MISCELLANEOUS INTELLIGENCE. CORRESPONDENCE ON THE STATE OF BAPTISMAL REGISTRATION AMONGST DISSENTERS. South Shields, May, 1829. To the Editors.-AN anonymous correspondent, evidently "learned in the law," has thought it necessary, in your number for April, to make some ingenious strictures on a letter of mine to Lord J. Russell, on the weight and legality of Dissenters' registrations of baptism. J.G. has, in my humble comprehension, almost buried the subject in a cloud of legal reasoning, very good of the kind, but not much adapted to clear up, either in his own or other minds, any doubts or difficulties which might hang over and obscure the points at issue. With a very peculiar modesty, unusual in a lawyer when treating on a subject of his own profession, he begs permission to ask "whether Dissenters are in this instance really in a worse condition than their fellow subjects; and what is the nature of those legislative enactments your correspondents wish to obtain ?" To ask such a question, at such a quarter, after our humble attempt to demonstrate our situation, and our explanation of not only "the nature of the legislative enactment," but the very details of the measure, bespeaks, on one side or the other, something like a lack of conception and understanding. But, doubtless, such an inquiry was intended simply as a sort of questionable proposition, to be proved by the arguments adduced in the sequel of his legal article. To examine, then, the first portion of the question as it stands, and upon which depends entirely our case as Dissenters, "whether Dissenters are," with regard to the legal weight of the registration of their baptisms, "really in a worse condition than their fellow subjects." England is divided by law into Dissenters and members of the Church establishment. Every subject must either be a member of the establishment, or he must not; if not, he is a Dissenter. "Fellow subjects,” in J. G.'s question, must, therefore, mean members of the establishment. Now, that Dissenters are differently situated, and in a worse condition in this instance, than members of the establishment, cannot admit of a reasonable doubt, when we consider : That the registration and certificates of Dissenters' baptism, though admitted occasionally as a sort of documentary presumptive evidence in a court of law, are not, nor is it possible they can possess the same influence as registrations of the establishment; because one is a private, perishing, and unauthorized -the other a public, permanent, and legalized record. Dissenters chapels and places of worship have occasionally, like the Roman empire, their decline and fall. They possess no certain funds set apart for their support and continuance, the death or the unpopularity of a preacher, the mismanagement of trustees, the fluctuating notions of the public, or some undefinable cause, will, as is often the case, leave a chapel without a congregation. The records kept by one of the congregation, perhaps in his own house, who, having no great personal interest in the matter, are suffered to fall into decay. The removal of the keeper of these entries by death, or any sudden change of place or circumstance, will perhaps cause them to be misplaced and eventually lost. On assuming the most favourable view, they may exist one or two generations, but there being no permanent place to register or preserve them, more will not have passed away ere they will no longer be traced; lost to all purposes for which they could be of service, in unravelling disputed descents for the purpose of discovering rightful heirs, &c. Or even should a record, by any chance, be preserved for a series of years, and deposited, as it must be, in the hands of a private, irresponsible person, should a claimant, anxious to elucidate his connexion, be a member of the sect, or a friend of the preserver of the record; how favourable the opportunity, and how strong the inducement for an alteration, or even suppression, to meet the views of the friendly claimant. This is a temptation to which no one ought to be exposed; and being so exposed, and having such opportunity to pervert or even suppress the truth, not only with impunity but with great personal advantage, any certificate of baptism therefore, coming from so private, irresponsible and suspicious a source, no court of law could receive as evidence with any degree of confidence. They are merely, at the best, but private entries, as good but no better than the insertions in a family Bible or any other book. "Their" (Dissenters) "registers of births and burials, as likewise certified extracts from them, are admissible evidence in the rank of private entries."* To be garbled or suppressed as the interests of the proprietors or their friends may dictate; always to be received with extreme caution, and never to be admitted but as collateral evidence. Carry into a court of law two contradictory certificates of the same baptism; one from a Dissenter's private register; the other from the Registrars of the church authorized record, and leave it to the court to attach the weight of evidence which it will receive, and which it will reject; of course, and justly, the Dissenter's certificate would be thrown out as worthless, while that of the establishment, by being a public record according to Act of Parliament, would be received with the most implicit credence. If such be the situation of Dissenters "in this instance, are they not in a worse condition than their fellow subjects?" With regard to its effects upon parochial settlement and admission into corporations, they are of a slight and transient nature. In these cases, from their comparatively recent dates, there can generally, I imagine, be produced without difficulty, sufficient evidence to substantiate the truth. But when, in a lapse of years, all living witness, all remembrance, all tradition, and almost every other proof but a permanent registration have been swept away; when private records, from their apparent inutility and perishable nature, have been allowed to moulder into dust, and there remains no other collateral or presumptive proof to guide; upon what but an unsuspected and well-preserved public record of registration can a court depend for tracing out a descent and discovering an heir? which, however ancient, may be relied on as the strongest, most direct, and almost the only exclusive evidence that can in such cases be adduced. An extract from Phillip's Law of Evidence will assist much in explaining my views. Chap. VII. Sect. 7, p. 174. With regard to hearsay on questions of pedigree. On inquiry into the truth of facts, which happened a long time ago, the courts have varied from the strict rules of evidence applicable to modern facts of the same description, on account of the great difficulty of proving these remote fucts in the ordinary manner, by living witnesses. On this principle, hearsay and reputation (which latter is the hearsay of those who may be sup *Beldam on the Laws affecting Protestant Dissenters. Stevens v. Moss. Cowp. 594. posed to have known the fact, handed down from one to another) have been admitted as evidence in cases of pedigree."* Thus declarations of deceased members of the family are admissible evidence to prove relationship, as, who was a person's grandfather, or whom he married, or how many children he had; or as to the time of a marriage, or of the birth of a child, and the like, "of which it cannot be reasonably presumed that better evidence is to be procured." In ancient times, while the feudal system prevailed, great facilities of establishing descents were afforded by means of inquisitions post mortem. The heads of families, upon these occasions, made solemn declarations, which were preserved as matter of record. But these having now grown into disuse, it is often extremely difficult to prove a pedigree. It is not, however, every statement or tradition in the family that can be admitted in evidence. "The tradition," said Lord Eldon, in the case of Whitlocke versus Baker,+ must be from persons having such a connection with the party to whom it relates, that it is natural and likely, from their domestic habits and connections, that they are speaking the truth, and that they could not be mistaken. Declarations in the family, descriptions in wills, descriptions upon monuments, in Bibles and registry books, are all admitted upon the principle that they are the natural effusions of a party who must know the truth, and who speaks upon an occasion, when his mind stands in an even position, without any temptation to exceed or fall short of the truth." Lord Thurlow appears to have adopted the rule, with the same limitations. It was his opinion (as the Chancellor stated, in the late case of the Berkeley peerage, when this subject was much discussed) that declarations made for the express purpose of being given in evidence, on a question of pedigree, could not be received. If, for example, he said, a person were to take up his family Bible, and, conceiving the idea of its being afterwards produced in evidence, were to write down, uno flatu, the births and deaths of his children, such an entry would not be admissible." In page 307 we also find : 66 By the Canons of 1603,§ copies of parish registers, in every diocese, ought to be regularly transmitted once in every * Per le Blanc, J. in Higham ver. See also the Ridgway, 10 East, 120. Chancellor's judgment in the case of Vowels v. Young. 13. Ves. jun. 143. 13 Ves. jun 143 13 Ves. 514. § Can. 70 Gibson's Codex, p 204. year to the Diocesan, 'or his Chancellor; a regulation extremely important for the purpose of guarding the evidences of title and pedigree, but which has been so generally neglected as to make it necessary for the legislature to interpose and pass an act for their better preservation. It is by this statute enacted, that copies of the register books, verified by the officiating minister of the parish, shall be transmitted annually by the churchwardens, after they, or one of them, shall have signed the same, to the registrars of the diocese within which the church is situated." I quote these authorities from the generally received opinion, rather than from any influence upon myself, that precedents and authority, in the judgment of lawyers, are very influential, and may almost, in some cases, supersede justice and truth. If it was found necessary to place his Majesty's subjects' already established and regulated public records of baptism in better preservation and on better footing; how much more necessary is it that those of his Majesty's subjects, which are neither regulated, established, nor public, should be in better preservation and on better footing. Therefore it is necessary to put Dissenters' registers, which in the courts are merely considered in the light of unauthorized "private entries," into better condition. This I think cannot admit of a doubt, without it be meant, indeed, that Dissenters, by differing from the Establishment, and excluding themselves, by reason of conscientious motives, from her powerful protection and exclusive rights, ought not to presume to demand a simple right, a right almost of nature, an opportunity of proving the truth, and supporting the just claims of those with whom they may be connected. If this be meant, I have nothing to urge against it. But if it be acknowledged that equal rights, and equal permission to support and enjoy these rights, be the spirit of the constitution of England; then it is absolutely necessary that opportunity of establishing right of property be afforded with equal facility to the Dissenter and the member of the Establishment. The legislature, to show their sense of the importance of a certain, secure, and permanent registration, rendered it "felony" for any person making false entries, or false copies of entries, or altering or destroying any register book." This were enough to prove it a subject of no light consequence, did not the Stat. 52. Geo. III. c. 146. s. 7. preamble of the same Act 52 Geo. III. c. 146. strongly impress it: "Whereas the amending the manner and form of keeping and of preserving Registers of Baptisms, Marriages and Burials, of his Majesty's subjects in the several parishes and places of England, will greatly facili tate the proof of pedigrees of persons claiming to be entitled to real or personal estates, and be otherwise of great public benefit and advantage." This seems a very excellent preamble; it is a pity the clauses had not been enacted in the same spirit; but the very first of them departs from this just and equalizing introduction, with a non-chalance somewhat amusing, but not very agreeable, as if it were in the best possible accordance with what had just been declared :-"be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lord's Spiritual and Temporal, and Commons in this present Parliament assembled, and by the authority of the same. That from and after the 1st day of December, 1812, Registers of Public and Private Baptisms, Marriages, and Burials, solemnized according to the Rites of the United Church of England and Ireland, shall be made," &c. The framer of this Act seems to have possessed no certain information that his Majesty possessed any other subjects but those the members of the Establishment; or if enlightened on this dark subject, he seems to have considered it a settled point, that Dissenters could not, by any possibility, have either "pedigree," or any claim" to be entitled to real or personal estates;" or if he deigned to know such unworthy things, they must have been supposed of too trifling consequence to be remembered or dignified by any notice in an Act of Parliament. The Dissenters, of course, as J. G. well must know, cannot, from conscientious feeling, have the rite of Baptism performed in the Established Church; and as none can be allowed to register there, but through the medium of the religious rite therein performed, this Act completely excludes Dissenters from any participation in the benefits of a legal registration; so that Dissen. ters are, in this instance, really in a worse condition than their fellow subjects." This being admitted, which will not be attempted to be denied, the evil and injustice is as evident as the manner of its removal is simple and unobjectionable. All that Dissenters require, is to be placed, by legislative enactment, upon a footing, on this point, with their fellowsubjects of the Establishment, by having their baptisms recorded in a similar manner in the Registrar's Office of the Diocese. It is a small demand, to which no one can object, but such as wish to keep up irritating and invidious distinctions amongst those who ought to have no feeling towards each other than of peace and good-will. The advantage to the State, too, in having a certain general registration of all "his Majesty's subjects," in the proper signification of the term, would be very considerable. The census, taken at distant periods, which can never, with any great degree of confidence, be depended on, would be corrected and more surely ascertained by a comparison with a general registry. To effect, however, this object completely, it would be necessary to admit a general record of burials. It would also enable government, at any intermediate period between the time of Census, to obtain the exact state of the whole population, or of any place or district, or the degree of health possessed by any particular class of the people. These, and other public benefits, would result from granting the arrangement we require. I have now endeavoured, as clearly and as concisely as I can, to prove the situation of Dissenters, and to point out the nature of the remedy, in doing which, I humbly hope, the objections advanced by your correspondent have been obviated. When the subject shall be brought be fore Parliament, there is an addition or two to the present form of registering by the Establishment, which I presume to suggest, and which would certainly 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. "We do not say," says Judge Bailey, in the case of the king v. North Pether ton, that a Register of Baptism is not evidence of the Place of Birth, when accompanied with proof of other circumstances; but that, taken by itself, it is not evidence of the Place of Birth."* Therefore, the simple addition of the Date, and Place of the Child's Birth, of which you have sufficient evidence from the friends who are present at the baptism, would assist much, in after years, to remove the difficulties connected with the discovery of settlement, age, and legitimacy of the party. Besides, such an insertion seems absolutely necessary, if it be wished to include the two numerous and respectable sects of Baptists and Quakers in the benefit of a legal registration, as the first baptize not till maturity, the latter never baptize at all; but they appear both to agree in the point to which we allude, of having Date and Place of Birth." Such an insertion has its advantages, too apparent to require any lengthened observation in its support. a Dr. Paley, in his Charge to the Clergy of the Diocese of Carlisle, in 1785, thus speaks, "The first thing I take the liberty to propose, relates to the registering of Baptisms. It has been intimated to me, by very high legal authority, that in the investigation of pedigrees from Parish Registers, great uncertainty has been found to arise from the want of the family surname of the mother appearing in the entry. It is well known, that one half of the controversies which occur upon the subject of descents, result from the confusion of whole blood and half blood, and the difficulty of tracing back genealogies in the maternal line.' Paley therefore proposes the addition to the Register of the maiden name of the mother--a simple and efficacious plan of removing the uncertainty. Dr. Other two additions, which I shall now propose, bear, at their first appearance, so strong recommendation, that it would be a supererogatory employment to adduce arguments in their support, or do little more than name: the places of baptism of the parents, and the place and date of marriage. The former would refer, and carry back by a single remark without difficulty, the registration of births and baptisms from generation to generation; enabling to trace a descent by a well connected and indisputable record. latter would prove clearly, as far as human knowledge extended, the legitimacy and purity of the whole descent. With such additions as these I have humbly suggested, registration would be a certain, unsuspicious, and efficacious mode of investigating pedigrees, instead of the present ill-devised, partial, confusing, and professional misarrange ment. The Taking schedule (A) of the 52d Geo. 3. c. 6. s. 146. for the ground-work, and adopting it entirely, with the additions proposed, it will stand thus : 4 S PARENTS. BAPTISMS SOLEMNIZED AND BIRTHS CERTIFIED IN THE PARISH OF A, IN THE COUNTY OF B, 1829. Birth Registered. Such a form of registry will completely discover, in one contiguous and united chain, a long line of ancestry - the links of which can be distinctly traced in its whole course. With a registration so constituted, facilities of procuring cor rect proof of pedigrees will be greatly increased, and the intentions of the Legislature, as expressed in one of their Acts, be more certainly effected. I have endeavoured thus to show, but I am afraid most imperfectly, that " Dissenters are in this instance in a worse condition than their fellow subjects," and have pointed out what," in my humble comprehension, "is the nature of the Legislative enactment they wish to obtain.' I have also, with much deference, ventured to suggest a slight extension of the particulars certified connected with each registration, that the uncertainty and confusion which too frequently arise on this subject may, as far as possible, be obviated. This I have done, for the purpose of defending the motives, and explaining the views of the Protestant Dissenters of South Shields, as set forth in their letter, by their unworthy representative, to Lord J. Russell, which was published, and has been criticised in your Magazine of last April, with the evident intention of arresting or impeding the progress of a demand for an equitable and legal establishment of an undeniable right. We would ask, what purpose it can serve to oppose so fair a settlement of such a question? It may excite unpleasant and violent altercations; but it can never serve the party over which, as the professed friend of Dissenters, J. G. has thrown the shield of his protection. We live in times when justice and reason, fortunately for enlightened England, sweep along in their irresistible course temporu mutanter. J. G. should remember the repeal of the penal laws affecting religion, and that two short years have removed the land-marks of bigotry and intolerance. Reasons, which were very cogent and convincing in the mouth of power, are now "shorn of their beams," and appear in their diminished splendour; but very unsatisfactory for the continuance of restriction and exclusion on religious opinions. We desire, and have shown canse, why a simple act of justice should be awarded to an influential class of the religious community; the attempt to refuse it, would be as ridiculous as it will be futile. I have the honour to remain, Gentlemen, |