lished in writing, before the first day of May next coming, in every parish church of his diocese in this province; and thereby all other persons shall be inhibited to intermeddle with the ministering of baptism privately, being no part of their vocation."

This article was not published in the printed copy; but whether on the same account that the fifteenth article was left out (namely, because disapproved by the crown) doth not certainly appear. However the ambiguity remained, till the conference at Hampton Court, in which the king said, that if baptism was termed private, because any but a lawful minister might baptize, he utterly disliked it, and the point was there debated; which debate ended in an order to the bishops to explain it so as to restrain it to a lawful minister.

Accordingly, in the Book of Common Prayer, which was set forth in the same year, the alterations were printed in the rubrick thus: "And also they shall warn them, that without great cause they procure not their children to be baptized at home in their houses. And when great need shall compel them so to do, then baptism shall be administered on this fashion: First, let the lawful minister and them that be present call upon God for his grace, and say the Lord's Prayer, if the time will suffer; and then the child being named by some one that is present, the said minister shall dip it in the water, or pour water upon it." And other expressions in other parts of the service, which seemed before to admit of lay baptism, were so turned as expressly to exclude it (m).

Nevertheless, Bishop Fleetwood says, that lay baptism is not declared invalid by any of the offices or rubrics, nor in any public act hath the church ever ordered such as have been [115] baptized by lay hands to be rebaptized by a lawful minister, though at the time of the Restoration there were supposed to be in England and Wales 200,000 or 300,000 souls baptized by such as are called lay hands. He says, whether the indispensable necessity of baptism be the doctrine of the Church of England or no, he cannot with certainty determine; but because he is persuaded that the church doth not hold lay baptism to be invalid, he is so far persuaded that the church holdeth baptism to be indispensably necessary where it can possibly be had, and will have lay baptism (when a lawful minister cannot be had) rather than none at all (n).

By the canon law baptism is regularly confined to priests; but in cases of necessity, laymen and even women were allowed to perform the ceremony. Baptizandi cura ad solos sacerdotes pertinet, ejusque ministerium nec ipsis diaconis explere permittitur, absque episcopo vel presbytero: nisi his procul absen

tibus, ultima languoris cogat necessitas: quo casu et laicis fidelibus, atque ipsis mulieribus baptizare permittitur (o).

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[Giannone, speaking of the latter part of the third century, remarks that it was the custom of these days, for persons of rank and consideration to adopt the very pernicious habit of deferring their baptism till the eve of their exposure to some great and unusual peril, or till the latter days of their life; in other words, they remained Catechumens till the near approach of one of these two events. After mentioning that it was a matter of historical notoriety that such had been the case with Constantine, and inferring from this fact the falsity of the claims of the Roman Church to that territory which they asserted had been granted by the emperor at his baptism, this great historian gives these reasons for the prevalence of this custom: People imagined that by deferring their baptism till the last moments of their existence, they thereby not only escaped the rigorous severities which in these days the church enjoined upon Christian penitents, but moreover that this procrastination of their baptism gave them a greater security for the eternal welfare of their souls. Because, as any one might administer this sacrament, even an infidel, neophyte or harlot, as the matter of it being water, was always at hand, and as the form was simple and couched in very few words, he would indeed be the most unfortunate of men who should meet with so sudden a death as not to be allowed sufficient time for the application of these healing waters, which through the infinite merits of Christ would in an instant cleanse him from the pollutions contracted in this mortal life, and at once and infallibly transport him into the happiness of another, immortal and eternal (p)."

[The Roman Catholic Church undeniably held the doctrine that baptism with water and invocation of the Trinity might be administered by anybody. Many eminent writers, and amongst them the learned Bingham, are of opinion that the Anglican church has always said "fieri non debet, factum valet."

[The whole question underwent an elaborate discussion in the case of Kemp v. Wickes (g), in which Sir J. Nicholl held that a child baptized by a Dissenter, with water and the invocation of the Trinity, was baptized in the sense of the rubrick to the burial service, and of the 68th canon, and therefore that the burial of such child was obligatory on the clergyman. It is hardly necessary to say that the canons, being promulgated in

(0) Inst. J. C. 2, 3; X. 3, 42. See also Lind. 50. [See tit. Midwives, in this work]

(p) [Giannone Ist. Civ. lib. 1, c. 4, s. 1. He says Tasso alluded to this custom in his celebrated description of Clorinda's death:

"A me che le fui servo, e con sincera

Mente l'amai, ti diè non battezzata ;

Nè già poteva allor battesmo darti,

Che l'uso nol sostien di quelle parti."-Canto 12.-ED.]

(9) [3 Phillim. 276.]

1603, before the legal existence of Dissenters, could have had, at the period of their enactment, no reference to that body, and it would seem that a baptism performed by lay hands, in the case of an imminent emergency, was that which was contemplated by the canon in question. Kemp v. Wickes, from which there was no appeal, is as yet the only decided case on this subject; " but the question has been again mooted, and is adhuc sub judice' in the Arches Court of Canterbury, and it is believed an appeal, should the sentence of the judge be in affirmance of Kemp v. Wickes, will be prosecuted to the judicial committee of the privy council (r). In 1806, a very eminent civilian was consulted as to whether a clergyman was bound to baptize the child of a Dissenter, knowing that such child was to be brought up in dissent from the doctrines of the Church of England. To this question the following opinion was returned:

Opinion.

rence's Opi

bound to bap

tize the Child

of a Dissent

[By the 68th canon, any minister who shall refuse or delay Dr. Law. to christen any child brought to him on Sundays or holydays, nion, that a after due notice, is liable to be suspended from his ministry for Clergyman is three months. The phrase any child' is general. There is no distinction of parishioners who frequent the church or any er. other place of divine worship. The reasons given by the clergyman himself in this case might be easily shown to be weak and fallacious. But the authority of the law is clear and express on this point. The objection would of course be much stronger against the children of papist recusants (that is, of persons convicted by law of being Papists), than of those parents supposed to be Protestant Dissenters. Yet by the 3 Jac. 1, c. 5, s. 14, all popish recusants are compelled to bring their children to be baptized by a lawful minister in the parish church." F. LAWRENCE."

["Doctors Commons, July 14, 1806."--ED.]

V. Baptism of those of riper Years.

Preface to the Book of Common Prayer. "It was thought convenient, that some prayers and thanksgivings, fitted to special occasions, should be added, particularly an office for the baptism of such as are of riper years, which, although not so necessary when the former book was compiled, yet by the growth of anabaptism through the licentiousness of the late times crept in among us, is now become necessary, and may be always useful for the baptizing of natives in our plantations, and others converted to the faith."

() [Proceedings instituted by a fusing to bury his child, Nov. 1840, Dissenter against a clergyman for re- Mastyn v. Escott. See Burial.]

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Rubrick. "When any such persons as are of riper years are to be baptized, timely notice shall be given to the bishop, or whom he shall appoint for that purpose, a week before at the least, by the parents or some other discreet persons; that so due care may be taken for their examination, whether they be sufficiently instructed in the principles of the Christian religion, and that they may be exhorted to prepare themselves with prayers and fasting for the receiving of this holy sacrament.

"And if they shall be found fit, then the godfathers and godmothers, (the people being assembled upon the Sunday or holiday appointed), shall be ready to present them at the font immediately after the second lesson, either at morning or evening prayer, as the curate in his discretion shall think fit.

"And it is expedient that every person thus baptized should be confirmed by the bishop so soon after his baptism as conveniently may be, that so he may be admitted to the holy communion.'

VI. Baptism of the Children of Papists.

By the 3 Jac. 1, c. 5, s. 14, "Every popish recusant which shall have any child born, shall within one month next after the birth, cause the same to be baptized by a lawful minister according to the laws of this realm, in the open church of the parish where the child shall be born, or in some other church near adjoining, or chapel where baptism is usually administered; or if by infirmity of the child it cannot be brought to such place, then the same shall, within the time aforesaid, be baptized by the lawful minister of any of the said parishes or places, on pain that the father of such child, if he be living one month after the birth, or if he be dead within the said month, then the mother of such child, shall forfeit 1007.; onethird to the king, one-third to him who shall sue in any of the king's courts of record, and one-third to the poor of the said parish." See Papists.

VII. Baptism of Negroes in the Plantations.

It hath been a point debated in the Court of King's Bench, whether by baptism a negro slave acquires manumission (s). But this seemeth to be now fully settled in the negative both by divines and lawyers. Bishop Fleetwood says, there is no fear of losing the service and profit of their slaves, by letting them become Christians; that they are prohibited neither by the laws of God, nor of this realm, from keeping Christian

(s) 3 Mod. 120.

slaves; and that slaves are no more at liberty after they are baptized than they were before (t). And both the lord chancellors, Talbot and Hardwicke, gave their opinions the same way. Archbishop Secker's sermon before the Society for Propagating the Gospel in Foreign Parts, in the year 1740 (u).

VIII. Fee for Baptism.

"We do firmly enjoin that no sacrament of the church shall be denied to any one upon the account of any sum of money, because if any thing hath been accustomed to be given by the pious devotion of the faithful, we will that justice be done thereupon to the churches by the ordinary of the place afterwards (v)."

Upon the Account of any Sum of Money.] That is, used to be paid or taken in the administration of any of the sacraments (x).

Shall be denied.] Or delayed (y).

Hath been accustomed to be given.] That is, of old, and for so long a time as will create a prescription, although at first given voluntarily. For they who have paid so long are presumed at first to have bound themselves voluntarily thereunto (z).

H. 9 Will. Burdeaux and Dr. Lancaster. Burdeaux, a French protestant, had his child baptized at the French church in the Savoy, and Dr. Lancaster, vicar of St. Martin's, in which parish it is, together with the clerk, libelled against him for a fee of 2s. 6d. due to him, and 1s. for the clerk. A prohibition was moved for, and it was urged, that this was an ecclesiastical fee due by the canon. By Holt, Chief Justice: Nothing can be due of common right, and how can a canon take money out of laymen's pockets? Lindwood says, it is simony to take thing for christening or burying, unless it be a fee due by custom; but then, a custom for any person to take a fee for christening a child when he doth not christen him, is not good; like the case in Hobart, where one dies in one parish, and is buried in another, the parish where he dies shall not have a burying fee; if you have a right to christen, you should libel for that right, but you ought not to have money for christening when you do it not (a).

any

[The act of 6 & 7 Will. 4, c. 36, provides by its 49th section "That nothing therein contained shall affect the registration of baptisms and burials as now by law established, or the right of any officiating minister to receive the fees now usually paid for (t) Fleetw. Works, 501.

(u) See Bl. Com. i. 425, with Mr. Christian's note.

(v) Langton. (x) Lind. 278.

(y) Ibid.

(2) Lind. 279.

(a) 1 Salk. 332; [Holt, 319; 12 Mod. 171; Hobart, 175.]

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