[Lead Image: Archaeosoup]
The Cambridge educated medievalist Montague Rhodes [M.R.] James had a famous side line in ghost stories, often written as delightfully thrilling Christmas Eve entertainments and in constructing his tales James also liked to employ three narrative tropes,
1. The story would be set in a location which could be seen as a character in its own right such as an ancient landscape, East Anglia with its rich folklore was a favourite, with an ancient university or a historic town often also featuring,
2. A McGuffin to drive the plot, often an ancient book or antiquarian object, which channels a supernatural challenge, often from beyond the grave, to endanger the third trope,
3. An often rather unworldly academic scholar who features as a central character.
In James’ own words in a preface to a collection of his work, stories such as “Oh, Whistle, and I’ll Come to you, My Lad” and were designed to,
“put the reader into the position of saying to himself, ‘If I’m not very careful, something of this kind may happen to me!'”
Of course, James simply wanted to entertain his audience, but exactly one year ago, on 28 October 2022 the well meaning scholars of the Pontefract and District Archaeological Society [PDAS] found themselves on the wrong side of a judgement in the Consistory Court of the Diocese of Leeds, in a manner which is not just an extraordinary story. It is a story where every archaeologists who deals with human remains needs to ask,
“Am I sure something of this kind could not happen to me?”
Part of a tradition of church legal apparatus dating back to the Middle Ages, Consistory Courts are a particular feature of the Church of England and in the twenty first century a significant part of the powers left to the courts relate to the control of consecrated property, that is church buildings and most significantly with regard to this story, churchyards.
Their judgements do not normally qualify as essential reading for archaeologists.
However, Judgement 182837-0061 [22-16C] in the Matter of All Saints Pontefract does so qualify.
Like many contemporary archaeological stories, far from starting with a churchyard, this one actually begins with a new development. In this case work proposed for the site of Pontefract Royal Infirmary in 2011.
The development work was to be undertaken by Mid Yorkshire Hospitals NHS Trust which was using permitted development rights granted under earlier planning permissions to undertake the work. The contractor to the Trust was Balfour Beatty.
However, that the work, which included grubbing out foundations and levelling terraces, appeared to have been given the green light without an archaeological impact study, which should be routine, concerned a number of local civic bodies including in addition to PDAS, Pontefract Civic Society and the West Yorkshire Archaeological Advisory Service.
They believed the work was intrusive and could impact on the remains of the known or suspected archaeology relating to the known Friary site where archaeology had been recorded intermittently since the 1960’s, its graveyard and early post medieval burials.
The result of these interventions was that the proposed development was amended to preserve potential archaeology in situ.
However, for reasons which are beyond the scope of this article, an arrangement was made involving, it appears, the West Yorkshire Archaeology Advisory Service, whereby work on an area now described as “unaffected by development” would be undertaken.
thePipeLine has seen the project design for the work which was produced by the West Yorkshire Archaeology Advisory Service.
This states that the work was being undertaken as a “community archaeology project”.
Funded by another party to the development, Consort Healthcare, the work would be led not by a professional unit, but by the Pontefract and District Archaeological Society.
Founded in 1957, according to its website the Society now boasts over one hundred members, while its President is founder director of the York Archaeological Trust Peter Addyman CBE and its Vice President is Tony Wilmot, senior archaeologist with Historic England.
Unusually for many locally based archaeological societies the PDAS still undertakes regular fieldwork and it was that experience, including experience on the Infirmary site dating back to the 1960’s, which seemed to qualify the group to run the project under its auspices, facilitated by a professional site director who was brought in to run the dig.
In particular because the excavation was to take place on the site of a monastic burial ground, as a routine part of the preparation for the Project an Ministry of Justice Licence under Section 25 of the Burials Act 1857 was issued to two named persons operating on behalf of the Pontefract and District Archaeological Society. Under the terms of the licence Dr Janet McNaught and Mr David Wandless would be permitted to remove any human remains from the infirmary site to a place of safety privacy and decency.
This was on condition the remains were reinterred,
“… in a burial ground where interments may legally take place [our italics]
or else be retained in accordance with the requirements of the Wakefield County Archaeologist.”
The terms of the licence had to be actioned by 31 December 2013, subsequently this deadline was extended by a year to 31 December 2014.
It is believed a further extension was put in place via a phone call to the Ministry of Justice, but no record of this has been found to date.
At the time the licence was granted Dr McNaught was finds officer for the PDAS. She is a radiographer by profession, with a longstanding interest in archaeology and possesses a PhD in an aspect of archaeological osteology from Durham University, awarded in 2007.
The timeline recorded by Mr Glyn Samuel, the Vice Chancellor of the Consistory Court, shows that Dr McNaught and WDAS believed it had discharged its responsibilities when, on 27 March 2015, the partial skeletal remains of the two people were interred in a 2006 excavation trench in the churchyard of St Nicholas. Acting with ecumenical intentions a brief service was conducted by the Reverend Harry Merrick, who had suggested All Saints as a location for the burial, and a Catholic Priest, Father Simon Lodge, who said an Our Father in Latin as well as a Hail Mary and a Glory Be for the deceased.
This was deemed to be fitting as the two individuals, one male and one female, had been carbon dated to the 14th century and would have observed the Roman Catholic tradition.
There was just one problem. As the judgment explained, it was not the fact that a Roman Catholic Priest had led part of the very short funeral service in an Anglican churchyard. Anglican liturgical practice allows for this. It was the fact that the burial ground at All Saints been closed by an Order in Council by Queen Victoria on 20 March 1857 and the burial was thus not legal under section 3 of the Burial Act 1853 and could not have been legal for over one hundred and fifty years.
Indeed, those responsible for the burial, if discovered, would be subject to a potential criminal sanction in the shape of a fine.
It was PDAS which effectively blew the whistle on its own illegality when in January 2022 Dr McNaught e-mailed the new Priest in Charge at All Saints, the Reverend Canon June Lawson, to ask for her approval to place a memorial marker which the Society had purchased at the site of the burial.
This was the first Canon Lawson had heard of what had been done and as she investigated she uncovered what she described as a “troubling situation”, particularly troubling as the burial had apparently not been entered into the church burial plan or register.
For obvious reasons, in the UK you cannot just bury human remains anywhere you like without a record and far from being the Ecumenical matter the participants seem to have intended the burial was now a legal matter.
As required the reverend Canon Lawson mow petitioned the Consistory Court of the Anglican Diocese of Leeds to adjudicate regarding the issue.
There case ended up on the desk of the Deputy Chancellor of the Diocese, Glyn Samuel.
Mr Samuel’s judgement was made on the basis of written submissions, he states he was keen to save costs and treat the case proportionately, and there was no adverbial proceedings or cross examination of witnesses, but, while he states that those circumstances meant he would have to proceed with caution as regard the evidence, the case laid out in his judgement is clear.
The explanation as to how the illegal burial had come about seemed to lie in the conduct of the Reverend Harry Merrick.
While it is made clear several times in the judgement that everyone involved appears to have acted with the best of intentions, it seemed clear that, for reasons which the report makes no attempt to judge, the Reverend Merrick had failed to follow what, to him, should have been standard church procedure in suggesting and then officiating, with his Catholic colleague, at the burial at All Saints.
Unfortunately the Reverend Merrick had since died and the available records provided no explanation for his actions.
Neither were the Reverend Merrick’s line managers, the then Priest in Charge of St Nicholas the Reverend Victor Iwanuschak, and the Bishop of Leeds, Tony Robinson [no not that one!], able to shed much light on what had happened.
The Reverend Iwanuschak said that it was well known that the churchyard at All Saints was closed for burials and if asked he would have been clear that the proposed burial could not take place, while Bishop Tony told the court that in spite of minutes from a PDAS meeting which suggested he had granted permission for the burial he was certain that this was not the case.
Mr Samuel saw no reason to doubt the bishop’s statement.
The judgement also observed that it would be surprising if members of the PDAS did not know that burials in the area, including Roman Catholic burials, took place in the town’s multidenominational municipal cemetery. A position explained by the Roman Catholic diocese when it was approached initially to provide a burial site for the remains of the two individuals.
Essentially the conclusion of the court was that the Reverend Merrick, for reasons we will likely never know, exceeded his authority and acted unlawfully. Nonetheless, the court held that Dr McNaught and Mr Wandless on behalf of PDAS, should have asked more questions, particularly as the Department of Justice Licence required them to ensure the remains were reinterred in a legal burial ground, not just take someone else’s word for it.
Of course, regardless of the precise circumstances of the event, the problem for the Church of England was now what to do about the illegal burial in one of its disused churchyards of two inhabitants of medieval Pontefract.
Apart from Historic England, which chose not to express a view, everyone asked to comment of the legal implications of the case agreed that the burial was, on the evidence available, clearly unlawful and required a resolution.
That resolution came down to one of two choices, either to,
1. Exhume the remains, return them to PDAS and seek a reburial in a recognised burial ground, or
2. Let the matter lie on the record as an “irregularity”.
This last option was complicated by Mr Richard Findley, speaking for the Ministry of Justice which issued the burial licence in the first place, who stated,
“We [the MOJ] do not feel that it would be correct for us to agree to the suggested option of “leave the matter to lie as an irregularity” as we feel the matter cannot be left to lie given that the burial is illegal.”
However, an advantage of English Law and of its unwritten constitution, is that it can be infinitely flexible and in the end the pragmatic decision was taken to rectify the situation created by an Order in Council in the 19th century with another Order In Council.
Given the known interest of King Charles III in matters of faith, it is perhaps appropriate that at one of the first meetings of the new King’s Privy Council on 12 October 2022 the Council directed that,
“…the burial may now be allowed of the unknown human remains from the 1340’s to the 1390’s exhumed from the former St Richard’s Dominican Friary at the then disused Pontefract General Infirmary, within the burial ground of All Saints Churchyard, Pontefract West Yorkshire.”
In a letter the Ministry of Justice accepted the work around stating,
“…obviously this [variation to the Order in Council] would not be backdated but it would mean the error is corrected.”
However, while the unknown medieval dead could now rest in peace there was still no peace for the Pontefract and District Archaeological Society.
Undoubtedly in the wrong legally, even though Deputy Chancellor Glyn Samuel directed that the costs be set at 50% of the actual total and declining his own fee for preparing the judgement, the society still faced legal costs of £3388.
Discovering that to fight the verdict of the Consistory Court would cost more the costs imposed, Society Treasurer Anne Hawkins told the Yorkshire Post that,
“We all thought we had done the right thing. We are all amateurs. We had not expected to be landed with a bill like that.”
She added that on account of the demand to pay costs the Society now faced the risk of bankruptcy.
However, by mid February  the remaining costs were also waived, leading Ms Hawkins to state her satisfaction that the “precarious financial position of the Society” had been recognised, as well as the benefits of the work of the Society to the people of the area,
“We’re relieved that sanity has prevailed.” she commented, adding “It’s a relief to put it all behind us and get on with the stuff we enjoy doing.”
Of course, to balance the Society’s view it is necessary to point out that Mr Samuel found that there had been,
“…at least borderline recklessness “,
in the way the PDAS had handled the MOJ licence, particularly that its representatives had failed to ask the most basic question of the burial plan put forward by the Reverend Merrick, namely- “Is this legal and in accordance with the terms of our licence?”
As Mr Samuel concluded, the Society had been wrong to rely on the judgement of a junior member of the clergy.
Although it might be thought also that as a fail safe there should be at least a check and sign off from the Ministry of Justice, or the county archaeologist, to ensure the conditions of the burial licence were being properly applied?
In the twenty-first century 31 October, Halloween, and the next day the the Feast of All Souls, the famous Mexican el Día de Muertos are, are a time for, often secular, celebration, with trick-or-treaters in fancy dress disturbing many a suburban evening, TV schedules full of the umpteenth reshowing of the Halloween horror franchise and with supermarket aisles laden with stacks of Fanta coloured pumpkins destined to recreate the ancient tradition, dating from at least the nineteenth century, of the jack-o’-lantern.
However, amid this secularisation, commercialisation, and to some trivialisation, of one of our deepest, most ancient, and most sensitive cultural relationships, the relationship with death and commemoration, it is still possible to learn lessons about the legal calibration of those relationships.
The Pontefract and District Archaeological Society may not have been haunted by the vengeful wraith of a medieval friar, but the discovery of the remains in the former burial ground of the Dominican Friary of Our Lady, St Richard and St Dominic and their subsequent treatment, represents a cautionary tale for archaeologists in the best tradition of M R James.
And perhaps of Father Ted?
The proper treatment of these medieval dead was, after all, an ecumenical matter, albeit illegal and the issue was settled ecumenically with some sensitivity towards all involved.
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