Royal Requiem for Richard III’s bones?

Within a week of Parliament’s 371 to 38 rejection of the amendment of Jacob Rees-Mogg (North East Somerset) (Con) to the Succession to the Crown Bill which would have removed a barrier to Roman Catholics acceding to the Throne, the UK is now faced with the dilemma of how, when and where to reinter the bones of the former Catholic monarch Richard III.  At a Press Conference on Monday 4 February at the University of Leicester, it was revealed that a skeleton discovered in a car park in the city was indeed that of Richard III, but while this ended months of speculation on the identity of the bones, it signalled renewed interest in their treatment.

The University, Leicester City Council and the Richard III Society initiated a search for the remains of Richard III on 25 August 2012 with an archaeological excavation of the site of former church of the Grey Friars, and shortly after applied to the Ministry of Justice for a “section 25 licence” under the 1857 Burials Act for permission to the remains – a fully articulated skeleton (male) found in the Choir of the church; and a disarticulated set of human remains (female) in what is believed to be the Presbytery.

By 12 September, it was possible to confirm that the fully articulated skeleton was that of an adult male with battle wounds: peri-mortem trauma to the skull consistent a battle injury by a bladed implement which cleaved part of the rear of the skull; and a barbed metal arrowhead between vertebrae of the skeleton’s upper back.  Subsequent analysis revealed a total of 10 wounds, 8 of which were to the skull.  The skeleton also had spinal abnormalities, possibly severe scoliosis (a form of spinal curvature), and whilst not a hunchback nor with a withered arm, this is consistent with contemporary accounts of Richard’s appearance.

Subsequently, samples from the teeth and a femur were subject to radiocarbon dating, DNA tests and bone analysis, and a three-dimensional reconstruction of the head and face was made.  The mitochondrial DNA comparison was made with that of Michael Ibsen, a Canadian-born cabinet-maker living in London, who is related to Anne of York, the sister of Richard III, through 16 maternal generations. A second comparison with an unnamed person was also made.

Comment

A Press Release issued by Leicester Cathedral on 12  September stated

“If the identity of the remains is confirmed, Leicester Cathedral will continue to work with the Royal Household, and with the Richard III Society, to ensure that his remains are treated with dignity and respect and are reburied with the appropriate rites and ceremonies of the church.”[emphasis added]

Since then, a number of “claims” to the final resting place of Richard III have been advanced.  Within Parliament concerns have been raised regarding the re-interment: an Early Day Motion in the UK Parliament called for a ‘full state funeral”; and there were questions to the Second Church Estates Commissioner and Hon. Member for Banbury, (Sir Tony Baldry), and to the Minister, here and here.  With regard to the latter, Helen Grant, Under-Secretary of State for Justice, stated:

This is a matter for the university of Leicester archaeologists who were granted the licence to exhume remains which may be those of Richard III. Should the remains be found to be those of Richard III, the archaeologists’ current plan is to reinter in Leicester Cathedral”, [25 October 2012, emphasis added].

This implicitly recognizes the legal position under the 1857 Burial Act, and the University of Leicester’s possession of the bones, on which the Minister later stated.

“My Department issued a licence to exhume human remains which could be those of Richard III.  Remains have now been exhumed and archaeologists are currently carrying out tests to determine the identity of the remains.  Should they be found to be those of Richard III, the current plan is for them to be reinterred in Leicester Cathedral,” [19 November 2012].

As we noted in an earlier post, under ‘normal circumstances’ (i.e. in relation to a commoner and without the intervention of over 500 years), the treatment of a body prior to its final disposal is subject to a quasi-hierarchy of rights, based upon its ‘custody and possession’. In ‘Property in body parts and products of the human body’, (2009) 30 Liverpool Law Review, 35, Pawlowski notes:

‘the deceased’s executors or administrators (or other persons charged by law with the duty of interring the body) have a right to the custody and possession of the body until it is properly buried, that any violation of that right to possession constitutes a trespass for which a civil action will lie’,

although it is debatable whether this right extends after burial to subsequent disinterment and reburial. However, there is no legal obligation to take the religious beliefs of the deceased into consideration, and following Williams v. Williams (1882) 20 Ch. D. 659, an executor is not obliged to follow the directions within a will in this respect.

Although the bones have been identified as those of Richard III, in view of the unique nature of the situation, a definitive legal solution is not apparent.  However, the salient facts are:

  • The University of Leicester has custody and possession of the bones, which must be reburied after their archaeological examination;
  • Michael Ibsen is clearly a descendant of Richard III as the DNA evidence has demonstrated;
  • None of the other parties that have expressed an interest is likely to have locus standi if the matter were reviewed by an English court.
  • It would be unusual if the present monarch were not, on advice, to determine the “appropriate rites and ceremonies” and location of the final burial.

There is no single location for the burial of pre-Reformation English Catholic monarchs, although since 1603 most monarchs of: England, and Scotland (1603–1707); of Great Britain (1707–1801); of United Kingdom (1801–present) have been buried in either Westminster Abbey or Windsor Castle.

Since Greyfriars was a Franciscan monastic community, a further option would be to reinter the bones at another of the Order’s monasteries.  Following the exhumation of 647 burials from the former Cistercian Abbey of St Mary, Stratford Langthorne, during the extension of the Underground’s Jubilee Line, the remains were reinterred at the Order’s Mount St. Bernard Abbey in Leicestershire, following archaeological examination.  However, the majority of these were members of the Order.

With regard to “appropriate rites and ceremonies”, Frank Cranmer notes that a Requiem was held for the sailors of Henry VIII’s ship, Mary Rose, which sank in the Solent in 1545. The Mary Rose sank post-Reformation but before the introduction of the Book of Common Prayer, at a time when the liturgy consisted of having lessons and some prayers read in English. The Catholic Herald reports of the ecumenical approach to the Requiem held in Portsmouth’s Anglican Cathedral, details of which were discussed between the administrator of the Catholic Cathedral, Canon Peter Doyle and the Provost of Portsmouth, the Very Rev David Stancliffe.

It was decided to use the Sarum rite, which is very similar to the Tridentine rite of the Mass, and music by the contemporary composer John Tavener, who died in the year that the Mary Rose sank. However, it was necessary to seek the assistance of the Cathedral of the Advent, Alabama, US, to secure vestments similar to those used at funerals in the 16th century. Of the 700 who drowned, the remains of 200 were recovered. Only one skeleton was buried in the Cathedral and the others were buried at the Royal Naval Hospital, Haslar.

Future

Confirmation of the bones as those of Richard III will probably renew calls for DNA testing on the children’s bones that were found in the Tower in 1674 and have been thought to be those of Richard’s two nephews, the “princes in the Tower”,  whom he is alleged to have murdered. Those bones are in a white marble sarcophagus in Westminster Abbey which is inscribed

“These brothers being confined in the Tower of London, and there stifled with pillows, were privately and meanly buried, by the order of their perfidious uncle Richard the Usurper.”

However, the Abbey is a Royal Peculiar and the Queen’s permission would be necessary for any investigation to be undertaken.

Since   our first post on Richard III “The   Bones of Richard III – Leicester, York, or Worksop?” we have followed   developments on the associated legislation.    Although comment is now closed, for those with interests in  this area the relevant articles are listed below.

24 thoughts on “Royal Requiem for Richard III’s bones?

  1. I think Mr Ibsen is NOT a descendent of Richard III but of his sister. Whether he is, then, next of kin, and therefore his locus standi in the matter, is open to further discussion.

  2. As one who enjoyed the excitement of yesterday’s announcement that the skeletal remains excavated in Leicester were indeed those of King Richard III, I felt compelled to ask a question regarding your very absorbing post.

    My interests stem from the facts that 1. I share Mr Ibsen’s relationship with Anne of York (sister of Richard III); she being our mutual 13th great grandmother and 2. I was a professional archaeologist for many years.

    My concern is in regard to the initial application for and granting of, the Ministry of Justice licence to exhume the remains to Leicester University and Leicester City council (the partners). The exhumation is, however, not the issue, but rather the details outlined by the partners in relation to reinterment of the remains.

    In reading through the guidance notes for such an application, it appears to me that appropriate due diligences were not fully conducted in respect of points a) Next of kin and b) Objections – (http://www.merton.gov.uk/community-living/register/cemeteries/single_exhumation_guidance_notes.pdf).

    I must ask then, if you believe that these sections of the application could be challenged in any way and in doing so, create a situation whereby the partner’s choice of venue for ultimate reinterment be rendered void?

  3. Thank you for your interesting comments on our post “Royal Requiem for Richard III’s bones?” As Frank Cranmer and I state in the General Conditions,our blog is for information purposes only and is not meant to be as a source of legal advice, nor should it be relied upon as such. Neither should the following comments. Therefore, if you wish to pursue the matter further, you should engage professional legal advice.

    With regard to the “due diligence requirements regarding a) next of kin, and b) objections, logic would suggest that the former is the more important, but this presents a “Catch-22” situation, i.e. without the DNA and other evidence obtained post post-exhumation, it would be difficult to confirm genealogical evidence of next of kin.

    Prior to proceeding, however, it may be prudent to obtain a copy of the section 25 certificate, (using a Freedom of Information request if necessary), and compare your genealogical study with that of the Leicester team, (which I understand is to be published shortly)

  4. Leicester City Council’s website (http://news.leicester.gov.uk/newsArchiveDetail.aspx?Id=1959) has some information about the licence:

    The reinterment licence, granted to the University of Leicester by the Ministry of Justice, confirms that the king’s remains will stay in Leicester, and in due course be reinterred at Leicester Cathedral.

    The terms of the reinterment licence state: “The remains shall, no later than August 31, 2014, be deposited at Jewry Wall Museum or else be reinterred at St Martin’s Cathedral, or in a burial ground in which interments may legally take place.”

    • Thank you for that useful link. The 2-year time period for re-interment is now quite common for section 25 licences, but is a continuing source of contention with archaeologists, many of whom contend that this is not a long enough period in which to conduct the necessary research.

      In 2007 the Ministry of Justice responded to these concerns and revised its interpretation of the law in this area. However, the removal of statutory approval gave rise to the possibility of common law prosecution on those involved, and so the law was returned to approximately the same as it was, for the time being. Evidence from the Leicester case would suggest that all the necessary work was completed in a few months two years is adequate.

      With regard to the site of re-interment – deposited at Jewry Wall Museum or else be reinterred at St Martin’s Cathedral, or in a burial ground – is classic “Sir Humphrey” pragmatism, covering all possible options, whilst identifying no specific preference.

      Those seeking to investigate these matters further may do well to seek out primary sources and obtain a copy of the licence.

  5. Would it not be prudent to have someone, perhaps from the University, simply publish a copy of the granted licence and put paid to all the wrangling? It is, after all, an official document of HM Government once applied for and granted.

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  7. As a former member of the Richard III Society I have questions re the licence granted to Leicester University @ the society and am amazed that information regarding the licence and the co-operation of the society is proving so difficult to find.

    In a recent e mail from the society (and I quote) “The society has maintained a neutral stance throughout the debate as there are so many differing views and to support one would be to ignore the wishes of others”. Was this decision decided by the members, a committee or a single individual? As to the Ministry of Justice, was the licence granted by a judge, a clerk or a panel of judges and, more importantly, was any individual or body allowed an opinion against the grant of the licence?

    • Since Helen Grant, Under-Secretary of State for Justice, informed the House: “My Department issued a licence to exhume human remains which could be those of Richard III . . . . .” I assume that this was a decision made by departmental officials rather than a judge, a clerk or a panel of judges.

      With regard to whether there was any challenge to the granting of or conditions of the licence, I have not come across anything in the public domain.

  8. I am a lay person, reading in awe at the depth of knowledge being shared. How would it have been possible to make a challenge to the terms on which the licence was granted? This seemed to be an entirely internal process between the University and the Department of Justice. Perhaps the only other individuals ‘in the know’ at the appropriate time, were members of the Leicester City Council, and the Richard III Society. It seems feasible from the subsequent actions and attitude of the City Council, that they could have been / were consulted; but the silence [referred to as ‘neutrality’] by the Richard III Society, does not seem to infer an equal consultation. Would there have been any requirement to consult, or could it have remained an ‘internal’ process?

    • I suppose that someone with a legitimate interest could have made an application for judicial review of the MoJ’s decision to grant a licence – but it’s an expensive business and not to be undertaken lightly.

        • Remains of King Richard III.

          Finally after obtaining copies of the Application, The MoJ letter and the licence and making calls to the exhumation team at the MoJ together with email correspondence with the Richard III society the undernoted facts emerge.

          The applicant for the Licence is shown as Richard Buckley of University of Leicester Archaeological society. Note sole applicant. no Richard III Society, no Leicester City Council. In replies to my queries the secretaries of the Society say there was no joint agreements whatsoever with Leicester on this matter.

          I telephoned the exhumation team at the MoJ to say that since the application for the licence was sent on 31 August, a Friday, and the licence issued on the 1st of September, a Monday, with Saturday and Sunday in between, had sufficient time been given to the law, rules or regulations in arriving at the decision to issue it?

          I was told that in view of the 500 years or so since the King’s death, there was no requirement to seek any opinions of next of kin, or any one else, being an archaeological matter solely.

          The secretaries of the Richard III Society have raised no objection to interment in Leicester whatsoever despite never even asking their many members for their wishes in the matter. From telephone calls I know that most people want interment in York Minster. The society, however, quote the Chapter of York Minster who support the Leicester interment, in a statement issued earlier. It may be a little biased, however, since the present Dean of York Minster the Very Reverend Vivienne Faull’s last position was Dean of Leicester!!!!

          I am still not reconciled to this Leicester interment and continue my enquiries.

          Derek Hennessy

    • As with the canon law associated with papal resignations considered in a recent post, the exhumation of royal remains is further area in which relatively little is known. Although there is a significant number of applications for section 25 licences for archeological excavations, in view of the absence of interested parties, very few of these are subject to judicial consideration. Furthermore, a major source of reference – “Davies’ Law of Burial, Cremation and Exhumation” – is currently out of print.

      However, in view of the interest shown in this area, Frank and I will put together a post based upon a recent case considered by the Court of Appeal (in 2012) that illustrates some of the issues involved.

  9. Derek, thank you for these further insights. The licence gives authority to those undertaking the exhumation, and since this did not directly involve the Richard III Society or the Leicester City Council, it is not surprsing that it is only the University that is named.
    This is implicit in paragraph 3 which states”[t]his licence merely exempts those from the penalties, which would be incurred if the removal took place without a licence.

    The Ministry of Justice issues many section 25 licences during the course of a year, and I would suspect that its comment on the intervening time since Richard III’s death and the treatment of the application solely on archaeological grounds would have been based upon departmental “rule of thumb” guidance applicable ot any such exhumation.

  10. I continue to be very interested in the comments as they are unfolding above – many thanks indeed to both of you. I am in sympathy with your final comment, Derek. You may be interested to know that the Revd Dr John Ridgeway-Wood, Chaplain to [the Old Catholic] BIshop Dennis Beevers, is meeting with the Very Revd Vivienne Faull on 26 February to raise the issue of bias, and to discuss the case for the re-internment of the remains of Richard III at York.

    I find it extraordinary that the Richard III Society have not canvassed their members prior to a discussion with the University about the place of re-interment. After all it is an astonishing find, with the actual excavation funded in parallel by both the University and the Society; smaller amounts were contributed by Leicester City Council and Leicester-Shire Promotions. An obvious conclusion could be that this discussion never took place; perhaps was not invited; perhaps was resisted; perhaps was refused. Knowing nothing about the law, I have no idea if such a situation could constitute grounds for challenge; or even if there is a time-limited window of opportunity for such that is now over – even if it were possible, or feasible [or had the support of the Society].

    The only other thought I have had is whether there is anything in the law – including Canon Law – that may have a bearing on the terms on which royal remains are interred [re-interred?]. Although, perhaps after death, all are equal!

    • Barbara, thank you again for your contribution to the debate and for your question regarding secular and canon law provisions relating to the reburial of royal remains. With regard to possible challenge, as Frank Cranmer said on 14 February,

      “someone with a legitimate interest could have made an application for judicial review of the MoJ’s decision to grant a licence – but it’s an expensive business and not to be undertaken lightly”.
      Leave to apply for judicial review might not be granted, but if it were, this would only consider the process involved in granting the licence and whether the MoJ addressed adequately all the relevant factors. Our more recent post on Rudewicz and Richard III’s exhumation illustrates the various factors a court would take into consideration. It perhaps sounds a cautionary note, that after pursuing the claim in the Divisional Court, the Appeal Court and the Supreme Court, Ms Rudewicz and her supporters were unsuccessful.

      Aside from such a challenge, through the section 25 licence, the statutory legislation would appear to be determinative in where and before when the University might choose for the final resting place Richard’s remains, for which entombment in Leicester Cathedral seems to be an option supported (or not challenged) by the MoJ and supported by the Chapter of York Cathedral.

      Where canon law comes into play, this relates to the burial of the remains in Leicester Cathedral. This falls within the Care of Cathedrals Measure 2011 which concerns inter alia the role of the Cathedrals Fabric Commission for England in the consideration and determination of applications made by the Chapter of a cathedral. Although the treatment of archeological remains is not covered in section 6(1)(a)(iii), as this relates to “the disturbance or destruction of any archaeological or human remains in or under the cathedral church or within its precinct”, Richard III entombment would probably fall within the more general section 6(1)(a)(i), “the carrying out of works . . . . . . which would permanently alter the fabric of the cathedral church . . . . .”.

  11. Good Day Barbara,

    I too am only a lay person, but I cannot go along with the fact that most people seem to accept the fact that the Leicester interment is written on tablets of stone.The whole business is a sort of “Watergate” of the archaeological world.

    Mr. Buckley of the university has not answered 3 emails from me. The secretaries of Richard III society whilst replying to earlier messages have not responded to my last one. Your news of the meeting on 25th Feb is good. I will try to find a contact address for Dr. John Ridgeway-Wood to give him the true documented facts of this matter before he confronts the Dean of York Minster. Regards Derek Hennessy

  12. Thank you to both of you for these replies. I had not found your Rudewicz and Richard III’s exhumation article, David, when I wrote the previous note. It is immensely helpful, and rather discouraging! I did know that the Fabric Commission have to sanction any changes to the fabric of a cathedral, but their sphere of interest is not coterminous with this issue; hence any restrictions they may impose will be irrelevant to where the remains are re-interred.

    The core of the matter seems to be that the University holds the sole legal right to determine where the remains will be re-interred; of equal significance, but unequal legal status, is the issue of ‘fairness’ of the University in arriving at their decision about where to re-inter the remains. But could ‘fairness’ ever be a legal consideration? – and if it were, how on earth could it ever be defined, when by definition it is a variable?

    Thank you for your patience with these non-legal speculations.

    • Thank you for your comment. My point about the Care of Cathedrals Measure related to where this fits in to a consideration ointo the sequence of legal issues, i.e. as you noted, it only becomes relevant once the “secular” considerations of reburial have been decided.

      As to “fairness”, the role of the court is to interpret the law and the concept of “fairness” is to some extent subjective to the parties seeking a particular outcome. For example, in the case of the judgements on the four “religious discrimination cases” recently decided by the European Court of Human Rights, Mark Hill, who is also a Chancellor of an ecclesiastical court, stated

      “it is regrettable that a deserving applicant such as Lillian Ladele has lost her meritorious fact-specific case and is jobless; whereas Nadia Eweida, whose job is still open to her without any restriction, has secured nothing more than judicial approval in Strasbourg of a wise concession that was made by senior executives at BA long before any litigation was contemplated”

      Perhaps W S Gilbert was correct in 1885 in writing “it’s an unjust world, and virtue is triumphant only in theatrical performances”.

      In its Press Release of 12 September, Leicester Cathedral said

      “If the identity of the remains is confirmed, Leicester Cathedral will continue to work with the Royal Household, and with the Richard III Society, to ensure that his remains are treated with dignity and respect and are reburied with the appropriate rites and ceremonies of the church.”

      It would be surprising if the Royal Household had not been persuasive, to a greater or lesser degree, in the decisions that were reached. It would be equally surprising if such considerations reached the public domain.

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