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already exhausted, and, perhaps, abused, the privilege of quotation.
Of the Appendix, which consists of various specimens of the Romaic, we need only say, that we consider it as a valuable supplement to this entertaining Pilgrimage.' National songs, and popular works of amusement, throw no small light on the manners of a people; they are materials which most travellers have within their reach, but which they almost always disdain to collect. Lord Byron has shewn a better taste; and it is to be hoped that his example will, in future, be generally followed. . It is now time to take leave--we hope not a long leave-of Childe Harold's migrations; but we are unwilling to conclude our article without repeating our thanks to the author for the amusement which he has afforded us. The applause which he has received has been very general, and, in our opinion, well deserved. We think that the poem exhibits some marks of carelessness, many of caprice, but many also of sterling genius. On the latter we have forborne to expatiate, because we apprehend that our readers are quite as well qualified as ourselves to estimate the merits of pleasing versification, of lively conception, and of accurate expression. Of those errors of carelessness from which few poems are, in the first instance, wholly exempt, we have not attempted to form a catalogue, because they can scarcely fail to be discovered by the author, and may be silently corrected in a future edition. But it was our duty attentively to search for, and honestly to point out the faults arising from caprice, or from a disregard of general opinion; because it is a too common, though a very mischievous. prejudice, to suppose that genius and eccentricity are usual and natural companions; and that, to discourage extravagance is to check the growth of excellence. Lord Byron has shewn that his confidence in his own powers is not to be subdued by illiberal and unmerited censure; and we are sure that it will not be diminished by • our animadversions: we are not sure that we should have better
consulted his future fame, or our own character for candour, if we had expressed our sense of his talents in terms of more unqualified panegyric.
ART. XI. The Judgment delivered Dec. 11, 1809, by the Right
Hon. Sir John Nicholl, Knt. LL. D. Official Principal of the. Arches of Canterbury; upon the Admission of Articles exhibited in a Cause of Office promoted by Kemp against Wickes, Clerk, for refusing to bury an Infant Child of two of his Parishioners, who had been baptized by a Dissenting Minister. pp. 47 London, Butterworth. 1810.
A Respectful Examination of the Judgment, 8c. in a Letter to Sir
John Nicholl. By the Rev. Charles Daubeney, LL. B. Archdeacon of Sarum. Bath, Meyler and Son; London, Riving
tons. 1811. Remarks upon a late Decision in the Court of Arches, &c. By
the Rev. George Hutton, D. D. Vicar of Sutterton, &c. Boston,
Kelsey; London, Baldwin. 1811.
tained in these pamphlets; not because we considered the question as unimportant, or the parties engaged in it as undeserving of attention, but because, in truth, we lamented that such a dispute had ever arisen, and were unwilling by any remarks of ours to prolong its existence or increase its notoriety. Circumstances, however, have occurred to make us depart from this determination. We have heard of late from various quarters that the question has not been suffered to sink into oblivion; that persons of high authority in the church have thought it necessary to raise their voice. against the dangerous consequences of Sir J. Nicholl's judgment; and, in particular, that one learned prelate has not only addressed his clergy on the subject, but has also circulated some printed • Reflections,' in which he endeavours to prove that the decision of the Court of Arches is unfounded, and that nothing less than the integrity and stability of the Established Church is involved in the issue. Even the labours of Dr. Hutton, though they prove nothing else, shew that the question is not yet at rest. His pamphlet, indeed, is invested with somewhat more of authority than its intrinsic merits could claim, from being dedicated by permission to the Lord Bishop of Peterborough, within whose diocese the case arose, which has given origin to so much discussion.
The facts of this case are, in brief, as follows; the Rev. J. W. Wickes, Rector of Wardly, refused to bury Hannah, the infant daughter of John and Mary Swingler, protestant dissenters of the denomination of Calvinistic Independents, assigning, as the reason of his refusal, the baptism of the said infant by a minister, preacher, or teacher of the same class of dissenters, which baptism was with water, and in the name of the Father, and of the Son, and of the Holy Ghost. For this refusal articles were exhibited against Mr. Wickes in the Arches Court of Canterbury; the admission of these articles was opposed on the plea that, if the facts were true, still the defendant had been guilty of no offence. When, after a patient hearing of the whole cause, the official principal, Sir John Nicholl, decided that the minister, in refusing to bury the child, had acted illegally, and consequently admitted the articles exhibited against him.
It is our intention to lay before our readers an impartial view of the grounds of this decree, and of the arguments by which it has been controverted: we shall not scruple to give our own opinion of ore merits of the controversy, and to make such observations as may occur to us, on the principal points involved in it.
The 68th canon, and the rubric before the office of burial, comprise the whole law of the case. The canon ordains that no minister shall refuse to bury any corpse brought to the church or church-yard, except the party deceased were denounced excommunicated majori excommunicatione for some grievous and notorious criine.' The rubric adds two other exceptions expressly. Here is to be noted that the office ensuing is not be used for any that die unbaptized or excommunicate, or have laid violent hands on themselves.' In the present instance the question is whether this infant did die unbaptized within the true meaning of the rubric. This, at least, is considered to be the only point at issue in the judgment of Sir John Nicholl; other inatters are introduced by him, but incidentally, or for the sake of illustration.
To ascertain the meaning of the disputed word, the learned judge has recourse to the ordinary rules of construction ; first, he considers it in its general sense and unconnected with the rubric, and states it then to mean not baptized at all, not initiated into the Christian church.'-p. 11. He next examines whether in the context there be any thing to vary or limit this general meaning. The context associates with the unbaptized, persoas excommunicate, and suicides, obviously not contradicting, but, in the opinion of Sir John Nicholl, rather confirming the former construction, that persons unbaptized are those who are not Christians at all; for such, he thinks, excommunicates also, and suicides are to be deemeð.
Having thus considered the word in its general meaning and in its context, he notices another rule of construction, namely, that the general law is to be construed favourably, and the exception strictly. Here the general law is, that burial is to be refused to no person; and, since exceptions must not be extended by mere implication so as to limit the general law, it would have been nem cessary, instead of using the term 'unbaptized,' to have said not baptized according to the form prescribed by the book of Common Prayer,' if it had been the intention of the legislator to give to his exception so large a meaning.
He next proceeds to examine whether there be any thing in the history of the law to confirm or disprove the interpretation, to which the course of his argument hitherto has led him : particularly whether lay-baptism has been recognized as valid by the church of England; for if it has, he contends that the church cannot mean
by the word “unbaptized' to exclude from burial all persons who have not been baptized according to the forms of its liturgy. .
In prosecuting this inquiry, he first refers to the law of the English church before the Reformation, and deducing it both from the general canou law and also from the particular constitutions of this country, he finds that down to that period lay-baptisni was al. lowed and practised; it was regular and prescribed in cases of necessity; and in all cases, when administered with water, in the name of the Holy Trinity by a laic, a schismatic or a heretic, it was $0 complete and valid that it was by no means to be repeated.' p. 21.
Thus the matter stood at the time of the Reformation; and that period is an important one: for if lay-baptism had been considered as one of the errors of the Church of Rome, it would then have been corrected; but the fact is otherwise, for the use of laybaptism was manifestly continued by the English reformed church.' In proof of this assertion, he adduces the rubrics before the office of private baptism in the reigns of Edward VI. and Queen Elizabeth. Such was the state of things till the time of James I, except that in 1575 an article was passed by convocation but rejected by the crown, restraining private baptism to the lawful minister.
On the accession of James I. conferences were held at Hampton Court for the purpose of revising and reconsidering the Liturgy, and particularly that part of it which relates to private baptism. It was here agreed so far to alter the rubric, as to direct that private baptism should be administered by a lawful minister ; but neither the king'(who disapproved the practice of lay-baptism) nor any of the bishops, or others, present, maintained that such baptism was invalid: on the contrary, the king himself expressly declared, that a person so baptized ought not to be baptized again.
The rubric at that time agreed on, was not confirmed by parliament, and owed whatever force it had to a proclamation of the king, in which he speaks of the result of the conference as utterly unimportant. We have thought meet, that some small matters might rather be explained than changed.' From these words, Sir John Nicholl contends, that so great a change in the constitution of the church could not have been intended as that baptism by a layman, administered with water and the proper invocation, which had hitherto, even since the Reformation, been considered as valid, should now be regarded as wholly null and void, and that such a baptism could bear re-baptization.-p. 25.
In construing all laws,' he farther argues, 'it is proper to inquire how the law previously stood; for it will require more express and distinct terms to abrogate an old established law than to provide for a new case, upon which the former lav has been wholly silent; consequently
if this new rubric had been intended to invalidate the old law in this respect, and to ordain that all other baptism, except that by a lawful minister, should be considered as absolutely null and void, the new law would most expressly and distinctly have declared it.'
But so far from this, the rubric itself, as published by King James, proves the contrary. Certain questions are to be asked, for the purpose of ascertaining whether the child has been already baptized or not. The order in which these questions run, and the preamble to the third and fourth, interposed in the middle of the queries, because some things essential to the sacrament may happen to be omitted, therefore I demand of you with what matter was this child baptized with what words was this child baptized ? prove that water and the invocation of the Holy Trinity were held to be the duo necessaria. This conclusion is strengthened by the concluding fact of the rubric, which directs, that if there be a doubt respecting the matter or the invocation, the child is to be baptized anew, and even this conditionally (so eager is the church to avoid iteration ;) but if there be a doubt respecting the minister, there is no order for even a conditional re-baptization. Hence,' says Sir John Nicholl, “it is obvious, that the person performing the baptism was not essential by the rubric.'-p. 29.
After the Restoration, this rubric was revised and confirmed by parliament, and no alteration was made except in the title of the office, in which the words 'lawful minister,' which had before stood in it, were omitted.
So the matter still remains; and after tracing the law through the several stages of its history, it appears to the learned judge impossible to entertain a reasonable doubt, that the English church did at all times hold baptism with water in the name of the Holy. Trinity to be valid baptism, though administered by a layman or any other person. If this be so, it follows, that the prohibition of burial to the unbaptized in the rubric before the office of burial, cannot mean that it should be refused to persons not baptized by a lawful minister in the form of the Book of Common Prayer, since the church itself holds persons to be not unbaptized (because it holds them to be validly baptized) who have been baptized with water and the proper invocation by any other person and in any other form.'--p. 31.
This conclusion is strengthened by reference to some particulars in the history of the times at which the law was made. During the usurpation, great numbers of the inhabitants. of this country must have received baptism at the hands of ministers not episcopally ordained. Yet, after the Restoration, there not only was no direction given to baptize such persons anew, but one of the first cares of the bishops was to go about confirming, among others, the