The Office of the Judge promoted by Titchmarsh v Chapman
| Jurisdiction | England & Wales |
| Judgment Date | 31 May 1844 |
| Date | 31 May 1844 |
| Court | Ecclesiastical Court |
English Reports Citation: 163 E.R. 920
IN THE ECCLESIASTICAL COURTS AT DOCTORS' COMMONS
S. C. 3 Notes of Cases, 377.
[840] the office of the judge promoted by titchmarsh v. chapman. Arches Court, May 31st, 1844.-A child, baptized with water in the name of the Holy Trinity by a person alleged to be in heresy or schism with the Church of England, is not unbaptized within the meaning of the rubric for the burial service, in the Book of Common Prayer -Excommunication, ipso facto, must be preceded by a declaratory sentence of a competent Court. [S. C. 3 Notes of Cases, 377.] [See the facts of this case reported ante, p 703.] The Reverend Mr. Chapman having appeared absolutely, an allegation was offered on his part, and was opposed by The Queen's advocate and Acldams Philhmore and Harding in support Sir Herbert Jenner Fust. The question before the Court in the present case respects the admissibihty of an aliegation, which is offered on behalf of the Rev W. H. Chapman, the party cited in this cause, which is a cause of office for refusing to bury the corpse of a child brought to the churchyard, of which he is the vicar, and of whoee interment due notice is alleged to have been given. The question comes before this Couit by virtue of letters of request from the bishop of the diocese of Ely, within whose diocese the paity cited holds preferment. The citation in the cause was returned on the fourth session of Easter Term in the last year, and an appearance was given to that citation, but under protest ; that protest was extended in acts of Court, for the reasons therein set forth, and pressed in argument; the Couit was of opinion that the protest could not be sustained, and 841] accordingly overruled it, a prohibition was then applied for and refused, upon which an absolute appearance was given for the party cited, a libel, setting forth the charge against the party cited, was brought in and admitted; a negative issue was given to the articles; witnesses were examined, and publication prayed; and this allegation is now offered by way of defence to the charge brought against this reverend gentleman The substance of the defence is that this child was unbaptized within the true meaning of that term, as used in the rubric for the burial service, it being alleged in the articles, and not denied, that the child was baptized by a minister of that class of Protestant dissenters termed Independents, according to the form used by them, that is, with water, in the name of the Father, the Son, and the Holy Ghost; and it is pleaded, on behalf of the Rev. Mr. Chapman, that such baptism is schismatical and heretical, and such as not to entitle the corpse of this child to have the burial service read over it. I had hoped that after the late case of Mastin v. fiscott,(a) after the sentence m this Court, and the affirmance of that sentence in the superior Court, this question was set at rest, and that no further resistance would have been offered to what was declared, both by this Court arid by the Court above, to be the law on this question. This Court is bound, upon proper application made, to enforce the law; this Court has no discretion whether or not it will entertain a suit of this description, which [842] is clearly within its jurisdiction, neither can it refuse to proceed to pronounce sentence when the suit is before it. It is now contended that this question is not concluded by what took place in Mastin v. Estott; and it is said that it was only decided in that case that an infant who had been baptized by a Wesleyan minister, in the name of the Trinity, was not unbaptized; and that the rubric which declares that the burial service shall not be read o\"er persons who die unbaptized did not apply to such case. Certainly, in Mastin v. Escott, nothing did turn on the suggestion of heresy or schism; the defect in the baptism, as there alleged, was the want of holy orders in the person who had performed that ceremony. In the present case this question has been directly raised; it is distinctly averred that this baptism was, and is, heretical, having been (a) 2 Curt. 692, affirmed by the Judicial Committee, 4 Moore, P. C. 104, 3CURTi843. TITCHMARSH V. CHAPMAN 921 performed by a person not qualified to administer the rite of baptism. The Court may here say that in Mastm v. Esrott, both in this Court and in the superior Court, the question was stated to be confined to this point, whether baptism could be duly administered by a Wesley an minister; nothing turned on the question of heresy or schism; the case was so stated by the learned Lord who delivered the judgment of the Court above. The distinction does arise in the present case, and the question is directly raised whether or no baptism of this description, pleaded to be heretical and schiamatical, is invalid baptism, so as to take this case out of that decision in Mcibtm v. seott. Now, although it is perfectly tiue there has been no absolute decision on the point, for it has not as [843] yet been distinctly raised, and Couits of law never determine more than the question raised before them; yet undoubtedly the greater part of the argument in Mast-in v. Escott turned on the question whether schismatieal or heretical baptism was or was not valid , it was part of the object, of the party there cited, to shew that the baptism in that case was heretical and schismatiealj and not simply lay baptism, and the arguments weie founded principally on its being heretical and scbismatical, and although, as I have said, it was not necessary in that case to decide whether schismatieal and heretical baptism was valid, or invalid, the arguments were principally directed to that point. It is not, however, neceisary t enter into the arguments which were so elaborately urged on the Court in that case; I have stated that they principally turned on this point; reference was made to the different opinions entertained \\\ the primitive Church as to the validity of sach baptism : the authority of Tertullian was cited in support of that baptism, and the opinions of St. Cyprian, Firmihan, and writers in the second and third centuries in opposition to it. Again, reference was made to the Council of Aries, to the opinion of St. Austin, and to the general opinion in favour of that proposition; also to the opinions of the Eastern and Western Churches, and to the practice down to the time of the Reformation, and thence to the present time The strength of the arguments certainly turned on the point whether schismatieal or heretical baptism was or was not valid. It does appear to me, therefore, that this present question is reduced to a narrow compass, and I say so at the present [844] time, because I find, in the 7th article of this allegation, that the validity of lay baptism seems hardly to be brought in question. Now, the 7th article is to this effect, " That by the practice and usage of the primitive Church, and the laws, canons, and constitutions of the Church of England, any persons, whether infants or adults, baptized in the name of the Father, and the Son, and the Holy Ghost, by heretics, could not be admitted into the Church, or allowed to partake of her privileges until they had by themselves, or by their sponsors, sought for such admission, according to the form directed by the Church, although it might not be essential to reiterate the sacrament of baptism." This article does appear to me to admit the whole question of the validity of lay baptism; all that it says is this, that by the canons and constitutions of the Church of England, persons so baptized could not be admitted into the Church, until by themselves or their sponsors they had sought for such admission, according to the form prescribed by the Church. It therefore seems to me that it would be utterly superfluous to enter into a discussion of the authorities, cited on the one aide and on the other, for the sole purpose of determining whether this baptism is valid or not, when it is not contended that this baptism is invalid in itself. It is not said that such baptism is null and void, so that the question is whether baptism, so conferred, entitles the party recipient to have the burial service of the Church read over his coFpse, when it is duly brought to the churchyard for interment. The Court, therefore, is relieved from the necessity of entering into that first discussion. Now, although this case has [845] remained long undetermined, that has arisen from inevitable circumstances,(a) and not from any doubt which the Court has entertained with respect to the law of this case ; and it being not now questioned, that baptism, by heretics or laymen, is a valid baptism, and need not to be reiterated (indeed one of the authorities, cited by the learned counsel who suppoit this allegation, went to shew that such baptism need not be repeated); and this surely was acknowledging it to be ?alid in itself ; and if so, even although received at the hands of persons who disbelieve in the doctrine of the Trinity, the recipient cannot be said to die unbaptized. There cannot then be any doubt in the mind of the Court as to what must be the (a) The indisposition of the Judge. 922 TITCBMARSH V. CHAPMAN 3 CUKT. 846 fate of this case, when, as I have shewn, the baptism itself is admitted to be valid, and the only doubt I feel is whether this allegation ought not to be admitted for the purpose of allowing the question to go up to the Privy Council, in order to be discussed before the highest tribunal. This Court would be very much inclined to pursue the course which it adopted in the case of Mastm v. Escott, namely, to admit the allegation, for the purpose of enabling the parties, if so inclined, to take the opinion of the superior Court. But if the parties wish to take a higher opinion upon the admissibility of this allegation, they can apply for leave to appeal from its rejection ; for that it must...
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...they are or are not competent to give evidence ; or whether their testimony will or will not be sufficient. 920 TITCHMARSfl V. CHAPMAN 3 CURT 840. Therefore, at the present moment, I content myself with rejecting the seventeenth article ; admitting the rest of the articles to proof, and res......