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old established law, than to provide for a new case, upon which the former law has been wholly silent; consequently, if this new rubrick 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 rubrick 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 rubrick, 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 rubrick.'-p. 29.

After the restoration, this rubrick 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 rubrick 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 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. We 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 his opponents.

Of these 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 inferiour 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 not, as we have before said, ushered into the world with somewhat of an official air, and had he not mixed up the meagre 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.

Archdeacon 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 rubrick 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 further 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 recognise the right of the excommunicate to burial; for they, by every rule of logick and grammar, belong to the general description of 'all persons' in whatever way that phrase may be explained. The minister, therefore, if this be the meaning of the canon, is directed by it to bury all persons who have a right to burial, except the excommunicate, 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 further 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 us into the flock of Christ! Yet the archdeacon seems 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, (3 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 recognised 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 infant 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 thought, 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 schismatick, being brought to Church for burial? Our readers will expect to hear either that there were no schismaticks 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.

With

So much for excluding all consideration of the canon. regard to the rubrick, the argument is very similar. It was made for the direction of the clergy of the Church of England, who could not be ignorant, that the services of the Church belong only to its members.'-p. 42. The right to burial, in particular, rests on the circumstance of the party dying in communion with the Church.'-p. 48. 'Therefore an express exclusion of dissenters would have been a needless waste of words.'-p. 42.

In answer to this, the archdeacon will first permit us to ask, why then is there an express exclusion of the excommunicate? for surely the clergy could not be ignorant, that they are not members of the Church; or that if the right to burial belongs only to persons dying in actual communion with the Church, the excommunicate are not of this description. Here, therefore, is that needless waste of words which seems to be considered incompatible with the true meaning of the rubrick. We might cite again, the law which compels the executors of Papists to carry them to the Church for burial, and assumes, as a matter of course, that they will be there buried. We might also again insist on an infant's not being a dissenter. But more than enough has already been adduced to prove, that there is no solid reason for denying that the case falls within

the canon and the rubrick; and, consequently, that we are not re leased from the duty of attending the archdeacon through the remainder of his argument.

Now if the canon and rubrick be applicable to the matter in question, the only point to be decided is, whether the child whom the ministers refused to bury, did die unbaptized.' Dr. Daubeney maintains the affirmative; and the following is his reasoning.

The place in which the word occurs, viz. a rubrick, or order made by the governours of the Church of England, for the direction of the clergy in the discharge of their ministerial office, shows, that it must be taken in connexion with the other rules and ordinances of the Church. Comparing then the 19th and 23d articles with the 11th canon, and thence proceeding to the ordination service, he concludes, that the word 'unbaptized,' in the rubrick, must be understood in an ecclesiastical sense; according to which sense all are considered to be unbaptized, who have not been baptized by persons to whom, in conformity with the articles of the Church of Eng land, the office of ministering in the congregation has been lawfully committed

p. 24.

Here then we are presented with a short method of despatching the whole question, if the argument be correct. We will examine it impartially, and see how far it will carry us. It may, however, be right previously to remark, that the words of the archdeacon scem to take for granted that which is really the only matter in dispute, namely, that the ecclesiastical sense of the word unbaptized' is what he states it to be. For we apprehend, that no one is so weak as to contend, that the word in the rubrick, may be construed in any other than its ecclesiastical meaning: certainly the whole argument of Sir John Nicholl is employed in ascertaining what that meaning is. The archdeacon therefore will, we are persuaded, feel obliged to us for understanding his words, as if they ran thus, that the word "unbaptized," in the rubrick, must be understood in an ecclesiastical sense, and that according to this sense, all are to be considered as unbaptized.' &c.

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We proceed to inquire how far the ordinances referred to by the archdeacon, prove this to be the ecclesiastical meaning of the word. The 19th and 23d articles state, that one of the constituents of the visible church is, that the sacraments be duly ministered according to Christ's ordinance, in all those things that of necessity are requisite to the same: that it is not lawful for any man to minister the sacraments in the congregation, till he be lawfully called and sent to execute the same; and that those are lawfully called and sent, who are chosen by men who have publick authority given to them for that purpose.' The canon denounces excommunication against all who maintain, that any other congregations of the king's subjects within this realm, than such as by the laws of this land are held and allowed, may rightly challenge to themselves the name of true and lawful churches.' And in the ordination service, the bishops, who alone have publick authority in this country to call and send forth ministers, do so send those, whom they ordain.

Such is the sum and substance of the premises, from which the archdeacon concludes, that the ecclesiastical sense of the word

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