very ancient remains, although there should be no issue over the failure to identify remains as those of a particular individual, as the Moka Mokai was only identified as that of a Maori warrior. However a link to the applicant could be established by practice of “customary law.” Therefore, if the Egyptian government could establish such a link they could apply for letters of administration for mummies in the British Museum, they could then seek an injunction for their return, although this would have to be for the purpose of reinterment or other disposal and not for display.Footnote 103

A possible further development involves grave goods. The previously mentioned Haynes's case Footnote 104 is authority for grave goods, notably the shroud, remaining the property of those who had given them. If these parties were not ascertainable, then the personal representative could also make an application for letters of administration for the grave goods as part of the deceased's estate. Thus the principle could be extended to include more conventional cultural property, such as funerary objects and jewelry.

It may be that the common law fiction of “no-property” in the corpse will eventually be abandoned,Footnote 105 and modern medical advances may force a change in the law.Footnote 106 For example, it is commonly accepted that blood for transfusion may be sold and it is regularly traded between countries.Footnote 107 There is also licit and illicit international trade in cadavers for dissection and research by the medical and pharmaceutical industries,Footnote 108 and, very shortly, human organs for transplant may be purchased.Footnote 109 The very fact that we can “donate” our bodies for medical research implies that the body is property. Thus, as Rose L.J. said, in R v Kelly: Footnote 110

… the common law does not stand still. It may be that if, on some future occasion, the question arises, the courts will hold that human body parts are capable of being property … even without the acquisition of different attributes, if they have a use or significance beyond their mere existence.

However, until then, the common law's no-property rule and the equitable right to possession of the deceased's remains by the personal representatives for the purpose of disposal would suggest that, if a challenge is made, the retention of human remains in museum collections may be in danger. The skill exception to the common law rule presupposes lawful acquisition, which as Woodhead has stated, is often in doubt, and any institution attempting to defend an application by the personal representative may also have the burden of satisfying the court that the acquisition of the remains was equitable. Even if successful in this, as previously stated, the equitable right to possession of the corpse for disposal overcomes the limited common law rights of ownership. Therefore, it is submitted that the term used to describe human remains in institutions is unimportant as long as there is a right of possession by the personal representative for the purpose of burial or reburial and equity is willing to enforce this right.

Footnotes

1. Frigo, “Cultural Property v Cultural Heritage.” See also Bauer, “(Re)Introducing the International Journal of Cultural Property”; Geismar, “Cultural Property, Museums, and the Pacific”; Busse, “Museums and the Things in Them Should Be Alive”; Davies, “Property Rights in Human Remains”; Reddy, “Common Law Conflict of Laws Rules,” 199; Hoffman, Art and Cultural Heritage,14; Vrdoljak, International Law, Museums and the Return of Cultural Objects, xiv; O'Keefe and Prott, Law and Cultural Heritage.

2. Carpenter, Katyal, and Riley, “In Defense of Property.”

3. When considering property rights and cultural heritage, in particular plans to develop a burial ground in South Africa, Margaret Beukes noted “the inevitable tension between property rights, on the one hand, and the right to culture … on the other. This tension intensifies when the cultural material to be conserved concerns a traditionally sensitive issue” (Beukes, “A Tug of war Between Heritage Conservation and Property Rights”)

4. See Hubert, “Dry Bones or Living Ancestors?” 106. See also Woodhead, “A Debate Which Crosses All Borders,” 321.

5. See Davies, “Property Rights in Human Remains,” 55.

6. Not an unusual principle in Civil Codes, see, for example, Article 16–1 of the Civil Code of France (Law No. 94–653 of July 29, 1994): “the human body, its elements and its products cannot be the object of proprietary rights.”

7. 3 Co. Inst. 203 considered in Mathews, “Whose Body? People as Property,” n. 34. Mathews states that Coke was presumably being serious when he stated that the word cadaver derives from the Latin phrase CAro DAta VERmibus, although Coke gives no authority. It is more likely to derive from the Latin cadāver, from cadere, to fall, die. See also Smith, “Stealing the Body and Its Parts.”

8. Mathews, “Whose Body? People as Property.”

9. For example, see Fforde, Collecting the Dead; Fforde, Hubert, and Turnbull, The Dead and Their Possessions; Pickering, “Repatriation, Rhetoric and Reality”; Seidmann, “Bones of Contention.”

10. For example, in the United Kingdom certain Druid organizations have called for the return and reburial of ancient remains in institutional collections. See text at endnote 95. In Australia and the United States, return has been ongoing for some years; see Davies, “Property Rights in Human Remains,” 56.

11. The Vermillion Accord on Human Remains, adopted in 1989 at WAC Inter-Congress, South Dakota:

  1. 1. Respect for the mortal remains of the dead shall be accorded to all, irrespective of origin, race, religion, nationality, custom and tradition.

  2. 2. Respect for the wishes of the dead concerning disposition shall be accorded whenever possible, reasonable and lawful, when they are known or can be reasonably inferred.

  3. 3. Respect for the wishes of the local community and of relatives or guardians of the dead shall be accorded whenever possible, reasonable and lawful.

  4. 4. Respect for the scientific research value of skeletal, mummified and other human remains (including fossil hominids) shall be accorded when such value is demonstrated to exist.

  5. 5. Agreement on the disposition of fossil, skeletal, mummified and other remains shall be reached by negotiation on the basis of mutual respect for the legitimate concerns of communities for the proper disposition of their ancestors, as well as the legitimate concerns of science and education.

  6. 6. The express recognition that the concerns of various ethnic groups, as well as those of science are legitimate and to be respected, will permit acceptable agreements to be reached and honoured. Similarly, although not referring to human remains as a special category of cultural property, the International Council of Museums (ICOM) states in its Code of Ethics (6.3) that museums should enter into dialogues to return cultural objects, especially if there are questions about the method of acquisition. However, the Code recognizes that museums may be restricted by law from returning items.

12. The United Nations had proclaimed the decade 1995–2004 the International Decade of the World's Indigenous People. Some states had also created legislation, for example, Public Law 101–601, the Native American Graves Protection and Repatriation Act (NAGPRA), enacted November 16 1990, in the United States of America.

13. See ⟨http://www.prm.ox.ac.uk/human.html⟩ accessed July 8, 2009.

14. “Losing Your Marbles: Bodies Are More Valuable Than Buildings,” The London Times, July 30, 2003.

15. Reprinted in DCMS, Cultural Property Unit, Report of the Working Group on Human Remains, London (2003).

16. DCMS, Guidance for the Care of Human Remains in Museums, October 2005. See also Schedule 1 to The Human Tissue Act 2004.

17. Where the organs of children who died in the hospitals were removed without the permission or knowledge of their families; see “Alder Hey Babies Are Buried,” The London Times, August 6, 2004. Available at ⟨http://www.timesonline.co.uk/tol/news/uk/health/article466398.ece⟩ accessed July 8, 2009.

18. Section 53 defines relevant material as material which consists of human cells but excludes gametes, embryos outside the human body, and hair and nails from a living person.

19. Sections 1(5)(b) and (6)(c). The Act was initially commenced on November 15, 2004.

20. Section 14(3)(b). A breach of the requirements of the Human Tissue Act 2004 may result in a fine on summary conviction or imprisonment for up to three years and/or a fine on indictment, according to section 25(2). Section 40 specifically excludes “religious relics,” that is, a human body or relevant material from a human body which is publicly displayed or stored at a place of public religious worship or an associated place, from the requirements in sections s14(1), and 16(2).

21. The Armouries, British Museum, Imperial War Museum, Museum of London, National Maritime Museum, Merseyside Museums and Galleries, Natural History Museum, Science Museum, and Victoria and Albert Museum.

22. Some civil codes may prevent de-accession of cultural objects from public museums as well. See, for example, Paterson, “Administrative Tribunal of Rouen”; Amiel, “A Maori Head: Public Domain.”

23. DCMS, Guidance for the Care of Human Remains in Museums.

24. http://www.culture.gov.uk/reference_library/media_releases/3074.aspx Accessed March 16, 2010.

25. DCMS, Guidance for the Care of Human Remains in Museums.

26. Bailey, “There's No Place Like Home.”

27. See, e.g., Owen, Richard, “Italy Appeases Libya with Return of Venus Statue,” The London Times, October 30, 2002.

28. See, e.g., “The loss of knowledge about the human past is everyone's loss”; Appleton, “Battle of the bones.”

29. Robert Foley stated that if the conclusions of the DCMS Report 2003 were enacted, “it would be an enormous blow; one would be losing material that is often unique. It's often rare, from populations that are long gone, which no longer exist, so it's a whole part of the human story that would be obliterated and gone forever.” Piggott, “Science Speaks Out on Bone Return.”

30. DCMS, Report of the Working Group on Human Remains, 29.

31. The Policy is available at ⟨http://www.museum.manchester.ac.uk/⟩ accessed July 8, 2009.

32. “Human Remains Policy Is Criticised.”.

33. “Museum Surrenders Vital Clues to Human Evolution.” The London Times, Saturday, May 12, 2007.

34. The Impact of settlement on the Aboriginal community in Tasmania is apparent from the stark figures that in 1803, when the British first landed, there were 4000 Aborigines living in Tasmania. By 1860, only 15 were left alive. For a detailed account of the collection of human remains in Tasmania during this period including the Robinson collection, see MacDonald, Human Remains, 94.

35. In re an application by the Tasmanian Aboriginal Centre Inc and In re the estates of 17 deceased Tasmanian Aboriginals [2007] TASSC 5.

36. “Museum Surrenders Vital Clues.”

37. “Museum Surrenders Vital Clues.”

38. Mathews, “Whose Body? People as Property,” 193.

39. (1613) 12 Co Rep 113.

40. Mathews, 198.

41. (1749) 2 East PC 652.

42. Mathews, 209.

43. (1857) Dears & B 160. Blackstone, in his Commentaries, Book II, “Of Things,” at paragraph 429, states with regard to those already buried: “But though the heir has a property in the monuments and etcutcheons of his ancestors, yet he has none in their bodies or ashes; nor can he bring any civil action against such as indecently at least, if not impiously, violate and disturb their remains, when dead and buried.”

44. (1857) Dears & B 160, 163.

45. Re Dixon [1892] P.386, 391, Dr. Tristram in the ecclesiastical court.

46. (1882) 20 Ch. D. 659.

47. Re Dixon [1892] P.386, 391, Dr. Tristram.

48. (1875) Dears & B 160.

49. (1882) 20 Ch. D. 659, 665.

50. A term that Mathews states probably owes its existence to the fact that ecclesiastical law never applied there (Mathews, 201).

51. Nwabueze, “Property Interest in a Burial Plot,” 535. This was explained in Perry v St. Francis Hospital & Medical Centre, 886 F.Supp. 1551, 1563 (D. Kan 1995): “Kansas law considers Mary Ann Perry (plaintiff) to be the exclusive owner of a quasi-property right in the body, namely the right to possess it for the limited purpose of preserving and burying it … Kansas common law on this matter is no different from the position universally held by other states which recognise no property right, commercial or material, in the corpse itself but only a right of possession in order to dispose of the corpse appropriately.”

52. (1908) 6 CLR 406.

53. (1908) 6 CLR 406, 414.

54. [1996] 4 All ER 474.

55. [1996] 4 All ER 474, 479.

56. [1998] 3 All ER 741.

57. [1998] 3 All ER 741, 749–750.

58. Woodhead, “A Debate Which Crosses All Borders,” 319, 320.

59. Sometimes translated as “no one can obtain a better title to property than the title of the person he acquired the property from.” Similarly, nemo potest plus juris ad alium transferre quam ipse habe can be translated as “no one can transfer a greater right to another than he himself has.” For a discussion of this principle in relation to lost or stolen goods, see MacDougall, “The Market Overt.”

60. This is expressed in the HTA and explained on the Human Tissue Authority web site: ⟨http://www.hta.gov.uk/donations/howtodonateyourbodytomedicalscience/bodydonationfaqs.cfm⟩ accessed July 13, 2009.

61. For a general history of the development of equity, see Martin, Hanbury & Martin, Chapter 1.

62. The Courts of Chancery were separate from the Common Law Courts until the Judicature Acts of 1873–75 fused the Court of Chancery and the Courts of Common Law. The Supreme Court Act 1981, s.49, provides that both law and equity are to be administered in all divisions of the High Court.

63. Decided famously in The Earl of Oxford's Case (1615) 1 Ch. Rep. 1, and subsequently expressed in The Supreme Court of Judicature Act 1873, s.25, now The Supreme Court Act 1981, s.49. Most common law jurisdictions have a similar provision, e.g., section 16(1) of the High Court Ordinance of Hong Kong (Cap. 4).

64. For example, the Administration of Estates Act 1925, s.55(1).

65. Davies, The Law of Burial, 67, relying on Williams v Williams (1882) 20 Ch. D. 659, 665.

66. In Clerk and Lindsell on Torts, 17th edn, 1995 p653 para 13–50, it is stated that “the executors or administrators or other persons charged by the law with the duty of interring the body have a right to custody and possession of it until it is properly buried.”

67. Martin, Hanbury & Martin, 796.

68. Martin, Hanbury & Martin, 799

69. Penner, Mozley & Whiteley's Law Dictionary.

70. The Administration of Estates Act 1925, s.21. See Kerridge, Parry & Clark, 425, 431.

71. Rule 22(1) of the Non-Contentious Probate Rules 1987 specifies the order of priority to a grant of administration where the deceased died wholly intestate after 1925, so may not apply for many museum specimens.

72. The Administration of Justice Act 1932, s.2(1). See Kerridge, Parry & Clark, 412.

73. See Kerridge, 444.

74. O'Keefe, “Maoris Claim Head,” 393.

75. Levin, B. “Foul Deed of Desecration,” The London Times, quoted by Watt in “Museums Can Never Own,” 81.

76. O'Keefe, 393.

77. O'Keefe, “Maoris Claim Head”; Estate of Tupana Maori, Warrior (unreported decision of the High Court of New Zealand, May 19, 1988).

78. In re an application by the Tasmanian Aboriginal Centre Inc and In re the estates of 17 deceased Tasmanian Aboriginals [2007] TASSC 5.

79. In re an application by the Tasmanian Aboriginal Centre Inc and In re the estates of 17 deceased Tasmanian Aboriginals [2007] TASSC 5, para 9. Quoting Young J. in Smith v Tamworth City Council (1997) 41 NSWLR 680.

80. In re an application by the Tasmanian Aboriginal Centre Inc and In re the estates of 17 deceased Tasmanian Aboriginals [2007] TASSC 5, para 11.

81. McClean and Beevers, Morris: The Conflict of Laws, 446.

82. McClean and Beevers, Morris: The Conflict of Laws. 444.

83. McClean and Beevers, Morris: The Conflict of Laws. 443. Referring to Non-Contentous Probate Rules 1987, r.30(1)(a).

84. For further information, see McClean and Beevers, 442–446.

85. In re an application by the Tasmanian Aboriginal Centre Inc and In re the estates of 17 deceased Tasmanian Aboriginals [2007] TASSC 5, para 11.

86. Martin, 31. For example see Argyll (Duchess) v Argyll (Duke) [1967] Ch. 302 for the lack of relevance of the Duchesses adultery, which led to divorce proceedings, to an application for an injunction to prevent the Duke publishing confidential material.

87. Doodeward v Spence (1908) 6 CLR 406, 414

88. British Museum Act 1963, S.8(3), provides for the application of ss2–7 and Schedule 1 of the Act to the Natural History Museum.

89. Thus s.5(1)(a) provided for disposal if there was duplication, and s.5(1)(c) provided for disposal if: “In the opinion of the trustees the object is unfit to be retained in the collections of the Museum and can be disposed of without detriment to the interests of students.”

90. Hudson, Equity & Trusts, 24. See also Woodley, Osborn's Concise Law Dictionary,162.

91. The principle is usually applied when a party has sought to rely on a formality requirement in a statute to obtain an unfair advantage over the other party, e.g., Rochefoucauld v Boustead [1897] 1 Ch. 196, CA.

92. See, e.g., R v Hunter [1973] 3 All ER 286. A more recent case involved the placing of a child's body in the coffin of an elderly lady, as he had not been placed in his own coffin for burial by mistake. The remains were then cremated which was against the wishes of the parents. An appeal against conviction was refused by the Court of Appeal, R v Skidmore [2008] All ER (D) 146 (Jul).

93. John Carr, “New Acropolis Museum the perfect home for Elgin marbles, say Greeks.” The London Times, June 20, 2009.

94. Wallace and Blain, The Sanctity of Burial; Davies, “Speaking for the Ancestors.” See also Jane Fryer, “Druid Wars.” The London Times, January 25, 2009.

95. ⟨http://www.honour.org.uk⟩ (accessed 15/7/09)

96. In re an application by the Tasmanian Aboriginal Centre Inc and In re the estates of 17 deceased Tasmanian Aboriginals [2007] TASSC 5, para 11.

97. ⟨http://www.sciencemuseum.org.uk/broughttolife/people/charlesbyrne.aspx⟩ accessed July 21, 2009.

98. It has been said that on his death: “The whole tribe of surgeons, put in a claim for the poor departed Irishman and surrounded his house just as harpooners would an enormous whale.”

99. ⟨http://www.sciencemuseum.org.uk/broughttolife/people/charlesbyrne.aspx⟩ accessed July 21, 2009.

100. ⟨http://www.eternalegypt.org/EternalEgyptWebsiteWeb/HomeServlet?ee_website_action_key=action.display.about&language_id=1&link_key=7⟩ accessed July 21, 2009.

101. [1996] 4 All ER 474.

102. [1996] 4 All ER 474, 478.

103. Thus, although Dr. Zahi Hawass, head of Egypt's Supreme Council of Antiquities has stated that he wants to return repatriated mummies to their tombs, he has also stated that they could be viewed there. This was with regard to voluntarily returned mummies; therefore, letters of administration would not be appropriate for this purpose. See Nick Fielding. “Biblical Pharaoh Returns to Egypt.” The Sunday London Times, November 2, 2003. Available at ⟨http://www.timesonline.co.uk/tol/news/world/article1101606.ece⟩ accessed July 22, 2009.

104. (1613) 12 Co Rep 113.

105. White, “The Law Relating to Dealing with Dead Bodies,” 166: “it seems likely that in due course the courts will hold that a dead body has become property even though no work and skill has been expended on it.”

106. Rao, “Property, Privacy and the Human Body,” 363.

107. Green v Commissioner 74 TC 1229 (1980). See Michael Sandel, “Reith Lecture: A Price for Everything but at What Cost?” The London Times, June 13, 2009. Available at ⟨http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/tv_and_radio/article6485444.ece⟩ accessed July 7, 2009. See also Alex von Tunzelmann, “Haiti: The Land Where Children Eat Mud,” The London Times, May 17, 2009. ⟨http://www.timesonline.co.uk/tol/news/world/us_and_americas/article6281614.ece⟩ accessed July 7, 2009.

108. See Chris Ayres, “The Burke and Hare of Beverly Hills,” The London Times, March 10, 2004, for allegations of UCLA's clandestine involvement in the body part trade of cadavers donated in its Willed Body Program. One cadaver can, apparently, be dismembered and sold for $200,000 for use in research and training seminars. ⟨http://www.timesonline.co.uk/tol/news/uk/health/article1042239.ece⟩ accessed July 7, 2009.

109. Nicola Smith and Aaron Gray-Block, “Dutch May Give Financial Reward to Kidney Donors,” The Sunday London Times, November 18, 2007. ⟨http://www.timesonline.co.uk/tol/news/world/europe/article2891069.ece⟩ Accessed July 7, 2009. See also David Rowan, “Body-Part Brokers: A Pound of Flesh for Sale,” The London Times, February 21, 2004. Available at ⟨http://www.timesonline.co.uk/tol/news/uk/health/article1024335.ece⟩ Accessed July 7, 2009.

110. [1998] 3 All ER 741, 750.

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