Background

In Re The Rustat Memorial, Jesus College, Cambridge [2022] ECC Ely 2, the College sought a faculty to remove the memorial to Tobias Rustat (1607/8-1694) from the College chapel and relocate it.

Critics of Rustat believed that he had derived much of his wealth from the slave trade as an investor in the Company of Royal Adventurers Trading into Africa and the Royal African Company, of which he was a director. He was buried in Jesus College, of which he was a benefactor, and a memorial to him was erected in the College chapel and moved to its present location in 1922. In 2020, the College’s Legacy of Slavery Working Party recommended that the memorial be moved from the chapel to an educational, permanent exhibition space within the College, but because the College had opted into the Church of England’s faculty jurisdiction it was obliged to seek a faculty to authorise the move.

The petition for a faculty was supported by both the Dean of Chapel and the Bishop of Ely, though Historic England’s opinion was that the monument “is both of significance in its own right and contributes to the significance of the Chapel as a whole. The removal of the monument would harm both its significance and that of the Chapel” [16]. There were more than sixty parties opponent to the application, who argued that the move to relocate the memorial was “the product of a false narrative that Rustat amassed much of his wealth from the slave trade, and used moneys from that source to benefit the College” and that the amenity bodies’ support for the removal of the memorial was therefore misinformed. The parties opponent argued that Rustat’s whole life had to be examined and put into its true context, and that could be done most economically and effectively “by leaving the memorial in place, with an appropriate contextual plaque and information” [4].

The judgment

HHJ Hodge Dep Ch accepted the conclusion of an expert opinion by a group of historians that Rustat’s initial investments in the Royal Adventurers:

“had brought him no financial returns at all; that Rustat only realised his investments in the Royal African Company in May 1691, some 20 years after he had made his gifts to the College, and some five years after the completion of the Rustat memorial and its inscription; and that any moneys Rustat did realise as a result of his involvement in the slave trade comprised only a small part of his great wealth, and they made no contribution to his gifts to the College” [Summary of Conclusions, 7].

In Re St Alkmund, Duffield [2013] Fam 158, an appeal against the refusal of a faculty for the relocation of a chancel screen, the Court of the Arches laid down the following guidelines for authorising significant alterations at [87]:

1. Would the proposals, if implemented, result in harm to the significance of the church as a building of special architectural or historic interest?
2. If the answer to question (1) is “no”, the ordinary presumption in faculty proceedings “in favour of things as they stand” is applicable, and can be rebutted more or less readily, depending on the particular nature of the proposals.
3. If the answer to question (1) is “yes”, how serious would the harm be?
4. How clear and convincing is the justification for carrying out the proposals?
5. Bearing in mind that there is a strong presumption against proposals which will adversely affect the special character of a listed building, will any resulting public benefit outweigh the harm?

In the Chancellor’s opinion, the College had not demonstrated a “clear and convincing” justification for removing the memorial, and he was not satisfied that its removal was necessary “to enable the Chapel to play its proper role in providing a credible Christian ministry and witness to the College community, or for it to act as a focus for secular activities and events in the wider life of the College” [3]. Nor was he satisfied that its relocation to an exhibition space where it could be contextualised was “the only, or, indeed, the most appropriate, means of addressing the difficulties which the presence of the Rustat memorial in the College Chapel is said to present” [3].