Of graves, headstones and “offensive” inscriptions: Re St Margaret’s Rottingdean

The public protests associated with the Black Lives Matter campaign came to a head in the UK over the weekend of 6/7 June 2020 with the toppling of the statue of slave-trader Edward Colston and its deposit in the harbour in Bristol. This prompted subsequent action in Bristol and elsewhere, including a review of the “Colston windows” in Bristol Cathedral and a consideration of the inscriptions on two headstones at St Margaret’s Church, Rottingdean.

Background

On Monday, the BBC reported that two headstones at St Margaret’s, Rottingdean – those of G H Elliott and Alice Banford, music-hall entertainers who wore blackface makeup – had been covered temporarily. The Archdeacon of Brighton and Lewes noted the deeply offensive nature of the inscriptions on their two headstones, and the investigations that had been underway as to the legal and other considerations around seeking a solution; the PPC website carries a statement which includes this:

“Following conversations which have taken place over the past year with local residents, and also following the recent high profile campaigns which have rightly drawn attention to issues surrounding racial prejudice, the Parochial Church Council (PCC) of St Margaret’s, Rottingdean took the decision last week to place protective coverings on the headstones of G H Elliott and Alice Banford, who both died in 1962.

The PCC has now decided to apply for a faculty to remove both headstones into safe storage as soon as possible. It has taken this decision for two reasons. It wishes, as is its legal obligation, to protect the property (the gravestones) of the relatives of the deceased, but at the same time would welcome an urgent conversation with descendants about the appropriateness of the wording of the inscriptions in their churchyard.

“A temporary expedient”

In his Judgment and Directions in Re St Margaret’s Rottingdean [2020] ECC Chi 4, Hill Ch authorised an emergency faculty on Thursday, 11 June at 17.52 and a further emergency faculty was permitted on the afternoon of 15 June at 12.25 – on each occasion within minutes of the application being made to the Registry [1]. Due to the sensitive nature of the proceedings, the judgment was not made public until the work authorised under the second faculty had been implemented [2].

The judgment notes that “some of the language used, whilst it may have been unobjectionable at the time, is now deeply offensive” [3] and “the considerable unease within the parish for some time but, for whatever reason, no application for a faculty has previously been made to the Court” [4]. The circumstances leading to the emergency faculties are described in paragraphs [5] and [7], following which the Chancellor takes the opportunity to remind what he described as “some explanatory context”:

 “[7]. … The public generally regard the Church of England as a single entity. It is not. As Lord Hope of Craighead stated in the House of Lords’ decision of Wallbank v PCC of Aston Cantlow [2003] UKHL 37: ‘The Church of England as a whole has no legal status or personality’: para 612.”

In the present context:

“[8]. Churchyards are in the legal ownership of the incumbent or parish priest; although the responsibility for their maintenance rests with the PCC. Headstones, however, are not treated as part of the churchyard, but legally belong to the heir-at-law (living descendent) of the deceased person commemorated. An incumbent cannot remove a headstone or make an alteration to one, nor can he or she be directed to do so by the Archdeacon, the Bishop or any diocesan authority.

[9]. Works in a churchyard, including the removal or alteration of a headstone, can only be carried out with the permission of a faculty, which is granted by the Chancellor, being the judge of the Consistory Court, wholly independent of the Diocese. A faculty can be sought by parochial clergy, by churchwardens, by PCCs, by archdeacons and by individual parishioners.

It is worth quoting the Chancellor’s reasoning and conclusions at some length:

[10]. The emergency faculty which I authorised this afternoon is a temporary expedient. It was sought by the incumbent and PCC in order to keep the headstones safe during the current climate while a decision about their future is made. I considered it just to direct their removal to save the headstones from harm and to avoid any threat to public order or public safety in the churchyard. I have had particular regard to third-party rights, namely the living relatives of Mr Elliott, Miss Banford and Mr Banford, who are the legal owners of the respective headstones. The temporary removal of the headstones does not pre-judge the question of what is to become of them in the future. The Court may direct:

i. that they be reinstated, either unaltered or with some of the inscription obscured or re-cut; or

ii. that substitute headstones be installed in their place with different inscriptions; or

iii. that some other resolution be imposed.

Any works which are authorised will have to be paid for by someone. The Court is likely to be assisted by the expert opinion of a stonemason or professional letter-cutter to indicate the practical options which might be available. The Petitioners are to come forward with a detailed proposal as soon as possible, and in any event within six months.

[11]. It is imperative that the legal owners of the two headstones are traced so that they can be made parties to these proceedings and their views taken into account. It is also appropriate that the Archdeacon be made a party to these proceedings.

[12]. In order that this matter can be resolved as swiftly and sensitively as possible, I direct as follows:

(1) That the headstones erected in respect of (i) GH Elliot and (ii) Alice Banford (together with her husband Henry Banford) be removed from the churchyard of St Margaret, Rottingdean and stored in an undisclosed location approved by the Archdeacon of Brighton and Lewes where they are to be kept safe and secure until further order of this Court;

(2) That the headstones are to remain subject to the jurisdiction of the Consistory Court of the Diocese of Chichester;

(3) That the Archdeacon of Brighton and Lewes be made an additional party to these proceedings;

(4) That the Petitioners use their best endeavours to establish the heir-at-law of, respectively, GH Elliot, Alice Banford and Henry Banford in order that they can be served with these proceedings, made additional parties, and fully participate in the resolution of the matter;

(5) That on or before 15 December 2020 the Petitioners are to lodge at the Registry a petition seeking a confirmatory faculty for the matters authorised herein together with detailed proposals concerning the future of the two headstones

(6) Upon the lodging of the petition, the Court will make further directions for the determination of the matter including, but not limited to, public notice, DAC consultation, special citation and the service of lay and/or expert evidence.

(7) Liberty to the parties to apply to the Court for further directions.”

Comment

The wording of inscriptions on headstones has been reviewed in relation to the judgments in Re St Giles Exhall [2020] ECC Cov 1 and Re Holy Trinity Drayton Parslow [2018] ECC Oxf 3 in our posts here and here, respectively. However, the circumstances in St Margaret’s Rottingdean are appreciably different: in this case, the confirmatory faculty is to be sought by the petitioners with the possibility of heirs-at-law of GH Elliot, Alice Banford and Henry Banford as additional parties. The Court has determined three possible courses of action, and once a scheme has been developed and lodged it will make further directions for the determination of the matter.

Frank Cranmer and David Pocklington

[With our thanks to David Lamming.]

Cite this article as: Frank Cranmer and David Pocklington, “Of graves, headstones and ‘offensive’ inscriptions: Re St Margaret’s Rottingdean” in Law & Religion UK, 17 June 2020, https://www.lawandreligionuk.com/2020/06/17/of-graves-headstones-and-offensive-inscriptions-re-st-margarets-rottingdean/.

6 thoughts on “Of graves, headstones and “offensive” inscriptions: Re St Margaret’s Rottingdean

  1. The decision by Hill Ch demonstrates his usual wisdom.

    There is potentially a far larger issue on the horizon where headstones in churches may refer to deceased persons’ employment in such institutions as the East India Company or refer to military service which might now be called into question. What about the memorials in our great cathedrals to monarchs and others who could be associated with historic acts in relation to slavery?

    Churches have for centuries been endowed by persons whose previous conduct has been questionable by today’s values and standards but who may have sought to atone in part for their behaviour by giving to the church. This stretches right back to Emperor Constantine.
    The Church needs to reflect deeply and prayerfully about how it will respond to these changing circumstances so that it is not left entirely to local incumbents and PCCs to address individual cases.

  2. I have no problem whatsoever with upholding the principle and practice that every person, irrespective of colour, class or creed, should be treated with respect and given every opportunity in education, work and leisure without fear or favour. Sadly this is not the situation in the UK today and action is needed.
    But will focusing minutely on history hasten such actions?
    I’m mindful of the letter to Philemon: Paul’s personal plea for a slave. Onesimus “belonged” to Philemon, a member of the Colossian church and Paul’s friend. But Onesimus, the slave, had stolen from his master and had run away. He had run to Rome, where he had met Paul, and there he had responded to the gospel and had come to faith in Christ. Paul does not condemn slavery, let alone indicate in any way that there was anything wrong about it. He merely pleads with Philemon to treat him well as Onesimus is a changed person.
    I accept that today the headstone inscription ‘The Chocolate Coloured ****’ is regarded as offensive. But when a white or BAME comedian mimics a person’s accent, other than their own, and jokes about them is that crossing the line?
    If in the past people were associated with the slave trade, but were not directly involved in treating them badly, does that condemn any good works they did?
    The questions are rhetorical. We live in challenging times.

  3. I suspect that this is going to be a complex case as, unlike a ‘public’ statue, there are still property rights in the gravestone and a lot is going to depend on the attitude of the heirs at law. It will also bring into conflict the fact that, whilst there is no right to a gravestone, it must be recognised that there was a stone, erected (one must presume) with the permission of the incumbent at the time.

    The attitudes could range from “It’s two/three generations ago, just take it down” to (more unreasonably, but possibly still understandably) “This was put up with permission, we want you to restore our relative’s grave”.

    Getting even murkier will be the question of costs – not just court costs which it would be expected would be borne by the future petitioner, but if a new stone is to be provided or the existing stone is to be recut, who should pay for it. Again there could be a range of responses from the heirs ranging from “OK, we’ll pay” to “This was put up with permission, you want the changes, you pay.” The ability to pay of the heirs must also be considered – it is one thing to say that you won’t pay, very much another to say that you can’t.

    • Thanks Rob. Your Comment raises a number of interesting points, particularly in relation to the costs. Mark Hill has set a deadline of 15 December for the Petitioners to lodge a petition for a confirmatory faculty with the Registry, with detailed proposals concerning the future of the two headstones. However, these proposals are dependent upon the location, or not, of the heirs-at-law of the headstones, and the formulation of an agreement on the future of the headstones and the associated cost. Like you, we await developments with interest. Best regards, DavidP

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