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Digging Up Exhumation

Published online by Cambridge University Press:  31 July 2008

Rupert Bursell
Rupert Bursell
Affiliation:
Chancellor of the Dioceses of Durham and St Albans
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Ecclesiastical Law Journal , Volume 5 , Issue 22 , January 1998 , pp. 18 - 33
Copyright
Copyright © Ecclesiastical Law Society 1998

References

1 I understand, nevertheless, that the grave has been opened at least once.

2 Fellows, , The Law of Burial (Haddon, Best & Co., Ltd. 1940). p. 125Google Scholar. Quaere which poems — and whose? What was the motive: sentiment or commerce? Unfortunately neither of the two recent biographies mention the possibility: see Marsh, , Christina Rossetti. A Literary Biography (Pimlico, 1994)Google Scholar and Thomas, , Christina Rossetti(Virago, 1996).Google Scholar

3 Gibson, , Codex Iuris Ecclesiasttci Anglicani {3rd edn.London, 1713), p. 544.Google Scholar

4 Coke, , 3 Institutes 203.Google Scholar

5 R v Tristram (1899) 15 TLR 214.

6 15 TLR 214 at 215. See also R v Sharpe (1857) 7 Cox CC214.CCR. whereErle J. at 216. spoke of‘…the protection of the grave at common law, as contradistinguished from ecclesiastical protection to consecrated ground …’.

7 The ordinary faculty jurisdiction does not apply to a cathedral: see Phillimore, , Ecclesiastical Law (Sweet & Maxwell, 2nd edn 1895), vol II. p. 1420Google Scholar. However, a grave within a cathedral is nonetheless caught by the provisions of the Burial Act 1857 (20 & 21 Vict. c. 81), s. 25. It is at the least arguable that a faculty must still be granted by the relevant Ordinary. In the nineteenth century there were two exhumations of St Cuthbert in Durham Cathedral. The first, in 1827. apparently raised some disquiet, although there seems to be no substantive information relating to any permission sought or granted. The second was in 1898. On this occasion a letter was received by the Dean and Chapter from the Home Office. It was referred to the Dean for an answer. It seems that little permission, if any, had been sought prior to exhumation. (I am indebted to Roger Norris of the Dean and Chapter Library and Philip Wills of the Diocesan Registry for this information.) Unfortunately, some archaeologists and historians seem to feel that a different approach may be taken to ancient remains as compared to more modern ones. In law the same formalities must, of course, be complied with.

8 Re Dixon [1892] P 386. Cons Ct.

9 Haynes' Case (1613) 12 Co Rep 113.

10 In Watson's, Clergyman's Law (3rd edn. Savoy 1725) at p. 391Google Scholar Haynes is described as an ‘evil person’, but it is unclear whether this is because of the disturbance of the body, because of the theft, because he was a clerk, or because of a combination of these factors.

11 Hamlet. Act V. Scene 1. line 235.

12 R v Lynn (1788) 2 Term Rep 733.

13 R v Sharpe 1857) 7 Cox CC 214 at 215. CCR.

14 Re Pope (1857) 15 Jur 614, Cons Ct. a case of exhumation for the purpose of identification.

15 R v Tristram [1898]2 QB 371 at 374, per Wills J.

16 Re Dixon [1892] P 386 at 391. Cons Ct.

17 R v Tristram [1898] 2 QB 371 at 377. per Wills J. when he describes the consistory court as ‘a competent authority, which certainly is not disposed rashly, improperly, or irreverently to sanction the removal of dead bodies from a consecrated place of burial for the purposes of idle curiosity or any unworthy or improper reason’. See also Druce v Young [1899] P 84. out of which the case flowed.

18 Cf Re Church Norton Churchyard [1989] Fam 37 at 40, 41. sub nom Re Atkins [1989] 1 All ER 14 at 17. Cons Ct. per Chancellor Quentin Edwards QC.

19 Re Dixon [1892] P 386 at 393, 394. Cons Ct.

20 Re Talbot [1901] P 1. Cons Ct. In Re St James' Churchyard, Hampton Hill(1982) 2 Ecc LJ 253Google Scholar. Cons Ct. Chancellor Newsom QC granted a faculty for the removal of remains from the churchyard to a Presbyterian cemetery in Canada.

21 Re Matheson [1958] 1 All ER 202. [1958] 1 WLR 246. Cons Ct.

22 [1958] 1 All ER 202 at 203. [1958] 1 WLR 246 at 248. It should be noted that the view expressed in the first sentence is not universal, as burial and exhumation practices in the Middle East and in parts of South America make clear. Moreover, social practices and views change as the growth in cremation and the scattering of ashes testify.

23 However, he ascertained that he was following the practice in the dioceses of Carlisle. Winchester and Bath and Wells: see Re Matheson [1958] 1 All ER 202 at 203. [1958] 1 WLR 246 at 247, 248.

24 [1958] 1 All ER 202 at 203. [1958] 1 WLR 246 at 247. The father had been buried for eleven years.

25 Re Church Norton Churchyard[1989] Fam 37, sub nom Re Atkins [1989] 1 All ER 14, Cons Ct.

26 [1989] Fam 37 at 44, [1989] 1 All ER 14 at 20.

27 In addition to the cases of Re Pope (1857) 15 Jur 614, Cons Ct. Re Dixon [1892] P 386, Cons Ct, and Re Talbot [1901] P 1. Cons Ct, the Chancellor set out the relevant cases on church extensions, road widening, public health and town development, namely St Botolph without Aldgate Vicar and Churchwardens v Parishioners [1892] P 161. Cons Ct: St Helen's. Bishopsgale Rector and Churchwardens v Parishioners[1892] P 259. Cons Ct: St Mary-at-Hill Rector and Churchwardens v Parishioners [1892] P 394. Cons Ct: and St Michael. Bassishaw Rector and Churchwardens v Parishioners [1893] P 233. Cons Ct.

28 Re Church Norton Churchyard [1989] Fam 37 at 43.44.sub nom Re Atkins[1989] 1 All ER 14 at 19.20.

29 [1989] Fam 37 at 46, [1989] 1 All ER 14 at 21.

30 One such case is Re Cheddar Churchyard (1988) 1 Ecc LJ(4)7Google Scholar. Cons Ct, where a son petitioned for a faculty to exhume his mother's coffin so that she might be rebuned with her husband in Epsom. The deceased's parents opposed the petition. Although the husband had wished to be buried with his wife he had not so directed in his will: on the evidence, she had expected to be buried in Cheddar and was content that that should be so. In the circumstances Chancellor Newsom QC refused a faculty.

31 Re Church Norton Churchyard[1989] Fam 37 at 38. sub nom Re Atkins[1989] 1 All ER 14 at 15.

32 [1989] Fam 37 at 43, [1989] 1 All ER 14 at 19. It is interesting to note that the theological commentary quoted by the Chancellor at [1987] Fam 37 at 40. [1989] 1 All ER 14 at 17 from Wheatley on the Book of Common Prayer (1858 edn) p. 586Google Scholar in relation to the ‘critical wordss’ of the burial service, ‘We … commit his body to the ground’, seem to be based on a theology of the resurrection of the physical body: ‘The phrase of “commit his body to the ground” implies that we deliver it into safe custody and into such hands as will safely restore it again’ (emphasis supplied). Compare, too, the words of committal in the Forms of Prayer to be used at Sea — At the Burial of their Dead at Sea. However, Wheatley goes on to make it clear that “It is not his resurrection, but the resurrection that is here expressed; nor do we go on to mention the change of his body, in the singular number, but of our vile body, which comprehends the bodies of Christians in general”. See also Daniel, , The Prayer-Book. Its History, Language and Contents (20th edn.Wells Gardiner Darton & Co 1901) at p. 510.Google Scholar

33 In Re St Mary Magdalene, Lyminster (1990) 2 Ecc LJ 127Google Scholar. Cons Ct. Chancellor Edwards QC, following the principles in Re Church Norton Churchyard, declined to grant a faculty to a widow to exhume her husband's ashes so that she might re-inter them where she then lived, although she was unable to visit the grave by reason of infirmity.

34 Indeed, the Chancellor thereafter went on to state (Re Church Norton Churchyard [1989] Fam 37 at 44, sub nom Re Atkins [1989] 1 All ER 14 at 20)Google Scholar: ‘The wish of the personal representatives or next of kin of the deceased to remove the body or ashes from one part of a churchyard to another or from one churchyard to another for reasons which appear to the court to be well-founded and sufficient is, on the authorities, a ground for the grant of a faculty’. The question is: What reasons would the court regard as ‘well-founded and sufficient’? Surely the natural distress of a petitioner, for example, at being no longer able after many years to tend the grave of a still-born infant would be well-founded and in all probability sufficient?

35 [1989] Fam 37 at 46.[1989] l All ER 14 at 21.

36 [1989] Fam 37 at 45.[1989] 1 All ER 14 at 20.

37 For a secular case, see Reed v Madon [1989] Ch 408. [1989] 2 All ER 431.

38 Re St Luke's, Holbeach Hurn, Watson v Howard [1990] 2 All ER 749Google Scholar. [1991] 1 WLR 16. Cons Ct.

39 Re Church Norton Churchyard [1989] Fam 37 at 44, sub nom Re Atkins [1989] 1 All ER 14 at 19.Google Scholar

40 Re St Luke's, Holbeach Hurn, Watson v Howard [1990] 2 All ER 749 at 757Google Scholar. [1991] 1 WLR 16 at 26. If she were to be cremated she might have been buried in her husband's grave: her body could not be buried there because of the water table: see pp 753. 754 and p 21. The undertaker apparently felt that a wife should be buried on her husband's left, commenting that ‘As they were married, so are they buried’ (p. 753 and p. 21); the petitioner would not accept the alternative location as ‘her husband had never bullied her or trampled on her in life and … she did not like the idea of being under his feet’ (see p. 754 and p. 21).

41 [1990] 2 All ER 749 at 758. [1991] 1 WLR 16 at 26. Frequently in such cases the petition is by the under taker or the incumbent whose error it was, but the same principles clearly apply. In Re St Mary's Churchyard. Speldhurst (1990) 2 Ecc LJ 131Google Scholar. Cons Ct, Chancellor Goodman refused a faculty where an innocent mistake had been made but the remains had been buried for four years. There had been no reservation of a grave space.

42 Re St Peter's Churchyard. Oughtrington [1991] 1 WLR 1440Google Scholar. sub nom Re Smith [1994] 1 All ER 90.Google Scholar

43 Re Church Norton Churchyard [1989] Fam 37. sub nom Re Atkins [1989] 1 All ER 14.

44 Re St Luke's, Holbeach Hurn, Watson v Howard [1990] 2 All ER 749. [1991] 1 WLR 16.Google Scholar

45 Re St Peter's Churchyard, Oughtrington [1991] 1 WLR 1440 at 1442Google Scholar, sub nom Re Smith [1994] 1 All ER 90 at 93.94, Cons Ct. It seems likely that these words were not intended to increase the burden of proof upon the petitioner as in Re Knight (1993) 3 Ecc LJ 257Google Scholar. The Times 27 January 1994, Cons Ct. Chancellor Lomas granted a faculty for exhumation where the deceased had intended to return to his home county, his widow had promptly instructed the undertaker to arrange the exhumation and an acceptable explanation for any delay in the making of the application had been found. ‘Each case was different and the facts of each case had to be considered by the court separately and carefully’. See, too. Re Johnstone (1996) 4 Ecc LJ 685Google Scholar, Cons Ct. In Re Holy Trinity, Freckleton (1995) 3 Ecc LJ 429Google Scholar, Cons Ct. Chancellor Spafford spoke of ‘a strong presumption’ against exhumation.

46 Re St Peter's Churchyard, Oughtrington [1993] 1 WLR 1440 at 1443Google Scholar. sub nom Re Smith [1994] 1 All ER 90 at 94.Google Scholar

47 In Re Knowle Churchyard (1994) 3 Ecc LJ 259Google Scholar, Chancellor Aglionby refused a petition to exhume a person's ashes after eleven years so that they might be buried with his wife's remains. There was doubt as to whether they could be removed; there had been no mistake; and the desire to record both names on the wife's memorial could be met by devising a suitable form of words.

48 Re St Peter's Churchyard. Oughtrington [1993] 1 WLR 1440 at 1444Google Scholar. sub nom Re Smith [1994] 1 All ER 90 at 95.

49 [1993] 1 WLR 1440 at 1443. [1994] 1 All ER 90 at 94, 95.

50 Re St Mary's Churchyard. Alderley [1994] 1 WLR 1478Google Scholar. sub nom Re Sydney Wilson Marks, deceased 3 Ecc LJ 352. Cons Ct.

51 See[1994] 1 WLR 1478 at 1480.

52 See[1994] 1 WLR 1478 at 1483.1484.

53 Re St Thomas' Church, High Lane (1995) 4 Ecc LJ 605, Cons Ct.Google Scholar

54 4 Ecc LJ 605 at 606.

55 Re Church Norton Churchyard [1989] Fam 37. sub nom Re Atkins [1989] 1 All ER 14. Cons Ct.

56 Re St Paul, Hanging Heaton (1994) 3 Ecc LJ 261Google Scholar. Cons Ct.

57 In this particular context it is interesting to note that there is power in particular circumstances to dispense with citation in cases of exhumation: Faculty Jurisdiction Rules 1992. SI 1992/2882. r 12(9). If pastoral concerns are relevant to the exercise of the jurisdiction, this must include the sensibilities, for example, of someone whose house overlooks the grave. How is the householder to learn of the proposed exhumation if there is no citation? See. too, the next footnote.

58 The hearing was held in chambers as it was ‘essentially a private matter’.

59 Re Church Norton Churchyard[1989] Fam 37. sub nom Re Atkins [1989] 1 All ER 14. Cons Ct.

60 Re St Luke's, Whaley Thorns (1994) 3 Ecc LJ 350Google Scholar. Cons Ct. For another case where an objection was entered, see Re Cheddar Churchyard (1988) 1 Ecc LJ (4)7Google Scholar. Cons Ct. and note 30 above.

61 Re Holy Trinity. Freckleton (1995) 3 Ecc LJ 429. Cons Ct.Google Scholar

62 Re Holy Trinity Churchyard, Freckleton [1994] 1 WLR 1588, 3 Ecc LJ 350. Cons Ct.Google Scholar

63 In Re Cosgrove (1996) 4 Ecc LJ 607Google Scholar. Cons Ct. Chancellor Coningsby adjourned the hearing of a petition in relation to exhumation in a local authority cemetery until the parties had sought their remedy in the secular courts as to a disputed contractual reservation of the plot.

64 The incumbent had opposed the particular form of words on the memorial but not the exhumation.

65 Re Stocks, deceased (1995) 4 Ecc LJ 527Google Scholar. The Times 5 September 1995Google Scholar. Cons Ct.

66 The Chancellor had referred to the provisions of Canon B38, para 4(b). which provides that ashes should be ‘reverently disposed of by a minister in a churchyard or other burial ground … or on an area of land designated by the bishop … or at sea’. In his view they expressed ‘something of the mind of the Church in a way that reinforces the considerations of security and safe custody’. However, the words ‘on an area of land’ would seem to embrace the scattering of ashes, especially in the light of the chosen preposition: moreover. there seems to be little difference between that and a disposal at sea. For a similar view, see Leeder, , Ecclesiastical Law Handbook (Sweet & Maxwell, 1997) at para. 10.61.Google Scholar

67 Re Ryles, deceased (1995) 24 October, Cons Ct (unreported).Google Scholar

68 Re Johnstone (1996) 4 Ecc LJ 685Google Scholar. Cons Ct. In Re Jason Arthur Stedman (1997) 15 MarchGoogle Scholar. Cons Ct (unreported). Chancellor Collier found that it was a ‘wholly exceptional case by reason of the petitioners’ inability to come to terms with the loss of their son. This permitted him to grant a faculty in what might otherwise be regarded as a ‘portable remains case’.

69 Re Watling Street Cemetery(1996) 8 OctoberGoogle Scholar. Cons Ct (unreported).

70 Re St Peter's Churchyard, Humberston (1996) 25 OctoberGoogle Scholar. Cons Ct (unreported). Although concerning the placing of a memorial, rather than flowers. Re Scopwick Albert Pearson, deceased (1996) AugustGoogle Scholar. Cons Ct (unreported). was a similar case in which Chancellor Goodman reached a similar decision.

71 See too Re Tealby Churchyard (1997) 14 AugustGoogle Scholar. Cons Ct (unreported). This is the only case of a confirmatory faculty in relation to exhumation. Although a ‘portable remains case’, the casket was exhumed with the permission of the parish council which looked after the closed churchyard: the Garden of Remembrance, however, was in any event excluded from local authority maintenance. The undertaker only became aware of the need for a faculty after the exhumation had taken place. The widow was entirely without fault, and Chancellor Goodman concluded that ‘it would be entirely inappropriate to direct … reinterment’ in the original location, even when it was far from certain that he would have granted a faculty if there had not already been an exhumation. An order for costs was made against the undertaker including an indemnity to the petitioner against her payment of faculty fees.

72 See notes 61 and 69 above.

73 Re Chiddingfold Churchyard (1996) 8 JulyGoogle Scholar, sub nom Re Pamela Violet Eaton, deceased (1996) 4 Ecc LJ 689Google Scholar. Cons Ct. For a similar decision, see Re Victoria Road Cemetery. Farnborough (1997) 4 Ecc LJ 768. Cons Ct (Chancellor Goodman). Apparently a similar decision was reached by Chancellor Anglionby in Re David James Boyee (1997) 20 FebruaryGoogle Scholar. Cons Ct (unreported): see the note at (1997)4 Ecc LJ 769.

74 Re Marshehapel Reginald Dale, deceased(1997) 30 MayGoogle Scholar. Cons Ct (unreported). See report at p. 67.

75 Re Haslemere Churchyard (1997) 6 AugustGoogle Scholar. Cons Ct (unreported).

76 Of course, it is only the ratio decidendi of any particular case that creates a precedent. Nevertheless, a decision on a particular set of facts will raise expectations in the minds of other petitioners if their own cases are founded on identical facts. It may be argued that such an expectation in itself should be sufficient pastoral reason for granting a faculty. In Re Church Norton Churchyard [1989] Fam 37 at 43, sub nom Re Atkins [1989] 1 All ER 14 at 19. Cons Ct. Chancellor Quentin Edwards said that, although it has to be exercised reasonably, ‘the discretion has … been expressed to be quite unfettered’. Nevertheless, if there is a legal presumption against exhumation, that is in itself a fetter.

77 See note 73 above.

78 Re Sutton on the Forest (1997) 9 July. Cons Ct (unreported).

79 Re Church Norton Churchyard [1989] Fam 37, sub nom Re Atkins[1989] 1 All ER 14. Cons Ct.

80 Re Matheson [1958] 1 A11 ER 202. [1958] 1 WLR 246. Cons Ct.

81 The faculties were both ‘until further order’ in case some additional direction were needed. The timing was to be agreed with the incumbent ‘so that fresh words of committal may be said’. The petitioners were ordered to pay all the court and registry fees and expenses before a faculty was issued. No order was made against the objectors save that Mrs Crosby was ordered to indemnify the petitioners in full as she was ‘wholly responsible’.

82 Re Christ Church, Alsager (1997) 3 September, Cons Ct (unreported).

83 Presumably in relation to the practicalities of exhumation.

84 Re St Peter's Churchyard. Oughtrington [1993] 1 WLR 1440 at 1442. sub nom Re Smith [1994] 1 All ER 90 at 93. 94, Cons Ct: see the text to note 45 above.

85 The petitioner was ordered to pay the costs, including the costs of the attendance of the incumbent and archdeacon.

86 See the text following the reference to note 67 above.

87 Re Church Norton Churchyard [1989] Fam 37, sub nom Re Atkins [1989] 1 All ER 14. Cons Ct.

88 Sometimes the most difficult decision that the chancellor has to make is as to who should pay the registry fees and expenses: see note 85 above.

89 In the Diocese of Durham I granted a faculty to recover the deceased's wedding ring promised to one of her daughters but inadvertently buried with her. Citation was dispensed with and the faculty was granted within seven days of the burial. Recently, too. I granted a faculty to correct the deceased's name on the glass coffin plate as the error was causing increasing distress to the relatives.