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Mr. Wickes which has given rise to these publications, and which we have already noticed in reviewing two illiberalpamphlets with pedantic titles, written on the same subject by himself.* We consider the decision, which has been the result, as advantageous to all parties. It will prevent the clergy from exposing themselves to ecclesiastical censure, and assure to the dissenters a right which most clearly belongs to them both in law and in equity, while it may remove the prejudices and abate the intemperance of a certain class of polemical divines.
The Letter to Sir John Nicholl is such a wretched compound of dulness, bigotry, and impertinence, that we can hardly believe it the production of a clergyman; and shall despatch it as concisely as possible. Its leading points are, that there is no law to require a clergyman of the establishment to bury a dissenter, that the legality of the baptism of such dissenter was not the point at issue, that "the opinion of Sir John Nicholl does not constitute law,' that there is a great difference. "between tolerating dissenting teachers and making them legal ministers,' and that any attempt on the part of the dissenters to compel a minister of the church of England to act in his office against his conscience, whilst it is in direct contradiction to the toleration they enjoy, certainly savours more of the spirit of persecution, than it does of charity.?
Placed as they (the clergy) are,' he says, in the most distressing of all situations, continually liable, poor souls ! to be squeezed to death, between the conscientious pressure of canonical obedience and ecclesiastical subscription on one side, and the legal screw of Sir John Nicholl on the other; and considering, at the same time, that there is at present no power in this country capable of absolving them from their professional oaths ; I can think but of one remedy, which, reflecting that we no longer live in the age of martyrs, is calculated to give them relief: which is this. That the bishops, the spiritual governors of our church, hiding their diminished heads, should in a body wait on the pronouncer of the decision in question, and formally propose, that in order to take away the possibility of any future misconstruction of our liturgy and articles, and to relieve their distressed clergy from those legal conse. quences which might otherwise attach to the conscientious discharge of their ministerial duty, all oaths and subscriptions should be immediately dispensed with ; and, as a succedaneum for them, that Sir John Nicholl be forth with placed in the chair, as their virtual POPÉ ; whose infallible ipse dixit shall henceforth be acknowledged to constitute the unerring standard of direction for the humbled, the disgraced, the fallen church of England.' pp. 38, 39. Instead of making any comment either on the wisdom or
* Perlege si vis : Accipe si vis. See Ecl. Rev. Vol. V. p. 766.
the wit of the reverend pamphleteer, we shall proceed to give a suiniary view of Sir John Nicholl's judgement; a performance so masterly and decisive, that, if the clergyman'' had waited to peruse before he undertook to impugn it, he would neither have troubled himself to write this Letter,'. nor disgraced himself by publishing it. .
The suit, in which this judgement was pronounced, appears, to have been instituted with a view to determine the question, ti whether dissenters, or persons not baptized by clergymen, are intitled to burial according to the ritual of the establishment.. This question had never before been formally settled by a sentence of the ecclesiastical courts. The right had in general been admitted, or at least the service performed,, by the clergy, when called upon for that purpose. Individuals among them, however, had objected and refused ; the Committee for protecting the Civil Rights of the Dissenters, as we understand, had in several such cases, at different times, been applied to for advice, and had requested the interference, of the respective diocesans of the offending clergymen, to, admonish them riot to refuse in future. Though such re-, quests, we believe, had been very handsomely complied with, yet as the right still rested only in opinion, and had not been officially recognized as law in the ecclesiastical courts, it was highly expedient that some opportunity should be taken of putting it entirely out of doubt, to prevent the recurrence of those vexations and dissensions which the denial of it would naturally produce. "If any of our readers have looked into Mr. Wickes's pamphlets, they will not need to be informed that he was exactly the proper person to be selected for the experiment. The articles exhibited against . him state, that he did in August, 1808, refuse to bury Hannah Swingler, the infant daughter of John Swingler and Mary his wife, of the parish of Wardly cum Belton, which infant had been baptized according to the form of baptism generally observed among Calvinistic Independents, (viz. with water, and in the name of the Father, and of the Son, and of the Holy Ghost,) by a minister of that class in all respects duly qualified according to law; that Mr. Wickes was sufficiently apprized of such baptism, but assigned this very fact as the ground of his refusal. The judgement of the court was very properly taken on the exhibition of the articles, or bill of indictment; it being contended by the defendant, that the refusal alledged against him, supposing it proved, would in reality be no offence. " It now appears, by the judgement of the court, that this refusal had been constituted an offence by the 68th canon, which is as follows :
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“No minister shall refuse or delay to christen any child according to the form of the Book of Common Prayer that is brought to the church to him upon Sundays or Holidays to be christened, or to bury any corpse that is brought to the church or church-yard (convenient warning: being given him thereof before) in such manner and form as is prescribed in the Book of Common Prayer : and if he shall refuse to christen the one or bury the other except the party deceased were denounced excommunicated, majori excommunicatione, for some grievous and notorious crime (and no man able to testify of his repentance) he shall be sus. pended by the bishop of the diocese from his ministry for the space of three months.” - This canon, however, is limited by the following rubric, prefixed to the office for burial in the book of Common Prayer :-" Here is to be noted, that the office ensuing is not to be used for any that die unbaptized, or excommunicate, or have laid violento hands upon themselves." The question is therefore reduced to the interpretation of the terin“ unbaptized.” If the child was not baptized, in the sense of the church of England, it would have been a transgression of the rubric for Mr. Wickes to comply with the request ; if it was baptized, it must have been a transgression of the canon to refuse. It was contended by the defendant, that every person was unbaptized,' who had not been baptized according to the prescribed form, and by a lawful minister, of the established church. .
To ascertain the true sense of the term, the learned judge resorts to the ordinary rules of construction ; first considering the term in its obvious and general sense, and secondly examining whether the context or history of the law furnishes any ground for affixing a special sense. According to the general and ordinary sense of the term, it is evident the infant did not die unbaptized.' What particular sense the term bears in the rubric, is then to be investigated ; and first, by examining the context.
Considering that unbaptized persons are put in association with excommunicated persons and suicides, the construction is argued to be, that the persons excluded from bu. rial are such only as are held to be excluded from the church universal--to be divested of the Christian character; and not all those who do not conform to the church of England.
Proceeding to ascertain the sense of the term from the history of the law, the learned judge notices another rule of construction, that the general law is to be construed favourably, but the exception strictly. · He then observes that 'the law of the Church of England, and its history, are to be deduced from the ancient general canon law,—from the particular constitutions made to regulate the English Church,
from our own canons --from the rubric, and from any acts of Parliament that may have passed upon the subject ; and the whole may be illustrated, also, by the writings of eminent persons.' (p. 16.) From these, successively, it is argued with great ability, and in our opinion with complete success, that the church of England recognizes lay-baptism to be, though irregular, yet calid, and so valid, that the person who has been baptized by a laic cannot properly be baptized again :* whence it results, that the church of England cannot have meant, by the term unbaptized' in the rubric, to exclude all persons from burial who have not been baptized according to its forms. From the old canon law, it may be sufficient to cite only two passages :- Non reiteratur baptisma quod in nomine Sunctie Trinitatis ministratur;' and · Valet baptisma etsi per laicos ministratur.' From the Legatine Constitutions, (those made by the Pope's legates, Otho Legate of Gregory IX, and Othobon Legate of Clement IV,) and from the Provincial Constitutions (those made in convocation under several archbishops) collected by Lyndwood, the proofs to the same effect are equally explicit. . So the matter stood at the time of the Reformation ;-subsequent to which, moreover, it appears that the English church has allowed of lay-baptism, and in case of necessity enjoined it. The rubrics of Ed ward VI, and Elizabeth, direct, concerning the private baptism of infants, as follows:- Let those that be present call upon God for his grace, and say the Lord's prayer if the time will suffer: and then one of them shall name the child and dip him in the water, or pour the water upon him, saying these words, “ I baptize thee in the name,” &c. "The same rubric, although it enjoins people not to baptize their children at home, except in cases of necessity, yet, lest the necessity should arise, expressly directs the pastors to instruct their parishioners in the form of doing it.' (p. 23.) In the Hampton-court conferences, king James expressed his disapproba
* If the learned judge had thought it necessary to go higher, and refer to the doctrine of the ancient church on this subject, he would have had no difficulty in obtaining the suffrage of the fathers. Tertullian, for instance : Dandi (sc. baptismum) quidem habet jus summus sacerdos, qui est episcopus. Dehinc presbyteri et diaconi; non tamen sine episcopi auctoritate, propter ecclesiæ honorem. Quo salvo, salva pax est." Alio. quin etiam laicis jus est. (De Baptismo. g 18.) The reason of this is well known to have been the notion, that baptism was essential to salvation ; a notion which we, as well as Sir John Nicholl, shall decline discussing. Tertullian expressly says that a laic, who should refuse to baptize in a case of emergency, would be guilty of the perdition of a fellow creature ; Quo. niam reus erit perditi hominis, si supersederit præstare quod libere pocuit. (Ib.)
'tion of lay-baptism; but neither he nor his prelates maintained .that baptism, if de facto performed by a laic, was invalid, and he expressly declared that baptism in such a case ought not to be repeated. As he thought it more orderly and proper, however, for baptism even in private to be administered by a clergyman, the rubric of that service was altered, and the term lawful minister introduced. Still lay-baptism was not prohibited or declared invalid ; it was irregular, and contrary to the rubric, but not invalid. The case of marriage is analogous. Previous to the Marriage Act, marriages solemnized between minors and in a private house were valid, though prohibited by the laws of the church and the state, and though exposing the parties to punishment. The cono cluding part of the rubric of baptism represents only two things as essential, the use of water and the invocation of the Trinity: in case it shall not appear certain that these essentials were complied with in the private baptism, thenand not else the clergyman is to baptize the child publicly in the conditional form there enjoined, “If thou art not already baptized, I baptize thee,” &c. The history of the practice of the church of England, in this respect, is conformable to that of the law. After the Restoration, it is notorious that great numbers of persons, who had been baptized by presbyterian ministers, under the commonwealth, were confirmed, ordained, and buried, without any scruple, by the bishops and ministers of the episcopal establishment. The same has always been the practice, in the case of dissenters and Roman Catholics becoming members or ministers of the church of
England. i • The learned judge goes on to observe, that, since the
passing of the Toleration Act, it cannot be pretended that the acts of nonconformists are illegal acts, and therefore are - not to be recognized in a court of justice. He quotes the opinion of Judge Foster, in the famous case of Evans vi the Chamberlain of London--" The act of Toleration is not to be considered merely as an act of connivance; it was made that the public worship of Protestant dissenters might be legal, and they might be intitled to the public protection." He also quotes the opinion of Lord Mansfield, “ Conscience is not controllable by human laws, nor amenable to human tribunals; and attempts to force conscience will never produce conviction. Nonconformity is no offence by the common law, and the pains and penalties for nonconformity to the established rites of the church are repealed by the act of Toleration." ....
The doctrine of the church of England as to the validity of lay-baptism being thus established by an un