The Office of the Judge promoted by Mastin against Escott
| Jurisdiction | England & Wales |
| Judgment Date | 05 February 1841 |
| Date | 05 February 1841 |
| Court | Court of the King's Bench |
English Reports Citation: 163 E.R. 553
IN THE ECCLESIASTICAL COURTS AT DOCTORS' COMMONS
Affirmed 1842, 4 Moore P. C. 104; 13 E. R. 241 (with note). See also Titmarsh v. Chapman, 1844, 3 Curt. 840, In re Perry Almshouses, [1898] 1 Ch 391 affirmed [1899] 1 Ch. 21.
[692] the oiyice of the judge promoted by mastin against escott. Arches Court, Hilary Term, Jan 28th and 30th, Feb 3rd and 5th, 1841.-A child baptized with water and in the name of the Trinity by a person having no authority to administer the rite of baptism, although irregulaily baptized, ia not anbaptized according to the meaning of the rubric prefixed to the order for the burial of the dead in the Book of Common Prayer. A clergyman refusing to perform the office for the interment of the dead over the body of a parishioner so baptized, due notice of the death having been given him, suspended for three deaths. [Affirmed 1842, 4 Moore P. C. 104 j 13 E. H. 241 (with note). See also Titmatsh v. Chapman, 1844, 3S Curt. 840 , In e Perry Almshouses, [1898] 1 Ch 391 . affirmed [1899] iCh. 21.] This waa a proceeding instituted by Mr. Frederick George Mastin of Gedney in Lincolnshire against the Reverend Thomas Sweet Escott, the vicar of that parish, "for refusing to bury the corpse of Elizabeth Ann Cliff, the infant daughter of Thomas and Saiah Cliff, of the parish of Gedney, convenient warning having been given him thereof." The proceedings commenced in this Court by virtue of letters of request from the chancellor of the diocese of Lincoln. The articles, which were admitted without opposition, were in substance as fallow s:- The 1st, 2d, and 3d articles pleaded the incumbency of Mr. Escott, and his obligation as a priest or minister of the Church of England to observe the laws, canons, and constitutions ecclesiastical of this realm. 4th. That by the 68th canon, entitled " Ministers not to refuse to christen or bury," it is decreed, ordained and contained as follows ò-"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 [693] holydays to be christened, or to bury any corpse that is brought to the church or churchyard, convenient warning being given him thereof before, in such mariner and form as is prescribed in the said 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 excom-muuieatione 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 by the space of three months " 5tih. That notwithstanding the premises, and 111 contempt of the law and canon £. & A, in.-18* 554 MAHTIN I'. ESCOTT 2 CURT. 634 aforesaid, Mr. Escott did, on two several occasions, happening iet pectively on the 16th and 17th of December, 1839, expressly declare his determination not to bury in the churchyard of Gedney aforesaid the corpse of Elizabeth Ann Cliff, the infant daughter of Thomas Cliff' and Sarah Chft, his wife, of the parish of Gedney aforesaid, if brought for buiial to the said church or churchyard ò and that accordingly, and in pursuance of such declared determination, the said T. S Eacott, on the 17th day of the said month of December, or on some other day in the said month, did, contiary to his duty, refuse to bury 111 the churchyard of Geduey aforesaid the corpse of the said Elizabeth Ann Cliff, then brought to the said church or churchyard, convenient warning having been given him thereof. 6th. That the said Elizabeth Ann Cliff, the infant aforesaid, died within the parish of Gedney, and that such infant, being the daughter of Thomas Cliff" and Sarah Cliff, his wife, who are Protestants [694] of the class of people commonly called or known as Wesley an Methodists, and who were in the months of August, September, October, November, and December, 1839, and had been for some time previous thereto, in the habit of frequenting or resoitmg to a chapel or place of religious woiship established by, or for the use of, a congregation of the said class of people, situate within the said parish of Gedney, had been first, to wit, on or about the 1st day of October, 1839, baptized according to the rite or form of baptism generally received and observed among the said class of people commonly called or known as Wesleyan Methodists, that is to say, with water, and in the name of the Father, and of the Sou. and of the Holy Ghost, by the Reverend Ehsha Bailey, a minister, preacher, or teacher of the said class of people. That of the aforesaid fact of baptism the said Thomas Sweet Escott was informed, as well on the 16th day of the said month of December, 1839, by the said Thomas Cliff, as on the morning of the said 17th day of the said month, by the Reverend Robert Bond, also a minister of the said class of people commonly called or known as Wesleyan Methodists, when they respectively urged and iutreated him, on such two several occasions, to consent to bury the corpse of the said infant, and that by means of such information, as well as by other means, the said Thomas Sweet Escott was, previous to, and at the time of his refusal to bury the said corpse, well and sufficiently apprised and aware of such fact of baptism, and that on each of the twa several occasions aforesaid, as also subsequently on the said 17th day of December, when the corpse of the said infant having been [695] brought to the churchyard of the said parish, application was made to him for the burial thereof in the said churchyaid, in the manner and form prescribed by the Book of Common Prayer, he did make or assign the aforesaid fact of baptism expressly as the pretext or ground of refusing to comply with such entreaties and application. 7th. That Mr Eseott, for such the offence in the preceding articles set forth, ought to be canonieally corrected and punished. 8th, 9th, and 10th. The usual formal articles The whole of the articles, with the exception of the 5th, 6th, and 7th, were admitted to be time . and for the proof of those articles witnesses were produced and examined on the part of Mr. Mastin. A defensive allegation, on the part of Mr. Escott, was afterwards admitted, pleading- First, that in forming his determination not to bury the corpse of Elizabeth Ann Cliff, and in refusing to read the burial service at its inteimerit, he did not act in contempt of the laws, canons,, and constitutions ecclesiastical of the Church of England , but that, on the contrary, he acted 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 Second, that in the preface to the Form and Manner of Making Deacons, as established by the liturgy of the Church of England, it is expressly set forth and provided "that none shall be accounted or taken to be a lawful bishop, priest, or deacon, in the United Church of England or Ireland, or sufficient to execute any of the said functions, except he be called, tried, examined and [696] admitted thereto according to the form hereafter following, or hath had formerly episcopal consecration or ordination." Third, that whereas it is pleaded rn the sixth article that the deceased had beerr baptized by a minister, preacher, 01 teacher of the class called Wesleyan Methodists , auch minister was unoidamed, and that any rite or form of baptism performed by ZClTfT. 697 MASTIN V. ESCOTT 555 him is to all intents and purposes null and void, in the sense of, and according to, the articles, canons, and tubnc of the Church of England Fouith, that from and after the conferences holden at Hampton Coiut, in 1603, the practice of the Church of Rome, which had hitherto permitted the rite of baptism to be performed by laymen and midwives, under license from the bishops of their respective dioceses, and which practice had up to that period been toleiated by the reformed Church of England, was repudiated by the ecclesiastical authorities of this realm assembled at the said confeiences , and in order to give effect to such repudia-tion, King James I dnected an alteiation to be made accoidingly in the lituigy of the Church of England, and from that period the Lituigy has not allowed the nte of baptism performed by unordained persons to be valid, but has held the dnect contrary. Fifth, that in the liturgy, "impunted by the deputies of Chnstopher Barber, printer to the (Queen's most excellent Majesty, A.D 1595," in the pait entitled "Of them that be baptized in pnvate houses," the rubric directs as follows:-"Fust, let them that be present call upon God for [697] His grace, and say the Lord's Piayer, if the tame will butter, and then one of them shall name the child, arid dip him in water, or pour water upon him, saying these woids, ' I baptize thee in the name of the Father, ajid of the Sou, and of the Holy Ghost'" Sixth, that the liturgy of the Church of England, entitled, "The Book of Common Pi aye f, with the Psalter or Psalms of David, of that Translation which is Appointed to be Used in Churches, imprinted at London by Robert Barber, punter to the King's most excellent Majesty, 1606, cum pnvilegio/'in the part entitled, "Of them that are to be baptized in private houses in the time of necessity by the ministei of the parish, or any other lawful minister that can be procured," the rubric enjoins as follows.-"First, let the lawful minister and them that be present call upon God for His grace, and say the Lord's Prayer1, if the time will suffer, and then the child beiug named by some one that is present, the said lawful minister shall dip it iu water, or pour water upon it, saying these words, 'I baptize thee in the name of the Father, and of the Son, and of the Holy Ghost'" Seventh, that in the rubric of the Book of Common Prayer, which is a part and parcel...
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The Rev. Thomas Sweet Escott, - Appellant; Frederick George Mastin, - Respondent
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