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Faculty granted for sale of monument armour

18 October 2013

Stripped: the monument to Sir Thomas Hooke in St Lawrence's, Wootton

Stripped: the monument to Sir Thomas Hooke in St Lawrence's, Wootton

THE Chancellor of the diocese of Winchester granted a new faculty, following a faculty that had erroneously been granted, for the sale of a valuable antique piece of armour dating from the first half of the 16th century, which had hung above a monument in the church of St Lawrence's, Wootton.

The church dates from the medieval period. In a recess in the south wall of the chancel is a white marble monument to Sir Thomas Hooke, baronet, who died in 1677. He built and lived in a neighbouring manor, Tangier House. His effigy shows a bewigged gentleman wearing plate armour, resting on one arm with one hand on a helmet. About five feet above the monument is/was an iron bracket from which, until 1969, there hung a spiked metal helmet with visor ("the armet"), gauntlets, spurs, and a dagger.

In 1969, the gauntlet, spurs, and dagger were stolen. Because of its potential value, and the evident lack of security, the armet was placed in a bank vault in Basingstoke. The deposit proved expensive, and in 1974 a faculty was granted to permit the armet to go on indefinite loan to the Armouries of the Tower of London.

In 1996, much of the collection of armour at the Tower, including the armet, was transferred to the Royal Armouries Museum in Leeds. The armet was relegated to a storeroom, and remained on loan.

In March 2010, the PCC was short of funds, and consideration was given to the possible sale of the armet. The PCC unanimously ap-

proved its sale, and specialist London valuers and auctioneers gave a "conservative pre-sale estimate" of £30,000 to £40,000. A petition for a faculty was lodged, and in August 2010 the Consistory Court granted the faculty for the armet to be sold on the open market for the best possible price. In December 2010, the armet was sold in London at public auction for £45,000, the under-bidder being the Royal Armouries.

In granting the faculty, the Chancellor had failed to consider the possibility that, if the armet was a funerary monument to Sir Thomas, there might be in existence heirs to his estate, and also that, where a petition for a faculty concerned "an article of particular historic, architectural, archaeological, or artistic interest, and involves the . . . disposal of that article," rule 15 of the Faculty Jurisdiction Rules 2000 stated that, unless there had already been consultation with the Council for the Care of Churches, now the Church Buildings Council ("CBC"), notice should be served by the diocesan registrar on the Council.

In February 2011, the CBC wrote to the Registrar expressing concern about the situation, and in May 2011 the Chancellor directed that it was "just and expedient" to set aside the faculty. The CBC said that the armet was part of the funerary monument to Sir Thomas; so it was necessary to obtain the consent of any living heirs of Sir Thomas before good title could pass to a buyer, and that in any event the court should not order the sale.

Having considered the evidence of expert witnesses, the Chancellor, Christopher Harvey Clark QC, said that he was satisfied on the balance of probabilities that the armet formed part of a funerary monument set up after his death to the memory of Sir Thomas. It followed that, even though in a sense it was attached to the building, it never became part of the freehold of the church. It remained the property of the person by whom it was erected during his or her lifetime. On the death of the person placing it in position, it became the property of the heirs of Sir Thomas.

With the help of two genealogists, two heirs of Sir Thomas were found: Sir John Hamilton Spencer-Smith, and James S. Lee. By a deed of gift, dated 28 February 2012, the former transferred the whole of his ownership in the armet to the churchwardens of the parish of Oakley with Wootton St Lawrence, with intent to give effect to the sale of the armet in exchange for the PCC's undertaking to maintain and repair Sir Thomas's tomb.

Mr Lee also agreed to the sale, and to transfer his interest in the armet, on condition that he received half the sale price. As a result, the armet was then owned jointly by the churchwardens and Mr Lee in equal shares, and they were able to give good title under a sale.

The crucial but contentious issue, however, was whether the sale should be permitted.

The petitioners argued that the armet should be sold, since it had played no part in the life of the church for more than 40 years, and was in effect redundant to the needs of the church; that for security reasons there was no prospect of the armet's ever returning to the church, and it was likely to stay in a museum indefinitely; that there was no aesthetic or artistic connection between the armet and the memorial; and that its absence had not affected the quality of the marble effigy of Sir Thomas, or the aesthetic pleasure to be derived from it.

Further, the petitioners said that the Hooke family's connection with the parish had ceased in 1710, when Tangier House was sold. That contrasted with the centuries-old link between some families and the village where they lived. The church was now facing very real financial difficulties, which would be alleviated by the proceeds of sale of the armet, the petitioners argued.

The CBC opposed the sale, and said that the concept of redundancy was inappropriate in this case, because, unlike, for example, old bells no longer of any use, the armet had not become redundant, since it never had a practical use. It simply formed part of the funerary accoutrements to the memorial of Sir Thomas.

If the court upheld the argument that the armet was redundant, the CBC said, then every valuable article which had, for reasons of security, been deposited for any length of time in a cathedral treasury or a museum could be said to be redundant; so it could be a precedent for other parishes to seek faculties for sale. Mere financial need that fell short of a financial emergency should not justify the sale of an article of artistic or historic value, the CBC argued.

The petitioners replied that they had acted in good faith, and, if the court were to refuse a faculty now, they could find themselves facing legal proceedings for breach of contract, and in particular for breach of warranty of title. Those circumstances, they said, made their case one that could be decided on very specific grounds that would not set a precedent.

The Chancellor ruled that in all the circumstances he was satisfied that the petitioners had proved their case so as to justify an order for sale of the armet. He had been troubled by the suggestion that an order for sale could lead to an item of historic or artistic value going to a foreign buyer.

It was for the Export Licensing Committee, however, to decide whether any particular item should be allowed to go abroad, or whether a British museum or gallery should be given the opportunity to match the sale price in order to retain the article in this country, he said. If the museum or gallery had insufficient funds, it could ask the Treasury for assistance and/or launch a public appeal.

The availability or otherwise of state funding for national museums or galleries was not, in the Chancellor's judgment, a relevant factor for the Consistory Court to take into consideration.

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