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are sanctified by his Holy Spirit ; why should not there be a two-fold regeneration, the one external and formal—that is, admission into the church, which is styled by Mr. Faber, in the note (pages 59—62) of the second Edition of his work on Justification, a Federative Change of Relative Condition;" the other internal, consisting of a moral change of heart and disposition? I merely propose this as a question, to which I sincerely desire a satisfactory answer.

SCRUTATOR.

*** There is no reason against it, if Scrutator can prove it by Holy Scripture. If being born again means in Scripture two things, that is enough ; but for ourselves we believe with the Oxford Tract writers, that it means but one, and that the distinction of baptismal and spiritual regeneration was invented to account for ecclesiastical phraseology.

LEGAL RIGHT OF DISSENTERS TO INTERMENT IN THE

PARISH BURIAL-GROUND.

To the Editor of the Christian Observer. You probably were not aware, when penning, last March, the remarks which appeared in your Number for April, respecting the legal right of Dissenters to interment in the parish burial-ground, that the question was at that moment giving rise to some painful proceedings in our Western diocese. You state that whatever may be the theological considerations connected with the subject, every person baptized with water in the name of the Father, the Son, and the Holy Ghost, by whomsoever the solemnity was performed, is by the law of the land entitled to Christian burial, unless excommunicated; and that the judgment of Sir J. Nicholl, in the case of Wickes in 1809, is decisive upon the question ; adding :

The matter has been agitated in scores, we believe we might say hundreds, of instances, and always with one result, that the clergyman has been obliged to yield, and usually to pay the legal expenses incurred on both sides. The reason why these litigations have not been more publicly known, is, that the refusing clergyman, after consulting his lawyer, and being perhaps advised by his bishop, and having most likely paid for an opinion at Doctors' Commons, and being threatened, if he persists, with an action, by the Society for protecting the Civil Rights of the Dissenters,' the result of which is not doubtful, has come to a compromise before the matter arrived at extremities.”

Had you been aware of what was transacting in our Western parts at that very moment, you could not have described more correctly the stages and result of the proceedings. I am induced to request the attention of your readers to them; because I fear that, Cassandra-like, your warning on that occasion, as well as in some of your former volumes, and the many vexatious hushed-up litigations which you allude to, will not prevent some ill-informed or ill-judging brother-some deacon perhaps, fresh from college, with little knowledge of divinity, or ecclesiastical history, or the law of the land-embroiling himself in a dispute upon this adjudged question. It may be said that the party always pays dearly for his mistake. He does; but the evil does not end with himself; the odium is extended to his brethren; and the church itself suffers through his imprudence. His own diocesan is almost sure to be placed in an invidious position. If he recommend the inquirer to obey the law of the land, he is represented as setting lightly by the authority of the church, and sacrificing duty to time-serving; and if he add that he considers the law of the land wise and scriptural; and that baptism administered by water and with the commanded formula, is valid, however irregular; he is still more strongly assailed as a despiser of the gifts confined to apostolical succession.

The Exeter cases which I am about to mention were the stronger, because the persons who professed to have administered baptism were Arians or Socinians (I know not which ; they call themselves Unitarians”). How they could upon their heretical principles use an essentially Trinitarian formula, I cannot explain ; and I must think they truckled to expediency in so doing, in order to hide the discrepancy between their doctrines and those of the word of God, which would be plainly manifested if they altered the baptismal dedi. cation; but still, the Scriptural words being used, the law of the land does not consider the ceremonial invalid. With regard to the church, she is in no way committed in the matter, as respects the performance of the burial service. The circumstance of the corpse being brought for Christian burial, may be charitably considered, without asking any question whatever, as a proof that the defunct died a professed believer ;—that is, that he had been baptized and was not excommunicated; but should the question be asked whether he was baptized, a reply in the affirmative is all that is required, without any investigation of the particulars. Of course this applies only to Christian burial; for in the case of an adult coming, or an infant being brought, for public admission into the church, the minister is to inquire, By whom was this child baptized ?" and “ Who was present,” as well as “ with what matter,” and “ what words ?" but even then it is very remarkable that in the circumstances which are to determine whether the baptism is so clearly valid that it must not be repeated, or whether it is so doubtful that it must be re-administered hypothetically, “ If thou art not already baptized,” no allusion whatever is made to the officiator. The following is the rubric :

“ But if they which bring the infant to the church do make such uncertain answers to the priest's questions [namely, By whom? With what matter? and, With what words ?] as that it cannot appear that the child was baptized with water, in the name of the Father, and of the Son, and of the Holy Ghost, which are essential parts of baptism, then let the priest baptize it" in the hypothetical form, “ If thou art not, &c."

Here the express mention of the element and the form of words, as “ essential parts of baptism," and the significant omission of the answer to the question “By whom,” would seem to indicate that the minister is not to take into account this last particular ; for that the church does not consider, or at least does not decide, that the spiritual character, the tenets, or even the sex of the administrator, is “ an essential part " of the sacrament. If so, what Sir J. Nicholl said of the law of the land is also true of the law of the church. The question of the administrator is left entirely open ; and the cautious wording of the rubric indicates that the compilers of the service did not see fit to pronounce upon the matter, much less to allow each individual minister to do so. They mentioned what in their opinion was essential; and this they required; but they went no further ; they neither wished to sanction what though valid was irregular, nor to impugn what though irregular was valid. Their opinion was that baptism ought to be administered by an episcopally-ordained minister ; but they did not assert that if otherwise performed it was not true baptism, provided water was used with the Trinitarian dedication.

This rubric has been to my own mind a source of great comfort; for though, as respects burial, I saw my way clearly to follow Sir John Nicholl's decision; I had great difficulty as to the light in which I ought to regard persons baptized by lay teachers. I now, upon the plain construction of this rubric, doubt whether the church authorizes me to use the hypothetical form whoever might have baptized the party, provided he used water and the orthodox formula; but I should, nevertheless, like to have the mature opinion of my brethren

upon

the subject. The following are the Exeter cases :

In December last, William Tucker, belonging to the old Presbyterian, now commonly called the Unitarian, congregation in Exeter, applied to the Rev. J. Wilkinson, curate of St. Thomas's, to bury his child in the parochial church-yard. Mr. Wilkinson inquired of Tucker if his child had been baptized, and by whom, and how. He was informed that it had been baptized by Dr. Perry, (a “ Unitarian" minister) "in the name of the Father, and of the Son, and of the Holy Spirit.” He then stated that he must have time to consider, and to take advice. The next morning he informed the parents that he had been directed by the bishop not to bury the child : but that if the baptism had been performed at any other chapel in Exeter, there would have been no objection. The corpse of the child was permitted to be interred in the church-yard, but no funeral service was read.

Dr. Perry and his colleague wrote the bishop of Exeter; but the bishop did not recognize their authority to interrogate him. He added, however, that he had no indisposition to deal with the question; and that he had so written to a Mr. Snell in a similar case.

It is necessary to explain, that, about the same time that Mr. Wilkinson refused to bury the child of Tucker, the Rev. R. Tripp, the Incumbent of St. Sidwell's, had refused, under similar circumstances, to bury the child of W. W. Snell, Esq., a Town-councillor of Exeter, and a member of the same congregation of Protestant Dissenters. Mr. Snell himself wrote to the bishop; and obtaining no redress, took the opinion of counsel on his case, which entirely agreed with the opinions of Sir John Campbell and Dr. Addams. In his reply to Mr. Snell, the bishop stated that he advised Mr. Tripp how to act, and gave the reasons for which he thought the refusal to bury was justifiable.

Dr. Addams' opinion was as follows :—“I have no doubt that Mr. Wilkinson's conduct was illegal — taking the law (as I must, for the present, take it) to be as settled in the case of Kemp v. Wickes. I entertain no doubt whatever that the sentence of the Dean of Arches would be in perfect accordance with that of his predecessor, in the case of Kemp v. Wickes. So far, then, I entertain no doubt that Mr. Wilkinson's conduct in the premises would be held illegal ; and, consequently, that he has incurred the penalty of the law. It would

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still, however, be open to him to appeal to the Judicial Committee of the Privy Council -- the Court of final appeal in all ecclesiastical causes --though, in my humble judgment, he would not be likely to succeed in that appeal.”

Sir John Campbell, the Attorney-General, said :-"I am of opinion that Mr. Wilkinson was not justified in refusing to read the burial service on the occasion in question. The rite of baptism having been performed in the words required, he had no authority to question its efficacy on the ground of the religious opinion of the minister by whom it was performed. But I do not think that a criminal infor. mation would be granted against him for his refusal, as his offence was not of temporal cognizance, and he appears to have acted by the advice of the bishop. The only proceeding that can be taken with effect is a suit in the Ecclesiastical Court, as in the case of Kemp v. Wickes.”

A communication was then made to Mr. Wilkinson, stating the substance of the above opinions,-offering them for his perusal, and proposing, before legal proceedings were instituted, to wait a reasonable time for any reply which might prevent the necessity of further interference. Mr. Wilkinson, with another clergyman, inspected the cases; and, after consulting the bishop, returned the following answer :

“ St. Thomas, March 3, 1840. “Sir, I am now enabled to make that communication to you, which I should have been happy to have made before, had I not been prevented by circumstances over which I had no control.

I can only state that in acting as I did, I imagined I was correctly interpret. ing the language of the Church in the Prayer-book, which I am most solemnly bound to obey.

“ The legal opinions which you submitted to my notice have convinced me, that in refusing to perform the burial service in this case, I, in ignorance, committed an illegal act, and having so done, I make this acknowledgment of my error, which acknowledgment I trust will be satisfactory.

“I have to thank you for the courtesy with which you have treated me personally in this matter, in leaving it open to me to make a communication of this nature, and in allowing me to peruse the cases stated, and the opinions thereon of the Attorney-General and Dr. Addams, and I shall be happy, having by my act been the occasion of your taking these opinions, to bear the expense which may have thereby incurred."

On the receipt of this answer, the congregation of George's Meeting House resolved that Mr. Wilkinson should be informed that his explanation of the misunderstanding under which he had acted, and his acknowledgment of the error of his conduct, were entirely satisfactory to the parties aggrieved; that no further proceedings would be taken; and that, believing he had been actuated by no unkind or unchristian motives, they could not think of accepting his offer to defray the expenses incurred by taking legal opinions on the case.

So far the issue was peaceable ; but it is to be lamented that the bishop did not acquaint himself with the law of the land, before he advised what he was obliged to recede from.

The following are extracts from opinions of counsel, on the case of the Rev. Mr. Escott :

Your opinion is requested,-First,– Whether the clergyman of a parish cburch is, or is not, bound to perform the burial service according to the form prescribed in the Book of Common Prayer, over the corpse of a parisbioner dying in the parish, but who shall have been baptized only by a Wesleyan minister not in holy orders.

CHRIST. Observ. No. 31.

you

3 G

410 light of Dissenters to Interment in Parish Burial-Ground. (JULY

Answer.-"I conceive that he is bound. I rely on the decision of Kemp v. Wickes, which was acquiesced in by the parties at the time, has never since been questioned in a court of law, and which therefore must, till the doctrine there maintained is overthrown by a contrary decision, be assumed to be law. And I go further, and say, that in my opinion it is law, and would as such be upheld if the question were again raised." _Dr. Nicholl.

"I am of opinion that a clergyman of a parish church is bound, by statute, to perform the funeral service upon the burial of a child under the circumstances stated. The directions as to the office of burial contained in the Rubric must be taken, I think, as general and compulsory, subject to the particular expressed exceptions; and the elaborate judgment pronounced by Sir J. Nicholl, in the case of Kemp v. Wickes, 3 Phillimore (Eccl. Rep.), 264, is a high authority in point of reason, as well as law, to show that, in the present case, the child did not die unbaptized within the exception of the Rubric. The Rubric itself being confirmed by the statute 13 and 14 C. 2, c. 4, has, I conceive, the same force as if the offices which it prescribes had been particularly recited in the statute itself.”—Mr. STARKIE.

“ I am of opinion, that the officiating clergyman of a parish is bound, at common law, to bury every person who dies in his parish, if such person be not unbaptized, excommunicate,or felo-de-se ; and that baptism by any person in the name of the Holy Trinity is valid, and entitles the deceased to Christian burial, according to the form prescribed by the Book of Commou Prayer. In Kemp v. Wickes, Sir J. Nicholl said,— Our Church knows no such indecency as putting the body into consecrated ground without the service being at the same time performed.' ""_Mr. MATTHEWS.

Secondly.If he is bound to perform such burial service over such corpse, is it necessary to produce any, and what evidence, and at what time, to the clergyman, of the fact of such baptism having been administered ?

Answer.—“I conceive it would be proper, if the clergyman hesitates, or refuses to bury on application to him, to produce a copy of the baptismal register annexed to a declaration (made before a magistrate in pursuance of the statute relating to solemn declarations) by some person present at the baptism, that the child was baptized at a certain time and place, and by a certain person, with water, and in the name of the Father, Son, and Holy Ghost, and that the copy of the baptismal register thereunto anuexed, was a true copy of the entry in such register. It would be advisable to be prepared with this evidence when notice is given to the clergyman of the intention to bring such parishioner to be buried.

.. With regard to the proof of baptism given to Mr. Escott, I conceive it was sufficient; inasmuch as (whether strictly legal proof of baptism was or was not given then.) I think Mr. Escott's refusal cannot be justified, unless it should ultimately turn out that the child was in fact unbaptized, or at least that proof cannot be made that the child was baptized.”_Dr. Nicholl.

“With respect to the question, whether any evidence is necessary to be produced to the clergyman of the fact of baptism; as the Rubric requires the office of burial to be performed, except in the cases specified of a person dying unbaptized, excommunicate, or felo-de-se, I am strongly inclined to think, that in case of an adult, at least, the objection ought to come from the clergyman, inasmuch as it is not to be presumed that the deceased was within any of the predicaments which are to exclude performance of the burial service. In the case of an infant, however, or any other where an objection was likely to be made, it would be, at all events, sufficient, according to the observations of Sir John Nicholl, in the case of Kemp v. Wickes, 3 Phillimore (Eccl. Rep.), 303, that reasonable evidence should be given of the fact of baptism, the nature of which must depend on the circumstances of the case. It would be desirable, for this purpose, that the applicant should deliver, if he can, a certificate of the child's baptism by the minister who baptized it; or if that cannot be had, or cannot conveniently be had, a certified copy from the register, purporting to be signed by the party having the legal custody of such register. In either case, I should recommend a notice that the applicant was willing to produce such other reasonable proof as the clergyman might lawfully require; and if no other were required, it would, I think, be considered that the clergyman did not object to the evidence offered."- Mr. STARKIE.

“Reasonable evidence of the baptism, such as a man acting (not captiously, but) in the ordinary affairs of life would receive, is sufficient. A statement by a parent or other person present at the baptism would be sufficient, or if from any person connected with the deceased, would, I think, be sufficient to put him upon further inquiry if he doubted. In the present case the clergyman admitted

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