The bones of Richard III, state funerals and the law

This post was first published on 6th October 2013, but was subsequently deleted as it was attracting a significant amount of spam.  In view of the continuing interest in Richard III and the references that continue to be made to the original post, it has been republished here.  However, as we noted in an earlier, comments on the application of burial law are now closed. 

The discovery in Leicester of bones which may be those of the English king Richard III has attracted media interest within the UK, the United States and elsewhere. Although as yet unconfirmed, DNA testing is planned to test this supposition, and speculation has begun on their subsequent treatment and final resting place. Two MPs have raised an Early Day Motion in the UK Parliament for a ‘full state funeral’ should this be proven, but to date there has been limited public interest in two similar e-petitions, here, and here. The handful of votes for these, (a total of 14 for both sites), is vastly outweighed by 33,762 signatures in favour of a state funeral for Margaret Thatcher, here, provided that this is ‘funded and managed by the private sector to offer the best value and choice for end users and other stakeholders’.

In Leicester, one fully articulated skeleton, which might be that of Richard III, and one set of disarticulated female human remains were discovered at the site of what is believed to be the Presbytery of the lost Church of the Grey Friars.

A Press Release issued by Leicester Cathedral on 12th 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.”

This has generated discussion on The Tablet Blog, and the post Not so fast, Leicester Cathedral – Richard III was a Catholic, concludes by saying:

“[t]he ‘appropriate’ rites would surely be a Catholic funeral with a full Requiem Mass, and only a Catholic church will do for Richard’s tomb.”

However, there are a number of legal issues to be addressed before then, and it is not certain which organization or individual will determine the last resting place of the newly discovered bones.

Comment

Richard III, born in Fotheringhay Castle on 2nd October 1452 was thought (by some) to have been married in the Oxfordshire church St Denys in Stanford in the Vale, (pictured), and died during the Battle of Bosworth Field in 1485, the last English king to die in battle (and the only English king to do so on English soil since Harold II at the Battle of Hastings in 1066).

IMG_0633(2) In a BBC report, Dr Steven Gunn, University of Oxford said:

“After the battle of Bosworth Henry VII didn’t want anyone claiming that they were Richard III and had survived the battle. Richard’s body was taken to Leicester, slung naked over the back of a horse, and publicly displayed so people could see he was dead. . . . . . . Greyfriars was convenient and safe. Henry VII put steps in action for a tomb to be built, and the inscription was to be ambivalent, and in some ways rude about Richard III, talking about his nephews and indicating that he wasn’t a very good king”.

Any exhumation in England and Wales, regardless of who was (or might have been) buried or when the original burial was made, is subject to the Burial Act 1857. Except where a body is removed from one consecrated place of burial to another by faculty granted by the Ordinary, a licence issued under section 25 of the Burial Act 1857 is required.

On 31st August 2012, the University of Leicester applied to the Ministry of Justice for a ‘section 25 licence’ for the exhumation of the bones. These licences generally require the remains to be reburied within two years, and indicate the place where this is to take place, but to date this has not been revealed.

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.

So where does this leave the bones of Richard III, if their provenance is confirmed? In view of this unique sequence of events leading to the discovery of the bones, a definitive legal solution is not apparent, and as readers will be aware, Law and Religion UK tends not to speculate. However, the salient facts are:

  • The University of Leicester has custody and possession of the bones, which must be reburied after their archaeological examination;
  • Richard III has a descendant , a 17th generation nephew, and it is he who is providing the DNA for comparison;
  • None of the other parties that  has 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’.

Postscript

It is not uncommon to discover human remains during the clean-up of contaminated land or demolition and construction activities, and these must be moved before work can progress, Chapter 10, The Law of Waste Management, (2nd Edition), (2010 Sweet & Maxwell). This occurred when I was working on London Underground’s Jubilee Line Extension Project at what is now the Stratford Market train depot. A total of 647 burials from the former Cistercian Abbey of St Mary, Stratford Langthorne, were discovered, and following archaeological examination, the remains were reinterred at the Order’s Mount St. Bernard Abbey in Leicestershire.

With regard to ‘appropriate Catholic rites’, Frank Cranmer reminded me of the requiem that 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.

 

 

Posts on Richard III

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.