The Rev. Thomas Sweet Escott, - Appellant; Frederick George Mastin, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 24 June 1842 |
| Date | 24 June 1842 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 241
ON APPEAL FROM THE ARCHES COURT OF CANTERBURY.
Mews' Dig. tit. Ecclesiastical Law, XIX. Rubrics; XXXI. Burial, 1, 2; tit. Evidence, VI. Examination of Witnesses, 8 b. S.C. 6 Jur. 765; and, below, 2 Curt. p. 692; 1 N. of C. 552; and see Special Report, by Curteis, 1841. On point as to construction of rubrics, discussed in Martin v. Maconochie, 1868, L.R. 2 Ad. and E. 197; and Jenkins v. Cook, 1875, L.R. 4 Ad. and E. 489; distinguished by the Archbishop of Canterbury (Temple) in his Opinion on the Reservation of the Sacrament (London, Macmillan and Co., Lim., 1900), p. 7; and see MacColl, Reformation Settlement, 10th ed. pp. 663, et seq.
[104] ON APPEAL FROM THE ARCHES COURT OF CANTERBURY. The Rev. THOMAS SWEET ESCOTT,-Appellant; FREDERICK GEORGE MASTIN,-Respondent * [June 23 and 24, 1842]. A child baptised with water in the name of the Trinity, by a layman (a Wesleyan Methodist) not authorised to administer the rite of baptism. Held not to be " unbaptised " within the meaning of the rubric for the burial of the dead in the Common Prayer Book, as incorporated into the Uniformity Act, 13th and 14th Car. II., c. 4. A clergyman of the Church of England having refused to perform the office of interment, after due notice of the death, of a parishioner so baptised, suspended from the ministry for three months, under the 68th Canon of 1603. Construction of the rubrics of the Common Prayer Books of the years 1603 and 1661. Held to be cumulative and not substitutionary, of the rubric in force anterior to 1603, and not to affect the validity of lay baptism [4 Moo. P.C. 131, 137]. The admission of a witness that he is a member of a religious sect who hold a certain principle as a body, which, if acknowledged individually, would subject him to excommunication ipso facto, by the 12th canon of 1603. Held insufficient to disable him from giving evidence in the suit [4 Moo. P.C. 120]. And Quaere. If excommunication ipso facto, (if not absolutely abolished by Statute 53 Geo. III., c. 127,) disables a party from being a witness until absolved. This was an Appeal from the Arches Court of Canterbury, in a suit of the office of Judge, promoted by the Respondent, a parishioner and inhabitant of the parish of Gedney, in the county and diocese of Lincoln, against the Appellant, a minister of the Church of England, and vicar of Gedney, for refusing to bury the corpse of Elizabeth Ann Cliff, the infant daughter of Thomas Cliff and Sarah his wife. The proceedings commenced in the Arches Court of Canterbury, by virtue of Letters of Request from the Chancellor of the diocese of Lincoln. [105] The circumstances of the case were pleaded in the articles in the following manner. The first three articles pleaded the incumbency of the Appellant, and his obligation as a priest or minister of the Church of Englaiid, to observe the laws, canons, and constitutions ecclesiastical of this realm. The fourth article pleaded that by the 68th Canon, entitled, " Ministers not to refuse to christen or bury," it is decreed, ordained and contained as follows: - " No minister shall refuse or delay to christen any child, according to the form of the book of Common Prayer, that is brought up to the church to him on Sundays or holydays to be christened, or to bury any corpse that is brought to the church or * Present: Lord Wynford, Lord Brougham, Mr. Justice Erskine, and the Right Honourable Dr. Lushington. 241 IV MOORE, 106 ESCOTT V. MASTIN [1842] churchyard, convenient warning being given him thereof before, in such manner 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 excommunicatione, 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 the space of three months." The fifth article pleaded, that notwithstanding the premises, and in contempt of the law and canon aforesaid, the Appellant did, on two several occasions, happening respectively on the 16th and 17th of December 1839, expressly declare his intention not to bury, in the churchyard of Gedney aforesaid, the corpse of Elizabeth Ann Cliff, the infant daughter of Thomas Cliff and Sarah Cliff his wife, of the parish of Gedney aforesaid, if brought for burial to the said church or churchyard ; and that accordingly, and in pursuance of such declared determination, the Appellant, on the [106] 17th day of December, did, contrary to his duty, refuse to bury, in the churchyard of Gedney, the corpse of Elizabeth Ann Cliff, then brought to the said churchyard, convenient warning having been given him thereof. The sixth article pleaded, 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 his wife, who were Protestants of the class of people commonly called or known as Wesleyan Methodists, and who were, in the month of December in the year 1839, and had been for some time previous thereto, 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 of Gedney, had been first, to wit on or about the 1st day of October 1839, baptised 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 Son, and of the Holy Ghost, by the Eeverend Elisha Bailey, a minister, preacher, or teacher of the said class of people. That of the aforesaid fact of baptism, the said Thomas Sweat 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 Kev. Robert Bond, also a minister of the said class of people commonly called, or known as, Wesleyan Methodists, when they respectively urged and entreated 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, [107] 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 two several occasions aforesaid, as also subsequently on the said 17th day of December, when the corpse of the said infant having been brought to the churchyard of the said parish, application was made to him for the burial thereof, in the said churchyard, 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. The seventh, eighth, ninth, and tenth were merely general articles; stating the offence was one which subjected the Appellant to ecclesiastical proceedings, and that he ought to be canonically corrected and punished. These articles, with the exception of the fifth, sixth, and seventh, were admitted without opposition, and witnesses were produced and examined to substantiate the truth of the allegations contained in them. The effect of so much of this evidence as relates to the admission of the testimony of the material witnesses is stated in the Judgment. The Appellant filed a defensive allegation, 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 interment, 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 [108] he became an ordained minister of the Church of England. Second, that in the preface to the Form, and manner of making deacons, as 242 ESCOTT V. MASTIN [1842] IV MOORE, 109 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 admitted thereto according to the form hereafter following, or hath had formerly episcopal consecration or ordination." Third, that whereas it is pleaded in the sixth article that the deceased had been baptised by a minister, preacher, or teacher of the class called Wesleyan Methodists, such minister was unordained; and that any rite or form of baptism performed by him is to all intents and purposes null and void, in the sense of, and according to, the articles, canons, and rubrics of the Church of England. Fourth, that from and after the conferences holden at Hampton Court 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 tolerated by the reformed church of England, was repudiated by the ecclesiastical authorities of this realm, assembled at the said conferences; and in order to give effect to such repudiation, King James I. directed an alteration to be made according to the Liturgy of the Church of England, and from that period the, liturgy has not allowed the rite of baptism performed by unordained persons to be valid, but has held the direct contrary. [109] Fifth, that in the liturgy " imprinted by the deputies of Christopher Barber, printer to the Queen's Most excellent Majesty, a.d. 1595," in the part...
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