1844. May 31st. against CHAPMAN. tion is to shew, that the party did not refuse to bury the corpse, but to bury it according to the rites and ceremonies of the Church of England, which he is TITCH MARSH ordered to do by the Canon law, and for refusing to do which he is punishable, unless the corpse be that of a party unbaptized, or excommunicate majori excommunicatione. This appears to me to be altogether immaterial, his duty is to be an active duty, he is not simply to allow the body to be buried, but he is to bury it according to the rites and ceremonies of the Church of England. Then it goes on to plead," that by such refusal the party cited did not act in contempt of the laws, Canons, and constitutions ecclesiastical, but on the contrary he acted in conformity therewith, as well as in obedience to and in conformity with the obligations by which he bound himself when he became an ordained minister of the Church of England." This is the whole question in the suit! Was it or was it not his duty? Surely it is not necessary to plead this. I remember it was so pleaded in Mastin v. Escott, and the Court then pronounced it to be unnecessary and inadmissible, and only allowed it to be retained in order that the whole question might go up to the Appeal Court, as being then a new question, notwithstanding the decision of Sir J. Nicholl, in Kemp v. Wickes. I may here observe, what I intended to have before observed, that, in the first Article of the allegation, it is pleaded, "that the rights and privileges conferred by the 68th Canon were confined to members of the Church of England." I do not understand what are the rights and privileges which were conferred by this Canon; the 1844. May 31st. TITCHMARSH against CHAPMAN. Canon does not profess to confer any rights or privileges, it only declares, that if a minister refuse to inter a body, brought to him at a convenient time, according to the ceremony of the Church of England, he shall be liable to be punished; I do not understand that the right to the Church burial service is conferred by the Canon ;-therefore I think this Article ought to be rejected; it merely contains a verbal criticism on the fifth Article of the libel, which contains the charge, and it is quite unnecessary to the defence of the party cited. The third Article recites the sixth Article of the libel, "That the said infant died within the said parish of Basingbourne. That such infant was the daughter of John Rumbold and Jane his wife, who are Protestant Dissenters of the class known as Independents, and during the first five months in the year 1841, and for some time previous thereto, had been in the habit of frequenting or resorting to a chapel or place of religious worship, established by or for the use of a congregation of the said class of people, situate within the said parish. That the said infant had been, on the 8th of February, 1840, baptized according to the rite or form of baptism generally received and observed among the said class of people, that is to say, with water, and in the name of the Father, and of the Son, and of the Holy Ghost, by the Rev. C. Moase, a minister, preacher, or teacher of the said class of people. That of the aforesaid fact of baptism the said W. H. Chapman was informed on the 26th of May, 1841, when urged and entreated to bury the said infant, and by means of such informotion was, at the time of his refusal to bury the said corpse, well and sufficiently apprized and aware of the fact of such baptism, and he made or assigned the aforesaid fact of such baptism expressly as the pretext or ground of refusing to comply with such entreaties and application."-this is the charge; what is the answer? "That the aforesaid baptism of the said infant, as set forth in the said sixth Article, by the said C. Moase was heretical" here the Article stops. The Court must look to the other Articles, to see whether this baptism was a valid baptism, or whether the party was excluded from the rites of the Church of England. The fourth Article pleads, "That by the ecclesiastical laws of the whole Catholic Church, more especially as they are expounded and laid down in the Canons and decrees of the two first general councils, which Canons and decrees have been adopted by the Church of England, and on divers occasions recognised to be of binding authority by the statutes of the realm applicable to questions of heresy and schism, more especially by statutes 1 Eliz. c. 1, s. 36; 29 Car. 2, c. 9, s. 2, the said C. Moase having collected a congregation in opposition to the canonical bishop, is guilty of heresy, and any baptism performed by him is heretical." A former Article had alleged that the baptism, set forth in the sixth of the promoter's Articles, was heretical, here it is pleaded, that the person who performed the service of baptism had collected a congregation in opposition to the bishop, and was therefore at the time a heretic, and, it is to be inferred accordingly, at least so I suppose, that any baptism performed by him is heretical. 1844. May 31st. TITCH MARSH against CHAPMAN. 1844. May 31st. TITCHMARSH against CHAPMAN. The fifth Article pleads, "That by the first Canon, made and agreed upon at the second general Council, which was holden at Constantinople in the year of our Lord 381 (being the first of the general councils holden in that Metropolis) it was ordained and decreed as follows (a)-Trecentorum decem et octo patrum qui Nicææ convenerunt fidem non abrogari, sed firmam ac stabilem manere oportere, et omnem hæresim anathematizari.-And that by the sixth Canon made and agreed upon at the council aforesaid, it was ordained and decreed as follows-Si autem sit crimen ecclesiasticum quod episcopo intenditur; tunc oportet examinari personas accusatorum, ut primum quidem hæreticis non liceat orthodoxos episcopos pro rebus ecclesiasticis accusare. Hæreticos autem dicimus, et qui olim ab ecclesia abdicati sunt, et qui sunt postea a nobis anathematizati ad hæc autem et eos qui se sanam quidem fidem confiteri præ se ferunt, avulsi autem sunt et abscissi, et adversus canonicos nostros episcopos congregationem faciunt. Præterea autem et si aliqui eorum ab ecclesia ob aliquas causas prius condemnati et ejecti vel excommunicati fuerint, sive ex clero, sive ex laicorum ordine, nec is licere episcopum accusare priusquam proprium crimen absterserint. Similiter autem et eos qui prius rei facti accusatique sunt non prius ad episcopi vel aliorum clericorum accusationem admitti quam se objectorum sibi criminum insontes ostenderint. The purport of these two Canons I take to be, that persons accused of heresy are not to be permitted to accuse the clergy unless they first shew themselves to be innocent; and the object of the Article is, I presume, to shew, that the party promoting the office (a) See Sacrosancta, Concil. vol. 2, pp. 945-949. ARCHES COURT OF CANTERBURY. of the Judge is not a party who can be permitted to accuse the party cited. 1844. May 31st. against CHAPMAN. The sixth Article pleads, "That by the twenty-first TITCHMARSH Canon of the fourth general council holden at Chalcedon in the year of our Lord 451, it was decreed and ordained-Clericos vel laicos episcopos aut clericos accusantes non indiscriminatim, nec citra inquisitionem admittere ad accusationem, nisi eorum existimatio prius examinata fuerit. This merely goes to the same point, that the party promoting the office is not legally competent to do so as against a clergyman. The seventh Article I have already referred to (a), it contains the sum and substance of the charge that the baptism of this infant was heretical. This, as I have already stated, is the whole question before the Court, is this a valid or an invalid baptism? It is not averred, nor is it even attempted to be said, that this is an invalid baptism, null, void, and of no effect whatever; all that is pleaded is, that the recipient thereof is not entitled to partake of the privileges of the Church until he or she has complied with certain forms. What is the particular form, as I before observed, is not stated; it was only during the argument that I collected, it is to be by the bishop by the imposition of hands; and therefore the form which is to entitle the recipients of this heretical baptism to be admitted into the Church, is precisely the same as is requisite to entitle the recipients of the most regular baptism to that privilege. Now, I think, in rejecting this Article, I am (a) Ante, p. 844. |