Captain Flinders navigates the law of burial

The third of an irregular trio of posts on Captain Flinders

The remains of Captain Matthew Flinders, discovered during the archaeological investigation at Euston Station, London, first came our attention in October 2019 in relation to the HS2 provisions which disapplied ecclesiastical legislation (ref.1). This was reviewed in our post Exhumation by the “nominated undertaker”, followed by Exhumation and reburial of Captain Matthew Flinders as the story progressed and the reburial of his remains in rural Lincolnshire was considered. The final legislative hurdle before the remains of Captain Flinders could be buried in the church of St Mary and the Holy Rood Donington was the approval required by the Lincoln Consistory Court.

Re St Mary and the Holy Rood Donington [2020] ECC Lin 1

The petitioners sought a faculty for the creation of a grave in the east end of the north aisle of the Grade I church for the reburial of the remains of Captain Matthew Flinders, “the famous navigator and cartographer”, and the installation of a new ledger stone above the grave [1]. Capt. Flinders’ coffin with a (coffin) breastplate bearing his name, had been discovered in 2019 in the former burial ground of St James’ Church, Euston during HS2 works to expand Euston Station (ref.2), and the proposal was to return his remains to the town where he was born [3].

The Chancellor held that there were 3 issues that fall to be determined [5]:

(i) the effect of closure of the church and churchyard [of St. James’ Garden, Euston Station] to new burials by Orders in Council in 1864 and 1865, respectively; and whether the proposed burial in the church is now lawfully permitted;

(ii) if it is, whether the proposed reburial within a church should be permitted applying an exceptionality test; and

(iii) if it is, whether the exceptionality test is satisfied in respect of the memorial ledger stone that is proposed and whether the entire proposal satisfies the tests set out in Re St. Alkmund, Duffield [2013] Fam 158.

With regard to (i), in April 2020 the Queen by Order in Council, pursuant to her powers under S1 Burials Act 1855, ordered that an exception is to be added to the Orders made in Council by Queen Victoria in the following terms:

“‘the exception to be added in that the body of Captain Matthew Flinders be interred under the North Aisle of St Mary and Holy Rood Church, provided that no part of the coffin containing the body shall be at a depth less than one metre below the surface of the ground”.

Consequently, it is therefore lawfully permitted for the body of Captain Flinders to be interred in the North aisle of the parish church [9] and the Chancellor was satisfied that the remains discovered on 19 January 2019 during the HS2 dig are those of Captain Flinders, given the presence of the lead plate bearing his name on the remains of the coffin uncovered, and that this was the former burial ground of St James’ Euston where it is known that he was buried in 1814 following his death [10].

Notwithstanding the 2020 Order in Council, the Chancellor determined that a faculty was still needed to authorise the interment in the church, and there needed to be exceptional circumstances to allow an interment inside the church, as (ii) above. With regard to the exceptionality test, the Chancellor considered Halsbury’s Laws of England, Ecclesiastical Law (Volume 34(2011)/8 para 1080, which stated that the practice of granting a faculty for the interment of cremated remains under the floor of a church is “sparingly granted” and “usually only where the deceased had been the incumbent of the parish concerned”; nevertheless, a faculty is not always granted in these circumstances, Mynors: Changing Churches (1st edition 2016) para. 13.7.6..

The case law considered [12, 13] included: Re Warner, Re All Saints, Stand MCC EccLJ 10 250, future interment of ashes of incumbent and wife – petition refused as would set precedent for this church; wife did not meet “exceptional criteria; Re St Peter, Folkestone 1982 1 WLR 1283, remains of priest refused, objections of congregation also precedent ground; In re St George’s Chorley 2017 ECC Bla 12, granted, distinguished from previous two cases, PCC decided in support; In re Christchurch Spitalfields 2004 23 CCCC 15, immurement of cremated remains of distinguished architect in that Hawksmoor church which had been an influence on his work.

These were summarized by the Chancellor:

[14]. “it is clear from these authorities that a faculty to permit the burial of cremated remains within a church will be exceptional and will never be lightly granted. Although every determination of what is exceptional will depend on the facts in the case, it is clear that Chancellors have been concerned with the issue of a precedent being set by the interment, particularly where no burials or interments in the church have occurred before. Additionally, they have had to be satisfied about the exceptionality of the life of the person whose remains are being interred and the ties that person had with that church.”

The Chancellor saw no difference no difference in the principles he must apply and the approach he must take, between cremated remains (the subject matter of these), and the remains of Captain Flinders that were uncovered in 2019 [15], and that no precedent is being set by this reburial, since no other burials are permitted either in the church or in the churchyard, and the discovery of Flinders’ remains 200 years after his burial was of itself so exceptional [16].

After reviewing Flinders’ achievements, the Chancellor concluded that in his judgement, these could be regarded as “so exceptional, and his ties to Donington so clear, that the faculty for his burial in the church can properly be granted” [20]. He finally considered the exceptionality test in respect of the memorial and whether the entire proposal satisfies the test in Re Alkmund, (iii) above, [21]. He noted that the DAC recommend the design to me subject to some additional words which the Petitioners have added [22] and agreed with its assessment that the presence of the grave of Captain Flinders in the church will positively further enhance the church as a building of special historic interest [27] and the Re Alkmund test was satisfied [28]. A faculty was granted subject to there being an archaeological watching brief during the excavation of the site, and the usual condition concerning the uncovering of other human remains [29].

References

[1]. Our post Lobbying the Lords on HS2 also considered HS2 and St James’ Gardens, but is case, the concern of the incumbent of St Pancras, Euston Road related to the trees on site and the loss of utility to local inhabitants. St James’ Gardens were described as being “to the left of the station … an ancient burial ground owned initially by St James’s Piccadilly for their … overspill, and bought by St Pancras vestry [in 1887]”.

[2]. St James’ Gardens has had a chequered history:

“The burial ground belonged to the parish of St. James, Piccadilly, which obtained an Act of Parliament in 1788 for its formation, and provided for the erection of a chapel. A church was then built from the designs of Thomas Hardwick, a pupil of Sir William Chambers, and was consecrated in 1791.

The ground was closed to burials and opened as a public garden in 1887. St James was one of several large inter-connected cemeteries in the district covering an area from Hampstead Road through what was St. James’ Garden, Euston Station and as far as St. Pancras. Under the Extramural Interment Act of 1854 a portion of the grounds was acquired for the expansion of the railways and the remains of hundreds, if not thousands, were removed to a mass grave at Finchley.”

Cite this article as: David Pocklington, "Captain Flinders navigates the law of burial" in Law & Religion UK, 1 June 2020, https://lawandreligionuk.com/2020/06/01/captain-flinders-navigates-the-law-of-burial/

 

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