On 13 July 2024, Captain Matthew Flinders was buried within the church of St Mary and the Holy Rood in Donington, Lincolnshire. A native of Donington, Flinders died on 19 July 1814 and was buried in the London cemetery which became St James burial ground. It was thought that his remains were lost and there was an urban myth that Captain Flinders was buried beneath platform15. However, in January 2019 archaeologists working on the HS2 project discovered the burial ground of the explorer as part of their works in advance of construction of the new high-speed terminus station. They were able to identify his remains by the ornate lead name plate placed on top of his coffin.
From his initial burial to the final interment in the church of St Mary and the Holy Rood, Donington, the remains of Captain Flinders have been been covered by different tranches of legislation: that relating to the churchyard in which he was first buried; that concerning the custody of the body during and after the infrastructure project; and finally, the ecclesiastical provisions governing burial within the church.
The exhumation and re-interment required no new legislative provisions or interpretation of the existing law; the (legal) interest shown in the story arises from a somewhat singular combination of factors: exhumation during the development of the transport infrastructure where ecclesiastical legislation had been disapplied by statute; high-level involvement between the Church and the nominated undertaker; and a local determination of the irregular but licit reburial within a church.
Legislation prior to discovery
Flinders died in 1814 and was buried (presumably according to ecclesiastical law) in the St James burial ground, the history of which is summarized by the Wellcome Collection. The burial ground belonged to the parish of St. James, Piccadilly, which obtained an Act of Parliament in 1788 for its formation and the erection of a chapel. The ground was closed to burials and it opened as a public garden in 1887. Under the Extramural Interment Act 1854 a portion of the grounds was acquired for the expansion of the railways and the remains of possibly thousands were removed to a mass grave at Finchley.
In 1954 St. James Parish was combined with St. Pancras Parish and the Church of St. James was closed. The remaining six acres of green space were then called St. James Gardens and remained a public park until another rail expansion plan called for the enlargement of Euston Station to accommodate HS2. The gardens closed in June 2018 to enable preparatory work to be undertaken prior to HS2 construction, including the complete excavation and clearing of the old burial ground, estimated to hold the remains of between 30,000 and 60,000 bodies.
Exhumation
The secular and ecclesiastical legislation involved in the exhumation of Captain Flinders’ remains and their reburial in rural Lincolnshire was reviewed in Exhumation and reburial of Captain Matthew Flinders. This updates an earlier post Exhumation by the “nominated undertaker” and incorporates the helpful Comments made and subsequent new information, and clarifies the legislative requirements involved.
The legislation for most large infrastructure projects contains broadly similar provisions for the treatment of human remains that disapply the ecclesiastical and other legislation. In the case of the Euston burial site, HS2 acted as the “nominated undertaker” as defined in s45 High Speed Rail (London – West Midlands) Act 2017 (“the Act”) and nominated in The High Speed Rail (London – West Midlands) (Nomination) Order 2017. The Act includes specific provisions in relation to burial grounds in section 27, and Schedule 20 includes detailed provisions paragraphs on, inter alia: notice of removal of remains or monument; removal of remains under licence; removal of remains by nominated undertaker; removal of monuments; records; discharge of functions by nominated undertaker; and relatives and personal representatives.
No notification of the removal of the remains was required since these were buried more than 100 years ago (sub paragraph 1(3)(a) of the Schedule), and as such no one fell within the class of persons entitled to object (sub paragraph 4(11)(1) of the Schedule). Additional guidance is provided in High Speed Two, Phase 2a, Information Paper E25: Burial Grounds, in particular section 4.3, which sets out the framework for the relationships between the parties involved including Historic England, the Archbishops’ Council, relevant local authorities and others; and section 5.5 which addresses HS2 Ltd.’s archaeological approach to human remains and associated funerary monuments.
Request for reburial of remains
As noted earlier, the treatment of a body prior to final disposal is subject to a quasi-hierarchy of rights, based upon its ‘custody and possession’. This was summarized by Kennedy and Grubb (Kennedy, I and A Grubb (1989. Medical Law Text and Materials. London: Butterworths. 10). Following exhumation, HS2 had “custody and possession” of the remains, for which the family descendants, aided by the Diocese of Lincoln, successfully applied for their release with a view to burial at the church of the Holy Rood, Donington. This involved an application to the Archbishops’ Council with whom the Secretary of State entered into a legal memorandum of understanding as regards exhumations of mortal remains from consecrated burial grounds, following the decision of the Secretary of State, (Schedule 20 of the 2027 Act).
Under the Memorandum, the Secretary of State agreed to abide by the wishes of the diocesan bishop [i.e. London], advised by the Archbishops’ Council, as to what was to be done with such remains. The application was to show the exceptional circumstances which apply, to rebut the presumption that the Archbishops’ Council advise should apply in cases of exhumation in connection with the HS2 project, that the remains should be buried in the nearest available consecrated burial ground.
Reburial
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.
Bishop Ch. held that there were 3 issues that fell to be determined: (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 late 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”.
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, he 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..
After reviewing the case law and Flinders’ achievements, Bishop Ch. concluded that in his judgment, 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 noted that the DAC recommend the design subject to some additional words which the Petitioners had been added [22] and agreed with its assessment that the presence of the grave of Captain Flinders in the church would 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].
Peter Collier has noted that as this church is 14th century, it predates the passing of the Public Health Act 1848 and so it will not be unlawful to bury the remains of Captain Flinders inside the church. With regard to prohibition of burials within or underneath churches in urban areas, David Smale in Davies’ Law of Burial, Cremation and Exhumation, 6th Edition, notes that in S83 Public Health Act 1848:
“It should be observed that, in special circumstances and subject to the grant of the necessary Faculty, burials may still occur in churches in rural areas or where the church existed before 1848.
Final interment on 13 July 2024
There will be thee days of commemorations marking the history and life of Captain Matthew Flinders, 12, 13 and 14 July; as a naval captain, he will receive an 18 gun salute and will have six pallbearers from the Royal Navy’s state ceremonial team carrying his coffin. Details of the expected timing of these events are here and here. There will be three services in Donington’s Church of St Mary and the Holy Rood, including Flinders’ final interment on the Saturday.
The original coffin breastplate will be presented by the family to Australia on permanent loan on 13 July 2024, to be displayed in Adelaide. A copy of the breastplate is to be donated to the Church at Donington for permanent display.
[Updated: 14 July 2024 at 07:11]