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by the word “unbaptized to exclude from þurial 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-baptism 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 so complete and valid that it was by no means to be repeated.'
• 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 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 cburch 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 lahv 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
person 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
and in any
very persons who had been so baptized. Converts from the Presbyterians and other protestant dissenters, as well as from the Papists have become members and ministers of the church of England, yet have not been re-baptized; if therefore the question be whether the term ‘unbaptized' means 'not baptized by a lawful minister of the church of England, and according to the form prescribed by that church ;' and if no dissenters, whether Papists or Protestants are so baptized, and yet are considered by the practice and constitution of our law as baptized, there is an end of the question.
Such is the course of Sir John Nicholl's main argument. Wo omit much of the subordinate matter, to some of the most interesting particulars of which we may have occasion to refer hereafter, and shall now proceed to give a summary view of the reasoning of bis opponents.
Of ihese the most considerable is the Archdeacon of Sarum; a gentleman already known for his zeal in the cause of church union, and for the strenuousness with which he has defended it. Dr. Hutton is a disputant of a very inferior order. Though he has had the advantage of at least seeing the arguments of those who had preceded him, though he professes that his object is to dwell only on the stronger and more prominent points of the case, and to.compress them into a smaller compass for the benefit of more cursory readers, he seems absolutely ignorant of the real point at issue, and not to have given himself the trouble of comprehending the reasoning of either his friends or his adversaries. His tract would not have drawn from us even this notice were it vot, as we have before said, ushered into the world with somewhat of an official air, and had he not mixed
effusion with more of pertness and incivility towards the learned person, whose decision he arraigns, than any real strength of argument could redeem. Of one or two anonymous publications on the subject it is not necessary that we should say any thing.
Archideacon Daubeney's book is the great authority referred to by all the other writers on his side of the question; we find it, however, by no means easy to give a clear and satisfactory account of it. He not only opposes the ground of the judgment by controverting the interpretation given to the word unbaptized in the rubric before the office of burial, (on which word, as has been seen, Sir John Nicholl makes the cause to rest,) but he also adduces arguments to take the case altogether out of the reach of the alleged laws, and to justify the defendant on principles wholly independent of them. Yet unluckily (for us at least) these arguments are so complicated with the discussion of the word unbaptized,' that it is no light labour to disentangle them. Our duty, however, bids us make the attempt; and if we do not succeed so well as we wish, we trust that the candour of the Archdeacon and our readers will excuse us.
. We will endeavour, first, to state the grounds on which he contends that the laws alleged have no relation to the matter at issue: and since it would be an idle waste of time to go farther into the question if these grounds are solid, we shall, as we proceed, give our reasons for differing from him.
With regard to the 68th canon, which orders the minister to bury all persons brought to the church' except the excommunicate, Dr. Daubeney understands it of all persons who have a right to burial by the minister of the particular church to which they may be brought.'—p. 37. One effect of this comment is to recognize the right of the excommunicate to burial; for they, by every rule of logic and grammar, belong to the general description of all persons' iņ whatever way that phrase may be explained. The minister, therefore, if this be the meaning of the canon, is directed by it to bary all persons who have a right to burial, except the excomniunicate, of whom the church is made to declare, at one and the same time, that they shall not be buried, and that they have a right to burial. We may be excused for passing to something else.
2. We read, p. 94, that the canons having been made with a view to the discipline of the church of England, the 68th canon is applicable only to the clergy and members of the established church.' It is farther said, that the canon evidently proceeds, on the supposition, that those whom the minister might be called on to bury, had previously been christened by him.'
What appears so evident to our author, is to our apprehension utterly without evidence; and we rejoice in thinking that ours is at least the more comfortable persuasion to all who are desirous of Christian burial for themselves or their friends. How few of us are there, whose lot it can be to be committed to the grave by the same hands which first received them into the flock of Christ! Yet the Archdeacon seeins to say that only these few have a right to the obsequies of the church. This, however, we shall attribute to a momentary confusion of thought. But for the reference of the canon solely to members of the church of England : it happens that only two years after it was made, a law passed inflicting heavy penalties on the executors of all deceased Papists who were not brought to the church to be buried according to the rites of the church of England. Now were Papists at that time members of our church? If they were not, here is an instance of a contemporary law, considering the canon as applying to the burial of persons not members of the church of England. The law, which is still in force, (s J. c. 5. s. 15.) is very remarkable: it does not direct the clergy to bury these persons, but plainly assumes
it as a matter of course, that they will bury them according to the canon; for the canon is manifestly recognized in the statute, and there is an express saving of its exception; ! If any Popish recusant, not being excommunicate, shall be buried in any place other than the church or church-yard, or not according to the ecclesiastical laws,' &c.
3. A third reason is given, p. 107, that “as no mfant can be in the situation, in which the canon places the person to whom burial is to be refused, therefore the sanction of the canon ought not to be enforced in a case to which the canon cannot apply. If we understand the argument, it amounts to this, that as the case of an infant does not fall within the exception, it cannot fall within the general rule!
4. It is affirmed, p. 115, that the original makers of the 68th canon could have no such case in contemplation, as that to which the judgment of the Court of Arches was directed; to no such case, consequently, can this canon, in their sense of it, be applied.' Now this is to us a novel method of getting rid of a law. We have always thpaght, that if a case falls within the general provisions of a law, it is of no consequence whether it was in the contemplation of the legislator or not, unless it manifestly appear that if contemplated by him, it must have been excepted. But why is it impossible that the makers of the canon could have had in their contemplation no such case as that of an infant, baptized by a schismatic, being brought to church for burial? Our readers will expect to hear either that there were no schismatics in those days, or that they did not presume to baptize infants, or that infants so baptized, if they died in their infancy, were not brought to church for burial. We do not find, however, that any of these propositions is maintained ; but that the only evidence or argument offered, is the declaration of Dr. Daubeney. He is pleased, hereupon, to quote against Sir John Nicholl, who adheres to the letter of the canon; some strong language of the late Lord Camden, enforcing the necessity of " leaving a rule inflexible, rather than permitting it to be bent by the discretion of a judge.'
5. There remains one other reason for considering the 68th canon inapplicable to the case in question, namely, that the Toleration Act has exempted protestant dissenters from the jurisdiction of the ecclesiastical law, and must, therefore, be considered as depriving them of the rights conferred by it. To this it is a sufficient answer at present that an infant is not a protestant dissenter, and therefore, that the case of an infant comes not within the provisions of the Toleration Act.
So much for excluding all consideration of the canon. With regard to the rubric, the argument is very similar. It was made