' ^if-i' 
 
 m.ii 
 

 Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FDR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN nEHORY OF 
 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daugliter 
 
 A. M, BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KD8638.A31876 
 
 The principal ecclesiastical Judgments d 
 
 3 1924 017 840 319 
 
The original of tliis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017840319 
 
THE PRINCIPAL 
 
 ECCLESIASTICAL JUDGMENTS 
 
 DELIVERED IN 
 
 THE COURT OF ARCHES 
 1867 TO 1875 
 
THE PRINCIPAL 
 ECCLESIASTICAL JUDGMENTS 
 
 DELIVERED IN 
 
 THE COURT OF ARCHES 
 
 1867 TO 1875 
 
 BY THE RIGHT HON. 
 
 SIR ROBERT PHILLIMORE, D.C.L. 
 
 ' The Law of the Church of England, and its History, are to be deduced front 
 the ancient general canon law, from the pariictilar coiistitutions made in this 
 country to regulate the English Church, frotn our own canons^ front the Rubrics, 
 and from any Acts of Parliament that may have passed upon the stibject i and the 
 ivhole may be illustrated also by the writings of eminent persons^ — Bv Sir John 
 NicHOLi. IN Kemp v. Wickes, 3 Phillimore's Reports, 276. 
 
 RIVINGTONS 
 
 WATERLOO PLACE, LONDdN 
 
 MDCCCLXXVI 
 
PREFACE. 
 
 I ACCEPTED the office of Judge of the Arches Court 
 of Canterbury in 1867. I resigned it in 1875. 
 
 The Court of Arches has great powers and privileges 
 of jurisdiction. It is the only Ecclesiastical Court 
 which has the power to pass sentence of Deprivation. 
 It is practically the Court in which the Archbishop sits 
 when exercising jurisdiction over a suifragan Bishop. 
 It is the Court of Appeal from all the Diocesan Courts 
 of the Province of Canterbury. Moreover, a recent 
 decision of the Judicial Committee of the Privy 
 Council has decided that it is bound to take cog- 
 nisance in the first instance, and without the advan- 
 tage which the Appellate Court enjoys of the previous 
 sentence of a competent Court, of every case which 
 the Bishop of a Diocese may send, by what are called 
 Letters of Request, to be tried before it. 
 
 The office was, during my tenure of it, one of 
 much honour, but really«of no emolument. I do not 
 think that in 1872 I had received enough to pay the 
 expenses incident to my appointment in 1867. The 
 emolument was, in fact, a very few -potmds a year. I 
 accepted it at the earnest request of Archbishop 
 Longley, resigning for this purpose the Chancellor- 
 ships of Chichester, Oxford, and Salisbury, which I 
 
vi Preface. 
 
 then held At the time I accepted it his Grace 
 promised that my acceptance of the unpaid judge- 
 ship of the Arches should be followed by my appoint- 
 ment to the office of Master of the Faculties when 
 vacant.^ This vacancy did not occur tUl 1873, when 
 the present Archbishop of Canterbury conferred upon 
 me the office in a manner which enhanced the value 
 of it. The emoluments of the office of Master of the 
 Faculties during my short tenure of it have amounted 
 to about £600 per annum. 
 
 The Statute which, during the time I was Judge of 
 the Court of Arches, regulated the discipline of the 
 Clergy, 3 and 4 Vict. c. 86, was passed in 1840, after a 
 very severe conffict and much difference of opinion in 
 the House of Lords. 
 
 It effected very material alterations in the existing 
 law. It destroyed all peculiar jurisdictions, under 
 cover of which bad clergymen had sometimes sheltered 
 themselves against the penalties due to their offences. 
 It gave to every Bishop the power of sitting with 
 Assessors in his own Court or of sending the case to 
 be tried at once in the Superior Court of the Province. 
 It directed in the former case the previous issue of a 
 Preliminary Commission, which was to report whether 
 there was " a.primdfacie case for further proceedings ;" 
 if so, these proceedings were to be taken before the 
 Bishop, or to be sent at once to the Superior Court. 
 It provided, moreover, — ^and this provision was ex- 
 
 1 1 gave a fufler narrative of these circnmstances in a letter to the Arch- 
 bishop of Oauterbury on " Clergy DiseipUne," imblished by Messrs. Bivin.'- 
 ton in 1872. ° 
 
Preface, vli 
 
 tremely wise, and lias often worked very well, — that 
 the accused Clerk might admit before his Bishop that 
 he was guilty of the offence charged against him ; and 
 his Bishop had then power to pass such a sentence as 
 the law allowed without the scandal of a public trial. 
 
 Under this Statute more cases of Clergy Discipline 
 since 1840 have been tried, I believe, than are to be 
 found recorded for the two centuries preceding its 
 enactment, if not for the whole period since the 
 Reformation. 
 
 I have read statements relating to procediu-e in the 
 Arches Court whiclT would never have been made in 
 the presence of any person really conversant with the 
 facts, or if made, would have been immediately contra- 
 dicted. For instance, cases tried thirty years ago under 
 a system of law and procedure materially different, 
 have been represented as illustrating the present state 
 of the Ecclesiastical Courts, no mention whatever being 
 made of the subsequent alteration, because such mention 
 would at once show that the censure was inapplicable. 
 
 In the memory of the present generation, trial by 
 Wager of Battle was allowed by a court of common 
 law. What would be said of accusers who attacked 
 on this score the present courts of common law, and 
 omitted to state the fact that the law had been altered ? 
 
 Some years ago the proceedings in the Ecclesiastical 
 Courts were of a very cumbrous and unsatisfactory 
 character. 
 
 The pleadings were unnecessarily prolix ; but the 
 great evil was the practice of taking aU the evidence 
 of witnesses in writing before an examiner, who sat in 
 
viii Preface. 
 
 his private room for tHs purpose, uncliecked by the 
 presence of counsel ; not only did this practice present 
 serious obstacles to the discovery of the truth, but the 
 charges for copying the evidence so taken much in- 
 flamed the costs of the suit. 
 
 In the year 1854 I brought into the House of 
 Commons a small Bill for the introduction of v'lvA voce 
 evidence into the Ecclesiastical Courts, and, with the 
 help of Lord Brougham in the House of Lords, suc- 
 ceeded in carrying it through ParUament (17 and 18 
 Vict. c. 47). Nobody unacquainted with the old 
 . system can be aware of the almost total change which 
 the working of this little Statute has produced in the 
 whole procedure of the Courts. Causes have ever since 
 been conducted at the hearing exactly as they are at 
 "Nisi Trills. The pleadings are in cases of heresy 
 necessarily ftiUer ; but in other cases the introduction 
 of vivd, voce evidence and certain Kules and Regula- 
 tions promulgated by Dr. Lushington, for the Arches 
 Court, in 1867, have led to a great improvement in 
 the pleadings. 
 
 Again, as to the alleged costs and delay incident to 
 suits in the Arches Court. Costs are always of two 
 kinds, those caused by the fees paid to the Court, and 
 those caused by the fees of counsel ; these latter will 
 be found, on inquiry, to be under the present system, 
 the real, or, at least, the main expenses of the suit. 
 
 They are limited to a certain extent by taxation, 
 but no Statute can prevent parties employing what 
 counsel they please, or counsel from demanding the 
 fees to which they think themselves entitled. 
 
Preface. ix 
 
 In March 1871 a Return was laid before Parliament 
 whicli throws considerable light on these subjects. I 
 am satisfied that if evidence were taken upon the 
 question of fees, costs, and delay — a course which, in 
 the discussion on this subject, seems to have been 
 hitherto studiously avoided — it would have been 
 found that the Return which I have mentioned is 
 correct, and that the costs of the late suits, indepen- 
 dently of the fees paid to counsel, are less than those 
 ■which would be caused by suits of the same magnitude 
 at Common Law or in Chancery, while it would also 
 appear, I think, that they are heard with far greater 
 expedition. I am not speaking of the Court of 
 Appeal before the Privy Council, but of the Court of 
 Arches. 
 
 It became my duty during my tenure of this of&ce 
 to adjudicate on questions relating to the Doctrine, 
 Discipline, and Ritual of the Church. 
 
 The cases in which these questions were involved 
 have been few in number, but of the gravest importance 
 to the Chiorch. The law applicable to them was often . 
 deducible from various sources and documents, framed 
 at various epochs of our history and under various 
 influences. 
 
 This law was necessarily derived from the leading 
 General Councils of the Undivided Church, from a 
 practice and usage incorporating portions of the 
 general Canonical Jurisprudence, from Provincial Con- 
 stitution, from Canons passed by the Clergy in 
 Convocation and confirmed by the Crown, and from 
 Statutes enacted by Parliament. 
 
X Preface. 
 
 When the text of this law was doubtful, I endea- 
 voured to find out and lay down sound general 
 principles for the construction of it. This occurred 
 more especially in cases of Kitual and Doctrine. 
 With respect to the former class of cases, dealing with 
 the question whether certain Rites and Ornaments 
 were illegal as being, though not expressly, yet by 
 necessary implication, prohibited inasmuch as they 
 were connected with Roman doctriue and usages, I 
 said, " It is my duty to form this judgment upon an 
 historical examination — ^however unequal my powers 
 may be to the task — into the principal acts of the 
 State and the Church, which, sruce the great epoch 
 of the Reformation, have introduced, accompanied, 
 and settled the ecclesiastical establishment of this 
 kingdom. 
 
 " It is scarcely necessary to say that where the lan- 
 guage of a statute is plain I must obey it, or that where 
 the Court of Appeal has laid down a principle appH- 
 cable to this case I must foUow it. But where I have 
 . no such guide, I must seek the exposition of the law 
 from the general language of the cardinal statutes, 
 the public and authoritative declarations which accom- 
 panied and illustrated them, the judicial construction 
 which they have received, the formularies which these 
 statutes ordered, whether with or without the con- 
 CTurent sanction of the Church, though happily the 
 latter alternative is of rare occurrence. I must also 
 consider the Canons which bind the Clergy, and the 
 opinions of the Bishops and great Divines of our 
 Church, who were not unfrequently also the coun- 
 
Preface. xi 
 
 cillors of the State and tlie authors of the formularies." 
 And ■ after a consideration of these authorities, I 
 arrived at the conclusion ". that the similarity of the 
 ornaments and practices in question with those in the 
 Church of Rome did not furnish a safe criterion 
 whereby to try the question of their legality in the 
 Church of England. That the true criterion is con- 
 formity with primitive and cathoHc use, and not mere 
 antagonism to Rome." 
 
 And acting upon the same principle, I held that " one 
 fundamental truth was to be borne in mind, namely, 
 that the end and object of our Church was so to reform 
 her Doctrine and Ritual as to bring them into general 
 harmony with those of the Primitive Catholic Un- 
 divided Church." 
 
 Among these Judgments will be found one of very 
 grave importance in its bearing upon the general 
 discipline of the clergy, but more especially with 
 reference to clergymen accused of offences against 
 morahty. 
 
 The improvements which have taken place in the 
 law of evidence are among the greatest which this 
 generation has seen. But still a person accused of 
 an offence against the criminal law is not admitted in 
 any Court of Common Law to give his own evidence 
 in defence of himself His mouth is closed while that 
 of his accuser is open. 
 
 Soon after I became Judge of the Court of Arches 
 a clerk in Holy Orders was proceeded against before 
 me, in what was, according to Ecclesiastical Law, a 
 criminal suit upon a charge of very heinous immor- 
 
xii Preface. 
 
 ality. I' had to consider whether the effect of the 
 Statutes enacted to improve the law of evidence had 
 or had not rendered the evidence of the accused clerk 
 admissible. It never had been so previously, and 
 Dr. Lushington had pronounced it to be still inadmis- 
 sible. Being strongly of opinion that the exclusion of 
 such evidence was unjust and inexpedient, I was glad 
 to arrive, after a careful examination, at the conclusion, 
 that the alterations of the law had rendered the e\T.- 
 dence of an accused person admissible in a criminal 
 suit in the Ecclesiastical Court. 
 
 The Judicial Committee of the Privy Council, with- 
 out expressing any positive opinion as to the correct- 
 ness of this interpretation of the law, appear to have 
 tacitly assented to it.^ 
 
 The Judgments reported in this volume often extend 
 to great length. If any apology be needed on this 
 account, it can, I think, be satisfactorily' given. In 
 the first place, the subjects very seriously concerned 
 the welfare of the Church as an established insti- 
 tution of this realm. In the next place, the Court of 
 Appeal did not contain, as before the abolition of 
 Doctors' Commons it had always contained at least 
 one Judge whose previous studies and experience had 
 made him necessarily conversant with ecclesiastical 
 law. Lastly, it has happened, most unfortunately, 
 that some cases in which important points of law as 
 to Ritual and Doctrine were raised have been unde- 
 fended. Upon such points, therefore, as I decided in 
 
 ' Fide infra my Judgment in the case of the Bishop of Norwich v. Pearse, 
 and the introductory note to it. 
 
Preface. xlii 
 
 favour of the defendant, I was obliged to state my 
 reasons at greater length tlia,n I should have done if 
 the Privy Council had not been about to adjudicate 
 upon them without the assistance — the value of which 
 can scarcely be over-estimated — of an argument from 
 both sides. 
 
 For these, among other reasons, I have published 
 these selected Judgments as they were delivered, 
 briefly referring to the alterations which some of them 
 underwent in the Court of Appeal. 
 
 I hope the pubhcation may be useful to the Clergy 
 and Laity generally, as well as the Bar. I may at 
 least say, that in these Judgments I have spared no 
 pains and declined no labour to ascertain and apply 
 the law of the Church of England. 
 
LIST OF JUDGMENTS. 
 
 Both in this list and in the body of the work the Judgments are arranged in 
 Chronological Order, except that the three Judgments in Sheppard v. Bennett are 
 placed together. 
 
 PAGE 
 
 ADLAM v. COLTHURST, i 
 
 MARTIN V. MACKONOCHIE, ^ 
 
 \ •• • 7 
 
 FLAMANK v. SIMPSON, J 
 
 BISHOP OF WINCHESTER v. RUGG, ... ... 119 
 
 BISHOP OF NORWICH v. PEARSE, 127 
 
 RITCHINGS V. CORDINGLEY 134 
 
 LEE V. MEREST, ,.145 
 
 BISHOP OF WINCHESTER v. WIX 150 
 
 SUMNER V. WIX, 152 
 
 ELPHINSTONE -v. PURCHAS . . 158 
 
 SHEPPARD V. BENNETT— (Three Judgments) .200 
 
 FAGG V. LEE, . 334 
 
 BOYD V. PHILLPOTTS— (Two Judgments), . . ^, , , .342 
 
 MARTIN V. ^ACKONOCHIE— (Second Suit), 386 
 
 JENKINS V, COOK 394 
 
 KEET V, SMITH 416 
 
THE OFFICE OF THE JUDGE PROMOTED BY 
 ' ADLAM V. COLTHURST. 
 
 Order made upon a parishioner who had removed earth and 
 human bones from a churchyard to restore them — An 
 excuse that the field upon which he had placed them was 
 no longer in his possession, overrtded. 
 
 This case was first heard before my predecessor, Dr. 
 Lushington, who made an order upon the defendant to 
 restore the earth and bones. The defendant failed to 
 comply with this order, and alleged as his excuse that 
 he had parted with the possession of the field in which 
 they had been placed to his son-in-law, who refused to 
 allow them to be interfered with. He also pleaded 
 bankruptcy in discharge of his costs. 
 
 The matter then came before "me, and on the 21st of 
 November 1867 I delivered the following judgment. 
 
 The defendant thereupon submitted, and filed a cer- 
 tificate of his performance of the decree within the time 
 limited in the judgment. 
 
 The case is reported in the Law Eeports, 2 Admiralty 
 and Ecclesiastical, page 30. 
 
 Judgment. — This case was argued before me on the 2d of 
 November, and my judgment would have been given imme- 
 diately 'had I not been requested to defer it for a few days, on 
 the ground that there was a prospect of the matter being 
 arranged out of Court. That prospect has disappeared, and I 
 can no longer delay my judgment. The reasons assigned by 
 the defendant .for non-compliance with the order of the Court, 
 
2 Ecclesiastical yudgments. 
 
 both as to the payment of the £100 costs, and the restoring the 
 bones and earth which had been so improperly removed, are 
 these, in substance at least : First, he says he is a bankrupt, 
 and cannot pay the £100. Secondly, he says that the field 
 into which Me has removed the bones and earth out of the 
 churchyard is no longer his, for he has transferred it to trustees 
 for his son-in-law and daughter, and that he cannot lawfully 
 enter upon it for the purpose of obeying the order of the Court. 
 Looking to the whole of the circumstances of this case, as 
 set forth in the judgment of my predecessor, and the date and 
 character of the pleadings before him, and the minutes of Court, 
 I am sorry to say I have no doubt whatever that one if not 
 both these excuses have been resorted to with the deliberate 
 intention of rendering nugatory and treating with contempt 
 the decree of the Court. With regard to the bankruptcy, it is 
 alleged that the defendant became bankrupt before the decree 
 of this Court was made — that he has an order from the Bank- 
 ruptcy Court which protects him from the process of this Court. 
 The case cited, Wallinger v. Chirney} shows that the production 
 of an interim protection order under 5 & 6 Vict. c. 116, s. 1, 
 justifies the sheriff in discharging an insolvent out of his cus- 
 tody under a writ of execution, although the debt for which the 
 execution creditor had recovered judgment did not exist until 
 the insolvent's petition had been filed. Therefore, if it be true 
 that the order which Mr. Colthurst has obtained be of this kind, 
 and protects him from debts incurred subsequently to that 
 order, he will, under the authority of this case, be discharged 
 by the sheriff on the production of that order, though he be 
 arrested under the writ issuing in consequence of the decree of 
 this Court. It may, however, be that this £100 costs is not a 
 debt provable under Mr. Colthurst's present petition in bank- 
 ruptcy. It may also be that, looking to the fact that the date 
 of the defensive allegations given in by Mr. Colthurst in this 
 case, namely, the 21st of February, was the principal cause, 
 according to the opinion expressed by Dr. Lushington in his 
 judgment, of most unnecessary expense; that the date of Mr. 
 Colthurst's becoming bankrupt was the 25th of February; that 
 after this date Mr. Colthurst persisted in carrying on a defence 
 in this cause which entirely failed, in which his creditors would, 
 in no event, have the slightest interest, and which, as I have 
 said, was the principal cause of the costs in which he has been 
 condemned ; — looking to aU these facts, I am not certain, if 
 Mr. Colthurst is not already protected from the payment of 
 these costs under the order which he has obtained, that he will 
 obtain an extended or fresh order of protection, by which he 
 1 11 C. B. (N.S.) 182 ; 31 L. J. (C. P.) 55, 
 
Adlam v. Colthurst. 3 
 
 vill be enabled to evade this part of the sentence of the Court. 
 At all events, I think the promoter has a right to require this 
 Court to endeavour to enforce the decree for costs which he has 
 obtained in his favour. 
 
 Let me here say a word upon the character of the offence of 
 which Mr. Colthurst has been proved to be guilty. I cannot 
 consider it as one of a trivial character. To remove the bones 
 of parishioners from the churchyard into a field where they are 
 to serve the purposes of manure, is a great affront to the feel- 
 ings of Christian men; a grave violation of the rights of 
 parishioners, as well as plainly contrary to the law of this land. 
 The act is not less liable to this censure, if it be done by a 
 churchwarden, and, as in this case, after he has been apprised 
 of the unlawfulness of such conduct; although Mr. Colthurst 
 may be guiltless, as I have no doubt he was, of any deliberate 
 intention to hurt the feelings of anybody, and may have per- 
 suaded himself that no regard for the remains of bodies ought 
 to prevent the making a better pathway to the church. This 
 feeling, however, of respect and pious care for the dead bodies 
 of Christian men is deeply rooted in the inhabitants of an 
 English parish — it is hallowed by many associations, religious 
 and moral, which the law recognises, and which it is the desire 
 of our Church to cherish and promote. 
 
 The language of the prayer by which the churchyard is 
 consecrated, while it expresses the mind of the' Church, is in 
 harmony with the feelings of the poor as well as the rich 
 parishioner : — ■" O God, who hast taught us that there is a dif- 
 ference between the spirit of a beast which goeth downwards 
 into the earth, and the spirit of a man that ascendeth up to 
 God who gave it, and likewise by the example of thy holy 
 servants, in all ages, hast taught us to assign peculiar places 
 where the bodies of thy saints may rest in peace and be pre- 
 served from all indignities, while their souls are safely kept in 
 the hand of their Redeemer." I need not read more; the 
 remainder of the prayer breathes the same spirit. A great 
 indignity, however unintentional, has been inflicted on the 
 bones of a parishioner in this case, and it is within the especial 
 duty and province of this Court to take care that the indignity, 
 as far as possible, may be repaired. It is contended, however, 
 by the counsel for Mr. Colthurst, that, as he has transferred the 
 field in which he placed the bones and soil to trustees on behalf 
 of Mr. Bromfield, his son-in-law, and that Mr. Bromfield will 
 not permit him to enter such field for the purpose of executing 
 the order of the Court, therefore the Court should decline to 
 enforce its order. 
 , Before noticing the general argument, I think it advisable to 
 
4 Ecclesiastical yudgments. 
 
 call attention to certain dates and facts as they appear in the 
 evidence. 
 
 On the 6th of September in last year, Mr. Colthurst was 
 warned by Mr. Adiam that he was doing an illegal act in- 
 removing these bones and soil into his field. Mr. Colthurst 
 continued to remove them, and on the 3d of October trans* 
 ferred by deed this field, with other property, to trustees for the. 
 use of his daughter and his son-in-law, Mr. Bromfield. What 
 right had Mr. Colthurst to transfer to anybody this earth and 
 these bones ? 
 
 On the 10th of December the decree issued from this Court, 
 which was the legal commencement of these proceedings. The 
 articles in this suit were filed against Mr. Colthurst on the 9th 
 of January this year. On the ] 0th of January, a month after 
 the commencement of these proceedings, the trustees leased to 
 Mr. Bromfield (Mr. Colthurst's son-in-law, and one of cestui que 
 trusts) this field, among other property. It is to be observed, 
 that these trustees makp no opposition to the order of the Court,; ' 
 but state in their affidavit that they have leased" the property to 
 Mr. Bromfield. On the 1 6th of May the Court made its order 
 against Mr. Colthurst. On the 17th of May, Mr. Bromfield 
 writes a letter to his bailifi", showing clearly the concert between 
 him and his father-in-law to set the Court at defiance. The; 
 monition is served on the 2d of June, and on the 3d of July 
 what I must call a farce is acted by Mr. Colthurst and Mr. 
 Bromfield, who, being in the same house, write letters to each 
 other, evidently for the purpose of being laid before the Court, 
 the father-in-law asking leave to enter the field and remove 
 the bones, the son-in-law refusing him permission. The Court 
 must be blind indeed to be deceived by such devices as these.' 
 Moreover it appears that Mr. Bromfield at one time consented, 
 to this removal if the costs were not pressed against Mr. Colt-» 
 hurst, and even since the cause was heard a few days ago, Mr. 
 Bromfield has offered to allow a certain portion, but a certain 
 portion only, of the soil and bones to be removed. This he has 
 done, it is said, in consequence of a' suggestion from me that I 
 hoped this matter might be arranged out of Court. Apart from 
 these considerations applicable to this pai-ticular case, let me 
 now consider the general argument addressed to me by the 
 counsel of Mr. Colthurst, the object of which is to show that 
 this Court has no longer any jurisdiction in this case. This 
 argument, carried to its legitimate extent, was stated by the 
 Court, and frankly admitted by the counsel for Mr. Colthurst 
 at the hearing to amount to this, that if a man illegally removed 
 from the consecrated soil of the churchyard all the bones 
 therein interred, including those which, but a few hours before, 
 
' Adlam v. Colthiirst. 5^ 
 
 the pious care of the sorr6wing survivor may have reverently- 
 placed there, and if this man, before the law can be put in 
 motion against him, transfer to his son-in-law, as in this case, 
 or to any purchaser, the land which has received this sacrilegious 
 deposit, then the parishioners have no redress for the wrong 
 which has been inflicted upon them, perhaps by the church- 
 warden who was solemnly bound to have protected them from 
 it, then the case is without remedy ; this Court, in whose cus- 
 tody the law has placed thechurch and churchyard, is power- 
 less to enforce the law, to redress the wrong, or to punish the 
 wrong-doer. I hope this is not — I do not believe it to be — 
 the doctrine of our law ; until better informed, I will not recog- 
 nise it to be such. I adopt the language of my predecessor in 
 this Court, Dr. Lushington^ when it was suggested to him that 
 Mr. Colthurst would, on this ground, refuse obedience to his 
 decree, inasmuch as he could not comply with it. " It was 
 hinted," Dr. Lushington says in his judgment, which I am now 
 required to enforce, " that by possibility an impediment might 
 be raised because the property is not now Mr. Colthurst's. I 
 will not believe that the order of the Court wiLL be so contuma- 
 ciously resisted. Be that as it may, I shall not be alarmed by 
 that intimation." Nor wiU. I be so alarmed, or be deterred 
 from the endeavour to execute this judgment, by being told 
 that the wrong-doer has, siace he has done the wrong, deliber- 
 ately put it out of his power to redress the wrong. 
 
 I am not satisfied that it was competent to Mr. Colthurst to 
 transfer to trustees on behalf of his son-in-law and daughter 
 this consecrated earth and soiL Mr. Colthurst could, J pre- 
 sume, only transfer what was his property ; this soil, and these 
 bones, were never his property. But if he could, which I do 
 not believe, he must take the consequence of his act The 
 Court has ordered him to replace the bones of the parishionersj 
 and the soil, so far as practicable, of the churchyard, into the 
 parish churchyard from which he illegally took them away. 
 He refuses to obey this order. It only remains for me to 
 enforce, to the best of my power, the lawful order of my prede- 
 cessor, to pronounce Mr. Colthurst in contempt, and to decree 
 the usual process in such cases. I must, however, add, that I 
 have referred to the various dates of the transactions, to the 
 pleadings, to the admissions, to the correspondence in this case ; 
 and this Court must be wholly bereft of common sense if it 
 doubted that Mr. Colthurst, and his son-in-law, the lessee of 
 this land on which the bones have been placed, have been con- 
 certing measures together in order to evade the execution of 
 the decree of this Court. I have not the least doubt that Mr. 
 Colthurst's son-in-law would not oppose the wish of Mr. Col- 
 
6 Ecclesiastical yudgnients. 
 
 thurst to replace these bones, if he did not know that no such 
 wish was entertained. Indeed, it is not denied that if the costs 
 had been remitted, the bones would have been replaced. Be 
 this as it may, this Court will protect, as far as it can, the right 
 of parishioners to preserve undesecrated the bodies of those who 
 have slept in peace in their churchyard. It is incumbent on 
 me, therefore, to grant the prayer of the promoter, and to decree 
 accordingly. 
 
 But having discharged my duty in delivering this judgment, 
 I have still two remarks to which I desire to draw the attention 
 of counsel. First, upon the general subject of alterations in 
 churches and churchyards. If a faculty had been applied for, 
 as it ought to have been in this instance, the objections of the 
 parishioners would have been heard, the law would have been 
 explained, the Ordinary would have given proper directions with 
 respect to the decent arrangement of the bones and the earth, 
 — all the expenses of this suit would have been saved, and all 
 the strife in the parish avoided. Secondly, with respect to this 
 particular case (and here I would specially invite the attention 
 of the counsel of Mr. Colthurst), I still think it possible that 
 the necessity of sending Mr. Colthurst to prison for contempt 
 of Court may be avoided. It has occurred to me that if both 
 parties were to consent that the archdeacon or the rural dean 
 should superintend the removal of the earth and bones back 
 into the churchyard, any difficulties respecting the quantum of 
 earth to be replaced, together with the bones, might be avoided; 
 and also, by this intervention of a third person clothed with an 
 of&cial character, all feelings of bitterness between the parties 
 might be removed, and the peace of the parish restored, and in 
 that case the archdeacon or rural dean might certify to the 
 Court generally that, in his opinion, the order of the Court had 
 been sufficiently complied with. 
 
 I earnestly press this suggestion upon both parties in this 
 case. If I receive proper intimation that it will be complied 
 with, I will not decree the contumacy and contempt of the 
 defendant to be formally recorded upon the minutes of the 
 Court ; and upon receiving the certificate from the archdeacon 
 or rural dean I wiH dismiss the suit. In the hope that this 
 suggestion may be adopted, I wiU suspend for six days the 
 formal pronouncing the defendant to have been guilty of con- 
 tumacy and contempt; but after the lapse of that time, if I 
 receive no such intimation, I shall, without further proceeding 
 in Court of any kind, pronounce the defendant contumacious 
 and in contempt, and signify the same to the High Court of 
 Chancery of England, 
 
THE OFFICE OF THE JUDGE PROMOTED BY 
 MARTIN V. MACKONOCHIE, 
 
 AND BY 
 
 FLAMANK v. SIMPSON, 
 
 What are Rites and Ceremonies considered — The sources of 
 the Law applicable to them, and the criteria of their law- 
 fulness : — 
 (i.) It is not lawful to elevate the Cup and Paten during the 
 
 Celebration of the Holy Communion in a greater degree 
 
 than is necessary to comply with the Rubric. 
 (2.) It is not lawful to use incense for censing persons and 
 
 things, or to bring in incense at the beginning of or 
 
 during the Celebration, and to remove it at the end of 
 
 the Celebration. 
 (3.) It is not lawful to mix water with the wine during the 
 
 Celebration. 
 (4.) It is not lawful to place alms on a stool instead of on the 
 
 Holy Table. 
 (5.) It is not unlawful for the Celebrant to kneel during the 
 
 prayer of Consecration, at least unless the Bishop has in 
 
 his discretion made an order forbidding it. 
 (6.) It is lawful to place two lights upon the Holy Table during 
 
 the Celebration. 
 
 These cases were heard together, and I gave one 
 judgment on them on March 28, 1868. 
 
 There was no appeal from my judgment on points 
 (1), (2), (3), and (4). On (5) and (6) there was an 
 
8 Ecclesiastical yudgments. 
 
 appeal, and the Privy Council, reversing my judgment 
 on these points, decided that both matters were un- 
 lawful. 
 
 The case is reported in the Law Eeports, in the 
 Arches Court, 2 Admiralty and Ecclesiastical, p. 116, 
 in the Privy Council, 2 Privy Council Appeals, p. 52. 
 
 Judgment. — Preliminary Observations. — This- case of Martin 
 V. Mackonochie was brought before my predecessor in this 
 chair, by Letters of Bequest from the Bishop of London, under 
 the provisions of the 3d and 4th Victoria, c. 86. That Statute^ 
 passed in the year 1840, enables any bishop within the Pro- 
 vince of Canterbury either to try the case of a clerk for a 
 criminal offence before himself with certain assessors, or to 
 send it to the Court of the Archbishop for trial in the first in- 
 stance. Since the passing of this Statute, bishops have very 
 generally availed themselves of the latter provision, and this 
 Court has now before it several cases so sent from several 
 suffragan dioceses of the Province of Canterbury. 
 
 Under the old law, when these cases were triable in the 
 Consistorial Court of each bishop, if they were sent by Letters 
 of Bequest to the Court of Arches, these letters contained an 
 averment that the lack of counsel, and difficulty of obtaining 
 proper legal assistance, rendered it expedient, for the ends of 
 .justice, that the case should be tried in the first instance in 
 the Court of Appeal, that is, in this Court. It is not to be 
 wondered at, therefore, that this is, I believe, the only case 
 but one which has been sent by Letters of Bequest from the 
 great Diocese of London, amply furnished as it is with all 
 means and appliances requisite for the administration of jus- 
 tice, to the Court of Appeal; and I much regret that I am 
 deprived of the great assistance which I should have derived 
 from the judgment of the Bishop of London upon the important 
 matters now before me, if the case had been brought to thig 
 Court in the regular course of appeal. . - ' 
 
 The Letters of Bequest were accepted by Dr. Lushington, 
 my learned predecessor in this chair, and in an early stage of 
 these proceedings, before evidence had been taken, Cr argu-^ 
 ment heard upon the merits of the case, I was counsel for the 
 accused clerk, and took objections to the manner in which the 
 offence was charged in the criminal articles. When the Arch- 
 bishop of Canterbury was pleased to confer upon me the 
 Judgeship of his Grace's Court, I proposed to hear the casCy 
 with the assistance of two learned persons well skilled in 
 ecclesiastical, law,) the .Vipar-General of. the . Archbishop, and 
 
, Martin v,'. Mackonochii- ' 9 
 
 the Chancellor of Eochester (to whom I take this opportunity 
 of publicly expressiQg my thanks), but this arrangement was 
 demurred to on behalf of the Promoter of the Bishop of 
 London's office, that is the accuser ; and I then appointed, as 
 my patent gave me full power to do, those two learned persons 
 to be my. surrogates for the hearing of this cause. They held 
 one Court, and in consequence of arguments addressed to them 
 touching tha validity of their appointment, they adjourned the 
 heaxing of the cause until an opportunity had been afforded 
 for. an application to the Temporal Court for a prohibition. 
 The counsel for Mr. Mackonochie applied to the Court of 
 Queen's Bench for a rule nisi to show cause why the prohibi- 
 tion should not go to these surrogates, upon the ground that 
 I had exceeded my power in appointing them. 
 
 The promoter or accuser did not appear to show cause 
 against the prohibition, and the rule, upon an (x parte state- 
 ment, was perhaps almost necessarily made absolute. 
 
 But I think if the rule had been opposed, and the powers 
 given by my patent, and also the fact of the invariable 
 usage of this Court, as proved by its earliest records, to ap- 
 point surrogates, been duly brought to the attention of the 
 Court of Queen's Bench, it would have refused . the rule. I 
 jnention this circumstance, in order to prevent any inconve- 
 nience which might ensue from its being supposed that this 
 Court had no power to appoint surrogates. After these pro- 
 ceedings in the Court of Queen's Bench, the surrogates whom 
 I had appointed, by a formal instrument entered upon the 
 records of this Court, resigned the powers which I had con- 
 ferred upon them. ' 
 
 I then proceeded to hear this cause, and the other, that of 
 Flamank v. Simpson, brought before this Court by Letters of 
 Eequest from the Bishop of Exeter, in which almost the same 
 questions were raised. The arguments in both cases have 
 occupied the attention of the Court for sixteen days. The 
 learning, ability^ and industry of the counsel have greatly 
 assisted the Court in the execution Of the difficult task which 
 it has to perform, namely, to give judgment upon the charges 
 preferred against Mr. Mackonochie and Mr. Simpson. 
 
 A good deal has been said by the counsel on both sides 
 respecting the motives of the accuser and the accused in this 
 suit, but upon this subject the Court need say but very little, 
 
 Mr. Martin has been allowed by the Bishop of London to 
 promote his. Lordship's office in this case, and I must, of 
 course, presume, that his Lordship was satisfied upon good 
 grounds, both that it was proper that his office should be pro- 
 moted,.and that Mr.. Martin, was a proper promoter; because 
 
TO Ecclesiastical Judgments. 
 
 his Lordship, who has the advantage of having a veiy learned 
 legal adviser, was, no doubt, aware, from the decision of the 
 Queen's Bench in Begina v. Bishop of Chichester (2 El. & El. 
 209), as well as from the decision of the Privy Council in 
 /Sherwood v. Bai/ (1 Moore, P.O. Eeports, 353), that it was 
 competent to him to exercise his discretion, as to whether his 
 office should be promoted or not. I must, therefore, consider 
 Mr. Martin as having obtained full sanction for the course 
 which he has adopted, and wholly decline to impute to him 
 any unworthy motive whatever for the part which he has taken 
 in this suit. It is, however, a matter of fact, admitted or proved 
 before me, that Mr. Martin is not, legally speaking, a par- 
 ishioner of St. Alban's, nor, of course, a churchwarden, a part of 
 whose office it is to represent to the Ordinary any misconduct 
 on the part of the incumbent. This fact, however, if it should 
 prove to be of any importance at all in this case, can only 
 relate to the subordinate question of costs, and in no way 
 affects my judgment upon the principal questions before me. 
 
 Upon the other hand, it is only fair to Mr. Mackonochie to 
 state, that it appears from the documents in the cause, that 
 having the cure of souls in one of the worst and most neglected 
 districts of London, and receiving moderate temporal emolu- 
 ment, he has devoted himseK to the discharge of his holy office, 
 and evangelising an almost heathen population. 
 
 It is hardly necessary to say that he is not on this account 
 entitled to conduct the services of the Church (if he has done 
 so) in a manner not authorised by the law. 
 
 There are two modes of procedure in the Ecclesiastical 
 Courts, one of a civil, and the other of a criminal character. 
 There have been, in recent times, two leading judgments 
 delivered upon the lawfulness of certain ornaments (to which 
 word a precise legal meaning has been attached) used during 
 the celebration of Divine worship and certain decorations of 
 churches. 
 
 In both these judgments the questions for judicial decision 
 were raised in the civil form of procedure. 
 
 The " Stone Altar Case"^ (as it has been commonly called) 
 arose on an application for a faculty in the Consistory of Ely, 
 and was brought on appeal to this Court. 
 
 The causes relating to the Knightsbridge Churches ^ were 
 instituted in a similar way in the Consistory of London, from 
 the decision of which Court an appeal was prosecuted, first to 
 the Court of Arches, and ultimately to the Judicial Committee 
 of the Privy Council, which last tribunal recommended Her 
 
 1 Faulkner v. Litchfield, 1 Rob. Eccl. 154. 
 
 2 Tlie8e cases are afterwards referred to as Westerton v. LiddelL 
 
Martin v. Mackonochie, \ t 
 
 Majesty to reverse, upon many points, the decision of the 
 Courts below. As the Archbishops and the Bishops, who are 
 Privy Councillors, are only members of the Judicial Committee 
 in cases of criminal proceedings against clerks in holy orders, the 
 prelates who did sit on this last occasion sat only as assessors 
 and not as members of the Court. 
 
 The proceedings taken in this case are of a criminal charac- 
 ter, and the sound of them, so to speak, is harsher than that of 
 those in the cases to which I have referred, but substantially 
 the same end is sought, and the same remedy pursued ; and, 
 with an exception to be hereafter stated, I am not prepared to 
 say — inasmuch as not only certain ornaments, but also the use 
 of them in the services of the Church, are complained of — that 
 it would have been competent to the promoters to have brought 
 before me in a civil form all the matters contained in these 
 criminal articles. 
 
 They are comprised under the following heads : — 
 
 (1.) The elevation of the Blessed Sacrament of the Lord's 
 Supper, accompanied in Mr. Mb,ckonochie's case by 
 kneeling "or excessive kneeling" at times not pre- 
 scribed by the Eubrics. 
 
 (2.) The use of incense during the celebration of the 
 Eucharist. 
 
 (3.) The mixing of water with wine at the time of the ad- 
 ministration of the Lord's Supper. 
 
 (4.) The use of lighted candles upon the Holy Table. 
 
 It will be necessary presently to enter into a fuller and more 
 detailed statement of each of these charges, and of the answers 
 to them. I will only observe that, with one exception, to be 
 noticed hereafter, there is no dispute in the case as to the facts 
 to which the law is to be applied. 
 
 Statutes of Uniformity. 
 
 The law principally, though not exclusively, relied upon by 
 the counsel for the promoter is contained in the Statutes of 
 Uniformity. I must refer to these Statutes. 
 
 The first Statute is that of 2d and 3d Edward vi. c. 1, which 
 accompanied the first Prayer-Book. The second is that of 5th 
 and 6th Edward VI. c. 1, which accompanied the second Prayer- 
 Book, and has been repealed. The third is that of 1st Eliz. 
 c, 2, the penal sections of which are in force. 
 
 The additions made to the Prayer-Book by James I. were not 
 accompanied by a separate Statute, but were made under the 
 powers conferred upon the Crown acting with the Metropolitans, 
 under a clause of the Statute of Elizabeth, 
 
1 2 E'ccksiastical y,ud^ments. 
 
 Fourthly, the present Statute of Uniformity, the 13th and 
 14th of Car. ii. c. 4, which embodies so much of the Statute of 
 2d .and 3d Edw. vi. c. 1, and of 1st Elizabeth, c. 2, as were 
 necessa,ry for " the establishing and confirming " of the ne'w 
 Prayer-Book. 
 
 It is necessary to refer somewhat at length to the Statutes, 
 now in force. 
 
 ■ The 2d and 3d Edward VI. cap. 1, which is the first Act of; 
 Uniformity of Edward vi,, begins by reciting that there had' 
 been in England "divers forms of common prayer; that is to! 
 say, the use of Sarum, of York, of Bangor, of Lincoln, and 
 besides the same now of late, much more divers and sundry 
 forms and fashions have been used in the cathedral and parish 
 churches of England and Wales, as well concerning matins or 
 morning prayer and evensong, as also concerning the Holy 
 Communion, commonly called the Mass, with divers and sundry 
 rites and ceremonies concerning the same, and in the adminis- 
 tration of the other sacraments of the Church ; and as the doers 
 and executors of the said rites and ceremonies in other form 
 than of late years they have been used were pleased therewith, 
 so others not using the same rites and ceremonies were thereby 
 greatly offended; and, albeit the King's Majesty, with the 
 advice of his most entirely beloved uncle, the Lord Protector, with 
 others of the council, hath heretofore divers times assayed to stay 
 innovations or new rites concerning the premises, yet the same 
 have not had such good success as his Highness required in that 
 behalf; whereupon his Highness, by the most prudent advice, 
 being pleased to bear with the frailty and weakness of his sub- 
 jects in that behalf, of his great clemency hath not been only 
 content to abstaki from punishment of those that have offended 
 in that behalf (for that his Highness taketh iJiat they did. it of 
 a good zeal), but also to the intent that uniform quiet and godly 
 order shall be had concerning the premises, appointed the Arch- 
 bishop of Canterbury and certain of the most learned and dis- 
 creet bishops and other learned men, to consider and ponder 
 the premises, and thereupon having as well eye and respect tO' 
 the most sincere and pure Christian religion taught by. the 
 Scriptures as to usages in the, Primitive Church, should draw and 
 make one convenient, meet order, rite, and fashion of common 
 and open prayer,, and administration of the sacraments, to be 
 had and used in his Majesty's realm of England and Wales, the 
 which at this time, by the aid of the Holy Ghost, with one uni- 
 form agreement is of them concluded, set forth, and delivered 
 to his Highness, to his great comfort and quietness of mind, in 
 a book entitled ' The Book of Common Prayer and Administra-- 
 tion of the Sacraments, and other Eites and 'Cejemonies of the 
 
Martin V. Mackonochie. 13 
 
 Church, after the use of the Church of JEngland : ' Wherefore 
 the Lords spiritual aiid temporal, and the CommoDS, in this 
 present Parliament assembled, dohsidering as well the most 
 godly travel of the King's Highness, of the Lord Protector, and 
 of other his Highness' council, in gathering and collecting the 
 said Archbishop, Bishops, and learned men together, as the 
 godly prayers, orders, rites, and ceremonies in the said book 
 mentioned, and the considerations of altering those things 
 which he altered, and retaining those things which he retained 
 in the said book, but also to the honour*of God, and the great 
 quietness which by the grace of God shall ensue upon the one 
 and uniform rite and order in such common prayer, and rites 
 and external ceremonies, to be used throughout England and in 
 Wales, at Calice, and the marches of the same, do give to his 
 Highness most hearty arid lowly thanks for the same." Then 
 it goes on and says, " That all and singular ministers in any 
 cathedral or parish church shall be bounden to say and use 
 matins, evensong, celebration of the Lord's Supper, commonly 
 called the Mass, and administration of each of the sacraments 
 and all their common and open prayer, in such order and form 
 as is mentioned in this book, and none other or otherwise." 
 
 It then enacts, " That if any manner of parson, vicar, or other 
 whatsoever minister that ought or should sing or say the com- 
 mon prayer mentioned in the said book, or minister the sacra- 
 ments, shall refuse to use the said common prayer or to minister 
 the sacraments in such cathedral or parish church, in such 
 order and form as they be mentioned and set forth in the said 
 book, or shall use, wilfully and obstinately standing in the 
 same, any other rite or ceremony, order, form, or manner of 
 mass openly or privily, or matins, evensong, or other open 
 prayer, than as mentioned and set forth in the said book," he 
 then becomes liable to certain penalties. 
 
 The seventh section of this Act states, " That it shall be law- 
 ful for all men, as well in churches, chapels, oratories, or other 
 places, to use openly any psalms or prayer taken out of the 
 Bible at any due time, not letting or omitting thereby the ser- 
 vice or any part thereof mentioned in the said book." 
 
 The eighth section of this Act provides, " That the books con- 
 cerning the said services shall, at the costs and charges of the 
 parishioners of every parish and cathedral church, be attained 
 and gotten before the Feast of Pentecost next following, or 
 before ; and that all such parishes and cathedral churches, or 
 other places where the said books shall be attained and gotten 
 before the said Feast of Pentecost, shall, within three weeks 
 next after the said books so attained and gotten, use the said 
 service, and put the same in use according to this Act." 
 
14 Ecclesiastical yudgments. 
 
 The present Act of Uniformity, passed in the year 1662, the 
 13th and 14th Car. ii. c. 4, is entitled "An Act for the Uni- 
 formity of public Prayers, and Administration of Sacraments, 
 and other Eites and Ceremonies ; and for establishing the form 
 of making, ordaining, and consecrating Bishops, Priests, and 
 Deacons in the Church of England." 
 
 The first section gives the following title to our present 
 Prayer-Book : — " The Book of Common Prayer and administra- 
 tion of the Sacraments, and other rites and ceremonies of the 
 Church, according to the use of the Church of England ; to- 
 gether with tbe psalter or psalms of David, pointed as they are 
 to be suug or said in Churches ; and the form and manner of 
 making, ordaining, and consecrating of Bishops, Priests, and 
 Deacons." 
 
 The second section, after reciting " that nothing conduceth 
 more to the settling of the peace of the nation, nor to the 
 honour of our religion and the propagation thereof, than a 
 universal agreement in the worship of Almighty God, and to 
 the intent that every person in this realm may certainly know 
 the rule to which he is to conform in public worship and ad- 
 ministration of sacraments, and other rites and ceremonies of 
 the Church of England," enacts, " that all ministers shaU be 
 bound to say and use the morning prayer, evening prayer, and 
 celebration and administration of both sacraments, and all 
 other the public and common prayer, in such order and form 
 as is mentioned in the book annexed and joined to the present 
 Act, intituled the Book of Common Prayer, and administration 
 of the Sacraments, and other rites and ceremonies of the 
 Church, according to the use of the Church of England." 
 
 By the 1 7th section it is further enacted, " by the authority 
 aforesaid, that no form or order of common prayers, administra- 
 tion of sacraments, rites, or ceremonies, shall be openly used in 
 any church, chapel, or other public place, or in any college or 
 hall in either of the Universities, the colleges of "Westminster, 
 Winchester, or Eton, or any of them, other than what is pre- 
 scribed and appointed to be used in and by the said book." 
 
 And by the 24th section it is further enacted, "by the 
 authority aforesaid, that the several good laws and statutes of 
 this realm, which have been formerly made, and are now in 
 force, for the uniformity of prayer and administration of the 
 sacraments within this realm of England and places aforesaid, 
 shall stand in full force and strength, to aU intents and pur- 
 poses whatsoever, for the establishing and confirming of the 
 said book " (intituled as aforesaid) " herein before mentioned 
 to be joined and annexed to this Act, and shall be applied, 
 practised, and put in use for the punishing of all offences con- 
 
Martin v. Mackonochie, 15 
 
 trary to the said laws, with relation to the book aforesaid, and 
 no other." 
 
 By the Statute 1st Elizabeth, cap. 2, sec. 27, it is enacted, 
 " that all laws, statutes, and ordinances wherein or whereby any 
 other service, administration of sacraments, or common prayer is 
 limited, established, or set forth to be used within this realm, 
 or any other the Queen's dominions or countries, shall from 
 henceforth be utterly void and of none effect." 
 
 The main proposition upon which the alleged unlawfulness 
 of all the matters contained in the criminal articles has been 
 rested by the counsel for the promoter is, that they are all, in 
 effect, rites and ceremonies other than and additional to those 
 which are prescribed in the Prayer-Book and the Act of 
 Uniformity. 
 
 The answer to this charge is twofold : first, it is averred that 
 the matters complained of are not rites or ceremonies ; secondly, 
 that if they fall within either category they are not " other 
 than or additional to " those prescribed in the Book of Common 
 Prayer, in the sense of being at variance with or repugnant to 
 them, forasmuch as they are in accordance with and subsidiary 
 to them. 
 
 Under the first position they maintain that the terms " rites 
 and ceremonies " mean an entire service, such as Masses for 
 the Dead, or services for particular festivals ; or customs, such 
 as creeping to the Cross, and the Kke, which were abolished at 
 the time of the Eeformation. 
 
 That the elevation of the Blessed Sacrament, excessive kneel- 
 ing, the use of incense, the mixing water with the wine, the 
 lighting of candles, are elements or ingredients of a rite or 
 ceremony, and not a rite or ceremony -per se. 
 
 The terms rite and ceremony, as used in the first Prayer- 
 5ook, and from thence imported into our present Prayer-Book, 
 are terms, so to speak, of ecclesiastical and ritual art, and must 
 be construed with reference to their use in contemporaneous 
 and other works of writers upon ritual, unless they receive a 
 different meaning from a comparison of other passages or parts 
 in the Prayer-Book or Statute in which they are found. 
 
 I must, therefore, refer at length to the preface in our 
 Prayer-Book, entitled, — 
 
 " Of Ceremonies, why some be abolished, and some retained. 
 
 " Of such ceremonies as be used in the Church, and have 
 had their beginning by the institution of man, some at the 
 first were of godly intent and purpose devised, and yet at 
 length turned to vanity and superstition ; some entered into 
 the Church by undiscreet devotion, and such a zeal as was 
 
1 6 Ecclesiastical judgments. 
 
 without knowledge ; and for because they were winked at in" 
 the beginning, they grew daily to more and more abuses, whick 
 not only for their unprofitableness, but also because they have 
 much blinded the people, and obscured the glory of God, are' 
 worthy to be cut away, and clean rejected : other there be,' 
 which although they have been devised by man, yet it is 
 thought good to reserve them stUl, as weU for a decent order in; 
 (►the Church (for the which they were first devised), as because 
 they pertain to edification, whereunto all things done in the 
 Church (as the Apostle teacheth) ought to be referred. 
 
 " And although the keeping or omitting of a ceremony, ia 
 itself considered, is but a small thing; yet. the wilful and con- 
 temptuous transgression and breaking of a- common order and 
 discipline is no small offence before God, Let all things he done 
 among you, saith Saint Paul, in a seemly and due order: the 
 appointment of the which order pertaiineth not to private men • 
 therefore no man ought to take in hand, nor presume to appoint 
 or alter any publick or common order in Christ's Church, 
 except he be lawfully called and authorised thereunto. 
 
 "And whereas in this our time, the minds of men are so 
 diverse, that some think it a great matter of conscience to 
 depart from a piece of the least of their ceremonies, they be so 
 addicted to their old customs; and again on the other side; 
 some be so new-fangled, that they would innovate all thingsy 
 and so despise the old, that nothing can like them, but that is 
 new ; it was thought expedient, not so much to have respect 
 how to please and satisfy either of these parties, as how to 
 please God, and profit them both. And yet lest any man 
 should be offended, whom good reason might satisfy, here be 
 certain causes rendered, why some of the accustomed cere- 
 monies be put away, and some retained and kept still. 
 
 " Some are put away, because the great excess and multitude 
 of them hath so increased in these latter days, that the burden 
 of them was intolerable ; whereof Saint Augustine in his time 
 complained, that they were grown to such a number, that the- 
 estate of Christian people was in worse case concerning that 
 matter, .than were the Jews. And he counselled that such 
 yoke and, burden should be taken away, as time would serve 
 quietly to do it. But what would Saint Augustine have said, 
 if he. had seen the ceremonies of late days used among us ; 
 whereunto the multitude used in his time was not to be com- 
 pared ? This our excessive multitude of ceremonies was so 
 great, and many of them so dark, that they did more confound 
 and darken, than declare and set forth Christ's benefits unto us. 
 And besides this, Christ's Gospel is not a ceremonial law (as 
 .Bauch of Moses' law was), but it is a religion to serve God, not 
 
Martin v. Mackonochie.. 17 
 
 in bondage of the figure or shadow, but. in the freedom of the 
 spirit; being content only with those ceremonies which do 
 serve to a decent order and godly -discipline, and such as be 
 apt to stir up the dull mind of man to the remembrance of his 
 duty to God, by some notable and special signification, whereby 
 he might be edified. Furthermore, the most weighty cause of 
 the abolishment of certain ceremonies was, that they were so 
 far abused, partly by the superstitious blindness of the rude 
 and unlearned, and partly by the unsatiable avarice of such as 
 sought more their own lucre, than the glory of God, that the 
 abuses could not well be taken away, the thing remaining still. 
 
 " But now as concerning those persons, which peradventure 
 will be offended, for that some of the old ceremonies are 
 retained still : If they consider tibat without some ceremonies 
 it is not possible to keep any order, or quiet discipline in the 
 Church, they shall easily perceive just cause to reform their 
 judgments. And if they think much, thq,t any of the old do 
 remain, and would rather have all devised anew: then such 
 men granting some ceremonies convenient to be had, surely 
 where the old may be well used, there they cannot reasonably 
 reprove the old only for their age, without bewraying of their 
 own folly. Por in such a case they ought rather to have 
 reverence unto them for their antiquity, if they will declare 
 themselves to be more studious of unity and concord, than of 
 innovations and new-fangleness, which (as much as may be 
 with true setting forth of Christ's religion) is always to be 
 eschewed. Purthermore, such shall have no just cause with 
 the ceremonies reserved to be offended. For as those be taken 
 away which were most abused, and did burden men's consciences 
 without any cause : so the other that remain, are retained for a 
 discipline and order, which (upon just causes) may be altered 
 and changed, and therefore are not to be esteemed equal with 
 God's law. And moreover, they be neither dark nor dumb 
 ceremonies, but are so set forth, that every man may understand 
 what they do mean, and to what use they do serve. So that it 
 is not like that they in time to come should be abused as other 
 have been. And in these our doings we condemn no other 
 nations, nor prescribe anything^ but to our own people only : 
 for we think it convenient that every country should use such 
 ceremonies as they shall think best to the setting forth of God's 
 honour and glory, and to the reducing of the people to a most 
 perfect and godly living, without error or superstition ; and that 
 they should put away other things, which from time to time 
 they perceive to be most abused, as in men's ordinances it often 
 chanceth diversely in divers countries." 
 
 Perhaps it woidd be difficult to deduce' from this language 
 
 B 
 
1 8 Ecclesiastical yudgmmts. 
 
 any certain conclusion as to the precise sense in which the 
 terms Eites and Ceremonies are used. 
 
 In the first Prayer-Book, at the close of the dissertation, 
 ■which is at the end of the services, " Of Ceremonies, why some 
 he abolished, and some retained," are "certain notes for the 
 more explication and decent ministration of things contained 
 in this hook," one " note" is " as touching kneeling, crossing, 
 holding up of hands, knocking upon the breast, and other 
 gestures, they may be used or left as every man's devotion 
 serveth without blame." 
 
 This note does not appear in the subsequent Prayer-Books, 
 but, nevertheless, at the Hampton Court conference in the year 
 1603, the Bishop of "Winchester, replying to the objections 
 made by the Puritans to the use of the "Cross in baptism and 
 ceremonies generally, said — 
 
 " In prayer, the kneeling on the ground, the lifting up of our 
 hands, the knocking of our breasts, are ceremonies significant : 
 the first, of our humility coming before the mighty God ; the 
 second, of our confidence and hope ; the other, of our sorrow 
 and detestation of our sins ; and these are and may lawfully be 
 used." 
 
 " M. i)ean of the Chapel remembred the practice of the 
 Jews, who, unto the institution of the Passeover, prescribed 
 unto them by Moses, had, as the rabbins witnesse, added both 
 signes and words, eating soure herbs, and drinking wine, with 
 these words to both, 'Take, and eat these in remembrance,' etc.; 
 ' Drink this in remembrance,' etc. Upon which addition and 
 tradition of theirs, our Saviour instituted the Sacrament of his 
 last Supper, in celebrating it with the same words and after the 
 same manner ; thereby approving that fact of theirs in parti- 
 cular, and generally, that a Church may institute and retain a 
 signe significant," which, says the reporter of the conference, 
 satisfied His Majesty exceeding weU. — {Gardwell, Conferences 
 on the Booh of Gomm/m Prayer, 3d ed. p. 197.) 
 
 These gestures appear to me to have been considered as cere- 
 monies, wisely left to every man's discretion. 
 
 In the first " order of the Communion" which preceded the 
 first Prayer-Book, the Eubric says, "The time of the Com- 
 munion shall be immediately after that the Priest himself hath 
 received the Sacrament, without the varying of any other rite 
 or cerevwny in the Mass (until other order shall be provided), 
 but, as heretofore, usually the Priest has done with the Sacra- 
 ment of the Body," etc. 
 
 Here, again, rite and ceremony seem to be used for elements 
 or portions of a service. 
 
 Let us consider the construction put upon the Latin terms 
 
Martin v. Mackonochie. 19 
 
 (from which, of course, the English terms are borrowed) ritus 
 et cceremonice hy high Latin authorities. 
 
 Bona {Opera Omnia, p. 562), writing, De Disciplina psallendi, 
 § iii., says : 
 
 " CceremmvicB quid sint, et quce hujus nominis origo. Uarum 
 ejlcacia, et utilitas ad diviwu/m cultum. Verm a falsis, et 
 superstitiosis discernendce. Exteriores cceremonias sine interna 
 spiritu parum prodesse. 
 
 "... Sunt autem cseremonise, si proprie loqui velimus, ritus 
 sancti in sacrificiis, et divinis officiis ad Dei cultum adhibiti : 
 sed migravit vocabulum in usus etiam profanos ; nam cum 
 homines instituissent sibi invicem inclinare, genua flectere, 
 manus osculari: hse et alise honoris exhibitiones, cum proprio 
 nomine carerent, cceptse sunt etiam cseremoniae dici." 
 
 Van Espen (Jus Eccles. Universum, torn. i. p. 410, pars ii. 
 tit. V. cap. 1, sect. 9, de celebrafione Missarum) speaking of the 
 celebration of the Eucharist, says : " Certum tamen est ipsum 
 apostolis suis, totique Ecclesise, in eorum persona, potestatem 
 auctoritatemque dedisse ea omnia in augustissimi hujus mysterii 
 ritibus seu cmremoniis addendi, demendi, immutandi quse illius 
 dignitati et populorum devotioni pro temporum et locorum 
 diversitate magis congruere judicarent." 
 
 Here, ritus and cceremonim are not separate services, but cer- 
 tain ingredients or accompaniments of one service, that of the 
 Eucharist. 
 
 Gavanto (vol. i. p. 3, ed. 1 823, Venice), a great Eoman ritualist, 
 says, that Bona and Suarez both define cceremonia as "actio 
 religiosa ad cultum et decentiam sacrificii ab ecclesiS, instituta." 
 
 He quotes Quarti's opinion as follows : — 
 
 " Procedit Quarti ad dividendas cseremonias in eas, quae sunt 
 intrinsecee ipsi missee, et partes ejusdem, et consistunt, dicit 
 ipse, tum in verbis, tum in gestibus celebrantis, de quibus late 
 Suarez, disp. 83 et 84, et in eas, quae sunt circumstantiee extrin- 
 secse ejusdem sacrificii, ut locus, tempus, vasa, et vestimenta 
 sacra, etc. Dicit praeterea, quod illte caeremoniae, qua consis- 
 tunt in gestibus, quaedam inductae sunt propter decentiam 
 operandi, nee habent aliam significationem, ex. gr. quod sacerdos 
 dum signat seipsum, ponit sinistram sub pectore; et aliae 
 inductae sunt propter significationem moralem, vel mysticam, 
 verb. grat. mixtio aquce cum vino " (observe these words), " digi- 
 torum ablutio, crucis signa, de quibus Divus Thomas 3 part, 
 qucest. 83, artic. 4, § 5. 
 
 " Verum, pace tanti viri, ego distinguerem caeremoniam sacram 
 a ritu, dicendo, ritus sacros consistere in Ulis precibus, epistola, 
 evangelio, etc., quae juxta ecclesiae dispositionem recitari debent 
 in missa ; caeremoniam autem consistere in solis gestibus, quibus 
 
20 Ecclesiastical Judgments. 
 
 praedictsB pieces juxta ejusdem ecclesise praescriptum peragi 
 debent ad majorem ornatum, et decentiam sacrificii, quod cele-' 
 bratur; et revera Cseremonialia, seu libros CBeremoniamm vo- 
 camus illos, qui non orationes et pieces dicendas pisescribunt, 
 sed modum, quo illsB dicendse sunt ; e contia Eituales nuncu- 
 pamus illos, qui continent pieces, seu alias oiationes, quas 
 lecitandas pisesciibunt. 
 
 "Eitus, quoniam in veibis legulaiitei consistunt, vel sunt 
 partes missae oidinaiise, quia scilicet sempei ingiediuntui ejus 
 compositionem ; vel sunt extiaoidinarise, sive mobiles, quia non 
 sempei ejus compositionem ingiediuntui, sed ad majoiem quan- 
 doque adduntui solemnitatem, atque omatujn." — {Gavanto, 
 Thesaurus Sacrorum Bittium, vol. i. p. 4, pais i., in Bvhrica 
 Generali.) 
 
 The Council of Tient, in the 2 2d session, the 5th chaptei 
 (edit. Coleti, tom. xx. p. 130), De Missce Cceremoniis et Bitihus, 
 speaks as follows : — 
 
 " Quumque natuia hominum ea sit, ut non facile queat sine 
 adminiculis exteiioiibus ad leium divinaium meditationem 
 sustolU, piopteiea pia matei ecclesia litus quosdam ut scilicet 
 qusedam submissa voce alia veio elatioie in missa pionunciai- 
 entui, instituit, cseiemonias item adhibuit ; ut " (these are the 
 instances of ceremonies) " mysticas benedictiones, lumina, 
 thymiamata, vestes, aljaque id genus multa ex apostolica dis- 
 cipHna et tiaditione, quo et majestas tanti saciificii commen- 
 deietui, et mentes fidelium pei hsec visibilia leligionis et 
 pietatis signa ad leium altissimaium, quae in hoc saciificio 
 latent, contemplationem excitaientui." 
 
 Whatevei authority this passage may have, it would appeal 
 to include undei the title Cceremonice, among other things, the 
 use of lights, of incense, and of vestments. 
 
 There is no doubt that the terms Eites and Ceremonies 
 are sometimes used in the sense contended for by the defen- 
 dants; but on the whole, the result of this examination of 
 authorities leads me to the conclusion that there is a legal 
 distinction between a Eite and a Ceremony ; the former con- 
 sisting in services expressed in words, the latter in gestures or 
 acts preceding, accompanying, or following the utterance of 
 these words. 
 
 Applying this principle to the charges before nie, I am of 
 opinion that the matters complained of must be considered in 
 law as ceremonies. 
 
 Before I proceed to consider the greater question, whether 
 they are ceremonies forbidden by the ecclesiastical law of Eng- 
 land, and more especially by that part of it which consists of 
 the provisions of the Prayer-Book and the Statute of Unifor- 
 
Martin v. Mackonochie. 2 1 
 
 mity, T think it right to draw attention to the judgment of the 
 Church Universal, and especially of " that pure and apostolical 
 branch of it established in this realm " upon the general subject 
 of ceremonies. 
 
 And from that judgment it will, I think, appear that an essen- 
 tial distinction is drawn between those which are from their 
 origin immutable, and those which it is competent to the proper 
 authorities to mould according to the varying necessities and 
 exigencies of each particular Church. 
 
 The only orders given in the ISTew Testament with respect to 
 the ritual of the Church are of the most general kind, and are 
 to be found in the following passages : Saint Paul in his First 
 Epistle to the Corinthians directs, 
 
 •travTa Trpo? olKoZojjJrjv yeueaOo), 
 and again. 
 
 irdina eutrj^Jj/iWiM? «ai koto, rd^iv yeveerdea, 
 
 which we render, 
 
 " Let all things be done to edification," 
 and 
 
 " Let aU things be done decently and in order." 
 
 Saint Augustine, whose authority our Church so highly 
 regards, observes (Ep. 36, tom. ii. p. 101), "In his rebus de 
 quibus nihil certi statuit Scriptura Divina, mos populi Dei vel 
 instituta majorum pro lege tenenda sunt." 
 
 And St. Jerome, to whom our articles refer, says (Ep. xxviii. 
 ad Lucinium Bseticum), "Ego illud te breviter admonendum 
 puto traditiones ecclesiasticas prsesertim " (remark the caution) 
 " quse fidei non officiant ita observandas ut a majoribus traditse 
 sunt : nee aliorum consuetudinem aliorum contrario more sub- 
 verts Sed unaquseque provincia abundet in suo sensu, et prse- 
 cepta majorum leges apostolicos arbitretur." 
 
 When Augustine, the missionary of Gregory the Great (to 
 whom this coimtry is so much indebted), found the ancient 
 British Churches in possession of a ritual in accordance with 
 the Galilean use and that of the Eastern Church, he became 
 perplexed what course to pursue, and wrote for advice on the 
 subject to the Pope. From our old historian Bede we learn how 
 wise an answer he received : — 
 
 (Beda, Hist. i. 27, § 60, Secunda Interrogatio Augustini, edit. 
 Stephenson, p. 89.) "Cum una sit fides," wrote Augustine, 
 " sunt ecclesiarum diversse consuetudihes, et altera consuetude 
 missarum in sancta Eomana ecclesia, atque altera in Galliarum 
 tenetur? Eespondit Gregorius Papa. Novit fraternitas tua 
 Eomanse ecclesise consuetudinem, in qua se meminit nutritam. 
 
22 Ecclesiastical yudgments. 
 
 Sed mihi placet, sive in Eomana, sive in Galliarum, sen in qua- 
 libet ecclesia aliquid invenisti quod plus Omnipotenti Deo possit 
 placere, soUicite eligas, et in Anglorum ecclesia, quae adhuc ad 
 fidem nova est, institutione prsecipua, quae de multis ecclesiis 
 colligere potuisti, infundas. Non enim pro locis res, sed pro 
 bonis rebus loca amanda sunt. Ex singulis ergo quibusque 
 ecclesiis, quae pia, quae religiosa, quae recta sunt elige, et haec, 
 quasi in fasciculum coHecta, apud Anglorum mentes in consue- 
 tudinem depone." 
 
 According to a later historian of our Church, the learned 
 Field, Dean of Gloucester : — 
 
 " Ceremonies are outward acts of religion, having institution, 
 either from the instinct of nature, as the lifting up of the hands 
 and eyes to heaven, the bowing of the knee, the striking of the 
 breast, and such like ; or immediately from God, as the sacra- 
 ments; or from the Church's prescription: and either only 
 serve to express such spiritual and heavenly affections, disposi- 
 tions, motions, and desires as are or should be in men ; or else 
 to signify, assure, and convey unto them such benefits of saving 
 grace as God in Christ is pleased to bestow on them. To the 
 former purpose and end the Church hath power to ordain cere- 
 monies ; to the later, God only." — (Field, Of the Church, vol. ii. 
 p. 527.) 
 
 And Burnet in his History of the Reformation (ed. Oxford, 
 1829, vol. ii. p. 164), expressing himself with greater accuracy 
 than usual, in speaking of the use of a ceremony in relation to 
 the belief of the Church, says, " This seems more necessary to 
 be well explained, by reason of the scruples that many have 
 since raised against significant ceremonies, as if it were too 
 great a presumption in any Church to appoint such, since these 
 seem to be of the nature of sacraments. Ceremonies that 
 signify the conveyance of a Divine grace and virtue are indeed 
 sacraments, and ought not to be used without an express insti- 
 tution in Scripture ; but ceremonies that only signify the sense 
 we have, which is sometimes expressed as significantly in dumb 
 shows as in words, are of another kind; and it is as much 
 within the power of the Church to appoint such to be used, as 
 it is to order collects and prayers, words and signs being but 
 different ways of expressing our thoughts." 
 
 The language of our Church in her articles on this subject 
 is expressed as follows : In Article XX. — 
 
 " Of the Authority of the Church. 
 
 " The Church hath power to decree rites and ceremonies, and 
 authority in controversies of faith : And yet it is not lawful 
 for the Church to ordain anything that is contrary to God's 
 
Martin v. Mackonochie. 2% 
 
 Word written, neither may it so expound one place of Scrip- 
 ture, that it be repugnant to another. Wherefore, although 
 the Church he a witness and a keeper of Holy Writ, yet, as 
 it ought not to decree anything against the same, so besides 
 the same ought it not to enforce anything to be believed for 
 necessity of salvation." 
 
 And in Article XXXIV.— 
 
 " Of the Traditions of the Church. 
 
 " It is not necessary that traditions and ceremonies be in 
 aU places one and utterly like, for at all times they have 
 been divers, and may be changed according to the diversities of 
 countries, times, and men's manners, so that nothing be ordained 
 against God's Word. Whosoever through his private judg- 
 ment, wiUingly and purposely, doth openly break the traditions 
 and ceremonies of the Church, which be not repugnant to 
 the Word of God, and be ordained and approved by common 
 authority, ought to be rebuked openly (that others may fear to 
 do the like), as he that offendeth against the common order of 
 the Church, and hurteth the authority of the magistrate, and 
 woundeth the consciences of the weak brethren. 
 
 "Every particular or national Church hath authority to 
 ordain, change, and abolish ceremonies or rites of the Church 
 ordained only by man's authority, so that all things be done to 
 edifying." 
 
 Bishop Beveridge (few higher authorities covdd be invoked) 
 in his " Ecclesia Anglicana Ecclesia CathoUca, or the Doctrine 
 of the Church of England consonant to Scripture, Eeason, 
 and the Fathers,' in a Discourse upon the Thirty-nine Articles " 
 {Works, Oxford edition, 1845, voL vii. p. 373), thus comments 
 Article XX, " Of the Authority of the Church : "— 
 
 "First (he says) it hath power to decree rites and ceremonies, 
 so that it is lawful for the Church to decree and appoint what 
 rites or ceremonies shall be used in the public worship of the 
 great God ; not as parts of that worship, for' then they would 
 not be rites and ceremonies. And therefore it is in vain 
 objected to by the adversaries to this truth, that herein we 
 give the Church power to add anything to God's worship 
 which is not commanded in his Word ; as if rites and cere- 
 monies were in themselves any part of worship. Whereas 
 what is any part of God's worship cannot be a mere rite or 
 ceremony, neither can that which is a mere rite or ceremony 
 be any part of his worship. For rites and ceremonies, in that 
 they are nothing but rites and ceremonies, be in themselves 
 indifferent, neither good nor bad, until determined by the 
 Church; after which determination also they still remain 
 
24 Ecclesiastical yudgmenls. 
 
 indifferent in themselves, and are good and bad only in refer- 
 ence to their decree, who had power and authority to deter- 
 mine them. Whereas every the least part of God's worship 
 can be by no means omitted without sin, and therefore when 
 it is here said that the Church hath power to decree rites 
 and ceremonies, we must always by the words rites and cere- 
 monies understand nothing else but the particular circum- 
 stances and customs to be observed in the service and worship 
 of God, not as any cause or part thereof." 
 
 Again the Bishop says (p. 375) — 
 
 " We must needs grant that the Church of Corinth (and so 
 other Churches) had power and authority to determine and 
 order these things. Or, if they had no such power before, yet 
 St. Paul, or rather the Most High God by St. Paul, did in 
 these words grant them such a power and authority, in the 
 decreeing these and the like circumstances and ceremonies for 
 the more decent and orderly worshipping of the Glorious 
 Jehovah, giving them this one general comprehensive rule, 
 ' Let all things be done to edifying, and in order ;' out of 
 which one general rule^ that, and all Churches whatsoever, 
 according to the variety of times and places they live in, were 
 to frame other particular rules and canons for the edifying and 
 orderly performance of God's worship ; who being a God, not 
 of confusion, but of order in himself, he requires such worship 
 as is done in order, not in confusion, from us." 
 
 (P. 377)— 
 
 " Neither can I see in reason how this power in ceremonies 
 and controversies sbould be denied the Church. For first, as 
 for ceremonies, they cannot but be acknowledged to be indif- 
 ferent, neither in themselves good nor bad ; and if they be in 
 themselves either good or bad, and not indifferent, they 
 are not merely ceremonies, especially if they be in their own 
 nature bad and sinful, they are not the ceremonies intended 
 in this place. Por this same Article, in the following part 
 of it, doth determine that the ceremonies here intended are 
 only such as are not against the Scripture, and by consequence 
 not unlawful. Now such rites and ceremonies as are in them- 
 selves indifferent, it can be no sin to determine them to either 
 part ; for which part soever, they are determined to, they can- 
 not be determined into sin. I mean, what is in itself indiffer- 
 ent, and so may be used or not used without sin, whether it be 
 decreed to be used, or not to be used, it cannot be any sinful 
 decree, especially when, after as weU as before the decree, 
 they are still acknowledged to be in themselves indifferent; 
 
Martin v. Mackonochie. 25 
 
 though not as to our use. Which things of indifferency also, 
 as all ceremonies are, cannot be supposed to come within the 
 command of God, for then they would not be indifferent; 
 and seeing God hath not left any particular command, but 
 only a general rule about all things of indifferency, that they 
 be so ordered that they be done decently and to edifying, the 
 Church cannot be thought to sin in determining them, so as 
 she thinks the most edifying and decent, as we shall Ijy the 
 blessing of God see more fully in the Thirty-fourth Article. 
 And if it be no sin thus for the Church to determine ceremonies, 
 it must needs be granted that she hath power to decree them." 
 
 And on Article XXXIV., " Of the Traditions of the Church," 
 the Bishop observes (p. 526) — 
 
 " But there being many circumstances required to the 
 performance as well of religious as civU actions, and so to 
 the worship of God as well as anything else, as, for example, 
 the time when, the place where, the habit in which His public 
 service shall be performed, and the like, it being impossible it 
 should be performed without these^and the like circumstances, 
 and seeing the all-wise God hath thought good not to deter- 
 mine these in His Word, but to leave it to the discretion of the 
 Church to determine them as it shall see fit, only giving them 
 this general rule to square all these their determinations by — , 
 
 ' Let all things be done decently and in order.' 
 
 Hence it is that every particular Church hath still thought 
 fit to exercise this her power and authority in determining 
 these circumstances, according to that manner as seemeth to 
 herself orderly and devout, so that there is no necessity that 
 one Church should determine them after the same manner that 
 another doth ; nay, it is often necessary that one Church should 
 not follow another in this case ; for it often so falls out that 
 what is decent in one place is unseemly in another, and every 
 Church is bound to model circumstances according to that 
 order which is the most seemly and decent in the place where 
 it is settled. 
 
 (P. 536)— 
 
 " And if we should descend down to after councils, we shall 
 find there was scarce ever a Provincial Church met together in 
 council since our Saviour's time but did not ordain some cere- 
 monies or other to be observed by her children. It would be 
 an endless thing to reckon up all the ceremonies that were 
 ordained or altered by Provincial Churches ; or, indeed, all the 
 Provincial Churches that ordained or altered ceremonies in the 
 primitive times. I shall, therefore, instance only in such cere- 
 
26 Ecclesiastical Judgments. 
 
 monies as our Churcli hath thought good still to retain, that so 
 ■we may see both how Provincial Churches have still looked 
 upon themselves in all ages to have power to ordain ceremonies, 
 and also, that the ceremonies retained and ordered by our 
 Church are no new-fangled ceremonies, nor Popish super- 
 stitions, but that most of them were ordained and used in the 
 Primitive Church before the Pope had forged his superstitions." 
 
 This very learned Prelate then recites a great number of 
 instances in which the Provincial Councils of different countries 
 have made ordinances with respect to their own ritual observ- 
 ances, and adds (p. 540), "And thus we see how many, even of 
 the very rites and ceremonies which are stUl in use amongst 
 us, were long ago ordained by Provincial Churches met together 
 in council. Many more might I heap up to the same purpose, 
 but these may be enough to show how the Provincial or 
 National Churches of Christ, in all ages, since His Incarnation, 
 have still exercised this power in ordaining, altering, and 
 abolishing ceremonies, which certainly they would never have 
 done if they had not believed they had power to do it." 
 
 Bishop Jeremy Taylor (vol. xiv., Heber's edition), in his 
 "Eule of Conscience" (p. 21), lays down as Eule XII., All 
 those Ritvuls which were taught to the Church by the Apostles con- 
 cerning Ministries, which were of Divine institution, do oblige all 
 Christendom to their observation. 
 
 And on this rule he observes : — 
 
 " (1.) I instance in the Holy Sacrament first of all; concern- 
 ing which the Apostles delivered to the Churches the essential 
 manner of celebration, that is, the way of doing it according to 
 Christ's commandment, for the words themselves, being large 
 and indefinite, were spoken indeed only to the Apostles, but 
 yet they were representatives of all the whole ecclesiastical 
 order in some things, and of the whole Christian Church in 
 other ; and, therefore, what parts of duty, and power, and ofi&ce 
 did belong to each, the Apostles must teach the Church, or she 
 could have no way of knowing without particular revelation. 
 
 " (2.) Thus the Apostles taught the Bishops and Priests to 
 consecrate the symbols of bread and wine before they did 
 communicate; not only because by Christ's example we were 
 taught to give thanks before we eat, but because the Apostles 
 knew that the symbols were consecrated to a mystery. And 
 this was done from the beginning, and in all Churches, and in 
 all ages of the Church; by which we can conclude firmly 
 in this rule, that the Apostles did give a canon or rule to the 
 Churches to be observed always, and that the Church did never 
 believe she had authority or reason to recede from it. For in 
 those rites which are ministries of grace, no man must inter- 
 
Martin v. Mackonochie. 27 
 
 pose anything that can alter any part of the institution, 
 or make a change or variety in thai which is of Divine appoint- 
 ment. For the effect in these things depends wholly upon the 
 will of God, and we have nothing to discoiirse or argue ; for we 
 know nothing but the institution, nothing of the reason of the 
 thing, and therefore we must in these cases, with simplicity and 
 obedience, apply ourselves to practise as we have received, for 
 we have nothing else to guide us. Memory and obedience, not 
 discourse and argument, are here in season." 
 
 The Bishop then proceeds to distinguish between alterable 
 and unalterable rites as follows (p. 22) : — 
 
 "But where the Apostles did not interpose, there the 
 Churches have their liberty ; and in those things, also, which 
 evidently were no part of the appointed liturgy or ministration, 
 in those things, though it be certain the Apostles did give rules 
 of order and decency, yet because order is as variable as the 
 tactics of an army, and decency is a relative term, and hath a 
 transient and changeable sense, iu all these things there is no 
 prescription to the Church, though we did know what the 
 Churches apostolical did practise, for they did it with liberty, 
 and, therefore, we are not bound ; the Churches are as free as 
 ever ; though the single persons in the Churches can be bound, 
 yet the Churches always have liberty." ^ -^ 
 
 1 The Bishop continues (p. 109) thus : — 
 
 " This rule is to be understood positively and affirmatively, that is, the 
 Church in all her constitutions must take care that the Church be edified 
 and buUt up in some grace or other ; but not so, that whatsoever is for edifi- 
 cation, she hath power to command. The measures and limits of her legis- 
 lative power I have already described ; it must be within those circles ; and 
 though other things without them may be useful and fit for instruction, or 
 to promote the interest of a virtue, yet Christ hath left them at liberty, and 
 His Church hath no power to bind beyond His commission. They can 
 exhort and persuade, and, by consent, they can prescribe, but to the making 
 of a law there is something else required besides that it be apt to edify or to 
 instruct. For Resides that it must be of something placed in her power) it 
 must edify, and not destroy ; it must build up, and not pull down ; that is, it 
 must build with all hands, and not pull down with one. 
 
 "I instance in the institution of significant ceremonies, that is, such which 
 are not matters of order and decency, but merely for signification and the 
 represeutment of some truth or mystery. Those which are prudently 
 chosen are in their own nature apt to instruct. Thus, the use of pictures in 
 the Greek and in the Lutheran Churches is so far useful, that it can convey 
 a story, and a great and a good example to the people that come thither, and 
 so far they may be for edification. But because these can also, and do too 
 often, degenerate into abuse, and invade religion, to make a law of these is 
 not safe; and when that law does prevail to any evil that is not easily 
 by any other means cured, it does not prevail upon the conscience, and, 
 indeed, to make a law for the use of them, is not directly within the com- 
 mission of the ecclesiastical power." 
 
28 Ecclesiastical Judgments. 
 
 Luther in the " rormula Missse et Communioiiis " for the 
 Church of Wittemberg, which appears to have been written 
 in 1523, speaking of the ceremonies of Divine worship which 
 he recommends, says : — 
 
 " Sexto, requiritur Evangelii lectio. Ubi nee candelas neque 
 thurificationem prohibemus, sed nee exigimus, esto hoc liberum."^ 
 
 The same spirit of true liberality is exemplified in the writ- 
 ings of the late most distinguished American Prelate, the Bishop 
 of Vermont. Speaking of ornaments used in the services of 
 the Church, he observes : — 
 
 " The same liberty exists with regard to lights upon or behind 
 the altar, the use of chrism and incense, the mixing of water 
 with the wine of the Holy Eucharist, and the representation of 
 figures and emblems in stained glass windows ; for all of these 
 were established by usage in the second year of Edward vi., 
 and our Church has uttered no jprohihition concerning any of 
 them, but has merely omitted to notice them, directly or in- 
 directly, in her whole legislation. It is certain that none 
 of these things interfere with our liturgy, because they may be 
 used without deviating in the slightest degree from our pre- 
 scribed forms. 
 
 " And the plain result would seem to be, that their introduc- 
 tion, whether expedient or not, can never be justly considered 
 unlawful" — {Law of Ritualism, by Bishop of Vermont, p. 84.) 
 
 Great variety of usage is to be found in the Greek, the 
 Eoman, the Gallican, and the English Churches upon this 
 subject. All, persons moderately acquainted with Ecclesias- 
 tical history are aware with what zeal and tenacity the Church 
 of Milan ^ has clung to its Ambrosian rite ; — of the various 
 
 1 The note of tlie learned editor, Daniel, in his edition of the Codei 
 Liturgious (Leipsio, 1848), on this, is : — 
 
 "Sunt quibus tnuris odor tarn lucolentiim sit documentum Bomanismi, 
 ut, si nai'ibus dncant bonos odores thymiatum, statim clament, ae odorari 
 ecclesiam E,omano-Catholicani. Vident, thuris oblationem Luthero esse 
 dSid(j)opov. Hoc tamen certum est, thurificationis vestigia in eeclesia Lutheri 
 exstare vestigia fere nulla (cf. p. 24.) In hac urbe nostra Halensi saepius 
 vidi in ecclesiis tribus majoribus, sisummae celebrabantur festivitates, pueros, 
 cum aoerris fumigantibus eoclesiae navim percurrentes : sed haec caerimonia 
 magis ad evaSiav quandam respioere videtur, quam ad cultum divinum." 
 
 ^ The writer, speaking of the reforms of the Koman Liturgy about the 
 time of and after the Council of Trent, ascribes the preservation of the Use 
 of Milan to the energy of the great Archbishop San Carlo Borromeo : — ■ 
 
 " Or dir6 di quanto ha fatto S. Carlo per la difesa e per la ristorazione 
 dei riti e delle oeremonie Ambrosiane. Se un uomo di debole tempra avease a 
 quel tempi tenuta la seda Aroivescovile di Milano, rantichiasima nostra litur- 
 gia, espressione e conservazione di piu riti primitivi, era forse per subiie 
 quelle sorti, che toccarouo, gi4 son piil seooli, alia gaUieana poi alia mozarabica. 
 
 Ora non i piu a temersi aloun pericolo per la contiuuita del rito Ambrosiano 
 
Martin v. Mackonochie. 29. 
 
 liturgies of the Greek Church, and the different uses in England 
 which, though much reconciled by the famous use of Sarum, 
 ■were ultimately merged in our present Prayer-Book. 
 
 I ■wiU. close my citations on this subject with one from the 
 great Eoman Eitualist, Bona : — 
 
 " Quarto tanquam verissimum, et apud omnes indubitatum 
 habendum est id quod ssepius in hoc libro repetendum fuit, 
 qusedam esse in ecclesia, quae ad fidem ut dogmata, quaedam 
 quae ad ritus ut mores pertinent. Quae fidei sunt, sancta 
 inviolabilia, immutabHia semper, et ubique manent ; Deumque 
 solum auctorem agnoscunt. Ad ea credenda caeco quodam 
 obsequio captivum ducimus intellectum ; ut si quis ea turbare, 
 vel quovis modo immutare aut iis contradicere ausus fuerit, 
 diro anathemate perculsus extra ecclesiam fit, nee locum dein- 
 ceps habet inter Orthodoxos. Eitus et ea quae morum ac dis- 
 ciplinae sunt ab hominum arbitrio pendent, et cum tempore 
 variantur, rerumque statu immutato veteres consuetudines 
 abrogantur, et novae succedunt, Ulsesa fidei unitate." — {BoncB 
 O^&ra Omnia, " Eerum Liturgicarum," lib. i. cap. xxiii. p. 265.) 
 
 "Moribus autera immutatis sacros quoque ritus variari 
 consequens fuit." 
 
 " Distinguendae igitur aetates disquirenda mutationis ratio 
 et omnia ad sua principia revocanda sunt ut certa rerum notitia 
 habeatur." — (Ih. cap. xviii. s. 1. p. 242.) 
 
 (IX.) " Eitus ac easrimoniae non in aeternum permanent 
 tollique possunt ac mutari sine fidei ac unitatis dispendio." — 
 {Ih. § 9, p. 247.) 
 
 I have thought it expedient to recite the foregoing authorities 
 upon the nature of Eites and Ceremonies in order to fortify 
 my position, that the questions now pending before me in no 
 way affect the relations of the Church of England to the Church 
 Catholic, but have reference solely to matters of detail and 
 order in her ministrations, which every independent Church 
 has at all times claimed and exercised ; and having thus, I 
 trust, divested the issue of the case before me of that impor- 
 tance which has been, not unnaturally perhaps, ascribed to it 
 by the excited feelings of both parties, I return to the considera- 
 tion of the charges contained in these criminal articles. 
 
 I am not called upon to pronounce in the judgment which I 
 am about to deliver any decision upon any question of doctrine. 
 If, indeed, the law had cast so grave a responsibility upon me, 
 
 immobilmente stabilito sul possesso e sulla pratica di presso a diciotto 
 aeooli, e teuuto in conto di caro e prezioso deposito che i presenti ban 
 ricevuto dai maggiori e devono tramandare ai posteri intatto ed illibato." — 
 (Esposizione delle Ceremonie della Mesaa Privata giusta il Eito Ambrosiano, 
 p. 18 e 20.) 
 
30 Ecclesiastical judgments. 
 
 I should have much considered -whether it would not have 
 been right and proper to have invoked the aid of spiritual 
 assessors, competent, from their position and learning in the 
 Church, to have assisted and guided me in the discharge of 
 such a duty. I thank God, however, that no such consideration 
 embarrasses me on the present occasion. 
 
 Criminal Articles in the Ecclesiastical Court distinguished 
 from, an Indictment. 
 
 Two conclusions result from the premisses which I have 
 stated : first, that the matters in dispute are Ceremonies ; and 
 secondly, that they belong to that category of Ceremonies 
 which are designated " mutable." 
 
 There is also a proposition of fact which should be mentioned 
 in this place, that none of the ceremonies complained of are 
 expressly directed to be used either in the Prayer-Book or the 
 Act of Uniformity. 
 
 The promoter avers, and undertakes to prove, that with 
 respect to these matters of charge, Mr. Mackonochie has 
 violated the Statutes of Uniformity, certain specified canons of 
 those enacted by the Convocation and Crown in 1603, and the 
 general ecclesiastical law. 
 
 The counsel for Mr. Mackonochie have contended, that inas- 
 much as a breach of the Statutes of Uniformity rendered Mr. 
 Mackonochie liable to be proceeded against criminally in a court 
 of common law, as well as in this Court, I am bound to apply 
 the same rules and observe the same strictness required by the 
 common law courts in a matter of indictment. I am of a dif- 
 ferent opinion, having regard both to principle and to precedent; 
 nor do I admit the proposition that unless Mr. Mackonochie be 
 proved to have committed a breach of the Statutes of Uni- 
 formity, although he should be proved to have offended against 
 the law ecclesiastical, he is entitled to an acquittal from the 
 charges now laid agaiust him. I deem it to be my duty to 
 consider whether the defendant be or be not proved to have 
 offended against the laws ecclesiastical in the matter of one or 
 more, or all, of these crimiaal charges, and to give my decision 
 accordingly. 
 
 I have been referred to a case {Bex v. Sparkes, 3 Mod. Eep. 
 79 ; Cripps, Laws of the Church, 626 ; 2 Burn's Eccl. Law, 
 429).^ This was an indictment in the first year of James n. 
 against a clergyman, at the Quarter Sessions in Devonshire, 
 
 ^ Phillim. Eccl. Law, p. 960. 
 
Martin v. Mackonochie. 3 1 
 
 for iising alias preces in the Church, and alio modo than men- 
 tioned in the Book of Common Prayer; and the indictment 
 concluded contra formam statuii, etc. He was found guilty, 
 and fined 100 marks. Upon writ of error, it was admitted that 
 offences against these statutes might be inquired of by the 
 justices, but the indictment wag held bad, for that it ought to 
 have alleged that the defendant used other forms and prayers 
 instead of those enjoined, which were neglected by him ; for 
 that otherwise any person might be indicted who used prayers 
 before his sermon other than such as are required by the Book 
 of Common Prayer; and Mr. Cripps observes, that although 
 this decision established that justices had jurisdiction in such 
 cases, and that indictments, properly framed for offences against 
 these statutes, might be inquired of by them, yet it is probable 
 that indictments of this nature have been very rarely, if ever, 
 preferred ; for the jurisdiction of the ecclesiastical court was 
 in no way taken away by those statutes. And wherever it 
 may have been necessary to institute any penal proceedings 
 against clergymen for the omission of, or addition to, anything 
 contained in the Book of Common Prayer, the proceeding has 
 probably been always in the ecclesiastical court ; and, indeed, 
 prosecutions in the temporal courts upon those statutes seem 
 to have been discouraged by the judges ; for in a case at the 
 Thetford Lent Assizes in 1795, a clerk was indicted upon these 
 statutes, but the evidence was not that he left out or added 
 any prayers, or altered the form of worship, but that he did 
 not read prayers twice on a Sunday, but alternately one Sunday 
 in the morning and the next in the evening, and omitted to 
 read them at all on certain saints' days. Mr. Baron Perryn, 
 who tried the indictment, observed, that it was primce impres- 
 sionis, and being of opinion that the offence complained of was 
 purely of ecclesiastical cognisance, and not the subject of prose- 
 cution in the temporal courts, directed the jury to acquit the 
 defendant, which they accordingly did. 
 
 Looking at all the circumstances, it does not appear to me 
 that the case of Bex v. Sparkes is worthy of much attention, 
 and it will in no way influence my judgment. 
 
 The principal heads under which the argument of the 
 counsel for the promoter may be ranged' appear to me to be 
 the following : — 
 
 First. That as by each and all of the practices charged in 
 these articles, a new rite or ceremony has been added by 
 Mr. Mackonochie to those which are prescribed by the 
 Statutes of Uniformity, such practices are unlawful. 
 
 Secondly. That these particular additions are expressly 
 prohibited. 
 
32, Ecclesiastical yudgments. 
 
 Thirdly. That. they are by necessary implication prohibited/ 
 inasmuch as they are connected with Eoman or Popish 
 doctrines. 
 Fourthly. That as such they have, as a matter of fact, been, 
 
 disused ever since the Reformation. 
 N"ow it appears to me necessary to examine, in the first 
 instance, these two last grounds of objection, inasmuch as a con- 
 sideration of the weight due to them must affect the general 
 application of the law — wherever it be obscure or ambiguous, 
 or silent as to positive precept — to the particular subject of. 
 these criminal charges. 
 
 Identity of the Status of the Church before and after 
 the Reformation. 
 
 I wUl, therefore, consider in the first instance what weight is 
 to be ascribed to the proposition — 
 
 " That they are by necessary implication prohibited, in- 
 asmuch as they are connected with Eoman or Popish doc- 
 trines." 
 
 The counter proposition appears to be that the similarity of 
 these ornaments and practices with those in the Church of 
 Eome does not furnish a safe criterion whereby to try the ques- 
 tion of their legality in the Church of England. That the true 
 criterion is conformity with primitive and catholic use, and not 
 antagonism to Eome. 
 
 A great part of the arguments addressed to me by the counsel 
 oh both sides was founded upon one or the other of these pro- 
 positions. 
 
 I am very far from complaining of these arguments, or of 
 the length to which they extended, for in my opinion a careful 
 consideration of these propositions, however large, grave, and 
 difficult, is a necessary preliminary to the due construction 
 of the laws, formularies, and usages involved in the present 
 inquiry. 
 
 They must, if this construction be doubtful, receive, so to 
 speak, a colour and complexion from the judgment which is 
 formed upon the spirit and principles which governed the 
 Eeformation of our Church. 
 
 It is my duty to form this judgment upon an historical 
 examination — however unequal my powers may be to the task 
 — into the principal acts of the State and the Church which, 
 since the great epoch of the Eeformation, have introduced, 
 accompanied, and settled the ecclesiastical establishment of this 
 kingdom. 
 
Martin v. Mackonochie. 33 
 
 It is scarcely necessary to say. that wliere the language of a 
 Statute is plain I must obey it, or that where the Court of 
 Appeal has laid down a principle applicable to this case, I must 
 follow it. But, where I have no such guide, I must seek the 
 exposition of the law from the general language of the cardinal 
 statutes, the public and authoritative declarations which accom- 
 panied and Ulustrated them, the judicial construction which 
 they have received, the formularies which these Statutes ordered, 
 whether with or without the concurrent sanction of the Church, 
 though happily the latter alternative is of rare occurrence ; I 
 must also consider the canons which bind the clergy, and the 
 opinions of the Bishops and great divines of our Church, who 
 were not unfrequently also the councillors of the State and the 
 authors of the formularies. 
 
 A. — Identity in Law. 
 
 I propose to pursue my investigation in the following order : 
 first, I will consult the law ; secondly, I will have recourse to 
 historical and theological statements. 
 
 The inquiry into the law admits of the following subdivisions : 
 the statute law ; the canons enacted since the Eeformation ; and 
 the general common law of the Church. 
 
 In the history of no kingdom is the independence of the 
 National Church written with a firmer character than in that 
 of England, in the Statutes of the Eealm, in the decisions of 
 Judicial Tribunals, and the debates of Parliament.^ 
 
 The Constitutions of Clarendon, in Henry the Second's reign 
 (a.d. 1 1 64), though directly aimed at the repression of the in- 
 ordinate claims and privileges of the National Church, were no 
 doubt indirectly " calculated," as Hume observes, " to establish 
 the independency of England on the Papacy ; " and therefore, 
 when the King sought Pope Alexander's ratification of them, 
 that Pontiff annulled and rejected all but six out of the sixteen 
 memorable articles. 
 
 The resistance of Beckett, and, still more, the general feeling 
 excited by the wicked and impolitic murder of that prelate, 
 procured the practical abrogation of the articles objected to, by 
 the enactments of Edward i. and m., of Eichard li., of Henry IV. 
 and v., and of Edward iv. 
 
 But in the severe penalties attached to the Statutes of Pro- 
 visors and Prmmunire may be read the steady determination of 
 the English people to maintain an independent National Church, 
 
 1 PhiRimor^s International Law, vol. ii., ed. 1, pp. 412-416 ; ed. 2, pp. 
 467-470. 
 
 C 
 
34 Ecclesiastical Judgments. 
 
 and to resist the ultramontane doctrines which had taken root 
 in some other countries. 
 
 The Statute of Provisors (25th Edw. ill., St. 6, A.D. 1350) 
 recites that "the Holy Church of England" was founded in the 
 " estate of prelacy within the realm of England " by the King 
 and nobles of England, and forbids the prevalent abuses of the 
 Pope's bestowing benefices upon aliens, " benefices of England 
 which be of the advowry of the people of Holy Church," the re- 
 servation of first-fruits to the Pope, and the provision or reserva- 
 tion of benefices to Eome. By 38th Edward iii., St. 2, c. 1 
 (a.d. 1363), persons receiving citations from Eome in courts 
 pertaining to the King, etc., are liable to the penalty of 25th 
 Edw. III. 
 
 The Statute (a.d. 1392) 16 Eichard ii. c. 5; renders the pro- 
 curing of Bulls from Eome liable to prcemimire, and it recites a 
 variety of Papal aggressions upon the privileges of the Crown ; 
 among other matters, as to the translation of Bishops out of the 
 realm, or from one bishopric to another within the realm ; and 
 the carrying of treasure out of the realm ; and so the realm, 
 destitute as well of counsel as of substance, to the final destruc- 
 tion of the said realm, and so the Crown of England, which 
 hath been so free at all times that it hath been in no earthly 
 subjection, but immediately subject to God in all things touch- 
 ing the regality (la regalie) of the same Crown, and to none 
 other, should be submitted to the Pope, and the laws and 
 statutes of the realm by him defeated and avoided at his wiU, 
 in perpetual destruction of the sovereignty of the kingdom of 
 the King and Lord, his Crown, his royalty, and of aU his realm, 
 which God defend. 
 
 This statute before the Eeformation, and the subsequent 
 enactment of 24 Henry viii. c. 12, and the great case of 
 Cawdry ^ as reported by Lord Coke and corrected by Bishop 
 Stillingfleet, may be said to contain a treatise on constitu- 
 tional law of England upon the subject of the usurpation of 
 the Papal See upon the liberties of the National Church, 
 and in regard to the authority and privilege of the English 
 Crown. It would be difiicult to conceive a clearer or more 
 dignified exposition of the law upon this subject than is 
 contained in the prefatory part of the statute of Henry vm. 
 " Where by divers sundry old authentick histories and 
 chronicles it is manifestly declared and expressed, that this 
 realm of England is an empire, and so hath been accepted in 
 the world, governed by one supreme head and king, having the 
 
 .15 Co. Eep. 1. SiUHngfleet's Ecclea, Cases, "Of the Foundation of Eccle- 
 siastical Jurisdiction," vol. ii. p, 49, 
 
Martin v. Mackonochie. 35 
 
 dignity and royal estate of the imperial Crown of the same, 
 unto whom a body politic, compact of all sorts and degrees of 
 people, divided in terms, and by names of spirituality and 
 temporality, been bounden and owen to bear next to God a 
 natural and humble obedience ; he being also institute and 
 furnished, by the goodness and sufferance of Almighty God, 
 with plenary, whole, and entire power, pre-eminence, authority, 
 prerogative, and jurisdiction, to render and yield justice, and 
 final determination to aU manner of folk, resiants, or subjects 
 within this his realm, in all causes, matters, debates, and con- 
 tencions, happening to occur, insurge, or begin within the 
 limits thereof, without restraint or provocation to any Foreign 
 Princes or Potentates of the world ; the body spiritual whereof 
 having power, when any cause of the law divine happened to 
 come in question, or of spiritual learning, then it was declared, 
 interpreted, and showed by that part of the said body politic 
 called the spirituality, now being usually called the English 
 Church, which always hath been reputed, and also, found of 
 that sort, that both for knowledge, integrity, and sufficiency of 
 number, it hath been always thought, and is also at this hour 
 sufficient, and meet of itself, without the intermeddling of any 
 exterior person or persons, to declare and determine all such 
 doubts, and to administer all such offices and duties as to their 
 rooms spiritual doth appertain; for the due administration 
 whereof, and to keep them from corruption and sinister affec- 
 tion, the King's most noble progenitors, and the antecessors of 
 the nobles of this realm, have sufficiently endowed the said 
 Chiu'ch both with honour and possessions ; and the laws tem- 
 poral for trial of property of lands and goods, and forthe con- 
 servation of the people of this realm in unity and peace, without 
 rapine or spoil, was and yet is administered, adjudged, and 
 executed by sundry judges and ministers of the other part of 
 the said body politic, called the temporalty ; and both their 
 authorities and jurisdictions do conjoin together in the due 
 administration of justice, the one to help the other." 
 
 At the period of the Eeformation the National Church intro- 
 duced an express denial of the authority of the Pope, — hence- 
 forth called in all public acts and documents the Bishop of 
 Eome, — ^into her articles and canons, and an acknowledgment 
 of the temporal supremacy of the Crown over the ecclesiastical 
 as well as the civil state. Henry Tin. was excommunicated, and 
 in the Bull his subjects were commanded to renounce their alle- 
 giance, and the nobles were ordered " sub ejusdem excommuni- 
 cationis ac perditionis bonorum suorum poenis," to unite with 
 all Christian princes in expelling Henry from England. Eliza- 
 beth was excomnmnicated in pretty similar terms, but not until 
 
36 Ecclesiastical yudgments. 
 
 twelve years after her accession. In answer to a request from 
 the Emperor and other Eoman Catholic princes, that she would 
 allow the Eoman Catholic places of worship, she replied that 
 she would not allow them to keep up a distinct communion, 
 alleging her reasons in these remarkahle words, " for there was 
 no new faith propagated in England ; no religion set up but 
 that which was commanded by Our Saviour, practised by the 
 primitive Church, and unanimously approved by the fathers of 
 the best antiquity." The Eoman Catholics, both in England 
 and Ireland, appeared to have outwardly conformed to the 
 services of the Church for about ten years. 
 
 The peculiar character of the English people and the English 
 Church is also strongly shown in their determination not to admit 
 the general body of the Canon Law into these realms, but only 
 such portions of it as were consistent with the Constitution, 
 the Common Law, and the peculiar usages of the Anglican 
 Church. . The rules of the general Canon Law were principally 
 introduced into this country, and considerably modified in 
 their introduction through the medium of provincial con- 
 stitutions passed by the authority of the Metropolitans of 
 England. It is true that the Pope endeavoured to maintain 
 his authority in this matter by sending legates from time to 
 time, and by the device of creating the Archbishop of Canter- 
 bury " legatus natus" of the Holy See.^ But England possesses 
 in her provincial constitutions, collected by Lyndwood, a body 
 of domestic ecclesiastical law, upon which, before the Eeforma- 
 tion, a national independent character was in many respects 
 impressed. The common law was always disposed to recognise 
 these constitutions, while to the general canon law it always 
 manifested considerable averseness. 
 
 But it has always been the doctrine of the temporal and 
 ecclesiastical courts since the Eeformation that the constitu- 
 tions contained ia Lyndwood, and the general usages of the 
 Church, and certain portions of the canon law admitted by 
 those usages, are still binding upon the Church of this realm. 
 
 I will give some instances : — 
 
 So late as the year 1848 criminal articles were preferred 
 against a clerk in holy orders for accepting a benefice with 
 cure of souls whilst in possession of another benefice with a 
 
 l " Thus much is evident, as Gervasius, in the life of William, at this time 
 (anno 1125) Archbishop of Canterbury, well observes, that the legating 
 power was looked upon as a breach of the law of England, and an invasion 
 of the ancient Uberties of the English Church and Nation, as well as the 
 Tights of the Sees of Canterbury and York in particular, and that the minda 
 of men were scandalised and o&uded at it." — Ineiii Origines Analkma, 
 vol. ii. p. 223. 
 
Martin v. Mackonochie. '37 
 
 cure of souls without dispensation. The articles alleged that 
 by the 29th canon of the 24th Council of Lateran, a.d. 1215, 
 he was vpso jure, deprived of the first living. Sir H. Jenner 
 Fust observed, " The first of the articles sets forth the law, 
 namely, that by decree of the Council of Lateran, when any 
 person in possession of a benefice with cure of souls shaU accept 
 another like benefice, the former becomes void, that is, he loses 
 that benefice, and that is the law of this country at this time. 
 The Statute of Henry viii. does not affect this law, except that 
 it makes the other living voidable ; that is, by sentence, or void 
 by presentation of the patron. 
 
 " Under these circumstances, the facts being proved, the 
 Court is bound to sign a sentence, declaring the perpetuial 
 curacy of Forest JIUl void by Mr, Haver's acceptance of an- 
 other benefice with cure of souls." ^ 
 
 In the case of Saunders v. Head (3 Curteis' Eep. 577) Sir 
 Herbert Jenner Fust said, " It has been made a subject of com- 
 plaint, on behalf of Mr. Head, that the articles do not contain 
 any specification of the law relied on to establish them ; that 
 the first article is merely general, and that under such general 
 pleading it is difficult for a defendant to know how to address 
 himself to the question of law applicable to his case ; that the 
 Canon law has been referred to generally without particular 
 specification." 
 
 (P. 579)— 
 
 " Now the objection taken in this case is not taken for the 
 first time, it has been frequently taken in this Court, and, as 
 often, overruled. The answer always given to the objection is, 
 that where the general law ecclesiastical is relied on, it is not 
 necessary to plead specifically ; that where the offence is one 
 generally cognisable in the Ecclesiastical Court it is not neces- 
 'sary to point out the particular Canon or Statute on which the 
 proceedings are founded." 
 
 In the case of Kemp v. Wickes, Sir John NichoU said, " The 
 law of the Church of England and its history are to be deduced 
 from the ancient general Canon law, from the particular consti- 
 tutions made in this country to regulate the English Church, 
 from our own Canons, from the Eubric, and from any Acts of 
 Parliament that may have passed upon the subject ; and the 
 whole may be illustrated, also, by the writings of eminent 
 persons." — (Kemp v. Wickes, 3 PhiUimore's Eep. 276.) 
 
 In the year 1866 a Eoyal licence was granted to Convoca- 
 
 1 Burder v. Manor, 6 Notes of Cases, 1. 
 
38 Ecclesiastical Judgments. 
 
 tion to alter certain Canons of 1 603 ; tlie Kcence recited the 
 25th of Hen. vin. c. 29, restraining the meeting of Convoca- 
 tion, and continued as follows : — 
 
 " And further, by the said Act it is provided that no canons, 
 constitutions, or ordinance should be made or put in execution 
 within this realm, by authority of the Convocation of the 
 Clergy, which shall be contrariant or repugnant to the King's 
 prerogative royal, or the customs, laws, or statutes of this realm, 
 anything in the said Act to the contrary thereof notwithstanding; 
 and, lastly, it is also provided by the said Act that such Canons, 
 Constitutions, Ordinances, and Synodals provincial which then 
 were already made, and which were not contrary or repugnant 
 to the laws, statutes, and customs of this realm, nor to the 
 damage or hurt of the King's prerogative royal, should then 
 still be used and executed as they were upon making of the 
 said Act, till such time as they should be viewed, searched, or 
 otherwise ordered and determined by the persons mentioned in 
 the said Act, or the more part of them, according to the tenor 
 or form and effect of the said Act, as by the said Act amongst 
 divers other things more fully and at large it doth and may 
 appear." 
 
 B. — Historical and Theological Statements as to Identity. 
 
 Having made these observations with regard to the connec- 
 tion that subsists between the law as to the Church before and 
 after the Eeformation, I will now advert to the evidence of 
 identity furnished by our history and theology since the 
 Eeformation. 
 
 In 1549, Edward the Sixth's government in their message to 
 the Devonshire rebels state, " It seemeth to you a new service, 
 and indeed is none other but the old ; the self-same words in 
 English which were in Latin, saving a few things taken out."^ 
 
 Constant references are made in the Homilies, which were 
 produced under the auspices of Cranmer early in the reign of 
 Edward vi., to the " usages of the primitive Church," and the 
 " sentences and judgements of the most ancient, learned, and 
 godly doctors of the Church." 
 
 Collier,^ speaking of the various influences at work during 
 this reign, says, " Peter Martyr concurred with Bucer in his 
 animadversions upon the Common Prayer Book, as appears by 
 his letter to him upon that subject. 
 
 1 Voix, Acts and Mon., vol. ii. Bk. 9, p. 15. Note to Procter on the 
 Book of Common Prayer, pp. 25, 26. 
 
 2 Eccksiastkal History of Great Britain, vol. v. Book iv. p. 406 (ed, 
 1840). 
 
Martin v. Mackonochiei 39 
 
 " However, from what has teen observed, the reader may 
 perceive Bucer was somewhat overcharged with scruples, and 
 carried his censure too far. Neither are his remarks at all 
 reconcileable with his concessions in the beginning of his dis- 
 course. And amongst other things, his setting aside antiquity 
 with so much ease is particularly remarkable. There is a great 
 deference, without doubt, due to the authority of the first 
 centuries. It was then the apostolical traditions were fresh, 
 miracles were frequent, and the Church under the conduct of a 
 distinguishing illumination. Then secular views and projects 
 of ambition were foreign to inclination. Under such oppor- 
 tunities and qualifications what room is there for suspicion of 
 ignorance or foul dealing? To reject the usages of the ancient 
 Church, because we do not meet with them in Scripture, is no 
 good logic. It is plainly not the design of the New Testament 
 to furnish liturgies and rituals. The converts to St. Peter's ser- 
 mon continued steadfastly in breaking of bread ; ^ that is, ad- 
 ministering the Holy Eucharist ; and in prayers. But what the 
 prayers were at this solemnity is nowhere delivered in Scrip- 
 ture. Where the extraordinary effusions of the Holy Ghost 
 were not supplied, things of this nature were left to the dis- 
 cretion of the spiritual directors, who were to govern themselves 
 by St. Paul's general rule, ' Let all things be done decently and 
 in order ' (1 Cor. xiv.) 
 
 " It is true, if the reb'gious customs of antiquity were plainly 
 inconsistent with the doctrine of the inspired writings, we ought 
 to stand off from them ; but in other cases our Saviour's saying 
 is applicable to the present purpose, ' He that is not against us, 
 is for us.' And where the governors of the Church are under 
 no restraint as to ceremonies and compositions, what should 
 hinder them from following their judgments, and directing as 
 they think fit ? ' For where there is no law, there can be no 
 transgression.' What should hinder them in this case from 
 enlarging the circumstances of worship, from assisting the 
 memory, raising the affections, and explaining the mysteries, 
 with additional ceremonies and. devotions ? 
 
 " His objection against primitive usages, because they have 
 been overvalued and misapplied by the Church of Eome, goes 
 upon a mistaken ground; for, granting the allegations hold 
 good, there is no consequence in the reasoning. To argue from 
 the abuse against the use of things is the way to take our 
 Bibles from us ; for what book has been more abused than the 
 inspired text? By this topic almost everything in religion 
 and nature must be contraband and prohibited. Bucer was 
 formerly sensible of this fallacy ; he saw the danger of disput- 
 
 1 Acta u. 42. 
 
40 Ecclesiastical judgments. 
 
 ing at this rate, and determines against it. To quit antiquity 
 in any custom because it is continued in the Church of Eome 
 has neither reason nor charity in it. It is a peevish piinciple, 
 and helps to keep up a spirit of division. We ought rather to 
 lament the breaches in the Church than make them wider. 
 AH reproachful language, humoursome distance, and unneces- 
 sary squabbles, serve only to exasperate one part of Christen- 
 dom against another, and make our common religion the jest 
 of infidels and atheists." 
 
 The same author^ thus introduces the subject of the apology 
 of Jewel, which is referred to in the 36th of the Canons of 
 1603. 
 
 " The next remarkable occurrence is Bishop Jewel's sermon at 
 Paul's Cross. It was preached in Lent this year upon these 
 Words of the apostle Paul, ' I have received of the Lord that 
 which also I deliver unto you.' Prom this text he took occa- 
 sion to make that remarkable challenge in defence of the 
 Eeformation. The Church of England was reproached with 
 novelty by the Papists, and charged with departing from 
 primitive doctrine and practice. To wipe off these aspersions 
 the Bishop put the case upon a bold issue, and declared in the 
 pulpit, ' That if any learned men of all our adversaries, or if all 
 the learned men that are alive, are able to bring any one suffi- 
 cient sentence out of any old Catholic doctor or father, or out 
 of any old general council, or out of the Holy Scriptures of 
 God, or any one example of the primitive Church, whereby it 
 may be plainly and clearly proved that for the first six hundred 
 years after Christ there was any private mass in the world ; or 
 that there was then any communion administered under one 
 kind ; or that the people had their common prayer in a language 
 which they did not understand ; or that the Bishop of Eome 
 was then called universal bishop or head of the universal 
 church ; or that the people were then taught to believe that 
 Christ's body is really, substantially, corporally, carnally, or 
 naturally in the sacrament,' etc. etc. 
 
 "If any one of his adversaries were able to make good but a 
 single proposition amongst all these, either by sufficient declara- 
 tions in Scripture, or by the testimony of the ancient fathers 
 and councils, he was ready to give up the contest and subscribe 
 himself a proselyte.'" 
 
 It is not unworthy of remark that in the Canon of 1571, 
 concerning preachers, it is ordered, " In primis vero videbunt, 
 nequid unquam doceant pro concione quod a populo religiose 
 
 * Collier, Eccles. Hist., vol. vi. Book vi. p. 303. 
 
Martin v. Mackonochie. 41 
 
 teneri et credi velint, nisi quod consentaneum sit doctrinse 
 Yeteris aut Novi Testamenti, quodque ex ilia ipsa doctrina 
 Catholici patres et veteres episcopi collegerint." — {Cardwell's 
 Synodalia, vol. i. p. 126.) ' 
 
 The Puritans did not dispute the lawfulness of set forms of 
 prayer, hut they were to be such as were iised in Geneva and 
 Scotland (Neal's History, p. 236; Jlfodoa;, p. 78). But Bishop 
 Burnet observes, speaking of the year 1548 ■?■ " It being resolved 
 to bring the whole worship of God under set forms ; they (our 
 Eeformers) set one general rule to themselves (which they 
 afterwards declared) of changing nothing for novelty's sake, or 
 merely because it had been formerly used. They resolved to 
 retain such things as the primitive Church had practised, cut- 
 ting off such abuses as the latter ages had grafted on them, and 
 to continue the use of such other things which, though they 
 had been brought in not so early, yet were of good use to beget 
 devotion, and were so much recommended to the people by the 
 practice of them that the laying these aside would, perhaps, 
 have alienated them from the other changes they made ; and, 
 therefore, they resolved to make no change without very good 
 and weighty reasons. In which they considered the practice of 
 'our Saviour, who did not only comply with the rites of Judaism 
 himself, but even the prayer he gave to his disciples was framed 
 according to their forms; and his two great institutions of 
 Baptism and the Eucharist did consist of rites that had been 
 used among the Jews ; and since he who was delivering a new 
 religion, and was authorised in the highest manner that ever 
 any was, did yet so far comply with received practices as from 
 them to take those which he sanctified for the use of his 
 Church, it seemed much fitter for those who had no such extra- 
 ordinary warrant to give them authority in what they did, 
 when they were reforming abuses, to let the world see they did 
 it not from the wanton desire of change or any affectation of 
 novelty, and with those resolutions they entered on their 
 work." 
 
 I now approach an authority to which almost universal 
 homage has been accorded, — the authority of Hooker.^ 
 
 " They," he says, " which measure religion by dislike of the 
 Church of Eome think every man so much the more sound by 
 how much he can make the corruption thereof to seem more 
 large; and, therefore, some there are, namely, the Arians in 
 reformed churches of Poland, which imagine the canker to have 
 eaten so far into the very bones and marrow of the Church of 
 
 1 Uistory of Reformatwn, vol. ii. p. 150 (ed. Oxford, 1829). 
 * Hooker, Ecdes. Pol., Book iv. chap. viii. 
 
42 Ecclesiastical Judgments. 
 
 Eome as if it had not so mucli as a sound belief, no not con- 
 cerning God himself, but that the very belief of the Trinity- 
 were a part of antichristian corruption ; and that the wonderful 
 providence of God did bring to pass that the bishop of the see 
 of Eome should be famous for his triple crown, — a sensible 
 mark whereby the world might know him to be that mystical 
 beast spoken of in the Revelation, to be that great and notorious 
 antichrist in no one respect so much as in this, that he main- 
 taineth the doctrine of the Trinity. Wisdom therefore and skill 
 is requisite to know what parts are sound in that Church and 
 what corrupted. 
 
 " Neither is it to all men apparent which complain of un- 
 sound parts, with what kind of unsoundness every such part is 
 possessed. They can say, that in doctrine, in discipline, in 
 prayers, in sacraments, the Church of Eome hath (as it hath 
 indeed) very foul and gross corruptions, the nature whereof, 
 notwithstanding because they have not for the most part exact 
 skUl and knowledge to discern, they think that ainiss many 
 times which is not ; and the salve of reformation they mightily 
 call for, but when and what the sores are which need it, as they 
 wot full little, so they think it not greatly material to search. 
 
 " That^ the Church of Eome doth hereby take occasion to 
 .blaspheme, and to say our religion is not able to stand of itself 
 unless it lean upon the staff of their ceremonies, is not a matter 
 of so great moment that it need to be objected, or doth deserve 
 to receive an answer. The name of blasphemy in this place is 
 like the shoe of Hercules on a child's foot. If the Church of 
 Eome do use any such kind of sUly exprobation, it is no such 
 ugly thing to the ear that we should think the honour and credit 
 of our religion to receive thereby any great wound. They which 
 hereof make so perilous a matter do seem to imagine that we 
 have erected of late a frame of some new religion, the furniture 
 whereof we should not have borrowed from our enemies, lest 
 they relieving us might afterwards laugh and gibe at our poverty; 
 whereas in truth the ceremonies which we bave taken from 
 such as were before us are not things that belong to this or that 
 sect, but they are the ancient rites and customs of the Church 
 of Christ, whereof ourselves being a part, we have the selfsame 
 interest in them which our fathers before us had, from whom 
 the same are descended unto us. 
 
 " No man which is not exceeding partial can weU. deny but 
 that there is most just cause whereof we should be offended 
 greatly at the Church of Eome. Notwithstanding at such 
 1 Hooker, Ecchs. Pol, Book iv. chap. ix. 
 
Martin v. Mackonochie. 43 
 
 times as we are to deliberate for ourselves, the freer our minds 
 are from all distempered affections the sounder and better is 
 our judgment. When we are in a fretting mood at the Church 
 of Eome, and with that angry disposition enter into any cogita- 
 tion of the orders and rites of our Church, taking particular 
 survey of them, we are sure to have always one eye fixed upon 
 the countenance of our enemies, and according to the blithe or 
 heavy aspect thereof our other eye showeth some other suitable 
 token either of dislike or approbation towards our own orders. 
 For the rule of our judgment in such case being only that of 
 Homer, ' This is the thing which our enemies would have,' what 
 they seem contented with, even for that very cause we reject ; 
 and there is nothing but it pleaseth us much the better if we 
 espy that it galleth them. 
 
 " Miserable were the state and condition of that Church the 
 weighty affairs whereof should be ordered by those deliberations 
 wherein such a humour as this were predominant. We have 
 most heartily to thank God, therefore, that they amongst us to 
 whom the first constiltations of causes of this kind fell were 
 men which aiming at another mark, namely, the glory of God 
 and the good of this His church, took that which . they judged 
 thereunto necessary, not rejecting any good or convenient thing 
 only because the Church of Eome might perhaps like it." 
 
 The Puritans at the Hampton Court Conference in the reign 
 of James the Pirst vehemently objected to the sign of the Cross 
 in the sacrament of Baptism, and the reply to their objections 
 incorporated in the thirtieth canon (of 1603) deserves the care- 
 ful study of those who would thoroughly understand the mind of 
 the English Church upon the subject now under consideration ^ 
 
 " And this use of the sign of the Cross in Baptism was held in 
 the primitive Church, as weU by the Greeks as the Latins, with 
 one consent and great applause. At what time, if any had 
 opposed themselves against it, they would certainly have been 
 censured as enemies of the name of the Cross, and consequently 
 of Christ's merits, the sign whereof they could no better endure. 
 This continual and general use of the sign of the Cross is evi- 
 dent by many testimonies of the ancient fathers." 
 
 " It must be confessed that in process of time the sign of the 
 Cross was greatly abused in the Church of Eome, especially 
 after that corruption of popery had once possessed it. But the 
 abuse of a thing doth not take away the lawful use of it. Nay, 
 so far was it from the purpose of the Church of England to for- 
 sake and reject the Churches of Italy, France, Spain, Gennany, 
 or any such Uke Churches in all things which they held and 
 practised, that, as the apology of the Church of England con- 
 1 Canon 30 (The lawful use of tbe Cross in Baptism explained). 
 
44 Ecclesiastical Judgments. 
 
 fesseth, it doth with reverence retain those ceremonies which 
 doth neither endamage the Church of God, nor offend the 
 minds of sober men, and only departed from them in those par- 
 ticular points wherein they were fallen both from themselves 
 in their ancient integrity, and from the apostolical Churches 
 which were their first founders. ... So that for the very 
 remembrance of the Cross, which is very precious to aU of 
 them that rightly believe in Jesus Christ, and in the other 
 respects mentioned, the Church of England hath retained still 
 the sign of it in Baptism, following therein the primitive and 
 apostolical Churches." 
 
 Dr. Jackson, who was President of Corpus Christi College 
 and Dean of Peterborough, one of our most learned divines, 
 writing a.d. 1629, in his treatise of the Holy Catholic Faith 
 and Church, says,^ "That the title of Catholic is proper and 
 essential unto the faith professed by the present visible Church 
 of England, but cannot truly be attributed to the faith or creed 
 of the modern visible Romish Church. 
 
 " Whether the name Catholic were first bestowed upon the 
 Church, or upon that faith which is the life and soul of the 
 Holy Apostolic Church, shall be no part of our inquiry. It 
 sufficeth that the name Catholic itself is univocal in respect 
 both of Church and faith. True faith is therefore Catholic 
 faith because it is the only door or way unto salvation, alike 
 common unto all, without national or topical respect. "Whoso- 
 ever of any nation have been saved have been saved by this 
 one and the same faith, and whosoever will be saved (as 
 Athanasius speaks) must hold this Catholic faith, and he must 
 hold it pure and undefiled. The main question then is, who 
 they be that hold this Catholic faith, and whether they hold it 
 undefUed or no. Were Vincentius' rules as artificial as they are 
 orthodoxal and honest, the issue betwixt us and the Eomanist 
 would be very easy and triable. But let us take them as they 
 are: 'Id CathoHcum est quod ab omnibus ubique et semper, 
 etc' ' That is Catholic which is held by all, in all places, and 
 at all times.' 
 
 " The three special notes of the Catholic faith or church by 
 him reqiured are universality, antiquity, and consent. Whether 
 these three members be different or subordinate, and ofttimes 
 coincident, I leave it to be scanned by logicians. According to 
 the author's limitation, all three marks agree to us, not to the 
 Eomanist. 
 
 " The fallacy by which the Eomanists deceive poor simple 
 people is in making them believe that our religion and their 
 
 1 Works, vol. xii. chap. xxi. p. 161, ed. 1845. 
 
Martin v. Mackonochie. 45 
 
 religion, our faith and their faith, are duo prima diversa, or so 
 totally distinct that part of the one could not he included in the 
 other. But for the universality of our faith we have every 
 member of the Eomish Church a suffragant or witness for us. 
 First, nothing is held as a point of faith in our Church but the 
 present Eomish Church doth hold the same, and confess the 
 same to have been held by all orthodoxal antiquity. . So that for 
 the fmyn of faith established in our Church, we have the 
 consent of the primitive Church, of the four first general 
 councils, of all succeeding ages unto this present day, the 
 consent likewise of the present Eomish Church, and of our- 
 selves. Now, as France is a great deal bigger than Normandy, 
 if we compare them as distinct and opposite, and yet France 
 and Normandy is bigger than France without Normandy, so 
 likewise though the present visible Eomish Church be much 
 greater than the Church of England, yet seeing the Eomish 
 Church, how great soever, doth hold all the points of faith 
 which our Church doth for catholic and orthodoxal, our consent 
 and their consent, our confession and their confession, is more 
 universal than their consent without ours. But if their consent 
 unto the points of faith believed by us prove our faith to be 
 universal, and our Church by consequence to be catholin, why 
 should not our consent unto the points of faith believed by 
 them prove their faith to be universal, or their Church to be 
 catholic'} Because it is not enough to hold all points of 
 Catholic faith, unless the same points be kept holy and un- 
 defiled. The Eomish Church, we grant, doth hold all points of 
 Catholic faith, and so far as she holds these points we dissent 
 not from her; yet dissent from her we do in that she hath 
 defiled and polluted the Catholic faith with new and poisonous 
 doctrines, for which she neither hath the consent of antiquity, 
 nor of reformed churches." 
 
 And again, answering that silly taunt of the Eomanists, 
 "Where was your Church before the Eeformation?" he observes: 
 "The question is muchwhat the same as if they should" ask 
 us, where was King Henry the Seventh's kingdom, where were his 
 subjects, where was your commonweal whilst Eichard the Third 
 did call parliaments, and sway the sceptre of this kingdom 1 
 The kingdom of Henry the Seventh and of his successors, or the 
 English commonweal, was in the same place then as now it is. 
 The deposition of the tyrant, the dissolution of the tyranny, 
 and the reducing of English subjects to their true allegiance, 
 did work no essential alteration in the commonweal of the 
 kingdom, but only a reformation of the government, and reduce- 
 ment of it to the fundamental laws of this land. 
 
 "No more did the rejection of the Eomish Church's usurped 
 
46 Ecclesiastical yudgments, 
 
 authority in matters spiritual induce any substantial alteration 
 in the English Church, but a reformation or reduction of it unto 
 the fundamental constitution of the primitive Church."^ 
 
 In the warrant issued by Charles ii. for the conference at the 
 Savoy, which preceded the adoption of our present Prayer- 
 Book {Cardwell's Conferences, p. 300), a commission of certain 
 persons is appointed to advise upon and review the said Book 
 of Common Prayer, comparing the same with the most ancient 
 liturgies which have been used in the Church in the primitive 
 and purest times. 
 
 So careful were the compilers of this great treasure of the 
 Church that it should speak the CathoKc language, to which 
 Christian ears and hearts had been accustomed, while the 
 apostolical spirits and doctrine stUl guided the undivided 
 Church. 
 
 Hear on this subject the erudite and eloquent Donne : " If 
 they (the Eoman Catholics) say, we are perplexed with differ- 
 ences of opinions amongst ourselves, let this satisfy them, that 
 we do agree all in all fundamental things ; and that in things 
 much nearer the foundation than those in which our differences 
 lie they differ amongst themselves, with more acrimony and 
 bitterness than we do. If they think to perplex us with the 
 fathers, we are ready to join that issue with them ; where the 
 fathers speak unanimously, dogmatically, in matters of faith, 
 we are content to be tried by the fathers. If they think to 
 perplex us with councils, we wiU go as far as they in the old 
 ones ; and as far as they for meeting in new councils, if they 
 may be fully, that is, royally, imperially called, and equally 
 proceeded in, and the resolutions grow and gathered there upon 
 debatements upon the place, and not brought thither upon com- 
 mandment from Eome." — (Bonne's Works, vol. iii. p. 11.) 
 
 Bishop Cosin, an authority of special significance and weight, 
 because he largely assisted in the compilation of our Prayer- 
 Book,^ says : " In truth we have continued the old religion ; 
 and the ceremonies which we have taken from them that were 
 before us are not things which belong to this or that sect, but 
 they are the ancient rites and customs of the Church of Christ, 
 whereof ourselves being a part, we have the selfsame interest 
 in them which our fathers before us had, from whom the same 
 descended to us. To abrogate those things without constraint 
 of apparent harm thence arising had been to alter unjustly the 
 universal practice of the people of God and those general 
 decrees of the fathers, which (in St. Augustin's language) is 
 
 1 Works, vol. xii. chap. xxi. p. 131. 
 
 2 Notes on the Prefacea to the Book of Common Prayer. Worha vol v. 
 
 pp. 13-15, 
 
Martin v, Mackonochie. 47 
 
 madness and insolence to do, both in respect of the uni- 
 versal authority of the Church, which no particular Church 
 has power to control, and also in regard of reasons before men- 
 tioned." 
 
 Archbishop Bramhall, who wrote in 1677 his "Just Vin- 
 dication of the Church of England," etc., says : " But it is not 
 enough to charge the court of Eome unless we can discharge 
 ourselves, and acquit our own Church, of the guilt of schism 
 which they seek to cast upon us. First, they object that we 
 have separated ourselves systematically from the communion 
 of the Catholic Church. God forbid ! Then we will acknow- 
 ledge without any more to do, that we have separated ourselves 
 from Christ, and all His holy ordinances, and from the benefit 
 of His passion, and all hope of salvation. 
 
 " But the truth is, we have no otherwise separated ourselves 
 from the communion of the Catholic Church than all the 
 primitive orthodox fathers, and doctors, and churches did long 
 before us, that is, in the opinion of the Donatists, as we do 
 now in the opinion of the Eomanists ; because the Eomanists 
 limit the Catholic Church now to Eome in Italy, and those 
 Churches that are subordinate to it, as the Donatists did then 
 to Cartenna in Africa, and those Churches that adhered to it, 
 We are so far from separating ourselves from the communion 
 of the Catholic Church that we make the communion of the 
 Christian Church to be thrice more Catholic than the Eoman- 
 ists themselves do make it, and maintain communion with 
 thrice so many Christians as they do. But how much our 
 Church should make itself, as the case stands, more Eoman 
 than it is, by so much it should thereby become less Catholic 
 than it is." — ( Works, folio, Dublin, chap, ix.) 
 
 " As for my religion," said the holy Ken, with almost his 
 latest breath, " I die in the holy catholic and apostolic faith, 
 professed by the whole Church befere the disunion of east 
 and west ; more particidarly I die in the communion of the 
 Church of England, as it stands distinguished from aU papal 
 and puritan innovations, and as it adheres to the doctrine of 
 the Cross." 
 
 Bishop Beveridge compiled, with infinite labour and accur- 
 acy, a Godeoi Ganonum Ecelesim Frimitivce vindicatus ac illvs- 
 trat'm : — in his preface to which are these words (s. 6), " For 
 when this our English Church, through long communion with 
 the Eoman Church, had contracted like stains with her, from 
 which it was necessary that it should be cleansed, they who 
 took that excellent and very necessary work in hand, fearing 
 that they, like others, might rush from one extreme to the 
 other, removed indeed those things, as weU doctrines as cere- 
 
48 Ecclesiastical Judgmeiits. 
 
 monies, which the Eoman Church had newly and insensibly 
 superinduced, and, as was fit, abrogated them uttedy. Yet 
 notwithstanding whatsoever things had been at all times be- 
 lieved and observed by all Churches in all places, those things 
 they most religiously took care not so to abolish with them. 
 For they well knew that all particular Churches are to be 
 formed on the model of the Universal Church, if indeed 
 according to that general and received rule in ethics, ' every 
 part which agreeth not with its whole is therein base.' Hence, 
 therefore, these first reformers of this particular Church, 
 directed the whole liue of that reformation which they under- 
 took, according to the rule of the whole or Universal Church, 
 casting away those things only which had been either unheard 
 of, or rejected by the Universal Church, but most religiously 
 retainiug those which they saw, on the other side, corroborated 
 by the consent of the Universal Church. "Whence it hath been 
 brought to pass, that although we have not communion with 
 the Eoman, nor with certain other particular Churches, as at 
 this day constituted, yet have we abiding communion with the 
 Universal and Catholic Church, of which evidently ours, as by 
 the aid of God first constituted, and by his pity still preserved, 
 is the perfect image and representation." ^ 
 
 Observe how Barrow speaks in his Treatise on the Pope's 
 Supremacy of the Council of Trent. "This new creed," he 
 says, " of Pius iv. containeth these novelties and heterodoxies: 
 (1) Nine sacraments ; (2) Trent doctrines of justification and 
 original sin ; (3) Propitiatory sacrifice of the mass ; (4) Tran- 
 substantiation ; (5) Communicating under one kind ; (6) Pur- 
 gatory ; (7) Invocation of Saints ; (8) Veneration of rehques ; 
 (9) Worship of images; (10) The Eoman Church to be the 
 mother and roistress of all Churches ; (11) Swearing obedience 
 to the Pope; (12) receiving the decrees of all synods and of 
 Trent." 
 
 Bishop Sanderson^ believed that " *all men would be found 
 much mistaken who account all Popery that is taught or praC' 
 tised in the Church of Eome. Our godly forefathers, to 
 whom (under God) we owe the purity of our religion, and 
 some of whom laid down their lives for the defence of the 
 same, were sure of another mind, if we may, from what they 
 did, judge what they thought. They had no purpose (nor 
 had they any warrant) to set up a new religion, but to reform 
 the old, by purging it from those innovations, which on 
 tract of time (some sooner, some later) had mingled with it, 
 and corrupted it both in the doctrine and worship. According 
 
 ^ BeoeMgiB Worhs (Oxford, 1848), vol. xi. p. xxiiL 
 
 2 Died in 1663. ^ Preface to fourteen sermons. 
 
Martin v. Mackonochie, 49 
 
 to this purpose they produced, without constraint or pre- 
 cipitancy, freely and advisedly, as in peaceable times, and 
 brought their intentions to a happy end, as by the results 
 thereof contained in the articles and liturgy of our Church, 
 and the prefaces thereunto, doth fully appear. From hence 
 chiefly, as I conceive, we are to take our best scantling, whereby 
 to judge what is, and what is not, to be esteemed Popery.' 
 All those doctrines then held by the modern Church of Eome, 
 which are either contrary to the written Word of God, or but 
 superadded thereunto as necessary points of faith to be of all 
 Christians believed under pain of damnation ; and all those 
 superstitions used in the worship of God which are either 
 unlawfid as being contrary the Word ; or being not contrary 
 and therefore arbitrary and indifferent, are made essentials, 
 and imposed as necessary parts of worship: these are, as I 
 take it, the things whereunto the name of Popery doth 
 properly and peculiarly belong. But as for the ceremonies 
 used in the Church of Eome which the Church of England 
 at the Eeformation thought fit to retain, not as essential or 
 necessary parts of God's service, but only as accidental and 
 mutable circumstances attending, the same, for order, comeli- 
 ness, and edification's sake; how these should deserve the 
 name of popish, I so little understand, that I profess I do not 
 yet see any reason why, if the Church had then thought fit to 
 have retained some other of those which were then laid aside, 
 she might not lawfully have so done ; or why the things so 
 retained should have been accounted popish. The plain truth 
 is this : the Church of England meant . to make use of her 
 liberty and the lawful power she had (as all the Churches of 
 Christ have, or ought to have) of ordering ecclesiastical affairs 
 here ; yet to do it with so much prudence and moderation that 
 the world might see by what was laid aside, that she acknow- 
 ledged no subjection to the See of Eome ; and by what was 
 retained, that she did not secede from the Church of Eome out 
 of any spirit of contradiction, but as necessitated thereunto 
 for the maintenance of her just liberty. The number of cere- 
 monies was also then very great, and thereby burdensome, and 
 so the number thought fit to be lessened. But for the choice 
 which should be kept and which not, that was whoUy in her 
 power and at her discretion." 
 
 Bishop Smalridge, the accomplished friend of Addison, wrote 
 a sermon on the authority of the governors of our Church, to 
 prescribe rites and ceremonies (vol. i. p. 145), in the course of 
 which he said : — 
 
 " But because those who allow some rites to be lawful may 
 entertain some doubts concerning the use of ours, as apprehend- 
 
 D 
 
5'0 Ecclesiastical Judgments. 
 
 ing them to have some particular faults which do not belong 
 to all ceremonies in general, I shall proceed to clear those 
 which we of this Church are required to observe, from such 
 objections as are brought to prove them unlawful and unwar- 
 rantable. Those who scruple the use of them allege it as one 
 main ground of their scruples, that those ceremonies which are 
 used in our Church are also used in the Church of Eome, and 
 they are therefore cautious of obserTfing them, lest they should 
 thereby countenance the errors and corruptions of that Church. 
 Now this would be a good argument against the usage of such 
 rites, if it could be proved that those who err in some things 
 do certainly err in everything; or, that we ought to show our 
 abhorrence of the corruptions of a Church by condemning and 
 0,bolishing even those usages which have nothing in them but 
 what is innocent and incorrupt. But we have not declared 
 war against those of that Church as they are Christians, but as 
 they are perverters of the Gospel of Christ ; we do not profess 
 to differ from them in everything, but only in such things 
 whereiu we apprehend them to have degenerated from the pure 
 and undefiled Church of Christ. 
 
 " We think that we should not be able to vindicate ourselves 
 from the charge of schism, which they bring against us, if what- 
 ever doctrine they held, whatever rite they practised, that we 
 should, for no other reason but because they held and practised 
 it, forthwith condemn and reject. 
 
 " The ablest champions for the cause of the Eeformation have 
 always thought it the best answer against the charge of schism, 
 to allege and prove that we have no further departed from them 
 than they departed from the pure and primitive Church of Christ. 
 What is contrary to the purity of the Gospel, that we reject ; 
 not because popish, but because repugnant to the laws and 
 doctrines of Christ : what is noways contradictory to the sim-_ 
 plicity of the Gospel, what may be subservient to piety, that' 
 we retain ; not because practised by the Church of Eome, but 
 because agreeable to the rules of the Gospel. If there be any- 
 thing in our ceremonies that is sinful, they ought presently to 
 be abolished, though there was nothing of the same kind prac- 
 tised by those of the Eoman communion.^ What is decent and 
 laudable in them cannot lose its worth and value, because others 
 have them in common with us. If it be laid down as a good 
 rule of reformation that we must depart aS far as possible from 
 Eome, we must renounce the articles of our creed, because they 
 of that Church profess to believe them ; we must declare our- 
 
 1 About this time Archbishop Tenison wrote a remarkable " Discourse of 
 Idolatry" (chap. xii. p. 279), and upon this principle vindicated the use of 
 images and pictures in the Church of England. 
 
Martin v.Mackonochie. 5'i 
 
 selves Socinians that we may be thought staunch Protestants ; 
 and we must renounce the doctrine' of the Trinity, because it is 
 held by those who do also hold that of transubstantiation. In 
 the Eomish religion there are some things evil, some things 
 good, some things wholly indifferent. Whatever is sinful in 
 that communion we are bound to reject, and have, we think, 
 accordingly rejected; what is good we ought to retain, and 
 therefore do retain ; what was indifferent, it was at the discre- 
 tion of our reformers either to keep or change, as they thought 
 should be more expedient. Private persons may, according to 
 the variety of their judgments, think some things might have 
 been kept which were left off, or some things might have been 
 dropped which are stiU kept ; but unless they can prove those 
 that have been abolished to be necessary, or those that are re- 
 served to be unlawful, they are bound quietly to submit to the 
 abolition of the former, and to the usage of the latter." 
 
 Bishop Bull, writing in 1705 on The, Gorrwptions of the Church 
 of Rome, in Answer to the Bishop of Meawo's Queries^ thus main- 
 tains the true position of our Church : — 
 
 " I proceed to the bishop's questions : He asks me what I 
 mean by the Catholic Church ? I answer, "What I mean by the 
 Catholic Church, in the book, which he all along refers to, I 
 have already shown, and the very title of the book sufficiently 
 declares. If he asks me what I mean by the Catholic Church, 
 speaking of it as now it is, I answer, By the Catholic Church, 
 I mean the Church Universal, being a collection of aU the 
 Churches throughout the world, who retain the faith (aira^) 
 once delivered to the Saints (Jude 3) ; that is, who hold and 
 possess in the substance of it that faith and religion which was 
 delivered by the Apostles of Christ to the first original Churches, 
 according to Tertullian's rule before mentioned. Which faith 
 and religion is contained in the Holy Scriptures, especially of 
 the New Testament, and the main fundamentals of it comprised 
 in the canon or rule of faith, universally received throughout 
 the primitive Churches, and the possession thereof acknow- 
 ledged to be a sufficient tessera or badge of g, Catholic Chris- 
 tian. All the Churches at this day which hold and profess this 
 faith and religion, however distant in place, or distinguished by 
 different rites and ceremonies, yea, or divided in some extra- 
 fundamental points of doctrine, yet agreeing in the essentials 
 of the Christian religion, make up together one Christian 
 Catholic Church under the Lord Christ, the supreme head 
 thereof. The Catholic Church under this notion is not a con- 
 fused heap of societies separated one from another." — These are 
 important words. — " But it seems no other union of the Church 
 1 Works, ed. Oxford, 1827, vol. ii. p. 242. 
 
52 Ecclesiastical yudgments. 
 
 will satisfy the bishop, but an union of all the Churches of 
 Christ throughout the world, under one visible head, having a 
 jurisdiction over them all, and that head the Bishop of Kome 
 for .the time being. But such an union as this was never 
 dreamed of amongst Christians for at least the first six hundred 
 years, as shall be shown in its due place." 
 
 In addition to this mass of evidence derived from the writings 
 of English divines, I may cite the following testimonies to the 
 same effect from the worka of three distinguished foreigners, 
 who watched with deep interest the form which the Keforma- 
 tion of the Church took in England: Isaac Casaubon, Hugo 
 Grotius, and Saravia : — 
 
 Casaubon (ad Salmas. Epist. 837, p. 489, A.D. 1612): "Quod 
 si me conjectura non fallit, totius Eeformationis pars integer- 
 rima est in Anglia, ubi cum studio veritatis viget studium anti- 
 quitatis." 
 
 Casaubon (Epist. ad Cardinal. Perron, p. 494) : " Parata est 
 Ecclesia Anglicana fidei suse reddere rationem, et rebus ipsis 
 evincere, auctoribus Eeformationis hie institutse non fuisse pro- 
 positum novam aliquam ecclesiam condere, ut imperiti et male- 
 voli calumniantur ; sed quae erant collapsa, ad formam revocare 
 quam fieri posset optimam ; optimam autem judicarunt 
 nascenti Ecclesise ab Apostolis traditam, et proximis seculis 
 usurpatam." 
 
 Hugo Grotius (Epist. ad Boetsaeler, Ep. 62, p. 21, ed. 1637): 
 " Certum est mihi Xetrovpylav Anglicanam, item morem impo- 
 nendi manus adolescentibus in memoriam Baptism!, auctorita- 
 tem Episcoporum, et Presbyteria ex soils Pastoribiis composita 
 multaque alia ejusmodi satis congruere institutis vetustioris 
 Ecclesiae, a quibus in Gallia et Belgio recessum negare non pos^ 
 sumus." 
 
 (Epist. ad Corvinum, Epist. p. 434) : " Qui illam optimam 
 antiquitatem sequuntur ducem, lis non eveniet ut multum sibi 
 ipsis sint discolores. In Anglia vides quam bene processerit 
 dogmatum noxiorum repurgatio ; hac maxime de causa, quod 
 que id sanctissimum negotium procurandum suscepere, nihil 
 admiserint novi,* nihil sui, sed ad meliora secula intentam habu- 
 ere oculorum aciem." 
 
 Hadrian Saravia, the friend of Hooker : " Among others that 
 have reformed their churches, I have often admired the wisdom 
 of those who restored the true worship of God to the Church of 
 England, — ^who so tempered themselves, that they cannot be 
 reproved for having departed from the ancient and primitive 
 customs of the Church of God ; and that moderation they have 
 used, that by their example they have invited others to reform, 
 and deterred none." — {Wordsworth, Theophilus Anglicanus, p. 
 171.) 
 
Martin v. Mackonochie. 53 
 
 In 1851 the ArchMshops of Canterbury and York and twenty- 
 bishops published a statement in which they set forth " the un- 
 doubted identity of the Church before and after the Eeforma- 
 tion ;" and that at the Eeformation the English Church rejected 
 certain corruptions and established " one uniform ritual," but 
 " without in any degree severing her connection with the ancient 
 Catholic Church." — (Phillimore's International Law, vol. ii. 
 ed. 1, p. 422 (ed. 2, p. 476), and the Guardian, April 2, 1851.) 
 
 In 1867, eight primates and sixty-eight bishops assembled 
 from all parts of the globe, under the presidency of the Metro- 
 politan of Canterbury. 
 
 The resolutions of this conference were prefaced by the fol- 
 lowing introduction : — 
 
 " We, Bishops of Christ's Holy Catholic Church, in visible 
 communion with the United Church of England and Ireland, 
 professing the Faith delivered to us in Holy Scripture, main- 
 tained by the Primitive Church, and by the Fathers of the 
 English Eeformation, now assembled by the good providence of 
 God, at the Archiepiscopal Palace of Lambeth, under the presi- 
 dency of the Primate of all England, desire, first, to give hearty 
 thanks to Almighty God for having thus brought us together 
 for common counsels and united worship ; secondly, we desire 
 to express the deep sorrow with which we view the divided 
 condition of the flock of Christ throughout the world, ardently 
 longing for the fulfilment of the prayer of our Lord, ' That all 
 may be one, as Thou, Father, art in me, and I in Thee, that they 
 also may be one in Us, that the world may believe that Thou 
 hast sent me ;' and, lastly, we do here solemnly record our con- 
 viction that unity will be most effectually promoted by main- 
 taining tlie Faith in its 'purity and integrity, as taught in the 
 Holy Scriptures, held by the Primitive Church, summed up in 
 the Creeds, and affirmed by the undisputed General Councils." 
 
 But after all no argument for the continuity of the Church of 
 England can be stronger than that which is derived from the 
 structure, order, and contents of the Prayer-Book. It contains 
 the Breviarium, in which towards the end of the eleventh century 
 had been inserted all the ofi&ces of the canonical hours, called 
 also Portiforium and in England Portuary, the Missale or the 
 service for the Holy Communion, and the Ordinale, which is 
 referred to under the name of the " Pie " in the preface. There 
 were various " Uses " or Prayer-Books in England, known as 
 the Salisbury, the York, the Bangor, and the Hereford Uses, 
 and others. The most celebrated appear to have been the 
 Portiforium or Breviary of Sarum, which contained the Daily 
 Services, — the Sarum Missal, which contained the Holy Com- 
 munion Service, — and the Sarum Manual, a book of occasional 
 
54 Ecclesiastical judgments. 
 
 offices. These books of devotion seem to have been compiled 
 by Osmund, Bishop of Salisbury, about the time of the Con- 
 quest ; and in 1531 a reformed edition of the Sarum Portiforium 
 was reprinted, and shortly afterwards a reformed Missal was 
 published. There were also Primers, which contained in a 
 vulgar tongue large portions of the Service in use amongst the 
 people. In 1536 the Eoman Breviary was reformed, and pub- 
 lished by a Spanish Bishop, Cardinal Qtiignonez ; and in 1544 
 Hermann, Archbishop of Cologne, whom the Pope during the 
 early sittings of the Council of Trent deprived,^ published a 
 reformed ritual. 
 
 In 1542 Henry Tin. directed Convocation to consider the 
 revision of the books of devotion then in use in this country. 
 It is probable that the fruit of their labours, as well as the other 
 works to which reference has been made, were laid before the 
 royal visitors appointed by Edward vi. in January 1546-7, and 
 the Committee of Convocation, to whom the preparation of the 
 Prayer-Book of 1549 was intrusted. 
 
 The whole Prayer-Book, in fact, with very inconsiderable ex- 
 ceptions, consists of a translation of the ancient liturgies, and 
 especially of the liturgy used by the Western Church. And 
 we learn from the preface to the Prayer-Book that the object 
 was to restore that " godly and decent order of the ancient 
 fathers " which had been broken, and to introduce an order of 
 prayer and reading of Holy Scripture " agreeable to their mind 
 and purpose ;" and that all suggested alterations which " secretly 
 struck at some laudable practice of the whole Catholic Church 
 of Christ " were rejected ; and that the calendar contained a 
 " table of feasts, vigils, fasts, and days of abstinence," which were 
 in accordance with primitive and Catholic use; while the 
 ornaments of the Church and the vestments of the ministers 
 were such as to present to the people some of the most promi- 
 nent features of the ancient service, and were for this reason the 
 ground of unceasing attack from the Puritans, and the disci- 
 ples of the Genevan school. And it is the observation of Mr, 
 Hallam, while speaking of the Eoman Catholics, " that it was 
 always held out by our Church, when the object was conciliationi 
 that the liturgy was essentially the same with the mass book." 
 — {Constitutional History, ed. 1850, vol. i. p. 86.) 
 
 These premises, which I have stated at some length, lead me 
 to the conclusion that no sound argument against the lawfulness 
 . of the matters objected to in these articles can be deduced from 
 the mere fact of their identity -with the ceremonies in use be- 
 fore the Eeformation. 
 
 1 Istoria del ConcU. Trident.— Saq)i, lib. ii. § 59. 
 
Martin v. Mackonochie. '55 
 
 Argument from Disuse. 
 
 I will next consider the argument founded oil the alleged de, 
 facto disuse, since the Eeformation, of the ceremonies or orna- 
 ments complained of in these articles. 
 
 It assumes this kind of shape : 
 
 " If these things were legal they would have been in use ; 
 their non-usage is almost fatal to their claim of legality ; the 
 presumption of law is strongly against them ; and in order to 
 refute that presumption a continuous usage must be established 
 by those who maintain their lawfulness." 
 
 This argument seems to have been in the mind of the Judge 
 of the Consistory of London in Westerton v. Ziddell, though at 
 the same time he strenuously asserted that no provision of 
 statute or lawful canon could be abrogated by non-user. The 
 doctrine of desuetude he repudiated as unknown to the law of 
 England. 
 
 This argument from the long disuse of ornaments and ob- 
 servances recently revived cannot be altogether passed over. 
 
 The fact of disuse raises a practical prejudice, if not a legal 
 obstacle, to all such revivals. The consideration of the causes 
 which have induced it has a bearing upon the discussion of the 
 questions which I am to adjudicate. 
 
 The argument appears to me to admit of two distinct answers. 
 
 In the first place, it proves too much ; for perhaps there is no 
 historical fact more certain than this, namely, that the law 
 derived from the rubrics and canons has never, at any period 
 since the Eeformation, been universally and duly obeyeA The 
 proposition is startling, but I think unquestionably true. The 
 instances of disobedience are striking, if not many ; take, as 
 one example, the vestments of the clergy. 
 
 The rubric of Edward vi. provides : — 
 
 "And here it is to be noted, that such ornaments of the 
 Church, and of the ministers thereof, at all times of their mini- 
 stration, shall be retained, and be in use, as were in this Church 
 of England, by the authority of Parliament, in the second year 
 of the reign of King Edward the Sixth." 
 
 And the Judicial Committee of the Privy Council, in Wes- 
 terton V. Idddell, most deliberately and emphatically decided 
 that— 
 
 " The rubric to the Prayer-Book of January 1st, 1604, adopts 
 the language of the rubric of Elizabeth ; the rubric to the 
 present Prayer-Book adopts the language of the Statute of 
 Elizabeth ; but they all obviously mean the same thing, that 
 the same 'dresses and the same utensils or articles which were 
 
56 Ecclesiastical yudgments. 
 
 used under the first Prayer- Book of Edward VI. may still te 
 used." Their Lordships say, " No difficulty wUl be found in 
 discovering amongst the articles of which the use is there en- 
 joined, ornaments of the Church, as well as ornaments of the 
 ministers. Besides the vestments differing in the different 
 services, the rubric provides for the use of an English Bible," 
 etc. — (Moore's Keport, pp. 156, 9.) 
 
 The dresses of which the use is prescribed in the first Prayer- 
 Book of Edward Vl. are thus ordered : — 
 
 " Upon the day, and at the time appointed for the ministra- 
 tion of the Holy Communion, the priest that shall execute the 
 holy ministry shall put upon him the vestures appointed for that 
 ministration ; that is to say, a white albe plain, with a vest- 
 ment or cope." 
 
 " And whensoever the bishop shall celebrate the Holy Com- 
 munion in the Church, or execute any other public ministra- 
 tion, he shall have upon him, beside his rochette, a surplice or 
 albe, and a cope or vestment, and also his pastoral staff in his 
 hand, or else borne or holden by his chaplain." 
 
 The canons of 1603 could not alter or affect the positive pro- 
 visions of a Statute ; but, on the supposition that they alone 
 were to be consulted, the use of the surplice in parish churches . 
 is distinctly enjoined by them (canon 58). Nevertheless I well 
 recollect that when Bishop Blomfield published his celebrated 
 charge in 1842, the expression therein of his opinion, that the 
 preacher ought to wear the surplice rather than the gown in 
 the morning service, raised a storm of religious controversy and 
 excited feeling upon which a sober-minded man now looks 
 back with surprise and regret. And I cannot but agree with 
 his biographer, that "it will hardly be denied, that the great 
 principle for which Bishop Blomfield contended, that in Divine 
 service all things should be done decently, but in (rrder, is now 
 acted upon in the Church of England to an extent, which, 
 twenty years ago, would hardly have been expected by men of 
 calm judgment, and which, thirty ^ears ago, would by most 
 have been pronounced impossible."^ 
 
 The same canons enjoined the use of copes in cathedrals 
 (canon 24), a special prayer called the bidding prayer to.be 
 used by all ministers before every sermon (canon 65), a passing 
 bell to be tolled for every dying parishioner (canon 67) ; that 
 "upon every Sunday or Holyday" the minister shall "under 
 pain of suspension and excommunication, for half an hour or 
 more, examine and instruct the youth and ignorant persons in 
 his parish in the Ten Commandments, the Articles of the 
 Belief, and in the Lord's Prayer ; and shall diligently hear, 
 
 1 Memoir of Bishop Blomfield, vol. ii. p. 64. 
 
Mariin-v. Mackonochie. 57 
 
 instruct, arid teach them the Catechism set forth in the Bbok 
 of Common Prayer" (canon 59); that a particular dress, 
 minutely specified, shall be worn by ecclesiastical persons on a 
 journey (canon 74) ; that the Litany shall be said or sung 
 •wherever appointed by the Prayer-Book, more particularly 
 upon Wednesdays and Fridays, though they be not holydays 
 (canou 15). 
 
 The rubric directs that the holy elements shall be placed 
 upon the Table of the Lord at a particular part of the service; 
 but tUl lately, and before the decision of the Privy Council in 
 favour of the use of the credence table, this rubric was generally 
 disobeyed. The rubric is express in its directions, that " unless 
 the minister be otherwise reasonably hindered," he shall per- 
 form daily service ; that " the feasts shall be observed," in 
 which category are included aU Sundays, and certain feasts 
 and saints' days ; and there is also a careful table of the vigils, 
 fasts, and days of abstinence to be observed throughout the 
 year ; that " so many as intend to be partakers of the Holy 
 Communion shall signify their names to the curate at least 
 some time the day before." Private baptism, which was only 
 to be allowed for " great cause or necessity," had sp generally 
 superseded public baptism, that the late Bishop of London was 
 compelled expressly to forbid his clergy to baptise privately ex- 
 cept in cases of necessity; and, indeed, of all these precise orders, 
 of which the catalogue is not exhausted, having for their 
 object the spiritual edification of members of the Church, how 
 very few, till lately, within our own memory, have been obeyed, 
 and how much more common has been the breach than the 
 observance of them. 
 
 It is true that Mr. Mackonochie is not charged with any 
 disobedience to the law in these respects ; his offence is that 
 of unauthorised addition, of doing too much and not too little 
 in his ministrations in the Church ; but I refer to this notorious 
 fact of general disobedience to the law in these respects, because 
 a revived, obedience to it, not unnaturally, excites the surprise 
 and sometimes the anger of person,s who have been habituated 
 to a more relaxed and less careful system. A compliance with 
 the law has the effect of novelty upon them, and they are apt 
 to consider as illegal not the desuetude of a prescribed usage, 
 but the restoration of it. 
 
 This argument of disuse was most strongly urged in Wester- 
 ton V. Liddell as conclusive against the Cross and the Credence 
 Table ; and it was truly said that the instances in which any 
 trace of them could be substantiated by evidence, since the 
 Eeformation, were very few and inconsiderable, — not half-a- 
 dozen I believe in number, and it was contended that such 
 
58 Ecclesiastical Judgments. 
 
 disuse amouated to a practical rejection of them by the Cliurcli,' 
 And this argument prevailed with the Judges of the Consistory 
 of London and of the Arches Court, who accordingly pronounced 
 these things to be unlawful. But it did not avail before the 
 Judicial Committee of the Privy Council, who, looking to their 
 innocent and primitive use, reversed the sentence of these Courts 
 and pronounced them to be lawful. 
 
 The mere fact, therefore, that the practice complained of is 
 novel, furnishes by no means an irrefragable argument that it 
 is unlawful, and it can afford, in truth, but little assistance in 
 solving the question whether the practices charged against Mr. 
 Mackonochie are or are not contrary to the law. 
 
 In the second place, the alleged disuse or desuetude must be 
 measured by a reference to the history of the institution during 
 the period in which it has prevailed. The questions, — has that 
 institution been during this period in its normal condition ? has 
 it been in a state of unconstrained freedom? of undisturbed 
 liberty of action ? or has it during this period been from time 
 to time turned aside from its natural course ? has it been oscil- 
 lating between peril and disquiet and the apathy which is so 
 often their reactionary successor ? has it manifested, wherever 
 it has been in a state of freedom, peace and vigour, a desire to- 
 restore and reserve as much as it could of a lawful inheritance 
 which had been forcibly put in abeyance, and had that desire 
 and endeavour always accompanied a revival of life and energy ? 
 These are questions which must be answered before the argu- 
 ment from disuse can be properly estimated. A careful exami- 
 nation of the history of this country, and more especially of that 
 part of it which relates to the Church, affords some explanation 
 of the careless and imperfect compliance with the directions 
 and orders of the Prayer-Book to which I have adverted. To 
 enter at length into this history would far exceed the limits of 
 my present judgment, but I will make a very cursory reference 
 to the principal epochs. 
 
 From the reign of Edward VI. to the reign of her present 
 Majesty the intervals during which the Church has been undis- 
 turbed by troubles from within or without have been few. 
 
 During the short reign of Edward vi. she underwent various 
 trials. Her worship and her ritual were twice dealt with by 
 Parliament, and not only her revenues but the ornaments and 
 treasures within her fabrics were scandalously plundered in order 
 to fill the purses of the corrupt courtiers, of a precocious, well- 
 meaning, but prejudiced and narrow-minded boy, who, during 
 the few years of his reign, was little more than an instrument 
 in the unscrupulous hands of the religious and political factions 
 which surrounded and besieged his throne. 
 
Martin v. Mackonochie. 59 
 
 I will borrow the language of Fuller in his Church History 
 of Britain (Book vii. p. 401). 
 
 Speaking of the year 1549, this quaint but faithful historian 
 says; — 
 
 " Come we now to the saddest difference that ever happened 
 in the Church of England, if we consider either the time how 
 long it continued, the eminent persons therein ingaged, or the 
 dolefull effects thereby produced. It was about matters of 
 conformity. Alas ! that men should have lesse wisdome than 
 locusts ; which when sent on God's errand, ' did not thrust one 
 another' (Joel ii. 8), whereas here such shoving, and shouldring, 
 and hoising, and heavings, and justleing, and thronging, betwixt 
 'Clergie-men of the highest parts and places. For now noncon- 
 formity in the dales of King Edward was conceived, which 
 afterward in the reign of Queen Mary (but beyond sea at 
 Erankford) was born, which in the reign of Queen Elizabeth 
 was nursed and weaned, which under King James grew up a 
 young youth, or tall stripling, but towards the end of King 
 Charles his reign, shot up to the full strength and stature of a 
 man, able, not only to coap with, but conquer the hierarchic 
 its adversary." 
 
 Speaking of the year 1552, the same historian says (p. 417) — 
 
 " Lately information was given to the king's councell, that 
 much costly furniture, which was embezeUed, might very sea- 
 sonably (such the king's present occasions) and profitably be 
 recovered. For private men's halls were hung with altar- 
 cloathes, their tables and beds covered with copes, instead of 
 carpets and coverlets. Many drank at their daily meals in 
 chalices, and no wonder if in proportion it came to the share of 
 their horses to be watered in rich coflBns of marble. And, as if 
 first laying of hands upon them were sufficient title unto them, 
 seizing on them was generally the price they had payed for 
 them. Now although four years were elapsed since the destruc- 
 tion of colledges and chanteries, and much of the best Church 
 ornaments was transported beyond the seas, yet the Privie 
 Councel thought this very gleaning in the stubble, would richly 
 be worth the while, and that, on strict inquisition, they should 
 retrive much plate in specie and more money for moderate 
 fines on offenders herein. Besides, whereas parish churches 
 had still many rich ornaments left in the custody of their 
 wardens, they resolved to convert what was superfluous or 
 superstitious to the king's use. To which purpose commissions 
 were issued out to some select persons in every county, etc." 
 
 It was probably a like spirit of avarice which, using the 
 honest fanaticism of the Geneva divines as its instrument, dic- 
 tated the destruction of aU the ancient service books as well as 
 
6o Ecclesiastical Judgments. 
 
 images, by the Order in Council of December 24, 1549, and the 
 3d and 4th of Edw. vi. c. 10. 
 
 The bindings and cases of these books of devotion were often 
 studded with gems, and of great value ; and the images, from 
 their costly material, as well as their careful execution, offered 
 a tempting prey to the spoiler. 
 
 During the succeeding reign of IVTary, the Church was alto- 
 gether driven from her sanctuary. Elizabeth, indeed, exerted 
 the great sagacity which she possessed in laying deep and wide 
 the foundations of the establishment to which the Church was 
 restored. But the foreign element, which the persecutions of 
 Mary had much increased, began to ferment, and to wage a 
 ceaseless war with the principles upon which the Church had 
 been reformed, and though the masculine sense and vigorous 
 hand of this great Queen restrained the attacks of the innova- 
 tors from Geneva and Germany, she was obliged to tolerate a 
 practical laxity in all that related to the ritual of the Church, 
 in order to secure the maintenance of the Catholic doctrine. 
 
 It cannot be doubted, from her resolute retention of the orna- 
 ments of her Chapel, including lights and a crucifix, from her 
 avowed belief in the Keal Presence, as well as from her lan- 
 guage and conduct, that her desire and intention were to 
 embrace the Lutheran and the Eomanist within the wide and 
 liberal pale of the National Church.^ 
 
 And I may observe in passing, that it was in the same spirit 
 of liberality and comprehensiveness that our Bishops, in 1661, 
 said, " It was the wisdom of our Eeformers to draw up such a 
 liturgie as neither Eomanist nor Protestant could justly except 
 against ; and therefore, as the first never charged it with any 
 positive errors, but only the want of something they conceived 
 necessary, so it was never found fault with by those to whom 
 the name of Protestants most properly belongs, those that pro- 
 fess the Augustine Confession ; and for those who unlawfully 
 and sinfully brought it into dislike with some people, to ui'ge the 
 present state of affairs as an argument why the book should be 
 altered to give them satisfaction, and so that they should take 
 advantage of their own unwarrantable acts, is not reasonable." 
 — {LaMury's History of the Book of Common Prayer, chap. xiii. 
 p. 324.) 
 
 Bishop Sandys writes to Archbishop Parker : " The last book 
 of service is gone through with a proviso to retain the orna- 
 
 1 The rubric, commonly called the black rubric, after the Communion, in 
 the second Prayer- Book of Edward vi., explained that no adoration was due 
 to the real and essential presence. Elizabeth struck it out. The rubric 
 reappears in the last Prayer-Book with the very material alteration of " or 
 Unto any corporal presence of Christ's natural flesh or blood." 
 
Martin v. Mackonochie. 6r 
 
 ments which were used in the Ist and 2nd year of King Edward 
 until it please the Queen to take further order for these. Our 
 gloss upon this text is that we shall not be forced to use them, 
 but that others in the meantime shall not convey them away, 
 but that they may remain for the Queen." — (Strype, Ann., 
 vol. i. part 1, p. 122 ; Burnet, vol. ii. part 2, p. 465.) 
 
 The Puritans rejected, with scorn the toleration which the 
 Queen and Walsingham, with a rare wisdom vinknown to their 
 age, were ready to extend to them. Bishop Madox cites a 
 declaration of this party as follows : — 
 
 " As for you, dear brethren, whom God hath called in to the 
 brunte of the battle, the Lord keep you constant, that ye yield 
 neither to toleration, neither to any other subtil persuasions of 
 dispensations or licences, which were to fortify their Eomish 
 practices ; but, as you fight the Lord's fight, be valiant. The 
 matter is not so small as the world doth take it ; it will appear, 
 before all be ended, what an hard thing it is to cut off the rags 
 of the Hydra of Eome. Let us not make the heritage of God 
 as a bird of many colours, holding of divers religions; but 
 rather let us take away, if we can, the names, memories, and all 
 monuments of Popery." The Bishop goes on to say, "Who 
 were meaht by this description in the year 1570 needs no ex- 
 planation. The bishops and clergy of the Church of England 
 were then constantly represented as bearing the names and 
 supporting the monuments of Popery. Agreeably to this 
 exhortation of yielding to no toleration, nor accepting any 
 indulgence, in aU their petitions, admonitions, supplications, 
 etc., we see nothing of a toleration for themselves only, but 
 their single request or command, in whichever style they speak, 
 is the absolute overthrow of the established Government and 
 worship, and the introduction of their own with penalties, even 
 sharp punishments to be inflicted upon those who did not 
 comply with it."— (P. 287.) 
 
 In 1597 Hooker wrote the fifth book of his Ecclesiastical 
 Polity, in which he vindicated the rites and ceremonies of the 
 Church of England against the attacks of the Puritans, and 
 pointed out with a prophetic spirit the confusion which would 
 ensue "if it should be free for men to reprove, to disgrace, 
 to reject, at their own liberty, what they see done and practised 
 according to order set down." — (Book v. c. 10.) 
 
 In the reign of Elizabeth's successor, the Hampton Court 
 Conference and the canons of 1603, aided by the disposition of 
 James, and the great power of his prerogative which then 
 rested on the Statute of Elizabeth, and the general tranquillity 
 of the country, enabled the Church to put in force, in some 
 degree at least, the provisions of her ritual. 
 
62 Ecclesiastical Judgments. 
 
 The leaven of the Puritans, however, was at work, and is 
 well illustrated by the language which they held respecting 
 our Prayer-Book at this time. I refer again to Bishop Madox 
 (p. 73):- 
 
 " But Mr. Neal tells us it would have obviated many objec- 
 tions if the Committee had thrown aside the Mass Book and 
 composed an uniform service in the language of Scripture." 
 This was an objection frequently made by the Puritans, with 
 great variety of very severe and very coarse expressions. Thus 
 in their first admonition to the Parliament, " Eemove (say they, 
 in great warmth) homilies, articles, injunctions, and that pre- 
 script order of service made out of the Mass Book." In their 
 second admonition to the Parliament they express themselves 
 after this manner : " We must needs say as foDoweth, that this 
 book is an imperfect book, culled and picked out of that Popish 
 dunghill, the Portuise and Mass Book, full of all abominations." 
 Another of them is pleased to deliver his opinion in the follow- 
 ing words : " The whole form of the Church service is borrowed 
 from the Papists, pieced and patched, without reason or order of 
 edification." Their famous leader, Mr. Cartwright, likewise 
 declares his and his brethren's displeasure upon this head: 
 " Before I come to speak of prayers (says he) I wiU treat of the 
 faults that are committed almost throughout the whole liturgy 
 and service of the Church of England, whereof one is that 
 which is often objected by the authors of the admonition, that 
 the form of it is taken from the Church of Antichrist." 
 
 During the early part of the reign of Charles I., the advance 
 in ritual restoration was rapid, and was accompanied by great 
 imprudence and little knowledge of, or attention to, the actual 
 circumstances of the State. The Puritan religious element 
 allied itself with the political element ; and so it came to pass 
 that a literal and strictly legal compliance with the rubric 
 formed no insignificant part of the impeachment which brought 
 about the judicial murder of Archbishop Laud, one of the most 
 distinguished writers against the pretensions of the Papacy.^ 
 
 i"Whitelook. {Memorials of the English Affairs. Folio. Tonson, 1732.) 
 
 Anno 1643, p. 75. — The Commons "ordered copes and surplices to be 
 taken away out of aU Churches." 
 
 Anno 1644, p. 88. — Laud on his trial ; objected to him " that he caused 
 superstitious pictures, images, and crucifixes to be set up in many chjirches, 
 and in the King's chapel caused a popish crucifix to be hung up over the 
 altar upon every Good Friday, which had not been there before since the 
 reign of Queen Mary." . . . . " and his consecrating of ,churches, tapers, 
 and candlesticks, organs, and particular prayers for those purposes." 
 
 The Commons " ordered the taking away of all such pictures, images, and 
 crucifixes in the King's chapel at Whitehall." 
 
 Page 91. — "The Earl of Newcastle desired a treaty, which was admitted, 
 and he demanded to march away with bag and baggage, etc., and that all 
 
Martin v, Mackonochie. 63 
 
 Then was the wisdom, as well as the piety, of the principles 
 upon which our Church was reformed,. demonstrated. In Pro- 
 testant Germany and in Geneva, where the Apostolical order and 
 primitive usages had been, from whatever causes, neglected or 
 abandoned, and in this kingdom during the troubles of the civil 
 wars, almost every variety of sect which the vanity, presump- 
 tion, and ignorance of man, under the influence of unchecked 
 religious excitement, could devise, sprang into existence. 
 
 AH these, 
 
 " Who thought religion was intended 
 For nothing else but to be mended," 
 
 and whom the poem of Butler has rescued from oblivion, have 
 furnished to Eome her strongest weapon for the defence of 
 abuses equally without warrant from Scripture and tradi- 
 tion, and for attack upon the purer branches of the Catholic 
 Church. 
 
 At the Eestoration, the Church, with the full and hearty 
 consent of the people, restored, with few exceptions, the primi- 
 tive ritual, of which Cranmer and Eidley, the chiefs of a noble 
 army of martyrs, bad approved. 
 
 But the impoverished condition of the clergy, the dilapidated 
 state of the desecrated churches, the profligacy (a reaction from 
 Puritanism) and poverty of the landowners, combined to prevent 
 that moderate amount of ritual development which a strict 
 obedience to the direction of the rubric required. 
 
 Lord Macaulay's picture of the miserable status of the paro- 
 chial clergy during the seventeenth century (History of England, 
 vol, i. p. 327) is probably painted in too dark colours ; but there 
 is no doubt that it was one highly unfavourable to ritual orna- 
 ment either in the dress of the priest or in the furniture of the 
 church. 
 
 It was seldom that men connected with noble families en- 
 tered into Holy Orders, and the adoption of that profession by 
 Herbert was a remarkable phenomenon of the time. 
 
 Then came the struggle of James li., by God's good provi- 
 dence defeated, to reimpose the yoke of Eome upon the liberties 
 of our Church, 
 
 within the town should have liberty of conscience, the prebends to enjoy 
 their places, to have common prayer, organs, copes, surplices, hoods, crosses, 
 etc." 
 
 " These things were denied by the Parliament," etc. This was at York, 
 June 1644. 
 
 "August 1644, p. 98. — Col. Middleton sent up to the Parliament from 
 Sarum many copes, surplices, tippets, hoods, plate, and the picture of the 
 Virgin Mary taken in the Minster there ; other relics beine divided among 
 the soldiers." 
 
64 Ecclesiastical Judgments. 
 
 The very learned Cave, in his Epistle Dedicatory to the 
 History of the Fathers of the Church in 1683, observes, — 
 
 " The Church of England, incomparably the best part of the 
 Catholic Church at this day visible upon earth, is miserably 
 torn in pieces, hated and maligned ; secretly undermined by 
 enemies from abroad, and openly assaulted by pretended friends 
 at home. Altar is erected against altar, and private congrega- 
 tions kept up in opposition to thc^ublick constitution. Her 
 liturgy and forms of Divine administration derided, odiously 
 traduced, and run down with nothing but noise and clamoTU-. 
 Her rites and institutions, though the same that were used in 
 the primitive ages of Christianity, decried as antichristian. 
 Her discipline and authority weakened, and, by the obstinacy 
 and perverseness of men, made ineffectual." 
 
 The great defection of the non-jurors, who were much attached 
 to ritual observances, among whom were some of the most pious 
 and learned prelates of the realm, at the beginning of William 
 lii.'s reign, must, I think, have been unfavourable to ritual 
 observances in the Church EstabKshment which they had left.* 
 
 As we enter on the eighteenth century we trace the gradual 
 increase of disobedience to all directions of the Church which 
 had for their object not merely the ornament but the decency 
 of Divine worship. 
 
 In 1710 good Bishop Fleetwood, in his charge to his clergy, 
 observed, " that unless the good public spirit of building, re- 
 pairing, and adorning churches prevails a great deal more among 
 us, and be more encouraged, an hundred years will bring to the 
 ground an huge number of our churches." 
 
 During the reigns of the two first Georges, and the beginning 
 of the third, a decay of piety and learning, with brilliant excep- 
 tions indeed, went hand in hand with slovenUness of ritual and 
 habitual indifference to rubrical injunctions upon this subject ; 
 and in 1751, that is, forty years afterwards, not many months 
 before his death, that great prelate, Bishop Butler, whose " Di- 
 vine Philosophy" has charmed educated men of all creeds, 
 
 1 Mr. Hallam observes : " Eight Bishops, including the Primate and several 
 o£ those who had been foremost in the defence of the Church during the 
 late reign, with about four hundred Clergy, some of them highly distin- 
 guished, chose the more honourable course of refusing the new oaths ; and 
 thus began the schism of the Non-jurors, more mischievous in its commence- 
 ment than its continuance, and not so dangerous to the government of Wil- 
 liam III. and George i. as the false submission of less sincere men." Having 
 alleged reasons in favour of the imposition of the oath, he adds in a note : 
 " Yet the effect of this expulsion was highly unfavourable to the new govern- 
 ment ; and it required all the influence of a latitudinariau school of Divinity, 
 letj by Locke, which was very strong among the laity under WUliam, to 
 counteract it." — {p(mist\i. Hist., vol. ii. p. 273.) 
 
Martin v. Mackonochie. 65 
 
 referring to these words of Bishop Fleetwood, uttered this 
 lamentation, " This excellent prelate made this observation forty 
 years ago ; and no one, I believe, will imagine that the good 
 spirit he has recommended prevails more at present than it did 
 then." 
 
 In another part of the same charge he says : " Kor does the 
 want of religion in the generality of the common people appear 
 owing to a speculative disbelief or denial of it, but chiefly 
 owing to thoughtlessness and the common temptations of life. 
 Your chief business, therefore, is to endeavour to beget a prac- 
 tical sense of it upon their hearts as what they acknowledge 
 their belief of, and profess they ought to conform themselves to. 
 And this is to be done by keeping up, as we are able, the form 
 and face of religion with decency and reverence, and in such a 
 degree as to bring the thoughts of religion often to their minds ; 
 and then endeavour to make this form more and more subser- 
 vient to promote the reality and power of it. The form of reli- 
 gion may indeed be where there is little of the thing itself, but 
 the thing itself cannot be preserved amongst mankind without 
 the form. ... 
 
 "That which men have accounted religion in the several 
 countries of the world, generally speaking, has had a great and 
 conspicuous part in all public appearances, and the face of it 
 has been kept up with great reverence throughout all ranks, 
 from the highest to the lowest ; not only upon occasional solem- 
 nities, but also in the daily course of behaviour. In the heathen 
 world, their superstition was the chief subject of statuary, 
 sculpture, painting, and poetry. It mixed itself with business, 
 civil forms, diversions, domestic entertainments, and every part 
 of common life. The Mahometans are obliged to short devo- 
 tions five times between morning and evening. In Eoman 
 Catholic countries people cannot pass a day without having 
 religion recalled to their thoughts, by some or other memorial 
 of it, by some ceremony of public religious form occurring on 
 their way; beside their frequent holidays, the short prayers 
 they are daily called to, and the occasional devotions enjoined by 
 their confessors. By these means their superstition sinks deep 
 into the minds of the people, and their rehgion also into the 
 minds of such among them as are serious and well-disposed. 
 Our reformers, considering that some of these observances were 
 in themselves wrong and superstitious, and others of them made 
 subservient to the purposes of superstition, abolished them, 
 reduced t|ieir form of religion to great simplicity, and enjoined 
 no more particular rules, nor left anything more of what was 
 external in' religion, than what was in a manner necessary to 
 preserve a sense of religion itself upon the minds of the people. 
 
 E 
 
66 Ecclesiastical judgments. 
 
 But a great part of this is neglected by the generality amongst 
 ns ; for instance, the service of the Church, not only upon com- 
 mon days, but also upon Saints' days, and several oth^jc things, 
 might be mentioned. Thus they have no customary admoni- 
 tion, no public call to recollect the thoughts of God and religion 
 from one Sunday to another." 
 
 " Indeed in most ages of the Church the care of reasonable 
 men has been, as there has been for the most part occasion, to 
 draw the people off from laying too great weight upon external 
 things, upon formal acts of piety. But the state of matters is 
 quite changed now with us. These things are neglected to a 
 degree which is and cannot but be attended with a decay of all 
 that is good. It is highly seasonable now to instruct the people 
 in the importance of external religion. 
 
 " And doubtless under this head must come into considera- 
 tion a proper regard to the structures which are consecrated to 
 the service of God. In the present turn of the age one may 
 observe a wonderful frugality in everything which has respect 
 to religion, and extravagance in everything else. But amidst 
 the appearance of opulence and improvement in all common 
 things, which are now seen in most places, it would be hard to 
 find a reason why these monuments of ancient piety should not 
 be preserved in their original beauty and magnificence. But in 
 the least opulent places they must be preserved in becoming 
 repair, and everything relating to the Divine service be, however, 
 decent and clean, otherwise we shall vilify the face of religion, ' 
 whilst we keep it up. All this is, indeed, principally the duty 
 of others ; yours is to press strongly upon them what is their 
 duty in this respect, and admonish them of it often, if they are 
 negligent." — {Works, vol. ii. pp. 315, 317.) 
 
 Then followed the great schism of which the pious Wesley 
 was unwillingly and unwittingly the leader, but of which the 
 apathy and sloth of the Church was the true cause. A resusci- 
 tation of Christian life was afterwards brought about by a 
 school in the Church which, though with little knowledge of 
 or care for ecclesiastical traditions or primitive usage, yet almost 
 within the memory of the present generation represented the 
 earnestness and energy of the establishment. Both these 
 events were unfavourable to the maintenance of ritual obsei"v- 
 ances. 
 
 The piety of this school is not incompatible with superior 
 erudition and historical knowledge in persons more susceptible 
 to the influences of external rites and ceremonies. A school 
 has sprung up in our memory, which, having first restored the 
 true ecclesiastical architecture in our churches, proceeded to 
 
Martin v. Mackonochie. 67 
 
 inquire into the real meaning of the rutrical directions in our 
 Prayer-Book, examined them by the light of history and tradi- 
 tion, and arrived at the conclusion that a bare and unattractive 
 service, sordid furniture, and the absence of aU that vras beau- 
 tiful in art in the Temple of God, was not a necessary condition 
 of a Church which had thrown off the corruptions and novelties 
 of Eome. The Prayer-Book referred them to the custom and 
 usage which prevailed in the second year of Edward the Sixth. 
 In the Lutheran and Swedish services they found crucifixes, 
 incense, lighted candles, and gorgeous dresses. They thought 
 it obvious, therefore, that no necessary connection subsisted 
 between these ornaments and usages of primitive antiquity, and 
 the medieval and false claims of the Papacy. 
 
 Eecognising the spirit of this movement in the Church, the 
 late Bishop of London, in his charge in 1842, used this emphatic 
 language : — 
 
 "Every clergyman is bound by the plainest obligations of 
 duty to obey the directions of the rubric. Eor conforming to 
 them, in every particular, he needs no other authority than that 
 of the rubric itself We ought not to be deterred from a scru- 
 pulous observance of the rites and customs prescribed or 
 sanctioned by our Church by a dread of being thought too 
 careful about the externals of religion. If we are not to go 
 heyand her ritual, at least we ought not to faU. short of it ; nor 
 to make her public services less frequent, nor more naked and 
 inexpressive, than she intends them to be." 
 
 Again he says — 
 
 " An honest endeavour to carrj' out the Church's intentions, 
 in every part of public worship, ought not to be stigmatised as 
 Popish or superstitious. If it be singular, it is such a singularity 
 as should be cured, not by one person's desisting from it, but by 
 all taking it up. When I have been asked whether I approved 
 of certain changes in the mode of celebrating divine service, 
 which were spoken of as novelties, but which were in fact 
 nothing more than a return to the anciently estabhshed order 
 of the Church, my answer has been, far from questioning the 
 right of the clergy to observe the rubric in every particular, I 
 know it to be their duty ; and the only doubt is, how far are we 
 justified in not enforcing such observance in every instance." — 
 (Pp. 30, 31.) 
 
 Bishop Stanley, in his charge in 1845, says, " Speaking of the 
 decorations of churches, I am aware of the reply ; they pander, 
 it is said, to idolatry, and may again become the object of 
 superstitious worship. In a former age, when the minds of 
 men were under the control of a superstitious and designing 
 priesthood, such reasoning might have weight, but I must con- 
 
68 Ecclesiastical yudgments. 
 
 fess I cannot now hear it without mingled sentiments of pain 
 and surprise." ..." We need not," he concludes, " like the 
 Puritans of old, banish the influence of art from the sphere of 
 religion, and return to that rude spirit which went forth as the 
 destroyer of all that was beautiful, glorying in its barbarous 
 mutilations." 
 
 I wiU conclude my observations on this subject in the words 
 of the oldest and certainly not the least able and learned of our 
 prelates. In 1851 the Bishop of Exeter said (from Appendix A 
 to the report of the Kitual Commission, page 122), "Let me 
 make one general remark. Where the congregation consists 
 mainly of the poorest orders, there we commonly observe a 
 great love of a majestic and even elaborate service. The orna- 
 ments of their church ; the storied glass ; the painted, and it 
 may be gilded, walls ; the table of the Lord elevated above the 
 rest, and decked with sober yet costly furniture ; the pealing 
 organ ; the chanted psalms ; the surpliced choristers ; the 
 solemnity of the whole ritual — gladdens while it elevates their 
 minds ; they recognise in it their own high privilege as Chris- 
 tians, and rejoice to find themselves equal participants with 
 their richest neighbours in the homage thus paid to the common 
 Lord and Father of all. In truth, when we consider the little 
 which the poor man has to delight his heart and touch his 
 imagination in his own squalid home, we ought to rejoice that 
 he can find enjoyment in the house of prayer, his Father's 
 house. For this reason few occurrences have affected me more 
 than the lamentations of the poor worshippers, in one of the 
 districts of the metropolis, when they saw, or thought they saw, 
 at the dictation of a riotous and lawless mob of strangers, the 
 approaching surrender of the ritual which they loved, and 
 which was their weekly, to many among them the daUy, solace 
 of that poverty to which the providence of God had consigned 
 them." 
 
 It was in this spirit that the Church of St. Alban's was, we 
 know, built. In this spirit we must all hope that its services 
 have been conducted. But it remains to be seen whether they 
 have or have not gone beyond those bounds of ritual observance 
 which the law of our Church has set. 
 
 General Principles for the Construction of Rubrics. 
 
 In the foregoing observations I have dealt with two heads of 
 the arguments urged by the counsel for the promoter, which for 
 the sake of clearness I will repeat ; namely, — 
 
 That these particular practices are by necessary implication 
 
Martin v. Mackonochie. 69 
 
 prohibited, inasmuch as they are connected with Eoman or 
 Popish doctrines. 
 
 And that as such they have, as a matter of fact, been disused 
 ever since the Keformation. 
 
 I am of opinion that neither of these arguments can avail 
 to prove that the practices complained of are illegal. I have 
 now to consider the two other heads of their argument; 
 namely, — 
 
 That, as by these practices a new rite or ceremony has been 
 added to those which are prescribed by the Statutes of Unifor- 
 mity, such practices are \mlawful. 
 
 And that these particular additions are expressly prohi- 
 bited. 
 
 The due consideration of these arguments renders it expe- 
 dient that I should previously determine upon what principles 
 the rubrical directions of the Prayer-Book should be con- 
 strued. 
 
 It has been argued on the one side that the legal effect of 
 express directions in the rubric is to shut out every rite, cere- 
 mony, utensil, or ornament which is not the subject of such 
 express provision, or by necessary implication directly sub- 
 sidiary to it. It has been argued, on the other side, that 
 every ancient Catholic rite, ceremony, utensil, or ornament 
 which is not the subject of an express prohibition is lawful. I 
 am not disposed to assent to either of these propositions in their 
 full latitude. 
 
 I believe the following rules to be well founded in principle, 
 reason, and law, and I shall endeavour to guide myself by them ; 
 namely, that what is expressly prohibited is prohibited alto- 
 gether, and may not be evaded by any contrivance which, 
 under a different name or appearance, attains the same end ; 
 that whatever is expressly ordered may not be evaded by an 
 illusory or partial compliance ; that whatever is subsidiary to 
 what is ordered, and whatever being in itself decent and proper 
 in accordance with primitive and catholic use, and which is 
 not by any fair construction necessarily connected with those 
 Eoman novelties which the Church " cut away and clean re- 
 jected " (to use the language of the Prayer-Book) at the 
 Eeformation, is, under restrictions to be mentioned, lawful. 
 
 There are, in other words, three categories of these things, 
 (1.) Things lawful and ordered. 
 (2.) Things unlawful and prohibited. 
 (3.) Things neither ordered nor prohibited expressly, or 
 by implication, but the doing or use of which must 
 be governed by the living discretion of some person 
 in authority. 
 
70 Ecclesiastical yudgments. 
 
 Construction of Rubric as to the Discretion of the Ordinary. 
 
 I wish to say a word first upon this last category. 
 
 The compilers of our Prayer-Book, and the Legislature which 
 clothed it with the authority of a Statute, were well aware that 
 such a living discretion was indispensably necessary for the 
 government of the Church in the performance of her Divine 
 service, as well as in the due discharge of her other functions. 
 
 In the preface concerning the service of the Church, it is 
 stated that "nothing can be so plainly set forth but doubts 
 may arise in the use and practice of the same ; " accordingly 
 the first and every subsequent Prayer-Book, including the 
 present one, provided what must have been intended and be- 
 lieved to be a sufficient remedy for the evil which was thus 
 contemplated as of possible, perhaps probable, occurrence. 
 
 It is important to notice the nature and character of the 
 remedy proposed. It was one in perfect' accordance with the 
 principle upon which the order and discipline of the Church 
 had, in obedience to the will of Christ, been founded by his 
 Apostles; a principle which recognised the apostolical order 
 of bishops as necessary for the due constitution of the Church ; 
 and in perfect accordance with the great principle of the 
 Eeformation of the Church in England, that a duly consecrated 
 bishop had a Divine authority, perfect and complete in itself, 
 and wholly independent of the previous consent or subsequent 
 ratification of that authority by the Pope. 
 
 The remedy was as follows : " to appease all such diversity 
 (if any arise), and for the resolution of aU doubts concerning 
 the manner how to understand, do, and execute the things 
 contained in this book, the parties that so doubt or diversedy 
 take anything shall alway resort to the bishop of the diocese, 
 who by his discretion shall take order for the quieting and 
 appeasing of the same ; so that the same order be not contraiy 
 to anything contained in this book, and if the bishop of the 
 diocese be in doubt, then he may send for the resolution thereof 
 to the archbishop." 
 
 The words of this order deserve the closest attention; it 
 provides " for the resolution of all doubts concerning the man- 
 ner how to understand, do, and execute the things contained 
 in this book;" terms which certainly appear to comprehend 
 every conceivable difficulty or doubt which could possibly 
 arise. The authority which is to resolve these doubts aud 
 remove these difficulties, is that officer in whose hands pre- 
 viously to the statutory enactment of any Prayer-Book, the 
 Church had placed a supreme command over all that relates 
 
Martin v. Mackonochie. 71 
 
 to her ritual. " The parties that so doubt or diversely take 
 anything shall always resort to the bishop of the diocese." 
 The mode of resolution is not stated, but the language is such 
 as to render it improbable that any formal proceedings in a 
 court were contemplated. " The bishop by his discretion shall 
 take order for the quieting or appeasing of the same," — large, 
 and, I think, wise expressions, making reference to a living 
 authority, such as the nature of the thing seems to demand, 
 and the Church had always recognised as having the power to 
 deal with the circumstances of each case as they arose. Was 
 there any limitation to this authority ? — One only, it appears ; 
 that his order " shall not be contrary to anything contained in 
 this book ; " leaving, therefore, in my judgment, within the 
 domain of his authority that third category to which I have 
 referred, namely, " things neither ordered nor prohibited 
 expressly or by implication." 
 
 Was there any provision for controlling the exercise of this 
 discretion ? — ^Yes, a provision not inserted, it is true, in the first 
 Prayer-Book, but equally in accordance with the discipline of 
 the Catholic Church and with the denial of papal pretension, — 
 the provision " that if the bishop be in doubt he may send for 
 the resolution thereof to the archbishop." 
 
 Some construction must be placed upon this order. There 
 are but three possible constructions which occur to my mind : 
 one, that the order merely means that the minister or " party " 
 may quiet his own conscience by having recourse to the private 
 advice of the Ordinary, which advice, when given, he is con- 
 scientiously bound to follow ; a second construction is, that the 
 order contemplates formal proceedings in the ecclesiastical 
 courts of the diocese and the province ; the third is, that which 
 I have suggested. 
 
 It is certainly remarkable that as far as I am aware this 
 order has never yet received any judicial interpretation. I 
 remember very well arguing before a very learned ecclesiastical 
 judge. Sir Herbert Jenner Fust, in " the Stone Altar case " (it 
 was brought into the Court of Arches by appeal from the 
 sentence of the Court of Ely, which Court had afiBrmed the 
 legality of the stone altar), that the question was one to be 
 decided according to the discretion of the Ordinary, according 
 to this order ; and, in his judgment. Sir H. J. Fust said, " After 
 much consideration now given, I am of opinion the matter is 
 not one of discretion but of law. Were it otherwise, I should 
 be desirous of consulting the wish of the parish." — (1 Eob. 
 EccL, p. 255). It was clearly, therefore, the opinion of Sir H. 
 J. Fust, who was perfectly conversant with ecclesiastical law 
 and practice, that this order was not to be treated as a dead 
 
72 Ecclesiastical Judgments. 
 
 letter, although, after much reflection, he was of opinion the 
 questions as to the material and position of the altar-table did 
 not come within its purview. The structure of a stone altar 
 he conceived to be " contrary " to the provisions of the Prayer- 
 Book. And in Westerton v. IMdell, the Lords of the Privy 
 Council, after deciding that it was lawful to place upon the holy 
 table cloths of various colours, observed, " whether the cloths so 
 used are suitable or not is a matter to \>e left to the discretion 
 of the Ordinary."— (Moore's Eeport, p. 188.) 
 
 There is a difficulty arising out of this construction, from the 
 consideration of which I must not shrink. It may be said that 
 the bishop, when he had taken order for appeasing the doubt, 
 would have no legal means of enforcing that order, and that for 
 the purpose of such enforcement he must have recourse to his 
 court. But it appears to me that, on the supposition that the 
 matter was one on which he could exercise his discretion, he 
 could clothe his order with the character of a monition, and 
 that a disobedience to such monition would subject the person 
 disobeying to the penalties of contumacy. 
 
 I should observe that the canon law unquestionably placed 
 in the hands of the bishop the authority to govern all questions 
 of ritual. 
 
 " Et quidem " (Van Espen says) " quia dispares diversarum 
 nationum mores et ingenia diversos ritus et cseremonias, ut in 
 politicis ita in ecclesiasticis exigunt, hinc in ritibus magna 
 ecclesiarum varietas ; prsesertim quia nullo extante de his 
 Christi vel Apostolorum prsecepto, libera potestas episcopis 
 relicta erat, id sentiendi et decernendi quod unicuique salva 
 fide magis expediens videbatur." 
 
 And citing the decree of a synod he says : " Novae cseremonise 
 nullse in ecclesiis recipiantur sine episcopi judicio." — {Jus Hccles. 
 Univ., pars ii. tit. v. cap. ii. §§ 15, 24, tom. i. pp. 411, 412.) 
 
 Upon this construction of this rubrical order, it will be, my 
 duty to consider whether any of the charges preferi'ed against 
 Mr. Mackonochie ought to have been dealt with by the discre- 
 tion of the Ordinary, and not to have been made the subject of 
 a criminal proceeding against him in this or in any other Court. 
 
 Construction of Rubrics generally. 
 
 With respect to the two other categories of rubrics, namely, 
 those which relate to things lawful and ordered, and things 
 unlawful and prohibited, there is a question in limine which 
 must be considered. Is there a common law of the Church 
 unwritten, living by usage, though partly expressed, perhaps, 
 by judicial decisions ; but still more, to use a common expres- 
 
Martin v. Mackonochie. 73 
 
 sion, taken for granted by all authorities in Church and State — 
 filling up the void of positive provision in statute or formulary 
 — a necessary part of an organised religious system and estab- 
 lishment, rendering the practical working of it possible, and, on 
 the whole, harmonious ? 
 
 That there has been such a usage in the Church at large, 
 from its earliest foundation, is certain. " We know no such 
 customs, neither we nor the churches of God," was the language 
 which we learn from inspired authority she used as her shield 
 against the earliest assaults upon her integrity. " Let the 
 ancient customs prevail" was the maxim, fatal to the medieval 
 and modem pretensions of Eome, which the Church enunciated 
 in her earliest oecumenical council. The canon law of the 
 Western Church fully recognises custom and usages as a 
 distinct source of ecclesiastical jurisprudence. Was the branch 
 of this Church, which the constitution and the legislature have 
 established in this kingdom devoid of this subsidiary aid to her 
 discipline and government % 
 
 In the case of Willson v. M'Math (3 Phillimore, 67) a very 
 curious question was raised, whether the minister, as such, has 
 a right to preside at a vestry meeting. 
 
 Sir John NichoU, the Ofi&cial Principal of the Archbishop of 
 Canterbury, observed : " The case is said to be a new one, so 
 far as regards any express law, or any judicial decision on the 
 subject. There is no statute, no canon, no reported judgment, 
 either expressly affirming or expressly negativing the right. It 
 nevertheless may exist as a part of the common law of the 
 land, as a part of the lex non scripta, which is of binding 
 authority, as much in the ecclesiastical as in the temporal 
 Courts. Indeed, the whole canon law rests for its authority in 
 this country upon received usage ; it is not binding here profrio 
 vigore. Moreover, this Court upon many points is governed, in 
 the absence of express statute or canon, by the jvs tacito et 
 illUerato hominwm consensu et moribus expressum." 
 
 " It is true that generally the existence of this jus non scrip- 
 . turn is ascertained by reports of adjudged cases ; but it may be 
 proved by other means : it may be proved by public notoriety, 
 or be deducible from principles, and analogy, or be shown by 
 legislative recognitions. Published reports of the decisions of 
 the Ecclesiastical Courts (with one very recent exception) do 
 not exist ; and if they did, yet the particular right in dispute 
 may never have been so much as doubted or questioned 
 before." 
 
 Upon this principle, in the time of James I., the King's 
 Bench refused to prohibit the Ordinary from compelling a 
 woman to be churched in a veil, because it was certified by 
 
74 Ecclesiastical yudgments. 
 
 divers bishops to be the common custom of the Church of 
 England.^ 
 
 There is, therefore, a common law of the Church which runs 
 by the side of the statute law, and which must assist in the 
 construction of it. 
 
 It is often said that a rubric should be construed on the same 
 principles as an Act of Parliament ; but admitting this to be 
 so, it is obvious that there are peculiar difficulties incident to 
 the construction of a rubric which seldom, or in a much less 
 degree, beset the construction of an ordinary statute. And it will 
 appear from what has been already said, that the right under- 
 standing of the rules supplied by the rubric for the regulation of 
 the services may often require a reference to the sources not 
 only of historical, but to a certain extent theological knowledge. 
 There is one important rule applicable to the construction of 
 all instruments, namely, that the construer should endeavour 
 to place himself in the position of the framer of the instrument, 
 and to gather from all the circumstances which surrounded him 
 at the time when he framed it, and from the context of other 
 portions of the instrument, what the real meaning and inten- 
 tion was, if the language which he has used have left that 
 meaning and intention doubtful or obscure. 
 
 In the case of Escott v. Mastin (4 Moore's P. C. Eeports, p. 
 104), in which a question as to the lawfulness of baptism, ad- 
 ministered by a layman with water and the invocation of the 
 Trinity, was mooted, the Lords of the Privy Council observed 
 as follows : — 
 
 "The 68th canon being that upon which this proceeding is 
 grounded, it is necessary to consider what the law was at the 
 date of the canon, the year 1 603. Without distinctly ascertain- 
 ing this, we cannot satisfactorily determine what change the 
 rubric of 1661, adopted into the 13th and 14th Charles ii. cap. 
 4, made, and in what state it left the law on this head ; because 
 it is very possible that the same enactment of a statute, or the 
 same direction in a rubric, bearing one meaning, may receive 
 one construction when it deals for the first time with a given 
 subject-matter, and have another meaning and construction 
 when it deals with a matter that has already been made the 
 subject of enactment or direction; and this is most specially 
 the case where the posterior enactment or direction deals with 
 the matter without making any reference to the prior enactment 
 or direction. StiU more it is necessary to note the original 
 state of the law, when it is the common law that comes in 
 question, as well as the statute." . . . 
 
 1 Vin. Abr. 17, p. 231, tit. "Prerogative of the King." "Ordinary and 
 power of the Ordinary." 
 
Martin v. Mackonochie. 75 
 
 " The words are plainly directory, and do not amount to an 
 imperative alteration of the rule then subsisting. If lay baptism 
 was valid before the new rubric of 1661, there is nothing in 
 that rubric to invalidate it. Generally speaking, where any- 
 thing is established by statutory provisions, the enactment of a 
 new provision must clearly indicate an intention to abrogate 
 the old, else both will be understood to stand together if they 
 may. But, more especially, where the common law is to be 
 changed — and, most especially, the common law which a statu- 
 tory provision had recognised and enforced — the intention of 
 any new enactment to abrogate it must be plain to exclude a 
 construction by which both may stand togetber. This prin- 
 ciple, which is plainly founded in reason and common sense, 
 has been largely sanctioned by authority. The distinction 
 which Lord Coke takes in one place between affirmative and 
 negative words, giving more effect to the latter (Coke, Littleton, 
 115, a) has sometimes been denied, at least doubted (W. Jones, 
 270, Lovelace's case, before the Windsor Forest Court, in 1632, 
 in which there is a dictum of Lord Chief-Justice Eichardson), 
 Mr. Hargrave thinks upon a misapprehension (Note 1 54). But 
 the rule which is laid down in 2d Inst., 200, has been adopted 
 by all the authorities, that ' a statute made in the affirmative, 
 without any negative expressed or implied, doth not take away 
 the common law.' So Comyn's Digest, Parliament, E. 23 ; -and 
 he cites the case Be, Jure Ecclesiastico, in 5th Eep. 5, b, which 
 lays down the rule in terms." 
 
 Let me apply this rule to the subject before me. The iirst 
 Prayer-Book of Edward vi. contains only one prohibition, the 
 Elevation of the Blessed Sacrament ; but it contains various 
 directions respecting the articles to be used in the administra- 
 tion of the Holy Communion. It has been pointed out that 
 the enumeration of these articles could not be exhaustive, in- 
 asmuch as the indispensable article of " a fair linen cloth " is 
 omitted from it. 
 
 The argument is, I think, valid ; the officiating priest must 
 have supplied this article, and the legislature must have in- 
 tended him to supply it. 
 
 He must have looked to an unwritten use, the foundation of 
 a common law for the Church, not less than for the State. 
 
 Just as much as it must have intended by the rubric in our 
 present Prayer-Book : " The priest shall then place upon the 
 table so much bread and wine as he shall think sufficient," 
 that there should be a table or place from which the elements 
 should be then brought ; and therefore the Judicial Committee 
 of the Privy Council, reversing the sentence of the Consistory 
 of London and the Court of Arches, decided that the Credence 
 
76 Ecclesiastical Judgments. 
 
 Table, which supplied this want, was a lawful ornament. 
 Those who compiled the first Prayer-Book of Edward VI. were 
 not inventing a ritual for the first time, but were constructing 
 one from the various service-books, some English, and some 
 foreign, which they had before them. This ritual was to be 
 placed in the hands of persons conversant with the older ser- 
 vice-books ; and it seems highly uureasonable to suppose that 
 it was not competent to the priest- to supply any accidental 
 omission in the new ritual by a reference to the previously 
 existing usage and practice. In the same way, in the Sarum 
 Missal no mention is to be found of the two lights to be placed 
 upon the altar, but there is no doubt that the constitution 
 which ordered those two lights was legally binding upon, and 
 must have been a part of the furniture of, those churches which 
 adopted the use of Sarum, at least in the province of Canter- 
 bury. Another illustration is furnished by the very remarkable 
 fact that the second Prayer-Book of Edward vi. omitted all 
 reference to the manual acts, ordered in the first and last 
 Prayer-Book, attending the consecration of the Holy Elements ; 
 and that duriug the whole period which elapsed between the 
 date of the second Prayer-Book in 1552 and that of the present 
 Prayer-Book in 1661, the ofi&ciating priest was left without 
 any direction upon this ^subject in the Prayer-Book which he 
 was to use. Now, one of two consequences must follow: 
 either the cup was never taken in the hand, the bread never 
 broken, as at present, or these manual acts were done without 
 any specific order in the Prayer-Book, as a niatter of recog- 
 nised usage and custom. No proof has been laid before me, 
 and I can find none, as to the omission of these necessary acts 
 during a period of more than a century, and I think the in- 
 ference that they must have been still practised is reasonable 
 and sound. 
 
 And in this opinion I am strengthened by observing that 
 at the Savoy Conference the dissenters objected, "that the 
 manner of the consecrating of the elements is not here " {i.t. 
 in the consecration prayer) " explicite and distinct enough, aud 
 the minister's breaking of the bread is not so much as men- 
 tioned." The bishops replied by conceding that the manner 
 of consecrating the elements be made "more explicit and 
 express," which was the origin of our present rubric. — {Cari- 
 wdl, Conferences, pp. 321, 363.) 
 
 The opinion of Bishop Cosin (vol. v. p. 65, ed. 1855), a high 
 authority upon this subject, appears to me sound. " The book" 
 (he says) " does not everywhere enjoin and prescribe every little 
 order that should be said or done, but takes it for granted 
 that people are acquainted with such common and things 
 
Martin v. Mackonochie. 77 
 
 already used as suck Let the Puritans then here give over 
 their endless cavils, and let ancient custom prevail, the thing 
 which our Church chiefly intended in the review of this ser- 
 vice." This reasoning, therefore, brings me to the conclusion, 
 that from the mere silence of the rubric a positive prohibition 
 .cannot in all cases be inferred. 
 
 Something more is required to render the article supplied 
 illegal. For instance, the mention of the article in a former 
 Prayer-Book, and the omission of it in the present, may fur- 
 nish a presumption that it was intentionally rejected, even 
 when it be in itself innocent, or apparently expedient. Or 
 the article must have, as has been already observed, some 
 necessary connection with a use inconsistent with the principles 
 upon which the formularies of the Church are founded. 
 
 I must repeat that the rubrics with respect to decorations 
 and furniture of the church are not exhaustive. This point 
 has been decided by the Judicial Committee of the Privy 
 Council. They allowed on this principle the use of the cross 
 and the credence table and the various coloured clothes for the 
 Holy Table. They allowed also the use of a moveable ledge 
 for the purpose of holding candlesticks upon the Holy Table. 
 The question came before their Lordships as a corollary to their 
 principal decision in Westerton v. Idddell. It was' contended 
 that the monition of the Court with respect to St. Barnabas 
 Church had not been obeyed as to the Holy Table or as to the 
 cross. ■ 
 
 The act on petition alleged, that the monition was still in 
 part uncomplied with in the following particulars : — First, that 
 the metal cross which was standing in the church or chapel, on 
 or attached to the super-altar, on the stone altar, which 
 formerly stood therein prior to the delivery of the judgment of 
 the Judicial Committee on the 21st of March 1857, was then 
 placed on the siU of the great eastern window of the church or 
 chapel-of-ease of Saint Barnabas, above the table then used as 
 a Communion Table in the church or chapel. Second, that the 
 table which had been substituted in the church or chapel for 
 a stone altar which formerly stood therein was not a flat table, 
 but had an elevation or structure placed thereon, so as to 
 resemble what is generally known and described as a super- 
 altar in Eoman Catholic churches or chapels. 
 
 The answer on behalf of the Hon. and Eev. Eobert Liddell 
 and the then Chapelwardens to this act on petition, denied 
 that the monition was in any part uncomplied with, and 
 pleaded : first, that the metal cross which was on the 27th of 
 March 1857 standing in the church or chapel of Saint Bar- 
 nabas (attached to the ledge of wood at the back of the stone 
 
78 Ecclesiastical judgments. 
 
 altar, which then stood in the chancel of the church or chapel) 
 was at the present time placed on the sill of the centre com- 
 partment of the eastern window of the chancel of the church 
 or chapel, five feet ten inches above the surface of the Com- 
 munion Table standing there, and wholly disconnected there- 
 with ; secondly, that the table which had been substituted in 
 the church or chapel for the stone altar which formerly stood 
 therein was a flat moveable table of wood ; and that the ele- 
 vation or structure alleged iu the second article of the act on 
 petition as placed thereon was simply a moveable ledge of 
 wood placed in order that two candlesticks might stand thereon 
 at the back of the table, and that the ledge was always raised 
 up before the celebration of the Lord's Supper, in order that 
 the decree of the Court might be complied with, namely, that a 
 fine linen cloth should cover the Communion table at the time 
 of the ministration of the Lord's Supper, and that the cross was 
 in the church or chapel at the time of the consecration thereof, 
 and then formed one of the ornaments of the church or chapel. 
 
 Their Lordships were of opinion, " that no disobedience, no 
 impropriety, no irregularity, has been established ; and that the 
 present application, therefore, failed."^ 
 
 In the same spirit, usages not prescribed by the Prayer-Book 
 during the service have been allowed — such as turning to the 
 east whUe the creeds are read, the "Glory be to Thee, O Lord" 
 before the reading of the Gospel and the expression of thanks 
 after the reading of it, the use of hymns^^— a use perhaps not 
 only not ordered, but contrary to the order of the Prayer- 
 Book; and an inscription on a tombstone of "pray for the 
 soul" of a departed person has been, by express judicial 
 decision, pronounced not to be " contrary to the articles, canons, 
 constitutions, doctrine, and discipline of the Church." — (JBreehs 
 v. Woolfrey, 1 Curteis Eep. 880.) 
 
 And here I will notice what I may call the churchwarden 
 argument. It has been said that one test of the legality of 
 ornaments is whether the churchwardens can or cannot be 
 compelled to provide them. I am of opinion, however, that 
 this is not a conclusive test. The law upon this subject was 
 well and clearly laid down by Dr. Lushiugton,^ — namely, that 
 there are two classes of expenses for parochial purposes ; one, 
 necessary expenses, which the churchwardens may defray of their 
 own authority out of a rate, without the sanction of the vestiy ; 
 another, expenses not absolutely necessary, a class which re- 
 quires, if they are to be defrayed out of a rate, the previous 
 sanction of the vestry. Under this latter category would fall 
 
 ^UddeU V. Seal, 14 Moo. P. C. 1. 
 
 2 1 Bum's Eccl. L., p. 388 a. — ed. Phillimore : Oathercole v. Wade. , 
 
Martin v. Mackonochie. 79 
 
 all expenses incurred for furniture of a decorative kind, which 
 would also require the sanction of the Ordinary. 
 
 The Special Charges considered. 
 
 Having thus considered the principles of law which ought 
 to guide me in adjudicating the charges preferred against the 
 reverend defendants in the cases before' me, 1 will now con- 
 sider and pronounce judgment upon each individual charge, 
 which, for the sake of convenience, I will arrange in the follow- 
 ing manner : — 
 
 First, the Elevation of the Blessed Sacrament, including the 
 Kneeling ; 
 
 Secondly, the use of Incense during the administration of the 
 Holy Communion ; 
 
 Thirdly, the Mixing the Water with the Wine during the 
 administration of the Holy Communion ; 
 
 Fourthly, the special charges against Mr. Simpson ; 
 
 Fifthly, the use of Lights during the administration of the 
 Holy Communion. 
 
 Elevation ; as to Mr. Mackonochie. 
 
 Zd Article. — The third of the articles in this suit charges 
 the defendant, " That he, the defendant, had in his said Church, 
 and w;ithin two years last past, to wit, on Sunday the 23d of 
 December, on Christmas Day last past, and on Sunday the 30th 
 December, all in the year 1866, during the prayer of consecra- 
 tion, in the order of the administration of the Holy Communion, 
 elevated the paten in a greater degree than by merely taking 
 the same into his hands, as prescribed by the Book of Common 
 Prayer, and in a greater degree than is necessary to conform 
 with the requirements of such book, and permitted and sanc- 
 tioned such elevation ; and taken into his hands and elevated 
 the cup during the prayer of consecration aforesaid in a manner 
 contrary to the said statutes, and to the said Book of Common 
 Prayer, and permitted and sanctioned the cup to be so taken 
 and elevated ; and knelt or prostrated himself before the con- 
 secrated elements during the prayer of consecration, and per- 
 mitted and sanctioned such kneeling or prostrating by other 
 clerks in holy orders." 
 
 Answer. — To this article the defendant has answered, " That 
 whUst he admits that he, the defendant, did on the said two 
 Sundays, and on Christmas Day, during the prayer of consecra- 
 tion, kneel, and sanction kneeling by other clerks, before the 
 
8o Ecclesiastical judgments. 
 
 Lord's Table, he denies that his said party did on the said two 
 Sundays, and on the said Christmas Day, kneel or prostrate him- 
 self before the consecrated elements, or permit and sanction such 
 kneeling or prostration by other clerks in holy orders, as in the 
 3d article pleaded. And he fiirther alleges that whilst he admits 
 that he did on the said two Sundays and Christmas Day, in the 
 said 3d article mentioned, elevate and sanction the elevation by 
 other clerks of the paten and cup above his head, as in the said 
 3d article pleaded, yet that such elevation of the paten and cup 
 has been wholly discontinued by the said defendant during the 
 administration of the Holy Communion ever since the said 
 30th December 1866, and long prior to the institution of this 
 suit; that such practice was discontinued in consequence of 
 legal advice, and in compliance with the expressed wish of the 
 Lord Bishop of the diocese of London, and with a resolution of 
 convocation, as was well known to the promoter of this suit 
 before he instituted the same." 
 
 A:th Article. — The fourth Article alleges " that such elevation 
 of the cup and paten, and such kneeling and prostrating, are 
 severally unlawful additions to and variations from the form 
 and order prescribed and appointed by the said statutes, and 
 by the said Book of Common Prayer and administration of the 
 sacraments and other rites and ceremonies of the Church, and 
 are contrary to the said statutes, and to the 14th, 36th, and 
 38th of the said constitutions and canons, and also to an Act of 
 Parliament passed in a session of parliament holden in the 
 thirteenth year of Queen Elizabeth, cap. 12, and to the 25th 
 and 28th of the articles of religion therein referred to." 
 
 Answer. — The defendant to this article answers, "That he 
 denies that the elevation of the paten and the taking and the 
 elevation of the cup so discontinued as aforesaid, and the 
 kneeling and prostrating charged in the said 3rd article, 
 are severally unlawful additions to and variations from the 
 form and order prescribed and appointed by the said statutes, 
 and by the said Book of Common Prayer and administration 
 of the sacraments and other rites and ceremonies of the Church, 
 or that they are contrary to the said statutes, and to the 14th, 
 36th, and 38th of the said constitutions and canons, and also 
 to an Act of Parliament passed in a session of Parliament 
 holden in the thirteenth year of Queen Elizabeth, cap. 12, and 
 to the 25th and 28th articles of religion therein refeiTed to, as 
 in the 4th article alleged." 
 
 The elevation of the Blessed Sacrament was not incorporated 
 formally into the law of the Western Church before the begin- 
 ning of the thirteenth century. The account given by Cardinal 
 Bona is clear and concise {Berum Liturgicarum, lib. ii. 
 
Martin v. Mackonochie. 8 1 
 
 cap. 3, § 2) : " Latini peracta consecratione, Grseci paulo ante 
 communionem, ut ex liturgiis Jacobi, Basilii, et Chrysostomi 
 manifestum est, corpus Dominicum et calicem elevant, ut a 
 populo adoretur. Idque ab antiquo tempore fieri solitum 
 indicant scriptores Grseci." He then cites a variety of authori- 
 ties in support of this position, and mentions the introduction 
 of the custom of ringing a bell at the time of the elevation, at 
 first as it should appear in order to excite the devotions of the 
 faithful, and not for the purpose of the worship of the Host 
 (p. 349). 
 
 It was not till the year 1217, during the Papacy of Hono- 
 rius III., that this peculiar doctrine of elevation became part of 
 the canon law. 
 
 In lib. iii. tit. xlii., Decret. Greg. cap. x., the decree upon the 
 subject is as follows : 
 
 "Saue, cum olim (wi infra). Ne propter incuriam Sacer- 
 dotum divina indignatio gravius exardescat, districte prsecipi- 
 endo mandamus, quatenus a Sacerdotibus Eucharistia in loco 
 singulari, mundo et signato semper honorifice coUocata, devote 
 ac fideliter conservetur. Sacerdos vero quilibet frequenter 
 doceat plebem suam, ut, cum in celebratione missarum elevatur 
 hostia salutaris, se reverenter inclinet, idem faciens, cum eam 
 defert Presbyter ad infirmum. Quam in decenti habitu super- 
 posito mundo velamine ferat, et referat manifeste ac honorifice 
 ante pectus cum omni reverentia et timore, semper lumine 
 praecedente, cum sit candor lucis seteruEe, ut ex hoc apud omnes 
 fides et devotio augeatur. Praelati autem hujusmodi mandati 
 graviter punire non differant tfansgressores : si et ipsi divinam 
 et nostram volunt eifugere ultionem."^ 
 
 William, Bishop of Paris, soon after the beginning of the 
 thirteenth century, made an order that, " Sicut alias statutum 
 fuit, in celebratione missarum, quando corpus Christi elevatur, 
 in ipsa elevatione vel paulo ante campana pulsetur, ut sic 
 mentes fidelium ad orationem excitentur." 
 
 And Archbishop Peccham, who was consecrated in the year 
 1278, and died in the year 1292, appears to have first intro- 
 duced into England this custom by the following constitution:^ 
 
 " Altissimus," et infra. "In elevatione corporis Christi ab 
 
 iThe title of the chapter is : "Eucharistia debet munde servari, et in ejus 
 elevatione et delatione populus debet se inclinare : et cum defertur ad infir- 
 mum, debet deferri in deceati habitu, et cum lumine, transgreasores vero 
 graviter sunt punieudi." 
 
 ^The title of this constitution is: — "In elevatione corporis Christi pulsen- 
 tur campanse, ut officio interesse nequeuntes, saltern genua flectant. Xeo 
 miuistretur corpus Domini, nisi eis quos constat confesses esse, et parochianos 
 ejus, in qua recipiant, ecclesia ; nisi permissionen habeant, aut peregrini sint, 
 aut necessitas urgeat." 
 
82 Ecclesiastical Jitdgments. 
 
 una parte ad minus pulsentur campanse, ut populares, qui cele- 
 brationi missarum non valent quotidie interesse, ubicunque 
 fuerint, sive in agris sive in domibus, flectant genua, indulgen- 
 tias concessas a pluribus episcopis babituri." 
 
 Lyndwood (writing, it is to be observed, about 1430) has this 
 gloss : " Elevatione, quse fit ut populus illud adoret." 
 
 This passage appears to me to dispose of the argument 
 addressed to me by the leading counsel for Mr. Simpson, " that 
 it had been the invariable practice of the Church of England 
 not to connect adoration vdth elevation." 
 
 Nor am I satisfied by the difference between the canon of the 
 Sarum use and that of the Eoman Missal upon this point, that 
 at the time of the Eeformation the adoration was separated 
 from the elevation of the Host. The true proposition is that 
 the original practice, in England as in other countries, had been 
 to stir up the devotion of the people to God by the elevation of 
 the Blessed Sacrament, until in this, as in so many other in- 
 stances, the Church, or perhaps more strictly speaking the 
 Curia, of Eome introduced an unwarrantable innovation upon 
 an ancient and laudable usage. 
 
 The first prohibition of this custom of elevating the Host 
 in order that it might be adored, is to be found in the Order of 
 the Communion of Edward vi., which was published in 1548, 
 and preceded the first Book of Common Prayer. The last 
 "note" to that order, after providing for the case in which 
 it has become necessary to consecrate more wine than had been 
 originally consecrated, contains these words, " and without any 
 elevation or lifting up." This prohibition would seem, from the 
 context, to be limited to the case of an additional consecration 
 of wine. In the first Prayer-Book, after the prayer of consecra- 
 tion, follow these words : " These words before rehearsed are to 
 be said, turning still to the altar, without any eleva,tion, or 
 showing the sacrament to the people." 
 
 The Council of Trent, by the 6th canon of the 13th session, 
 passed the 11th of October 1561, decrees: "Si quis dixerit, iu 
 sancto eucharistise sacramento Christum unigenitum Dei FiUum 
 non esse cultu latriae, etiam externo, adorandum, atque ideo nee 
 festiva peculiari celebritate venerandum, neque in processionibus 
 secundum laudabilem et universalem ecclesise sanctee ritum et 
 consuetudinem soleimiter circumgestandum, vel non pubhce, ut 
 adoretur, populo proponendum, et ejus adoratores esse idolola- 
 tras, anathema sit." 
 
 The liberal mind and strong sense of Luther appear in his 
 treatment of this question of elevation. In the Formtda Missm 
 et Communionis for the church at Wittemberg, he gives this 
 direction : " (IV.) Einita benedictione chorus cantet sanctus et 
 
Martin v. Mackonochie. 83 
 
 sub benedictus elevetur panis et calix, ritu hactenus servato, vel 
 propter infirmos qui hac repentina (mutatione) hujus insignioris 
 in missa ritus forte offendeutur, prcesertim uhi per condones 
 vernaculas docti fuerint quid ea petatur elevatione." — (Cod. 
 Idtiirg, vol. ii. p. 87, ed. Leipsic, 1848.) Daniel, the learned 
 German editor of the Codex Liturgicus, observes that the eleva- 
 tion was for a long time not only tolerated but approved of and 
 defended by Luther. He thought it right that when the 
 Sacrament was lifted up a bell should ring ; for the priest and the 
 beU spoke the same langiiage, namely, "Hearken, ye Christians, 
 and behold, then take and eat, take and drink, this is the body 
 and blood of Christ." Afterwards Luther placed the elevation 
 "inter adiaphora quae possunt servari vel omitti ad habitum 
 ecclesiarum," and discontinued it in the church at Wittem- 
 berg. The rite appears to have prevailed during the six- 
 teenth and seventeenth centuries in the churches of Sweden 
 and Denmark. 
 
 By the 28th of the Thirty-nine Articles which became part 
 of the Statute Law in 1571, though passed in Convocation with 
 the consent of the Crown in 1562, it is declared, "That the 
 Sacrament of the Lord's Supper was not by Christ's ordinance 
 reserved, carried about, lifted up, or worshipped." 
 
 It is true that these words contain a declaration only, and no 
 specific order ; but looking to the spirit as well as to the letter 
 of our present Prayer-Book, as well as to this Article, and to 
 the documents which illustrate the early period of the Eeforma- 
 tion, it appears to me clear that those who guided the Church 
 of England through this process of restoration to primitive 
 antiquity were of opinion that the elevation was so connected 
 with the repudiated doctrine of Transubstantiation, as dis- 
 tinguished from the Eeal Presence, that it ought not to be 
 suffered to remain. And I am confirmed in this opinion by 
 the authority of some of the greatest divines in our Church, of 
 whom I will only cite two ; one, the learned Grabe ; the other, 
 who received the thanks of Christendom for his defence of the 
 Nicene Creed, Bishop Bull. 
 
 The' former says, " But if it should be asked, of what use the 
 said form, with such annotations, can be at present, when it is 
 out of use, I answer, that it will serve, at least, to show to the 
 honour of our forefathers, the first reformers of this Church, 
 how near they, concerning the celebration of that most holy 
 Sacrament, kept to the primitive institution of it by our 
 blessed Saviour, and to the practice of His Holy Apostles and 
 the first Apostolical Churches, although they changed and 
 threw out many abuses and corruptions of this sacred ordinance 
 which were crept in afterwards, and at last established by 
 
84 Ecclesiastical jfudgments. 
 
 Popish decrees and councils of later ages. Such was, in the 
 whole, the use of an unknown tongue in this holy oifice. 
 
 " And not to mention the elevation of the consecrated elements 
 to be worshipped by priest and all people as Jesus Christ 
 Himself, both God and man in person, whom the Church of 
 Eome believeth to be substantially and wholly present under 
 the outward figures of bread and wine." — (Grabe, M. S., 
 Adversaria^ 
 
 Bishop Bull, in a portion of his answer to the Bishop of 
 Meaux,^ who had expressed his surprise that he was not a 
 Eomanist as well as a Catholic, says, " Come we now to the 
 principal part of the Christian worship, the holy sacrament of 
 the Eucharist., How lamentably hath the Church of Eome 
 vitiated the primitive institution of that most sacred rite. She 
 hath taken from the laity the blessed cup, contrary to ouj? 
 blessed Saviour's express command as expounded by the prac- 
 tice of the apostles, and of the universal church of Christ for 
 the first ten centuries, as hath been above observed. 
 
 " All the learned advocates of the Eoman Church with all 
 their sophistry, have not been able to defend her in this matter 
 from manifest sacrilege, and a violation of the very essentials 
 of the sacrament, as to the laity administered, nor can they 
 prove it so administered to be a perfect sacrament. He that 
 would see this in a short compass fully proved, and all the weak 
 evasions of the Eomanists obviated, may consult our learned 
 Bishop Davenant. Besides, the whole administration of it is 
 so clogged, so metaphorised and defaced by the" addition of 
 a multitude of ceremonies, and those some of them more be- 
 coming the stage than the table of our Lord, that if the blessed 
 apostles were alive and present at the celebration of the mass 
 in the Eoman Church they would be amazed and wonder what 
 the meaning of it was ; sure I am they would never own it to 
 be that same ordinance which they left to the churches. 
 
 '' But the worst ceremony of all is the elevation of the Host 
 to be adored by the people as very Christ himself under the 
 appearance of bread, whole Christ, Qedv6p(iyiro<i, ' God and man,' 
 while they neglect the old sursum corda, the lifting up of their 
 hearts to heaven where whole Christ indeed is." 
 
 The kind of elevation which it is charged that at one time 
 Mr. Mackonochie practised, and as to which witnesses were 
 examined before me, amounts upon the evidence to the follow- 
 ing acts, that after the consecration, both of the bread and of the 
 wine, he elevated the paten and the cup respectively for an 
 appreciable time, after which there was a pause before the ser- 
 vice was continued ; this evidence was taken at the beginning 
 1 Works, ed. Oxford, 1827, vol. ii. p. 308. 
 
Martin v. Mackonochie. , 85 
 
 of the cause ; but during the progress of the argument, at the 
 desire and with the consent of hoth counsel, Mr. Mackonochie 
 was examined hy me upon the single point, whether when the 
 elevation was made his face was or was not towards the people, 
 Mr. Mackonochie said, " I do no,t turn round to the people, 
 and I never have done so during any time of the consecration 
 prayer."^ 
 
 This elevation Mr. Mackonochie asserts, and it is not denied, 
 that he discontinued after conference with his diocesan, and 
 upon the other grounds to which I have already referred, before 
 the institution of this suit. 
 
 I am very glad that he did so, because in my judgment that 
 kind of elevation was unlawful, and I must and do admonish 
 Mr. Mackonochie not to recur to it. 
 
 His present practice is not complained of, and some elevation 
 the rubrics of the present communion service must contemplate 
 when they order as follows : " Here the priest shall take the 
 paten into his hands ;" that is, into both his hands ; subse- 
 quently to which he is ordered to break the bread. So also 
 when he is directed to take the cup into his hand there niust be 
 some elevation from the Holy Table. 
 
 Elevation ; as to Mr. Simpson. 
 
 It is alleged in the 5th article filed against Mr. Simpson in 
 the suit of Flamaiik v. Simpson, that he, Mr. Simpson, has, 
 within two years last past, in the said parish of East Teign- 
 mouth, in the public celebration of the Holy Communion, after 
 the Prayer of Consecration, raised the paten with both hands 
 over his head, and the cup in like manner. And that such 
 elevations of the paten and cup are unlawful additions to and 
 alterations of the form and order prescribed and appointed by 
 the said Book of Common Prayer and administration of the 
 Sacrament, and other rites and ceremonies of the Church, 
 and are contrary to the said statute law, constitutions, and 
 canons. 
 
 Mr. Simpson, in the 4th answer filed by him, denies that 
 he has, as in the said 5th article alleged, within two years last 
 
 * I have said " with the consent and desire of both counsel," because such 
 was the fact ; but if Mr. Mackonochie was by law an incompetent witness 
 their consent in a criminal case would not render his evidence admissible ; 
 but I venture to think that he was a competent witness, and am emboldened 
 to hold this opinion, though it be at variance with that of my predecessor, in 
 consequence of the observation made by the Lords of the Privy Council in 
 Berney v. The Lord Bishop of Norwich, a case in which judgment was deli- 
 vered on the 28th February 1867. 
 
 Vide infra, Bp. of Norwich v. Pearse. 
 
86 Ecclesiastical judgments. 
 
 past, so raised the paten with hoth hands over Ms head, and 
 the cup in like manner. But he says that he has, within the 
 time aforesaid, in the reading the Prayer of Consecration so 
 raised the paten on pronouncing the words " Do this in remem- 
 brance of me ;" and he has so raised the cup on pronouncing 
 the words " This is my blood of the New Testament which is 
 shed for you and for many, for the remission of sins." 
 
 It clearly follows, from what I have said as to Mr. Macko- 
 nochie, that the elevation practised by Mr. Simpson is unlawful, 
 and must be discontinued. 
 
 Kneeling. 
 
 With respect to the charge against Mr. Mackonochie of 
 kneeling or prostration before the Eucharist, I observed during 
 the course of the argument that no charge of adoration of the 
 Holy Sacrament itself, or of our Lord's body, being present after 
 a corporal manner in the Holy Sacrament, was contained in 
 these articles ; that if it was intended to charge Mr. Macko- 
 nochie with either kind of adoration, the rules of pleading in 
 criminal cases in this Court would have required that such 
 adoration should have been distinctly and plainly averred. 
 
 The argument before me was confined to the allegation of 
 improper or excessive kneeling ; the evidence as to the fact was 
 very far from being clear ; Mr. Mackonochie was asked no ques- 
 tion himself upon the subject. *• 
 
 Mr. Beames said, that after the elevation of the cup, Mr. Mac- 
 konochie prostrated himself on his knees with his head to the 
 ground, and then that he knelt immediately after the cup was 
 replaced, and that there was the same kneeling after the eleva- 
 tion of the paten. It was clear, however, from the evidence of 
 this witness that Mr. Mackonochie remained on his knees, and 
 that his head did not touch the ground, and that he did not really 
 prostrate himself, supposing such a gesture of devotion to be, 
 which I do not pronounce it to be, illegal. 
 
 The only other witness, the Eeverend Henry Malim, deposed 
 that the clergy, already kneeling, threw their bodies forwards, 
 and that the consecrating clerk knelt in the middle of the 
 prayer, and then went on with the prayer. But on further 
 examination he said that he was behind him all the time, that 
 he could not in fact say that he prostrated himself, but to use 
 his own words " there was a somewhat excessive bending for- 
 wards." He said he was kneeling himself at the time, and that 
 it was his own practice, when not assisting, to kneel during the 
 prayer of consecration. 
 
 It is true that the Eubric does not give precise directions 
 
Martin v. Mackonochie. 87 
 
 that the celebrant himself should kneel at the times when it 
 appears that Mr. Mackonochie does kneel ; but I am very far 
 from saying that it is not legally competent to him, as well 
 as to the other priests and to the congregation, to adopt this 
 attitude of devotion. It cannot be contended that at some 
 time or other he must not kneel during the celebration, 
 although no direction as to his kneeling at all are given by 
 the Eubric. 
 
 It is observable that at the Savoy Conference the Puritans 
 asked to have it considered "Whether it will not be fit to 
 insert a rubrick touching kneeling at the communion, that is, 
 to comply in all humility with the prayer which the minister 
 makes when he delivers the elements." 
 
 No notice of this request was taken by the bishops unless it 
 be considered to be included in their concession, " That the 
 general confession at the communion be pronounced by one 
 of the ministers, the people saying after him, all kneeling 
 humbly upon their knees." — IfJardwell's ConfereTices, pp. 275, 
 363.) 
 
 Moreover, in my opinion, if Mr. Mackonochie has committed 
 any error in this respect, it is one which should not form the 
 subject of a criminal prosecution, but belongs to the category 
 of those cases which should be referred to the Bishop, in order 
 that he may exercise thereupon his discretion, according to the 
 Eubric to which I have already referred. 
 
 Incense. 
 
 The charge against Mr. Mackonochie as to the use of in- 
 cense is twofold ; the first part relates to what is technically 
 called " censing persons and things," and is as follows : — 
 
 1th Article. — The 7th article alleges, " that the said defend- 
 ant has in his said Church, and within two years last past, to 
 wit, on Sunday the 23d December, on Christmas Day last past, 
 and on Sunday the 30th December, all in the year 1866, used 
 incense for censing persons and things in and during the cele- 
 bration of the Holy Communion, and permitted and sanctioned 
 such use of incense." 
 
 Answer. — And the defendant in answer to this article says, 
 " that he admits that he (the defendant) on the Sunday the 
 23d December, on Christmas Day last past, and on Sunday 
 the 30th December, used incense for censing persons and things 
 in and during celebration of the Holy Communion, and per- 
 mitted and sanctioned such use of incense ;" but he alleges, 
 " that ever since the 30th December 1866 he, the said defend- 
 
88 Ecclesiastical yudgments. 
 
 ant, as was well known to the promoter of this suit prior to 
 the institution thereof, desisted from so doing, and has ever 
 since discontinued the said ceremony on being apprised by the 
 opinion of counsel that such usage was of a doubtful legality, 
 and that he has never since re-introduced the said ceremony, 
 as appears in the published address of the said defendant, 
 dated January 1867, and exhibited and appended to the articles 
 brought in and admitted in the cause." 
 
 I should here observe, that an objection was taken on behalf 
 of Mr. Mackonochie that this charge of censing persons and 
 things was not specified in the decree issued under the Letters 
 of Bequest, and therefore, that according to the practice of this 
 Court, it could not be preferred in the articles. My learned 
 predecessor overruled this objection, and I thought it right, 
 whatever my opinion might be, to abide by his decision. 
 
 It appears that Mr. Mackonochie has discontinued, though 
 under protest, this particular use of incense, upon the same 
 grounds and for the same reasons that he discontinued the 
 elevation, and also before the institution of this suit. 
 
 The other part of the charge relates to another use of incense, 
 and is laid in the following words : — 
 
 9ttK Article. — The 8th article alleges, " that the said defen- 
 dant has in his said Church, and within two years last past, 
 to wit, on Sunday the 13th day of January a.d. 1867, unlaw- 
 fully used incense in and during the celebration of the Holy 
 Communion, and permitted and sanctioned such unlawful 
 use of incense." 
 
 Answer. — To this the defendant has answered, "that he admits 
 that he has in his said Church, to wit, on Sunday the 13th 
 day of January a.d. 1867, caused and allowed incense to be 
 burned during the reading of the prayer of consecration, and 
 afterwards until the time for the administration of the Com- 
 munion to the people ; and permitted and sanctioned such use 
 of incense, but that he denies that he used the same unlawfully, 
 or that such use is unlawful." 
 
 9th Article. — The 9th article charges, "that such uses of 
 incense as in the two preceding paragraphs alleged are seve- 
 rally an unlawful addition to and variation from the form and 
 order prescribed and appointed by the said Statutes, and by 
 the said Book of Common Prayer and administration of the 
 Sacraments and other rites and ceremonies of the Church, 
 and are contrary to the said Statutes, and to the 14th, 36th, 
 and 38th of the said constitutions and canons." 
 
 Answer. — The defendant in his plea has answered, " that he 
 denies that such use of incense as in the 7th and 8th articles 
 alleged are severally an unlawful addition to and' variation 
 
Martin v. Mackonochie. 89 
 
 from the form and order prescribed and appointed by the said 
 Statutes, and by the said Book of Common Prayer and admin- 
 istration of the Sacraments and other rites and ceremonies of 
 the Church, and are contrary to the said Statutes, and to the 
 14th, 36th, and 38th of the said constitutions and canons, as 
 in the 9th article alleged." 
 
 The objection is not taken to the general use of incense for 
 the purposes of ornament or fumigation of the Church, for 
 which purposes it appears to have been used at various times 
 since the Eeformation, and especially by the saintly Herbert, 
 to whom Mr. Coleridge^ referred : 
 
 . " The country parson," 'Herbert says, " hath a special care of 
 his church, that all things there be decent and befitting his 
 name by which it is called. Therefore, first, he takes order 
 that all things be in good repair, as walls plastered, windows 
 glazed, floor paved, seats whole, firm, and uniform, especially 
 that the pulpit and desk, and communion table and font, be, 
 as they ought, for those great duties that are performed in 
 them. Secondly, that the Church be swept and kept clean, 
 without dust or cobwebs, and at great festivals strewed and 
 stuck with boughs, and perfumed with incense. Thirdly, that 
 there be fit and proper texts of Scripture everywhere painted, 
 and that all the painting be grave and reverend, not with light 
 colours or foolish antics. Fourthly, that all the books ap- 
 pointed by authority be there, and those not torn or fouled, but 
 whole and clean, and well bound ; and that there be a fitting 
 and sightly communion cloth of fine linen, with a handsome 
 and seemly carpet of good and costly stuff or cloth, and all 
 kept sweet and clean in a strong and decent chest, with a 
 chalice and cover, and a stoop or flagon, and a basin for alms 
 and offerings ; besides which, he hath a poor man's box con- 
 veniently seated to receive the charity of well-minded people, 
 and to lay up treasure for the sick and needy. And aU this he 
 doth, not as out of necessity, or as putting a holiness in the 
 things, but as desiring to keep the middle way between super- 
 stition and slovenliness, and as following the Apostle's two 
 great and admirable rules in things of this nature ; the first 
 whereof is, ' Let all things be done decently and in order ; ' 
 the second, 'Let all things be done to edification.' " — (Works of 
 George Herbert, vol. ii. chap. xiii. p. 1 92. Title — " A Priest to 
 the Temple.") 
 
 The burning of frankincense, probably on account of the 
 grateful odour which it emits, and the graceful form which it 
 assumes, may be traced, as an accompaniment of prayer, thanks- 
 
 1 One of tlie counsel for Mr. Martin. 
 
90 Ecclesiastical judgments, 
 
 giving, and sacrifice, to the very earliest antiquity. All clas- 
 sical readers are aware of the jSw/ios 6vriei<s of Homer.^ and of 
 the " centum arse Sabaeo thure calentes."^ The use of incense 
 in the Jewish worship was divinely ordained.* Nadab and 
 Abihu were stricken with death because " they took either of 
 them his censer and put fire therein, and put incense thereon, 
 and offered strange fire before the Lord."* And Aaron, when 
 he " made an atonement for himself and his house," was directed 
 to " take a censer fuU of burning coals of fire from the altar of 
 the Lord." ^ Solomon provided " censers of pure gold for the 
 temple of the Lord."^ 
 
 And it was truly urged that Zechariah was burning incense, 
 according to the custom of the priest's office, in the Temple of 
 the Lord,' when he received the message from the angel ; and 
 that in many places in Holy Writ prayer is symbolised by 
 incense. It appears to have been very early in use, though the 
 exact date of it is uncertain, among the Christians ; it is men- 
 tioned in the apostolical canons, and there is no doubt that it is 
 warranted by the authority of the primitive Church. 
 
 It certainly was in use in the Church of England in the time 
 of King Edward the Sixth's first Prayer-Book. The visitation 
 articles of Cranmer as to forbidding the censing to certain 
 images, etc., supplies one of the proofs of this fact. On the 
 other hand the use of it during the celebration of the Eucharist 
 is not directly ordered in any prayer-book, canon, injunction, 
 formulary, or visitation article of the Church of England since 
 the Eeformation. Bishop Andrewes, a very high authority, 
 appears to have used it, though in what way is not clear, in his 
 own private chapel ; and probably traces of the use of it may 
 be found in the private chapels of other bishops, and in the 
 Eoyal Chapels. 
 
 It is not, however, necessarily subsidiary to the celebration of 
 the Holy Communion, and it is not to be found in the rubrics 
 of the present Prayer-Book, which describe with considerable 
 
 1 Iliad, viii. 48. 2 Virg. Mn. i. 416. 
 
 ^ Incense. — Dictionary of the Bible. " Looking upon incense in connection 
 with the other ceremonial observances of the Mosaic litual, it would rather 
 seem to be symbolical, not of prayer itself, but of that which makes prayer 
 acceptable, the intercession of Christ. In Eev. viii. 3, 4, the incense is 
 spoken of as something distinct from, though offered with, the prayers of 
 all the saints (Luke i. 10), and in Kev. v. 8 it is the golden vials, and not 
 the odours or incense, which are said to be the prayers of saints. Psalm 
 cxli. 2 at first sight appears to militate against this conclusion ; but if it be 
 argued from this passage that incense is an emblem of prayer, it must also 
 be allowed that evening sacrifice has the same symbolical meaning." 
 
 * Lev. X. 1. * Lev. xvi. 12. 
 
 8 1 Kings vii. 50. ' St. Luke i. 
 
Martin v. Mackonochie. 91 
 
 minuteness every outward act which is to be done at that 
 time. 
 
 To bring in incense at the beginning, or during the celebra- 
 tion, and remove it at the close of the celebration of the 
 Eucharist appears to me a distinct ceremony, additional and 
 not even indirectly incident to the ceremonies ordered by the 
 Book of Common Prayer.^ 
 
 Although therefore it be an ancient, innocent, and pleasing 
 custom, I am constrained to pronounce that the use of it by 
 Mr. Mackonochie in the manner specified in both charges is 
 illegal, and must be discontinued. 
 
 Mixing Water with the Wine, 
 
 Article, 10. — The 10th article against Mr. Mackonochie 
 alleges " that he, the defendant, has in his said church, and 
 within two years last past, to wit, on Sunday the 23d day of 
 December, on Christmas Day last past, on Sunday the 30th day 
 of December, all in the year of our Lord 1866, and on Sunday 
 the 13th day of January a.d. 1867, during the celebration of 
 the Holy Communion, mixed water with the wine used in the 
 administration of the Holy Communion, and permitted and 
 sanctioned such mixing, and the administration to the com- 
 municants of the wine and water so mixed." 
 
 Answer. — The defendant admits this article to be true. 
 
 Article 11. — The 11th article states "that such mixing and 
 administration of the wine and water is an unlawful addition 
 to and variation from the form and order prescribed and ap- 
 pointed by the said statutes, and by the said Book of Common 
 Prayer and administration of the sacraments, and other rites 
 and ceremonies of the Church, and is contrary to the said 
 statutes, and to the 14th, 20th, 21st, 36th, and 38th of the said 
 constitutions and canons." 
 
 An^swer. — The defendant has denied in his plea, " that such 
 mixing and administration of the wine and water, as in the said 
 10th article alleged, is an unlawful addition to and variation 
 from the form and order prescribed and appointed by the said 
 statutes, and by the said Book of Common Prayer, and adminis- 
 tration of the sacraments and other rites and ceremonies of the 
 Church, and is contrary to the said statutes, and to the 14th, 
 20th, 21st, 36th, and 38th of the said constitutions and canons, 
 as in the said 11th article alleged." 
 
 There is a similar charge against Mr. Simpson. 
 
 It appears that from a very early period — the precise date is 
 
 1 Vide infra, Sumner v. Wix. 
 
92 Ecclesiastical Judgments. 
 
 uncertain — a custom prevailed amongst Christians of adding a 
 very small quantity of water to the wine which forms one 
 element of the Blessed Sacrament. This custom, whether it 
 arose from a belief that the wine used hy the Jews at the Pass- 
 over, and hy our Lord at the Last Supper, was mingled with 
 water, or from some reason symbolical of His passion, is whoUy 
 unconnected with any Papal superstition, or any doctrine which 
 the Church of England has rejected. It has the warrant of 
 primitive antiquity and of the undivided Church in its favour. 
 
 The whole subject will be found discussed with his usual 
 perspicuity and subtilty by Thomas Aquinas in the third part 
 of his Summa Theologica, quaestio 74, " De materia Hucharistice 
 quantum ad speciem ;" which is divided into eight articles ; the 
 sixth of which is, " IJtrum sit admiscenda aqua :" the seventh, 
 " Utrum aqua sit de necessitate hujus sacramenti ;" the eighth, 
 "De quantitate aquae quae apponitur." With regard to the 
 sixth, he decides " that some water shall be mingled with the 
 wine ; with regard to the eighth, that it should be a very small 
 quantity, ' paululum aquae,' and for this reason, ' quia si tanta 
 fieret appositio aquae ut solverentur species vini, non posset 
 perfici sacramentum." And in accordance with this view, with 
 regard to the seventh, it is important to observe that he decides, 
 that " aquae admixtio non est de necessitate sacramenti." The 
 mingling of water, therefore, with the sacramental wine is 
 clearly within that category of ceremonies as to the adoption 
 of which each branch of the Church has its own liberty. 
 
 In our own Church this custom prevailed before the Eeforma- 
 tion ; and in the first order of the communion, which preceded 
 the first Prayer-Book, the rubric directed that the Priest should 
 " bless and consecrate the biggest chalice or some fair and con- 
 venient cup or cups full of wine with some water put unto it ;" 
 and the rubric to the Communion Service of the first Prayer- 
 Book directs that the minister shall " take so much bread and 
 wine as shall suf&ce for the persons appointed to receive the 
 Holy Communion" ..." and putting the vnne into the chalice 
 or else in some fair and convenient cup prepared for that use 
 (if the chalice will not serve), putting thereto a little pure 
 and clean water, and setting both the bread and wine upon the 
 altar." It is clear, therefore, that under the word "wine" might 
 be comprehended the wine and water; and in a subsequent 
 rubric at the end of the service the direction is, that the pastors 
 and curates shall find at their costs and charges "sufficient 
 bread and wine for the Holy Communion." 
 
 In all subsequent Prayer-Books the mention of water is 
 omitted ; perhaps from the omission in the second Prayer- 
 Book no argument unfavourable to the use of water could fairly 
 
Martin v. Mackonochie. 93 
 
 be drawn, as no mamial acts of consecration are prescribed in 
 that book. But in the present Prayer-Book the manual acts 
 are advisedly specified with great distinctness and particularity ; 
 exact directions are given when the priest shall take into his 
 hands the bread and the wine, when he shall place them on the 
 table, and how he shall administer them ; and I must bear in 
 mind that the compilers of our present Prayer-Book had be- 
 fore them the first Prayer-Book of Edward vi., and carefully 
 considered the rubrics which it contained ; and in my opinion 
 the legal consequence of this omission, both of the water and 
 of the act of mixing it with the wine, must be considered as a 
 prohibition of the ceremony or manual .act of mixing the water 
 with the wine during the celebration of the Eucharist. 
 
 I am by no means insensible to the very remarkable argu- 
 ment addressed to me by the Admiralty Advocate ^ with respect 
 to the analogy between the blood and water used in the proto- 
 typal service of the Passover, and the wine and water in the 
 Eucharist; and, as I have already obsei-ved, the mingling a 
 little pure water with the wine is an innocent and primitive 
 custom,^ and one which has been sanctioned by eminent autho- 
 rities in our Church, and I do not say that it is illegal to ad- 
 minister to the communicants wine in which a little water has 
 been previously mixed f my decision upon this point is, that the 
 mixing may not take place during the service, because such 
 mixing would be a ceremony designedly omitted in and there- 
 fore prohibited by the rubrics of the present Prayer-Book. 
 
 Charge against Mr. Simpson of placing the Alms upon a 
 
 Stool. 
 
 The 6th article alleges that Mr. Simpson has, within two 
 years last past, in his said parish church, on receiving the alms 
 collected at the offertory, placed the said alms (and the basin 
 containing them) on a stool instead of on the Holy or Commu- 
 nion Table, and that such placing of the alms on a stool, and 
 not on the Communion Table itself, is an unlawful alteration in 
 and deviation from the form and order prescribed and appointed 
 by the said Book of Common Prayer, &c. 
 
 Mr. Simpson, in his answer, admits that he has so placed the 
 
 1 One of the counsel for Mr. Simpson. 
 
 2 The poet Spenser thus describes his Fidelia : — 
 
 " Shee was arrayed all in lilJy white, 
 And in her right hand bore a cup of gold, 
 With wme and water fill'd up to the tight." 
 
 F. Q., Booli i. Canto 10, St. 13. 
 
 3 Vide infra Elphitistone v. Purchas, 
 
94 Ecclesiastical Judgments. 
 
 said alms, and the basin containing them, on a stool used as a 
 Credence Table instead of 'on the Holy Communion Table; 
 but he denies that he has done so otherwise than to obtain 
 more room upon the said Holy,Communion Table. His counsel 
 very properly stated that Mr. Simpson had done wrong, that he 
 regretted having done so, and submitted himself to the judg- 
 ment of the Court. 
 
 The 7th article filed against Mr. Simpson, namely, that he 
 wilfuUy omitted the word " aU " in saying the last prayer" in the 
 order of Morning and of Evening Prayer, has been abandoned, 
 and I need not again advert to it. 
 
 Lighted Candles on the Holy Table. 
 
 Article 5. —The 5th article against Mr. Mackonochie alleges 
 "that the defendant has in his said Church, and within 
 two years last past, to wit, on Sunday the 23d December, 
 on Christmas Day last past, on Sunday the 30th December, 
 all in the year of our Lord 1866, and on Sunday the 13th 
 day of January in the year of our Lord 1867, used lighted 
 candles on the Communion Table during the celebration of the 
 Holy Communion, at times when such lighted candles were not 
 wanted for the purpose of giving light, and permitted and 
 sanctioned such use of lighted candles." 
 
 The answer to this article alleges, " that such charges are, 
 in part, untruly pleaded, for the party proponent (the defend- 
 ant) alleges that on the said three Sixndays and Christmas Day, 
 in the said 5th article mentioned, the said lighted candles were 
 not placed on the Communion Table, but upon a narrow move- 
 able ledge of wood, resting on the said table, and that the said 
 candles were so placed and kept lighted, not during the celebra- 
 tion of the Holy Communion only, as falsely suggested in the 
 said 5th article, but also during the whole of the reading of the 
 Communion Service, including the Epistle and Gospel, and 
 during the singing after the reading of the Nicene Creed, and 
 during the delivery of the sermon." 
 
 Article, 6. — The 6th article alleges "that the use of such 
 lighted candles is an unlawful addition to, and variation from, 
 the form and order prescribed and appointed by the said 
 statutes, and by the said Book of Common Prayer, and admin- 
 istration of the sacraments, and other rites and ceremonies of 
 the Church, and is contrary to the said statutes, and to the 
 14th, 36th, and 38th of the said constitutions and canons." 
 
 And the defendant in answer to this, " denies that the use 
 of such lighted candles is an unlawful addition to, and variation 
 from, the form and order prescribed and appointed by the said 
 
Martin v. Mackonochie. 95 
 
 statutes, and by the said Book of Common Prayer, and admin- 
 istration of the sacraments and other rites and ceremonies of 
 the Church, and is contrary to the said statutes, and to the 1 ith, 
 36th, and 38th of the said constitutions and canons, as in the 
 said 6th article alleged." 
 
 A similar charge has been made against Mr. Simpson. 
 There is no express direction in the Eubrics, or in the Sta- 
 tutes of Uniformity, or in the Canons of 1603 for the use of 
 lights at all on the Holy Table. Nor is there, in these docu- 
 ments, any express prohibition of this ornament of divine 
 service ; and, adhering to the principle which has guided my 
 judgment in the matters of the elevation, the mixing of water 
 ■with wine, and of the incense, it becomes my duty to consider 
 whether the use of lights on the Holy Table falls under the 
 category of things indirectly, or by necessary implication, pro- 
 hibited upon the grounds which have been stated, or whether 
 it be lawful either as indirectly ordered or innocently subsidiary 
 to divine worship. But there is also another consideration pecu- 
 liar to this subject, and which must in some degree distinguish 
 the treatment of this ornament from that which the others have 
 received, namely, the important consideration whether the use 
 of lights has not been ordered by competent authority, and 
 whether that order must not, upon legal principles of construc- 
 tion, be deemed a part of the present law of the Church. 
 
 The Eubric directs, " that such ornaments of the church and 
 the minister thereof shall be retained and be in use as were in 
 this Church of England by the authority of Parliament in the 
 second year of the reign of King Edward the Sixth." The 
 Judicial Committee of the Privy Council have instructed me as 
 to the legal meaning of the word " ornament " in this Eubric.^ 
 
 ^ Their- Lordships refer to Foreellini's lexicon for the meaning of Oma- 
 mentum ; it is clearly explained in Lyndwood : 
 
 Lyndwood, p. 52. ( Walterun.) " Sint (se. Arehidiaooni) Eccleaiariim Kec- 
 tores ; " el infra. " Provideant Archidiaconi ut linteamina et alia ("") orna- 
 menta altaris, sicut deeet, (") sint honesta ; ut libros habeat ecclesia idoneos 
 ad psallendum pariter et legendum : et ad minus duplicia sacerdotalia vesti- 
 meata : et ut honor debitus divinis ofSciis in omnibus impendatur. Freeci- 
 pimus etiam ut qui altari ministrat, suppeUicio induatur." 
 
 (Gloss.) (m.) Omamenta altaris. QuaJia sunt frontilia, cortinse, et csetera 
 hujusmodi. 
 
 (n.) Sicut decet. Hsec decentia respici debet gecundnm qualitatem ecclesise 
 et ipsius facuUates ; ut scilicet secundum quod ecclesia magis abundat in 
 facultatibus, sic meliora et preciosiora habeat omamenta. 
 
 Pp. 49, 50. (Title.) De Officio Archidiaconi. Archidiaconi est prospicere 
 lit Sacramenta rite conserventur et administrentur, atque potissimum Eucha- 
 ristia et sanctum oleum sub clavibus custodiantur. Omamenta quoque 
 Ecclesiarum ab eodem visitentur, et possessiones recenseantur." 
 
 Stephanus. "Habeant etiam Archidiaconi in scriptis redacta omnia orna- 
 menta ('), et utensilia ("), Ecclesiarum. Vestes quoque et libros, quse sin- 
 
9^ Ecclesiastical judgments. 
 
 Their Lordships say as follows : " All the several articles used 
 in the performance of services and rites of the Church are 
 ' ornaments.' Vestments, books, cloths, chalices, and patens are 
 amongst Church ornaments ; a long list of them wiU be found 
 extracted from Lyndwood in Dr. Phillimore's edition of Burn's 
 Ecclesiastical Law (vol. i. pp. 375, 6, 7).^ In modern times 
 organs and bells are held to fall under this denomination." 
 Their Lordships go on to say, and I invite particular attention 
 to their language, " When reference is made to the first Prayer- 
 Book of Edward the Sixth, with this explanation of the term 
 ' ornaments ' no difficulty wiU be found in discovering, amongst 
 the articles of which the use is there enjoined, ornaments of the 
 Church as well as ornaments of the ministers. Besides the 
 vestments differing in the different services, the rubric provides 
 for the use of an English BiWe, the New Prayer-Book, a poor 
 man's box, a chalice, a corporas, a paten, a bell, and some other 
 things." " That these articles were included in the term ' orna- 
 ments of the Church ' at the period in question is clear from 
 two documents nearly contemporaneous, one before and the 
 other after the establishment of the first Prayer-Book. 
 
 " In a letter of the council to Cranmer, dated the 30th April 
 1548, to be found in Strype's Memorials of Cranmer, vol. ii. 
 p. 90, they complain of the conduct of certain churchwardens, 
 who sent away their chalices, crosses of silver, bells, and other 
 ornaments of the Church; and in a commission in 1552, 1 
 Card. Doc. Ann., p. 112, No. xxvii. (Ed. 1844), the commis- 
 sioners are enjoined to leave 'in every church or chapel of 
 common resort one, two, or more chalices or cups, according to 
 the multitude of people in every such church or chapel, and 
 also such other ornaments as by their discretion shall seem 
 
 gulia annia auo faciant conspectui prseaentari, ut videaut quse f uenmt adjecta 
 per diligentiam peraonarum ; vel qu» tempore mtermedio per ipsarum mali- 
 tiam vel imperitiam deperierunt." 
 
 (Gloaa.) (') Ornamenta. Quse aio dicta sunt, quia eorum cultu EcclesJEe 
 ornantur et decorantur. Sunt namque ornamenta secundum Januen. decus, 
 gloria, laus, dignitas, sive preciosa vestimenta aeu jocalia, quorum cultu 
 Ecelesise decorantur. 
 
 (u.) Utensilia, i. e. ad utendum apta aive necesaaria. Hsec autem alibi 
 vocantur Cimelia, sicut legitur extra de offi. Arch. c. ea quce et 12 q. 2 Apos- 
 tolicos. Et per hsec Utensilia inteUiguntur vasa Ecclesise qusecunque, saerata 
 vel non saerata. 
 
 (GoMtitutio Domini Othonia), p. 52. " De Archidiaconis quoque atatuimua 
 ut ecclesiaa utiliter et fideliter visitent, de sacris vasia et f ) veatibua, et 
 qualiter diurnis et nocturnis officiis ecclesiae serviatur, et generaliter de tem- 
 poralibua et spiritualibus inquirendo." 
 
 (Gloss.) (e.) Vestibus. Eepete Mcri?, dictis vulgariter vestimeutis. Supple, 
 et cseteris ecclesise ornamentia. 
 
 1 PhiUim. Seeks. Law, p. 929. 
 
Martin v. Mackonochie. 97 
 
 requisite for the Divine Service in every sucli place for the 
 time.'" — {Westerton v. Liddell, Moore, pp. 157, 158.) 
 
 Edward the Sixth succeeded to the throne on January 
 28, 1546-7. His Privy Council showed an early intention of 
 carrying much further the Eeformation begun in the preceding 
 reign. For this object homilies were composed, mixed com- 
 .missions of clergy and laity were formed, with circuits assigned 
 to them and large visitatorial powers. 
 
 These royal visitations superseded and practically inhibited 
 for a time diocesan visitations. 
 
 In 1547 the Eoyal Injunctions, the subject of so much dis- 
 cussion during the course of the argument, were issued. I 
 refer to a very curious and rare edition with which I have been 
 furnished, printed in London in 1547, contemporaneously 
 therefore with the issue of the Injunctions themselves. The 
 Injunctions begin as follows : — 
 
 " The Kynges mooste royal majestie, by the advice of his 
 most dere uncle the Duke of Somerset, Lorde Protector of all 
 his realmes, dominions, and subjectes, and governor of his most 
 roiall persone, and the residence of hys moste honorable coun- 
 sail, intendyng the advauncemet of the true honor of Almighty 
 God, the suppression of idolatrie, and supersticio, throughout 
 all hys realms of dominions, and to plant true religion, to the 
 exterpacio of all hipocrisy, enormities, and abuses, as to hys 
 duety apperteiaeth ; doth minister unto his loving subjectes, 
 these godly injunctios, hereafter folowig : Whereof, parte were 
 gene unto theim heretofore, by authoritie of his most derely 
 beloved father, Kyng Henry the eighte, of most famous memorie 
 and parte are nowe ministered and geven by hys Majesty ; all 
 which injunctions, his highness wiHeth and comafideth his saied 
 louing subjectes, by his supreme aucthoritie, obediently to 
 receoue, and truely to observe and kepe, euery ma in their 
 offices, degrees, and states, as they will avoyde his displeasure, 
 and the paynes in the same injunccions hereafter expressed." 
 
 The reference to the Injunctions issued by Henry the Eighth 
 is important, in its bearing upon an argument presently to be 
 noticed. 
 
 I pass on to the Injunctions more immediately affecting the 
 present subject. Their general object, it will be seen, is to 
 remove all ornaments that relate to superstition or idolatry. 
 
 " Besides this, to the intent that all supersticion and hypo- 
 crisy, crept into diverse mennes hartes, may vanysh away, thei 
 shal not set furthe or extolle any images, reliques, or miracles, 
 for any supersticio or lucre, nor aUure the people be any intice- 
 mentes, to the pylgrimage of any sainct or ymage; but re- 
 provyng y same, they shaU teache, that al goodnesse, health, 
 
 G 
 
98 Ecclesiastical yudgments. 
 
 and grace, ought to be both asked and loked for only of God, 
 as of the varye author and gever of the same, and of none 
 other." 
 
 Item. — " That they, the persones above rehersed, shall make 
 or cause to bee made in their churches, and every other cure 
 thai have, one sermo, every quarter of the yere at the least, 
 wherein they shall purely and syncerely, declare the woorde of 
 God ; and in the same, exhorte their hearers to the woorkes of 
 faythe, mercye, and charitie, specially prescribed and com- 
 manded in scripture, and that woorkes devised by mannes 
 phatasies, besides scripture, as wanderyng to pilgrimages, 
 offeiying of money, cadelles or tapers, to reliques, or images, or 
 kissying and lickying of the , same, praying upon beades, or 
 such lyke supersticio, have not only no promise of reward in 
 scripture, for doyng of the : but cotrariwise, great threates and 
 malediccios of God, for that they bee thynges, tendyng to 
 idolatry and supersticio, which, of al other offences, God 
 Almighty doth most detest and abhorre for that the same 
 diminishe moste his honor and glory." 
 
 The next Injunction is the one which affects the question as 
 to the lawfulness of these lights. 
 
 lUm. — " That suche images as thei knowe in any of their 
 cures, to bee, or have been so abused with pilgrimage or 
 oflfrynges, of any thyng made thereunto, or shal bee hereafter 
 censed unto, thei (and none other private persones) shall for 
 the advoyding of that moste detestable offence of idolotrie, 
 furthewith take downe or cause to bee taken downe, and 
 destroye the same, and shall suffre from hensefurthe, no torches, 
 nor candelles, tapers, or images of ware, to bee sette afore any 
 image or picture, but onely twoo lights upon the high aulter, 
 before the Sacrament, whiche, for the significacion, that Christe 
 is the very true light of the worlde, thei shall suffre to remain 
 still : admonishyng their parishioners that images serve for no 
 other purpose, but to bee a remembrance, whereby, man male 
 bee admonished of the holy lifes and conversacion of them 
 that the said images doo represent ; whiche images, if they doo 
 abuse for any other intent, they commit idolotrie in the same, 
 to greate daunger of their soules." 
 
 A variety of questions arise upon the subject of these Injunc- 
 tions ; but they may be all, I think, comprehended under the 
 following heads :— - 
 
 1. Were these Injunctions lawfully issued under statutable 
 
 authority ? 
 
 2. If so, were they subsequently abrogated by statutable 
 
 authority ? 
 It could not have been accurately said, and it has very pro- 
 
Martin v. Mackonochie. 99 
 
 perly not been contended by the counsel for the promoter that 
 any judgment has been given upon this subject which is bind- 
 ing upon this Court. 
 
 In the Saint Barnabas case, the use of lighted candles during 
 the Holy Communion Service, an opinion, which will presently 
 be considered, adverse to their legality was expressed by the 
 learned Judge of the Consistory of London, but during the 
 progress of the suit it appeared that as a matter of fact the 
 candles were not lighted as alleged, and no decree was made by 
 the Court. The legality of lighted candles on the Holy Table 
 therefore was not directly submitted to the judgment of the 
 Court of Arches or of the Privy Council ; but it will be seen 
 that the latter tribunal expressed an opinion both in favour of 
 the lawfulness of the Injunctions and of the Candlesticks upon 
 the Holy Table. 
 
 First, let me consider whether these Injunctions were lawfully 
 issued ? The question is one of no mean difficulty. To define 
 with certainty the exact legal limits within which the Crown 
 might in the time of Edward vi. exercise its prerogative in rela- 
 tion to the Church, is a task which no one cognisant of the 
 difficulties which surround the subject would willingly under- 
 take. 
 
 It is said in the books that the Crown has power to visit, 
 reform, and correct abuses in the Church by the ancient law^ of 
 the realm. What this power was, however, is very uncertain. 
 When Henry the Eighth procured from Parliament the title of 
 Supreme Head of the Church (though in fact, whatever servile 
 courtiers might say, be did but regain the position from which 
 the Pope had expelled the Crown), he no doubt asserted that 
 this authority required no sanction of Parliament for its exer- 
 cise, but it is remarkable that he obtained that sanction as well 
 as that of Convocation for almost every important act which he 
 did to the Church. 
 
 In truth our Thirty-seventh Article of the Civil Magistrates 
 fixes the bounds of the Eoyal authority in matters of religion: — 
 
 " The Queen's Majesty hath the chief power in this realm of 
 England, and other her dominions, unto whom the chief govern- 
 ment of all estates of this realm, whether they be ecclesiastical 
 or civil, in all causes doth appertain, and is not, nor ought to 
 be, subject to any foreign jurisdiction. 
 
 1 2 Roll. Abr. 230. Prerogative le Eoy. (E.) Quel pergon visitera. 
 
 (1.) Per I'auneient Ley de Realm le Roy ad power de visit reform et correct 
 
 toutea abuses et enormities en VEglise (Daties 1, Proxyes, 4). 
 (2.) Per le statute temps H. 8. le corone fuit lorsque remit et restore a son 
 
 auncient jurisdiction que fuit usurp per I'Evesque de Rome (Davis 1, 
 
 Proxyes 4). , 
 
lOO Ecclesiastical yttdgments. 
 
 " "When we attribute to the Queen's Majesty the chief govern- 
 ment, by which titles we understand the minds of some slan- 
 derous folks to be offended, we give not to our princes the 
 ministering either of God's word or of the Sacraments, the 
 which thing the Injunctions also lately set forth by Elizabeth 
 our Queen do most plainly testify, but that only prerogative 
 which we see to have been given always to all godly Princes in 
 Holy Scripture by God Himself; that 'is, that they should rule 
 all estates and degrees committed to their charge by God, 
 whether they be ecclesiastical or temporal, and restrain with 
 the civil sword the stubborn and evil doers. The Bishop of 
 Eome hath no jurisdiction in this realm of England."^ 
 
 When Cranmer was persecuted under the form of a trial at 
 Oxford, Dr. Martin, who appeared as his judge, asked him (I 
 take the account from the last volume of the Dean of Chichester's 
 work), " Who was the supreme head of the Church of England ?" 
 The Archbishop was glad to have an opportunity of explaining 
 his former rather strong assertions on this point. " Marry," he 
 said, " Christ is head of this member, as He is of the whole of the 
 body — of the universal Church." " Why," quoth Dr. Martin, 
 "you made King Henry the Eighth supreme head of the 
 Church." " Tea," said the Archbishop, " of all the people of 
 England, as well ecclesiastical as temporal." " And not of the 
 Church ?" asked Martin. " No," said Cranmer, "for Christ is 
 only head of this Church, and of the faith and religion of the 
 same. The king is head and governor of his people, which are 
 the visible Church." "What!" quoth Martin, "you never 
 durst to tell the King so?" "Yes, that I durst," quoth he, 
 " and did, in the publication of his style ; wherein Tie was named 
 supreme head of the Church there was never other thiiig meant." — 
 {Hook, Lives of the Archbishops of Canterbury, vol. ii. (N. S.) 
 p. 373.) 
 
 It is, to say the least, extremely doubtful whether, at any period 
 of our constitution, the Crown had power to issue, of its own 
 authority. Injunctions of this kind. 
 
 1 The Abb^ Fleury quite nnderstood this position {Disc, sur VHist. Eccles., 
 Dissert, ix.) : — " Le titre de Chef de VEglise que les Anglicans ont doun6 k leur 
 Eoi, ne doit pas Stre pris a la rigueur. En lui donnant cette qualite, il ne 
 pr^tendent point qu'il puisse exercer les fonctions ecclfesiastiques, donner la 
 mission aux EvSques et aux PrStres, administrer les saoremens, en un mot 
 qu'il soit le prinoipe de la puissance spiritnelle. II ne lui donne point d'autre 
 autorit^ dans lea matieres de la religion, que celle de faire des lois pour 
 maintenir le bon ordre de I'Eglise, de soutenir et appuyer ceUea qui sent 
 f aites par les Ev§ques, d'assembler des conciles, de contenir les eecl^siastiques 
 comme des laiques dans la soumission due au Prince, k I'exclusion de toute 
 puissance ^trangfere." 
 
 See too the &st canon of 1603. 
 
Martin v. Mackonochie. loi 
 
 It becomes, therefore, important to consider the language of 
 what is called the Supremacy Act. 
 
 The Statute of 26 Henry viii. cap. 1, was passed a.d. 1534, 
 and enacts as follows : 
 
 "Albeit the King's Majesty justly and rightfully is and 
 ought to be the supreme head of the Church of England, and so 
 is recognised by the clergy of this realm in the convocations, 
 yet nevertheless for corroboration and confirmation thereof, and, 
 for increase of virtue in Christ's religion within this realm of 
 England, and to repress and extirp all errors, heresies, and other 
 enormities and abuses heretofore v^ed in the same, be it enacted 
 by authority of this present Parliament, that the King our 
 Sovereign Lord, his heirs and successors, kings of this realm, 
 shall be taken, accepted, and reputed the only supreme head 
 on earth of the Church of England, called Anglicana Ucclesia, 
 (2.) and shall have and enjoy, annexed and united to the 
 imperial crown of this realm, as well the title and style thereof, 
 as all honours, dignities, preheminences, jurisdictions, privileges, 
 authorities, immunities, profits, and commodities to the said 
 dignity of supreme head of the same Church belonging and 
 appertaining ; (3.) and that our said Sovereign Lord, his heirs 
 and successors, kings of this realm, shall have full power 
 and authority from time to time to visit, repress, redress, 
 reform, order, connect, restrain, and amend all such errors, 
 heresies, abuses, offences, contempts, and enormities, whatsoever 
 they be, which by any manner, spiritual authority, or jurisdic- 
 tion, ought or may lawfully be reformed, repressed, ordered, 
 redressed, corrected, restrained, or amended, most to the plea- 
 sure of Almighty God, the increase of virtue in Christ's religion, 
 and for the conservation of the peace, unity, and tranquillity of 
 this realm, any usage, custom, foreign laws, foreign authority, 
 prescription, or any other thing or things to the contrary hereof 
 notwithstanding. " 
 
 There is no doubt that under the authority of this Statute 
 the three Eoyal Injunctions in the years 1536 and 1538 were 
 issued. The Statute of 31 Henry viii., cap. 8, intituled " An 
 Act that Proclamations made by the King shall be obeyed," 
 commonly called the Proclamation Act, was not passed tiU. the 
 year 1539. — (Sirype's Memorials, 1 pt. i. 494-7.) 
 
 Strype remarks " that these last injunctions were given out 
 by reason of the negligent observation of the former, which the 
 clergy. took little heed to." 
 
 •There is no reason for surprise, therefore, in finding some of 
 them repeated in the next reign (see p. 496 in fine), such 
 especially as that which orders the ministers to preach against 
 " offering candles and tapers to relicks." 
 
102 Ecclesiastical y^idgments. 
 
 It has been argued by Mr. Stephens,^ adopting the opinion 
 of Sir John Dodson, that this statute, as well as every statute 
 "relating to doctrine or other matters of religion," has been 
 repealed by 1 Edward vi. cap. 12, passed in the year 1547. 
 The proposition appeared to me at the time, having regard to 
 the necessary consequences flowing from it, to be of an. alarming 
 character ; and, after very mature deliberation, I have arrived 
 at the conclusion that it cannot be sustained. The section 
 which it is alleged possesses this great power of abrogation and 
 repeal (section 2), is as follows : — " And allso be it enacted by 
 thauctoritie aforesaide, that all Actes of Plament and Estatutes 
 towchinge mencyoninge or in anny wise concernyDge religion 
 or opinyons, that is to saie aswell the Statute made in the first 
 yere of the reigne of the King's noble progenitor Kinge Eicharde 
 the Second, and the Statute made in the second yere of the 
 reigne of King Henry the Eifthe, and the Statute allso made 
 in the xxv*^ yere of the reigne of Kinge Henry theight con- 
 cerniage punishment and reformacon of Heretykes and Lolardes, 
 and everie provision therein conteyned, and the Statute made 
 for the abolishment of diversitie of opinions in certaine artycles 
 concernynge Christian Eeligion comonlie called the Sixe 
 Articles, made in the Plament begonne at Westmestre the 
 xxviij**" dale of Apryll in the xxxj'^ yere of the reigne of the 
 moste noble and victorious Prynce of moste famous memorie 
 Kinge Henry theight, father to our saide moste drad Soveraigne 
 Lorde the Kinge that now is, and allso the Acte of Plament and 
 Statute made at the Plament begooune at Westmestre the xvj 
 daye of January e in the xxxiij*^ yere of the reigne of the saide 
 late King Henry theight, and after that proroged unto the 
 xxij* daye of Januarye in the xxxiiij yere of the reigne of the 
 saide late King Henry theight, touchinge, mentioninge, or in 
 anny wise concerninge bookes of the Old and New Testament 
 in Englishe, and the pryntinge, utteringe, selling, giving, or 
 delivering of bookes or writings, and reteyninge of Englishe 
 bookes or writings, and reading, preaching, teaching, or ex- 
 pownding of Scripture, or in anny wise touching, mentionynge, 
 or concerninge anny of the same matters : And allso one other 
 Statute made in the Plament holden at Westmestre in the 
 XXXV* yere of the reigne of the saide late King Henry theight, 
 concerninge the qualificacon of the Statute of Sixe Articles, and 
 all and everie other Acte or Acts of Plament concerninge doc- 
 tryne and matters of religion, and all and everie braunche, 
 artycle, sentence, and matter, paynes, and forfaitures conteyned, 
 mentioned, or in anny wise declared in anny of the same Acts of 
 
 * One of the counsel for Mr. Martin. 
 
Martin v. Mackonochie. 103 
 
 tlament or Estatutes, shall from hensfurthe be repealed and 
 utterlie voyde, and of none effecte." 
 
 It was truly observed by Mr. Hannen^ that the object of 
 this statute is to repeal laws which inflicted severe punish- 
 ments and penalties, imprisonment, fine, and death, on account 
 of opinions entertained "concerning doctrine or matters of 
 religion," such as had been enforced in the reigns of Eichard 11., 
 Henry v., and Henry viii., against heretics of various kinds. 
 
 If the wider signification which has been contended for be 
 given to this statute, it would in truth repeal the principal 
 ift^tutes enacted during the reign of Henry viii. for establishing 
 the independence of the Church of England. 
 
 It will be difficult to maintain that the statute against the 
 payment of annates (23 Henry viii. c. 20), the restraint of 
 appeals (24 Henry viii. c. 12), and even the Act of Supremacy 
 (25 Henry viii. c. 19), would not faU under the category of 
 enactments concerning " doctrine or matters of religion ;" but in 
 truth the number of statutes which this construction would 
 repeal might amount to forty-two, and certainly would include 
 a great many of grave importance.^ I remember that Sir W. 
 Maule (one of the members of the Judicial Committee) ob- 
 served, " that if there were anything in Magna Charta about 
 religion, it would on this construction be repealed." 
 
 I am of opinion that the operation of this statute of 
 Edward vi. must be confined within the limits which I have 
 stated, and that it has not repealed any power to issue Eoyal 
 Injunctions which Henry viii. derived either from the Supre- 
 macy or the Proclamation Statute. 
 
 The legal authority of these Injunctions of Edward vr. was 
 discussed in the case of Westerton v. Idddell. The judge of 
 the Consistory of London held that the burden of proving their 
 legal authority lay upon those who asserted it, and that the 
 burden had not been discharged, and he treated the Injunctions 
 as invalid ; and on that ground, among others, decided that the 
 " Cross " was not a lawful ornament of the Church. 
 
 The Court of Arches, however, held that Edward vi. had power 
 to issue these Injunctions under the authority of the Proclama- 
 tion Act, 31 Henry viii. cap. 8, and the learned judge decided 
 that the Cross was an Ulegal ornament because it was forbidden 
 under the name of an " Image " by these very Injunctions of 
 Edward vi. 
 
 "When the case of Westerton v. Ziddell was appealed to the 
 Judicial Committee of the Privy Council, they decided that the 
 
 ^ One of the counsel for Mr. Simpson. 
 
 2 Perry on Lawful Church Ornaments, App. pp. xi.-xxxv. 
 
I04 Ecclesiastical Judgments. 
 
 Cross was a lawful ornament, and that it was not an " Image " 
 forbidden by these Injunctions. — {Moore, 161 in fin) 
 
 In arriving at this conclusion, they certainly treated the In- 
 junctions as valid, whether or not they agreed with Sir John 
 Dodson's opinion that their validity was derived from the 
 powers conferred on the Crown by the Proclamation Act ; and 
 referring to the 28th section of these very Injunctions, they 
 say, " The section could not mean that all candlesticks should 
 be removed from Churches, for two were to be retained" 
 (namely, by the third section) " on the High Altar." — {Moore, 
 165, 166.) 
 
 If this be so, their decision is binding upon me, and the 
 general question as to the legal validity of these Injunctions 
 has been decided in the affirmative. It may be as well, how- 
 ever, to look a little more closely into this question. 
 
 It has been argued that these Injunctions were not lawfully 
 issued under that Act, because it related only to temporal and 
 not to spiritual matters, and also because the orders which it 
 prescribed for the preparation and issue of instruments under 
 its authority were indispensable conditions, and had not been 
 complied with. 
 
 Mr. Stephens, in his argument upon this subject, laid down 
 four propositions. First, if these Injunctions were issued under 
 the Proclamation Acts, nevertheless, upon the repeal of those 
 Acts iu November 1547, they were not in force by the authority 
 of Parliament in the second year of Edward vi. Secondly, ii 
 they were intended to be issued under the Proclamation Acts 
 of Henry viii., they were not issued in accordance with their 
 provisions, (1.) because there is no time limited during which 
 the Injunctions were to continue in force; (2.) because the 
 copies of those Injunctions which were printed and circulated 
 were not signed by thirteen members of the King's Council, 
 as required by 31 Henry viii. cap. 8, and there is no evidence 
 of their having been proclaimed in accordance with the third 
 section of that Statute. Thirdly, that instead of the punish- 
 ment by fine and imprisonment which the Council, under 
 section 4 of 31 Henry viii. cap. 8, were empowered to inflict, 
 the Injunctions of 1547 only threatened ecclesiastical punish- 
 ments, which the Council had no power to inflict under the 
 Proclamation Act ; and those ecclesiastical punishments are to 
 be inflicted by the ordinary and not by the thirteen members of 
 the King's Council. Fourthly, it appears from the earliest 
 historians of the Eeformation, Fox, Fuller, and Heylin, that the 
 Injunctions were not issued under the Proclamation Act, but 
 by virtue of the King's supremacy. 
 
 From the first of these propositions I have already expressed 
 
Martin v, Mackonochie. 105 
 
 my dissent. With regard to the second, I think there is every 
 presumption of law, and that a court of justice must, after this 
 distance of time, act upon that presumption, that these Injunc- 
 tions were signed by the requisite number of members required 
 by this statute, and the absence of a specified time during 
 which the Injunctions were to be in force would not, in my 
 opinion, invalidate their validity. As to the objection that 
 they were not duly proclaimed in the market-place by the 
 Sheriff, the clause which requires this seems to me directory 
 only, and to whatever penalty non-compliance with it might 
 render the Sheriff amenable, such non-compliance would not 
 invalidate the Injunctions. The contrary position was, indeed, 
 maintained by Bishop Gardiner ^ when he was imprisoned for 
 disobedience to these Injunctions, which he considered to have 
 been issued under the Proclamation Act. It is remarkable, 
 however, that he does not dispute the power of the Crown to 
 issue the Injunctions, nor that the proper number of counsellors 
 had not signed the instrument, but maintains that he ought 
 not to be imprisoned by virtue of the Proclamation Act ; and 
 it might be that the Injunctions were valid under the 
 " Supremacy Act," but that the additional power of secular 
 punishmeiit given by the Proclamation Act could not be put 
 in force against him, and that he was only liable to ecclesiastical 
 punishment under the Injunctions. This was probably the 
 opinion of Fox, FuUer, and Heylin, to whom Mr. Stephens 
 referred in his fourth proposition. 
 
 I have made these observations upon the Proclamation Act 
 out of deference to the argument which was addressed to me ; 
 but after all, whether these observations are well founded or 
 not is of small moment, because it seems to me impossible to 
 doubt that these Injunctions were recognised by the Legisla- 
 ture, not only because they would derive validity from the 
 Supremacy Act, but also because they are specially recognised 
 in the first Prayer-Book, which is part of the first Statute of 
 Uniformity, in the following words : " Upon Wednesdays and 
 Fridays the English Litany shall be said or sung in all places 
 after such form as is appointed by the King's Majesty's Injunc- 
 tions, or as is or shall be otherwise appointed by His High- 
 ness." — {Liturgical Services, p. 97 : Rubric after the Communion 
 Service^ 
 
 I should mention that in the year 1548-49 the Visitation 
 Articles for the diocese of Canterbury in the second yea,r of 
 Edward vi. repeat this Injunction in the following inquiry : 
 "Wliether they have not ... . destroyed in their churches, 
 chapels, and houses all images, all shrines, coverings of shrines, 
 1 Collier's Eccl. Hist., vol. v. p. 199. 
 
to6 Ecclesiastical yudgments. 
 
 all tables, candlesticks, trindles or rolls of wax, pictures, paint- 
 ings, a%d all other monuments of feigned, miracles, pilgrimages, 
 idolatry, and superstition, so that there remain no memory of 
 the same in walls, glass windows, or elsewhere ; " and also the 
 inquiry: "Whether they suffer any torches, candles, tapers, 
 or any other lights to be in your churches, lut only two lights 
 upon the high altar!' — (Gardwell, Doc. Ann. vol. i. pp. 50-51.) 
 
 Before I leave this subject let me observe that I cannot find 
 that the legal authority of these Injunctions jser se was ever 
 seriously questioned before the judgment of Dr. Lushington in 
 Westerton v. Liddell. Nor am I aware of any statute, — none 
 has been cited to me, — by which they have been deprived of 
 their original authority. There were many occasions on which 
 those who were adverse to them would gladly have impugned 
 their original validity, and there was no lack of learned ad- 
 visers versed in legal and constitutional lore to have prompted 
 or maintained such a proposition. 
 
 In the interval between 1547 and 1549 no objections what- 
 ever appear to have been taken to these injunctions ; but in 
 that year a paper appears, the authority of which is extremely 
 questionable ; it was unsigned, and the author is unknown : 
 it is headed " Articles to be followed and observed according 
 to the King's Majesty's Injunctions and Proceedings ; " and 
 the second of these articles forbade, among a variety of other 
 things, " setting any light upon the Lord's board at any time." — 
 (Card. Doc. Ann. vol. i. 75.) 
 
 It is clear, however, that these Articles (perhaps Visitation 
 Articles, and only binding, like those of Eidley in 1.550, if at 
 all, in a particular diocese) cannot affect the question of 
 whether lights were an ornament " in use in this Church of 
 England by authority of Parliament in the second year of the 
 reign of King Edward the Sixth." 
 
 Here I must notice two remarkable letters which throw the 
 light of contemporary history on this subject; the first is a 
 letter written by Martin Bucer and Paul Fagius to the ministers 
 at Strasburg (Original Letters published by the Parker Society, 
 p. 535); it is dated April 26, 1549. "We yesterday waited 
 upon the Archbishop of Canterbury, that most benevolent and 
 kind father of the Churches, who receives and entertains us as 
 brethren, not as dependants. The cause of religion as far as 
 appertains to the establishment of doctrines and the definition 
 of rites is pretty near what could be wished." 
 
 " As soon as the description of the ceremonies now in use 
 shall have been translated into Latin we wiU send it to you. 
 We hear that some concessions have been made both to a 
 respect for antiquity and to the infirmity of the present age, 
 
Martin v. Mackonochie. 1 07 
 
 such, for instance, as the vestments commonly used in the 
 Sacrament of the Eucharist and the Mse of candles, so also in 
 regard to the commemoration of the dead and the use of chrism, 
 for we know not to what extent or in what sort it prevails. 
 They afBrm there is no superstition in these things, and that 
 they are only to he retained for a time, lest the people, not 
 having yet learned Christ, should be deterred by too extensive 
 innovations from embracing His religion, and that rather they 
 may be won over." 
 
 The second letter is from John Hooper to Henry BuUinger, 
 7th December 1549 {Original Ze^fers, Parker Society, page 71); 
 it is, " The altars are here in many churches changed into 
 tables. The public celebration of the Lord's Supper is very 
 far from the order and institution of our Lord. Although it is 
 administered in both kinds, yet in some places it is celebrated 
 three times a day. Where they used heretofore to celebrate 
 in the morning the Mass of the Apostles, they have now the 
 Communion of the Apostles ; where they had the Mass of the 
 Blessed .Virgin, they have now the Commimion, which they 
 call the Communion of the Virgin; where they had the 
 principal or High Mass, they now have, as they call it, the 
 High Communion. They still retain their vestments and the 
 candles hefore the altars." 
 
 Surely during the reign of Elizabeth the legal invalidity of 
 these Injunctions would have been urged by those who were 
 adverse to the use of lights. 
 
 Bishop Cox, writing to Gualter on February 12, 1571, says 
 of the Queen, that she "has always been so exceedingly 
 scrupulous in deviating even in the slightest degree from the 
 laws prescribed." — {Zurich Letters, 1st series, No. xciv., p. 234.) 
 And it is an admitted fact that the two lights were used in her 
 chapel at the celebration of the Holy Communion. It is no 
 less certain that many of her counsellors, temporal and spiritual, 
 pressed her to discontinue the use of these lights, an object 
 they were most anxious to effect, but in no one single instance 
 did they ever allege to Her Majesty that the burning of these 
 lights upon the Holy Table was contrary to the law. I say 
 this with some confidence, not only because I have been unable 
 to find any instance myself, but because the leading counsel 
 for the promoter, whose industry and whose acquaintance with 
 these subjects no one will gainsay, having been so good, in 
 compliance with my request, as to make search into the 
 authorities upon this point, was unable to find that any such 
 argument had ever been adduced. 
 
 The lawfulness of placing these two lights upon the Holy 
 Table appears to me established by these Injunctions, unless 
 
io8 Ecclesiastical judgments. 
 
 they are, as has been contended, by necessary implication 
 abolished, inasmuch as they are significant of a Papal super- 
 stition, which was rejected by the Church at the time of the 
 Eeformation. 
 
 To this argument there are various answers : 
 
 First. These lights, in their original institution, were not 
 significant of any rejected Papal sijperstition, but of the 
 fundamental truth of Christianity, namely, the light of the 
 Gospel. The origin of them in the canon law I will presently 
 refer to. 
 
 Secondly. They were suffered to remain because of their 
 strictly evangelical character; they were for the honour of 
 Christ, not of the Blessed Virgin or of Saints, as lights on bye 
 altars might be. 
 
 About the year 376 (a.d.) Vigilantius spoke with derision of 
 the practice of Christians to burn candles during Divine Service 
 at mid-day. Saint Jerome wrote a defence of the Church, and 
 of this practice : 
 
 " Non diffiteor (he says) omnes nos, qui in Christo credimus, 
 de idololatrise errore venisse, no enim nascimur, sed renascimur 
 Christiani, et quia quondam colebamus idola, nunc Deum colere 
 no debemus, ne simili eum videamur cum idolis honore vene- 
 rari ? Illud fiebat idolis, et iccirco detestandum est ; hoc fit 
 martyribus, et iccirco recipiendum est nam et abs(]^ martyrum 
 reliquiis per totas orientis ecclesias, quando legendum est evan- 
 gelium, accenduntur luminaria, jam sole rutilante, non vtiq^ ad 
 fugandas tenebras, sed ad signum Isetitise demonstrandum, unde 
 et virgines iQse evangelicse semper habent accensas lampades 
 suas ; et ad apostolos dicitur : Sirvt lumbi vestri prcecincti, ut 
 lucernce ardentes in manibits vestris. Et de Joanne Baptista : 
 Ille erai lucerna ardens, ut lucens : ut sub typo luminis corpo- 
 ralis ilia lux ostendatur, de qua in psalterio legimus : Lucerna 
 pedibus meis verbum tuum Domine, ut lumen semitis meis." 
 — {Hieronym,. Stridoniensis " Opera." Adversus Vigila7itium, 
 t. l,p. 160, ed. Colon. 1516.) 
 
 Dr. Donne, in his defence of the use of lights in the daytime 
 during Divine service relies much upon the early Christian 
 practice : 
 
 " I would not (he says) be understood to condemn all use of 
 candles by day in Divine service, nor all churches that have or 
 do use them, for so I might condemn even the primitive church 
 in her pure and innocent state. And therefore that which Lac- 
 tantius, almost three hundred years after Christ, says of those 
 lights, and that which TertuUian, almost a hundred years before 
 Lactantius, says in reprehension thereof, must necessarily be 
 understood of the abuse and imitation of the Gentiles therein; 
 
Martin v. Mackonochie. 109 
 
 for that the thing itself was in use before either of the times I 
 think admits little question. About Lactantius' time fell the 
 Eliberitan Council, and then the use and the abuse was evident; 
 for in the 34th canon of that council it is forbidden to set up 
 candles in the churchyard ; and the reason that is added de- 
 clares the abuse . . . that the souls of the saints departed 
 should not be troubled. Now the setting up of lights could not 
 trouble them, but these lights were accompanied with supersti- 
 tious invocations, with magical incantations, and with bowlings 
 and ejaculations which they had learned from the Gentiles, and 
 with these the souls of the dead were in those times thought to 
 be affected and disquieted. It is in this ceremony of lights as 
 it is in other ceremonies ; they may be good in their institution, 
 and grow ill in their practice. So did many things which the 
 Christian church received from the Gentiles in a harmless inno- 
 cency degenerate after into as pestilent superstition there as 
 amongst the Gentiles themselves. For ceremonies which were 
 received but for the instruction and edification of the weaker 
 sort of people were made real parts of the service of God and 
 meritorious sacrifices. To those ceremonies, which were re- 
 ceived as helps to excite and awaken devotion, was attributed 
 an operation and an effectual power, even to the ceremony itself, 
 and they were not practised, as they should, significative, but 
 effective, not as things which should signify to the people higher 
 mysteries, but as things as powerful and effectual in themselves 
 as the greatest mysteries of all, the Sacraments themselves. So 
 lights were received in the primitive church to signify to the 
 people that God- the Father of Lights was otherwise present in 
 that place than in any other; and then men came to offer 
 lights by way of sacrifice to God ; and so that which was pro- 
 vidently intended for man, who indeed needed such helps, was 
 turned upon God, as though He were to be supplied by us. 
 But what then ? Because things good in their institution may 
 be depraved in their practice . . , shall therefore the people be 
 denied all ceremonies for the assistance of their weakness ? . . . 
 "We must not therefore be hasty in condemning particular cere- 
 monies, for in so doing, in this ceremony of lights, we may con- 
 demn the primitive chxirch that did use them, and we condenni 
 a great and noble part of the reformed church which doth use 
 them at this day." — {Dr. Bonne's Sermons, p. 80, fol., 1640, 
 vol. i. p. 156, 8vo.)i 
 
 1 Luther allowecl the use of these lights, see his Deudsche Messe, 2 Codex 
 Liturgicus, p. 97. 
 
 Des SmiMgsfur die leyen. ib. p. 108. 
 Da lassen wyr die Messegewand, altar, lieohter noch bleyben, bis sie alle 
 
no Ecclesiastical Judgments. 
 
 Thirdly, as to the averment that the words "before the 
 Sacrament " denote the reserved Sacrament. 
 
 The practice of reserving the Holy Sacrament, it has been 
 truly said, is unlawful according to the present law of the 
 Church of England. 
 
 In the Office for the Communion of the Sick in the Prayer- 
 Book of Edward vi. it is provided by the prefatory rubric 
 as follows : " And if the same day there be a celebration of the 
 Holy Communion in the Church, then shall the priest reserve 
 (at the open Communion) so much of the Sacrament of the 
 body and blood as shall serve the sick person, and so many as 
 shall communicate with him (if there be any) ; and so soon as 
 he conveniently may, after the open Communion ended in the 
 Church, shall go and minister the same, first, to those that are 
 appointed to communicate with the sick (if there be any), and 
 last of all to the sick person himself" — (Liturgical Services, 
 ed. Cardwell, 1844, p. 141.) 
 
 In the present Prayer-Book it is ordered : " And if any of 
 the bread and wine remain unconsecrated, the curate shall have 
 it to his own use ; but if any remain of that which was conse- 
 crated, it shall not be carried out of the Church, but the priest, 
 a,nd such other of the communicants as he shall then call unto 
 him, shall, immediately after the Blessing, reverently eat and 
 drink the same." 
 
 The light which burnt before the reserved Sacrament was 
 generally a lamp. 
 
 werden, oeder una gesellet zu eudern, wer aber hie anders vil faren, lassen 
 wyr geschehen. 
 
 Editor's note. — Gerberus, 1. o. p. 459. " Die lichter oder waoks-keitzen, 
 die wir bey der handlung des heiligen nachtmah anziinden, sind auoh unter 
 die ceremonien zu rechnen." P. 132. — Aimh sollm die gewonlichen liechter, 
 zu den hovis, messen, und andern emptm, audi xonst des winters zur noihinft 
 gebrand werden, was aber dariiber sonst sonderliche liechter des sonderschaften 
 und gulden, oder entzeler personen verhanden, soUen abgethau, und was etwan 
 darauff gewand sol nach befelch der visitation zu besserm branch gefurt 
 werden, 
 
 Wie man die krwncken commaniciren sol. 
 
 Editor's note, p. 432.—" In deme alse de Pfarrhere solckes, alse hyr vdr 
 hir steit, mit dem volcke, unde mit dem krancken redet, let ne dorch 
 den eostes, de alle wege mit gan schal, bereiden einen disch, mit brodt 
 unde wyn, mit einem reinen doke bedecket, unde bereidet das up dat brodt 
 in der patene, den wyn in dem ketke, etc." P. 3. 563. — Multi alii libri 
 mentionem faeiunt candelarum in celehratione sacramenti accendendarum. 
 Gb. p. 487. Es sind aber die ceremoniem bey communion derer patienten 
 nicht aUenthalben einerley. An manoheu orteu werden noch 2 lichter 
 angeziindet und auf den tisch gesetzt, auch ein crucifix dazu, andere aber 
 lassen diese dinge weg, und aohten sie nicht, wie si denu auoh nicht nothig 
 seyn. 
 
Martin v. Mackonochie, 1 1 1 
 
 This light was continually turning, and therefore probably 
 oil was used, whereas these two lights were only burning 
 during the celebration. 
 
 The lights before the reserved Sacrament appear to have 
 been always of an uneven number when the light was not, as 
 it usually was, single. 
 
 The lights " before the Sacrament" in England were neces- 
 sarily, for mystical reasons, or more properly fancies, enume- 
 rated by Lyndwood, but which it is not necessary to recapitulate 
 here, made of wax. 
 
 The words " before the Sacrament" are omitted in Cranmer's 
 Visitation Articles intended to execute the Injunction, but 
 that clearly means "tempore quo raissarum solennia pera- 
 guntur," while the ceremony was being performed. The 
 candles might be lighted before the elements have been con- 
 secrated, and before the Sacrament is therefore complete, 
 " accedit verbum elemento et fit sacramentum," as Saint Augus- 
 tine says, but they are not the less burning before it when it is 
 complete. 
 
 The reserved Sacrament was not in the time when Lynd- 
 wood wrote his Commentary (in 14^0) placed upon the " High 
 Altar." It was one of the usages peculiar to the Church of 
 England to suspend the reserved Sacrament above the altar. 
 
 The account given by Lyndwood clearly shows that two wax 
 candles (the number and the quality it is important to notice) 
 ought properly to accompany every celebration of the Mass, 
 because Christ is the splendour of eternal light. 
 
 In a constitution of Archbishop Walter under the following 
 title, " Sacerdos curet, ut omnia Eucharistiae deservientia sint 
 Integra et munda, atque verba consecrationis debite pronunciet 
 nee celebret antequam matutinas primam et tertiam perlegerit, 
 nee sine clerico superpellicio induto, nee sine tunica, nee in 
 peccato mortaii," we find this order : 
 
 Lyndwood, p. 236, Walterus. — "Nullus insuper sacerdos 
 parochialis prsesumat missam celebrare, antequam matutinale 
 persolverit officium, et primam et tertiam de die. Item nullus 
 clericus permittatur ministrare in of&cio altaris, nisi indutus 
 sit superpellicio, et tempore quo missarum solennia peraguntur, 
 accendentur (n) duse candelse, vel ad minus una." 
 
 Upon this constitution the gloss of Lyndwood is as follows : 
 
 («) Buce candelce. — " Est enim a parte juris ordinatum, quod 
 sacerdos sine lumine ignis non celebret missam. (Extra eo c, 
 ulti. uM de hoc.) Si tamen faciat, nihilominus conficit, licet 
 graviter peccet, secundum Hostien. ibi, et concordant alii 
 doctores. Et nota, quod candelas in celebratione missse arsuras 
 convenit esse de cera potius quam de alia materia. Candela 
 
112 Ecclesiastical Judgments. 
 
 namque sic ardens significat ipsum Christum, qui est splendor 
 lucis ceternce!' (Extra eo c. sane.y 
 
 The Devonshire rebels, when in 1549 they demanded the 
 restoration of Eoman Catholic rites, drew up a series of 
 articles in which their grievances were stated, they said in their 
 4th article : — 
 
 " We will have the Sacrament hang over the high altar, and 
 there to be worshipped, as it was wont to be ; and they which 
 will not thereto consent, we will have them die like heretics 
 against the Holy Catholic Faith." 
 
 The answer of Cranmer is very remarkable : 
 
 " Is this the Holy Catholic Faith, that the Sacrament should 
 be hanged over the altar and worshipped ? and be they heretics 
 that will not consent thereto. . . . Innocent iii., about 1215 
 years after Christ, did ordain that the Sacrament and Chrism 
 should be kept under lock and key. But yet no motion he 
 made of hanging the Sacrament over the high altar, nor of the 
 worshipping of it. After him came Honorius in., and he added 
 further, commanding that the Sacrament should be devoutly 
 kept in a clean place, and sealed, and that the priest should 
 often teach the people reverently to bow down to the Host 
 when it is lifted up in the mass time, and when the priest 
 should carry it to the sick folks. And although this Honorius 
 added the worshipping of the Sacrament, yet he made no men- 
 tion of the hanging thereof over the high altar as your article 
 proporteth. Nor, how long after, or by what means, that 
 came first up into this realm, I think no man can tell. And 
 in Italy it is not yet used until this day." — (Strype's Cranmer, 
 App 97.) 
 
 The inference to be drawn from this letter is that the two 
 lights ordered by the Injunctions of 1547, and which Cranmer 
 had enforced by his Visitation Article in 1548, could not have 
 been placed before the reserved Sacrament, inasmuch as the 
 complaint of the rebels in 1549 is that the Sacrament was not 
 suspended over or placed upon the High Altar. It is remark- 
 able that Dr. Eock, whose knowledge as an antiquarian in the 
 matter of Church rites and ceremonies is supposed, to be con- 
 siderable (I%e Church of our Fathers, vol. iii. part ii. p. 208), 
 
 1 Unde et candela in sui compositione significat Christum propter tria : 
 componitur namque candela ex cera, lycliuo, et lumine. Sic quoque Christus 
 constat ex came virginea sine semine generatus, sicnt procedit cera ex ape 
 sine generatione vel ooitu apis. Lyohnus, qui est Candidas, significat in 
 Christo animam candore innocentias adomatam. Lumen vero significat ejus 
 divinitatem oarni unitam. De his sic dicitur Ca»<ic. 5: " Dilectus meus 
 candidus proptei' animam candidam et rubicundtis propter divinitatem fulgidam 
 Ekctus ex milibw propter camem sine peccato genitam." 
 
Martin v. Mackonochie. 1 1 3 
 
 says, " That the first wooden or stone tabernacle resting on the 
 Altar seen in this land was put up in Queen Mary's reign." 
 
 It appears from Lyndwood's gloss upon the Provincial Consti- 
 tution of John of Peccham that according to the English custom 
 the reserved Eucharist was placed in a Pyx, and the Pyx in a 
 Tahernaculum, and the Tabernaculum, instead of being placed 
 stationary as it afterwards was in conformity with later 
 Eoman usage upon the Altar, was hung up over it. And in 
 support of Dr. Eock's assertion that in Queen Mary's reign 
 the reserved Sacrament was placed upon the Altar is the in- 
 quiry of Cardinal Pole in 1557, " Whether they do burn a lamp 
 or a candle before the Sacrament ;" and referring to his Injunc- 
 tions in 1556 this would appear to have been "a tabernacle set 
 in the midst of the High Altar." 
 
 With respect to the custom of the Greek Church, Goar 
 
 " A lamp, kept perpetually burning, is suspended in such a 
 manner as to hang between the Altar and the place for the 
 Blessed Sacrament, and is regarded by the Greeks as a becoming 
 token of reverence towards the word of God inscribed within 
 the sacred volume, and the Word made flesh, Christ Jesus 
 dwelling with us, but veiled under the appearance of the 
 sacramental species." — (Goar, Euchal. GrcBC, p. 1 5 ; Hierurgia, 
 p. 507.) 
 
 I was referred by Mr. Prideaux ^ to a treatise in French upon 
 the exposition of the Holy Sacrament of the Altar. It was 
 published in 1673, and the account which the author, a Eoman 
 Catholic of course, gives of the practice as to the reserved 
 Sacrament, the importance especiaUy of haAring a lamp perpe- 
 tually burning before it, is interesting, and bears upon the 
 subject now under consideration. " Ndanmoins " (says the 
 author), " on ne se met pas en peine comment la trfes-Sainte 
 Euchariste est log^e dans les Eglises de la campagne, n'y 
 comment elle est portde aux malades, dans presque tons les 
 villages, oii elle y est port^e dans un si pauvre appareil, qu'il est 
 plutost capable d'exciter de la douleur et de I'indignation dans 
 le cceur des vdritables fiddles, que de la ddvotion et du respect. 
 La plus part de ces Eglises sont ou d^soMes, ou d&ouvertes, ou 
 sans lambris, ou sans vitres, ou sans luminaires, ou sans livres, 
 ou enfin destitutes sans ornements n^cessaires pour cfl^brer 
 dignement les saints myst^res, et les divins offices. Leurs vais- 
 seaux sacrez ne sont que d'estain, ou de cui^Tre, ou mesme de 
 plomb en quelqnes endroits ; leurs tabernacles, sont ou rompus, 
 ou difform^s, ou mal-omez ; ou enfin leurs fabriques n'ont point 
 d& reveriu pmiir entretenir une lampe toujours ardente devant la 
 
 ^ One of the counsel for Mr. Mackonochie. 
 H 
 
114 Eeclesiastical ytidgments. 
 
 SancHaire oii, repose I'Eucharistie. Et Ton fait tous les jours de 
 grandes depenses dans les villes pour rexposition fr^quente de ce 
 divin mystfere." The author regrets this expense, and continues : 
 " Ne vaudroit-il pas mieux les employer &, la decoration, ou aux 
 reparations des ^glises de la campagne, et h. I'achat des vaisseaux 
 sacrez, des livres, des meubles et des ornaments dont elles ont 
 si grand besoin ? N'a-ce pas este I'intention de Paul ill. qu'eUes 
 y fussent employees, comme on le pent voir par les paroles de 
 sa bulle que nous avons rapporteesi" — {Traite de V exposition du 
 St. Sacrament de I'Autel, ed. 1673, p. 171.) 
 
 It is surely most improbable that Cranmer, who was advanc- 
 ing tentatively in the path of reform, and who was the real 
 author of the Injunctions, should have ordered two lights to be 
 continued perpetually burning before the Eeserved Sacrament, 
 having regard to his desire to abrogate the custom of reserva- 
 tion, and also on account of the expense which the ordering 
 would have entailed upon the parishioners. 
 
 Gavanto (vol. v. p. 65), writing in Italy his Praxis Compen- 
 diaria Visitationis Upiscopalis, and describing the duties of the 
 bishop on his visitation, under the heading "De Sanctissima 
 Eucharistia," says : — 
 
 " Observet Episcopus, et Notarius describat, an sint, qualia 
 sint, quae sequuntur ;" and among these articles is to be found 
 "Basim Tabemaculi vacuam" and "Lampadem ardentem," 
 which is clearly the one lamp before the Eeserved Sacrament. 
 
 Symbolism and the worship of symbols are distinct things, 
 " is confirmat usum qui toUit abusum." 
 
 I am disposed to assent to the opinion expressed by Mr. 
 Stephens in his elaborate and useful edition of the Book of 
 Common Prayer : — 
 
 "It may, however," that learned person says, "be argued 
 that a distinction is to be taken between (1) the lights burning 
 before shrines and images, (2) the symbolical lights formerly 
 placed on the altar during the communion, and (3) those which 
 are for actual use for the decent enlightenment of the house of 
 God. The lights mentioned in Bang Edward's Injunctions are 
 not to be confounded with the lamp or cresset, a single light, 
 burning before the suspended Pyx. King Edward's mention of 
 the Sacrament appears to be merely circumstantial : tvjo lights 
 (which are known to be of wax, not one lamp) were to be on the 
 altar before the Sacrament or Pyx, ' for the signification that 
 Christ is the very true light of the world.' The Pyx was then 
 considered to contain the actual body of Christ. The removal 
 of the Pyx, in consequence of the purified doctrine of the 
 Church, did not weaken the force or propriety of the symbol, as 
 Christ is spiritually present in His own house. It is to be. 
 
Martin v. Mackonochie. 115. 
 
 remarked that Archbishop Cranmer omits the words, ' before 
 the Sacrament.'" — {Book of Common Prayer, yol. ii. p. 1120.)^ 
 
 The usages with respect to the custody of the Eeserved 
 Sacrament appear then to have been these : — 
 
 (1.) The use which Lyndwood refers to as existing in Hol- 
 land, Portugal, and other places, and which apparently 
 existed too in Italy, of keeping it in a place in the wall 
 under lock and key. 
 
 (2.) The peculiar English custom of suspending it in a Pyx in 
 a Tabemaculum over the High Altar. 
 
 (3.) Cardinal Pole's order in Queen Mary's time, that it 
 should be placed upon the Altar. 
 
 In Westerton v. Liddell, Dr. Lushington came, apparently 
 not without reluctance, to the conclusion that candlesticks 
 upon the Holy Table were lawful ornaments. 
 
 It seems to me difficult to suppose that the use of candle- 
 sticks does not bear witness to the partial retention, — no un- 
 common fact in the history of ritual observances, — of the cus- 
 tom of burning lights upon the altar, embodied in the earliest 
 usages of the Church, in the provincial constitutions of our own 
 country, and in the Injunction of 1547.^ 
 
 I should not omit to notice the argument, much referred to 
 by counsel, from the inventories made by order of the Govern- 
 ment of Edward the Sixth, in order to stop the wholesale sacri- 
 lege and plunder of the furniture and goods of parish churches 
 by those who humbly imitated the rapine which, on a large 
 scale, had been carried on by the courtiers, out of their zeal for 
 the Eeformed Eeligion. 
 
 I am not inclined to rely very much, on the one hand, upon 
 the fact that certain ornaments are proved by these inventories 
 to be de facto in existence after the second year of Edward the 
 Sixth, nor, on the other hand, that only certain of these orna- 
 ments were retained, by the commissioners who caused these 
 inventories, for the use of parish churches. 
 
 However, the fact is not to be laid wholly out of considera- 
 tion that two or three years after the date of the first Prayer- 
 Book there should be in twenty-one counties no less than 1400 
 churches which possessed each two candlesticks. Such is the 
 result, I believe, of an investigation of the inventories in the 
 Eeeord Office, which were taken in 1552, when the second 
 Prayer-Book was in course of preparation. 
 
 * Dr. Hook seems to be of the same opinion on this point. (See his Church 
 Dictionary, article "Lights.") 
 
 ^ It is true that candlesticks possess, as Archdeacon Freeman observes 
 (Riles and'Ritual, p. 76), a symbolism of their own, and that St. John saw in 
 his vision "golden candlesticks," not burning candles or lamps (St. John 
 V. 35 ; Kev. v. 8 ; viii. 3). 
 
1 1 6 Ecclesiastical yudgments. 
 
 Inasmuch, therefore, as I think that the Injunctions which 
 order these two lights were issued under statutable authority, 
 and have not been directly repealed by the like authority ; in- 
 asmuch as they are not emblematical of any rite or ceremony 
 rejected by our Church at the time of the Eeformation ; inas- 
 much as they are primitive and catholic in their origin, evan- 
 gelical in their proper symbolism, purged from all superstition 
 and novelty by the very terms of the Injunctions which ordered 
 their retention in the Church, I am of opinion that it is lawful 
 to place two lighted candles on the Holy Table during the time 
 of the Holy Communion, " for the signification that Christ is the 
 very true light of the world." 
 
 Conclusion. 
 
 These are the conclusions at which I have arrived, and this 
 is the Judgment which I am about, in formal language, to pro- 
 nounce, after a most anxious, painful, and, I may be allowed to 
 add, conscientious, however inadequate, examination of the law 
 applicable to the facts of the case. I have not been able to 
 conceal from myself that this exposition of the law may wound 
 the feelings of some, whose love for the Church of Christ is as 
 imquestionable as their loyalty to the Church of England, — 
 men who think no ornament too costly, no service too magnifi- 
 cent, for the house of .God, — capable of any act of self-denial 
 and self-sacrifice to promote these objects, — to whom it may at 
 first appear harsh and illiberal to be told that the sentence of 
 the law bids them forego any symbolical act, or incident of 
 Diviue worship, with which they have accustomed themselves 
 to associate in any way the administration of the Blessed 
 Sacrament of the Body and Blood of our Lord ; but I have good 
 hope that further and deeper consideration will convince them 
 of the truth of the proposition, which I stated at the outset of 
 my Judgment, that no matter of doctrine or faith is affected 
 by this decision, the true result of which is simply to pro- 
 nounce, that by those statutes, ordinances, and canons, which, 
 form the compact of union between the Church and the State 
 in this country, it has been determined that certain usages, 
 however in themselves innocent, laudable, and primitive, shall, 
 for the sake of general peace and harmony, form no part of the 
 rites and ceremonies of the Church of England. 
 
 In Westerfon v. Liddell the Privy Council said, " Their Lord- 
 ships are not disposed in any case to restrict within narrower 
 limits than the law has imposed, the discretion which within 
 those limits is justly allowed to congregations by the rules both 
 of the Ecclesiastical and the Common Law Courts." 
 
Martin v. Mackonochie. 1 1 7 
 
 The basis of tlie religious establishment in this realm was, I 
 am satisfied, intended by the constitution and the law to be 
 broad, and not narrow. Within its walls there is room, if they 
 would cease from litigation, for both parties ; for that which is 
 represented by the promoter and for that which is represented 
 by the defendant ; for those whose devotion is so supported by 
 simple faith and fervent piety that they derive no aid from 
 external ceremony or ornament, and who think that these things 
 degrade and obscure religion; and for those who think with 
 Burke, that religion " should be performed, as all public solemn 
 acts are performed, in buildings, in music, in decorations, in 
 speech, in the dignity of persons according to the customs of 
 mankind taught by their nature, that is, with modest splendour 
 and unassuming state, with mild majesty and sober pomp;" 
 who sympathise with Milton the poet rather than with Milton 
 the Puritan; and who say that these accessaries of religious 
 rites, — 
 
 " . . . . dissolve them into ecstasies, 
 And bring all Heaven before their eyes." 
 
 Saint Chrysostom and Saint Augustine represented different 
 schools of religious thought ; the Primitive Church held them 
 both. Bishop Taylor and Archbishop Leighton differed as to 
 ceremonial observances, but they prayed for the good estate of 
 the same Catholic Church ; they held the same faith " in the 
 unity of spirit, in the bond of peace, and in righteousness of 
 life ;" and the English Church contained them both. 
 
 There is surely room for both the promoter and the defendant 
 in this Church of England, and I should indeed regret if, with 
 any justice, it could be said that this judgment had the slightest 
 tendency either to injure the Catholic foundations upon which 
 our Church rests, or to abridge the liberty which the law has 
 so wisely accorded to her ministers and, her congregations. 
 
 I must say a word as to costs. This is a matter to be 
 governed by the discretion of the Court, that is, by a discretion 
 judicially exercised. 
 
 In the case of Martin v. Maxkonochie, it appears that the 
 promoter is not a churchwarden, nor a resident parishioner. 
 Of the five charges brou^ against Mr. Mackonochie, in which 
 I include the excessive kneeling, upon three there have been 
 adverse decisions to Mr. Mackonochie. With respect to the 
 elevation, Mr. Mackonochie submitted the question to his 
 Ordinary, and discontinued, under his direction, the practice 
 before the institution of this suit, though, it is true, he has 
 done so under protest. 
 
 With respect to the incense, he had discontinued, though also 
 
1 1 8 Ecclesiastical judgments. 
 
 under protest, the censing of persons and things, before the 
 institution of this suit. 
 
 With respect to the excessive kneeling, I have decided that it 
 ■was a matter that ought to have been referred to the discretion 
 of the Ordinary. 
 
 With respect to the mixing water with the wine, the decision 
 is in favour of the promoter ; and with respect to tlue lights, in 
 favour of the defendant. 
 
 Taking all the circumstances into my consideration, I shaU. 
 make no order as to costs in this case. 
 
 In the other case of Flamanh v. Simpson, the circumstances 
 are materially different. Mr. Plamank is a churchwarden, and 
 Mr. Simpson does not appear to have submitted to the control 
 of his Ordinary any of the practices for wMch he has been 
 articled in this Court. Upon the question of " lights" the deci- 
 sion is in his favour) and another of the charges was abandoned 
 at the hearing. No expense has been incurred by the exami- 
 nation of any witnesses, and I think I shall, upon the whole, 
 do justice by condemning Mr. Simpson in a sum of £80 nomine 
 expensarum. 
 
 I admonish Mr. Mackonochie to abstain for the. future from 
 the use of incense, and from the mixing water with the wine, as 
 pleaded in these Articles. And I further admonish him not to 
 recur to the practices which he has abandoned under protest, 
 with respect to the elevation of the Blessed Sacrament, and the 
 censing of persons and things. 
 
 I admonish Mr. Simpson to abstain for the future from the 
 elevation of the Blessed Sacrament, from mixing water with 
 the wine, and from placing the alms upon a stool, as pleaded in 
 these Articles. 
 
THE OFFICE OF THE JUDGE PROMOTED BY 
 THE BISHOP OF WINCHESTER v. RUGG. 
 
 Where there are two churches in one benefice, it is the duty of 
 the Incumbent to perform one service in each on every 
 Sunday. 
 
 This judgment was delivered by me on. tlie 2d of 
 May 1868. The defendant, who conducted his own 
 case, appealed to the Privy CouncU, who aflfirmed my 
 judgment. The case is reported in the Law Reports, in 
 the Arches Court, 2 Admiralty and Ecclesiastical, page 
 247, in the Privy Council — 2 Privy Council Appeals, 
 page 223. 
 
 Judgment. — This, is a cause instituted in this Court by 
 reason of letters of req[uest from the Bishop of Winchester, under 
 the provisions of the Clergy Discipline Act, 3 and 4 Victoria, 
 chapter 86. The Bishop of Winchester is the promoter of the 
 office of Judge. The defendant is the Eeverend Lewis Eugg, a 
 beneficed clerk in the diocese of Winchester. The object of 
 the suit is to compel Mr. Eugg, who is the incumbent of 
 Ecchinswell-with-Sydmonton, to perform one service every 
 Sunday in the chapel of the latter benefice. Mr. Eugg ap- 
 peared by a proctor under protest to the jurisdiction of this 
 Court, and on the 26th of July brought in an Act on petition 
 in which the grounds of his protest were set forth at length. 
 An answer was filed on the part of the promoter, and a reply 
 was put in on the 20th August. The vacation then intervened. 
 On the 1 9th of December the last affidavit was filed. On the 
 5th of February the Court overruled the protest, assigned Mr. 
 Eugg to appear absolutely, and reserved the question of costs 
 until the final hearing of the cause. On the 6th of February 
 the Articles containing the charge against Mr. Eugg were filed. 
 A negative issue was given on his behalf On the 24th of 
 
1 20 Ecclesiastical Judgments. 
 
 Febraary he filed a responsive plea. On the 1 9th of March the 
 proceedings were closed. The hearing of the cause was fixed 
 for a day before Easter, but was postponed at the request of 
 Mr. Eugg, who, though appearing by a proctor, conducted his 
 case in person. The Court, having regard to the nature of the 
 case and the rights of the parishioners of Sydmonton, fixed 
 peremptorily the 1 8th of April for the hearing of the cause. Mr. 
 Eugg did not appear in person, but his proctor read a letter 
 from him desiring an indefinite postponement of the cause on 
 the ground of Mr. Eugg's illness, that gentleman having desired 
 to conduct his case in person. The Court directed Mr. Eugg's 
 proctor to remain in Court, and to take such notes as he might 
 think expedient for his client's interest, and proceeded to hear 
 the argument of the counsel for the promoter. The case was 
 then adjourned till Monday, the 27th of AprU, on which day 
 Mr. Eugg appeared in Court and argued at considerable length 
 his own cause. The counsel for the promoter made a short 
 reply, and the Court has now to pronounce judgment on the 
 case. 
 
 The second article charges, " That Lewis Eugg was and is a 
 clerk in holy orders of the United Church of England and 
 Ireland, and was on or about the 29th day of September 1852 
 lawfully licensed to be the Perpetual Curate and Incumbent 
 of the perpetual curacy and benefice of Ecchinswell-with- 
 Sydmonton, in the county of Southampton, diocese of Winches- 
 ter, and province of Canterbury, and has continued to be such 
 perpetual curate and incumbent up to the present date." 
 
 The third article charges, " That the said perpetual curacy 
 and benefice consists of two ancient parochial chapelries now 
 and for many years past known by the respective names of 
 Ecchinswell and Sydmonton, in each of which has been from 
 time out of mind a consecrated church or chapel, to wit, 
 the church or chapel of St. Lawrence, Ecchiaswell, and the 
 church or chapel of St. Mary, Sydmonton. That such ancient 
 parochial chapelries up to the 18th day of August 1852, be- 
 longed for all ecclesiastical purposes to the vicarage and parish 
 church of Kingsclere, but were separated therefrom by an 
 Order in Council bearing date the 18th day of August 1852, 
 and since that date have been and are a separate parish for 
 ecclesiastical purposes, and a perpetual curacy and benefice by 
 the name or style of the Perpetual Curacy of Ecchinswell-with- 
 Sydmonton." 
 
 The fifth article charges, "That the said Lewis Eugg has 
 within two years last past offended against the said common 
 law ecclesiastical and the said statute by having omitted to 
 perform or to provide for the performance of public Divine 
 
The Bishop of Winchester v. Rtigg. 121 
 
 worship, as prescribed in the. Book of Common Prayer and 
 administration of the sacraments and other rites and ceremonies, 
 according to the use of the Church of England, in the said 
 church or chapel of St. Mary, Sydmonton, on Sunday, the 12th 
 day of May ; on Sunday, the 1 9th day of May ; on Sunday, the 
 26th day of May ; and on Sunday, the 2d day of June, aU in 
 the present year of our Lord 1867." 
 
 Then the answer says this in the third paragraph : — " That 
 the said Lewis Eugg, in answer to the third paragraph of the 
 aforesaid Articles brought into this Court, alleges and propounds 
 that the building called the Church of St. Mary, Sydmonton; 
 had been in existence as a church at the date of the Order in 
 Council, mentioned in the said Articles, separating the districts 
 of Ecchinswell and Sydmonton from the parish church of 
 Kingsclere, and forming them into a separate parish for eccle- 
 siastical purposes and benefice, by the name and style of the 
 Perpetual Curacy of Ecchinswell- with-Sydmonton ; and he the 
 said Lewis Eugg further propounds that the said building, called 
 the Church of St. Mary, Sydmonton, has not been from time 
 out of mind a consecrated church or chapel, as alleged in the 
 said Articles ; and he the party proponent alleges that there 
 was formerly an unconsecrated building, or oratory, or field 
 chapel, standing in the private garden of the late Mr. William 
 KingsmUl, of Sydmonton, and that in the month of February 
 1849, the said William Kingsmill, without any faculty, caused 
 the said imconsecrated building to be pulled down, as though 
 it were his own private property, although it was appendant to 
 and belonged to the parish church of Kingsclere; at which 
 time the whole material thereof was removed, and all the 
 furniture belonging thereto was carried away. That to this 
 old building, whether it were a chapel of ease or oratory, there 
 was no endowment of tithes or glebe, or property of any kind. 
 That for the services performed in it, which were never regular, 
 only occasional, there was in ancient times some recompense 
 by means of oblations or voluntary offerings, which have long 
 ceased to be paid. That the said chapel or oratory never had 
 in it the rights of burial or of marriage, nor of sacraments, until 
 a small benefaction of twenty-five shillings was left, in 1726, 
 to be paid yearly to the minister of Kingsclere for preaching a 
 sermon and administering the sacrament of the Lord's Supper 
 on Trinity Sunday, to include the finding, on his part, of the 
 sacramental elements of bread and wine. That there was not 
 belonging to the said chapel any ground outside the walls of it, 
 but it was entirely surrounded by the private ground of the 
 owner of Sydmonton House. That at the date of the Order in 
 CouncU, in August 1852, the said field chapel had ceased to 
 
12 2 Ecclesiastical judgments. 
 
 have any existence, it having three years before been entirely 
 removed. That the said Order in Council, recognising the 
 existence of a chapel and chapel yard at Sydmonton, was 
 issued upon mistaken information at the time, as there was 
 neither chapel nor chapel yard, nor building of any kind, which 
 the law of the land or any ecclesiastical jurisdiction could take 
 notice of or recognise as either a parish church or chapel. 
 That at the time of the said Lewis Eugg's admission to the 
 incumbency of EcchinsweU-cum-Sydmonton, viz. on September 
 29, 1852, he alleges that there was but one presentative church 
 upon the benefice, viz. that of the parish church of St. Law- 
 rence, Ecchinswell. That during the whole period of his 
 immediate predecessor's incumbency, and for nearly a twelve- 
 month after his own admission, from February 1849 to May 
 1853, there had not been any public divine service performed 
 except in the aforesaid parish church of St. Lawrence, Ecchins- 
 weU-cum-Sydmonton. That the late Mr. William Kingsnull, 
 in or about the year 1853, rebuilt the aforesaid field chapel or 
 oratory, without a faculty, partly on the site of the old one, 
 without consulting, or reference to, the incumbent, the party 
 proponent. That the tower, porch, and vestry were additions, < 
 and a small transept on the north side of the ancient edifice 
 was never rebuilt. That the ancient footway and entrance by 
 the western door under the belfry or bell turret has been stopped 
 up and impeded by the erection of the tower, and a new road, 
 by a more distant and circuitous way and entrance on the 
 south side, has been made in lieu thereof, without any legal 
 sanction or any authority whatever. That the old road and 
 entrance by which alone access was obtained to the chapel is 
 now claimed by the present owner of Sydmonton House as his 
 private garden road ; and the said Lewis Eugg alleges that he 
 has at present no admission by the former way but by the 
 favour of the proprietor of the ground adjoining." 
 
 It is not necessary to consider the question whether or no, 
 previously to August 1865, the old church, which occupied the 
 site of the present church, built in 1853, had been consecrated 
 or not. The Order in Council, which dates from the 18th of 
 August 1852, severs the chapelriesof Ecchinswell and Sydmon- 
 ton from the vicarage and parish church of Kingsclere, and 
 forms them " into a separate parish for ecclesiastical purposes, 
 and a perpetual curacy and benefice, by the name or style of 
 the Perpetual Curacy of Ecchinswell-with-Sydmonton." The 
 same order recites : " that there is in each of the said chapelries 
 a church or chapel, that of Ecchinswell being nearly two miles, 
 and that of Sydmonton being about three miles distant from 
 the parish church of Kingsclere." It further recites: "that 
 
The Bishop of Winchester v. Rugg. 123 
 
 eacli of the chapelries has its own churchwardens : that the 
 tithe rent-charge of Ecchinswell was commuted at £60, and 
 that of Sydmonton at £50, 8s. 6d., and that the fees of both 
 chapelries were £2." These recitals in the Order in Council 
 furnish evidence which the Court is bound to accept so far as 
 they affect the question now before it. Mr. Eugg was in Sep- 
 tember 1852 instituted as incumbent of Ecchinswell- with- 
 Sydmonton. Mr. Kingsmill, the principal owner of land in the 
 parish, rebuilt the chapel at Sydmonton in 1853. It appears 
 from the pamphlet printed by Mr. Eugg, which has been ad- 
 mitted as evidence in this cause, that for twelve yeara divine 
 service was performed by him at Sydmonton. That in 1863 he 
 had an unfortunate quarrel with Mr. Kingsmill about sittings 
 in the chapel, and Mr. Eugg says : " I was thereupon put to 
 the necessity of suspending divine service until my wishes were 
 respected." On the 5th of September 1863 he wrote to Mr. 
 Kingsmill, complaining of his conduct " in intimidating, as you 
 have done, the inmates of my house from sitting in the pew 
 which was appropriated to my household at the vestry meeting 
 held prior to the opening of my church. I think indeed," he 
 adds, " it .is high time the church should be closed, when it has 
 come to such a pass as this, coupled with the conduct which 
 has generally been characterised with so much injustice towards 
 your pastor. You cannot, I am sure, spiritually benefit by the 
 services therein performed, nor, as far as your influence is per- 
 mitted to operate, can it be otherwise than detrimental to the 
 bearing of religion on the hearts of other worshippers." The 
 Court much regrets to discover from this letter that a priest of 
 the Church of England should suppose that he was justified, on 
 account of a dispute about a pew or sitting in church with a 
 particular person, to refuse the administration of spiritual ser- 
 vices to a parish, and actually to close his church. It is clear 
 that such an act was illegal as well as wrong. The quarrel 
 seems to have been made up for a short time, for on the 7th of 
 September Mr. Eugg wrote to Mr. KiugsmiU : " I hope to 
 resume the duty at Sydmonton next Sunday, and sincerely 
 regretting as I do that any disturbance should have arisen from 
 so trivial a matter, I remain," etc. On the 1 7th of December 
 the Bishop wrote to Mr. Eugg enclosing a letter from one of 
 the churchwardens of Sydmonton, complaining of Mr. Eugg, 
 that on various Sundays there was no service at Sydmonton ; 
 that Mr. Eugg said he was not well or strong enough some- 
 times to perform service ; and the writer adds : " he says he is 
 not compelled to take the service of Sydmonton, because the 
 church was not consecrated when rebuilt." That is in 1853. 
 On the 21st of December Mr. Eugg wrote a long answer to the 
 
124 Ecclesiastical Judgments. 
 
 Bishop, in which he maintained that as the church was not 
 consecrated, he was not legally bound to perform service in it, 
 and observes that " the portion of the endowment as regards 
 Sydmonton does not amount, after the outgoings, to more than 
 £20 a year." A further correspondence ensued between Mr. 
 Eugg and the Bishop, in which the former maintained that he 
 was not bound to officiate in an uncansecrated church. Early 
 in August 1865, Mr. Eugg received notice that the Bishop in- 
 tended to consecrate the chapel. Mr. Eugg declared that he 
 would not consent to the consecration, and refused the use of 
 his key for the purpose of opening the door of the church. . 
 The Bishop, however, proceeded to perform his duty, and conse- 
 crated the church on the 17th of August 1865. Mr. Eugg main- 
 tains that this consecration had no legal effect, and admits he 
 has performed no Divine Service at Sydmonton on the days 
 laid in the Articles, and, as I understand him, for a whole year, 
 dating from the present month. There is no difficulty in de- 
 ciding that this part of Mr. Eugg's defence is untenable and 
 bad. I have no doubt at all that the church was duly and 
 legally consecrated ; that Mr. Eugg, by withholding his consent, 
 in no way affected the legal validity of the act. It is not 
 necessary that I should again advert to the Order in Council ; 
 but I listened with surprise to Mr. Eugg's assertion that Syd- 
 monton was unendowed, whereas it is plain that he derives 
 nearly as much income from it as from EcchinswelL However, 
 the question of the validity of this consecration has been deter- 
 mined by the Privy Council, whose decision is binding upon 
 me. It happened that the Consistory of Winchester granted a 
 faculty to Mr. Kingsmill for a yault under the chancel of this 
 chapel. Mr. Eugg opposed this grant, and appealed to the 
 Privy Council from the sentence of the Court of Arches con- 
 firming this grant. — {Bugg v. Kingsmill, Law Eeports, 1 Adm. 
 and Eccl. 343.) The Privy Council decided not only in express 
 terms, but by their act, so to speak, that this church was conse- 
 crated, for they granted the faculty under conditions to Mr. 
 Kingsmill. — (See Law Reports, 2 P. C. 59.) Those conditions 
 related to a further consecration of ground adjoining the chapel. 
 It is needless, however, to say to any person acquainted with 
 ecclesiastical law, that a faculty cannot be granted for a vault 
 in an unconsecrated building. 
 
 As to the objection raised by Mr. Eugg, that there is no 
 right of way to this chapel, and that therefore he is excused 
 from performing service therein — to pass over the fact that 
 this objection is not sustained by any evidence, but is clearly an 
 after-thought to support Mr. Eugg's resolution, taken upon 
 other grounds, not to perform service in this chapel — the law 
 
The Bishop of Winchester v. Rugg. 125 
 
 seems to me clear that if there is no access to this chapel except 
 through the land of Mr. Kingsmill, that there must be what is 
 called " a way of necessity " over the land of Mr. Kingsmill to 
 this chapel, which is a public building, to which all the parish- 
 ioners of Sydmonton have a right to resort. 
 
 The only question as to which there really can be anything 
 like a serious argument in this case arises out of the second 
 branch of Mr. Eugg's defence, which is briefly stated, that in 
 the case of an incumbent having a parish consisting of two 
 benefices with a chapel or church in each, it is competent to 
 the incumbent to perform service in one of these chapels or 
 churches alone ; and that, by so doing, he satisfies the requisi- 
 tions of the Act of Uniformity and of the general ecclesiastical 
 law ; that a discretion as to this matter is vested in the 
 incumbent, and not in the Bishop; that the parishioners of 
 Sydmonton, whatever may be said in the Order of Council, 
 have no right or title to have Divine Service performed at all in 
 this chapel. The consequence, I may observe, of this position 
 would be, that they would he altogether deprived of their strict 
 right to attend Divine Service, for if the accommodation of 
 Ecchinswell be only sufficient for the parishioners of that 
 chapelry, the paiishioners of Sydmonton have certainly no legal 
 right to sittings in the church of Ecchinswell. Another conse- 
 quence would be, that if Mr. Eugg chose to shut up the chapel 
 of Ecchinswell, wherein the majority of the parishioners reside, 
 and perform service in Sydmonton alone, it would be competent 
 to him to do so. It is not denied that by the existing law Mr. 
 Eugg is compellable to perform morning and evening service in 
 his parish, according to the Act of Uniformity, 13 and 14 Charles 
 11. chapter 4, section 2. According to the provisions in the 1st 
 and 2d of Victoria, chapter 106, section 80, the Bishop may 
 order two full services, including a sermon or lecture, to be per- 
 formed on every Sunday throughout the year, in the church or 
 chapel of every or any benefice within his diocese. But in this 
 case the exercise of his discretion is restrained by the conditions 
 relative to the value of the living, and the number of the popu- 
 lation. But no such restriction is imposed upon the authority 
 of the Bishop to compel the performance of two services in 
 each chapel of a parish. The 17 Charles n. chapter 3, section 1, 
 par. 4, was cited by Mr. Eugg. But in the first place, the 
 statute applies only to a very particular class of churches, 
 namely, those in cities and towns corporate ; and in the second 
 place, the principle of the Act is directly opposed to Mr. Eugg's 
 argument, for the discretion as to the performance of Divine 
 Sei-vice is expressly vested in the Bishop, and not in the minister. 
 There are in this kingdom many parishes which contain united 
 
126 Ecclesiastical yudgments. 
 
 benefices, with a church in each, and it is, I believe, for the 
 very first time that it has been contended by the incumbent 
 of such a parish that it is competent to him to perform Divine 
 Service in one of those chapels only, and that the inhabitants 
 of the district in which the other church is situated may be 
 deprived of the right, equally recognised by the common and 
 by the ecclesiastical law of this realm, to the performance of 
 Divine Service by their minister in their own church. To 
 whom are these parishioners to look for redress for this wrong 
 done to them ? How are they to obtain the performance of 
 Divine Service in their church ? Surely, by an appeal to the 
 authority of their Bishop. He has the cwa curarum animarum 
 within his diocese. It is his bounden duty to enforce in every 
 church within his diocese the performance of the services 
 prescribed iu the Book of Common Prayer; and where the 
 circumstances of the parish are unfortunately such as not to 
 furnish the means of performing full Divine Service in both 
 churches of a united parish, it is, ^i Ta.y opinion, clearly the 
 intendment of the law, ancient and modern, common and 
 ecclesiastical, as well as of the particular Order in Council 
 under which these parishes were united, that a service should 
 be performed every Sunday in each church, so that the inhabi- 
 tants of both parishes should have access, upon this Holy Day 
 at least, to their respective churches, and receive the benefit of 
 the ministrations of the church, according to such a distribution 
 of the duty of the incumbent as may best secure this object, 
 that is, according to the opinion of the Bishop in this case, by 
 alternate morning and evening services in the two churches. I 
 see no reason to doubt that thegeneral'authority of the Ordinary 
 in matters of this kind, recognised by the universal ecclesiasti- 
 cal law as inherent in the nature of his office, and necessary 
 for the performance of the duties which are cast upon him, is 
 properly applied to a case of this kind. 
 
 I think that the parishioners of Sydmonton are entitled to 
 the performance of a service by their minister in their church 
 every Sunday ; that the Bishop has rightly exercised his dis- 
 cretion in commanding Mr. Eugg to perform this service ; and 
 I must formally admonish Mr. Eugg, as I now do, to obey the 
 direction of his Ordinary. 
 
 It is right that I should caU the serious attention of Mr. 
 Eugg to the order of this Court: I am glad to perceive that 
 he has the assistance of an experienced proctor, from whom 
 he may learn, if not otherwise informed, that a disobedience to 
 the order of this Court will be attended with the grave penal con- 
 sequences which the law attaches to the offence of contumacy. 
 
 I must further, in the execution of my duty, condemn Mr.' 
 Eugg in all the costs of these proceedings. 
 
THE OFFICE OF THE JUDGE PROMOTED BY 
 THE BISHOP OF NORWICH v. PEARSE. 
 
 In a criminal suit against a clerk in the Ecclesiastical Courts, 
 the clerk himself is now competent to give evidence. 
 
 This was a proceeding against a clerk for very heinous 
 immorality. During the trial the defendant was tendered 
 by his counsel as a witness, and I admitted his evidence. 
 
 In the end I gave judgment, on the 4th of June 1868, 
 finding the charges proved, and sentencing the defen- 
 dant to deprivation. The defendant appealed to the 
 Privy Council, who affirmed my decision, but expressed 
 no opinion as to the admissibility of the defendant's 
 evidence. 
 
 Since then there have been three other proceedings 
 against clerks for immorality, in each of which the 
 defendant was examined before me. They were all 
 appealed to the Privy Council, but I do not find that in 
 any one of them any objection was made to the admissi- 
 bility of the defendant's evidence. 
 
 This case is reported in the Arches Court, in the Law 
 Reports, 2 Admiralty and Ecclesiastical, page 281. 
 
 I have given here such passages of the judgment only 
 as decide on the admissibility of the evidence. 
 
 Judgment. — ^The hearing of this cause has been attended 
 with one remarkable circumstance. It furnishes, practically 
 speaking, the first instance in which the accused clerk has been 
 allowed to give his own personal evidence as a part of his 
 
128 Ecclesiastical yudgments. 
 
 defence. It is riglit. that I should state fully the grounds upon 
 which I came to the conclusion that such evidence was admis- 
 sible ; because the consequences of this decision, if it be correct, 
 are obviously very important. It materially affects for good or 
 for evil the administration of justice in these proceedings 
 against criminous clerks. In my opinion the protection of 
 innocence and the detection of guilt is promoted by the admis- 
 sibility of this evidence, and the dispovery of the truth — the 
 proper end, I think, of all rules of evidence and legal procedure 
 — facilitated. But such, I regret to say, was not the opinion 
 of my distinguished predecessor in this seat, and this fact alone 
 would render a statement of the reasons for a contrary opinion 
 imperative upon me. 
 
 The question stands in this way. In the year 1843 was 
 passed Lord Denman's memorable Act (6th and 7th Vict. c. 85) 
 for improving the law of evidence, and it began in the language 
 which never ought to be forgotten. "Whereas, the inquiry 
 after truth in Courts of Justice is often obstructed by incapa- 
 cities created by the present law, and it is desirable that full 
 information as to the facts in issue both in criminal and in civil 
 cases should be laid before the persons who are appointed to 
 decide upon them, and that such persons should exercise their 
 judgments on the credit of the witnesses adduced and on the 
 truth of their testimony : Now therefore be it enacted by the 
 Queen's most Excellent Majesty, etc. 
 
 " That no person offered as a witness shall hereafter be ex- 
 cluded by reason of incapacity from crime or interest from 
 giving evidence either in person or by depositions, according to 
 the practice of the Court." 
 
 And so stood the law for a considerable time; but in the 
 year 1851 progress was made in this department of juris- 
 prudence, and the 14th and 15th Vict. c. 99,. called "An Act to 
 Amend the Law of Evidence," by the second section, enacted 
 as follows : " On the trial of any issue joined, or of any matter 
 or question, or on any inquiry arising in any suit, action, or 
 other proceeding in any Court of Justice, or before any person 
 having, by law, or by consent of parties, authority to hear, 
 receive, and examine evidence, the parties thereto, and the 
 persons in whose behalf any such suit, action, or other proceed- 
 ing may be brought or defended, shall, except as hereinafter 
 excepted, be competent and compellable to give evidence, either 
 mva voce or by deposition, according to the practice of the 
 Court, on behalf of either or any of the parties to the said suit, 
 action, or other proceeding." 
 
 It is perfectly clear, therefore, from the general terms of this 
 enactment, that all parties to suits were rendered capable and 
 
The Bishop of Norwich v. Pearse. 129 
 
 compellable to give evidence, except as hereinafter excepted, 
 and the exceptions are to be found in the following sections. 
 The third section is : " Nothing herein contained shall render 
 any person who in any criminal proceeding is charged with the 
 commission of any indictable offence, or any offence punishable 
 on summary conviction competent or compellable to give evi- 
 dence for or against himself or herself, or shall render any per- 
 son compellable to answer any question tending to criminate 
 himself or herself, or shall in any criminal proceeding render 
 any husband competent or compellable to give evidence for or 
 against his wife, or any wife competent or compellable to , give 
 evidence for or against her husband." And the fourth section 
 is : " Nothing herein contained shall apply to any action, suit, 
 proceeding, or bill in any Court of Common Law or in any 
 Ecclesiastical Court, or iu either House of Parliament, insti- 
 tuted in consequence of adultery or to any action for breach of 
 promise of ma,rriage." 
 
 Subsequently to the passing of these Acts the Legislature 
 has rendered it competent in the Divorce Court for the husband 
 and the wife, if the suit be instituted in a particular manner, to 
 give evidence in cases of adultery, and in cases of cruelty and 
 impotency their evidence is continually admitted. 
 
 Now, my very learned and very distinguished predecessor, 
 Dr. Lushington, in giving judgment in the case of Burder v. 
 O'Neill (9 Jurist, N.S. 1109), after hearing arguments from me (I 
 think Sir Robert Collier was opposed to me upon that occasion) 
 on the admissibility of the evidence of an accused clerk, referred 
 to these statutes which I have just referred to (it was in the 
 year 1863), the 14th and 15th Vict, chapter 99, and then said: 
 — " Assuming for the moment that the general terms used in 
 this section would apply to the present case, and operate, stand- 
 ing alone, to make the evidence of Mr. O'Neill admissible, what 
 is the effect of the third section ? By. that, no person who in 
 any criminal proceeding is charged with the commission of any 
 indictable offence,, or any offence punishable on summary con- 
 viction, shall be competent, or can be compelled, to give evidence 
 for or against himself. Now I think it is by no means clear 
 that the offence charged in these articles is not an indictable 
 offence, or punishable on summary conviction. Looking at the 
 pleadings and evidence, I incline to the opinion that it is so 
 indictable or punishable. If I am right in this opinion, it will 
 follow that I also did right in rejecting the application to 
 examine Mr. O'Neill ; for, according to the very words of the 
 section, he is not a competent witness, and if not competent no 
 consenti'or waiver of objection can make him so. But suppose 
 I am in error in taking this view of the third section, I fall back 
 
 I 
 
1 30 Ecclesiastical J udgments. 
 
 upon the second section, and I have come to the conclusion that 
 the operation thereof does not extend to make Mr. O'Neill, or 
 any other person in his situation a competent witness ; and I 
 adhere to this construction on the principles and authority of 
 the case of HawUns v. Gathercoh (6 De Gex, Mac, and Gordon, 
 p. 1 ; 1 Jurist, New Series, p. 481). Let me for a moment 
 consider the consequences of holding that Mr. O'Neill is a com- 
 petent witness. By the second secticfti of the statute, if he be a 
 competent witness, he is also compellable to give evidence, the 
 effect of which wUl be that in a case resembling the present, in 
 which character and pecuniary prospects are at stake, in which 
 practically the issue is, whether the accused shall be disgraced 
 and ruined, the accused maybe compulsorily put upon his oath, 
 and be compelled to take his choice between perjury or ruin — I 
 cannot conceive that any proceeding could take place more 
 utterly repugnant to the principles and practice of British law. 
 But this is not all : the effect of finding Mr. O'Neill to be a 
 competent witness, and consequently to be compelled to give 
 evidence, will be to repeal the statute 13 Charles H. c. 12, sec. 4, 
 by which the Ecclesiastical Courts are prohibited from adminis- 
 tering an oath to any one, whereby such person may be charged, 
 or compelled to confess, or accuse or to purge him or herself of 
 any criminal matter or thing. I do not think that this statute 
 is repealed. There is one more consideration. Look at the 
 exception in the third section, and see the utter discrepancy 
 which would arise in principle if such evidence could be given. 
 A man is protected from giving evidence against himself in all 
 petty offences cognisable by a magistrate, however small the 
 penalty or slight the punishment on conviction ; but if I be 
 mistaken, a clergyman of the Church of England will not be 
 exempted where the penalty may be disgrace and the loss of 
 valuable preferment. It is true that possibly such an anomaly 
 may exist, but sure I am that if legal principles wiU permit, 
 every Court would be most anxious to avoid it. I am of 
 opinion that even if the words of the second section could be 
 so construed as to render such evidence admissible, the expres- 
 sions are only general and not specific- I again say, that acting 
 on the principles laid down with so much clearness in Hawkins 
 v. Gathercole, and for the other reasons I have given, I adhere to 
 my original ruling, and refuse to admit Mr. O'Neill's evidence." 
 In a subsequent case, that of The Bishop of Norwich v. Berney, 
 February 5th and 8th, 1867, in which, as counsel for the 
 accused clerk, I brought to the attention of the Judicial Com- 
 mittee of the Privy Council this ruling of my learned prede- 
 cessor as my reason for not having examined Mr. Berney upon a 
 point as to which his evidence would have been very material, 
 
The Bishop of Norwich v. Pearse. 1 3 1 
 
 their Lordships, in the course of the judgment which they deli- 
 vered, observed that this question perhaps required reconsidera- 
 tion. 
 
 This is the iirst case which has happened since that observa- 
 tion was made, and I have thought myself, not only authorised, 
 but bound to reconsider the question. In the iirst place, there- 
 fore, I think that the plain and true construction of the 14th 
 and 15th Vict. c. 99 does not leave me at liberty to discuss 
 the question of the expediency of admitting the evidence in 
 question. As I read that statute, the first clauses render all 
 parties in all suits competent witnesses. The latter clauses 
 contain the catalogue of exceptions to the principles of general 
 admissibility. In that catalogue parties to criminal suits in 
 the Ecclesiastical Courts are not enumerated, and are therefore 
 admissible as witnesses. But it is said, that if this proposition 
 be generally true, it does not apply to cases where the offences 
 charged against the clerk are, like the present, indictable or 
 punishable by summary conviction. But again, I am obliged 
 to dissent from this construction of the statute. I think that 
 the words " in any criminal proceeding," refer to proceedings 
 in which the Crown as guardian of the public weal is prose- 
 cutor ; and not to suits which the common law denomi- 
 nates " criminal," and in which the prosecutor is the ordinary, 
 or the promoter of his office, especially having regard to the 
 words of the 4th section. Another objection is, that the 
 statute of 13 Charles 11. c. 12, is a special statute which forbids 
 the examination of parties to these criminal suits, and the 
 authority of Lord Justice Turner, in Hawkins v. Gathercole, 
 for the position that a special statute can only be repealed by 
 a special statute, is relied upon. The statute of 13 Charles li. 
 c. 12, is thus entitled "An Act for Explanation of a Clause 
 contained in an Act of Parliament made in the 17th year of 
 the late King Charles, intituled 'An Act for Eepeal of a" 
 Branch of a Statute jprimo MizabefhcB concerning Commis- 
 sioners for Causes Ecclesiastical.' " And it then recites that 
 errors had arisen by the repeal of the statute relating to the 
 Commissioners for Causes Ecclesiastical, that is, the repeal of 
 the statute which authorised the High Commission Court, and 
 the 4th section is thus : " Provided also, and it is hereby 
 further enacted, that it shall be lawful for any archbishop, 
 bishop, vicar-general, chancellor, commissary, or any other 
 spiritual or ecclesiastical judge, officer, or minister, or any 
 other person having or exercising spiritual or ecclesiastical 
 jurisdiction, to tender or administer unto any person whatso- 
 ever the oath usually called the oath ex officio, or any other 
 oath, whereby such person to whom the same is tendered or 
 
132 Ecclesiastical 'Judgments. 
 
 administered, may be charged or compelled to confess, or accuse, 
 or to purge him or herself of any criminal matter or thing 
 whereby he or she may be liable to any censure or punish- 
 ment ; anything in this statute, or any other law, custom, or 
 usage heretofore to the contrary hereof, in anywise notwith- 
 standing." 
 
 I have read with care the judgment in Hawhins v. Oaiher- 
 cole, which I do not think it necessafy to go into at length. I 
 will only say that I do not think that the principles of con- 
 struction which that decision lays down warrant the conclusion 
 that any restriction on the admissibility of evidence imposed 
 by 13 Car. 11. c. 12 cannot be taken away by the language of 
 the 14th and 15th Vict. c. 99. Lastly, the learned judge 
 alleges the evil that would ensue if a clerk were to be allowed 
 to give evidence " where the penalty might be disgrace and the 
 loss of valuable preferment." I have already expressed my 
 opinion upon this general subject ; I must add that the other 
 side of the question does not seem to have been considered, 
 namely, the extreme hardship, I should say injustice, of 
 allowing a clerk to be accused of any offence, however in- 
 famous, alleged to have been committed in the presence of the 
 accuser alone, and supported by his testimony alone, and of 
 sealing up the mouth of the accused, who, if innocent, may give 
 a satisfactory refutation of the charge, and who, if guilty, ought 
 not to be protected by a technical rule from exposure, more 
 especially in a case where third parties, the parishioners, have 
 a right tp demand that the cure of their souls, shall not be in- 
 trusted to a wicked pastor. 
 
 At this moment, ,in the Divorce Court, a husband accused of 
 cruelty, which may include the commission of an unnatural 
 crimci of impotency, of adultery, if the suit be instituted in a 
 particular form, is a competent witness. Under what tempta- 
 tion is he placed to exculpate himself by perjury? In the 
 Probate Court, Dr. Smethurst, whose counsel I was, was ad- 
 mitted, in a case where he was the party benefited under a will, 
 to give evidence on the subject of it, though he had been found 
 guilty of poisoning the maker of that will, by a sentence 
 which was afterwards remitted ; and in the civil suit he was 
 cross-examined by Mr. Serjeant Ballantine as to aU the circum- 
 stances pf the alleged crime — on which, when tried for his life, 
 his lips had been sealed by the law. But the other day, a 
 pa,rty accused of obtaining, by undue influence, nearly half a 
 million of money from an insane testator, gave evidence in 
 favour of the will. Under what temptations were these persons 
 toconamit peijury? Certainly, according to the reasoning in 
 JBurder v. P'Neill, their evidence ought to be inadmissible. 
 
The Bishop of Norwich w. Pearse. 133 
 
 I will not pursue the subject further. In my opinion the 
 statute renders this species of evidence in this Court admis- 
 sible ; and I do not think that the Court should endeavour to 
 discover an ingenious construction of the statute for the 
 purpose of excluding such evidence on the ground of the mis- 
 chief consequent on its admission ; but, on the contrary, that 
 for the sake of the administration of justice, both to the indi- 
 vidual and the Church of which he is a minister, it ought to be 
 ready to receive it. 
 
 Therefore, when the counsel for the defendant in this case 
 tendered him as a witness, I overruled a formal objection made 
 by the counsel for the promoter, and I allowed the defendant 
 to be examined. . . . The law which made his evidence ad- 
 missible did hot of course remove these objections to its credi- 
 bility which arise from the strong bias under which it must 
 be given ; it must be admitted that in this case the defendant 
 has the very strongest motives of interest by which a man 
 can be swayed, to deny the charges now preferred against 
 him. On the other hand, the improbabUity that an educated 
 gentleman, and a clergyman of mature years and long stand- 
 ing in his profession should, deliberately commit the sin of 
 perjury, has been strongly urged upon me ; and it has been 
 truly said that this sin has been committed by him if the 
 story which he has told is untrue. The argument deserves 
 consideration, but I am afraid that on the assumption of 
 guilt the man who committed these various abominations, at 
 various periods, and with deliberate purpose, must have so 
 polluted his mind and defiled his conscience as to render the 
 commission of the additional sin of perjury *in the hope of 
 thereby escaping the loss of character, fortune, and station, not 
 an improbable act, certainly not an act of such manifest 
 improbability as to induce the Court on that ground alone to 
 discredit, much less discard, the adverse testimony. The 
 accused clerk is indeed entitled to the fuU benefit of those 
 legitimate presumptions of innocence which arise from his 
 character, his social position, and still more his holy calling. 
 These presumptions are to be constantly borne in mind by the 
 Court, and to be weighed in the scale against the inducements 
 to perjury, which, on the assumption of guilt, the fear of detec- 
 tion and punishment would suggest. 
 
THE OFFICE OF THE JUDGE PROMOTED BY 
 RITCHINGS V. CORDINGLEY. 
 
 It is not lawful for a churchwarden, though acting in pursu- 
 ance of a resolution of the vestry, to break into the parish 
 church and remove ornaments or articles placed therein by 
 the incumbent, though suck ornaments or articles had been 
 so placed without a faculty and irregularly. 
 
 The rights of the churchwardens with respect to access to the 
 church considered. 
 
 This judgment was delivered on the 2 2d of July 
 1868. There was no appeal from it. 
 
 The case is reported in the Law Reports, 3 Admiralty 
 and Ecclesiastical, page 113. 
 
 Judgment. — This is a case which comes before this Court by 
 letters of request from the Chancellor of Worcester. It is 
 a suit instituted in a criminal form by the incumbent of 
 Atherstone, Mr. Eitchings, against one of the churchwardens, 
 Mr. Cordingley. The offences charged against this gentleman 
 are, — entering the church by means of a picklock, contrary to 
 the wish of the incumbent, and causing a ledge of wood, or, as 
 it is called, a super-altar, to be violently removed from the holy 
 table; breaking and throwing away the same, and also for 
 injuring and removing the cloth which covered the holy table ; 
 and for removing certain sockets from a pillar on which 
 banners were sometimes placed ; and for violent and irreverent 
 conduct on the part of himself and others in the church. 
 
 The defence on the part of Mr. Cordingley is that the incum- 
 bent refused to allow the keys of the church for the purpose of 
 entering therein, and that the articles in question had been put 
 up illegally without a faculty, and were violently reriioved by 
 the churchwardens under sanction of the vestry. 
 
Ritchingsv. Cordingley. 135 
 
 The material facts, which have heen admitted or proved 
 before me in evidence, are as follows : — It appears that about 
 Christmas 1865 this ledge was placed on the holy table by 
 Mr. Eitchings, or with his permission, and that it has remained 
 there from that time till it was taken away by Mr. Cordingley. 
 No objection was raised till Easter 1866, and it was there 
 when the bishop held a confirmation in the church in 1867. 
 This addition, however, to the holy table was made without 
 the consent of the ordinary, either informally expressed, or 
 formally through the medium of a faculty. This is much to be 
 lamented, because the alteration, whether legal or not, was 
 of that character, which ought to have been submitted to the 
 discretion of the ordinary, in order that he might judge whether 
 the introduction of it was or was not expedient at that time 
 and in the particular circumstances of the parish. 
 
 On the 22d of August 1867 a vestry meeting was holden, 
 which was adjourned to the town-hall. How it was summoned 
 does not appear, but it was preceded by a printed placard, 
 headed " EituaHsm," and, certainly, was not of a character to 
 produce fair, temperate, decent, or quiet discussion. I am not 
 surprised that nobody should have been willing to own that he 
 was in any way concerned with it. At this vestry a resolution 
 was passed that the churchwardens, that is both of them, 
 should take steps for removing the super-altar. 
 
 On the next morning, the 23d of August, Mr. Cordingley 
 sent to Mr. Eitchings for the keys of the church. Mr. Eitchings 
 sent word to him by AUcock, the other churchwarden, that he, 
 Mr. Eitchings, was going to church at eleven, and that he would 
 wait for him tiU one o'clock. Mr. Cordingley then said that 
 if the keys were not placed in his hands " he would break open 
 the church door, or make it so that nobody could open it." 
 
 Mr. Eitchings went accordingly to the church and stayed 
 tiU twenty minutes to one, when he wrote to Mr. Cordingley as 
 foUows :— 
 
 " Atherstone, August 23, 1867. 
 
 "SiE, — In future when you want access to the church as 
 churchwarden, I must request you to name the time and to 
 give me the reasonable notice to which I am entitled. The 
 church has been open from eleven o'clock till service-time, at 
 twelve, to suit your convenience. 
 
 " I repeat that you can, by applying to me, have access to the 
 church at any reasonable hour, but I shall not give up the keys. 
 — I am your obedient servant, F. H. Eitchings. 
 
 " To Mr. Cordingley." 
 
 To this letter Mr. Eitchings received no answer. As a 
 
136 Ecclesiastical Judgments. 
 
 general rule Mr. Eitchings says he refused to give Mr. Cordiiig- 
 ley the keys of the church, but did not refuse him access ; on the 
 contrary, he said that upon reasonable notice he might always 
 have it. It appears, however, that on two occasions, one being 
 the 2 2d of August, he refused to allow the bells to be rung to 
 give notice of a vestry meeting. 
 
 About one o'clock, Scanlan, a locksmith in the employment 
 of "Wood, arrived by Cordingley's order with a picklock in his 
 hand, and proceeded to pick the lock of the church door. 
 Mr. Husband, the curate, who was present, warned him that 
 the act was illegal; the man hesitated, but under the orders of 
 Cordingley proceeded; the lock was picked, the church was 
 entered. Scanlan, with a hammer and chisel in his hand, 
 entered the communion rails, pulled out the nails which 
 fastened the cloth to the holy table, took off the ledge or super- 
 altar — according to Mr. Husband's evidence Cordingley 
 dashed the super-altar with such violence on the floor that it 
 was broken at one end, — and it was then thrown into a place 
 where coals were kept. The sockets were also forcibly removed 
 from the pillars. ' The cloth of the holy table was taken to an 
 upholsterer by Cordingley, and by him directed to be altered ; 
 the other churchwarden afterwards obtained possession of it, 
 and the holy communion table remained uncovered for one or 
 two weeks. While the house of God was the scene of these 
 transactions, other persons, as must have been expected, came 
 into the porch and the body of the church, one man wearing 
 his hat, and alleging that he did so because he was not in 
 a place of Protestant worship ; a melancholy and miserable, but 
 natural, example of what men, respectable in private life, will 
 do under the effect of violent religious excitement, when they — '■ 
 to use a common but very expressive phrase — " take the law 
 into their own hands." 
 
 The counsel for the defendant exerted himself to the utmost 
 to palliate acts which he must have known to be incapable of 
 vindication. First, it was maintained or suggested that one 
 churchwarden had, under the sanction of the vestry, authority 
 to do these acts, both without the concurrence of his colleague 
 or the authority of his ordinary. As a matter of fact, the 
 vestry did not pretend to authorise one churchwarden t© act in 
 this way ; as a matter of law they had no power to authorise 
 both to do so. It is not competent to the vestry to alter the 
 law, or to substitute their own will and pleasure for it, or to. 
 clothe by any resolution both, still less one churchwarden, with 
 an authority not inherent in his office. In the weU-known case 
 of Palmer v. Bishop of Exon} it was decided by the King's 
 ' ' 1 1 Str. 576. 
 
Ritchings v. Cordmghy. 1 3 7 
 
 Bench that "the ordinary" (not the vestry or the church- 
 wardens) " was to judge what ornaments were proper, and 
 might order them to be defaced." 
 
 I will now deal with the argument that one churchwarden 
 can, with or without the sanction of the vestry, act indepen- 
 dently of his colleague. With regard to the case of Shaw v. 
 Hislop^ it seems to me adverse to the case of the defendant. It 
 establishes the position that where one churchwarden has 
 incurred a debt on behalf of the parish without the order of his 
 co-churchwarden, he must be considered to have incurred it on 
 his personal liability, and not in his corporate or quasi-corporate 
 character. 
 
 The case of Gouldsworth v. Knights,^ which was also cited, 
 only decided that the Act 59 Geo. iii. c. 12, s. 17, made the 
 churchwardens and overseers a corporation of a peculiar char- 
 acter, and that it was competent for any one of them to 
 authorise a distress for rent in arrear. 
 
 The case of Fry v. Treasure,^ to which I referred counsel in 
 the course of the argument, is a very strong decision against 
 the position that one churchwarden can act alone and without 
 the consent of his co-churchwarden, even in matters which must 
 be beneficial to the parish. The Judicial Committee of the 
 Privy Council confirmed the judgment of the Court of Arches, 
 and decided in that case that one churchwarden could not sue 
 alone, without the concurrence and joinder of his colleague, in 
 a suit against a parishioner for subtraction of church rate, nor 
 use the name of his co-churchwarden without the consent of 
 the latter ; their Lordships say : * " But necessity, it was urged, 
 requires that in the case of the churchwardens each should be 
 deemed to be invested with an implied authority to use the 
 name of the other in suits for the benefit of the parish, or, at 
 all events, in suits for subtraction of church rate,, for that 
 otherwise it might be impossible to collect the rate. There is, 
 however, nothing to warrant such an argument;" and again 
 their Lordships say : *• " The course pursued can only be justified 
 on the assumption that in every suit for subtraction of church 
 rate one churchwarden may always use the name of a co- 
 churchwarden, as a co-plaintiff, without any authority from 
 him. For such a proposition there is no warrant either in 
 principle or on authority." So that it must now be considered 
 to be settled law that, where the majority of the vestry have 
 imposed a rate and authorised the churchwardens to collect it 
 for the benefit of the parish, they cannot empower one church- 
 
 14D. &B. 241. 2 11 M. & W. 337. 
 
 • 3 2 Moo. p. C. (N. S.) 539. « 2 Moo. P. C. (N. S.) at p. 554. 
 
 5 2 Moo. P. C. (N. S.) at p. 554-5. 
 
138 Ecclesiastical. yudgments. 
 
 •warden to take legal proceedings ivitliout the consent of his 
 colleague. The law provides another remedy, as was suggested 
 by the Privy Council, namely, the removal of the recusant 
 churchwarden; but the law wUl not allow a principle to be 
 broken down in order to attain an end in itself expedient and 
 desirable. 
 
 The application of this doctrine to the circumstances in the 
 present case is obvious and material. Observe the necessary, 
 and, indeed, the admitted consequences of the defendant's 
 position. Some ornament or piece of furniture is placed in a 
 church, perhaps, as in this case, connected with the adminis- 
 tration of the Blessed Sacrament of the Lord's Supper. One 
 churchwarden is offended by it, either as a matter of religious 
 feeling or of mere taste; and without consulting or directly 
 contravening the wish of his brother churchwarden, he pro- 
 ceeds by force to enter the church, by force to remove the 
 ornament ; the next day the other churchwarden, to whose 
 religious feelings or taste the ornament is agreeable, proceeds 
 by force to restore the ornament ; the next day it is again 
 removed, the day after again replaced in the same manner. 
 Or perhaps the two churchwardens meet each other at the 
 head of an army of followers, one with a picklock and a placard, 
 as in this case, " Protestantism and no Eitualism ; " and the 
 other with a crowbar, as in the case of JDewdney v. Good} and 
 a banner with " The Catholic Faith." Could the worst enemy 
 of the Church of England, Popish or Protestant, desire her to 
 be placed in a more humiliating position ? Would there be 
 any end to the irreligious scoffs, gibes, and jests which such 
 scenes would produce? Could the Church of Eome devise 
 better assistance to her hourly increasing aggressions against 
 the Church of England ? Could the enemy of the Establish- 
 ment, who desires to sever the connection of the Church with 
 the State — the subject upon which men's minds are now so 
 agitated — be more gratified than by such a result of discord 
 and scandal? 
 
 I am happy to know that the law of our Church neither per- 
 mits such scandalous proceedings, nor is impotent to punish 
 those who are the authors of them. Independently of the 
 ecclesiastical law, I am much inclined to think that this was a 
 case of " brawling and riotous conduct in a church," which 
 founded the jurisdiction of the magistrates under the recent 
 and valuable statute, 23 and 24 Vict. c. 32, s. 2. It is true 
 that one churchwarden only acted in this case, but I consider. 
 it expedient, for the peace of parishes in these times of excited 
 religious feeling, that no doubt should exist as to the limits 
 1 7 Jur. (N. S.) 637. , 
 
Ritchings v. Cordingley, 1 39 
 
 within -which the authority of the churchwarden is to be 
 exercised. 
 
 Thej' are the officers of the ordinary and the parish, and the 
 first principle is that their authority, even in matters within 
 their especial cognisance, must be exercised under the control 
 of the ordinary, Take, for instance, the arrangements of sit- 
 tings in the nave of the church. The general disposal of seats 
 in the nave, and to a certain extent in the chancel, appertains 
 to the churchwardens, though, perhaps, even this doctrine must 
 receive some limitation where the seats are all moveable, or 
 where chairs alone are in use ; but as Sir W. Wynne, one of 
 my most distinguished predecessors in this chair, observed, 
 " tMs is for convenience, and for the preservation of peace and 
 quiet. But this right is not to be used arbitrarily, not without 
 considering whether there be any legal or equitable right. If 
 the churchwardens interfere to take aM'ay a seat, and, a fortiori, 
 to take it to themselves, the ordinary will interfere . . . Brury 
 v. Harrison} So, in Parham v. Templar^ decided by Sir John 
 NichoU, the churchwardens are spoken of as " acting under the 
 ordinary."^ And, in the same case, it is said: " The church- 
 wardens may remove persons originally placed in seats, or their 
 descendants ; but if they do so capriciously, or without just 
 ground, the ordinary will control and correct them."* 
 
 Upon the general question of the duties and powers of church- 
 wardens it would be impossible to find a better statement, or 
 one coming from a higher authority, than that which is laid 
 down by Lord Stowell in the following judgment in Hutchins v. 
 BenzUoe:^ "The first point is, whether these churchwardens 
 have a right to interfere in the service of the church, as, if that 
 interference is legal in any case, it is so in the present. To 
 ascertain this, it is proper to consider what are their duties, and 
 i conceive that originally they were confined to the care of the 
 ecclesiastical property of the parish, over which they exercised 
 a discretionary power for specific purposes. In all other re- 
 spects it is an office of observation and complaint, but not of 
 control, with respect to divine worship ; so it is laid down in 
 Ayliffe, in one of the best dissertations on the duties of church- 
 wardens, and in the canons of 1571. In these it is observed 
 that churchwardens are appointed to provide the furniture of 
 the church, the bread and wine for the holy sacrament, the sur- 
 plice, and the books necessary for the performance of divine 
 worship, and such as are directed by law, but it is the minister 
 who has the use. If, indeed, he errs in this respect, it is just 
 
 1 3 Phillim. 515, n. ^ 3 jj^ji. 515. 
 
 2 3 ibid, at p. 523. * 1 Hagg. Const, at p. 173. 
 
I40 Ecclesiastical y udgments., 
 
 matter of complaint, which the churchwardens are obliged to 
 attend to ; but the law would not oblige them to complain if 
 they had a power in themselves to redress the abuse. In the 
 service, the churchwardens have nothing to do but to collect 
 the alms at the offertory, and they may refuse the admission of 
 strange preachers into the pulpit. For this purpose they are 
 authorised by the canon, but liow ? "When letters of orders are 
 produced their authority ceases. Agffin, if the minister introduce 
 any irregularity into the service, they have no authority to in- 
 terfere, but they may complain to the ordinary of his conduct. 
 I do not say there may not be cases where they may be bound 
 to interpose ; in such cases they may repress, and ought to re- 
 press; aU indecent interruptions of the service by others, and 
 are the most proper persons to repress them, and they desert 
 their duty if they do not. And if a case could be imagined in 
 which even a preacher himself was guilty of any act grossly 
 offensive, either from natural infirmity or from disorderly habit-s, 
 I wiU not say that the churchwardens, and even private per- 
 sons, might not interpose to preserve the decorum of public 
 worship. But that is a case of instant and overbearing neces- 
 sity that supersedes all ordinary rules. In cases which fall 
 short of such a singular pressure, and can await the remedy of 
 a proper legal complaint, that is the only proper mode to be 
 pursued by a chiirchwarden." 
 
 I have carefully considered the chapter in Ayliffe referred to 
 by Lord Stowell, and I find it entirely in accordance with his 
 view. I was also referred by Mr. Stephens^ to a judgment 
 delivered by myself in the Consistory of Oxford, reported at 
 length by Dr. Swabey in the " Law Times," The Ghwrchwarden 
 of Unsham v. The Vicar of Ensham^ as containing a correct 
 exposition of the law upon this subject. I am not aware that 
 it in any way conflicts with the principles of the judgment 
 which I am about to deliver. Indeed, the whole doctrine of 
 presentments by the churchwardens is founded upon the fact 
 that this office is one of " observation and complaint," and, 
 except in extraordinary emergencies, not one of immediate 
 action or exercise of individual power. There would be no 
 necessity for presentment to the ordinary at all, if the church- 
 wardens might take the law into their own hands, and remove, 
 without reference to him, whatever they conceived to be illegal 
 in the ornaments of the church. 
 
 . In the Knightsbridge cases, Westerton v. Liddell and Bealr. 
 Liddell,^ the proper course was adopted ; the power of the 
 
 1 One of the counsel for the defendant. 
 
 2 29 L. T. 402. 3 Moore's Special ReiJort. 
 
Ritchings v. Cordingley. 141 
 
 ordinary was invoked to remove illegal ornaments; and the 
 result proved the wisdom of this proceeding ; for the church- 
 warden would in that case have removed m.any ornaments 
 which the Judicial Committee eventually pronounced to be 
 legal. 
 
 In the present case the churchwarden removed altogether 
 the ledge wljich was upon the holy table. Now the decision of 
 the Judicial Committee of the Privy Council in Liddcll v. Beal^ 
 established that the addition of a wooden ledge to the holy 
 table, called in that as in this case a super-altar, which is not 
 fastened to the table so as to be immoveable, is a legal orna- 
 ment; their Lordships say that when the Lord's Supper is 
 administered the ledge might be removed and replaced . upon 
 the table " for the purpose of holding candlesticks and vessels ;" 
 and it is said in that judgment, " it is not shown, and their 
 Lordships think it ought not to be inferred, that there is any- 
 thing superstitious (if the term may be used) or anything 
 improper in the addition of that ledge." Much has been said 
 in this case upon the point as to whether or not the ledge was 
 attached to the holy table so as to be immoveable ; it certainly 
 was not fastened to the holy table itself, but there is a doubt 
 upon the evidence whether it was not so attached to the cloth 
 as to necessitate the removal of the cloth when the ledge was 
 removed. I am not prepared to say that even in this case it 
 would not fall within the principle of permission in Liddell v. 
 Beal} But assuming this not to be so, observe the error of the 
 churchwarden's conduct ; he evidently thought that the addi- 
 tion of the ledge was, per se, illegal ; he did not unfasten it 
 from the cloth and replace it as the law (if he had any power 
 at all in the matter) could have required him to have done, 
 but he caused it to be detached from the cloth and removed 
 altogether, and put away in a coal-hole. I may remark here 
 that my surprise, that any churchwarden should have dealt 
 so irreverently with what had beerf for some years connected 
 with the holy table, was diminished by the subsequent evi- 
 dence in the case. From that evidence it appeared that when 
 Mr. Cordingley was first chosen churchwarden he honestly and 
 expressly stated that he was not a member of any church, 
 which he explained in this Court to mean that he had never 
 been a communicant. It was certainly a strange and ill- 
 advised choice by the parishioners in the first instance, and I 
 think it reflects credit upon Mr. Cordingley that he was aware 
 of the impropriety of his occupying this position, and with 
 reluctance he accepted it, contrary to his wishes. He said in 
 
 1 14 Moo. p. C. 1. 
 
142 Ecclesiastical Jtidgmmts. 
 
 this Court, " I have never communicated, and I have always 
 had a great reluctaijce to be churchwarden." 
 
 It cannot be too plainly stated that, without reference to 
 extreme and exceptional cases, which afford no test of the law, 
 ornaments which have once been de facto, though illegally or 
 irregularly, placed in the church, must be legally, that is, under 
 the sanction of the ordinary, removed. This is a position no 
 less sound in law than essential for the peace of parishes. 
 Lord Stowell applied this principle to the matter of removing 
 monuments in churches. " It is alleged," he says, " that the 
 rector had given his consent that the monument should be 
 taken down, which, however, is denied. But the taking down 
 of the monument would be an offence for which also the 
 party would be liable to prosecution ; since, when once erected, 
 it cannot be removed without the sanction of the Ordinary. 
 The consent of the rector, therefore, would not be sufficient :" 
 Maidman v. Malpas? 
 
 Lastly, it has been urged in mitigation of the conduct of the 
 churchwarden that he had a right, not merely of access to the 
 church at proper seasons, but to the custody of the keys of the 
 church. Jarratt v. Steele^ was relied upon for this position. 
 In that case Sir John Nicholl observed : " All persons ought to 
 understand that the sacred edifice of the church is under the 
 protection of the ecclesiastical laws as they are administered 
 in these Courts ; that the possession of the church is in the 
 minister and the churchwardens ; and that no person has a 
 right to enter it when it is not open for divine service, except 
 with their permission and under their authority." Lord Chief 
 Justice Erie's judgment, too, in Griffin v. Dighton,^ was much 
 relied upon, in which he recites this passage as the founda- 
 tiou of his own judgment, adding : " That is a perfectly sound 
 exposition of the law in the temporal as well as in the eccle- 
 siastical courts. The domus mansionalis Omnipotentis Dei is 
 not to be turned from the purpose which that name expresses, 
 and the minister and churchwardens are entitled to have pos- 
 session of the church, and to have free access to it at all times." 
 It has been endeavoured to extract from this language of Sir 
 John MchoU in Jarratt v. Steele,^ the position that the freehold 
 of the church is in the churchwardens as weU as in the incum- 
 bent, or, at least, that the custody of the church is equally 
 vested in both parties, and therefore that the churchwardens 
 must be entitled to the keys of the church equally with the 
 incumbent. But this is a position which even the letter of the 
 
 1 1 Hagg. Const, at p. 212. a 3 Phillim. 167, 169. 
 
 s 5 B. & S. 114 ; 333 LJ. (Q. B.) 182. < 3 PhilUm. 167. 
 
■Ritchings v. Cordingley, 143 
 
 judgment does not warrant, and which is directly at variance 
 with the common law and a series of decisions upon the sub- 
 ject, and most especially with the decision of the same learned 
 judge in the later and very carefully considered case of Lee v. 
 Mathews} Observe his language in this case. " On the other 
 hand," he says, "the minister kept possession of the keys of 
 the church ; and, as it should seem, in order to prevent this 
 painting at that particular time ; and surely the minister of 
 the parish is the fittest person to decide at what season the 
 public worship may be suspended with least inconvenience to 
 the religious duties of the parishioners. This vestry -ws called 
 for the purpose of ordering an additional key of the church to 
 be made for the use of the parish churchwarden. This was 
 very irregular ; for the minister has, in the first instance, the 
 right to the possession of the key, and the churchwardens have 
 only the custody of the church under him. If the minister 
 refuses access to the church on fitting occasions, he will be set 
 right on application and complaint to higher authorities." The 
 same doctrine is referred to by Dr. Lushington in the recent 
 case of Bewdney v. Good ^ as one of the best established axioms 
 of ecclesiastical law. In that case, decided in the Court of 
 Arches in the year 1861, reported with his usual accuracy by 
 Dr. Middleton in The Jurist, the churchwardens of the parish 
 of Gussage, in Dorsetshire, accompanied by another parishioner, 
 and acting upon a resolution of the vestry, but against the 
 express prohibition of the rector, and without any authority 
 from the bishop, broke open with a crowbar the principal door 
 of the church, and, with the assistance of some workmen, pro- 
 ceeded to alter the position of the pulpit, and to pull down 
 and re-arrange certain of the seats within the church, and the 
 learned judge. Dr. Lushington, most strongly held that all who 
 had taken part in those proceedings had been guilty of a grave 
 ecclesiastical offence. 
 
 In this case the promoter of the office has withdrawn that 
 portion of his prayer which requested the Court to order the 
 restitution of the articles which had been illegally removed, 
 and the Court is now only prayed to admonish Mr. Cording- 
 ley to abstain from such illegal conduct for the future, and 
 to condemn him in the costs which that conduct has occa- 
 sioned. 
 
 I must not forget that there is evidence before me that the 
 offender was not ignorant of the law applicable to this case, 
 and perhaps I am hardly justified in not following in every 
 respect the precedent set me by Dr. Lushington in the recent 
 
 1 3 Hagg. Bcc. 169, 173. ' 7 Jur. (N. S.) 637. 
 
1 44 Ecclesiastical yudgments. 
 
 case of Dewdney v. Good^ and in condemning Mr. Cordingley. 
 in all the expenses of this suit. 
 
 But, having regard to the fact that when this cause first 
 cams before me I suggested that the parties should agree upon 
 a statement of the facts, and take the opinion of the Court 
 upoij the question of law ; that this proposition, which would 
 have most materially diminished the expenses of the suit, was 
 accepted by Mr. Cordingley and not entertained by the pro- 
 moter ; and also having especial regard to the fact that these 
 ornaments were put up without the previous or subsequent 
 sanction of the ordinary, that is, without an original faculty or 
 by a faculty to confirm, I shall not condemn Mr. Cordingley in 
 the whole expenses of the suit. I admonish him to abstain 
 from such illegal practices for the future, and I condemn him 
 in the sum of £100 nomine eoepensarwm. 
 
 1 7 Jur. (N. S.) 637. 
 
THE OFFICE, OF THE JUDGE PROMOTED BY ' 
 LEE V. MEREST. 
 
 A clergyman convicted of simony and another offence — Sen- 
 tence: deprivation of his living, coupled with prohibition to 
 discharge all clerical functions within the Province of 
 Canterbury — Notice ordered to be given to the' Queen's 
 Proctor in order that Her Majesty might exercise her. 
 right of presentation to the benefice voided. 
 
 This judgment was given on the 26th of November 
 1869, ■ The defendant had entered an appearance in 
 the suit by a proctor; but he took no part at the hearing 
 of the cause. There was no appeal. 
 
 The case is reported in the Law Journal, 39 Ecclesi- 
 astical, page 52, 
 
 Judgment. — In this case the dffice of the Judge is promoted by 
 the secretary of the Lord Bishop of "Worcester against James John. 
 Merest, clerk in holy orders and d.e facto vicar of the parish of 
 Upton Snodsbury, in the county and diocese of Worcester. The 
 case is sent by letters of request to this Court under 3 and 4 Vict, 
 cap. 86 in the first instance. The offences charged against the 
 clerk are two : First, that of simony, by reason of his having 
 corruptly and simoniacally obtained presentation and institu- 
 tion to ' his vicarage ; secondly, that of conduct unbecoming a 
 clergyman, in unlawfully threatening the Eev. Murray Eichard 
 Workman to publish a libel upon him with the intent of 
 extorting money, of which offence he was duly convicted at the 
 Assizes for the county of Worcester, held on the 4th of March 
 1869. This conviction for this offence was duly proved before 
 me by the record of the conviction produced by the clerk of 
 indictments on the Oxford Circuit. 
 
146 Ecclesiastical yudgments. 
 
 Upon the charge of simony the evidence may be briefly 
 stated as follows : A certain Mr. O'Donnell was patron and in- 
 cumbent of the benefice of Upton Snodsbury at the beginning 
 of the year 1868. He sold the advowson to the Kev. Murray 
 Eichard Workman, at whose prosecution the defendant has 
 been convicted for the offence which I have mentioned. The 
 deed of conveyance was produced and read before me, and bore 
 date February 29, 1868. The purchase-money was £400. 
 
 Mr. O'Donnell resigned the living on the 24th of March 
 1868, and his resignation was accepted on the following day by 
 the Bishop. On the 27th of May the defendant was presented 
 by Mr. "Workman to the benefice. On the 10th of June Mr. 
 Workman brought an action against the defendant for the sum 
 of £350, and on the 22d recovered that sum, judgment being 
 allowed to go by default, " by arrangement," as Mr. Workman 
 in his evidence said, between the parties. Mr. Workman after- 
 wards issued execution on his property, and levied £5. On 
 the 3d of August the defendant was instituted, upon the pre- 
 sentation of Mr. Workman, to the benefice. 
 
 The dates of these transactions, taken in conjunction with 
 their character, and with the profession of the parties, all of 
 whom, I regret to say, were clergymen, are calculated of them- 
 selves to excite a grave suspicion of corrupt practices connected 
 with the presentation of this living. That suspicion has been 
 turned into complete proof by the evidence which has been 
 adduced before me. The defendant, who has appeared in the 
 suit by a proctor, has not appeared by counsel or in person 
 before me in Court ; he has declined to plead any defence or 
 give any issue ; but by his proctor, who is still before the Court, 
 has prayed justice. 
 
 It appears from the evidence that some quarrel took place 
 between Mr. Workman and the defendant, from which pro- 
 bably has arisen the means of unravelling this transaction. 
 Certain letters were produced in evidence before me, and were 
 proved to have been used before the magistrate who committed 
 the defendant for trial at Worcester. Among these letters were 
 two, which Mr. Workman proved were in his handwriting, and 
 were produced to him by the defendant's solicitor, when he. 
 Workman, was cross-examined by the solicitor. The first letter 
 bears date Nov. 19, 1867, and is as follows : — ■' 
 
 " Church and School Gazette Office. 
 
 " 10 Southam;pt<m St., Strand, W.G., 
 "Nov. 19#A, 1867. 
 " My deae Sir, — As all the smaller livings are very dear in 
 proportion, and your capital is not sufficient to obtain one with 
 
Lee V. Merest. i^y 
 
 possession, I propose getting some assistance for you, but in 
 doing this I must act without your knowledge, or my endeavours 
 might be abortive. Hence I am silent for your own sake, and 
 you also must be the same. _ Suffice it to say that the course I 
 propose will cost you nothing. I wish to have Marston in 
 Derbyshire for you, and failing that a rectory in North Devon, 
 worth £lBO and a house. This, however, is dearer, and Marston 
 must be had if possible. You should not attempt Branksea when 
 the weather is bad. — ^Yours faithfully, M. E. Wokkman. 
 
 "TheKev. J. J. Merest. 
 
 "F.S. — You must preserve the strictest silence about the 
 names of any livings mentioned to you, or your succession will 
 be prevented." 
 
 The second letter is dated Dec. 19, 1867, and is as follows : — 
 
 ' Church and School Gazette Office. 
 
 "10 Southamptmi St., Strand, W.C, 
 Dec. I9th, 1867. 
 " My dear Sir, — I enclose a copy of another letter for the 
 Bishop, which please send at once. The whole affair has been 
 so far conducted very cleverly, and I am anxious for you not to 
 spoil it by the least injudicious act or word. I have no time 
 for more upon this subject to-day. As regards Upton Snods- 
 bury, the income is from tithe and glebe, and the present net 
 £120 about, capable of improvement. There is only single 
 duty, and each Eector has either held a curacy of £80, or made 
 that extra by occasional duty. It is three miles from Spetchly, 
 and six from Worcester. There is no house ait present, but will 
 be one shortly, and in the meantime you can have reasonable 
 lodgings either at Spetchly or nearer into Worcester. It is a 
 very nice place indeed, and to my mind you could not have a 
 more eligible little living. It is the presentation, not advowson. 
 You have not enough money for the latter, and these small 
 livings are all much dearer in proportion. In fact they are 
 most difficult to get hold of at aU, and the trouble and difficulty 
 I have for you cannot well be told. I spoke of Marston, but 
 you would have to wait some time for it, and Upton is nicer. 
 I withheld the name, having promised to do so, till I heard 
 definitively from your uncle, but he will render no help, and 
 you want a small sum. I have now applied elsewhere, and if 
 I can arrange all things, I shall have to see youi. I can help 
 you to improve the income of Upton, and you can go to it at 
 
148 Ecclesiastic'al judgments. 
 
 once. . It is the cheapest and the nicest thing I can getfor.yoia, 
 and for some time to come the only one likely. — Yours faithr 
 fully, M. E. Workman. 
 
 "The Eev. J. J. Merest." 
 
 " Your uncle's allowance will not come till about Jany. 6th, 
 and he must not he asked for it. I enclose a cheque for £5." 
 
 « 
 
 Mr. Workman said he had no doubt he had received answers 
 to these letters, but he had not kept them. 
 
 Taking these letters with their history, as proved in this 
 Court, in conjunction with the dates and the transactions, to 
 which I have referred, especially the transaction by which 
 judgment for £350 was recovered " by arrangement" between 
 the presentee and the patron, it would be difficult to doubt that 
 the presentation to this living was the result of a corrupt and 
 simoniacal contract between the patron and the presentee. But 
 that difficulty becomes a moral impossibility, when it is remem- 
 bered that it was competent to the defendant, as his proctor 
 must have informed him, to have entered the witness-box, and 
 have rebutted by an explanation, if such were in his power, the 
 otherwise irresistible influence of guilt arising from the testi- 
 mony and the circumstances to which I have adverted. 
 
 I am of opinion that the promoter of my office has proved 
 both the charges laid in the articles against the defendant. It 
 is not necessary that I should refer to authorities for the pur- 
 pose of establishing the jurisdiction of this Court in cases of 
 simony. That authority, both as it rests upon the general 
 Ecclesiastical law and upon the Statute law, cannot be gain- 
 said; though happily the reported instances in which it has 
 been exerted have been few and far between. The cases will 
 be found collected under the title " Simony," in the last edition 
 of Bwn's Ecclesiastical Law, vol. iii. By the general law, and 
 by the 40th Canon of 1604, as. by the statute 31 Eliz. c. 6, the 
 offence of simony is considered as one of a very grave character'', 
 and, though the oath formerly taken under the 40th Canon by 
 the presentee against simony has been abolished by 28 and 29 
 Vict. c. 122, by the second section of that statute a solemn 
 declaration against simony has been substituted for it. The 
 defendant, though not technically guilty of perjury, must have 
 deliberately made, upon a very solemn occasion, a very solemn 
 declaration which he knew at the time he made it to be abso- 
 lutely false. , The statute 12 Anne, Stat. ii. c. 12, has not, as far 
 as I am aware, been ^ ever put in force by the Ecclesiastical 
 Court. By the second section of that statute, the obtaining 
 by a clergyman the next avoidance of or next presentation to 
 
Lee V. Merest. 149 
 
 any benefice is treated as a simoniacal contract, and the pre- 
 sentation and institution are to be utterly void, frustrate, and 
 of no effect in law, tbe simoniacal presentee is to be adjudged 
 a disabled person in law to have the same benefice, and the 
 Crown is to present for the next term. I see no reason why 
 this statute should not be put in force by this Court ; but I 
 found my sentence as well upon the general Ecclesiastical 
 as the Statute law. I must, in accordance with the exigency 
 of the law, pronounce that the defendant is a disabled person 
 in law to have or enjoy the vicarage and parish church of 
 Upton Snodsbury, that his presentation thereto and his admis- 
 sion and institution thereupon are void and frustrate and of no 
 effect in law ; — and, having regard to all the circumstances of 
 this case, and the offence of misconduct apart from the charge 
 of simony proved against him, I must pronounce upon the 
 defendant a sentence of deprivation from the ministry and from 
 the performance of all clerical functions whatsoever in the 
 Province of Canterbury ; and I must order this sentence to be 
 promulgated in the usual manner by affixing the same to the 
 door of the church of Upton Snodsbury for the usual time : I 
 must further condemn the defendant in the costs of this suit. 
 I shall also direct the registrar to apprise the Queen's Proctor 
 of this sentence, in order that her Majesty may exercise the 
 right of presentation to the vacant benefice given by the 
 statute. 
 
THE OFFICE OF THE JUDGE PROMOTED BY 
 THE BISHOP OF WINCHESTER v. WIX. 
 
 A Bishop, who in his official capacity had instituted a suit 
 
 against a clerk within his diocese, resigned his see while 
 
 the suit was pending. 
 Held that the suit might nevertheless continue, with a change 
 
 of title, and a fresh authority to sue given by the Bishop 
 
 in his private name. 
 
 This judgment was given on the IStli of November 
 1869. There was no appeal.^ The case is reported in 
 the Law Reports, 3 Admiralty and Ecclesiastical, page 
 19. 
 
 Judgment. — The question raised in this cause is no-vel in 
 practice, and the registrar, after a very careful search, has been 
 unable to find any direct precedent, but it is not difficult to 
 decide according to priaciple. The clear and able argument of 
 Mr. Charles^ was foimded upon the presumption that this 
 Court would proceed according to certain analogies of the com- 
 mon law. But I must recollect the observation made by Lord 
 Wensleydale, delivering the judgment of the Privy Council in 
 the case of Sherwood v. Bay^ that the proceedings of the Eccle- 
 siastical Courts are not governed by the rules of the common 
 law, or any analogies which they furnish. I am certainly not 
 inclined to follow the analogy of those rules, which were in 
 force before the system of common-law procedure had been 
 subjected to the reformation it has since undergone. I must 
 dismiss these analogies altogether from my consideration. 
 
 It is necessary to consider carefully the course of proceedings 
 
 ^ Vide infra, Sumner v. Wix. 
 
 * The counsel for the defendant. ' 1 Moo. P. C. at p. 397. 
 
The Bishop of Winchester v. Wix. 1 5 1 
 
 in this case. The letters of request have heen duly sent to this 
 Court ; the Court had accepted those letters, and issued process 
 to bring the accused party before it, and the accused party had 
 appeared, and was properly before the Court prior to the time 
 when the late Bishop of Winchester resigned his see. In the 
 first instance it rested with the late Bishop of Winchester, in 
 the exercise of his episcopal ofi&ce, to determine whether the 
 suit should proceed or not, and in what manner ; he was in- 
 vested with a discretionary power to cause his office to be pro- 
 moted before himself, or to send the case by letters of request 
 to be heard before this Court, either appointing a private person 
 (his secretary, for instance) to carry on the proceedings in his 
 own name, or by appearing himself as a voluntary promoter of 
 the office of the Judge. He has exercised his discretion by 
 adopting the latter course. This discretion he exercised before 
 he resigned his see, and as soon as this Court became properly 
 in possession of the cause the Bishop in his official capacity 
 had no longer any control over the proceedings. It is true the 
 late Bishop is the promoter of this cause, but, as I have said, a 
 private person might, with his sanction, have acted as the pro- 
 moter. The promoter of the office of this Court must not be 
 confounded with the promoter of the office of the Bishop of 
 Winchester. The cause being now in this Court, it is the office 
 of the Archbishop of Canterbury, acting through this Court, 
 that is being promoted. When this is borne in mind, the 
 question now raised appears to be one of extreme simplicity. 
 It is this, whether the promoter, having by reason of his resigna- 
 tion of the see of Winchester ceased to bear the designation or 
 title which he bore when he first instituted this suit, the Court 
 shall allow this suit to proceed with the alteration in the title 
 of it which is thus rendered necessary, and which is now prayed 
 for by the promoter. I am of opinion the Court must allow 
 the suit to proceed with the alteration of the title of the pro- 
 moter. I doubt whether I have any discretion in the matter, 
 but if I have a discretion, I am certain I ought not to allow 
 (having regard, to the principles which govern the practice of 
 this Court) a technical objection of this kind to prevail. I 
 must dismiss the defendant's petition. I order the title of the 
 cause to be amended according to the prayer of the promoter. 
 A new proxy must be given in Bishop Sumner's own name. 
 
THE OFFICE OF THE JUDGE PROMOTED BY 
 BISHOP SUMNER v. WIX. 
 
 Certain uses of lighted candles and of incense during Divine 
 Service declared unlawful. 
 
 This is the same case as to that which the last judg- 
 ment (y^e Bishop of Winchester v. Wix) relates, con- 
 tinued under its new title. 
 
 I gave the following final judgment in it on the 3d 
 of February 1870, at the same time as I gave judgment 
 in the next case, that of Elphinstone v. Purchas} 
 
 There was no appeal in this case. 
 
 The case is reported in the Law Eeports, 3 Admiralty 
 and Ecclesiastical, page 58. 
 
 JunaMENT. — In this case the office of the Judge is promoted 
 by the late Bishop of Winchester against the Eev. Eichard 
 Hooker Edward Wix, Vicar of St. Michael and AU Angels, 
 Swanmore, in the Isle of Wight. 
 
 The case comes before this Court by letters of request from 
 the diocese of Winchester, and Bishop Sumner having ceased to 
 be bishop of the see of Winchester continues to be the promoter 
 of the suit.^ 
 
 The defendant is charged with the ecclesiastical offences of 
 adding to the ceremonies and rites prescribed by the law to 
 be used in church, by the burning of lights and the use of in- 
 cense. 
 
 The charges with respect to the burning of lights are contained 
 in the following articles : — 
 
 1 Vide infra. * Vide supra, Bishop of Winchester v. Wix. 
 
Bishop Sumner Y. IVix. I53 
 
 "3d. That the said Eiohard Hooker Edward Wix, in the 
 church of the said perpetual curacy or vicarage of St. Michael 
 and All Angels, Swanmore, on the following Sundays, to wit, 
 on the 7th day of February, on the 28th day of March, on the 
 18th day of April, and on the 23d day of May, all in the year 
 1869, used lighted ciandles on the communion table in the said 
 church, or on a ledge or shelf immediately above the said 
 communion table ; the said ledge or shelf having the appear- 
 ance of being affixed to and of forming part of the said com- 
 munion table ; during the celebration of the Holy Communion 
 at times when siieh lighted candles were not required for the 
 purpose of giving light, and permitted and sanctioned such use 
 of lighted candles." 
 
 . ; " 5th. That the said Eichard Hooker Edward Wix, in the said 
 church on the following Sundays, to wit, on the 28th day of 
 March, on the 18th day of April, and on the 23d day of May, 
 all in the year 1869, used lighted candles placed in candle- 
 sticks standing on each side of the communion table during the 
 celebration of the Holy Communion, at times when such lighted 
 candles were not required for the purpose of giving light, and 
 permitted and sanctioned such use of lighted candles." 
 
 " 7th. That the said Eichard Hooker Edward Wix, in the said 
 church, on Sunday the 28th day of March 1869, caused or per- 
 mitted two lighted candles to be held, one on each side of the 
 priest when reading the Gospel, such lighted candles not being 
 then required for the purpose of giving light." 
 
 I wiU deal with the last article first, because it is admitted 
 on behalf of the promoter, that the practice therein complained 
 of has been de facto discontinued by Mr. Wix since the service 
 upon him of a monition by the Bishop, dated the 3d" of April 
 in last year, and before the commencement of this suit; at the 
 same time Mr. Wix contends that the practice is lawfiil, and 
 the judgment of the Court is prayed by the promoter there- 
 upon. 
 
 I am of opinion that the practice charged in this article is 
 unlawful, as an addition to the rites or ceremonies prescribed 
 by the law. I am glad therefore, that Mr. Wix obeyed the 
 monition of his Ordinary, and must admonish him not to return 
 to the use of this practice. 
 
 With respect to the charge contained in the 3d article, Mr. 
 Wix offers the following defence in his responsive plea (3d 
 article) : — 
 
 He says the charge against him,^ — 
 , , " Is in part untruly pleaded, for he alleges that on the said 
 days in the, said third article mentioned, the said lighted candles- 
 were not .placed on the communion table, or on a ledge -or shelf 
 
154 Ecclesiastical Judgments. 
 
 immediately above the same as therein alleged, but upon a cer- 
 tain other table called a retable, the said retable standing dis- 
 tinct and separate from and not forming or appearing to form 
 part of, and not being affixed or appearing to be affixed to, the 
 said communion table." 
 
 And he denies that the use of such lighted candles is an 
 unlawful addition to or deviation from the forms prescribed by 
 the law. 
 
 With respect to the charge in the 5th article, the defendant 
 admits the fact to be true as stated, but makes a similar denial 
 with respect to the law. 
 
 The charges with respect to the unlawful use of incense are 
 contained in the following articles : — 
 
 " 9th. That the said Kichard Hooker Edward Wix, in the said 
 church on the ■ following Sundays, to wit, on the 7th day of 
 February, on the 28th day of March, on the 18th day of April, 
 and on the 23d day of May, all in the year 1869, used incense 
 for censing persons and things in and during the celebration of 
 the Holy Communion, or as subsidiary thereto, and permitted 
 and sanctioned such use of incense." 
 
 The defendant in his responsive plea (Article 9) denies that 
 he on the days in the article mentioned used incense for cens- 
 ing persons and things in and- during the celebration of the 
 Holy Communion, or as subsidiary thereto, or pennitted or 
 sanctioned such use of incense as in the said article alleged. 
 And the defendant further says that he used, and permitted, 
 and sanctioned the use of incense on the days in the said article 
 mentioned not for censing persons or things nor in or during the 
 celebration of the Holy Communion, nor as subsidiary thereto, 
 but for other and lawful purposes. 
 
 " 1 1 th. That the said Eichard Hooker Edward Wix, in the said 
 church on the following Sundays, to wit, on the 7th day of 
 February, on the 28th day of March, on the 18th day of April, 
 and on the 23d day of Maj^ all in the year 1869, used incense 
 in and during the celebration of the Holy Communion, or as 
 subsidiary thereto, and permitted and sanctioned such use of 
 incense." 
 
 As to this article, the defendant in his responsive plea (Art. 
 11) denies that he on the days in the said 11th article men- 
 tioned used incense in and during the celebration of the Holy 
 Communion, or as subsidiary thereto, or permitted and sanc- 
 tioned such use of incense. 
 
 " 13th. That the said Eichard Hooker Edward Wix, in the 
 said church, on the following Sundays, to wit, on the 7th day 
 of February, on the 28th day of March, on the 1 8th day of April, 
 and on the 23d day of May, all in the year 1869, used incense 
 
Bishop Sumner v. Wix. 155 
 
 during Divine Service, or as subsidiary thereto, and permitted 
 and sanctioned such use of incense." 
 
 As to this article, the defendant in his responsive plea (Art. 
 13) denies that he used or permitted or sanctioned the use of 
 incense on the days in the said 1 3th article mentioned, during 
 Divine Service, or as subsidiary thereto, but he admits that he 
 used incense in a proper and lawful manner on the said days, 
 
 " 15th. That the said Eichard Hooker Edward Wix, in the 
 said church, on the following Sundays, to wit, on the 7th day 
 of February, on the 28th day of March, on the 1 8th day of April, 
 and on the 23d day of May, all in the year 1869, ceremonially 
 used incense, and permitted and sanctioned such ceremonial 
 use of incense." 
 
 As to this article, the defendant in his responsive plea (Art. 
 1 5) denies that he on the days in the said article mentioned 
 used incense ceremonially, or permitted or sanctioned such 
 ceremonial use of incense. 
 
 It appears from the evidence that what is called the retable 
 is a separate and distinct piece of furniture from the holy table ; 
 that it is placed behind the holy table ; and that the ledge or 
 shelf of it, to use the words of the witness, " appears like a 
 mantle-piece" over the holy table; that on this retable stood 
 two large candles and twelve branch candles; and that on 
 each side of the holy table there stood a large candlestick 
 which rested on the ground. All these candles were lighted at 
 the time and in the manner which I will now state. And I 
 may remark that the counsel for Mr. Wix admitted very pro- 
 perly that the evidence given by the witness Cooper was sub- 
 stantially correct, and did not cross-examine him. It appears 
 from his evidence that after the third collect for grace had been 
 said, then there was a sermon; after which the remaining 
 prayers were said, concluding with the apostolic benediction. 
 After this the candles were lighted by a chorister ; there was a 
 procession by the minister and choir then formed, and they 
 went from the church to the vestry. After which, another 
 procession came from the vestry with censers and incense 
 burning, went to the holy table, where the priest stirred up 
 the incense, and censed aU the things on the retable and 
 holy table, while he himself was censed by a boy behind him. 
 After which the censers and incense were carried by a boy into 
 the vestry, accompanied, it should seem, by one of the priests, 
 another priest remaining at the holy table. After the Commu- 
 nion service was over the censers were again fetched from the 
 vestry ; another procession was formed and the lights were ex- 
 tinguished. There were no lighted candles on the holy table 
 itself; there was no incense burning during the time of the 
 
't$6 Ecclesiastical Judgments. 
 
 GeleBration of the Eucharist. Between the close of the morning 
 prayers and the beginning of the Communion service some of 
 the congregation left the church and other persons catae in, 
 and a bell was rung to denote that the Communion service had 
 begun. These four facts which are proved in the case are 
 much relied upon by the counsel for Mr. Wix as materially 
 differing the present case from that oi Martiv, v. MackonocMe;^ 
 so much so as to make this present case one primce impres- 
 sionis. 
 
 It has been forcibly contended that the two judgments of Mar- 
 tin V. Maekonochie and Westerton v. Liddell are irreconcilable in 
 principle, and that I ought to foUow the doctrine laid down in 
 the former, and not in the latter case. If indeed, the duty 
 were cast on me of demonstrating that the two decisions were 
 in every respect harmonious as to the principle on which they 
 proceeded, I might perhaps, though I do not say that I should, 
 find the task a difficult one to execute, more especially with 
 respect to the weight apparently given to the Injunctions of 
 ' Edw. VI. in Westerton v. Liddell, and their entire rejection in 
 Martin v. Maekonochie, when they were relied upon for the ' 
 purpose of showing that the burning of two candles to repre- 
 sent the true light of the world was illegal. But I am happy 
 to think that no such duty is imposed upon me in the present 
 case. The lights which were burnt in this case were not upon 
 the holy table or " high altar," and therefore are unaffected by 
 the Injunctions ; and the lighting and the burning of them in 
 the manner and the circumstances proved appears to me to fall 
 under the category of ceremonies. Nor are they, in the language 
 of the Privy Council in Martin v. Maekonochie (2 P. C. App. 
 p. 387), "inert and unused," but things actively employed as a 
 part of a ceremony, and are therefore illegal according to my 
 own decision in the same case. It is not necessary that I 
 should pass any opinion upon the legality of these things, if 
 they were decorations, and neither " ornamenta " nor cere- 
 monies. It will be remembered that the candles were lit and 
 burning during the whole of the Communion service. 
 
 Now with respect to the use of incense, the principal defence 
 is that it was employed during an interval between two ser- 
 vices, and neither belonged to nor was subsidiary to either. I 
 cannot take this view of the state of facts which is proved by 
 the evidence. I think the fair result of that evidence is that 
 incense was used in the interval between two services which 
 would otherwise have immediately succeeded each other; 
 almost the same congregation was present at both services 
 and in. the interval between them. It is true that after the 
 
 ' ' ' 1 Vide supra. 
 
Bishop Sumner v, Wix. 157 
 
 incense had been removed a bell was rung to sighify that the 
 second service was about to begin ; but looking at all the cir- 
 cumstances I think it would be unreasonable and unjudicial 
 not to conclude that the "burning of the incense was intended to 
 be subsidiary and preparatory to the celebration of the Holy 
 Communion. I am bound therefore to pronounce that the 
 use of the incense as well as the lighting and burning of the 
 candles, according to the facts admitted to be proved in this 
 case, were illegal acts, and that Mr. Wix ought to have obeyed 
 altogether, as he did partially, the monitions of his Ordinary, 
 which are set forth in the articles, and I must admonish him 
 to abstain from such practices for the future, and I must con- 
 demn him in the costs of this suit. 
 
THE OFFICE OF THE JUDGE PROMOTED BY 
 ELPHINSTONE v. PURCHAS. 
 
 ( I .) It is lawful to tvear the vestments prescribed by the Rubrics 
 of the First Prayer-Book of Edward VI. at the times 
 therein prescribed for them. 
 
 (2.) It is not lawful to wear other vestments or those vest- 
 ments at other times. 
 
 (3.) It is lawful to carry a biretta in the hand in Church. 
 
 (4.) It is lawful to use wine m.ixed with water in the admin- 
 istration of the Holy Communion. 
 
 (5.) It is lawful to use wafer-bread in the administration of 
 the Holy Communion. 
 
 (6.) It is lawful to stand before the Holy Table facing 
 Eastward during the Prayer of Consecration. 
 
 (7.) It is not lawful to stand before the Holy Table facing 
 Eastward during the reading of the Collects next before 
 the Epistle, the Epistle or the Collects following the 
 Creed. 
 
 (8.) It is lawful to have vases of flowers upon the Holy Table. 
 
 (9.) U is not lawful to leave the Holy Table bare during 
 Divine Service. 
 (10.) Certain processions and additional cerem-onies, and the 
 giving of certain notices, declared unlawful. 
 
 The defendant in this case did not appear. 
 
 I gave judgment in it on the 3d of February 1870, at 
 the same time as I gave judgment in the previous case 
 of Sumner v. Wix. 
 
 There was no appeal on points (2), (7), (8), (9), and 
 (10). On point (3) the Privy Council affirmed, and on 
 points (1), (4), (5), and (6) they reversed, my decision. 
 
ElphinstoncY. Ptirchas. 159 
 
 During the progress of the appeal the promoter, Mr. 
 Elphinstone, died. A Mr. Hebbert then applied, and 
 was allowed, to appear as promoter in Mr. Elphinstone's 
 stead ; the decision, therefore, of the Privy CouncU was 
 given in the cause nomine Hebbert v. Purchas. After 
 this decision Mr. Purchas applied to be allowed to 
 appear, and to have the cause re-argued. This was not 
 allowed. 
 
 The case is reported in the Law Keports, in the 
 Arches Court, 3 Admiralty and Ecclesiastical, p. 66, 
 in the Privy CouncU, 3 P. C. App. pp. 245, 605, 664. 
 
 Judgment. — This case comes before me by letters of request 
 from the Bishop of Chichester. The decree by letters of request 
 was served on Mr. Purchas on the 9th of October, and the case 
 ■was heard durmg last term. Mr. Purchas has not appeared to 
 the citation, and the proceedings have therefore been carried on 
 in pcenam. I deferred my judgment, in order to consider the 
 various authorities that were cited and the arguments adduced 
 by counsel, — a burden which pressed the more heavily upon 
 the Court, inasmuch as the case was heard ex parte, — and also 
 because some of the same points were raised in a proceeding 
 against Mr. Wix, which was argued before the Court at the be- 
 ginning of this term, and in which I have just given judgment.^ 
 
 Mr. Purchas is perpetual curate of the perpetual curacy of 
 St. James's Chapel, in the parish of Brighton. The benefice is 
 created by an Act of Parliament, 7 Geo. iv. c. 3, which enacts 
 that the repahs shall be executed by a particular person, and 
 that the bread and wine for the Holy Communion shall be 
 provided by the perpetual curate, but contains no provisions as 
 to churchwardens. The chapel and the perpetual curate are 
 made subject to the ordinary jurisdiction of the Lord Bishop of 
 Chichester. The incumbent of this chapel seems to have no 
 cure of souls. The chapel itself, with a certain portion of the 
 pews and seats, and the rents, profits, and proceeds, are by the 
 statute vested in a person of the name of Nathaniel Kemp, his 
 heirs and assigns •(§ 9). The promoter of the office of the 
 Judge in this case is described as a colonel in Her Majesty's 
 army, and as " of Brighton ; " but I do not remember that it 
 appeared that he is a member of the congregation of the chapel, 
 or in any way connected with it. 
 
 The suit, like the preceding one again.st Mr. Wix, is in form 
 
 * Vide supra, Sumner v. Wix. 
 
'1 60 Ecctesio^s'ticc^l yudgmfinU.. 
 
 criminal; and the articles are fotty-four in number'; they under- 
 went some reformation ; and now I think the articles of charges 
 are contained in thirty-five of them. They accuse the defendant 
 of various ritual acts and observances, which are said to contra- 
 vene the Acts of Uniformity, the Canons, and the general law 
 of the Church. They enter into minute details and specifica- 
 tions, — some of a character extremely trivial, which it is im^ 
 possible not to regret should ever have occupied the time of 
 this Court ; but others are of a graver character. 
 
 With respect to the evidence given before, me in proof of 
 these articles, I think it enough to say that it has been sufi- 
 cient, with occasional exceptions, which I have noticed in their 
 proper place, substantially to support them. 
 
 The most serious matter is that which relates to the wearing 
 of certain vestments by Mr. Purchas and by other officiating 
 ministers with his consent during the celebration of Divine 
 service. The articles which contain these charges are as 
 foUows : — 
 
 "XXXIV. That you, the said Eev. John Purchas, in the. 
 said church or chapel of St. James's, Brighton, aforesaid, on 
 several occasions (to wit, on the Feast of the Purification of 
 the Virgin Mary, February the 2d, 1869 ; Ash Wednesday, 
 February the 10th, 1869 ; Easter Sunday, March the 28th, 
 1869; and on Whit-Sunday, May the 16th, 1869), used and 
 wore a certain vestment called a cope while performing morn- 
 ing prayer, or parts of the service appointed for morning 
 prayer, and before commencing the Communion service as' 
 officiating minister. That you also, on several occasions (to 
 wit, on Sunday, November the 1st, 1868, and on Easter Sun- 
 day, March the 28th, 1869), while present in the said church 
 or chapel, and responsible as perpetual curate or minister 
 thereof for the due performance of Divine service therein, 
 sanctioned and authorised the wearing of a cope by other 
 officiating clergymen while performing morning prayer, or 
 parts of the service appointed for morning prayer, and before 
 the! commencement of the Communion service. 
 
 " XXXV. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, on several 
 pccasions (to wit, on Sunday evening, January the 31st, 1869 ; 
 February the 28th, 1869; and Saturday evening, March the 
 27th, 1869), used and wore a certain vestment called a cope 
 while performing evening prayer, or parts of the service ap- 
 pointed for evening prayer, as officiating minister ; and also on 
 several occasions (to wit, on Sunday evening, November the 
 8th, 1868; January the 17th, 1869 ; February the '7th, 1869 ; 
 March the Uth, 1869 ; March the 21st,. 1869 ; and March the 
 
Elphinsione v. Purchas. 16 1 
 
 28tli, 1869), while present in the said church, and being re- 
 sponsible, as perpetual curate or minister thereof, for the due 
 performance of Divine service therein, sanctioned and authorised 
 the wearing of a cope by other clergymen while performing 
 evening prayer, or parts of the service appointed for evening 
 prayer, as officiating ministers. 
 
 " XXXVI. That you, the said Eev. John Purchas, in the 
 said church or chapel of St. James's, Brighton, aforesaid, on 
 several occasions (to wit, Sunday morning, November the Ist/ 
 1868; Sunday morning, November the 8th, 1868; Sunday 
 morning, January the 17th, 1869; Sunday morning, January 
 the 31st, 1869; Sunday morning, February the 7th, 1869; 
 Sunday morning, Februaly the 28th, 1869; Sunday morning, 
 March the 14:th, 1869; Monday morning, March the 15th, 
 1869; and Easter Sunday morning, March the 28th, 1869) 
 used and wore a vestment called a chasuble while officiating in 
 the Communion service and in the administration of the Holy 
 Communion, and on the said days and times, while present in 
 the said church and yourself officiiating, and while responsible, 
 as perpetual curate or minister thereof, for the due perform- 
 ance of Divine service therein, sanctioned and authorised the 
 wearing of a chasuble by other clergymen while also officiating in 
 the Communion service and in the administration of the Holy 
 Communion in the said church or chapel. 
 
 " XXXVII. That you, the said Eev. John Purchas, in the 
 said church or chapel of St. James's, Brighton, aforesaid, on 
 divers occasions (to wit, on Sundays, November the 1st, 1868 ; 
 November the 8th, 1868; January the 17th, 1869; and Feb- 
 ruary the 2d, 1869 ; and on Saturday evening, May the 15th, 
 1869) caused or suffered certain clergy, forming part of the 
 clergy then officiating or taking part in the ceremonial of 
 Divine service at morning prayer, to wear certain other vest- 
 ments — to wit, albs with patches called ' apparels,' and also to 
 wear tippets of a circular form on their shoulders, instead of 
 such surplices or surplices and hoods as are accustomably 
 worn; and on Sunday, February the 7th, 1869, and Good 
 Friday, 1869, you, the said Eev. John Purchas, yourself wore 
 such tippet, as aforesaid. 
 
 " XXXVIII. That you, the said Eev. John Purchas, in the 
 said church or chapel of St. James's, Brighton, aforesaid, on 
 divers occasions (to wit, on Sunday, November the 8th, 1868 ; 
 on Sunday, January the 17th, 1869, and other times) at even- 
 ing prayer wore a scarlet stole embroidered with crosses over 
 your surplice, and at morning service, on Tuesday, February 
 the 2d, 1869, wore a gold stole over a garment called an 
 alb, and have usually within two years last past worn a stole 
 
1 6 2 Ecclesiastical Judgments. 
 
 of some colour during Divine service in your said churcli or 
 chapel. That on divers occasions (to wit, on Sunday, January 
 the 17th, 1869, Sunday, February the 28th, 1869, and other times 
 within two years last past) you caused or suffered certain of 
 the clergy officiating or assisting at the Communion service, in 
 your presence, in the said church or chapel, to wear certain 
 other vestments (to wit, dalmatics, tunics or tunicles, and albs) 
 instead of surplices, and you yourself also, at such times, when 
 officiating in the Communion services, have worn a certain 
 vestment (to wit, an alb) instead of a surplice, and you your- 
 self also then wore, and caused or suffered to be worn by other 
 officiating clergy, a girdle, amice, and maniple ; and you also 
 on divers occasions (to wit, on Sunday, February the 28th, 
 1869, and on divers other days within two years last past) 
 wore, and caused or suffered certain of the other clergy offici- 
 ating or assisting at the Communion service to wear, a stole 
 crosswise, that is to say, crossed over the breast, and you also 
 wore or bore in your hand, and also caused or suffered to be 
 worn or borne in the hand in your presence by other offici- 
 ating clergy in the said church or chapel on divers occasions 
 (to wit, on Sunday, February the 28th, 1869, and on Easter 
 Sunday, 1869; and Whit-Sunday, May the 16th, 1869, and 
 other times within two years last past) a certain cap or cover- 
 ing for the head called a biretta. 
 
 " XXXIX. That the said vestments in this last and in the 
 four next preceding articles mentioned were worn, on the seve- 
 ral occasions therein mentioned, as a matter of ceremony by 
 the said clergy whilst so officiating, and were, as a matter of 
 ceremony, of divers colours, and some of them (to wit, the said 
 copes, chasubles, and stoles) of gaudy and variegated colours, 
 the particular hue and pattern of the same being varied, as a 
 matter of ceremony, according to the days and times on which 
 the same were so worn." 
 
 The Eubric (for I shall use this expression for the sake of 
 clearness), which it is admitted contains the law as to the 
 vestments of the bishop, priest, and deacon, is as follows : — 
 
 "And here is to be noted that such ornaments of the 
 church, and of the ministers thereof at all times of their 
 ministration, shall be retained and be in use as were in this 
 Church of England by authority of Parliament, in the second 
 year of the reign of King Edward the Sixth." 
 
 As to the construction of this Rubric, according to the 
 general principles of legal interpretation, I must say thatj 
 after a repeated and attentive perusal of the language, it does 
 fer se appear to me as plain and simple as any which is to be 
 found in any statutory enactment. Lord Coke says that 
 
Elphinstone v. Purchas. 163 
 
 " loquendum est ut vulgus " is to be assumed as the principle 
 which underlies the language of enactments ; and I really do 
 not believe that any person of plain common sense and ordi- 
 nary intelligence who reads this language, uninfluenced by con- 
 siderations arising from supposed consequences, would hesitate 
 as to the interpretation of it. He would say, with the Privy 
 Council, in Westerton v. Liddell, it " obviously" meant that the 
 same ornaments which were used under the first Prayer-Book 
 of Edward vi. "may still be used." He would perfectly 
 understand why the Puritan party objected to this Eubric, 
 " Forasmixch as this Eubric seemeth to bring back the cope, 
 albe, etc., and other vestments forbidden by the Common 
 Prayer-Book, 5 & 6 Edw. 6th, and so our reasons alleged 
 against ceremonies under our eighteenth general exception, we 
 desire it may be wholly left out ;" and why the House of 
 Lords should at the same time suggest as a consideration, 
 " whether the Eubric should not be mended, where all vest- 
 ments in time of Divine service are now commanded, which 
 were used 2 Edward vi." — (CardweU's Conferences, pp. 274, 
 3U.) 
 
 And I am convinced that, if the subject to which the lan- 
 guage refers were not one which excites some of the strongest 
 passions and feelings of our nature, but was one of an ordinary 
 indifferent and civil character, no dispute would ever have 
 been raised with respect to the plain and natural meaning of 
 that language. Much ingenuity has been exerted to show that 
 the obvious meaning is not the true one, and, in fact, that not 
 only the structure of the sentence must be altered, but other 
 words must be introduced into it before it can receive a legitimate 
 construction. Accordingly it has been argued before me that 
 the Eubric in question ought to be read as if the words were 
 as follows : — " That all ornaments which were in use at the 
 time when Charles ii.'s Act of Uniformity was passed were 
 henceforth to be retained and used, if they were likewise con- 
 tained in the Pirst Book of Edward vi." It is not too much to 
 say that, before such interpretation can be legally adopted, the 
 departure from the "obvious" meaning of the language em- 
 ployed must be demonstrated to be required by the nature of 
 the sixbject to which it is applied ; and I am thus brought to 
 another consideration, namely, as to the difficulty which is, so 
 to speak, imported from without, or, in other words, the sup- 
 posed consequences which would flow from the obvious ren- 
 dering of the language. The consequences which would follow 
 upon the use of the particular vestments specified in the First 
 Prayer-Book of Edward vi. would, it is alleged, be the restora- 
 tion of Eoman ceremonies in the Church of England, abhorrent 
 
164 Ecclesiastical ytidgments. 
 
 to the principles on which her reformation was conducted. In 
 the judgment in Martin v. Mackonochie} I stated at consider- 
 able length, citing a great number of authorities in support of 
 the position, what I conceived to be the true legal status of the 
 Church of England with respect to her doctrines and her cere- 
 monies ; namely, that as to both, she had regard to the un- 
 divided Church and to primitive and Catholic doctrine and 
 usage, rejecting those novelties and additions which the Curia 
 of Eome had from time to time imposed upon its subjects. 
 To all that I said upon this matter in the case of Martin v. 
 Mackonochie I steadily adhere. I do not find that any con- 
 trary position was laid down by their Lordships of the Judicial 
 Committee of the Privy Council, and it is a satisfaction to me 
 to be able to add to this list of authorities before cited by me, 
 that of the present Bishop of Ely, who, in his recent charge, 
 places the position of our Church upon a similar founda- 
 tion. 
 
 That very learned prelate says : — 
 
 " The Eeformation heve, at least, was intended to be, and in 
 the main became, not a lawless throwing off of lawful autho- 
 rity, not a wanton division from the body of the Church of 
 Christ, but rather a £rm and reverent maintenance of the right 
 of each national Church to minister its own laws and discipline, 
 and to regulate its own faith and worship, specially when 
 other Churches refused reformation, and an external force 
 strove to suppress and smother the cry for it wherever it was 
 raised. We denied, and we stiU deny, that this was schism ; 
 we did not separate from the Churches of France or Spain, or 
 Germany or Italy." — {Chavge, p. 59.) 
 
 And again, — 
 
 " I have tried to turn your thoughts to the earliest ages of 
 the Christian faith ; you well .know that the professed principle 
 of the English Eeformation was a recalling of faith and a 
 readjusting of ceremonial to the pattern, as far as possible, of 
 the primitive Church." — (Ihid. p. 90.) 
 
 It is a mistake in law, as well as in history, to conceive that 
 the position of the ChurcTi .of England with respect to the 
 Eoman Church *can be ascertained by citations of the violent 
 vituperations to be found during the heat of religious con- 
 flict in the writings of some extreme reformers, — many of 
 whom upon examination will be found to be just as hostile 
 to the present .doctrines and ceremonies of England as they 
 were at that time to those of Eome. And this remark is 
 especially applicable to foreign reformers, whose Churches were 
 constructed on a different basis from that of the Church of 
 ^ Vide supra. 
 
Elphinstonev. Purchas. 165 
 
 England, thougli perhaps it is not impertinent to observe that 
 the gorgeousness of the vestments and the ritual, which the 
 Scandinavian reformers were not afraid to leave to their Church, 
 far exceeds any that was contemplated by the first Prayer- 
 Book of Edward VI. 
 
 The principal vestments complained of in this case afford a 
 strong illustration of the truth of my general remark : they are 
 mentioned in the first Prayer-Book as a "vestment" and a 
 *' cope." And when it was argued that the cope could not be 
 legally worn by Mr. Purchas, because it was symbolical of 
 Eoman error and corruption, it was admitted that it was 
 specially retained by the existing law as proper, if not ab- 
 solutely necessary, to be worn in Cathedral and Collegiate 
 Churches. The surplice itself, which it is now contended 
 .ought to be worn instead of these vestments, was, and I 
 believe is now, considered by the Presbyterians as one of 
 the worst rags of Popery which the Church of England has 
 retained. 
 
 And here, perhaps, it is not irrelevant to advert to the 
 language of Hume in describing the state of parties in England 
 on the eve of the great Eebellion : — 
 
 " But the grievances which tended chiefly to inflame the 
 Parliament and nation, especially the latter, were the surplice, 
 the rails placed about the altar, the bows exacted on approach- 
 ing it, the Liturgy, the breach of the Sabbath, embroidered 
 copes, lawn sleeves, the use of the ring in marriage, and of the 
 cross in baptism. On account of these," he adds (I am not 
 now concerned with the justice of his censure), "were the 
 popular leaders content to throw the Government into such 
 violent convulsions ; and, to the disgrace of that age and of 
 this island, it must be acknowledged that the disorders in 
 Scotland entirely, and those in England mostly, proceeded 
 from so mean and contemptible an origin." — {Hume's History 
 of England, vol. vi. ch. 54, p. 388.) 
 
 I dismiss the argument of consequences froiri my considera- 
 tion, and proceed to apply the usual canons of interpretation 
 to the Eubric before me. 
 
 The Eubrics in regard of vestments in the first Prayer-Book 
 of Edward vi., to which I am referred by the present Eubric, 
 were as follows : — 
 
 (1.) At the beginning of the Communion service : — 
 
 " The Priest that shall execute the holy ministry shall put 
 upon him the vesture appointed for that ministration, that is to 
 say, a white albe, plain, with a vestment or cope. And where there 
 be many Priests or Deacons, there so many shall be ready to 
 help the Priest in the ministration as shall be requisite, and 
 
1 66 Ecclesiastical Judgments. 
 
 shall have upon them likewise the vesture,s appointed for their 
 ministry, that is to say, albes, with tunicles." 
 
 (2.) At the end of the Communion service : — 
 
 " And though there be none to communicate with the Priest, 
 yet these days (after the Liturgy ended) the Priest shall put 
 upon him a plain albe or surplice, with a cope, and say all 
 things at the altar (appointed to be said at the celebration of 
 the Lord's Supper) until after the offertory." 
 
 (3.) At the end of the Book of Common Prayer, after the 
 exposition " of Ceremonies : " — 
 
 " In the saying or singing of matins and evensong, baptising, 
 and burying, the minister, in parish churches and chapels 
 annexed to the same, shall use a surplice ; and in all cathedral 
 churches and colleges, the archdeacons, deans, provosts, masters, 
 prebendaries, and fellows, being graduates, may use in the 
 choir, besides their surplices, such hoods as pertaineth to their 
 several degrees which they have taken in any university within 
 this realm ; but in all other places every minister shall be at 
 liberty to use any surplice or no. It is also seemly that 
 graduates when they do preach should use such hoods as per- 
 taineth to their several degrees. And whensoever the bishop 
 shall celebrate the Holy Communion in the church, or execute 
 any other public ministration, he shall have upon him, beside 
 his rochette, a surplice or albe, and a cope or vestment; and 
 also his pastoral staff in his hand, or else borne or holden by 
 his chaplain." 
 
 These Eubrics were abolished by the second Prayer-Book of 
 Edward vi., which substituted the following : — 
 
 " The minister at the time of the Communion, and at all 
 other times in his ministration, shall use neither albe, vest- 
 ment, nor cope ; but being archbishop or bishop he shall have 
 and wear a rochet, and being a priest or deacon shall have and 
 wear a surplice only." 
 
 All these Eubrics, and the services to which they belong, 
 were repealed in the reign of Queen Mary (1 Mar. Sess. 2, 
 cap. 2). 
 
 By the next Act of Uniformity (1 Eliz. c. 2, s. 25) it was 
 enacted — 
 
 " That such ornaments of the Church, and of the ministers 
 thereof, shall he retained and be in use as was in this Church 
 of England by authority of Parliament in the second year of 
 King Edward vi., until other order shall be therein taken by 
 the authority of the Queen's Majesty, with the advice of Her 
 Commissioners appointed and authorised under the Great Seal 
 of England for causes ecclesiastical, or of the Metropolitan of 
 this realm." 
 
Elphinstone v. Purchas, 167 
 
 Annexed to this statute by s. 2, was the Queen's Prayer- 
 Book, the Rubric to -which was as follows : — 
 
 " And here it is to be noted that the minister, at the time of 
 the Communion, and at all other times in his ministration, 
 shall use such ornaments in the Church as were in use by 
 authority of Parliament in the second year of the reign of King 
 Edward vi., according to the Act of Parliament set in the 
 beginning of this book." 
 
 It wiU.be observed that the words "retained and" which do 
 occur in the Act, were omitted in this Eubric ; and they do 
 not appear in the Paibric of the Prayer-Book of King James, 
 which is identical with that of Elizabeth. 
 
 It is admitted that on the passing of this statute the vest- 
 ments prescribed by the first Prayer-Book came into legal use ; 
 but it has been contended that Queen Elizabeth exercised the 
 power given her by the statute, and " took other order." 
 
 If any such further order were taken in compliance with the 
 statute, it must be in one of four ways : — 
 
 (1) Either by the Injunctions of 1559, or (2) the Advertise- 
 ments of 1564-5, or (3) the Canons of 1603-4, or (4) the 
 Canons of 1640. Of these four the Advertisements were 
 principally relied upon as the execution of the further order, 
 though the Canons of 1603-4 were also prayed in aid. Before, 
 however, I consider these two modes of execution, I will say a 
 word as to the Injunctions and the Canons of 1640. The 
 Injunctions, which I think must upon the whole be considered 
 as having been issued by the Eoyal authority alone, and as not 
 having statutory authority, do not contain any express order 
 with regard to the vestments ; but the archbishop and certain 
 bishops afterwards drew up " Interpretations and further Con- 
 siderations of these Injunctions for the better direction of the 
 Clergy ; " among which is to be found the following : — 
 
 " Concerning the Book of Service." 
 
 " First. That there be used only but one apparel ; as the cope 
 in the ministration of the Lord's Supper, and the surplice in all 
 other ministrations." — (1 Cardwell, Doc. Annals, p. 238.) 
 
 With respect to the Canons of 1 640, they contain no provi- 
 sion as to the subject of vestments. I come, therefore, to a 
 consideration of the Advertisements. Those which refer to 
 the present question are as follows : — 
 
 "Item. In the ministration of Holy Communion in the 
 cathedrall and collegiate churches, the principal minister shall 
 use a cope, with gospeller and epistoler agreeably ; and at all 
 others prayers to be sayde at the Communion Table, to use no 
 copes but surplesses." 
 
 " Item. That the deane and prebendaries weare a surplesse 
 
1 68 Ecclesiastical Judgments. 
 
 with a silke hoode in the quyer ; and when they preache in 
 the cathedrall or collegiate churche to weare their hoode." 
 
 " Item; That every minister sayinge any publique prayers, 
 or ministringe the Sacramentes, or other rites of the churche, 
 shall weare a comely surples, with sleeves, to bee provided at 
 the charges of the parishe." — (1 Gah-dwell, Boc. Annals, p. 326.) 
 
 The authority usually referred to with respect to these 
 Advertisements is Strype's Life of Parker (vol. i. chap. 20). 
 iCardwell, in his BocioTnientary Annals, and Hallam, in his 
 Constitutional History (vol. i. p. 179, 6th edition), and Collier, 
 in his Ecclesiastical History, dealing with this question of the 
 Advertisements, refer, as to their principal authority, to Strype, 
 in the Annals (vol. i. p. 419, folio), and in his Life of Parker. 
 And, though by no means always an accurate transcriber, his 
 notes appear to be the fountain from which the history of this 
 matter has been principally derived. Burnet, for instance, 
 relies exclusively upon this authority {Hist. Eef. ed. Oxford, 
 1829, vol. iii. p. 588). The history of these Advertisements 
 seems to reflect the doubtful state of all Church authority at 
 the time when they were issued. The Puritan party were 
 freely condemning and disregarding the rites and ceremonies 
 of the restored Church, and by the influence of their patron, 
 the Earl of Leicester, in the Privy Council, were continually 
 thwarting the various orders put forth by the Queen and by 
 the prelates for the purpose of enforcing the uniformity of a 
 decent ritual. The Queen, exasperated by the conduct of the 
 Puritans in 1564, ordered the Archbishop, with the aid of cer- 
 tain other Bishops, members of the Ecclesiastical Commission, 
 to draw up certain Articles or Ordinances, the object of which 
 was to secure as great an amount of decent ritual as the cir- 
 cumstances of the time would permit. Archbishop Parker and 
 some of- the Bishops drew up the articles required ; but, says 
 3trype, " because the book wanted the Queen's authority, they 
 thought fit not to term the contents thereof Articles or Ordi- 
 nances, by which names they at first went, but by a modest 
 denomination, viz., Advertisements." The Queen, it is probable 
 from conflicting motives, partly from the inflxience of Leicester, 
 and partly from an apprehension of weakening the Eubricj 
 which referred to the second year of Edward vi., refused her 
 official sanction to these Advertisements, and, as I think Dr. 
 Card well correctly states, — 
 
 "Left them to be enforced by the several bishops on the 
 canonical obedience imposed upon the clergy, aiid the powers 
 conveyed to the Ordinaries by the Act of Uniformity. Their 
 title and preface certainly do not claim for them the highest 
 degree of authority ; and, althpugh : Strype infers from certain 
 
Elphinstone v. Purchas. i6g 
 
 evidence which he mentions (Parfor,vol. i. p. 3 1 9) that they after- 
 wards received the royal sanction, and recovered their original 
 title of Articles and Ordinances, it seems more probable that 
 they owed their force to the indefinite nature of episcopal juris- 
 diction, supported, as in this instance was known to be the 
 case, by the personal approval of the sovereign." — {CardwelVs 
 Doc. Ann., vol. i. p. 322.) 
 
 Collier observes that — 
 
 " The ' Advertisements ' were checked at present by the inter- 
 posing of the Earl of Leicester, of Knolles, and some other 
 court patrons of the Dissenters; however, afterwards they 
 recovered their first title of Ordinances, and were given in 
 charge at a metropolitical visitation in the year 1576." — 
 {Collier's JEccles. Hist, of Great Britain, ed. 1840, vol. vi. p. 402.) 
 
 " A loud outcry," says Mr. Lathbury [History of Book of 
 Common Prayer, p. 72, iiote 9), " was raised by the Puritans 
 against the Advertisements, as though some new rites had been 
 imposed, whereas they were only intended to enforce such as 
 were already in use, becaiise some of the clergy were lax in 
 their practice. They were allowed by the Queen to be published, 
 but not under Her Majesty's authority 5 consequently, they 
 never possessed the same force as the Injunctions. As, how- 
 fever, tjhey are quoted in the 24th Canon, they are still of some 
 importance. Long after, in this reign, we find the Puritans ■ 
 objecting to the cope as in general use. ' Doe not the people 
 think a more grievous fault is committed if the minister doe 
 celebrate, etc., without a surplesse or a cope, than if the same 
 through his silence should suffer an hundred souls to perish ' 
 {Parte' of Begister, 45). The cope is mentioned frequently in 
 the same work (62, 84)." I cannot find that Archbishop 
 Parker, anxious as he was to enforce these Advertisements, ever 
 said or wrote that they were issued under the authority of the 
 statutes. 
 
 ■ I think the fair result of the history derived from printed 
 books on the subject is, that the Queen never gave her official 
 or legal sanction to these " Advertisements," but allowed them 
 to be issued by the prelates, with the assurance that they had 
 her personal sanction ; and I may add that, to the best of my 
 belief, no legal treatise of authority, and no judgment of a 
 court of justice, has ever yet pronounced that these " Advertise^ 
 ments " were issued under the conditions which the statute of 
 Elizabeth required. 
 
 It is said, however, that though it has been hitherto supposed 
 that th^se Advertisements were issued without the observance 
 of the conditions prescribed in the statute, and, therefore, ille- 
 gally, that recent discoveries in the State Paper Office have 
 
1 70 Ecclesiastical "Judgments. 
 
 brought to light documents -which establish that these condi- 
 tions were complied with, and that the Advertisements had 
 therefore statutable authority. I am unable to draw so large 
 an inference from the manuscript document, copied from the 
 State Paper Office, which has been submitted to me. It does 
 not seem to me to do more than contain a recital in an informal 
 document, "that the Advertisements were sett out by Her 
 Majesties authoritee," which would not carry the matter fur- 
 ther, I think, than the reference to them in the 24th Canon, 
 "according to the Advertisements published Anno 7 Eliz.,'' or, 
 as the Latin version has it, "juxta admonitiones in septimo 
 Elizabethae promulgatas." It is impossible to conceive that the 
 authority which published these Canons was not perfectly 
 aware both of the fact and law relating to these Advertisements, 
 and the manner in which they are referred to would rather lead 
 to the inference that they were not at that time considered to 
 have 'per se a statutable authority. But this point does not 
 appear to me to be of much importance, so far as the present 
 case is concerned, for two reasons : — First, there are no prohi- 
 bitory words, such as were contained in the Eubric to the 
 second Prayer-Book of Edward vi., with regard to the orna- 
 ments of ministers — and this omission is worthy of notice — ^for 
 the gloss, which all ecclesiastical history, contemporaneous and 
 subsequent, would give to the Advertisements is, that they 
 provided that the ornaments of the minister should not fall 
 below a certain point ; not that it should not exceed that point. 
 The object of the Advertisements was to give notice that the 
 minimum of ornament mentioned in them would be enforced 
 by authority, just as, with regard to the vestment of the Holy 
 Table, the 82d Canon prescribed that it should be " covered 
 with a carpet of silk or other decent stuff," and Dr. Lushington 
 held that this excluded other vestments of the altar — ^but their 
 Lordships observed in Westerton v. Liddell : — 
 
 " Next as to the embroidered cloths, it is said that the Canon 
 orders a covering of silk, or of some other proper material, but 
 that it does not mention, and, therefore, by implication excludes, 
 more than one covering. Their Lordships are unable to adopt 
 this construction. An order that a table shall always be covered 
 with a cloth surely does not imply that it shall always be 
 covered with the same cloth, or with a cloth of the same colour 
 or texture. The object of the Canon seems to be to secure a 
 cloth of a sufficiently handsome description, not to guard 
 against too much splendour." — (Moore, p. 188.) 
 
 This view that, where it was intended to prohibit as well as 
 to prescribe, express words of prohibition were used, is further 
 confirmed by the language of the Advertisements themselves ; 
 
Elphinstonev. Purchas. 171 
 
 for instance, the Advertisement which relates to prayers to be 
 said in cathedrals at the Holy Table, when there is no celebra- 
 tion of the Eucharist : — 
 
 "Item. In the ministration of Holy Communion in the 
 cathedrall and collegiate churches, the principall minister shall 
 use a cope with gospeller and epistoler agreeably, and at all 
 other prayers to be sayde at the Communion Table to use no 
 copes but surplesses." — (1 Cardwdl, Documentary Annals, 
 p. 326.) 
 
 It was more faintly argued that, even if the Advertisements 
 did not execute the power giveiji by statute, the Canons of 
 1603-4 had this effect. Upon this argument it is to be 
 observed, in the first place, that they contain no prohibitory 
 words ; and it is upon this very ground that one of them, as I 
 have already said, which gave directions as to the covering of 
 the Holy Table, was held by the Privy Council not to be 
 exhaustive, or to exclude the use of other coverings. In the 
 Second place, it is, to say the very least, questionable whether 
 the words " by the authority of the Queen's Majesty," with the 
 approval of the particular persons mentioned therein, could 
 confer any power upon the succeeding monarch. And, thirdly, 
 the Canons of 1603-4 were made in Convocation with the con- 
 sent of the Crown and under the Statute of Heniy viii. (25 
 Hen. VIII. c. 19), and were the creatures of the distinct 
 ecclesiastical legislature known to the constitution of this 
 country ; and it seems to me impossible to hold, because the 
 Crown ratified what the Convocation did, that a Canon so 
 enacted by Convocation under the statute of Henry viii. could 
 be an execution of a power under a totally different Statute : 
 and it is moreover fatal to the argument, that the Metropolitan 
 was not a member of this Convocation, as appears by the 
 recital in the Crown's writ prefixed to the Canons, the Bishop 
 of London presiding during the vacancy of the see. Lastly, 
 and this remark applies equally to the Advertisements, unless 
 the words " be retained " are to have a special construction put 
 upon them, — a subject which I will presently consider, — a 
 subsequent statute, which expressly revived a prior statute 
 inconsistent with the Advertisements of Queen EUzabeth, 
 would, by necessary implication, repeal them. 
 
 I have already observed that the words " be retained " are 
 in the statute, though not in the Prayer-Book of Elizabeth. 
 Now, is there any reason for supposing that this variance was 
 intentional or significant ? or was the variance accidental and 
 insignificant, because the words were treated as an amplification 
 of the words " be in use " ? I think the last is the true solu- 
 tion, and certainly the Privy Council in Westerton v. Liddell 
 
172 Ecclesiastical yudgments. 
 
 ■were of this opinion; they had to construe the words "he 
 retained " as well as the words " he in use ; " they drew no dis- 
 tinction hetween the two expressions ; they did not rule that 
 the ornaments of the Church could not be legal unless they 
 satisfied the double condition of being in use at the time when 
 the Eubric of Charles 11. became law, and also of their being 
 prescribed by the Prayer-Book of Edward vi. On the con- 
 trary, referring to the difference of Isu^uage between the Statute 
 and the Eubric of Elizabeth, they said : — 
 
 " It will be observed that this Eubric does not adopt pre- 
 cisely the language of the Statute, but eospresses the same thing 
 in other words. The Statute says, 'such ornaments of the 
 Church and of the ministers thereof shall be retained and be 
 in use,' the Eubric, ' that the minister shall use such ornaments 
 in the Church.'"— (Jfoore, p. 159.) 
 
 In truth, there would be an, insuperable difficulty in satisfying 
 the supposed condition that the ornaments must have been de 
 faxito in use ; for what ornaments were in use at the time of 
 the Eestoration ? The churches had been for many years in 
 the possession of the Presbyterians — where they had not been 
 driven out by the Independents ; neither catholic doctrine nor 
 ritual could be found in the churches until after St. Bartholo- 
 mew's Day. 
 
 Nor is the difficulty lessened if the condition be interpreted 
 to imply that the ornaments must be dejure in use ; that would 
 take us back, passing over the Protectorate of Cromwell, to the 
 last year of Charles i.'s reign, that is^ if my observations as 
 to the Advertisements and Canons are correct, to the Eliza- 
 bethan Act of Uniformity, and would give a meaning to the 
 words " be retained " in Charles ii.'s Eubric,, which it is 
 admitted they had not in Elizabeth's Act of Uniformity. 
 
 Bearing in mind the ifnportance of the question, I have 
 endeavoured not to shrink from any part of the arduous duty^ 
 which has devolved upon me. But I am bound to say that I 
 think this Eubric has already received a construction from an 
 authority which is binding upon me. It has been twice con- 
 sidered and elaborately reviewed by the Judicial Committee of 
 the Privy Council, first, in the case of Westerton v, lAddell, 
 secondly, in the case of Martin v. Mackonochie, and in both 
 instances precisely the same construction was put upon it. 
 
 In Westerton v. Liddell the language was as follows : — 
 
 " Their Lordships, after much consideration, are satisfied 
 that the construction of this Eubric which they suggested at 
 the hearing of the case is its true meaning, and that the word 
 ' ornaments ' applies, and in this Eubric is confined, to those 
 articles the use of which in the services and ministrations of 
 
Elphinstone v. Purchas. 173 
 
 the Church is prescribed by the Prayer-Book of Edward the 
 Sixth." 
 
 " The term ' ornaments ' in ecclesiastical law is not confined, 
 as by modern usage, to articles of decoration or embellishment, 
 but it is used in the larger sense of the word ornamentum" 
 which, according to the interpretation of Torcellini's Dictionary, 
 is used ' pro quocumque apparatu, seu instrumento.' All the 
 several articles used in the performance of the services and, 
 rites of the Church are 'ornaments;' vestments, books, cloths, 
 chalices, and patens are amongst Church ornaments; a long 
 list of them will be found extracted from Lyndwood, in Dr. 
 Phillimore's edition of Bum's Ecclesiastical Law." — (Vol. i. p. 
 375-7.)^ In modern times organs and bells are held to fall 
 under this denomination. 
 
 " When reference is had to the first Prayer-Book of Edward 
 the Sixth, with this explanation of the term ' ornaments,' no 
 difficulty will be found in discovering amongst the articles of 
 which the use is there enjoined, ornaments of the Church, as 
 well as ornaments of the ministers. Besides the vestments 
 differing in the different services, the Eubric provides for the 
 use of an English Bible, the new Prayer-Book, a poor man'^ 
 box, a chalice, a corporas, a paten, a bell, and some other 
 things." — {Moore, pp. 156-7.) 
 
 In Martin v. Mackonochie, their Lordships say : — 
 
 " The construction of this Eubric was very fully considered 
 by this Committee in the case of Westerton v. Idddell, already 
 referred to ; and the propositions which their Lordships under- 
 stand to have been established by the judgment in that case 
 may thus be stated : — 
 
 "First, the words 'authority of Parliament' in the Eubric 
 refer to and mean the Act of Parliament 2 and 3 Edward vi. 
 c. 1, giving Parliamentary effect to the first Prayer-Book of 
 Edward vi., and do not refer to or mean canons or royal in-, 
 junctions, having the authority of Parliament, made at an 
 earlier period. 
 
 " Second, the term ' ornaments ' in the Eubric means those 
 articles, the use of which, in the services and ministrations of 
 the Church, is prescribed by that Prayer-Book. 
 
 " Third, the term ' ornaments ' is confined to these articles. 
 
 " Fourth, though there may be articles not expressly men- 
 tioned in the Eubric, the use of which would not be restrained, 
 they must be articles which are consistent with, and subsidiary 
 to, the services ; 'as an organ for the singing, a credence table 
 from which to take the sacramental bread and wine, cushions 
 hassocks, etc, 
 
 1 See PhilUm. EccI, Law, p. 929. 
 
1 74 Ecclesiastical judgments. 
 
 " In these conclusions, and in this construction of the Euhric, 
 their Lordships entirely concur." — {Martin v, Mackonochie, 
 2 P. C. App. 390.) 
 
 It certainly would seem at first sight that these judgments 
 have made my course plain. I have, in obedience to them, but 
 to inquire whether these " ornaments of the minister " are to 
 be found in the first Prayer-Book of Edward vi. ; if they are, 
 to pronounce them legal,— if not, illegal. 
 
 Two objections are raised to the application of the plain and 
 clear language of these judgments to the present case ; first, it 
 is said that the question of the ornaments of the minister was 
 not directly before the Court in Westerton v. Liddell, but only 
 the ornaments of the church ; and this is literally true ; but 
 how little can it avail to prevent the application of the same 
 rule to both kinds of ornament ? The reasoning covers equally 
 both kinds of ornament. The common rules of grammar and 
 sense require that I should not divide a sentence and apply a 
 predicate, equally applicable to both subjects contained in it, to 
 one only. 1 am not at liberty, if I were so inclined, to question 
 the judgment as to the ornaments of the church, nor would it 
 become me to express any doubt as to the logic on which it is 
 built. I am bound to follow where that judgment leads me; 
 and if so, I must, on the like premises, arrive at the like con- 
 clusion. 
 
 Secondly, it is objected that the words " shall be retained " 
 modify the application of the judgment in Westerton v. Idddell 
 to the case before me. 
 
 But in what way do these words produce this effect ? Be- 
 cause they are equally applicable to both classes of ornaments, 
 and must have been fuUy considered by the Privy Council in 
 both the judgments, and in neither was any attempt made to 
 lay a particular stress upon them, much less to attach to them 
 the important consequences with which it is now sought to 
 make them pregnant. 
 
 I must not omit to notice the argument drawn from the 
 Visitation Articles since the statute of Charles li., and the 
 alleged contemporanea eocpositio afforded by them, and by the 
 fact of the non-usage of the vestments in question. First, as 
 to the Visitation Articles, the same principle applies to them 
 as to the Advertisements and Canons, and, indeed, as to every 
 attempt to procure a decent ritual since Queen Elizabeth's 
 time ; namely, that the authorities were content to order the 
 minimum of what was requisite for this purpose, having, for 
 the reasons which I have explained in my former judgment 
 in Martin v. Mackonochie (pp. 174-190),^ great, difficulty in 
 1 Vide supra, pp. 55-68. 
 
Elphinstonev. Purchas. 175 
 
 obtaining even that minimifm. And so with regard to the 
 argument as to the legality of a church-rate for objects of ritual, 
 I have nothing to add to the observations which I made in 
 that case as to the insufficiency of this argument (p. 201).^ 
 Nor is it necessary to repeat what was said in that case, and 
 the preceding case of West&rton v. Liddell {Moore, p. 172), that 
 no amount of desuetude can repeal the obligations of a statute, 
 much less render its provisions unlawful. But it has been 
 urged that the admitted disuse, till within a very recent period, 
 of these ornaments since the Eestoration, affords a eontem- 
 poranea expositio which removes all doubt as to the meaning 
 of the Eubric. In the first place, this argument implies that 
 the words of the Rubric are such as to raise a doubt, whereas, 
 in themselves, the words are perfectly plain and clear. In the 
 second place, the disuse is practically accounted for by the 
 circumstances to which I have just adverted in dealing with 
 the argument from the Visitation Articles. In truth, however, 
 the argument is bad from the vice of proving a great deal too 
 much ; the same argument would make the copes in the cathe- 
 drals unlawful, which it is admitted they are not ; the use of the 
 surplice in preaching unlawful, which is the proper dress ; and 
 ^ converso would establish the legality of the use of the black 
 gown, which has no warrant of law ; and would render un- 
 lawful the credence table, and this last ornament affords a 
 special illustration of the inapplicability of this argument. At 
 the time of the decision in Westerton v. Liddell, the credence 
 table had been almost universally disused ; I believe there were 
 not half a dozen exceptions throughout England; and this 
 disuse had led to a continued and universal violation of the 
 Eubric, in placing the elements upon the Holy Table before 
 the commencement of the service, which, as their Lordships 
 observed, was " certainly not according to the order prescribed." 
 Their Lordships, therefore, disregarded this usage, and sanc- 
 tioned the credence table, because it enabled the provisions 
 of the Eubric to be executed. And so the doctrine of the coti- 
 tempovanea expositio was strongly urged against the lawfulness 
 of the cross either as an ornament or as a decoration ; the disuse 
 of it in the Church of Eagland was clearly established, but their 
 Lordships thought that the circumstances of the time fully 
 accounted for this, and in spite of their proved disuse in the 
 churches of this country, said, " That crosses, as distinguished 
 from crucifixes, have been in use, as ornaments of churches, 
 from the earliest periods of Christianity ; that when used as 
 mere emblems of the Christian faith, and not as objects of super- 
 
 1 Supra, p. 78. 
 
I 'j^ Ecclesiastical yudginents^_ 
 
 stitious reverence, they may still lawfully be erected as arcM'-i 
 tectural decorations of cliurches." — {Moore,, p. 175.) 
 
 Kor upon this head is it to he omitted that, though the 
 effect of this Eubric in bringing back the vestments of Edward - 
 VI. had been pointed out by the Puritans in Charles i.'s time, 
 as I have stated, no denial of this consequence was ever given 
 by the authorities on behalf of the Church ; and that, subse- 
 quently to the date of this Eubric, *no judicial authority, no 
 legal commentator, has questioned the effect of this Eu.bric in 
 legalising the vestments of the second year of Edward vi. 
 
 Burn, in the third volume of his Ecclesiastical Law, after 
 reciting the Eubric in the present Prayer-Book, proceeds as, 
 follows : — 
 
 " Therefore it is necessary to recur in this matter to the 
 Common Prayer-Book established by Act of Parliament in 
 the second year of King Edward vi., in which there is this, 
 Eubric : — ' In the saying or singing of mMens and evensonge, 
 haptyzyng and burying, the minister in paryshe churches, and 
 chapels annexed to the same, shall use a surplesr. And in all 
 cathedrall churches and colledges the archdeacons, deanes, pro-. 
 vestes, maisters, prebendaryes, and fellowes, beinge graduates,, 
 may use in the quiere, beside theyr surplesses, such hoodes aS; 
 pertaineth tp their several degrees whiche they have taken in 
 any universitie within this- realme. But in all other places 
 every minister shall be at libertie to use any surples or no. It 
 is also seemly that graduates, when they dooe preache, should 
 use suche hoodes as pertayneth to theyr several degrees.' 
 
 " So that in marrying, churching of women, and other offices 
 not here.speciiied, and even in the administration of the Holy 
 Communion, it seemeth that a surplice is not necessary. And 
 the reason why it is not enjoined for the Holy Communion in 
 particular is because other vestments are appointed for that 
 ministration, which are as followeth:: — ' Upon the day,' and at 
 the time appointed for the ministracion of the Holy Commu- 
 nion, the priest that shall execute the holye ministry shall put 
 upon hym the vesture appointed for that ministracion, that, 
 is to say, a white albe plain, with a vestment or cope. And. 
 where there be many priestes or deacons, there so many shall 
 be ready to helpe the priest in the ministracion as shall be 
 requisite, and shall have upon them likewise the vestures 
 appointed for their minist:^, that is to say, alhes, with tunacles.' 
 
 "Note. — The albe differs from the surplice in being close- 
 sleeved. 
 
 " ' And whensoever the byshop shall celebrate the Holy 
 Communion in the churche, or execute any other publique 
 ministracion, he shall have upon him, besyde his rochette, a 
 
Elphinstone v. Purchas. I'j'] 
 
 surples or albe, and a cope or vestment, and also hys pastoral 
 staffe in his hand, or elles borne or holden by hys chaplyne.' " 
 —(P. 437.) 
 
 Mr. Stephens, in his elaborate edition of the Book of Common 
 Prayer, published for the Ecclesiastical History Society, after 
 citing the foregoing Eubrics, says : — 
 
 "AH the Eubrics just quoted were omitted in 1552, and 
 never appeared again. The only Eubric respecting ornaments 
 in the second Common Prayer-Book of Edward vi., confirmed 
 likewise by Act of Parliament, was directed against the use of 
 the cope and pastoral staff. These ornaments, however, were 
 again introduced by the Eubric of 1559, which brought us 
 back, not to the second book of Edward VI., but to the first. 
 And this Eubric of 1559, slightly altered, was a second time 
 authorised at the last review. 
 
 " Copes were worn at Durham and Westminster till the 
 middle of the last century, and copes are worn now by the bishops 
 at the coronations ; indeed, all the directions contained in the 
 first book of Edward vi., as to the ornaments of the church 
 and of the ministers^ thereof at all times of their ministration, 
 are by stat. 14 Car. ii. c. 4, the statute law of the Anglican 
 Church."— (Vol. i. p. 367.) 
 
 In October 1864 a Commission under the Clergy Discipline 
 Act was issued by the late Bishop of Exeter, to inquire into 
 certain charges against the curate of Helston, the principal 
 one being the use of the surplice in preaching. The Bishop, 
 in his judgment upon this point, after stating the several 
 statutes and Eubrics, says: — 
 
 " From this statement it will be seen that the surplice may 
 be objected to with reason ; but then it must be because the 
 law requires 'a white albe plain, with a vestment or cope.' 
 Why have these been disused ? Because the parishioners — 
 that is the churchwardens, who represent the parishioners — 
 have neglected their duty to provide them ; for such is the 
 duty of the parishioners by the plain and express canon law of 
 England. — {Gibson, 200,) True, it would be a very costly duty, 
 and for that reason, most probably, churchwardens have 
 neglected it, and archdeacons have connived at the neglect. 
 I have no wish that it should be otherwise. But, be this as it 
 may, if the churchwardens of Helston shall perform this duty, 
 at the charge of the parish, providing an albe, a vestment, and 
 a cope, as they might in strictness be required to do (Gibson, 201), 
 I shall enjoin the minister, be he who he may, to use them. 
 But until these ornaments are provided by the parishioners, it 
 is the duty of the minister to use the garment actually provided 
 by them for him, which is the surplice." 
 
 M 
 
178 Ecclesiastical "Judgments. 
 
 This judgment will be found reported in Mr. Stephen's Book 
 of Common Prayer (vol. L p. 378), and in his Ecclesiastical 
 Statutes (vol. ii. p. 2046). 
 
 I do not know how I can better close my observations upon 
 this subject than by reciting the language of the Privy Council 
 in Westerton v. Liddell (Moore, p. 159) : — 
 
 " The Eubricto the Prayer-Book of January 1st, 1604, adopts 
 the language of the Eabric of Elizabeth. The Eubric to the 
 present Prayer-Book adopts the language of the statute of 
 Elizabeth ; but they all obviously mean the same thing, that the 
 same dresses and the same utensils or articles which were used 
 under the first Prayer-Book of Edward vi. may still be used." 
 
 I am of opinion that the plain words of the statute, accord- 
 ing to the ordinary principles of interpretation, and the con- 
 struction which they have received in the two judgments of 
 the Privy Council, oblige me to pronounce that the ornaments 
 of the minister, mentioned in the first Prayer-Book of Edward 
 VI., are those to which the present Eubric referred ; and I can- 
 not, therefore, pass any ecclesiastical sentence against Mr. 
 Purchas for wearing them. 
 
 The next question is, What are these ornaments ? 
 
 They are for ministers below the order of bishops, and when 
 officiating at the Communion service, cope, vestment or cha- 
 suble, surplice, alb, and tunicle ; in all other services the 
 surplice only, except that in cathedral churches and colleges 
 the academical hood may be also worn. The other vestments 
 worn by Mr. Purchas, and the cope, at any other time but the 
 Communion service, are unlawful, and may not be worn. It 
 is unlawful, therefore, for Mr. Purchas to wear or authorise to 
 be worn, a cope at morning or at evening prayer ; albs with 
 patches called apparels, tippets of a circular form, stoles of any 
 kind whatsoever, whether black, white, or coloured, and worn 
 in any manner ; dalmatics and maniples, which latter ornament, 
 it appears from the evidence, was worn on one occasion by one 
 of the officiating clergymen, though it does not appear that Mr. 
 Purchas wore one himself. As to the girdle and the amice it 
 is not proved that Mr. Purchas wore them, or suffered them to 
 be worn. 
 
 With respect to the covering or cap, called a " biretta," which 
 Mr. Purchas was proved to have carried in his hand, and a 
 clergyman to have worn in a procession, it appears to me as 
 innocent an ornament as a hat or a jvig, or as a velvet cap, 
 which latter is not uncommonly worn by bishops, clergy, and 
 laity, as a protection to the head when needed. The 74th Canon, 
 which is still in force, and which enjoins decency of apparel to 
 ministers when out of their houses, provides that " no ecclesias- 
 
Elphinstone v. Purchas. 1 79 
 
 tical persons shall weare any coife or wrought night-caps, but 
 onely plaine night-caps of blacke silke, sattih, or velvet." And 
 the 1 8th Canon provides that " no man shall cover his head in 
 the church or chappell in the time of Divine service, except he 
 have some infirmity, in which case let him wear a night-cap or 
 coife," which word " night-cap " is not to be understood as a 
 covering worn in bed, but as a kind of close-fitting cap, as is 
 shown by the words in the Latin Canons, " pileolo aut rica." 
 And I do not pronounce this particular kind of black cap, called 
 a biretta, so worn, to be unlawful. 
 
 With respect to the colour of the vestments, which I have 
 pronounced to be lawful, the Eubric is silent, except in the 
 case of the alb and surplice ; and the expert in such matters, 
 who was produced as an authority by the promoter, deposed 
 that the vestments which were used in Mr. Purchas's church 
 were in every respect such as were in use in the Church in the 
 second year of Edward vi. 
 
 There are various charges relating to particular kinds of 
 processions organised by Mr. Purchas in his church, which I 
 will now deal with; they are to be found in the following 
 articles : — 
 
 " IV. That you, the said Rev. John. Purchas, on the several 
 occasions in this article hereinafter mentioned, in the said 
 church or chapel of St. James's,. Brighton (to wit, on Sunday 
 morning, November the 1st, 1868 ; on Christmas Eve, 1868 ; 
 on Christmas Day morning, 1868 ; on Sunday morning, Decem- 
 ber the 27th, 1868 ; on Easter Eve, March the 27th, 1869 ; on 
 Easter Day morning, March the 28th,. 1869 ; and on Whit- 
 sunday morning, May 16th, 1869 ; on Sunday evening, January 
 the 24th, 1869 ; on Sunday evening, February the 28th, 1869 ; 
 on Saturday evening. May the- 15th., 1869 ; and on Whitsunday 
 evening. May the 16th, 1869), immediately before, but at the 
 hour appointed for the commencement of the prayers appointed 
 to be read at morning and evening service respectively, and 
 without any hreah or interval, and m conTiected with and ieing 
 the beginning of and a part of the rites and ceremonies of public 
 worship on the said several occasions, .in the presence of the 
 congregation then assembled in the. said church or chapel of 
 St. James's, Brighton, for the purpose of hearing divine service, 
 formed, or caused to be formed, a procession, composed of a 
 thurifer carrying an incense-vessel containing incense, swinging 
 the same ; a crucifer bearing a crucifix, or large cross, with a 
 figure of the Saviour thereon ; two acolytes, or boys, dressed in 
 red and white, with red skullcaps on their heads and bearing 
 lighted candles ; several deacons, or other persons, bearing one 
 or more silk banners, with a cross or other device embroidered 
 
i8o . Ecclesiastical yudgments. 
 
 on each of such banners ; divers choristers, dressed in red and 
 white ; a person called a ceremoniarius, in cassock and cotta, 
 with Hue tippet ; two persons, called rulers of the choir, in 
 copes ; you, the said Eev. John Purchas, and the other officiat- 
 ing minister of the day, in copes : that the procession so 
 formed proceeded round the said church or chapel of St. 
 James's, singing a certain hymn, being No. 100 of the hymns 
 contained in a book called Words 0/ the Hymnal Noted, or 
 some other hymn from the same book ; and that immediately 
 on the return of each of such processions on each of the said 
 several occasions to the choir, the prayers for the day were 
 commenced ; and that on a certain other occasion, to wit, on 
 Sunday, February the 28th, 1869, immediately after the bene- 
 diction at evening service, and without, any hreak or interval, 
 and as connected with and forming the conclusion of and part of 
 the rites and ceremonies of public worship, formed, or caused to be 
 formed, a like procession to the one immediately hereinbefore 
 mentioned, and proceeded therewith round the said church, sing- 
 ing as aforesaid, in the presence of the congregation assembled." 
 
 "XIV. That you then," — that is, after doing certain acts, 
 which fall under another category, and which I will consider 
 presently, — "formed or caused to be formed a procession, consist- 
 ing of a thurifer with his incense-vessel containing incense, the 
 crucifer with a large crucifix, acolytes or boys with lighted 
 candles, the person called cer'emoniarius, an assistant minister, 
 and you, the Eev. John Purchas, in a cope, followed by several 
 members of the congregation each with a lighted candle ; that 
 the procession so formed proceeded round the interior of the 
 said church or chapel singing ; that thereupon afterwards you, 
 the said Eev. John Purchas, took off your cope, and, wearing a 
 white alb with gold stole and chasuble, proceeded to the Com- 
 munion Table and, after being yourself censed, commenced the 
 Communion service, during the reading of which the congre- 
 gation extinguished their candles. That after the Collect and 
 Epifitle had been read the said candles were, during the reading 
 of the Gospel, again lighted, and were then again extinguished: 
 each of the acts in this article hereinbefore set forth, being of 
 the nature of and intended by you as and constituting a religious 
 ceremony." 
 
 " XXVI. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, on the 
 Sunday next before Easter, March the Slst^ 1869, at morning 
 service, and during or immediately after the conclusion of 
 morning prayer, and before the commencement of the Com- 
 munion service, sprinkled or caused to be sprinkled with so- 
 called holy water, and blessed or consecrated^ or caused to be 
 
Elphinstone V. Purchas. i8i 
 
 Messed or consecrated, and censed, or caused to be censed, 
 divers palm branches then lying on a table placed near to the 
 Communion Table, and that after the said morning prayer was 
 concluded you caused the said palm branches to be distributed 
 to yourself and to divers other clerks in holy orders, to persons 
 of the choir j^nd members of the congregation then and there 
 , present in the said church or chapel ; and that yov, then caused 
 to he formed, a procession in the said church or chapel, with a 
 crucifix borne before it, and consisting of the thuiifer, choris- 
 ters, priests, and others, which said procession then proceeded 
 round the interior of the said church or chapel, chaunting and 
 elevating the said palm branches, and accompanied with lighted 
 candles ; and that on the return of the procession the Com- 
 munion service was immediately commenced and proceeded 
 with, the whole taking place in the presence of the congregation 
 .then assembled to hear Divine service as a part of Divine 
 service, and as a ceremony connected therewith, without break 
 or intermission." 
 
 It appears to me from the evidence that these particular pro- 
 cessions have been so conducted as to constitute a further rite 
 , or ceremony in connection with the morning and evening service, 
 and in addition to those prescribed by the Eubrics for those 
 services. I must, therefore, placing them under this category, 
 I pronounce them illegal 
 
 The following articles, which I have grouped together, con- 
 tain charges against Mr. Purchas for using, during the time of, 
 or so immediately connected with, the prescribed service as to 
 be practically undistinguishable from it, rites or ceremonies 
 other than and additional to those prescribed in the Book of 
 Common Prayer : — 
 
 " V. That on a certain occasion (to wit, on Sunday morning, 
 November the 1st, 1868), you, the said Eev. John Purchas, in 
 the said church or chapel of St. James's, Brighton, aforesaid, 
 caused a group of acolytes, or attendants, to stand or kneel 
 round you, and a person called the crucifer to stand by the side 
 of you, bearing a crucifix or gilt cross, with the figure of the 
 Saviour thereon, as a matter of ceremony, during the reading 
 by you, the said Eev. John Purchas, of the Gospel in the Com- 
 munion service; that on certain other occasions (to wit, on 
 Easter Eve, 1869 ; Saturday evening, May the 15th, 1869 ; and 
 .on Whit-Sunday evening. May the 16th, 1869), the 'Te Deum' 
 being on each of such, occasions sung as a part of evening ser- 
 vice immediately after ,the evening prayers, in the said church 
 or chapel of St. James's, Brighton, aforesaid, the congregation 
 remaining in the said church or chapel during the singing 
 thereof, you, the said Eev. John Purchas, during the singii^ 
 
1 82 Ecclesiastical judgments. 
 
 thereof, caused the said crucifer, with his said crucifix, and the 
 bearers of banners, to stand holding the same as a matter of 
 ceremony near to you, the said Eev. John Purchas, and in front 
 of the Holy Table." 
 
 " XIII. That you, the said Eev. John Purchas, did in the 
 said church or chapel of St. James's, Brighton, aforesaid, on 
 Ash "Wednesday, February the 10th, 1869, at morning service, 
 immediately after the conclusion of the Commination, and 
 before commencing the Communion service (you being then 
 the officiating minister), proceed, as a matter of ceremony in 
 connection with the Divine service of the day, to take from the 
 Holy Table a certain vessel previously placed thereon, filled 
 with a black powder, being or resembling ashes ; and did then 
 bless or consecrate the same, and did then rub a portion of such 
 powder on the foreheads of certain persons, members of the 
 congregation, who then knelt before you for that purpose (to 
 wit, a certain other clergyman then present, the person called 
 the ceremoniarius, a person called a ruler of the choir, and 
 certain acolytes, or boys) ; and did further then publicly invite 
 any other members of the congregation to come forward for the 
 like purpose; after which, none others having come forward, 
 the Communion service was commenced and proceeded with. 
 
 " XIV. That you, the said Eev. John Purchas, on the day of 
 the Purification of the Virgin Mary, February the 2d, 1869, in 
 the said church or chapel of St. James's, Brighton, aforesaid, in 
 the morning, and when no artificial light was necessary, during 
 the performance of Divine service, to wit, while the Litany 
 was being read, censed or caused to be censed, and afterward 
 sprinkled or caused to be sprinkled with holy water, or water 
 previously blessed or consecrated, a number of candles then 
 placed and being on a small table close to the Communion 
 Table, and that you then, after the Litany was finished and 
 before the commencement of the Communion service, lighted 
 the said candles, and distributed them to divers members of the 
 congregation, who then, by your direction or sanction, held up 
 the same so lighted." 
 
 The charges contained in the latter part of this article I have 
 already considered. 
 
 " XXI. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, on divers 
 occasions (to wit, on the morning of Sunday, January 31st, 
 1869; Sunday, February the 7th, 1869; Sunday, February the 
 28th, 1869; Sunday, March the 14th, 1869; Sunday, March 
 the 21st, 1869; Easter Sunday, March the 28th, 1869; and 
 Whit-Sunday, May the 16th, 1869), caused a smaU bell to be 
 rang divers times during the Prayer of Consecration in the 
 
Elphinstonew. Purchas. 183' 
 
 service of the Holy Communion, such ringing heing simul- 
 taneous and connected with the consecration of the elements, 
 and with the elevation of them, as in the preceding articles 
 mentioned. 
 
 " XXII. , That you, the said Eev. John Purchas, on several 
 occasions, in the said church or chapel of St. James's, Brighton, 
 aforesaid (to wit, on Sunday, December the 27th, 1868; Sunday, 
 January the 17th, 1869; Sunday, January the 31st, 1869; 
 Sunday, February the 7th, 1869; and Whit-Sunday, May the 
 16th, 1869), caused to be said or sung, before the reception of 
 the elements and immediately after the Prayer of Consecration 
 in the Communion service, the words, or hymn, or prayer, 
 commonly known as ' The Agnus,' that is to say : — ' Lamb 
 of God, that takest away the sins of the world, have mercy on 
 us ;' which said words are appointed to be said only as a part 
 of the said hymn or prayer at the conclusion of the said service, 
 namely, after the reception of the elements by the communi- 
 cants is completely ended, and after the Lord's Prayer and the 
 other prayer then appointed and the ' Gloria ' have been said, 
 and immediately before the final blessing." 
 
 " XXVIII. That you, the said Eev. John Purchas, in the 
 said church or chapel of St. James's, Brighton, aforesaid, on 
 Sunday, March the 14th, 1869, at evening service, and imme- 
 diately on the conclusion of your sermon, gave notice that on 
 the next day there would be ' a mortuary celebration for the 
 repose of a sister at eleven o'clock;' and that on Monday 
 morning, March the 15th, 1869, while performing Divine ser- 
 vice in the said church or chapel, namely, while reading the 
 Communion service, immediately after the Collect for the 
 Queen, and before the Epistle, you interpolated and said the 
 following words, that is to say : — ' God ! whose property is 
 ever to have mercy and to forgive, be favourable unto the soul 
 of this Thy servant' (thereby meaning the soul of the deceased 
 person for whose repose the said mortuary celebration was ma,de), 
 ' and blot out all her iniquities, that she may be loosed from 
 the chains of death, and be found meet to pass unto the enjoy- 
 ment of life and felicity through Jesus Christ our Lord. Amen.' 
 After which, 1 Thess. chap. iv. verse 13 to verse 18 was read 
 as the Epistle, and the rest of the service was proceeded with ; 
 John chap. vi. verse 37 to verse 40 being read as the Gospel." 
 
 "XXXIII. That you, the said Eev. John Purchas, in the 
 said church or chapel of St. James's, Brighton, aforesaid, on 
 Whit-Sunday evening. May the 16th, 1869, at the usual hour 
 for, and immediately before the commencement of evening 
 prayer, and in the presence of the congregation then assembled 
 to hear Divine service, made, received, or admitted a new acolyte, 
 
184 Ecclesiastical Judgments. 
 
 or choir boy, by causing him then to kneel on one of the steps 
 before the Holy Table, and reading some words or seintences 
 out of a book, and making the sign of the cross over him, and 
 putting into his hands a candlestick with candle, and after- 
 wards, in like manner, putting into his hands decanters or glass 
 bottles of wine and of water, those actions collectively being 
 intended as and constituting a religious rite or ceremony." 
 
 I think these articles are substantially proved ; and that in 
 these circumstances the additional rites or ceremonies must be 
 considered as illegal, on the principle of the decision in Martin 
 V. Mackonochie ; and I accordingly admonish Mr. Purchas to 
 abstain from the use or sanction of the particular rites and 
 ceremonies so charged for the future. 
 
 I now approach the consideration of a group of articles 
 which have been proved, and which appear to me to be 
 expressly governed by the judgments in Martin v. Mackonochie 
 and Flamank v. Simpson} They are as follows : — 
 
 " VIII. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, did, on the 
 said 8th day of November 1868; the 17th day of January 
 1869; and the 16th day of May 1869, cense, or permit to be 
 censed, during Divine service,.the said crucifix, so placed and 
 standing on the said Holy Table, or narrow ledge,' as in the 6th 
 preceding article mentioned." 
 
 "X. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, on divers 
 occasions (to wit, on Sunday, February the 28th, 1869; on 
 Sunday, March the 14th, 1869; on Sunday, March the 21st, 
 1869; and on Easter Sunday, March the 28th, 1869), used 
 lighted candles on the Holy Table, or Communion Table (or on 
 a ledge immediately ■ over the said table, and appearing and 
 intended to appear part thereof), during the celebration of the 
 Holy Communion, as a matter of ceremony, and at times when 
 such lighted candles were not wanted for the purpose of giving 
 light, and permitted and sanctioned such use of lighted 
 candles. 
 
 " XII. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid (on the day 
 of the Purification of the Virgin Mary, February the 2d, 1869 ; 
 on Sunday, February the 7th, 1869; on Sunday, February the 
 28th, 1869; on Sunday, March the 14th, 1869; on Sunday, 
 March the 21st, 1869; on Easter Sunday, March the 28th, 1869; 
 and on Whit-Sunday, May the 16th, 1869), used incense for 
 censing persons and things, and for other purposes, as a matter 
 of ceremony, in and during the celebration of the Holy Com- 
 
 1 Vide supra. i 
 
Elphinstone V. Purchas, 185 
 
 munion, and also in and during other parts of Divine service, 
 and there permitted and sanctioned such use of incense." 
 
 " XV. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, in and 
 during the Communion service, on divers occasions (to wit, on 
 Christmas Day, 1868; on Sunday, December the 27th, 1868; 
 on Sunday, February the 7th, 1869; on Ash Wednesday, 
 February the 10th, 1869; on Sunday, February the 28th, 1869; 
 on Sunday, March the lith, 1869; and on Easter Sunday, 
 March the 28th, 1869), during the celebration of the Holy 
 Communion, and as part of the ceremonies thereof, mixed 
 water with the sacramental wine used in the administration of 
 the Holy Communion, and permitted and sanctioned such mix- 
 ing and the administration to the communicants of the wine 
 and water so mixed." 
 
 " XVII. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, on divers 
 occasions (to wit, on Sunday, February the 7th, 1869 ; on Ash 
 Wednesday, February the 10th, 1869; on Sunday, February 
 the 28th, 1869; on Sunday, March the 14th, 1869; on Sunday, 
 March the 21st, 1869; on Easter Sunday, March the 28th, 
 1869), during the Prayer of Consecration in the order of the 
 administration of the Holy Communion, elevate the paten or 
 one of the wafers on the Communion Table for the Holy Com- 
 munion above your head, and permitted and sanctioned such 
 elevation by the other officiating ministers, and took into your 
 hands the cup and elevated it above your head during the 
 Prayer of Consecration aforesaid, and permitted and sanctioned 
 the cup to be so taken and elevated as aforesaid, by the other 
 officiating ministers ; and that you also, during such Prayer of 
 Consecration, knelt or prostrated yourself, and sanctioned such 
 kneeling or prostrating by the other officiating ministers." 
 
 " XXIII. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, on Whit- 
 Sunday morning, May the 16th, 1869, during the Communion 
 service, as officiating minister, after receiving the alms contri- 
 buted at the offertory, elevated the same, and then, placing the 
 same for a moment on the Holy Table, did forthwith remove 
 the same and hand them to an acolyte or attendant, who took 
 them away and placed them on the credence table, instead of 
 suffering the same to remain on the Holy Table." 
 
 The nex:t article seems to me to contain charges undistin- 
 
 guishable in principle from the practices which are condemned 
 
 in those judgments, and in that which I have just delivered in 
 
 the case of Mr. Wix.^ It was duly proved, and is as follows:— r 
 
 1 VvXe sapra, Sumner v. Wix. 
 
1 86 Ecclesiastical Judgments. 
 
 " XI. That you, the said Eev. John Purchas, on Christmas 
 Day, 1868 ; on the day of the Purification of the Virgin Mary, 
 February the 2d, 1869; and on Easter Sunday, 1869, used 
 lighted candles, standing on and about and before the Com- 
 munion Table during the performance of other parts of the 
 morning service than the Communion Service, as a matter of 
 ceremony, and when they were not wanted for the purpose of 
 giving light. That you also during'the whole of Divine service 
 on Easter Sunday, 1869, kept a very large lighted candle, 
 called a paschal taper, placed and standing towards the south 
 side of the Communion Table, as a matter of ceremony, and 
 when it was not wanted for the purpose of giving light. That 
 you also, at various times, during the performance of Divine 
 service (to wit, on Sunday morning, November the 1st, 1868; 
 Sunday morning, March the 21st, 1869; and Whit-Sunday, 
 May the 16th, 1869), caused acolytes, or attendants, as a matter 
 of ceremony, to bear about, move, set down, and lift up various 
 lighted candles when the same were not needed to give light." 
 
 I admonish Mr. Purchas to abstain for the futute from doing 
 or sanctioning the acts so charged in these seven articles. 
 
 I have now to consider the charge of administering in the Holy 
 Eucharist wine with which a little water has been mingled. 
 The article containing this charge is as follows : — 
 
 " XVI. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, on Whit- 
 Sunday, May the 16th, 1869, administered wine mixed with 
 water instead of wine to the communicants at the Lord's 
 Supper." 
 
 I had occasion to consider this subject in my judgment in 
 Martin v. Mackonochie, and I then observed : — 
 
 " It appears that from a very early period — the precise date 
 is uncertain — a custom prevailed amongst Christians of adding 
 a very small quantity of water to the wine which forms one 
 element of the Blessed Sacrament. This custom, whether it 
 arose from a belief that the wine used by the Jews at the 
 Passover, and by our Lord at the Last Supper, was mingled 
 with water, or from some reason symbolical of His. passion, is 
 wholly unconnected with any papal superstition, or any doctrine 
 which the Church of England has rejected. It has the warrant 
 of primitive antiquity and of the undivided Church in its 
 favour."— (2 Z. B. Adm. and Heel., p. 21 6.)^ 
 
 To the authorities there cited I would add this from Dr. 
 
 Smith's DietioTiary of the Bible, title "Wine" (vol. iii. p. 1778): 
 
 " The wine was mixed with warm water on these occasions," 
 
 Teferring to the Passover, " as implied in the notice of the 
 
 1 Vide supra, pp. 91, 92. 
 
Elphinstone v. Purchas. 187 
 
 warming kettle {Pesach. 7, § 13). Hence, in the early- 
 Christian Church, it was usual to mix the Sacramental wine 
 with water, a custom as old, at all events, as Justin Martyr's 
 time {Apol. i. 65)." I also referred to the Eubric in the first 
 Prayer-Book, and the omission of the order " putting thereto a 
 little pure and clear water" in the later Prayer-Books ; and I 
 decided that " the ceremony or manual act of mixing the water 
 with the wine during the celebration of the Eucharist '' was 
 illegal. 
 
 At the same time I added, " I do not say that it is illegal to 
 administer to the communicants wine in which a little water 
 has been previously mixed." At that time I had in my mind, 
 among other authorities, that of Bishop Andrewes, who appears 
 to have used the mixed chalice iu the Chapel Eoyal, all the time 
 he was Dean of it, and who, in the form that he drew up for 
 the consecration of a church, expressly directed it to be used 
 (Wheatly, Common Prayer, p. 281) ; and that of Bishop Cosin, 
 who, speaking of the practice under the Elizabethan Prayer-Books, 
 says, " Our Church forbids it not, for aught I know, and they 
 that think fit may use it, as some most eminent among us do at 
 this day." — {Notes on the Book of Common Prayer,. 1st series, 
 p. 154, Works, vol. v.) 
 
 The subject is treated of with much learning by Mr. Palmer, 
 in his Origines lAturgicoB ; he says : — 
 
 " In the Church of England the wine of the Eucharist was 
 always, no doubt, mixed with water. In the canons of the 
 Anglo-Saxon Church, published in the time of King Edgar, it 
 is enjoined that ' no priest shaU celebrate the Liturgy unless he 
 have all things which pertain to the Holy Eucharist, that is, a 
 ■ pure oblation, pure wine, and pure water.' In after ages we 
 find no canons made to enforce the use of water, for it was an 
 established custom. Certainly none can be more canonical, 
 and more conformable to the practice of the primitive Church. 
 In the English Church it has never been forbidden or prohi- 
 bited, for the Eubric which enjoins the priest to place bread 
 and wine on the table, does not prohibit him from mingling 
 water with that wine." — (Vol. ii. p. 76.) 
 
 In this opinion, provided that the mingling be not made at 
 the time of the celebration, so as to constitute a new rite or 
 ceremony, I agree. I therefore pronounce that Mr. Purchas 
 has not been guilty of a canonical offence in this matter. 
 
 The 20th article charges as follows : — . 
 
 "XX. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, on divers 
 occasions (to wit, on Sunday, January the 31st, 1869 ; Sunday, 
 February the 7th, 1869; Monday, March 15th, 1869; on 
 
1 8 8 Ecclesiastical Judgments. 
 
 Sunday, March 21st, 1869 ; on Easter Sunday, March the 28th, 
 1869; and Whitsunday, May the 16th, 1869), in the adminis- 
 tration of the Holy Communion, used wafer bread (being bread 
 made in the special shape and fashion of circula,r wafers) in- 
 stead of bread such as is usual to be eaten, and did administer 
 the same to the communicants, that is to say, one such wafer 
 to each of them." 
 
 My first observation upon this article is, that it is not proved 
 as laid ; the witness Verral deposed that the bread was in the 
 form of a thin wafer, that he saw it administered to the com- 
 municants, but was not sufficiently close to know that what 
 was administered was not a portion of each wafer. The present 
 Eubric directs that the priest is to break the bread during the 
 course of the Prayer of Consecration. There is no evidence 
 before me that the wafer was not broken ; and the only ques- 
 tion I have to consider is, whether wafer-bread (that is, bread 
 in the shape of a wafer) may lawfully be administered. 
 
 The Eubric which governs this question is as follows: — 
 " And to take away all occasion of dissension and superstition 
 which any person hath or might have concerning the bread and 
 wine, it shall suffice that the bread be such as is usual to be 
 eaten ; but the best and purest wheat bread that may con- 
 veniently be gotten." This Eubric varies from that of the second 
 Prayer-Book of Edward vi., only by the substitution of the 
 words, " all occasion of dissension and superstition " for " the 
 superstition." 
 
 Previously to these Eubrics unleavened bread was used in 
 our Church, and this custom was continued by the iirst Prayer- 
 Book of Edward vr., the Rubric to which was as follows : — 
 
 " For avoiding of all matters and occasion of dissension, it is. 
 meet that the bread prepared for the Communion be made, 
 through aU this realm, after one sort and fashion, that is to say> 
 unleavened and round, as it was afore, but without all manner 
 of print, and something more larger and thicker than it was, so 
 that it may be aptly divided in divers pieces ; and every one 
 shall be divided in two pieces at the least, or more, by the dis- 
 cretion of the minister, and so distributed. And men must not 
 think less to be received in part than in the whole, but in each 
 of them the whole body of our Saviour Jesus Christ." 
 
 It appears, therefore, that while the first Eubric prescribed a 
 uniformity of size and material, the .later and the present 
 Eubric are contented, with the order that the purest wheaten 
 flour shall suffice, and the bread may be leavened according to 
 the use of the Eastern, or unleavened, according to the use i>f 
 the Western Church. The Elizabethan,, Eubric, vvhich is 
 practically the same as the present, received this contemporaum 
 
Elphinstone v. Purchas. 1 89 
 
 expositio from that Queen's Injunctions (a.d. 1559), which were 
 as follows : Item — 
 
 " Where also it was in the time of King Edward the Sixth 
 iised to have the Sacramental bread of common fine bread, it is 
 ordered, for the more reverence to be given to these holy 
 mysteries, being the Sacraments of the body and blood of our 
 Saviour Jesus Christ, that the same Sacramental bread be made 
 and formed plain, without any figure thereupon, of the same 
 flnenesse and fashion round, though somewhat bigger in com- 
 passe and thicknesse, as the usuall bread and wafer " (variously 
 printed water), " heretofore named singing-cakes, which served 
 for the use of the private masse." — (Annotated Book of Common 
 Prayer, p. 198.) 
 
 And, in 1570, Archbishop Parker wrote as follows to Sir W. 
 Cecil :- 
 
 "January 8, 1570. 
 
 " SlE, — Where upon the return of my Lord of London from 
 the court, we had communication of the Communion bread, 
 and he seeming to signify to me that your honour did not 
 know of any rule passed by law in the Communion-Book that 
 it may be such bread as is usually eaten at the table with other 
 meats, etc., I thought it good to put you in remembrance, and 
 to move your consideration in the same. Por it is a matter of 
 much contention in the realm ; where most part of Protestants 
 think it most meet to be in wafer-bread, as the injunction 
 prescribeth, divers others, I cannot tell of what spirit, would 
 have the loaf-bread, etc. And here upon one time at a sessions 
 would one Master Pogg have indicted a priest for using wafer- 
 bread, and me indirectly for charging the wafer-bread by 
 injunction, where the judges were Mr. Southcoots and Mr. 
 Gerrard, who were greatly astonied upon the exhibiting of the 
 book. And I being then in the country, they counselled with 
 me, and I made reasons to have the injunction prevail. 
 
 " Pirst, I said, as her Highness talked with me once or twice 
 in that point, and signified that there was one proviso in the 
 Act of the Uniformity of Common Prayer that by law is granted 
 unto her, that if there be any contempt or irreverence used in 
 the ceremonies or rites of the Church, by the misusing of the 
 orders appointed in the book, the Queen's Majesty may, by the 
 advice of her commissioners, or metropolitan, ordain and publish 
 such further ceremonies, or rites, as may be most for the rever- 
 ence of Christ's holy mysteries and sacraments, and but for 
 which law her Highness would not have agreed to divers orders 
 of the book ; and by virtue of which law she published further 
 order in her injunctions both for the Communion-bread and for 
 the placing .of the tables within the quire. They that like not. 
 
Lgo Ecclesiastical judgments. 
 
 the injunctions force much the statute in the book. I tell 
 them that they do evil to make odious comparison betwixt 
 statute and injunction, and yet I say, and hold, that the 
 injunction hath authority by proviso of the statute. And 
 whereas it is said in the rude, that ' to take away the superstition 
 which any person hath, or might have, in the bread and wine, 
 it shall suffice that the bread be such as is usually to be eaten 
 at the table with other meats, etc' 'It shall suffice,' I 
 expound, where either there wanteth such fine usual bread, or 
 superstition be feared in the wafer-bread, they may have the 
 Communion in fine usual bread, which is rather a toleration 
 in these two necessities, than is in plain ordering, as is in the 
 injunction. 
 
 " This I say to show you the ground which hath moved me 
 and others to have it in the wafer-bread ; a matter not greatly 
 material, but only obeying the Queen's Highness, and for that 
 the most part of her subjects disliketh the common bread for 
 the Sacrament. ' And therefore, as her Highness and you shall 
 determine, I can soon alter my order, although now quietly 
 received in my diocese, and I think would breed some variance 
 to alter it. I hear also that in the court you be come to the 
 usual bread. Sir, the great disquiet babbling that the realm is 
 in in this matter maketh me thus long to babble, and would be 
 loth that now your saying or judgment should be so taken as 
 ye saw a law that should prejudice the injunction." — {Corr&- 
 spondence of Archbishop Parker, No. 283, p. 375.) 
 
 This is an authority which must command great respect in 
 this Court, and from which I see no reason to dissent, more 
 especially as it proceeds upon a principle of construction 
 similar to that to which I have already adverted as having 
 been adopted in Westerton v. Liddell, with respect to the 
 covering of the Holy Table. I should add that, according to 
 Bishop Cosin, this " liberty of using wafer-bread was continued 
 in divers churches of the kingdom — and in Westminster for 
 one— till the 17th of King Charles," i.e. a.d. 1643.~(JFoA, 
 vol. V. p. 481.) I am of opinion that no offence against ecclesi- 
 astical law has been proved to have been committed by Mr. 
 Purchas in this matter. 
 
 The 6th and 7th articles contain the following charges : — 
 
 " VI. That you, the said Eev. John Purchas, on the several 
 occasions hereinafter in this article mentioned, in the said 
 church or chapel of St. James's, Brighton, aforesaid (to wit, on 
 Sunday, November the 1st, 1868; on Sunday, November the 
 8th, 1868 ; Sunday, January the 31st, 1869), placed or caused to 
 be placed on the Holy Table, or on a narrow ledge resting 
 thereon or connected therewith, or fixed immediately above the 
 
Elphinstone v. Purchas. 191 
 
 same, so as to appear to the congregation to be in contact or 
 
 connection with the Holy Table, a large metal crucifix, with 
 
 the figure of the Saviour thereon (the same being intended for 
 
 a ceremonial or religious purpose, and not being a part of the 
 
 architectural decorations of the church, but being placed on such 
 
 ledge with the object and intention of being made to appear a 
 
 part of the furniture of the Holy Table) ; and that you, on the 
 
 said several occasions, allowed the same so placed to remain 
 
 there during the performance of Divine service, and during the 
 
 celebration of the Holy Communion. That you, the said Eev. 
 
 John Purchas, also, during Lent (to wit, on Sunday, February 
 
 the 28th, 1869; on Sunday, March the 1 4th, 1869; and on Good 
 
 Friday, March the 26th, 1869), having covered, or caused to be 
 
 covered, the said crucifix so placed on the Holy Table, or 
 
 narrow ledge as aforesaid, with a white veil striped with a red 
 
 cross, allowed, the same to remain on the said Holy Table, or 
 
 narrow ledge, so covered during the performance of Divine 
 
 service. That you also afterwards (to wit, on Easter Sunday, 
 
 March the 28th, 1869), having previously removed, or caused to 
 
 be removed, such veil, kept the said crucifix during Divine 
 
 service so uncovered; the circumstance of the said crucifix 
 
 being so kept covered and uncovered being intended as, and 
 
 constituting on each of the said occasioiis, a ceremonial and 
 
 symbolical observance during and connected with such Divine 
 
 service." 
 
 " VII. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, on the 
 following occasions (to wit, on Sunday, November the 8th, 
 1868; January the 17th, 1869 ; and Whit-Sunday, May the 16th, 
 1869), did immediately before and during the performance of 
 Divine service bow and do reverence to the said crucifix." 
 
 I think I am bound to conclude from the evidence before me, 
 unimpeached as it is by any other testimony, and in the absence 
 of any explanation, that the crucifix has been introduced into 
 or connected with the performance of the services prescribed by 
 the Prayer-Book, so as to constitute an additional rite or 
 ceremony. And I must admonish Mr. Purchas to abstain from 
 the practice complained of in these articles. 
 
 The next charge in order is the — 
 
 IXth. " That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, on divers 
 occasions, to wit, on Sunday, November the 1st, 1868 ; Sunday, 
 November the 8th, 1868; on the day of the Purification of the 
 Virgin Mary, February the 2d, 1869; on Sunday, February 
 the 7th, 1869; and on Whit-Sunday, May the 16th, 1869), 
 caused vases of flowers to be placed on the Holy Table, or on a 
 
192 Ecclesiastical yud'gments. 
 
 narrow ledge resting thereon, or fixed immediately above the 
 same, so as to appear, and with the object and intention of 
 being made to appear, to the congregation to be in contact 
 or connection with the Holy Table, and allowed them to remain 
 so placed on each of the said occasions during the performance 
 of Divine service. That you also, during Lent, 1869, caused the 
 said vases of flowers to be removed and taken away ; and again 
 afterwards, more especially on Eastef Sunday, March the 28th, 
 1869, and on Whit-Sunda,y, May the 16th, 1869, replaced, or 
 caused to be replaced, the said vases with the same or other 
 flowers ; and that you also profusely decorated, or caused to be 
 profusely decorated, the said Holy Table with flowers, the cir- 
 cumstance of such vases and flowers being so placed and kept 
 on the Holy Table, or removed therefrom, being intended by 
 you as and constituting a ceremonial and symbolical observ- 
 ance." 
 
 With regard to this charge, there is no evidence that the 
 flowers were used as an additional rite or ceremony, or as an, 
 ornament in the sense affixed to that word in the judgment of 
 the Privy Council, in Westerton v. Liddell. They appear to 
 me an innocent and not unseemly decoration, and one not 
 ministeriag or subsidiary to any usage or doctrine which the 
 Church has rejected or abrogated, and to be in the same cate- 
 gory with the branches of holly at Christmas, and the willow 
 blossoms on Palm Sunday, with which our churches have very 
 generally been adorned. I have considered the Bishop of 
 Exeter's judgment on this point to which I was referred, of which 
 I think it is enough to say that it was given nearly ten years 
 before the decision in Westerton v. Idddell had settled the law, 
 and drawn the distinction between ornaments (ornamenta) and 
 decorations. 
 
 And here I nmst draw attention to the language of the Privy 
 Council in Martin v. Mackonochie : — 
 
 "There is a clear and obvious distinction between the 
 presence in the church of things inert and unused, and the 
 active use of the same things as a part of the administration of 
 a sacrament or of a ceremony. Incense, water, a banner, a 
 torch, a candle and candlestick, may be parts of the furniture 
 or ornaments of a church; but the censing of persons and 
 things, or, as was said by the Dean, of Arches, the bringing in 
 incense at the beginning or during the celebration, and remov- 
 ing it at the close of the celebration of the Eucharist; the 
 symbolical use of water in baptism, or its ceremonial mixing 
 with the sacramental wine ; the waving or carrying the banner ; 
 the lighting, cremation, and symbolical use of the torch or 
 candle ; these acts give a life and meaning to what is otherwise 
 
Elphinstone v. Purchas. 193 
 
 inexpressive, and the act must he justified, if at all, as pa^t of 
 a ceremonial law." — (2 P. C. App., p. 387.) 
 
 I do not pronounce that Mr. Purchas has been guilty of an 
 el^clesiastical Offence in this matter. 
 
 The 29th article charges as follows : — 
 
 " That you, the said Eev. John PurchaS, in the said church 
 or chapel of St. James's, Brighton, aforesaid, on the occasion 
 of the celebration of the Holy Communion, at midnight, on 
 Christmas Eve, the 24th of December 1868, placed, or caused 
 to be placed, on a shelf just above the credence table in the 
 said church, a modelled figure of the infant Saviour, with two 
 lilies on either side, the same being so then placed as a part of 
 the ceremonial of the service of that night, and which was sub- 
 sequently removed; and that on Whit-Sunday, May the 16th, 
 1869, you placed, or caused to be placed, in the said church or 
 chapel, above and hanging over the Holy Table, a figure, image, 
 or st^uffed skin of a dove in a flying attitude, and kept the same 
 so placed during Divine service, the same being so then placed 
 and kept as a part of the ceremonial of the service." 
 
 I think the result of the evidence is, that these figures, 
 having regard to the time and the services during which they 
 were brought in and removed, being also emblematic in their 
 character, were ceremonially used upon the occasions referred 
 to, and that, according to the judgment in Martin v. Mackono- 
 chie, they were therefore Ulegal. It is very possible, however, 
 that these things, perfectly innocent in themselves, were in fact 
 not so used as to fall under the prohibition which attaches to 
 the introduction of new ceremonies ; and that, if an explanation 
 had been offered, or other evidence adduced by the defendant, 
 I might have arrived at the conclusion that the things in question 
 belonged merely to the category of what the Privy Council 
 have termed " inert " decorations, and were not actively used in 
 the service; in which case, as at present advised, J should 
 not have pronounced them illegal. 
 
 The 24th article charges as follows : — 
 
 " That you, the said Eev. John Purchas, in the said church 
 or chapel of St. James's, Brighton, aforesaid, on Good Friday, 
 1869, when there was no administration of the Holy Com- 
 munion, caused or permitted the Holy Table to be and remain 
 during Divine service without any decent covering, such as is 
 enjoined and required by the 82d Canon of the Church." 
 
 The leaving of the Holy Table wholly bare and uncovered 
 during Divine service is, I believe, a practice without warrant 
 from primitive use or custom ; but it is certainly contrary to 
 the 8 2d Canon, which governs this question, and is, therefore, 
 illegal. 
 
194 Ecclesiastical Judgments. 
 
 The 25tli article charges as follows : — 
 " That you, the said Eev. John Purchas, in the said church 
 or chapel of St. James's, Brighton, aforesaid, on Sunday, 
 Decemherthe 27th, 1868; on Palm Sunday, 1869; and on 
 Whit-Sunday, May the 16th, 1869, caused holy water, or 
 water previously blessed or consecrated, to be poured into 
 divers receptacles for the same in and about the said church, in 
 order that the same might be used by persons of the congrega- 
 tion before and during the time of Divine service, by way of 
 ceremonial application thereof; and yourself used the same, 
 or caused or permitted the same to be used by others." 
 
 There is no evidence to sustain the averments that Mr. 
 Purchas caused holy water, or water previously blessed or con- 
 secrated, to be poured into divers receptacles in and about the 
 church, or that he blessed or consecrated any vrater, or that he 
 used it himself, or that he caused it to be used by others ; 
 there is evidence that there was water in the church, and that 
 some of the congregation crossed themselves with it. I am of 
 opinion that the criminal charges laid against Mr. Purchas in 
 this article are not proved. 
 
 The 31st, 32d, and part of the 19th articles charge as 
 follows : — 
 
 " XXXT. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, on divers 
 occasions (to wit, during Divine service, on the mornings of 
 Sunday, January the 17th, 1869; and Sunday, January the 31st, 
 1869 ; on the morning of the Feast of the Purification of the 
 Virgin Mary, February the 2d, 1869 ; and on the morning of 
 Sunday, February the 7th, 1869; and on Whit-Sunday, May the 
 1 6th, 1 8 6 9), during the saying of the Apostles' Creed and Mcene 
 Creed, and at the pronouncing of the absolution in the order for 
 the Holy Communion, and at the giving of the elements to the 
 communicants, and on certain other occasions (to wit, during 
 Divine service on Sunday evening, February the 7th, 1867" {si^, 
 "and Whit-Sunday evening. May the 16th, 1869), during the 
 pronouncing of the benediction after the sermon, and on certain 
 other occasions (to wit, during the Communion service, on 
 Ash Wednesday, February the 10th, 1869; and on Sunday, 
 February the 28th, 1869), when about to mix water with the 
 wine, and when about to consecrate the same, you, being then 
 the officiating minister, made the sign .of the cross by the ap- 
 propriate gesture for that purpose, the same being intended as 
 and constituting a ceremony." 
 
 " XXXII. That you, the said Eev. John Purchas, in the said 
 church or chapel of St. James's, Brighton, aforesaid, you being 
 present, and responsible for the due performance of Divine 
 
Elphinstone v. Pure has. 195 
 
 service therein, on Sunday morning, January the 31st, 1869, 
 during the Communion service, directed, caused, or permitted 
 and sanctioned, a certain clergyman then assisting you in the 
 performance of Divine service by reading the Gospel for the 
 day, to kiss the book from which he read the Gospel, such 
 kissing of the book being intended as and constituting a 
 matter of ceremony, the said book, during such reading of the 
 Gospel, being, in a ceremonial manner, held before him by a 
 deacon or attendant." 
 
 " XIX. That you, the said Eev. John Purchas, on a certain 
 occasion (to wit, on Sunday morning, January 31st, 1869), in 
 the said church or chapel of St. James's, Brighton, aforesaid, 
 while reading the prayer for the 'whole state of Christ's 
 Church Militant here on earth,' stood, with your back to the 
 people, in front of the middle of the Holy Table, and while 
 reading the word, ' oblations,' as a religious ceremony took up 
 the chalice, then being on the said Holy Table, and elevated it 
 above your head." 
 
 The ruling of the Privy Council, in the case of Martin v. 
 Mackonochie, with respect to the kneeling of the priest during 
 the Communion service, seems to me to apply to the acts of 
 devotion complained of in these articles, which I must, there- 
 fore, pronounce illegal. 
 
 The latter part of the 17th article — I" have already referred 
 to the charges contained in the former part — charges as 
 follows : — 
 
 " And that you also, during the whole of such Prayer of 
 Consecration, stood at the middle of that side of the Holy Table 
 which, if the said Holy Table stood at the east end of the said 
 church or chapel (the said table in St. James's Chapel, in fact, 
 standing at the west end thereof), would be the west side of 
 such table, in such wise that you then stood between the 
 people and the said Holy Table, with your back to the people, 
 so that the people could not see you break the bread or take 
 the cup into your hand." 
 
 I must observe that the Eubric does not require that the 
 people should see the breaking the bread or the taking of the 
 cup into the priest's hands ; and, if it did so prescribe, the 
 evidence in this case would establish that all the congregation 
 could see him take the cup into his hands, and some of them, 
 at least, could see him break the bread. But, in truth, the 
 question appears to me to have been settled by the Privy 
 Council, in the case of Martin v. Mackonochie. 
 
 " The Eubric before the Prayer of Consecration then follows, 
 and is in these words : — 
 
 " ' When the priest, standing before the table, hath so ordered 
 
■196 Ecclesiastical Judgments. 
 
 the bread arid wine that he may with the more readiness and 
 decency break the bread before the people, and take the cup 
 into his hands, he shall say the Prayer of Consecration, as 
 follows :' — 
 
 " Their Lordships entertain no doubt on the construction of 
 this Eubric, that the priest is intended to continue in one 
 ■posture during the prayer, and not to change from standing to 
 kneeling, or vice versa ; and it appears to them equally certain 
 that the priest is intended to stand and not to kneel. They 
 think that the words ' standing before the table ' apply to the 
 whole sentence ; and they think that this is made more ap- 
 parent by the consideration that acts are to be done by the 
 priest before the people, as the prayer proceeds (such as taking 
 the paten and chalice in his hands, breaking the bread, and 
 laying his hand on the various vessels), which could only be 
 done in the attitude of standing." — (2 P. C. App., p. 382.) 
 
 I dismiss the charge against Mr. Purchas. 
 
 The 1 8th article charges as follows : — - 
 
 " That you, the said Eev. John Purchas, on a certain occa- 
 sion (to wit, on Sunday morning, November the 1st, 1868), 
 directed, sanctioned, or permitted a certain other clergyman, 
 then officiating for you, in the presence of you, the said Eev. 
 John Purchas, to read the Collects next before the Epistle for 
 the day in the Communion service, standing in front of the 
 middle of the Holy Table with his back to the people ; and 
 that on a certain occasion (to wit, Sunday morning,. January 
 the 17th, 1869), you, the said Eev. John Purchas, read such 
 Collects yourself, standing with your back to the people." 
 
 As to the charge, the proof is, that both Mr. Purchas and the 
 assistant clergyman on the several occasions stood before the 
 Holy Table with their backs to the people. It is not proved 
 that the assistant clergyman,. on the occasion mentioned, stood 
 before the people. The Eubric which governs the position of 
 the minister at this period of the service is the one preceding 
 the Lord's Prayer at the beginning of the Communion service : 
 — " And the priest, standing at the north side of the table, shall 
 say the Lord's Prayer, with the Collect following, the peQple 
 kneeling ;" and, after the interval of the Ten Commandments, 
 the Eubric enjoins the priest to stand as before. I am aware, 
 that learned persons hold that these words, " the north side," 
 mean " the north side of the table's front," and possibly they 
 do so ; but in the absence of any argument before me to this 
 effect, I think I must take the prima facie meaning of the 
 Eubric, and consider it as the north side of the whole table ; 
 and upon this ground I must decide against Mr. Purchas upon 
 this article. 
 
:Elphinstone V. Purchas. 197 
 
 Two charges are contained in that part of the 19th article to 
 which I have not as yet referred : — 
 
 (a.) " And on a certain other occasion (to wit, on Sunday- 
 evening, January the 31st, 1869) you, the said Eev. John 
 Purchas, did, in the said church or chapel, during the per- 
 formance of Divine service, and while reading the Collects fol- 
 lowing the Creed, stand in front of the middle of the Holy 
 Table at the foot of the steps leading up to the same, with 
 your back to the people." 
 
 (6.) " And that on a certain occasion, during the perform- 
 ance , of Divine service in the said church or chapel (to wit, 
 on Sunday morning, February the 7th, 1869), you, the said 
 Eev. John Purchas, directed, sanctioned, or permitted the 
 Epistle in the Communion service to be read in your presence 
 by a minister standing with his back to the people." 
 
 The first offence appears to me plainly contrary to the Eubric ; 
 and the second, though, perhaps, not governed by a positive 
 order in a Eubric, is obviously contrary to the intent of the 
 Prayer-Book, the Epistle not being a prayer addressed to God, 
 but a portion of the Scripture read to the people. 
 
 The 30th article charges as follows : — 
 
 " That you, the said Eev, John Purchas, in the said church 
 or chapel of St. James's, Brighton, aforesaid, on Sunday, 
 morning, November the 1st, 1868, publicly during the per- 
 formance of Divine service,, that is to say, at the conclusion 
 of the Nicene Creed, gave notice that on the morning of the 
 next day there would be ' a high celebration of the Holy Eucha- 
 rist ' at eleven o'clock ; and that you, on the sanfe day, after 
 the sermon, gave, or caused to be given, notice that on the 
 next Friday, ' being the Feast of St. Leonard,' there would be 
 a celebration of the Holy Eucharist at eleven o'clock : and that 
 on Sunday, the 8th of November 1868, after the Mcene Creed, 
 you gave notice that the Holy Eucharist would be celebrated 
 on Wednesday, ' being the Feast of St. Martin ;' and on Friday, 
 ' being the Feast of St. Britius.' And that on Sunday morn- 
 ing, January the 31st, 1869, after the Nicene Creed, you gave 
 notice that on Tuesday next, being the Festival of Our Lady, 
 there would be a high celebration of the Holy Eucharist at 
 eleven o'clock in the morning." 
 
 The Prayer-Book does not warrant, in my opinion, this 
 particular mode of announcing that the Eucharist will be 
 celebrated. According to the Eubric, after the Nicene Creed, 
 notice is then to be given of the Communion, and according to 
 to the Eubric, after the Church Militant prayer, " when the 
 minister giveth warning for the celebration of the Holy Com- 
 munion ... after the sermon or homily ended he shall read 
 
198 Ecclesiastical judgments. 
 
 this exhortation following." It appears to me that the epithet 
 " high " has no sanction from the Eubric, and, though perhaps 
 in itself not very material, cannot legally be used. It appears 
 from the evidence that at different times notices were given 
 that the feast of St. Leonard, St. Martin, and St. Britius would 
 be observed. The Eubric, after the Nicene Creed, directs that 
 " the curate shall declare unto the people what holy-days or 
 fasting days are in the week following to be observed." Mr. 
 Purchas is not charged with having violated the law by omit- 
 ting to give notice of_ these holy-days or fasting days, but by 
 having given notice of holy-days which the Church has not 
 directed to be observed. I think the holy-days which are 
 directed to be observed are those which are to be found after the 
 preface of the Prayer-Book, under the head of " A Table of aU 
 the Feasts that are to be observed in the Church of England 
 throughout the year." The feasts of St. Leonard, St. Martin, 
 and St. Britius are not among these; I therefore think the 
 notices of them were improper, and I must admonish Mr. 
 Purchas to abstain from giving such notices for the future. 
 
 This is my judgment upon the particular charges brought 
 against the defendant ; but I cannot conclude it without once 
 again referring to the general question to which these charges 
 relate. In the judgment in Martin v. Mackonoehie I said : — 
 
 " Before I proceed to consider the greater question, whether 
 they are ceremonies forbidden by the ecclesiastical law of 
 England, and more especially by that part of it which consists 
 of the provisions of the Prayer-Book and the Statute of Uni- 
 formity, I think it right to draw attention to the judgment of 
 the Church Universal, and especially of ' that pure and aposto- 
 lical branch of it established in this realm,' upon the general 
 subject of ceremonies. 
 
 " And from that judgment it will, I think, appear that an 
 essential distinction is drawn between those which are, from 
 their origin, immutable, and those which it is competent to the ' 
 proper authorities to mould according to the varying necessities 
 and exigencies of each particular Church." — (2 Adm. and Ecd., 
 p. 136.)i 
 
 I then cited various authorities upon this point, and I 
 added — 
 
 " I have thought it expedient to recite the foregoing autho- 
 rities upon the nature of rites and ceremonies, in order to 
 fortify my position, that the questions now pending before me 
 in no way affect the relations of the Church of England to the 
 Church Catholic, but have reference solely to matters of detail 
 and order in her ministration, which every independent church 
 ' Supra, p. 20. 
 
Elphinstone v. Purchas. 199 
 
 has at all times claimed and exercised." — (2 Adm. and EccL, 
 p. 146.)^ 
 
 I have deemed it well to repealt this language upon the pre- 
 sent occasion, because I think that the proposition "which it 
 embodies would, if temperately and impartially considered, 
 tend to prevent the litigation and allay the discord which is at 
 the present moment distracting the energies and weakening 
 the authority of our Church. 
 
 Now, with respect to the question of costs, I shall condemn 
 the defendant in the costs of all those charges which have 
 been substantiated against him, and as the defendant has not 
 appeared I shall make no order as to the costs of those charges 
 which the promoter has failed to substantiate. 
 
 The course which the Eegistrar will probably think it proper 
 to pursue will be to tax the promoter's whole costs of suit, 
 and subsequently to deduct from that sum such a proportion 
 as he may think fairly represents the costs of the unsubstan- 
 tiated charges. It will probably be found a case in which a 
 very close estimate cannot be made; and considerable dis- 
 cretion, subject to the revision of the Court, must be left to the 
 Eegistrar. 
 
 * Supra, p. 29. 
 
THE OFFICE OF THE JUDGE PROMOTED BY 
 SHEPPARD V. BENNETT. 
 
 The Court of Arches has a right, under the general Ecclesiastical 
 law, to refuse letters of request until proper grounds are 
 assigned why they should be accepted ; and this right 
 applies also to cases brought before it under the Church 
 Discipline Act, 
 
 The Court of Arches may therefore exercise its discretion and 
 refuse letters of request sent by the Bishop, where the case 
 is one of heresy. 
 
 Itds not competent to the promoter, in a case of heresy, to cfiarge 
 '^ihe defendatft with maintaining an heretical doctrine 
 "Which is not specifically charged, and which is founded on 
 passages not specifically set forth in the citation ; or with 
 maintaining an Iteretical doctrine which is not contained in 
 the defendants book, but in another book to which he refers. 
 
 it is lawful for ■a elerk in -Holy 'Orders to affirm, that there is a 
 real, actual, and objective presence of Our Lord, external to 
 the communicoHt, under the form of bread and wine at 
 the Holy Communion. 
 
 It is not lawful for him to affirm a visible presence of our Lord 
 at the Holy Communion. 
 
 It is lawful for him to affirm that there is in some sense a 
 sacrifice offered at the celebration of the Holy Communion. 
 
 It is lawful for him to affirm, that adoration is due to our 
 Lord present, under the form, of bread and wine, at the 
 celebration of the Holy Communion. 
 
 It is not lawful for him to affirm that adoration is due to the 
 consecrated elements. 
 
 This case originally came before me on motion to 
 accept the letters of request from the then Lord Bishop 
 of Bath and Wells. 
 
: Sheppard v. Bennett. 201 
 
 On the 30th of April 1869 I delivered the first judg- 
 ment here printed, in which I declined to do so. 
 
 The promoter appealed to the Privy Council, who 
 reversed my judgment, and ordered me to accept the 
 letters of request. 
 
 I therefore accepted the letters of request, and cited 
 the defendant. He did not appear, and the case then 
 came on for the admission of the articles of charge. 
 
 On the 18th of November 1869 1 delivered the second 
 judgment here printed, in which I ordered certain refor- 
 mations of the articles. The pisomoter appealed from 
 this judgment to the Privy C9uneil, who affirmed my 
 sentence. 
 
 The case then came on for hearing, and«9n the 20th 
 of July 1870 I delivered the third ju<igment here 
 printed, dismissing the defendant. 
 
 The promoter appealed from this judgment to the 
 Privy Council, who affirmed my decision. 
 
 This case is reported, in the first stage, in the Arches 
 Court, Law Eeports, 2 Admiralty and Ecclesiastical, 
 p. 335, in the Privy Council, Law Eeports, 2 Privy 
 Council Appeals, p. 450. 
 
 In the second stage, in the Arches Court, 39 Law 
 Journal Ecclesiastical, p. 59, in the Privy Council 
 Law Reports, Privy Council Appeals, p. 350. 
 
 In the third stage, in the Arches Court, Law Eeports, 
 3 Admiralty and Ecclesiastical, p. 167, in the Privy 
 Council, Privy Council Appeals, p. '371. 
 
 FiKST Judgment. — In iMs case, an application has been 
 made to the Court to accept letters of refnest from the Bishop 
 of Bath and Wells, under the provisions of the 1 3th section 
 of 3 and 4 Vict. cap. %%, an Act for the disciphne of the 
 clergy. 
 
 It appears, from ithe recital in these letters, that the Eev. 
 WDliam James Early Bennett, a clerk in holy orders, Vicar of 
 Trome Selwood, has been charged with committing an offence 
 against the laws «cclesiastiical, by the publication of a work 
 containing heretical doctrines, in the diocese of London. The 
 preferment of the accused clerk was situated in the diocese of 
 Bath and Wells — ^the alleged offence was committed in the. 
 
202 Ecclesiastical Jiidgments. 
 
 diocesfe of London ; therefore, if the accused clerk was to be 
 criminally proceeded against in the Ecclesiastical Court, the 
 provisions of the statute, to which I have referred, rendered it 
 necessary that these proceedings should be taken, in the first 
 instance, under the authority of the Bishop in whose diocese the 
 alleged offence had been committed. , The late Bishop of 
 London issued a commission to certain persons to inquire into 
 the grounds of the charge, and to report to him whether or no 
 there was a case for further inquiry. They reported that there 
 was a case for further inquiry. That report, and the evidence 
 upon which it was founded, were afterwards filed in the registry 
 of the diocese of Bath and "Wells, according to the require- 
 ments of the statiite ; and it became necessary that any further 
 proceedings in the matter should be carried on under the 
 authority of that Ordinary. The statute provides, sect. 11, 
 that after the report of the Commissioners, " the Bishop shall 
 procee'd to hear the cause, with the assistance of the assessors ;" 
 . . . "and upon the hearing of such case, the Bishop shall 
 determine the same, and pronounce sentence thereupon, accord- 
 ing to the ecclesiastical law." The statute further provides, 
 sect. 13, "that it shall be lawful for the Bishop ... if he 
 shall think fit, either in the first instance or after the Commis- 
 sioners shall have reported that there is sufficient prima facie 
 ground for instituting proceedings, and before the tiling of the 
 articles, but not afterwards, to send the case, by letters of 
 request, to the Court of Appeal of the province, to be there 
 heard and determined, according to the law and practice of such 
 Court." The Bishop of Bath and Wells has availed himself of 
 this latter alternative, and has sent this, case, by letters of 
 request, to the Court of Arches. 
 
 It is to be observed that the statute does, not empower the 
 Bishop to send the case simpliciter to the Court of Appeal, 
 but to send it by letters of request to that Court. If these 
 letters are accepted by me, and the request of the inferior 
 Court complied with, a decree, which is equivalent to a 
 citation, will issue from this Court ; the accused clerk will be 
 cited, and the trial wUl take place, in the first instance, before 
 this Court. 
 
 It has been argued that these letters of request are in truth 
 letters of command, and that I have no option but to accept 
 them. This argument is maintained, both by referring to the 
 express words of the statute of the Queen, and to the law and 
 practice with respect to letters of request previously to the 
 passing of that statute. I am about to pronounce my opinion 
 upon the soundness of this argument ; and in order to make the 
 conclusion at which I have arrived fuUy intelligible, it wiU be 
 
Sheppard v. Bennett. 203 
 
 necessary to state at some length the premises upon which it 
 is founded, 
 
 First of all, however, it may be well to consider the necessary 
 consequences which flow from the position of law. 
 
 It is the plain duty of every Bishop, having regard both to 
 the nature of his ofi&ce and to the obligations which at the time 
 of his consecration he takes upon himself, to maintain within 
 his diocese ecclesiastical discipline, and especially as to matters 
 of heresy, such as are the subject of the present charge. But if 
 the argument which has been addressed to me be sound, every 
 Bishop in the province of Canterbury may devolve, at his own 
 will and pleasure, upon the Court of the Archbishop, the execu- 
 tion of the most arduous part of his duty as diocesan. It is 
 not necessary that he should state any reason for so doing ; the 
 natural order of things is reversed, and the inferior sends a 
 mandate to the superior Judge, which, without inquiry, he must 
 obey. It is not too much to say that such an exposition of the 
 law requires to be very clearly demonstrated before it can be 
 accepted. Inasmuch as letters of request are the technical 
 description of a proceeding appertaining to ecclesiastical law — 
 words of art, so to speak, derived from that system of jurispru- 
 dence — the examination of the question naturally falls under 
 the two following divisions : — 
 
 (1.) The law which prevailed before the statute 3 and 4 
 
 Vict. cap. 86. 
 (2.) The law introduced by that statute. 
 
 Upon the first division of the subject the following observa- 
 tions have occurred to me : — It is hardly necessary to state that 
 the proposition, that a Bishop can order his Metropolitan or 
 Archbishop to do a particular act, such as to entertaiu a suit, 
 is not to be found in the general Ecclesiastical Law. That law, 
 as weU as the Common Law of England, has indeed been care- 
 ful to protect the Bishop from any undue assumption of juris- 
 diction by the Archbishop over him ; but I am not aware of 
 any instance in which the law has thought it necessary to 
 protect the Archbishop from the usurpation of his suffragan. 
 " Letters of Eequest," " Literce BeqvdsitioTiahs" as they are 
 called in Oughton, are a form of procedure peculiar to the Canon 
 Law, and certainly do not in their natural construction imply a 
 command. A very learned Judge, however. Sir George Lee, in 
 the case of Butler v. Dolben (2 Lee, p. 317), is reported to have 
 said : — " As to the discretion of this Court, whether it shall 
 accept or refuse letters of request when granted by a proper 
 Judge, the Delegates held in the case of Dr. Pelling v. Whiston 
 (1 Comyns' Eep., 190), that the Dean of the Arches was bound 
 to receive them ex debito j'ustitice ; but that it was in the dis- 
 
204 Ecclesiastical judgments. 
 
 cretion of the inferior Judge whether he would grant them." 
 As this is, I believe, the only authority which can be cited in , 
 support of the position that the acceptance of the letters of 
 request is obligatory upon the superior Court, I have thought 
 it right to examine very carefully the circumstances of this case. 
 They are very remarkable : — The case of Felling v. Whiston, 
 which was argued in the years 1712-13, happened at a time of 
 great political excitement, in which the Church was largely 
 concerned, and which was not without its influence on the pro- 
 ceedings in this case. I remember that Lord StoweU said as to 
 a case decided in 1719, in which religious and political feeHngs 
 were much mixed up : — " I shall pass over a case which has 
 been cited from the State Trials, as it was one of party heat 
 that took place in times of party ferment, and is of smaller 
 authority on that account." — {JSutchins v. Denziloe and Loveland, 
 I Consist. Eep., 174). The history of the proceedings of this 
 extraordinary case are to be found partly in Burnet's History 
 of his Ovm Times, vol. vi. ; partly in an account Whiston pub- 
 lished of his own case in 1715 ; and partly in a note of Chief 
 Baron Comyns (who was one of the counsel in the cause) of the 
 proceedings before the Delegates (Comyns' Eep., p. 199). As 
 the Delegates never gave reasons for their judgment, but little 
 information is to be extracted from the record of their proceed- 
 ings. Towards the close of the year 1710, Convocation had 
 been summoned by the Queen for the transaction of business, 
 mainly, if not exclusively, that it might pass a synodical judg- 
 ment upon the writings of Whiston. Great doubt arose as to 
 whether it was competent to that body to censure heretical 
 doctrines and their maintainers. The opinion of the twelve 
 judges and of the law ofi&cers of the Crown was in compliance 
 with an address of Convocation taken by the Crown in 1711. 
 Convocation was authorised to pass a sentence upon his works, 
 which they condemned, but, from various reasons, the condem- 
 nation seems to have had no practical result ; and in 1712 a 
 Dr. Felling, as a voluntary promoter of the office of the Judge, 
 filed articles of heresy against Whiston, who dwelt within the 
 exempt or peculiar jurisdiction of the Dean and Chapter of 
 St. Paul's. The Commissary of the Court, Dr. Harwood, sent 
 the case by letters of request to the Court of Arches ; the Judge 
 of the Court of Arches, Dr. Bettesworth, alleging that there was 
 " no suggestion of any reason why the cause should not be 
 brought before the proper Ordinary," in February, 1712, Dr. 
 Harwood sent new letters of request, alleging as grounds that 
 as Commissary he had not authority to inflict a proper punish- 
 ment for heresy, as he had no commission from a Bishop ; or, 
 according to the minutes of the Delegates' Process Book, " on. 
 
Sheppard v. Bennett. 205 
 
 account of gravity of matter, and doubt whetlier Commissary- 
 could inflict proper punishment, he humbly repeats his request." 
 While the Court of Arches was considering the application of 
 Dr. Harwood, it seems that Dr. Felling prayed an original 
 citation, not by letters of request, but under the statute of 23 
 Hen. VIII. cap. 9, to which I shall presently advert. On the 
 16th February Dr. PeUing renewed his application; on the 
 25th February the Judge of the Court of Arches, accoi;ding to 
 the report in Comyns (p. 200), " decreed that letters of request 
 from Dr. Harwood lie not before him, because in a case of 
 heresy the Bishop of the diocese hath jurisdiction in places 
 otherwise exempt within his diocese, and, notwithstanding the 
 statute of Citation, an heretic may be cited to appear before 
 him upon letters of request from the Judge of the Peculiar, or 
 by process svh mutuo, etc., and therefore he cannot decree a 
 citation," etc. On the 2d of March, PeUing appealed to the 
 delegates, to which appeal Whiston was no party, but the Judge 
 of the Arches seems to have been heard by counsel, who argued, 
 according to the report, as follows : — " That a superior Judge is 
 not obliged to accept letters of request, for no law saith that he 
 is so obliged, and it would be inconvenient, since the fees would 
 all belong to the inferior Judge, and unreasonable, since the 
 superior Judge cannot oblige the inferior to grant such letters 
 of request, and therefore ought not to be obliged to accept them. 
 Secondly, The inferior Judge in this case had no jurisdiction, 
 for he cannot excommunicate, degrade, or deprive." " Statu tie 
 2 Hen. iv. c. 15, speaks of the Bishop of the diocese, and so 
 does 10 Hen. vii. c. 17. Thirdly, The Bishop of the dioceSe 
 hath jurisdiction in case of heresy in places exempt. Fourthly, 
 There was no cause depending before Dr. Harwood, and the 
 Arches have jurisdiction only in case of appeals by patent " 
 
 To this argument it was replied, that the Bishop was by 
 express words of the 23d Hen. viii. c. 9 (the Bill of Citations), 
 restrained from citing any person dwelling in a Peculiar before 
 him, and that this case was not within the exceptions mentioned 
 in the statute. That there was no appeal from the Commissary 
 of St. Paul's to the Bishop ; and, on the other hand, it was pro- 
 vided by sect. 4 of the statute, — " That it shall be lawful to 
 every Archbishop of this realm to cite any person inhabiting in 
 any Bishop's diocese within his province for causes of heresy, 
 if the Bishop, or other Ordinary immediate thereunto consent; 
 or do not his duty in punishment of the same ;" and that, on 
 the whole, " the Judge of the Arches, by refusing a citation, not 
 letters of request, denied justice." 
 
 The delegates reversed the sentence of the Arches ; but upon 
 what grounds does not appear. Whether because he ought to 
 
2o6 Ecclesiastical yudgments. 
 
 have issued an original citation under the 4th section of the 
 Act, or because sufficient grounds were laid by the second 
 letters of request for his acceptance of them (in the present case 
 before me, it will be remembered that no grounds are laid), and 
 he had exercised his discretion improperly in not accepting 
 them; or whether he was bound, without any grounds assigned, 
 to have accepted them, though the latter suggestion, for a 
 reason which I will presently state, seems to have been very 
 improbable. 
 
 Whiston always protested against the jurisdiction of the 
 Delegates, upon the ground that he was no party to the appeal, 
 and that they were acting as a court of original jurisdiction, 
 which they had no power to do ; and certainly they were acting 
 in a most unusual manner in this respect. It appears that the 
 Delegates did not agree amongst themselves ; there was a com- 
 mission of Adjuncts — they arrived at, no conclusion; and it is 
 believed that the whole affair was put an end to on the acces- 
 sion of George i., by a general Act of Amnesty, which included 
 Heresy. 
 
 I have considered this case at so much length because it is 
 the only one upon which Sir G. Lee founds his dictum in 
 Butler V. DolUn (2 Lee, 317). Whiston's case was in 1712, and 
 Butler V. BolMn was in 1756. 
 
 Dr. Hay, the most eminent civilian of his day, argued in the 
 latter case, "that the statute (23 Hen. vni. c. 9) authorises the 
 Court to judge of the reasons on which letters of request are 
 granted. This is a new case arising npon the late statute of 
 Marriage ; the doubtfulness of the jurisdiction is good ground 
 for receiving the letters of request." And what is more remark- 
 able. Dr. Bettesworth the younger, the son of the Judge of the 
 Arches before whom Whiston's case came, must have been 
 familiar with it ; but he argued that " the granting and receiv- 
 ing letters of request are discretionary." The reference of Sir 
 George Lee to the supposed dictum of the Delegates in Whis- 
 ton's case could not have been founded, as the dates show, on 
 personal knowledge, no note or report of any such dictum is to 
 be found.. The diciwm, moreover, was unnecessary for the de- 
 cision in Whiston's case, and was not necessary for the decision 
 in Butler v. Dolbin, at which Sir George Lee arrived ; which 
 was, that the Arches Court had power of accepting letters of 
 request in a matrimonial suit ; and that where it was doubtful 
 in which of two jurisdictions the party had his domicile, the 
 Arches Court might accept joint letters of request. And this 
 seems to have been considered by Sir Herbert Jenner, in the 
 case of Steward v. Bateman, decided in 1842 (3 Curt. p. 205), 
 as the only point which was decided by Sir George Lee. 
 
Sheppard\. Bennett. 207 
 
 The statute of 23 Hen. viii. sect. 3, enacts that " the Bishop 
 may make request or instance to the Archbishop, Bishop, or 
 other superior Ordinary or Judge, to take, treat, examine, or 
 determine the matter hefore him or his substitutes ; and that to 
 be done in cases only where the law, civil or canon, do affirm 
 execution of such request or instance of jurisdiction to be law- 
 ful or tolerable." This very enactment surely implies a power 
 in the Court of Arches to examine whether the law, civil or 
 canon, does affirm the execution of such request to be lawful. 
 Such, moreover, has been the invariable practice up to the time 
 of passing the 3 and 4 Vict. c. 86, to assign grounds why the 
 letters of request should be accepted. This practice was deemed 
 proper and reasonable by the Courts in Westminster Hall, for 
 in the case of Jones v. Jones (reported in Hobart, p. 185, and in 
 2 Brownlow, p. 27) it having been maintained by the civilians 
 that it was absolutely in the power of the Ordinary to send any 
 cause to the Archbishop at his will without assigning any 
 special reason, for which they cited the authority of divers 
 canonists, Hobart (and as it seems, the Court) said, " That to 
 expound the .statute thus, viz. : that the Ordinary may, at his 
 will and pleasure, send the subject from one end of the kingdom 
 to another without cause, was both against the letter of the 
 statute, and did utterly elude it ; that the purpose of the law 
 was to provide for the ease of the subject more than for the 
 jurisdiction of the Ordinary; which appears in that there is 
 action given to the subject and penalty to the King for the 
 vexation, but none to the Ordinary ; and that this very clause 
 says it is to be done m cases only, etc., which would be a vain 
 restriction, if it left it as general as before, i.e. if it were lawful 
 or tolerable in all cases without causa" My predecessor in 
 this chair. Sir H. J, Fust, in 1842 decided, in a very elaborate 
 judgment. Steward v. Bateman (3 Curteis, 209), to refuse letters 
 of request presented to him jointly by the Archdeacon and the 
 Chancellor of Norwich, observing indeed, " My object is not to 
 withhold the jurisdiction of this Court, but to guard against 
 any question arising in respect to the proper form of exercising 
 it." The decision of Sir George Lee was much referred to by 
 the Council and by the Judge, but I do not find it to have been 
 suggested by either that the accepting letters of request was 
 compulsory on the Court of Arches. I do not mean to assert 
 that the Court of Arches exercises a discretion from which there 
 is no appeal as to accepting or refusing letters of request. 
 There are various instances, such as that of granting or refusing 
 a Faculty, in which the Court exercises its discretion ; but the 
 exercise of such discretion may be controlled and modified on 
 an appeal to the superior Court. So far, therefore, as the law 
 
2o8 Ecclesiastical yudgments. 
 
 and practice previously to the passing of the present Clergy 
 Discipline Act are concerned, I think the Court of Arches had 
 a right to "refuse letters of request until proper grounds were 
 assigned why they should be accepted. Secondly, I have to 
 consider whether the enactments in 3 and 4 Viet. cap. 86, have 
 taken away such discretion as- previously existed. Now it is, 
 in the first place, remarkable that this statute has given the 
 Bishop greater personal power than he ever previously possessed, 
 and greater assistance in the exercise of that power. He may 
 hear a cause of this kind sitting in person, with the aid of 
 Assessors, which he could not do previously to the passing of 
 this statute. He may also send the case, by letters of request, 
 to the Court of the Province ; but the statute does not enact 
 that the Court of the Province must accept them when sent, 
 or that it may not require reasons why it should accept them. 
 Moreover, it has been ruled in the case of Begirui v. The Bishop 
 of Chichester (2 EUis & EUis, 209), by the authority of Mr. 
 Justice Wightman, Lord Campbell, and Lord Chief-Justice 
 Erie, for Mr. Justice Wightman expressly stated in his Judg- 
 ment that the two latter Judges concurred with him in opinion, 
 that the Bishop had such a discretion, while the remaining 
 Judge (Mr. Justice Hill) agreed that the Bishop had such a 
 discretion in the particular case which was before the Court. 
 And in the case ot Sherwood v. Bay (1 Moor. P. C. Eep. 397) the 
 Judicial Committee of the Privy Council, a member of which 
 was Sir John MchoU, the most experienced of all Ecclesiastical 
 Judges, laid down the law as follows : — " And it is to be recol- 
 lected that this may be the only form in which any individual 
 can question the marriage as a matter of Eight, for to promote 
 the office of Judge in a criminal suit requires the authority and 
 consent of the Court, and, though this is obtained without 
 difficulty in ordinary practice, it cannot be demanded ex debito 
 justiiicB." 
 
 I have referred to the clause in the statute enabling the 
 Bishop to send the case without inquiry, in the first instance, 
 by letters of request, to the Court of Appeal. Surely it would 
 be a strange thing if a discretion as to allowing a suit to be 
 instituted were vested in the Bishop and denied to the Arch- 
 bishop represented by his Court. If any good grounds were 
 stated, or if it appeared from the nature of the case that the 
 interests of justice would be promoted by my acceptance of 
 these letters of request, I should certainly exercise my discre- 
 tion in favour of accepting them. I have done so in cases where 
 clerks have been charged with immorality, because there was a 
 manifest advantage both to the parties and to the Church that 
 a court of law accustomed to the oral examination of witnesses 
 
Sheppard v. Bennett. 209 
 
 and to the investigation of evidence, and aided by the assistance 
 of able counsel, should deal in the first instance with such cases. 
 But the present letters of request are tendered to me in a matter 
 of alleged heresy connected with some of the most awful mys- 
 teries of our religion. Surely that is a case on which, of all 
 others, the Bishop ought to exercise his jurisdiction. No reason 
 whatever is stated to me why he should not do so. Courts 
 of Appeal are in the habit of saying that they wUl not entertain 
 grave questions in the first instance, because they have a right 
 to the advantage of the judgment of the inferior Court. This 
 doctrine has been frequently maintained by the Judicial Com- 
 mittee of the Privy Coimcil when attempts have been made to 
 induce them to retain causes appealed to them upon some in- 
 cidental point. "Why should the Court of Appeal of the Province 
 be deprived of this advantage in a matter which, I must repeat, 
 is, of all others, fittest for the cognisance and decision of the 
 Bishop of the diocese ? 
 
 I must decline to accept these letters of request until some 
 reason at least is stated why I should do so. 
 
 Second Judgment. — Upon a former occasion when this case 
 came before me, I made the following observations, which I 
 must now repeat : — " This is a case of very great importance to 
 the defendant, and stiU more to the Church of which he is 
 a minister. The diocesan of the defendant has allowed an 
 individual layman to promote his office, and to act the part of 
 public prosecutor against the defendant for having published 
 certain works alleged to contain statements and positions which 
 contravene the teaching of the Church.- 
 
 "The defendant has not thought proper to appear in answer 
 to the citation of his Metropolitan : this circumstance would 
 be to be regretted in any case, but it is especially to be regretted 
 in the present, inasmuch as Jnany of the charges against the 
 defendant appear to be that he has adopted and approved the 
 positions of other persons and_ those divines of very great 
 reputation, upon the subject of his alleged heresy, and these 
 other divines are not and cannot be cited before the Court in 
 this suit to make their defence. 
 
 "The contumacy, therefore, of the defendant in refusing to 
 appear to the citation of the Archbishop's Court not only leaves 
 without defence his own statements, but also those of dis- 
 tinguished divines which he has adopted, and moreover places 
 the Court in a position of great difficulty; because whUe, on 
 the one hand, the defendant ought not to be advantaged by his 
 contumacy,; on the other hand, it is the duty of the Court to 
 see that charges of this very serious nature, which must affect 
 
 
 
2IO Ecclesiastical yudgments. 
 
 interests far iDeyond those of the defendant, are properly laid, 
 and that justice be done in a matter of the gravest nature ; 
 while in the execution of its duty it is deprived of the ordinary 
 assistance of counsel and obliged to hear argument on one side 
 only. 
 
 " According to the usual and convenient practice of this 
 Court, the criminal articles, if in the opinion of the accused 
 party they do not contain the allegation of an offence which, if 
 it was proved, would amount to a breach of ecclesiastical law, 
 are objected to, or demurred to, it being assumed for the pur- 
 poses of the discussion that the allegations are true ; and thus 
 it often happens that the questions of law, that is, whether the 
 charges do show a case of heresy or not, is decided upon when 
 the admissibility of the criminal articles is debated, and 
 thereby delay and expense are avoided. But after some reflec- 
 tion it appears to me that this course cannot be pursued in the 
 present instance, and that, if there be any charges in the articles 
 before me laid which might by any possible construction 
 amount to an ecclesiasticad offence, I ought to admit such 
 articles to proof, reserving to myself, after proof has been given 
 of the facts alleged, and after hearing argument on such proof, 
 the consideration of the criminality of the defendant, and, if 
 that criminality be established, of the punishment to be 
 awarded. The proceedings being in pomam in this case, the 
 admissibility of the articles is necessarily moved by counsel in 
 Court, and the attention of the Court is necessarily called to 
 them at this stage ; and I must therefore, while reserving as I 
 have said the main question of the hearing, endeavour, though 
 without the assistance of counsel for the defendant, to see that 
 they are in such shape and form as duly to present the charges 
 which it is competent to the prosecutor to lay, and which he 
 hereafter undertakes to prove. 
 
 " The articles which contain the criminal charges are laid 
 under the general Ecclesiastical or Canon law, and not under 
 the statute of Elizabeth. The jurisdiction of this Court in the 
 present case is founded not on the general law, which would 
 have devolved the case in due course of appeal from the decision 
 of the Bishop upon it, but on the statute (3 & 4 Vict. cap. 86) 
 of her present Majesty; and according to that statute, the 
 Bishop of the place in which the alleged offence of publishing 
 heretical doctrines was committed by the defendant, issued a 
 Commission ; that Commission heard a primd fmie, case for 
 further inquiry, and the return of the Commission was made 
 to the Court of the Bishop of the diocese, in which the defen- 
 dant held preferment; that Bishop, declining to try the 
 defendant, sent the case by letters of request to this Court, the 
 
Sheppard v. Bennett. 211 
 
 Acceptance of which the Judicial Committee of the Privy 
 Council has decided to be compulsory upon it. My jurisdic- 
 tion, therefore, it appears to me, is founded on and limited by 
 the charges laid before the Commissioners, and I have no 
 authority to deal with any charges which were not laid before 
 them. 
 
 " It is moreover a clear axiom of the law and practice of this 
 Court that no charges can be laid in criminal articles against 
 the defendant, of which he was not apprised by the citation or 
 decree which summoned him to appear before this Court. 
 
 "Applying these observations to the consideration of the 
 articles now before me, I must decide upon their admissibility 
 in thar present shape." 
 
 I then proceeded to point out various particulars, in which 
 it appeared to me that the articles must, in compliance with 
 these principles, be reformed. Upon Tuesday last the admissi- 
 bility of these articles was discussed before the Court, and I 
 was informed by the counsel for the promoter, that in conse- 
 quence of my observations the articles had undergone a partial 
 reformation by striking out all reference to the first edition of 
 one of the works mentioned in the articles, and the Court was 
 requested to permit some other reformation of a trifling char-r 
 acter to be made, and this permission was granted. The objec- 
 tions, however, which the Court had suggested to the attention 
 of the counsel, with respect to a portion of the 5th article, 
 namely, that part which begins : " But this was not all. The 
 University, indeed, had," etc. etc., down to the words — "when 
 such by God's mercy may be had ;" and also with respect to a 
 portion of the 6th article, beginning — "Then followed, in 
 1855, your voluminous work," etc. etc., down to the end of that 
 article, and other portions of the articles referring to the same 
 subject as is contained in the aforesaid portion of the 5th 
 article, were not admitted by the counsel to be valid, and it 
 was argued that these portions of the articles were properly laid, 
 and ought not to be struck out. This passage in the 5th 
 article, and the others connected with it, have for their object 
 to charge the defendant with having expressed an opinion in 
 one of his works which contravene the twenty-ninth of the 
 Thirty-nine Articles of Eeligion, the title of which twenty-ninth 
 Article is — " Of the wicked which eat not the body of Christ in 
 the use of the Lord's Supper." By the other portion of the 
 5th article of charge, and by the other articles, the defendant 
 is in substance charged with affirming the following doctrines, 
 alleged to be heresies : — 
 
 (1.) The actual presence of our Lord in the Sacrament of the 
 Lord's Supper. 
 
212 Ecclesiastical Judgments. 
 
 (2.) The visible presence of our Lord upon the Altar or Table 
 of the Holy Communion. 
 
 (3.) That there is a sacrifice at the time of the celebration of 
 the Eucharist. 
 
 (4.) That adoration or worship is due to the consecrated ele- 
 ments of the Lord's Supper. 
 The passage, therefore, in the 5th criminal article, which 
 charges the defendant with maintaining the doctrine that— 
 " The wicked eat the body of Christ in the use of the Lord's 
 Supper," contains a charge of a distinct and separate offence, 
 for it is clear that the. doctrine of the Eeal Presence! may be 
 holden, and has been holden, by those who deny the reception 
 of the Eucharist by the wicked. ' 
 
 The question which I now have to decide is — whether, in 
 these particular proceedings, it is competent to the prosecutor 
 to lay this charge in addition to those which I have mentioned 
 asrainst the defendant. 
 
 The answer to this question must be sought m an examina- 
 tion of the statutes of the third and fourth of her Majesty, of 
 the practice of this Court in criminal eases and of the principles 
 upon which that practice is founded in their application to the 
 present case. It appears to be admitted, or at least I think 
 that it is proved, that the particular charge in question was not 
 preferred before the Commissioners. It is certainly not speci- 
 fically set forth either in the "letters of request" to me, or in 
 the decree embodying those letters of request which was 
 served upon the defendant, and which is the beginning of this 
 suit (JDitcher v. Denison, 11 Moore, P. C. C. 324). Nor is it a 
 charge which can be raised by necessary implication, if that in 
 a criminal suit were sufficient, from the passages recited in the 
 letters of request, and in the decree. It is contended, however, 
 tha,t I am bound to be ignorant of what passed before the 
 Commissioners, and that the selection of passages in the letters 
 of request and decree does not affect the question, inasmuch as 
 they were superfluous; and, indeed, erroneously introduced into 
 these instruments. In a case like the present, where letters of 
 request are sent not before but after the issue and report of a 
 Commission, it seems illogical and impossible wholly to separate 
 the two, because the letters of request are founded upon the 
 report of the Commission, fi'hese letters therefore necessarily 
 recite, as in this case, the charge before the Commissioners, and 
 their finding upon it, and the Act directs thg,t the depositions 
 of the witnesses examined before the Commissioners, and their 
 report, should be filed in the Eegistry of the diocese. Sir 
 Herbert Jenner said, in Homer v. Jones (9 Jurist, p. 167, March 
 1st, 1845),,—^' It is very certain that he, the Bishop of Worces- 
 
Sheppardv. Bennett, 213 
 
 ter, could not take any notice under the statute of this offence, 
 which was conunitted beyond his jurisdiction. But it is said, 
 that although the Bishop could not, yet that this Court, as 
 possessing jurisdiction throughout the whole Province of Can- 
 terbury, might receive the charge. Now, the case is sent here 
 by letters of request, which letters embody the proceedings 
 before the Commissioners, and those proceedings are the veiy 
 foundation of the case before this Court. I am of opinion that 
 the Commissioners can proceed only within the diocese of the 
 Bishop who issues the commission ; and I must presume that 
 they have bounded their inquiries, as they ought to have done, 
 within that limit, and I, therefore, reject this article." In The, 
 Bishop of London v. Bonwell (6 Jurist, K S., p. 709, July 21st, 
 1 860), an objection was taken that the Court of Arches could 
 not adjudicate upon charges not reported by the Commissioners, 
 and Dr. Lushington, when the admissibility of the articles was 
 debated, seems to have doubted as to the effect of the Commis- 
 sioners' report on the proceedings in the articles, but in giving 
 sentence he carefully founded bis decree only upon the charges 
 that had been reported by the Commissioners. And when the 
 case was appealed to the Privy Council their Lordships said: 
 " It is unnecessary for their Lordships to pronounce any opinion, 
 whether, in proceedings under the Church Discipline Act, the 
 Court of Arches may entertain and adjudicate upon charges not 
 reported by Commissioners as fit to be inquired into, for the 
 point really does not arise in this case. The authorities cited 
 before their Lordships, and in the Court below, do not appear 
 to be entirely in unison, and many arguments of weight may 
 be urged on either side. If ever a case should come before 
 their Lordships, the facts of which should make a decision 
 necessary, it will be their Lordships' duty to lay down the rule ; 
 the facts will then be presented more precisely, and they will have 
 the advantage of hearing the points argued at the bar more fully 
 than has now been done. But assuming the contention of the 
 appellant to be well founded, more than one answer now 
 occurs : " First, the insertion of an objectionable item of charge 
 will not vitiate others well laid, nor can it form any valid 
 ground of objection to the judgment where the Judge has con- 
 fined himself to the charges which are well laid now ; in this 
 case the learned Judge in the Court below, who was evidently 
 quite aware of the nature and weight of the objection, has care- 
 fully excluded from the ground of his decree any fact of adul- 
 tery in London or elsewhere, and haa limited himself to the 
 charges to which the objection does not apply." — (14 Moore's 
 Privy Council Beports, p. 411.) 
 
 In the present case the letters of request informed me at 
 
2 14 Ecclesiastical Judgments. 
 
 great length of the charges which were laid before the Commis- 
 sioners, and the last extract from the defendant's work contains 
 a passage which, I think, must be fairly considered as compris- 
 ing the alleged heresies for which he is prosecuted. The words 
 are these : — 
 
 " The three great doctrines on which the Catholic Church 
 has to take her stand are these : — „ 
 
 " I. The Eeal Objective Presence of our Blessed Lord in the 
 
 Eucharist ; 
 " II. The Sacrifice offered by the Priest ; 
 " III. The Adoration due to the presence of our Blessed Lord 
 
 therein." 
 
 I do not see why it would be more competent to this Coiu-t 
 to try a charge not preferred before the Commissioners than it 
 would be for a Bishop who issued the commission if he had 
 heard the cause himself after the finding of the Commissioners. 
 The Act expressly provides that a copy of the depositions taken 
 before the Commissioners is to be filed in the Court and articles 
 to be drawn up, and the whole context seems to show that 
 those articles must be confined to the charges which were laid 
 before the Commissioners. The statute proxides also (section 
 13) that when the case is sent by letters of request to the Court 
 of Appeal of the Province, it is " to be there heard and deter- 
 mined according to the law and practice of such Court." 
 
 Now there is no point of the law and practice of this Court 
 more certain than that the articles cannot contain a charge 
 which is not to be found in the citation. And the decree in 
 this case which is served on the defendant is the citation. 
 This important point of law and practice has been very often 
 laid down: perhaps no stronger instance can be found than 
 that of the decision in Breeks v. Woolfrey (1 Curteis, Eccl. Rep., 
 p. 880). It was a question as to the admissibility of the 
 articles in a cause of office, promoted by the Eev. John Breeks, 
 the vicar of the parish of Carisbrooke, in the Isle of Wight, 
 against Mary Woolfrey, widow, " for having unduly and un- 
 lawfully erected, or caused to be erected, a certain tombstone 
 in the churchyard of the said parish of Carisbrooke, to the 
 memory of Joseph Woolfrey, late of the said parish, deceased, 
 and a certain inscription to be made thereon, contrary to the 
 Articles, Canons, and Constitutions, or to the doctrine and 
 discipline of the Church of England." These were the words 
 of the citation. 
 
 Dk. Aduams opposed the admission of the Articles. " The 
 grounds," he said, " on which the party is proceeded against in 
 the articles are two. First, the erection of a tombstone with- 
 
Sheppard v. Bennett. 2 1 5 
 
 out leave of the vicar of the parish; and, secondly, placing 
 thereon an inscription contrary to the Articles, Canons, and 
 Constitutions, or to the doctrine and discipline of the Church 
 of England. 
 
 " Sir H. Jenner. — Is it stated on the citation that it was 
 done without the leave of the incumbent ? 
 
 " AnDAMS. — No. 
 
 " Sir H. Jennee. — They are separate and distinct offences, 
 but there is no mention in the citation of the leave of the in- 
 cumbent ; the articles ought to agree with the citation. 
 
 " Dr. Addams. — I am not disposed to take the objection. 
 
 " Sir H. Jenner. — But must not the Court take the objection, 
 this being a criminal suit ? If it was intended to proceed on 
 the ground that the erection was without leave of the incum- 
 bent, it should have been stated in the citation." 
 
 And in giving judgment the Court said : — 
 
 " The other branch of the case is subject to different con- 
 siderations, namely, the erection of the stone without the 
 consent of the incumbent, which is an ecclesiastical offence. 
 It has been suggested in the argument that the proceeding on 
 this branch of the case should have been in the civil form, by 
 monition ; but it seems to me that this is the proper form of 
 proceeding ; I am not aware of any case in which a different 
 form has been followed. But this offence was not specified in 
 the decree or citation served on the party. The only ground 
 of illegality on the face of the citation consisted in the in- 
 scription ; the erecting, or causing to be erected, a monument, 
 without the leave of the incumbent, is a distinct and separate 
 offence which should have been set forth in the citation, in 
 order that the party cited might know what she was called 
 upon to answer. I am clearly of opinion that, according to the 
 law and practice of the Court, the citation was insufficient to 
 raise the question whether the consent of the incumbent had 
 been obtained or not ; and on this part of the case, likewise, I 
 am of opinion that the articles are inadmissible." — {Jlid. 
 p. 903.) 
 
 It has been argued that the recital in the letters of request, 
 and in the citation or decree of the various passages contain- 
 ing the alleged heresy was superfluous and unnecessary, and 
 that as the work from which these passages were extracted 
 was also referred to in the citation, that Mr. Bennett may be 
 articled against , for any heresy contained in these works, but 
 the statute says that the " law and practice " of this Court is 
 to be adopted. The extracts in question constitute unques- 
 tionably, as it appears to me, that which is technically called 
 the prcesertim of the charge : and that experienced and eminent 
 
2 1 6 Ecclesiastical Judgments. 
 
 Ecclesiastical Ju^ge, Sir John NichoU, says : — " The prcesertim 
 is always construed as setting forth the nature of the principal 
 charges ; the general words as only including subordinate 
 charges ejusdam generis." — {Bennett v. Bondker, 3 Haggard's 
 Eccl. Eep., p. 25.) 
 
 In the decree or citation served on Mr. Bennett, he is 
 charged with having published " certain works, in which he, the 
 said James Early Bennett, advisedly maintains or affirms 
 doctrines directly contrary or repugnant to the Articles and 
 Eormularies of the United Church of England and Ireland, 
 which works are more particularly specified, set forth, and 
 quoted in the letters of request hereinbefore recited, and so 
 accepted by us as aforesaid." 
 
 It could not be denied that by these words the prcesertim is 
 confined to the extracts, but it was said that this instrument 
 was prepared in the Eegistry, but not by counsel. I believe 
 that the usual course has been pursued ; but it was clearly the 
 duty of the legal advisers of the promoter who extracted the 
 instrument, if they conceived it to have been not properly 
 worded, to have applied for another instrument ; at all events, 
 the defendant is entitled to the application of the law upon the 
 instrument which was actually served upon him. 
 
 The charge of heresy as to the doctrine of the reception of 
 the Eucharist by the wicked is, as I have already said, a dis- 
 tinct and separate charge.' It has been also argued that it has 
 not been usual, in these cases of heresy, that the citation 
 should contain more than a general charge of heresy, leaving 
 the particular nature of the heresy to be afterwards specified in 
 the articles. One and a sufficient answer is, that this is not 
 the course which the promoter has thought proper to pursue 
 in the present case. It was not denied by counsel that, if a 
 particular heresy were specified in the citation, the charge of 
 another heresy would not be admissible in the articles, and in 
 point of fairness and justice to the defendant, it surely, can make 
 no difference whether he be charged with passages containing 
 only certain heresies or with a distinct charge of maintaining 
 those certain heresies. 
 
 The counsel for the promoter referred me to a judgment of 
 the Court of Queen's Bench, delivered in last Easter Term, 
 from which, as well as from the explanations of counsel, I 
 gather the following not unimportant facts with reference to the 
 present question : — First, it appears that the counsel for the 
 promoter not being satisfied that they could lay the charge of 
 this particular heresy in the present articles, applied to the 
 present Bishop of London for a fresh commission against Mr. 
 Bennett, in order that this very charge might be preferred 
 
Sheppardv. Bennett. 217 
 
 against him. The Bishop of London, in the exercise of his 
 episcopal discretion, refused to allow a fresh Commission to 
 issue, whereupon the prosecutor applied to the Court of Queen's 
 Bench for a mandamus against his Lordship ; that the Court 
 refused to issuBj it is said, because they thought that the charge 
 could be laid in the present articles. Certainly, if the Queen's 
 Bench had expressed any such opinion, I should have attended 
 to it with all the respect and deference due to the opinion of 
 such a tribunal, bearing in mind, nevertheless, that the subject 
 of the pleadings in the Ecclesiastical Court was one with 
 which their Lordships could not be very familiar, and also that 
 they had only heard the argument on one side of the question. 
 But I do not find, from a perusal of the report, that any such 
 conclusion can be fairly drawn. It appears to me that the 
 mandamus was refused : first, because the inclination of the 
 Court was that the Bishop had a legal discretion to exercise in 
 the matter, with which they would not interfere ;. and I may 
 observe in passing, that if a Bishop has not such a discretion, 
 it is difficult to conceivfi how the government of any diocese 
 can be properly cai-ried on : secondly, on the ground that by 
 the present proceedings, the heterodoxy of the accused, with 
 respect to the general subject-matter of the Eucharist, was 
 sufficiently raised. 
 
 On the grounds, therefore, that this particular charge of 
 heresy was not preferred before the Commissioners, on whose 
 report the subsequent proceedings aie foimded, and that it was 
 not mentioned in the letters of request or in the decree or 
 citation, I should, having regard to the law and practice of this 
 Court and the authorities to which I have adverted, be of 
 opinion that the articles must be reformed by striking out the 
 portions which relate to it. 
 
 Assuming, however, for the sake of argument, that these 
 objections do not apply to the present case, there remains one 
 of even a graver character to be stated. This is a highly penal 
 proceeding against the defendant. It is a criminal suit for the 
 promulgation of heresy. 
 
 The particular charge is not on account of a heresy distinctly 
 stated or uttered in any sermon, or public act of preaching or 
 statement connected with the discharge of his duties as incum- 
 bent of the parish committed to his charge. It is a heresy 
 alleged to be contained in an essay or review upon the ecclesi- 
 astical events in the Church since the year 1833. It is to be 
 extracted from what purports to be an historical statement of a 
 trial against another clergyman as long ago as the year 1856. 
 The author narrates that Archdeacon Denison was condemned 
 by the then Archbishop of Canterbury for teaching the doc- 
 
2 1 8 Ecclesiastical judgments. 
 
 trine of the Eeal Presence (not a quite accurate statement, I 
 may observe in passing), that the sentence was reversed, that a 
 protest against the Archbishop's sentence was signed by seven- 
 teen, priests ; of these the defendant is said to be one. It is 
 contended that by this reference to the protest, which is in 
 a work not mentioned in the citation, the defendant has made 
 himself responsible in this suit, be it observed, for what is con- 
 tained in that protest. 
 
 The passage in the extract from the book, which book is 
 before the Court, to which I was referred as making him respon- 
 sible, is as follows : — 
 
 " After this nothing further was heard of the sOly trial of 
 Bitcher v. Denison. It died a natural death. But what became 
 of the doctrine ? From 1853, when it passed the judgment of 
 the Heads of Houses in Oxford, to 1867, when at length no one 
 is inclined to resist it, it has grown and multiplied with won- 
 derful rapidity, according to the saying, ' Magna est Veritas et 
 prcBvalehii.' " When the context of the passage is examined, it 
 clearly appears that the writer is speaking, however inaccurately, 
 not of the alleged specific heresy of " The reception of the 
 Eucharist by the wicked and the contravention of the Twenty- 
 ninth Article of Eeligion," but of the general doctrine of the 
 Eeal Presence. The alleged heresy of maintaining that doc- 
 trine is charged in the articles, and the prosecutor will have 
 the opportunity of contending that Mr. Bennett is punishable 
 for maintaining it. To make the defendant chargeable with a 
 particular heresy, on which, in the work which is before the 
 Court, he is not commenting, simply because that heresy is to 
 be found in a work referred to by him, which work is not before 
 the Court, would be, I think, to establish a doctrine of con- 
 structive heresy in a criminal suit, unknown, I think, to eccle- 
 siastical jurisprudence since the abolition of the Star-Chamber 
 and the High Commission Court, which would be at variance 
 with the spirit, if not the letter, of the decisions given in the 
 Judicial Committee of the Privy Council and in this Court in 
 suits of this character. 
 
 After much consideration I have arrived at the conviction, 
 from the reasons which I h&,ve stated, that the articles must be 
 further reformed' by striking out all that relates to the charge 
 of contravening the Twenty-ninth Article of Eeligion as to the 
 reception of the Eucharist by the wicked, and I direct them to 
 be reformed accordingly. 
 
 The articles so reformed will, as I have already said, but for 
 the sake of clearness wiU now repeat, still contain the charges 
 for alleged heresies : — 
 
Sheppard^. Bennett. 21Q 
 
 (1.) The actual presence of our Lord in the Sacrament of the 
 
 Lord's Supper. 
 (2.) The visible presence of our Lord upon the Altar or 
 
 Table of the Holy Communion. 
 (3.) That there is a sacrifice at the time of the celebration of 
 
 the Eucharist. 
 (4.) That adoration or worship is due to the Consecrated 
 
 elements of the Lord's Supper. 
 
 Third Judgment. — This is a criminal suit in which the 
 office of the Judge is promoted in this Court by virtue of 
 letters of request from the late Bishop of Bath and Wells. 
 The promoter of the office is Mr. Sheppard, a parishioner of 
 Frome Selwood; the defendant is the Eeverend William James 
 Early Bennett, vicar of that parish. The defendant has not 
 appeared, and the proceedings are therefore carried on in 
 pcenam. 
 
 The admission of the articles was moved before me on the 
 26th of October 1869, and on the 30th of that month I 
 directed the articles " to be reformed, by omitting all such 
 parts thereof as charge the respondent with contravening the 
 Twenty-ninth Article of Eeligion entitled, ' Of the Wicked which 
 eat not the Body of Christ in the use of the Lord's Supper.' " 
 
 From this an appeal was prosecuted, by permission of the 
 Court, to the Judicial Committee of the Privy Council, who, on 
 the 26th of March 1870, affirmed the, judgment of this Court ; 
 and on the 8th of April the cause was by order in Council 
 duly remitted to me. No further steps, however, were taken 
 in the prosecution of the suit until the 3d of June ; nor was 
 the remission filed until shortly before that time, after I had 
 thought it my duty to caU attention in open Court to the 
 delay, it- being the established practice of the Court to dismiss 
 a suit when not conducted with aU reasonable expedition. 
 
 I have been informed that the delay was occasioned by an 
 imsuccessful application to the present Bishop of Bath and 
 Wells, for further letters of request, in order to warrant a 
 fresh charge against the defendant. I am of opinion, however, 
 that the instrument of remission ought to have been filed 
 immediately on execution ; and for the future I shall expect 
 that this course be taken. 
 
 Nature of the Charge. 
 
 The defendant is charged with the maintenance and promul- 
 gation of certain heresies alleged to be contained in an essay 
 entitled, " Some Eesults of the Tractarian Movement of 1833" 
 
2 20 Ecclesiastical Judgments. 
 
 contained in a Ibook entitled The, Church and the World ; and 
 also in the second and third editions of a pamphlet entitled, 
 " A Plea for Toleration in the Church of England, in a Letter 
 to the Eev. E. B. Pusey, D.D., Eegius Professor of Hebrew 
 and Canon of Ch. Ch. Oxford." The formal evidence- respect- 
 ing the position of Mr. Bennett as a beneficed clerk in Holy 
 Orders, and that which was requisite to establish the author- 
 ship and publication of the works in question, has been duly 
 given in this Court. 
 
 The criminal articles charge the defendant with having pro- 
 mulgated certain doctrines respecting the Holy Communion 
 which may be classed under the following categories: — (1) 
 Opinions with respect to the presence of our Lord in the blessed 
 Sacrament ; (2) Opinions with respect to a sacrifice said to be 
 offered in the administration of that Saerament; (3) Opinions 
 with respect to the adoration of the consecrated elements and 
 of our Lord in that Sacrament. It is alleged in the criminal 
 articles that Mr. Bennett has promulgated opinions upon all 
 these subjects which are heretical, and which conteavene the 
 formiilaries of our Chureh. 
 
 In two former judgments I have stated that, ia order fully 
 to understand and duly to construe these formulaiiea, one fun- 
 damental truth must be borne in mind : namely, that the end 
 and object of our Church was to reform her doctrine and ritual 
 so as to bring them into general harmony with those of the 
 Primitive Catholic Undivided Church. 
 
 This truth is indeed elementary to all who have studied the 
 ecclesiastical history of England, and examined the legal 
 foundations upon which the Church was established in these 
 realms ; nevertheless, it is a truth to which in former litigation 
 perhaps I may be permitted to say due prominence has scarcely 
 been given, or which has been occasionally lost sight of in the ' 
 multiplicity of facts and details which surround the gradual 
 progress of that epoch which is somewhat vaguely called the 
 Eeformation in this kingdom. 
 
 It was, perhaps, never more clearly stated than in the 
 quaint but vigorous language of the very learned Donne, 
 when, preaching on the observance of Trinity Sunday, he 
 said, " which day, our Church, according to that peaceful 
 wisdom, wherewithal the God of peace, of unity, and concord 
 had inspired her, did in the Eeformation retain and continue, 
 out of her general religious tenderness, and holy loathness to 
 innovate anything in those matters which might be safely and 
 without superstition continued and entertained. For our 
 Church, in the Eeformation, proposed not that for her end, 
 how she might go from Eome, but how she might come to the 
 
Sheppard v. Bennett. 2 2 i 
 
 truth ; nor to cast away all such things as Eome had depraved, 
 but to purge away those depravations, and conserve the things 
 themselves, so restored to their first good use." ^ 
 
 I have again drawn attention to this legal and historical 
 fact, because on no subject, perhaps, has it a more important 
 bearing than on the subject of the due construction of those 
 parts of our formularies which relate to the Holy Sacraments. 
 
 Historical Notice of the Formularies. 
 
 Some historical notice of these formularies in their relation 
 to the Sacraments naturally precedes a consideration of their 
 true meaning and construction. 
 
 Early in the year 1530, the first confession of the Saxon 
 Eeformers was presented at the Diet in Axigsburg to the Em- 
 peror Charles v. This document, known as the " Conf|gsion 
 of Augsburg," appears to have influenced the first formularies of 
 faith drawn up in England after the rejection of the Papal 
 Supremacy by Convocation in 1534. The 13th Article of the 
 Confession, " De usu Sacramentorum," teaches that sacraments 
 are not only badges (wote) of our Christian calling, but rather 
 signs and testimonies of God's will towards us, ordained for 
 the purpose of exciting and confirming faith. It also con- 
 demns those who maintained that sacraments justify ex 
 opere operate, and neglected to teach that faith is required to 
 the profitable use of sacraments.^ The 10th Article, " De coena 
 Domini," declares that the Body and Blood of Christ are 
 truly present* (yere adsint), and are distributed to the 
 recipients. It also censures those who maintained a contrary 
 tenet.* 
 
 Meanwhile the Church of England had her full share of the 
 religious trouble which distracted the rest of Christendom, and 
 during which " the favourers of the old and the new learning," 
 accordiag to a phrase current at the time, arranged themselves, 
 the former under the leadership of Gardiner, Bishop of Win- 
 chester, and the latter under Cranmer and Eidley ; and there 
 sprang up a variety of sects, among which the Anabaptists 
 were conspicuous, threatening the destruction of the Church. 
 In 1536 appeared the ten English Articles of Eeligion, which 
 were probably composed by a committee of divines, over 
 whom Henry vin. either personally, or by means of his Vicar- 
 
 1 Donne's Works, vol. ii. eer. xlii. p. 248. 
 
 2 HardwicVa History of the Articles, p. 28. 
 
 3 Wahrhaftiglich unter Gestalt des Brots und Weins im Abendmalil 
 gegenwHrtig sey. 
 
 * Hardwich'a History of the Articles, p. 27. 
 
2 22 Ecclesiastical Judgments. 
 
 General, presided. The 4t]i Article was entitled the " Sacra- 
 ment of the Altar," and set forth that "under the. form and 
 figure of bread and wine, which we there presently do see and 
 perceive by outward senses, is substantially and really com- 
 prehended the very self-same Body and Blood of our Saviour, 
 which was born of the Virgin Mary, and suffered upon the 
 Cross for our Eedemption ;" that " the very self-same Body 
 and Blood of Christ, under the same form of bread and wine, 
 is corporally, reaUy, and in very substance, exhibited, distri- 
 buted, and received unto and of all them which receive the 
 said Sacrament ; and that as a consequence the Sacrament is 
 to be used with all due reverence and honour, and after careful 
 self-examination." ^ 
 
 It is very doubtful whether these Articles were ever sanc- 
 tioned by Convocation ; their direct influence, whatever it was, 
 appears to have been destroyed by the promulgation of an- 
 other Formulary of Faith, entitled, " The Institution of a 
 Christian Man," which was published in the following year, 
 1536, upon which^ these Articles were to a great extent 
 engrafted. It was called the Bishops' Book, and the influence 
 of Cranmer and Eidley prevailed when it was compiled. It 
 contained, among other things, an exposition of the seven 
 Sacraments, and an article on " the Sacrament of the Altar" 
 which taught that under the form and figure of bread and 
 wine verily, svhstantially, and really was contained the very 
 self-same body of our Saviour Christ which had been bom and 
 crucified; and that "the very self-same Body and Blood of 
 Christ is corporally, really, and in the very same substance 
 exhibited, distributed, and received of all them which receive 
 the Sacrament." 
 
 In 1543, the next Formulary, entitled " The Necessary Doc- 
 trine and Erudition of a Christian Man," or " the . King's 
 Book," was published. It appears to have been approved by 
 Convocation.^ It may be observed that the account given by 
 Burnett on this point, as indeed on many others, is loose and 
 inaccurate.* 
 
 This work was in great measure a revised edition of the 
 Bishops' Book ; but of it Collier not unjustly observes, " it 
 seems mostly to lose ground and reform backwards ;"^ in fact 
 the influence of Gardiner caused the restoration in this work 
 
 1 HardwicFs History of the Articles, p. 54. 
 
 2 Ihid. p. 59. 
 
 3 Jenhyns' Oranrmr, i. 37 ; i. 188, 189 (note) ; HcurdvAclc on the Articles, 
 p. 59 (note). 
 
 3 Archbishop Laurence, Sampton Lectures, p. 15, note 4 (3d ed.) 
 * Bccl. Hist. vol. V. book iii. p. 105 (ed. 1840.) 
 
Sheppardv. Bennett. 223 
 
 of some exclusively Eoman doctrines which had teen omitted 
 in the Bishops' Book. 
 
 In the meanwhile, however, it appears that with a view to 
 effect an agreement between the Augsburg Eeformers and the 
 Church of England, thirteen Articles were compiled in 1538, 
 under the influence of Cranmer. They never obtained any 
 legal status, but it seems certain that they had great influence 
 on the present Articles, if indeed they were not their ground- 
 work.^ 
 
 After this time Henry vill. carried on some negotiations 
 with the German Eeformers, as to adopting in a greater or less 
 degree the tenets of the Council of Augsburg. But various 
 circumstances gave Bishop Gardiner an ascendency over 
 Henry, to which we owe "the. bloody statute of the Six 
 Articles," which was enacted by Convocation and Parliament 
 in 1539 (31 Hen. vm. c. 14), and by which the belief in the 
 doctrine of Transubstantiation was enforced. This Act was 
 repealed by 1 Edw. vi. c. 12, in 1547. 
 
 On the accession of Edward vi. in 1547, Cranmer's influence 
 was very great, and entirely prevailed over that of Gardiner and 
 his. colleagues. In that year, it is not unimportant to observe, 
 the First Book of Homilies was put forth under the auspices 
 of Cranmer. 
 
 In 1548 the King appointed Cranmer and other divines "to 
 draw an Order of Divine Worship, having respect to the pure 
 religion of Christ taught in the Gospel, and to the practice of 
 the Primitive Church." 
 
 The result was our First Prayer-Book of 1548. The Act was 
 passed early in 1549. 
 
 In 1548, Cranmer put forth on his own authority a Catechism 
 translated from the original of Justus Jonas. It was of a de- 
 cidedly Lutheran character.^ 
 
 In 1552, the Second Prayer-Book was published. 
 
 In the same year appeared the Forty-two Articles of Eeligion ; 
 and Cranmer in this compilation made great use of the Augs- 
 burg Confession. 
 
 The " Necessary Doctrine of a Christian Man," except in so 
 far as it was modified by the Prayer-Book, and perhaps by the 
 Homilies, was stUl the standard of belief until the promulgation 
 of the Forty-two Articles. They were promulgated under the 
 authority of the Crown in Latin and English in 1553; they 
 were said to have been " agreed on by the Bishops and other 
 learned and godly men." It is doubtful whether they ever 
 
 1 Uardwklc on the Articles, p. 69. 
 
 * Archbishop Laurence, Bampton Lectures, pp. 16, 17 (note). 
 
224 Ecclesiastical yudgments. 
 
 received the sanction of Convocation ; they, were not enacted 
 by Parliament. 
 
 Cranmer and Eidley were the chief compilers of the Prayer- 
 Bopk and of these Articles. 
 
 In the compilation of the latter it is probable that Cranmer 
 had the greater share. 
 
 The subject of the Holy Eucharist presented the greatest 
 difBculty to the compilers of our fcmnularies. Whether regard 
 was had to the expediency of uniting Keformed Churches 
 abroad, or members of the Church at home, Cranmer's opinion 
 on this subject inclined to that of Luther, but his erudition was 
 chiefly if not entirely derived from Eidley.^ From what source 
 this Prelate derived his opinion is therefore a matter of great 
 moment, to be hereafter considered. In this place I wiU. only 
 notice that there is a not unimportant difference between the 
 Article as to the Lord's Supper in this compilation, and the 
 Article on that subject in the compilations of 1562 and 1571. 
 
 Queen Elizabeth succeeded to the throne in 1558, and the 
 master-mind which presided over the next compilation of the 
 Articles was that of Archbishop Parker. The Second Prayer- 
 Book of Edward vi. was restored with certain alterations ; but, 
 though Parker was from the first anxious to recast the Articles 
 of Eeligion, it was not till the year 1562 that they were dis- 
 cussed by Convocation, and having been adopted by it, were 
 ratified by the Crown in 1563. Ko subscription, however, was 
 required to the Articles till the year 1571, when it was enforced 
 both by a Canon of Convocation and an Act of the Legislature. 
 
 It is to be observed with respect to the Articles of 1563, that 
 the Latin copy, which was legally binding upon the clergy, did 
 not contain the 29th Article, as to the Eeception of the Euch- 
 arist by the Wicked. This 29th Article does, however, appear 
 in the authorised version of the Articles of 1571, though there 
 is reason to doubt whether it ever was comprised " in the book 
 imprinted," to which in the most singular manner the statute 
 of 13 Eliz. c. 12 alone refers as an authority for the Articles. 
 
 The Second Book of the Homilies was first published in the 
 year 1562. 
 
 The first part of the Catechism was a portion of Edward Vl's 
 First Prayer-Book; but the latter part, which relates to the 
 holy Sacraments, was added by the authority of James i., after 
 the Hampton Court Conference, and was probably written by 
 Bishop Overall, then Dean of St. Paul's ; to it the present Act 
 of Uniformity, 13 and 14 Car. n. c. 4, gives the force of a 
 statute. 
 
 1 RooVs Lives of the Archbishops of Canterbury, vol. ii. N. S. pp. 365, 
 366. 
 
Sheppard \. Bennett. 225 
 
 When the last and present Prayer-Book was enacted by the 
 •statute of Charles 11., some alterations were made in the service 
 of the Holy Communion which will require notice hereafter, 
 but the Articles, Catechism, and Canons underwent no change. 
 
 Historical Notice of the Doctrine of the Holy Eucharist. 
 
 To this brief historical and legal sketch of the Formularies 
 of our Church in their relation to her doctrine of the Holy 
 Eucharist, I will add a few words as to the position which this 
 doctrine occupied before and during the time when these 
 various Formularies were put forth. 
 
 For more than eight hundred years " no curious and intricate 
 speculations," to use Hooker's weighty language,^ hindered or 
 abated the faith of Christendom in the words of the Divine 
 Founder of this Holy Sacrament. The command " Take, eat, 
 this is my body ; drink ye all of this, this is my blood," was 
 obeyed with holy reverence, present joy, and uninquiring 
 faith. The whole undivided Church believed in the great 
 mystery of a presence of our Lord in the Eucharist. 
 
 The language of the Fathers on this subject indeed was 
 often ardent, mystical, and rhetorical, adapted to persuade and 
 to induce practice rather than to convince by accurate reason- 
 ing or strict logic ; and in their writings, both the supporters 
 of a carnal Presence in the elements and of the doctrine of no 
 Presence have sought in later times for a confirmation of their 
 respective tenets. But these writings, it must be remembered, 
 were the works of men who wrote without the necessity for 
 accurate precision of language, which an existing controversy 
 on the subject written about imposes on the writer, for no con- 
 troversy then existed as to the mode in which Christ was 
 present in this Sacrament, though it may be observed in pass- 
 ing that distinct statements of a spiritual Presence in the ele- 
 ments are to be found in these writings.^ 
 
 In the middle of the ninth century, Paschasius Eadbert, 
 Abbot of the monastery of New Corbey, in Saxony, wrote a 
 treatise in which he maintained, or was supposed to maintain, 
 that after consecration the very Body and Blood, the same Flesh 
 in which Christ was born and in which he died, was physically 
 substituted for the Bread and Wine, which, however, stUl 
 appeared to remain. The doctrine was immediately protested 
 against ; the principal opponent had been a monk of the mon- 
 astery of Old Corbey, and then presided over a monastery in 
 Amiens, by name Eatramn (sometimes erroneously called Ber- 
 
 1 E. P. Book V. vol. ii. p. 3 (ed. 1825). 
 
 2 Bishop of Ely on the Articles, pp. 679, 680. 
 
 P 
 
2 26 Ecclesiastical Judgments. 
 
 tram). Eatj-amn; at the request of Charles the Bald, examined 
 the book of Paschasius, and answered it, maintaining that the 
 true doctrine of the Church was a real spiritual Presence of 
 Christ under the covering or veil {suh tegununto, velamine, 
 specie) of the elements. This work hecame, from subsequent 
 events, of great importance to the whole Church, and especially 
 to the Church of England. 
 
 About the year 970, MlMc, Abbot of Malmesbury, wrote a 
 sermon of the Paschal Lamb and of the Sacramental Body and 
 Blood of Christ, and a letter to Wulfstone, Archbishop of York, 
 in both of which he maintained the doctrine of Eatramn, and 
 in the former of which he reproduced the argument and some 
 of the principal passages of Eatramn, "poene ad verbum," as the 
 learned Cave says. 
 
 Prom circumstances too numerous to be here stated, the new 
 doctrine of Paschasius was upholden at Eome, and after many 
 struggles and much persecution was finally embodied in the 
 Fourth Latin Council of Lateran (a.d. 1215), by the new name, 
 coined, as the great Canonist Suarez admits, for the purpose, 
 of " transubstantiatio." 
 
 But in the fifteenth century, and at the time of the Eeforma- 
 tion, this doctrine was again submitted to severe scrutiny ; and, 
 as has so often happened, the arbitrary and violent conduct of 
 Eome in attempting to force upon the consciences of men an 
 exclusive, uncatholic, and unjustifiable definition of a holy 
 mystery, produced every kind of variety of opinions and specu- 
 lation respecting it. The Greek Church has wisely refrained 
 from such an attempt.^ Cranmer, or at least Eidley, and after- 
 wards Parker, endeavoured to steer a safe course, looking to the 
 beacon of Catholic and Primitive teaching as their guide. The 
 Eoman system generated that state of thmgs which Durandus 
 not inapliy describes, — 
 
 " Corpore de Ghristi lis est, de sanguine lis est, 
 Deque modo Us est, non habitura modum."^ 
 
 Germany and Switzerland teemed with differences of opinion 
 on this subject. 
 
 The subtler doctors of Eome have sought to maintain tran- 
 substantiation by the averment that though the property of the 
 elements was changed, the accidents of colour, shape, taste, etc., 
 remained the same. Luther taught, or was supposed to teach, 
 that the elements and the actual body were blended together ; 
 and his teaching has been designated, improperly, according to 
 
 ^ See Palmer's Treatise on the Church, vol. i. p. 172 (ed. 1842). 
 2 Cited by Bishop Forbes in his Considerationes Modestm, p. 380. 
 
Sheppardv. Bennett. 227 
 
 high authority, by the term "consuhstantiation" or " impanation." 
 Zwinglius taught that the Eucharist was a bare commemora- 
 tion of the Death of Christ, and the Bread and Wine merely 
 tokens to remind us of his death.^ 
 
 It is probable that during the reign of Henry vm., Cranmer 
 had not ceased to believe in transubstantiation, though it is 
 difficult to be at all certain upon this point. But with respect 
 to Eidley, it is certain, not only that Eatramn " first pulled him 
 by the ear,"^ to borrow Eidley's expression, but that he derived 
 from the work of Eatramn (which appears to have been first 
 printed at Geneva in 1532, and which he first became acquainted 
 with in 1545) those opinions upon the Presence which he 
 ever afterwards maintained, and which he endeavoured, as it 
 should seem successfully, to instil into Cranmer.* 
 
 It is perhaps even more remarkable that in the reign of 
 Elizabeth the Anglo-Saxon Homily of .^Ifric was printed by 
 order of Archbishop Parker, who, as will presently be seen, 
 subscribed it in company with his Suffragans, as containing 
 both the ancient and present teaching of the Church on the 
 Presence. There are, indeed, two exceptions of passages mani- 
 
 1 The following verses are taken from BeaumonCs Psyche, or Love's Mystery^ 
 the intercourse between Christ and the Soul, 1642. He was Regius Professor 
 of Divinity at Cambridge for twenty -nine years : — 
 
 " 104. 
 " Keeds will they peep into the manner how 
 This hidden miracle to pass was brought, 
 And madly, being not content to know 
 
 What Christ thought fit to teach them, study out 
 
 They know not what, and make this banquet prove 
 A Sacrament of war, and not of love. 
 
 " 105. 
 " Some press too near, and spy what is not there, 
 Some carelessly take what is there away. 
 Some will confess no miracle, for fear 
 
 That consequent be ushered in, which they 
 
 Resolve to stop, or that their faith should be. 
 Forced to confess more than their eyes can see. 
 
 " 107. 
 
 " Some sift existence, substance, accidents. 
 Concomitance, through logick's busy sieve : 
 Trans, sub, and con, by strange experiments 
 They boult so long, that they themselves deceive : 
 For whilst to win the precious flour they strain, 
 The coarse and refuse bran is all they gain." 
 
 2 Works, p. 206. 
 
 ■^ 3 Jenkyn's Oranmier, p. 143 ; Hampden's Bampton Lectures; 2 Robertson's 
 Christian Church, p. 288 (note) ; Bishop of Ely on Articles, pp. 704-5 ; 
 Ridley's Life, pp. 166, 169. 
 
228 Ecclesiastical Jtidgments. 
 
 festly stuffed in or " infarced," as the expression is, as a piouS 
 fraud by some believer in transubstantiation, but which were 
 no part of the original Homily. 
 
 Upon the whole it will appear, I think, from an examination 
 of the Formularies, and from the language of the authorities 
 which I am about to cite, that they were intended to set forth, 
 and do set forth, the doctrine of a real spiritual Presence in the 
 Holy Eucharist. It may be said with truth that on some 
 Formularies this doctrine is more doubtfully or more faintly 
 impressed than on others ; but the result which I have stated 
 is not only the legal inference from the construction of all the 
 Formularies, but also especially from those which are in their 
 nature the most important and, as a matter of history, the 
 latest in date.^ Though, indeed, that there is a change in the 
 Holy Elements after consecration, and that they then convey 
 in a Divine ineffable way the Body and Blood of Christ, seem 
 necessary inferences from the language of the Communion 
 service alone. 
 
 When I come to examine the specific charges against the 
 defendant, it will be my duty to consider whether the Church 
 has defined in any way the mode of this Presence, and if so, 
 whether she has defined it by an affirmative dogma, or whether 
 she has contented herself with a declaration against particular 
 modes, and, with the exception of those so declared against, left 
 an entire liberty to her children upon this subject. 
 
 Principles of Judicial Construction applicable to Cases like the 
 
 present. 
 
 The general position that the Formularies of the Church do 
 allow within certain limits a liberty of private opinion has been 
 laid down by the Ecclesiastical Courts and by the Judicial 
 Coramittee of the Privy Council. And I think it will be con- 
 venient to cite in this place the exact language which in various 
 cases has been applied by these tribunals to this subject. 
 
 In the first reported case, that of H. M. Procurator-General 
 V. Stone, Lord Stowell, sitting in the Consistory of London, 
 said : — 
 
 " I think myself bound at the same time to declare that it 
 is not the duty nor inclination- of this Court to be minute and 
 rigid in applying proceedings of this nature ; and that if any 
 Article is really a subject of dubious interpretation, it would be 
 highly improper that this Court should fix on one meaning, 
 and prosecute all those who hold a contrary opinion regarding 
 its interpretation. It is a very different thing where the 
 1 Bishop of Ely on the Axticles, 678. 
 
Sheppard v. Bennett. 229 
 
 authority of the Articles is totally eluded, and the party deli- 
 berately declares the intention of teaching doctrines contrary 
 to them/'i 
 
 And in the case of Mr. Gorham, the Judicial Committee of 
 the Privy Council said : — 
 
 " There are other points of doctrine respecting the Sacrament 
 of Baptism which we are of opinion are, by the Eubrics and 
 Formularies (as well as the Articles), capable of being honestly 
 understood in different senses ; and consequently we think that, 
 as to them, the points which were left undetermined by the 
 Articles are not decided by the Eubrics and Formularies, and 
 that ugon these points all ministers of the Church, having duly 
 made the subscriptions required by law (and taking Holy 
 Scripture for their guide), are at liberty honestly to exercise 
 their private judgment without offence or censure. 
 
 " Upright and conscientious men cannot in all respects agree 
 upon subjects so difficult ; and it must be carefully borne in 
 mind that the question, and the only question for us to decide, 
 is, whether Mr. Gorham's doctrine is contrary or repugnant to 
 the doctrine of the Church of England as by law established. 
 Mr. Gorham's doptrine may be contrary to the opinions enter 
 tained by many learned and pious persons, contrary to the 
 opinion which such persons have, by their own particular 
 studies, deduced from Holy Scripture, contrary to the opinion 
 which they have deduced from the usages and doctrines of the 
 Primitive Church, or contrary to the opinion which they have 
 deduced from uncertain and ambiguous expressions in the 
 Formularies ; still, if the doctrine of Mr. Gorham is not contrary 
 or repugnant to the doctrine of the Church of England as by 
 law established, it cannot afford a legal ground for refusing 
 him institution to the living to which he has been lawfully 
 presented.^ 
 
 " In the examination of this case, we have not relied upon 
 the doctrinal opinions of any of the eminent writers, by whose 
 piety, learning, and ability the Church of England has been 
 distinguished; but it appears that opinions, which we cannot in 
 any important particular distinguish from those entertained by 
 Mr. Gorham, have been propounded and maintained, without 
 censure or reproach, by many eminent and illustrious prelates 
 and divines who have adorned the Church from the time when 
 the Articles were first established. We do not affirm that the 
 doctrines and opinions of Jewel, Hooker, Usher, Jeremy Taylor, 
 Whitgift, Pearson, Carlton, Prideaux, and many others, can be 
 received as evidence of the doctrine of the Church of England, 
 
 1 H. M. Proctiyr v. Stone, 1 Consist. Kep., p. 428. 
 
 2 Gorham v. Bishop of Exeter, The Gorham Case, by E. F. Moore, p. 471. 
 
230 Ecclesiastical Judgments. 
 
 but their conduct, unblamed and unquestioned as it was, 
 proves, at least, the liberty which has been allowed of maintain- 
 ing such doctrine.^ 
 
 " We express no opinion on the theological accuracy of these 
 opinions or any of them. The writers whom we have cited are 
 not always consistent with themselves, nor are the reasons 
 upon which they found their positions always valid ; and other 
 writers of great eminence, and worthy of great respect, have 
 expressed very different opinions. But the mere fact that 
 such opinions have been propounded and maintained by persons 
 so eminent, and so much respected, as well as by very many 
 others, appears to us sufficiently to prove that the Jiberty 
 which was left by the Articles and Formularies has been actually 
 enjoyed and exercised by the members and ministers of the 
 Church of England." 2 
 
 And in the case of Burder v. Heath, Dr. Lushington, who 
 had been one of the Lords of the Privy Council in the Gorham 
 case, sitting as Judge of the Court of Arches, observed : — 
 
 " And I apprehend that the course to be followed is, first, to 
 endeavour to ascertain the plain grammatical sense of the 
 Article of Eeligion said to be contravened, and if that Article 
 admit of several meanings, without any violation of the ordi- 
 nary rules of construction or the plain grammatical sense, then 
 I conceive that the Court ought to hold that any such opinion 
 might be lawfully avowed and maintained. 
 
 " If, indeed, any controversy arise whether any given mean- 
 ing is within the plain grammatical construction, the Court 
 must form the best judgment it can, with this assistance, as I 
 have already said, that if the doctrine in question has been 
 held without offence by eminent divines of the Church, then, 
 though perhaps difficult to be reconciled with the plain mean- 
 ing of the Articles of Eeligion, stiU a Judge in my position 
 ought not to impute blame to those who hold it. That which 
 has been allowed or tolerated in the Church ought not to be 
 questioned by this Court." ^ 
 
 And again the same learned Judge says : — 
 
 "Before concluding, I think it right to explain why I do 
 not advert to the many authorities which the zeal and learn- 
 ing of counsel have produced. My reason is this, that, in my 
 judgment, not one of these authorities does that which was 
 required in this case — namely, show that some divine of emi- 
 nence has held, without reproach from Ecclesiastical authority, 
 doctrines in substance the same as those Mr. Heath has pro- 
 mulgated ; whatever opinions may have been held in the vast 
 
 1 Oorham v. Bishop o/Mceter, The Gorham' Case, by E. F. Moore, p. 472. 
 
 2 [bid, p. 474. 3 Burder v. HeatJi, 15 Moore, P. C. Kep. p. 45. 
 
Sheppard Y. Bennett. 231 
 
 field of polemical divinity, I find none which support Mr. 
 Heath or justify him. In the Gorham case the Judicial Com- 
 mittee had the advantage of being able to quote, in support 
 of their judgment, and in justification of Mr. Gorham, passages 
 from the writings of divines of the highest authority." ^ 
 
 And again : — 
 
 "No explanation has been offered which in any way shows 
 that Mr. Heath's opinions can be reconciled with the Articles, 
 nor has any eminent divine been shown to have shared his 
 views. Mr. Heath therefore must be condemned by the 
 Articles imposed by law, and which the law alone can 
 change."^ 
 
 In the recent cases, commonly called the case of Essays and 
 Eeviews, Lord Westbury, delivering the judgment of the Privy 
 Council, said : — 
 
 "Our province is, on the one hand, to ascertain the true 
 construction of those Articles of Eeligion and Formularies 
 referred to in each charge, according to the legal rules for the 
 interpretation of statutes and written instruments; and, on 
 the other hand, to ascertain the plain grammatical meaning 
 of the passages which are charged as being contrary to or in- 
 consistent with the doctrine of the Church, ascertained in the 
 manner we have described. 
 
 "It is obvious that there may be matters of doctrine on 
 which the Church has not given any definite rule or standard 
 of faith or opinion ; there may be matters of religious belief on 
 which the requisition of the Church may be less than Scripture 
 may seem to warrant ; there may be very many matters of 
 Teligious speculation and inquiry on which the Church may 
 have refrained from pronouncing any opinion at all. On mat- 
 ters on which the Church have prescribed no rule, there is 
 so far freedom of opinion that they may be discussed without 
 penal consequences. Nor in a proceeding like the present 
 are we at liberty to ascribe to the Church any rule or teaching 
 which we do not find expressly and distinctly stated, or which 
 is not plainly involved in or to be collected from that which is 
 written."* 
 
 And again his Lordship said : — 
 
 " There remain the Commination service and the Athanasian 
 Creed. The material passage in the Commination service is 
 in these words : — ' terrible voice of the most just judgment 
 which shall be pronounced upon them, when it shall be said 
 
 1 Bwdeir v. Heaik, 15 Moore, P. C. Eep. p. 64. 
 
 2 Burder v. Heath, Brodrick and Fremantle, P. C. Judgments, p. 229. 
 
 3 Williams v. The Bishop of Salisbury, and Wilson v. Fendall, 2 Moore's 
 P. C. Hep. (N. S.) p. 425. 
 
232 Ecclesiastical yudgments. 
 
 unto them, Go, ye cursed, into the fire everlasting which is 
 prepared for the Devil and his Angels.' In like manner the 
 Athanasian Creed declares that they that have done evil shall 
 go into everlasting fire. Of the meaning of these words ' ever- 
 lasting fire,' no interpretation is given in the Formularies which 
 are referred to jn the charge. Mr. Wilson has urged in his 
 defence that the word ' everlasting ' in the English translation of 
 the New Testament, and of the Creed of St. Athanasim, must he 
 subjected to the same limited intei-pretation which some learned 
 men have given to the original words which are translated by 
 the English word ' everlasting,' and he has also appealed to the 
 liberty of opinion which has always existed without restraint 
 among very eminent EngUsh divines upon this subject."^ 
 
 And again : — 
 
 " "We are not required, or at liberty, to express any opinioil 
 upon the mysterious question of the eternity of final punish- 
 ment, further than to say that we do not find in the Formu- 
 laries, to which this Article refers, any such distinct declara- 
 tion of our Church upon the subject, as to require us to con- 
 demn as penal the expression of hope by a clergyman that even 
 the ultimate pardon of the wicked, who are condemned in the 
 day of judgment, may be consistent with the wiU. of Almighty 
 God." 2 
 
 Special Charges. — i. Visible Presence of our Lord in 
 the Holy Eiicharist. 
 
 The charge against the defendant which I purpose first to 
 consider, is contained in the 15th and 16th articles, and is 
 founded on a passage in the second edition of his work, entitled 
 A Plea for Toleration, etc. In that work he speaks " of the 
 visible presence of our Lord upon the altars of our churches." 
 
 I have read these words with much surprise and sorrow. 
 
 If a private clergyman of the Church of England, holding no 
 position which renders it in any way incumbent upon him to 
 publish his opinions to the world at all, nevertheless steps out 
 of the ordinary course of his parochial duty to discharge the 
 office of a public writer upon the most awful mystery of our 
 holy religion, the least that our Church has a right to expect 
 from him is the knowledge and erudition of a theologian, and 
 the use of the most careful and well-considered language. 
 
 The great divines of our Church, feeling and knowing the 
 mode of Christ's presence to be a mystery which is rather to be 
 adored in the silence of the heart than made, the subject of con- 
 
 1 Williama v. The Bishop of Salisbury, and Wilson v. Fendall, 2 Moore's 
 P. C. Rep. (N. S.) p. 432. 2 Ibid. p. 433. 
 
Sheppardv. Bennett. 233 
 
 troversy, have, as it were, feared to tread when they approached 
 the precincts of it ; and Iseing well versed both in history and 
 theology, knowing therefore how much hasty, ill-chosen, inade- 
 quate, and presumptuous expressions upon this subject have 
 contributed to the schisms of Christendom, and fearful of lead- 
 ing others astray, have been silent, or, if it were necessary to 
 speak, studiously guarded and reverently careful in their 
 language. 
 
 "All things considered," says Hooker, "and compared with 
 that success which truth hath hitherto had by so bitter con- 
 flicts with errors in that point, shall I wish that men would 
 more give themselves to meditate with silence what we have 
 by the Sacrament, and less to dispute of the manner how ? 
 If any man suppose that this were too great stupidity and 
 dulness, let us see whether the Apostles of our Lord themselves 
 have not done the like. It appeareth by many examples that 
 they of their own disposition were very scrupulous and inqui- 
 sitive, yea, in other cases of less importance and less difficulty, 
 always apt to move questions. How cometh it to pass that 
 so few words of so high a mystery being uttered, they receive 
 with gladness the gift of Christ, and make no show of doubt 
 or scruple."^ 
 
 • ■ • • r • ■ 
 
 " Where God himself doth speak those things, which either 
 for height and sublimity of matter, or else for secrecy of per- 
 formance, we are not able to reach unto, as we may be ignorant 
 without danger, so it can be no disgrace to confess we are 
 ignorant. Such as love piety wOl as much as in them lieth 
 know all things that God commandeth, but especially the 
 duties of service which they owe to God. As for his dark 
 and hidden works, they prefer, as becometh them in such 
 cases, simplicity of faith before that knowledge, which 
 curiously sifting what it should adore, and disputing too 
 boldly of that which the wit of man cannot search, chilleth for 
 the most part all waimth of zeal, and bringeth soundness of 
 belief many times into great hazard."^ 
 
 Of the impropriety of his language the defendant seems to have 
 been made aware ; but, unfortunately, not until he had com- 
 mitted the very rash act of publishing it to the world. I have no 
 hesitation in pronouncing that the expression " visible presence 
 of our Lord upon the altars of our churches" is in its plain 
 meaning at variance with all the Formularies of our Church 
 upon the subject, at variance with the language of the service of 
 the Holy Communion, of the 28th Article, and of the Catechism. 
 
 The doctrine which it expresses, to use the language of our 
 1 E. P. Book V. Tol. ii. p. 2. ^ Ih^d. p. 12. 
 
234 Ecclesiastical Judgments. 
 
 Articles, " overthrow&tli tlie nature of a sacrament," even more 
 than transubstantiation. 
 
 I may add, also, that •whatever figurative language may be 
 found in the sermons of Eastern Fathers before controversy 
 arose on the subject, I have not been able to find that such a 
 doctrine has ever been maintained in the dogmatic teaching of 
 our own or of any other branch of the Church. 
 
 I wUl consider presently the legal effect of the substitution in 
 a later edition of other language than that which I have here 
 to condemned. 
 
 2. Other Modes of the Presence in the Holy Eucharist. 
 
 I have now to consider the charges, which relate to the modes 
 of the Presence in the Eucharist, other than that which I have 
 condemned, and which form the subject of the 8th, 9th, 10th, 
 11 th, 1 4th, 1 7th, 2 1st, 2 2 d, 2 3d, and 2 4th articles. I find them 
 to be substantially as follows ; — 
 
 That in the Sacrament of the Lord's Supper there is an 
 actual presence of the Body and Blood of our Lord in the 
 Consecrated Bread and Wine ; 
 That there is an actual Presence of the true Body and Blood 
 of our Lord in the Sacramental Bread and Wine, without 
 or external to the communicant, by virtue of, upon, and 
 after the consecration of the same, irrespectively of the 
 faith and worthiness of the communicant, so as to be re- 
 ceived by aU communicants irrespectively of their faith 
 and worthiness ; 
 That there is an actual presence of the true Body and Blood 
 of our Lord in the Consecrated Biead and Wine, without 
 or external to the communicants, prior to and separate 
 from the act of reception by the communicants ; 
 That in the Holy Communion the natural Body and Blood of 
 our Saviour Christ are not only in heaven, but here, to wit, 
 upon or before the Altars or Communion Tables of the 
 Church in the Consecrated Elements ; 
 That in the Holy Communion the natural Body and Blood of 
 our Saviour Christ are not only in heaven, but here, to 
 wit, upon or before the Altars or Communion Tables of 
 the Church under the form or veil of Bread and Wine ; 
 ' That the Body and Blood of our Lord are actually and ob- 
 jectively present upon the Altars or Communion Tables 
 of the Church under the form or veil of, and in the Sacra- 
 mental Bread and Wine, by virtue o^ upon, and after 
 the consecration of the same, irrespectively of the faith and 
 worthiness of the communicant, so as to be received by 
 
Sheppard v. Bennett. 235 
 
 all communicants irrespectively of their faith and worthi- 
 ness ; 
 That the Body and Blood of our Lord are actually and ob- 
 jectively present upon the Altars (thereby referring to the 
 Communion Tables) of the Church under the form or veil 
 of, and in the Consecrated Bread and Wine, prior to and 
 separately from the act of reception by the communicants. 
 The first question for consideration is, vyhether the passages 
 extracted from the work of the defendant do contain the 
 opinions which are so charged against him. After an attentive 
 perusal of the passages extracted, I have arrived at the conclu- 
 sion that they do not contain the opinions relating to the Pre- 
 sence of the natural Body and Blood of our Saviour which are 
 charged in the 11th, 17th, and 24:th articles. 
 
 The passage which makes the nearest approach to the sup- 
 port of this charge is I think in the extract lettered D, in the 
 5th article, where he speaks of " the fact, that here before God's 
 Altar is something far higher, far more awful, more mysterious, 
 than aught that man can speak of — namely, the Presence of 
 the Son of God in human flesh subsisting." It seems to me 
 that the author, whose language is lamentably loose and inac- 
 curate, did not mean by these words any more than the Pre- 
 sence of the Incarnate Son of God, and did not mean to express 
 any opinion as to the Presence of his natural flesh and blood. 
 And this opinion is conflrmed by a comparison of the passage 
 cited with other passages in his work, such as, for instance, one 
 of the passages cited in the articles before me, lettered G, " a 
 living real spiritual offering of Jesus Christ upon the Altar," 
 and the often-repeated expression that the Presence of which 
 he speaks is one under the veil of the elements of Bread and 
 Wine, and various other passages which upon the whole lead 
 me to the conclusion that he did not contemplate a physical or 
 natural Presence of our Lord. I therefore consider the criminal 
 articles on this point, 11, 17, and 24, not to be proved. 
 
 With respect to the other charges, of which I have given the 
 summary, and which are stated at length in the 8th, 9th, 10th, 
 14th, 21st, 2 2d, and 23d articles, I think that they do fairly 
 represent the opinions of the defendant contained in the pas- 
 sages set out, with one exception — namely, the words " irrespec- 
 tively of the faith and worthiness of the communicant," which 
 appear to point to an offence against the 29th Article of Eeli- 
 gion, which was charged in the original articles and struck out 
 by the Court. It may, however, be that these words are merely 
 used in the sense of " prior to and separately from the act of 
 reception by the communicants ;" and if so, they seem to me to 
 fairly represent the opinion of the defendant. 
 
236 Ecclesiastical Jtidgments. 
 
 Object and Intention of the Formularies. 
 
 I have now to consider whether these opinions contravene 
 the Formularies of the Church, as contained in the passages set 
 forth in the 28th article of the charge. 
 
 The authority upon which our Church principally relied in 
 her Formularies with respect to the Sagraments was that of S. 
 Augustine. His authority is especially referred to in the 
 Articles, portions of which are indeed almost translations from 
 his works ; and Overall made the definition of S. Augustine, as 
 suhsequently moulded hy the schoolmen, the basis of the doctrine 
 on the Sacrament contained in our Catechism.^ The " Sacra- 
 mentum" is sometimes used as the "sacrserei signum," although, 
 as the 25th Article expressly asserts, a " signum efficax," as dis- 
 tinguished from a " signum merum," a sign, that is to say, by 
 which, "as by an instrument" (Art. 27), the thing signified is 
 effected. Sometimes " Sacramentum " is used more explicitly 
 for the entire " ritus," in its internal and external elements. 
 As a rite it consists of three parts, the outward elements, 
 which are the signwn, the res, which is the inward part or thing 
 signified, that is, as our Catechism saith, " The Body and Blood 
 which are verily and indeed taken and received by the faithful 
 in the Lord's Supper," and the " virtus " or " the benefits whereof 
 we are partakers thereby," that is, the strengthening and re- 
 freshing of our " souls with the body and blood of Christ, as 
 our bodies are by the bread and wine." It is in this way that 
 the Sacrament of the Lord's Supper is spoken of in our Cate- 
 chism. Bishop Hampden in his Bampton Lectures thus re- 
 marks : — 
 
 " Theologians have not been content to rest on the simple 
 fact of the Divine Ordinance, appointing certain external rites 
 as essential parts of Divine Service on the part of man, avail- 
 able to the blessing of the receiver ; but they have treated the 
 Sacraments as effusions of virtue of Christ, physically quicken- 
 ing and strengthening the soul, in a manner analogous to the 
 invigoration of the body by salutary medicines. The word 
 'Sacrament' itself, as understood in the Latin Church, is 
 founded on this notion. Though derived from the military 
 oath of the Eomans, and so far bearing the mark of that deri- 
 
 1 Saerifloium ergo visible invisibilis sacrificii Sacramentum, id est, sacrum 
 signum est.- — Augustin. De Civ. Dei, lib. x. c. 5. 
 
 Sacramentum est saorae rei signum. Dicitur tamen sacramentum etiam 
 sacrum secretum, sicut sacramentum diviuitatis ; ut sacramentum sit sacrum 
 signans : sed nunc agitur de sacrameuto secundum quod est signum. Item, 
 sacramentum est invisibilis gratise visibilis forma. — Lombard. Sent., lib. iv. 
 dist. 1. 
 
Sheppard v. Bennett. 237 
 
 vafcion, as it denotes a solemn pledge 'of faith on the part of the 
 receiver, in its established theological use it corresponded more 
 properly with fwarripiov of the Greeks. It expressed, at first, 
 accordingly, any solemn mysterious truth of Eeligion; and 
 afterwards, by the usage of the schools, was appropriated to 
 those acts in particular by which grace was conceived to be 
 imparted to the soul, under outward and visible signs. The 
 definition indeed, given in the Catechism of the Church of 
 England, is exactly what the scholastic theory suggests ; so 
 far, at least, as the language of it characterises the nature of a 
 Sacrament. It is in the subsequent application of this defini- 
 tion that the Church of England has modified and improved 
 on the fundamental idea of the scholastic doctrine, whilst the 
 idea itself is presented as being part of the very texture of 
 technical theology."^ 
 
 The 28th Article, " Of the Lord's Supper," says, " The Supper 
 of the Lord is not only a sign of the love that Christians ought 
 to have among themselves one to another, but rather a Sacra- 
 ment of our redemption by Christ's death ; " and it adds that 
 to the worthy partaker the bread is a partaking of the body of 
 Christ, and the cup a partaking of the blood of Christ ; and the 
 29th Article says, that the wicked, "though they do carnally 
 and visibly press with their teeth, as S. Augustine saith, the 
 Sacrament of the body and blood of Christ, yet in nowise are 
 they partakers of Christ, but rather to their condemnation do 
 eat and drink the sign or Sacrament of so great a thing." 
 
 The first part of the Homily concerning the Sacrament con- 
 tains the following passage : " Neither need we to think that 
 such exact knowledge is required of every man^ that he be able 
 to discuss all high points in the doctrine thereof; but thus 
 much we must be sure to hold, that in the Supper of the Lord 
 there is no vain ceremony, no bare sign, no untrue figure of a 
 thing absent (Matt, xxvi.) ; " that is, we ought to hold affirma- 
 tively that it is the true figure of a thing present. 
 
 The doctrine contained in these Formularies excludes the 
 Zwinglian account of the Sacraments. On this point I will 
 cite &e opinion of Dr. Liddon, Professor of the Exegesis of 
 Holy Scripture in the University of Oxford, and Canon of St. 
 Paul's :— 
 
 " As our Lord's Divinity is the truth which illuminates and 
 sustains the world-redeeming virtue of His death, so in like 
 manner it explains and justifies the power of the Christian 
 Sacraments as actual channels of supernatural grace. To 
 those who deny that' Jesus Christ is God, the Sacraments are 
 
 1 Bishop Hamupdmh Scholastic Philosophy, lee. vii. p. 32. See also note B, 
 p. 313. 
 
238 Ecclesiastical judgments. 
 
 naturally nothing more than ' badges or tokens ' of social co- 
 operation. The one Sacrament is only 'a sign of profession 
 and mark of difference, whereby Christian men are discerned 
 from others that be not christened.' The other is at best ' only 
 a sign of the love that Christians ought to have one towards 
 another.' Thus Sacraments are viewed as altogether human 
 acts ; God gives nothing in them ; He has no special relation 
 to them. They are regarded as purely external cereinonies, 
 which may possibly suggest certain moral ideas by recalling 
 the memory of a Teacher who died many centuries ago. They 
 help to save His name from dying out among men. Thus they 
 discharge the functions of a public monument, or of a ribbon 
 or medal implying membership in an association, or of an 
 anniversary festival instituted to celebrate the name of some 
 departed historical worthy. It, cannot be said that in point of 
 effective moral power they rise to the level of a good statue or 
 portrait since a merely outward ceremonial cannot recall char- 
 acter, and suggest moral sympathy as effectively as an accurate 
 rendering of the human countenance in stone, or colour, or the 
 lines of an engraving. Kites, with a function so purely his- 
 torical, are not likely to survive any serious changes in human 
 feelings and associations. Men gradually determine to com- 
 memorate the object of their regard in some other way, which 
 may perhaps be more in harmony with their personal tastes ; 
 they do not admit that this particular form of commemoration, 
 although enjoined by the Author of Christianity, binds their 
 consciences with the force of any moral obligation ; they end 
 by deciding that it is just as well to neglect such commemora- 
 tions altogether. 
 
 " If the Socinian and Zwinglian estimate of the Sacraments 
 had been that of the Church of Christ, the Sacraments would 
 long ago have been abandoned as useless ceremonies. But 
 the Church has always seen in them not mere outward signs 
 addressed to the taste or to the imagination, nor even signs 
 (as Calvinism asserts) which are tokens of grace received in- 
 dependently of them, but signs which, through the power of 
 the promise and words of Christ, effect what they signify. 
 They are ' effectual signs of grace and God's goodwill towards 
 us, by the which He doth work invisibly in us.' Thus in 
 baptism the Christian child is made ' a member of Christ, a 
 child of God, and an inheritor of the kingdom of Heaven ; ' 
 and 'the Body and Blood of Christ are verily and indeed 
 taken and received by the faithful in the Lord's Supper.' . . . 
 
 " That depreciation of the Sacraments has led with general 
 consistency to depreciation of our Lord's Eternal Person, is a 
 simple matter of history. True, there have been and are be- 
 
Sheppardv. Bennett. 239 
 
 lievers in our Lord's Divinity wlio deny the realities of sacra- 
 mental grace. But experience appears to show that their 
 position is only a transitional one. For history illustrates this 
 law of fatal declension even in cases where sacramental belief, 
 although imperfect, has been far nearer to the truth than is the 
 naturalism of Zwingli. Many of the most considerable Socinian 
 congregations' in England were founded by the Presbyterians 
 who fell away from the Church in the seventeenth century. 
 The pulpit and the chair of Calvin are now iilled by men who 
 have, alas! much more in common with the Eacovian Catechism 
 than with the positive element of the theology of the Institutes. 
 The restless mind of man cannot but at last push its principle 
 to the real limit of its application, even although centuries 
 should intervene between the premiss and the conclusion. 
 Imagine that the Sacraments are only picturesque memorials 
 of an absent Christ, and the mind is in a fair way to believe 
 that the Christ who is thus commemorated as absent by a 
 barren ceremony is Himself only and purely human." ^ 
 
 I hold it to have been the intention of the Formularies to 
 exclude the Zwinglian doctrine of bare commemoration with 
 respect to the Lord's Supper, although that error be not ex- 
 pressly mentioned. 
 
 The next error is, however, by name prohibited. " Transub- 
 stantiation," the Article says, " (or the change of the substance 
 of bread and wine), in the Supper of the Lord, cannot be proved 
 by Holy Writ ; but is repugnant to the plain words of Scrip- 
 ture, overthroweth the nature of a Sacrament, and hath given 
 occasion to many superstitions." — (Art. 28.) This is the only 
 mode of the Presence which is eo nomine, proscribed by the 
 Articles. And I am not therefore surprised to find that in his 
 charge of the year 186C to the clergy of his diocese, the Bishop 
 of St. David's, in contrasting our Communion service with the 
 Eoman Missal, and our doctrine of the Lord's Supper with that 
 of Eome, should say : — 
 
 " And here I cannot refrain from pausing for a moment to 
 remark, that there is perhaps no head of theological controversy 
 in which our Church stands in more advantageous contrast 
 with Eome, or in which we have more reason thankfully to 
 recognise her characteristic moderation, than this. The tenet 
 of Transubstantiation, decreed as an article of faith, combines 
 in itself the two extremes of irreverent rationalism and pre- 
 sumptuous dogmatism.^ . . . 
 
 " The Church of England, on the contrary, has dealt with this 
 subject in a spirit of true reverence as well as of pmdence and 
 
 1 Liddon's Bampton Lectures, 1866, lee. viii. pp. 719, 725 (ed. 1867). 
 
 2 Charge delivered by the Bishop of St. David's (1866), p. 96. 
 
240 Ecclesiastical Judgments. 
 
 charity. She asserts the mystery, inherent in the institution 
 of the Sacrament, but abstains from all attempts to investigate 
 or define it, and leaves the widest range open to the devotional 
 feelings and the private meditations of her children with 
 regard to it. And this liberty is so large, and has been so 
 freely us6d, that apart from the express admission of Transub- 
 stantiation, or of the gi'ossly carnal notions to which it gave 
 rise, and which, in the minds of the, common people, are pro- 
 bably inseparable from it, I think there can hardly be any 
 description of the Eeal Presence, which in some sense or other 
 is universally allowed, that would not be found to be authorised 
 by the language of eminent divines of our Church ; and I am 
 not aware, and do not believe, that our most advanced Eitualists 
 have in fact overstepped those very ample bounds." ^ 
 
 Authorities as to the Construction of the Formularies relating 
 to the Holy Eucharist. 
 
 Having regard to the canons as to the liberty of clergymen 
 laid down in the judgments to which I have referred, I venture 
 to support the position of the Bishop of St. Da\M's with the 
 following authorities. 
 
 And first let me begin with those two authorities to whom 
 I have already referred, and who demonstrate the identity of 
 the present doctrine of the .Church of England with that which 
 she has maintained from Anglo-Saxon times upon the subject 
 of the Presence in the Eucharist. 
 
 I select the following passages from the famous treatise of 
 Eatramn : — 
 
 " Nunc redeamus ad ilia, quorum causa dicta sunt ista ; 
 videlicet, corpus et sanguinem Christi Si enim nulla sub 
 figura mysterium illud peragitur, iam mysterium non rite 
 vocitatur ; quoniam mysterium dici non potest, in quo nihil 
 est abditum, nihil a corporalibus sensibus remotum, nihil 
 aliquo velamine contectum. At Ule panis qui per Sacerdotis 
 ministerium Christi corpus efficitur, aUud exterius humanis 
 sensibus ostendit ; et aliud interius fidelium mentibus clamat. 
 Exterius quidem panis, quod ante fuerat, forma prsetenditur, 
 color ostenditur, sapor accipitur. Ast interius longe aliud, 
 multoque pretiosius multoque excellentius intimatur; quia 
 coeleste, quia divinum, id est Christi corpus ostenditur ; quod 
 non sensibus cpnis ; sed animi fidelis contuitu, vel aspicitur, 
 vel accipitur, v^l comeditur. Vinum quoque, quod Sacerdotali 
 consecratione Christi sanguinis ef&citur sacramentum, aUud 
 1 Charge delivered by the Bishop of St. David's (1866), pp. 97, 98. 
 
Sheppardv. Bennett. 241 
 
 superficie teniis ostendit ; aliud interius continet. Quid enim 
 aliud in superficie ; quam substantia vini conspicitur ? Gusta, 
 vinum sapit; Odora, vinum redolet; Inspice, vini color in- 
 tuetur. At interius si consideres, jam non liquor vini, sed 
 liquor sanguinis Christi credentium mentibus et sapit, dum 
 gustatur; et agnoscitur, dum conspicitur; et probatur, dum 
 odoratur. Hsec ita esse dum nemo potest abnegare, claret; 
 quia panis ille vinumque figurate Christi corpus et sanguis 
 existit. Non enim secundum quod videtur, vel carnis species 
 nullo pane cognoscitur, vel in illo vino cruoris unda mon- 
 stratur : cum tamen post mysticam consecrationem, nee panis, 
 jam dicitur, nee vinum, sed Christi corpus et sanguis." ^ 
 
 " Quserendum ergo est ab eis, qui nihil hie figurate volunt 
 accipere, sed totum in veritatis simplicitate consistere ; secun- 
 dum quod demutatio facta sit: ut iam non sint quod ante 
 fuerunt; videlicet, panis atque vinum sed sint corpus at que 
 sanguis Christi? Secundum speciem namque creaturse, for- 
 mamque rerum visibilium, utrunque hoc, id est, panis et vinum, 
 nihil habent in se permutatum." ^ 
 
 " Sicut ergo paulo ante quam pateretur, panis substantiam 
 et vini creaturam convertere potuit in propriimi corpus quod 
 passurum erat, et in suum sanguinem qui post fundendus ex- 
 tabat : sic etiam in deserto manna et aquam de petra in suam 
 carnem et sanguinem convertere prsevaluit quamvis longe post 
 et caro illius in cruce pro nobis pendenda, et sanguis eius in 
 ablutionem nostram fundendus superabat.* 
 
 " Item consequenter : in illo sacramento Christus est : quia 
 corpus Christi est. Non ergo corporalis esca, sed spiritualis 
 est. Quid apertius ; quid manifestius ; quid divinius ? Ait 
 enim ; in illo sacramento Christus est. Non enim ait ille panis 
 et illud vinum Christus est. Quod si diceret, Christum cor- 
 ruptibUem (quod absit) et mortalitati subjectum predicaret. 
 Quicquid enim in ilia esca vel cernitur vel gustatur corporaliter, 
 corruptibilitati constat obnoxium esse. Addit, quia corpus 
 Christi est. 
 
 "Insurgis et dicis, Ecce manifeste ilium panem, et Ulum 
 potum corpus esse Christi confitetur. Sed, attende quemad- 
 modum subjungitur. • Non ergo corporalis esca, sed spiritualis 
 est. Non igitur sensum carnis adhibeas. Nihil enim secun- 
 dum eum hie decernitur. Est quidem corpus Christi, sed non 
 corporale, sed spirituale. Est sanguis Christi, sed non corpo- 
 ralis, sed spiritualis. Nihil igitur hie corporaliter, sed spiritu- 
 
 1 Bertrami Presbyteri De Corpore et Sanguine Domini, etc., pp. 9-11. 
 Edition published at Geneva, 1541 ; see also English edition, published at 
 Bublin, 1753. 
 
 2 Hid. pp. 13, 14. . 3 nid. he. eit., pp. 23, 24. 
 
242 Ecclesiastical Jitdgments. 
 
 aliter sentiendum. Corpus Christi est, sed non corporaliter, 
 et sanguis Christi est, sed non corporaliter.^ 
 
 " Ponamus adhuc uuum patris Augustini testimonium, quod 
 et dictorum Mem nostrorum astruat, et sermonis marginem 
 ponat. In sermone quern fecit ad populum de sacramento 
 altaris, sic inflt, Soc quod videtis in altari Dei, jam transacta 
 nocte vidistis. Sed quid esset, quid sibi vellet, quam magnse 
 rei sacramentum contineret, nondum audistis. Quod ergo 
 videtis, panis est, et calix, quod vobis etiam oculi vestri re- 
 nuntiant: quod autem fides vestra postulat in struenda; panis, 
 est corpus Christi ; calix est sanguis Christi. Breviter quidem 
 hoc dictum est quod fide forte sufficiat : sed fides instructionem 
 desiderat. Dicit enim Propheta: Nisi credideritis, non in- 
 telligetis! Potestis ergo dicere mihi, prsecepisti ut credamus : 
 expone ut intelligam. Potest enim animo cujuspiam cogitatio 
 talis oboriri: Dominus noster Jesus Christus novim unde 
 acceperit carnem, de Virgine scilicet Maria, infans lactatus est, 
 uutritus est, crevit, ad juvenilem setatem perductus est, a 
 Judseis persecutionem passus est, ligno suspensus est, inter- 
 fectus est, de ligno depositus est, sepultus est, tertio die re- 
 surrexit, quo die voluit, in ccelum ascendit, illuc levavit corpus 
 suum, inde venturus est judicare vivos et mortuos, ibi est 
 modo sedens ad dexteram Patris. Quomodo panis corpus 
 eius ; et caUx, vel quod habet calix ; quo modo ejus est sanguis? 
 Ista fratres, ideo dicuntur sacramenta quia in eis aliud videtur, 
 et aliud intelligitur. Quod videtur, speciem habet, corporalem, 
 quod intelligitur fructum habet spiritualem. Ista venerabilis 
 Author dicens, instruit nos quid de proprio corpore Domini, 
 quod de Maria natum, et nunc ad dexteram Patris sedet, et in 
 quo venturus et judicare vivos et mortuos ; et quid de isto, 
 quod super altare ponitur, et populo participatur, sentire de- 
 beamus. Illud integrum est, neque ulla sectione dividitur, nee 
 ulis figuris obvelatur. Hoc vero quod supra mensam Domini 
 continetur, et figura est, quia sacramentum est : et exterius 
 quod videtur speciem habet corpoream quae pascit corpus : 
 interius vero quod intelligitur, fructum habet spiritualem, qui 
 vivificat animam."^ 
 
 '^ Bertrami, loc. at., pp. 41, 42. 
 
 2 Ihid. pp. 61-64. 
 
 The learned Cave says, " Bertramnus rectius Ratramniis natione ut videtur 
 Oallua in veteri monasterio Corbeiensi monaehus et presbyter tandem favente 
 Carolo Calvo iu dioecesi Suessouiensi coenobii praepositus. Claruit anno 840 
 quo circa tempore vel paulo ante ad scribendum se accinxit." 
 
 He wrote, " De Virgine Domiuum parturiente," " De Predestinatione," 
 849 ; " et paulo post deoantatissimum illuni de Ev/^haristia libellum iu lucem 
 emississe videtur." .... 
 
 " De Corpore et Sanguine Domini liber iu quo quam aperte quam diserte 
 
Sheppard v. Bennett. 2^^ 
 
 Of this book of Bertram's Bishop Hampden says : — 
 
 " The opposition of controversy, whilst it led the orthodox to 
 assert an actual presence of the incarnate Christ under the 
 sacramental symbols of bread and wine, made them charge their 
 adversaries with holding the Sacraments to be only signs, 
 memorials of Christ's passion, and not the actual oblation. And 
 this may account for the pointed expression in one article, that 
 " The Supper of the Lord is not only a sign of the love which 
 Christians ought to have among themselves, but rather is a 
 Sacrament of our Eedemption." In denying an actual com- 
 munication of Christ to the sacred emblems, it became neces- 
 sary to guard against the construction of asserting a merely 
 commemorative right, and thus evacuating the Sacrament of its 
 holy burthen of grace. For neither Batramn, in opposing the 
 doctrine of Paschase, nor afterwards Berenger, in advocating 
 the views of Urigena against Lan/ranc, appear to have held 
 that the Eucharist was nothing more than a sign. Eatramn, 
 indeed, distinctly asserts a real presence, though he does not 
 admit a presence of the crucified body of Christ in the con- 
 secrated bread and wine. It is a real and true presence that 
 he asserts, the virtue of -Christ acting in the way of efi&cacious 
 assistance to the receiver of the Sacrament. The Church of 
 England doctrine of the Sacraments, it is well known, is founded 
 on the views given by this author. Cranmer and Eidley are 
 said to have studied his work together, and to have derived 
 their first ray of light on the subject from that study .^ 
 
 And the Bishop of St. David's, in his Charge of 1857, re- 
 marks : — 
 
 " And as Paschasius and Eatramn no doubt frequently com- 
 municated at the same altar, so notwithstanding the wide 
 divergency of their opinions, they may have done so with 
 
 de re Eucharistica agit et transubstantiationis dogma prout in scholia pontifi- 
 ciia explicatur quam dilucide refellit, norunt quot quot vel prima theologise 
 tyrocinia posuerunt." 
 
 Then he repels the calumny of the Bomanists that the trord was corrupt 
 and interpolated ; and speaks of JElfric's work — 
 
 " Adversus quos fidem faciunt tot vetusti codices et JElfrici nostri qui 
 anno 960 floruit homilia Paschalis ex Katramni libello pcene ad verbum 
 desumpta." — {Scriptorum Ecclesictsticorum Hist. Lit. [ed. 1745] tom. ii. p. 27.) 
 
 Of Paschasius Sadbertus (Cave says), " gente Gallua natus est anno circiter 
 786. Prima pietatis et doctrinae tyrocinia posuit inter monachos qui majori 
 monialium Suesaionessium csetui inaerviebaut," he entered under Adelard in 
 844. " Prsefecturam ooenobii Corbeiensis obtenuit." 
 
 " Primus auotor (fatente ipsomet Bellarmino de Script. Ecoles. p. 266) qui 
 serio et copioae scripsit de veritate Corporis et Sanguinis Domini in Eucha^ 
 ristia." Cave however pronounces even of Paschasius, " n on pauca tradere 
 quae cum reoepta Eccleaise Romanae doctrina nequaquam conveniunt." — Ibid. 
 p. 32. 
 
 1 Bishop Hampden's Bampton Lectures, 1832 ; Lecture vii. p. 320. 
 
244 Ecclesiastical jfudgments. 
 
 equal benefit to themselves. But the consequences of their 
 dispute were not of slight moment, and are seen and felt at 
 this day. Paschasius contributed more than any individual 
 before Lanfranc to the preponderance of that belief which be- 
 came the dogma of transubstantiation. Eatramn's treatise, as 
 is weU known, exercised a most powerful influence on the mind 
 of Eidley, and was thus mainly instrumental in fixing the doc- 
 trine of the Church of England on the Eucharist, or rather in 
 restoring that of the Anglo-Saxon Church, as expounded in exact 
 conformity to the ideas and partly in the very words of Ratramn, 
 by M\£na, in the Paschal Homily, where he teaches, 'This 
 mystery is a pledge and a symbol ; Christ's body is truth. This 
 pledge we hold mystically, until we come to the truth, and 
 then will this pledge be ended.' ^ 
 
 " Most justly, therefore, did Canon Hopkins observe (in the 
 dissertation prefixed to his edition of the treatise, ed. 1868, 
 c. V. p. 105) that ' the doctrine of Eatramn was the very same 
 doctrine which the Church of England embraced as most con- 
 sonant to Scripture and the fathers.' "Which is not what our 
 adversaries would put upon us, that the Sacrament of the Lord's 
 Supper is a naked commemoration of our Saviour's death, and 
 a mere sign of His body and blood, but an efficacious mystery 
 accompanied with such a divine and spiritual power as renders 
 the consecrated elements truly, though mystically, Christ's body 
 and blood, and communicates to us the real fruits and saving 
 benefits of His bitter passion. And this is the doctrine of 
 Bertram in both parts of his work."^ 
 
 Next in order of date and importance are the works of the 
 Anglo-Saxon Abbot of Malmesbury and St. Alban's, ^Ifric, 
 who was, perhaps, also Archbishop of Canterbury from 995 to 
 1005.^ His sermon of the " Paschall Lambe " was first printed 
 in Saxon character, and in Queen Elizabeth's reign published, 
 as I have already said, by Archbishop Parker, and subscribed 
 by him and his suffragans ; the object being to show that the 
 doctrine of the Eucharist in the English Church was not an 
 innovation upon, but a revival of, the Catholic faith. 
 
 To the publication of this work Parker prefixed the following 
 preface : — 
 
 " As the writynges of the Fathers even of the first age of the 
 Churche be not thought on all parts so perfect that whatsoever 
 thyng hath been of them spoken ought to be receaved, without 
 
 1 Mr. Thorpe's Translation, vol. ii. p. 273, in the publications of the 2EMxic 
 Society. 
 
 2 Appendix to Charge of Bishop of St. David's, p. 135. 
 
 3 Anglia Sacra, vol. i. p. 125 ; Lingard, Hist, and Antiq. of Anglo-Saxon 
 Church, vol ii. pp. 311, 399. 
 
SheppardY. Bennett. 245 
 
 all exception (which honour trulye themselves both knewe and 
 also have confessed to be only due to the most holy and tryed 
 word of God), so in this Sermon here published some thynges 
 be spoken not consonant to sounde doctrine, but rather to such 
 corruption of great ignorance and superstition as hath taken 
 root in the Church of long time, being overmuch cumbered with 
 monckery. 
 
 " As where it speaketh of the Masse to be profitable to the 
 quick and dead; of the mixture of water with wyne, and 
 whereas here also is reportes made of ij vayne miracles . . . 
 with some other suspitious words soimding to superstition. 
 But all these things that be thus of some reprehension be as 
 it were but by the way touched : the full and whole discourse 
 of all the former part of the Sermon and almost of the whole 
 Sermon is about the understanding of the Sacramentall bread 
 and wine howe it is the bodye and blonde of Christ our 
 Saviour, by which is revealed and made knowen what hath 
 been the common taught doctrine of the Church of England 
 on this behalf many hundreth years agoe contrarye to the 
 unadvised writyng of some nowadays. Now that thys foresaid 
 Saxon Homely with the other testimonies before alledged doe 
 fuUye agree to the olde auncient bookes (whereof some bee 
 written in the olde Saxon and some in the Lattyne) from 
 whence they are taken; these here underwritten upon dele- 
 gent perusing and comparing the same, have found by con- 
 ference that they are truely put forth in print without any 
 adding or withdrawing anything for the more faithful report- 
 ing of the same and therefore for the better credite thereof, 
 have subscribed their names : — 
 
 " Matthewe, Archbishop of Canterbury. 
 
 " Thomas, Archbishop of York. 
 
 " Edmund, Bishop of London. 
 
 " James, Bishop of Durham. 
 
 " Eobert, Bishop of Winchester. 
 
 " William, Bishop of Chichester. 
 
 " John, Bishop of Hereford. 
 
 " Eichard, Bishop of Elye. 
 
 " Edwine, Bishop of Worcester. 
 
 " Nicholas, Bishop of Lincoln. 
 
 " Eichard, Bishop of St. Davys. 
 
 " Thomas, Bishop of Lichfield and Coventry. 
 
 " John, Bishop of Norwich. 
 
 " John, Bishop of Carlisle. 
 
 " Nicholas, Bishop of Bangor. 
 " With divers other personages of honour and credit sub- 
 scribing their names," etc. 
 
246 Ecclesiastical Judgments. 
 
 Parker entitled this book — 
 
 " A Sermon of the Paschall Lamhe, and of the Sacramentall 
 Body and Blonde of Christ our Saviour, written in the olde 
 Saxon toungue before the Conquest, and appoynted in the reigne 
 of the Saxons to be spoken unto the people at Easter before 
 they shoulde receave the Communion, and now first translated 
 into our common Englishe speche." 
 
 I select the following extracts : — 
 
 " We Christens keep Christes resurrection as the time of 
 Easter these vii dayes, because, through Hys sufferring and 
 rising we be delivered and be made clean by going to this holy 
 housel, as Christ sayth in His Gospel, ' Verely, verely, I say 
 unto you, ye have no life in you, except ye eate my Elesh, and 
 drinke my Bloud. He that eateth my Flesh, and drinketh my 
 Bloud, abideth in me, and I in him, and hath the everlasting 
 life ; and I shall raise him up at the last day.' ' I am the 
 lively bread that came down from Heaven, not so as your fore- 
 fathers eate the Heavenlye bread in the wilderness and after- 
 warde dyed. He that eateth thys bread he liveth for ever.' 
 He blessed bread before His suffering, and divided it to His 
 disciples, thus saying, ' Eate this bread, it is My Body, and do 
 this in my remembraunce.' Also He blessed wyne in a cuppe, 
 and said : ' driak ye aU of thys. Thys is My Bloude that is 
 shedde for many in forgeuenesse of sinnes.' 
 
 " The Apostles dyd as Christ commaunded, that is, they 
 blessed bread and wine to housell agayne afterwarde in His 
 remembrance. Even so also their snccessoures and aU priestes 
 by Christes commaundement doe blesse bread and wine to 
 houseU in hys name with the apostoUke blessing. 
 
 " Now, several men have often searched, and do yet often 
 search, howe bread that is gathered of come, and through fyers 
 heated baked, may bee turned to Christes body, or how wyne 
 that is pressed out of many grapes is turned through any 
 blessing to the Lordes Bloude. 
 
 " Now, saye we to suehe men, that some thinges be spoken 
 of Christ by signification, some by things certaia. . . . 
 
 " Why, then, is the holy housel called Christ's Body, or his 
 Bloud, if it be not truely that it is called ? Truly, the bread 
 and the wine, which by the masse of the priest be hallowed, 
 shewe one thyng without to humayne understanding, and an 
 other thing they call within, to belieuing mindes. Without 
 they bee sene bread and wine both in figure and in tast : but 
 they be truly, after the haUowiag, Christe's Body and Hys 
 Bloude, through ghostly mistery. Beholde, nowe we see two 
 thynges in this one creature, after true nature, the water is 
 corruptible water, and after ghostlye misterye hath healing 
 
Sheppard v. Bennett. -247 
 
 mighte. So also if we beholde the holye housell after bodely 
 understanding, then we see that it is a creature corruptible, and 
 mutable : if we acknowledge therein ghostley myght, then 
 understand we that lyfe is therein, and that it giveth immor- 
 talitie to them that eat it with beliefe ; much is betwixt the in- 
 visible myghte of the holye housell, and the visible shape of 
 hys proper nature. It ia naturally corruptible bread, and cor- 
 ruptible wine, and is by myghte of God's worde truly Christes 
 Bodye and Hys Bloode, not so, notwithstanding bodely but 
 ghostley. Much is betwixt the Body Christ suffered in and 
 the bodye that is hallowed to houseU ; ... his ghostly Body, 
 which we call the housell, is gathered of many cornes, without 
 bloude and bone, without lymme, and without soule, and there- 
 fore nothing is to be vnderstode therein bodelye, but all is 
 ghostly to be vnderstode. Whatsoever is in that housell which 
 giveth substaunce of lyfe, that is of the ghostlye myghte, and 
 invisible doing — therefore is the holy housell called a misterye, 
 because there is one thing in it scene, and another thing under- 
 stode — that which is ther sene, hath bodely shape, and that we 
 do there understand, hath ghostlye might. 
 
 " Certaynely Christes Bodye, which suffered death and rose 
 from death, never dyeth henceforth : but is eternal and vnpas- 
 sible. The houseU is temporal!, not eternall. Corruptible, and 
 dealed into simdry parts j chewed between teeth, and sent into 
 the bellye, howbeit, nevertheless, after ghostlye myght, it is all 
 in every part. Manye receive the Holy Body : and yet, not- 
 withstanding it' is so all in every parte, after ghostly mistery ; 
 though, to some man fall a less deale, yet there is no more 
 myghte, notwithstanding, in the more parte, than in the lesse, 
 because it is all in each man after the invisible myght. 
 
 " Thys mistery is a pledge and a figure, Christes Body is 
 truth itself. Thys pledge we do keepe mistically until that we 
 be come to the truth itselfe, and then is this pledge ended. 
 Truelye, it is so as we before have said, Christes Bodye and Hys 
 Bloude, not bodelye, but ghostlye. And ye shoulde not search 
 how it is done, but holde it in your beliefe that it is so 
 done. . . . 
 
 " Let us now heare the apostles wordes about this mystery ; 
 Paule the Apostle speaketh of the old Israelites thus, writing in 
 his Epistle to faithfull men, ' All our forefathers were baptised 
 in the cloud and in the sea ; and all they eat the same ghostlye 
 meat, and drank the same ghostlye drink. They drank truelye 
 of the stone that followed them, and that stone was Christ. 
 Neither was the stone then from which the water ranne, bodely 
 Christ, but it signifyed Christ, that calleth thus to aU beleaving 
 and faithfull men : whosoever thirsteth, let him come to me 
 
248. Ecclesiastical Judgments. 
 
 and drinke. And from his bowels fioweth lyuely water ! This 
 he sayde of the holy ghost, whom he receiueth which beleaveth 
 on hyme. 
 
 "The Apostle Paule sayth that the Israelites did eat the 
 same ghostly meate, and drink the same ghostly drinke : be- 
 cause the Heavenly meate that fed them forty years, and the 
 water which from the stone did flow, had signification of 
 Christes Bodye and His Blonde, that now be offerred dayly in 
 God's Church. It was the same which we now offer, not bodely, 
 but ghostly. 
 
 " We sayd unto you, a little before, that Christ hallowed 
 bread and wine to housell before His suffering, and sayd. This 
 is My Body, and My Bloud. Yet, he had not then suffered. 
 But so, notwithstanding. He turned, through invisible might, 
 the bread to His own Body, and the wyne to his Bloode, as He 
 before did in the wilderness, before that He was borne a man, 
 when He turned that heauenly meat to His fleshe, and the 
 flowing water from the stone to Hys own bloude. 
 
 " Very many ate of the Heavenlye meate in the wilderness, 
 and drank the ghostlye drinke, and were nevertheless dead, as 
 Christ sayd. And Christ ment not the death which none can 
 escape, but the everlastynge death which some of the folke de- 
 served for their unbeliefe. 
 
 ..." The Saviour sayde. He that eateth My flesh, and 
 drinketh My blood, hath everlasting life. He bade them not to 
 eat the Body which he was enconipassed with, nor the Bloud to 
 drink which He shed for us ; but He meant with those wordes, 
 the holy housell, which ghostly is His Body and His Bloud ; 
 and he that tasteth it with believing hart hath the Eternal lyfe. 
 In the old law faithful men offred to God divers sacrifises, that 
 had foresignification of Christes Body, which for our sinnes he 
 himselfe to his heavenly father hath since offred as a sacrifice." ?^ 
 
 I will now refer to the letter of iElfric, already mentioned, to 
 Wulfstone, Archbishop of York, also translated into English in 
 the reign of Elizabeth, and commented upon by the learned 
 Dr. Eouth, as a valuable illustration of the Church's doctrine as 
 to the Eucharist. 
 
 " Christ Himselfe blessed housell before His suffering. He 
 blessed the bread and brake thus speaking to His Apostles: 
 Eate this bread, it is My Body. And agayne He blessed one 
 chalice with wyne and thus also speaketh vnto them : Drinke 
 ye all of this, it is Myne own Blood of the JSfewe Testament which 
 is shed for many in forgeuenes of synnes. The Lord which 
 halowed housel before his suffering, and sayeth that the bread 
 
 1 A Sermon of the Paschall Lamhe, etc. Liimley, 1849. Also printed in 
 Homilies of the Anglo-Saacon Church, vol. ii., pAblished in 1846. 
 
Sheppardv. Bennett. 249 
 
 was His owne Body and that the wyne was truly His Bloud, 
 He haloweth dayly by the hands of the prist bread to His 
 Body, and wyne to His Bloud in ghostly mystery, as we read 
 in bokes. And yet that liuely bread is not bodely so notwith- 
 standing : not the self same Body that Christ siiffered in. Nor 
 that holy one is the SaAdour's Bloud which was shed for vs in 
 bodely thing, but in ghostly vnderstanding. Both be truly that 
 bread Hys Body, and that wyne also His Bloud, as was the 
 Heavenly bread, which we call Manna, that fed forty yeres 
 God's people. And the cleare water which did then runne from 
 the stone in the wilderness, was truly his Bloud, as Paul wrote 
 on summe of his epistles." ^ 
 
 The next authority to which I refer is that of Bishop Eidley. 
 In his examination at Oxford it was articled against him : — 
 
 " Rrst, that thou, Nicholas Eidley, in this high University of 
 Oxford, anno 1554, in the months of April, May, June, July, 
 or in some one or more of them, hast affirmed, and openly de- 
 fended and maintained, and in many other times and places 
 besides, that the true and natural body of Christ, after the con- 
 secration of the priest, is not really present in the sacrament of 
 the altar." 
 
 To this Eidley answers : — 
 
 " In a sense the first article is true, and in a sense it is false ; 
 for if you take really for wre, for spiritually, by grace and 
 efScacy, then it is true that the natural body and blood of 
 Christ is in the sacrament mre et realiter, indeed and really ; 
 but if you take these terms so grossly that you would conclude 
 thereby a natural body having motion to be contained under 
 the forms of bread and wine, vere et realiter, then really is not 
 the body and blood of Christ in the Sacrament, no more than, 
 the Holy Ghost is in the element of water in our baptism." 
 
 The answer being cavilled at, he added this explanation : — 
 
 " For both you and I agree herein, that in the sacrament is 
 the very true and natural body and blood of Christ, even that 
 which was bom of the Virgin Mary, which ascended into 
 Heaven, which sitteth on the right hand of God the Father, 
 which shaU come from thence to judge the quick and the dead ; 
 only we differ in modo, in the way and manner of being ; we 
 confess all one thing to be in the sacrament, and dissent in the 
 manner of being there. I, being fuUy by God's word there- 
 unto persuaded, confess Christ's natural body to be in the 
 sacrament indeed by spirit and grace, because that whosoever 
 
 * Ex Aelfrici Epistola ad Wiilfstanum Archiepiscopum Eboracensum, 
 Saxonice scripta ; in Anglicam liriguam, regnante Elizabetha, in Latinam 
 vero, interprete Abrahamo Wheloeo, oonversa. — Routh, Scriptorum Ecch- 
 stOBticorum Opusculq,, \ol. ii. pp. 169-175. 
 
250 Ecclesiastical Judgments. 
 
 receiveth worthily that bread and wine receiveth effectuously 
 Christ's body, and drinketh his blood (that is, ..he is made 
 effectually partaker of his passion) ; and you make a grosser 
 kind of being, enclosing a natural, a lively, and a moving body, 
 under the shape or form of bread and wine. Now, this differ- 
 ence considered, to the question thus I answer, that in the 
 sacrament of the altar is the natural body and blood of Christ 
 vere et realiter, indeed and really, for spiritually, by grace and 
 efi&cacy ; for so every worthy receiver receiveth the very true 
 body of Christ. But if you mean really and indeed, so that 
 thereby you would include a lively and a moveable body under 
 the forms of bread and wine, then, in that sense is not Christ's 
 body in the sacrament really and indeed." 
 
 The second article of charge against him is : — 
 (2.) " Item, that in the year and months aforesaid thou hast 
 publicly affirmed and defended, that in the sacrament of the 
 altar remaineth still the substance of bread and wine." 
 Eidley says : — 
 
 " In the sacrament is a certain change, in that that bread 
 which was before common bread is now made a lively presen- 
 tation of Christ's body, and not only a figure, but effectuously 
 representeth his body; that even as the mortal body was 
 nourished by that visible bread, so is the natural soul fed with 
 the heavenly food of Christ's body, which the eyes of faith see, 
 as the bodily eyes see only bread. Such a sacramental muta- 
 tion I grant to be in the bread and wine, which truly is no 
 small change, but such a change as no mortal man can make, 
 but only that omnipotency of Christ's word."^ 
 
 From his disputation at Oxford I extract the following 
 passages : — - 
 
 "He that sitteth there is here present by mystery and 
 grace ; and here is holden of the godly, such as communicate 
 him, not only sacramentally with the hand of the body, but, 
 much more wholesomely, with the hand of the heart, and by 
 inward drinking is received, but by the sacramental significa- 
 tion is holden of all men.^ 
 
 " I grant the bread to be converted and turned into the flesh 
 of Christ ; but not by transubstantiation, but by sacramental 
 converting or turning. ' It is transformed,' saith Theophylact 
 in the same place, ' by a mystical benediction, and by the acces- 
 sion or coming of the Holy Ghost unto the Flesh of Christ. 
 He saith not by expulsion or driving away the substance of 
 bread, and by substituting or putting in its place the corporal 
 substance of Christ's Flesh. And whereas he saith, ' It is not 
 a figure of thQ body,' we should understand that saying, as 
 1 Ridley's Works, pp. 271-274. 2 Ibid. p. 223. 
 
Sheppardv. Bennett. 251 
 
 he himself does elsewhere, add ' only/ that is, it is no naked 
 or bare figure <mly. For Christ is present in the mysteries ; 
 neither at any time, as Cyprian saith, doth the Divine Majesty 
 abstract Himself from the Divine mysteries."^ 
 
 And in answer to the following argument of Curtop : — 
 " That which is in the cup is the same that flowed from the 
 side of Christ : 
 
 " But true and pure blood did flow from the side of Christ : 
 " Ergo, His true and pure blood is in the cup," — 
 ElDLEY says, — " It is his true blood which is in the chalice, I 
 grant, and the same which sprang from the side of Christ. 
 But how ? It is blood indeed, but not after the same manner, 
 after which manner it sprang from his side. For here is the 
 blood, but by way of a sacrament. Again, I say, like as the 
 bread of the sacrament and of thanksgiving is called the body 
 of Christ given for us ; so the cup of the Lord is called the 
 blood which sprang from the side of Christ ; but that sacra- 
 mental bread is called the body, because it is the sacrament of 
 his body. Even so likewise the cup is called the blood also 
 which flowed out of Christ's side, because it is the sacrament of 
 that blood which flowed out of his side, instituted of the Lord 
 himself for our singular commodity — namely, for our spiritual 
 nourishment; Hke as baptism is ordained in water to our 
 spiritual regeneration." 
 
 CUETOP. — "The sacrament of the blood is not the blood." 
 EiDLBY. — "The sacrament of the blood is the blood; and 
 that is attributed to the sacrament which is spoken of the 
 thing of the sacrament." 
 
 Weston. — " That is very well. Then we have blood in the 
 chalice." 
 
 EiDLEY. — "It is true; but by grace, and in a sacrament."^ 
 
 From the Homily concerning the Sacrament, the first part, I 
 take this passage : — 
 
 " Neither need we to think that such exact knowledge is re- 
 quired of every man, that he be able to discuss all high points 
 in the doctrine thereof; but thus much we must be sure to 
 hold, that in the Supper of the Lord there is no vain ceremony, 
 no bare sign, no untrue figure of a thing absent (Matt. xx\'i. 26). 
 But, as the Scripture saith, the Table of the Lord, the bread 
 and cup of the Lord, the memory of Christ, the annunciation 
 of His death, yea, the communion of the Body and Blood of 
 the Lord, in a marvellous incorporation, which, by the opera- 
 tion of the Holy Ghost (the very bond of our conjunction with 
 Christ), is through faith wrought in the souls of the faithful, 
 1 Ridley's Works, p. 229. 2 jiia. p. 238. 
 
252 Ecclesiastical yudgmekts. 
 
 ■whereby not only their souls live to eternal life, but they surely 
 trust to win to their bodies a resurrection to immortality. 
 (1 Cor. X.) The true understanding of this fruition and union, 
 which is betwixt the body and the head, betwixt the true 
 believers and Christ, the ancient Catholic fathers, both perceiv- 
 ing themselves and commending to their people, were not 
 afraid to call this Supper, some of them, the salve of immor- 
 tality and sovereign preservative against death ; other a deifical 
 communion ; other,' the sweet dainties of our Saviour, the 
 pledge of eternal health, the defence of faith, the hope of the 
 resurrection ; other, the food of immortality, the healthful 
 grace, and the conservatory to everlasting life. — Irmi. lib. iv. 
 cap. 34 ; Ignat. Epist. ad Ephes. Dionysius, Origen, Optat. ; Gyp. 
 de Cmna Bomini; Atha. de Pec. in Spir. Sand. All which 
 sayings, both of the Holy Scripture and godly men, tnily attri- 
 buted to this celestial banquet and feast, if we would often call 
 to mind, oh ! how would they inflame our hearts to desire the 
 participation of these mysteries, and oftentimes to covet after 
 this bread ; continually to thirst for this food ! Not as speci- 
 ally regarding the terrene and earthly creatures which remain, 
 but always holding fast and cleaving by faith to the Eock, 
 whence we may suck the sweetness of everlasting salvation." 
 
 In Jewel's Apology I find these expressions : — 
 
 "Panem et vinum dicimus esse sana et coelestia mysteria 
 corporis et sanguinis Christi, et iUis Christum ipsum, verum 
 panem seternse vitse sic nobis prsesentem exhiberi, ut ejus 
 corpus, sanguinemque per fidem vere sumamus." 
 
 And again : — 
 
 " . . . Nee tamen cum ista. dicimus, extenuamus Ccenam 
 Domini, aut eam frigidam tantum csereihoniam esse docemus, 
 et in ea nihU fieri, quod multi nos docere calumniantur. 
 Christum enim aperimus, vere sese prcesentem exhibere in Sacra- 
 mentis suis, in Baptismo ui eum induamus ; in Ccena, ut eum 
 fide et spiritu comedamus, et de ejus cruce ac sanguine habea- 
 mus vitam seternam ; idque dicimus non perfunctorie, et frigide, 
 sed re ipsa et vere fieri. . . . Christus ipse totus quantus quantus 
 est, offertur et traditur." 
 
 Bishop Overall, in his Additional Notes to the Book of Com- 
 mon Prayer, on the words, "That we, receiving these Thy 
 creatures of Bread and Wine, etc., may be partakers of His 
 blessed Body and Blood," says : — 
 
 "Together with the hallowed elements of the Bread and 
 Wine, we may receive the Body and Blood of Christ, which 
 are truly exhibited in this Sacrament, the one as well as the 
 other. 
 
 " These words, as I once conferred with a Papist, were 
 
Sheppardv. Bennett. 253 
 
 mightily excepted against, because forsooth they must acknow- 
 ledge no bread and wine, but a desition of the nature and being 
 of both. My answer was, that here we term them so before 
 consecration ; after that we call them so no more, but abstain 
 from that name, because our thoughts might be wholly taken 
 up with the spiritual food of Christ's Body and Blood. So in 
 the Thanksgivingfollowing we say. That hast vouchsafed to feed 
 us who have duly received these holy Mysteries, with the spiritual 
 food of the most precious Body and Blood of Thy Son, etc. In 
 the meanwhile we deny not the Bread and Wine to remain 
 there stiU as God's creatures. And I wonder the Papists 
 should so contend for this same desitio panis et vini, whenas, in 
 their own service or mass, they abstain not from these words, 
 THY CREATUEES, after consecration, as we do. See the book, 
 PEK QUEM OMNIA DOMINE BONE CEEAS ! A Certain argument 
 that the Church of Eome never meant to teach that doctrine, 
 which private men, the late doctors and schoolmen, have 
 brought up and propagated."^ 
 
 And on the words " And if any of the Bread and Wine," 
 etc. : — 
 
 " It is confessed by all divines that upon the words of the 
 consecration, the Body and Blood of Christ is really and sub- 
 stantially present, and so exhibited and given to all that 
 receive it, and all this not after a physical and sensible, but 
 after an heavenly and incomprehensible manner. But there 
 yet remains this controversy amongst some of them, whether 
 the Body of Christ be present only in the use of the Sacra- 
 ment and in the act of eating, and not otherwise. They that 
 hold the affirmative, as the Lutherans (in Confess. Sax.) and 
 all Calvinists, do seem to me to depart from all antiquity, 
 which places the Presence of Christ in the virtue and bene- 
 diction used by the Priest, and not in the use of eating the 
 Sacrament." ^ 
 
 George Herbert, who has been called " the saintly," says : — 
 
 " The country parson, being to administer the Sacraments, 
 is at a stand with himself how or what behaviour to assume 
 for so holy things. Especially at communion time he is in 
 a great confusion, as being not only to receive God, but to 
 break and administer Him. Neither finds he any issue in 
 this, but to throw himself down at the Throne of Grace, 
 saying. Lord, Thou knowest what Thou didst, when Thou 
 appointedst it to be done thus, therefore do Thou fulfil what 
 Thou dost appoint, for Thou art not only the feast, but the 
 way to it." — (The Parson in Sacraments, chap, xxii.) " A Priest 
 to the Temple." 
 
 1 Appendix to Nioholls on the Book of Common Prayer. ^ Ibid. 
 
2 54 Ecclesiastical Judg ments. 
 
 Archbishop Laud, in his memorable contest with the Papist 
 Fisher, observes : — 
 
 " And for the Church of England, nothing is more plain 
 than that it believes and teaches the true and real presence of 
 Christ in the Eucharist." 
 
 And again : — 
 
 " As for the learned of those zealous men that died in 
 this cause in Queen Mary's days, they denied not the real 
 presence simply taken, but as their opposites forced transub- 
 stantiation upon them, as if that and the real presence had 
 been all one. Whereas aU the ancient Christians ever 
 believed the one, and none but modern and superstitious 
 Christians believe the other. . . . Nay, Archbishop Cranmer 
 comes more plainly and more home to it than Frith. ' For, 
 if you understand,' saith he, 'by this word really, revpsa: 
 that is in very deed and effectually ; so Christ, by the grace 
 and efficacy of His passion, is inde'ed and truly present,' etc. 
 But if by this word really you understand corporalUer, cor- 
 porally in His natural and organical body, under the forms 
 of bread and wine, it is contrary to the holy word of God.' 
 And so likewise Bishop Eidley. Nay, Bishop Eidley adds 
 yet further, and speaks so fully to this point, as I think no 
 man can add to his expression ; and it is well if some Pro- 
 testants except not against it. ' Both you and I,' saith he, 
 ' agree in this ; that in the Sacrament is the very true and 
 natural body and blood of Christ, even that which ascended 
 into heaven, which sits on the right hand of God the Father, 
 which shall come from thence to judge the quick and the 
 dead ; only we differ in modo, in the .way and manner of 
 being. We confess all one thing to be in the Sacrament, 
 and dissent in the manner of being there. I confess Christ's 
 natural body to be in the Sacrament by spirit and grace, etc. 
 You make a grosser kind of being enclosing a natural body 
 under the shape and form of bread and wine.' So far and 
 more, Bishop Eidley. And Archbishop Cranmer confesses 
 that he was indeed of another opinion, and inclining to that 
 of Zuinglius, till Bishop Eidley convinced his judgment and 
 settled him in this point. . . ." ^ 
 
 Bishop Andrewes, in his answer to Bellarmine, says : — 
 
 " The Cardinal is 'not, unless ' willingly, ignorant,' that 
 Christ hath said, ' This is My Body,' not ' This is My Body 
 in this mode.' Now about the object we are both agreed ; all 
 the controversy is about the mode. The ' This is,' we firmly 
 believe; that 'it is in this mode' (the Bread, namely, being 
 
 1 Laud V. FisJier, Cardwell's Ed., Oxford, 1839, pp. 245-49. 
 
Sheppardv. Bennett. 255 
 
 transubstantiated into the Body), or of the mode whereby it 
 is -wrought, that ' it is,' whether m, or with, or unde,r, or tran- 
 substantiated, there is not a word in the Gospel. And because 
 not a word is there, we rightly detach it from being a matter 
 of faith ; we may place it amongst the decrees of the schools, 
 not among the articles of faith. "What Durandus is reported 
 to have said of old (Neand. Synop. Chron., p. 203) we approve 
 of : ' We hear the word, feel the effect, know not the manner, 
 believe the Presence.' The Presence, I say, we believe, and 
 that no less true than yourselves. Of the mode of the 
 Presence, we define nothing rashly, nor, I add, do we curiously 
 inquire ; no more than how the Blood of Christ cleanseth us 
 from our Baptism ; no more than how in the Incarnation of 
 Christ the human nature is united into the same Person with 
 the Divine."! 
 
 Again : — 
 
 " And I may safely say it with good warrant from those 
 words especially and chiefly, which as He Himself saith of 
 them, are ' spirit and life,' even those words, which joined to 
 the element make the blessed Sacrament."^ 
 
 And again : — ' 
 
 "All witnesses testify in favour of mutation, immutation, 
 transmutation, but there is no mention of mbstantial, or of 
 substance. Nor do we deny the preposition trans, and we 
 acknowledge the elements to be transmuted. But we seek in 
 vain for substantial. Not do we deny that the elements are 
 changed by the benediction, so that the consecrated bread is 
 not that which nature has formed, but that which the bene- 
 diction has consecrated, and even changed by consecration. 
 And we believe with Nyssen that the nature of the bread and 
 wine was changed, but neither he nor we to be transub- 
 stantiated!'^ 
 
 " Beloved" (Donne says), " in the blessed, and glorious, and 
 mysterious Sacrament of the body and blood of Christ Jesus, 
 thou seest Christum Domini, the Lord's salvation, and thy 
 salvation, and that thus far with bodily eyes, that bread which 
 thou seest after the consecration is not the same bread which 
 was presented before, not that it is transubstantiated to 
 another substance, for it is bread still (which is the heretical 
 riddle of the Eoman Church, and Satan's sophistry, to dis- 
 honour miracles by the assiduity, and frequency, and multi- 
 plicity of them), but that it is severed, and appropriated by 
 God in that ordinance to another use. It is other bread ; so 
 
 * Besponsio ad Apologiam, Card. Bellarmine, p. 11. 
 2 Ibid. 3 jbid. 
 
256 Ecclesiastical yudgments. 
 
 as a judge is another man upon the bench than he is at home 
 in his own house." 
 
 " Luther" (speaking of the Eoman Church) " infers well, that 
 since miracles are so easy and cheap, and obvious to them, as 
 they have induced a miraculous transubstantiation, they might 
 have done well to have procured one miracle more, a trans - 
 accidentation, that since the substance is changed, the acci- 
 dents might have been changed too, and since there is no 
 bread, there might be no dimensions, no colour, no nourish- 
 ing, no other qualities of bread neither, for, these remaining, 
 there is rather an annihilation of God, in making him no God 
 by being a contradictory God, than an annihilation of the 
 bread, by making that which was formerly bread, God him- 
 self, by that way of transubstantiation. 
 
 " But yet though this bread be not so transubstantiated, we 
 refuse not the words of the fathers, in which they have expressed 
 themselves in this mystery. Not Irenseus' est corpus, that 
 that bread is his body now, not TertuUian's fecit corpus, that 
 that bread is made his body which was not so before, not St; 
 Cyprian's mutatus, that that bread is changed, not Damascen's 
 supernaturaliter mutatus, that that bread is not only changed 
 so in the use, as when at the king's table certain portions of 
 bread are made bread of essay, to pass over every dish whether 
 for safety or for majesty; not only so civilly changed; but 
 changed supernaturally ; no, nor Theophylact's transformatus est 
 (which seems to be the word that goes farthest of all), for this 
 transforming cannot be intended of the outward form and 
 fashion, for that is not changed; but be it of that internal 
 form, which is the very essence and nature of the bread, so it 
 is transformed, so the bread hath received a new form, a new 
 essence, a new nature, because whereas the nature of bread 
 is but to nourish the Ijody, the nature of this bread now is to 
 nourish the soul, and therefore, Cum non dubitavit Dominus 
 dicere, Hoc est corpus meum, cum signum daret corporis, since 
 Christ forbore not to say. This is my body, when he gave 
 the sign of his body, why we should forbear to say of that 
 bread. This is Christ's body, which is the Sacrament of his 
 body?"i 
 
 Bishop Cosin, who was one of the Convocation Committee 
 which prepared our present Prayer-Book, and who wrote the 
 history of transubstantiation, observes in it : — 
 
 " (3) We believe a presence and union of Christ with our soul 
 and body, which we know not how to call better than sacramental, 
 
 1 Donue's WorJcs, voL i. pp. 73, 74, 75. 
 
Sheppard V. Benneit. 257 
 
 that is effected by eating; that -while we eat and drink the 
 consecrated bread and wine, we eat and drink therewithal the 
 body and blood of Christ, not in a corporal manner, but 
 some other way, incomprehensible, known only to God, which 
 we call spiritiial; for if with St. Bernard and the fathers a 
 man goes no further, we do not find fault with a general 
 explication of the manner, but with the presumption and self- 
 conceitedness of those who boldly and curiously inquire what 
 is a spiritual presence, as presuming they can understand the 
 manner of acting of God's holy spirit. We contrarywise con- 
 fess with the fathers, that this manner of presence is unaccount- 
 able, and past finding out, not to be searched and pried into 
 by reason, but believed by faith. And if it seems impossible 
 that the flesh of Christ should descend, and come to be our 
 food, through so great a distance, we must remember how 
 much the power of the Holy Spirit exceeds our sense and 
 our apprehensions, and how absurd it would be to undertake 
 to measure his immensity by our weakness and narrow capacity, 
 and so make our faith to conceive and believe what our reason 
 cannot comprehend. 
 
 " (4.) Yet our faith doth not cause or make that presence, 
 but apprehends it as most truly and really effected by the 
 word of Christ ; and the faith whereby we are said to eat the 
 flesh of Christ, is not that only whereby we believe that he 
 died for our sins (for this faith is required and supposed to 
 precede the sacramental manducation), but more properly, 
 that whereby we believe those words of Christ, ' This is my 
 body ; ' which was St. Austin's meaning when he said, ' Why 
 dost thou prepare thy stomach and thy teeth ? Believe, and 
 thou hast eaten.' For in this mystical eating, by the wonder- 
 ful power of the Holy Ghost, we do invisibly receive the 
 substance of Christ's body and blood, as much as if we should 
 eat and drink both visibly. 
 
 " (5.) The result of all this is, that the hody and Hood of 
 Christ are sacramentally united to the bread and wine, so that 
 Christ is truly given to the faithful ; and yet is not to be here 
 considered with sense or worldly reason, but by faith, resting 
 on the words of the Gospel. Now it is said that the body and 
 blood of Christ are joined to the bread and wine, because that 
 in the celebration of the Holy Eucharist the flesh is given 
 together with the bread, and the blood together with the wine. 
 All that remains is, that we should, with faith and humility, 
 admire this high and sacred mystery, which our tongue cannot 
 sufficiently explain, nor our heart conceive." ^ 
 
 ' 1 Biahop Cosia, History of Popish Trarumbatantiation, chap. iii. § 5, p. 171. 
 (Oxford Trans.) 
 
 B 
 
258 Ecclesiastical Judgments. 
 
 With respect to. the citation of Cosin's from St. Augustine, 
 " Believe and thou hast eaten," it is to be remarked that in the 
 office of the Communion of the Sick the Eubric provides that 
 if for any just impediment (several of which are specified) a 
 man " do not receive the Sacrament of Christ's Body and 
 Blood, the Curate shall instruct him that if he do truly repent 
 him of his sins, and steadfastly believe that Jesus Christ hath 
 suffered death upon the Cross for him, and shed his Blood for 
 his redemption, earnestly remembering the benefits he hath 
 thereby, and giving him hearty thanks therefore, he doth eat 
 and drink the Body and Blood of our Saviour Christ profitably 
 to his soul's health, although he do not receive the Sacrament 
 vi^ith his mouth." 
 
 Our Prayer-Book follows in this, as in many other respects, 
 the Salisbury Missal, which borrows the words of St. Augus- 
 tine, " Crede et manducasti." 
 
 The insertion of these words in the Salisbury Missal seems 
 to confirm the opinion of Mr. Keble, who suggests in the 
 preface to his edition of Hooker's Works that the Eubric can 
 be meant only " for rare and extraordinary cases, cases as strong 
 in regard of the Eucharist as that of Martyrdom, or the pre- 
 mature death of a well-disposed catechumen, in regard of 
 Baptism."! 
 
 I return to the language of Cosin : — 
 
 " So then (to sum up this controversy by applying to it all 
 that hath been said) it is not questioned whether the Body of 
 Christ be absent from the Sacrament duly administered accord- 
 ing to His institution, which we Protestants neither affirm nor 
 believe ; for, it being given and received in the Communion, 
 it mMst needs be that it is present, though in some manner veiled 
 under the Sacrameni, so that of itself it cannot be seen. Neither 
 is it doubted or disputed whether the bread and wine, by the 
 power of God and a supernatural virtue, be set apart and fitted 
 for a much nobler use, and raised to a higher dignity, than 
 their nature bears ; for we confess the necessity of a super- 
 natural and heavenly change, and that the signs cannot become 
 Sacraments but by the infinite power of God, whose proper 
 right it is to institute Sacraments in His Church, being able 
 alone to endue them with virtue and efficacy. Finally, we do 
 not say that our Blessed Saviour gave only the figure and sign 
 of His Body, neither do we deny a saeramental union of ^the 
 Body and Blood of Christ with the sacred bread and wine, so 
 that both are really and substantially received together, but (that 
 we may avoid all ambiguity) we deny that, after the words 
 and prayer of consecration, the bread should remain bread no 
 1 Hooker's Works, voL i., preface, p. 87. 
 
Sheppard\. Bennett. 259 
 
 longer, but should be changed into the substance of the Body 
 of Christ, nothing of the bread but only the accidents continu- 
 ing to be what they were before. And so the whole question 
 is concerning the transubstantiation of the outward elements, 
 whether the substance of the brfead be turned into the sub- 
 stance of Christ's Body, and the substance of the wine into 
 the substance of His Blood ; or, as the Eomish doctors describe 
 their transubstantiation, whether the substance of bread and 
 wine doth utterly perish, and the substance of Christ's Body 
 and Blood succeed in their place, which are both denied by 
 Protestants." ^ 
 
 ..." I was the more willing to be long in transcribing 
 these things at large, out of public confessions of Churches 
 and the best of authors, that it might the better appear how 
 injuriously Protestant divines are calumniated by others un- 
 acquainted with their opinions, as though by these words, 
 ' spiritually ' and ' sacramentally,' they did not acknowledge a 
 true and well-understood re,al presence and communication of 
 the Body and Blood of Christ m the- blessed Sacrament. 
 Whereas, on the contrary, they do professedly own it in terms 
 as express as any can be used." ^ 
 
 Bishop Forbes, Professor of Hebrew at Oxford, and Bishop 
 of Edinburgh in 1633, wrote a very careful and learned 
 treatise on ecclesiastical matters, which he entitled Considera- 
 tiones Modestm et Pacificm. He says : — 
 
 " Tutissima et rectissima videtur illorum Protestantium, 
 aliorumque sententia, qui corpus et sanguinem Christi vere, 
 realiter, et substantialiter in Eucharistia adesse, et sumi existi- 
 mant, imo firmissime credunt, sed modo humano ingenio in- 
 comprehensibili, ac multo magis inexorabili, soli Deo noto, et 
 in scripturas nobis non revelato, non quidem corporali, et per 
 oralem sumptionem, sed neque etiam solo intellectu, ac pura 
 puta fide, sed alia ratione, soli Deo, ut dictum est, cognito, 
 illiusque omnipotentiae reliquenda. 
 
 "In ccena enim per admirabUem virtutem Spiritus Sancti, 
 invisibiliter substantise corporis Christi communicamus, cujus 
 participes ef&cimur, baud secus ac si visibiliter panem et san- 
 guinem ejus ederemus et biberemus. In baptismo lavacrum 
 est, sed hie alimentum. Baptismus ingressus est in Ecclesiam. 
 Coena nutrimentum in ecclesia et conservatio. Baptismus est 
 salus, Sacramentum corporis Christi vita (ut ait Aug. De Pec- 
 catorum Merit, et Eemiss. lib. i. c. 24. Vide P. PichereUum 
 de Missa, pag. 208 et 210), et ad mysticam manducationem 
 
 1 History of Popish Tranavbstantiation, chap. iv. § 6, p. 175. 
 
 2 Ibid. pp. 168-9. 
 
26o Ecclesiastical jfudginents. 
 
 verum Christi corpus non tantum animee, sed etiam corpori 
 nostro, spiritualiter tamen, hoc est, nou corporaliter, exhibetur, 
 et sane alio ac diverse, ndbisqiie propinquiori modo, licet occulta, 
 quam per solam fidem : (ut recte Arch. Spalat. ubi supra, pag. 
 237.) 'Et licet Johan. cap. 6, de esu sacramenti non agat, etc. 
 inquit P. Picher., pag. 193, tamen de eadem carnis Christi 
 manducatione spiritual!, mysticaque cum Christo conjunctione; 
 illic certe per fidem de conjunctionis initio ; in Sacramento 
 autem conjunctionis majore propinquitate, augmento, confirma- 
 tione, et strictiore arctioreque vinculo loquitur.' Et fides qua 
 proprie Christi caro in Eucharistia spiritualiter, h.e. incorporali- 
 ter, manducatur non est ea sola, ut quidam dicunt, qua Christus 
 pro peccatis nostris crucifixus et mortuus creditur ; Ea enim 
 fides prsesupponitur quidem et prserequiritur sacramentali 
 manducationi sed non est ejus propria ; sed ea fides est qua 
 creditur verbo Christi dicentis. Hoc est corpus meum, etc. 
 Credere enim Christum ihi esse prcesentem, etiam carne vivifica- 
 trice, et desiderare eam sumere, nimirum hoc est spiritualiter et 
 recte eam manducare in Eucharistia : unde Aug. super Joan, 
 tract. 25. Quid paras dentem et ventrem? crede et mandu- 
 easti, etc. ut doctiores norunt et notant." 
 
 "Denique gravissime erratur, quando Christum non esse 
 realiter in Eucharistia, hisce ratiunculis urgetur. Christus 
 est in coelo, loco circumscriptus, etc. igitur non est reipsa vel 
 realiter in Eucharistia. Nemo enim sanse mentis, Christum e 
 coelo vel e dextra patris deseendere visibiliter aut invisibiliter, 
 ut in coena vel siquis localiter adsit, existimat. Fideles omnes 
 unanimi consensu et uno ore profitentur se firmiter retinere 
 articulos fidei, Ascendit in coelos, sedit ad dextram Patris, et 
 modum hujus prsesentise credere se non esse naturalem, corpo- 
 ralem, carnalem, localem per se, etc., absque uUa tamen coe- 
 lorum desertione, sed supernaturalem, vide scripta Buceri 
 Anglica, pag. 548, etc. Nimis tamen audacter quamplurimi, 
 multis retro sseculis, atque imprimis hoc nostro rixosissimo; 
 nimis. inquam audacter, imo plus satis crasse et materialiter de 
 praesentise modo loquuti sunt, hodieque loquuntur, quem nos 
 infinitse Dei sapientise et potentise omnino relinquendum 
 censemus." ^ 
 
 Jackson, President of Corpus Christi College, Oxford, and 
 Dean of Peterborough (1638), perhaps the most learned of our 
 divines, says : — 
 
 " This distillation of life and immortality from his glorified 
 human nature, is that which the ancient and orthodoxal Church 
 did mean in their figurative and lofty speeches of Christ's real 
 
 1 Considerationes Modestce et Pacificce, ed. 1658, pp. 374, 386. (Library of 
 Anglo-Catholic Theology, vol. ii. p. 420.) 
 
Sheppard v. Bennett. 261 
 
 presence, or of eating his very flesh and drinking his very 
 blood in the Sacraments. And the sacramental bread is called 
 his hody, and the sacramental wine Ms hlood, as for other rea- 
 sons, so especially for this, that the virtite or influence of his 
 bloody sacrifice " — the distinction to which I have adverted 
 must be here borne in mind between the res and the virtus 
 sacramenti — " is most plentifully and most effectually distilled 
 from heaven unto the worthy receivers of the Eucharist, and 
 unto this point and no further will most of the testimonies 
 reach, which BeUarmine in his books of the Sacraments, or 
 Maldonate in his Comments upon the Sixth of St. John, do 
 quote out of the fathers for Christ's real presence by transub- 
 .stantiation ; or which Chemnitius, that learned Lutheran, in his 
 books. Be diuxhis in Christo Naturis and Be Fundamentis sanm 
 BodrincB, doth avouch for consubstantiation. And if thus 
 much had been as distinctly granted to the ancient Lutherans, 
 as Calvin in some places doth, the controversy between the 
 Lutheran and other reformed Churches had been at an end 
 when it first began; both parties acknowledging St. CyrU to 
 be the fittest umpire in this controversy."^ 
 
 One of the most important writings of St. Cyril, to whom 
 Dr. Jackson refers, is his letter written to Nestorius, which 
 was afterwards the basis of the decree of the Council of 
 Ephesus (a.d. 431), which Council condemned the heresy of Nes- 
 torius with respect to the human nature of our Lord. One of 
 , the arguments adduced in this letter for the true doctrine is 
 derived from the admitted presence and partaking of our Lord's 
 body in the holy Eucharist ; and the distinction is established 
 between the body of our Lord which is life-giving, and the body 
 of a man, however holy, which is not. 
 
 The whole passage is as follows. It is one of those collected 
 by the learned Dr. Eouth in his work intended to show the 
 close connection between our Church and the Primitive Church, 
 and deserves careful consideration : — 
 
 ' KvayKaiitK Se K^Kiivo Tr/Doo-^^o-o/itV KorayyeXXovTES yap Tov Kara 
 (rdpKa, ddvarov tov //.ovoyevovs ICtov tov Qcov, tovtco-tiv 'Iijctov X/D«r- 
 Tou, Tijv Te £K viKpHv dva^iuxriv, koi rfjv els ovpavov'S dvaXtjij/iv o/xoXo- 
 yovvT£s, Tr/v dval/jiaKTOv tv Taii'KKKkrjCTLaLs TiXov/j^v Bvcriav Trpoatfiev 
 Te ovTOi Tats flva-TiKais evXoylais /cat dyia^ofxeOa, p,eTO)(Oi yevop-evoi 
 rijs Te ayiag (rap/cos, Kot tov Tificov aifiaTOi tov TrdvTOiv ij/ioiv ZcoT^pos 
 Xjoio-Toi!" Kttt ou^ ws crdpKa kolvtjv Sexop.evoi' firj yevoiTO' ovre p,r)V (os 
 dvSpos ■^yiaa-p.evov, koi xrvvatl)devTOS T(j) Aoytff Kara t^v evoTijra T>js 
 d^t'as, '^yovv d>s 6eiav evoiKijcriv ccrj^rjKOTOS, dkX <us fwoTrotov aXrjdtai, 
 Kal iSiav avTOv tou Aoyov, Zbifj yap wv Kara <1>v(Tlv cos 6eos, ejreio^ 
 
 J /ackaon'a Worhs, vol. x. pp. 41-2. (Oxford Edition, 1844.) 
 
262 Ecclesiastical Judgments. 
 
 •ycyovcv ev Trpos Tf\v lamov crdpKa, (uottoiov dire^vev avrrjV (S(rT€ k8.v 
 Aeyjj wpo'S rjfias, ' 'Afiriv d/i^v kiyo) vjuv, kav firj .^dyijTC rrjv (rdpKa tov 
 Ytov TovdvOpi&jTov, Kal Tr[i]Te avTov to ai/ia,' ovx «s dv^/JWTrovTUV Kad" 
 rj/xas Ivos Kal airriv iTvai Xoyiov/JieOa, ttZ? yap 17 dvdp^ov (rap^ fwo- 
 jTotps ea-Tal Kara </)iJcrtv T^v eavrrjs ; dXX' (os i8tai/ dXr]eusyevop,evr]v tov 
 Si' ij/tas Kat vlov Kal dvOpunrov yeyovoTos T£ koI yfirmar'uravros. (Z.) 
 
 The Council of Ephesus is one of the "first Four General 
 Councils" referred to in 1 Eliz. c. 1. § 35. 
 
 Bishop Ken, whose name needs no introduction, in his expo- 
 sition of the Church Catechism, uses this language : — 
 
 As to " Parts outward." 
 " Glory be to Thee, adorahle Jesus, who, under the outward 
 and visible part, the ' bread and wine,' things obvious and easily- 
 prepared, both which ' thou hast commanded to be ' received, 
 dost communicate to our souls the mystery of divine love, the 
 ' inward and invisible grace,' Thy own most blessed ' body and 
 blood, which are verily and indeed taken and received by the 
 faithful in Thy Supper;' for which all love, all glory, be to 
 Thee." . . . 
 
 As to " Eeal Presence." 
 
 " I believe, crucified Lord, that ' the bread which we break,' 
 in the celebration of the Holy Mysteries, is the communication 
 of Thy body, and the cup of blessing which we bless is the 
 communication of Thy blood; and that Thou dost as effectually 
 and really convey Thy body and blood to our souls by the 
 bread and wine, as Thou didst Thy Holy Spirit, by Thy breath 
 to Thy disciples ; for which all love, all glory, be to Thee. 
 
 " Lord, what need I labour in vain to search out the manner 
 of Thy mysterious presence in the Sacrament, when my love 
 assures me Thou art there? All the faithful who approach 
 Thee with prepared hearts, they well know Thou art there; 
 they feel the virtue of divine love going out of Thee to heal 
 their infirmities and to inflame their affections ; for which all 
 love, all glory, be to Thee. 
 
 " holy Jesus, when at Thy altar I see the bread broken 
 and the wine poured out, ' teach me to discern Thy body 
 there ;' let those sacred and significant actions create in me 
 a most lively remembrance of Thy sufferings ; how Thy most 
 blessed body was scourged, and wounded, and bruised, and 
 tormented ; how Thy most precious blood was shed for my sins, 
 and set all my powers on work to love Thee, and to celebrate 
 Thy love in thus dying for me."^ 
 
 1 Eouth, Scripiorum Ecchsiasticorttm Opuscula, vol. ii. p. 25. 
 
 2 Ken's Prose Works, p. 324. 
 
Sheppardv. Bennett, 263 
 
 Bishop Jeremy Taylor, whose authority was much relied ou 
 by counsel for the promoter, says : — 
 
 " Some so observe the literal sense of the words that they 
 understand them also in a natural. Some so alter them by 
 metaphors and preternatural significations, that they will not 
 understand them at all in a proper way. We see it, we feel it, 
 we taste it, and we smell it to be bread ; and by philosophy we 
 are led into a belief of that substance whose accidents these 
 are, as we are to believe that to be fire which burns, and flames, 
 and shines. But Christ also affirmed concerning it. This is my 
 body; and if faith can create an assent as strong as its object 
 is infallible, or can be as certain in its conclusions as sense is 
 certain in its apprehensions, we must at no hand doubt but 
 that it is Christ's body. Let the sense of that be what it will, 
 so that we believe those words and (whatsoever that sense is 
 w^hich Christ intended) that we no more doubt in our faith 
 than we do in our sense, and then our faith is not reproveable. 
 It is hard to do so much violence to our sense as not to think 
 it hread; but it is more unsafe to do so much violence to our 
 faiih as not to believe it to be Christ's Body. But it would be 
 considered that no interest of religion, no saying of Christ, no 
 reverence of opinion, no sacredness of the mystery is disavowed 
 if we believe both what we hear and what we see. He that 
 believes it to be Iread, and yet verily to be Christ's Body, is only 
 tied also by implications to believe God's omnipotence, that he 
 who affirmed it can also verify it. And they that are forward 
 to believe the change of substance can intend no more, but 
 that it be believed verily to be the Body of our Lord. And if 
 they think it impossible to reconcile its being bread with the 
 verity of being Christ's Body, let them remember that them- 
 selves are put to more difficulties, and to admit of more 
 miracles, and to contradict more sciences, and to refuse the 
 testimony of sense, in affirming the special manner of transub- 
 stantiation. And therefore it were safer to admit the words 
 in their first sense, in which we shall no more be at war with 
 reason, nor so much with sense, and not at all with faith. 
 And for persons of the contradictory persuasion, who to avoid 
 the natural sense affirm it only to be figurative, since their 
 design is only to make this Sacrament to be Christ's Body in 
 the sense of faith, and not of philosophy, they may remember 
 that its being really present does not hinder, hut that all that 
 reality may he spiritual ; and if it be Christ's Body, so it be 
 not affirmed such in a natural sense and manner, it is still only 
 the object of faith and spirit ; and if it be affirmed only to be 
 spiritual, there is then no danger to faith in admitting the 
 words of Christ's institution. This is my Body. I suppose it 
 
264 Ecclesiastical judgmefits. 
 
 to be a mistake to think whatsoever is real must be natural,, 
 and it is no less to think spiritual to be only figurative ; that is 
 too much, and this is too little ; philosophy and faith may vi^ell 
 be reconciled, and whatsoever objection can invade this union 
 -may be cured by modesty."^ 
 
 And again : — 
 
 " In the Sacrament that body which is reigning in heaven 
 is exposed upon the table of Uessin§, and his body which was 
 broken for us is now broken again, and yet remains impassible. 
 Every consecrated portion of bread and wine does exhibit 
 Christ entirely to the faithful receiver, and yet Christ remains 
 one, while He is wholly ministered in ten thousand portions; 
 so long as we call these mysterious, and make them intricate 
 to exercise our faith, and to represent the wonder of the mys- 
 tery, and to increase our charity, our being inquisitive into 
 the abyss can have no evil purposes. God hath instituted the 
 rite in visible symbols to make the secret grace as presential 
 and discernible as it might, that by an instrument of sense 
 our spirits might be accommodated as with an exterior object to 
 produce an internal act. But it is the prodigy of a miraculous 
 power, by instruments so easy to produce effects so glorious ; 
 this then is the object of wonder and adoration."^ 
 
 And again : — 
 
 "This may suffice for the word 'real,' which the English 
 Papists much use, but, as it appears, with much less reason 
 than the sons of the Church of England ; and when the Eeal 
 Presence is denied, the word ' real ' is taken for ' natural,' and 
 does not signify ' transcendenter,' or in his just and most pro- 
 per signification. But the word ' substantialiter ' is also used 
 by Protestants in this question, which I suppose may be the 
 same with that which is in the Article of Trent, ' Sacramenta- 
 liter praesens Salvator substantia sua nobis adest,' ' in substance, 
 but after a Sacramental manner ;' which words, if they might 
 be understood in the sense in which the Protestants use them, 
 that is really, truly, without fiction, or the help of fancy, but 
 ' in rei veritate,' so, as Philo calls spiritual things dvar/KaioTaTai, 
 ova-uu, 'most necessary, useful, and material substances,' it 
 might become An instrument of a united confession." 
 
 " One thing more I am to note in order to the same pur- 
 poses; that, in the explication of this question, it is much 
 insisted upon that it be inquired whether, when we say we 
 believe Christ's Body to be 'really' in the Sacrament, we 
 mean, 'that Body, that Plesh, that was born of the Virgin 
 
 1 Works, Heber's Edition, vol. iii. pp. 291-293. 
 
 2 Ibid. p. 294. 
 
Sheppardv. Bennett. 265 
 
 Mary,' that was crucified, dead, and buried ? I answer, I know 
 none else that He had, or hath; there is but one Body of 
 Christ, natural, and glorified ; but he that says that Body is 
 glorified which was crucified, says it is the same body, but not 
 after the same manner ; and so it is in the Sacrament-; we eat 
 and drink the Body and Blood of Christ that was broken and 
 poured forth; for there is no other body, no other blood of 
 Christ ; but though it is the same which we eat and drink, yet 
 it is in another manner ; and, therefore, when any of the Pro- 
 testant divines, or any of the fathers, deny that Body which 
 was born of the Virgin Mary, that which was crucified, to be 
 eaten in the Sacrament, — as Bertram, as St. Jerome, as Clemens 
 Alexandrinus, expressly affirm; the meaning is easy; — they 
 intend it is not eaten in a natural sense ; and then calling it 
 'corpus spirituale,' the word 'spiritual' is not a substantial 
 predication, but is an affirmation of the manner, though in dis- 
 putation it be made the predicate of a proposition, and the 
 opposite member of a distinction. 'That Body which was 
 crucified, is not that Body that is eaten in the Sacrament,' — if 
 the intention of the proposition be to speak of the eating it in 
 the same manner of being ; but ' that Body which was cruci- 
 fied, the same Body we do eat,' — if the intention be to speak 
 of the same thing in several manners of being and operating ; 
 and this I noted, that we may not be prejudiced by words, 
 when the notion is certain and easy ; and thus far is the sense 
 of oUr doctrine in this article."^ 
 
 And again : — 
 
 "And certainly he could on no pretence have challenged 
 the appellative of Christian, who had dared either himself to 
 invade the holy rites within the cancels, or had denied the 
 power of celebrating this dreadful mystery to belong only to 
 sacerdotal minisiratioTis. For either it is said to be but com- 
 mon bread and wine, and then, if that were true indeed, any- 
 body may minister it, but then they that say so are blasphemous, 
 they count the Blood of the Lord to at/ia rfj<! Buid7]Krj<! (as St. 
 Paul calls it in imitation of the words of Institution), the 
 Blood of the Covenant or New Testament, a profane or common 
 thing ; they discern not the Lord's Body ; they know not that 
 the bread which is broken is the communication of the Lord's 
 Body. But if it be a holy, separate, or divine and mysterious 
 thing, who can make it (ministerially I mean) and consecrate 
 or sublime it from common and ordinary bread, but a conse- 
 crate, separate, and sublime person?"* 
 
 1 WorJcs, Heber's edition, vol. ix. p. 427. " Ii'<^- ■*31- 
 
 2 Clerus Domini. The Divine Institution and Necessity of the Office 
 
266 Ecclesiastical Judgments. 
 
 And further : — 
 
 "Por certainly there is not a greater degree of power m 
 the world than to remit and retain sins, and to consecrate the 
 sacramental symbols into the mysteriousness of Christ's Body 
 and Blood; nor a greater honour than that God in heaven 
 should ratify what the priest does on earth, and should admit 
 him to handle the sacrifice of the, world,, and to presenf the same 
 which in heaven is presented by the eternal Jesus." -"^ 
 
 Dr. Hey, Korrisian Professor of Divinity, in his lectures on 
 the Articles, observes : — 
 
 "Latimer, in the Disputation at Oxford in 1554 (or in the 
 Paper which he gave in), said that he maintained the real 
 presence of Christ in the Eucharist, but not the corporal (see 
 Pox or Collier, a.d. 1554). Archbishop Seeker (Lect. vol. ii. 
 p. 251) says the Church has always acknowledged the real 
 presence. Yet Wheatly (p. 320) says it (real essential presence 
 of Christ's natural flesh and blood) was not allowed at first ; in 
 the time of Edward vi. it seemed to approach so near transub- 
 stantiation. Fulke, on Heb. i. 6, denies reality of Christ's 
 corporal presence. Queen Elizabeth seems to have been will- 
 ing to comprehend as many as possible in the new English 
 Church ; and with that view to have endeavoured to use a lan- 
 guage which all might adopt who did not profess transubstan- 
 tiation in the strictest sense, and which might nevertheless be 
 used by those who did not admit any presence of Christ in the 
 Eucharist perfectly corporal. Such language would compre- 
 hend all Lutherans and some Papists. I think this remark will 
 be sufficient to account for the change of the expressions in the 
 28th of our present Articles (on which Bishop Burnet speaks 
 judiciously), and for the language in the second Book of 
 Homilies, both as to the word ' Incorporation ' and the insisting 
 on Faith and spiritual eating of the Sacrament." ^ 
 
 Bishop Pearson, in his great work on the Creed, observes : — 
 
 "Vain, therefore, was that old conceit of Eutyches, who 
 thought the union to be made so in the natures, that the 
 humanity was absorbed and wholly turned into the Divinity, so 
 that by that transubstarrtiation the human nature had no 
 longer being. And well did the ancient fathers, who opposed 
 this heresy, make use of the Sacramental union between the 
 bread and wine and the body and blood of Christ, and thereby 
 showed that the human nature of Christ is no more really 
 converted into the Divinity, and so ceaseth to be the human 
 nature, than the substance of the bread and wine is really con- 
 Ministerial, written by the especial Command of King Charles i., sec. 5. 
 Heber's edition, vol. xiv. p. 456. i Ibid. p. 459. 
 
 * Key's Lectures in Divinity, vol. iv. p. 331. 
 
Sheppardv. Bennett. 267 
 
 verted into the substance of the body and blood, and thereby 
 ceaseth to be both bread and wine ; from whence it is by the 
 way observable, that the Church in those days understood no 
 such doctrine as that of transubstantiation."^ 
 
 Sara via was successively Prebendary of Gloucester, Canter- 
 bury, and Westminster. He was in 1607 one of the translators 
 of the Bible. He lived on terms of intimate friendship with 
 Hooker, as Isaac Walton relates. He wrote in Latin a treatise 
 on the Holy Eucharist, which has been recently translated. He 
 says: — 
 
 "In a Sacrament there be three things to be considered 
 which be severally to be distinguished. The outward visible 
 sign, and the invisible and heavenly thing united sacramentally 
 to the sign. The third thing, that which floweth from them, is 
 the benefit of the Sacrament. Concerning those two parts 
 Augustine saith, ' What we say is this — what we endeavour by 
 every means to prove is this — namely, that the sacrifice of the 
 Church is made up of two things, consisteth of two things, the 
 visible form of the Elements and the invisible Flesh and Blood 
 of our Lord Jesus Christ — that is of the ' Sacramentum,' and 
 of the 'Ees Sacramenti' — that is, the Body of .Christ. Kow 
 orthodox divines declare that the virtue of the Sacrament is a 
 different thing from the Sacrament itself — that is, a different 
 thing from those two parts of which the Sacrament is made up. 
 Augustine writeth upon the Gospel of St. John, ' For now also,' 
 he saith, ' we receive the spiritual food ; but the Sacrament is 
 one thing, the virtue of the Sacrament is another.' The same 
 father in the same place : ' If any one shall eat of It, he shall 
 not die ; but this pertaineth to the virtue of the Sacrament, not 
 to the visible Sacrament.' Therefore the Sacrament is to be 
 considered apart by itself, as it consisteth of the visible form of 
 the elements and the invisible Flesh and Blood of our Lord 
 Jesus Christ."^ 
 
 Bishop Andrewes again, in his Apology for the answer which 
 I have already cited to Bellarmine, says : — 
 
 " Now Ambrose says that the nature is changed ; and so 
 indeed it is. For, as the Cardinal knows full well, the nature 
 of the element is one, that of the Sacrament is another. Nor 
 do we deny that the nature of the element is changed by the 
 benediction, so that the bread, as soon as consecrated, is no 
 longer the bread as nature formed it, but as the benediction has 
 consecrated it; and by consecration also changed."* 
 
 " Again, that grave author (who bears the name of Cyprian, 
 
 1 Bishop Pearson on the Creed, article iii. vol. i. p. 288. (Burton's edition.) 
 " Treatise of tlie Holy Erucharist, p. 23. London, 1855. 
 ^ Heaponsio ad Apologiam Card. Bellarmine, p. 263. 
 
268 Ecclesiastical Judgments. 
 
 yet is not Cyprian) says, that ' the bread is changed in nature, 
 not in appearance;' which we deny not, hut deprecate the Car- 
 dinal's gloss upon it, explaining ' the nature, i.e. the substance ; 
 and the appearance, i.e. the substance.' For, when the Al- 
 mighty Power of the "Word is added, the nature is changed, 
 so that what was before a bare element now becomes a divine 
 Sacrament, retaining, however, its former substance. This is 
 taught by the words which immediately succeed, which are 
 part of the same sentence, although by you they are always 
 not very honestly cut out. As in the person of Christ both 
 the humanity was manifest and the divinity concealed, so the 
 divine essence, the visible Sacrament, enters. Verily, the con- 
 junction between the visible Sacrament and the invisible sub- 
 ject matter of the Sacrament is the same as that which exists 
 between the humanity and the divinity of Christ, where, unless 
 you are unwilling to savour of the doctrine of Eutyches, the 
 humanity is not transubstantiated into the divinity."^ 
 
 "Both of them, Gelasius and Theodoret, argue against 
 Eutyches ; and from their testimony it is clear that the trans- 
 mutation which takes place in the Sacrament is not a change 
 of substance. _ I add also Augustine — ' This is what we assert 
 and approve of by all means, that the sacrifice of the Eucharist 
 consists of two things, the visible appearance of the elements 
 and the invisible Flesh and Blood of our Lord Jesus Christ, of 
 the Sacrament -and the subject matter of the Sacrament, even 
 as the person of Christ is evidently made up of God and man ; 
 since Christ is truly God and truly man. For everything con- 
 tains the nature and truth of these things of which it is made 
 up. But the Sacrament of the Church is made up of two things, 
 viz., the Sacrament and the subject matter of the Sacrament, 
 that is, the Body of Christ' " ^ 
 
 Brevint, who died Dean of Lincoln about 1695, published 
 a work called Christian Sacrament and Sacrifice, in which he 
 says : — 
 
 " Hence it appears what crime it is not to discern the Lord's 
 Body. It is to do worse than Esau did, who sold his birthright 
 for a trifle. It is to value at the same rate the anointing of a 
 prophet and the composition of a perfumer. It is to take the 
 Lord's Body for a despicable morsel of bread ; in a word, it is to 
 perform the action of a beast that devours but the gross and 
 earthy matter of this Sacrament, and to have nothing of a 
 Christian or rational creature who elevates his soul to that 
 Body which by Christ's institution it represents, and to the 
 grace of that body which it promises. For, since the proper 
 essence of sacred signs or Sacraments consists not in what they 
 
 1 Sesponaio ad Apologiam Card. Sellarmine, p. 265. " Ibid. p. 266. 
 
Sheppardv. Bennett. 269 
 
 are in their nature, but in what they signify by Divine insti- 
 tution, hence it happens infallibly that when the Sacraments 
 are abused, the injury must needs light not upon them in their 
 own natural being, Bread, Wine, and Water, which upon this 
 account are not at all considerable, but upon the Holy Mysteries, 
 the Body and Blood of Christ Himself who is the main object 
 of their formal Being, that is, their signification. And there- 
 fore the Apostle speaks most exactly when he says that who- 
 soever eats of this bread unworthily, doth not discern or doth 
 not sanctify, but uses as a common and profane thing the very 
 Body of Jesus Christ."^ 
 
 Thorndike, Master of Sidney Sussex College, Prebendary of 
 Westminster, one of the Commissioners at the Savoy Conference 
 for revising the Book of Common Prayer, in his Laws of the 
 Church, says: — 
 
 " But if I allow them that make it more than such a sign to 
 have departed from a pestUent conceit, and utterly destructive 
 to Christianity, I cannot allow them to speak things consequent 
 to their own position when they will not have these words 
 to signify that the elements are the Body and Blood of Christ 
 when they are received, but heconie so upon being received with 
 living faith ; which will allow no more of the Body and Blood 
 of Christ to be in the Sacrament than out of it. For the act 
 of living faith importeth the eating and drinking of the Flesh 
 and Blood of Christ, no less without the Sacrament than in it. 
 ... If ' This is my Body,' ' This is my Blood,' signifieth no 
 more than ' This is the sign of my Body and Blood,' then is the 
 Sacrament of the Eucharist a mere sign of the Body and Blood 
 of Christ, without any promise of spiritual grace ; seeing that, 
 being now a Sacrament, by being become a Sacrament it is be- 
 come no more than a sign of the Body and Blood of Christ, 
 which, though a living faith spiritually eateth and drinketh 
 when it receives the Sacrament, yet it should have done no less 
 vnthout receiving the same."^ 
 
 "As the eating and drinking of Christ's Flesh spiritually 
 by faith presupposes the Flesh of Christ crucified and His 
 Blood poured forth, so must the eating of It in the Sacrament 
 presuppose the beiiig of It in the Sacrament, to wit, by the 
 being and becoming of It a Sacrament ; unless a man can 
 spiritually eat and drink the Flesh and Blood of Christ in and 
 by the Sacrament, which is not in the Sacrament when he 
 eats and drinks it, but by his eating and drinking of it comes 
 to be there." . . . 
 
 1 Christian Sacrament and Sacrifice, a. v. s. 9. 
 
 2 Laws of the Church, book iii. chap. ii. p. 6, 1st Edit. 1659. 
 
2 /O Ecclesiastical y udgments. 
 
 " But if the Flesh and Blood of Christ he not there hy the 
 virtue of the consecration of the elements into the Sacrament, 
 then cannot the Flesh of Christ and His Blood he said to be 
 eaten and drunk in the Sacrament, which are not in the Sacra- 
 ment by being a Sacrament, but in him that eats and drinks 
 it. For that which he finds to eat and drink in the Sacrament 
 cannot be said to be in the Sacrament, because it is in him 
 that spiritually eats and drinks it by faith. Either, therefore, 
 the Flesh and Blood of Christ cannot be eaten and drunk in 
 the Eucharist, or it is necessarily in the Sacrament wJien It is 
 eaten and drunk in it ; in which if It were not It could not be 
 eaten and drunk in it."^ 
 
 " If these things be true, it will be requisite that we ac- 
 knowledge a change to be wrought in the elements by the 
 consecration of them into the Sacrament. For how should 
 they come to be that which they were not before, to wit, the Body 
 and Blood of Christ, without any change ? And in regard of 
 this change the elements are no more called by the name of 
 their nature and kind after the consecration, but by the name 
 of that which they are become. Not as if the substance thereof 
 were abolished, but because it remavtis no more considerable to 
 Christians ; who do not, nor are to look upon, this Sacrament 
 with any account of what it may be to the nourishment of their 
 bodies by the nature of the elements, but what it may be to the 
 nourishment of their souls by the Spirit of God assisting in and 
 with His Flesh mystically present in it. But this change con- 
 sisting in the assistance of the Holy Ghost which makes the ele- 
 ments in which it dwells the Body and Blood of Christ, it is not 
 necessary that we acknowledge the bodily substance of them 
 to be any way abolished."* 
 
 And again : — 
 
 ■" It is not here to be denied that all ecclesiastical writers 
 do with one mouth bear witness to the presence of the Body 
 and Blood of Christ in the Eucharist, neither wiU any of them 
 be found to ascribe it to anything/ but the consecration, or. that 
 to any faith but that upon which the Church professeth to pro- 
 ceed to the celebrating of it. And upon this account, when 
 they speak of the elements supposing the consecration to have 
 passed upon them, they always caU them by the name, not of 
 their bodily substance, but of the Body and Blood of Christ 
 which they are become."* 
 
 And again : — 
 
 " And upon these premises I conclude, that as it is by no 
 means to be denied that the elements are really changed, 
 
 1 Lav>8 of the Church, book iii chap. iL p. 8. 
 
 2 Ihid. chap. iii. p. 16. 3 Ihid. chap. iv. p. 30. 
 
Sheppard \. Bennett. 271 
 
 translated, turned and converted into the Body and Blood of 
 Christ (so that whoso receiveth them with a living faith is 
 spiritually nourished by the same, he that with a dead faith 
 is guilty of crucifying Christ), yet is not this change destruc- 
 tive to the bodily substance of the elements, but cumulative 
 of them with the spiritual grace of Christ's Body and Blood, 
 so that the Body and Blood of Christ in the Sacrament turns 
 to the nourishment of the body, whether the Body and Blood 
 in the truth turn to the nourishment or the damnation of the 
 soul."i 
 
 From BramhaU, who died Archbishop of Armagh in 1663, a 
 prelate of considerable erudition, I cite these passages : — 
 
 " Having viewed all your strength with a single eye, I find 
 not one of your arguments that comes home to Transubstauti- 
 ation, but only to a true Eeal Presence, which no genuine son of 
 the Church of England did ever deny, no, nor your adversary 
 himself. Christ said, ' This is My Body ;' what he said we 
 stedfastly believe. He said not, after this or that manner, 
 ne,qwe, con, neque sub, neque trans. And therefore we place it 
 among the opinions of the schools, not among the articles of 
 our Faith. The Holy Eucharist, which is the Sacrament of 
 peace and unity, ought not to be made the matter of strife and 
 contention."^ 
 
 And again : — 
 
 " Abate us Transubstantiation, and those things which are 
 conseq[uent of their determination of the manner of Presence, 
 and we have no difference with them in this particular. They 
 who are ordained priests ought to have power to consecrate the 
 Sacrament of the Body and Blood of Christ, that is, to make 
 them present."* 
 
 Sparrow, Bishop of Exeter and of Norwich, died in 1685. 
 He was also one of the Commissioners for revising the Prayer- 
 Book. In his " Rationale " of that book he has these words : — 
 
 " Next is the Consecration. So you shall find in Chryso- 
 stom and Cjnil, last cited. Which consecration consists chiefly 
 in rehearsing the words of our Saviour's institution. This is My 
 Body, and This is My Blood, when the bread and wine is 
 present upon the Communion Table. ' The Holy Sacrament of 
 the Lord's Supper,' says S. Chrysostom, ' which the Priest now 
 makes, is the same thatChrist gave to His Apostles.' . . , 'Christ 
 is present at the Sacrament now, that first instituted it. He 
 consecrates this also : it is not man that makes the Body and 
 Blood of Christ by consecrating the holy elements, but Christ 
 that was crucified for us. The words are pronounced by the 
 
 1 Laws of the Church, book iii. chap. iv. pp. 33, 34. 
 
 2 Worhe, fol. ed., p. 15, ' l^id- P- 485. 
 
272 Ecclesiastical Judgments. 
 
 mouth of tlie Priest, but the elements are consecrated by the 
 power and grace of God. " This is," saith He, " My Body :" by 
 this word the bread and wine are consecrated.' 
 
 " When the Priest hath said at the delivery of the Sacra- 
 ment, The Body of our Lord Jesus Christ which was given for 
 thee, preserve thy body and soul unto everlasting life, the 
 communicant is to answer Amen ; by this Amen, professing . 
 his faith of the Presence of Christ's Body and Blood in that 
 Sacrament."^ 
 
 TUlotson, who died Archbishop of Canterbury in 1694, and 
 was of a different school of divinity from the last author, 
 nevertheless says .• — 
 
 " I deny not but that the Fathers do, and that with great 
 reason, very much magnifie the wonderfull mystery and efficacy 
 of this Sacrament, and frequently speak of a great Supernatural 
 change made by the Divine benediction, which we also readUy 
 acknowledge." ^ 
 
 Yardley, Pellow of St. John's College, Cambridge, who died 
 Archdeacon of Cardigan in 1770, an authority cited by Bishop 
 Mant, says : — 
 
 " After the consecration of the Elements immediately follow 
 the reception and distribution of them, which continue stiU in 
 their natural substance of bread and wine, though 'they are 
 changed in their value and ef&cacy into the sacramental Body 
 and Blood of Christ."* 
 
 Beveridge, who died Bishop of St. Asaph in 1708, and 
 wrote a well-known Exposition of the Thirty -nine Articles, 
 says : — 
 
 " Hence also it is, that our Church requires us to receive 
 the Holy Sacrament kneeling, not but of any respect to the 
 creatures of bread and wine, but to put us in mind that 
 Almighty God, our Creator and Eedeemer, the only object of 
 all religious worship, is there specially present, offering His 
 own Body and Blood to us, that so we may act our faith in 
 Him, and express our sense of his goodness to us, and our 
 unworthiness of it, in the most humble posture that we can. 
 And, indeed, could the Church be sure that all her members 
 would receive as they ought with faith, she need not to com- 
 mand them to receive it kneeling, for they could not do it 
 any other way. For how can I pray in faith to Almighty 
 God, to preserve both my body and soul to everlasting life, 
 
 1 Rationale upon the Booh of Common Prayer, pp. 216, 223. Ed Oxford 
 1840. 
 
 2 Discourse against Transtihstantiation. Works (ed. 1686) vol xvii p 
 320. , . . 1-. 
 
 3 Cited in Mant's Book of Common Prayer (ed. 8), p. 368. 
 
Sheppard v. Bennett. 2 ^i^ 
 
 and not make my body as well as soul bow down before 
 Him ? How can I by faith behold my Saviour coming to me, 
 and offering me His own Body and Blood, and not fall down 
 and worship Him ? How can I by faith lay hold upon the 
 pardon of my sins, as there sealed and delivered to me, and 
 receive it any otherwise than on my knees ? I dare not, I cannot, 
 do it; and they who can, have too much cause to suspect 
 that they do not discern the Lord's Body, and therefore cannot 
 receive it worthily. Be sure, our receiving the blessed Body 
 and Blood of Christ, as the Catholic Church always did, in an 
 humble and adoring posture, is both an argument and excite- 
 ment of our faith in Him. By it we demonstrate that we 
 discern the Lord's Body, and believe Him to be present with 
 us in a particular sacramental sense, and by it we excite and 
 stir up both ourselves and others to act our faith more stead- 
 fastly upon Him, in that by our adoring Him, we actually 
 acknowledge Him to be God as well as man ; and therefore on 
 whom we have all the reason in the world to believe and trust 
 for our salvation."^ 
 
 I cannot more fitly conclude this catalogue than by a refer- 
 ence to the high authority of the present Bishop of Salisbury, 
 Dr. Moberly, who, in one of his Bampton Lectures, observes 
 upon the Holy Eucharist as follows: — 
 
 " In order to constitute its complete character according to 
 the Divine pattern of its institution, it absolutely requires two 
 things. First, there must be the consecration of tlie elements 
 by the priest, the organ of the priestly Church, empowered by 
 sacred ordinance to do that solemn and indispensable portion 
 of the joint act which none else may presume to exercise or in- 
 trude upon ; for it is no common or ordinary work which he has 
 to do. It is no light thing that by the acts that he organically 
 does, and the words which he organically utters, the spiritual 
 presence of the Lord is so brought down upon the elements of 
 bread and wine, as that to the faithful they become verily and 
 indeed, however invisibly and mysteriously, the Body and Blood 
 of Christ."^ 
 
 Again : — 
 
 " There has never been a question of the absolute confine- 
 ment of the power of consecrating the bread and wine to their 
 mysterious efficacy of becoming to the faithful, and to the 
 Church of the faithful, the Body and Blood of the Lord, to the 
 ordained clergy."^ 
 
 1 Bishop Beveridge on Frequent Communion, p. 208 (p. 431 of ed. 1858). 
 
 2 Moherley's Bampton Lectvres, pp. 176, 177. 
 
 3 Ibid. p. 177. 
 
 S 
 
274 Ecclesiastical "Judgments. 
 
 Again : — 
 No doubt some of the ancients, as, for example, St. Chry- 
 sostom, in the treatise on Priesthood, use very strong and re- 
 markable language on this part of the subject. I venture to 
 think that as we should not have scrupled to use similar lan- 
 guage if we had lived before the Eoman theory of Transub- 
 stantiation had been elaborated into aU its train of evil and 
 superstitious consequences, so would he in all probability have 
 guarded his expressions had he been writing in later days, 
 when that philosophical theory had been invented and made to 
 take the place of the simple doctrine of the real, and as in our 
 modern mode of speech we call it, the objective presence of the 
 Body, and Blood of Christ in the sacred elements. 
 
 "Under the outward and visible form of bread and wine we 
 believe that the Body and Blood of our Lord and Saviour Jesus 
 Christ are given, taken, and received ; and we believe that that 
 Divine food, according to the sacred teaching of our own 
 Liturgy in this respect, imparts to every one of those who 
 receive it with true penitent heart and lively faith, these nine 
 inestimable blessings," ^ 
 Again : — 
 
 " That Divine nourishment is the Body and Blood of Christ. 
 It is hardly possible, brethren, in these days of division and 
 disputation on all the most sacred articles of the faith, to pass 
 by, quite without notice, the extreme diversity of opinion of 
 churches and doctors on this most sacred, and in its general 
 terms unquestioned, doctrine, but it suits little with my purpose 
 to dwell upon such diversities at any length." 
 
 And then this learned prelate adds the following words, 
 which deserve the most careful attention, both from the great 
 weight due to the authority which uttered them, and from their 
 bearing upon the present case : — 
 
 " / will therefore only say that the ancient doctrine of the 
 Chwrch, and, as I read it, the unquestionable doctrine of tlie 
 Church of England, is that the spiritual presence of the Body 
 and Blood of our Lord in the Holy Communion is objective and 
 real. I do not see how we can consent, as with Hooker and 
 Waterland, to limit authoritatively that presence to the Jieart of 
 the receiver ; for the words of the institution (and these are cases 
 in which we are rigidly and absolutely bound to the exact words 
 of the revelation), the words, I say, of the Lord in the institution, 
 seem to forbid such a gloss." ^ 
 
 1 Moberhy's Bampton Lectures, pp. 173, 4. ^ m^^ p_ jyj_ 
 
Sheppard v. Bennett, 2 "^^ 
 
 Real Presence. — The use of the terms Objective and 
 Subjective. 
 
 During the course of the argument the use of the phrase 
 objective Presence was demurred to by counsel for the promoter. 
 
 It was said, I believe quite truly, that the phrase had been 
 recently introduced into treatises of English theology ; a remark 
 which might also be made with respect to the introduction of 
 it into systems of philosophy. I mean to speak with proper 
 diffidence on this subject, but the fact seems to be by no means 
 conclusive against the use of it in either science. 
 
 Philosophy and theology have derived these terms, objective 
 and subjective, from the schoolmen, and in both sciences they 
 express a distinction which, perhaps, no other terms can ade- 
 quately convey. 
 
 Subjective, in both sciences, denotes, I believe, that which 
 belongs to the mind or soul of man, the thinking conscious 
 subject. 
 
 Objective denotes that which belongs to what is without or 
 external to the mind or soul of man, the object known, per- 
 ceived, or believed to exist. It signifies what is real in opposi- 
 tion to what is ideal ; what exists in nature in contrast to what 
 exists in thought ; what has a substantive, independent exist- 
 ence in fact, not a relative dependent existence in the mind or 
 soul of the individual.^ 
 
 Thus the phrase subjective Presence would be used, I presume, 
 to mean that the presence of Christ is in the act of reception 
 by the communicant of the consecrated elements themselves. 
 
 The phrase objective Presence would be used, I presume, to 
 mean that the presence of Christ is mysteriously, but really, in 
 the consecrated elements apart from the act of reception by 
 the communicant. 
 
 The use of these phrases cannot be imposed as a necessary 
 condition of resolving the question as to the mode of the 
 Presence. It seems to me that the language of the present 
 Bishop of Carlisle on this point deserves attention : — 
 
 " We see it and hear it, for instance, continually and very 
 warmly discussed, whether the Presence of Christ in the Sacra- 
 ment be an objective or a subjective Presence. It is taken for 
 granted that it must be either the one or the other ; it must 
 either be objective, that is, independent of the mind contemplat- 
 ing it, or else it must be subjective, that is, dependent upon the 
 contemplating mind. Now it may seem at first sight that this 
 view of the question is exhaustive ; and yet whichever horn of 
 1 Sir William Hamilton's Lectures, vol. i. pp. 159, 160. 
 
276 Ecclesiastical Judginents. 
 
 the dilemma you take you arrive at consequences not easily 
 admissible. Is it conceivable that the Presence of Christ 
 should be altogether independent of the worshipper? If so, 
 do you not degrade that Presence, and run the risk of con- 
 founding the Sacrament with a charm, something that can pro- 
 duce results without the accompanying energy of a true and 
 lively faith on the part of those who receive it ? On the other 
 hand, is it conceivable that the Presence of Christ should be 
 altogether dependent upon the spirit of the worshipper, so that 
 there should be no absolute and independent truth and mean- 
 ing in the words of our Lord when he said, 'This is My Body,' 
 and 'This is My Blood'? I cannot accept either horn of the 
 dilemma. And if it be asked. What then wiU you do? I 
 reply by denying that any one has a right to submit the words 
 of Christ to any dilemma of the kind. What right have we to 
 say that His Presence must be either objective, or subjective? 
 Why may it not in some sense be both ? Or how do we know 
 that that mysterious Presence of which we speak is capable of 
 being described under such a formula at all?"^ 
 
 However recently the terms objective and subjective may have 
 been introduced into our theology, and whether the introduc- 
 tion of them has or has not been necessitated or justified by 
 increased laxity and confusion of speech upon the subject of 
 the Holy Eucharist, they are certainly now supported by very 
 high authority, even if we confine our consideration to the 
 writers of our own country. They have been adopted, as will 
 be seen in the citations which I have made, by some of the 
 most erudite and esteemed of our own divines. And in my 
 opinion it was legally competent to Mr. Bennett to make use 
 of them. 
 
 Real Presence. — Use of the phrase " Under the forms of 
 Bread and Wine'.' 
 
 Great objection was taken by the counsel for the promoter 
 to the phrase " under the form of Bread and Wine," which it 
 was contended introduced teaching at variance with the For- 
 mularies of our Church. This form of expression has been 
 used in our Formularies as applicable to the substances of 
 Bread and Wine remaining unchanged. They were so used in 
 the Articles of 1536, and in the "Institution of a Christian 
 Man" in 1537. In the Six Articles a direct statement of 
 transubstantiation took their place. They do not appear in 
 the "Necessary Erudition" of 1543. After a lapse of four 
 years they reappear under the auspices of Cranmer and other 
 1 Dean'Ooodioin'aServions, 1869, p. 112. 
 
Skeppardv. Bennett. '277 
 
 Bisliops at the end of the first book of the Homilies, where it 
 is said, " Hereafter shall foUow sermons of the Nativity, Passion, 
 Eesurrection, and Ascention of our Saviour Christ, of the due 
 receiving of His Blessed Body and Blood under the form of 
 Bread and Wine." And it is not unimportant to observe, that, 
 early in the reign of Elizabeth, the Bishops advert to this state- 
 ment, for in their title to the second book of the Homilies 
 they speak " of such matters as were promised and entituled in 
 the former book of Homilies." And in Queen Elizabeth's 
 Primer of 1559 we find the prayer which begins " Our Saviour 
 and Eedeemer, Jesu Christ, which in Thy last Supper with 
 Thine Apostles didst deliver Thy Blessed Body and Blood 
 under the form of Bread and Wine." The first book of Homi- 
 lies has undergone two revisions, and the statement " under the 
 form of Bread and Wine " remains unchanged up to the present 
 time. 
 
 Eatramn, it will be seen, adopted pretty much the same form 
 of expression : — 
 
 "At quia confitentur et corpus et sanguinem Christi esse, 
 nee hoc esse potuisse, nisi facta in melius commutatione ; neque 
 ista commutatio corporaliter, sed spiritUaliter facta sit necesse 
 est, ut jam figurate facta esse dicatur quoniam sub velamento 
 corporei panis corporeigUe vini spirituale corpus Christi spiritu- 
 alisque sanguis existit." ^ 
 
 It is remarkable that the followers of Wickliffe and the 
 Lollards, who were burnt in the reigns of Henry the Fourth 
 and Fifth, under the authority of the inhuman statute then 
 enacted, appear to have maintained " the Sacrament of Christ's 
 flesh and his blood in form of bread and wine," and to have 
 been burnt for refusing to acknowledge the corporal presence, 
 and to declare that after the words of consecration the material 
 bread and wine no longer existed.^ 
 
 To Sir John Oldcastle (Lord Cobham) in 1414, the inquisi- 
 tors put the Eoman proposition as to the Presence, and their 
 question on it, as foUows : — 
 
 1 Bertrami de Corp. et Sanguine Domini, p. 15. 
 
 The following is Bishop Burnet's account of Eatramn : " Eatramnus was 
 commanded by Charles the Bald, then Emperor, to write upon that subject, 
 which he, in the beginning of his book, promises to do, not trusting to his 
 own sense, but following the steps of the holy Fathers. He tells us that 
 there were different opinions about it ; some believing that the Body of 
 Christ was there without a figure; others saying that it was there in a 
 figure or mystery ; upon which he apprehended that a great schism must 
 follow. His book is very short, and very plain ; he asserts our doctrine as 
 expressly as we ourselves can do, he delivers it in the same words, and 
 proves it by many of the same arg\iments and authorities that we bring." — 
 (Burnet, Exposition of the Thirty-nine Articles, Art. xxviii. p. 337. ) 
 
 '^ Southey, History of the Church, chap. xi. ; Hume, voL iii. c. 19. 
 
278 Ecclesiastical Jtidgnients. 
 
 " The fayth and the determination of holy churche touchyng 
 the blissful sacrament of the auter, is this ; that after the 
 sacramentall wordes ben sayde by a prest in hys masse, the 
 material bred, that was bifore, is turned into Christis verray 
 body ; and the material wyn, that was before, is turned into 
 Chrystes verry blode, and so ther leweth in the auter no 
 material brede, no material wyn, the wych wer ther before 
 the seying of the sacramental wordes; howe lyve ye this 
 article ?"i 
 
 To which Oldcastle answered, "in sacramento altaris est 
 verum corpus et verus panis, viz., quern videmus, et corpus 
 Christi sub eodem. mlatmn quod non videmus." He was burnt 
 for not believing in transubstantiation. 
 
 The first of the Six Articles, framed by Henry vm. when he 
 went back to Transubstantiation, is in these words : — " That in 
 the Eucharist is reaUy present the natural Body of Christ under 
 the forms and without the substance of bread and wine;" which 
 seems to show clearly that the phrase "under the forms of 
 bread and wine " does not per se express the doctrine of Tran- 
 substantiation. 
 
 Eidley would certainly have adopted the language of Eatramn, 
 and have induced Cranmer to do so. Cranmer, moreover, ap- 
 proved of the Augsburg Confession, in which the Article is as 
 follows : — 
 
 " VII. De Eucharistia. 
 
 " De Eucharistia constanter credimus et docemus, quod in 
 sacramento corporis et sanguinis Domini, vere, substantialiter, 
 et realiter adsint corpus et sanguis Christi sub speciebus panis et 
 vini. Et quod sub eisdem speciebus vere et realiter exhibentur 
 et distribuuntur iUis qui sacramentum accipiunt, sive bonis sive 
 malis." ^ 
 
 I may observe in passing, that when the Jerusalem Bishopric 
 Act was passed, the instructions from Lambeth and London to 
 the English bishop were to ordain Prussian subjects who had 
 subscribed the Confession of Augsburg as weU. as the Thirty- 
 nine Articles of the English Church. The directions were as 
 follows : — 
 
 " Congregations consisting of Protestants of the German 
 tongue, residing within the limits of the Bishop's jurisdiction, 
 and willing to submit to it, will be under the care of German 
 clergymen ordained by him for that purpose, who wiU officiate 
 in the German language according to the forms of their national 
 
 1 Wilkins' Concilia Mag. Brit., vol. iii. pp. 355, 6 ; Collier, Eccl. Hist., 
 vol. iii. p. 294. 
 
 2 UardwkJc on the Articles, p. 255. 
 
Skeppardv. Bennett. 279 
 
 liturgy compiled from the ancient liturgies, agreeing in all 
 points of doctrine with the Liturgy of the English Church, and 
 sanctioned by the Bishop with consent of the Metropolitan for 
 the special use of those congregations ; such liturgy to be used 
 in the German language only. Germans intended for the 
 charge of such congregations are to be ordained according to 
 the ritual of the English Church, and to sign the Articles of 
 that Church ; and, in order that they may not be disqualified 
 by the laws of Germany from officiating to German congre- 
 gations, they are, before ordination, to exhibit to the Bishop 
 a certificate of their having subscribed, before some competent 
 authority, the Confession of Augsburg." ^ 
 
 By the joint operation of 3 & 4 Vict. c. 33, and 5 Vict. c. 6, 
 § 4, persons so ordained may officiate with the consent of the 
 Ordinary in England. 
 
 It may be well to compare this doctrine, that the Body and 
 Blood of Christ are spiritually present under the form of Bread 
 and Wine, with the doctrine of transubstantiation as laid down 
 by the Council of Trent. The difference between the two doc- 
 trines is at once apparent : — 
 
 " C. IV. De transubstantiatione. 
 
 " Quouiam autem Christus redemptor noster corpus suum id, 
 quod sub specie panis offerebat, vere esse dixit, ideo persuasum 
 semper in ecclesia Dei fuit, idque nunc denuo sancta hsec 
 synodus declarat, per consecrationem panis et vini conversionem 
 fieri totius substantise panis in substantiam corporis Christi 
 Domini nostri, et totius substantiae vini in substantiam sanguinis 
 ejus. Quae conversio convenienter et proprie a sancta catholica 
 ecclesia transubstantiatio est appellata. 
 
 " Can. II. Si quis dixerit, in sacrosancto eucharistise sacra- 
 mento remanere svhstantiam panis et vini una cum corpore et 
 sanguine Domini nostri Jesu Christi, negaveritque mirabilem 
 illam et singularem conversionem totius suhstantice panis in 
 corpus, et toti^is suhstantice vini in sanguinem, manentiims dun- 
 taxat speciebus panis et vini, quam quidem conversionem catho- 
 lica ecclesia aptissime transubstantiationem appellat, anathema 
 sit." 2 
 
 Mcholson, Bishop of Gloucester, one of the committee 
 selected by the Convocation in 1661 to undertake, in compliance 
 with the King's order, the revision of the Prayer-Book, speak- 
 ing of the Holy Eucharist, says, " Christ is there under the 
 
 1 From a Statement of Proceedings relating to the Establishment of a 
 Bishopric of the United Church hi England and Ireland in Jerusalem. Pub- 
 lished by Authority. Pamphlet : London, December 9, 1841. 
 
 * Canones, etc., Oondlii Tridentini, p. 60. 
 
28o Ecclesiastical Judgments. 
 
 forms of Bread and Wine ; not changed in substance but in 
 Tise;"^ and in that well-known book of devotion, Sherlock's 
 Practical Christian, we read, — 
 
 " Grant, Holy Jesus, that as I have now received in faith 
 Thy precious Body and Blood, veiled under the species of Bread 
 and Wine, I may hereafter behold Thy Blessed Face revelled 
 in Heaven.^ 
 
 " He discerns not this Body of our Lord who sees not with 
 the eye of faith Christ really present under the species of Bread 
 and Wine, though he conceive not the manner thereof . . . not 
 curiously questioning, much less pragmatically defining, the 
 way and manner of His Presence, as being deeply mysterious 
 and inconceivable. These old verses, expressing . the faith of 
 the wisest of our first Eeformers, may satisfy every modest, 
 humble, sober-minded, good Christian, in this great mystery of 
 Godliness : — 
 
 ' It was the Lord that spake it, 
 He took the bread and brake it, 
 And what His word did make it. 
 So I believe and take it.' 
 
 " And he that receives Christ's Holy Body and Blood into 
 his soul, not first emptied of all his sins by holy faith, and all 
 the sacred offices of true repentance, doth with Judas betray 
 his master into the hands of his enemies, even those very 
 enemies which crucified him ; for those were our sins. And 
 therefore it is said of such unworthy receivers that they are 
 guilty of the Body and Blood of Christ." * 
 
 " Consider," says Sutton, " the divine wisdom of the Son of 
 God, who, respecting our weakness, hath conveyed unto us His 
 Body and Blood after a divine and spiritual manner, under the 
 form of Bread and Wine." * 
 
 Real Presence. — Effect of the 2gtk Article on this doctrine. 
 
 An argument was addressed to me founded on the 29th 
 Article of EeHgion, which I must notice. The 29th Article is 
 as follows : — 
 
 " XXIX. Of the, wicked which eat not the lody of Christ in the 
 use of the Lord's Supper. 
 
 " The wicked, and such as be void of a lively faith, although 
 
 1 Exposition of Oatechiam, p. 178, cited in Keble on Euch. Adoration, 
 p. 142. 
 
 2 Sherloch's Practical (Jhrintiam, part ii. chap, x., p. 252. Ed. 1841. 
 ' Ibid, part ii. chap. i. * 
 
 ^ Godly Meditations on the most Holy Sacrament of the Lord's Supper, 
 p. 26. 
 
Sheppard Y. Bennett. 281 
 
 they do carnally and visibly press with their teeth, as St. 
 Augustine saith, the Sacrament of the Body and Blood of Christ, 
 yet in no wise are they partakers of Christ, but rather to their 
 condemnation do eat and drink the sign or Sacrament of so 
 great a thing." 
 
 It was not and could not be contended that Mr. Bennett had 
 directly contravened this Article, because the charge against 
 him, founded upon it, had been struck out by the Court ; but 
 it was argued quite fairly, that this 29th Article furnished a 
 reason why the objective presence could not be the doctrine of 
 the Church of England, otherwise it was said the wicked would 
 be partakers of Christ in the Eucharist, which this Article de- 
 clares they are not. 
 
 It seems to me, however, that it can be reasonably and fairly 
 argued that the object of the Article, which must be construed 
 as a whole, and not, as has been strangely supposed, by the title 
 alone, was to assert that the wicked who received the Holy Ele- 
 ments received them to their condemnation ; that is, that they 
 did not become spiritually partakers of Christ, though they 
 saaramentally received his Body and Blood. And the phrase, 
 " eat Christ's Body," I may observe, in the title, is a phrase of 
 theology capable of various interpretations. It is taken from 
 the sixth chapter of St. John, and may be, as it has been, by 
 high authority,^ interpreted to mean so to eat the Body of Christ 
 as to dwell in Christ, or, in other words, to be " partakers of 
 Chri-st ;" they do not eat Christ's Body to any purpose or effect 
 for which it was offered to them ; they eat it to their damna- 
 tion ; they eat a judgment to themselves, but still in one sense 
 they eat it, or rather, as it is expressed in the old Hymn, — 
 
 " Samutit boni siimunt mali, 
 Sorte tamen ineequali, 
 
 Vitaa vel interitus ; 
 Mora est mails vita bonis ; 
 Vide, paria sumptionis 
 
 Quam diapar sit exitus ! " 
 
 Bishop Eidley, in the course of his disputation at Oxford, 
 said : — ; 
 
 " Evil men do eat the very true and natural Body of Christ 
 sacramentally, and no further, as S. Augustine saith ; but good 
 men do eat the very true Body both sacramentally and spiritually, 
 by grace." ^ 
 
 And again we have this passage : — 
 
 Watson. — " Good Sir, I have determined to have respect to 
 the time, and to abstain from aU those things which may 
 
 1 Pusey on the Eeal Presence, p. 255. ^ Works, p. 246. 
 
282 Ecclesiastical judgments. 
 
 hinder the entrance of our disceptation : and therefore first I 
 ask this question : — When Christ said, in John vi., ' He that 
 eateth my flesh,' etc., doth he signify in those words the 
 eating of His true and natural flesh, or else of the bread and 
 symbol ?" 
 
 EiDLEY. — " I understand that place of the very flesh of Christ 
 to be eaten, but spiritually. And further I say, that the 
 Sacrament also pertaineth unto the spiritual manducation: 
 for without the spirit, to eat the Sacrament, is to eat it iinprofit- 
 ably ; for whoso eateth not spiritually, he eateth his own con- 
 demnation."^ 
 
 St. Augustine, upon whose authority the Twenty-ninth Article 
 professes to be founded, frequently states that the wicked do, 
 in the sense which I have mentioned, receive the Body of 
 Christ. He says :— 
 
 "Sicut enim Judas cum buccellam tradidit Domino non 
 malum accipiendo sed male accipiendo locum in se Diabolo 
 prsebuit: Sic indigne quisque sumens Dominicum Sacramentum 
 non efficit, ut quia ipse mains est malum sit, aut quia non ad 
 salutem acceperit nihil acceperit. Corpus enim Domini et 
 sanguis Domini nihilominus erat illis quibus dicebai Apostolus : 
 Qui manducat indigne judicium, sibi manducat et bibit."^_ 
 
 " De uno pane et Petrus et Judas accepit ; Petrus ad vitam, 
 Judas ad mortem ; cihus bonus bonos vivificat malos mortifcat."^ 
 " Corpus Christi cum signo Diaboli accipere non timent." * 
 " Judas Christi corpus accepit." ^ 
 Other instances might be mentioned. 
 
 Dr. Jackson, to whom I have already adverted, adds the 
 weight of his great authority to this construction of the 
 Article : — 
 
 " The questions then to be discussed are two : — 
 " First, what it is to eat Christ's Plesh and drink his 
 Blood ? 
 
 " Secondly, what it is for Christ to dwell or abide in us, and 
 us to dwell or abide in him ? 
 
 " All agree that there is a twofold eating of Christ's Body 
 and a twofold drinking of his Blood ; one merely sacramental, 
 and another spiritual ; which agreement notwithstanding, 
 there ariseth a third question — viz., what manner of eating 
 Christ's Flesh and drinking his Blood is in this place either 
 only or principally meant ? 
 
 " For the resolution of this question, we are briefly to 
 explicate each member of this division — viz. (1), what it is to 
 
 1 Works, p. 238. 2 2)e Bapt. c. Don., lib. v. 
 
 3 In Joh., Tr. 50. * JEp. ad Poss. 
 
 * In Joh., Tr. 62, 
 
Sheppardv. Bennett. 283 
 
 eat Christ's Body and drink his Blood sacramentally only; 
 (2) what it is to eat his Body and drink his Blood spiritu- 
 ally. 
 
 "First then, all that are partakers of this Sacrament mt 
 Christ's Body and drink His blood sacramentally ; that is, they 
 eat that bread which sacramentally is his Body, and drink 
 that cup which sacramentally is his Blood, whether they eat or 
 drink faithfully or unfaithfully. For all the Israelites (1 Cor. x.) 
 drank of the same spiritual Eock, which was Christ, sacra- 
 mentally ; all of them were partakers of his presence, when 
 Moses smote the rock ; yet with many of them God was not 
 vjell pleased, because they did not faithfully either drink or 
 participate of his presence. And more displeased he is with 
 such as eat Christ's Body and drink his Blood unworthily, 
 though they eat and drink them sacramentally ; for eating 
 and drinking so only, that is, without faith or due respect, 
 they eat and drink to their own condemnation, because, they 
 do not discern or rightly esteem Christ's Body or Presence in 
 the Holy Sacrament. 
 
 " May we say then that Christ is really present in the 
 Sacrament, as well to the unworthy as to the faithful receivers ? 
 Yes, this we must grant ; yet must we add withal, that He 
 is really present with them in a quite contrary manner ; really 
 present He is, because virtually present to both ; because the 
 operation or efficacy of His Body and Blood is not meta- 
 phorical, but real in both. Thus the bodily Sun, though 
 locally distant for its substance, is really present by its heat 
 and fight, as well to sore eyes as to clear sights, but really 
 present to both by a contrary real operation ; and by the like 
 contrary operation it is really present to clay and to wax ; it 
 really hardeneth the one and really softeneth the other. So 
 doth Christ's Body and Blood by its invisible but real influence 
 mollify the hearts of such as come to the Sacrament with due 
 preparation, but harden such as unworthUy receive the con- 
 secrated elements. If he that will hear the word must take 
 heed how he hears, much more must he which means to re- 
 ceive the Sacrament of Christ's Body and Blood be careful 
 how he receives. He that will present himself at this great 
 marriage feast of the Lamb without a wedding garment, had 
 better be absent. It was always safer not to approach the 
 presence of God, manifested or exhibited in extraordinary 
 manner (as in His sanctuary or in the Ark), than to make 
 appearance before it in an unhallowed manner, or without due 
 preparation. Now, when we say that Christ is really present 
 in the Sacrament, our meaning is, that as God He is present 
 in an extraordinary manner ; after such a manner as He was 
 
;j84 Ecclesiastical judgments. 
 
 present (before His incarnation) in His sanctuary, tlie ark of 
 his Covenant ; and by the power of His Godhead, thus extra- 
 ordinarily present. He diffuseth the virtue or operation of His 
 human nature either to the vivification or hardening of their 
 hearts who receive the sacramental pledges. So, then, a man 
 ly eating Christ's Body merely sacramentally may be hardened, 
 may be excluded from His gracious presence. But no man 
 hath Christ dwelling in him by this manner of eating His 
 llesh and drinking His Blood, unless withal he eat the one 
 and drink the other spiritually. The eating then, of Christ's 
 Body, and drinking His Blood, merely sacramentally, is not the 
 eating and drinking here meant." ^ 
 
 Archbishop Seeker expresses himself in pretty much the 
 same sense : — 
 
 " It is not," he says, " the gross and Literal, but the figura- 
 tive and spiritual eating and drinking, the partaking by a 
 lively faith of an union with Me, and being inwardly nourished 
 by the fruits of My ofl'ering up My Flesh and Blopd for you, 
 that alone can be of benefit to the soul. 
 
 "And as this is plainly the sense in which he says that 
 ' His Flesh is meat indeed, and His Blood is drink indeed,' so it 
 is the sense in which the latter part of the third answer of 
 our Gatechisni is to be understood, that ' The Body and Blood 
 of Christ are verily and indeed taken and received hy the faithful 
 in the Lord's Swpper;' words intended to show that our Church 
 as truly believes the strong assurances of Scripture concerning 
 this Sacrament as ^he Church of Eome doth; only takes 
 more care to understand them in the right meaning, which is, 
 that though in one sense all communicants equally partake of 
 what Christ calls His Body and Blood, that is, the outward 
 signs of them, yet, in a much more important sense, the faith- 
 ful only, the pious and virtuous receiver, eats His Flesh and 
 drinks His Blood ; shares in the life and strength derived to 
 men from His Incarnation and Death ; and through faith in 
 Him becomes, by a vital union, one with him — a member, as 
 St. Paul expresses it, of His Mesh and His Bones — certainly 
 not in a literal sense, which yet the Eomanists might as well 
 assert, as that we eat His Flesh in a literal sense, but in a 
 figurative and spiritual one. In appearance, the Sacrament of 
 Christ's Death is given to all alike, but verily and indeed in 
 its beneficial effects to none but the faithful. Even to the 
 unworthy communicant He is present, as He is whenever we meet 
 together in His name ; but in a better and most gracious sense 
 to the worthy soul, becoming by the inward virtue of His Spirit 
 
 1 Jackson' i Works, vol. x. pp. 51-53. (Oxford Edition, 1844.) 
 
Skepjjard V. Bennett. 285 
 
 its food and sustenance. This real Presence of Christ in the 
 Sacrament His Church hath always believed."^ 
 
 Soutli did not scruple to speak of his horror when he con- 
 sidered, — 
 
 " The pure and blessed Body of our Saviour pissing through 
 the open sepulchre of such throats." — {i.e. of the wicked.) ^ 
 
 Bishop Cosin says : — 
 
 " A while before the writing of this Apology, came forth' 
 the Diallactic of the famous Dr. Poinet, Bishop of Winchester, 
 concerning the truth, nature, and substance of the Body and 
 Blood of Christ in the blessed Sacrament, writ on purpose to 
 explain and manifest the faith and doctrine of the Church of 
 England in that point." * 
 
 Bishop Poynet, who is thus referred to, says : — 
 
 " Now as to the denialthat the wicked can eat the body of 
 Christ, which would necessarily be the case if virtue and 
 spiritual grace were united with the bread, we must make a 
 distinction. For, if we regard the nature of the Sacrament, 
 Divine virtue cannot be absent from the sign, in so far as it is 
 a Sacrament, and serves for this use ; if we look to the morals 
 and mind of the recipient, it is not to him life and grace, both 
 of which it is by its own nature, because the evil of the wicked 
 is not capable of so great goodness, nor suffers it to bear fruit 
 in itself. Nay, rather, it is death and condemnation to them. 
 Por, as many kinds of meat are in their own nature whole- 
 some, but if -they enter into diseased bodies increase the evil, 
 and often accelerate death, not by their own nature but by the 
 fault of the receiver, so it is with regard to the Sacrament, in 
 which its own virtue is always present, until it discharges its 
 office; although, when taken by the unworthy, he is not 
 capable of receiving such goodness, or of deriving any profit 
 therefrom. Cyprian confirms this : ' Sacraments,' he says, 
 ' cannot exist without their own virtue, nor can the Divine 
 majesty be ever absent from the mysteries.' But although the 
 Sacraments are permitted to be taken or touched by the un- 
 worthy, they whose want of faith or unworthiness resists so 
 great holiness cannot be partakers of the Spirit. Therefore to 
 some these gifts are the savour of life unto life, to others the 
 savour of death unto death, because it is altogether just that 
 those who despise the grace should be deprived of so great 
 benefit, and that purity should not make an abode for itself in 
 those who are unworthy of such grace." 
 
 1 Seeker, Lecture xxxvi. vol. xiv. p. 493, ed. 1792, Edinburgh. 
 
 2 South' 8 Sermons, vol. ii. p. 310. 
 
 2 History of Popish Transubstantiation, vol. iv, p. 159. ' 
 
286 Ecclesiastical yudgments. 
 
 Then this author quotes St. Augustine as maintaining these 
 views. He also says : — 
 
 " From these and many places it is evident that the Eucha- 
 rist, as far as appertains to the nature of the Sacrament, is 
 truly the Body and Blood of Christ, is a truly Divine and holy 
 thing, even when it is taken by the unworthy, while, however, 
 they are not partakers of its grace and holiness, but drink their 
 own death and condemnation. Nor in them does such good- 
 ness dwell, nor does it enter in order to dwell, but to condemn; 
 nor does the contact of the Lord's Body more profit them than 
 it did the Jews to have touched that holy Body of His, always 
 endowed with its own grace. Wherefore the Sacraments con- 
 tinue, so long as they are Sacraments, to retain their own 
 virtue, nor can they be separated therefrom. For they always 
 consist of their own parts — an earthly and a heavenly, a visible 
 and an invisible, an inward and an outward, whether the good 
 take them or the bad, whether the worthy or the unworthy. 
 Besides, that commutation of the signs, and the transition of 
 the elements into the inward substance, which everywhere 
 occurs in the ancient writers, cannot exist if we separate the 
 virtue from the sign, and we wish" the one to be taken apart 
 from the other. But this is to be understood, so long as the 
 sign serves its use, and is adapted to the end for which it was 
 destined by the word of God. . . . The dignity of the Sacra- 
 ments, and the honour due to them, is not injured, but 
 remains whole and entire, so long as we confess that the 
 truth of the Body and its nature and substance is received by 
 the faithful, together with the symbols, as the ancient Fathers 
 testify. . . 
 
 "The, good and the lad alike eat sacramentally with their mouths 
 the Body of Christ and drink His blood, but the good alone do this 
 spiritually. Now to eat the Body of Christ sacramentally, and 
 to drink His Blood, is to receive the Sacrament of His Body 
 and Blood ; that is, the bread and the Body of Christ, the wine 
 and the Blood of Christ. For in no other way are the bread and 
 the wine Sacraments. And he who thinks it possible that the 
 outward signs can be partaken of apart from those things sig- 
 nified, which are a necessary part of the Sacrament, divideth, 
 or rather dissolveth, the Sacrament. For the outward symbols 
 be only one part of the Sacrament." ^ 
 
 " He who receiveth only the bread receiveth no Sacrament ; 
 for either the Sacrament is received whole and perfect or not 
 at all. Augustine^' Sacraments, however, if they be the same, 
 are everywhere whole and perfect, although their meaning be' 
 
 1 Diallacticon viri boni et literati, de veritate, natura, atque substantia 
 Corporis et Sanguinis Christi in Eucbaristia. ' 
 
Sheppardv. Bennett. 287 
 
 depraved, and the handling of them be various and discordant.' 
 For it is not more contrary to reason that the Flesh of Christ 
 he eaten sacramentally, and His Blood drunken by hypocrites, 
 than that it should have been possible that God should have 
 been touched and kissed by the wicked, whensoever they 
 either kissed or touched Christ, without any profit, to their own 
 damnation. — (Augustine on Baptism, against the Donatists.) 
 Nor doth it make any difference, when the question is touching 
 the jperfectness and holiness of the Sacrament, what he the 'belief 
 and what the faith of the man who receiveth the Sacrament. It 
 maketh indeed, all the difference in respect of the way of salvation, 
 tut in respect of the question, what a Sacrament is, it maketh no 
 difference at all. For it may happen that a man may have the 
 Sacrament in its completeness, and a perverted faith, just as it 
 may happen that a man may have all the words of the Creed, and 
 yet have no right belief"^ 
 Thorndike says : — 
 
 " But if eating and drinking the Body and Blood of Christ in 
 this Sacrament unworthily be the crucifying of Christ again, 
 rendering a man 'guilty' of His Body and Blood, then is not 
 His Flesh and Blood spiritually eaten and drunk till living 
 faith make them spiritually present to the soul, which the con- 
 secration maketh sacramentally present to the body. And it 
 is to be noted that no man can say that this Sacrament i-epre- 
 sents or tenders and exhibits unto him that receiveth the Body 
 and Blood of Christ (as all must do that abhor the irreverence 
 to so great an ordinance which the opinion that it is but a bare 
 sign of Christ crucified necessarily engendereth), but he must 
 believe this ; unless a man will say that that which is not pre- 
 sent may be represented, that is to say, tendered and exhibited 
 presently down upon the place. It is not, therefore, that living 
 faith which he that receives the Eucharist, and is present at 
 the consecrating of it, may have and may not have that causeth 
 the Body and Blood of Christ to be sacramentally present in the 
 elements of it, but it is the profession of that common Christie 
 anity which makes men members of God's Church; in the 
 unity whereof wheresoever this Sacrament is celebrated (with- 
 out inquiring whether those that are assembled be of the num- 
 ber of those to whom the kingdom of Heaven belongs), thou 
 hast a legal presumption even towards God that thou receivest the 
 Flesh and Blood of Christ in and with the elements of Bread and 
 Wine, and shall receive the same spiritually for the food of thy 
 soul, supposing that thou receivest the same with living faith. For 
 one part of our common Christianity being this, that our Lord 
 
 1 Diallacticon viri boni et literati, de veritate, natura, atque substantia 
 Corporis et Sanguinis Christi in Eucharistia. 
 
288 Ecclesiastical yudgments. 
 
 Christ instituted this Sacrament with a promise to make by, 
 His Spirit the elements of Bread and Wine sacramentally His 
 Body and Blood, so that His Spirit that made them so (dwelling 
 in them as in His natural Body), should feed them with 
 Christ's Body and Blood that receive the Sacrament of them 
 with living faith ; this institution being executed, that is, the. 
 Eucharist being consecrated according to it, so sure as Christi- 
 anity is true, so sure the effect follows."^ 
 
 Thorndike is very explicit in distinguishing between the 
 merely sacramental reception by the wicked and the spiritual 
 reception by the good. 
 
 "Here, indeed, it wiU be requisite to take notice of that 
 which may be objected for an inconvenience that God should 
 grant the operation of His Spirit to make the elements sacra- 
 mentally the Body and Blood of Christ upon the dead faith of 
 them who receive It to their condemnation in the Sacrament, 
 and therefore cannot be said to eat the Body and Blood of 
 Christ (which is only the act of living faith), without that 
 abatement which the premisses have established, to wit, in 
 the Sacrament. But aU this, if the effect of my saying be 
 thoroughly considered, will appear to be no inconvenience.. 
 For that the Body and Blood of Christ should be sacram^ntalty 
 present in and under the elements (to be spiritually received 
 of all that meet it with a living faith, to condemn those for 
 crucifying Christ again that receive It with a dead faith), can 
 it seem any way inconsequent to the consecration thereof by, 
 virtue of the common faith of Chilstians, professing that which 
 is requisite to make true Christians, whether by a living or a 
 dead faith ; rather must we be to seek for a reason why ' he 
 that eateth this bread and drinketh this cup unworthily' should 
 be ' guilty of the Body and Blood of Christ' as ' not discerning 
 It;' unless we suppose The Same sacramentaUy present by 
 virtue of that true Christianity which the Church professing 
 and celebrating the Sacrament, tendereth It for a spiritual 
 nourishment to a living faith, — for matter of damnation to a 
 dead faith. For if the profession of true Christianity be, as of 
 necessity it must be, matter of condemnation to him that pro- 
 fesseth it not truly (that is to say, who professing it doth not 
 perform it), shall not his assisting the celebration and conse- 
 cration of the Eucharist produce the effect of rendering him 
 condemned by himself (eating the Body and Blood of Christ in 
 the Sacrament, out of a profession of Christianity which spiri- 
 tually he despiseth), for not fulfilling what he professeth; or that 
 living faith which concurreth to the same as a good Christian 
 should do, be left destitute of that grace which the tender of 
 1 Laws of the Church, chap. iii. pp. 17, 18. 
 
Sheppard v. Bennett. 289 
 
 tTie Sacrament promiseth, because the faith of those who join 
 in the same action is undiscernible ? Certainly if the sacra- 
 mental Presence of Christ's Body and Blood, tendering the 
 same spiritually, be a blessing or a curse, according to the faith 
 ■which It meets with ; it can by no means seem unreasonable 
 that it should be attributed to that profession of Christianity 
 which makes It respectively a blessing or a curse, according to 
 the faith of them for whom it is intended."^ 
 
 Dr. Hey uses remarkable language as to this 29th Article. 
 
 "Our application" (he Says) "may be confined to mutual 
 concessions. And for these I think there is greater room in this 
 Article than in any other. The dispute between the Eomanists 
 and the Eeformed is merely verbal. I mean about the present 
 Article as separated from all others. They say, the bread after 
 consecration is the Body of Christ, even in substance ; it fol- 
 lows, supposing this true, that whoever eats that substance, eats 
 the Body of Christ ; that is, it is not desecrated by one mouth 
 more than by another. We say, that the bread continues 
 bread after consecration, and therefore that every receiver eats 
 bread ; but that he who does what the Scripture requires may 
 be said, in the prophetic, strong, figurative language of Scrip- 
 ture, to eat the Body of Christ ; as he eats what is appointed to 
 represent that Body, and what the Scripture calls briefly that 
 Body itself. The Eomanists, therefore, and we, use a phrase, 
 eating the Body of Christ, in two different senses ; and we also 
 use this proposition, ' The wicked eat Christ's Body,' in two 
 different senses; consequently to dispute about its truth is 
 idle and childish. They too use it as a corollary from a pro- 
 position which we think false, though we own the corollary to 
 be rightly deduced. Now it must always be trifling to dispute 
 about such a coroUary, as if it were an independent proposition. 
 We both require preparation for the Sacrament, indeed Eo- 
 manists more than we ; we botb say, that unworthy receivers 
 may draw punishment upon themselves ; we both quote the 
 passage of Augustin which is in our Article. In short, we 
 both mean, that the consecrated bread is not desecrated by the 
 unworthiness of the receiver, and that worthiness is required 
 in order to obtain benefit." ^ 
 
 In truth, the construction placed by all these authorities on 
 the 29th Article brings it into harmony with the words of the 
 25th Article: "And in such only as worthUy receive the 
 same they have a wholesome effect or operation: but they 
 that receive them unworthily, purchase, to themselves damna- 
 tion, as St. Paul saith." 
 
 ^ Laws of the Church, chap. iii. p. 18. 
 * JS^'s Lectures in Divinity, vol. iv. p. 358. 
 T 
 
290 Ecclesiastical Judgments. 
 
 I must also observe that the words "the faithful" orfdeles 
 have been often interpreted to mean the baptised members of 
 the visible Church, the parables of the tares and the wheat 
 growing together, the good and the bad fish in the same net, being 
 cited to support this position. Thorndike, in the passage just 
 cited, speaks " of that common profession of Christianity which 
 makes men members of Christ's Church ; in the unity whereof 
 wheresoever this Sacrament is celebrated, without inquiring 
 whether those that be assembled be of the number of those to 
 whom the Kingdom of Heaven belo'ngs," etc. 
 
 And Barrow, in those great sermons on The Doctrine of 
 Universal Bedemption asserted and Uxplained, which have been 
 always received by the Church as the soundest and most 
 eloquent exposition of her doctrine, observes : — 
 
 " But our Lord is the Saviour of those persons ; and there- 
 fore he is the Saviour of all men. The assumption we assayed 
 to show in the last argument ; and many express testimonies 
 of Scripture before mentioned establish it ; the common style 
 of Scripture doth imply it, when in the Apostolical writings to 
 all the visibly faithful indifferently the relation to Christ as 
 their Saviour is assigned, an interest in all his saving perform- 
 ances is supposed, the titles of a-co^o/j^oi and a-ea-coa-fiivoi 
 (with others equivalent, of justified, sanctified, regenerated, 
 quickened, etc.), are attributed. And in our text^ God is 
 said to be the Saviour chiefly t&v -n-ia-Tav, of the faithful; 
 which word in its common acceptation denotes all visible 
 members of the Christian communion." ^ 
 
 In accordance with this teaching. Bishop Beveridge interprets 
 our 1 9th Article : — 
 
 " Of the Church. 
 
 " The visible Church of Christ is a congregation oi faithful 
 men, in the which the pure word of God is preached," etc. 
 
 The Bishop says : — 
 
 " Though the Church of Christ be one and the same Church, 
 both in heaven and earth, yet it there differs much from itself 
 as here. There it is triumphant, here militant; here it is 
 militant, not triumphant. There it consisteth of good only 
 and not of bad ; here of bad as weU as good." * 
 
 Our Burial service is constructed on the presumption that 
 aU who are not unbaptised or excommunicate, or have not laid 
 violent hands upon themselves, are to be considered as belong- 
 ing to the Church of Christ. 
 
 1 on riXirUaiifV im Qe^ C^vn, os ia-Ti aarrip travrav av6pa>wav, fioKiara 
 jTKrrav. — 1 Timothy iv. 10. 
 
 2 Barrow's Works, vol. iv. pp. 25, 26. 
 ^ Bishop Beveridge on the Articles. 
 
Sheppardw. Bennett. 291 
 
 Before, however, I leave the question as to whether the 
 manducation by the wicked of the elements without eating 
 Christ be or be not an argument for the absence of the presence 
 from the consecrated elements, I must observe that an opinion 
 has been maintained by great divines, such as Cyprian and 
 Bishop Ken, that the Presence is miraculously withdrawn from 
 the elements in cases where the wicked or a beast have de- 
 voured them. 
 
 These are the lines of Bishop Ken : — 
 
 "How Godhead to our human Flesh was join'd, 
 Transcends the reach of an angelic mind. 
 How God and Man with Bread and Wine unite, 
 Is too sublime for bounded human sight ; 
 To boundless Godhead both united are, 
 God Tabernacles here, and Temples there. 
 There undivided God and Man exist. 
 The Flesh assumed is ne'er to be dismist ; 
 'Tis transient here, and when a Judas eats 
 The Sacred Bread, Christ's Shechinah retreats. 
 The day and night each other stOl expel. 
 Pure God in souls impure can never dwell." '■ 
 
 According to this opinion, the Eeal Presence in the Holy 
 Eucharist may be maintained by those who deny the reception 
 of Christ " in any sense " by the wicked. 
 
 I am of opinion that the doctrine of the real spiritual or of 
 the objective real Presence maintained by the defendant is not 
 by necessary implication at variance with this 29th Article of 
 Religion, and, as I have already said, Mr. Bennett is not charged 
 with directly contravening any doctrine respecting the recep- 
 tion of the Eucharist by the wicked. 
 
 Real Presence. — Judgment at Bath, 1856. 
 
 The judgment given at Bath by Archbishop Sumner and his 
 assessors against the Archdeacon of Taunton, in 1856, has been 
 cited as having decided the question of the mode of Presence 
 adversely to the statements of Mr. Bennett. But I decline ab- 
 solutely to admit that this decision has any legal validity, or is 
 in any way binding upon this Court in this case. 
 
 I do so for various reasons ; perhaps one reason is sufficient. 
 That decision was reversed by the Court of Arches and the 
 Privy Council. The decision was appealed from on almost 
 every possible ground of law, civil and ecclesiastical ; that is, 
 the nature of the case being considered upon the merits as well 
 as the law. The appeal was heard in the first instance upon 
 the construction of the statute 3 and 4 Vict. c. 86; and this 
 
 1 On ihe. Eucharist : Poetical Works, voL i. pp. 123-128, London, 1721. 
 
292 Ecclesiastical judgments. 
 
 appeal was successful in both Courts. And as it decided that 
 the Archbishop had by reason of the lapse of time no jurisdic- 
 tion to try the case at all, the other questions were not dis- 
 cussed ; but, as a reference to the pleadLigs shows, the decision 
 of the Archbishop was as stoutly contested on the merits, or 
 on the law strictly ecclesiastical, as on the statute law. 
 
 The inference, that because the appellant was successful in 
 limiiae upon the first objection which he took, he would not 
 have been successful on his other objections which he had not 
 an opportunity of stating, but on which he confidently relied, 
 would indeed be a novel doctrine of jurisprudence. 
 
 It is not necessary that I should dwell further upon the 
 subject, or refer to what has happened since 1856 ; but I ought 
 to add this observation, which perhaps makes all reference to 
 this case unnecessary — namely, that the proceedings against 
 the Archdeacon of Taunton were grounded on his alleged con- 
 travention of the law with respect to the reception of the Holy 
 Eucharist by the wicked; a question which I have not to 
 decide in these proceedings against Mr. Bennett. 
 
 Real Presence. — As to the Receptionist Doctrine. 
 
 There is a doctrine as to the mode of the Presence which 
 has obtained the name of the Eeceptionist Doctrine. It is thus 
 expressed by Hooker : — " The Eeal Presence of Christ's most 
 Blessed Body and Blood is not therefore to be sought for in the 
 Sacrament, but in the worthy receiver of the Sacrament." To 
 whatever cause this opinion of Hooker may be due, whether, 
 as has been suggested, to his respect for Calvin or his sympathy 
 with the sufferings of Eeformers on the Continent,' or to the 
 result of his own convictions on the subject, it was certainly 
 not his intention to maintain that no other mode of the Pre- 
 sence could be lawfully holden by Clerks of our Church. For, 
 with that wisdom which is the fruit both of deep learning and 
 fervent charity, he says : — 
 
 " As for His dark and hidden works, they " (that is, " such as 
 love piety ") "prefer, as becometh them in such cases, simplicity 
 of faith before that knowledge which curiously siting what 
 it should act on, and disputing too boldly of that which the 
 wit of man cannot search, chiUeth for the most part all warmth 
 of zeal, and bringeth soundness of belief many times into great 
 hazard." 
 
 And again :— 
 
 " The fruit of the Eucharist is the participation of the Body 
 and Blood of Christ. There is no sentence of Holy Scripture 
 
 1 Hooker, E. P., Preface, voL L ; Keble on Emliarigtical Adoration, p. 125. 
 
She^pard v. Bennett. 293 
 
 "which saith that we cannot by this Sacrament be made par- 
 takers of His Body and Blood, except they be first contained 
 in the Sacrament, or the Sacrament converted into them. 
 ' This is my Body,' and ' This is my Blood,' being words of 
 promise, sith we all agree that by the Sacrament Christ doth 
 reaUy and truly in us perform His promise, why do we vainly 
 trouble ourselves with so fierce contentions, whether by consub- 
 stantiation, or else by transubstantiation, the Sacrament itself 
 be first possessed with Christ or no ? A thing which no way 
 can either further or hinder us, howsoever it stand, because 
 our participation of Christ in this Sacrament dependeth on the 
 co-operation of His omnipotent power which maketh it His 
 Body and Blood to us, whether with change or without altera- 
 tion of the element such as they imagine, we need not greatly 
 to care nor inquire."^ 
 
 When Hooker's Puritan adversary observed that in these 
 words he seemed to make light of the doctrine of Transubstan- 
 tiation, Hooker replied : — 
 
 " They (the Eomanists) ought not to stand in it as in a 
 matter of faith, nor to make so high aceompt of it, inasmuch 
 as the Scripture doth only teach the communion of Christ in 
 the Holy Sacrament, and neither the one nor the other way of 
 preparation thereunto. It suflBced to have believed this, and 
 not by determining the manner how God bringeth it to passe, 
 to have entangled themselves with opinions so strange, so im- 
 possible to be proved time. They should have considered in 
 this particular Sacrament that which BeUarmine acknowledgeth 
 of Sacraments in generaU. It is a matter of faith to believe 
 that Sacraments are instruments whereby God worketh grace 
 in the souls of men ; but the manner how He doth it is not a 
 matter of faith." ^ 
 
 I was referred to some portions of a charge prepared by the 
 late Archbishop of Canterbury, but which his much lamented 
 death prevented him, perhaps, from correcting, certainly from 
 finishing and delivering. From them it appeared that he 
 adopted, as many divines have done, the opinion of Hooker. 
 
 '^ E. P., vol. ii. p. 6, book v. ch. Ixvii. (ed. Eeble). 
 
 ^ Tbid. In the same sense the Bishop of Carlisle says, " I mean that they 
 who object to the dogma of transubstantiation, and who say that the Church 
 of Rome had no right to impose such a dogma, do not by that objection ex- 
 press anything incompatible with the strongest opinions concerning our 
 Lord's spiritual presence. What they do say is, that it is wrong to attempt 
 to define that presence by any human formula. And that, especially with 
 regard to the particular formula in question, experience has shown that it is 
 capable of being interpreted in a most mischievous sense, and that it leads 
 almost necessarily, and has in fact led, to the most terrible superstition." — 
 {Dean Goodwin's Sermons, 1869, p. 104.) 
 
294 Ecclesiastical Judgpients. 
 
 For Archbishop Longley T can never cease to feel the highest 
 esteem and the deepest regard. It would be a libel on his 
 memory to suppose that he held this particular mode of the 
 Presence to be the only mode which the Church of England 
 allowed her children to believe. The last time that I saw him 
 in public, in the year 1868, he was presiding over the meeting 
 in the theatre at Oxford, the object of which was to found a 
 College for the maintenance of those Church principles which 
 the late Mr. Keble professed. Mr. Keble's edition of Hooker 
 was published in 1 845, and his work on the EiiclmrisUcal Adora- 
 tion was published in 1857, in both of which he regretted that 
 upon this point Hooker had suffered himself to be biassed by 
 the opinions of foreign reformers, and expressed the strongest 
 possible opinion in favour of the Objective Eeal Presence in the 
 Holy Elements. 
 
 Having cited all these authorities, I wiU now recur to the 
 very words of the 28th Article : — 
 
 " The Body of Christ is given, taken, and eaten in the supper, 
 only after an heavenly and spiritual manner. And the mean 
 whereby the Body of Christ is received and eaten in the Supper, 
 is Eaith." 
 
 I believe that the position of those who agree with the 
 opinions of the defendant would take this form of argument, or 
 something like it : They say — "What is given 1 — The Body of 
 Christ. Who gives it ? — Our Lord the Great High Priest in 
 Heaven, by the hands of His priests, ministering, as the 26th 
 Article says, by His " commission and authority " on earth. 
 "What is taken ? — "What has been before given, the Body of 
 Christ. "What is eaten ? — "What has been before given and 
 taken, the Body of Christ. 
 
 The manner indeed of the giving, the taking, and the eating 
 is only heavenly and spiritual, but not the less on that account 
 is something given, taken, and eaten external to and apart from 
 the giver, taker, and eater. The whole manner of the Presence 
 is indeed supernatural, but not the less true ; spiritual, but not 
 the less real ; heavenly, but not the less actually there to cleanse 
 the body and wash the soul of the communicant. It has hap- 
 pened that among the recent discoveries of ecclesiastical histo- 
 rical records we have a " contemporanea expositio " from the 
 compiler of this Article, which cannot, I think, be gainsaid. 
 
 It is a letter entitled — 
 
 " Edmund Gheast, Bishop of Eochester, to Cecil." 
 
 " Greeting in ye Lord," and it goes on as follows : — 
 " Eight Honourable, — I am verye sorye yt you are so sick. 
 God make yow whole, as it is my desyer and prayer. I wold 
 
Sheppard v. Bennett. 295 
 
 have seen yow er this, accordinge to my dutye and good will, 
 but when I sent to knowe whether I might see yow, it was 
 often answeered yt yow were not to be spoken with. 
 
 " I suppose yow have hard how ye Bisshop of Glocestre " 
 {i.e. Cheney) " found him selue greeved with ye placynge of 
 this adverbe ondy in this article. The bodye of Christ is gy ven, 
 taken, and eaten in ye Supper after an heavenly and spiritual 
 manner ondy, by cause it did take away ye presence of Christis 
 bodye in ye Sacrament, and prively noted me to take his part 
 therein, and yeasterdaye in myn absence more playnely 
 touched me for the same. Whereas betwene him and me I 
 told him plainely, that this word ondy in ye aforesaid article 
 did" not exclude ye presence of Christis Body fro the Sacrament, 
 but onely ye grossenes and sensiblenes in ye receavinge thereof. 
 Ffor I saied unto him, though he tooke Christis Body in his 
 hand, receaved it with his mouthe, and that corporally, naturally, 
 reallye, substantially, and carnally, as ye doctors doo write, 
 yet did he not, for all that, see it, feale it, smelle it, nor taste 
 it. And therefore I told him I wold speake against him herein, 
 and ye rather hy cause ye artide was of myn own pennynge. And 
 yet I wold not, for all that, denye therebye any thing that I had 
 spoken for the presence. And this was the some of our talke. 
 
 " And this that I saied is so true by all sortes of men, that 
 even D. Hardinge writeth the same, as it.appeareth most evi- 
 dently by his wordes reported in ye Bisshoppe of Salisburie's " 
 (Jewel's) "booke, pagina 228, wich be thees : then we maye 
 saye, yt in the Sacrament his verye body is present, yea, really, 
 is to saye, in deede, substantially, that is, in substance, and that 
 corporally, carnally, and naturally ; by which wordes is ment 
 that his verye bodye, his verye flesh, and his very humaine 
 nature, is there, not after eorporall, carnall, or natural wise,. but 
 invisibly, unspeakably, supernaturally, spiritually, divinely, and 
 by waye unto him oiJ.y known. 
 
 " This I thought good to write to your honour for myn own 
 purgation. The Almightye God in Christ restore yow to your 
 old health, and longe keepe yow in the same, with encrease of 
 vertue and honour. 
 
 " Yours whole to his poor powre, 
 
 " Edm. Eoffens." 
 
 Indorsed. — "22 December 1556, B. of Eochester to myself." 
 Superscribed. — "To the Eight Honourable and his singler 
 
 good freind Sir Willm. Cecill, knight, principal Thresaure to 
 
 ye Queen's Matie."^ 
 
 1 Cited in Pusey, On the Real Presence, p. 203, also printed separately in a 
 pampUet. 
 
296 Ecclesiastical y%idgments. 
 
 The Homily "concerning the Sacrament" speaks of faith 
 being " a necessary instrument ; " the Article had spoken of it 
 as " a mean." May it not be said to have this signifieation-j-a 
 " necessary instrument " or " a mean " of beneficial reception, or 
 what the Homily calls " fruition," of " a ghostly ^stance, ? " 
 Is such a constraction at all events whoUy inadmissible, and 
 does it subject the holder of the theory to punishment ? 
 
 The alterations effected in the Holy Communion service 
 after the Second Prayer-Book of Edward vi., both in the 
 reign of Elizabeth and Charles 11., were certainly not unfavour- 
 able to those who maintained a Real, or, as it is not uncom- 
 monly designated, an Objective Presence in the Eucharist. I 
 do not dwell on the marginal rubrics, with respect to manual 
 rites, or the position of the Priest before the table. But I come 
 first to the important addition made to the language which the 
 Priest is directed to use when he delivers the Holy Elements 
 to the communicants. It cannot, I think, be reasonably 
 doubted that the substitution of the words, "Take and eat 
 this in remembrance that Christ died for thee, and feed on Him 
 in thy heart by faith with thanksgiving," for " The body of our 
 Lord Jesus Christ which was given for thee, preserve thy body 
 and soul unto everlasting life," and the substitution of " Drink 
 this in remembrance that Christ's blood was shed for thee, and 
 be thankful," for " The Blood of our Lord Jesus Christ which 
 was shed for thee, preserve thy body and soul unto everlasting 
 life," was intended to give a greater prominence to the com- 
 memorative character of the rite, and to avoid as much as 
 possible the recognition of the Presence. Queen Elizabeth 
 insisted on the restoration of the discarded sentences, and ever 
 since the two have been joined together in the service of the 
 Holy Communion. The part of the Catechism introduced in 
 the reign of James i. relative to the Holy Eucharist, according 
 to the plain meaning of the words, favours the doctrine of the 
 real Presence in the Holy Elements. 
 
 In the Canons of 1603, it is said (Canon 57) that "the 
 doctrine both of Baptism and the Lord's Supper is so suffi- 
 ciently set down in the Book of Common Prayer to be used at 
 the administration of the said Sacraments, as nothing can be 
 added unto it that is material and necessary." 
 
 The directions for the reverent consumption of the nncon- 
 sumed elements, and for covering them with a fair linen cloth, 
 seem to indicate increased reverence for this Sacrament. But 
 the next matter of importance is the alteration in what is 
 commonly, but improperly, called the Black Eubric — i.e. the 
 declaration on kneeling at the close of the Communion service. 
 This declaration, which contains an apology for the kneeling 
 
Sheppardv. Bennett 297 
 
 posture of the commtinicaiits, found its way, under the religious 
 influences which then prevailed, into the Second Prayer-Book 
 of Edward vi. It specified that " no adoration was done or 
 ought to he done either unto the sacramental hread and wine 
 there bodily received, or unto any real and essential Presence 
 there being of Christ's natural flesh and blood." Queen Eliza- 
 beth omitted this declaration altogether from her Prayer-Book. 
 There can be no doubt that she did so because it was an 
 obstacle to the communion of the Lutherans and Eoman 
 Catholics in our Church, as well as because, rightly or wrongly, 
 she interpreted it as adverse to the doctrine of the Presence. 
 
 Upon this point we have the consentient voice of two rival 
 historians. Collier says that Queen Elizabeth's council, on her 
 accession, impressed upon her that " To prevent discontent the 
 reformed liturgy ought to be reviewed and made as inoffensive 
 to all parties as may be ;" Burnet, that the Queen inclined " to 
 have the manner of Christ's Presence in the Sacrament left in 
 some general words, that those who believed the Corporal 
 Presence might not be driven away from the Church by too nice 
 an explanation of it."^ 
 
 " Corporal " is not equivalent to " real and essential " (as Mr. 
 Keble truly remarks). " It is not only associated with grosser , 
 and more carnal ideas, but in its strict philosophical meaning 
 implies also something local, in the sense of filling a certain 
 space, oLKeiav •jrepeypd^riv. The form of His glorious Body, 
 ' real,' ' substantial,' ' essential,' imply nothing of the kind. 
 They express our faith in the miracle, without in the least 
 pretending to indicate the manner of it."^ 
 
 At the Savoy Conference in 1661, the Presbyterians desired 
 the restoration of the declaration, and the Bishops opposed it, 
 but eventually consented to its restoration, with an alteration 
 of the most material character — namely, the substitution of the 
 words " corporal Presence of Christ's natural flesh and blood," 
 for the words " real and essential Presence there being," etc. 
 
 It appears to be that the principle of legal construction 
 applicable to this grave and deliberate alteration is clear — 
 namely, that it was intended to exclude, in conformity with the 
 Articles, that gross mode of Presence which is called Transub- 
 stantiation, but to admit the "real and essential Presence," 
 which the Second Prayer-Book of Edward vi. had excluded. 
 
 The alterations which a party in the Church, and the 
 Dissenters from without, after the accession of WiUiam and 
 
 > Eccl. Hist, vol. vi. p. 199 (ed. 1840) ; HUt. Reformation, vol. ii. Book 3, 
 p. 753 (ed. Oxford, 1829). 
 2 Keble on Euch. Ador. p. 137. 
 
298 
 
 Ecclesiastical judgments. 
 
 Mary, endeavoured in 1689 to effect in the Prayer-Book, point 
 to the same result. 
 
 The Catechism appeared to express so strongly, as Bishop 
 Hampden has observed, the Catholic doctrine as to the Sacra- 
 ments, that those who did not adopt that doctrine were natur- 
 ally anxious to alter the language of the Catechism. They did 
 not succeed ; but the table which follows represents the attempts 
 that they made with respect to the Holy Eucharist. 
 
 Alterations in the Book of Common Prayer in 1689. 
 
 " (452.) The question.] What is the 
 outward part or sign of the Lord's 
 Supper?" 
 
 " (453.) The question.] What is the 
 inward part or thing signified ?" 
 
 "(454.) In the answer, 'The Body 
 and Blood of Christ,' etc.] are verily 
 and indeed taken and received by 
 the faithful in the Lord's Supper." 
 
 " (455.) The following question.] What 
 are the benefits whereof we are 
 partakers thereby?" 
 
 " Altered.] What are ye outward 
 and visible signs in the Lord's 
 Supper ? " 
 
 " Altered.] What are the things sig- 
 nified by ye Bread and Wine ?" 
 
 " Struck out and altered thus.] Were 
 offered for us upon ye Cross once 
 for all." 
 
 " Struck out, and the following addi- 
 tions substituted, which are so con- 
 structed as to join on with the 
 answer to that question.] 
 
 " Question.] What is ye inward 
 and spiritual grace ?]" 
 
 " Answer.] The benefits of ye 
 Sacrifice of Christ's Body and Blood, 
 which are verily and indeed taken 
 and received by ye faithful in ye 
 Lord's Supper." ^ 
 
 With respect, therefore, to the charges in the criminal 
 articles against Mr. Bennett for describing the Presence in the 
 Holy Eucharist as " actual " and " objective," I must hold that 
 by the use of these expressions he has not contravened the 
 formularies of our Church, or committed any ecclesiastical 
 offence. 
 
 Doctrine of the Sacrifice. 
 
 Under the second category of the alleged offences of the de- 
 fendant, I find the following charges : — 
 
 (1.) " That the Holy Communion Table is an altar of sacri- 
 fice, at which the ministering priests of the Church appear in 
 a sacerdotal position at the celebration of the Holy Communion, 
 and that at such celebration there is a great sacrifice or offering 
 
 1 Home of Commons Setum, 1854. 
 
Sheppard y. Bennett. 299 
 
 of Jesus Christ by the ministering priest, and that in such 
 sacrifice or offering the Mediation of Jesus ascends from such 
 altar to plead for the sins of men. 
 
 (2.) " That the Holy Communion Table is an altar of a 
 sacrificial character, at which the ministering priests of the 
 Church discharge a sacerdotal office at the celebration of the 
 Holy Communion, and that at such celebration there is a living, 
 real, and spiritual offering of Christ by the ministering priest." 
 
 In the extract from Mr. Bennett, contained in Article 5, 
 lettered A, he speaks of " sacerdotal representation at her 
 altars ;" he has before spoken of the " episcopal representation 
 of the Church in the House of Lords." By the term " sacer- 
 dotal representation" is meant, I suppose, the officiating of the 
 priest at the Holy Table ; the Latin word has been used instead 
 of the Saxon, and the language is vague, but I find nothing 
 necessarily at variance with the doctrine of the Church of Eng- 
 land in the use of the expression. 
 
 In passage B the defendant speaks of " the doctrine of sacri- 
 fice," and of " the idea of a sacrifice in the Blessed Eucharist." 
 In various passages he speaks of " the Eucharistic Sacrifice ;" 
 in passage E of " the sacrificial character of the Altar ;" in 
 passage & of a " living real spiritual offering of Christ upon the 
 Altar ;" and in passage L of " the sacrifice offered by the Priest 
 in the Holy Eucharist." 
 
 Passage D is as follows : — 
 
 {Some Besults, etc) 
 At pages 12 and 13 — 
 
 (D) " The Priest or Priest and Deacon formerly standing 
 with faces opposite each other, and leaning over the Altar in 
 apparently amicable conference, now appear in their Sacerdotal 
 position, as though they were in reality occupied in the great 
 Sacrifice which it is their of&ce to offer. Formerly, an ordi- 
 nary Surplice, and frequently not over clean or seemly, covered 
 the person of the ministering Priest, no difference being mani- 
 fested between that and all other offering of Prayer : now the 
 ancient vestments present to crowds of worshippers the fact, 
 that here before God's Altar is something far higher, far more 
 awful, more mysterious, than aught that man can speak of, 
 namely, the Presence of the Son of God in human Flesh sub- 
 sisting. And towards this are tending aU the ancient rites of 
 the Church which are now in course of restoration. The 
 solemn music and the smoke of the incense go up before God, 
 assuring the World that here is no appearance only of love, 
 but a reality and a depth which human hearts cannot fathom, 
 nor even the Angels themselves. The incense is the Media- 
 
300 Ecclesiastical yudgments. 
 
 tioQ of Jesus ascending from the Altar to plead for the sins 
 of man." 
 
 As this extract appears to me to be the most explicit, if such 
 a word be applicable to any of Mr. Bennett's statements with 
 respect to the offence charged, I have cited it in extenso. It 
 contains, I think, these propositions ; that there is a " Great 
 Sacrifice," which it is the office of the priest to offer, to which 
 his position at the altar has reference ; that the dresses of the 
 priests are calculated to apprise the worshippers of " the Pre- 
 sence of the Son of God in human flesh subsisting," as to the 
 use of which words I have already expressed my opinion ; that 
 the rites of music and incense tend to symbolise this Presence, 
 and to represent the reality and depth of God's love ; and that 
 the incense further or especially represents the Mediation of 
 our Lord ascending from the Altar. With respect to the pro- 
 positions relating to the symbolical character of vestments and 
 rites, no specific charge is made ; and with respect to the use of 
 incense at the time of the Holy Communion, a judgment prohi- 
 bitory of it has been delivered by me since these passages were 
 written. But I must observe here that the sentence, " The 
 incense is the Mediation of Jesus ascending from the Altar to 
 plead for the sins of man," is a statement as to the symbolical 
 use of incense, and per se does, not contravene the doctrine of 
 the Church. What is here predicated of incense is not neces- 
 sarily connected with the doctrine of a Sacrifice, but rather, as 
 it would seem to me, with the doctrine of the Presence ; and 
 therefore that part of the charging article, which, omitting all 
 mention of incense, applies the words as to the Mediation of 
 Jesus ascending from the Altar to the doctrine of a Sacrifice, is 
 founded on a construction of the words of the defendant which 
 they do not necessarily bear. This part of the charge, therefore, 
 is, I think, not well laid ; but if it were, it would be only an aggra- 
 vation of the charge with respect to the doctrine of a Sacrifice. 
 
 It appears to me that the articles of charge are in other 
 respects well founded. 
 
 The law on this subject is mainly contained in the 31st Article 
 of Eeligion : — 
 
 " The offering of Christ once made is that perfect redemption, 
 propitia,tion, and satisfaction for all the sins of the whole world, 
 both original and actual ; and there is none other satisfaction 
 for sin but that alone. Wherefore, the sacrifices of masses, in 
 the which it was commonly said that the priest did offer Christ 
 for the quick and the dead, to have remission of pain or gmlt, 
 were blasphemous fables and dangerous deceits." 
 
 With this should be contrasted the Canons of the Council of 
 Trent :— 
 
Sheppardv. Bennett. 301 
 
 Can. I. " Si quis dixerifc, in missa non offerri Deo verum et 
 propi:iutasaci'ificiiiin,'autquod offerri non sit aliud quam nobis 
 Christum ad manducandum dari : anathema sit. 
 
 Can. III. " Si quis dixerit missse sacrificium tantum esse 
 laudis et gratiarum actionis, aut nudam commemorationem 
 sacrificii in cruce peracti, non autem propitiatorium ; vel soli 
 prodesse sumenti; neque pro vivis et defunctis pro peccatis, 
 pcenis, satisfactionibus et aliis necessitatibus offerri debere : 
 anathema sit." ^ 
 
 I have, therefore, to consider, first, "Whether the doctrine of 
 a Sacrifice, as connected with the Eucharist, be in every sense 
 forbidden by the law of the Church ; secondly, Whether, if the 
 Church admit in any sense the doctrine of a Sacrifice, the 
 passages extracted contain such a sense of that doctrine as it 
 does not admit. 
 
 To deal with the first point first : — 
 
 I have been referred to the case of Westerton v. Idddell^ as 
 a judgment of the Privy Council upon this point. It is said 
 that this decision established that the use of the term " Sacri- 
 fice," as applied in any way to the Eucharist, was unlawful. 
 I am unable to take that view of the judgment for various 
 reasons : 
 
 First, The question as to the lawfulness of the term had 
 never been raised in the argument, and a decision upon it was 
 not necessary for the issue in the cause. If this point had been 
 argued, it would have been shown, no doubt, that the authority 
 of Cudworth, principally in the absence of argument, relied 
 upon by the Court, was opposed, not only to the great learning 
 and authority of Mede, of Grabe, of Andrewes, of Laud, of 
 Jackson, and the yet greater authority of one whom Waterland 
 himself called — while dissenting from his opinion — "the incom- 
 parably learned and judicious" Bishop BuU.^ 
 
 Secondly, Since the observations on this point in Liddell v. 
 Westerton, a flood of learning has been poured out upon the 
 subject by the very learned treatises of Dr. Pusey, Mr. Keble, 
 the Bampton Lectures of Bishop Moberly, the Essay of Arch- 
 deacon Churton, and other works ; and when I remember how 
 much effect was ascribed by the Privy Council to a treatise of 
 Dr. Story, which examined with great learning the law as to 
 bills of exchange, and disapproved of former decisions of the 
 Court of Queen's Bench on this subject,* I am sure not less 
 effect would be ascribed by that tribunal to the treatises which 
 
 * Oarumes, etc., Ooncilii Tridentini, Sess. xxii. 
 " Maoris Special Seport. 
 
 3 Waterkmd's Works, vol. vii. p. 343, ed. 1823. 
 
 * AUen V. K^mMe, 6 Moore, P.O. 323. 
 
302 Ecclesiastical judgments. 
 
 have since examined with at least equal learning this difficult 
 subject, then, perhaps, as in the case of the BiUs of Exchange, 
 by comparison, but superficially considered. 
 
 Thirdly, The judgment of the Privy Council did not in 
 fact pronounce even any obiter didimi as to the lawfulness of 
 the use of this term in a particular or metaphorical sense. 
 Even Waterland, whom Archdeacon Churton describes as not 
 impressed with the "higher and deeper sacramental truths," 
 observes : — 
 
 "Nevertheless, the Sacrament of the Eucharist has more 
 particularly obtained the name of SacrifiGe, partly on account 
 of the offerings to church and poor in the ante-oblation, which 
 are peculiar to that Sacrament, and partly on account of the 
 commemorated Sacrifice in the post-oblation. For though 
 baptism commemorates the death and bwrial, and indirectly 
 the grand sacrifice, yet it does not so precisely, formally, and 
 directly represent or commemorate the Sacrifice of the Cross as 
 the Eucharist does." ^ 
 
 There are several other passages, both in his work " A Ke- 
 view of the Doctrine of the Eucharist as laid down in Scripture 
 and Antiquity," and in his charge to the Middlesex clergy, 
 entitled "The Christian Sacrifice Explained, with an Appendix," 
 where he maintains a similar doctrine. Indeed, upon this 
 point — namely, the existence of a sacrifice in some sense, as 
 connected with the Eucharist, — it would be easy to accumu- 
 late authorities from the divines of our Church. But as Water- 
 land may be considered as the most prominent master of this 
 school, I content myself with his authority. 
 
 I am led therefore to the certain conclusion that it is lawful 
 for a clergyman to speak in some sense of the Eucharistic 
 
 1 Waterland' s Works, vol. viii. p. 223, ed. 1823. 
 
 "The value of this treatise of Waterland's will be found to consist in the 
 clear refutation it supplies to the leading Socinian glosses on the doctrine of 
 the Eucharist, reducing it, as it speaks, to a bare memorial of an absent 
 friend. When he comes to deal with higher and deeper sacramental truths, 
 he is no longer persuasive, often no longer trustworthy. He could vindi- 
 cate the testimony of Holy Scripture concerning the Divine Persons, but 
 seems to have seen nothing mysterious in that solemn rite which was given 
 to make men partakers of the Divine nature. It was the tendency of the 
 cold age in which he lived, when even persons of well-regulated lives, and 
 not altogether destitute of piety, could approve of the poor sophism of 
 ' modest Foster,' or one of his admirers. Where mystery begins religion 
 ends. It was Waterland's great misfortune, in other respects, as well as in 
 writing on this great subject, that he was altogether unacquainted with the 
 writings of one who ia perhaps the very first of English divines, the most 
 profound and copious reasoner in divine things, the devout and learned Dr. 
 Thomas Jackson." — Supplement to Waterland's Worhs. Fourteen Letters 
 from Daniel Waterland to Zackary Pearce, etc., hy Edward Churton, M.A., 
 Archdeacon of Cleveland (1868), p. xxxiii. (Preface.) 
 
Sheppard V. Bennett. 303 
 
 sacrifice, and therefore, in some sense, also of the " sacrifice 
 offered by the priest," and " the sacrificial character " of the 
 Holy Table. Much of Mr. Bennett's language would fall under 
 these categories, upon the ordinary principles of construction, 
 by which alone in this criminal suit I must be guided. With 
 respect to any language which may be considered to go beyond 
 this limit, I must see whether it exceeds the liberty which, 
 according to the judgments of the Privy Council, I nmst hold 
 to be accorded to all clergymen in cases where the formularies 
 are not express, imperative, and susceptible of but one inter- 
 pretation. 
 
 Authorities on the use of the term " Sacrifice." 
 
 In Dr. Smith's Dictionary of the Bible will be found a learned 
 article on " Sacrifice ; " it ends with these words : — 
 
 " Such is a brief sketch of the doctrine of Sacrifice. It is 
 seen to have been deeply rooted in men's hearts, and to have 
 been, from the beginning, accepted and sanctioned by God, and 
 made by Him one channel of His Eevelation. In virtue of that 
 sanction it had a value, partly symbolical, partly actual, but in 
 all respects derived from the one True Sacrifice, of which it was 
 the type. It involved the expiatory, the self-dedicatory, and 
 the IJucharistic ideas, each gradually developed and explained, 
 but aU. capable of fuU explanation only by the light reflected 
 back from the Antitype." [Signed "A. B." (Alfred Barry, M. A, 
 Head Master of the Grammar School, Leeds ; late Fellow of 
 Trinity College, Cambridge).] ^ 
 
 The first authority to which I refer is that of Eatramn, 
 quoting St. Augustine : — 
 
 "Ifonne semel immolatus est Christus in seipso; et tamen 
 in Sacramento non solum per omnes Paschae solennitates ; sed 
 omni die populis immolativr ? ^ec utique mentitur qui inter- 
 rogatus, eum respondent immolari. Si enim sacramenta 
 quandam similitudinem rerum earum, quarum sacramenta 
 sunt, non haberunt, omnino sacramenta non essent." ^ 
 
 Again : — 
 
 " Quod semel fecit nunc quotidie frequentat. Semel enim 
 pro peccatis populi se obtulit : celebratur tamen hsec eadeni 
 oblatio singulis, per fideles, diebus, sed in mysterio : ut quod 
 Domiims Jesus Christus, semel se offerens, adimplevit, hoc, in 
 eius passionis memoriam, quotidie geratur per mysteriorum 
 celebrationem. Nee tamen falso dicitur quod in mysteriis 
 iUis, Dominus vel immoletur vel patiatur: quoniam illius 
 mortis atque passionis habent similitudinem, quarum existunt 
 iVol. iii. p. 1083. 2 P. 27. 
 
304 Ecclesiastical Judgments. 
 
 representationes. Unde Dominicum corpus et sanguis Domi- 
 nicus appellantur : quoniam eius sumunt appellationem, cujus 
 existuut sacramentum." ^ 
 
 The next authority is Bishop Eidley, who says : — 
 
 " For as St. Augustine saith, in his 20th book, ' Christ's Flesh 
 and Blood was in the Old Testament promised, by similitudes 
 and signs of their' sacrifices, and was exhibited in deed and in 
 truth upon the cross, but the same is celebrated by a sacra- 
 ment of remembrance upon the altar." ^ 
 
 Again : — 
 
 "And in his book, Be Fide ad Petrum, cap. 19, he saith, 
 that ' in these sacrifices (meaning of the old law) it is figura- 
 tively signified what was then to be given ; but in this sacrifice 
 it is evidently signified, what is already given (understanding 
 in the sacrifice upon the altar) the remembrance and thanks- 
 giving for the flesh which he offered for us upon the cross,' as 
 in the same place evidently there it may appear." * 
 
 Again : — 
 
 "Was Christ (saith St. Augustine) offered any more but 
 once ? And he offered himself. And yet in a Sacrament or 
 representation, not only every solemn feast of Easter, but also 
 every day to the people he is offered. So that he doth not lie 
 that saith, ' He is every day offered.' For if Sacraments had 
 not some similitude or likeness of those things whereof they be 
 sacraments, they could in no wise be iSacraments, and for their 
 similitudes and likeness commonly they have the names of 
 the things whereof they be Sacraments. Therefore, as after a 
 certain manner of speech the Sacrament of Christ's Body is 
 Christ's Body, the Sacrament of Christ's Blood is Christ's Blood, 
 so likewise the Sacrament of Faith is Faith."* 
 
 ip. 31. 
 
 '^ Works, p. 39. Hujua sacrifioii caro et sanguis ante adventum Ohristi 
 per victumarum similitudinem promittebatur, in passione Chriati per ipsam 
 veritatem reddebatur, post adsoensum Christi per sacramentum memorise 
 celebratur. — S. Aug. cont. Faust, lib. xx. c. 98, Op. Ed. Ben. Par. torn 
 viii. col. 348. 
 
 3 Ibid. p. 40. In illis enim carualibus victimis Bguratio fuit oarnis 
 Christi, quam pro peccatis nostris ipse sine peocato fuerat t)blaturus, et 
 sanguinis quem erat effusurus in remissionem peccatorum nostrorum ; in isto 
 autem saorificio gratiarum actio atque commemoratio est camis Christi quam 
 
 pro nobis obtulit et sanguinis quem pro nobis idem deus effudit. Pul^entius 
 
 Edit. Lug. 1633. ° 
 
 * Ihid. pp. 40, 41. " Nbnne semel immolatus est Christus in seipso ? et 
 tamen in Sacramento non solum per omnes Pasehse solemnitates, sed oinni 
 die populis immolatur, nee utique mentitur qui interrogatus eum r'esponderit 
 jmmolari. Si enim Sacramenta quandam similitudinem earum rerum quarum 
 sacramenta sunt, non haberent, omnino saoramenta non essent ■ ex hac 
 autem similitudine plerumque etiam ipsarum rerum nomina acoipiunt. 
 Sicut ergo, secundum quemdam modum, sacramentum corporis Christi 
 
Sheppard v. Bennett. 305 
 
 Again : — 
 
 " These Scriptures do persuade me to believe that there is no 
 other obktion of Christ (albeit I am not ignorant there are 
 many sacrifices) but that which was once made upon the 
 Cross. 
 
 " The testimonies of the antient fathers which confirm the 
 same are out of Augustine ad Bonifac, Epist. 23. Again, in 
 his Badk of Questions, in the 61st Question. Also in his book 
 against Faustus the Manichee, Book xx. chap. 21. And in 
 the same book against the said Faustus, chap. 18, thus he 
 writeth, — ' Now the Christians keep a memorial of the sacrifice 
 past with a holy oblation and participation of the Body and 
 Blood of Christ.' Fulgentius in his book De Fide calleth the 
 same oblation a coinmemoration." ^ 
 
 Thorndike says : — 
 
 "But if it be manifest that by the Sacrament of the 
 Eucharist God pretends to tender us the communion of th'3 
 Sacrifice of Christ upon the Cross, then there is a/nother 
 presence of the Body and Blood of our^ Lord in the Sacra- 
 ment, leside that spiritual presence in the soul which that 
 living faith effecteth without the Sacrament as well as in the 
 receiving of it. 
 
 " Which kind of presence, you may, if you please, call the 
 representation of the Sacrifice of Christ ; so as you understand 
 the word 'representation' to signify not the figuring or 
 resembling of that which is only signified, but as it signifies 
 in the Eoman laws, when a man is said ' reprcesenfare pecu- 
 niam,' .who pays ready money ; deriving the signification of 
 it a re prcesenti, not from the preposition re ; which will 
 import not the presenting of that again to a man's senses 
 which is once past, but the tendering of that to a man's 
 possession which is tendered him on the place.^ 
 
 Bishop Brevint, on the question of the Sacrament being a 
 Commemorative Sacrifice, says : — 
 
 "There never was on earth a true religion without some 
 kind of sacrifices. . . . Nevertheless this Sacrifice, which by 
 a real oblation was not to be offered more than once, is by 
 an Eucharistical and devout commemoration to be offered up 
 every day. That is what the Apostle calls ' to set forth the . 
 
 corpus Christi est, sacramentum sanguinis Christi sanguis Christi est ; ita 
 saeramentum fidei fides est." — S. Aug. Epist. xxiii., Op. Ed. Ben. Par. vol. 
 ii. col. 267, F. 
 
 1 Ridley's Works, p. 178. TJnde jam Christiani peracti ejusdem sacrifidi 
 memoriam celebrant sacrosancta oblatione et participatione corporis et 
 sanguinis Christi. — S. Aug. ibid. c. 18. 
 
 2 Iiaws of the Church, Book iii. chap. ii. p. 10. 
 
 U 
 
3o6 Ecclesiastical Jtidgments, 
 
 death of the Lord ;' to set it forth, I say, as well before the 
 eyes of GOD His Father, as before the eyes of all men ; and 
 what St. Austin did explain when he said that the holy flesh 
 of Jesus Christ was offered up in three manners, by pre- 
 figuring sacrifices under the law before His coming into the 
 world ; in real deed upon the cross ; and by a Commemora- 
 tive Sacrament after He is ascended into Heaven. All comes 
 to this; first, that the Sacrifice, as it is itself and in itself, 
 can never be reiterated; yet by way of devout celebration 
 and remembrance, it may nevertheless be reiterated every- 
 day. Secondly, that whereas the Holy Eucharist is by itself 
 a Sacrament, wherein GOD offers unto all men the blessings 
 merited by the oblation of his Son, it likewise becomes by our 
 remembrance a kind of Sacrifice also ; whereby, to obtain at 
 His hands the same blessings, we present and expose before 
 His eyes that same holy and precious oblation once offered."^ . . . 
 
 Bishop Beveridge says : — 
 
 " But now, under the Gospel, other kinds of sacrifices are 
 required. We are now commanded to ' present our bodies a 
 living sacrifice ;' not to kill them, but to offer them up 
 alive as a living sacrifice, dedicating ourselves wholly to the 
 service of GOD. Hence all manner of good, pious, and charit- 
 able works that are done in obedience to GOD, and for his 
 service and honour, are now called 'sacrifices,' . . . particu- 
 larly our open or public praying to him, and to him alone, 
 for all the good things that we want. For hereby we plainly 
 discover that we believe him to be the author and giver of 
 ' every good and perfect gift.' . . . And therefore under the 
 law itself their public prayers always went along with their 
 daily sacrifices, both morning and evening. ' Let my prayer,' 
 saith David, 'be set before Thee as incense, and the lifting 
 up of my hands as an evening sacrifice.' Especially con- 
 sidering that prayer always was and ought to be accompanied 
 with praise and thanksgiving to GOD, which is so properly a 
 sacrifice that is often called by that name. ' I wiU offer,' 
 saith David, 'to Thee the sacrifice of thanksgiving' (Ps. 
 cxvi. 17); 'And let them sacrifice the sacrifices of thanks- 
 giving, and declare his works with rejoicing or singing ' ("Ps. 
 cvii. 22). But the Sacrifice that is most proper and peculiar 
 to the Gospel is the Sacrament of the Lord's Supper, insti- 
 tuted by our Lord Himself, to succeed all the bloody sacrifices 
 in the Mosaic Law. For though we cannot say, as some do, 
 that this is such a Sacrifice whereby Christ is again offered up 
 to GOD both for the living and the dead," 
 
 1 Brevint, Christian Sacrament and Sacrifice. Cited in the EuchartsHca 
 published by the Bishop of Oxford, 1861, p. 179. 
 
Sheppardv. Bennett. 307 
 
 The words which follow are important, 
 " yd it may as properly be called a Sacrifice as any' that was 
 ever offered, except that which was offered hy Christ Himself ; 
 for His, indeed, was the only true expiatory Sacrifice that was 
 ever offered. Those under the law were only types of His 
 and were called sacrifices simply upon that account, because 
 they typified and represented that which he was to offer for 
 the sins of the world ; and therefore the Sacrament of 
 Christ's Body and Blood may as well be called by that name 
 as they were. They were typical, and this is a commemora- 
 tive sacrifice."^ 
 
 Field, Dean of Gloucester in ISO^, says, in his History of the 
 Church, as follows : — 
 
 " We must observe th3,t by the name of Sacrifice, gift, or 
 present, first the oblation of the people is meant, that con- 
 sisteth in bread and wine, brought and set upon the Lord's 
 table. In which again two things are to be considered, the 
 outward action, and that which is signified thereby ; to wit, 
 the people's dedicating themselves and all that they have to 
 God by faith and devotion, and offering to him the sacrifice of 
 praise. In this sense is the word Sacrifice used in the former 
 part of the canon, as I have already showed. In respect of 
 this is that pjayer poured out to God, that he will be mindful 
 of his servants that do offer unto him this sacrifice of praise, 
 that is, these outward things in acknowledgment that all is 
 of him, that they had perished if he had not sent his Son to 
 redeem them, that unless they eat the Flesh, and drink the 
 Blood of Christ, they have no life ; that he hath instituted 
 Holy Sacraments of his Body and Blood, under the forms of 
 Iread and wine, in which he will not only represent, but 
 exhibit the same unto all such as hunger and thirst after 
 righteousness ; and therefore they desire him so to accept and 
 sanctify these their oblations- of bread and wine, which m this 
 sort they offer unto him, that they may become unto them 
 the Body and Blood of Christ, that so partaking in them 
 they may be made partakers o^ Christ, and all the benefits of 
 redemption' and salvation that he hath wrought. Secondly, 
 by the name of Sacrifice is understood the Sacrifice of 
 Christ's Body; wherein we must first consider the thing 
 offered, and secondly, the manner of offering. The thing 
 that is offered is the Body of Christ, which is an eternal and 
 perpetual propitiatory Sacrifice, in that it was once offered by 
 death upon the Cross, and hath an everlasting and never- 
 failing force and efficacy. Touching the manner of offering 
 Christ's Body and Blbod, we must consider that there is a 
 ' Bishop Beveridge, cited in the Mucharistica, p. 202, 
 
SoS Ecclesiastical JudgnieMs. 
 
 double offering of a thing to God. First, so as men are wont 
 to do that give something to God out of that they possess, 
 professing that they will, no longer he owners of it, but that 
 it shall be his, and serve for such uses and employments as he 
 shall convert it to. Secondly, a man may be said to offer a 
 thing unto God, in that he bringeth it to his presence, 
 setteth it before his eyes, and offereth it to his view, to 
 incline him to do something by "the sight of it and respect 
 had to it. In this sort Christ offereth himself and his Body 
 once, crucified daily in Heaven, and so intercedeth for us ; 
 not as giving it in the nature of a gift or present, for he gave, 
 himself to God once, to be holy unto him for ever ; nor in 
 the, nature of a Sacrifice; for he died once for sin, and rose 
 again never to die any more ; but in that he setteth it before 
 the eyes of God his Father, representing it unto him, and so 
 offering it to his view to obtain grace and mercy for us. 
 And in this sort we also offer him daily on the altar, in that 
 commemorating his death, and lively representing his bitter 
 passions endured in his body upon the Cross, we offer him 
 that was once crucified and sacrificed for us on the Cross, and 
 all his sufferings, to the view and gracious consideration of 
 the Almighty, earnestly desiring, and assuredly hoping, that 
 he will incline to pity us, and show mercy unto us, for this 
 his dearest Son's sake, who in our na,ture for us, to satisfy 
 his displeasure and to procure us acceptation, endured such 
 and so grievous things. This kind of offering or sacrificing 
 Christ, commemoratively, is twofold, inward and outward; 
 outward as the taking, breaking, and distributing the mys- 
 tical bread, and pouring out the cup of blessing, which is the 
 Communion of the Blood of Christ ; the inward consisteth in 
 the faith and devotion of the Church and people of God, so 
 commemorating the death and passion of Christ their cruci- 
 fied Saviour, and representing and setting it before the eyes 
 of the Almighty, that they fly unto it as their only stay and 
 refuge, and beseech him to be merciful unto them for his 
 sake that endured all these thifcgs, to satisfy Ms wrath, and 
 work their peace and good." ^ 
 Again, in chap. xix. : — 
 
 " Of the, Real Sacrifice of Ohrist's Body on the Altar, as a 
 'propitiatory Sacrifice for the quick and the dead. 
 
 "Touching the real sacrificing of Christ's Body on the Altar, 
 the Church never taught any such thing as. the Eomanists now 
 teach, as appeareth by these testimonies following : — 
 
 1 Field, Of the Church, vol. ii. pp^ 60-62., 
 
Sheppard v. Bennett'. ■ 309 
 
 "'Although,' saith Biel,^ 'Christ was once offered when 
 He appeared in our Flesh, He is offered, notwithstanding, 
 daily, hidden under the veils of bread and wine, not touching 
 any of those things which import punishment or suffering 
 (for Christ is not daily wounded ; He suffereth not ; He dieth 
 not) ; but for two other causes the consecration and receiving 
 of the Holy Eucharist may be named a Sacrifice and obla- 
 tion • first, because it is a representation and memorial of the 
 true Sacrifice and holy oblation made on the Altar of the 
 Cross ; secondly, because it maketh us partakers of the effects 
 of the same. Now, the resemblances of things, as Augustine 
 . noteth, writing to Simplicianus, are called by the names of 
 those things whereof they are resemblances, as we are wont 
 to say when we behold a painted table or wall. This is Cicero, 
 this Sallustius. Whereof, seeing the celebration of the Sacri- 
 fice is a lively resemblance of the passion of Christ, which is 
 the true sacrificing of Him, it may rightly be named the 
 sacrificing of Him.' 
 
 " ' Peter Lombard, Thomas, and the other schoolmen,' saith 
 Bellarmine,^ ' were not careful of that which is now in question 
 touching the daily renewed real sacrificing of Christ, but only 
 sought to "show how the Sacrifice of the Mass may be caUed an 
 offering of Christ, that is, a slaying of Him ; and therefore, 
 proposing the question, whether the Eucharist be a Sacrifice, 
 they answer, for the most part, that it may be said to be an 
 offering or Sacrifice, because it hath a resemblance of the true 
 and real offering which was on the Altar of the Cross, and 
 because it communicateth unto us the effects of the true and 
 real kilUng of Christ.' "» 
 
 Again : — 
 
 " In that therefore the Church doth offer the true Body and 
 ' Blood of Christ to God the Father, it is merely a representative 
 Sacrifice, and aU that is done is but the commemorating and 
 representing of that Sacrifice which was once offered on the 
 Cross, but in that it dedicateth itself, which is the mystical 
 Body of Christ, unto God, it is a true, but a spiritual Sacrifice, 
 ■ that is, an eucharistical Sacrifice of praise, thanksgiving, and of 
 obedience due unto God. Christ, therefore, is offered and sacri- 
 ficed on the Altar but sacramentaUy and mystically ; in that 
 in the Sacrament there is a commemoration and remembrance 
 of that which was once done. Christ is not often slain, which 
 once to think were abominable ; but that which was once done 
 
 ^ Expositio Missm, Lect. 85, fol. 183, h, Lugd., 1514. 
 
 2 Bellarm. de Euchar., lib. v. (sive de Missa, lib. 1), cap. 15 (torn. iii. 
 p. 403. Yen. l'721K 
 
 3 Fkld, Of the Churcli, vol. ii. pp. 370-1. 
 
3 10 Ecclesiastical Judgments. 
 
 is represented, that we might not forget the benefit bestowed 
 on us, but rather be so stirred up and moved by this Sacrament, 
 as if we saw the Lord Jesus hanging upon the Cross. The 
 passion of the Lord, saith Cyprian, is the Sacrifice that we offer 
 to. God, that is, that we offer to the view of God, and represent 
 unto Him. Neither is it to be marvelled at that we offer the 
 true Body of Christ to revive the memory of the former Sacri- 
 fice, and to represent it unto God, seeing the Son of God was 
 given unto us that we might oppose Him to the wrath of God 
 as a reconciler, and that, distrusting our own strength, we might 
 represent to the Father this most potent Sacrifice."'' 
 
 Cranmer cites Cyprian and St. Augustine on the Sacrifice, 
 without disapprobation. He says : — 
 
 " For the cause why Cyprian and other old authors say that 
 Christ made an oblation and offering of Himself in His Last 
 Supper, was not that He declared there that He would suffer 
 death, for that He had declared many times before ; but the 
 cause was, that there He ordained a perpetual memory of His 
 death, which He would all faithful Christian people to observe 
 from time to time, remembering His death, with thanks for His 
 benefits, until His coming again. And, therefore, the memorial 
 of the true Sacrifice made upon the Cross, as St. Augustine 
 saith, is called hy the name of a Sacrifice, as a thing that signi- 
 fieth another thing is called by the name of the thing which it 
 signifieth, although in very deed it be not the same. 
 
 " And the long discourse that you make of Christ's true pre- 
 sence, and of the true eating of Him, and of His true assisting 
 us in our doing His commandment, aU these be true. For 
 Christ's Flesh and Blood be in the Sacrament truly present . 
 but spiritually and sacramentally, not carnally and corporally. 
 And, as He is truly present, so is He truly eaten and drunken, 
 and assisteth us ; and He is the same to us that He was to 
 them that saw Him with their bodily eyes.^ 
 
 " How is it possible to set out more plainly the diversity of 
 the true Sacrifice of Christ, made upon the Altar of the Cross 
 (which was the propitiation of sin), from the Sacrifice made in 
 the Sacrament, than Lombardus hath done in this place ? For 
 the one he calleth the true Sacrifice, the other he calleth but a 
 memorial or representation thereof; likening the Sacrifice made 
 in the Lord's Supper to a year's mind or anniversary, whereat 
 is made a memorial of the death of a person, and yet it is not 
 His death in deed. So in the Lord's Supper, according to His 
 commandment, we remember His death, preaching, and com- 
 
 1 Field, OftU Church, vol. ii. p. 73. 
 
 ^ Cranrmr's Worhs, vol. iii. pp. 160-1. — Answer to Gardyner. The Pre* 
 sence of Christ. 
 
SheppardM. Bennett. .311 
 
 manding the same until His return again at the last day. And, 
 although it be one Christ that died for us, and whose death 
 we remember, yet it is not one Sacrifice that He made of Him- 
 self upon the Cross and that we make of Him upon the Altar 
 or Table. Por His Sacrifice was the redemption of the world ; 
 ours is not so. His was death ; ours is but a remembrance 
 thereof. His was the taking away the sins of the world ■ ours 
 is a praising and thanking for the same. And, therefore. His 
 was satisfactory ; ours is gratulatory. It is but one Christ that 
 was offered then and is offered now, and yet the offerings be 
 diverse ; His was the thing, and ours is the figure. His was 
 the original, and ours is, as it were, a platform.^ 
 
 " And now I have made it evident that Petrus Lombardus 
 defaeeth in no point my saying of the Sacrifice, but confirmeth 
 fully my doctrine, as well of the Sacrifice propitiatory made by 
 Christ Himself only, as of the Sacrifice commemorative and 
 gratulatory made by the priests and people.^ 
 
 " Hipinus saith that the old Fathers called the Supper of our 
 Lord a Sacrifice propitiatory. I will not believe that Hipinus 
 so said, untn you appoint me both the book and place where 
 he so saith. Por the effect of his book is clean contrary, which 
 he wrote to reprove the propitiatory Sacrifice, which the papists 
 feign to be in the Mass. Thus indeed Hipinus writeth in one 
 place: — 'Veteres Eucharistiam propter corporis et sanguinis 
 Christi praesentiam, primo vocaverunt sacrificium, deinde 
 propter oblationes et munera quse in ipsa Eucharistia Deo 
 consecrabantur et conferebantur, ad sacra ministeria, et ad 
 necessitatem credentium.' In which words Hipinus declareth 
 that the old Pathers called the Supper of our Lord a Sacrifice 
 for two considerations, — one was for the presence of Christ's 
 Plesh and Blood, the other was for the offering which the 
 people gave there of their devotion, to the holy ministration 
 and relief of the poor. But Hipinus speaketh here not one 
 word of corporal presence, nor of propitiatory Sacrifice, but 
 generally of presence and Sacrifice, which maketh nothing for 
 your purpose, nor against me, that grant both a Presence and a 
 Sacrifice. But when you shall show me the places where 
 Hipinus saith that the old Pathers called the Lord's Supper a 
 propitiatory Sacrifice, I shall trust you the better and him the 
 worse." ^ 
 
 Archbishop Sharp says: — 
 
 "Now to the same use and purpose (say we) serves our 
 Sacrament of the LmdJs Supp&r ; or, as it was called by the 
 
 * Cranmer'a Works, vol. iii. pp. 538-9. 
 
 2 Ibid. p. 540. 
 
 3 Ibid. pp. 551-2.— The Sacrifice of Christ. 
 
312 Ecclesiastical judgments. 
 
 Ancients, the Christian Sacrifice. Not that we pretend in our 
 Communions to offer up the real Body and Blood of Christ in 
 Sacrifice to God, as the Papists do ; for that (as the Apostle 
 tells us) was once done by Himself upon the Cross, and by that 
 one offering He hath for ever perfected all them thai are sancti- 
 fied; so that there is no need of any such offering any more. 
 But we commemorate that Sacrifice which Christ has on this 
 day made for us, and we thank God for it ; and we heartily 
 beseech Him that He would accept of it on our behalf, and 
 that it may make atonement for all our sins. And we likewise 
 feed upon it (as the Jews did upon their Sacrifices) ; that is to 
 say, by eating of that bread which He made to be His Body, 
 and drinking of that cup which He made to be His Blood. 
 Now, in doing of this, we may be truly said both to offer up a 
 Sacrifice to God, and likewise to keep a, feast upon this Sacrifice. 
 We offer up by Commemoration and Thanksgiving and hearty 
 Prayer, that Sacrifice that was once offered by Jesus Christ at 
 Jerusalem, near seventeen hundred years ago, for the Salvation 
 of all mankind ; and we partake both of the Body and Blood of 
 that His Sacrifice, by partaking of the Bread and Wine that 
 He has consecrated not only to be the symbols and signs of 
 them, but to convey the real Benefits of His Passion and Sacri- 
 fice to all Believers. So that we may be truly said to feed at 
 God's table whenever we receive the Sacrament."^ 
 
 " To come to the other Sacrament (says Bishop Bull), the 
 Eucharist, or Holy Supper ; this is the most sacred and mys- 
 terious rite, the apex, the top and perfection of Christian 
 worship, as the ancients term it, and therefore it ought to be 
 performed with the greatest reverence and solemnity in every 
 punctilio of it, according to the direction of our Church in her 
 rubric to the Communion Office."^ 
 
 This great luminary of our Church treated the question of 
 Sacrifice, in his answer to Bossuet, distinguishing between the 
 Eoman Sacrifice of the Mass and the Catholic Sacrifice of the 
 Holy Eucharist. 
 
 "But alas!" (he says) "these superadded Articles of the 
 Trent Creed are so far from being certain truths, that they are 
 most of them manifest untruths, yea, gross and dangerous 
 errors. To make this appear, 1 shall not refuse the pains of 
 examining some of the chief of them. 
 
 " The first Article I shall take notice of is this : ' I profess 
 that in the mass is offered to God a true, proper, and propitia- 
 tory Sacrifice for the living and the dead; and that in the 
 most Holy Sacrament of the Eucharist there is truly, and 
 
 1 Archbishop Sharps Sermons, vol. ii. p. 153 (Sixth Sermon). 
 
 2 Bishop Bull, vol. ii. p. 23.— Discourse on the Pastoral Office. 
 
Sheppardv. Bennett. 313 
 
 really and substantially, the Body and Blood, together with the 
 Soul and Divinity of our Lord Jesus Christ ; and that there is 
 wrought a conversion of the whole substance of the bread into 
 the Body and of the whole substance of the wine into the 
 Blood, which conversion the Catholic Church calls transub- 
 stantiation.' "Where this proposition (' that in the mass there 
 is offered to God a true, proper, and propitiatory Sacrifice for 
 the living and the dead '), having that other of the ' substantial 
 presence of the Body and Blood of Christ in the Eucharist ' 
 immediately annexed to it, the meaning of it must necessarily 
 be this, that in the Eucharist the very Body and Blood of 
 Christ are again offered up to God as a propitiatory Sacrifice 
 for the sins of men. Which is an impious proposition, deroga- 
 tory to the one full satisfaction of Christ made by his death on 
 the Cross, and contrary to express Scripture (Heb. vii. 27, and 
 ix. 12, 25, 26, 28, and x. 12, 14). It is true the Eucharist is 
 frequently called by the ancient Fathers m-poa-^opa, Ovala, an 
 Oblation, a Sacrifice. But it is to be remembered, that they 
 say also it is OvaLa XoyiKi] koX avaifiaKTOf, a reasonable Sacrifice, 
 a Sacrifice without blood, which, how can it be said to be, if 
 therein the very blood of Christ was offered up to God ? 
 
 " They held the' Eucharist to be a commemorative Sacrifice, 
 and so do we. This is the constant language of the ancient 
 liturgies, ' We offer by way of commemoration ;' according to 
 our Saviour's words when he ordained this holy rite. Do this in 
 commemoi'ation of me. 
 
 " In the Eucharist then Christ is offered, not hyppstatically, 
 as the Trent Fathers have determined, for so he was but once 
 offered, but commemoratively only; and this commemoration 
 is made to God the Father, and is not a bare remembering or 
 putting ourselves in mind of him. For every Sacrifice is di- 
 rected to God, and the oblation therein made, whatsoever it be, 
 hath him for its object, and not man. In the Holy Eucharist, 
 therefore, we set before God the bread and wine, ' as figures or 
 images of the precious Blood of Christ shed for us, and of his 
 precious Body' (they are the very words of the Clementine 
 Liturgy), and plead to God the merit of his Son's Sacrifice once 
 offered on the Cross for us sinners, and in this Sacrament repre- 
 sented, beseeching him for the sake thereof to bestow his 
 heavenly blessings on us. 
 
 " To conclude this matter. The ancients held the oblation 
 of the Eucharist to be answerable in some respects to the legal 
 Sacrifices, that is, they believed that our blessed Saviour 
 ordained the Sacrament of the Eucharist as a rite of prayer 
 and praise to God, instead of the manifold and bloody Sacrifices 
 of the law. That the legal Sacrifices were rites to invocate God 
 
314 Ecclesiastical Judgments. 
 
 by is evident from many texts of Scripture ; see especially 1 
 Sam. vii. 9, and xiii. 12, Ezra vi. 10, Prov. xv. 8 ; and that they 
 were also rites for praising and blessing God for his mercies 
 appears from 2 Chron. xxix. 27. Instead, therefore, of slaying 
 of beasts and burning of incense, whereby they praised God 
 and called upon his name under the Old Testament, the Fathers, 
 I say, believed our Saviour appointed this Sacrament of bread 
 and wine as a rite whereby to giv% thanks and make supplica- 
 tions to his Father in his name. This you may see fully cleared 
 and proved by the learned Mr. Mede, in his treatise entitled 
 TM Christian Sacrifice. The Eucharistical Sacrifice thus ex- 
 plained is indeed \oyiKr) Bvaia, a reasonable Sacrifice, widely 
 different from the monstrous Sacrifice of the mass taught in the 
 Church of Eome. . . . 
 
 " The ancient doctors, yea, and Liturgies of the Church, afftrm 
 the Eucharist to be incruentum sacrificiitm, ' a sacrifice without 
 blood,' which it cannot be said to be if the very blood of Christ 
 were therein present and offered up to God."^ 
 
 Bishop Wilson on this subject says : — 
 
 " Lord's Supper. 
 
 "Private devotions at the Altar, taken out of the most 
 ancient offices of the Church, to render our present Communion 
 service more agreeable to apostolic usage, and more acceptable 
 (I hope) to God, and beneficial to all that partake thereof 
 Until it shall please God to put it into the hearts and power 
 of such as ought to do it, and restore to us the first service of 
 Edw. VI., or such as shall be more conformable to the appoint- 
 ment of Christ and his Apostles, and their successors. Which 
 may the Divine Majesty vouchsafe to grant, for his sake who 
 first ordained this holy Sacrament. Amen." 
 
 " Before Service begins, kneeling at the Altar. 
 
 " May it please Thee, God, who hast called us to this min- 
 istry, to make us worthy to offer unto Thee this Sacrifice iov 
 our own sins, and for the sins of Thy people.^ 
 
 " Upon placing the Bread and Wine upon the Altar. 
 "Vouchsafe to receive these Thy creatures from the hands 
 of us sinners, thou self-sufBlcient God ! who remembered us 
 when we were without hope, and without God in the world, 
 and hath made us Thy brethren and heirs of Thy kingdom. 
 May I atone Thee,0 God, by offering tq Thee the pure and un- 
 
 1 Bishop BvU, vol. ii. pp. 250-254. — The Corruptions of the Church of Borne, 
 in answer to the Bishop of Meaua^s Queries. 
 
 2 Sacra Frivata, p. 104, Ox. ed. 1854. 
 
Sheppardv. Bennett. 315 
 
 "bloody Saerifice which Thou hast ordained hy Jesus Christ. 
 Amen. 
 
 " But how should I dare to offer Thee this Sacrifice, if I had 
 not first offered myself a sacrifice to Thee, my God ? 
 
 , " May I never offer the prayers of the faithful with polluted 
 lips, nor distribute the bread of life with unclean hands. 
 
 " I acknowledge and receive Thee, Jesus, as sent of God, 
 a prophet, to make His will known to us, and His merciful pur- 
 pose to save us; as our Priest who offered Himself an acceptable 
 Sacrifice for us to satisfy the Divine Justice, and to make inter- 
 cession for us ; and as our king to rule and defend us against 
 our enemies."^ 
 
 " Immediately after the Prayer of Consecration. 
 
 " We offer unto Thee, our King and our God, this bread and 
 this cup. 
 
 " We give Thee thanks for these and for all Thy mercies ; 
 beseeching Thee to send down Thy Holy Spirit upon this Sacri- 
 fice, that He may make this bread the Body of Thy Christ, and 
 this cup the Blood of Thy Christ ; and that all we, who are 
 partakers thereof, may thereby obtain remission of our sins, and 
 all other benefits of His passion."^ 
 
 Saint Cyprian had written in one of his letters the following 
 passage on the Sacrifice in the Eucharist : — 
 
 " Si Jesus . Christus, Dominus et Deus noster, ipse est sum- 
 mus sacerdos Dei Patris, et sacrificium Patri seipsum primus 
 obtulit, et hoc fieri in sui commemorationem praecepit ; utique 
 ille sacerdos vice Christi vere fungitur, qui id, quod Christus 
 fecit, imitatur, et sacrificium verum et plenum tunc offert in 
 Ecclesia Deo Patri, si sic ineipiat offerre secundum quod ipsum 
 Christum videat obtulisse."^ 
 
 And Waterland thus deals with this passage : — 
 
 " I shall now pass on to Cyprian, to show how this matter 
 stood, upon the change of language introduced in his time. We 
 shall find him plainly speaking of the offering Christ's Body 
 and Blood. This must be understood of an oblation subsequent 
 to consecration, not in order to it ; for Christ's Body and Blood, 
 whether real or symbolical, are holy, and could want no sancti- 
 fication or consecration. He further seems to speak of offering 
 Christ himself, in this Sacrament, unto God, but under the sym- 
 bols of consecrated Bread and Wine. That may be his meaning, 
 and the meaning is good, when rightly apprehended ; for there 
 was nothing new in it but the language or the manner of ex- 
 pression. What the elder Fathers could have called, and did 
 
 1 Sacra Privata, p. 104, Ox, ed. 1854. " Ibid. p. 106. 
 
 5 Cyprian, Ep. Ixiii. p. 609, cited in Waterkmd's Works, vol vii. p. 375. 
 
3 1 6 Ecclesiastical yud^meMs. 
 
 call, the commemorating of Christ, or the commemorating His 
 passion, His £ody broken, or Blood shed, that Cyprian calls the 
 offering of Christ, or of His passion, etc., becaiuse, in a large 
 sense, even commemorating is offering, as it is presenting the 
 thing or the person so commemorated in the way of prayer and 
 thanksgiving before God. I do not invent this account for the 
 clearing a difficulty, but I take it from Cyprian himself, whose 
 own words show that the Eucharistical commemoration was all 
 the while in his mind, and that was all he meant by the obla- 
 tion which he there speaks of, using a new name for an old 
 thing. I shall show in due time that the later Fathers, who 
 followed Cyprian's language in this particular, and who ad- 
 mitted this third oblation (as some have called it) as well as 
 he, yet when they came to explain, interpreted it to mean 
 'no more than a solemn commemoration, such as I have men- 
 tioned." i 
 
 " This is not the place to examine critically what the ancients 
 meant by the Sacrifice or Sacrifices of the Eucharist ; it will 
 deserve a distinct chapter in another part of this work. But, 
 as I before observed of oblation, that, anciently, it was under- 
 stood sometimes of the lay offering, the same I observe now of 
 Sacrifice ; and it is plain from Cyprian. Besides that notion of 
 Sacrifice, there was another, and a principal one, which was 
 conceived to go along with the Eucharistical service, and that 
 was, the notion of spiritual Sacrifice, consisting of many par- 
 ticulars, as shall be shown hereafter; and it was on the account 
 of one, or both, that the Eucharist had the name of Sacrifice 
 for the two first centuries. But by the middle of the third 
 •century, if not sooner, it began to be called a Sacrifice, on ac- 
 count of the grand Sacrifice represented and commemorated in 
 it ; the sign, as such, now adopting the name of the thing signi- 
 fied. In short, the memorial ait length came to be called a Sacri- 
 fice; as well as an oblation : and it had a double claim to be so 
 called ; partly as it was in itself a spiritual ^service, or Sacrifice, 
 and partly as it was a representation and commemoration of 
 the high tremendous SacrifiM of Christ God-man. This last 
 view of it, being of all the most awful and most endearing, 
 came by degrees to be the most prevailing acceptation of the 
 Christian Sacrifice, as held forth in the Eucharist. But those 
 who styled the Eucharist a Sacrifice on that account, took care, 
 ,as often as need was, to explain it off to a memorial of a Sacri- 
 'fice rather than a strict or proper Sacrifice, in that precise 
 view. Cyprian, I think, is the first who plainly and directly 
 styles the Eucharist a Sacrifice in the commemorative view, and 
 as representing the grand Sacrifice. Not that there was any- 
 1 Waterland's Works, vol. vii. p. 50. 
 
Sheppard V. Bennett. 317- 
 
 tliing lim in the doctriins, but there was a ii&w application of an 
 old name, which had at the first been brought in upon other 
 ac'counts."^ 
 
 Hey, in Lis Lectures on the Articles, says : — 
 
 " It may be objected that the Gospel Institutions are not 
 to be made complicated and abstruse unnecessarily. Is not 
 the ' simplicity that is in Christ' best observed by taking the 
 Sacrament of the Lord's Supper as a mere commemoration ? 
 Bishop Cleaver answers this objection in his first discourse ; 
 and Dr. Balguy answers it, in effect, in his Seventh Charge. 
 If you make the Lord's ,Supper, as it was instituted by Christ, 
 a mere commemoration, you make it a strange and unintelli- 
 gible rite; for what can be more strange than eating the 
 flesh and drinking the blood of one who is to be regarded only 
 as an instructor and benefactor ? If we had been ordered in 
 the Sacrament to kill an animal and shed its blood ; or only 
 to break bread, and pour out wine ; the rite would be intelli- 
 gible, as a simple memorial. It would have represented 
 Christ's death, merely as a death ; but it would have been a 
 different rite from ours. Now conceive it as a feast on a Sacri- 
 fice, and all is easy and simple. We, indeed, are not in the 
 habit of sacrificing ; but what is that ? Who could not under- 
 stand that, when Sacrifices were in use, part of the Victim 
 was served up at a religious feast ; and all who partook of the 
 material feast were understood to partake of the spiritual 
 benefits of the Sacrifice. Christ was our Victim ; on his body 
 we do not feast literally, because it is in heaven ; but he ap- 
 pointed bread to represent it. On that we can feast, and so 
 partake of his body ; that is, feast upon the Victim. Such 
 bread is ' the Bread of Life,' because, by his own appointment, 
 it represents his Flesh. This appears to me plain and 
 simple." ^ 
 
 I will now advert to the language of Mr. Keble, in his work 
 on Eucharistic Adoration, published in 1857. 
 
 " The true oblation " (he says) " in the Christian Sacrifice is 
 in no sense earthy or material. It is altogether spiritual; 
 the chief of those spiritual Sacrifices in the offering whereof 
 consists the common priesthood of us all. The Eucharist 
 comprehends them all in one ; and has, besides, peculiar to 
 itself, that which alone causes any of them to be acceptable. 
 For the true oblation in the Eucharist is not the bread and 
 wine; that is only as the vessel which contains or the gar- 
 ment which veils it ; but that which our Lord by the hands 
 of the priest offers to His Father in the Holy Eucharist is 
 
 ' WaterlancHs Works, vol. viL pp. 37, 38. 
 2 Sey's Lectures on Divinity, vol. iv. p. 348. 
 
3 1 8 Ecclesiastical judgments. 
 
 His own Body and Blood, the very same which He offers and 
 presents to Him, with which, as St. Paul says. He appears 
 before Him now, night and day continually in heaven, in 
 commemoration of His having offered it once for aU in His 
 passion and death on the Cross. It is the one great reality, 
 summing up in itself all the memorial Sacrifices of old. In 
 the Christian scheme, it is ' proportionable ' to them ; and of 
 course it stands in the same rank 'and relation to them, as the 
 other antitypes in the Gospel to their several types and 
 shadows in the law. , 
 
 " The memorial, therefore, made of Christ before the Father 
 in Holy Communion is as much more real, more glorious, 
 more blessed, than all the memorial Sacrifices of old ; than the 
 yearly paschal lamb, for instance, as the one atoning Sacri- 
 fice on the Cross surpassed the lamb slain at the first Pass- 
 over ; as the descent of the Holy Spirit at Pentecost surpassed 
 the fire on the burnt-offering ; as Christ is more glorious than 
 Aaron or Melchisedec ; hgaven, with the tree of life and the 
 waters of life, more blessed than the land flowing with milk 
 and honey ; the new Jerusalem more true and real than the 
 old; he who thinks most highly, and therefore least inade- 
 quately, of that holy and divine Sacrament, cannot well say, 
 or conceive anything of it higher than this, that it is, in the 
 strict sense of the word, ' that which the Gospel hath ^propor- 
 tionahle to ancient Sacrifices.' " ^ 
 
 And in his sermons preached before the University of Oxford 
 in 1848, he says : — 
 
 " And first, for doctrine. Have we not indeed, in the words 
 of the text alone, the substance of the Eucharistical office, in 
 both its parts — both in its sacrificial and its sacramental char- 
 acter ? ' I sanctify myself '■ — there is the Sacrifice, that they 
 also may be sanctified ' through the truth' — there is the Sacra- 
 ment. Are not these plainly the guiding, the prevailing 
 thoughts, which He, our great teacher and exemplar, would 
 have us to associate with the services of His sacred altar? 
 
 " For thus it is : — After ordaining the Eucharist for a re- 
 membrance or memorial of himself, having also by solemn 
 prayer commended to His Father his Apostles first, and in 
 them aR who should believe on him through their word. He 
 sums up the effect of what He was doing and saying. ' For 
 their sakes I am sanctifying myself, that they also may be 
 sanctified through the truth.' 
 
 "Our blessed Lord then was sanctifying Himself, that is, 
 setting Himself apart, devoting or offering up Himself, his 
 own Body and Blood, to be the conveyance of like sanctifica- 
 1 Kelle on Euekaristic Adoration, pp. 70, 71. 
 
Sheppardv. Bennett. 319 
 
 tion to us. He was making Himself a Sacrifice, that we being 
 joined to Him might be holy and lively Sacrifices. And all 
 this ' through the truth,' by participation — namely, of Him, 
 who is the very truth and reality, the substance of which the 
 old Sacrifices were shadows. 
 
 " I repeat it, this one saying of Christ conveys apparently 
 in itself, the two chief points of the evangelical doctrine con- 
 cerning the holy and blessed Eucharist ; first, that it is His 
 memorial Sacrifice ; a means of obtaining God's favour and 
 pardon for aU such as truly repent ; next, that it a most 
 high Sacrament, a mean whereby we are united to Christ, and 
 so made more and more partakers of His righteousness here, 
 and of His glory hereafter. 
 
 "When we say 'a memorial Sacrifice,' we mean that the 
 offering in the Holy Communion does not only put v^ in mind 
 of the great unspeakable things which Christ has done for us, 
 but also that it puts God in mind of them, so the Scripture 
 vouchsafes to speak, over and over putting into our mouth 
 the word "' remember,' when we are being taught to pray. So 
 our Lord, in the very words of Consecration, ' This do for the 
 Memorial of Me.' So the meat and bread offering mentioned 
 so often in the Old Testament, especially in that Manual for 
 Sacrifice, the Book of Leviticus, is constantly said to be 
 offered ' for a Memorial ;' and without all controversy it was 
 a type and shadow of that which we Christians present on 
 our altars. 
 
 " The Eucharist, therefore, is a memorial or Commemorative 
 Sacrifice ; that is, God graciously receives what we break, pour 
 out, and offer, as though His Son presented before Him His 
 very own Body and Blood. He received it as a continua- 
 tion of that first awful Eucharist, according to the saying of 
 the wise man, ' I know that whatsoever God doeth, it shall be 
 for ever.' ' He smelleth,' as the Bible speaks, ' a sweet savour,' 
 and is favourable and merciful unto us for the sake of Christ 
 so offering Himself before Him." ^ 
 
 Cleaver, Bishop of St. Asaph, preached several sermons on 
 the Holy Eucharist before the University of Oxford in 1787- 
 1790. In them he dwells largely on the doctrine that the 
 Lord's Supper was a Feast on a Sacrifice. From these I make 
 the following extracts : — 
 
 " But that I may not repeat what has been already urged 
 upon many of these words, I will simply call to your recol- 
 lection their general relation to a Sacrifice, by a bare recital of 
 the institution as it is given by St. Matthew, which is as 
 
 1 Sermons by the Rev. John KebU, M.A. Published by Parker (1848), 
 Oxford, pp. 259-262. 
 
320 Ec'ciesiastical yudgments. 
 
 follows : ' And as they were eating, Jesus took bread, and 
 blessed it, and brake it, and gave it to the disciples and said. 
 Take eat, this rayhody; and he took the cup, and gave it 
 to them, saying. Drink ye all of it ; for this is my blood of 
 the New Testament which is shed for many for the remission 
 of Sins' Here, I think, I might safely rest my general 
 argument, that easy as the connection between the parts of 
 this proposition, 'Take eat, this my body,' and again of 
 this, ' Drink ye all of this, for this is niy blood,' may appear 
 when unexamined, and few as the words of institution are, the 
 real connection in the parts of the two propositions can be 
 explained satisfactorily upon no other supposition than that 
 of their allusion to a Sacrifice, without which a great share of 
 the few words in -each of the passages reciting the institution 
 will be superfluous and unintelligible, and aU of them ill ex- 
 plained. I may, therefore, I hope, without being unduly 
 sanguine, assert that the idea of a Sacrifice is the primary and 
 leading idea of this institution." 
 
 The Bishop then says that it does not exactly correspond 
 with any one species of Sacrifice under the Mosaic law. 
 
 " The truth is, if it be a representation or application of the 
 Sacrifice of the death of Christ, it must correspond not ex- 
 actly with one but essentially with all the Sacrifices of the 
 law. ' For as all the Sacrifices were types of this great event, 
 and as the event itself must correspond to its own types, so 
 must whatever institution be made to represent that event. 
 The rite therefore which should fully show the Zord's .death, 
 must show the Sacrifice made by that death,' which doubtless was 
 St. Paul's meaning ; a Sacrifice upon which alone the merits 
 and ef&cacy of that death are founded ; for it'is in the blood of 
 Christ sacrificially shed that the Scriptures found the notion 
 of propitiation, of atonement, and of forgiveness. 
 
 "Ancients and moderns have considered it under distinct 
 points of view ; used distinct appellations : — e.g. ' Christian 
 Sacrifice; 'Christian Passover,' 'Christian Oblation,' 'the 
 Eucharist,' etc., the language of our Church, 'a continual 
 remembrance of the Sacrifice of the death of Christ.' " 
 
 (P. 22): "I have not contended that the institution is a 
 material and proper Sacrifice, because the command is not, as 
 
 in the vision shown to St. Peter, 'Slay and eat,' but eat 
 
 ' This is my body, which is broken for you ; ' drink, ' This is 
 my blood, which is shed for you.' Thus St. Paul, — 'Christ 
 our Passover is slain, therefore let us keep the feast.' And 
 again, when he compares the Table of the Lord, not the Altar, 
 with the Table of Devils, it is evident that he considers it as 
 a feast wpon a Sacrifice, M.vi\.Qas we could suppose the Apostle 
 
Sheppardw. Bennett. 321 
 
 to draw his argument from a case not parallel. There is, too, 
 a remarkable passage in Ezekiel (xxxix. 17), the words of 
 which on the subject are peculiarly apposite to this point, 
 where the fowls are invited 'to eat the flesh and drink- the 
 blood of the sacrifice,' to which it is added, ' Thus shall ye be 
 filled at my Table.'" 
 
 Bishop Moberly's opinion is as follows : — 
 
 " Shall I ask," he says, " whether the feast which they there 
 celebrate is or is not a Sacrifice ? Brethren, bear with me 
 while I venture to say that I am not very careful, so far as I 
 can judge, to answer the question. Indeed, it appears to me 
 to be little more than a question of words, which bears upon 
 no important issue. The feast is what it is ; and whether that ' 
 is or is not what constitutes a Sacrifice must depend altogether 
 upon the precise meaning attached to the word ' Sacrifice,' arid 
 the definition given to it. There surely are good and innocent 
 senses in which it may well and rightly be so called. There 
 surely is a sense, — the highest,— that in which the actual 
 offering of the Lord's Body and Blood upon the altar of the 
 Cross was once offered, the only full, perfect, and sufficient 
 Sacrifice, oblation, and satisfaction for the sins of the whole 
 world, — in which we may not dare so to call it." ^ 
 
 " I know not why we should not rest content to speak in 
 the language of St. Chrysostom, which I have already quoted, 
 and to call the holy feast which we celebrate our Qvaia, or 
 'Avafj,v^a-i<i Trj<; ©i/o-t'a?, our Sacrifice or recollection of the 
 Sacrifice." ^ 
 
 I will conclude with two short extracts from the treatise of 
 the present Bishop of Ely^ on the Thirty-nine Articles. 
 
 Writing upon the 31st Article, he says : — 
 
 " It cannot be doubted that from the very first the Fathers 
 spoke of the Eucharist under the name of an offering or 
 sacrifice. 
 
 " The" dread of the mass, which has prevailed generally among 
 the Eeformed Churches, has made the majority of their mem- 
 bers fear to speak at all concerning an Eucharistic Sacrifice. 
 
 " Yet there have not been wanting, in the English Church 
 especially, men of profound learning, deep piety, and some of 
 them by no means attached to peculiar schools of doctrine, 
 who have advocated the propriety of speaking of the Christian 
 Sacrifice, and of adopting in some measure the language of the 
 priinitive Church concerning it." * 
 
 ^ Moherly'8 Bampton Lectures, pp. 174, 175. ^ Ib'id. p. 176. 
 
 ' Now Bishop of Winchester. 
 * Expos, of Thirty-nine Articles, pp. 737, 745, 746. 
 
 X 
 
322 Ecclesiastical yudgments. 
 
 The language of Mr. Bennett upon the subject of Sacrifice is 
 consistent with the doctrine of a sacrament of commemoration, 
 and does not necessarily imply a sacrifice of propitiation ; and 
 it does not, in my opinion, necessarily or directly conflict with 
 the Articles of Eeligion, nor with the 82d Canon, nor with the 
 passages selected from the office of the Holy Communion set 
 forth in the criminal articles ; nor has it exceeded that liberty 
 of expression which has been used by the divines whom I 
 have cited. 
 
 Adoration of the Holy Elements. — Of Christ in the 
 Holy Elements. 
 
 With respect to the third category, the promoter alleges that 
 the defendant has promulgated the following doctrines : — " In 
 or by the passage lettered H, that Adoration or Worship is due 
 to the consecrated Bread and Wine. In or by the passages 
 lettered N, 0, and S, that afloration is due to Christ, present 
 upon the Altars or Communion Tables of the Church in the 
 Sacrament of the Holy Communion under the form of bread 
 and wine, on the ground that under their veil is the sacred 
 Body and Blood of our Lord and Saviour Jesiis Christ." 
 
 Mr. Bennett in the earlier editions of his pamphlet used 
 these expressions : — " Who myself adore and teach the people to 
 adore the consecrated Elements, believing Christ to he in them — 
 believing that under their veil is the Sacred Body and Blood of 
 my Lord and Saviour Jesios Christ." 
 
 It seems to me that the first of these sentences does contra- 
 vene the mind of the Church, as expressed in the declaration 
 about kneeling, which is at the close of the Order of the 
 Administration of the Lord's Supper ; and though, as will be 
 seen, the words are not without some countenance from con- 
 siderable authority, they are in my judgment to be reprehended. 
 
 The words of the declaration are : — " Yet, lest the same 
 kneeling should by any persons, either out of ignorance or 
 infirmity, or out of malice or obstinacy, be misconstrued or 
 depraved, it is hereby declared that thereby no adoration is 
 intended, or ought to he done, either unto the Sacramental Bread 
 or Wine there bodily received, or unto any corporal presence of 
 Christ's natural Flesh and Blood. For the Sacramental Bread 
 and Wine remain still in their very natural substances, and 
 therefore may not be adored (for that were Idolatry to be 
 abhorred of all faithful Christians) ; and the natural Body and 
 Blood of our Saviour Christ are in Heaven, and not here ; it 
 being against the truth of Christ's natural Body to be at one 
 time in more places than one." 
 
Sheppard V. BennetL 323 
 
 Mr. Bennett has, however, been apprised of the error into 
 ■which his slight acquaintance with the subject has led him, 
 and in his latest edition this reprehensible language is with- 
 drawn and the following language substituted for it : — " Who 
 myself adore and teach the people to adore Christ present in the 
 Sacrament, under the form of Bread and Wine, helieving that 
 under their veil is the sacred Body and Blood of my Lord and 
 Saviour Jesus Christ." 
 
 I have dealt with the question as to the expression " under 
 the form of Bread and Wine," and have decided that it may be 
 lawfully used. It remains to be considered whether to profess 
 and teach the adoration of Christ present in the Sacrament is 
 unlawful. 
 
 Such a doctrine is not at variance with the declaration of 
 kneeling which discountenances the worship of the elements 
 and of the corporal presence of Christ. 
 
 Nor is it repugnant to the 28th Article of Eeligion, as sug- 
 gested by the promoter, for it contains no declaration against 
 the Adoration of the Spiritual Presence of Christ in the Holy 
 Eucharist. 
 
 Entertaining this opinion, it is perhaps hardly necessary to 
 refer to authorities in favour of the proposition, that the 
 Adoration of the Spiritual Presence of Christ in the Eucharist 
 may lawfully be maintained. 
 
 Some, however, I will mention. 
 
 In the dialogue between Eidley and his Papal adversary are 
 these passages : — 
 
 " Glyn. — Augustine against Faustus, ' Some there were which 
 thought us, instead of bread and of the cup, to worship Ceres 
 and Bacchus.' Upon this place I gather, that there was an 
 adoration of the Sacrament among the Fathers ; and Erasmus, in 
 an epistle to the brethren of Low Germany, saith that the wor- 
 shipping of the Sacrament was before Augustine and Cyprian. 
 
 " Eidley. — We do handle the signs reverently : but we 
 worship the Sacrament as a Sacrament, not as the thing signi- 
 fied by the Sacrament. 
 
 " Glyk. — What is the symbol or Sacrament ? 
 
 " Eidley. — Bread. 
 
 " Glyn. — Ergo, we worship bread. 
 
 " Eidley. — There is a deceit in this word ' adoramus.' We 
 worship the symbols, when reverently we handle them. We 
 worship Christ wheresoever we perceive his benefits ; but we 
 understand his benefits to be greatest in the Sacrament. 
 
 "Glyn. — So I may fall down before the bench here, and 
 worship Christ; and if any man ask me what I do, I may 
 answer, I worship Christ. 
 
324 Ecclesiastical yudgments. 
 
 " EiDiiEY. — We adore and worship Christ in the Eucharist. 
 And if you mean the external Sacrament, I say, that also is to 
 be worshipped as a Sacrament."^ 
 
 Bishop Poynet, in his treatise on the Eucharist, says : — 
 
 " Here a scruple arises. If we believe the grace and virtue 
 of the real body to be conjoined with the bread and wine, we 
 shall aeem to attribute too much to the elements, and hence a 
 twofold evil will arise — (1) the adbration of the Sacrament and 
 the peril of idolatry, and (2) that the wicked who partake of 
 the Sacrament, eat at the same time the body of Christ, and 
 are partakers of His grace. But this latter cannot take place, 
 for ' Whoso eateth me,' saith Christ, ' shall live for ever,' and 
 'if any man eat of this bread he shall live for ever,' which 
 cannot be understood of the wicked." 
 
 That is, so as to be partakers of His grace, as is more fully 
 explained in the passage I have already given. 
 
 "As to the worship, I reply, that, the ancients partook of the 
 Sacrament with the utmost reverence and honour, and yet 
 were safe from idolatry. . . . Eor, as to their worshipping what 
 they received, Augustine plainly testifies on the xcviiith Psalm, 
 when he says, ' He has given the same flesh to you to eat to 
 salvation, but no one eats that flesh without first adoring, and 
 not only do we not sin by adoring, but we sin by not adoring.' 
 Also, Prosper, ' In the species of bread and winQ which we see, 
 we honour invisible things, that is, the Flesh and Blood.' 
 Also, Eusebius Emissenus, ' When thou ascendest the reverend 
 altar, to be filled with spiritual food, behold, honour, and won- 
 der at the holy body of thy God.' And Chrysostom (1 Cor. x., 
 Horn, xxiv.), ' I wUl show you upon earth what is worthy of 
 this highest honour. For, as palaces, not the walls, not the 
 golden roof, but the royal body seated on the throne, is the 
 most excellent of all ; so also is the Eoyal Body in Heaven 
 now proposed to your view on earth. I do not show you 
 angels nor archangels, nor the heaven bf heavens, but the Lord 
 of all these.' Ambrose (1 Cor. xi.), ' The Eucharist is spiritual 
 medicine, which, tasted with reverence, purifies the devout 
 receiver.' And again, 'The Holy Communion is to be ap- 
 proached with a devout mind, and with fear, that the mind 
 may know that reverence is due to Him whose Body it ap- 
 proaches to receive.' Theodoret (Dial. 2), 'Nor after sanctifica- 
 tion do those mystical symbols differ from their proper nature, 
 but remain in their former substance, and figure, and appear- 
 ance (species), and are therefore both seen and felt as before. 
 But they are understood to be that which they are made, and 
 are believed to be so, and are worshipped as being the things 
 1 Works, p. 236. 
 
Sheppard \. Bennett. 325 
 
 which they are believed.' From this and other places, it is 
 easily understood with what honour, with what reverence, the 
 ancients approached to the Holy Communion. Nor is this to 
 be wondered at, when they believed that they took, in that 
 bread, the truth, nature, and virtue of the true Body of Christ, 
 and were far from idolatry, being diligently instructed and 
 taught that they did not worship the outward sign, but the in- 
 ward virtue, which Augustine shows by these words (De Doct. 
 Christ., lib. iii. cap. 9) : ' For he but subserves the sign who 
 performs or venerates any significant thing, not knowing what 
 it signifies ; but he who performs or venerates a useful sign 
 instituted by God, the power and signification of which he 
 understands, does not venerate the transient thing which he 
 sees, but rather that to which all such things are to be referred.' 
 And again, afterwards, ' At this time, by the resurrection of our 
 Lord Jesus Christ, a more manifest proof of our liberty has 
 taken place, nor are we burdened with the heavy load of those 
 signs which we now understand, but the Lord and apostolic 
 discipline have handed down, in place of many, some few 
 things, and easy to be performed, as the Sacrament of Baptism, 
 and the celebration of the Body and Blood of the Lord, which 
 each person when he receives, .being well instructed, knows 
 what they signify, and worships them, not with carnal servi- 
 tude, but with spiritual liberty.' " 
 
 Thorndike says : — 
 
 "I suppose that the Body and Blood of Christ may be 
 adored wheresoever they are, and must be adored by a good 
 Christian, where the custom of the Church which a Christian is 
 obliged to communicate with requires it. . . . 
 
 " But I suppose, further, that the Body and Blood of Christ 
 is not adored nor to be adored by Christians, neither for itself 
 nor for any endowment residing in it, which it may have 
 received by being personally united with the Godhead of 
 Christ, but only in consideration of the said Godhead, to which 
 it remains inseparably united, wheresoever it becomes. For by 
 that means whosoever proposeth not to himself the considera- 
 tion of the Body and Blood of Christ as it is of itself and in 
 itself a mere creature (which he that doth not on purpose can- 
 not do), cannot but consider It as he believes It to be, being a 
 Christian; and considering It as It is, honour It as It is, 
 inseparably united to the Godhead, in which and by which it 
 subsisteth, in which, therefore, that honoiir resteth, and to 
 which it tendeth — so the Godhead of Christ is the thing that is 
 honoured, and the reason why it is honoured, both. The Body 
 and Blood of Christ, though It be necessarily honoured because 
 necessarily united to that which is honoured, yet is It only 
 
326 Ecclesiastical Judgments. 
 
 the thing that is honoured, and not the reason why It is 
 honoured, speaking of the honour proper to God alone. 
 
 " I suppose, further, that it is the duty of every Christian to 
 honour our Lord Christ as God subsisting "in human flesh, 
 whether by professing Him such, or by praying to Him as 
 such, or by using any bodily gesture, which by the custom of 
 them that frequent it may serve to signify that indeed he 
 takes Him for such, which gesture is outwardly that worship 
 of the heart which inwardly commands it. 
 
 " This honour, then, being the duty of an affirmative precept, 
 which, according to the received rule, ties always (though it 
 cannot tie a man to do the duty always, because then he shoidd 
 do nothing else), what remains but a just occasion to make it 
 requisite, and presently to take hold and oblige. 
 
 "And is not tlw preserux thereof in the Sacrament of the 
 Eucharist a just occasion, presently to express by the bodily 
 act of adoration, that inward honour which we always carry 
 towards our Lord Christ as God? Grant that there may be 
 question whether it be a just occasion or not :" [he goes on to 
 say in substance, that] " supposing the custom of the Church 
 to have determined it, it shall be so far from an act of idolatry, 
 that it shall be the duty of a good Christian ;" . . . but that 
 "if the Church hath not determined it" (though for some 
 occasions it may become offensive and not due), " yet it can 
 never become an act of idolatry."^ 
 
 Dean Brevint in his Christian Sacrament and Sacrifice says : — 
 " The second is an act of adoration and reverence when he 
 looks upon that good hand that hath consecrated for the use of 
 the Church the memorial of these great things. I cannot, 
 without some degree of devotion, look on any object that in 
 anywise puts me in mind of the sufferings of my Saviour, and 
 if I did perceive but any cloud somewhat like them, although 
 it were but casual, I would not neglect the accident that had 
 caused that resemblance, but since the good hand of my God 
 hath purposely contrived it thus to set before me what I see, 
 and since by His special appointment these representatives are 
 brought in hither for this Church, and among aU the rest for 
 me, I must mind what Israel did when the cloud filled the 
 tabernacle. I will not fail to worship God as soon as these 
 sacraments and gospel clouds appear in the sanctuary. Here I 
 worship neither sacrament nor tabernacle, but I will observe 
 the manner that Moses, David, and all Israel have taught me 
 to receive poor elements with after the institution of God hath 
 once raised them to the estate of mysteries. Neither the ark 
 nor any clouds were ever adored in Israel ; but sure it is the 
 1 Laws of tlis Church Book iii. chap. xxxi. §§ 1-10. 
 
Sheppard V. Bennett. 327 
 
 ark was considered q[uite otherwise than an ordinary chest, and 
 the cloud than a vapour, as soon as God had hallowed them 
 both to be the signs of His presence. Therefore, as the former 
 people did never see the Temple or cloud, but that presently 
 at that sight they used to throw themselves on their faces, so 
 I will never behold these better and surer sacraments of the 
 glorious mercies of God, but as soon as I see them used in the 
 Church to that holy purpose that Christ hath consecrated them 
 to, / wiLl not fail both to remember my Saviour vjho consecrated 
 those sacraments, and to worship also my Saviour whom those 
 sacraments do represent."^ 
 
 Bishop Andrewes in his controversy with Bellarmine, setting 
 forth the true doctrine of the Church of England, and contrast- 
 ing it with that of Eome, says : — 
 
 " In adoratione Sacramenti, ad limen ipsum turpiter impingit. 
 Sacramenti ait, id 'est, Christi Domini in Sacramento, miro, sed 
 vero modo prsesentis. Apage vero. Quis ei hoc dederit? 
 Sacramenti, id est, Christi in Sacramento. Imo, Christus ipse 
 Sacramenti res, in, et cum Sacramento ; extra, et sine Sacra- 
 mento, vii, ubi est adorandus est. Eex autem Christum in 
 Eucharistia vere prcesentem, vere et adorandum statuit, rem 
 scilicet Sacramenti, at non Sacramentum, terrenam scilicet 
 partem, ut Irenseus, visibOem, ut Augustinus. . . . Nos vero et 
 in mysteriis carnem Christi adoramus, cum Ambrosio, et non, 
 id, sed Eum qui super altare colitur. Male enim, quid ibi 
 colatur, quserit Cardinalis, cum quis, debuit, cum Nazianzenus, 
 Eum dicat, non id. Nee carnem manducamus, quin adoremus 
 prius, cum Augustine, et Sacramentum tamen nuUi adoramus."^ 
 
 Still more emphatic is the language of Bishop Taylor : — 
 
 " Place thyself upon thy knees in the devoutest and hum- 
 blest posture of worshippers, and think not much in the lowest 
 manner to worship the King of men and angels, the Lord of 
 Heaven and Earth, the great Lover of Souls, and the Saviour 
 of the Body, Him whom all the angels of God worship. Him 
 whom thou confessest worthy of all, and whom all the world 
 shall adore, and before whom they shall tremble at the Day of 
 Judgment. For if Christ be not there after a peculiar manner, 
 whom or whose body do we receive ? But if He be present to us, not 
 in mystery only, but in blessing also, why do we not worship ? 
 But aU the Christians always did so from time immemorial. 
 ' No man eats this flesh unless he first adores,' said St. Austin, 
 ' for the wise men and the barbarians did worship this body in 
 the manger, with very much fear and reverence. Let us, 
 
 ^ Christian Sacrament and Sacrifice, a. ii. 5, 8. Part of this cited in the 
 Eucharistica published by the Bishop of Oxford, 1861. 
 2 JBesponsio ad Card. Bellarmin. Apolog. pp. 266, 267. 
 
328 Ecclesiastical yudgments. 
 
 therefore, who are citizens of heaven, at least not fall short of 
 the barbarians. But thou seest Him not in the manger, but on 
 the altar. And thou beholdest Him not in the Virgin's arms, 
 but represented by the Priest, and brought to thee in sacrifice 
 by the Holy Spirit of God.' So S. Chrysostom argues, and 
 accordingly this reverence is practised by the Churches of the 
 East, and West, and South, by the Christians of India, by all 
 the Greeks, as appears in their' answer to the Cardinal of 
 Guise, by all the Lutheran Churches, by all the world, says 
 Erasmus, only now of late some have excepted themselves. But 
 the Church of England chooses to foUow the reason and piety 
 of the thing itself, the example of the primitive Church, and 
 the consenting voice' of Christendom." ^ 
 
 And again : — 
 
 "One thing I desire to warn you of, that is, that these 
 phrases (soil, in the Fathers) of ' Adorato Altari' and tt/ooo-- 
 ■n-lirreiv t& BvaicuTTTjpUp, must be understood warily, and as 
 they were meant ; not that any Divine adoration was given to 
 the altars either relatively or transitively; but they are the 
 metonymical expressions of the subject. For the adjuncts ; 
 adoratis altaribus ; that is, adorato Christo praesenti in altari- 
 bus, inclinato capite ad altare, that is, inclinato capite ad JDeum 
 ibidem, atque in sacris residentem ; we have good warrant to 
 authorise this expression." ^ 
 
 I conclude my extracts from English divines with the fol- 
 lowing passage from Mr. Keble's work on Eucharistic Adora- 
 tion, published in 1857 : — 
 
 " Thus we seem to have' evidence irresistible that down to 
 the beginning of the ninth century — i.e. through all the ages of 
 comparatively unbroken unity in the Church, the Body and 
 Blood of the Man Christ Jesus, of Him who is God and Man, 
 was adored as present after consecration in the Eucharist^i.e. 
 Christ Himself was adored as present by the presence of His 
 Body and Blood. Neither the depravers of the faith on the 
 one hand, nor the maintainers of purity of worship on the 
 other, ever seem to have found any difficulty in that point. 
 Who can help concluding that it came down direct from the 
 Apostles, especially considering what I wiU venture to caU the 
 strong presumption made out in favour of it from Holy Scrip- 
 ture and natural piety. It wiU have been seen that both St. 
 "Ambrose and St. Augustine use expressions and arguments 
 which would be quite unwarrantable, unless they knew the 
 practice to be a real apostolical tradition. St. Ambrose's 
 ' hodiegue,' and St. Augustine's ' Nemo m.anducat, nisi qui prius 
 
 1 Worthy Commvnicant, chap. vii. sect. 1, par. 10 ; Heber's ed. vol. xv. 
 p. 671. ^ Taylor's Works, vol. v. p. 315. (Eden's ed.) 
 
Sheppardv. Bennett. 329 
 
 adorwveritl would be neither of them honest sayings, were 
 they not uttered under that conviction ; and their arguments, 
 grounded as they are on the two great and simple verities of 
 the Incarnation and the Eeal Presence, are of course good for 
 all times as well as for their own."^ 
 
 I have noticed the historical fact that Cranmer's tendencies 
 became strongly Lutheran before he died, and that the Council 
 of Augsburg very materially influenced the language of our 
 Articles.^ Chemnitz, a very stout Lutheran, wrote an examina- 
 tion of the Council of Trent, in which examination, while he 
 strongly condemned Transubstantiation, he defended the wor- 
 ship of our Lord in the Holy Elements. The passage is not 
 unimportant ; it is as follows :^ — 
 
 " First, it must be shown, what in this fifth chapter and 
 sixth canon is the matter of controversy. For some things, I 
 readily admit, are uncontroverted. For that Christ, God and 
 Man, is to be adored, no one but an Arian denies. And that 
 His human Nature also, on account of its union with His 
 Godhead, is to be adored, no one but a Nestorian questions. 
 For when the Eternal Father brought the Only Begotten Son 
 into the world. He saith. Let all the Angels worship Him. 
 As Matthew also plainly beareth witness (c. xxviii.) that the 
 Apostles ia GalUee worshipped Christ. It is certain, more- 
 over, that the adoration of God is not tied to place or time 
 (John iv., 1 Tim. ii.) Christ then at all times, and in all 
 places, is to be adored. If then we believe that Christ, God 
 and Man, is, in a peculiar mode of presence and of grace, present 
 at the celebration of His Supper, so that he there, truly and 
 substantially, exhibits to communicants His own Body and 
 Blood, whereby He willeth so to unite Himself with us, that 
 to each who receives with faith. He, by this most precious 
 pledge, applies and seals the gifts of the New Testament, which 
 through the giving up of His Body, and the shedding of His 
 Blood, He obtained for His Church; — if, I say, we believe 
 these things truly, from our heart, it neither can nor ought to 
 be hut that faith should venerate and adore Christ present in 
 that action. So Jacob (Gen. xvii.), Moses (Exod. xxxiv.), 
 Elijah (1 Kings xix.), had no special command to worship God 
 in those places ; but since they had a general command to 
 
 ' Pp. 112, 113. 
 
 * AJchbishop Laurence, Bampton Lectures, Lect. i. 
 
 3 Chemnitz or Chemnitins, born 1522, died 1586 ; in 1554 he wrote, 
 among other works, " Eepetitio sanse doctrinae de vera prsesentia corporis et 
 sanguinis Domini in coena sacra," Leipzig, 1554; and in 1585 "Examen 
 Concilii Tridentini," Frankfort, 1585, which has been translated into English. 
 This work had a great reputation. 
 
330 Ecclesiastical Judgments. 
 
 ■worship God everywhere, and were certain that God was truly 
 present under outward and visible symbols, and that He was re- 
 vealing Himself there in a special and gracious manner, they 
 assuredly worshipped God Himself there, whom they believed 
 to be present there. Nor would their faith have been true, if 
 invocation or adoration — i.e. the honour due to God — had not 
 followed." 1 
 
 « 
 
 Conclusions of Fact. 
 
 I am happy to arrive at the close of the premisses from 
 which my legal conclusion is to be drawn. 
 
 I am conscious of the great length at which these premisses 
 have been stated, and of the charge of prolixity to which so 
 full a statement may expose me. 
 
 But while I have had a very arduous duty to discharge, I 
 have not had that measure of assistance which a Court of 
 Justice usually receives. 
 
 Mr. Bennett, who has caused all this litigation upon the 
 subject of all others which ought not to be litigated, has not 
 appeared before the Court of his Metropolitan to justify or 
 defend himself. , 
 
 The case has been argued on one side only. 
 
 This prosecution, it has been said, is directed against Mr. 
 Bennett alone. But I cannot shut my eyes to the fact that I 
 am not trying Mr. Bennett alone, but also divines eminent for 
 piety, learning, and eloquence, whose opinions Mr. Bennett has 
 borrowed, and in some respects caricatured, but does not allow, 
 by the course which he has taken, to be vindicated or explained. 
 
 I have, therefore, thought myself obliged, not only to inves- 
 tigate according to the utmost of my power all the authorities 
 which could throw light on the subject in dispute, but to 
 express the result of my research with a fulness of detail 
 which, if the case had been defended, would have been un- 
 necessary for the purposes of justice. 
 
 I have thought it right that those who have to consider my 
 judgment should be in possession of the authorities which have 
 influenced it. 
 
 Being compelled to speak judicially as to the law of our 
 Church relative to this great mystery, I hope, at least, that I 
 have said nothing respecting the Supper of our Lord, which, in 
 the words of our old divine and poet, may yet further tend to 
 
 " Make this banquet prove 
 A Sacrament of war, and not of love.'' 
 
 1 Cited in The Seal Presence, by the Eev. Dr. Pusey (Oxford, 1857), 
 pp. 334, 335. 
 
Sheppard v. Bennett. 33 1 
 
 By the expressions, " The real, actual, and visible Presence 
 of the Lord upon the Altars of our Churches," and " "Who 
 myself adore, and teach the people to adore the consecrated 
 elements, believing Christ to be in them, — believing that under 
 their veil is the sacred Body and Blood of my Lord and Saviour 
 Jesus Christ," — I have no doubt that Mr. Bennett has contra- 
 vened the plain, meaning and clear intent of the Formularies 
 of the Church. But he has, in a later edition, withdrawn these 
 words, and substituted others for them : — for " the real, actual, 
 and visible Presence of our Lord upon the Altars of our 
 Churches," he substitutes, " the real, actual Presence of our 
 Lord, under the form of bread and wine, upon the Altars of 
 our Churches;" and for the words "Who myself adore, and 
 teach the people to adore, the consecrated elements, believing 
 Christ to be in them," he substitutes the words, " Who myself 
 adore, and teach the people to adore, Christ present in the ele- 
 ments under the form of bread and wine." 
 
 It is to be regretted that these material alterations are unac- 
 companied by any expressions of regret or self-reproach for 
 the mischief which his crude and rash expressions have 
 caused. 
 
 Mr. Bennett says : — 
 
 " My meaning, and that which passed through my mind in 
 writing the original passages, was precisely the same as that 
 which is now conveyed in the words substituted, but as the 
 original words were liable to a different construction from that 
 in which I used them, I therefore most willingly in this edition 
 adopt another formula to express my meaning. The formula 
 now adopted, and which, without any doubt, will convey the 
 doctrine of the Eeal Presence, as the Church would teach it, 
 has been suggested to me by him whose name stands at the 
 head of this pamphlet" (that is to say, the Eeverend E. B. 
 Pusey, D.D.) ; " one to whom the whole Church would impli- 
 citly bow and all revere. I have no hesitation in adopting his 
 words as my own fully and completely." 
 
 I do not, however, sit here as a critic of style, or an arbiter 
 of taste, or a censor of logic. I have not to try Mr. Bennett 
 for careless language, for feeble reasoning, or superficial know- 
 ledge. It is my duty to decide whether the words in which he 
 now expresses himself, and which he professes to have since 
 borrowed from a profound theologian, occupying one of the 
 highest positions in the University of Oxford, do or do not 
 contravene the Formularies of our Faith. 
 
 If I were to pronounce that they did so, I should be passing 
 sentence, in my opinion, upon a long roll of illustrious divines, 
 who have adorned our Universities and fought the good fight 
 
332 Ecclesiastical yudgments. 
 
 of our Church, from Eidley to Kehle, — ^from the divine whose 
 martyrdom the Cross at Oxford commemorates, to the divine 
 in whose honour that University has just founded her last 
 College. Moreover, I could not pronounce such a sentence 
 without disregarding judicial authority of the gravest kind. 
 
 Por, as I have already observed, in Mr. Gorham's case the 
 Judge said : — 
 
 " The writers whom we have cited are not always consistent 
 with themselves, nor are the reasons upon which they found 
 their positions always valid ; and other writers of great emi- 
 nence, and worthy of great respect, have expressed very different 
 opinions. But the mere fact that such opinions have been 
 propounded and maintained by persons so eminent, and so 
 much respected, as well as by very many others, appears to us 
 sufficiently to prove that the liberty which was left by the 
 Articles and Formularies has been actually enjoyed and exer- 
 cised by the members and ministers of the Church of England." 
 
 And in Mr. Heath's case the Judge said : — 
 
 " If the doctrine in question has been held without offence 
 by eminent divines of the Church, then, though perhaps diffi- 
 cult to be reconciled with the plain meaning of the Articles ot 
 Eeligion, still a Judge in my position ought not to impute 
 blame to those who hold it. That which has been allowed or 
 tolerated in the Church ought not to be questioned by this 
 Court." 
 
 In the case of Essays and Beviews the Privy Council held 
 that even the words "everlasting fire" might be treated by a 
 clergyman as not denoting the eternity of punishment, regard 
 being had to the absence of any interpretation of the words in 
 the Formularies, to the opinion of learned men respecting the 
 words, and to a liberty of opinion exercised on the subject by 
 certain divines without restraint. 
 
 Now I have shown that no mode of the Presence is defined 
 by the Formularies, and by a large induction of instances that 
 the present opinions for which Mr. Bennett is articled are not, 
 however loosely expressed, distinguishable in substance from 
 those which have been maintained for many years by many 
 great divines of our Church and by many learned men. 
 
 Conclusions of Law. — Sentence. 
 
 The conclusions of law at which I have arrived are the 
 following : — 
 
 With respect to the first and uncorrected edition of his 
 pamphlet, I pronounce that Mr. Bennett, by his language 
 respecting the visible Presence of our Lord, and the adoration 
 
Sheppard \. Bennett. 333 
 
 of the Consecrated Elements, has contravened the' law of the 
 Church. 
 
 If Mr. Bennett had not renounced this language, and substi- 
 tuted other fdr it, I must have considered whether I ought not 
 to pass a sentence of suspension upon him, accompanied hy a 
 monition to abstain for the future from such language. 
 
 The question is not now before me whether this retractation 
 of Mr. Bennett would have sufficed to satisfy the severe provi- 
 sions of the statute of Elizabeth (13 Eliz. c. 12), but whether 
 this retractation, however ungraciously made, be not sufficient 
 under the general law to indicate that he has finally abandoned 
 the unlawful expressions which he had used. 
 
 I think on the whole they are sufficient for this purpose. 
 
 With respect to the second and corrected edition of his 
 pamphlet, and the other work for which he is articled, I say 
 that the Objective, Actual, and Eeal Presence, or the Spiritual, 
 Eeal Presence, a Presence external to the act of the Communi- 
 cant, appears to me to be the doctrine which the Formularies 
 of our Church, duly considered and constructed so as to be 
 harmonious, intended to maintain. But I do not lay down this 
 as a position of law, nor do I say that what is called the 
 Eeceptionist Doctrine is inadmissible ; nor do I pronounce on 
 any other teaching with respect to the mode of Presence. I 
 mean to do no such thing by this judgment. I mean by it to 
 pronounce only that to describe the mode of Presence as 
 Objective, Eeal, Actual, and Spiritual, is certainly not contrary 
 to the law. 
 
 With respect to the other charges — namely, those relating to 
 Sacrifice and Worship, — I pronounce 'that Mr. Bennett has not 
 exceeded the liberty which the law allows upon the subjects. 
 
 I make no order as to costs. 
 
FAGG AND MUMMERY v. LEE. 
 
 A monition in a civil suit to churchwardens to remove out of 
 their parish church certain ornaments or articles alleged 
 to be unlawful can only be sjistained by a person who can 
 show some interest, e.g. as a parishioner, in the matter of 
 their removal; and that he has such interest must appear 
 on the face of the monition. 
 
 I DELIVERED judgment in this case on the 14th of 
 November 1873. There was an appeal to the Privy 
 Council, who affirmed my decision. 
 
 The case is reported in the Law Eeports, in the 
 Arches Court, 4 Admiralty and Ecclesiastical, page 135, 
 in the Privy Council, 6 Privy Council Appeals, p. 38. 
 
 Judgment. — This is an appeal from a judgment of the Com- 
 missary of Canterbury. 
 
 The question raised on this appeal is technical in point of 
 form, but not unimportant in substance. 
 
 I must say in the outset that I have had difBculty in ascer- 
 taining from the minutes of the Court below what the exact 
 course of the proceedings in this case have been. The minutes 
 appear to be entered or kept in an unusual and irregular man- 
 ner, but I gather from the observations of the learned Commis- 
 sary that on Februaiy 22d, in this year, certain proceedings 
 were taken by Mr. Lee, on behalf of the Archbishop, which on 
 March 12th were discontinued and abandoned, and that on 
 March 24th a monition was taken out against the vica,r and 
 churchwardens of St. Peter's, Folkestone, ordering them to show 
 cause why certain ornaments called " stations " should not be 
 removed from the Church. 
 
 The parties upon whom the monition has been served appear 
 
Fagg and Mummery -v. Lee. 335 
 
 and take a preliminary olajection to the effect that it was not 
 competent to the party who took out the monition to do so. 
 
 The suit is of a civil character. In the Ecclesiastical Court 
 there are two kinds of suits, — civil and criminal. 
 
 The criminal suit, which is the promotion of the of&ce of the 
 Judge, that is of the Ordinary, is open to any person whom the 
 Ordinary may think fit to allow to promote his office, by the 
 institution of a criminal suit; such a suit is "ad, publicam 
 vindidam" and in some sense concerns every member of the 
 Church. 
 
 The civil suit is not open to every one, even with the con- 
 sent of the Ordinary, but only to those who have a personal 
 interest in it. 
 
 It may indeed happen that a civil interest is protected or 
 enforced by a criminal proceeding ; but nevertheless the main- 
 tenance of this distinction between criminal and civil suits is 
 by no means unimportant in principle. 
 
 The preservation of peace in the Church generally, as well as 
 in particular parishes, may in great measure be dependent upon 
 the observance of it. 
 
 The inhabitant of a parish in Cornwall may be interested in 
 preserving ecclesiastical discipline, and enforcing ecclesiastical 
 criminal law in a parish in Northumberland, and may be per- 
 mitted by the proper Ordinary to take legal steps for this pur- 
 pose, but it would be a great evil if he could interfere in 
 matters relating to the fabric of a church in Northumberland 
 in which he has no private interest, as to which he has sus- 
 tained no civil injury, and as to which he may be acting in 
 opposition to the wishes of the parishioners and the incumbent. 
 
 However this may be, the law as to the practice of the Ecclesi- 
 astical Court in this matter is perfectly weU established ; and 
 indeed it was not at aU disputed by the counsel for the respon- 
 dents, whose contention was not that in a civil suit interest 
 must not be shown, but that the time had not arrived when the 
 interest of the party proceeding in this civil suit ought to be 
 set out. 
 
 The suit, I may observe, is not the less of a civil character 
 because the proceedings have been carried on by monition 
 rather than by the more formal way of libel ; but it is neces- 
 sary, in order to remove some confusion which appears to have 
 arisen, to state what the nature of this kind of civil proceeding 
 by monition is. 
 
 In the first place, it is not to be confounded with a monition 
 to execute the process of a Court after sentence given. 
 
 The monition in this case operates as a citation and some- 
 thing more ; for it includes the order to appear which is the 
 
33^ Ecclesiastical yti,dgments. 
 
 proper function of a citation, and also orders a certain thing to 
 be done by the party cited, which is the proper function of a 
 monition. 
 
 The party so cited might have taken one of three courses : 
 he might have appeared and demanded a more formal proceed- 
 ing by way of libel, or by the less formal way of act on petition; 
 but he might also have made his defence by appearing in obe- 
 dience to the monition, and showing cause against it to the 
 Court. 
 
 This is the course which he elected to pursue, which it would 
 seem that the party proceeding himself intended, and which 
 the Court contemplated. 
 
 It was therefore a suit conducted in the summary manner of 
 monition, including citation, and appearance of parties. — I say 
 of parties, because although for some reason imexplained Mr. 
 Lee, on the 9th of June, prayed to appear by a proctor, he had 
 extracted, on the 24th of March, the monition, which on that 
 day was as the instrument recites " at the petition of the said 
 John Benjamin Lee decreed." 
 
 The monition having been so decreed, was served on the 
 vicar and churchwardens on the 25th of March. On the 31st 
 a proctor appeared for them. It should be here observed that 
 the Commissary Court has not regular days of sitting, but they 
 are appointed from time to time. 
 
 On the 14th of May, the following letter was sent to the 
 proctor : — 
 
 "28 Gr&at George St., Westminster, 
 14 May 1873. 
 
 " Be St. Peter's, Folkestone. 
 
 " Deae Sirs,— It is my duty hereby to give you notice, as 
 proctors for the Eev. C. J. Eidsdale (the incumbent) and the 
 churchwardens, that the Commissary-General of the city and 
 diocese of Canterbury has appointed Tuesday next, the 20th 
 inst., at 1 1 o'clock a.m., in the public library of Lambeth Palace, 
 to hear this case ; and as the ' stations of the cross' have not 
 been removed, as promised, the Commissary-General will not 
 attend to any further application for delay. — I am, dear Sirs, 
 yours faithfully, John Hassaed, 
 
 " Registrar of the diocese of Canterbury. 
 
 " To Messrs. Brooks, Tanner, & Jenkins, 
 Proctors, 
 7 GodUman St., E.C." 
 
 This document must be treated as one of the minutes in the 
 cause, amongst which it ought to have been found. 
 
Fagg and Mummery w. Lee. 337 
 
 On the 26th of May a proctor appeared for the church- 
 wardens, and prayed " the Judge to dismiss the said church- 
 wardens from the suit with costs, on the ground that the said 
 John Benjamin Lee did not show any interest of a public or 
 private character on the face of the said monition." 
 
 This was, in my opiaion, the proper way of raising the ques- 
 tion as to the competence of the party proceeding. It appears 
 to have been raised at the earliest period practicable. It was 
 suggested that there ought to have been an appearance under 
 protest, but this was not much insisted upon by counsel ; and I 
 think it was rightly answered, that jn this case no objection is 
 taken to the competency of the Court, but to the competency 
 of the party instituting the suit ; for although in cases of this 
 kind there have been proceedings under protest, that course is 
 more properly adopted when there is an objection to the juris- 
 diction of the Court. 
 
 The learned Judge of the Court below, however, on the 9th 
 of June, rejected the prayer of the parties cited to be dismissed 
 from the suit. From this sentence the appeal has been made 
 to this Court. 
 
 I have already stated my opinion that this is a civil suit, and 
 that a contrary opinion was not maintained by counsel for the 
 respondents before me, but I must add that I do not quite 
 follow the reasoning of the learned commissary upon this point. 
 He does not and could not intend to say that this was a criminal 
 suit, but he seems to have thought it belonged to a tertium 
 genus, neither civil nor criminal. 
 
 I know of no authority ia principle or precedent for this posi- 
 tion ; perhaps, however, I am mistaken as to the learned Judge's 
 opinion upon this point. 
 
 In the arguments before me the following arguments were 
 not controverted : — v 
 
 (1.) That the suit ^ of a ciAol character. 
 (2.) That the party proceeding must show an interest. 
 (3.) That at present he has not shown such interest. 
 To thfese undisputed points I may add : — 
 
 (1.) That no precedent for a monition not showing an in- 
 terest in a civil suit of this kind has been produced 
 before me. 
 (2.) That I have requested the registrar to search for such 
 a precedent, and that he has not been able to 
 find one. 
 (3.) That the precedents, and especially a very recent and 
 important one, support the opinion that the interest 
 must be shown in the monition. 
 Upon this last point I will advert to the following cases. 
 
338 Ecclesiastical Judgments, 
 
 Others might be found, but they seem to me sufficient for the 
 present purpose ; — 
 
 In the Buhe, of Portland t. Bingham (1 Haggard Consist. 
 Eep., 159) two suits were instituted. The first was civil, which 
 failed on the ground that the Duke of Portland had no interest ; 
 the proceedings were by citation to bring in a license ; the 
 second was criminal, which failed on other grounds. In the civil 
 case Dr. Bingham appeared under protest, alleging no interest 
 in the Duke. After considering the question of civil interests. 
 Lord Stowell observes, " There are other interests in which 
 every man partakes, such as that of maintaining public order, 
 etc. These are clear, direct, and universal, and will entitle any 
 one to institute proceedings to preserve that order. But such 
 proceedings muit be ad 'puhlicam, vindictam, and by criminal 
 articles exhibited in due form, which is the usual way of trying 
 such matters as the present, and the most convenient. In that 
 case the question would be reduced to* one point only — the right 
 of the party who is the object of such, proceedings ; whereas in 
 civil suits a previous question may arise of .equal difficulty, on 
 the right and title of the party instituting the suit, This then 
 is an important distinction." 
 
 In the civil case Lord Stowell's attention had been drawn to 
 Lyne v. Harris, as an authority for -the civil^orm of procedure, 
 and his observation on it is remarkable. " In that case," he 
 says, " there was a civil .injury sustained" (p. .160). Byney. 
 Harris (1 Lee, 146) was a proceeding. by citation to show cause 
 why a license should not be revoked. The citation was taken 
 out by the vicar against a curate, who officiated without his 
 leave in his parish. 
 
 The case oi Hopper v. Bavis (1 Lee, 640) was a decision by 
 the High Court of Delegates. Chapel-wardens had cited a man 
 to show cause why he should not be monished to take down a 
 monument erected without a faculty. The Judge of the Court 
 of York had granted the monition. Dr. Hay, one of the most 
 learned civilians of this country, said arguendo (p. 647), " First 
 question. Whether this, .which is a civU cause, is properly in- 
 stituted ? The chapel- wardens have no interest ; but no man 
 can commence," observe the words, " a civil cause that has not 
 an interest." The Judges delegate adopted this position, for 
 they reversed the sentence of the Court below, and said, ","We 
 were of opinion the suit was commenced in a wrong form ; a 
 prosecution of this sort ought to be by articles." 
 
 In later times it has been holden, where no objection is raised, 
 that suits of this kind may be instituted in the civil form, but 
 never unless the party proceeding to enforce the law has shown 
 an interest in the first instance, 
 
Fagg and Mummery v. Lee. 339 
 
 The Knightsbridge cases, Be,al v. lAddell, Westerton v. Ziddell 
 (Moore's Special Kepoit, 1857), as they are generally called, 
 are directly in point. 
 
 In the first of these cases, questions as to the lawfulness of 
 certain ornaments in the church were raised. The civil suit 
 hegan by a citation, the words of which, as far as they are im- 
 portant to the present cause, were as follows : — 1 
 
 " Charles James, by divine permission. Bishop of London, 
 etc., etc. Whereas it hath been alleged and set forth before the 
 Eight Honourable Stephen Lushington, Doctor of Laws, our 
 vicar general, and of&cial principal of our Consistorial and Epi- 
 scopal Court of London, lawfully constituted, by the proctor of 
 James Beal, an inhabitant of that part of the district chapelry 
 of Saint Paul's, Knightsbridge, which, though not formally 
 assigned as a district to, is more immediately connected by its 
 locality with the said chapel of ease, dedicated to St. Barnabas, 
 in the county of Middlesex, and within our diocese and juris- 
 diction : That the chancel, etc., etc." 
 
 Observe with what extreme care and precision the interest 
 of Mr. Beal, who was commencing the suit, is set forth. He is 
 described as an inhabitant of that part of the parish in which 
 the chapel is situated, though no district has been formally 
 assigned to it ; that is, he represents himself as being injured 
 in his right as a parishioner, and as having a title as a parishioner 
 to take legal proceedings. 
 
 But the force of this recent and well-considered precedent 
 goes further. The Privy Council allowed some, and disallowed 
 other ornaments, the legality of which was the subject of this 
 suit. With respect to the latter, they issued a monition for 
 their removal and alteration. Mr. Beal complained that this 
 monition had not been properly executed, but when he appeared 
 before the Privy Council, it .came out that he had ceased to be 
 an inhabitant of the district of St. Barnabas. The learned com- 
 missary and myself were counsel agaiast him, and so important 
 did it appear to us, that the rule of practice as to showing an 
 interest should be maintained, that for this purpose we formally 
 made the objection, which we afterwards withdrew, that Mr. 
 Beal had no interest to continue the suit, though he had law- 
 fully begun it. Mr. Moore's report of the case is quite correct. 
 It is as follows : — 
 
 " The counsel for the respondents took an objection, which 
 they did not press, to Beal being heard, as he had ceased to be 
 a parishioner or inhabitant within the district of St. Barnabas, 
 and therefore had no locus standi in an ecclesiastical court. 
 
 " Their Lordships intimated their opinion, that the objection 
 in general law and pra,ctice was correct, and that it was only in 
 
34° Ecclesiastical judgments. 
 
 the particular circumstances of the case, and having regard to 
 the waiver of the objection by the Incumbent and Church- 
 wardens, that Beal would be allowed to proceed, but that the 
 permission granted him was not to be considered a precedent." * 
 
 Here a party who had been qualified by his civil interest to 
 begin the suit, became disqualified, by the loss of that interest, 
 from contiQuing it. Here is no suggestion that the question 
 must be raised by formal pleading, or by appearance under 
 protest. 
 
 It would be difficult, I think, to conceive a stronger precedent 
 in favour of the appellant's contention. 
 
 It should be mentioned that no official interest, so to speak, 
 is set up in this case, indeed could not be, for the office of the 
 Judge is not promoted, which we all know requires a criminal 
 suit, and a proceeding by articles ; and as one of the defendants 
 is a clerk in Holy Orders, a proceeding must have been taken 
 against him under the statute. Nor is it irrelevant to notice, 
 that even if the ordinary were conducting his visitation, and 
 was required to order the removal of an improper or illegal 
 ornament in a church, such a requisition must be the subject of 
 a presentment made to him by the churchwardens or sidesmen, 
 who are necessarily parishioners, or by the incumbent. 
 
 I am of opinion that the monition in this suit, disclosing, as 
 it did, no interest, but rather a want of interest, in the party 
 proceeding, was bad upon the, face of it. 
 
 I think that the party cited had [a right to judgment upon 
 that point in his favour, at the time when in obedience to the 
 monition he appeared to show cause, even if he had not, as he 
 had, received notice through the registrar, that no further delay 
 would be allowed. 
 
 It has been suggested that the objection to the competence of 
 the party proceeding ought to have,been taken by formal plead- 
 ing. But why ? The fault was patent, and moreover could not 
 have been remedied by pleading. The party proceeding was 
 not entitled to take out the monition to commence a civil cause, 
 as Dr. Hay says. 
 
 The interest required in this particular case is the status of a 
 parishioner of St. Peter's, Folkestone, in the diocese of Canter- 
 bury, but the party proceeding has described himself as of 
 No. 2, Broad Sanctuary, in the city of Westminster, and there- 
 fore in the diocese of London. He could not be allowed, with- 
 out consent of the parties cited, to alter this designation, under 
 which he began this suit, by further pleading. It being incum- 
 bent on him, in the first instance, in order to entitle him to 
 take out a monition, to allege that he had an interest, he had 
 1 1 Moore, P. C. Rep. N.S., at p. 12. 
 
Fagg and Mummery N. Lee. 341 
 
 not only failed to do so, but had in effect stated the contrary. 
 The party cited had a right to be dismissed from this suit 
 according to principles, and according to the precedents to 
 which I have adverted. 
 
 I am very sorry to differ in opinion from the learned com- 
 missary of Canterbury, but, after a very careful examination of 
 his learned judgment, I am compelled to do so. 
 
 I must reverse the sentence of the Court below, and dismiss 
 the churchwardens from this suit with proper costs. 
 
BOYD AND OTHERS v. PHILLPOTTS. 
 
 (i.) The Court of Arches has jurisdiction to entertain an appeal 
 from the decision of a Bishop acting as visitor of the 
 Dean and Chapter of his cathedral. 
 
 (2.) The Bishop has not, at a visitation of the Dean and Chap- 
 ter of his cathedral, jurisdiction in invitos to order the 
 removal of a r credos in the cathedrcd on the ground that 
 it is unlawful. 
 
 (3.) It is not necessary for a Dean and Chapter to obtain a 
 faculty before making alterations or additions in their 
 cathedral. 
 
 (4.) A reredos having on it sculptured representations in bas- 
 relief of historical scenes taken from the New Testa- 
 ment, and surmounted by a cross and figures of angels, 
 is not unlawful. 
 
 I GAVE two judgments in tMs case, the first on tlie 
 3d of July, and the second on the 6th of A^ugust 1874. 
 
 There was no appeal from the first judgment, which 
 decided point (l.) 
 
 From the second judgment there was an appeal to the 
 Privy Council, who reversed my judgment on point (2.), 
 and aflBrmed it on points (3.) and (4.) 
 
 The case is reported in the Law Reports, in the 
 Arches Court, 4 Admiralty and Ecclesiastical, p. 297, in 
 the Privy CouncU, 6 Privy Council Appeals, p. 435. 
 
 First JuDaMENT. — This is an appeal from a judgment of 
 the Bishop of Exeter. It is admitted by the counsel for the 
 respondent, that an appeal does lie to some jurisdiction from 
 the judgment in this case. It is suggested first, that it lies to 
 the Archbishop in person ; secondly, that the Bishop's visita- 
 
Boyd and Others v. Phillpdtts. 343 
 
 tion in this matter is of the same kind, and not to be distin- 
 guished in point of law from the general visitation of his 
 diocese ; that he is visitor as ordinary, and not by any special 
 statute of the founder. 
 
 The objections which have been taken under protest, and 
 supported by the able argument of Mr. Phillpotts,' against 
 the jurisdiction of this Court, appear to be the following : — 
 First, that this is a personal act of the Bishop, and to be dis- 
 tinguished from an act which would be d6ne in his Consistory; 
 secondly, that that being the case, the appeal lies to the Arch- 
 bishop personally ; and thirdly, that th'e Dean of Arches being 
 only official principal, and not vicar-general', the appeal in a 
 case of this kind, even though it would lie to a vicar-general, 
 cannot be heard by an official principal. And here I may 
 observe that there is a good deal of confusion arising from 
 books which contain legal treatises on the jurisdiction of the 
 Bishop in his Court. The word " Ordinary," it is not suffi- 
 ciently remembered perhaps, as used in the statute, applies 
 either to the Bishop, acting personally, or to the Bishop acting 
 through the medium of his own officers in his Consistory. It 
 is very necessary to bear this in mind, because it clears up a 
 great many apparently confused and contradictory opinions, 
 which are to be found in the books on this subject. The 
 truth is, when the ordinary is spoken of, he is spoken of 
 either with relation to what' he can do in his personal capacity 
 of Bishop, or what he can do, according to law, through the 
 medium of his chancellor. Therefore, I should be of opinion 
 that the fact of an act having been done by the Bishop out of 
 his Court, as it might be for instance, on his triennial visita- 
 tion, would not debar the subject from the right of appeal to 
 the Metropolitan, which he has, from all acts done by his 
 Bishop ; and I am of opinion also that to appeal to the Metro- 
 politan means to appeal to the Metropolitan's Court, unless 
 indeed in the patent which is given to the Dean of Arches, 
 who fills the office of official principal to the Archbishop of 
 Canterbury, the powers which are to be exercised on the appeal 
 are specially exempted. If, therefore, there be an appeal to 
 some jurisdiction in this case, and if there be no distinction 
 between an act done by the Bishop in his ordinary visitation 
 of his diocese, and in his visitation of the cathedral, I should 
 be of opinion, apart from all precedent, that on the gene- 
 ral and well-established principle of ecclesiastical law, and 
 common law, an appeal would lie from the Bishop of Exeter, 
 as ordinary, in his visitation, to the Archbishop, or the Arch^ 
 bishop's Court, unless, as I said before, there are some words 
 ^ The counsel for the respondent. 
 
344 Ecclesiastical Judgments. 
 
 in the patent of the ofl&cial principal of the Arches Court 
 which exempt this jurisdiction from his authority. 
 
 Now the words of my patent, necessary to be referred to, 
 are as follows : — I am to " receive, in due form of law, aU and 
 every the appeals interposed or to be interposed to our Arches 
 Court of Canterbury, and all and every the complaints by law 
 and custom devolved or to be devolved to the said Court, and 
 also to take cognisance of and, proceed in all and every such 
 causes or businesses of Appeal and Complaint, and in all and 
 singular the causes and businesses whatsoever, now depending 
 undecided, or hereafter to be brought and examined in our said 
 Court; and to do, exercise and administer plenary justice, 
 according to the exigency of the law, and to the statutes of this 
 kingdom of Great Britain, to aU. and singular the parties in the 
 said suits, now or hereafter to be controverted ; and also receive 
 in due form of law, aU and singular the appeals interposed or 
 to be interposed from our Dean of the Arches, or his surrogate, 
 deputy, or commissary." That implies that the Dean of the 
 Arches was in early days separated from the official principal. 
 " And from all others whomsoever, interposed to the audience 
 of Us, and Our jurisdiction of our Church of Christ, Can- 
 terbury; and finally to determine the said causes of appeal 
 according to law, and the custom of the said Arches Court, 
 anciently used." 
 
 Now I should be of opinion that those words, taken in the 
 true construction, give ample power to this Court to receive, 
 on appeal, any pase which might be brought before the Arch- 
 bishop personally. 
 
 These observations I have made without any reference to 
 precedents, but it is necessary, before the Court closes its 
 observations, that some attention should be given to the pre- 
 cedents which have been cited. And those are of a twofold 
 character, ^precedents of appeal from the acts of the Bishop, 
 as visitor, to the Court of Arches, and subseq[uently to the 
 Court of Delegates ; and precedents of appeal from the sen- 
 tence of the Metropolitan to the Court of Delegates ; both 
 seeming to me to establish the same proposition, namely, that 
 there is a regular course of appeal in matters like the present, 
 through the usual stages of the ecclesiastical law; namely, 
 from the ordinary to the Metropolitan, whether through his 
 Court or personally, and from the Metropolitan to the Com- 
 missioners appointed by the Crown, or the Delegates, the duties 
 of which are now discharged by the judicial committee of the 
 Privy Council. 
 
 The precedents seem to be, perhaps with one exception, very 
 much to the point. They all, I should observe, are to be found 
 
■ Boyd and Others v. Phillpotts. 345 
 
 in a valuable document, a return to an address of the House of 
 Commons, dated the 5th of July 1865, by the present learned 
 Eegistrar of the Appeals, who is also Eegistrar of the Court of 
 Admiralty. It is a " Eeturn of all Appeals in cases of doctrine 
 or discipline made to the High Court of Delegates, from its 
 erection by the 25th Hen. Vlll. c. 1 9, A.D. 1533, until its abolition 
 by the 2d and 3d William IT. c. 92, A.D. 1832, specifying— (1.) 
 The date of the cause. (2.) The names and descriptions of 
 the parties. (3.) The Court appealed from. (4.) The nature 
 of the same. (5.) The names and descriptions of the delegates, 
 or con-delegates, distinguishing -whether appointed ' under the 
 great seal or half seal.' (6.) The nature of the sentence, or 
 whether the cause was otherwise settled or abandoned. (7.) 
 The date of the sentence." And I have never heard it sug- 
 gested that this document might not be safely relied upon 
 without reading the voluminous documents from which the 
 legal conclusion is drawn. 
 
 The first case, most material to notice, is numbered 15, and 
 that took place in the years 1610 and 1611 ; it was between a 
 clerk of the name of Eobert Withers, of the diocese of Exeter, 
 who appealed against certain Canons residentiary, and against 
 the Bishop of Exeter. The case was this: Withers was 
 deprived of his of&ce of vicar choral. There was an appeal 
 to the Arches, and an appeal to the Delegates, and no question 
 was raised as to that being the regular course of proceeding, or 
 as to the jurisdiction of the Court of Arches. 
 
 The next one, I think, was numbered 69, and was one which 
 has been a great deal discussed, both- on this and on a former 
 occasion. The case of Philip Havers, Clerk, v. The Bishop of 
 London, was in 1678 and 1679. It was a case of criminal 
 correction of a Clerk for having procured another person to be 
 ordained for him ; for having, in fact, consented to the forgery 
 of his name in the letters of Institution ; and was an appeal 
 from the Court held by the Bishop of London, during his 
 triennial visitation at Colchester. There was a decree of the 
 Court of Arches, it was afiSrmed, and went to the Delegates ; 
 and with those Delegates sat not less than one Justice of the 
 King's Bench, one Justice of the Common Pleas, a Baron of 
 the Exchequer, with five civilians and three Bishops, a very 
 full Court of Delegates indeed : and they affirmed the decree 
 of the Court of Arches, retained the cause, with the consent 
 of the respondent, and condemned Havers in costs. 
 
 I am unable to foUow the argument of the learned counsel 
 for the respondent, by which he has sought to impair the 
 stringency of these precedents, because it is well known to 
 us, — to those who have practised in the Ecclesiastical Courts, — 
 
346. Ecclesiastical judgments. 
 
 that it was competent for the Superior Court, if it pleased, to 
 adruit fresh evidence, though that was rarely done, and not 
 done without strong cause for' such necessity being shown. 
 
 In this case, what appears to have happened was that the 
 Bishop ordered the Clerk to do a certain act, namely, to write 
 a form of subscription, in order that he might compare it with 
 the alleged forgery before him. The Clerk refused to do so, 
 and he was suspended, I presume either because the Bishop 
 thought that that was sufficient proof of his having committed 
 the forgery, or for contempt of the Order of the Court, it does 
 not appear which. The appeal was by the Clerk, and the 
 Court of Arches took evidence as to the entries in the book of 
 subscriptions ; that is to say, it thought itself warranted, in the 
 peculiar circumstances of that very remarkable case, to do that 
 which it rarely does, namely, to admit fresh evidence, and the 
 result was that it considered the offence proved, and Havers 
 was sentenced' to salutary penance, which sentence was af&rmed 
 by the Delegates. 
 
 No. 102 was an appeal in the year 1696, in which the 
 vicar of the parish appealed. It was concerning the case of a 
 correction of a Clerk for immorality, and was appealed from the 
 Consistory of Hereford ; and this case is perhaps open to 
 a remark made by Mr. Phillpotts, that that appeal would be 
 in the ordinary course, and could hardly be considered a pre- 
 cedent for the present suit ; and I am inclined to think that 
 objection is well founded. 
 
 Then there is another precedent, I think ; it is not necessary to 
 go into them aU. There^is one, No. 1 60, which is one of a more 
 recent date — as late as 1740 — in which the Eev. Dr. Wynn, 
 one of the Canons residentiary of the Cathedral Church of 
 Salisbury, appealed. The complaint was against the Canon 
 residentiary, and the case was a very remarkable one. It was 
 "A business of complaint against a Canon residentiary for 
 alleged violation of cathedral statutes in dealing with the 
 capitular revenues." That was also an appeal from a Consis- 
 torial Court, namely, that of Salisbury, and was an appeal that 
 went up to the Arches, and then up to the Delegates. That 
 case seems rather to illustrate what I said in the beginning of 
 my remarks, that the Bishop sitting in his Court and the 
 Bishop sitting personally must' be considered, so far as the 
 question of appeal is concerned, as the same. This case No. 
 160 also, as I have mentioned, went up to Delegates. 
 
 There are one or two more that were mentioned to me, 1 34, 
 I think, and 135, but they aU go to the same point, namely, to 
 show that in cases of this description there has been an appeal 
 to the Court of Arches. 
 
Boyd and Others V. Phillpotts. 347 
 
 The precedent that was most relied upon, as counter- 
 balancing these rather strong authorities, was the case of Good- 
 man, which is not unfamiliar to me, because I remember it was a 
 cause which, many years ago, I had the honour of quoting in 
 argument before the Court of Queen's Bench, in a case of pro- 
 hibition, concerning the canonical punishment of the Dean of 
 York.i The case of Goodman was one that was chiefly relied 
 upon, and though it was very much pressed in the argument, 
 in the learned and elaborate judgment which was afterwards 
 delivered, in granting the prohibition, no reference whatever 
 was made to it, and it was well understood by the profession 
 that the Court of Queen's Bench were of opinion that it was 
 not a case so reported as to enable the Court to take any 
 cognisance of it at all, and for that reason, I suppose, no notice 
 was taken of it, in the very carefully drawn judgment, in 
 which every other case that bore upon the subject was re- 
 ferred to. 
 
 I am of opinion that both on principle, and on precedent, 
 as well as on the words of my Patent, I must overrule this 
 protest, pronounce for the jurisdiction of the Court, and assign 
 Mr. Phillpotts' client to appear absolutely in this case. 
 
 Second Judgment. — I. This is a case of considerable impor- 
 tance. It has been argued with much ability and learning 
 before me, and I gladly take this opportunity of thanking the 
 counsel on both sides for the assistance which their industry 
 and talent have rendered to the Court. 
 
 This is an appeal from a judgment of the Lord Bishop of 
 Exeter as " Visitor and Ordinary " of the cathedral church of 
 Exeter. At the petition of the Venerable William John Phill- 
 potts, chancellor of the diocese, archdeacon of Cornwall, and 
 prebendary of the cathedral, the Bishop held "an episcopal 
 visitation" of his cathedral and of the Dean and Chapter 
 thereof. The object of the petitioner was to obtain the removal 
 of a structure recently erected in the cathedral called a 
 " reredos." 
 
 The articles on this subject preferred by the visitor and the 
 answers of the Dean and Chapter were as follows : — 
 
 Art. 1. "Is there a reredos in the choir of our said cathedral 
 church ? If there is a reredos in the said choir, when was such 
 reredos erected ? " — (1.) " There is a reredos in the choir of th© 
 said cathedral church. Such reredos was begun to be erected 
 on 23d January 1873, and is not yet completed." 
 
 1 In the matter of the Dean of York, 2 Q. B. 1. 
 
34^ Ecclesiastical Judgments. 
 
 Art. 2. "Are there any images on such teredos ? What is 
 the nature or description of such images 1 When were such 
 images erected or placed there ? "—(2.) " There are on such, 
 reredos sculptured representations in has-relief of the three 
 following historical scenes, that is to say : — The Ascension of 
 our Blessed Lord, the Transfiguration of our Blessed Lord, 
 and the Descent of the Holy 'Ghost on the Day of Pentecost. 
 There is an angel at each side of the reredos, and two other 
 angels, one on each side of the cross which surmounts the 
 reredos. All these articles were cut or carved out of the 
 actual structure during the progress of the reredos." 
 
 Art. 3. "Was the said reredos erected in the choir of our 
 said cathedral church under any legal authority ? " — (3,) "Yes." 
 
 Art. 4. "Were the images on the said reredos erected or 
 placed there under any legal authority ?"— (4.) "The reredos 
 as described above was placed under legal authority." 
 
 Art. 5. " Is the retention of the images on the said reredos 
 sanctioned by the laws ecclesiastical ? " — (5.) " The retention of 
 the reredos in its present unfinished state and when completed 
 is sanctioned by the laws ecclesiastical." 
 
 The last appears to me a rather singular question from a 
 visitor. 
 
 The Bishop ordered this structure to be removed, and "either 
 a stone screen without images thereon to be erected, or an open 
 ironwork lately erected and now standing on each side of the 
 reredos to be continued so as to occupy its, place," and the Ten 
 Commandments to be set up at the east end of the choir of 
 the cathedral. 
 
 From this judgment the Dean and Canons appealed to this 
 Court; the respondent appeared at first under protest and 
 denied the jurisdiction of this Court. The Court, after hearing 
 counsel on both sides, pronounced against the protest, and 
 assigned the respondent to appear absolutely. In that sentence 
 the respondent has acqmesced. Nevertheless, as much confusion 
 and doubt appears to have prevailed in the present and other 
 instances of episcopal visitation of a cathedral, both as to the 
 nature, authority, and legal incidents of such a visitation and 
 as to the right of appeal from the acts of the ordinary as visitor, 
 I think it expedient to make a few preliminary remarks on 
 both subjects. 
 
 It is legally competent to the Bishop to visit his cathedral, 
 either at the triennial visitation of his diocese or at a special 
 visitiation of the cathedral. 
 
 It is the latter kind of visitation which, as I collect from the 
 circumstances of this case, the Bishop has exercised in the pre- 
 sent instance. 
 
Boyd and Others v. Phillpotts. 349 
 
 His authority has been invoked and put in use as visitor of 
 the cathedral alone, but nevertheless it is the ordinary epi- 
 scopal authority with which he is clothed on these occasions, 
 and not the special authority which belongs only to the visitor 
 of a college or private foundation. 
 
 A certain test by which the two jurisdictions, that of the 
 visitor of a college and of a cathedral, may be distinguished is 
 the liability to an appeal. In the former case there is no 
 appeal, in the latter there is {The, Bishop of St. David's v. Lucy, 
 Ld. Eaymond's Eep. p. 447, Philips v. Bury, 2 T. E., 346, 353). 
 Many instances are to be found of appeals, according to the 
 usual course of ecclesiastical law, from the acts of the ordinary 
 as visitor of a cathedral. 
 
 Thus in 1716, in the case of Lenem Boughton, an appeal from 
 the Dean and Chapter of York was prosecuted to the Arch- 
 bishop as visitor of the cathedral, and from his sentence to the 
 Delegates (page 66 of Printed Eeturn for the House of Com- 
 mons of Appeals to the Delegates, 5th July 1865, ISTo. 134), so 
 an appeal from the sentence of the Archbishop of Dublin as 
 visitor against a prebendaiy in 1718-19 was prosecuted to the 
 Delegates (ih. 66, Ko. 135, Harrison v. Archbishop of Dublin) ; 
 so in the case of Philip Havers (clerk) v. Bishop of London {ib. 
 30, No. 69), in 1679, there was an appeal from an act of the 
 Bishop on his triennial visitation to the Court of Arches and 
 the Delegates. In 1740, in the case of Wynn v. Sager and 
 Others, on the charge of alleged violation of the statutes of the 
 cathedral of Sahsbury, which was heard before the Bishop of 
 Salisbury, there was an appeal to the Arches and to the Dele- 
 gates {ib. 78, No. 160). 
 
 I am of opinion, therefore, that the appeal has been rightly 
 brought to this Court. 
 
 The Bishop conducted this visitation under the advice and 
 assistance of Sir Henry Singer Keating, one of the Judges of the 
 Court of Common Pleas, and in accordance with two opinions 
 of that learned assessor pronounced, in the first instance, that 
 he had jurisdiction as visitor over the fabric of the cathedral ; 
 and in the second instance that the reredos was illegal. 
 
 First, because, it was erected without a faculty granted by the 
 Bishop. 
 
 Secondly, because it contained images which were illegal and 
 contrary to the laws ecclesiastical of this realm. 
 
 The question as to the jurisdiction of the Bishop over the 
 fabric and the question as to the necessity of a faculty are so 
 interwoven that I think they must be considered together. 
 
 The appellants, as I understand their argumentj do not dis- 
 pute a power of the Bishop- to visit, but they contend that this 
 
35® Ecclesiastical judgments. 
 
 power is limited both by the general law which governs the 
 relations of a Bishop to the cathedral and by the special privi- 
 lege of the Dean and Canons of Exeter. I wUl say a word or 
 two upon the latter question iirst. 
 
 The learned assessor says (p. 64) " ... it seems to me that 
 the right of the Bishop to visit this cathedral, with aU those 
 rights that belong to an ordinary episcopal visitation, exists at 
 the present time." The words " ordinary episcopal visitation " 
 would properly denote the triennial visitation of the Bishop, 
 which does indeed usually commence with the visitation of the 
 cathedral. 
 
 But this does not appear to be the character of this visitation, 
 which was an extraordinary and special visitation, holden at 
 the application of a particular person to remedy a particular 
 grievance. 
 
 This is proved by the citation to the Dean and Chapter, 
 vehich is in the following words :— 
 
 " "Whereas the Venerable WUliam John Phillpotts, prebendary 
 of our said cathedral church and archdeacon of Cornwall, in our 
 diocese of Exeter, hath presented to us a petition, dated the 9th 
 day of June 1873, praying us to exercise our power as visitor 
 of our said cathedral of Exeter to visit the Dean and Chapter 
 of our cathedral of Exeter aforesaid, and to inquire into the 
 recent erection of a reredos in the choir of our said cathedral 
 church, with certain images thereon, not being on any tomb, or 
 in any painted window, such erection having been made, as 
 alleged by the petitioner, without our consent, and the imiages 
 aforesaid so placed being in themselves contrary to the laws 
 ecclesiastical of this realm, as the petitioner, when called upon, 
 ' alleges he is ready to prove ; and further praying that, on such 
 proofs being made clear to our satisfaction, we would order the 
 removal of the images aforesaid, and the substitution of the 
 Ten Commandments in their stead." 
 
 I may here observe that the other episcopal visitations of the 
 cathedral referred to in the process seem to have been during 
 the triennial visitation. Such is my inference, at least, from 
 the words (p. 37 of process), " primary visitation." And in the 
 Dean of York's case (referred to, p. 46 of process), the visitation, 
 though not part of the triennial visitation, was not confined to 
 a special purpose, like the present, but was a visitation of the 
 whole cathedral. 
 
 The case of Parham v. Templar (3 Phillimore, Eep. p. 223) 
 has been much relied upon, and it is a case of very great im- 
 portance. The Dean and Chapter had at that time a Peculiar, 
 in which they granted probates of testaments. Their Peculiar 
 Court decided a case relating to a pew in the nave of the 
 
Boyd and Others '^. Phillpotts. 351 
 
 cliTirch of Ashburton, and the question to be decided by that 
 most learned ecclesiastical Judge, Sir John Nicholl, was whether 
 the appeal lay to the Consistory Court of Exeter or to the Court 
 of Arches. Sir John Nicholl, in a very careful and elaborate 
 judgment, ruled that the appeal lay to the Arches. 
 
 "... I am not aware," he said, " that one instance is to be 
 found in which an appeal has been brought from Deans and 
 Chapters to the Bishop, and afterwards from the Bishop to the 
 Archbishop. The conclusion which I draw frpm this view of 
 the subject is this, that as by the general rule of law, a Peculiar 
 is not subject to the ordinary authority of the diocese ; so the 
 appeal does not lie from the Peculiar, and more especially the 
 Peculiar of a Dean and Chapter, to the diocesan, but to the 
 Metropolitan. The Peculiar in question is that of the Dean 
 and Chapter of Exeter, which is clearly of the species I have 
 just taken a view of; — namely, exclusive of the Bishop in 
 the hearing of causes, and. exempt from the Bishop in point of 
 visitation."— (Pp. 250, 251.) 
 
 Again he says : "The general result of this is that a Peculiar 
 is not subordinate to, but co-ordinate with, the jurisdiction of 
 a bishop."— (P. 248.) 
 
 And again : " Now upon these authorities, the practice, the 
 propriety, and the reason of the thing lead to the same con- 
 clusion ; and if the Bishop have no concurrence whatever in 
 the hearing of causes, and if the Bishop have no right of visita- 
 tion, he seems to be in no one particular the ordinary of the 
 place ; but the Peculiar is quoad hoc co-ordinate with the Bishop, 
 and the only appeal is to the Metropolitan. There may, 
 indeed, have been specially and originally reserved to the 
 Bishop some particular acts ; such as the granting probate to 
 the will of persons of higher degree, and the granting of 
 licenses; and certainly, as far as these exceptions go, the 
 Peculiar does not exclude the Bishop. But if the Peculiar has 
 the hearing of causes as weU 'ad instantiam partis' as ' ex of&cio,' 
 and is exempted from visitation, it should seem, in common 
 propriety, that his superior is not the Bishop, but the Metro- 
 politan."— (P. 249.) 
 
 The appellants accordingly contend, not that the cathedral 
 is ex lex, but subject to the jurisdiction of the Archbishop of 
 the province. 
 
 Now certainly, after such a judgment as this, the burden of 
 showing that the privilege of exemption claimed by the Dean 
 and Chapter has ceased, lies upon the petitioner in the Court 
 below, the respondent here. 
 
 He seeks to discharge it principally by the allegations that 
 the Peculiar has been destroyed by an Order in Council, and 
 
35 2 Ecclesiastical Judgments. 
 
 that the Dean and Chapter have admitted as much in answer 
 to questions issued by the Cathedral Commission. 
 
 The Order in Council declares all Peculiar and exempt juris- 
 dictions within the diocese of Exeter abolished, " except that 
 the cathedral church of Exeter shall remain and be subject to 
 the same jurisdiction and visitation to which the same is now 
 by law subject, and to none other." — (Order in Council gazetted 
 22d February 1848.)i 
 
 The Cathedral Commission in 1852 contained a variety of 
 questions to Deans and Chapters, the 9th of which was " as to 
 the relations" between the Chapter and the Bishop of the 
 diocese, and asks whether they are defined by any statute, 
 charter, or composition. — (P. 51 of Process.) 
 
 The answer of the Dean and Chapter of Exeter was : — " The 
 relation of the Bishop to the Chapter is that of visitor. The 
 rights of the Bishop in the cathedral are those of Bishop of the 
 see. The Chapter are not aware of any definition of such 
 relation by royal charter, by the statutes, or any composition. 
 The present Bishop holds with the bishopric the dignity and 
 office of treasurer, and a place of canonry. As such he holds 
 the separate endowment of the dignity, and takes his share as 
 canon of the common fund. The Bishop has no other payment 
 from the Chapter." — (P. 51 of Process.)^ 
 
 The learned assessor was much impressed by this answer, 
 inasmuch as it contained no limitation of the Bishop's power 
 as visitor, and it appears to have been mainly, if not exclusively 
 •upon this ground, that he advised the Bishop to proceed with 
 the visitation. 
 
 I confess that this seems to me rather a large conclu- 
 sion to draw from slender premises. If the privileges con- 
 tended for did exist in fact and in law at the time of the 
 answer, it seems to me difficult to say that an inaccurate or 
 meagre statement in the answer could destroy them, while the 
 language of the Order in Council, which is in effect a statute, 
 appears carefully to preserve them. 
 
 I think the point is one of considerable difficulty, while the 
 great respect which I feel for the opinion of the learned 
 assessor, who felt no doubt about it, makes me very anxious 
 to avoid, if I can do so with justice to the suitors, arriving at 
 a decision not in accordance with his. 
 
 No>v inasmuch as the appellants do admit a power of visi- 
 tation in the Bishop, and as the whole of their argument 
 against the particular exercise of it in the present case is sub- 
 
 1 Ecclesiastical Commissioners, Orders in Council, vol. vi. pp. 135, 138. 
 
 2 Cathedral Commission, 1st report. Appendix, Answers from Chapters 
 p. 193. 
 
Boyd' and Others V. PhiUpotts. 353 
 
 gtantially founded upon the general relations subsisting between 
 all deans and chapters and their bishops, rather than upon the 
 peculiar relation alleged to subsist between the Dean and 
 Chapter of Exeter and their Bishop, I think I may proceed to 
 decide this case with respect to the former alone. 
 
 But I wish to make here a preliminary observation which 
 appears to me not unimportant in its bearing upon every part 
 of this case. 
 
 The special episcopal visitation which the Bishop has made 
 in this case was not for the purpose of enforcing old nor of 
 making new statutes — I am not adjudicating upon his power 
 in this matter. This visitation has for its object the enforcing 
 the general ecclesiastical law, whatever that may be, with 
 respect to the fabric of the cathedral. But the general eccle- 
 siastical law, whether it relate to inanimate things like the 
 building and ornaments, or to the persons of the cathedral- 
 of&cers, must be enforced by that Court which properly has 
 jurisdiction over the subject-matter, and can execute its 
 decrees ; the members of the cathedral body are certainly 
 visitable by the bishop, and all offences committed by them 
 against the ecclesiastical law, whether doctrinal or moralj 
 are no doubt in a sense corrigible by him ; but not since the 
 Dean of York's case, summarily, and at the time of visitation, 
 as fellows of a college are corrigible by their visitor, but by 
 subsequent process in a regular Court. So an offence against 
 the common law, such as stealing the Holy Communion plate, 
 may be inquired into and detected at the Bishop's visitation ; 
 but the real punishment of the offender would be effected 
 through the agency of the ordinary criminal court. 
 
 I asked during the course of the argument how it was pro- 
 posed to enforce the order of the Bishop in this case, but I 
 received no answer. 
 
 The Bishop, under the advice of his learned assessor, founded, 
 as I have said, his judgment against the Dean and Canons 
 partly upon the grounds that the reredos had been put up 
 without a faculty. 
 
 The proposition of ecclesiastical law involved in this part of 
 the sentence has very greatly surprised me. After an experi- 
 ence of no ordinary length with the subject of faculties, which, 
 as chancellor of various dioceses before I occupied my pre^t 
 position, I have often been compelled to consider in all its 
 bearings, I could not recoUect a single instance in which a Dean 
 and Chapter had asked for or obtained a faculty from the bishop 
 for alterations in their cathedral. It has been admitted that 
 after a careful search no record can be found of such a faculty 
 having ever been issued for the cathedral of Exeter, the interior 
 
354 Ecclesiastical Judgments. 
 
 of whieli not only appears to have often iindergone alterations, 
 but which actually contained a reredos with paintings on it 
 (for which the present reredos was substituted), put up in 1823 
 without a faculty. 
 
 It wovdd not have surprised me to learn that in some 
 cathedrals which included within their walls — as Chichester 
 and Carlisle cathedral did formerly, and as I believe Bangor 
 cathedral does still — a parochial church, a faculty had been 
 obtained from the Consistorial Court for alterations in such a 
 parochial church, and upon inquiring I find that in 1813 a 
 faculty so specially limited was granted in the diocese of 
 Carlisle. The faculty recites that a certain part of the cathedral 
 had been, by permission of the Dean and Chapter, used as a 
 parochial church, that the Dean and Chapter had applied for 
 a faculty to erect a gallery and seats in that peculiar part, 
 and such faculty was granted in and issued from the Consis- 
 torial Court. The parish church itself was afterwards removed 
 from the cathedral without a faculty. This particular, and I 
 believe solitary, exception seems to strengthen the general rule 
 to the contrary. When the nature of the instrument called 
 a faculty is duly considered, the reason why the obligation 
 of obtaining one for alterations in a cathedral has never yet 
 been imposed upon a dean and chapter is pretty evident. 
 
 A faculty is, properly speaking, a license issued by the ordi- 
 nary through his Consistorial Court — formerly some Peculiar as 
 well as all Consistorial Courts had this jurisdiction — ^to effect 
 certain alterations of a grave character in a parish church. 
 The issue of this instrument is preceded by a citation affixed 
 to the church door, calling upon all parishioners to show cause, 
 if they desire to do so, against the grant of the faculty upon a 
 certain day in the Court ; if they do appear a suit begins, and 
 is prosecuted in the usual manner. In many cases the dis- 
 cretion of the ordinary alone is invoked, and the legality or 
 illegality of what is proposed to be done is not mooted. Now 
 if there are no parishioners to cite in the case of a cathedral 
 — for it is not to be supposed that the maxim that the cathe- 
 dral is the parish church of the diocese would entitle aU the 
 inhabitants of the diocese to be cited — it could not be seriously 
 maintained, e.g. that the Dean and Chapter of St. Paul's must 
 obtain a faculty from the Bishop's consistory to render legal 
 the embellishments now in process of being effected in their 
 cathedral, in which case aU the parishioners of London (and 
 indeed the whole diocese) would have a right to be cited before 
 the faculty issued. 
 
 Nor can any consequence of importance be drawn from the 
 fact that generally the close, that is the claustrum or immediate 
 
Boyd and Others v. Phillpotts. 355 
 
 precincta of the cathedral, is considered as a sort of parish for 
 the purpose of publications of banns of marriage and other 
 matters; neither of these circumstances interfere with the_ legal 
 position that the primary discretion at least, if not the ultimate 
 discretipn in all that relates to the ornaments and structure of 
 their own cathedral, is vested in the dean and chapter. _ The 
 fact was admitted, and indeed could not be denied, that in the 
 cathedrals of St. Paul's, "Worcester, Salisbury, Chichester, 
 Chester, and Llandaff, very material, extensive, and substantial 
 alterations had been effected without a faculty; other cathe- 
 drals might, I think, be added to the list. 
 
 The Queen's Bench said in the Dean of York's case (2 Q. B. 
 38) : " the law can only be proved by practice and precedent. 
 Both are wanting here ;" and so are both wanting in this matter 
 of a cathedral faculty, and against this universal negative of 
 practice and precedent is not to be set the oVite,r didwm of even 
 so great a judge as Lord Stowell, that an ordinary might com- 
 pel the erection of an organ in a cathedral, even if that dictum 
 supported, as in truth it is very far from doing, the position 
 that an episcopal faculty was necessary whenever an important 
 alteration was made in a cathedral. 
 
 And here this remark occurs to me. The Peculiar Courts of 
 deans and chapters, exempt as that of Exeter certainly once 
 was from the jurisdiction of the bishop, exercised to a great 
 extent the functions of the ordinary, and not only adjudicated 
 upon questions of testaments and marriages (to say nothing of 
 their criminal jurisdiction), but also as a matter of course upon 
 questions of faculties. A well-known instance is the case of 
 the painted window of Saint Margaret's, Westminster, in the 
 Commissary's Court of the Dean and Chapter of Westminster 
 (1758-60). 
 
 I have not been able to discover any single instance in which 
 a dean and chapter caused a faculty to issue from their own 
 Court for alterations in their own cathedral. The reason appears 
 to me obvious ; they were the only persons legally interested, 
 and what was done was necessarily done by their authority. A 
 faculty, therefore, was not required, and in no one instance 
 obtained. 
 
 It must be remembered, with reference to this as well as other 
 relations of the dean and chapter to the bishop, that they are 
 properly speaking his councU ; that they are, as Bishop Stilling- 
 fleet says, episcapi confratres, consiliarii assessores, membra episco- 
 patus. " The dean and chapter " (Lord Coke says) " were ap- 
 pointed as a council to the bishop, with whom he is to consult 
 in all cases of dif&culty, to which purpose every bishop habet 
 cathedram, and who are to consent to every grant, etc.," and he 
 
356 Ecclesiastical Judgments. 
 
 adds, " although they should depart with their possessions, yet 
 for necessity the corporation doth remain, as well to assist the 
 bishop in his calling as to give their assent." — {Phillim. Ecc. 
 Law, p. 148, 3 Eep. 75.) The bishop indeed has his throne in 
 the cathedral, and has a right to preach in it, but it is manifest 
 that the relations of the dean and chapter to the Ordinary are 
 very different from those of the clergy generally. The dean 
 and chapter have privileges which parochial incumbents and 
 curates have not, both with respect to the services in their 
 cathedrals, the faWc itself, and various other matters ; and, as 
 has been shown, their consent is required in order to confer 
 validity on certain acts of the bishop. 
 
 This observation may tend to explain in some degree the 
 difficulty which would arise as to the enforcement of the in- 
 junctions of the bishop, as visitor, when he acts personally as 
 visitor, or otherwise than through his Court. 
 
 The inquiries and subsequent injunctions of the ordinary or 
 visitor, to be found in the books and in the records of this and 
 of other cathedrals, were often, it is to be hoped, and should 
 always have been, the result of previous council taken with the 
 dean and chapter, and generally, though certainly not always, 
 obeyed. 
 
 In the Appendix to the Eeport of the Cathedral Commis- 
 sioners (1854), I lind the following confirmation of my opinion 
 with respect to the present case, "The statutes," it is there 
 said, " which govern the church of Exeter were enacted from 
 time to time, pro re nata. They were framed in the form of 
 injunctions from the bishop, as visitor, requiring the more 
 accurate observance of existing ordinances or of new statutes, 
 either suggested by the chapter to the visitor or framed by him 
 at their request and with their concurrence, and finally accepted 
 by the body. No instrument has ever been allowed to be of 
 any force unless ratified by the bishop and chapter, and 
 authenticated by the seals of both." ^ (Appendix to Eeport of 
 Cathedral Commissioners, 1854, p. 183; "Exeter Cathedral," 
 Constitution of the Chapter.) 
 
 In one of the latest visitations of the dean and chapter (p. 
 50 of Process) there is an entry in the Acts of the dean and 
 chapter (Dec. 22, 1731), from which it appears that at a chapter 
 at which the dean and all the canons were present it was 
 
 1 " The Bishop, with the advice of the Dean and Chapter, enacts rules for 
 the government of the cathedral church. Lichfield, Dugdale iii. 239-256. 
 Ed. 1673, viii. 1240-1265, Ed. 1830. Wells, Wilkina, Concilia magnce 
 Britannice et Hibernice (London, 1737), i. 683. Salisbury, Wilkins, ibid. 
 715. St. Paul's, Strype's Life of Grindal, b. 1, c. 6, b. 2, o. 2. York, 
 Cfrindal's Jlemains (Parker Society's Ed.), pp. 145, 153." 
 
Boyd and Others v. Phillpotts. 357 
 
 ordered that a memorandum should be made in the statute- 
 book to the effect that certain " pretended statutes/' as they 
 are described, entered in the name of Bishop Wootton, were 
 never confirmed by the dean and chapter, and are therefore to 
 be considered as " invalida et irriia." 
 
 Now from the year 1709 down to the death of the late dis- 
 tinguished bishop, the Bishop of Exeter was always a canon, 
 and it appears that the then bishop of the diocese himself was 
 present and an assenting party to the order which declared 
 these statutes of Bishop Wootton to be null and void. 
 
 A careful consideration of the whole of this question, with 
 reference both to principle and to practice, leads me to a clear 
 conclusion that the absence of an episcopal faculty does not 
 render the erection of this reredos illegal. 
 
 Now the answer to the twin question (if I may so express 
 myself), viz., as to the power of the bishop to order the removal 
 of the reredos without the consent of the dean and chapter, 
 seems in great measure to be anticipated by the decision upon 
 the question of the faculty. 
 
 I am of opinion that the bishop acting alone had not the 
 power to order the removal of the structure any more than he 
 had the power, acting alone, to prevent its being put up. But 
 inasmuch as I may be wrong, and as I think the parties have 
 a right to the judgment of this Court upon the most important 
 part of this case, namely, the legality of the structure itself, I 
 will not shrink from the labour and responsibility of giving my 
 judgment on this point also. 
 
 II. 
 
 I win assume, therefore, that the Bishop had jurisdiction 
 over the fabric of the cathedral, and had power to order the 
 removal of an illegal structure therein, and I proceed to con- 
 sider whether the sentence of his Lordship pronouncing the 
 reredos to be illegal was or was not well founded in law. 
 
 And first, what kind of structure is a reredos in the general 
 and usual sense of the term ? 
 
 A reredos is, I learn from The Glossary of Architecture, pub- 
 Ushed in 1840, a sort of screen at the back of the altar, called 
 also lardos, I'arrike-dos. The same authority informs me that 
 " The reredos at the back of the side altars frequently remains 
 m our cathedrals, and also in country churches, when the altar 
 Itself is destroyed. Sometimes the figures in the niches of the 
 reredos remain perfect, or nearly so, as at Hanwell, near Ban- 
 bury, Oxon. More frequently the niches are empty, as at St 
 Michael's, Oxford (Plate 67). At Enstone, Oxon, a plain stone 
 
358 Ecclesiastical Judgments. 
 
 altar with its reredos still remains." — {Glossary of Architecture, 
 Part I. p. 174, Parker.) 
 
 Since the date of this publication thii'ty-four years ago, 
 reredoses have been restored in many of our cathedrals. 
 
 The objection against the reredos per se without figures seems 
 to be that it was put up without a faculty, for the former stone 
 screen was in effect the reredos without figures. It was a solid 
 screen in compartments, with Gothic ornaments extending 
 across the whole east end of the choir. The removal of this 
 screen is declared by the bishop to have been illegal. But the 
 present reredos with the figures is ordered to be removed. 
 The substantial question is, whether the particular figures 
 rendered this stone screen reredos illegal ? 
 
 The next inquiry is, what is the character of this particular 
 reredos ? 
 
 The answer of the dean and chapter is, " There are on such 
 reredos sculptured representations in bas-relief of the three 
 following historical scenes ; that is to say, the Ascension of our 
 Blessed Lord, the Transfiguration of our Blessed Lord, and the 
 Descent of the Holy Ghost on the Day of Pentecost : there is 
 an angel at each side of the reredos, and two other angels, one 
 on each side of the cross which surmounts the reredos. All 
 these articles were cut or carved out of the actual structure 
 during the progress of the reredos." 
 
 Surely, apart from all legal considerations, it would be diffi- 
 cult to conceive a series of representations more likely to edify 
 and instruct the spectators in Christianity, and less obnoxious 
 to the charge of superstition than those which have been just 
 described. Nevertheless, if such representations be prohibited 
 by the law of the English Church, that law must be enforced 
 by this Court. 
 
 In Mr. Phillpotts'^ argument, images have been objected to on 
 various grounds ; the principal were, I think, the following : — 
 
 1. That they were contrary to the usage and practice of 
 
 the pure and primitive Church : 
 
 2. That they were objects of especial censure by those who 
 
 conducted the Eeformation in England : 
 
 3. That they were ordered to be moved out of churches by 
 
 various authorities having the force of law : 
 
 4. That there is a specific statute which renders them 
 
 illegal: 
 
 5. That if it is a matter of discretion whether they shall 
 
 be allowed to remain or not, that discretion ought 
 to be exercised in favour of this removal, inasmuch 
 as they tend to idolatry, forbidden by the Second 
 '' The counsel for the respondent. 
 
Boyd and Others w. Phillpotts. 359 
 
 Commandment, and to superstitions favoured by 
 the Church of Eome and rejected by the Church of 
 England. 
 
 There was another objection which I mention, a little per- 
 haps out of its place, because I think it may be disposed of at 
 once. It is the objection that the Ten Commandments have 
 been displaced to make room for this reredos. The answer of 
 the Dean and Chapter is that they intend to comply with the 
 injunctions of the canon in this case by placing the Command- 
 ments on the east wall where they can be seen by the people ; 
 and Sir Henry Keating observes with perfect accuracy, " As, 
 however, the Judicial Committee in the case of We&teirton, v. Beal 
 held that the requirements of the law can be fulfilled in some 
 cases without placing the Commandments over the table, pro- 
 vided they are so placed as to be read by the people, It must, T 
 think, be taken to be the intention of the Dean and Canons so 
 to place the Commandments as to be a compliance with the 
 law."— (P. 166 of Process.) 
 
 It is true that, nevertheless, the Bishop has made an order 
 upon this subject also; but I entirely agree with Sir Henry 
 Keating both in his statement of the law and in his opinion, 
 that it is to be presumed in this case that the Dean and Chapter 
 intend to obey it. I pass by, therefore, this objection. 
 
 With respect to the other objections, I hope I have correctly 
 stated, as I have endeavoured to do, the heads under which Mr. 
 Phillpotts arranged his able argument, and I propose to deal 
 with them in succession, and pretty much in the same order. 
 
 An anxious care to avoid the idolatry of the Jews and the 
 Gentiles was no doubt the reason why, in the earliest Christian 
 history, the Acts of the Apostles, we find St. Stephen applying 
 the words of the prophet Amos to the Israelites, and rebuking 
 them "for the figures which ye made to worship them," "toli? 
 TVTTou? ous eVotTjo-are irpoa'Kvvelv avTovi" — (Acts of the Apostles, 
 vii. 43.) 
 
 During the first three centuries, images in churches were very 
 rare, if they existed at aU. Fleury, indeed, states, upon the 
 authority of Tertullian, that there were images in some churches, 
 and upon the vessels used in divine worship (Histoire Ecclesi- 
 astique, torn. 2, 1. v. p. 54). The warning of St. John (1 Ep. v. 
 2]) against idols related to the sacrifices offered by the heathen 
 to their idols, from which Christians were admonished to abstain. 
 But the New Testament being silent on the subject of images 
 generally, the moral text of the Second Commandment appears 
 to have been considered binding upon Christians. And Ter- 
 tullian, in his answer to the Marcionites, observes that the 
 Jews were not prohibited from having images unless they wor- 
 
360 Ecclesiastical ytidgments. 
 
 shipped them, and that therefore there was no contradiction 
 between the Second Commandment and the cherubim ordained 
 for the ark, or the brazen serpent (Fleuryj ibid.) The words 
 of Tertullian are : " Sic et cherubin et seraphin aurea in arcae 
 figuratum exemplum certe simplex omamentum, accommodata 
 suggestui, longe diversas habendo causas ab idolatrise condi^ 
 tione, ob quam similitude prohibetur, non videntur similitudi- 
 num prohibitarum legi refragari, non in eo similitudinis statu 
 deprehensa ob quem similitudo prohibetur." — (Tertull. Opera, 
 Adversus Marcion, Ub. ii. cap. 22.) 
 
 As the authority of the Second Commandment was a part of 
 the argument addressed to me against the use of graven images 
 in a church, it is not irrelevant to advert to the opinion of 
 Bishop Taylor upon this point. Eeferring to the prohibition 
 in the Second Commandment, he does not mention the two 
 cherubim of gold in the ark, stretching forth their wings on 
 high and their faces looking one to another, and toward the 
 mercy seat (Exodus xxv. 20), or " the molten sea, and under it 
 the similitude of the twelve oxen which did compass it about," 
 or "the two cherubim of image work overlaid with gold"^ 
 (2 Chron. iii. 10, iv. 2, 3) ; but he observes:— 7" But when we 
 consider further, that Solomon caused golden lions to be made 
 about his throne, and the Jews imprinted images on their 
 money, and in Christ's time they used the images of Caesar on 
 their coin, and found no reprover for so doing, this shows that 
 there was something in the Commandment that was not moral; 
 I mean the prohibition of making or having any images. For 
 to these things we find no command of God, no dispensation, 
 no allowance positive; but the immunity of reason, and the! 
 indemnity of not being reproved : and therefore, for so much 
 as concerns the making or having pictures and images, we ar© 
 at liberty, without the warranty of an express commandment 
 from God " (Eule of Conscience, Eule vi. Bishop Taylor's Works, 
 ToL xii., Heber's ed. p. 397). 
 
 Some of the Fathers of the primitive church condemned the 
 arts of painting and sculpture as in themselves wicked, and 
 declared, as Jeremy Taylor says, that " God forbade the very 
 trade in itself" (p. 395). But he adds, " Now if this sense 
 was also in the commandment, it is certain that this was but 
 temporary; and therefore could change:" and he cites the 
 instances of God's assisting Bezaleel and Aholiab (p. 396). 
 
 "I conclude" (he says) "that the Second Commandment 
 is a moral and natural precept in the whole body and consti- 
 
 1 "Videatur fmsse humana ^ecie instar juvennm alatomm iit angeli 
 apnd nos pingi solent ad representandum' eorum perennitatem, vivaoitatem, 
 vigorem, celeritatem."^^Coraei. Jansem Spiecopi Iprensis Pentaieuchutip. 315. 
 
Boyd and Others v. Phillpotts. 36 1 
 
 tution of it, if the first words of it be relative to the last ; that 
 is, if the prohibition of making images be understood so as to 
 include an order to their worship : but if these words be made 
 to be a distinct period, then that period was only obligatory 
 to the Jews, and to Christians in equal danger, and under the 
 same reason ; and therefore can also pass away with the rea- 
 son, which was but temporary, transient, and accidental ; all 
 the rest retaining their prime, natural, and essential obligation." 
 {Bf. Taylor's Works, vol. xii., Heber's ed., p. 412, "Of the 
 Christian Law," § 42.) 
 
 The use of images, however, increased as the church in- 
 creased, though the Council of EKberis (A.D. 305), by its 36th 
 canon, said, " Placuit picturas in ecclesia esse non debere, ne 
 quod colitur et adoratur in parietibus depingatur." It will be 
 . observed that this canon is against painted pictures. 
 
 But the struggle against the natural course of events was 
 vain. It was apparent that there was a language to be 
 addressed to the eye as well as the ear, that men might be 
 taught by form and colour as well as by sound, and that many 
 incapable of the latter were capable of the former kind of 
 education. 
 
 Gregory the Great wrote to Serenus, Bishop of Marseilles, 
 who had broken images in churches, a letter full of good 
 sense : ^ — " . . . Perlatxim siquidem " (he says), " ad nos fuerat, 
 quod inconsiderato zelo succensus, sanctorum imagines sub hac 
 quasi excusatione, ne adorari debuissent, confregeris. Et 
 quidem quia eas adorari vetuisses omnino laudavimus, fregisse 
 vero reprehendimus. Die, frater a quo factum sacerdote 
 aliquando auditum est quod fecisti ? . . . Aliud est enim 
 picturam adorare, aliud per picturse historiam quid sit adoran- 
 dum addiscere. Nam quod legentibus scriptura, hoc idiotis 
 praestat pictura cernentibus, quia in ipsa etiam ignorantes 
 vident quod sequi debeant, in ipsa legunt qui liberas nesciunt 
 unde et prsecipue gentibus pro lectione pictura est . . , Frangi 
 ergo non debuit, quod non adorandum in ecclesiis, sed ad 
 instruendas solummodo mentes fuit nescientium coUocatum." 
 
 The distinction here taken between the use and abuse of 
 images was one never entirely lost sight of by our Church, 
 though during one period much obscured. 
 
 We pass on to the eighth century, which the learned Cave 
 calls " sseculum iconoclasticum." He says, " Totum pane ssecu- 
 lum exercet famosa de cjiltu imaginum controversia." ^ 
 
 1 B. Oregorius Opera omnia, " Epistolarum ex Eegistro," lib. ix., Indio- 
 tione iv., Epist. ix. (p. 438 g., ed. 1533, Paris.) 
 
 ^ Cave, Scriptorum Ecclesiasticorum Historia Literaria, vol. i., p. 611 
 (ed. 1741). ' 
 
362 ' Ecclesiastical judgments. 
 
 All persons acquainted with the history of this period 
 are aware that the Greek Emperor Philip and John the 
 Patriarch ejected images from the Church of Sta. Sophia by an 
 edict in 713, the Eoman Pope stoutly protesting against the 
 act ; that the Emperor Leo, called the Isaurian, passed a law 
 in 706 against images in churches, and was excommunicated 
 by the Pope ; that the Emperor Constantine Copronymus con- 
 vened the Council at Constantinople, called the Seventh, which 
 in 741 decreed that images {irpoa/cvvrja-em'; causa) for purposes 
 of worship, were unlawful, both in churches and private 
 houses — a curious sort of prototype of the statute of Edward vi. 
 
 Dean Milman remarks that "The cold naked walls, from 
 whence the scriptural histories had been effaced, the despoiled 
 shrines, the mutilated images, could not compel the mind to a 
 more pure and immaterial conception of God and the Saviour." 
 — {Hist, of Latin Christianity, ii. 146.) 
 
 The Empress Irene, with her son Constantine, a minor, con- 
 vened the Second Council of Nictea in 776, which declared 
 null the Seventh Council of Constantinople ; each party raged 
 furiously against the other ; the reciprocal charges of idolatry 
 and denouncers of Christ began to be freely made,^ and their 
 influence has not yet expired. 
 
 This Council ordered certain images to be set up in all 
 churches and houses to be worshipped, lit up with tapers, and 
 to receive other marks of worship {irpoa-Kwricrecoi). 
 
 " The worship of images," Mr. Eobertson observes {Hist, of 
 Christian Church, vol. ii. p. 261, ed. 1856), "although only 
 in the form of painting, not of sculpture, has ever since been 
 retained by the Greeks." 
 
 Charlemagne, who was as determined as any Tudor sovereign 
 that the church of his realms should be governed by neither 
 Pope nor Patriarch without his consent, convened a Synod of 
 Bishops at Frankfort in 794, and in the well-known Four 
 Caroline Books refuted the edict of the Second Nicene Council, 
 and decreed that images should not be worshipped though re- 
 tained in churches. Our early English chronicler, Hoveden, 
 writing about the same time, mentions the fact that Charle- 
 magne communicated with England on the subject, and speaks 
 himself of the adoration of images as execrated by the church. 
 — (Cave, ibid. vol. i. pp. 611, 612.) 
 
 1 " Tempore hujus ooncilii, atque ante seque ac poStea, oultns imaginum 
 oppugnatores, Ohristi acmctorumqm imagines, eo nomine ut adorentur facias, 
 iUola esse asseverariiut ; ac pro inde Christianos, qui eas colunt, idolatriae 
 accusarunt : quo factum est ut ipsi, a coutraria parte, sive ab imaginiua 
 cultoribus xp"''"''"""'""?')"'?"" audirent." Beveridge Sunodocon sive Pan- 
 dectce Ca/nonum , . . — VoL 11., Annotationes in Canones ConcUii Nioenci 
 secuudi, p. 165, Oxen, 1672. 
 
Boyd and Others v. PhiUpotts. 363 
 
 "An image or an idol do not differ in themselves," says 
 Bishop Taylor, " but by use and custom of speaking, the church 
 calling it an image so long as it is used lawfully ; but it is an 
 idol when it is used unlawfully." 
 
 Then he cites, as expressing his own opinion, the words of 
 the author of the Caroline Books, " nos imagines in hasilicis 
 posiias, idola non nuncupamus ; sed ne idola nuncupentur 
 adorare et colere eas recusamus." — {Bishop Taylor's Works, 
 vol. xii. Heber's ed. p. 394, " Of the Christian Law," etc.) 
 
 At this period, as well as after the Eeformation, our Church 
 endeavoured to take a via media, and agreed with the Council 
 of Frankfort. 
 
 Gibbon sums up correctly the history of this time so far as 
 it relates to the use of images in the non-Italian churches of 
 Europe. " The churches of France " (he says), " Germany, Eng- 
 land, and Spain steered a middle course between the adoration 
 and the destruction of images, which they admitted into their 
 temples, not as objects of worship, but as lively and useful 
 memorials of faith and history."— (Vol. vi. ch. xlix. p. 166, 
 Smith's ed.) 
 
 But as the Popes became, after the destruction of the Ex- 
 archate of Eavenna and the subjugation of the Greek Church, 
 more and more absolute, in this, as in so many other instances, 
 they succeeded in converting an use into an abuse, and in graft- 
 ing a superstitious innovation upon an innocent and edifying 
 practice of the Catholic Church. 
 
 Long before the period when Lyndwood collected and com- 
 mented upon the constitutions of the English Church, the ado- 
 ration of images was practised and enjoined in it ; and it is not 
 unimportant, with reference to the construction of the law in 
 England after the Eeformation, to consider what was the pre- 
 vious law on this subject. 
 
 We learn from Lyndwood that a provincial constitution of 
 Archbishop Winchelsey, which relates to the duties of parish- 
 ioners as to furnishing certain articles for Divine worship {supel- 
 lex rei Divince), orders them to provide certain books, ornaments 
 for the minister and the altar, and, among other things, " imagines 
 in ecclesia, imaginem principalem in canceHo . . . Eeparationem 
 navis ecclesise interius et exterius tam in imaginihus quam in 
 fenestris vitreiis." Lyndwood, in his gloss upon imaginihus, 
 says, " scilicet crucifixi et aliorum sanctorum ;" in his gloss 
 upon imagines, he says, " sanctorum," etc., and proceeds to ex- 
 plain that " sunt namque tales imagines . . . sanctorum libri 
 et scripturae laicorum. Ipsarum tamen imaginum pictura non 
 est adoranda sed res per ipsam representa." He says they sub- 
 serve three purposes: — (1.) The instruction of the ignorant; 
 
364 Ecclesiastical Judgments. 
 
 (2.) The reminding men of the Incarnation and of the examples 
 of Saints ; (3.) The excitement of devotional feeling. He then 
 considers at length the distinction of latria and doulia, and says 
 that the crucifix is "utroque modo veneranda." — {Lyndwood, 
 1, 3, t. 27, pp. 251-3). 
 
 III. 
 
 The subtle distinctions which" the Church of Eome endea- 
 voured to establish between the XaTpeia due to our Lord, the 
 BovKia due to the saint, the inrepSovXia due to the Blessed 
 Virgin, even if they had been, as they were not, well founded, 
 were unintelligible to the people, and led to a very gross abuse 
 in the direct worship of the images themselves. 
 
 I agree with Mr. PhiUpotts, that this abuse fell under the 
 especial censure of those who conducted the Eeformation in 
 England, and that they were bent upon the extirpation of it. 
 At the same time, the wiser heads among them well knew what 
 is expressed in our 30th Canon, that " the abuse of a thing doth 
 not take away the use of it," and that it was " the wisdom of 
 the Church of England" in this matter, as weU as in her Liturgy, 
 ' to keep the mean between the two extremes." — (Preface to 
 Prayer-Book.) 
 
 Latimer expresses himself as follows : — 
 
 " I said this word ' saints' is diversely taken of the vulgar 
 people : images of saints are called saints, and inhabitants of 
 heaven are called saints. Now, by honouring of saints is meant 
 praying to saints. Take honouring so, and images for saints, so 
 saints are not to be honoured ; that is to say, dead images are 
 not to be prayed unto . . . and yet I showed the good use of 
 them to be laymen's books, as they be called; reverently to 
 look upon them, to remember the things that are signified by 
 them, etc. And yet I would not have them so costly and 
 curiously gilded and decked, that the quick image of God (for 
 whom Christ shed his blood, and to whom whatsoever is done, 
 Christ reputeth it done to himself) lack necessaries and be un- 
 provided for by that occasion, for then the layman doth abuse 
 his book." — (Sermons and Beviains of Zatimer, p. 233, ed. Parker 
 Society, 1845.) 
 
 And Archbishop Cranmer, in the Book of Articles, which he 
 induced the Convocation of 1636 to pass, says of images : — 
 
 " That they be representers of virtue and good example. 
 That they be stirrers of men's minds, and make them often to 
 remember and lament their sins, especially the images of Christ 
 and our Lady. That it was meet they should stand in the 
 churches, but be none otherwise esteemed. That the bishops 
 .andpreachers diligently teach the people according to this doc- 
 
Boyd and Others v. Phillpotts. 365. 
 
 trine, lest there might fortune idolatry to ensue. That they he' 
 taught also that censing, kneeling, and offering to images he hy 
 no means to be done (although the same had entered by devo- 
 tion and fallen to custom), but only to God and in his honour,, 
 though it be done before the images." — {Strype's Memorials of 
 Archbishop Cranmer, b. 1. c. xi., vol. i. p. 160.) 
 
 In 1537 The Institution of a Christian Man was published.' 
 It had been composed in convocation three years before, under 
 the auspices, it is believed, of Cranmer. It speaks as follows : — 
 
 " Second, That although all images, be they engraven, painted, 
 or wrought in arras, or in any otherwise made, be so prohibited 
 that they may neither be bowed down unto ne worshipped (for- 
 asmuch as they be the works of man's hand only), yet they be 
 not so prohibited, but that they may be had and set up in 
 churches, so it be for none other purposes, but only to the intent 
 that we (in beholding and looking upon them, as in certain 
 hooks, and seeing represented in them the manifold examples 
 of virtues which were in the saints, represented by the said 
 images) may the rather be provoked, kindled, and stirred to 
 yield thanks to our Lord, and to praise him in his said saints, 
 and to remember and lament our sins and offences, and to pray 
 God that we may have grace to follow their goodness and holy 
 living. As for an example : The image of our Saviour, as an 
 open book, hangeth on the cross in the rood, or is painted in 
 cloths, walls, or windows, to the intent that beside the examples 
 of virtues which we may learn at Christ, we may also be pro- 
 voked to remember his painful and cruel passion, and also to 
 consider ourselves, when we behold the said image, and to 
 condemn and abhor our sin, which was the cause of his so 
 cruel death, and thereby to profess that we wOl no more 
 sin."i 
 
 In Cromwell's injunctions in the King's name, there were 
 directions to the clergy " to remove such images as had been 
 superstitiously applied to pilgrimages and offerings,, or treated 
 with over-proportioned regard." Curates were to instruct the 
 people that the use of images was to inform the unlearned in 
 the history of saints, and to refresh their memory. 
 
 Leaving the reign of Henry the Eighth, we come to that of 
 Edward the Sixth (1546-7), the ecclesiastical acts of which 
 require careful enumeration and investigation. 
 
 In 1547, some of the Homilies, twelve in number, were put 
 forth for the first time ; they were chiefly compiled by Arch- 
 bishop Cranmer; only one of them referred to images and 
 relics, subjects, by the way, usually treated of together at this 
 
 1 Formularies of Faith put forth by authority during the reign of Henry YlII, 
 pp. 135, 136. Keprinted at the Clarendon Press, Oxford, 1825. 
 
366 Ecclesiastical judgments. 
 
 time. It was the Homily of Good Works. This is its language 
 as to images : — 
 
 " Never had the Jews, in their most blindness, so many pil- 
 grimages unto images, nor used, so much kneeling, kissing, and 
 cev^ng of them as hath been used in our time. Sects and feigned 
 religions were neither the fortieth part so many among the 
 Jews, nor more superstitiouly and ungodly abused, than of 
 late days they have been among us . . . keeping in divers 
 places, as it were, marts or markets of merits, being full of 
 their holy relics, images, shrines, and works of overflowing 
 abundance ready to be sold ; and all things which they had 
 were called holy — holy cowls, holy girdles, holy pardons, holy 
 beads, holy shoes, holy rules, and all full of hoHness. And 
 what thing can be more foolish, more superstitious or ungodly, 
 than that men, women, and children should wear a friar's coat 
 to deliver them from agues or pestilence ? or when they die, or 
 when they be buried, cause it to be cast upon them, and hope 
 thereby to be saved.^ 
 
 "... Let us rehearse some other kinds of papistical super- 
 stitions and abuses, as of beads, lady psalters, and rosaries, of 
 fifteen O's of St. Bernard's verses, of St. Agathe's letters, of 
 purgatory, of masses satisfactory, of stations and jubilees, of 
 feigned relics, of hallowed beads, bells, bread, water, palms, 
 candles, fire, and such other. . . . " — (Homily "of Good 
 Works," third part.^) 
 
 IV. 
 
 In the year 1549, injunctions were issued by Edward vi., by 
 virtue of 31 Hen. vm. c. 8, confirmed by 34 and 35 Hen. vni. 
 0. 23, the Proclamation Statutes. In these injunctions it is 
 said (Card. Doc. Ann., voL i. pp. 6, 7) : — 
 
 " Besides this, to the intent that aU superstition and hypo- 
 crisy crept into divers men's hearts, may vanish away, they 
 shall not set forth or extol any images, relics, or miracles, for 
 any superstition or lucre, nor aUuie the people by any entice- 
 ments to the pilgrimage of any saint or image ; but reproving 
 the same, they shall teach that all goodness, health, and grace 
 ought to be both asked and looked for only of God, as of the 
 very author and giver of the same, and of none other. 
 
 " 2 Item. That they, the persons above rehearsed, shall make 
 or cause to be made in their churches, and every other cure 
 they have, one sermon every quarter of the year at the least, 
 wherein they shall purely and sincerely declare the word of 
 God; and in the same exhort their hearers to the works of 
 1 At page 50 of the Oxford edition. 2 /j,y p_ 53^ 
 
Boyd and Others w. Phillpotts. ^^y 
 
 faith, mercy, and charity, specially prescribed and commanded 
 in scripture ; and that works devised by men's fantasies, besides 
 scripture, as wandering to pilgrimages, offering of money, 
 candles, or tapers to relics or images, or kissing and licking of the 
 same, and praying upon heads, or such like superstition, have not 
 only no promise of reward in scripture for doing of them, but 
 contrariwise, great threats and maledictions of God, for that 
 they be things tending to idolatry and superstition, Which of all 
 other offences God Almighty doth most detest and abhor, for 
 that the same diminish most his honour and glory. 
 
 " 3 Item. That such images as they know in any of their 
 cures to be or have been so abused with pilgrimage or offerings 
 of anything made thereunto, or shall be hereafter censed unto, 
 they (and none other private persons) shall, for the avoiding 
 of that most detestable offence of idolatry, forthwith take down, 
 or cause to be taken down, and destroy the same ; and shall 
 suffer from henceforth no torches, nor candles, tapers, or images 
 of wax to be set afore any image or picture, but only two lights 
 upon the high altar, before the sacrament, which for the signi- 
 fication that Christ is the very true light of the world, they 
 shall suffer to remaia still, admonishing their parishioners that 
 images serve for no other purpose but to be a remembrance, 
 whereby men may be admonished of the holy lives and conver- 
 sation of them that the said images do represent ; which images 
 if they do abuse for any other intent, they commit idolatry in 
 the same, to the great danger of their souls." 
 
 (11.) "Also, if they have heretofore declared to their 
 parishioners anything to the extolling or setting forth of pil- 
 grimages, relics, or images, or lighting of candles, kissing, kneeling, 
 decking of the same images, or any such superstition, they shall 
 now openly, before the same, recant and reprove the same; 
 showing them (as the truth is) that they did the same upon no 
 ground of scripture, but were led and seduced by a common 
 error and abuse, crept into the Church through the sufferance 
 and avarice of such as felt profit by the same." — (Ibid. p. 1 0.) 
 
 (28.) " Also, that they shall take away, utterly extinct, and 
 destroy all shrines, covering of shrines, aU tables, candlesticks, 
 trindles, or roUs of wax, pidv/res, paintings, and all other monu- 
 ments of feigned miracles, pilgrimages, idolatry, and superstition ; 
 so that there remain no memory of the same in walls, glass win- 
 dmos, or elsewhere within their chwrches or houses. And they 
 shall exhort all their parishioners to do the like within their 
 several houses. And that the churchwardens, at the common 
 charge of the parishioners in every church, shall provide a 
 comely and honest pulpit, to be set in a convenient place 
 within the same, for the preaching of God's word." — {^Ibid. p. 1 7.) 
 
3 68 Ecclesiastical judgments. 
 
 ' By this proclamation, having at the time statutable authority, 
 it is clear that only abused images, including pictorial represen7 
 tations in windows and other places, were ordered to be removed. 
 The next , reference is to a document which has been greatly 
 relied upon by the respondent. 
 
 On the 24th February 1547, Cranmer sent to the Bishop 
 of London what is called "Mandatum ad amovendas et de- 
 lendas imagines," in which, among others, is the following 
 passage : — 
 
 " After our right hartye recommendations to your good lord- 
 ship; where now of late in the king's majestie's visitation, 
 amonge other godlye injunctions commaunded to be generally 
 observed throughe all partes of this his highnes realme, one was 
 set forthe, for the taking downe of all suche images as had at any 
 tyme ten abused with pilgrimages, offerings, or censinges ; albeit 
 that this said injunction hathe in many partes of the realme 
 ben wel and quyetlye obeyed and executed, yet in many other 
 places muche stryfe and contentyon hath rysen and dayly 
 ryseth, and more and more encreaseth, about the execution of 
 the same, some men beyng so superstytyous or rather wylfuU, 
 as they wold by theyr good wylles retayne all such images 
 styll, although they have beene m^oste manyfestlye abused, and in 
 some places also the images whiche by the saide injunctions 
 were taken downe, be now restored and set up againe, and 
 almoste in every place ys contentyon for images, whether they 
 have been abused or not ; and whiles these men go about on 
 both sides contentyouslye to obtaine theyr mindes, contending 
 whether this or that image hath been offered unto, kyssed, 
 censed, or otherwyse abused, partyes have in some places ben 
 taken in suche sorte, as further inconvenyence is very like tq 
 ensue yf remedie be not provided in tyme ; considering there- 
 fore that aUmost in no places of this realme ys any sure quyet- 
 ness, but where all images be hooUy taken awaye and pulled 
 downe already, to the intent that all contentyon in everye parte 
 of this realme for this matter may be clerely taken awaye, and 
 that the lyvely images of Chryste shulde not contende for the 
 deade images, whiche be things not necessary,and without whiche 
 the churches of Christ contynued most godlye many yeres. 
 We have thought good to signify unto you that his highnes 
 pleasure with th'advyse and consent of us the lord protectour 
 and the reste of the counseU ys, that immediately upon the 
 sight hereof, with as convenyent diligence as you maye, you 
 shall not onlye gyve ordre that all the images remayninge in any 
 church or chappeU within your diocese be removed and taken 
 away, but also by your letters signifye unto the reste of the 
 bisshopes within your province his highnesse pleasure for the 
 
Boyd and Others v, Phillpotts. 369 
 
 lyke order to be gyven by them and every of them within their 
 several dioceses ; and in th' execution thereof we requyre both 
 you and the teste of the bisshopes foresaid to use suche foresight 
 as the same may be quyetlye donne with as good satisfaction 
 of the people as may be." — (llid. p. 47.) 
 
 This document, whatever name it is entitled to, orders the 
 removal of " all the images remaining in any church or chapel." 
 
 The injunctions I held in Martin v. Maconochie had legal 
 authority. 
 
 But this document is of another kind. It derived no validity 
 from the Supremacy Act, or from the Proclamation Act, for 
 that was repealed before it issued. It is in truth* a Latin letter 
 by Cranmer to the Bishop of London, in which he recites an 
 English letter from the Council to him. That English letter is 
 not signed by the King. It indeed purports to be issued by 
 him, with the consent of the Protector and Council, who do 
 sign it ; but it is certainly not signed by the King, nor issued 
 with any of the usual formalities ; while I observe that a very 
 similar document, called " The King's order for bringing in 
 Popish Eituals," in 1549, contains, at the beginning, " By the 
 Kinge," and at the end, " By the Kinge, inscripfio hcec est," — 
 (Card. Doc. Ami., vol i. pp. 85-87.) The injunctions are sub- 
 scribed by the King. Sir John Dodson treated this document, 
 of the 24th February 1547, as of no legal authority. Burnet 
 speaks of it as " a letter." I do not recollect that in any of the 
 cases in which this document has been discussed, the force of a 
 law was ever ascribed to it, or in any of the subsequent eccle- 
 siastical instruments. It was referred to in the judgment of 
 the Privy Council, but I think it is a misconception to suppose 
 that they decided it to have legal authority. It was introduced 
 as an historical fact, and they considered it in that light. Their 
 Lordships say : — " On the 21st of February ^ 1 548, N.S., " another 
 proclamation was issued, upon the authority of which it is con- 
 tended that all images, including crosses, were to be taken down." 
 They do not say the contention was founded in law, and they 
 inadvertently call the document a proclamation, which it was 
 not. They afterwards say : — " . . . The intention was not to 
 introduce within the inhibition articles of a description not 
 before forbidden, but to do away with the distinction between 
 images which had been and images which had not been abused." 
 -^{Westerton v. Liddell, Moore's Special Eeport, pp. 168-9.) 
 That was undoubtedly the effect of the document, but I do not 
 remember that the legal character of it was ever argued before 
 them. They treat it, I think, as an historical fact. Whatever 
 
 1 The date of the Council's letter is February 21 ; of the issue of the 
 mandatum by Cranmer, February 24 ; both are in the same instrument. 
 
 2 A 
 
37Q Ecclesiastical Judgments. 
 
 was its character, it could not, in their opinion, apply to crosses, 
 the legality of which they were considering. 
 
 In the same year, but subsequently to this letter, Cranmer 
 issued his Visitation Articles to the diocese of Canterbury, and 
 among them the following : — 
 
 " Item. Whether they have not removed, taken away, and 
 utterly extincted and destroyed in their churches, chapels, and 
 houses, all images, all shrines, coverings of shrines, all tables, 
 candlesticks, trindles or rolls of wax, pictures, paintings, and 
 all other monuments of feigned miracles, pilgrimages, idolatry 
 and superstition, so that there remain no memory of the same 
 in walls, glass windows, or elsewhere." — (Cardwell, Doc. Ann., 
 vol. i. p. 50.) 
 
 This is a repetition, almost verbatim, of the twenty-eighth 
 injunction already referred to, except that it is extended of 
 houses, and that the words all images are introduced ; but it 
 seems to me that they, like the pictures and the painted win- 
 dows, must be in the category of monuments of feigned miracles, 
 pilgrimages, and idolatrous superstition. The inquiry is, whether 
 all images of that kind had been removed. 
 
 It may be as well to observe here, that in construing the 
 word image, as used in the ancient and modern formularies of 
 our Church, I adopt generally the definition of Dr. Eichardson, 
 " anything made, formed, figured, or fashioned, graved, carved, 
 or painted, in imitation, likeness, or representation, a semblance 
 or resemblance, picture or copy, a picture, statue, or effigy." — 
 {Diet, tit. Image.) 
 
 It appears with respect to this very Cathedral of Exeter, 
 that in the year 1321 there were payments made pictori pro 
 imaginahus, and for a plate whereon to grind his colours. — 
 {Oliver's Hist, of Exder Cathedral, p. 185.) ^ I mean to say that 
 the word " image" properly embraces the work of the painter 
 as well as that of the sculptor, though it may occasionally be 
 used in a more limited sense. 
 
 The statute 3 & 4 Edward vi., cap. 10, entituled " An Act for 
 the abolishing and putting away of divers books and images," 
 enacts (sect. 1) " That all books called Antiphoners, Missals, 
 Grailes, Processionals, Manuals, Legends, Pies, Portuasses, 
 Primers in Latin or English, Couchers, Journals, Ordinals, or 
 other books or writings whatsoever heretofore used for service, 
 of the Church, written or printed in the English or Latine 
 tongue, other than such as are or shall be set forth by the 
 King's Majesty, shall be by authority of this present Act clearly 
 and utterly abolished, extinguished, and forbidden for ever to 
 
 1 Lives of the Bishops of Bketer, and a History of the Cathedral, by G-eorge 
 Oliver, D.D., Exeter. 1861. ... ., 
 
Boyd and Others v. Phillpotts. 3 7 1 
 
 be used or kept in this realm, or elsewhere within any the 
 King's dominions. 
 
 Sect. 2 enacts, " That if any person or persons, of what estate, 
 degree, or condition soever he, she, or they be, bodypolitick or cor- 
 porate, that now have or hereafter shall have in his, her, or their 
 custody, any the books or writings of the sorts aforesaid, or any 
 images of stone, timber, alabaster, or earth, graven, carved, or 
 •painted,, which heretofore have been taken out of any church or 
 chapel, or yet stand in any church or chapel, and do not before 
 the last day of June next ensuing deface or destroy, or cause 
 to be defaced and destroyed, the same images and every of them, 
 and deliver or cause to be delivered all and every the same 
 books to the mayor, bailiff, constable, or churchwardens of the 
 town where such books then shall be, to be by them delivered 
 over openly within three months next following after the said 
 delivery to the archbishop, bishop, chancellor, or commissary 
 of the same diocese, to the intent the said archbishop, bishop, 
 chancellor, or commissary, and every of them, cause them 
 immediately either to be openly burnt or otherwise defaced and 
 destroyed ; shall for every such book or books willingly re- 
 tained in his, her, or their hands or custody, within this realm, 
 or elsewhere within any of the king's dominions, and not 
 delivered as is aforesaid, after the said last day of June, and 
 be thereof lawfully convict, forfeit and lose to the king our 
 sovereign lord, for the first offence xxs. and for the second 
 offence shall forfeit and lose (being thereof lawfully convict) 
 iv li. and for the third offence shall suffer imprisonment at the 
 king's will." 
 
 Sect. 6 provides, " That this act, or anything therein con- 
 tained, shall not extend to any image or picture set or graven 
 upon any tomb in any church, chapel, or churchyard, only for 
 a monument of any king, prince, nobleman, or other dead 
 person, which hath not been commonly reputed and taken for 
 a saint, but that such pictures and images may stand and 
 continue in the like manner and form as if this Act had never 
 been had or made ; anything in this Act to the contrary in any 
 wise notwithstanding." 
 
 This statute was repealed by 1st Mar. st. 2, c. 2, which 
 statute is repealed by 1 Jac. i. c. 25, s. 48. 
 
 To me the construction of this extraordinary statute is by 
 no means plain. 
 
 It should be remarked, in the first place, that there is a 
 letter of Cranmer to the Archdeacon of Canterbury in 1549, 
 in which he recites that he has received letters missive, signed 
 by the king, from the king in council, stating that the Book of 
 pommon Prayer, being commanded to be used by all persons 
 
372 Ecclesiastical Judgments. 
 
 in the realm, nevertheless " dyvers unquyette and evill dis- 
 posed persons sithence the apprehension of the Duke of Som- 
 mersett, have noysed and brated abrode that they sholde have 
 agayne their old Lattenne service, their conjured bredde and 
 •water, with such like vayne and superstitiouse ceremonies, as 
 thoughe the settinge forthe of the saide boke had been th'onlle 
 a6te of the saide duke ; we therefore ... to put away all such 
 vayne expectation, . . . have -thought goode ... to com- 
 mande," etc., "all antiphoners," etc., mentioning the same 
 books as are in the statute, to be delivered up." — {Card., Doc. 
 Ann., vol. i. p. 85 ; Perry, Church Ornaments, pp. 56-61.) This 
 order is dated the 25th of December, " the third yeare of our 
 leigne," but it was not issued till the 14th of February 1549. 
 This statute appears to have been passed on the 1st of February. 
 The order says nothing about images, and is obviously in- 
 tended to prevent the restoration of the Latin service by the 
 destruction of the Latin office books in every part of the 
 kingdom. The statute mentions both books and images, 
 graven, carved, or painted, including therefore all pictures ; 
 but what does it direct with respect to them? That those 
 who have in their custody any such images, which have here- 
 tofore been taken out of, or yet stand in any church, shall 
 deface and destroy them, but shall deliver up the books to 
 certain authorities. There is a penalty for not destroying the 
 books, but none for not destroying the images. The object would 
 seem to be to prevent the restoration to the church, at that 
 time, of the same images which had beeii abused by worship, 
 and which had been, or ought to have been, removed. 
 
 The Privy Council in Westerton v. Liddell (Moore, Special 
 Eeport, p. 171), said of this statute: "No doubt, however, it 
 unplies that to retain them is illegal, but it remes, in their 
 Lordships' opinion, to the destruction of images already ordered 
 to be removed, but which either had not been removed, or, 
 having been so, were still retained for private veneration and 
 worship. ..." 
 
 But I^ doubt very much whether this Act ought to be con- 
 strued to prohibit the erection of all images, for the future, in 
 all churches, — a question not discussed before the Privy 
 CouncU. There are no express words to this effect. I iucline 
 to the opinion that it had a temporary purpose in view, namely, 
 to prevent the restoration of the identical images to churches 
 which had been, or ought to have been, taken out of them. 
 It was deemed, as the Thirty-eighth Article deems the Homily 
 on the Peril of Idolatry, " necessary for these times." I do not 
 think 'this Act was ever referred to in the ecclesiastical docu- 
 ments of Queen Elizabeth's reign. I have said that it was 
 
Boyd mid Others v. Phillpotts. 3 ']t^ 
 
 repealed by Mary, and it was restored by James i. by the 
 repeal of Mary's Act. But surely it is reasonable to expect 
 that if it contained universal and perpetual prohibitions of 
 images and books, some reference would have been made to it 
 in the reign of Elizabeth ; more especially when it is remem- 
 bered that the HomUy " against the Peril of Idolatry," in the 
 second book, published by authority in 1562, referred to in the 
 Thirty-fifth of the Thirty-nine Articles, and which is, in fact, a 
 fervid controversial sermon against the use as well as the 
 abuse of images, should not, unless I have overlooked it, make 
 any reference to the fact that the statute had abolished all 
 images in 1549, and, as it is contended, the Order in Council 
 of 1547. 
 
 The letter of Bishop Sandys to Peter Martyr, dated April 
 1, 1560, and part of which is referred to by the learned 
 Assessor, leads me, on a study of the whole, to a conclu- 
 sion different from that which he arrived at. Bishop Sandys 
 writes : — 
 
 "We had not long since a controversy respecting images. 
 The Queen's Majesty considered it not contrary to the Word 
 of God, nay, rather for the advantage of the Church, that the 
 image of Christ crucified, together with those of the Virgin 
 Mary and St. John, should be placed as heretofore in some 
 conspicuous part of the church, where they might more readily 
 be seen by all the people. Some of us Bishops thought far 
 otherwise, and more especially as all images of every kind 
 were, at our last visitation, not only taken down, but also 
 burnt, and that too by public authority; and because the 
 ignorant and superstitious multitude are in the habit of paying 
 adoration to this idol above all others. As to myself, because 
 I was rather vehement in this matter, and could by no means 
 consent that an occasion of stumbling should be afforded to 
 the Church of Christ, I was very near being deposed from my 
 office, and incurring the displeasure of the Queen. But God, 
 in whose hand are the hearts of kings, gave us tranquillity 
 instead of a tempest, and delivered the Church of England 
 from stumbling-blocks of this kind." — {Zurich Letters, Eirst 
 Series, No. 71, Parker Society Ed., 1842, pp. 73-74.) There 
 is no reference in this letter to the statute of Edward vi. or the 
 letter of Cranmer. 
 
 By this construction of the statute at least the most mon- 
 strous consequences are avoided. Can it really be the law that 
 any person now possessing, in his private house, or any body, 
 politic or corporate, possessing in their library any one of these 
 books is liable to these penalties ; not only all Her Majesty's 
 Eoman Catholic subjects, but all persons, of whatever religion 
 
3 74 Ecclesiastical ytidgments. 
 
 they may be, who have a collection of books of devotion in 
 their private houses? Is every picture, painted on canvas 
 or glass, or carved in stone, for ever forbidden to the Chttrch 
 of England ? I hope " I am not wrong in having recourse 
 to a construction of the statute which avoids th^e conse- 
 quences. 
 
 In Queen Elizabeth's injunctions " concerning both the clergy 
 and laity of this realm," issued in 1559, the first year of her 
 reign, are the following passages : — 
 
 III. " Item, that they, the parsons above rehearsed, shall 
 preach in their churches and every other cure they have, one 
 sermon every month of the year at the least, wherein they shall 
 purely and sincerely declare the word of God, and in the same 
 exhort their hearers to the works of faith, as mercy and charity, 
 specially prescribed and commanded in Scripture ; and that the 
 works devised by man's fantasies, besides Scripture (as wander- 
 ing of pilgrimages, setting up of candles, praying upon beads, 
 or such like superstition), have not only no promise of reward 
 of Scripture for doing of them, but contrariwise great threaten- 
 ings and maledictions of God, for that they be things tending 
 to idolatry and superstition, which of all other offences God 
 Almighty doth most detest and abhor, for that the same dimi- 
 nish most his honour and glory." — {Card., Doe. Ann., voL i 
 pp. 212, 213.) 
 
 XXIII. "Also, that they shall take away, utterly extinct, 
 and destroy all shrines, covering of shrines, all tables, candle- 
 sticks, trindaUs, roUs of wax, pictures, paintings, and all other 
 monunwnts of feigned miracles, pilgrimages, idolati-y, and super- 
 stition, so that there remain no memxyry of the same in walls, glass 
 windows, or elsewhere within their churches and hovses." And 
 in Injunction XXV., men are exhorted not to bestow their 
 substance upon " the decking of images " and " other like bUnd 
 devotions." — (Ibid. p. 221.) 
 
 In 1551, Burnet thinks, previously to the last injunctions, 
 certain bishops and divines addressed the Queen against the 
 use of images, citing passages in Deuteronomy, St. John, Ter- 
 tullian, and other writers. In 1560 Bishop Jewell put out his 
 famous challenge to the Papists, defying them to prove, inter 
 alia, " that images were then set up in the churches " (that is, 
 in the primitive churches) "to the intent the people might 
 worship them," using almost the words of St. Stephen, already 
 adverted to, but very remarkable words to have been used in 
 1560, showing pretty clearly that he who was supposed to be 
 the writer of the Homily on the peril of idolatry did not object 
 on principle to all images in churches, but to images set up to 
 be worshipped. 
 
Boyd and Others v. Phillpotts. 375 
 
 About the same time the Queen put out a "proclamation 
 against the defacers of monuments in churches." 
 
 ".Elizabeth. — The Queen's Majesty understanding that by 
 means of sundry people, partly ignorant, partly malicious or 
 covetous, there hath been of late years spoiled and broken cer- 
 tain ancient monuments, some of metal, some of stone, which 
 were erected up as well in churches as in other public places 
 within this realm, only to show a memory to the posterity of the 
 persons there buried, or that had been benefactors to the build- 
 ings or dotations of the same churches or public places, and not 
 to nourish any kind of superstition ; by which means not only 
 the churches and places remain at this present day spoiled, 
 broken, and ruinated, to the offence of all noble and gentle 
 hearts, and the extinguishing of the honourable and good 
 memory of sundry virtuous and noble persons deceased ; but 
 also the true understanding of divers families in this realm 
 (who have descended of the blood of the same persons deceased) 
 is thereby so darkened as the true course of their inheritance 
 may be hereafter interrupted, contrary to justice ; besides 
 many other offences that hereof do ensue, to the slander of such 
 as either gave or Juid, charge, in times past, only to deface monu- 
 ments of idolatry and false feigned images in churches and 
 abbeys; and therefore, although it be very hard to recover 
 things broken and spoiled, yet both to provide that no such 
 barbarous disorder be hereafter used, and to repair as much of 
 the said monuments as conveniently may be, Her Majesty 
 chargeth and commandeth all manner of persons hereafter to 
 forbear the breaking or defacing of any parcel of any monu- 
 ment, or tomb, or grave, or other inscription and memory of 
 any person deceased, being in any manner of place : or to break 
 any image of kings, princes, or noble estates of this realm, or of 
 any other that have been in times past erected and set up 
 for the only memory of them to their posterity, in common 
 churches, and not for any religious honour, or to break down 
 and deface any image in glass windoios in any church without 
 consent of the ordinary, upon pain that whosoever shall herein 
 be found to offend, to be committed to the next gaol. . . ." — 
 (Card., Doe. Ann., vol. i. p. 289.) 
 
 These orders of the Queen relate to false feigned images; 
 that is, I suppose, images of false saints or false miracles. 
 
 The formulary of the Church most relied upon by the respon- 
 dent was one of the Homilies published in this reign. I think 
 their authority has been much overstated. They are referred 
 to in the 46th, 49th, and 80th of our canons; and the Thirty- 
 fifth of our Articles (" Of the Homilies") says :— 
 
 " The second book of Homilies, the several titles whereof we 
 
376 Ecclesiastical yudgments. 
 
 have joined under this Article, doth contain a godly and whole- 
 some doctrine, and necessary for these times, as doth the former 
 book of Homilies, which were set forth in the time of Edward 
 the Sixth ; and therefore we judge them to he read in churches 
 by the ministers, diligently and distinctly, that they may be 
 understanded of the people." 
 
 Bishop Burnet, speaking of the Thirty-fifth Article, observes, 
 I think with accuracy : — 
 
 - " That by our approbation of the two books of Homilies it is 
 not meant that every passage of scripture or argument that is 
 made use of in them is always convincing ; all that we profess 
 about them is, that they contain a godly and wholesome 
 doctrine." 
 
 Other writers of eminence have expressed the same opinion. 
 
 The Homily against the Peril of Idolatry was directed against 
 the worship of images. It is impossible not to see that it is in 
 reality a strong controversial tract, perhaps "necessary for 
 tlwse, times," but by no means having the force of statutable 
 authority for all its propositions for all times. 
 
 The Twenty-second of our Articles of Eeligion says : — 
 
 " The Eomish doctrine concerning purgatory, pardons, wor- 
 sMyping and adoration, as well of images as of reliques, and 
 also invocation of saints, is a fond thing vainly invented, and 
 gi'ounded upon no warranty of Scripture, but rather repugnant 
 to the Word of God." 
 
 That is undoubtedly the doctrine of our Church. This article, 
 written in 1553, was adopted by authority in 1562. The 
 article of the Council of OSent, which was dated December 4, 
 1563, "de invocatione, veneratione, et reliquiis sanctorum et 
 sacris imaginibus," ^ though it condemns idolatry, orders due 
 
 ^ " . . . Imagines porro Christi, deiparas Virginis, et aliorum sanctorum, 
 in templis preesertim habendas, et retinendas, eisque debitum honorem, et 
 veneratkmem impertiendam ; noa quod credatur inesse aliqua in iis diyinitas, 
 vel virtus, prppter quam sint oolendse ; yel quod ab eis sit aliquid petendum ; 
 vel quod fiduoia in imaginibus sit iigenda ; veluti olim fiebat a gentibus, 
 quEe in idolia apem suam collocabant ; sed quoniam honos, qui eis exhibetur 
 refertur ad prototypa, quae illse reprseaentant ; ita ut per imagines, quas 
 osculamur, et coram quibus caput aperimus et prooumbimus, Chriatum 
 adoremus ; et- aauotos, quorum illae similitudinem gerunt, veneramur. Id 
 quod oonciliorum, praeaertim vero secundiE Nicaense synodi decretis contra 
 imaginum oppugnatores est sancitum. 
 
 " niud vero diligenter doceant episcopi, per hiatoriaa mysteriorum nostraa 
 redemptiouis, picturis, vel aliia similitudinibus expressaa, erudiri, et con- 
 flrmari populum in artioulia fidei commemorandis et assidue reoolendis ; turn 
 vero ex omnibus sacris imaginibus magnum fructum percipi, nou solum quia 
 admonetur populus beneficiorum et munerom," etc. — "De Invocatioue, 
 veneratione, et reliquiis sanctorum, et saoria imaginibus." — Canones et decreta 
 aacro aancti . . . Concilii Tridentini, . . . Opera et Studio Judoci Le Plat, 
 Sessio XXV. p. 279, Antwerp 1779. 
 
Boyd and Others V. Phillpolts. 377 
 
 honour and worship (venerationem) to be paid to images of our 
 Lord, the Blessed Vii-gin, and the Saints. The Church of 
 England, holding her middle course, says this worshipping has 
 no warranty in Scripture, immo verho Dei contradicit (according 
 to the Latin version), but in no article does she say that the 
 erecting of all images in churches is repugnant to the Word of 
 God. On the contrary, Bishop Taylor observes that " the wis- 
 dom of the church was remarkable in the variety of sentences 
 concerning the permission of images ; " that " at first, when 
 they were blended in the dangers and impure mixtures of 
 Gentilism, and men were newly recovered from the snare, and 
 had the reliques of a long custom to superstitions and false 
 worshippings, they endured no images but merely civil ; but 
 that as the danger ceased, and Christianity prevailed, they 
 found that pictures had a natural use of good concernment to 
 move less knowing people, by the representment and declara- 
 tion of a story ; and then they, knowing themselves permitted 
 to the liberties of Christianity, and the restraints of nature and 
 reason, and not being still weak under prejudice and childish dan- 
 gers, but fortified by the excellence of a wise religion, took them 
 into lawful uses." . . . Soon afterwards he uses these remark- 
 able expressions : " they transcribed a history . . . into a table, 
 by figures making more lasting impressions than by words and 
 sentences. While the Church stood within these limits she 
 had natural reasons for her warrant, and the custom of several 
 countries, and no precept of Christ to countermand it." — {Bp. 
 Taylor's Tenth Disc, on the Decalogue.y 
 
 These wise observations lead me to the consideration of an 
 argument put forward by the appellants, which deserves 
 especial notice. 
 
 It is to this effect, that assuming for the sake of argument 
 the letter of Cranmer to be law, and the statute of Edward not 
 merely to prohibit the replacing or retaining of particular images 
 in churches at a particular period, but to contain a general enact- 
 ment rendering illegal for the future images in all churches ; 
 nevertheless even on this assumption the present structure 
 would not fall under the edge of these prohibitions, inasmuch 
 as it is not in the sense of them, an image or a series of images. 
 
 The images contemplated in these prohibitions were detached 
 separate images, which, if immoveable, might be kissed, decked 
 with robes and jewels, worshipped ; if moveable, carried in 
 procession. These are the class of images of which Barrow 
 speaks in his Exposition of the Decalogue, on the Second Com- 
 mandment. He censures " affording to them the same expres- 
 sions of reverence and respect, that we do or can present unto 
 1 Bishop Taylor's Works, Heber's ed., vol, iii. p. 15. 
 
3 7 8 Ecclesiastical yudgments. 
 
 God himself, with great solemnity dedicatiDg such images to 
 them, with huge care and cost, decking them, with great sem- 
 blance of devotion, saluting them, and casting themselves down 
 before them ; carrying them in procession, exposing them to 
 the people, and making long pilgrimages to them." ^ . . . 
 
 But this reredos contains an historical emblematical repre- 
 sentation of certain scenes in the history of our redemption, 
 pictures in stone hassi relievi, not of detached figures, but of a 
 particular story. Let me consider this argument ; and first, I 
 must express my decided opinion that whether the structure be 
 legal or not, it is in no way distinguishable, having regard 
 either to the principle or to the letter of the prohibitions, from 
 paintings on canvas, or on the wall, or on the windows. 
 
 Quite consistently the Homily on the Peril of Idolatry com- 
 mends Epiphanius, who " rejected not only carved, graven, and 
 molten images, but also painted images out of Christ's church,"^ 
 and the bishops who would not allow paintings on cloths or 
 on walls. 
 
 It was mainly on this ground that the painted window in 
 St. Margaret's Church was vehemently, though unsuccessfully, 
 opposed. 
 
 The substance of the articles against the churchwardens in 
 that case was " that they had caused to be set up, in defiance of 
 the laws and canons ecclesiastical, a painted glass in the eastern 
 window, over the communion table, whereon is represented by 
 delineation and colours one or more superstitious picture or 
 pictures, and more particularly, the painted image of Christ 
 upon the Cross." * 
 
 I do not think that the carved delineations on this reredos 
 are liable to the abuses, the existence of which caused the 
 orders for the removal of images ; they are not liable to have 
 candles burnt before them ; to be decked with jewels and 
 precious raiment, or to be kissed or worshipped, or treated as 
 workers of false and feigned miracles ; I do not think that 
 according to any reasonable probability this stone screen pre- 
 sents any " peril of idolatry " to the frequenters of the church. 
 
 1 am fortified in this opinion by considerable authority. In 
 " The Homily against the Peril of Idolatry," I find it stated that 
 the "Bishop of Nola caused the walls of the temple to be 
 painted with stories taken out of the Old Testament, that the 
 people, beholding and considering those pictures, might the 
 
 ^ Barrow, An Mxposition of the Decalogue, Second Commandment. { Woi-lcg 
 of Isaac Barrow, D.D., vol. yi. p. 496, ed. 1830.) 
 
 2 The second part of the Homily against Peril of Idolatry (at page 173 of 
 the Oxford edition). 
 
 2 Wilson's Omammts qf Churches (1761), p. 13 (Preface). 
 
Boyd and Others v. Phillpolts. 379 
 
 better abstain from too mucb surfeiting and riot." ..." And 
 these " (says the writer) " were the first paintings in churches 
 that were notable of antiquity. And so by this example came 
 in painting, and afterward images of timber and stone, and other 
 matter, into the churches of Christians. Now, if ye well con- 
 sider this beginning, men are not so ready to worship a picture 
 on a wall, or in a window, as an embossed and gilt image, set 
 with pearl and stone. And a process of a story painted with 
 the gestures and actions of many persons, and commonly the 
 sum of the story written withal, hath another use in it than 
 one dumb idol or image standing by itself But from learning 
 by painted stories it came by little and little to idolatry." ^ 
 
 Calvin, in one of his chapters of his Institutes^ devoted to 
 the question of pictures of God, and of images generally, after 
 severe blame of the former, and of all worship of images, says : 
 — "Neque tamen ea superstitione teneor, ut nullas prorsus 
 imagines ferendas censeam. Sed quia sculptura et pictura Dei 
 dona sunt, purum et legitimum utriusque usum require; ne 
 quse Dominus in suam gloriam, et bonum nostrum nobis con- 
 tulit, eo non tantum jpolluantur prsepostero abusu, sed in nos- 
 tram quoque perniciem convertantur. Deum ejlngi visibili 
 specie nefas esse putamus, quia id vetuit ipse, et fieri sine 
 aliqua gloria ejus deformatione non potest. . . ." Then he 
 says, God is not to be worshipped in the image nor the image 
 as God ; and he continues, " Eestat igitur ut ea sola pingantur 
 ac sculpantur quorum sint capaces oculi: Dei majestas quae, 
 oculorum sensu longe superior est, ne indecoris spectris corrum- 
 patur. In eo genere partim sunt historiae ac res gestae, partim 
 imagines ac formse corporum, sine ulla rerum gestarum nota- 
 tione. Priores usum in docendo vel admonendo aliquem 
 habent : secundce, quid praeter oblectationem affere possunt non 
 video. Et tamen constat tales fuisse omnes propemodum 
 imagines quae hactenus in templis prostiterunt." ... He 
 proceeds to point out the folly of these and the frequently in- 
 decent license of their execution, and he adds, . . " etiam si 
 nihU vitii inesset, nihil tamen habere ad docendum momenti." 
 And commenting on Psalm cxv. 6-8, he says: "Votandum 
 autem non minus simHitudinem vetari quam sculptile: quo 
 inepta Graecorum cautio refutatur. Belle enim defunctos se 
 putant si Deum non sculpant, dum in picturis licentiosius 
 quam ullae alise gentes lasciviunt. Atqui Dominus non a statuario 
 
 ' The second part of the Homily against Peril of Idolatry (at page 192 of 
 the Oxford edition). 
 
 2 Calvin, Institwlio Chrislianm Eeligionis, lib. i. cap. xi. s. 12, dedicated by 
 Calvin to Francis the First, 1536, a.d. (ed. Tholuck, vol. i. p. 77, BeroL 
 1834). 
 
380 Ecclesiastical Judgments. 
 
 modo sibi erigi effigiem sed a quolibet artifice effingi prohibet."^ 
 —{lb. s. 4.) 
 
 In Denmark, where tlie Evangelical Lutheran Church is 
 established as the church of the State, there is the Vor Vrue 
 Kirehe, our Lady's Church, the principal church in Copen- 
 hagen. In the pediment is sculptured a group of St. John, 
 preaching in the Wilderness ; in the vestibule, a frieze, in which 
 is represented the Entry into Jtrusalem ; in the nave the twelve 
 Apostles; over the altar our Lord is sculptured, and in the 
 chancel the Baptismal Angel, and there are various hassi relievi 
 of scriptural subjects. 
 
 There was a solemn inauguration of these figures — the glory 
 of Thorwaldsen's genius— in the church in 1839. 
 
 I have now to consider the effect of the judgment delivered 
 in the Court of Arches in the year 1684. 
 
 It appears that shortly before that time certain parishioners 
 applied for a faculty to put up in painting, as I understand, pic- 
 tures of the thirteen Apostles in the parish church of Moulton, 
 in the diocese and county of Lincoln, and I think over the 
 Holy Communion Table, but certainly at the east end. The 
 Surrogate of the Chancellor of Lincoln granted the faculty, but 
 the Chancellor revoked it, and the Bishop, Dr. Thomas Barlow, 
 appears also to have refused his consent. An appeal was 
 prosecuted to the Court of Arches. 
 
 As to the Bishop, I learn from Wood that " He was esteemed 
 by those who knew him well to have been a thorough-paced 
 Calvinist, though some of his writings show him to have been 
 a great scholar, profoundly learned both in Divinity and the 
 civil and canon law." — (Wood's Athence Oxonienses, vol. iv. 335, 
 ed. Bliss.) 
 
 He wrote various tracts on " Cases of Conscience," and among 
 them, A breviate of the case concerning setting up images in .the 
 parish church of Moulton. The tract was published contrary to his 
 expressed testamentary wishes, after his death; and the bookseller 
 writes a preface which shows that he clearly misunderstood the 
 proceedings in the Arches ; his error appears, as is often the case, 
 to have been perpetuated by copying. It appears again in a paper 
 called the Old Whig, in 1736, and is thence transcribed into a 
 
 1 " Ex dictis patet imperitia hsereticorum nostrorum, dum asserunt, omnes 
 omnino imagines hie jure naturae vetari. TJnde Calvinus videns quam 
 absone hoc dicatur, licet tacite omnea imagines carpal; tamen aaseverat, 
 non omnes, sed Dei tantum imaginem hie vetari." — (Cornelius a Lapide, 
 Commeutar. in Deut. chap. v. verse 8, at page 739 of the second edition, pub- 
 lished at Venice, 1717.) 
 
Boyd and Others v. Phillpotts. 381 
 
 history of the county of Lincoln.^ Unfortunately at the time 
 of the trial there were no published ecclesiastical reports; but I 
 have been supplied from the records of the Arches Court with 
 a copy of the libel of appeal, and of the sentence of the Judge. 
 The libel appears to contain, as probably was the case in those 
 days, a summary of the pleadings on both sides in the court 
 below; the case was entitled "Cook avd OtTiers v. Tallent." 
 
 Tallent, who was a clergyman, and also a parishioner, ob- 
 jected to the grant of a Faculty " pro erectione sive pictione 
 effigierum apostolonim in ecclesia," and alleged " that, by the 
 book of Homilies, and more especially by the Homilies against 
 the Peril of Idolatry, and also by the injunctions of King Ed- 
 ward the Sixth and Queen EHzabeth, the painting and setting 
 up the apostles' effigies in any church or chapel is very dangerous 
 in regard they are superstitious, and do tend to idolatry (as by 
 the said homilies and injunctions to which he refers himself) it 
 doth at large appear. Wherefore he prayed the faculty obtained 
 from the said Court might be pronounced null and void, inso- 
 much as doth relate to the setting up of the said effigies." 
 
 It was alleged, on the other hand, by the parishioners, " that 
 the setting up of those pictures was out of an honest and pious 
 intention to beautify the said church, and a work commendable 
 and not to be discountenanced, being not at all repugnant to 
 the injunctions of King Edward the Sixth, Queen Elizabeth, or 
 the HomiHes of the Church of England, nor monuments of 
 feigned miracles, nor do any ways tend to superstition." The 
 statute of Edward the Sixth is not referred to! . . . " That the 
 setting up of the said effigies was no ways offensive to them or 
 any of them, saving only one Thomas Scarlett, who did object 
 against the same as superstitious and idolatrous. Zicetqiie 
 insuper allegaverint that by the opinion and judgment of all 
 orthodox divines the painting of the effigies of the blest apostles 
 in any church or chapel is not idolatrous or superstitious, but 
 do serve only for ornament, and to put people in remembrance 
 of the holy lives and conversations of those they do represent ; 
 and that by the injunctions of Edward the Sixth and the eccle- 
 siastical laws of this land, it is required that all persons and 
 vicars and other ecclesiastical persons shall admonish their 
 parishioners that the same do serve for no other end and pur- 
 pose ; and, therefore, since there is no apparent danger of super- 
 stition, the effigies of the holy Apostles in the parish church of 
 Moulton aforesaid may and ought to continue as they are now 
 painted, otherwise it may be of dangerous consequence, since 
 that under such pretended fears of superstition and idolatiy 
 most of the churches, chapels, colleges^ and other pious and 
 1 See Allen's History of the County -of Lincoln, vol. i. 335. Note. 
 
382 Ecclesiastical judgments. 
 
 religious places in England may be in danger of being pulled 
 down and demolished, and so in all probability the hatred of 
 idolatry would usher in licentious sacrilege." 
 
 The case appears to have been formally heard before a very 
 learned person, Sir Eichard Lloyd, the then Dean of the Arches, 
 and he pronounced in favour of the lawfulness of the images, 
 granted the Faculty, and condemned the opposing party in 
 costs. , 
 
 It is remarkable that the sentence is not only signed by Sir 
 Eichard Lloyd, ' but also by Sir Thomas Exton, who succeeded 
 him as Dean of the Arches ; by Dr. Pinfold, afterwards Advo- 
 cate-General ; and by Sir Eichard Eaines, afterwards Judge of 
 the Prerogative Court and of the Court of Admiralty. Whether 
 those additional signatures were on account of the great im- 
 portance of the case, as I suppose, or whether it was usual to 
 obtain the approbation of other members of the College of 
 Advocates at that time, I do not know. 
 
 I much regret that this sentence was not discovered in time 
 to be brought to the notice of Sir Henry Keating. It is cer- 
 tainly entitled to the greatest respect at my hands, and must 
 be considered as an important precedent with reference to the 
 case before me, from which it is only distinguishable by the 
 facts — (L) that the images appear to have been painted and not 
 sculptured ; (2.) and to have been single detached figures, and 
 not, as in the case before me, part of an historical scene, or, as 
 the Homily terms it, " the process of a story." 
 
 VI. 
 
 Lastly, I come to Mr. Phillpotts' final argument as to the 
 discretion which ought to be exercised. I agree with him, that 
 as to questions of this kind the Ecclesiastical Court has a dis- 
 cretion to exercise. Ornaments and structures which it may 
 be proper, all the circumstances considered, to allow in some 
 cases, it may be improper to allow in others. Much of the 
 decoration of a cathedral may be unsuitable in a parish church. 
 I am urged to exercise this judicial discretion adversely to the 
 erection of the reredos in this case, on the ground of the ten- 
 dency to adopt the usages of Eome, said to be now prevalent, 
 and on the ground that this structure is an approach to such 
 uses. If there be such a tendency I deeply lament it, but I 
 doubt whether the tendency is to be counteracted in the way 
 proposed. I think there is great danger of doing uhintentionally 
 the work of the Church of Eome by denying to the Church of 
 England the innocent aid which the arts of painting and sculp- 
 ture, within due limits, minister to religion. If the use of aU 
 
Boyd and Others Y. Phillpotts. 383 
 
 things abused by Eome were taken from our Church, she would 
 he very hare. " It must he confessed," says our 30th Canon, 
 " that in process of time the sign of the Cross was greatly 
 abused in the Church of Eome, especially after that corruption 
 of Popery had once possessed it ; but the abuse of a thing does 
 not take away the use of it." 
 
 " But concerning those our ceremonies," says Hooker, " which 
 they reckon for most Popish, they are not able to avouch that 
 any of them was otherwise instituted than unto good, yea, so 
 •used at the iirst. It followeth, then, that they all are such as 
 having served to good purpose, were afterwards converted into 
 the contrary. And sith it is not so much as objected against 
 US, that we retain together with them the evil wherewith they 
 have been infected in the Church of Eome, I would demand 
 who they are whom we scandalize, by using harmless things 
 unto that good end to which they were first instituted." ^ 
 
 The very learned and pious Dr. Donne says : — " God, we see, 
 was the first that made images, and he was the first that for- 
 bade them. He made them for imitation ; He forbade in danger 
 of adoration. For — qualis dementim est id colere, quod melius 
 est — what a drowsiness, what a laziness, what a cowardliness 
 of the soul is it, to worship that which does but represent a 
 better thing than itself. Worship belongs to the best. Know 
 thou thy distance and thy period, how far to go and where to 
 stop. Dishonour not God by an image in worshipping it, and 
 yet benefit thyself in following it. There is no more danger 
 out of a picture than out of a history, if thou intend no more 
 in either than example." — (Works, vol. v. p. 250, ed. 1839, 
 Sermon ex.) 
 
 Archbishop Tenison, before his promotion to Canterbury, 
 wrote a treatise on Idolatry, in which he says : — 
 
 " But for the images or pictures of the saints in their former 
 estate on earth ; if they be made with discretion ; if they be 
 the representations of such whose saintship no wise man calleth 
 into question; if they be designed as their honourable memo- 
 rials, they who are wise to sobriety do make use of them ; and 
 they are permitted in Geneva itself where remain in the quire 
 of the Church of St. Peter, the pictures of the twelve prophets 
 one side, and on the other those of the twelve apostles, all in 
 wood ; also the pictures of the Virgin and St. Peter in one of 
 the windows. And we give to such pictures that negative 
 honour which they are worthy of. We value them beyond any 
 images besides that of Christ : we help our memories by them ; 
 we, forbear all signs of contempt towards them. But worship 
 them we do not, so much as with external positive signs : for if 
 ^'ffooker's Work^, Book iv, oh. xii. 5, vol. i. p. 380. Ed. 1825. 
 
384 Ecclesiastical judgments. 
 
 we uncover the head/ we do it not to them, but at them, to the 
 honour of God who hath made them so great instruments in 
 the Christian Church; and to the subordinate praise of the 
 saints themselves." — (ArcMishop Tenison on Idolatry, chap. xii. 
 pt. 2, p. 297.) 
 
 Archbishop Wake, in that part of his answer to the Bishop 
 of Meaux which is called "An answer to the fourth article of 
 Images and Eeliques," section 1, "Of the Benefit of Pictures 
 and Images " {Gibson's Preservative against Papery, vol. iii. tit. 
 ix. p. 217), observes : — 
 
 " (3.) Were the benefit of images never so great, yet you know 
 this is neither that which we dispute with you, nor for which 
 they are set up in your churches. Your Trent Synod expressly 
 defines that dtoe veneration is to be paid to them. Your cate- 
 chism says that they are to be had not only for instruction but 
 for worship. And this is the point in controversy betwixt us. 
 We retain pictures, and sometimes even images too in our 
 churches for ornament, and (if there be such uses to be made of 
 them) for all the other benefits you have now been mentioning. 
 Only we deny that any service is to be paid to them ; or any 
 solemn prayers to be made at their consecration, for any divine 
 virtues, or indeed for any virtues at all, to proceed from 
 them." 
 
 Lastly, Dean Milman has some observations on this modem 
 use of sculpture and painting in churches, which appear to me 
 wise and pertinent. (Milman, History of Latin Christianity, 
 vol. ii. p. 152.) ... "So in general," he remarks, "the ruder 
 the art the more intense the superstition. The perfection of 
 the fine arts leads rather to diminish than to promote such 
 superstition. Not merely does the cultivation of mind required 
 for their higher execution, as well as the admiration of them, 
 imply an advanced state, but the idealism, which is their 
 crowning excellence, in some degree unrealises them and 
 creates a different and more exalted feeling. There is more 
 direct idolatry paid to the rough and ill-shapen image, or the flat 
 unrelieved and staring picture, — the former actually clothed in 
 gaudy and tinsel ornaments, the latter with the crown of gold 
 leaf on the head, and real or artificial flowers in the hand, — ' 
 than to the noblest ideal statue, or the Holy Family, with all 
 the magic of light and shade. They are not the fine paintings 
 which work miracles, but the coarse and smoke-darkened 
 boards, on which the dim outline of form is hardly to be 
 traced. Thus it may be said, that it was the superstition which 
 required the images, rather than the images which formed the 
 superstition." 
 
 1 Vide ante, p. 16, note, Council of Trent, " caput aperimus." 
 
Boyd and Others v. Phillpotts. 385 
 
 I do not think that in the Cathedral of Exeter the reredos 
 put up by the Dean and Chapter can be justly said, to borrow 
 the words of our 30th Canon, "to endamage the Church of 
 God, nor offend the minds of sober men," any more than the 
 painting of the Crucifixion on the boss in the roof of the same 
 cathedral directly over the choir, which appears in the draw- 
 ings submitted to me, and which is, in truth, obnoxious to 
 almost all the objections made against the reredos, though its 
 removal has not yet been sought. 
 
 The prayer of the appellants is, that they may be dismissed 
 from all further observance of justice in this case, and that the 
 respondent may be condemned in costs. 
 
 It follows from what I have said that I would grant the first 
 part of this prayer : as to the latter I hesitate. 
 
 Mr. Phillpotts, in the opening of his speech, pointed out to 
 me that the petitioner, the chancellor of the diocese, had in a 
 recent case ordered a reredos with certain figures to be removed 
 from Lynton Church, and that in his capacity as a prebendary 
 he felt it his duty to try the question of the lawfulness of such 
 a structure in the cathedral, in order that there might not be 
 allowed there what he had disallowed in a parish church : there 
 ought to be the same law he thought for both. I am too im- 
 perfectly acquainted with that case to offer any opinion upon 
 it ; it may have been rightly decided with reference to the dis- 
 cretion of the ordinary to grant or withhold a faculty for such 
 a structure in a parish church, but I think the case affords a 
 reason why the chancellor of the diocese might desire that the 
 cause should be tried. 
 
 I should be glad to think that peace was about to be restored 
 to this cathedral, and that the golden ecclesiastical maxim, 
 which the learned Waterland prefixes to one of his best works, 
 was about to prevail: "In necessariis unitas; in non necessariis 
 libertas; in omnibus prudentia et charitas."^ I hope that the 
 prayer for costs will be withdrawn. 
 
 1 Doctrine of the Holy Trinity. London, 1734. 
 
 2b 
 
THE OFFICE OF THE JUDGE PROMOTED BY 
 MARTIN V. MACKONOCHIE. 
 
 Second Suit. 
 
 It is unlawful to use lighted candles on the Holy Table during 
 morning service. 
 
 It is lawful for the minister to cross himself during the Ser- 
 vice. 
 
 Certain ceremonies already condemned in the case of Elphin- 
 stone V. Purchas "^ again pronounced unlawful. 
 
 The decision of the Privy Council in Hebbert v. Purchas fol- 
 lozved, but not approved. 
 
 In this case I gave judgment on tlie 7th of December 
 1874. An appeal was asserted by the defendant, but 
 was abandoned. 
 
 The case is reported in the Law Eeports, 4 Admiralty 
 and Ecclesiastical, page 279. 
 
 Judgment. — The seventh, eighth, and ninth articles of charge 
 against Mr. Mackonoehie relate to the use of certain vestments 
 or ornaments of the minister, the position of the celebrant 
 before the holy table, and the use of wafer-bread in the admin- 
 istration of the Holy Eucharist. 
 
 On former occasions this Court has upon these subjects pro- 
 nounced judgment favourable to the defendant. The Judicial 
 Committee of the Privy Council has overruled the judgments. 
 
 In this state of things an application is now made to me by 
 the counsel of the defendant to hear an argument which has for 
 its object to show that the decisions of this Court were right, 
 and those of the Appellate Court were wrong. The application 
 is admitted to be unusual, but is said not to be unprecedented, 
 1 Supra, p. 158. 
 
Martin v. Mackonochie. 387 
 
 and various cases were referred to in support of this proposi- 
 tion. It was urged upon the Court with considerable force 
 that the present case came within the principle of these pre- 
 cedents for several reasons, — among others, that the judgments 
 of the Appellate Court were delivered on the hearing of an ex 
 parte case, and therefore have not the weight of judicial pre- 
 cedent ; that the judgments of the Appellate Court upon the 
 questions now before me have been conflicting and irreconcil- 
 able ; that they can be shown to be founded on mistakes of 
 fact as well as of law. 
 
 '' In these peculiar circumstances it would be competent, I 
 think, to this Court to allow these questions to be re-argued 
 before it, more especially as it appears to me that the judg- 
 ment of the Appellate Court in Hebbert v. Purchas'^ as to the 
 ornaments of the minister is irreconcilable' with the former 
 judgment of the same tribunal in Westerton v. Liddell^ and 
 with respect to the position of the minister, irreconcilable with 
 the former judgment in Martin v. Mackonochie^ and because, 
 with respect to the use of wafer-bread, I think it probable 
 that if their Lordships had not been deprived of the usual 
 assistance of counsel, they would have arrived at a different 
 conclusion. 
 
 It does not require a long experience in the discharge of 
 judicial duties to be aware of the very great disadvantage 
 under which a Court labours when it is compelled to decide 
 a case, and especially a very important case, upon an ex parte 
 argument. In these circumstances, I think that it would 
 be competent for me to hear now a re-argument of these 
 points. But, upon reflection, I am satisfied that such a course 
 would, on the whole, be inexpedient, and would not further 
 the ends of justice. AU these points may be re-argued before 
 the Privy Council, and if there has been any miscarriage of 
 justice in the former decisions of that tribunal, it is fully 
 competent to it to rectify its errors without the interven- 
 tion of another judgment on the same subjects from this 
 Court. I think it more consistent with the usual practice 
 of Courts, and far more proper, that the argument which it is 
 sought to address to this Court should be addressed to the 
 Judicial Committee of the Privy Council. I therefore decline 
 to hear it. 
 
 Judgment. — In this case the office of the Judge is, by virtue 
 of letters of request from the Lord Bishop of London, promoted 
 
 1 Law Eep. 3, P. C. 605. ' Moore's Special Report 
 
 3 Law Kep. 2, P. C. 365. 
 
38S Ecclesiastical Judgments. 
 
 by Mr. Martin, of 2 New Sqilare, Lincoln's Inn, against Mr. 
 Mackonochie, the incumbent of St. Alban's, Holborn, in the 
 diocese of London. The charges contained in these articles 
 were j)erspicuoiisly and properly arranged by the counsel for the 
 defendant under "the following heads : — (1.) Acts done by Mr. 
 Mackonochie, as to the lawfulness of which no judicial decision 
 has yet been pronounced. (2.) Acts done by Mr. Mackonochie, 
 as to the lawfulness of which this Court has pronounced judg- 
 ment in the case of ElpMnstone v. Purchas [L. E. 3, A, and E. 
 66]. (3.) Acts done by Mr. Mackonochie, as to the lawful- 
 ness of which the Judicial Committee have given judgment 
 in Hebhert v. Pmclias [L. E. 3, P, C. 605]. 
 
 Article IV. charges : " That on Christmas Day, in the year 
 
 1873, and on Sunday, March 15th, and Sunday, April 5th, both 
 in the year 1874, the defendant used lighted candles on the 
 communion table, or on a ledge immediately above the same, 
 during the performance of Morning Prayer, and as connected 
 therewith, at times when such lighted candles were not wanted 
 for the purpose of giving light; and also, in his said church, on 
 Christmas I)ay,1873, Sunday, December 28th,1873, and Sunday, 
 April 5th, 1874, caused lighted candles to be carried about, or 
 lifted up, by attendants when not needed to give light, in and 
 immediately before the commencement of the Communion ser- 
 vice, and as connected with that service." The defence set up 
 for this practice was, that these lights were not part of any 
 ceremony, and were symbolical of nothing, but merely a per- 
 missable decoration, " an inexpressive act," it was said, constitut- 
 ing no ecclesiastical offence. I am unable to justify the legality 
 of their use on this ground. They seem to- me to fall within the 
 general principle, either of ceremonies additional to those 
 ordered by the Book of Common Prayer, or of ornaments not 
 ordered, and not subsidiary to those that are ordered. I must 
 pronounce this practice illegal, and this article proved. 
 
 Article VI. charges : "That on Christmas Day, 1873, and on 
 Sunday, 15th March, and Sunday, 5th April, both in the year 
 
 1874, when the defendant was officiating as the principal 
 minister or celebrant in the office for the administration of 
 the Holy Communion, he (the defendant) elevated the paten 
 or bread, or wafer, and also the cup that had bpen respectively 
 placed on the holy table for the Holy Communion, in an un- 
 authorised manner, and in a much greater degree than was 
 necessary for the purpose of complying with any of the rubrics 
 or requirements of the Book of Common Prayer and of the 
 Communion service." Two witnesses were examined on this 
 article by the prosecutor; Mr. Tod, the managing clerk of a 
 solicitor (not a parishioner), but employed to watch the per- 
 
Martin v. Mackotiochie. 389 . 
 
 formance of Divine service by Mr. Mackonochie, and to report 
 thereupon. He deposed to an elevation of the elements, which 
 would bring the act of Mr. Mackonochie within the letter of the 
 judgment of the Judicial Committee of the Privy Council in 
 Martin v. Mackonochie [L. E. 2, P. C. 365]. On the other hand, 
 Mr. Layman, who had been churchwarden of the parish, who 
 constantly attended Divine service, and who was in church on 
 the occasion as to which Mr. Tod had spoken, and who paid 
 especial attention to the acts of Mr. Mackonochie in this matter, 
 and had from his position a better opportunity of observing him 
 than Mr. Tod, gave a material contradiction to his evidence ; 
 while it is to be observed that Mr. Proctor, the other witness 
 produced by the prosecutor, was not examined on this point. 
 Upon the whole, I am of opinion that the criminal charge laid 
 in this article is not substantiated by adequate evidence, and I 
 pronounce that it is not proved. 
 
 Article V. charges : " That on Christmas Day and on Sunday, 
 December 28th, both in the year 1873, and on Sunday, April 
 5th, 1874, after the conclusion of Morning Prayer, and imme- 
 diately before commencing the Communion service, and as con- 
 nected with such service, and in the presence of the congrega- 
 tion then assembled for such service, he (the defendant) formed, 
 or caused to be formed, and himself accompanied, processions of 
 clergy and others, singing hymns and marching up and down 
 the aisles or round the interior of the church with lighted 
 candles, a crucifix borne upon a pole, and banners (one of such 
 banners bearing a device of a lady standing in a crescent, and 
 representing the Virgin Mary), and that he himself on the said 
 occasions then and there wore an alb and cope, with a biretta 
 on liis head ; and at the conclusion of the procession assumed a 
 chasuble instead of the cope, and immediately and without any 
 break or intennission commenced the Communion service." 
 The wearing of the biretta was not illegal ; but it was properly 
 admitted by the counsel for the defendant that the whole cere- 
 mony, as laid in the article and proved by the evidence, had 
 been pronounced by me in Mr. Purchas' case to be illegal. I 
 retain the opinion which I then expressed, and pronounce this 
 article proved. 
 
 Article X. charges: "That on Christmas Day, in the year 1873, 
 and on Sunday, 15th March, and on Sunday 5th April, both 
 in the year 1874, he, the defendant, during the performance of 
 the service for the administration of the Holy Communion, 
 caused to be said or sung, immediately after the Prayer of 
 Consecration, and before or during the reception of the Elements 
 by the communicants, the words, or hymn, or prayer, commonly 
 known as the ' Agnus,' that is to say, ' Lamb of God; that 
 
390 Ecclesiastical yudgments, 
 
 takest away the sins of the world, have mercy on us.' " The 
 evidence proves that this hymn was sung after the consecration 
 of the Elements, but not during the reception of them by the 
 communicants. It was contended on behalf of Mr. Macko- 
 nochie, that the singing of this hymn might be put upon the same 
 footing as the ordinary singing of a hymn before or after the 
 sermon, or the singing the Gloria before reading the Gospel. 
 But looking to the history of the Prayer-Book, and to the fact 
 that this hymn is appointed to be said or sung in a later part of 
 the Holy Communion service, I am not of this opinion, nor do 
 I see any reason to alter the decision upon this subject which I 
 have already delivered in Mphinstone v. Furchas [L. E. 3, A. 
 and E. p. 66], within the principle and almost within the very 
 letter of which this Act is brought. I pronounce this article 
 to be proved. 
 
 Article XI. charges : " That the defendant on Christmas Day 
 1873, and on Sunday, 15th March, and on Sunday, 5th April, 
 both ia the year 1874, when officiating in the performance of 
 Divine service, and of the service for the administration of the 
 Communion (and not of the office of Baptism) made the sign of 
 the cross by the appropriate gesture of his hand for that pur- 
 pose ;" and Article XII. charges : " That the defendant, on 
 Sunday, 28th December 1873, and on Sunday, 15th March, 
 and on Sunday, 5th April, both in the year 1874, when offici- 
 ating in the performance of Divine service, and of the Commu- 
 nion service, kissed the Prayer-Book or Service-Book." It 
 was properly admitted by the counsel for Mr. Mackonochie, 
 that upon the subject of these two charges generally, I had 
 given judgment in the case of Mphinstone v. PwrcAos, pronounc- 
 ing the kissing the book, and the making the sign of the cross 
 to the congregation, to be illegal. The evidence upon the 11th 
 article went beyond this, and further proved that Mr. Mac- 
 konochie, during the performance of Divine service, crossed 
 himself I have considerable doubt whether this charge is 
 specifically laid in the articles. The counsel for the defendant, 
 however, did not take this objection ; but contended there was 
 an essential difference between making the sign of the cross in 
 the air, admitted to be illegal, and the crossing of himself by 
 the minister, not yet pronounced to be illegal. This latter act 
 was said not to be illegal, as not being any part of the service 
 perfoimed by the minister, as minister, but an act done by him 
 inliis individual capacity as one of the congregation; audit 
 was likened to the act of bowing at the name of our Lord, and 
 turning to the east during the recital of the Creed or before 
 the Doxology, innocent and edifying practices, it was said, in- 
 troduced by custom in the services prescribed by the Book of 
 
Martin v. Mackonochie. 391 
 
 Pommon Prayer. The adverse contention seems to be that the 
 officiating minister is not allowed to divest himself, during the 
 whole time of performing Divine service, of his ministerial 
 character ; and, therefore, that ap act which it would be com- 
 petent to him as a member of the congregation to perform, is 
 not permitted to him while officiating as minister. This pro- 
 position seems to me too wide. The more limited proposition 
 would be, that it is not competent to him to do any act of 
 private devotion which either conflicts with a direct order of 
 the rubric, or which introduces a new rite or ceremony to the 
 congregation. Upon the former principle, the Privy Council 
 found Mr. Mackonochie guilty of " excessive kneeling " when 
 the Eubric ordered him to adopt the posture of standing : upon 
 the latter principle, I admonished Mr. Purchas not to make the 
 sign of the cross in the air to the congregation. But the minis- 
 ter's crossing himself as a matter of private devotion, does not 
 seem to me to fall under either of these categories, but rather 
 to be of the same character as covering the face with the hands 
 during prayer, or crossing the hands over the breast, or spread- 
 ing them out, or lifting them up, which could not, I think, 
 reasonably be contended to be an ecclesiastical offence. Any 
 interference with the liberty of private devotion is beset with 
 difficulties, while . public ministrations easily admit of public 
 order respecting them. I am of opinion that the legal offence 
 is proved so far only as making the sign of the cross to the con- 
 gregation is concerned. 
 
 Article IX. charges: "That the defendant, on Christmas 
 Day 1873, and on Sunday, 15th March, and on Sunday, 5th 
 April, both in the year 1874, in the celebration of the Holy- 
 Communion, and in the administration thereof to the communi- 
 cants, used wafer bread or wafers (being bread or flour made 
 in the form of circular wafers), instead of bread such as is 
 usual to be eaten." Article VII. charges : "That the defen- 
 dant in his said church, on divers days and times — to wit, on 
 Christmas Day 1873, and on Sunday, March 15th, and on 
 Sunday, April 5th, both in the year 1874, when officiating in 
 the Communion service, wore the following vestments or 
 things — namely, an alb, a cope, a chasuble, an amice, a maniple, 
 a stole, and a girdle. Article VIII. charges : " That the de- 
 fendant, in his said church, on Christmas Day, and also on 
 Sunday, December 28th, both in the year 1873, and on Sun- 
 day, 15th March, and on Sunday, 5th April, both in the year 
 1874, when officiating as the principal minister or celebrant in 
 the service for the administration of the Holy Communion, 
 stood, while reading the Prayer of Consecration in the said 
 service, at the west side of the holy table in such wise that he 
 
392 Ecclesiastical Judgments. 
 
 then stood between the congregation and the holy table with 
 his back to the people." The evidence produced by the pro- 
 secutor proved, though not very distinctly, the use of the wafer 
 bread, the position of the minister at the holy table, and the 
 wearing of the vestments ; it is also proved that these vest- 
 ments were those in use in the second year of King Edward 
 the Sixth's reign. I have already, during the course of this 
 trial, given my reasons for refusmg to hear an argument from 
 the counsel for the defendant as to the lawfulness of this posi- 
 tion, the use of this bread, and the wearing of these vestments. 
 To those reasons I now, without recapitulating them, refer. 
 They must be taken as part of my judgment. I pronounce 
 that the charges laid in these articles are proved. 
 
 These articles of charge, with the exception of the sixth, 
 which relates to undue elevation of the Elements, being 
 proved, it remains to consider what sentence of canonical 
 punishment the Court should pass. I do not desire to conceal 
 that this question has given the Court considerable anxiety. 
 On the one hand, Mr. Mackonochie is admitted to have dis- 
 obeyed the sentences both of the Privy Council and of this 
 Court, and is also proved to have contravened the general law 
 with respect to a matter decided for the first time by this 
 judgment. On the other hand, the matters charged relate to 
 no moral or doctrinal offence, but to an excess of ritual observ- 
 ance beyond that ritual observance which the Prayer-Book and 
 Formularies of the Church prescribe. This prosecution is 
 brought, through the permission of the Bishop of London, by a 
 non-parishioner, who, in a few months' time, when the Public 
 Worship Act shaU have come into operation, will be, on the 
 ground of his being a non-parishioner, disqualified to be a 
 prosecutor. The articles do not contain the averments familiar 
 to the Court in these criminal suits, viz., that the parishioners 
 have been offended, or the services of the Church unattended 
 in consequence of the conduct of the incumbent, nor has any 
 evidence been given by any parishioner to this effect. The law 
 with respect to some of the matters charged is in an uncertain 
 state ; and with respect to the charges contained in the articles 
 proved in this suit, Mr. Mackonochie does not appear to have 
 been already the subject of a personal admonition either from 
 the sentence of a Court or from his Diocesan. 
 
 Nevertheless, Mr. Mackonochie must obey the law. He 
 must recognise some authority superior to his own. He can- 
 not make the law for himself, nor out of the existing law 
 select what portions he will obey and what disobey. Upon the 
 whole, I am of opinion that I must pass a sentence upon him 
 of suspension, ah officio, for six weeks, and I must condemn him 
 
Martin v. Mackonochie. 393 
 
 iu all the costs of the suit, except those incident to the charge 
 of undue elevation, which I have pronounced not to be proved. 
 It is my duty also to admonish Mr. Mackonochie to desist from 
 the practices mentioned in the articles proved, and to warn 
 him that contumacious disobedience to this sentence may 
 entail upon him, according to the Ecclesiastical Law, one of 
 far greater severity. The sentence wUl be published in the 
 usual manner and form, and take effect from Sunday next. 
 
THE OFFICE OF THE JUDGE PROMOTED BY 
 JENKINS V. COOK. 
 
 An incumbent having prima facie ground for believing that 
 one of his parishioners is not qualified to receive the Holy 
 Communion, submits the question to his Ordinary, and 
 either receives no direction from, his Ordinary, or is 
 directed to refuse to administer to him the Holy Com- 
 munion. Such incumbent is not guilty of an ecclesias- 
 tical offence in refusing to administer to him the Holy 
 Communion. 
 
 A layman who persistently denied the Existence of the Devil 
 and the Doctrine of Eternal Punishment in any shape, 
 and who maintains that large portions of the Bible are of 
 an indecent and irreligious tendency, may be refused 
 the Holy Communion by his parish priest, 
 
 I GAVE judgment in this case on the 16th of July 
 1875. An appeal has been asserted, and is still pending. 
 The case is not yet reported. 
 
 Judgment. — I retain the opinion which I expressed on 
 accepting the letters of request in this case, namely, that it 
 was one especially proper for the cognizance of the Bishop of 
 the diocese ; and I regret that, in his Lordship's opinion, cir- 
 cumstances had rendered it unfit that he should exercise his 
 episcopal jurisdiction in this matter. It is my duty, however, 
 to deal with the subject thus presented to me according to the 
 best of my ability without the great advantage of the Bishop's 
 judgment thereupon. 
 
 The history of the proceedings taken in the case, so far as it 
 is necessary to state them, is as follows : — 
 
 Upon the 18th of November 1874 the Bishop of Gloucester 
 and Bristol issued a commission under the 3 and 4 Vict. c. 86, 
 
yenkins v. Cook. 395 
 
 to inquire into and report upon a charge preferred by Mr. 
 Henry Jenkins, a parishioner of the parish of Christ's Church, 
 Clifton, against the Eev. Plavel Smith Cook, a clerk in holy 
 orders, in the diocese of Gloucester and Bristol, and vicar of 
 his parish, for illegally and without any just cause or reason, 
 and contrary to his duty in that behalf, refusing when he was 
 officiating minister to administer the sacrament of the Holy 
 Communion to Mr. Jenkins. 
 
 The Commission was duly holden, and after the examination 
 of a witness, and after hearing counsel on both sides, reported 
 that the majority of them considered that there was sufficient 
 primA facie ground for instituting further proceedings against 
 Mr. Cook. 
 
 Subsequently Mr. Jenkins obtained the permission of the 
 Bishop to promote his of&ce by letters of request to the Court 
 of Arches. 
 
 On the 19th of February 1875 articles were filed against 
 Mr. Cook. 
 
 They charge that the promoter, being a parishioner of the 
 defendant's parish, a member of the Church of England, and 
 having during the last six years regularly attended Divine ser- 
 vice on Sundays at his parish church, having been in the habit 
 of receiving the Holy Communion in his church monthly, 
 having always conducted himself reverently in church, joining 
 ill the responses in accordance with the directions of the 
 rubric, believing in the inspiration of the canonical books of 
 the Old and New Testament, that Scripture contained all things 
 necessary for salvation, and in the doctrine of the atonement 
 of the sins of mankind by the death of our Lord on the Cross, 
 and having published and using a certain volume of family 
 prayers, which is annexed, was, on Sunday the 4th of October 
 1874, after having given the legal notice, and having duly pre- 
 sented himself to receive the Holy Communion, refused the 
 Communion by the defendant. 
 
 The defendant put in a responsive plea, the substance of 
 which will be stated hereafter, and there was an allegation in 
 reply. 
 
 The case came on for hearing before me on the 22d and 24th 
 of June, and I took time to consider the judgment which I am 
 now about to deliver. 
 
 The contention of the promoter is, that being a parishioner, 
 and having given due notice of his intention to be a communi- 
 cant on the following Sunday, he did so present himself, and 
 was repelled by the defendant. I thought that when these facts 
 were proved the burden of proof was shifted, and that it was 
 for the defendant to show that he had adequate reasons for this 
 
396 Ecclesiastical Judgments. 
 
 repulsion. The defendant undertook to discharge this burthen 
 by proving that the promoter had published a work called 
 Selections from the Old and New Testament, and had written 
 letters to show that he made these selections more especially 
 because he did not believe in the eternity of punishment, or, 
 indeed, as it would appear from the passages omitted, in the 
 punishment of sin at all, or in the existence or personality of 
 the devil, or in other matters of importance. 
 
 It was admitted, properly, in my opinion, that the publish- 
 ing a volume of extracts from the Old and New Testament 
 without preface or comment, and with asterisks denoting where 
 passages were omitted, was not 'per se an offence which war- 
 ranted the refusal of the Holy Communion to the author of 
 the work. The letters, however, gave a different colour to the 
 matter, showing quo animo the omissions were made, and being 
 tantamount to a denial of the doctrine and the truth of the 
 facts contained in the omitted passages. 
 
 The correspondence put in evidence comprises letters 
 between the defendant and the promoter, between the defendant 
 and the Bishop, between the promoter and the Bishop, and 
 between the solicitors of the parties. 
 
 The defendant takes up in substance two grounds of 
 defence : — 
 
 First, That whether the reasons alleged to him were valid or 
 invalid, he is not, having regard to his conduct and the parti- 
 cular law on the subject, a criminous clerk subject to the 
 provisions of the Clergy Discipline Act. 
 
 Secondly, That his reasons for refusal were legally and 
 morally valid, and that therefore he has committed no offence 
 against the law ecclesiastical. 
 
 The two lines of defence perhaps sometimes cross one an- 
 other, but on the whole they are sufficiently distinct. I pro- 
 ceed to consider them in their order. 
 
 With reference to the first line of defence, it becomes neces- 
 sary to enter a little into the history of the present case. 
 
 It appears that in the year 1865 the promoter published a 
 volume entitled Selections from the Old and New Testament. 
 This volume he presented to the defendant, who seems never 
 to have examined it until after the 6th of July 1874. On the 
 Sunday before that day the defendant had preached a sermon 
 in his parish church, and on the next day he received the 
 following letter from the promoter: — 
 
 "3 Vyvyan Terrace, Clifton, 6 July 1874. 
 " My dear Sir, — As one of your parishioners who accepts 
 his conscience as the voice of God speaking within him, I beg 
 
Jenkins v. Cook. 397 
 
 to protest most emphatically against the irreligious tendency 
 of your sermon of last night. I quite believe that you would 
 not willingly deceive others, but it is my opinion that no 
 difiaculties as to language or books should stifle what is 
 imprinted in every man's breast by his Maker, that is to say, 
 the knowledge of right and wrong. — I am, my dear Sir, yours 
 very sincerely, Henry Jenkins." 
 
 I learn from subsequent correspondence, that this letter was 
 
 caused by the defendant having maintained the doctrine of 
 
 eternal punishment, which the promoter characterises in sub- 
 
 ■ sequent letters addressed to the Bishop as an " irreligious," 
 
 " disgusting," and " impious " doctrine. 
 
 It appears that the defendant, who had then for the first time 
 examined the book sent by the promoter, and discovered that 
 many important parts of the Holy Scripture were omitted in 
 it, called upon the promoter with the object of enlightening and 
 rebuking him, both as to his letter and book ; but he refused 
 to hear any communication on the subject. His wife, however, 
 who has been examined as a witness, called upon the defendant 
 and endeavoured unsuccessfully to persuade him that her hus- 
 band was justified in his conduct. 
 
 On the 20th of July the promoter again wrote to the de- 
 fendant. The letter was as follows : — 
 
 " 3 Vyvyan Terrace, Clifton, 20 July 1874. 
 
 " My dear Sie, — Mrs. Jenkins has kindly called upon you, 
 in order to arrange matters, with, I am afraid, very poor 
 success. "With regard to my book. Selections from the Old and 
 New Testament, the parts I have omitted, and which has 
 enabled me to use the book morning and evening in my family, 
 are, in their present generally received sense, quite incompat- 
 ible with religion or decency (in my opinion). How such 
 ideas have become connected with a book containing every- 
 thing that is necessaiy for a man to know, I really cannot say, 
 and can only sincerely regret it. — I am, my dear Sir, yours 
 very sincerely, Henry Jenkins." 
 
 " The Eev. Flavel Cook, 
 
 "19 Vyvyan Terrace, Clifton." 
 
 It is very important to observe the language of this letter, 
 because it contains a declaration that the passages omitted are 
 so omitted on the ground that, as generally understood, they 
 are incompettible with religion, or decerncy; During the hekring 
 I urged more than, once upon the counsel for both parties the 
 propriety of the following, arrangement, viz,, that the promoter 
 
398 Ecclesiastical yudgments, 
 
 should withdraw the letter, and the defendant thereupon should 
 admit him to the Lord's Table. The defendant expressed him- 
 self as being willing and ready to adopt my suggestion ; but 
 I regret to say that after deliberation the promoter refused 
 to withdraw the letter, and hence the continuance of this 
 suit. 
 
 I believe that, of the Old Testament, 215 chapters are 
 omitted altogether, and 25 of the New Testament; and there 
 are besides numerous omissions of portions of chapters. 
 
 I will take, for example, the Gospel of St. Matthew, In that 
 Gospel the omissions are as follows : — 
 
 Whole of first chapter, including birth of our Lord. 
 
 Chapter III. Several verses of St. John the Baptist's preaching. 
 
 Chapter IV. Fasting and temptation of our Lord. 
 
 Chapter V. Passages relating to the crime of killing and 
 anger towards and abuse of a brother, and the commission of 
 adultery. 
 
 Chapter VII. Passages relating to entering in at the strait 
 gate, and as to trees not bringing forth good fruit being hewn 
 down, and the condemnation of those who have worked iniquity, 
 though they have prophesied and cast out devils. 
 
 In Chapter VIII. are omitted the passages relating to the 
 expulsion of devils ; that relating to those who are to be, and 
 those who are not to be, admitted into heaven ; and our Lord's 
 refusal to allow the burial of a father to excuse a disciple from 
 following him. 
 
 Chapter IX. The passages relating to the expulsion of dcAols. 
 
 Chapter X. Passages exhorting men not to fear those who 
 can only kill the body, but not the soul ; and the passage, in 
 which our Lord says that he is come to send a sword, not peace 
 upon earth. 
 
 In fact, of the 28 chapters of St. Matthew, only five, I think 
 (2, 6, 14, 27, 28), have escaped mutilation by the omission of 
 important passages, besides those relating to the eternity of 
 punishment, and the personality of the devil. 
 
 I return to the correspondence. The next letter is as fol- 
 lows : — 
 
 "19 Vyvyan Terrace, Clifton, 24 July 1874. 
 
 " Deae Sir, — It would be a great relief to me if I could find 
 in your letter of 20th instant, or in any other communication 
 written or spoken, something to show that I have misunder- 
 stood your opinions, or that you have changed them for the 
 better. 
 
 " Unhappily, the conclusion I cannot but form from your 
 letters, words, and printed Selections from the Old and New Testa- 
 ments, is that, of set purpose, you reject very many portions 
 
yenkins v. Cook. 399 
 
 of Holy Scripture. That you have, for instance, cut out as 
 you have from the Bible what is therein written concerning 
 Satan and evil spirits, is to me terrible evidence of how far 
 you have allowed yourself to go in mutilating the Word 
 of God. 
 
 " Large differences of opinion concerning scriptural matters 
 no prudent or charitable minister of the Gospel would condemn, 
 but there are perversions and denials which no faithful minister 
 will sanction, lest he allow unbelief a recognised place in the 
 Church of Christ. With such perversions and denials I grieve 
 to say I am driven to connect yourself. While they remain not 
 retracted or disavowed, you cannot be received at the Lord's 
 Table in my church. I hope you will feel that my course is 
 directed by conscience, and not by resentment. I quite forgive 
 your behaviour when I called, and, although you would then 
 listen to nothing, if you will converse quietly with me, my time 
 shall willingly be given for that purpose. 
 
 " May the Spirit of Truth deliver you from the errors you 
 have adopted, and, in hope of seeing this my prayer answered, 
 I remain, dear Sir, yours faithfully, Flavel Cook. 
 
 " Henry Jenkins, Esq." 
 
 The answer to this is as foUows : — 
 
 " 3 Vyvyan Terrace, Clifton, 25 July 1874. 
 
 " Mt dear Sir, — Thinking as you do, I do not see what other 
 course you could consistently have taken. I shall, nevertheless, 
 come to the Lord's Table as usual at ' your' church, which is 
 also mine. — I am, my dear Sir, yours very sincerely, 
 
 " The Eev. Ravel Cook. Heney Jenkins." 
 
 The next letter is from the defendant to his Bishop : — 
 
 " Hdinbttrgh, 31 July 1874. 
 
 " My Loed, — Supposing myseK bound by rubric so to do, I 
 write to inform your Lordship that on the 25th instant I warned 
 one of my parishioners, Mr. Henry Jenkins, that he could not 
 be received at the Lord's Table in my church while certain 
 opinions held by him remain not retracted or disavowed. 
 
 " By word and in writing, also in print, he had committed 
 himself to very serious opposition to the Word of God. I may 
 specify the rejection of belief in the existence of Satan and evil 
 spirits. He acknowledged, in reply to my warning of refusal 
 to admit him to the Lord's Table, that he thought I could take 
 no other course, yet appears to signify that he purposes to dis- 
 regard my action, and present himself as usual. 
 
 " If necessary, I will of course furnish particulars of the 
 
400 Ecclesiastical judgments. 
 
 matter. — I have the honour to remain, my Lord, your Lord- 
 ship's obedient servant, Flavel Cook. 
 
 " P.S. — Any letter addressed to my residence, Christ Church 
 Vicarage, Clifton, will find me. 
 
 " The Eight Eeverend 
 
 " The Lord Bishop of Gloucester and Bristol." 
 
 To this letter the answer was as follows : — 
 
 " The Palace, Gloucester, 2 August 1874. 
 
 " My deae Sir, — I hasten to acknowledge your note, dated 
 Edinburgh, July 31. 
 
 " As you notify a fact, rather than ask advice about a con- 
 templated course, I cannot obtrude what is not asked, but I 
 may still properly intimate to you my serious doubt whether, 
 under, the circumstances specified, repulsion would be sustained 
 by a court of law. 
 
 " Feeling the great importance of the matter I write at once, 
 and am faithfully yours, 
 
 " Charles Gloucester and Bristol. 
 
 " Eev. F. Cook." 
 
 The next letter in order is from the promoter to the Bishop, 
 which, I presume, was received after the Bishop had sent the 
 last letter to the defendant : — 
 
 " Vyvyan Terrace, Clifton, 2 Aiigust 1874. 
 " My Lord, — At morning service to-day, Mr. Cook, the Vicar 
 of Christ Church, Clifton, has refused to administer the Holy 
 Communion to me (through the medium of his curate). Now, 
 as I am not an open and ' notorious evil liver,' and as I have 
 not denied any article of the creed, perhaps you may think it 
 desirable to ask him why he cofiamits this scandal in the church, 
 to say nothing of the particular outrage upon me. Some time 
 ago Mr. Cook preached two sermons, with the special object of 
 supporting the doctrine of eternal punishment. As a parishioner, 
 I wrote to protest against the irreligious tendency of these ser- 
 mons. In the course of the controversy, my disbelief in the 
 devil was discovered; and also that, in my book, Selections 
 from the Old and New Testaments, I had omitted those passages 
 which seemed to favour those remarkable doctrines. I very 
 much regret the necessity for omitting those passages, and should 
 be delighted if some more wholesome meaning could be attached 
 to them. I have thought it my duty to write this letter, but 
 from what I have said, your Lordship will perceive that Mr. 
 Cook very probably copsiders that, in treating me thus, he only 
 carries out the principles of the Church of England to their 
 
yenkins v. Cook. 401 
 
 legitimate conclusion ; for I believe Mr. Cook's opinions, how- 
 ever extraordinary, are perfectly orthodox. — I am, my Lord, 
 your Lordship's obedient servant, Henry Jenkins." 
 
 The last sentence of this letter contains, I may observe, a 
 remarkable admission. The Bishop sent the following answer : 
 
 "Palace, Gloucester, 3 August 1874. 
 
 " My deae Sir, — I much regret the occurrence which you 
 specify. 
 
 " The Church of England has not, I believe, anywhere laid 
 down rules relative to refusal of the Holy Communion, other 
 thati those prefatory to the service, and the 26th, 27th, and 
 109th Canon. 
 
 " These, I gather from your letter, do not apply to your case. 
 
 " It might, I think, justly be inferred from the service itself, 
 that a communicant shbuld fully believe in the articles of the 
 Nicene Creed. 
 
 " These, I conceive, you would be willing heartily to accept. 
 
 " If this be so, I think you have a reasonable cause' of com- 
 plaint ; but as the matter may come before me in my Court, I 
 do not feel able at present to say more. 
 
 "I shall feel it my duty to attend to any further communica- 
 tion on this matter wbich you may desire to make. — Very 
 faithfully yours, 0. J. Gloucester ajtd Bristol." 
 
 In this letter it will be observed no reference is made to the 
 letter which the Bishop had received from the defendant, 
 which had apprised the Bishop of the distinct grounds of his 
 refusal, nor to the Bishop's opinion upon those grounds, nor is 
 there any comment made upon- the -avowal of the promoter 
 that he disbelieved in the existence of the devil and in the 
 doctrine of eternal pimishment. 
 
 The reply to this letter has not been produced before me. 
 I think the Bishop said it had been lost. But it is clear 
 that the promoter had not availed himself of the Bishop's sug- 
 gestion that he should express his belief in the Nicene Creed, 
 for the next letter was as follows : — 
 
 "Palace, Gloucester, 13 August 1874. 
 " My dear Sir, — After careful correspondence and inquiry 
 I find that Mr. Thomas " [that is, the curate of Mr._ Cook] 
 " refused you the Holy Communion, partly because notice was 
 not given according to the rubric, but mainly because he re- 
 garded you to be a common and notorious depraver of the 
 Book of Common Prayer, and of the Articles in certain special 
 
 2 c 
 
402 Ecclesiastical y tidgments. 
 
 details, whicli he was prepared, if need be, to specify in open 
 court or otherwise. 
 
 " This heing alleged to be the case, and it being also doubtful 
 from your letter to me whether you accept the creed which 
 forms a portion of the service, I do not feel that I can personally 
 further interpose in the matter; but should you desire it, I shall 
 be quite wilHng to entertain the question, if brought before me 
 in my court. — Very faithfully youars, 
 
 " H. Jenkins, Esq. C. J. Gloucester aku Beistol." 
 
 This letter the promoter answers as follows : — 
 
 "13 Manilla Crescent, Weston-super-Mare, 
 "li August 1874. 
 " Mt Lord, — I have not alluded to the Mcene Creed except 
 to say that I did not allude to it. The Apostles' Creed (the 
 one placed over the Communion Table in Christ Church) I stDl 
 think less involved and more in accordance, on the whole, with 
 what we are told on the subject. I do not think it necessary 
 to notice Mr. Thomas's objections, but the reason Mr. Cook 
 refused me the Sacrament is very intelligible. In speaking to 
 my wife he said, ' Let him tell me that he believes in the devil, 
 and I will give him the Sacrament.' In his opinion, therefore, 
 this is the passport to the ordinance. I beg to acknowledge 
 the receipt of your letter, and am, my Lord, your Lordship's 
 obedient servant, Henry Jenkins." 
 
 The next letter is from the Bishop, and is as follows : — 
 
 " Gloucester, 15 August 1874. 
 
 " My dear Sir, — To prevent any mistake, allow me to add 
 that I have only to do with the clergyman who actually re- 
 fused you, and with the reasons which he assigned. These I 
 took especial care to obtain in an accurate form, and they are 
 as stated in my last letter. — Very faithfully yours, 
 
 " H. Jenkins, Esq. C. J. Gloucester and Bristol." 
 
 The information to which the Bishop refers is contained in 
 two letters of Mr. Thomas's, the curate, which were enclosed in 
 a later letter, dated September 1 6, sent by the Bishop to the 
 promoter. 
 
 The two following letters continue the correspondence be- 
 tween the promoter and the Bishop : — 
 
 " 3 Vyvyan Terrace, Clifton, 
 6 September 1874. 
 " My Lord, — Mr. Thomas has this morning again refused to 
 give me the Sacrament. Now, whatever a 'common and 
 
Jenkins v. Cook. 403 
 
 notorious depraver of the Book of Common Prayer ' may mean 
 as applied to a man who values the book only second to the 
 Bible itself, the reason why I am debarred from partaking of 
 the Holy Communion is sufiadently ' notorious.' It is because, 
 forsooth, I ventured to protest against the disgusting and' 
 impious doctrines set forth by Mr. Cook in the two sermons to 
 which I have referred. My Lord, it is a grievous misfortune 
 if your power wiH not indeed allow you to check such unjusti- 
 fiable and scandalous proceedings on the part of your subor- 
 dinates. — I am, my Lord, your Lordship's obedient servant, 
 
 " Henry Jenkins." 
 
 " Gloucester, 14 September 1874. 
 
 " My deae Sib, — I have' just returned after a short absence 
 on the Continent. Hence the delay in reply. 
 
 " I have, as I implied, either in a former letter, or through 
 Canon Mather, this grave difficulty, viz., that I do not yet 
 clearly understand whether you do or do not heartily and ex 
 animo accept the creed which forms a part Of the Communion 
 service. 
 
 "While that doubt remains I cannot conscientiously take 
 any action. 
 
 " As I before said, I have been greatly pained by the whole 
 matter. — Very faithfully yours, 
 
 " C. J. Gloucestee and Beistol." 
 
 There then appears to have been a letter from the promoter 
 to the Bishop, which was not produced before me. 
 
 The next letter I have is from the Bishop, as follows : — 
 
 "Gloucester, 16 Scptemher 1874. 
 
 " My deae Sie, — Excuse my saying that you do not realise 
 the difficulties of the case. Let me state them : — 
 
 " First, I have nothing to do with any one except the minis- 
 ter actually repelling. 
 
 " Secondly,! learn from him, after careful inquiry, the grounds 
 on which he does so ; viz., principally, ' that you were a com- 
 mon and notorious depraver of the Book of Common Prayer, 
 and of the Articles in certain particulars which he was pre- 
 pared to specify.' This I have already mentioned to you. 
 
 " Whether these statements can be legally sustained I am 
 not prepared to say. 
 
 " Into this, however, I had resolved not to enter, but was 
 prepared, if I foxmd from your answers that you accepted the 
 creed that forms a part of the Communion service, to dii'ect, 
 under the 27th Canon, that you should no longer be refused^ 
 
404 Ecclesiastical Judgments. 
 
 as being of honest life and conversation, and holding the fun- 
 damental articles of the Christian faith. 
 
 " Unfortunately, on the subject of your acceptance or non- 
 acceptance of the creed which forms a part of the service, I do 
 not obtain, and have not yet obtained, any such clear answer 
 as would, in my judgment, warrant me in personally interpos- 
 ing and overriding the judgment of the clergyman ; still I now, 
 as previously, wish to do you aU: possible justice, and so add, 
 as before, that I will entertain the question if formally brought 
 before me in my court ; the question being one of legal difficulty, 
 whether you can be considered to come under the fair construc- 
 tion of the 27th Canon. 
 
 " As I wish, in so painful 'a matter, to act with the fullest 
 consideration of your feelings, I enclose Mr. Thomas's letter, 
 with the reasons in extenso. This please to return to me. 
 
 " I am also quite willing that you should go to my friend 
 and legal adviser, Mr. Clarke, show to him this and my other 
 letters, and be guided by his friendly advice. 
 
 " I think I must have made it plain throughout how deeply 
 I regret the whole matter. Still I cannot and must not set 
 aside the deliberate and reasoned judgment of one of my clergy, 
 unless it be made more clear than it now is to me that I am 
 morally justified in doing so. — Very respectfully yours, 
 
 " C. J. Gloucester ajjd Bristol." 
 
 Mr. Thomas's letters, which are part of the evidence in the 
 suit, were enclosed in the last letter. 
 
 In answer to the letter of the 1 6th of September from the 
 Bishop to the promoter, the promoter appears to have written 
 another letter which was not produced, and then I have the 
 following letter from the Bishop to the promoter : — 
 
 "Gloucester, 18 Septemler 1874. 
 
 " My dear Sir, — I return the note you have kindly sent. 
 
 " I venture to hope that my last note may have put matters 
 in a clear light. Mr. Cook's case will be, that you, by omis- 
 sions, the design of which you have admitted orally and in 
 writing, have come under the 27th Canon. 
 
 " Personally, I doubt much whether this would be the ruling 
 of any competent court ; but, in my official capacity, especially 
 under the circumstances I have already mentioned in a former 
 note, I ought not to foreclose a fairly arguable case. — Very 
 faithfully yom's, C. J, Gloucester and Bristol." 
 
 It appears that on the 2d of October 1874 the defendant had 
 an interview with the Bishop upon the subject of his intended 
 refusal of the Holy Communion to the promoter on Sunday the 
 
Jenkins v. Cook. 405 
 
 4t]l of October, notice having been given on the 28th of Septem- 
 ber by the promoter, according to the rubric, of his intention to 
 communicate on the 4th of October. 
 
 As to this interview the Bishop himself gave evidence in 
 court, and connected with it there is a^document written in 
 pencil by him to which I will presently advert. 
 
 His Lordship said that he had no memoranda of the details 
 of the conversation, which had faded from his memory, and 
 which he had completely forgotten. He said that to the best of 
 his remembrance he did not give the defendant advice but assist- 
 ance : that his general impression was that the defendant said 
 he was conscientiously bound to continue to refuse the Holy 
 Communion to the promoter, and that he did not "collect 
 categorically that Mr. Cook (the defendant) would obey his 
 judgment." 
 
 But upon cross-examination a document in pencil was shown 
 to his Lordship, which he admitted both to be in his hand- 
 writing and to have been given by him to the defendant as the 
 answer which he would advise him to send to the promoter. 
 
 This document is as follows : — 
 
 " I have received your note giving me, etc. 
 
 " I fear it is my solemn duty now to inform you that I can- 
 not receive you as a communicant, inasmuch as you have pub- 
 lished a book omitting certain portions of God's Holy Word, 
 and have given me in writing your reasons for doing so. 
 
 " This I solemnly believe to constitute the offence specified 
 in the 27th Canon, and believing it, I am conscientiously bound 
 to obey that Canon. 
 
 " My course, therefore, is clear, and I shall unhesitatingly 
 follow it. 
 
 " I do, however, feel how grievous the scandal may be for 
 such a case to come on; it must come before the courts of 
 the country, and I do invite you to consider whether it may 
 not be your duty so to respect the consciences of others, and 
 the general peace of the Church, as voluntarily to withdraw 
 from my congregation, and not to put me to the melancholy and 
 painful necessity of acting as I am resolved to act if you 
 present yourself." 
 
 This memorandum, the Bishop said in his evidence, was 
 written by him to assist the defendant in the expression of 
 his (the defendant's) opinion. It was adopted by the defendant 
 as his own, and sent with additional remarks by him to the 
 promoter. 
 
 Another letter, which I thought myself bound to admit, 
 though marked "private," is as follows. It is dated, it will 
 be observed, after the repelling of the promoter, an event which 
 
4o6 Ecclesiastical Judgments. 
 
 occurred on Sunday, October the 4tli, two days after the inter- 
 view of the defendant with the Bishop, and which repelling 
 alone is made the subject of charge in the articles. 
 
 " (Private.) 
 • " Gloucester, 23 November 1874. 
 
 " Mt dear Me. Cook, — I have carefully thought over our 
 short conversation, and think now that there seems to be some 
 daylight for us all. 
 
 " But we must, of course, be very careful. It has occurred 
 to me, therefore, that any part I may have had in drawing up 
 the letter which you wrote to Mr. Jenkins, or even any approval 
 of it, should carefully be suppressed. It will not legally aid 
 your case, and it wiU make my interposition less effective. 
 So, as much as you can, keep me out of it. I shall be more 
 free, and more able to bring matters to a peaceful solution. — 
 Very faithfully yours, C. J. Gloucester and Bristol." 
 
 The only comment which I think it necessary to make upon 
 these letters will be with reference to their bearing upon the 
 point of law relied upon by the defendant, to which I will 
 presently advert. 
 
 Such being the facts of the case, I will now endeavour to 
 discover and apply the law which is applicable to them. 
 
 I think it unnecessary to enter upon a discussion of the 
 principles of the general ecclesiastical law upon this particular 
 subject, inasmuch as specific provisions of our Church are to 
 be found in the Canons of 1603 and in the rubrics to the 
 present Prayer-Book. 
 
 It has been argued, indeed, that the rubric alone is applicable 
 to them. But I am not of that opinion. 
 
 As I have always been taught and learnt, the rubric is to be 
 construed, wherever it is possible, so as to agree with the 
 Canons. Many authorities might be cited for this proposition ; 
 but it really seems to me one of an elementary character. In 
 this particular instance the rubric, as it wiU be seen, itself 
 refers to the Canon. 
 
 And with respect to the other argument, that the Canons are 
 not binding on the laity, after the decision of Lord Hardwicke 
 in Middleton y. Crofts (2 Atk. Eep. 669), not to say that this 
 proposition is too broadly stated and requires some qualifica- 
 tion, it appears to' me quite inapplicable to the present case, 
 which is a proceeding against a clergyman in an ecclesiastical 
 court for an offence against the ecclesiastical law. 
 
 In Mastin v. Escott (4 Moore, 104), which was referred to, 
 but I think infeUcitously, by the counsel for the promoter, the 
 layman put in force against the clergyman the punishment 
 
yenkins v. Cook. 407 
 
 prescribed by the Canon alone for tlie offence ; and here I may- 
 add that this case itself is one of the authorities for both pro- 
 positions, namely, that the Canons are binding upon the clergy, 
 and that the rubric is to be construed with reference to them. 
 
 The Canons to which I think it necessary to refer are the 
 26th and 27th. 
 
 Canon 26! — "No minister shall in any wise admit to the 
 receiving of the Holy Communion any of his cure or flock 
 which be openly known to live in sin notorious, without repent- 
 ance ; nor any one who have maliciously and openly contended 
 with their neighbours, until they shall be reconciled ; nor any 
 churchwarden or sidemen, who having taken their oaths to 
 present to their Ordinaries aU such public offences as they are 
 particularly charged to inquire of in their several parishes, 
 shall (notwithstanding their said oaths, and that their faith- 
 ful discharging of them is the chief means whereby public 
 sins and offences may be reformed and punished) wittingly 
 and willingly, desperately and irreligiously, incur the horrible 
 crime of perjury, either in neglecting or in refusing to present 
 such of the said enormities and public offences as they know 
 themselves to be committed in their said parishes, or are 
 notoriously offensive to the congregation there ; although they 
 may be urged by some of their neighbours, or by their minister, 
 or by their Ordinary himself, to discharge their consciences 
 by presenting of them, and not to incur so desperately the said 
 horrible crime of perjury." 
 
 Canon 27. — "No minister, when he celebrateth the Com- 
 munion, shall wittingly administer the same to any but such as 
 kneel, imder pain of suspension ; nor, under the like pain, to 
 any that refuse to be present at public prayers according to 
 the orders of the Church of England; nor to any that are 
 common and notorious depravers of the Book of Common 
 Prayer and administration of the Sacraments, and of the orders, 
 rites, and ceremonies therein prescribed, or of anything that is 
 contained in any of the Articles agreed upon in the Convocation 
 one thousand five hundred sixty and two, or of anything con- 
 tained in the Book of ordering the Priests and Bishops ; or to 
 any that have spoken against and depraved His Majesty's 
 sovereign authority in causes ecclesiastical ; except every such 
 person shall first acknowledge to the minister, before the 
 churchwardens, his repentance for the same, and promise by 
 word (if he cannot write) that he will do so no more; and 
 except (if he can write) he shall first do the same under his 
 handwriting, to be delivered to the minister, and by him to 
 the Bishop -of the diocese or Ordinary of the place. Provided 
 that every minister so repelliag any, as is specified either in 
 
4o8 Ecclesiastical Judgments. 
 
 this or in the next precedent constitution, shall, upon com- 
 plaint, or being required by the Ordinary, signify the cause 
 thereof unto him, and therein obey his order and direction." 
 
 I now turn to the rubrics prefixed to "The Order of the 
 Administration of the Lord's Supper or Holy Communion." 
 
 " So many as intend to be partakers of the Holy Communion 
 shall signify their names to the curate, at least some time the 
 day before. 
 
 " And if any of those be an open and notorious evil liver, 
 or have done any wrong to his neighbours by word or deed, 
 so that the congregation be thereby offended, the curate, having 
 knowledge thereof, shall call him and advertise him, that in 
 any wise he presume not to come to the Lord's Table until 
 he hath openly declared himself to have truly repented and 
 amended his former naughty life, that the congregation may 
 thereby be satisfied, which before were offended ; and that he 
 hath recompensed the parties to whom he hath done wrong ; 
 or at least declare himseK to be in full purpose so to do, as soon 
 as he conveniently may. 
 
 " The same order shall the curate use with those betwixt 
 whom he perceiveth malice and hatred to reign ; not suifering 
 them to be partakers of the Lord's Table, until he know them 
 to be reconciled. And if one of the parties so at variance be 
 content to forgive from the bottom of his heart all that the 
 other hath trespassed against him, and to make amends for that 
 he himself hath offended ; and if the other party will not be 
 persuaded to a godly unity, but remain stiU in his frowardness 
 and malice, the minister in that case ought to admit the peni- 
 tent person to the Holy Communion, and not him that is obsti- 
 nate. 
 
 " Provided that every minister so repelling any, as is specified' 
 in this, or the next precedent paragraph of this rubric, shall be 
 obliged to give an account of the same to the ordinary within 
 fourteen days at the farthest ; and the ordinary shall proceed 
 against the offending person according to the Canon." 
 
 The rubric of course receives a legitimate construction from 
 the service to which it is prefixed. And in that service is to 
 be found an exhortation in which are the following words : — 
 
 "... Therefore if any of you be a blasphemer of God, an 
 hinderer or slanderer of His Word, an adulterer, or be in malice, 
 or envy, or in any other grievous crime, repent you of your 
 sins, or else come not to that Holy Table ; lest after the taking 
 of that Holy Sacrament the devil enter into you as he entered 
 into Judas, and fill you full of aU iniquities, and bring you to 
 destruction both of body and soul." 
 
 I think that hinderers and slanderers of God's Word are 
 
Jenkins v. Cook. 409 
 
 included ia_ the category of evil livers specified in the rubric. 
 It was admitted that these latter words could not be confined 
 to persons guilty of immoral conduct. Indeed, from the con- 
 trary position, an obvious absurdity would follow ; for, in that 
 case, a person might deny the fundamental doctrines of Chris- 
 tianity, and nevertheless claim his right to the reception of the 
 Holy Communion. 
 
 The law of the Church of England derived from these sources 
 appears to have been anxiously framed to accomplish two 
 objects ; on the one hand, to impress on the parishioners the 
 obligation of receiving the Sacrament of the Lord's Supper ; on 
 the other, to guard against the reception of it by those whose 
 lives were not in conformity with the precepts of Christianity. 
 It intended to secure the right of the worthy parishioner and 
 to protect the clergyman in the execution of his duty to repel 
 the unworthy parishioner. 
 
 In what this unworthiness consists, it has stated, partly in 
 general partly in specific terms. But in both instances it has 
 thrown upon the clergyman the duty of deciding whether the 
 conduct of the parishioner desirous of partaking of the Sacra- 
 ment did or did not incapacitate him from availing himself of 
 that great but awful privilege. It placed the exercise of the 
 discretion according to the principles of ecclesiastical law 
 under the control and supervision of the ordinary, and upon 
 him it cast the double duty, first, of advising the clergyman, 
 and, secondly, if he agreed with his decision, of taking proceed- 
 ings in court pro salute dnimce against the parishioner, in order 
 that he might be brought into a state of penitence qualifying 
 him for the reception of the Sacrament, from which in his pre- 
 sent condition he had been rightly repelled. The notion that 
 a criminous layman, as well as a criminous clerk, is subject to 
 ecclesiastical discipline has fallen into such comparative desue- 
 tude that this statement of the law may create surprise, but it 
 is the law of the land. It is clear in any event, and this is the 
 more important observation, that the clergyman is legally 
 entitled to the advice and protection of his Bishop in the exer- 
 cise of this gi-eat responsibility. 
 
 I think the evidence, fairly considered, shows that the defen- 
 dant sought this advice ; and surely, as the Bishop wrote the 
 copy of the letter which the defendant was to send to the 
 promoter justifying and adhering to his refusal, it cannot be 
 successfully contended that the Bishop did not sanction his 
 conduct. 
 
 It does indeed appear that the Bishop, unfortunately, I 
 venture to think, corresponded with both parties separately, 
 and, in his anxiety to make peace, wavered somewhat, perhaps. 
 
4IO Ecclesiastical yudgments. 
 
 in the expression of his opinion, accordingly as he addressed the 
 defendant or the promoter ; but, nevertheless, the substantial 
 result is that, if he did not, as I think he did, actually autho- 
 rise the action of the defendant, he at least did not forbid it. 
 
 How, then, has the clergyman offended against the ecclesias- 
 tical law as expressed either in the Canons or the Eubric ? He 
 had frima facie ground for hesitating to administer the Holy 
 Communion. He submitted that ground to his Ordinary, and 
 either received no " order and direction" from the Ordinary at 
 all, or received an " order and direction" which he has obeyed, 
 and in either case has discharged his duty, and ought not to be 
 made the subject of a criminal prosecution. 
 
 It was contended before me in argument that he had infringed 
 the law in not, within fourteen days after his refusal to admin- 
 ister the Sacrament to the promoter, giving an account of his 
 refusal to the Ordinary, according to the provisions of the 
 rubric. But, in the first place, this is not an offence for which 
 he is articled. In the second place, I think I must consider 
 the rubric as being on this head directory only. And in the 
 third place, such an account would have been nothing but the 
 barest formality in this case, inasmuch as the Bishop well knew, 
 having been so apprised by the defendant on the 2d of October, 
 that the defendant was about to refuse the Sacrament to the 
 promoter on Sunday the 4th, and that he had been previously 
 refused on two occasions by the curate of the defendant, acting 
 under his direction. 
 
 Though I am of opinion that the defendant has established 
 his first defence, for the reasons which I have stated, at the 
 same time I do not think that I ought to shrink from the 
 examination of the second line of defence, namely, that the 
 conduct of the promoter furnished a justification of the action 
 of the defendant in repelling him from the Holy Communion as 
 being under the Canons and Eubric disqualified from partaking 
 thereof. 
 
 In considering for this purpose the conduct of the promoter, 
 I must bear in mind not only that he has, in terms, denied the 
 eternity of punishment and the existence of the devil, but also 
 that he has expunged from the Bible, on the ground of their 
 indecent and irreligious tendency, large portions, many of which 
 relate to other grave and important doctrines of Christianity, 
 and among which are to be enumerated several passages con- 
 taining our Saviour's own words and precepts. 
 
 With respect to the absolute denial of the eternity of punish- 
 ment, and here I must observe that many of the passages struck 
 out relate not only to the eternity of punishment, but to any 
 punishment for sin, I am of opinion that such a position is at 
 
Jenkins \. Cook. 411 
 
 variance with the plain teaching of the Church of England, ex- 
 pressed in her Formularies, and especially in the Coihmination 
 Service and the Athanasian Creed. And I am further of opinion 
 that the decision of the Privy Council in Fendall v. Wilson 
 (2 Moore, P. C., N. S., 433) cannot be carried further than 
 the passage which states the conclusion of their Lordships, and 
 which is as follows : — 
 
 " We are not required, or at liberty, to express any opinion 
 upon the mysterious question of the eternity of final punish- 
 ment, further than to say that we do not find in the Formu- 
 laries, to which this article refers, any such distinct declaration 
 of our Church upon the subject, as to require us to condemn as 
 penal the expression of hope by a clergyman that even the ulti- 
 mate pardon of the wicked, who are condemned in the day of 
 judgment, may be consistent with the will of Almighty God." 
 
 The expression of such a hope is a very different thing from 
 that absolute denial of the eternity of punishment which the 
 promoter has declared. 
 
 The next subject for consideration is the denial, by the pro- 
 moter, of the existence and personality of the devil. What is 
 the teaching of the Church of England in her Formularies on 
 this subject ? Has she spoken ambiguously or clearly ? Pro- 
 fessing upon this as upon other points to be guided by Holy 
 Scripture, has she treated this matter as one of importance, or 
 the contrary ? 
 
 The Greek word o Sta^SoXo?, which occurs in the New Tes- 
 tament I believe at least 53 times,^ is the usual rendering of 
 the Hebrew word " Satan." To the signification " adversary" or 
 " enemy " which Satan implied, the Greek word added that of 
 " slanderer," or literally, " one who sets at variance by means 
 of slander." The devil is represented in Holy Scripture as the 
 spiritual enemy who slanders God to man and man to God. I 
 will here avail myself df, and adopt as my own, the language 
 used by a very learned person on this subject. 
 
 " It would be a waste of time to prove that in various degrees 
 of clearness the personal existence of a spirit of evil is revealed 
 again and again in Scripture. Every quality, every action, 
 which can indicate personality, is attributed to him in language 
 which cannot be explained away." 
 
 " From the beginning of the Gospel, when he appears as the 
 personal tempter of our Lord, through all the Gospels, Epistles, 
 and Apocalypse, it is asserted, or implied, again and again, as a 
 familiar and important truth. To refer this to mere ' accom- 
 modation' of the language of the Lord and His Apostles to the 
 I Blunt's Dictiojutry of Theology, voce Satan. 
 
412 Ecclesiastical yudgments. 
 
 ordinary Jewish belief, is to contradict facts, and evade the 
 meaning of words. The subject is not one on which error could 
 be tolerated as unimportant ; but one important, practical, and 
 even awful. The language used respecting it is either truth or 
 falsehood ; and unless we impute error or deceit to the writers 
 of the New Testament, we must receive the doctrine of the 
 existence of Satan as a certain doctrine of Eevelation. With- 
 out dwelling on other passages, the plain, solemn, fend unmeta- 
 phorical words of John viii. 44 must be sufficient : ' Ye are of 
 your father the devil : ... he was a murderer from the begin- 
 ning, and abides not in the truth. . . . When he speaketh a lie, 
 he speaketh of his own : for he is a liar, and the father of it.' "^ 
 
 If this be a correct representation of the account given in 
 Holy Scripture of the existence and personality of the devil, it 
 would certainly be very strange if the Church of England had 
 considered the belief in this existence and personality a matter 
 of indifference — if indeed she had not considered such belief a 
 necessary part of Christian teaching. 
 
 I turn to her Formularies, and especially to her Prayer-Book, 
 which is often and truly said to be part of a statute, for in- 
 formation on this point. I find it under three heads : — 1. 
 Prayers ; 2. Selections from Scripture ; 3. Services. 
 
 I. In the Prayers I find the following passages : — 
 
 In the, Litany. 
 
 " From the crafts and assaults of the devil, . . . 
 
 " Good Lord, deliver us." 
 " From all the deceits of the world, the flesh, and the devil, 
 
 " Good Lord, deliver us." 
 " That it may please thee . . . finally to beat Satan under 
 our feet, 
 
 " We beseech thee to hear us, good Lord." 
 " And graciously hear us, that those evils, which the craft and 
 subtnty of the devil worketh against us, be brought to nought." 
 — Collect after the Litany. 
 
 Eighteenth Sunday after Trinity. — The Collect. 
 " Grant thy people grace to withstand the temptations of the 
 world, the flesh, and the devil." 
 
 II. As to selections from Scripture. — ^Among the most re- 
 markable ia the gospel for the fifth Sunday after Epiphany, 
 the 13th chapter of St. Matthew, containing the Parable of the 
 Sower of the Wheat and the Tares. 
 
 " The enemy that sowed," says the present Archbishop of 
 Dublin, " the tares, we learn ' is the devil;' so that we behold 
 Satan here not as he works beyond the limits of the Chi|irch, not 
 I Dictionary of the Bible, title Saian. 
 
Jenkins v. Cook. 413 
 
 as he deceives the world, but in his far deeper skill ahd malignity 
 as he at once mimics and counterworks the works of Christ." 
 
 " It is further •noticeable, with what remarkable distinctness 
 the doctrine concerning Satan and his agency, his active hosti- 
 lity to the blessedness of man, of which there is so little in the 
 Old Testament, comes out in our Lord's teaching in the New, 
 as V. 19, 'then cometh the wicked one,' and here ' the enemy 
 that sowed them is the devil.' " 
 
 " It was not till the Son of Man actually appeared on the 
 stage of the world that Satan came distinctly forward upon it 
 also ; but the instant that the Saviour opens his ministry for 
 the setting up of the Kingdom of God, at the same instant 
 Satan starts forward as the hinderer and adversary of it, the 
 tempter of the Son of Man." ^ 
 
 This seems to be the teaching of the Prayer-Book, as is fur- 
 ther shown in the following passages : — 
 
 Epistle for the Sixth Sunday after the Epiphany. — " He that 
 committeth sin is of the devil, for the devil sinneth from the 
 beginning." 
 
 " For this purpose the Son of God was manifested, that he 
 might destroy the works of the devil." — 1 St. John iii. 8. 
 
 First Sunday in Lent. — The whole Gospel of St. Matthew 
 iv. 1-12, relating to Our Lord being " tempted of the devil." 
 
 Wednesday hefore Easter. — The Gospel, St. Luke xxii. 3. 
 " Then entered Satan into Judas surnamed Iscariot." 
 
 Third Sunday after Trinity.— ThQ Epistle, 1 St. Peter v. 8. 
 " Be sober, be vigUant ; because your adversary the devil as a 
 roaring lion walketh about seeking whom he may devour." 
 
 Nineteenth Sunday after Trinity. — The Epistle, Ephesians 
 iv. 27. " Neither give place to the devil." 
 
 Twenty-first Sunday after Trinity. — The Epistle, Ephesians vi. 
 11. " That ye may be able to stand against the wiles of the devil." 
 
 St. Michael and All Angels. — For the Epistle, Eevelations 
 xii. ver. 9. " And the great dragon was cast out, that old ser- 
 pent called the devil and Satan." . . . Verse 12, " the devil is 
 come down unto you having great wrath." 
 
 III. In the particular Services I find the following passages : — 
 
 Baptismal Service. 
 
 " I demand therefore, 
 
 " Dost thou, in the name of this child, renounce the devil 
 and all his works . . ." 
 
 1 X'otes on tlie Parables, by E. C. Trench; Parable IL, The Tares, 
 pp. 63, 69, 70. 
 
4 1 4 Ecclesiastical judgments. 
 
 " Grant that he may have power and strength to have vic- 
 tory, and to triumph against the devil, the world, and the 
 flesh." ... 
 
 " We receive this child into the congregation of Christ's 
 flock, and do sign him with the sign of the Cross, in token that 
 hereafter he shall not be ashamed to confess the faith of Christ 
 crucified, and manfully to fight under his banner against sin, 
 the world, and the devil." 
 
 Catechism. 
 
 Answer. — " First, that I shall renounce the devil and all his 
 works." 
 
 Visitation of the Sick. 
 
 Collect. — " . . . Eenew in him, most loving Father, what- 
 soever hath been decayed by the fraud and malice of the 
 devil." 
 
 Consecration of an Archbishop or Bishop. 
 
 The Epistle, 1 Timothy iii. 6. — " Not a novice, lest being 
 lifted up with pride he fall into the condemnation of the devil 
 . . . lest he fall into reproach and the snare of the devil." 
 
 Lastly, I will again cite what, with reference to this parti- 
 cular suit, is a passage of some importance, and has been already 
 mentioned for another purpose. It is taken froni an Exhorta- 
 tion in the Holy Communion service the Sunday before the 
 celebration. 
 
 " Therefore, if any of you be a blasphemer of God, an hinderer 
 or slanderer of His Word, an adulterer, or be in malice, or envy, or 
 in any other grievous crime, repent you of your sins, or else come 
 not to that Holy Table, lest, after the taking of that Holy 
 Sacrament, the devil enter into you as he entered into Judas, 
 and fill you full of all kiiquities and bring you to destruction, 
 both of body and soul." 
 
 It is remarkable that this striking passage is to be found in 
 both the Praiyer-Books of Edward the Sixth (1549, 1552), and 
 also in the Order of the Communion of 1548, which is as 
 follows : — 
 
 If a man be in any notable crime, " let him awhile bewail 
 his sins and not come to this Holy Table, lest, after the taking 
 of this most blessed bread, the devil enter into him as he did 
 into Judas, to fulfil in him aU iniquity, and to bring him to 
 destruction, both of body and soul." ^ 
 
 I must not omit reference to a very important formulary of 
 the Church. In the Thirty-nine Articles there is this passage ; 
 it occurs in the 17th Article : — " For curious and carnal persons, 
 
 1 Cardwell, Liturgiea of Edward VI., pp. 429, 430. 
 
Jenkins v. Cook. 4 1 5 
 
 lacking the Spirit of Christ, to have continually before their eyes 
 the sentence of God's predestination, is a most dangerous down- 
 fall, whereby the devil doth thrust them either into desperation 
 or into wretchlessness of most unclean living, no less perilous 
 than desperation." 
 
 I think it unnecessary to travel further into a statement of 
 the other passages of Scripture, grave and important as some of 
 them are, which do not immediately relate to the eternity of 
 punishment or the existence of the devil, and which are rejected 
 by the promoter ; because I am of opinion that the avowed and 
 persistent denial of the existence and personality of the devil 
 did, according to the law of the Church, as expressed in her 
 Canons and Eubric, constitute the promoter " an evil liver," 
 and " a depraver of the Book of Common Prayer and adminis- 
 tration of the Sacraments," in such sense as to warrant the de- 
 fendant in refusing to administer the Holy Communion to him, 
 until he disavowed or withdrew his avowal of this heretical 
 opinion ; and that the same consideration applies to the abso- 
 lute denial by the promoter of the doctrine of the eternity of 
 punishment, and of course still more to the denial of all punish- 
 ment for sin in a future state, which is the legitimate conse- 
 quence of his deliberate exclusion of the passages of Scripture 
 referring to such punishment. 
 
 This disqualification of the promoter to receive the Holy 
 Communion is not in my judgment removed either by the fact 
 that he has published a volume of prayers taken from our 
 Liturgy, or that he has expressed his belief in the inspiration 
 of Holy Scripture. Nor do I stop to consider how such a de- 
 claration can be reconciled with his excision of those passages 
 in Scripture to which I have referred. 
 
 I must consider, therefore, that the second as well as the first 
 defence is established, and I must dismiss this suit with costs. 
 
KEET V. SMITH AND OTHERS. 
 
 It is not expedient that a tombstone should be erected in the 
 churchyard of a parish with an inscription describing 
 the deceased person as "the daughter of the Rev. A. B., 
 Wesleyan Minister" where the incumbent refuses his 
 consent to such an inscription, and the Bishop of the 
 diocese disapproves of it. 
 
 Law as to Faculties considered. 
 
 A Faculty to erect such a tombstone refused. 
 
 This case was only argued on one side, that of the 
 applicant for the Faculty, I gave judgment in it on 
 the 31st of July 1875. 
 
 An appeal has been asserted, and is stiU pending. 
 
 The case is reported in the Law Eeports, 4 Admiralty 
 and Ecclesiastical, page 398. 
 
 • Judgment. — This is an appeal from the Consistory of Lin- 
 coln. 
 
 The subject of the appeal is the refusal of that Court to grant 
 a faculty for the erection of a tombstone containing the follow- 
 ing inscription : — " In loving memory of Annie Augusta Keet, 
 the younger daughter of the Eev. H. Keet, Wesleyan Minister, 
 who died at Ouston Ferry, May 11, 1874, aged seven years 
 and nine months. — ' Safe sheltered from the storms of life.' " 
 
 It appears that the inscription " Wesleyan Minister " was not 
 objected to by the incumbent, and was allowed by the Court. 
 The prefix " Reverend " was objected to by the incumbent, and 
 disallowed by the Court. 
 
 I must express regret that the petitioner should not have 
 been content with the description " Wesleyan Minister ; " it is 
 strictly speaking his accurate description as " George Edward 
 Smith, clerk or vicar," would be, strictly speaking, the accurate 
 description of the incumbent. 
 
 The aspect of the question in this Court is slightly varied 
 from that which it assumed in the Court below. 
 
Keet V. Smith and Others. 4 1 7 
 
 The Chancellor of Lincoln declined to allow the issue of a 
 citation to the incumbent, calling upon him to show cause why 
 the faculty prayed should not be granted. In this Court, 
 however, that citation has, according to its usual practice, 
 already issued, and has been served upon the incumbent, and 
 he has not appeared in answer to the citation ; but he has not 
 withdrawn his opposition to it. 
 
 The law as to the rights of the incumbent and parishioners 
 with respect to grave-stones in churchyards is often but 
 partially understood and carelessly stated. I will endeavour 
 to lay it down correctly. 
 
 The churchyard is the freehold of the incumbent, subject to 
 the right of the parishioner or stranger happening to die in the 
 parish, to simple interment, but to no more. Indeed, the 
 incumbent has the right to pasture animals which do not 
 injure the bodies interred in the churchyard; and every grave- 
 stone, of course, interferes with that pasturage. 
 
 The Incumbent for this, as well as for other more impor- 
 tant reasons, has a primd facie right to prohibit altogether 
 the placing of any grave-stone, or to permit it upon proper 
 conditions, such as those which relate to the size and 
 character of the stone, the legality or propriety of the inscrip- 
 tion upon it, or the payment of a proper fee. Usage, indeed, 
 has much favoured the placing of such stones, and as a general 
 rule, the incumbent permits them; while the exercise of his 
 right of refusal has become, or perhaps always was, subject 
 to the control of the Ordinary. 
 
 None of my predecessors was, I think, better acquainted 
 with the mixed law and practice of the Ecclesiastical Courts in 
 cases of this description than Sir Herbert Jenner Fust. In the 
 important case of Breeks v. Woolfrey'^ he drew a clear dis- 
 tinction between the general right of the incumbent to refuse 
 permission to place a grave-stone, and his right to refuse such 
 permission on the ground that the inscription upon it was 
 contrary to law ; and while upon the latter special ground he 
 overruled the refusal of the incumbent, he was careful to show 
 no interference with the right of the incumbent to refuse, 
 according to the general law, his consent. 
 
 And here I should observe that the two legal positions, 
 namely, that simple interment is a matter of right, and the 
 placing a grave-stone a matter of permission, are in no way 
 affected by the fact to which I was referred, and which is 
 unfortunately too true, that inscriptions of an improper, 
 ludicrous, and heathen character are to be found in some of our 
 churches and churchyards. Such a fact only proves the culpable 
 indifference and carelessness in this respect of those who had 
 
 1 Carteis's Kep., p. 80. 
 2 D 
 
41 8 Ecclesiastical Judgments. 
 
 the control of the church or churchyard at the period when 
 the censurable inscriptions were allowed; not that there was no 
 power in the clergyman or the Ordinary to refuse them. The 
 notion that an incumbent is bound to permit an inscription at 
 variance with religion, morality, or propriety is entirely erro- 
 neous, and not the less mischievous, because the law holds 
 that tombstones once lawfully erected become, in a sense, the 
 property of the person who erected them. — {Spoon&r v. Brewster, 
 3 Bingham's Eep. 139.) 
 
 Passing then from the considerations of the rights of the 
 incumbents and parishioners, I approach the examination of 
 the law with respect to the power and authority of the Ordi- 
 nary, to whom application for a faculty must be made. 
 
 With respect to the grant or refusal of a Faculty, two dis- 
 tinct considerations occur : — 
 
 Eirst, Is the subject lawful? Secondly, Is it expedient? 
 
 If the former question be answered in the negative, the 
 second, of course, need not be entertained , but if the former 
 question be answered in the affirmative, it may, nevertheless, 
 well be that, having regard to the circumstances, the Ordinary 
 may think the grant of a faculty inexpedient, and on that 
 ground alone refuse it. 
 
 It is a mistake, therefore, to suppose that when the peti- 
 tioner for a faculty has shown that the object for which he 
 requires it is not illegal, that he is necessarily entitled to it. 
 
 The industry of counsel has brought to the attention of the 
 Court a considerable number and variety of instances in which 
 the epithet "Eeverend" has been applied both by authors 
 generally, and occasionally by writers of epitaphs, to distin- 
 guished persons of the laity not in Holy Orders, and some- 
 times to remarkable women. 
 
 What is the argument built upon this historical fact ? 
 
 It can only be that the title is one which is not peculiar to the 
 ministers of any religious body, and which cannot be claimed 
 by any such ministers as their special designation. The judge, 
 the statesman, the officer in the army or navy, any ordinary 
 gentleman, or indeed gentlewoman, might, upon this hypothesis, 
 claim to have this prefix to their name, and nobody would be 
 injured thereby. 
 
 But is this really and honestly the ground on which the 
 petitioner rests his claim ? Is it not obvious that in the present 
 case the title " Eeverend " is not claimed because everybody is 
 entitled to it, but because the claimant is desirous of having it 
 recorded that he is specially entitled to it as being a Wesleyan 
 minister ? I have no doubt that the Wesleyan minister in this 
 case would conscientiously and honourably admit this to be so. 
 Instances were also adduced in which Ministers of State 
 
Keet V. Smith and Others. 419 
 
 had addressed Wesleyaa ministers with the superscription of 
 "Eeverend," and if the question were simply one of social 
 status or . general etiquette, this reference would he very per- 
 tinent and proper. 
 
 But the case is surely different when the question relates to 
 the alleged ohligation of the clergyman to confer, by a perma- 
 nent inscription in his own churchyard, upon another person that 
 peculiar religibus title by which he alone has been hitherto desig- 
 nated and known to his own parishioners and his own church. 
 
 It has been argued, indeed, that there was a time when the 
 clergyman was not addressed by the title of Eeverend, but 
 by sonie other title of distinction; — it is not, however, denied 
 that' this title has been accorded to them for more than two cen- 
 turies; whereas I am informed by counsel that previously to 1811 
 the assumption of the title in dispute by a Wesleyan minister 
 was absolutely forbidden by the ruler of the Wesleyan body. 
 
 I do not, however, think that the Court has simply to decide 
 whether the prefixing the title " Eeverend " to the description 
 "Wesleyan Minister" be so clearly illegal that, even if the 
 clergyman consented, the Court ought to prohibit it. I do not 
 pronounce an opinion to that effect, but it is the duty of the 
 Court to consider not only whether it would be lawful in the 
 abstract to allow such an inscription as this, but also whether 
 -it be expedient and proper to do so. This consideration some- 
 times must, and often may, depend upon local circumstances, of 
 which the Bishop is by reason, law, and practice, the fittest judge. 
 
 I have heard it frequently stated by my immediate and dis- 
 tinguished predecessor in this chair (Dr. Lushington), that in 
 all questions of faculty great weight ought to be ascribed to the 
 opinion of the Bishop of the diocese. Now, in the present case 
 the Bishop has deliberately and emphatically expressed an 
 opinion adverse to the prayer of the petitioner. The Bishop in 
 his letter to the petitioner says : — 
 
 "... What title should be given you by your own co-reli- 
 gionists is not the point at issue, and I express no opinion 
 upon it. But the question is whether the title of ' Eeverend ' 
 should be conceded to you on a tombstone by ministers of the 
 ■Church of England, who are the responsible guardians of her 
 churchyards. 
 
 " It is not easy to determine what is the exact meaning of 
 the title of ' Eeverend ' as claimed by a Wesleyan preacher. 
 
 " If that title is to be taken to imply that he is a person in 
 holy orders, duly qualified to administer the word of God and 
 Sacraments in a church, then I am bound to say that the laws 
 to which I am subject would not allow me to recognise him m 
 that capacity. 
 
 " I hope to have the happiness before long of admittmg some 
 
420 Ecclesiastical ytcdgments. 
 
 Wesleyan preachers to holy orders in the Church of England 
 after due training and trial ; but I should be chargeable with 
 equivocation and duplicity towards them, and with dishonesty 
 and treachery towards the Church of England, if I were now to 
 designate them by the title of Eeverend, to which they will 
 have a just claim after ordination and by its means. If the 
 title of ' Eeverend,' to which you lay claim, and by which you 
 desire to be designated in a consecrated burial-place of the 
 Church of England, is intended only to indicate that you are 
 appointed to preach in a Wesleyan place of worship, I would 
 venture to remind you of another epitaph, that which was 
 inscribed on the tomb of the founder of Wesleyanism himself 
 There John Wesley was described as ' the Patron and Friend 
 of Lay Preachers.' He regarded his preachers as laymen ; he 
 warned them against calling themselves ministers, and after his 
 death the Wesleyan Conference, in 1793 and 1794, forbad them 
 to assume the title of ' Eeverend.' Any one who gives them 
 that title contravenes the injunctions of John Wesley, for whose 
 memory I entertain sincere respect, and to whose authority I 
 desire to defer, in my relations with the members of that import- 
 ant religious community which derives its name from him. 
 
 " A title is a distinctive attribute belonging to a special per- 
 son or class. If I give a title to a person to whom it does not 
 belong, I am liable to a charge of flattering liim, and of wrong- 
 ing those to whom the title does belong. 
 
 " Eor such reasons as these I have abstained from giving the 
 title of ' Eeverend' to Wesleyan preachers, not (I need hardly 
 say) fronx any feeling of disparagement towards them, but 
 because I honour consistency and truth, and because I am sure 
 they would despise me if I acted against my conscience and 
 were to practise that kind of liberality which courts popularity, 
 by giving away what does not belong to it." 
 
 I do not think that it would be proper or consonant to prac- 
 tice that this Court should overrule not only the dissent of the 
 incumbent, but also the deliberate judgment and authority of 
 the Bishop, in a matter not of strict law applicable to all cases, 
 but of discretionary permission applicable to the particular 
 case ; and I think that in refusing to do so, I act in accordance 
 with the spirit both of the general law and of those rubrics in 
 the Book of Common Prayer which relate to the authority of 
 the. Ordinary. 
 
 I decline to issue the faculty as now prayed. 
 
 PRINTED BY T. AND A. CONSTABLE, PRINTERS TO HEK MAJESTY. 
 AT THE EDINBURGH UNIVERSITY PRESS.