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is not precluded, supposing he be excommunicated; for nothing follows, LAY BAPTISM. except that he may be imprisoned; and it is on that ground I say he ought Judgment of not to be called upon to answer whether he is guilty of the crime of heresy Sir Herbert or not, as his evidence might be used in proceedings against him. If, therefore, there was any incapacity, either in the witnesses or the promoter Chapman. of the suit, it is removed by the act of parliament.

"But what is the meaning of the expression, 'excommunication ipso facto,' in the canons? In the case of a person declared excommunicate ipso facto for aiding in a clandestine marriage, who is liable to be so excommunicated, these Courts have held, in the case of Colli v. Colli (1) and in Scrimshire v. Scrimshire (2), that a witness who had incurred such a penalty must be absolved for the purpose of giving evidence; and having been absolved for that particular purpose, for that purpose he was in the state of an unexcommunicated person, and that the fact may be taken notice of ex officio in the ecclesiastical court in a question respecting a clandestine marriage; and this doctrine was acted upon in those cases. But I put it to the counsel conducting the defence of the party, whether there was any instance in which a person had been held to be guilty of an offence incurring excommunication ipso facto without a declaratory sentence, except that of being present at a clandestine marriage, and no instance was pointed out to the Court; and it is quite impossible to look through the commentators, as to the doctrine of excommunication ipso facto, without seeing that there is no such case. I am not aware of any case in which excommunication ipso facto does not require a declaratory sentence. Lyndwood, under every head in which excommunication is said to be incurred, requires "sententia declaratoria." In the first book of the Constitutiones (3) it occurs repeatedly; and it is useless to go through a great number of passages in which it is expressly said that a declaratory sentence is necessary before a party can be visited with the effects of excommunication. When he is proved guilty of an offence incurring the penalty of excommunication, then that penalty attaches. It never can be held that a person has incurred the penalty of excommunication until he is proved guilty of the offence, and the sentence is pronounced. He must be proved guilty of the offence, and the law then affixes the punishment; but excommunication ipso facto cannot attach to a person who has no opportunity of defending himself. What would be the consequence? According to Lyndwood (4), there are no fewer than 170 cases in which excommunication ipso facto is incurred by parties. In almost every one of these cases it is mentioned that a sentence of excommunication is required; the law does not inflict the penalty upon the party without a sentence declaratory at least of the crime he has committed. I am, therefore, of opinion, that whatever be the consequence of the excommunication ipso facto, it does not attach till there has been a sentence against the party.

"Then it is said that there are persons who undertake to prove that the parties have been guilty of the offence; but in objections to such parties the objection must be made so as that the party may defend himself; not in the way proposed with regard to these three persous, that, when one comes to

(1) Cit. in Grant v. Grant, 1 Lee (Sir G.), 599.

(2) 2 Consist. 399.

(3) Lib. 1. tit. 2.
(4) Lib. 5.

Jenner Fust in

Titchmarsh v.

Judgment of
Sir Herbert

Jenner Fust in

Titchmarsh v.
Chapman.

person,

LAY BAPTISM. be examined as a witness, the Court is to declare that he is an excommunicated and therefore not to be admitted as a witness: that is not the way to proceed; it must be in such a form and shape that the party may be able to defend himself before a court of competent jurisdiction, and the parties are not here before the court in a criminal suit, to defend themselves against a charge, which is to entail the penalty of excommunication. What is the fact here? Three persons are included in the charge. They cannot be proceeded against in this manner in a criminal suit; there must be a separate charge against each. Is the charge made against Mr. Titchmarsh, or Mr. Moase, or Mr. Rumbold? Or are all three persons to be declared by the Court to be heretics and excommunicate, without being heard, without any proceeding being had before a court competent to try them? I am of opinion that such is not the mode in which parties are to be excluded from giving evidence as witnesses, or disqualified from promoting the office of judge.

"Cases of this kind are not very frequent; but there is one case to which the Court has had an opportunity of looking, in Dr. Andrews' notes; the case of Arthur v. Arthur (1), which was a case of a clandestine marriage, and it was held that a declaratory sentence was necessary to repel the witnesses. And in that case the passages from Lyndwood and other authorities were cited to show the necessity of a declaratory sentence. Requiritur tamen sententia declaratoria' is the gloss of Lyndwood upon the text, 'excommunicationi subjaceant ipso facto.' (2) A declaratory sentence was required, on the ground that it is the sentence of the law, and not of the judge. Till the judge pronounced that the exigency of the case required excommunication, it could not attach. There is this passage in Lyndwood:- De pœnis quas infligunt canones multæ notantur. Et intellige, hanc pœnam fore arbitrariam eo quod non est expressa: talis namque pœna canonica dici potest, eo quod per canones sit dirigenda: unde cum multæ sint pœnæ canonica potest pœnam infligens ab earum aliqua inchoare secundum qualitatem culpæ; sic quod incipiat a leviori ipsi culpæ correspondente.' (3)

"Now, under these circumstances, I am of opinion that this article of the allegation, pleading that these parties are excommunicate ipso facto, is not admissible, as there is no sententia excommunicatoria; and I am further of opinion that the act of parliament, 53 Geo. 3. c. 127., has removed their incapacity, if any was incurred."

FEES FOR
BAPTISM.

No fees are due
of common
right for
baptism.

4. FEES FOR BAPTISM.

No fees are due of common right for baptism; thus in Burdeaux v. Lancaster (Dr.) (4) it appeared, that 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

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BAPTISM.

him for a fee of 2s. 6d. due to him, and 1s. for the clerk. A prohibition was FEES FOR moved for, and it was then urged, that this was an ecclesiastical fee due by the canon; on which Chief Justice Holt observed, "Nothing can be due of common right: and how can a canon take money out of laymen's pockets? Lyndwood says it is simony to take any 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 does 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 died 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."

Baptism cannot be delayed for

the non-payment of the

It is very questionable whether, in places where baptismal fees have been paid by prescription, the minister could enforce payment if they were refused. The minister is bound to comply with the injunctions contained in the 68th and 69th canons (1), and cannot refuse or delay baptism if the baptismal fees. applicants be unobjectionable, otherwise than for the non-payment of their baptismal fees.

The exaction of money for the administration of the sacraments appears to be in opposition to the following constitution: "We do firmly enjoin that no sacrament of the church shall be denied (2) to any one, upon the account of any sum of money (3); because if any thing hath been accustomed to be given (4) by the pious devotion of the faithful, we will that justice be done thereupon to the churches, by the ordinary of the place (5), afterwards." (6)

Stat. 52 Geo. 3. c. 146. s. 16. (an act for the better regulating and preserving parish and other registers of births, baptisms, marriages, and burials in England), provides, that nothing therein contained shall in any manner diminish or increase the fees (7) theretofore payable or of right due to any minister for the performance of any duties relating to baptism, or to any minister or registrar for giving copies of baptismal registrations; but that all due, legal, and accustomed fees on such occasions, and all powers and remedies for recovery thereof, shall be and remain as though that act had not been made, and the enactments of stat. 6 & 7 Gul. 4. c. 86. do not affect the right of any officiating minister to receive the fees that were usually paid before 17th August 1836, for the performance or registration of any baptism.

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Questionable whether a

minister can

enforce any baptismal fee.

Stat. 52 G. 3. c. 146. s. 16. Right to

ancient fees

preserved.

REGISTERING
BAPTISMS.

Principal statutes ap

plicable to the registering of baptisms.

c. 146. s. 1.

5. REGISTERING Baptisms.

The principal statutes which relate to the registering of baptisms are, stat. 52 Geo. 3. c. 146., stat. 11 Geo. 4. & 1 Gul. 4. c. 66., stat. 6 & 7 Gul. 4. c. 86., and stat. 7 Gul. 4. & 1 Vict. c. 22. (1)

By stat. 52 Geo. 3. c. 146. s. 1. (which recites that the manner and form Stat. 52 Geo. 3. of keeping and of preserving registers of baptisms, &c. would greatly facilitate the proof of pedigrees of persons claiming to be entitled to real or personal estates, and be otherwise of great public benefit and advantage), registers of public and private baptisms, solemnised according to the rites of the church, are to be made and kept by the officiating minister of every parish, (or of any chapelry where the ceremonies of baptism, marriage, and burial have been usually, and may according to law, be performed) in books of parchment, or of good and durable paper, to be provided by his Majesty's printer as occasion may require at the expense of the parish; and the entries are to be made in accordance with the forms contained in a schedule to the statute. (2)

Stat. 52 Geo. 3 c. 146. s. 3.

Registers to be in separate register books.

c. 146. s. 4.

Certificate of

baptism, when

By stat. 52 Geo. 3. c. 146. ss. 3, 4, 5, 6, 7, 8, 9, and 10., the minister is, as soon as possible after the solemnisation of every baptism, whether private or public, to record and enter in a fair and legible hand-writing, in the proper register book, the several particulars described in the schedule to the statute, and sign the same; and in no case, unless prevented by sickness or other unavoidable impediment, later than within seven days Stat. 52 Geo. 3. after the ceremony has taken place; and whenever the ceremony is performed in any other place than the parish church of any parish, (or the chapel of any chapelry providing its own distinct registers,) and is performed by any minister not being the rector, vicar, minister, or curate of such parish or chapelry, the minister performing the ceremony is, on the same or on the next day, to transmit to the rector, vicar, or other minister of such parish or chapelry, or his curate, a certificate of such baptism in the form contained in a schedule to the statute (3); and the rector, vicar, minister, or curate of such parish or chapelry is thereupon to enter the baptism according to such certificate in the book kept pursuant to the statute for such purpose; and is to add to such entry the following words, According to the certificate of the Reverend transmitted to me

performed in any other place

than the parish

church or

churchyard, to

be according to
Schedule (D.),
and the entry of
such baptism
to be dis-
tinguished
accordingly.

Stat. 52 Geo. 3. c. 146. s. 5.

Register books to be kept in custody of the officiating

minister, in an iron chest,

which is to be provided at the

parish.

on the day of —.'

The several books wherein such entries shall respectively be made, and all register books in use before the statute, are to be deemed to belong to every such parish or chapelry respectively, and be kept by and remain in the power and custody of the officiating minister of each respective parish or chapelry, and be by him safely and securely kept in a dry well painted iron chest, to be provided and repaired as occasion may require at the expense of the parish or chapelry, and such chest containing the books is to be constantly kept locked in some dry, safe, and secure place within the usual place of residence of such minister, (if resident within the

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BAPTISMS.

parish or chapelry,) or in the parish church or chapel: and such books REGISTERING are not, nor are any of them, to be taken or removed from or out of such chest at any time or for any cause whatever, except for the purpose of making such entries therein as aforesaid, or for the inspection of persons desirous to make search therein, or to obtain copies from or out of the same, or to be produced as evidence in some court of law or equity, or to be inspected as to the state and condition thereof, or for some of the purposes of the statute; and immediately after making such respective entries, or producing the books respectively for the purposes aforesaid, the books are forthwith again to be safely and securely deposited in the chest.

Stat. 52 Geo. 3. c. 146. s. 6. ◄ Annual copies of registers to be made, an d

to be verified by the officiating minister.

At the expiration of two months after the end of every year, fair copies of all the entries of the several baptisms, marriages, and burials, which shall have been solemnised, or shall have taken place within the year preceding, are to be made by the resident or officiating minister (or by the churchwardens, chapelwardens, clerk, or other person duly appointed for the purpose under and by the direction of such minister), on parchment, in the same form as prescribed in the schedule to the statute (to be provided by the respective parishes); and the contents of such copies are to be verified and signed in the form following by the officiating minister of the parish or chapelry to which such respective register book appertains: I, A. B., rector FORM OF VE[or as the case may be] of the parish of C. [or of the chapelry of D.], in RIFICATION OF the county of E., do hereby solemnly declare, that the several writings oF BAPTISMS hereto annexed, purporting to be copies of the several entries contained TO BE TRANSin the several register books of baptisms, marriages, and burials of the REGISTRAR parish [or chapelry] aforesaid from the day of -to the -day

of

are true copies of all the several entries in the said several register books respectively, from the said day of- to the said

day of ; and that no other entry during such period is contained in any of such books respectively, are truly made according to the best of my knowledge and belief. A. B. Which declaration is to be fairly written, without any stamp, on the said copy immediately after the last entry therein; and the signature to such declaration is to be attested by the churchwardens or chapelwardens, or one of them, of the parish or chapelry to which such register books belong: and copies of such register books so verified and attested are, whether the parish or chapelry is subject to the ordinary, peculiar, or other jurisdiction, to be transmitted by the churchwardens or chapelwardens, after they or one of them shall have signed the same, by the post to the registrars of each diocese in England, within which the church or chapel is situated, on or before the 1st day of June in every

year.

THE REGISTER

MITTED TO THE

Stat.52 Geo. 3.

c. 146. s. 7. Annual copies of register books to be transmitted to the registrars of each diocese by

the churchwardens.

Stat. 52 Geo. 3.

c. 146. s. 8. Registrars to

make reports to bishops, whether such copies have

The registrar of every diocese in England is, on or before the 1st day of July in every year, to make a report to the bishop of such diocese, whether the copies of the registers of the baptisms, marriages, and burials in the several parishes and places within such diocese, have been sent to such registrar in the manner and within the time required by the statute; and in the event of any failure of the transmission of the copies of the registers as so required, by the churchwardens and chapelwardens of any parish or chapelry in England, the registrar is to state the default of the parish or chapelry specially in his report to the bishop: and if the minister Stat. 52 Geo. 3.

K

been sent.

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