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.
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).
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’.
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.
There is a report in today’s Daily Telegraph to the effect that Dean of York, Vivienne Faull, (who until recently was Dean of Leicester) has received a string of abusive letters about the reburial of Richard III and that the matter is currently being investigated by York Minster Police. The business is degenerating from the merely silly to the downright nasty.
Speaking as a Catholic I know that there is a bit of a move to get Richard III buried by Catholic Rites but the question then becomes “what Catholic Rite”. A burial service according to the new Catholic Missal would be even less suited to Richard III than an Anglican Service according to the BCP. Ideally any burial service should be in Latin and according to the Sarum Rite which is the Rite with which Richard himself would have been familiar. As a Yorkshireman my preference is for him to be buried in York Minster: as the last King of the Yorkist dynasty this seems the appropriate place and the Minster has the appropriate dignity to be the burial place of a King.
HiRichard III could also have a Latin Mass at York as there been a mass held there in the past and the Minister has had close links with the Roman Catholic community.
This week’s religion and law round up includes a summary of yesterday’s Westminster Hall debate during which Hugh Bayley (York Central) (Lab) made reference to the abuse letters received by the Dean of York, and the minister made a statement regarding the application of the Burial Act 1857.
At mid-day today, Leicester Cathedral released details of the Architects’ brief regarding the interment of the remains of Richard III, the requirements of which at first sight appear to differ from the entombment proposals of the RIchard III Society.
With regard to the burial, there appears to be an issue as to whether a burial service is appropriate given that burial rites may have already been conducted. However, there are probably bloggers more knowledgeable than Frank or myself to address these and the liturgical issues.
David I take on board that the original post of what is being discussed here was made in October 2012, but since this time another page was created on the Law & Religion UK site in February 2013. The Burial Acts are discussed on this page too. https://www.lawandreligionuk.com/2013/02/16/rudewicz-and-richard-iiis-exhumation/
I disagree with your interpretation of the Burial Acts.
All graves never consecrated would come within the controls of exhumation licences, if and only if the 19th century Burial Acts applied to any graves of any age in any land. Their application is limited to active burial grounds and places managed as former burial grounds by organisations with such responsibilities.
The Burial Acts do not apply to all places with graves.
It is relatively simple to decide whether or not the Burial Acts apply to any graves.
Places which are no longer used for burials and are not being managed as former places of burial, by organisations with formal responsibilities for graves, do not come within any of the controls of the Burial Acts. That is because of a legal precedent in 1867. Further details about that decision and a case in 1880 can be read on the Exhumation Law website http://www.exhumationlaw.moonfruit.com/#/case-law/4562358566
It is plainly impossible to have on the one hand, a legally binding decision which says none of the Burials Acts apply to certain properties but then decide to pick out an odd section or two, to apply to those same properties, just because it is administratively convenient or expedient to do so. Acts which don’t apply don’t apply because they don’t apply – it has to be all or nothing unless other laws clearly state that only bits of laws are relevant in specific circumstances and that is not the case with the Burial Acts. The only way to validly use exhumation licences for any unconsecrated graves in literally “any” unconsecrated burial places, is to go to court and have the 1867 and 1880 judgements overturned. Until that happens, there must be some places where exhumation licences cannot be used. It is as simple as that.
The 1867 and 1880 cases must have given rise to the advice given to the Ministry of Justice (MoJ) by its own lawyers, in or around 2007.
I’ll now take Section 25 of the Burial Act and insert one clarification, in the hope that the meaning will be clear or at least clearer:-
“Except in the cases where a body is removed from one [legally] consecrated place of burial to another by [a Church of England permission known as a] faculty … it shall not be lawful to remove any body, or the remains of any body, which may be interred in any place of burial [if and only if it is regulated by the Burial Acts] without licence [from] one of Her Majesty’s Principal Secretaries of State, and with such precautions as such Secretary of State may prescribe as the condition of such licence; and any person who shall remove any such body or remains, contrary to this enactment, or who shall neglect to observe the precautions prescribed as the condition of the licence for removal, shall, on summary conviction before two justices of the peace, forfeit and pay for every such offence a sum not exceeding [a level 1 fine of £200]”.
The confusion even within the MoJ stems from the words “in any place of burial”.
“Any” does not literally mean “any”.
There is always an implied warning which comes with any law – never take a few words or sentences out of context.
It is the context which matters when trying to make sense of any laws. The words inserted above, help people reading this page understand the context in which Section 25 on licences must be understood.
Taking all of this into consideration it raises the question whether the licence issued to the University of Leicester by the MoJ is legally valid. I allege that it is not.
I submitted a report to the MoJ in February 2012 titled “Cross Bones, Southwark, London SE1 and Other Disused Burial Grounds”. That report and subsequent correspondence makes allegations that the MoJ has issued many licences that are legally invalid. The MoJ refuses to address the points that I make on law and says that it is “…sorry, it is outside our remit to check the accuracy of each of your conclusions of law. The Ministry of Justice cannot give legal advice to members of the public on individual cases”. My local MP is assisting me now. If with or without his assistance I am proven to be right, and as the body of what is presumed to be that of Richard III has already been exhumed, this must surely affect who or what organisation can take legal possession of that body for the purpose of re-interment. At this point in time, if the licence is legally invalid, archaeologists in Leicester must have illegal possession in view of the breach of common law which carries an unlimited penalty.
In re-issuing this post, it was not the intention to re-open the various threads relating to this aspect of burial law, and this has now been clarified in the header to the post. However, prior to this clarification, Teresa Evans submitted the above detailed comments on a similar theme to that developed by John Bradfield on Rudewicz and Richard III’s exhumation and elsewhere. Teresa and John have provided information on exhumation law specific to Rudewicz which is available on the Moonfruit website, provided on behalf of the Alice Barker Trust.
They suggest inter alia that on the basis of Foster v Dodd, (1867) L.R. 3 Q.B. 67 and R v Jacobsen (1880) 14 Cox CC 522, the 1857 Burial Act is not of universal application, and with regard to the phrase “in any place of burial”, “any” does not literally mean “any” – a point on which the Ministry of Justice based its creative but short-lived reinterpretation of the Act. This theme is developed further to suggest in cases such as that of Richard III, that many of the licences issued by the MoJ are legally invalid, and this has implications on the person or organisation can take legal possession of the remains for the purpose of re-interment.
Many lawyers will assert that section 25 [of the 1857 Act] is the default provision if no other provision applies, and suggest that with its advent, the State confirmed the Church’s role for consecrated ground and undertook to protect those buried in unconsecrated ground beyond the protection of the common law. Whether this extends from graveyards to any land is debatable point, and one which unfortunately was neither fully argued nor decided in Rudewicz.
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Another thought: King Richard could have a High Mass of Requiem according to the use of York.
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