JUDGMENT.Sir John Nicholl.This suit is brought against the Rev. John Wight Wickes, described as the Rector of Wardly cum Belton, for refusing to bury the infant child of two of his parishioners. The usual proceedings have been had in the institution of this suit; and articles are now offered, detailing the circumstances of the charge proposed to be proved, The admission of these articles is opposed, not upon the form of the pleading, but upon the entire law of the case; it being contended, that if the facts are all true, still the clergyman has acted properly, and has been guilty of no offence. This is certainly the proper stage of the cause for taking the decision of the Court upon the point of law; for, if the facts when proved should constitute no offence, it will only be involving the parties in useless litigation, and keeping alive unnecessary animosity, if they should go on to the proof of these facts. If, on the other hand, the facts are true, and the defendant has, through ignorance of the law, or otherwise, violated its injunctions, it is the shortest way to admit the facts, and to submit to the legal consequences. It is indeed to be collected, from the mode in which the arguments have been conducted, that a spirit of candour actuates both the parties; they wishing merely to ascertain by a judicial decision what the law is upon the subject, in order to set the question at rest generally, and in order that these particular parties may live in charity and kindness with each other.

The articles plead, in the first place, the incumbency of Mr. Wickes. In the second article the 68th canon is recited, which directs "that 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 suspended by the bishop of the diocese from his ministry for the space of three months."

The articles then go on to plead, "that Mr. Wickes did in August, 1808, refuse to bury Hannah Swingler, the infant daughter of John Swingler and Mary Swingler his wife, of the parish of Wardley cum Belton aforesaid, then brought to the said Church, or church-yard, convenient warning having been given: that Hannah Swingler died within the parish of Wardley cum Belton, and being the daughter of the said John Swingler and Mary Swingler his wife, who are Protestant Dissenters from the Church of England of the class or denomination of Calvinistic Independents, had been first baptized according to the form of baptism generally observed among that class of Dissenters; that is to say, with water, and in the name of the Father, and of the Son, and of the Holy Ghost, by the Reverend George Gill, a minister, preacher, or teacher, in all respects duly qualified according to law, and of the same class of Protestant Dissenters; and that of that fact of baptism Mr. Wickes was sufficiently apprized, upon application being made for the burial of

the infant in the church-yard of the said parish in manner and form as is prescribed in the Book of Common Prayer: but he assigned the same,' that is, the form of baptism, "expressly as the ground of his not complying with the said application." Here, then, it is pleaded, and it is undertaken to be proved, and at present in this respect the articles must be taken to be true, that Mr. Wickes did not doubt on the question of fact that the infant had been so baptized; but he refused upon the ground of law, namely, that he was not bound to bury a person of that description. The remaining articles are in the usual form; they are not material to be stated for the purpose of considering the question that is now to be decided.

In these articles it is pleaded that the minister was required by regular warning to bury this infant in the form prescribed by the Book of Common Prayer and by the Canon. The Canon, not made merely (as has been thrown out) for the protection of the clergy, but made for their discipline also, and to enforce the performance of their duty, prohibits the refusal of burial in all cases except in the case of excommunicated persons, and punishes such refusal; and perhaps the learned Counsel who spoke last is correct in saying, that by the general description "persons" is here to be understood Christian persons; and therefore that, where application was made for the burial of any persons who might not be considered as Christians, they did not come within the description of the Canon. The Rubric, however, which is that part of the Book of Common Prayer that contains directions for the performance of the different offices, adds two other exceptions expressly. The Rubric before the office of burial is in this form :"Here is to be noted, that the office ensuing is not to be used for any that die unbaptized, or excommunicate, or have laid violent hands upon themselves." And, by the old law, burial was refused to persons of the same description, and indeed of some other descriptions; persons who had fallen in duels, and some others, were interdieted from receiving Christian burial: but here the Rubric does expressly

VOL. XIV. NO. IX.

state, "that the office is not to be used for persons unbaptized or excommunicated, or who have laid violent hands upon themselves."

These directions, contained in the Rubric, are clearly of binding obligation and authority. Questions indeed have been raised respecting the Canons of 1603, which were never confirmed by Parliament, whether they do, in certain instances, and proprio vigore, bind the laity but the Book of Common Prayer, and therefore the Rubric contained in the Book of Common Prayer, has been confirmed by parliament. Anciently, and before the Reformation, various liturgies were used in this country; and it should seem as if each bishop might in his own particular diocese direct the form in which the public service was to be performed: but after the Reformation, in the reigns of Edward the Sixth and Queen Elizabeth, acts of uniformity passed, and those acts of uniformity established a particular Liturgy to be used throughout the kingdom. King James the First made some alteration in the Liturgy; particularly, as it will be necessary to notice, in this matter of baptism. Immediately upon the Restoration, the Book of Common Prayer was revised. An attempt was then made to render it satisfactory, both to the Church itself, and to those who dissented from the Church, particularly to the Presbyterians; and for that purpose conferences were held at the Savoy but the other party requiring an entire new Liturgy on an entire new plan, the conference broke up without success. The Liturgy was then revised by the two houses of Convocation; it was approved by the King, it was presented to the Parliament, and an act passed confirming it in the 13th and 14th Charles II., being the last act which has passed upon the subject; and so it stands confirmed to this day, except so far as any alteration may have been produced by the Toleration Act, or by any subsequent

statutes.

The Rubric then, or the directions of the Book of Common Prayer, form a part of the statute law of the land. Now that law in the Rubric forbids the burial service to be used for persons who die unbaptized. It is not matter 4 D

of option; it is not matter of expediency and benevolence (as seems to have been represented in argument,) whether a clergyman shall administer the burial service, or shall refuse it; for the Rubric, thus confirmed by the statute, expressly enjoins him not to perform the office in the specified cases; and the question is, whether this infant, baptized with water in the name of the Father, the Son, and the Holy Ghost, by a Dissenting minister, who is pleaded to have qualified himself according to the regulations of the Toleration Act, did die unbaptized within the true meaning of the Rubric. If the child died unbaptized, the minister was not only justified, but it was his duty, and he was enjoined by law, not to perform the service. If the child did not die unbaptized, then he has violated the Canon, by a refusal neither justified by any exception contained in the Canon itself expressly, nor by any subsequent law.

The question has been most ably and most elaborately argued by the counsel on both sides; and not only are the parties, but certainly the Court itself is, under very considerable obligation to them for the assistance which it has received in considering this question.

To ascertain the true meaning of the law, the ordinary rules of construction must be resorted to; first, by considering the words in their plain meaning and in their general sense, unconnected with the law; and, in the next place, by examining whether any special meaning can be affixed to the words, when connected with the law, either in its context or in its history.

The plain simple import of the word "unbaptized," in its general sense, and unconnected with the Rubric, is, obviously, a person not baptized at all, not initiated into the Christian Church. In common parlance, as it is sometimes expressed, that is, in the ordinary mode of speech and in the common use of language, it may be said that this person A. was baptized according to the form of the Romish Church; that another person B. was baptized according to the form of the Greek Church; that another person C. was baptized according to the form of the Presbyterian Church; that another

person was baptized according to the form used among the Calvinistic Independents; and that another person was baptized according to the form used by the Church of England: but it could not be said of any of those persons that they were unbaptized, each had been admitted into the Christian Church in a particular form; but the ceremony of baptism would not have remained unadministered, provided the essence of baptism, according to what has generally been received among Christiaus as the essence of baptism, had taken place.

Such being the general meaning of the word in its ordinary application and use, and standing unconnected with this particular law, is there any thing in the law itself, in its context, that varies or limits its meaning? The context is, that the office shall not be used for persons who die unbaptized, or excommunicate, or that lay violent hands upon themselves. What, then, is the description of persons excluded from burial that is put in association with these unbaptized persons? Excommunicated persons and suicides.

Now excommunication, in the meaning of the law of the English Church, is not merely an expulsion from the Church of England, but from the Christian Church generally. The ecclesiastical law excommunicates Papists. The ecclesiastical law excommunicates Presbyterians. Dissenters of all descriptions from the Church of England are liable to excommunication. But what is meant by the Church of England by the term of excommunication can be best explained by the articles of that Church. By the 33d article it is expressly stated, "That person which by open denunciation of the Church is rightly cut off from the unity of the Church and excommunicated, ought to be taken of the whole multitude of the faithful as an heathen and publican until he be openly reconciled by penance, and received into the Church by a judge that hath authority thereunto:" that is, he is no longer to be considered as a Christian, no longer to be considered as a member of the Christian Church universal, but he is to be considered "as an heathen and a publican," for those are the words of the article.