i> 11 r..,J« bid: 03 liioht )»-?^ Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14. '893 IN nEFlORY OF ■ JUDOB DOUGLASS BOARDMAN FIH8T DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 8638. A3 1872 Six Judgments of the Judicial Committee 3 1924 017 860 317 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/cu31924017860317 SIX PRIVY COUNCIL JUDGMENTS, 1850-1872. By the same Author. HANDY-BOOK OF THE IRISH CHURCH ACT.. THE IRISH CHURCH ACT, 1869, and the GLEBE LOAN ACT (IRELAND) 1870. Annotated. Rules, Forms, and Notes of Decisions ty the Commissioners, Eesolutions of the Church Represen- tative Body, etc. etc., and an Index. New Edition. Duhlin : HODGES, FOSTER, & CO., Grafton Street, Publishers 'to the University. SIX JUDGMENTS or IHB JUDICIAL COMMITTEE OF THE PEIVY COUNCIL IN ECCLESIASTICAL CASES, 1850-1872. WITH AN HISTORICAL INTRODUCTION, NOTES, AND INDEX. EDITED BY William G. Brooke, M.A, BAEEISTEB-AT-IAW. LONDON: Henry S. King & Co., 65 Coenhill. 1872. lOSDON : PRINTBD BY SPOTTISWOODE AND CO., SEW-STREBT SQTJARH AND PARLIASIBNT STREET (All r^ghiis reserved) PEEi^ACE. A FEW of the more important of the ecclesiastical causes heard since the year 1850 before the Judicial Committee of the Privy Council will be found in this volume. To assist the reader, a full introductory statement has been prepared and prefixed to each Judgment. The Judgments are printed verbatim, ; that in the case of Sheppard v. Bennett has been reprinted from an official copy. My best thanks are due to Mr. Edmund F. Moore, Q.C., the learned Eeporter in the Court of the Judicial Committee, who, courteously waiving his copyright, has perlnitted me to make unrestricted use of the contents of his valuable Eeports. W. G. BEOOKE, CONTENTS. -■ PAG^ Peeface ....'..... V Inteoddction ix List op Judicial Committee xlvii CASES. GoEHAM V. Bishop op Exetbb 1 LiDDELL V. Wbstikton and Liddell v. Bbal . . 42 "Williams v. Bishop of SittiSBUET and Wilson v. Fendall 81 Maetin v. Mackonochie 103 Hebbeet v. Pdechas .... . ■ 162 Sheppabd v. Bennett ...... 209 viii Contents. APPENDIX. FAGB Note A. (Gorham «. Bishop of Exeter) , . . 249 Note B. (Faulkner v. Litchfield)* . . . .252 Note C. (Parker v. Leach) 257 Note D. (' Essays and Reviews') .... 268 Note E. (Ritual Commissioners' Report on Incense and Lighted Candles) .... 260 Note F. (Sumner v. Wix) 261 Note G. (Eucharistic Vestments) ^ • . . . 266 Note H. (Ritual Commissioners' Report on Vestments) 267 Note I. (Legal Opinion on Vestment Question) . 268 Note K. (Sheppard v. Bennett) 271 Index ........ 275 INTEODUCTION. The jurisdiction of the Judicial Committee of the Privy- Council as a final Court of Appeal in causes ecclesiastical is part of tlie supremacy of the Crown, from which all jurisdiction, spiritual or temporal, is derived; but the ecclesiastical jurisdiction which flows from the supremacy is merely co-extensive with the temporal jurisdiction : the Crown has no higher -power in causes ecclesiastical than in temporal matters. The legal supremacy of. the Queen is defined in the thirty- seventh Article of the Church of England, as follows : — ' The Queen's Majesty hath the chief power in this realm of England, and other her dominions, unto whom the chief government 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. ' Where we attribute to the Queen's Majesty the chief government — by which titles we understand the minds of some slanderous folks to be ofiended — we give not to our Princes the ministering 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 ^11 godly princes in Holy Scriptures by God Himself; that is, that they should rule all states and degrees committed to their charge by God, whether they be ecclesiastical or X Introduction. temporal, and restrain with the civil sword the stubborn and evil-doers. The Bishop of Rome hath no jurisdiction in this realm of England.' The Canons of 1603, passed by Convocation and sanc- tioned by the King, are equally explicit. By these Canons, which bind the Clergy so far as they are not contrary to the statute and common law of England, it is decreed as follows : — ' That all ecclesiastical persons having cure of souls shall, to the uttermost of their wit, teach and declare that all usurped and foreign power is for most just cause taken away and abolished, and that, therefore, no manner of obedience, or subjection, is due to any such foreign power ; but that the Queen's power within her realms of England, Scotland, and Ireland, and all other her dominions, is the highest power under Grod, to whom all men do by God's laws owe most loyalty and obedience before and above all other powers and potentates in the earth.' (fiomon 1, abridged.) 'That whoever shall affirm that the Queen's Majesty hath not the same authority in causes ecclesiastical that the godly Kings had among the Jews, and Christian Em- perors of the Primitive Church, or impeach any part of her regal supremacy in the said causes restored to the Crown, and by the law of this realm therein established, let him be excommunicated vpso faoto.' {Canon 2.) ' No person shall be received into the ministry nor ad- mitted to any ecclesiastical function, except he shall first subscribe to this article following : — That the Queen's Majesty, under God, is the only supreme Governor of this realm, and that no foreign prince, person, prelate, state, or potentate hath, or ought to have, any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within her Majesty's said realms and dominions.' {Canon 26.) Introduction. xi The legal supremacy of the Queen is also part of the oommon law. Lord Chief Justice Hale says : ' The supre- macy of the Crown of England in matters ecclesiastical is a most indubitable right of the Crown, as appeareth by re- cords of unquestionable truth and authority.' (1 H. H., 75.) Lord Chief Justice Coke says : ' Bj the ancient laws of this realm this kingdom of England is an absolute empire and monarchy, consisting of one head, which is the King, and of a body, consisting of several members, which the law divid^th into two parts — the clergy and the laity — both of them next and immediately under God subject and obe- dient to the head ; also the kingly head of this body politic is instituted and furnished with plenary and entire power to render justice to every member of the body politic in all causes, ecclesiastical and temporal.' (Coke's ' Reports,' Part 5, Cawdrey's case.) The supremacy of the Crown is also secured by the statute law of the realm. By Act of Parliament, 1 Eliz., c. 1., it is enacted, ' That no foreign prince, prelate, state, or potentate, spiritual or temporal, shall use, enjoy, or exercise any manner of power, jurisdiction, superiority, authority, pre-eminence, or privilege, spiritual or ecclesias- tical, within this realm, or any other her Majesty's domi- nions or countries, but the same shall be abolished thereout .for ever; and such jurisdictions, privileges, superiorities, and pre-eminences, spiritual and ecclesiastical, as by any spiri- tual or ecclesiastical power or authority have heretofore been or may lawfiilly be exercised for the visitation of the eccle- siastical state or persons, and for reformation, order, and cor- rection of the same, and of all manner of heresies, schisms, abuses, contempts, and enormities shall for ever be united and anipiexed to the imperial Crown of this realm.' Commenting on this statute. Sir Edward Coke says that it was not a statute introductory of a new law, but declara- xii Introduction. tory of the old, which appeareth by the title— ' An Act restoring to the Ctowh the ancient jurisdiction over the State, ecclesiastical or spiritual.' For the Act doth not annex any jurisdiction to the Crown but that which in truth was, or of right ought to be, by the ancient laws of the realm, parcel of the King's jurisdiction, and united to his imperial crown, and which lawfully had been, or might be, exercised within the realm. It is evident, then, as all jurisdiction is resident in the Crown, that the exercise of authority in any Court, spiritual or temporal, is in virtue of a delegated power, and not of inherent right. The Crown, which has conferred the juris- diction, may also take it away. It may alter the forms under which that delegated jurisdiction is administered ; and if it were voluntarily to surrender any part of its ancient prerogative, it would not thereby surrender its right to resume it again if it should so deterroine. Before alluding to the statutes which confer jurisdiction on the Judicial Committee of the Privy Council, it may not be uninteresting to review historically the question of the royal supremacy in matters ecclesiastical, in order to see how far any claim to jurisdiction, independent of the Crown, is supported by the ancient laws and customs of the realm. In the earlier English history we find, as soon as the nation is united under a single rule, a complete identifica- tion of the Church and the State. • During the period which preceded this union, ecclesiastical synods appear to have been convened by the sole authority of the Primate, and their decrees to have rested for validity and force on the inherent jurisdiction of the Church ; but, even in these synods, we find the Sovereign of the various provinces Introduction. xiii sitting side by side with, the Archbishop, and confirming the acts of his councils. Under the more settled govern- ment, however, of the United Kingdom the civil and eccle- siastical assemblies became actually one, and dealt alike with spiritual and temporal affairs, without the least idea that either power obtruded on the proper province of the other. The Bishop sat in the same Court with the Eal- dorman. The King, as bead of the race, crowned the national fabric. In conjunction with the Witan (or Great Council) he had the power of appointing and deposiug Bishops. He was also, with a similar qualification, supreme judge of aU causes and persons, and the enforcement of ecclesiastical decrees belonged to the same high prero- gative. It should also be observed, as incident to this early period, that under a strong king many of the claims of the Witan to a share in the government of the realm were practically lost: if the King, for instance, were a pious one, the Bishops were chosen by him with reference to the consent of the diocesan Clergy ; but if he were a peremptory one, they were appointed by his determined will. But it would appear that in judicial matters the King did not act without a Court, which was in name, as weU as reality, a portion of the Witenagemot, It is quite unnecessary more than to refer to the striking similarity between the inter-relation of Church and State as they now exist, and the system of Church government and ad- ministration just indicated ; and though, with respect to the latter, it would be rash to affirm that the system ever existed in integrity for the four centuries which preceded the Conquest, yet that every portion of it existed at some period during those centuries, and, when it ceased to exist, was superseded by some other arrangement of the same kind, is capable of proof. The general machinery was per- manent, and little ' 9,ffected by Frank, Roman, or Celtic xiv Introduction. laws or politics,* The Tmion of Cliurch. and State dated, in fact, from the very first appearance of the Church in the English realms, and became so blended with the Constitu- tion itself as to have been compared to the mysterious and inseparable connection between 'the soul and body of an individual man.f The era of the Conquest was remarkable for the separa- tion of the temporal and ecclesia,stical jurisdictions, and the beginning of those especially ecclesiastical tribunals, which, with lessened forces, have survived to our own day. The union of ecclesiastical and temporal affairs, which did pre- vail, was altogether opposed to the theories of ecclesiastical propriety which were held both by the Conqueror and his Primate, Laufranc. The laws which were hitherto in force in England were declared by King William and his Witan to be bad and contrary to the Sacred Canons. The ordi- nance by which the spiritual and temporal Courts were separated runs thus : — ' Sciatis vos omnes, et csteri, mei fideles, qui in Anglia manent, quod episcopales leges quae non bene, nee secundum sanctorum canonum prseoepta usque ad mea tempora in regno Anglorum faerunt com- muni concilio, et consilio Archiepiscoporum meorum, et cete- rorum Episcoporum et Abbatum, et omnium principum regni mei emendandas judicavi.'f The writ goes on to forbid the Bishops to bring any cause which involved questions of Canon Law, or questions concerning the cure of souls, before the ancient Courts of the Shire and the Hun- dred. They were to hold Courts of their own, in which alone matters of ecclesiastical concern were to be judged and in which every man was bound to appear when sum- ♦ Vide Freeman's Norman Conquest, vol. i. p. 405. Stubbs' Documents Illtistrative of English History, pp. 11, 12. t Hook, lAves of Archbishops, vol. iii., Introduction. { Selden's Eadmer, p. 167 ; Stubbs' Documents, etc., p. 81, Introduction. XV moned, no less than in the Court of the civil magistrate. But, notwithstanding this separation of the subordinate lay and ecclesiastical jurisdictions, and the rise of separate customs and separate books of law, the Great Council of the realm, consisting of Bishops, A:bbots, and nobles, main- tained its ground ; and it is to be noted that, as the juris- diction now assumed by the Bishops' Court was entrusted to them by an Act of the King and Council, it is natural to assume that without authority from that source, as re- presenting the national will, no such Bishops' Court could legally have been established. Nor have we any reason to believe that this great constitutional innovation was the result of any pressure from without, or any demand on the part of the Bishops and Clergy. It was in its pureness a legislative act passed in the interests of convenience and propriety, similar in its nature to the severance, at a later time, of the Courts of Equity and Common Law, or to the threefold division of the Courts under Edward I., but not involving any question of principle ; for the severance was efiected by, and the new Courts derived their jurisdiction from, the same royal authority, with the advice of the Great Council. Undoubtedly the position of the Conqueror was one of great and unbounded authority. He was supreme governor of the Church throughout his dominions. In all cases and over all persons was that supremacy asserted. The eccle- siastical state was in complete subordination to his will. On that will, we are told by the chronicler Eadmer, all things. Divine and human, were made to depend." He would have no Pope acknowledged within his dominions without his consent, and no Papal letters or bulls were allowed to have any force or currency in the realm, unless they were first seen and approved by himself. When the Archbishop summoned a national council, its decrees had no force until they were confirmed by the King ; it might even seem that xvi Introduction. no matters were to be debated without the royal licence. Nor would William allow any ecclesiastical censure on his ■ barons or officers of State for any scandalous crime without a Royal Warrant. ' This last,' says Collier (History, vol. ii., p. 3), always prone to exaggerate Church authority, ' was a wresting of the keys out of the hands of those our Saviour entrusted them into — seizing the apostolical character, and dissolving the Church into the Stfite. It placed the Chris- tian religion at the mercy of the civil magistrate.' But under William all things indicated a strong line of separa- tion between the ecclesiastical and temporal power. The Archbishop now held his Synod as a body distinct from , the great Gemot of the realm. It almost necessarily fol- lowed that the King should assert a distinct authority over ecclesiastical matters, in a shape which gave him the aspect of an external, ajid even a hostile, power. In this Sense it was a novelty for the Bang to control the action of a distinct ecclesiastical body, or distinctly to signify his personal will in ecclesiastical matters. The alleged changes of William were angrily debated from the days of his son onward, but all of them became part and parcel of the law of England. The supremacy established by William was essentially the same as was contended for by Henry II., and finally' esta- blished by Henry VIII.* The next great era to which allusion may be made is the reign of Henry II, Under this sovereign the rule of law was initiated. The King rest-ored the machinery of the Exchequer and ' Curia Regis,' which had been instituted by Jlenry I.,f extended their powers, and brought them inta * Freeman's Norman Conquest, vol. iv. pp. 437-9. t The Justiciar was an officer appointed by the Norman Kings to assist in the business entailed on the King, and at times to take his ;Elace, He V&n Lieutenant-General of the kingdom, and represented" Introduction. xvii close connection witli the provincial organisations of the shires, the. hundreds, and the local franchises. Having met with opposition to the carrying out of this policy from the barons, and from the clergy, the former -were called upon to agree to the restriction of their hereditary jurisdic- tions to the smallest compass, and the latter to allow them- selves to be, in all matters not purely spiritual, subject to the ordinary process of the law. Hence arose the two great struggles of the reign, which must be regarded together; the Constitutions of Clarendon were but part of a scheme which was to reduce all men to equality before the laF- Before, however, referring briefly to those famous or(ii- nances, it may be useful to trace to its source in the Curia Regis the political functions now exercised by the Privy- Council, the House of Lords, the Chancellor, and the Courts of Common Law ; and for this purpose we must beax in the King ip alLmatters — regent of the kingdom in his ahsence— and, whether the King was absent or present, the supreme administrator of law and finance. Under him the King's clerks, or chaplains, were formeji into a body of secretaries, the chief of whom bore the title of Chan- cellor. The Conqueror himself executed in person, a great part of the the business of the State ; it is under William Eufus that the Justiciar becomes the Prime Minister. The organisation of the Justiciar's ad», ministration dates from the reign of Henry I. His staff was selected from the barons or vassals of the Crown, who were more nearly con- nected with the royal household, or qualified by their knowledge of the law for the position of judges. These were formed into a Suprema- Court attendant upon the King— the CuriaEegis— which, when employed in finance, sat in the Chamber, and was known by the name of the Exi chequer. This staff of ofiScers, which may be regarded as a Judicial Committee representing the whole Court of vassals, was the germ of the whole administrative machinery of the Constitution. By it all appeals were decided, and to it all suits might be called up on application of the suitors. As a royal council it shared in the revision and regis- tration of the laws and charters, which it attests. But in matters of taxation and legislation it had no direct influence : these powers belonged to the King and the Witan— the King and the National Assembly, now composed of his vassals. — BiuMbs' Select Charteri, p. 16. xviii Introduction. mind what has been already said {note, p. xii) of the constitution of the Curia Regis — or royal Court. Henry, in 1178, restricted the number of those who exercised their functions in the Curia to five, and reserved for his own hearing in full council the causes in which this Court, which nntil now had been a final Court of Appeal, fisiiled to do justice. This limited tribunal is the lineal predecessor of the existiug Courts of Queen's Bench and Common Pleas ; the Upper Court of Appeal, the King in his ordinary Council, is the body from which, at later dates, the judicial functions of the Privy Council, and the equitable jurisdic^ tion of the Chancellor, are derived. It is this Council which, when united with the general body of the Baronage in its triennial assemblies, constitutes the Magnum Con- cilium, of the next centuries : and it is from the confusion of powers which resulted from this constant union of the Royal Council with the Court of the Barons, that the House of Lords, the descendant of the latter, borrowed its character as a Court of Appeal, while the Privy Council, as descend- ant of the former, borrowed a legislative character — carried put in its ordinances — which had at first belonged only to the King in his great Council of the Baronage. The original Tribunal, the King's ordinary Council, retained throughout its undiminished powers, changing at various times, and throwing ofi'-new ofishoots — such as the Court of the Star Chamber — until it has reached our own time in the form of the Judicial Committee of the Privy Council. It was in the events which followed the iron ruleof WQliam of Normandy — ^in the gradual deterioration of the liberties to which he was pledged, as the reins of power fell into the hands of smaller men — in the advancing claims to inde- pendence on the part of distinct ecclesiastical bodies — in .the rise, as the influence of the Italian lawyers increased, of Introduction. xix the misckievous system of Appeals to Rome, wliicli, though they became common in after periods, had nevev any sanction in the laws of England — in the exaggerated influence of the Canon law, which only a royal prohibition prevented from being openly taught at the University of Oxford, in the reign of Stephen, by the Lombard teacher Vacarius — in the anarchy of the twenty years after the death of Henry I., ■when all central administration, except the ecclesiastical, collapsed — it was these circumstances that rendered neces* sary the restrictive action of the Constitutions of Claren- don, which determine and illustrate the next great epoch of our ecclesiastical history. These famous ordinances owe their title to Clarendon, a royal palace near Salisbury. It was to this palace that Henry II., desiring to settle the points in dispute, and to re-affirm the old constitation in Church anj State, summoned his Great Council. It was at- tended by the two archbishops, eleven bishops, between thirty and forty of the highest nobles, with numbers of in- ferior barons, who subscribed the customs, which had been collectedtjnd put in writing by the King's order. These Con^ stitutions aimed at the subjection of the great prelates to the Crown to the same extent as the great barons, and brought the whole of the clergy, equally with the laity, within the common law of the land. By them it was enacted that all clerks accused of any'crime were to be summoned before the King's Court. The King's justiciaries were to decide whether it was a case for civil or ecclesiastical jurisdiction, and those which belonged to the latter were to be removed ■to the Bishop's Court.* Appeals lay from the Archdeacon to » The exact form in which this ordinance -was signed by the Council is thus given : ' Cleriei vectati et aceusati de quacumque re summoniti a justicia • regis venieut in curiam ipsius, responsuri ibidem de hoc unde -videbitur curiae regis quod ibidem sit respondendum ; et in curia ecclesiastica unde a2 XX ! Introduction. the BisHop, from the Bishop to the Archbishop ; and on failure of justice by the Archbishop, in the last resort to'theKingr, who by order was to take care that justice was done in the Archbishop's Court, and no further appeal was to be made without the King's consent.* In thus establish- ing the relations of Church aud Sbate, and re-assert- ing the supremacy of the Crown, Henry but re-aflS.rmed that the old law of England, which claimed for Edward the Confessor the title of the Yicar of the Highest King, a law which was afterwards perpetuated in the statutes of Henry VIII. and Elizabeth. There is no reasdn to believe that in carrying out these reforms the King was actuated by any motives of hostility to the clergy, or even by a desire to increase the royal power ; the abuses against which they were aimed were glaring, and the principles by which they were to be carried out have been stamped from time to time with the approval of the whole people. These famons Constitutions, his signature ■ to which sat so heavy on the heart of Beoket, the King, on his reconciliation with the Church, promised to repeal ; but no Act appears whereby that repeal w'as ever effected.f The Constitutions of Clarendon produced effect, and in the rgign of Henry III. more unrestricted and successful . efforts began to be made to maintain the independence of Videbitur quod ibidem sit respondendum ; ita quod justitia regis mittet in curiam sanctse ecclesise ad videndum qua rati one res ibi tractabitur. Et si clericus " conTictus vel confessus fuerit, non debet de cetero eunl ecelesia tueri." '— Stubbs' Select Charters, p. 132. * The text is as follows : — ' De appellationibus, si emerserint, ab arch- idiaoono debent prooedere dd episcopum, ab episoopo ad archiepiscopum, Et si archiepiscopus defecerit in justitia exhibenda ad dominum regem perveniendum est postremo, ut prsecepto ipsius in curia archiepiscopi oontroversia terminetur, ita quod non debet ulterius procedere absque assensu domini regis.' — Stubbs' Select Chartirs, p. 133. t Collier, w;thout any authority, says they were repealed in a Parlia- TOfiat of Richard I. Introduction. xxi temporal government. The judges of the King's Court had, until that time, been principally ecclesiastics, and con- sequently tender of spiritual privileges. But now, abstain- ing from the exercise of temporal jurisdiction, the clergy gave place to common lawyers, professors of a system very discordant from their own. These soon began to assert the supremacy of their jurisdiction by issuing writs of prohibi- tion, whenever ecclesiastical tribunals passed the limits which approved use had established. Little accustomed to such control, the hierarchy chafed under the bit ; provincial synods protested against the pretensions of laymen to judge the anointed Ministers whom they were bound to obey: in de- fiance of the Constitutions, the cognisance of rights of conr tract and of patronage was boldly asserted by the Church) but, firm and cautious, favoured by the nobility, the judges receded not a step, and ultimately fixed a barrier which the Church was forced to respect. In the reign of Edward I. an Archbishop acknowledged the abstract right of the King's Bench to issue prohibitions ; and the statute entitled ' Cir- cumspccte Agatis,' in the thirteenth year of that prince, while by its mode of expression it seems designed to guar- antee the actual privileges of spiritual jurisdiction, had a tendency, especially with the disposition of the judges, to pre- clude the assertion of some which are not therein mentioned. Neither the right of advowson, nor any temporal contract, is specified in this Act as pertaining to the Church, and accordingly the temporal Courts have ever since maintained an undisputed jurisdiction over them.* There was also a slow, persevering determination to bring clerks accused of civil ofiences under the judgment of the King's Court, thus infringing the claim of the Church to sole cognisance over the clei'gy. It was enacted by the Statute of "Westminster, * Hallam, Mid. Ages, c. Tii. part ii. . xxii Introduction. in 1275, or rather a construction was put on tbat Acf, which is rather obscurely worded, that clerks indicted for felony might he arraigned in the King's Conrt, and not de- livered to their Ordinary, until an inquest had been taken of the matter of accusation, or that the whole estate of the felon clerk, real and personal, might be seized. The Ordi- nary thus became either the mere executioner of a sentence passed by the Civil Court, or became obnoxious to the charge of protecting, or unjustly acquitting, a convicted felon. Where the property was thus boldly escheated, the reve- rence for the person of ' the anointed of the Lord ' — a doc- trine enshrined in the decretals as an eternal, irreparable axiom — ^rapidly lost its hold over the popular imagination.* The next great epoch in the ecclesiastical history of England is found in the reign of the third Edward. Par many years, from the enactment of the Constitutions of Clarendon, the English people carried on a struggle, with varying fortune, against the encroachments of the spiritual power. The struggle assumed two distinct forms, which may be easily distinguished as the struggle between the jurisdiction of the ecclesiastical and lay tribunals, and the struggle between the King's supremacy and the rising as- sumptions of the See of Rome. In the one case the restraint of the ecclesiastical power belonged to the King's Courts ; in the other to the King in Council, or to the King and his Parliament. On the one hand the ancient laws of the realm interpreted by the Judges kept the ecclesiastical Courts from transgressing their constitutional limits, while on the other the free Parliament of- England, acting as a contemporaneous exposition of public opinion, successfully asserted the liberties of the kingdom against the tyranny * Milman, Lat. Christ., book xi. c. yii. Introduction. xxiii of a fopeign prelate. This great struggle, growing in inten- sity with the growth of Roman power on the Oontine^nt, was stamped from time to time by the reigning sovereign! with his own essential strength or weakness. But where the monarch was feeble there was a strength in the House of Commons which came in aid of the wavering policy of the Court, and a love of liberty in the liation itself; so that no King of England, however fearlessly he bore himself- in the assertion of his royal supremacy over his own dominions, ever failed to win and carry with him the support of his own people. The dispute between the Crown and the See of Rome principally turned on the right of presentation to English benefices.* ' For the hundred and fifty years which suc- ceeded the Conquest the right of nominating the archbishops, the bishops, and the mitred abbots Jiad been claimed and exercised by the Crown. On the passing of the Great Charter the Church had recovered its liberties, and the privilege of free election had been conceded by a special clause to the clergy. The practice which then was esta- blished was in accordance with the general spirit of the English Constitution. On the vacancy of a see, the cathe- dral chapter applied to the Crown for a eonge d'elire. The application was ' a form ; the consent was invariable. A Bishop was then elected by a majority of suffrages ■ hi.s name was submitted to the Metropolitan, and by him to the Pope. If the Pope signified his approval, the election- was complete; consecration followed, and the Bishop, having been furnished with his bulls of investiture, was presented; to the King, and from him received the temporalities of his see. The mode in which the great Abbots were chosen was * For the relation of the history of this period I am chiefly indebted to Mr. Fronde (Hist., vol. ii. pp. 2-121, who has traced it with his usual clearness and precision. xxiv Introduction. precisely similar, the superiors of the different orders being the channels of communication with the Pope in the place of the Archbishops. The smaller Church benefices, the small monasteries, were in the hands of private patrons, lay and efcclesiastical ; but in the case of each institution a re- ference was admitted, or was supposed to be admitted, to the Court of Rome.' ' There was thus in the Pope's hand an authority of an indefinite kind, which it was presumed his sacred office would forbid him to abuse, but which he might abuse at his discretion. He had absolute power over every nomina- tion to an Euglisb benefice ; he might refuse his consent till adequate reasons, material or spiritual, had been sub- mitted to his consideration. In the case of nominations to the religious houses, the superiors of the various orders re- siding abroad had equal facilities for obstructiveness, which they did not fail to turn to good and profitable account.' To provide against the abuses of superiors residing abroad, and laying taxes on the English houses, and against the pernicious system of first fruits, the 35 Edw. I. (Statutes of Carlisle, 1306-7) enacted that no religious persons should, under any pretence, send out of the kingdom any kind of rent, tax, or tallage ; and that ' priors aliens ' should' not presume to assess any payment, charge, or burden whatever upon houses within the realm. ' The language of this Act was guarded. The specific methods by which the extortion was practised were not explained, the tax on benefices not yet having distinguished itself beyond other impositions, or the Government trust- ing that a measure of a general kind would answer the desired end. The disease, however, was too severe to yield to gentle entreaties or mild measures. Fifty years after- wards it .became necessary to re-enact the same statute and to point out more specifically the intention with which it was passed.' Jntroductioii. XXV ' The Popes, in the interval, had absorbed in their tnrn from the heads of the religious orders the privileges which hy them had been extorted from the religious societies. Each English benefice had become the fountain of a rivulet which flowed into tlie Roman Exchequer, or a property to be distributed as the private patronage of the Roman Bishop.' ' The Pope,' says the Statute of Provisors (25 Edw. III. s. 4), ' accroaching to himself the seignories of benefices within the realm of England, doth grant the same to aliens which did never dwell in England, and to cardinals which might not dwell here, as if he had been patron of the said benefices, as he was not of right by the law of England, whereby many inconveniences have ensued. Not regarding the statute of Edward I., he had also continued to present to bishoprics, abbeys, priories, and other valuable prefer-, ments, and it was necessary to insist emphatically that the Papal nominations should cease. They were made in vio- lation of the law, and were conducted with simony so flagrant that English benefices were sold in the Papal Courts to any person who would pay for them, whether an Englishman or a stranger. It was therefqi-e decreed that the elections to bishoprics should be free as in time past, that, the rights of patrons should be preserved, and penalties of imprisonment, forfeiture, or outlawry should be attached to all impetration of benefices from Rome by purchase or otherwise.' The mischievous system of appeals to Rome being still kept up, and questions depending on the Statute of Pro- visors being taken before the tribunals of that Court, the first Statute of Premunire (27 Edw. III. c. 1, 1353) was The preamble of that Act sets forth that grievous complaints were made that divers of the people were drawn out of the realm to answer of things whereof the cognisance pertains xxvi Introduction. +0 the King's Court, and also that the judgments given' in' the same Court ■were impeached in another Court in pre- judice . and disherison of the King and to the undoing of the eoTnmon law. It was therefore enacted by the enacting part of the Statute that all people of the King's ligeaBoe which shall draw any out of the realm in pleaL whereof the cognisance pertains to the King's Court, or of things whereof judgments are given in the King's Court, or which did sue in any other Court to de- feat the judgments' of the King's Court, should be put out of the King's protection and their lands and goods forfeit to the King, and their bodies, wheresoever they should be found, should be taken, imprisoned, and ransomed at the King's will. ' These Acts, stringent though they were, were insufficient to meet and overthrow the danger. The influence of the Popes was not so easily defeated. The law was still de- fied and evaded, and the struggle continued till the close of the century, the Legislature labouring patiently but in- efiFectually to confine with fresh enactments their ingenious adversary.' * 'At length symptoms appeared, of an intention on the part of the Popes to maintain their claims with spiritual cen- sures. Whereupon the Lords (the Bishops and Abbots protesting) with the Commons passed a fresh statute more emphatically stringent, re-affirming the 25 Edw. IIL, and enacting ' that if any man brought into this realm any sen- tence, summons, or excommunication, contrary to the effect of this statute, he should incur pain of life and members, with forfeiture of goods ; and if any prelate made execution of such sentence, his temporalities should be taken from, him, and abide in theKing's bands until redress was made^' t * 38 Edw. III. Stat 2 ; 3 Eich. U. cap. 3 ; 12 Eich. 11. c. 15. t 13 Eioh. II. c. 2. Introduction. xxvii The struggle now assumed a serious aspect. The Great Council of the realm forwarded an address to Rome pray- ing for some arrangement. Boniface IX., disbelieving the danger, asserted his usurped right, and boldly granted a prebendal stall in Wells to an Italian Cardinal to which a presentation had already been made by the King. A decision was given in England in favour of the nominee of the King, and the Bishops agreeing to support the Crown were excommunicated. Parliament happened to be sitting at the time. It took the matter up warmly. The House of Commons drew up, in the form of a petition to the King, a declaration of the circumstances which had occurred- After having stated generally the English law oa the pre- sentation to benefices, ' Now of late,' ttiey added, ' divers processes be made by the Pope, and censures of excommu- nication upon certain Bishops, because they have made execution of the judgments (given in the King's Courts), to the open disherison of the Crown ; whereby, if remedy be not provided, the Crown of England, which hath been so free at all times that it has been in subjection to no realm, but immediately subject to God, and no other, and that the same ought not in anything touching the regality be submitted to the Bishop of Rome, nor the laws of this realm by him frustrated and defeated at his will to the perpetual destruction of the King and his sovereignty. The Commons, therefore, on their part, affirmed that the things so attempted by the Bishop of Rome were clearly against the King's Crown, and that they would stand with the King in all cases attempted against his Crown in all points, to live or to die.' After this emphatic assertion of their own opinion they prayed the King to examine all the Lords, as well spiritual as temporal, how they thought of the cases which were so openly against the King's Crown. The ■ enquiry was made and the answer was satisfactory. xxviii Introduction. The Lords Temporal did answer that the cases were clearly in derogation of the Bing's Crown, and that they would stand with the same Crown ' with all their power.' The Lords Spiritual gave a more cautious but no less manly reply. They would not deny noif affirni that the Bishop of Rome might uot excommunicate or translate Bishops, yet that if any translations were made of any prelates, which prelates were profitable or necessary to the King, or that his sage men without his consent were wilhdrawn out of his realm, they unhesitatingly declared that the same was against the King and his Crown, and that they would and ought to stand with the King in maintaining his Crown, as l^ey were bound by their allegiance ; wherefore tl:e King, by the assent aforesaid and at the prayer of the Commons, did order that whoever drew out of the country a plea which belonged to the King's Court should be outlawed ; or, to quote the words of the statute of Richard II., ' That if any purchase, pursue, or cause to be purchased or pur- sued in the Court of Rome or elsewhere, any such transla- tions, processes, or sentences of excommunication, bulls, instruments, or any other thing whatsoever, which touch the King, against him; his crown, his regalty, or his realm, as is aforesaid ; and they which bring within the realm, and them receive ; that they, their notaries, procurators, , maintainers, abettors, fautors, and counsellors shall be put out of the King's protection, and their lands and tenementsj goods and chattels forfeit to the King ; and that they be attached by their bodies-, or that process be made again-st them by "premunire facias" in manner as ordained in other Statutes of Provisors, and other which do sue in any other Court in derogation of the royalty of our Lord the King.' (16 Rich. II., 1892-3.) Sir Edward Coke observes on this statute that it is more strict and comprehensive than 27 Edward III. c. 1, and Introduction. :Sxix tiat by its provisions all applications to a foreign jurisdic- tion, either in the Court of Rome or ' elsewhere,' to the pre- judice of the King's crown and regalty, falls within the penalty of the statute. In interpreting the word ' else- where,' ho stretches it so as to include the Ecclesiastical Courts of the realm, and he adduces several precedents to support this construction. There is, indeed, no doubt that Bubsequently to this statute ecclesiastical jurisdiction was kept in better control than formerly by the judges of^ the Common Law, who extended the penalties of premunire to the spiritual Courts when they transgressed their limits. (3 Inst., p. 121.) It was to no purpose that the Bishops comi- plained of the strained construction of the word 'elsewhere,' which they alleged was put into the Bill because the Pope was sometimes absent from Rome, and demanded to be checked by prohibition if they exceeded the bounds of their jurisdiction, and not be held liable to the same penalties as the Pope's provisors. To their complaints that they were forced to abide by the opinions of the lay judges, who seemed inclinable to act by such measures as would per;- feotly ruin the ecclesiastical jurisdiction, and make it de- spicable and insignificant — to their address, praying that the word ' elsewhere,' which gave occasion to the miscon- struction, should be explained by authority of Parliament, no answer was returned. The resolute attitude of the country, the unyielding tone assumed by the Parliament, and the independent action of the lay tribunals in interpreting the laws of England, acquired strength daily, notwithstanding the fulminationa of the Roman Pontiff. Long before the Reformation the excommunications of the Pope were of no legal validity within the realm. In the reign of Edward III. it was held by the judges that an excommunication of an Archbishop, albeit it be disannulled by the 'Pope, is to be allowed- XXX Introduction. neither ought the judges to give any allowance of any such sentence of the Pope or his legate. — Further, it was held that the King may not only exempt any ecclesiastical person from the jurisdiction of the Ordinary, hut may grant unto him episcopal jurisdiction. As tihus it appeareth the King hath done of ancient time to the Archdeacon of Richmond. — Further, in an attachment upon a prohibition, the defend- ant pleaded the Pope's Bull of excommunication of the Plaintiff. The Judges demanded of the Defendant if he had not the certificate of some Bishop within the realm, testifying the excommunication, to which answer was made that such was not necessary, for the Pope's bulls were notorious enough ; but it was adjudged that they were not sufficient, for that the Court ought not to have regard to any excommunication put of the realm, and therefore by the rule of the Court the Plaintiff was not thereby disabled. — r In the reign of Richard II. in an action against an incum- bent of a church in England, another sued a provision in the Court of Rome, and there pursued until he recovered the church against the Incumbent, and after brought an action of account against him, as receiver of oblations and offerings. The whole Court was of opinion against the Plaintiff, and non-suited him. — In the reign of Henry IV. it was held by the Judges that excommunication made by the Pope is of no force in England, and the same being certified by the Pope unto any Court in England, 'ought not to be allowed ; neither is any certificate of any excommunication available in law, but that which is made by some Bishop in - England, for the Bishops are, by the Common Law, the im- mediate officers and ministers of justice. — In the reigns of Edward IV. and Richard III. it was held and confirmed that the Pope's excommunication is of no force within the .realm of England, nor does it prejudice any man in Eng- land at the Common Law. And many other cases to the same effect. Introduction. xxxi Siich. is a slight historical review of the doctrine of the Royal Supremacy in pre-B.eformation times, illus- trated hy the statutes of the realm, and by the admini- stration of justice in the King's Court. A careful con- sideration of what has been noted will, it is believed, go far to overthrow the idea that the Royal Supre- macy in ecclesiastical matters was first asserted and esta^ blished by Henry VIII., or that its exercise was commended to the English people by any personal exigencies of that monarch. The principles which nourished and sustained the Royal Supremacy were firmly planted in the roots of the English Constitution, which, itself slowly built up, was but a reflex of the character and genius of the people. From, the earliest times a determined stand was made against the usurpations of Rome, and the encroachments of the spiritual power. Though the Pope was permitted to do certain things within the realm, it was by usurpation, and not as of right. His claims to govern in ecclesiastical matters had no sanction in the laws or customs of Engt and. The ecclesiastical power, in its extravagant assump- tions, had placed inself in hostility to the spirit of .national and individual liberty, and it went down in the struggle for ascendancy. In the Kings of England, as representing the nation, in the Parliament, in the halls of justice, the feelings of opposition to a foreign yoke found adequate expression. The King stood with his people, and the people, peers and commoners, stood with their King, and defied the whole strength of the Papal power. The spirit of liberty gather? ing strength as the ages went by, was stifled by no terrors of this world, nor the more awful denunciations of the ■world to come. The la^s of Edward the Confessor, the Norman Constitution of the Conqueror, the Constitutions of Clarendon, the great Statutes of Provisors and Premunire, spoke in unmistakeable terms of the strong determination of the English people that they would tolerate no foreign xxxii Introduction. or ecclesiastical tyranny ; so that, to use the words of Dean Milman, England had long ceased in the reign of Henry VI. to be the richest and most obedient tributary of Rome. Peers and Commons had' united in the same jealousy of the exorbitant power aid influence of the Pope, whose re- monstrances against the laws of England had broken and scattered like foam upon the rocks of English pride and English justice. Reviewing the historical position of the question of the Papal Supremacy as it existed before the passing of Henry VIII.'s famous Act of Appeal, Mr. Froude says : ' The authority of the Church over the State, the supreme kingship of Christ, and consequently of him who was held to be Christ's vicar above all worldly sovereignties, was an established reality of mediaeval Europe. The princes had with difficulty preserved their jurisdiction in matters purely secular ; while in matters spiritual, and in that vast section of human affaii-s in which the spiritual and the secular glide into one another, they had been compelled — all such of them as lay within the pale of the Roman Communion — to acknowledge a power superior to their own. To the Popes was the ultimate appeal in all causes of which the spiritual Courts had cognisance. Their jurisdiction had been ex- tended by an unwavering pursuit of a single policy, and their constancy in the twelfth century was rewarded by absolute victory. In England, however, the field was no sooner won than it was again disputed, and the civil go* vemment gave way at last only when the danger seemed to have ceased. While the Pope was dangerous he was dreaded and opposed; when age had withered his arm the English Kings consented to withdraw their watchful- ness, and his supremacy was silently allowed as an innocent superstition. It existed as some other institutions exist at Introduction. xxxiii the present day, with, a merely nominal authority ; -with a tacit understanding that the power which it was permitted to retain should be exerted only in conformity with the pational will.' (Hist. vol. i. p. 428, '2nd edit.) The final rupture was precipitated by the Pope's denial of "justice to Henry VIII. in the matter of the King's divorce, bub the causes which controlled the movement were more imperious than the will or convenience of a king. Sooner or later the separation must have occurred, for the questions involved in the struggle touched not the King only, but the rights and liberties of the whole people. How deep the feeling was against the Papal assumptions is witnessed by the memorable language of the Act of Ap- peal (24 Hen. VIII. c. 12). The preamble of that Act, which was an Act declaratory of the law which the Parliament was vindicating against illegal encroachment, says : * Whereas by divers sundry old authentic 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 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 iu terms by names of spiritualty and temporalty, be bound and ought to bear, next to God, a natural and humble obedience ; he being aJso institute and furnished by the goodness and sufferance of Almighty God with plenary, whole, and entire power, pre-eminence and authority, prerogative and jurisdiction, to render and yield justice and final determination to all manner of folk resident or subject within this his realm, without restraint or provocation to any foreign prince or potentate of the world.' The preamble then aflBrms that of this body politic the spiritualty is self-sujfieient in causes b xxxiv Introduction. spiritual, and the temporalty in causes temporal, and then contiQues, ' And whereas the King's most noble progenitors, and the nobility and commons of this said realm, at divers and sundry Parliaments, as •well in the time of King Ed-ward 1., Edward III., Eiohard II., Henry IV., and other noble Kings o£ this realm, made sundry ordinances for the conservation of the prerogatives, liberties, and pre-emi- nences of the imperial crown of this realm, and of the juris- diction spiritual and temporal of the same, to keep it from, the annoyance as well of the See of Rome as from the autho- rity of other foreign potentates attempting the diminution or violation thereof, and notwithstanding the said good statutes, divers inconveniences not provided for plainly by the said statutes have risen and sprung by reason of appeals fened out of this realm to the See of Home in causes testa- mentary, causes of matrimony and divorce, rights of tithes, oblations, and obventions,' occasioning great inquietation, trouble, delay, and expense to the King's subjects, it was enacted that all such suits should be adjudged by the spiritual and temporal Courts within the realm, without re- gard to any process of foreign jurisdiction, or any inhibi- tion, excommunication, or interdict. It is further ordained that persons procuring prohibitions, appeals, etc., from the Court of Home, as well as their fautors, counsellors, etc., all and every of them shall incur the penalties of premunire. Appeals ia the causes already specified were to be made wholly within the realm ; namely, from the Archdeacon to the Bishops' Court, from the Bishops' Court to , that of the Archbishop, and no further. It was further enacted that appeals in any of the aforesaid causes which touched the King should be made to the Upper House of Convocation, It is important to boar in mind that this Act has no refer- ence to any cause or matter not strictly within those speci- fied therein ; namely, causes testamentary, causes of matri- Introduction^ xxxv mony and divorce, rights of tithes, oblations, and obven- tions. Its legal effect was to abolish appeals to Borne in such causes, and to send such appeals for final determina- tion before the spiritual Courts within the realm, except where such suits touched the King, in which case the ulti- mate appeal was to the Upper House of Convocation. The Act was passed when Sir Thomas More, a rigid Boman Catholic, was Lord Chancellor, and when the King had not yet broken with the See of Bome. It stUl allowed an appeal to the Pope in spiritual suits. It was framed upon the principle that while all temporal matters which were dis- cussed in the Ecclesiastical Courts should be finally deter- mined by Courts sitting within the realm, the spiritual juris- diction, involving questions of doctrine, and which was claimed by the Pope as Head of the Western Church, should remain unaffected. This last remnant of Boman interfer- ence was, however, swept away by an Act of the following year (25 Hen. VIII. c. 19), entitled 'An Act for Submis- sion of the Clergy to the King's Majesty.' It enacted that all manner of appeals, of what nature or condition soever they be, shall be made and had by the parties grieved, after such manner as is Hmited by the former Act of Parliament. No exception was introduced as to causes which touched the King ; on the contrary, the enactment was expressly ex- tended to aU causes, of whatever nature they were, and whatever matter they concerned ; and one further degree in appeals for all manner of causes was given ; namely, from the Archbishop's Court to the King in his Chancery, where a Commission was to be awarded for the determination of the appeal, and thence no further. The result of this Act was — 1. To abolish appeals to Bome in matters relating to doctrine. 2. To abolish appeals to the Upper House of Convocation, in matrimonial and other suits which touched the King. 3. To create % b 2 xxxvi Introduction. Court, tinder the seal of the King sitting in Chancery, called afterwards the Court of High Commission, or High Court of Delegates, for the determination definitively of all appeals in causes pertaining to the spiritualty. By the statute the judgment of the Delegates was to be good and efiectual, and also definitive, and no further appeals were to be had. But the King in Council after such definitive sentence was not precluded from granting a special Commission of Review, and such Commissions on petition by the defeated party to the King in Council were granted to revise, review, and rehear the cause. Subse- quently by statute 2 & 3 Wm. IV, c. 92, the powers of the Court of Delegates were transferred to the King in Council. And it was enacted that every judgment, order, and decree pronounced by that tribunal was to be final and definitive, and no Commission was thereafter to be granted or authoT rised to review any such judgment or decree. And by statute 3 & 4 Wm. IV. c. 41, the Crown was empowered to remit the hearing of ecclesiastical appe^s to the Judicial Committee of the Privy Council, who were to report their opinion thereon to the King in Council. The result of these Acts was — 1. To substitute the Ju- dicial Committee of the Privy Council for the High Court of Delegates. 2. To grant to the Judicial Committee all the powers, authorities, and jurisdiction which the High Court of Delegates had on appeals before them in ecclesias.. tical causes. 3, To aboHsh the granting of a Commiss sion of Review after sentence by the Judici^il Committee, such sentence being held to be absolutely final, so that no further proceedings either in the nature of review or of a rehearing might be had. Such is a brief account of the growth and historical derivation of the present Appellate Tribunal in matters ecclesiastical. To connect the survey with our starting.* Introduction^ sxxvii point in the EUzabetlian Act of Supremacy, mention should be made of an Act of the following session, 26 Henry VIII. 6. 1. This Act, known as King Henry's Act of Supremacy, has now no place on the Statute Book. It was repealed by 1 & 2 Philip and Mary, c. 8, and the repeal was confirmed by 1 Elizabeth, c. 1, already quoted, and which is the Act now in existence, declaratory of the supremacy of the Grown of England in ecclesiastical and spiritual matters. By the Act the sanction of the Legis- lature was given to the title which declared the King supreme Head of the Church of England. This title im- plied that the spiritual body were no longer to be an imperiumin imperio, but should hold 'their powers subor- dinate to the Crown. It asserted an independence of foreign jurisdiction ; it was the complement of the Act of Appeals, rounding off into completeness the constitution in Church and State of the English nations Commenting on this Act, Mr. Froude says that 'considerable sarcasm has been levelled at the assumption by Henry of this title, and on the accession of BUzabeth the Crown, while reclaiming the authority, thought it prudent to retire from the designation. Tet it answered a purpose in marking the nature of the revolution, and the emphasis of the panic carried home the change into the mind of the country. It was the epitome of all the measures which bad been passed against the encroachments of the spiritual powers within and without the realm ; it was at once the symbol of the independence of England, and the declaration that thenceforth the civU magistrate was supreme within the English dominions over Church as well as State.' (Hist. vol. ii. p. 324, 2nd edit.) xxxviii Introduction. High Court of Delegates. The question of the composition of the Conrt of Delegates Tinder 25 Henry VIII. c. 19, is a matter of some import- ance, because it has been roundly and loosely asserted by Dr. Pusey that up to 1604 the Court was a purely spiritual Court, and that up to 1639 the name of a civil judge is found only in one Commission out of forty.* But how are the facts ? Mr. Premantle has collected all the information on the point from the authentic records of the Court, and has completely demolished Dr. Pasey's mis- translation of Bishop Gibson's statement.f It is not true that for the first seventy years none but Bishops sat in any. * 'Even' in the Court of Delegates, for seventy years, none bnt Bishops sat in any spiritual cause ; and until 1639 the name of any civil judge is found only in one Commission out of forty.' — Speech by Dr. Pusey at Bristol Church Congress, 186i. ' A prescription of seventy years from its institution, during which, all through the reigns of Henry VIII., Edward VI., and Elizabeth, no civil judge — none but Bishops — sat in it (the Court of Delegates), may show what it was at first intended to be. A partial, gradual, and as yet un* explained declension took place under the first Stuarts, in which, how- ever, till 1639, " the name of any civil judge is found only in one Com- mission out of forty." From thence (i.e., from the downfall of Bishops, and their jurisdiction which ensued) we may trace the present rule of mixtures in that Court.' ( On the Royal Supremacy, by E. B. Pusey, D.D., p. 202. J. & H. Parker. 1?50.) In support of this statement, Dr. Pusey gives as a reference Gibson's Codex, Introd., p. xxi., but on turning to that work no such statement is found as is placed by Dr. Pusey in inverted commas in his text. The passage in Bishop Gibson runs thus: — 'There are no footsteps of any of the nobility, or Common Law jvdges, in Commission till the year 1604 {i.e., for seventy years after the erecting of the Court) ; nor from 1604 are they found in above one Commission in forty, till the year 1639 ; from whence (i.e., from the downfall of Bishops and their jurisdiction which ensued) we may date the present rule of mixtures in that Court.' — Gibson's Codex, Introd,,, p. xxi. t See Mr. Fremantle's learned Introduction to Brodrick and Fre- mantle's Ecc. Judgments of the Frivy Council, to which I am indebted for the following figures. London: J. Murray, 1865, Introduction. xxxix spiritual cause. The weight of evidence points to a directly opposite conclusion. It is equally untrue that until 1639 the name of any civil judge is found in one Commission only out of forty. The Repertory Books, which begin in the year 1619, and were regularly kept for seventy years, contain full and accurate information on the subject of appeals before the Delegates, including the names of the Delegates appointed to serve on each Commission. An examination of these books estabhshes the fact that between 1619 and 1639 1,080 appeals in causes ecclesiastical were brought before the Court of the Delegates. Out of this number in 982 cases the tribunal was composed exclusively of laymen. In two oases only the Court was composed of Bishops exclusively, while in the remaining 96 the Court was a mixed tribunal of lay and ecclesiastical judges. From 1660 — the period of the Restoration — to 1703 the Common Law judges sat in two out of three of the ecclesiastical appeals, and thereafter were never absent from the Commissions. They were the essential elements in the constitution of the Court, while the Bishops gradually disappeared. From the Restoration to 1700 the Bishops appear in one Commission out of five. The last record of a Bishop's name appearing on a Com- mission belongs to the year 1798., The conclusions to which Mr. Fremantle's researches conducted him are thus stated : — ' In the Court of Delegates, besides the civilians, who were in all but one or two Commissions, there were, during the first seventy years of its existence, sometimes probably ecclesiastics, sometimes Common Law judges ; in the time of James I. and Charles I. Bishops were oc- casionally added, but more often Common Law judges ; for the first fifty years after the Restoration, there were most usually Common Law judges in the Commissions, and often Bishops ; but gradually the Bishops were with- xl Introduction. drawn, ■while the judges became an integral part of the Court.' Jvdicial Committee of the Privy Council. The Judicial Committee of the Privy Council is consti- tuted a Court of Final Appeal in causes ecclesiastical under the proTisions of 2 •& 3 Wm. IV. c. 92, and 3 & 4 Wm. IV. c. 41, and 3 & 4 Vict, c. 86. By statute 2 & 3 Wm. IV. c. 92, the High Court of Delegates was abolished, and the ' King in Council ' was to exercise all the powers of the Court of Delegates, and every order and decree pronounced by that tribunal was to be final, and no Commission was thereafter to be granted to re- view any such order or decree. By statute 3 & 4 Wm. IV. c. 41, the Crown was empowered to remit the hearing of ecclesiastical appeals to the Judicial Committee of the Privy Council, who were to report their opinion thereon to the King in CouncU.* * Section 1 enacts that the Judicial Committee shall consist of the following high personages : — The Lord President of the Council, the Lord Chancellor of England, Lord Keeper of the Seal, Lord Chief Justice, or Judge, of the Queen's Bench, the Master of the EoUs, Vice- Chancellor of England, Lord Chief Justice, or Judge, of the Common Pleas, Lord Chief Baron, or Baron, of the Exchequer, Judge of the Pre- rogative Court of the Archbishop of Canterbury, Judge of the Court of Admiralty, Chief Judge in Bankruptcy, being Privy Councillors, and all persons who shall have held such offices or any of them, being Privy Councillors, with power to appoint any two other persons, being Privy Councillors, members of the Committee. By statute 14 & 16 Vict. l-. 83 (1851), the Lords Justices of Appeal in Chancery, being Privy Councillors, were made members of the Judicial Committee. By statute 34 & 35 Vict. c. 91 (1871), there were added to the Com- mittee four additional paid members, selected from among the judges of the superior Courts of Common Law and Equity, inclusive of the Courts of Probate and Divorce and the Court of Admiralty ; and from among such persons as had filled the office of Chief Judge of the High Courts of Port William, Madras, or Bombay, or of the late Supreme Court of Port William. • Inti^oductioni Xli It was farther provided (sec. 5) that four members of the Committee should constitute a quorum, that the reports should express the opinion of the majority, iand power was given to the Grown to summon other members of the Privy Council td attencrthe meetings of the Committee — a pro-i vision which was acted on in the cases of Mr. Gorham and Mr: Liddell. Provision was also made for the examination of witnesses, and to compel their attendance, and for the trial of issues of fact in the Common Law CourtSi The Judicial Committee remained as thus constituted until thSj year 1840, when the Church Discipline Act (3 &4- Vict. c. 86) placed on the Committee for the hearing of appeals linder that Act all Archbishops and Bishops, being Privy Coun-" cillors, with the further direction that no appeal in a suit under that Act should be heard without the presence of one such Archbishop or Bishop. Finally, by statute 13 & 14 Vict. c. 83, the number of members of the Judicial Committee necessary to form a quorum was fixed at three, exclusive of the Lord President. In the Church of Unglomd there are, therefore, two final Courts of Appeal : — li The Judicial Committee, with the Archbishops of Canterbury and York and the Bishop of London, as mem.> bers (in their capacity as Privy Councillors) for hearing appeals under the Church Discipline Act. 2. The Judicial Committee, without any Bishop or Eccle- siastic, for hearing appeals on duplex quercda, &o. Ecclesiastical and doctrinal questions may also be raised in the Court of Queen's Bench by quare vmpedit, mandamus,, or prohibition. The final appeal in questions raised before this tribunal is to the House of Lords, which may be styled a third Court of Final Appeal in ecclesiastical matters. The abolition of the High Court of Delegates, and the sub- xlil Introduction. stitution in its room of the Privy Council, by the Acts of William IV. was based on the report of a Royal Commis- sion appointed in 1830 to enquire into the course of pro- ceeding and jurisdiction of the ecclesiastical Courts -with a view to an amendment in the law.* At tte instance of the Lord Chancellor (Lord Brougham), the Commissioners drew up a special report on the transfer of jurisdiction to the Privy Council. They recommended — 1. That the jurisdiction hitherto exercised by judges delegate should be abolished. 2. That the right of hearing appeals should be trans- ferred to the Privy Council. 3. That the Commission of Eeview should be abolished. The Commissioners based their proposals for a transfer of the jurisdiction to a permanent tribunal, with powers, of final adjudication on the anomalies and defects, which they pointed out as existing in the constitution and procedtire of the Court of Delegates. These may be briefly given as follows : — (a.) The expense and delay of a separate Commission being required in each case. (6.) The practice of nominating advocates, of small ex- perience, as civilian condelegates ; the more experienced advocates being for the most part professionally engaged ia the case. (c.) The practice of issuing a Commission of Adjuncts, in case of an equal division of opinion, or no Common Law judge forming part of the majority; and the practice of * The Commission was addressed to the following persons : — The Archbishop of Canterbury (Dr. Howley) ; the Bishops of London (Blom- field), Durham (Van Mildert), Lincoln (Kaye), St. Asaph (Caiey), and Bangor (BetheU) ; Lords Tenterden, C.J., and Wynford ; Sir N. TindaL C.J. Com. Pleas ; Sir W. Alexander, C.B. of the Exchequer ; Sir T. NichoU, Dean of the Arches ; Sir C. E«binson, King's Advocate ; Sir H. James ; Sir 0. £. Carrington ; Dr. Lushington ; and Mr. Fergusson. Introduction. xliii issuing Commissions of Review — leading to delay, expense and inconvenience. (d.) The difficulty of establishing settled principles, or ensuring uniformity of decision in a Court of fluctuating constitution. It cannot be doubted that a sufficient case was made for the tf'ansfer of jurisdiction to the Privy Council. A body composed of Lords Spiritual and Temporal, the Judges in Equity, and of the Common Law, and other persons of legal education and habits, who have filled judicial situations, seemed a most perfect tribunal for the trial of ecclesiastical appeals. Accordingly the Acts, revesting in the Crown in Council, one of its most ancient prerogatives, and supported by the whole bench of Bishops, passed the House of Lords without any opposition. No objection was raised on the ground that appeals involving matters of doctrine would be dealt with by the new tribunal, It has been said that questions of this kind were lost sight of amid the variety of causes, testamentary and the like, that came before the Court. But it can hardly be true that Archbishop Howley and five of the most eminent Bishops on the Bench, who were members of the Commission, were ignorant of the nature of "the tribunal which they assisted in founding. Indeed, the second report of the Commission puts it beyond question that suits of this character were very fully con- sidered by the Commissioners, for it devotes several pages to a consideration of the mode of dealing with the ofiences of the clergy, and specifies 'advancing doctrines not con- formable to the Articles of the Church' among such offences, while, so far as the Church Discipline Act of 1840 is concerned, it is enough to say that it relates to spiritual causes and to none other. It is not intended to discuss the question of the fitness of the Court as at present constituted for the fulfilment of its :kliv' Introduction. important duties as a Tribunal of Appeal, nor to do more thail' refer to the widespread dissatisfaction which its judgments have occasioned. As the Court is the natural outcome of the constitutional doctrine of the Supremacy of the Grown^ any attempt to set up any other tribunal than her Majesty in Council must fail as long as the connection between Church and State rests upon its present basisi There appears to be two ways, however, consistently with the union of Church and State, not of altering in point of principle, but of modifying the present character of the- Court, either of which) if adopted, might render its decrees less generally unpopular among Church people — 1. By increasing the number of Bishops with seats on the Committee, by conferring on a selected few the rank of Privy Councillor. 2. By sanctioning a discretionary power of sending questions involving matters of doctrine before a Committee of Prelates for their report ; such report to be used by the Gommittee, ad mforma/ndam conscientiam, but in no sense to be binding or conclusive. Much, however, of the unpopularity of this tribunal which has been . made the subject of unlimited and most bitter abuse is due to th^ misconceptions which are abroad as to its true character and function. It cannot be too clearly stated that it is no part of the duty of the Court to settle or determine doctrine, to declare what is theologically sound or unsound, or to settle matters of faith. The Court is a court of construction. Its duty is to explain the meaning of legal documents according to the known legal rules which govern the interpretation of - statutes and written instruments. It has disclaimed repeatedly the right to usurp the functions which belong properly to Synods and Councils, and has been studiously careful to confine its action to the narrow point whether statements Introduction, i ; / xlv or practices are so repugnant to the plain meaning of th© Articles and Pormularies as to merit judicial condemnation. But the basis upon -which the Court acts will be best under- stood by the selection and statement of some of the prin- ciples which the Committee itself has laid down, and which limit and control the exercise of its functions : — 1. It is not for the Court to decide whether opinions are theologically sound or unsound, but whether such opinions are contrary, or repugnant to, the doctrines which the Church of England, by its Articles, Formularies, and Rubrics, requires to be held by its Ministers (pp. 23, 229), 2. The Court will apply to the construction of the Articles and Liturgy the same rules which have been long established, and are by law applicable to the constmctiou of all written instruments, assisted only by the considera- tion of such rational or historical facts as may be necessary for the understanding of the subject matter to which the instruments relate, and the meaning of the words em- ployed (pp. 22, 23, 230). 8.' The Court has no jurisdiction or authority to settle matters of faith, or to determine what ought in any par- ticular to be the doctrine of the Church of England ; its duty extends only to the consideration of that which is' by law established to be the doctrine of the Church of England upon the true and legal construction of her Arti- cles and Formularies (pp, '35, 95, 281). 4. With respect to the legal tests of doctrine in the Church of England by the apphcation of which the Judicial Committee is to try the soundness of passages libelled, it ia the province of that Court, on the one hand, to ascertain the true construction of the Articles of Religion and Formu- laries referred to in each charge according to the legal rules for the interpretation of statutes and written instru- ments ; and, on the other hand, to ascertain the plain xlvi Introduction. grammatical meaniiig of the passages whicli are charged as being contrary to, or inconsistent with, the doctrines of the Church (p. 95). It is not the part of the Court of the Arches, nor of the Committee, to .usurp the functions of a Synod or Council. Their duties are much more circumscribed; namely, to ascertain whether certain statements are so far repugnant to, or contradictory of, the language of the Articles and Formularies, construed in their plain meaning, that they should receive judicial condemnation (p. 244). LIST OS* THB JUDICIAL COMMITTEE on HER MAJESTY'S MOST HONOUEABLE PRIVY COUNCIL.' - Established by Z ^ i Wiix. IV, c. 41, for hearing and reporting on Appeals to her Majesty in Council, 1872. The LoED HiaH CHiiroBiiiOE (Lord Hatherley). The Marquis of Ripon (Lord President). The Duke of BucKiifGHAM (late Lord President). The Duke of Maeiboeoitgh The Duke of BTjcoLEir&H , . , t , -r, . The Earl GBAifviLLE \ ^°™«'^y ^"'^ Presidents. The Earl Rtjssbli Lord St. Lbonakd's Lord Chelmspoed \. formerly Lord Chancellors. Lord Westbttet Lord RoMliLT (Master of the Rolls). Lord Caiests (late Lord Chancellor). Lord Penzakcb (Judge of H.M. Court of Probate and Divorce). liight Hon. Stephen Lushinoton (late Judge of the High Court of Admiralty). Right Hon. Sir A. J. E. Cockbuen, Bart., L.C.J, of the Court of Queen's Bench. Right Hon. Sir J. T. Coleeidge, Knt. (formerly a Judge of the Court of Queen's Bench). Right Hon. Sir W. Eeie, Knt. (late L.C.J, of the Court of Com- mon Pleas). •Right Hon. Sir J. W. Coltilb, Knt. (formerly C.J. of the Supreme Court at Calcutta). * Those marked are paid members of the Court under statute Si & 35 Vict. c. 91. } ! * slviii List of the Judicial Committee. Eight Hon. Sir E. V. Williams, Knt. (formerly a Judge of the Court of Common Pleas). Right Hon. Sir Fiizeot E. Kelly, Knt., L.C.B. of the Court of Exchequer. Eight Hon. Sir E. T. Kindeeslet, Knt. (late a Vice-Chancellor of the Court of Chancery). Right Hon. Sir W. Bovill, Knt., L.C.J, of the„Court of Common Pleas. Right Hon. Sir R. J. Phillimoee, Knt., Judge of the High Court of Admiralty. Eight Hon. Sir Joseph Napiek, Bart, (formerly Lord Chancellor of Ireland). Eight Hon. Sir W, M. James, Knt., L.J, of the Court of Appeal in Chancery. Eight Hon. Sir Geosge Mellish, Knt., L.J. of the Court of Ap- peal in Chancery. *Right Hon. Sir M. E. Smiih, Knt. (late a Judge of the Court of Common Pleas). •Eight Hon. Sir R. P. Colliee, Knt. (late a Judge of the Court of Common Pleas). ; •Right Hon. Sir Baenes Peacock, Knt. (formerly C.J. of the Supreme Court at Calcutta). Right Hon. Sir J. S. Willes, Knt., a Judge of the Court of Common Pleas. Eight Hon. Moniagtte Beenaed. Assessor : — Eight Hon. Sir Laweence Peel, Knt. (formerly C.J. of the Supreme Court at Calcutta). For hearing of Appeals under 3 & 4 Vict. o. 86 :, Right Hon. and Most Rev. the Lord Archbishop of CANrEEBUBT (Dr. Tait). Right Hon. and Most Eev. the Lord Archbishop of Yoek (Dr. Thomson). Eight Hon. and Eight Eev. the Lord Bishop of London (Dr. Jackson) » Those marked are paid members of the Court under statute 34 & 35 Vict. c. 91. PEIVY COUNCIL JUDGMENTS. The reverend GEORGE CORNELIUS 1 . GORHAM, Clbek | Appellant; AND The right REVEREND the liORDT BISHOP OF EXETER (DR. PHIL- ^Respondent* POTTS) . . . .^ . .] On Appeal from the Arches Court of Canteriury. It is not for the Court to decide whether opinions are theologically sound or unsound, but -whether such opinions are contrary or repugnant to the doctrines, which the Church of England, by its Articles, Formu- laries, and Rubrics, requires to be held by its Ministers. The Court will apply to the construction of the Articles and Liturgy the same rules which have been long established, and are by Law applicable to the construction of all written instruments, assisted only by the consideration of such rational or historical facts, as may be necessary for the understanding of the sub- ject matter to which the instruments relate, and the meaning of the words employed. In all cases in which the Articles, considered as a test, admit of different interpretations : Held, that any sense of which the words fairly admit may be allowed, if that sense be not contradictory to something which the Church has elsewhere allowed or requii'ed ; and if there be any doctrine on which the Articles are silent or ambiguously expressed, so as to be capable of two * Present: Lord Langdale, M.R. ; Lord Campbell ; Sir James Parke (iBaron of tiae Exchequer) ; Dr. Lushington ; Sir J. L. Kniglit Bruce (V.C.) ; Mr. T. Pembertou Leigh ; also, on special summons, the Arch- bishop of Canterbury (Dr. Sumner) ; the Archbishop of York (Dr. Mus- grave) ; the Bishop of London (Dr. Blomfield). Privy Council Judgments. meanings : Held, that it was intended to leave that doctrine to private judgment, unless the Rubrics and Formularies clearly and distinctly decide it. . Devotional exercises and services cannot be evi- dence of faith or of doctrine without reference to the distinct declarations of ^pctrine .in the Articles ; and where devotional expressions iuTolving assertions occur in a service they must not, as of course, be taken to have an absolute and unconditional sense; apart from a careful consideration of the nature of the subject and the true doctrine apphcable to it. The Court has no jurisdiction or authority to settle matters of faith, or to determine what ought in any particular to be the doctrine of the Church oi. England ; its duty extends only to the consideration of that which is by Law established to be the doctrine of the Church of England, upon the true and legal construc- tion of her Articles and Formularies. A Clerk refused institution by a Bishop on the ground of unfitness, by reason of his holding, as alleged, doctrines contrary to the true Christian Faith, and the doctrines contained in the Articles and For- mularies of the United Church of England and Irelamd : Held, that it is not contrary or repugnant to the declared doctrine of the Church of England, as by Law established, to hold, that the grace of regeneration does not so necessarily accompany the act of Baptism that regeneration invariably takes place in Baptism ; that the grace may be granted before, in, or after Baptism ; that Baptism is an effectual sign of grace, by which God works invisibily in us, but only in such as wort]|ily receive it — ^that in them alone it has a wholesome effect ; and that, without reference to the qualification of the recipient, it is not in itself an effectual sign of grace ; and that in no case is regene- ration in Baptism unconditional. Judgment of the Court of the Arches reversed, and order made for institution of the Clerk.- Dec. 11, This case was an Appeal from the Arches Court of Ga/n- 1849. terlury in a suit brought by the Appellant against the statement. Bishop of Exeter, for refasing him itastitutien to the living of Sramypford SpeJce, to which he had been pre- sented by Lord Chancellor Oottenham. Privy Council Judgments. The Appellant, the Reverend George Oornelms Oorham, ex-1'ellow of Queen's College, Cambridge, had been or- dained in 1812, and had held the living of St. Just-in- Penwith, in the Diocese of Hxeter, since 1846. In June 1847 the Lord Chancellor, on behalf of her Majesty, having offered him the living of Brampford Bpelce, in the same Diocese, he forwarded to the Bishop of Exeter, for his counter- signature, the testimonial required in such oases, signed by three beneficed clergymen. Instead of the usual attestation that the three subscribing clergymen were beneficed in his Diocese and worthy of credit, the Bishop wrote in the m.argin of the document the following words : — ' The clergymen who have subscribed this testimonial are highly respectable ; but, as I consider the Bishop's counter-signature of such a document, if it be unaccom- panied by any remark, as implying his own belief that the party to whom, it relates " has not held, written, or taught anything contrary to the doctrine or discipline of the United Church of Englamd and Ireland ;" and as my own experience unfortunately attests that the Rev. George 0. Gorham did, in the course of last year, in correspondence with myself, hold, write, and maintain what is contrary to the discipline of the said Church, and as what he farther wrote makes me apprehend that he holds also what is contrary to its doctrine, I cannot conscientiously counter- sign this testimonial.' 'H. EXETEK.' ' August 29, 1847.' The Bishop, on Mr. Gorham's remonstrance, having refused to withdraw the words written on the testimonial, Mr. Gorham wrote and explained the circumstances to the Lord Chancellor, who thereupon ordered the presentation to be made out, and wrote to the Bishop of Exeter, October 11, 1847, to state that he had signed the Fiat for Mr. Gorham.' s presentation, it appearing to him that ' the object of the Bishop's counter- signature is only to give validity to the testimonials of the clergyman ; and that whatever b2 1849. GOBHAM V. Bishop off £X£TEB. Statement. 4 Privy Council Judgments. 1849. power the Law may give, to tte Bishop upon the gronnd of g|^^^ life or doctrine, over the Presentee, must follow, and ean- "• not precede presentation.' The presentation was accord- ExETEE. ingly made out, and was issued under the Great Seal statement, on Novemhsr 2. On Nov. 6, Mr. Gorham applied by letter to the Bishop for institution, and after some correspondence the Bishop, on Nov. 13, intimated to Mr. Gorham that before insti- tution he felt it to be his duty to ascertain by examin- ation whether he was sound in doctrine. Mr. Gorham having assented to this course, the examination commenced at Bishopstowe on Dec. 17, 1847, and continued at in- tervals to March 11, 1848, notwithstanding protests on the part of Mr. Gorham for its minute and inquisitorial Examination character. In the course of the examination 149 questions Gorhaim. were proposed by the Bishop and answered by Mr. Gorham, aU of which were reduced to writing, pablished by Mr. Gorham, and acknowledged as a true account by the Bishop, who incorporated the book in his Act on Petition to the Court of the Arches. The passages which are material for the purposes of this proceeding are contained in Mr. Gorham' s answers to Ques- tions v., VI., and VII. They are as foUows : — Question V. Does oxir Church hold, and do you hold, that every infant baptised by a lawful Minister with water in the name of the Father, and of the Son, and of the Holy Ghost, is made by God in such Baptism a member of Christ, the child of God, and an inheritor of the kingdom . of heaven ? Questimi VI. Does our Church hold, and do you hold, that such children by the laver of regeneration in Baptism, are received into the number of the children of God, and heirs of everlasting life ? Question VH. Does our Church hold, and do you hold, that all infants so baptised are bom again of water, and of the Holy Ghost ? Answer. As these three questions aU imply the same description of answer, I will discuss them together. And generally I reply that these propositions, being Privy Council Judgments. h stated in the precise words of the Ritual Services, or of 1849. the Catechism, undoubtedly must be held by every honest G-oBalsr member of the Church to ' contain in them nothinsr con- „ *■.. , o Bishop of trary to the Word of God, or to sound doctrine, or which bxeter. a godly man may not with a good conscience use and ,sta tement._ submit to, or which is not fairly defensible, ... if it shall be allowed such just and favourable construction as in common equity ought to be allowed to all human writings, especially such as are set forth by authority.' — (Preface to the Book of Common Prayer.) Now the 'just and favourable construction' of passages Bxamination like these (occurring in Services intended for popular use), ham. which, taken in their naked verbality, might appear to contradict the clearest' statements of Scripture, and of the Church herself, must be sought, chiefly (I.), by bringing them in , juxtaposition with the precise and dogmatical teaching of the Church in her explicit standard of doc- trine, the Thirty-Nine Articles ; in the next place (II.) by comparing the various parts of her Formularies with each other ; and collaterally (III.) by ascertaining thfe views of those by whom her Services were reformed and the Articles sanction'ed. The real point involved in these questions is the efficacy of the Sacrament of Baptism, not merely in infants, but in adults ; and that question cannot be fairly dissevered from the efficacy of the other Sacrament — ^that of the Lord's Supper. I. The Articles distinctly and with severe precision lay down the doctrine for both Sacraments ; which is this : — That not right administration merely, but worthy reception, is essential to their becoming ' effectual signs of grace.' ' In such only as worthily receive the same they have a whole- some effect or operation.' (Article 25.) And ' the grace of God's gifts ' is said to be conferred only on such as ' by faith and rightly do receive' them. (Article 31.) The doctrine thus generally stated for both kinds applies to Baptism of course ; and of that Sacrament it is eo nomine declared, ' that they that receive Baptism rightly ' (that is, not merely by lawful administration, but by worthy re-^ 1849. QOEHAM Bishop of BXETEB. "Privy Council Judgments. ception) 'are grafted into the Chtu-ck ; the promises of forgiveness of sin, and of our adoption to be the sons of God by the Holy Ghost, are visibly signed and sealed ; faith is confirmed, and grace increased by virtue of prayer unto statement, q,^^, (^^^^g 37 ) jj-j, distinction is made between adults and infants in this Article, though the case of the latter was expressly in the mind of its framers, as appears by the charitable declaration at its close. ' The Baptism of young children is in any wise to be retained in the Church, as most agreeable with the institution of Christ.' Tet, once more, the three remarkable expressions above cited are combined in Article 28, in which the doctrine of the Church is luminously set forth, as in a sunbeam, that none have a beneficial communion of the Body and Blood of Christ, but ' such as rightly, worthily, and with faith re- ceive the same.' See also Article 29 : ' The wicked and such as be void of a lively faith, although 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 they eat and drink the sign or sacrament of so great a thing.' Such — according to the authoritative teaching of the Articles, (those grave and formal declarations of Divine Truth accepted by both Houses of Convocation), by which the language of all Formularies and Services, as well as all expositions and examinations of their import, must be rigorously tested, as their standard, — such is the doctrine of the Church on the ej(ficacy of both Sacraments, and, therefore, of Baptism. Where there is no worthy reception there is no bestow/nent of grace. Examinatibti II. The Formularies teach the same doctrine when ham. ' fairly construed, though sometimes in a form less definite, (a.) In the Catechism ' the inward and spiritual grace ' is carefully distinguished from the ' outward and visible sign,' which is its token, its pledge, and its manifesta- tion, when ' rightly received.' The conditions of repent- ance and faith are expressly required of persons to be Privy Council Judgments. baptised, even of infants, who must enter into these stipulations by their representatives, and who, ' when they come of age, are bound to perform ' the covenants which their sponsors made on their behalf. (6) In the Baptismal Services (for adults as well as infants, for we are not at Kberty to sever the two in this argument) the benefits of the Sacrament are, in a similar way, suspended on its worthy reception. ' Faith ' and ' repentance ' are declared by the adult in his own person, and are stipulated by the infant through its sponsors, as dispositions which exist, or shall hereafter exist, in the mind of the candidate. The whole service, therefore, is constructed on the assumption that these promises are sincere, on the hypothesis that the requirements have been, or shall be performed. In this charitable hope the Formu- laries of the Church affirm that the subject of Baptism is ' a member of Christ, the child of God, and an inheritor of the kingdom of heaven!' (Question V.) He was made such, by solemn dedication with the prayers of the Church, by open profession with his own lips, or by the stipulations of his sponsors (to be hereafter, possibly as soon as the infant faculties are sufficiently developed, or at all events in riper years, fulfilled by himself) ; and he was also made such by the covenant of God, certified by His own seal, that on His part nothing should be wanting to give His adopted child the full efiect of these blessings. This interpretation of the affirmations in the Baptismal Ritual is confirmed by the language of one of the Homilies, which reminds us that by ' holy promises, with calh'ng the name of God to witness, we be made lively members of Christ, when we profess His religion, receiving the Sacra- ment of Baptism.' (Homily on Swearing, part i.) It is in the same prospective confidence in the sincere perform- ance by infants of those engagements by which they were bound by their sureties (as their- ripening capacities shall enable them to fulfil those pledges) that the Church de- clares (but always with an implied conditional reservation, if these promises be not fulfilled, that the blessing is not 1849. GORIiAW V. Bishop op EXETSR. statement. Privy Council Judgments. 1849. GOKHAM Bishop of Exeter. conferred), ttat ' by the laver of regeneration in Baptism they are received into the number of the children of God, and heirs of everlasting life.' (Question VI.) In the same strain of charitable hypothesis it is affirmed that infants ' so baptised'- — namely, not accprding to the institution of Christ, but with ' the stipulation (the answer), of a good conscience towards God' — are ' bom again of water and of the Holy Ghost.' (Question VII.) It being impossible that such dispositions and. fruits should exist, except when the Holy Ghost has imparted a new nature, which He may do before Baptism, in Baptism, or after Baptism, ' as He listeth.' That the Church did not intend her language to be con- strued absolutely, and unconditionally, may appear from a single instance. In the Office for Private Baptism, the Church makes two declarations as absolute as mere verbality can make them. (1.) She makes a verbally absolute statement of the regeneration of the child in the thanksgiving, ' We yield Thee hearty thanks, most merciful Father, that it hath pleased Thee to regenerate this infant by Thy Holy Spirit,' etc. (2.) She makes an equally unconditional assertion as to the future salvation of the infant in the exhortation, ' Be- loved, ye hear,' etc.; where we are told, ' not to doubt, but earnestly believe' that result to be certain — namely, ' that He will give unto him the blessing of eternal life, and make him partaker of His everlasting kingdom.' Nevertheless, in the concluding petition, ' We yield Thee,' etc., the Church makes that which has been the subject of positive declaration, again, the matter of humble prayer, and therefore only of conditional expectation : — ' Humbly we beseech Thee to grant that .... finally, with the residue of Thy Holy Church, he may be an inheritor of Thine everlasting kingdom.' Thus she clearly ayows that, in this instance, her language of undoubting belief and unhesitating assertion, is to be 'justly construed ' as only conditional, hypothetical, charitable, and hopeful.' Privy Council Judgments. '9 It is not, therefore, inconsistent with her phraseology, 1849. or, rather, it is fully consonant with her intentions, to con- g^^„ stme her verbally absolute declaration with regard to the 3^^^*^ ^^ regeneration of every infant in the same hypothetical man- exbteh. ner ; and this construction, being the only one which will .^*''*°|°™*- reconcile her Liturgy with her Articles, is that which ia ' common equity,' ought to be allowed, and which in com- mon sen^e must be adopted. The Church herself has given this intimation of the Examination J .... ? of Mr. Gor- mode m which her language is to be construed at the close ham. of the Baptismal Services, where, exhorting both infants (through their sureties) and adults, she reminds them that ' Baptism doth represent unto us our profession, ' and that we who are baptised should die from sin, and rise again unto righteousness ; although ' a death unto sin, and a new birth unto righteousness ' (being the inward grace included in the terms 'regenerate ' and ' bom again '), are effects declared verbally to have taken place in, and by, the Sacrament. An hypothetical meaning and coilditional con- struction is the only one which renders these parts of the Services consistent with each other, as well as conformable to the express teaching of the Church in her standard of doctrine. The same conclusion follows from that passage in the Burial Service, in which, in absolute terms, we ' thank God that it hath pleased Him to deliver this our brother out of the miseries of this sinful world ; ' although it is manifest that we cannot definitely pronounce on the future state of every individual, in successive generations, to whom that Service is to be applied ; and although, in a subsequent part of that Service, the Church falls back into the simply charitable declaration, that ' our hope is that this our brother ' rests in Christ. This construction becomes riveted on these apparently absolute expressions by the fact that, notwithstanding the declaration that baptised persons are ' bom again,' the Church instructs us (in other services) to pray for this very blessing in after life. The Collect for Christmas Day, and that for the Circumcision, are prayers to this effect ; IG Privy Council Judgments. 1849. tte language of each of these prayers I consider as pro- GobbIm spective — that of the second is so beyond controversy. Bishop op '^^® petition which concludes the first part of the HomUy BxETER. for Whit-Snnday is most distinct on this point, in that statement, prayer, ' Let us give hearty thanks to God .... humbly beseeching Him so to work in our hearts by the power of His Holy Spirit, that we, being regenerate and newly bom again in all goodness, righteousness, sobriety, and truth, may, in the end, be made partakers of everlast- ing life.' Regeneration, therefore, in Baptism is affirmed absolutely in words, but conditionally in meaning ; it may not have taken place, and is', therefore, to be implored in after years. Bxamination In truth, not Only many expressions in the Liturgical ham.' Services would be misinterpreted, but the language of Scripture itself might be (as it has been) awfully per- verted, if the principle were not allowed that the most absolute terms must be construed sometimes in a symboli- cal, sometimes in a conditional sense, according to the manifest intention of the person who used them. What can be more absolute than our Lord's affirmation respecting the bread, ' This is my body ' ? Transubstanti- ation follows from the exaction (contrary to common sense) of a literal acceptation of these words : as regene- ration, by the opus operatum of Baptism, would follow from an exaction (contrary to the doctrine of the Articles) of an unjustly verbal construction of certain affirmations in the Baptismal Service. We find, in the Apostolic Epistles, absolute declarations respecting the sanctified state of every individual in- cluded in the churches to whom they were written (Rom. i. 7 ; 1 Thess. i. 1, 2, 4), though it is manifest that these affirmations must be understood as conditional and charit- able assunciptions. That such is the 'just construction ' of the language of the Rituals, as cited in these three questions, and as pre- vailing throughout the Baptismal Services, will appear, if we consider with what care those who compiled the For- mularies of the Church discriminate between the sacra- Privy Council Judgments. 11 1819. Bishop of Exeter. ments, or signs, and the grace, or thing, signified, as per- fectly distinct conceptions, as matters separable and often separated. I must illustrate this by both Sacraments, distinctions in kind being needless, and only perplexing the argument. The Catechism logically and most cor- .sta tement. rectly defines a sacrament to be a sign of an inward and spiritual grace. Article 29 calls the mere outward element ' the sacrament, or sign,' clearly distinguished from, and not even (in the case referred to) accompanied by, ' so great & thing ' as the inward grace. In the Communion of the Sick it is declared that the faithful may spiritually ' eat and drink ' the body and blood, though from physical ■weakness we do not receive ' the sacrament,' the elemental sign. The Homilies insist strongly on this distinction. ' St. Augustine ' (Homily on Common Prayer) ' calleth sacraments holy signs ; and, writing of the Baptism of infants, he saith, if sacraments had not a certain similitude of those things whereof they be sacraments, they should be no sacraments at all ; and of this similitude they do for the most part receive the names of the selfsame thing they signify.' And that discourse; which was written specially on this subject, warns us to mark the important difference between 'the outward sacrament and the spiritual thing, the figure and the truth, the shadow and the body.' (Homily on the Sacrament of the Body.) So Cranmer writes, ' In sacraments, saith St. Austin, is to be con- sidered, not what they be, but what they show ; for they be signs of other things, being one thing and signifying another.' (Cranmer on the Lord's Supper, b. iv. Edn. Parker Soc, 1844, p. 221.) It is true that, by a metonymy, the sign is often used Examination for the thing signified ; and this practice of the early ham. fathers, sometimes adopted in the writings of our Re- formers, and in one place in our Catechism (I mean the description of a sacrament as to its ' parts,' whenever the sign and the grace are happily united by the worthy re- cipient), has led to confusion in the minds of those who do not carefully mark the distinction, and separability, of these two matters. But the meaning of the Church is clear, if a 12 1849. Bishop of Exeter. Statement. Examiuation of Mr. Gor- ham. Privy Council Judgments. 'just and favourable construction be allowed' (and she! herself claims it) for her expressions. III. The writings of the Eeformers, candidly examined, throw light on the construction of Church Services. These, of course, I cannot quote at large in an extempore examin- ation. Coverdale (Works, Edn. Parker Soc, pp. 80, 411), Latimer (Ibid., p. 202), Ridley (Ibid., p. 240), Cranmer (Ibid., p. 221 ; Works, Jenkyn's Edn., vol. iii. pp. 49, 121, 624), Hooper (Works, Edn. Parker See, pp. 74, 75), have marked the distinction and the separability of the sacra- ment, or sign, from! the grace, or the thing signified, in precise and unmistakeable language. Jewel, the great light of that era, gives his judgment, that ' in Baptism, as the one part of that holy mystery is Christ's blood, so is the other part the material water ; neither are these parts joined together in place, but in mystery, and therefore they are oftentimes severed, and the one is received without the other.' (Reply to Harding, p. 285, Edn. 1609.) Neither Jewel, nor any other expositor, is my standard. I base my doctrines on the 39 Articles ; but the above citation from this eminent Bishop, so well qualified to give' his judgment, expresses generally my view of the Sacrament of Baptism. Questions XVIII. and XIX., and the answers thereto, are also material. Qiiesiion XVIII. Has the Church not declared her mind, that infants baptised by a lawful Minister, in the name of the Father, and of the Son, and of the Holy Ghost, do receive the spiritual grace of Baptism, even if they have not entered into the stipulations by their representatives ? Answer. The Church has declared that, to infants pri- vately baptised, the grace and mercy of Christ is not denied. In this case of emergency I consider that stipu- lations, though not formally made by sponsors, are made by implication through those who earnestly desire their Baptism, and by the person who administers it, which implied stipulations the Church requires to be formally adopted, as soon as the circumstances will suffer it. This Privy Council Judgments. 13 case of . ' present exigence ' cannot, therefore, be fairly 1849. urged as an exception to the requirements of the Church, n^^ In the Catechism the Chnrch' puts the question, ' Why, o- -^ 7^7 Bishop of then, are infants baptised, when, bj reason of their tender exetbu. age, they cannot perform them, (the ' promises ' made by statement. their sureties), ' without limitation to infants baptised under any particular circumstances ? ' It is a question stating -the difB.culty in its broadest and most general character. Now the answer, which the Church gives, brings us of necessity to one of three conclusions : — , Either (a) the Church intended unworthily to evade the principal dif&culty — namely, the case of infants baptised in emergency, without the formal stipulations, the execution of which is declared in the answer to solve the dif&culty proposed. Or (6) she intended to impose a charitable silence on her members with regard to so nice and curious a point, shutting up all further search in the promises of God, as generally set forth in Holy Scripture. Or (c) she intended to embrace that case in her general answer, and to consider that the stipulations were implied under these urgent circumstances (to be hereafter abso- lutely entered into if more favourable circumstances per- mitted), though they were not formally given. The first of these suppositions, of course, I dismiss peremptorily. The second hypothesis would put an end to all further enquiry into the subject. The third conclusion therefore, which I adopt, is the only solution which is possible, if I am required to declare my view of the meaning of the Church. Question XIX. Does the Church hold, and do you hold, Exammation that infants so baptised are regenerated, independently of the stipulations made by their representatives, or by any others for them ? Answer. If such infants die before they commit ' actual sin,' the Church holds, and I hold, that they are 'un- doubtedly saved;' and, therefore, they must have been regenerated by an act of grace prevenient to their Baptism, of Mr. Gor- liam. 14 1849. GORHAM V. Bishop of EXETEH. statement. Kesult of Examina- tion. Proceedings in Court of the Axches. Act on Petition. Privy Council Judgments. in order to make them worthy recipients of that Sacrament. This case is ruled by the Church — I mean, it is ruled that they were actually regenerated, and are undoubtedly saved. But if the infant Urea to a period in which it can com- mit ' actual sin,' the declaration of regeneration must be construed according to ' the hypothetical principle, which I have stated in my replies to Questions V., VI., and VII. That part of this question which relates to sponsorship, in these cases, I have replied to in the answer to Question XVIII., so far as the mind of the Church can be ascer- tained. The examination having concluded, Mr. Oorham. was apprised on March 11, 1848, that the Bishop, having regard to the unsoundness of the doctrines stated by him, felt bound to decline to institute him. Mr. Gorham there- upon had recourse to legal proceedings to compel him, and obtained a monition from the Dean of the Arches, grounded on a Duplex Querela,* monishing the Bishop of lEaeter to institute Mr. Oorham, or to show cause why he should not do so within fifteen days, failing which the Dean of the Arches would proceed to institute Mr. Gorham. The Bishop's reply is contained in the ' Act on Petition.' This document states that, on Mr. Gorham's presentation, the Bishop proceeded, as he was bound, to examine him, in order to ascertain his fitness, and adds, ' That it appeared to the Bishop, in the course of his examination, that Mr. Gorham, was of unsound doctrine respecting that great and fundamental point the efficacy of the Sacrament of Bap- tism, inasmuch as he held and persisted in holding that spiritual regeneration is not given or conferred in that holy * ' Duplex Querela (double querele, or complaint), called improperly double quarrel, is a complaint made by any Clerk or other to the Arch- bishop of the province agaiiist any inferior ordinary for delaying jus- tice in any cause ecclesiastical ; as to give sentence, or to institute a clerk presented, or such Uke. It seems to be called a cUmhle querele because it is most commonly made both against the judge and against the party at whose request justice is delayed by the said judge.' Bum's Eccl. Lav?, vol. ii. of Mr. Privy Council Judgments. 15 Sacrament; in particular that infants are not made 1849. therein members of Christ, and children qf God, contrary goeh^m to the plain teaching of the Church of Enalcmd in her „ "■ Ai-iix-ii Bishop oif Articles and JUiturgy, and especially contrary to the divers exbtkh. offices of Baptism, the office of Confirmation, and the Ca- .statement.^ techism, severally contained in the Book of Common Prayer, and administration of the Sacraments, and other rites and ceremonies of the Church, according to the use of the United Church of England and Ireland.' The Act on Petition further stated that Mr. Gorham had published an account of the examination, and, in part supply of proof, it referred to the said book, brought into the Registry. The answer of Mr. Gorham, after admitting the book Answer brought in by the Bishop to have been published by him, and that the contents were true and accurate, distinctly and emphatically denied that he at any time maintained unsound doctrines respecting the efficacy of the Sacrament of Baptism, or that he held opinions thereon at variance with the plain teaching of the Church of England in her Articles and Liturgy ; it further denied that he held that infants are not made in Baptism members of Christ and children of God, and alleged that he did not maintain any views whatsoever contrary to the true doctrine of the Church of England, as dogmatically determined in her Articles, familiarly taught in her Catechism, and devotion- ally expressed in her Services, it having been his desire and endeavour throughout his examination to explain the language both of her Articles and Liturgy (in compliance with the express directions of the Church herself), by such 'just and favourable construction' as would secure an entire agreement, not only of each with the others, but of all alike with the plain tenor of Holy Scripture, declared by the Articles to be of paramount and absolute authority. After a rejoinder from the Bishop, and an affidavit from Mr. Gorham, verifying the statements contained in his answer, the cause came on for hearing before Sir Serhert Jewner Fust, the Dean of the Arches Court, on January 31, and again on February 17 and 27, and on March 1, 3, 6, 16 *' Privy Council Judgments. ] 8i9. and 10, 1848. Dr. Addmns and Dr. Bohmson were for the GoEHAM Bishop ; Dr. Bayford for Mr. OorJiami. Bishop OF '^^^ judgment of the Dean of the Arches was delivered BxKTER. on August 2, 1849. After recapitulating the circumstances statement. ^^ ^j^g gg^g^ ^jjg learned Judge showed that the issue tte c^S;*"? ^^^ narrowed to the question of the efficacy of infant the Arches. Baptism. He declared the Articles to be prima facie the standard of doctrine ; hut held that, if the Articles were silent on any controverted point, the rormularies of the Church must be consulted. As to Baptism, the Articles declared that it is of use only to those that worthily re- cecive it ; but they do not state in what worthy reception consists. But the Formularies declare that a child ' is by Baptism regenerate,' and as this declaration is uncondi- tional in the Service for Private Baptism, it must be taken as unconditional in the Service for Public Baptism. So long as the Articles and Services of the Church are recon- cileable, and not only reconcileable, but necessarily con- sistent, the learned Judge held that he must construe them together. If a doctrine were laid down in the Baptismal and other Services and in the Rubrics, he must look to that source for his guide, if the Articles were silent on the point, and not indulge in fancy, explaining it by the opinions ex- pressed by private individuals. He accordingly came to the following conclusion : — ^That, as the doctrine of the Church of JEnglcmd undoubtedly is, that children baptised are regenerated at Baptism, and are undoubtedly saved if they die without committing actual sin, Mr. Gorham has maintained, and does maintain, opinions opposed to that Church of which he professes himself a member and mi- nister ; and, further, that the Bishop had shown sufficient cause why he should not institute Mr. Gm-Jiam to the living of Brampford SpeJce, and that he was entitled to be dis- missed, with costs. Appeal to Prom this decree Mr. Gorham having appealed to her Privy coim- j^iajesty in Council, the appeal came on to be heard on December 11, 1849. Mr. Twrner, Q.C., and Dr. Bayford for the Appellant ; Dr. Adda/ms and Mr. Badeley for the Respondent. Privy Council Judgments. 17 After argument, judgment was reserved to March 8, 1849. 1850, when the following judgment was read by Gorham LOKD LaNGDALE : — * Bishop of EXUTEK. This is an appeal hy the Reverend George Cornelius Gar- ham against the sentence of the Dean of the Arches Court isso. of GoMterhury in a proceeding called a Duplex Querela, in Committee which the Right Reverend the Lord Bishop of Exeter, at counSh the instance of Mr. Gorham, was called upon to show cause why he had refused to institute Mr. Gorham to the Vicarage of Brampford SpeJce. The Judge pronounced that the Bishop had shown suflB.- cient cause for his refusal, and thereupon dismissed him from all further observance of justice in the premises, and, moreover, condemned Mr. Gorham in costs. From this sentence Mr. Gorham appealed to her Majesty in Council. The case was referred by her Ma- jesty to this Committee. It has been fully heard before us ; and, by the direction of her Majesty, the hearing was attended by my Lords the Archbishops of Ganterhit/ry and YorTc and the Bishop of London, who are members of her Majesty's Privy Council. We have the satisfaction of being authorised to state that the Most Reverend Prelates the Archbishops of Canterbury and York, after perusing copies of our judgment, have expressed their approbation thereof. The Right Reverend the Lord Bishop of London does not concur therein. The facts, so far as it is necessary to state them, are as follows : — Mr. Gorham being Vicar of St. Just in Pemwith, in the statement ' Diocese of Exeter, on November 2, 1847, was presented by °"^<=»^' her Majesty to the Vicarage of Bram,pford Spelce, in the same Diocese, and soon afterwards applied to the Lord Bishop of Exeter for admission and institution to the Vicarage. The Bishop, on November 13, caused Mr. Gorham to * Jlso present : Lord Campbell, Dr. LushingtoD, Mr. Pemberton Leigh (Lord Engsdown). C 18 1850. GORHAM V. Bishop op Exeter. Judgment. Befusal to institnte. Proceedings in Court of the AroheB. " Privy Council Judgw,ents. be informed, that his Lordship felt it his duty to ascer- tain by examination, whether Mr. OorTicmn was sound in doctrine before he should be instituted to the Vicarage of Brampford Speke. The examination commenced on December 17, and was continued at very great length for five days in the same month of December, and (after some suspension) for three more days in the following month of March. The questions proposed by the Bishop related principally to the Sacrament of Baptism, and were very numerous, much varied in form, embracing many points of difficulty, and often referring to the answers given to previous questions. Mr. Gorham did not at first object to the nature of the examination ; but, during its progress, he at various times remonstrated against the manner in which it was con- ducted, and the length to which it extended. "We are, however, relieved from the necessity of considering whe- ther he could, or could not, lawfully have declined to ■submit to such a course of examination ; because he did, in fact, answer nearly all the questions, and no complaint is made of his not having answered them all. The examination being concluded, the Bishop refused to institute Mr. Oorham for the reason (as stated in the noti- fication) that he had, upon examination, found Mr. Gorham unfit to fill the Vicarage, by reason of his holding doctrines contrary to the true Christian faith, and the doctrines contained in the Articles and Tormularies of the United Church of England and Irelcmd, and especially in the Book of Common Prayer, administration of the Sacraments, and other rites and ceremonies of the Church, according to the use of the United Church, of England and Ireland. Mr. Gorlia/m, being refused institution, commenced pro- ceedings in the Arches Court of Canterbury ; and at his promotion a monition with intimation issued on June 15, 1848, and thereby the Bishop was monished to ad- mit Mr. Gorham to the Vicarage, and to institute and invest him therein; or otherwise to appear and show cause why Mr. Gorham should not be admitted and in- Privy, Council Judgments. 19 stituted by the Official Principal of the Arches Court of 1850. Oanierhuni. „ ,, , GORHAM After litigation had thus commenced, and Mr. Gorliam „ "• , , - ° ' Bishop oc nad. called upon the Bishop to state why institution was bxei-eh. refused, it became evident that the reasons must be con- /"'Jgme'rt. sidered upon legal principles, and it was perhaps reason- ably to be expected that both parties would require a strict and formal proceeding, in which what was the particular unsound doctrine imputed to Mr. Gorham would have been distinctly alleged which constituted his alleged offence. Unfortunately this course was not adopted. The Bishop Acton proceeded by Act on Petition % and in his Act he stated his charge against Mr. OorJiam, and alleged that it ap- peared to him, in the course of the examination, that Mr. Gorham was of unsound doctrine respecting that great and fundamental point of Baptism, inasmuch as Mr. Gorham held, and persisted in holding, that spiritual regeneration is not given or conferred in the holy Sacrament in parti- cular — that infants are not made members of Christ and the children of God — contrary to the plain teaching of the Church of England, in her Articles and Liturgy, and especially contrary to the divers ofi&ces of Baptism, the office of Confirmation, and the Catechism, severally con- tained in the Book of Common Prayer, and administration of the Sacraments, and other rites and ceremonies of the Church, according to the use of the United Church of England and Ireland. In part supply of proof of the premises, the Bishop referred to a book written and caused to be printed by Mr. Gorham, containing, amongst other things, the several questions put by the Bishop to Mr. Gorham in the course of the examination, and Mr. Gorham' a several ■ answers to the same questions. Mr. Gorham made no objection to the mode of proceed- ^^^'' ing by Act on Petition, but put in his Answer thereto ; Gorham. and thereby, after alleging that the book published by him, and brought into Court by the Bishop, ' contained a full, true, an^ accurate account of all the questions and answers which were given in the course of the examination,' he ' c2 20 1830. Bishop of Exeter. Judgment. Defects in the pleadings. Privy Council Judgments. distinctly and emphatically denied that he, in his examin- ation, did maintain, or had at any time maintained, unsound doctrine respecting the efficacy of the Sacrament of Baptism ; or that he had held, or persisted in holding, any opinions thereon at variance with the plain teaching of the Church of England in her Articles and Liturgy ; and fqI^;he^ ex- plicitly and expressly denied that he either held, or persisted in holding, that infants are not made in Baptism members of Christ and children of God ; and he alleged that he did not maintain any views whatever contrary to the true doctrine of the Church of Englcmd, as dogmatically deter- mined in her Articles, familiarly taught in her Catechism, and devotionally expressed in her Services, it having been his desire and endeavour throughout the examination to explain the language both of her direct Articles and Liturgy (in compliance with the expressions of the Church herself) by such just and favourable construction as would secure an entire agreement, not only of each with the other, but of all alike, with the plain tenor of Holy Scrip- ture declared by the said Articles to be of paramount and absolute authority. The Bishop replied to Mr. Gorham's answers generally. The book published by Mr. Oorham was the only evidence adduced on either side ; and with such allegations as are contained in the Bishop's Act on Petition and Mr. Qorham's Answer, the case was brought on to be heard, with no statement on the part of the Bishop of what was, in his Lordship's view, the true doctrine of the Church of Englcmd, in respect of the efficacy of the Bap- tism either of adults or infants ; nor any specification of the doctrine imputed to Mr. Oorham, except the general charge before stated ; and no distinct statement on the part of Mr. Oorham of what, in his view, is the true doctrine of the Church of England — what is the particular doctrine which himself maintains on the subject in question, or in :• what particulars, or for what particular expressions, he requires the just and favourable construction which he considers to be necessary and sufficient to secure the entire agreement between the Articles and the Liturgy and his doctrine. As this form of pleading was acquiesced in on Privy Council Judgments. 21 Bishop ok EXETEIt. Judgment, ' 1> • both sides, noither party has any reason to complain of the 1850. other ; but those who are called upon to judge of the mat- Gomn^y ters in difference have great reason to complain that, instead of their attention being directed, as it ought to have been, to specific propositions distinctly stated, and to the evidence directly applicable to those propositions, instead of having a specific and precise statement of that which the Bishop alleged to be the doctrine of the Church of England upon the matters in question, and upon which he meant to rely, and of the specific doctrine held or im- puted to Mr. Oorham and alleged to be unsound, the case is brought forward and left in siich a form that, with- out being supplied with any allegations distinctly stated, or any issue distinctly joined, we are required minutely and accurately to examine a long series of questions and answers — questions upon a subject of a very abstruse nature, intri- cate, perplexing, entangling, and many of them not admit- ting of distinct and explicit answers ; and answers not ' given plainly and directly, but in a guarded and cautious manner, with the apparent view of escaping from some apprehended consequences of plain and direct answers. The inconvenience of this course of proceeding is so great, and the difficulty of coming to a right conclusion is thereby so unnecessarily increased, that, in our opinion, the Judge below would have been well justified in refusing to pro- nounce any opinion upon the case as appearing upon such pleadings, and in requiring the parties, even at the last moment, to bring forth the case in a regular manner by plea and proof. The case comes before us precisely in the same state ; and although the Counsel on both sides have used their best endeavours to remove the vagueness and uncertainty found in the pleadings, as well as in the examination, and have thereby much assisted us, they have not been able entirely to remove the difficulty. In considering the examination, which is the only evi- considera- dence, we must have regard not only to the particular IoaS'^' question to which each answer is subjoined, but to the general scope, object, and character of the whole examina- examm- ation. 22 1850. GORHAM r. Bishop of EkI'^TER. Judgment. Doctrine of Baptism as bald by Mr. Gorham. Question to be decided by the Com- mittee, Principles of construc- tion to be adhered to. Privy Council Judgments. tion ; and if, under circumstances so peculiar and perplex-,' ing, some of tte answers sliould be found difiBcult to be reconciled with one another (as we think is the case), jus- tice requires that an endeavour should be made to reconcile them in such a manner as to obtain the result which ap- pears most consistent with the general intention of Mr. Gorhani in the exposition of his doctrine and opinions. Adopting this course, the doctrine held by Mr. GorJiam appears to be this : that Baptism is a sacrament generally necessary to salvation, but that the grace of regeneration does not so necessarily accompany the act of Baptism that regeneration invariably takes place in Baptism ; that the grace may be granted before, in, or after Baptism ; that Baptism is an effectual sign of grace, by which God works invisibly in us, but only in such as worthily receive it — in them alone it has a wholesome effect — and that, without reference to the qualification of the recipient, it is not in itself an effectual sign of grace ; that infants baptised, and dying before actual sin, are certainly saved ; but that in no case is regeneration in Baptism tinconditional. These being, as we collect them, the opinions of Mr. Gorliam, the question, which we have to decide is, not whether they are theologically sound or unsound — not whether upon some of the doctrines comprised in- the opinions, other opinions opposite to them may or may not be held with equal or even greater reason by other learned and pious Ministers of the Church — but whether these opinions now under our consideration are contrary or re- pugnant to the doctrines which the Church of England, by its Articles, Formularies, and Rubrics, requires to be held by its Ministers, so that upon the ground of these opinions the Appellant can lawfully be excluded from the benefice" to which he has been presented. This question must be decided by the Articles and the Liturgy ; and we must apply to the constrnction of those books the same rules which have been long established, and are by law applicable to the construction of all written instruments. We must endeavour to attain for ourselves the true meaning of the language employed, assisted only Privy Council Judgments. 23 by the consideration of sucli external or historical facts as 1850. we may find necessary to enable us to understand the GoraAM subject-matter to which the instruments relate, and the, Bj^jiop^j, meaning of the words em.ployed. Exkieh. In our endeavour to ascertain the true meaning and /"''g™'^"*-, effect of the Articles, Formularies, and Eubrics, we must by no means intentionally swerve from the old-established rules of construction, or depart from the principles which have received the sanction and approbation, of the most learned persons in times past, as being on the whole the best calculated to determine the true meaning of the docu- ments to be examined. If these principles were not ad- hered to, all the rights, both spiritual and temporal, of her Majesty's subjects would be endangered. As the subiect-inatter is doctrine, and its application to Doctrinal ,. , ,. ., . , . , , , ,-,,,■, characterof a particular question, it is material to observe that there Articles and ■were different doctrines or opinions prevailing or under ' '"'*3'- discussion at the times when the Articles and Liturgy were framed, and ultimately made part of the Law; but we are not to be in any way influenced by the particular opinions of the eminent men who propounded them or discussed them, or by the authorities . by which they may be supposed to have been influenced, or by any supposed tendency to give preponderance to Calvinistic or Arminian doctrines. The Articles and Liturgy, as we now have them, must be considered as the final result of the discussion which took place — not the representation of the opinions of any particular men, Calvinistic, Arminian, or any other, but the conclusion which we must presume to have been deduced from a due consideration of all the circumstances of the case, including both the sources from which the declared doctrine was derived, and the erroneous opinions which were to be corrected. It appears, from the resolutions and discussions of the Variety ot Church itself, and from the history of the time, that from the Churob. the first dawn of the Reformation until the final settlement of the Articles and Pormularies, the Church was harassed by a great variety of opinions respecting Baptism and its efficacy, as well as upon other matters of doctrine. Bishop op 24 Privy Council Judgments. 1850. The Charch having resolved to frame Articles of Faith, as a means of avoiding diversities of opinion and establish- ing consent touching true religion, must be presumed to fixETEii. have desh-ed to accomplish that object as far as it could, jndgment^ and to have decided such of the questions then- under discussion as it was thought proper, prudent, and practi- cable to decide.- The Articles ^^^ it could not have been intended to attempt the deofdeaii determination of all the questions which had arisen or questions. might arise, or to include in the Articles an authoritative statement of all Christian doctrine ; and in makiag the necessary selection of those points which it was intended to decide, we may be allowed to presume that regard was had to the points deemed most important to be made known to, and to be accepted by, the members of' the Church, and to those questions upon which the members of the Church could agree, and that other points and other questions were left for future decision by competent authority, and in the meantime to the private judgment of pious and conscientious persons. Someiati- Under such circumstances, it would perhaps have been tc^retaSon impossible, even if it had been thought desirable, to employ oUffwed language which did not admit of some latitude of interpret- ation. If the latitude were confined within such Umits as might be allowed without danger to any doctrine necessary to salvation, the possible or probable difference of interpret- ation may have been designedly intended, even by the framers of the Articles themselves ; and in all cases in which the Articles considered as a test admit of different interpretations, it must be held that any sense of which the words fairly admit may be allowed, if that sense be not contradictory to something which the Church has else- where allowed or required ; and, in such a case, it seems perfectly right to conclude that those who imposed the ^ test, command no more than the form of the words em- ployed ia their literal and grammatical sense conveys or implies ; and that those who agree to them are entitled to such latitude or diversity of intsrpretation as the same form admits. Privy Council Judgments. 25 If it were supposed tliat all points of doctrine were 1850. decided by the Church of Unglamd, the law could not con- g^omam sider any point as left doubtful. The .application of the ^jg/op ^j, law, or the doctrine of the Church of England, to any exeteii. theological questions which arose, must be the subject of .J°'^g°"'"*-, decision ; and the decision would be governed by the con- struction of the terms in which the doctrine of the Church is expressed-^viz. the construction which on the whole would seem most likely to be right. But if the case be, as undoubtedly it is, that in the Ambiguous Church of Englcmd many points of theological doctrine mStoTft have not been decided, then the first and great question j°^ij^e^ which arises in such cases as the present is, whether the disputed point is or was meant to be settled at all, or whether it is left open for each member of the Church to' decide for himself according to his own conscientious opinion. If there be any doctrine on which the Articles are silent or ambiguously expressed, so as to be capable of two meanings, we must suppose that it was intended to leave that doctrine to private judgment, unless the Rubrics and Formularies clearly and distinctly decide it. If they do, we must conclude that the doctrine so decided is the doctrine of the Church. But, on the other hand, if the expressions used in the Rubrics and Formularies are am- biguous, it is not to be concluded that the Church meant to establish indirectly as a doctrine that which it did not es- tablish directly as such by the Articles of Faith — the code avowedly made for the avoiding of diversities of opinion and for the establishing of consent touching true religion. We must proceed, therefore, with the freedom which the Application administration of the Law requires, to examine the Articles °j i^^?et- and the Prayer Book for the purpose of discovering what **'°°' it is, if anything, which, by the Law of Englcmd, or the doctrine of the Church of England as by Law established, is declared as to the matter now. in question, and to ascertain whether the doctrine held by Mr. Gorham, as we understand it to be disclosed in his examination, is directly contrary or repugnant to the doctrine of the Church. 26 1850. GORIIAM f. Bishop of Exeter. Judgment. Effect of Articles alone. Articles of 1S36. 'The King's Book' i; o£ Privy Council Judgments. Considering, first, the effect of the Articles alone, it is material to observe that very difi"erent opinions as to the Sacrament of Baptism were held by different promoters of the Reformation, and that great alterations were made in the Arbicles themselves upon that subject. The Articles about religion, drawn up in 1536, state it is offered unto all men, as well infants as such as hare the use of reason, that by Baptism they shall have remission of sin, and the grace and favour of God ; that the promise of grace and everlasting life (which promise is adjoined to the Sacrament of Baptism) pertaineth not only to such as have the gift of reason, but also to infants, innocents, and children ; and that they ought, therefore, and must needs be baptised ; and that by the Sacrament of Baptism they do also obtain remission of their sin, the grace and favour of God, and be made thereby the sons and children of God. Inasmuch as infants and children dying in their infancy shall undoubtedly be saved thereby, or else not. That infants must needs be christened, because they be born in original sin, which sin must needs be remitted, which cannot be done but by the Sacrament of Baptism, whereby they receive the Holy Ghost, which executes His grace and efficacy in them, and cleanseth and purifieth them from sin by His secret virtue and operation ; and that men and children, having . the use of reason and willing and desiring to be baptised, shall, by virtue of that holy Sacra- ment, obtain the grace and remission of all their sins, if they shall come perfectly and truly repentant, and contrite of all their sins before committed, and also perfectly and constantly confessing and believing all the Articles of our faith ; and, finally, if they shall also have a firm credence and trust in the promise of God adjoined to the Sacrament — that is to say, that in and by this said Sacrament, which they shall receive, God the Father giveth unto them, for His Son Jesus Christ's sake, remission of all their sins, and the grace of the Holy Ghost, wh^ereby they be newly re- generated, and made the very children of God, etc. In the book entitled 'A Necessary Doctrine for any Christian Man,' and called ' The King's Book,' which was Privy Council Judgments. 27 G-OIUIAM ]'. Bishop ov Exeter. Judgment. publislied in 1543, it is. thus stated : — ' Because all men be 1850. born sinners,' 'and cannot be saved -without remission of their sins, which is given in. Baptism by the working of the Holy Ghost, therefore the Sacrament of Baptism is necessary for the attaining of salvation and everlasting life.' ' For which causes also it is offered, and pertaineth to all men, not only such as have the use of reason, in whom the same duly received taketh away and purgeth all kinds of sins, both original and actual, committed and done before their Baptism ; but also it appertaineth and is offered unto infants, which, because they be born in original sin, have need and ought to be christened, whereby they, being offered in the faith of the Church, receive forgive- ness of their sins, and such grace of the Holy Ghost that, if they die in the state of their infancy, they shall un- doubtedly be saved. Because as well this Sacrament of Baptism, as all other sacraments instituted by Christ, have all their virtue, efficacy, and strength by the Word of God, which by His Holy Spirit worketh all the graces and virtues which be given by the sacraments to all those that worthily receive the same,' etc. The Articles of 1562 and 1562 adopt very different language from the Articles of 1636, and have special regard to the qualification of worthy and right reception. The 25th Article of 1562 distinctly states that in such only as worthily receive the same the sacraments have a wholesome effect or operation. The Article on Baptism, in describing the blessings conferred by it, speaks only of those who receive it rightly ; and, with respect to infants, instead of saying, in the language of the Articles of 1530, that ' they obtain remission of their sins and the grace and favour of God by Baptism, and that, dying in their infancy, they shall be undoubtedly saved thereby, or else not,' it declares only ' that Baptism of young children is in any- wise to be retained in the Church, as most agreeable with the institution of Christ,' stating nothing distinctly as to the state of such infants, whether baptised or not. The Articles of 1536 have expressly determined two Articles of points^ — 1, that baptised infants, dying before the commis- 1562 dL tinguished. Articles of 15.52 and 1562. 28 1850. Bl<«OP OF Exeter. .Tudgment. Points left open by Articles. On tliese points differ- ence of opinion has existed. Privy Council Judgments. sion of actual sin, were undoubtedly saved thereby ; 2, that un baptised infants were not saved. The Articles of 1562 say nothing expressly upon either point, but, not distinguishing the case of infants from that of adults, state in general terms that those who receive Baptism rightly have the benefits there mentioned conferred. What is signified by right reception is not determined by the Articles. Mr. Oorham says that the expression always means or implies a fit state to receive — viz., in the case of adults, * with faith and repentance,' and, in the case of infants, ' with Grod's grace and favour.' On a consideration of the Articles, it appears that, besides this particular point, there are others which are left undecided. It is not particularly declared what is the distinct meaning and effect of the grace of regeneration^ whether it is a change of nature, a change of condition, or a change of the relation subsisting between sinful man and his Creator — and there are other points which may very plainly be open to different considerations in different cases. Upon the points which were left open differences 'of opinion could not be avoided, even amongst those who sincerely subscribed to the Articles ; and that such differ- ences amongst such persons were thought consistent with subscription to the Articles, and were not contemplated with disapprobation, appears from a passage in the Royal Declaration now prefixed to the Articles, and which was first added in the reign of King Charles I., long after the Articles were finally settled. ' Though some differences have been ill-raised, yet we taike comfort in this, that all Clergymen within our realm have always most willingly subscribed to the Articles established ; which is an argu- ment to us, that they all agree in the true usual literal meaning of the said Articles, and that, even in those curious points in which the present differences lie, men. of all sorts take the Articles of the Church of UnglanA to be for them ; which is an argument, again, that none of them intend any desertion of the Articles established.' Privy Council Judgments. 29 If the Articles whicli constitute tlie Code of Faith, and 1850. from which any differences are prohibited, nevertheless xjorhIm contain expressions which nnavoidably admit of different ^j^jj^p „,,, constructions — and members of the Church are left at exeteu. liberty to draw from the Articles different inferences in •^"'^^™*-- matters of faith not expressly decided, and upon such Latitude to • , , .,,..,. T , be allowed points to exercise their private judgments — we may reason- in mterpret- ably expect to find such differences of opinion allowable in aevotionai the interpretation of the devotional services, which were ^^roises. framed not for the purpose of determiaing points of faith, but of establishing (to use the expression of the statute of mizabeth) an uniform order of Common Prayer, and of the administration of sacraments, rites, and ceremonies of the Church of Englcmd. In considering the Book of Common Prayer, it must be Tripartite observed that there are parts of it which are strictly dog- prayer matical, declaring what is to be believed or not doubted ; "'' ' parts which are instructional, and parts which consist of devotional exercises and services. Those parts which are in their nature dogmatical must be considered as declara- tory of doctrine ; but as to those parts which are devotional, consisting of prayers framed for the purpose of being ' more earnest, and fit to stir Christian people to the due honouring of Almighty God,' some further consideration is necessary. It seems to be properly said that devotional exercises Deyotionai cannot be evidence of faith or of doctrine, without re- not as of ference to the distinct declarations of doctrine in the evwenoeof Articles, and to the faith, hope, and charity by which the ^o"*""*- Formularies profess to be inspired or accompanied ; and there are portions of the Liturgy which it is plain cannot be construed plainly without regard to these considerations. For the proof of this, the instance which seems to be most instanoeiot usually cited, and which is conclusive, is the Service for the se^«>. Burial of the Dead. So far as our knowledge and powers of conception extend, there are and must be at least some persons not excommunicated from the Church who, having lived lives of sin, die impenitent — nay, some who die and perish in the actual commission of flagrant crimes — ^yet in 30 Privy Council Judgments. 1 850. Bishop op Judgment. Absolute expressions to be con- strued in a qualified sense. Tl^asons for this. every case in the Burial Service, as the earth is cast upon the dead body, the Priest is directed to say, and he does say, ' Forasmuch as it hath pleased Alnaighty God, of His great mercy, to take unto Himself the soul of our dear brother here departed, we therefore commit his body to the ground, earth to earth, ashes to ashes, dust to dust, in sure and certain hope of the resurrection to eternal life ; ' and thanks are afterwards given: — ' For, that it hath pleased Almighty God to deliver this our brother out of the miseries of this sinful world ; ' and this is followed by a collect, in which it is prayed, ' that when we shall depart this life we may rest in God, as our hope is this our brother doth.' The hope here expressed is the same ' sure and cer- tain hope of the resurrection to eternal life ' which is stated immediately after the expression, ' It hath pleased Almighty God, of His great mercy, to take to Himself the soul of our brother here departed.' In this Service, therefore, there are absolute expressions implying positive assei'tions ; yet it is admitted that they cannot be literally true in all cases, but must be construed in a qualified or charitable sense — justified, we may believe, by a confident hope and reliance that the expression is literally true in many cases, and may be true even in the particular case in which to us it seems improperly applied. From this and other cases of the like kind, of which there are several in the Services, it seems manifest that devo- tional expressions, involving assertions, must not, as of course, be taken to bear an absolute and unconditional sense. The meaning must be ascertained by a careful con- sideration of the nature of the subject, and the true doc- trine applicable to it. If expressions in devotional exercises, and exhortations which imply or convey assertions which certainly may he true in some cases, and which we are permitted in charity to hope may be true in the particular cases to which we are directed to apply them, were such that the assertions must be accepted as universal propositions necessarily and unconditionally true in all cases, they would amount to declarations of doctrine ; but in the Service for the Burial Privy Council Judgments. 31 of the Dead such implied assertions are clearly not to be 1850. taken to be universal propositions ; and it is plain tliat gotuiam other assertions of the like kiad, in other Services, may fall ^ '^p ^„ within the same category. exeteii. In the office for the administration of the Public Baptism J^^p"'"*. _ of Infants, the first Rubric states the reason why it is con- consMera- venient that the administration should be when the most jana for number of people come together. The reasons are stated, Baptism of ' as well for that the congregation there present may testify ii>**"*^' the receiving of them that be now baptised into the num- ber of Christ's Church, and also because, in the Baptism of Infants, every man present may be put in remembrance of his own profession made to God in his Baptism.' There is a prayer for the infant, ' that he (being delivered from wrath) may be received into the ark of Christ's Church ; and, being stedfast in faith, joyful through hope, and rooted in charity, naiay so pass the waves of this troublesome world that he may come to everlasting life. Another prayer that the infant coming to God's holy Baptism may receive re- mission of his sins by spiritual regeneration ; and an exhort- ation to the congregation, or to those present, not to doubt, but earnestly to believe, that God will favourably receive the present infant, and give unto him the blessing of eter- nal life. ' "Wherefore, we being persuaded of the good will of our heavenly Father towards this infant, and nothing doubting but that He favourably alloweth this charitable work of ours in bringing this infant to his holy Baptism, let us faithfully and devoutly give thanks to Him. And in the prayer which follows it is thus expressed : — ' Give Thy Holy Spirit to this infant, that he may be born again, and made an heir of everlasting salvation.' Before the cere- mony is performed the sponsors are questioned, and make their answers ; and then comes the prayer in which it is said, ' Regard, we beseech Thee, the supplications of this congregation ; sanctify this water to the mystical washing away of sin ; and grant that this child, now to be bap- tised therein, may receive the fullness of Thy grace, and ever remain in the number of Thy faithful and elect chil- dren.' Thus studiously, in the introductory part of the 32 I860. GORHAM V. Bishop op Exeter. Judgment. and of Private Baptism of Infants. Exceptional nature of this Service. Privy Council Jn'dgments. Service, is prayer made for the grace of God, that the child may receive remission of his sias by spiritual regener- ation ; — so firm is the belief expressed that God vrall favour- ably receive the infant — so confident is the negation of all doubt, but that God favourably alloweth the charitable work of bringing the infanf to Baptism. All this is before the ceremony is actually performed ; and after the Baptism has been administered, and during the continu- ance of the same persuasion, and the same undoubting confidence of a favourable reception and allowance, the Priest is directed to say, ' Seeing now that this child is re- generate, and grafted into the Church, let us give thanks unto Almighty God for these benefits ; * and after repeating the Lord's Prayer thanks are thus given : — 'We yield Thee hearty thanks that it hath pleased Thee to regenerate this infant with Thy Holy Spirit, to receive him for Thine own child by adoption, and to incorporate him into Thy Holy Church.' The Service is followed by the Rubric :— ' It is certain by God's Word that children who are baptised, dying before they commit actual sin, are undoubtedly saved.' And to the short form for the administration of Private Baptism of Children in Houses, after a thanksgiving, ' For that it hath pleased God to regenerate this infant with His Holy Spirit, and to receive him as His own child by adoption, and to incorporate him into His Holy Church,' there is appended a Rubric :—'' And let them not doubt but that the child so baptised is lawfully and sufficiently baptised, and ought not to be baptised again. And if the child has not been so baptised by the Minister of the parish, but by some other, the Minister of the parish is to require by whom, with what matter, and with what words the child was baptised ; and, if satisfied, he is to certify that all is well done, and that the child, being bom in sin, and in the wrath of God, is now, by the laver of regeneration of Bap- tism, received into the number of the children of God and heirs of everlasting life. The Baptism thus referred to, and the effect of which is thus stated or expressed, is a Baptism which may have taken place without any prayer for grace or any sponsors ; Privy Council Judgments. 33 18S0. GORHAM V. Bishop op EXKTER, Judgment, but it seems p]ainly to have been intended only for cases of emergency, in whicli death might probably prevent the cerem.ony, if not immediately performed. For such occa- sions, and the child dying, the Church holds the Baptism sufficient, and not to be repeated. One Baptism for the remission of sins is acknowledged by the Church. Never- theless, if the child, which is after this sort baptised, do afterwards live, the Rubric declares the expediency of bringing it into the Church, and appoints a further cere- mony, with sponsors. The Private Baptism of Infants is ' an exceptional case, provided for an emergency, and for which, if the emergency passes away, although there is to be no repetition of the Baptism, a full service is provided. The adult person is not pronounced regenerate until he has first declared his faith and repentance ; and before the act of infant Baptism, the child is pledged by his sure- ties to the same conditions of faith and repentance. And these requirements of the Church, in her complete and per- fect Service, ought, upon a just construction of all the Services, to be conside'red as the rule of the Church, and taken as proof that the same promise, though not ex- pressed, is implied in the exceptional case, when the rite is administered in the expectation of immediate death, and the exigency of the case does not admit of sureties. Any other conclusion would be an argument to prove that none but the imperfect and incomplete- ceremony allowed in the exceptional case would be necessary in any case. This view of the Baptismal Service is, in our opinion, Considcra- confirmed by the Catechism, in which, although the CatecMsm respondent is made to state that in his Baptism he 'was bearing oa made a member of Christ, the child of God, and an inhe- ^on*^"^^" ritor of the kingdom of heaven,' it is still declared that repentance and faith are required of persons to be bap- tised ; and when the question is asked, ' Why, then, are infants baptised, when, by reason of their tender age, they cannot perform them ? ' the answer is, not that infants are baptised because of their innocence they cannot be unworthy recipients — cannot present an obex, or hindrance, to the grace of regeneration, and are therefore fit subjects D 1850. GrORHAM^ Bishop ot ExE-fER. Judgment. In other Services expressions must receive a qualified construc- tion. 34 Privy ■ Council Judgments. for Divine grace — but ' because they promise them both by their sureties, which prom.ise, when they come to age, themselves are bound to perform.' The answer has direct reference to the condition on which the benefit is to depend, and tlie whole Catechism requires a qualified, or charitable consti'uction, such as must be given to the expression, ' Grod the Holy Ghost, who sanctifieth me and all the elect people of God.' It seems unnecessary for us to go through the other Formularies in the Prayer Book. The Services abound with expressions which must be construed in a , charitable and qualified sense, and cannot with any appearance of reason be taken as proofs of doctrine. Our principal attention has been given to the Baptismal Services ; and those who are strongly impressed with the earnest prayers which are offered for the Divine blessing, and the grace of God, may not unreasonably suppose that the grace is not necessarily tied to the rite ; but that it ought to be earnestly and de- voutly prayed for, in order that it may then, or when God ple^pes, be present to make the rite beneficial. One of the points left open by the Articles is determined by the Rubric : — ' It is certain by God's Word that children which are baptised, dying before they commit actual sin, are undoubtedly saved.' But this Rubric does not, like the Article of 1536, say that such children are saved by Bap- tism ; and nothing is declared as to the case of infants dying without having been baptised. There are other points of doctrine respecting the Sacra- ment of Baptism which we are of opinion are, by thefRubrics and Formularies (as well as the Articles), capable of being honestly understood in different senses ; and consequentljj^ we think that, as to them, the points which were left unde- termined by the Articles are not decided by the Rubrics and "' Formularies ; and that upon these points all Ministers of the Church, having duly made the subscriptions "required by Law (and .taking Holy Soripiture for their guide) are at liberty honestly to exercise their private judgment without lOfience or censure. of qStol UP"g^* and conscientious men cannot in all respects Private judgment may be exercised on points uude- termined. Gorham, Privy Council Judgments. 35 agree upon subjects so difficult; and it must be carefully 1850. borne in mind that the question, and tbe only question, for gk^m us to decide, is, whether Mr. Oorham's doctrine is- contrary -q^^^^^ qi, or repugnant to the doctrine of the Church of Englcmd, as - bxbter. ' by Law established. Mr. Oorham's doctrine may be con- •^'"^^°°*-. trary to the opinions entertained by many learned and as to Mr. 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 de- duced from the usages and doctrines of the Primitive Church, or contrary to the opinion which they have de- duced 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 Ungla/nd, as by Law established, it cannot afford a legal ground for refusing him institution to the living to which he has been lawfully presented. This Court, constituted for the purpose of advising her Lima of the Majesty in maitters which come within its competency, has of the Comt. no jurisdiction or authority to settle matters of faith, or to determine what ought in any particular to be. the doctrine of the Church of Ungland. Its duty extends only to the consideration of that which is by Law established to be the doctrine of the Church of Ungla/nxL, upon the true and legal construction of her Articles and Formularies ; and we consider that it is not the duty of any Court to be minute and rigid in cases of this sort. We agree with Sir William Scott in the opinion which he expressed in Stone's case, in the Consistory Court of London — ' 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,' In the examination of this case, we have not relied on the opinions of doctrinal opinions of any of the eminent writers by whose vines not piety, learning, and ability, the Church of .Ewg'Zami has been abie'from distinguished; but it appears that opinions, which we cannot H?^SmT in any important particular distinguish from those enter- tained by Mr. Gorham, have been propounded and main- D 2 1850. GORHAM V. Bishop or BxErrER. Judgment. 36 Privy Council Judgments. tamed, without censure or reproach, by many eminent and illustrious 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, Sooker, Usher, Jeremy Taylor, Whitgift, Pegrson, Garleton, PrideoMx, and many others can be received as evidence of the doctrine of the Church of England; but their conduct, unblamed and unquestioned as it was, proves, at least, the liberty which has been allowed of maintaining such doctrine. Jewel. Bishop Jewel writes : ' This marvellous conjunction and incorporation with God is first begun and wrought by faith.' . . . ' Afterward the same incorporation is assured unto us, and increased in our Baptism.' (A B«ply to Mr. Sa/rdmg's Answer. Works, vol. i., pp. 140, 1. Parker Soc. Edit.) Hooker writes : ' We justly hold it to be the door of our actual entrance into God's house, the first apparent begin- ning of life, a seal, perhaps to the grace of election, before received, but to our sanctification here, a step that hath not any before it. (Bccles. PoUty, book v., ch. Ix., § B.) Archbishop Usher, in reply to the question, ' What say you of infants baptised that are bom in the Church ; doth the inward grace in their Baptism always attend upon the outward sign ? ' answers, ' Surely no ; the Sacrament of Baptism is effectual in infants only to those, and to all those, who belong unto the election of grace.' (Usher's Catechism, Works, 8th edit. Quarto. London, 1702. p. 367.) Bishop Jeremy Taylor says : ' Baptism and its effect may be separated, and do not always go in conjunction ; the effect may be before, and therefore much rather may it be after its susception ; the Sacrament operating in the virtue of Christ, even, as the Spirit shall move.' (Life of our Saviour, part iv., § ix. Discourse vi., of Baptism, part ii., § 2.) Wiitgifl. Th«Ee was .even a time when doctrine to this effect was j-equired to be studied in our Charch ; and Whitgift, by a circular issned in the year 1588, enforced an order made in the year 168 7^ whereby every Minister under the degree oi Master of Arts was required to study and take for his Hooker. Usher- Jeremy Tay- lor. Privy Council Judgments. 37 model the Decades of Bullinger, as presented hy tte Queen i860. and Upper House of Convocation. And there it is declared, ^"^^ among numerous passages of a like tendency, ' The first ^ "■ t ■ • » ... .,„ ■" Bishop op begmnmg ot our nunistry with Christ is not wrought by bxetek. the Sacraments. In Baptism that is sealed and confirmeii /"^g^™*-. to infants which they had before.' (Bullinger' s Decaides, p. 1047, col. 2. London, 1587.) So with respect to the charitable interpretation of Diviae Hooker. Services, Hooker says : 'The Church speaks of infants as the rule of charity alloweth both to speak and to think.' * (Eceles. Pol., book v. ch. 65, § 3.) Bishop Pearson says : ' When the means are used with- Pearson. out something appearing to the cojitrary, we ought to presume of the good effect.' (Exp. of Creed, p. 658. Ed. 1849.) Bishop Carleton says : ' All that receive Baptism are Carieton. called the chidren of God, regenerate, justified ; for to us they must be taken for such in charity, until they show themselves other.' (An Examination, etc., in reply to Montagu.) And Bishop Pridewax says : ' Baptism only pledges an Prideaux. external and sacramental regeneration, which the Church in charity pronounces that the Holy Spirit renders an in- ward regeneration.' (AppeUo Ceesarem, p. 193. London, 1626.) We express no opinion on the theological accuracy of These opin- these opinions, or any of them. The writers whom we have aence'of the cited are not always consistent with themselves, nor are ^^^\as the reasons upon which they found their positions always iJeen enjoyed vaUd ; and other writers of great eminence, and worthy of Church. 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 re- spected, as well as by very many others, appears to us sufficiently' to prove that the liberty which was left by the * It is pointed out by Mr. E. F. Moore, in his Report of this case (London, 1852), that there is a slight inaccuracy in the quotation. The passage should run thus : ' We speak of infants' as the rule of piety alloweth both to speak and to think.' 38 1850. Bishop os* EXETEH. Judgment, Sentence of theConrt. Beversal of judgment of the Bean of the Arches. Privy Council Judgments. Articles and Formularies has been actually enjoyed and exercised by the members and ministers of the Church of Englamd. ' The case not requiring it, we hare abstained from ex- pressing any opinion of our own upon the theological cor- rectness or error of the doctrine held by Mr. Gorham, which was discussed before us at such great length and with so much learning. His Honour the Vice- Chancellor Knight Bruce dissents from our judgment ; but all the other members of the Judicial Committee who were present.at the hearing of the case (those who are now present, and Baron Pa/rke, who is unavoidably absent on circuit) are unani- mously agreed in opinion ; and the judgment of their Lord- ships is, that the doctrine held by Mr. Gorham is not con- trary, or repugnant to the declared doctrine of the Church of England as by Law established, and that Mr. Gorham ought not, by reason of the doctrine held by him, to have been refused admission to the Vicarage of Brampford Bpeke. We shall, therefore, humbly report to her Majesty that the sentence pronounced by the learned Judge ought to be reversed, and that it ought to be declared that the Respond- ent, the Lord Bishop of Exeter, has not shown sufficient cause why he did not institute Mr. Gorham to the said Vicarage. We shall humbly advise her Majesty to remit the cause with that declaration to the Arches Court of Gamterbury, to the end that right and justice may there be done in this matter, pursuant to the said declaration. [On the following day (March 9, 1850) an Order in Council was accordingly made upon their Lordships' judgment and report.] Proceedings in Common Law Courts. April 15, 1850. [It remains, so far as the history of the case is concerned, briefly to allude to the proceedings in the Common Law Courts, whereby an attempt was made by the Respondent to oust the jurisdiction of the Judicial Committee of the Privy Council, as the Court of Pinal Appeal, and to sub- stitute in lieu thereof the Upper House of Convocation, Privy Council Judgments. 39 On the 1st day of Easter Term, April 16, 1860, Sir 1850, Fitzroy Kelly, Q.C., moved in the Queen's Bench for a rule q-^I^m to sho-w cause why a writ of prohibition should not issue ^^g^^ov on- to the Dean of the Arches, and to the Archbishop of Gaii- ^exeter^ terbwy, to prohibit them from requiring the Bishop of Motion for a Exeter to institute the Rev. G. G. Gorham to the Vicarage ™ieto8how t> cause. otBrompford SpeJce, and also to prohibit the said Destn and Argnment o£ Archbishop from institutiag the said G. G. Gorham, or ^™"^^V otherwise carrying into execution her Majesty's Order in CounciJ of March 9, 1850. In support of the motion Counsel contended that, in a matter touching the Crown, an appeal from the Spiritual Court does not lie to the Queen ii Council, but lies to the Upper House of Convo- cation, aid that the dispute as to this presentation is such a matter. He relied on the joint effect of Statutes 24 Hen. VIII., c. 12, and 26 Hen. VIH., c. 19, and contended that, according to 24 Hen. VllL, c. 12, a final resort was per- mitted to the Archbishop's Court in all causes relating to Wills, MaTimony, etc., with exception of causes which touch the King, in which latter cases an appeal lay to the Upper House of Convocation ; that, according to 26 Hen. VIII., c. 19, no sppeal was to be made to Borne in any cause, but all were t» be made in the manner limited in the prior Act, as • regarii Matrimonial and Testamentary suits, with an ulterior sppeal, for lack of justice before the Archbishop's Court, to the King in Chancery. Counsel contended that there we-e excepted from this provision causes which touched 'he Queen, and that they remained subject to the provisioni for appeal to the Upper House of Convocation, as regulated by the Act of 24 Hen. VIII., c. 12. Lord Gimflell (C. J), in pronouncing the judgment of the jnagmtnt in- Court (lord Gampbell, Justices Patteson, Wightman, and BeS.^ Hrle), after disputing the position that, in such a case as that fg^^^' before tie Court, the Legislature ever gave a power to appeal io the Upper House of Convocation, proceeded to enqure into the force and effect of the Statutes relied on by Sir Fitzroy Kelly. Lord Gampbell held that, by the Construe- operatim of 24 Hen, VIII., c, 12, appeals to Borne were dis- Hem.°vm., allowec in all Courts within the spiritual jurisdiction, incauses °' ' ^' 413 Privy Council Judgments. 1830. Q-ORUAM and of 29 Hen. Till., c. 19. Acquiesced in for three centuries Testamentary, Matrimonial, or causes relating to Tithes and Oblations ; that as respecting these three classes of cases, where the matter in contention touched the King, the party aggrieved might apply to the Upper House of Convo- cation. But that in a suit involving the question whether a Clerk presented by the King to a living was of st/und doctrine, the appeal from the Archbishop's Court Vould still have gone to Borne. Further that, as all appeals to Some were abolishbd by 25 Hen. VIII., c. 19, and an appeal in all causes befire the Courts of the Archbishops was granted to the King/ in the King's Court of Chancery, and that as such appeal was accompanied by no reservation as regards- causes t[)uching the King, the interpretation put upon this Statutepy Lord Coke cannot be impugned — namely, that the Statute ex- pressly prohibits appeals to Mome and elsewhere, and enacts that from the Archbishop's Court a fixrthir degree in appeals for all mamner of causes is given to the King in his Chancery, where a commission shall be award id for the determination of the said appeal and no further. (4 Inst., p. 340.) Lord Campbell continued : ' In practice such ii the con- struction put upon the Statute for above three lenturies, without any doubt being started upon the subje(b till the present motion was Taade. During this long period of time, there have been many suits decided in the Arc ibishops' Courts, in which the Crown has been concerned, isspecting Testaments and Tithes, and also of a spiritual natii -e, if this Duplex Querela touches the Queen. We know tha in many of these the decision in the Archbishops' Conrti was not satisfactory. According to what is now contende I for, iihe appeal ought always to have been to the Upper Souse of Convocation. But there is no trace of any suci appeal ever having been brought. On the contrary, there seems every reason to believe that the appeal has uniforiily been to the King in the Court of Chancery, where Commissioners have been appointed, or, in common language, to "tie High Court of Delegates." ' . . . . ■ • 'WerethelanguageofStatute25 Hen. VIII., c. 19, (bscure, Privy Council Judgments. 41 instead of being clear, we should not be justified in differing 1 860. from the censtruction put upon it by contemporaneous and q^j^„ long-established usage. There would be no safety for pro- -^^^^^ perty or liberty, if it could be successfully contended, that _ Exetek. ^ all Lawyers and Statesmen have been mistaken for centuries ^^^ adopted as to the true meaning of an old Act of Parhament. ^Jf^ ' We have been called upon to recollect that the Upper House of Convocation would be ■ a much fitter tribunal Ho™of"?m. than the Judicial Committee to decide such questions, as ment baaed ' ^ ' on public were m the appeal between Mr. Oorham and the Bishop of poucy. Exeier ; but if these, and likewise questions about Marriages, and about Tithes (which must follow the same rule), might be better decided by Divines than by Judges regularly trained in the profession of the Law, and accustomed to administer justice in other Courts, we cannot be influenced in our decision by any view to public policy. Sitting here, we can only interpret the LaW, and try to discover the in- tention of the Legislature from the language of the Statute- Book. Proceeding upon this principle, we all think, that conclusion. no reason has been shown to invalidate the sentence, on the alleged ground that the Queen in Council and the Judicial Committee had no jurisdiction over the appeal. And none of us entertaining any doubt respecting the legality of the course which has been pursued, we feel bound to say, that a rule to show cause why a prohibition should not issue to stay the execution of the sentence ought not to be granted.' Rule refused. Motions to the same effect were also made in the same year in the Courts of Common Pleas, and Exchequer, and with a similar result. (Abridged from 15 Adolphus and Ellis, p. 52.) ] \_For note on this case, see Appendix, Note J..] 42 HON. AND REVEEEND ROBERT LID- 1 ^^^^,^^^^^3 . DELL, Clerk, and Others ... J ' AND CHARLES WESTERTON ... . Respondent. HON. AND REVEREND ROBERT LID- "I ^^^^^^^^^ . DELL, Clerk, and Others . . . j ' AND JAMES BEAL Respondent.* On Appeal from the Arches Court of Ganterhury. The term ' ornaments ' in the Ornaments Rubric applies and is confined to those articles, the use of ■which in the services and ministrations of the Church is prescribed by the (1st) Prayer Book of Edward VI. It has no reference to articles not used in the services, but set up in churches ^-s ornaments in the sense of decorations. The words ' authority of Parliament ' in the Orna- ments Rubric, do not refer to Canons or Royal Injunc- tions having the authority of Parliament, and made at an earlier period, but to the Act 2 and 3 Edward VI., and the Prayer Book which it established. Crosses, as distinguished from crucifixes, when used as mere emblems of the Christian faith, and not as objects of superstitious reverence, may still lawfully be erected as architectural decorations of churches. A stone structure consisting of a marble slab, and super-altar, supported on stone • arches, resting on a stone plinth let into and imbedded in the pavement on which it stands, is not a Communion Table within the meaning of the Canons and the Rubric ; it must be * Before the Lord Chancellor (Cranworth); lord Wensleydale; the Chancellor of the Duchy of Cornwall (Mr. Pemberton Leigh); Sir John Patteson ; Six William F. Maule. Privy Councillors specially sum- moned: Archbishop of Canterbury (Sumner) ; Bishop of London (Tait). Privy Council Judgments. 43 of wood and moveable, and capable of being covered with a cloth. Credence Tables are adjuncts to a Comnmnion Table, and may be lawfully used. Embroidered cloths for the Communion Table may be used during the time of Divine Service. Embroidered linen and lace may not be used during the administration of the Holy Communion, such articles not being consistent with the meaning of the words in the Rubric, ' a fair white linen cloth.' These cases, the facts whereof wUl appear at length in I'eb. 9-16, the judgment, came in the first instance before the Judge in the Consistory Court of London (Dr. Lushington). The state ment^ two cases so closely resembled each other that it was deemed convenient they should be argued together, and should be decided by one and the same judgmetit. The case of Westerton v. Liddell, or as it is more popularly known as the case of St. Paul's, Knightsbridge, was a suit brought by Mr. Charles Westerton, one of the Churchwardens of the Church, against the Incumbent, Mr. Idddell, and others, praying a faculty for the removal of — The High Altar, with the cross elevated thereon or attached thereto ; The gilded candlesticks and candles ; The Credence Table ; and The several divers coloured Altar coverings. The case of Beal v. Liddell, known as the St. Barnabas' case, was somewhat different in form, but substantially to the same effect. It was an application for a monition to the Church- wardens to remove the articles objected to, namely : The Altar and the articles, as in the case of St. Paul's. And it was further complained — That the cross on the Altarwas decorated with jewels ; That there was a wooden screen with a large cross fixed thereon ; That there were brazen gates, with locks thereon, separating the Chancel from the Church ; That the linen cloth for Commtmion was ornamented with lace and embroidery. 44 Privy Council Judgments. 1857. ■Westerton and lilDDBUi V. Beal. Statement. Also a prayer was made that the Court would direct the Ten Commandments to be put up at the east end of the Chancel. The two causes were argued together, Dr. Bayford ap- pearing for Mr. Westerton and Mr. Beal, and Drs. Philli- more and Swahey for Mr. Idddell. Judgment was pronounced by Dr. iMsMiigton on December 5, 1855. In the case of -St. PomVs the learned Judge decreed a faculty for the removal of — The Credence Table ; All the cloths used in the Church for dovering the Communion Table, and to substitute one only covering of silk, or other decent stuff. In the case of St. Bamahas' the learned Judge decreed a monition tp issue to remove — The stone Altar, and to substitute a moveable table of wood ; The Credence Table ; The cross on the Altar, and also the cross on the screen ; The coverings of the structure used as a Communion Table, and tosubstitute one only covering of silk, or other decent stuff; Any covering ornamented with lace or embroidery when the Sacrament is administered ; and, further, to substitute a fair linen clgth in lieu thereof; and to cause the Ten Commandments to be set up at the east end of the Church — i.e. the Chancel. The other points dealt with in the judgment wfere the gilded candlesticks and candles at St. PomTs, and the brazen gates at St. Ba/mabas'. As to the candlesticks and candles, the learned Judge held that all lighted candles on the ' Communion Table are contrary to Law, except when they are lighted for the pur- pose of giving necessary light ; yet that candlesticks and unlighted candles may lawfully be retained. The brazen gates at St. Ba/mabas' were disapproved of, but were not held to be illegal. From this decision Mr. Idddell and his co-Defendants Privy Council Judgments, i i appealed to the Arches Court' of Oant&rbwry, aAd I on December 20, 1856, Sir John Bodson, the Dean, of the Arches, delivered judgment affirming the rulings of Dr. Lushmgton, and condemning the Appellants in costs. There was no appeal as to the candlesticks, candles, or brazen gates. From this decree Mr. Idddell and his co-Defendants appealed to her Majesty iu Council, praying that the sentences of th© Arches and Consistory Courts might be reversed, and that the Respondents to the Appeal might be condemned in costs. Messrs. Westerton and Beal prayed, on the other hand, that the order appealed from might be affirmed with costs. 45 Sir Fitzroy Kelly, Q.C., and Appellants ; Dr. PJiillimore for the 1857. ■Westerton and V. Beal. Statement. Dr. Bayford and Mr. Stephens for the Bespondents ; having been heard, judgment was reserved to March 21, 1857, when it was delivered by the Chanceliob of the Ducht of Coknwall (Mr. Pemherton Leigh, since Lord Kkigsdovyri). These cases came before' the Court by Appeal from two orders in distinct suits, directing the removal of various articles of Church furniture : in the one case fi?om the District Church, or Chapel, of St. TomTs, Knightsbridge, and in the other from the Chapel of Ease of St. Barnabas, Pvmlieo. Although there is some distinction between the circumstances of the two cases, they involve the same principles ; they were included in one argument at this Bar, and wUl be conveniently disposed of in one judgment. It appears that the District Church of St. Paul's was erected by private subscription ; that the income by which Paul's, it is supported is derived from the rent of pe-W^s ; that Mr, lAddell is the Incumbent, and Mr. Eome and Mr. Westertnn the two Churchwardens. The two Churchwardens differed as to the propriety of certain ornaments of the Church, and in EEilary Term, 1855, the suit out of which the present March 21, 1857. Judgmeni;. Pacts in re- spect of St. 46 1 ] ibsr. Answer of Pefendants. Description ■ of Table in St. Paul's. Privy Council Judgments. appe4,l arises was instituted in the Consistory Court of London, by Mr. Westerton against Mr. Home and Mr. lAddell, wh.0 are now the Appellants. The citation called upon the Appellants to show cause why a faculty should not be granted for removing the Altar, or High Altar, and the cloths used for covering the same, together with the wooden cross elevated thereon, and affixed thereto, as well as the candlesticks thereon, together with the Credentia, Preparatory Altar, or Credence Table, used in the said Church or'Chapel, and for substitut- ing in lieu and stead thereof a decent and proper table for the administration of the Lord's Supper and Holy Com- munion, and a decent cloth for the covering thereof. The answer of the Defendants alleges that the article of Church furniture called in the citation an ' Altar,' or ' High Altar,' is in fact, and according to the true and legal inter- pretation of the 82nd of the Constitutions and Canons of Unglcmd and Ireland, as by Law established, inensa congrua et decens, or a convenient and decent table, such as is re- quired by Law for the celebration of the Holy Communion, , and dtenies that the wooden cross is inconsistent with the Laws, Canons, Customs, and Constitutions of the said Church. In subsequent passages of the answer this Table >is always spoken' of as the Altar, or Communion Table, and it is alleged that the said Altar, or Communion Table, and the platform on which the same is raised, the wooden cross attached thereto, the gilded candlesticks, and the said side-table, or Credence Table, were placed in the same Church as the same now exist, and formed part of the furniture thereof at the time of the consecration of the said Church, and of the furniture thereof, by the Lord Bishop of London, on May 30, 1843. Their Lordships understand that this Table, described as an Altar, or Communion Table, is made of wood, and is not attached to the platform, bat merely stands upon it; that it is placed at the east end of the Church, or the Chancel, according to the ordinary usage as to Com- munion Tables ; that at the end nearest the wall there Privy Council Judgments. 47 is a narrow ledge raised above the rest of tHe Table ; 1857. tliafc upon this ledge, whioli is termed the ' super-altare,' i^^u. stand the two gilded candlesticks, which are moveable, and between them the wooden cross, which is let into and fixed in the super-altare, so as to form part of what is thus described as the Altar, or Communion Table. The judgment complained of has not ordered the removal, of the Table or of the candlesticks, bat only of the Judgment of cross, the Credence Table, and the cloths. There is no appeal against this order, so far as it permits the Table and candlesticks to remain, and it is therefore not open to their Lordships to consider the judgment with reference to the articles not ordered to be removed. The evidence as to the wishes of the parishioners upon this subject appears to their Lordships to show (what in wishesofthe such a case might perhaps be expected) that, with respect ^^^^ °^^^' to these ornaments, there are many persons of great re- spectability who, from conscientious motives, are strongly attached to them ; many of equal respectability who, from niotives equally conscientious, feel an invincible repugnance to them ; and some, it may be hoped not a few, who, what- ever opinion they may form of their intrinsic value, consider them as of no importance whatever in comparison with Christian charity and concord, and who, whether they approve, or whether they disapprove of them, would infi- nitely rather sacrifice their individual feelings and opinions than secure their triumph at the expense of disturbing the Church of which they are members. With respect to the appeal of ' Liddell and others v. Beal,' St. Barnabas is a chapel of ease within the District Chapelry I'aots in re- . . -, , ~.,r spect of St. of St. Paul, of which the Curates are appomted by Mr. Barnabas. Liddell. In this case both the Chapelwardens agree with Mr. Liddell as to the ornaments in question. On January 17, 1866, a monition was issued, , against them, at the instance of Mr. Beal, an inhabitant of the District Chapelry of St. Barnabas, by which they were monished to remove from the said Chapel the roodscreen and brazen gates, together with the cross elevated and fixed on the said 48 1857. LiDDELL V. ■Westbhton and LlDDELL V, Beal. Judgment. Answer of Defendants in Court below. Judgment' of Court below. Privy Council Judgments. screen, and also the stone Altar and cloths now used for covering the same, and the cross ornamented with jewels elevated thereon, and fixed thereto, with the candlesticks and candles placed thereon, and also the marble Credentia, Preparatory Altar, or Credence,Table, and to substitute in lieu and ste^ad thereof a decent table for the administration of the Lord's Supper and Holy Communion, and a decent covering thereto, and to set up on the east end of the Chancel of the said Chapel the Ten Commandments, as by the Laws, Canons, Institutions, and Customs of the United Church of England and Ireland is prescribed. The answer admits that between the Chancel and Nave of the Church there is a screen of carved wood, on the summit whereof a wooden cross is affixed. It admits, in substance, the existence of the stone Table, or Altar, with the metal cross attached thereto, and it insists that the article of furniture so described is mensa eongrua et decens within the meaning of the Canons, and is such a Communion Table as is required by them for the celebration of the Holy Communion. It admits the use of various cloths differing in colour from each other, as coverings of the Communion Table at different seasons, and that the covering used on the said Altar, or Communion Table, at the time of the administration of the Holy Communion is of worked and embroidered white linen, ornamented and enriched and bordered at the ends with elaborately worked lace, and that the other articles of linen used in the said office are also decorated and enriched with white lace. It denies that the Credence Table is attached to the Chancel, and alleges that the same is a moveable table, necessary and convenient for the decent celebration of the Holy Communion, according to the Rubrics of the Book of Common Prayer. The answer then alleges that these ornaments existed in the Church when it was consecrated in 1860, and that the services are attended by large and devout congregations, whose religious feelings would be violated by their re- moval. The judgment complained of has ordered the Church or Chapelwardens of St. Barnabas' to remove the present Privy Council Judgments. 49 structure of stone used as a Communion Table in the said 1857. Church, and to provide instead thereof a moveable table of lJ^J^l ,vrood ; to remove the Credence Table ; to remove the cross on „ "• the screen, as also the cross on, or bear, the present struc- »"* ture used as a Communion Table ; to take away all the d. cloths at present used in the said Church, or Chapel, for j„,^nt. covering the structure now used as a Communion Table ' ' "" pouring the time of Divine Service, and, to provide and -substitute in place of the said cloths one covering only for ^the Communion Table of silk, or other decent stuff; and i further to remove any cover used at the time of the minis- tration of the Sacrament, worked or embroidered with lace, ^or otherwise ornamented, and to substitute a fair white ^ linen cloth, without laoe or embroidery, or other ornament, to cover the Communion Table at the time of the ministra- I tion of the Sacrament, and to cause the Ten Command- ments to be set up on the east end of the Church, in •compliance with the terms of the Canon. As to the order "directing the Ten Commandments to be set up, there is no appeal. When this case came by appeal before the Dean of the Arches, some additional evidence was given with respect to the assent of the Bishop of London to the use of these ornaments before the Chapel was consecrated. But it does not appear to their Lordships to be necessary to go into this part of the case. Their Lordships will deal with each of the articles which are the subject of appeal separately ; and. First. With respect to the crosses, the point to which Hrst, m to by far the greater part of tbe argument at this bar was addressed. No distinction was taken by the Courts below between the different crosses which are the subject of appeal ; between the crosses on what are termed the Altars, or Communion Tables, both at St. Pcml's, and St. Barnabas', and the cross on the Chancel screen in St. Barnabas'. The learned Judges have treated them as being all subject to the same considerations, and have ordered them al) to be removed as illegal ornaments. But though both Judges E &0 1867. "Westerton and LIDDELL V. Beal. Judgment. Rnbric wkich ap- Privy Council Judgments. arriTed at the same conclusion, there is some difference between the reasons assigned for their decisions. Dr. iMsJdngton seems to have held that the question was, according to the Rubric of the present Prayer Book, what ornaments could be shown to have been in the churches in the second yeaj* of the reign of Edwa/rd VI., by au- thority of Parliament, according to the Rubric of the present Prayer Book, whatever those words, according to their true construction, might import. Sir John Dodson, on the other hand, considered the question to depend on the effect of certaiu Royal Injunc- tions, and an Act of Parliament,* against the use of images, amongst which he considered crosses to be included. It will be necessary to examine both these grounds of decision with the attention and respect which are due to the eminent persons who have adopted them ; and, first, as to the effect of the Rubric. In dealing with this question it is necessary to remember that there were many crosses, some with, some without, the image of the Saviour, which were in use in the Roman Catholic Ritual ; altar crosses, precessional crosses, funeral crosses, and others, as well as painted or carved representa- tions of the cross not used in the services, but set up as architectural decorations of churches ; and the question is whether the Rubric applies to the latter class. The Rubric is in these words : — '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 JUngland, by the authority of Parliament, in the second year of the reign of King Edwa/rd VI.' Dr. iMshington was of opinion that, by the true construc- tion of these words, reference must be had to the Act of 2 £aid 3 Edward VT. and the Prayer Book, which it es- * The Injunctions referred to are those issued by Edward VI., in 1547. Their general object was the abolition of images and other ornaments not essential to divine worship, which had been abused. The Act of Parliament is 3 & 4 Edward IV., c. 10, abolishing all "books and images ten^ng to the maintenance of superstition. Privy Council Judgments. . 51 tablished* for the purpose of determining what ornaments 1857. were thereby sanctioned, but he was perplexed by the l^^^l difficulty, that althoiigh there were words in that Praver ,„ "■ ■b 1 J -1 • ,1 « , Wkstehtoit Uook, describing the ornaments of the Ministers, there were and none which applied to ornaments of the Church, in his ^T'"' understanding of this expression. "^^'" Their Lordships, after much consideration, are satisfied '^ — ■ — -' that the construction of this Rubric which they suggested t^o™o?na°' at the hearing of the case is its true meaning, and that the m™te' Ru- word ' ornaments ' applies, and in this rubric is confined, to those articles the use of which, in the services and minis- trations of the Church, is prescribed by the Prayer Book of Edmiard Vl.f The term ' ornaments ' in ecclesiastical law is not confined. Meaning of as by modern usage, to articles of decoration or embellish- generally, ment, but it is used in the larger sense of the word ' ornamentum,' which, according to the intei-pretation of Forcellini's Dictionary, is used ' pro quocumque apparatu seu implemento.' All the several articles used in the per- formance 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. Phillvmore's edition of ' Burn's Ecclesiastical Law.' In modern times organs and bells are held to fall under this denomination. When reference is had to the First Prayer Book of Tldward • Omaments ' VI. with this explanation of the terin ' ornaments,' no Book o( difficulty wiU be found in discovering, amongst the articles ^'^^^'^'^ "^i- of which the use is there enjoined, omaments of the Church as well as omaments of the Ministers. Besides the vest- ments differing in the different services, the Rubric provides ♦ That is the First Prayer Book, t Dr. Lushington and Sir J. Dodson had taken it as admitted that crosses were • ornaments.' The Committee give their reasons in the following paragraph for holding the contrary opinion: — They limit ' ornaments in use by authority of Parliament in the second year of the reign of Edward VI.' to omaments prescribed by 2 & 3 Edw. VI,, c. I, thereby excluding any that may have been legally in use before, even although not prohibited by that statute. e2 52 Privy Council Judgments. 1857. LiDDELL V, Westerton and LiDDELL V. BSAL. Judgment. Of Second Boo* of Ed- ward VI. for the use of an Englisli Bible, 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 'ornaments of the Church ' at the period in question is clear, from two dq^quments nearly contempo- raneous, one before and the other after the establishment of the First Prayer Book. In a letter of the Council to Graimner, dated April 30, 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 the Commissioners 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, requisite for the Divine Service in every such place for the time. If reference be now made to the alterations in these matters introduced by the Second Prayer Book of 'Edward, VI. and the subsequent Rubric to the Prayer Book of Mixaheth, the meaning will be sufBciently clear. The Second Prayer Book forbids the use of different vestments by the Priest in the performance of the different services, and enjoins the use of a surplice only ; and does not expressly mention the paten, chalice, and corporas. After the overthrow of Protestantism by Queen Mary, and its restoration on the accession of Queen Mlieaheth, a great controversy arose between the more violent and the more moderate Reformers as to the Church Service which should be re-established, whether it should be according to the First or according to the Second Prayer Book of Edward VI. The Queen was in favour of the First, but she was obliged to give way, and a compromise was made, by which the services were to be in conformity with the Second Prayer Book, with certain alterations, but the ornaments of the church, whether those worn or those otherwise used by the Minister, were to be according to. the First Prayer Book. In conformity with this arrangement the Act 1 Eliz., cap. 2, was passed, by which the use of the Second Prayer Book Privy Council Judgments. 53 was established, but it was provided ' that such ornaments 1857. of the church and of the Ministers thereof shall be retained j^J^^,, and be in use, as was in this Church of Englcmd by autho- rity of Parliament in the 2nd year of the reign of King Edward VI. until other order shall be therein taken by the authority of the Queen's Majesty,' with such advice as therein mentioned. The Subric to the new Prayer Book, framed to express ot booIc of the meaning of this proviso, is in these words : — ' And here is to be noted that the Minister, at the time of the Com- munion, and at all other times of his ministration, shall use such ornaments in the church as were in use by autho- rity of Parliament in the 2nd year of the reign of Bang Edwa/rd VI., according to the Act of Parliament set in the beginning of this book.' Here the term ' ornaments ' is used as covering both the vestments of the Ministers and the several articles used in the services ; it is confined to such things as in the performance of the services the Minister was to use. It wiU be observed that this Rubric does not adopt pre- cisety the language of the statute, but expresses the same thing in other words. The statute says ' such ornaments of the church and of the Ministers shall be retained and be in use ;' the Rubric, ' that the Minister shall use such orna- ments in the church.' The Rubric to the Prayer Book of January 1, 1604, adopts the language of the Rubric of EUzdbeth. 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 arti- cles which were used under the First Prayer Book of Ed- ward VI. may still be used. None of them, therefore, can have any reference to articles not used in the services, but set up in churches as ornaments, in the sense of decorations. It was urged at the bar that the present Rubric, Meaning of which refers to the second year of Edmiard VI., cannot yea/of"'"* mean ornaments mentioned in the First Prayer Book, be- ^'^"'"''* ^•^• cause, as it is said, that Act was probably not passed, and the Prayer Book was certainly not in use till after the 54 1857. LiDDELIi V. Westerton and LiDDEIX V. Beal. ^Judgment. Mr. Ste- phens' argu- ment as to validity of Canons of Hem-y VJII. Privy Council Judgiitents. expiration of the second year of Echva/rd VI., and that, therefore, the words ' bj authority of Parliament ' must mean by virtue of Canons or Royal injunctions having the authority of Parliament made at an earlier period. There seems no reason to doubt that the Act in question received the Royal assent in the 2nd year of Mdward VI. It concerned a matter of great urgency, which had long been under consideration, and was the first Act of the session ; it passed through one House of Parliament on January 15, 1549, N.S. ; and the other on the 21st of the same month ; and the 2nd year of the reign of Edward VI. did not expire till January 28. In the Act of the 5th and 6th Edward VI., c. i., sec. 6, it is expressly re- ferred to as the Act ' made in the second year of the King's Majesty's reign.' Upon this point, therefore, no difficulty can arise. It is very true that the new Prayer Book could not come into use until after the expiration of that year, because time must be allowed for printing and distributing the books ; but its use and the injunctions contained in it were established by authority of Parliament in the second year of Edward VI., and this is the plain meaning of the Rubric. It was contended by Mr. Stephens, in a very able argu- ment, that the Canons passed in the reign of Hervry VIII. had no Parliamentary authority in the reign of Edward VI., for that the true meaning of the statutes relating to the subject passed in the reign of Hen/ry VHI. is, that they provide for the review of the exist- ing Canons by Commissioners appointed by the King, and give authority only to those Canons in the meantime — i.e. during the continuance of the Commission — that the Commissioners never made any report ; that the Commis- sions determined by the death of King Hervry VIII. ; and that the Parliamentary sanction given to the Canons ended at the same time. If it were necessary to deter- mine this point, their Lordships think this argument micrht deserve serious consideration, although it is contrary to the general impression, which has prevailed upon the pubject. As, however, ' their Lordships entertain no Judgment. Privy Council Judgments. 55 doubt whatever as to the meaning of the words ' autho- 1857. rity of Parliament,' used in the Eubric, it is useless to enter li"^^ further into the question. «■ "W ESTEIITOX Their Lordships therefore are of opinion that, although and the Rubric excluded all use of crosses in the services, the general question of crosses not used in the services, but employed only as decorations of churches, is entirely unaf- fected by the Rubric. If crosses of the latter descrip- tion were in lise in the second year of Edwa/rd VI., they derive no protection from the Rubric ; if they were law- fully in use they are not excluded by the Rubric, though they might not have the sanction of the authority of Par- liament. The next question is. Are crosses forbidden under the Are crossts term ' images ' in the Injunctions and Act of Parliament '""^^^ relied on by Sir John Dodson ? * It is laid down in the judg- ment, and was strongly pressed at the bar, that the term ' images ' may apply to crosses ; that imagines crucis are often mentioned, as well as imagines cruaifixi et sanctorum ; that the cross, at the accession of Henry VIII., was itself an object of superstitious worship in the Roman Ca- tholic Church ; that two services in its honour are found in the Roman Catholic Missal ; that it was abused like other images, and was aboHshed like other images. It is impossible io deny that crosses are frequently spoken of amongst images. The Articles concerning laudable , ceremonies, pubhshed by Henry VIII., in 1536, under the head ' And first of images,' declare that the worship is ' only to be done ' to God, and in pis honour, although it be done before the images, whether it be of Christ, of the cross, of oui- Lady, or of any other saint beside.' (Lloyd's Formularies of Faith, p. 28.) And passages to the same effect are to be found in other contemporary documents. But the result of the best examination which their Lord- ships have been able to make is, that the term -image,' though it may be extended by the context, is generally to be understood in a more limited sense. * The Injunctions of 1S47 and the Act 3 & 4 Edward VI., c. 10. 56 1857. Westkutow and LlDDBI.1. V. Judgment. Difference between a cross and a'n image. Injunctions of Edward TI. Privy Council Judgments. Although it is true-that crosses have been abused as well as crucifixes and images of saints, it must be remembered that there is a wide difference between the cross and the images of saints, and even, though in a less degree, between a cross and a crucifix. A cross was used as a symbol of Christianity two or three centuries before either crucifixes or images were introduced ; it was used for ages before the Reformation, and has continued ever since Co be used aa an ensign of honour, as an ornament both of buildings and persons, ecclesiastical and civil, public and private, without any relation to superstitious or even to religious usages. That this was the view taken by some of the early Reformers will sufiB.ciently appear by a letter of Cassander, to be presently mentioned. The distinction between the cross and images is still more marked. Though in process of time the cross was transformed into the crucifix, or itself became an object of adoration, it was the memorial of a real event, the most momentous that ever happened in the history of the world, and was worshipped, however erro- neously, only in connection with that Being to whom all worship is due. The images of the saints, on the other hand, were often connected (to use the langua.ge of some of the writers to which we must refer) with ' lying legends and feigned miracles ; ' and it might well be tiat the wor- ship and invocation of saints should be abolished, and the images connected with that practice be swept away, while the cross was retained with the faith of whict it was an emblem. The important question, however, is not what it was reasonable to do, but what in fact was done, by the regulations for the removal of images. ' The first set of injunctions of Edward VI. were issued in the first year of his reign, some time, \ as it was said, between the months of May and August 1547. (1 Cardwell, Doc. Ann., No. ii., p. 4.) By these injunctions the Clergy are required to teaeh the people that all the usurped authority of the Bishop of Borne has been justly abolished. They are not to ' extol any im^es, relics, or miracles for any superstition or lucre, nor allure the people by any enticements to the pilgrimage of any saint WESTEnXOS and LlDDELL V. Bbal. Privy Council Judgments. 57 or image ; ' they are to teach ' that ■works devised by men's 1857. fantasies, besides Scripture, as wandering to pilgrimages, LiDiim-L offering of money, candles, or tapers, or relics, or images, or kissing or licking of the same, praying upon beads or ^'^^ such like superstitions, have not only no promise of reward in Scripture for doing of them, but contrariwise, great jua^ment. threats, and maledictions of God, for that they be things tending to idolatry and superstition.' The third item of these- injunctions is in these words : — ' 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 there- unto, or shall be hereafter censed unto, they (and none other private persons) shall, for the avoiding of that most detesta- ble offence of idolatry, forthwith take down, or cause to be taken down, and destroy the same ; and shall suffer from henceforth no torches, or 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 remain still ; admonishing their parishioners, that images serve for no other purpose but to be a remem- brance, whereby men may be admonished of the holy lives and conversation of them that the said images do repre- sent ; which images if they do abuse for any other intent, they commit idolatry in the same, to the great danger of their souls.' It is clear that in this passage images are spoken of as images of persons, and that only such images of any kind as had been or should be the object of superstitious wor- ship were to be removed ; and it shows that the High Altar was to remain as it had been before, with lights upon it, before the Sacrament. The nineteenth item provides ' that no person shall from thenceforth alter, or change the order or manner of any Fastiag Day that is' commanded, nor of Common Prayer, or Divine Service, otherwise than is specified in these injunctions, until such time as the same shall be otherwise ordered and transposed by the King's authority.' The twenty-first provides for reading certain portions of Scripture in English in the time of High '58 1857. Westerton and LIDDELL V. Beal. Judgment. Visitation Articles. Privy Council Judgments. Mass. The twenty-eighth is in these terms : — ' Also that they shall take away, utterly extinct, and destroy all shrines, covering of shrines, all tables, candlesticks, trindles or rolls of wax, pictures, paintings, and all other monuments of feigned miracles, pilgrimages, idolatry, or superstition ; so that there remain no memory of the same in walls, glass windows, or elsewhere within their churches 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 he set in a con- venient place within the same, for the preaching of God's Word.' If this section be read with those which precede it, it is obvious that it applies only to articles which had been the object of feigned miracles, pilgrimages, idolatry, and superstition, and at all events could not include either crosses or images, which had not been so abused, and which by the previous injunctions were to be retained ; and, as regards the cross itself, its use was not only permitted, but enjoined, as the old services which required it were re- tained. The section could not mean that all candlesticks should be removed from churches, for two were to be re- tained on the High Altar. Still less could it mean that all tables, candlesticks, and pictures should be removed from private houses. That this is the true meaning of the injunctions is fur- ther shown by the Articles of Visitation, ia which enquiry was to be made whether they had been obeyed. The Article applicable to this subject is as follows * — 'Whether there do remain not taken down in your churches, chapels, or elsewhere, any misused images, with pilgrimages, cloths, stones, shoes, offerings, kissings, can- dlesticks, trindles of wax, and such other like ; and whe- ther there do'remain not delaied and destroyed any shrines, coverings of shrines, or any other monumeot of idolatry, superstition, and hypocrisy.' (1 Cardwell, Doc. Ann., p. 25.) Another enquiry is, ' Whether they which have spoken or declared anything for the setting forth of pilgrimages Privy Council Judgments. 59 feigned relics, images, or any sucli superstition have not 1857. openly recanted the same.' {Ihid., p. 27.) Lm^L The object of these injunctions appears to have been to -^-^^^^^^^g^ abolish the worship or superstitious veneration of images "■"'i and relics ; but they left entirely untouched the Service of «■ High Mass, and made no declaration as to the nature of the j„t|_ng,!jt Sacrament then administered. Indeed, a subsequent procla- - — •■ ' mation of the King, dated December 27, 1547, forbids any discussion of the doctrine of the Real Presence, until the King should define the doctrine. On Feb. 6, 1647, N.S., the King issued a Proclamation Kratpro- ,_ . ION , 1 . T . 1 1 -I ■ olamation. {Imd., p. 43) by which punishment was denounced against such persons as should of their private mind ' omit, leave done, change, alter, or innovate any order, rite, or cere- mony commonly used and frequented in the Church of jElngland, and not commanded to be left done ' in the reign of the late King, other than such as his Highness, King Bdward VI., in manner therein mentioned, had ordered, or should order to be altered ; provided always that no man should be punished for omitting certain particular observations therein mentioned, and, amongst others, for ' creeping to the Cross.' The ceremony of creeping to the Cross seems to be ex- JJ|°^j"fj*° plained by a constitution of Giles de Bridport, Bishop of Scmim, A.D. 1256 (Wilkin's Concilia, vol. i., p. 713), which provides that on the day of our Saviour's Passion all the parishioners ' shall come to worship the Cross, and to offer according to their inclination.' In Strype's ' Memorials of ' Grammier ' the practice is alluded to in these terms : — ' And because creeping to the Cross was a greater abuse than any of the other (for there the people said, ' Ctueem tuam adoramus, Bomine ; ' and the ordinal saith, ' PrOeedant cleriai ad crucem adorandam nudis pedibus ,- ' and it followeth in tTie said ordinal, ^Ponaht/r crux cunte aliquod alta/re, uhi apopulo adoretur,\whichhj the Bishop's book, entitled 'A Necessary Instruction,' is against the Second Commandment) ; there- fore he (the Archbishop) desired of the King that the creeping to the Cross might also cease hereafter. (Strype's 60 Privy Council Judgments. 1857. Memorials, vol. i., p. 299.) It is plain, therefore, that up to this time the use of the Cross was permitted, though misused images were in the strongest and- most general terms forbidden. On February 21, 1548, N.S., however, another Proclama- tion was issued, upon the authority of which it is contended that all images, including crosses, were to be taken down. It is in these terms : — ' After our right hartye recommend- ations to your good Lordship : where now of late in the King's Majestie's Visitation, amonge other goodly injunc- tions commanded to be generally observed throughe all partes of this his Highnes reahne, one was set forthe for the taking downe of all such images, as had at any tyme been abused with pilgrimages, offerings, or censinges ; albeit that this said injunction hathe in many partes of the realme been well and quyetlye obeyed and executed, yet in many other places much stryfe and contentyon hathe rysen and dayly ryseth, and more and more encreaseth about the execution of the same, some men being so superstytyous, or rather wylfall, as they would by theyr good wylles, re- tayne all suche images styll, although they have been moost manyfestly abused, and in some places also the images whiche, by the saide injunctions, were taken downe, be now restored and set up again, 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 conten- tyouslye to obtaine theyr mindes, contending whether this or that image had been offered unto, kyssed, censed, or otherwise abused, partyes have in some places been taken in suche sorte, as farther inconvenience is very like to en- sue, yf remedie be not provided in tyme ; considering there- fore that allmost in no places of this realme ys any sure quyetness, but where all images to be hooly taken away and pulled do.wne already, to the intent that all con- tentyon in everye parte of this realme, for this matter may be clerely taken away, and that the ly vely images of Christ shoulde not contende for the deade images, which be things not necessary, and without which the Churches of Christ contymied most godlye many yeres. We have Privy Council Judgments. 6 1 thought good to signify unto you that his Highnes plea- 1857. sure, with the advyse and consent of us the Lord Protec- lJ^^^ tour and the rest of the Counsell, ys, that immediately upon _. "• the sight hereof with as convenyent diUgence as you maye, »"* you shall not only gyve ordre, that all the images remayn- v. inge in any churche or chappell within your diocese be re- judgment. moved and taken away, but also by your letters signify ' ' ' unto the reste of the Busshopes within your provynoe his Highnesse pleasure for the lyke order to be gyven by them and every of them, within their several dioceses ; and in the execution thereof we requyre bothe you and the reste of the Busshopes foresayd, to use suche foresight as the same may be quyetlye donne with as good satisfaction of the people as may be.' (1 Cardwell's Doc. Ann., p. 47.) It appears to their Lordships that this Proclamation its limited apphes only to such images as are the subject of the former Proclamation, and that the intention was not to introduce within the prohibition 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. This Proclamation any more than the former could not apply to crosses, for the old services were still in use. The Act, establishing the new Book of Com- mon Prayer, did not pass, until near a twelvemonth after- wards, and that Act itself provides that for a certain time after its date the old ceremonies should continue. This is confirmed by the letter of the Council sent to aU confirmed those preachers which the King's Majesty had licensed to ofamftton"' preach, issued on May 13, 1548, by which the clergymen were enjoined to teach the people on the one hand ' to flee aU old erroneous superstitions, as the confidence in par- dons, pilgrimages, beads, religious images, and other such of the Bishop of Home's traditions and superstitions, with his usurped power, the which things be here in this realm most justly abolished;' and then, on the other hand, straitly to rebuke those who ' will take upon them to run before they be sent, to go before the rulers, to alter and change things in religion without authority.' It is declared that it ' is not a private man's duty to alter ceremonies, to 62 Privy Council Judgments. 1857. ilDDELL V. ' "Westertox and LinDELI. Beat,. Judgment. 3rd and 4th Edward VI. innovate orders in the Church, nor yet is it not a preacher's part to bring that into contempt and hatred, which the Prince doth either allow or is content to suffer.' (1 Card- well, Doc. Ann., p. 65.) The next authority relied on* is the 3rd and 4th Hdward VI., c. 10, intituled ' An Act for'the abolishing and putting away divers Books and Images.' The object of this Act was to enforce the observance of the new Prayer Book, and of former orders with respect to images. After enact- ing that all Antiphoners, and other books of the services of the Church, other than the authorised Prayer Book, shall be utterly abolished, it proceeds to enact, that if any person shall have such books in his possession, 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 shall stand in any church or chapel, and do not, before the last day of June then next ensuing, deface and destroy the images, and deliver up the books for the purpose of being destroyed, such persons failing to deliver up the books shall be subject to certain penalties, but it inflicts no penalty on persons faiUng to deface or destroy the images, nor does it in terms order their de- struction or defacement. No doubt, however, it implies ' that to retain them is illegal, but it relates, in their Lord- ships' 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 ; and the images so described, for the reasons already assigned, cannot include crosses. The letter of Hdwa/rd VI. to Grcmmer, directing him to give effect to this Act, refers only to books, saying nothing as to images. Thus matters remained as regarded the law upon the sub- ject now in question, until the end of the reign of Edward VI. ; for although most important alterations were made in the order of Divine Service, by the 6th and 6th Edward VI., c. 2, and the new Prayer Book f thereby introduced, * That is, to show that crosses are images, t The Second Prayer Book of Edward VI. Privy Council Judgments. 63 they apply only, like the former Prayer Book, to that which 1857. was to be used in the services and rites of the Church. LrroTLL But although their Lordships are of opinion that the Law did not require the removal from churches of crosses merely as such, both Books of Common Prayer had ex- cluded them from use in the services. They were no longer to be employed ; and nothing is more probable, therefore, than that if they could be turned to any profit, they would be made the subject, either of sale or robbery, and that in S'om use. the popular disturbances which accompanied the great change in the religion of the nation, and in many cases anticipated and outran the acts of the Government, crosses would share the fate of images ; so that between the fana- ticism of the populace, and the cupidity of the courtiers, the ornaments of the churches, in every sense of that term, would be subject to spoliation and destruction. We find, indeed, by the Injunction of the Council of April 30, 1548, already referred to, that even at this early period such pro- ceedings were going on, for that letter expressly forbids the sale or alienation of the chalices, silver crosses, bells, or other ornaments, which it declares were not given for that purpose to be alienated by parishes at their pleasure, but rather to be used to the intent they were first given, or to some other necessary and convenient service of the Church. Under these circumstances, it cannot be matter of surprise, if comparatively few crosses remained either standing in the churches, or preserved in the repositories of its ornaments. On the accession of Queen Mem/, all the old superstitions Queen were restored, and the Acts of Parliament to which we reS^.' have referred were repealed. The images which had not feeen taken down remained, and many which had been taken down w^ere restored. On the accession of Queen Mizaheth, in the year ] 558, Queen the statutes of Queen Ma/ry on these matters were repealed, rei|S.^ the supremacy of the Crown was established by the Act 1 Elizabeth, c. 1, and all such jurisdiction in spiritual matters as hitherto had befen, or lawfully might be, exercised by any spiritaal or ecclesiastical authority was annexed to the 64 Privy Council Judgments. 1857. Crown oi Unglcmd, and power was given to the Queen, and LiDDELi. ^^^ successors, to appoint Commissioners for the purpose of exercising ecclesiastical jurisdiction. By the 1 Mizabeth, o. 2, the second Prayer Book of Edward VI., with certain alterations, was re-established. Injunctions were issued, and Arflcles of Visitation framed, much to the same effect as those already promulgated in the reign of Bdmwrd VT., but which do not appear to their Lordships to extend 'the prohibition with respect to images. Opinions ot It is known, indeed, that at this time great differences of Keformers in ■• -it iji t-f-ip • ii i Queen Biiza- opmion prevailed amongst the early Keiormers with respect betii^s days ^ crosses and crucifixes, and that the Queen was favour- crosses, &o. a^y e to the use of both ; that she retained them in her own chapel ; and, although they were removed for a time, in consequence of the remonstrances made to her, they were afterwards restored. (1 Cardwell, Doc. Ann., p. 268.) But a greater distinction was made between the cross and the crucifix, and the use of the former might well be per- mitted while the other was forbidden. This is very manifest from the letter of George Cassander to Bishop Cox, dated at Worms, 1560, printed in the second series of the Zurich Letters, pp. 42-3. He there expresses himself in these terms : — ' I understand that you are not altogether agreed among yourselves with respect to the setting up the image of the cross or the crucifix in the church ; but I do not sufficiently understand whether the question refers to the mere figure of a cross, or also to the image of Christ hanging upon it. I have seen here a cer- tain print which contained a cross only in the middle, with some texts of Holy Scripture in the English language written on each side ; whence I suspect that your question only refers to the figure of the cross.' . . . ' Tour Excellence is aware in what frequent use, and in what great esteem, the figure of the cross was held among the early Christians ; insomuch that it was everywhere placed and represented in their buildings, sacred and profane, public and private ; and this, too, before the practice of setting up other images in the churches, whether of Christ Privy Council Judgments. 65 Himself, or of the Saints, had come into use ; that on the 1857. destruction of all monuments of idolatry, by which every- LmDELL thing was defiled, the figure of the cross, which was, as it were, a sacred symbol of Christianity, succeeded under better auspices into their place. And like as the word cross, in the writings of the Evangelists and Apostles, mystically signifies the passion, death, and triumph of Christ, and the afflictions of the Saints ; so also by the figure of the- cross everywhere set up, and meeting the eye, they intended all these things to be set forth, as it were, by a mystic symbol, and infixed in men's minds ; where- fore they made a great distinction between the figure or representation of the cross and all other images.' That many of the English Bishops objected both to crosses and crucifixes, and either ordered or sanctioned their removal from churches within their dioceses, and that in many others they were defaced or destroyed by the violence of the people, can admit of no doubt; and that this violence extended also to monuments in churches, appears by a proclamation issued by Queen SUzabeth against defacers of monuments in the year 1560 ; for it speaks of these proceedings as ' to the slander of such as either gave or had charge in times past only to deface monuments of idolatry and false feigned images in churches and abbeys ; ' expressions which tend strongly to confirm the meaning their Lordships have already attributed to the Injunctions and Acts of Parliament of Edward VI. Upon the whole their Lordships, after the most anxious Besuit as to consideration, have come to the conclusion that crosses, as distinguished from crucifixes, have been in use as orna- ments of churches from the earliest periods of Christianity ; that when used as mere emblems of the Christian faith, and not as objects of superstitious reverencej they may still lawfully be erected as architectural decorations of churches ; that the wooden cross erected on the chancel screen of St. Barnabas' is to be considered as a mere archi- tectural ornament ; and that, as to this article, they must cross at st. advise her Majesty to reverse the judgment complained of. Barnabas'. Their Lordships hope and believe that the laws in force p 66 1857. LlDDELL Altar at St. Barnabas'. Privy Council Judgments. respecting the consecration of any building for a chnrcli, and which forbid any subsequent alteration without a faculty from the ordinary, will be sufficient to prevent any abuse in this respect. This decision, however, by no meanB disposes of the question as to crosses attached to Com- munion Tables, which it will be "convenient to deal with in connection with the altar at St. Barnabas', which is ordered to be removed. This article of church furniture consists of a marble slab, with a super-altare on the side nearest to the wall of the chapel. It stands apart from the wall, supported upon stone carved arches, the arches resting upon a stone plinth, which is let into and embedded in the pavement on which it stands. The cross is attached to the super-altare, and stands between two large candlesticks, which are move- able. The questipn is whether this structure is a Com- munion Table within the meaning of the Law. The Appel- lants in their pleadings term these tables ' altars or Com- munion Tables ; ' and in the argument they have referred to two recent statutes, in which the word altar is used to signify the ' Communion Table.' When the same thing is signified, it may not be of much importance by what name it is called ; but the distinction between an ' altar ' and a ' Communion Table' is in itself essential, and deeply founded in the most important differences in matters of faith between Protestants and Romanists — namely, in the dif- ferent notions of the nature of the Lord's Supper,' which prevailed in the B.oman Catholic Church at the time of the Reformation, and those which were introduced by the Reformers. By the former it was considered as a sacrifice of the Body and Blood of the Saviour. The altar was the place on which the sacrifice was to be made ; the elements were to be consecrated, and, being so consecrated, were treated as the actual Body and Blood of the Victim. The Reformers, on the other hand, considered the Holy Com- munion not as a sacrifice, but as a feast, to be celebrated at the Lord's Table; though as to the consecration of the ele- ments, and the efiect of this consecration, and several other points, they difiiered greatly among themselves. This Privy Council Judgments. 67 distinction is well pointed out in Gudworth's 'Discourse 1857. concerning the true notion of the Lord's Supper,' chap. T., liTI^i. p. 27. ' We see, then, how that theological controversy which hath cost so many disputes, whether the Lord's Supper be a sacrifice, is already decided ; for it is not " sacrifioium," but "epulum;" not a sacrifice, but a feast upon sacrifice ; or else, in other words, not " oblatio sacri- ficii," but, as Tertulhan excellently speaks, " participatio sacrificii;" not the offering of something up to God upon an altar, but the eating of something which comes from God's Altar, and is set upon our tables. Neither was it ever known amongst the Jews or Heathens, that those tables on which they did eat their sacrifices should be called by the name of altars. . . . Therefore, he (St. Paul) must needs call the Communion Table by the name of the Lord's Table — ^i.e. the table on which God's meat is eaten, not His altar on which it is offered.' That the Roman Catholic altars are constructed with a Roman view to this doctrine of sacrifice admits of no doubt, ai^rs."*" Cardinal Bmia speaks of them in these terms : — ' De altaribus novi.Testamenti agendum est in quibus corporis et sanguinis Christi sacrifioium incruentum immolatur.' (Rerum Litur- gicarum, Hber i., c 20.) With respect to the question what is required to constitute a Roman CathoKc altar, we have been furnished with valuable information by a treatise entitled ' Institutionesliturgicae ad usum Seminarii Romani,' toy Fomici, the present text-book of the Pope's Seminary. In the first part, ' De sacrificio Missae ' (c. 3, p. 18), ' De Altari, ejusque omatu,' it is laid down, in the first place, ' Nunquam extra altare hostiam immolari.' It is then stated that altars originally were made indifierently of wood or stone, but that many centuries ago the Church ordered that they should be only of stone. The term ' altar ' is thus explained :— ' Nomine autem altaris inteLi- gitur superficies plana ad sacrificium missae immediate deputata.' The altaris to be in the church; it is to be fixed and immovable, ' immobile edificatum, sen fixum super pedibu^, sen base, quod habet totam integram plani- tiem seu mensam superiorem,' and it is required to be r2 68 Privy Council Judgments. 1857. LIDDEIL Doctrine of real pre- sence un- decided at date of First Prayer Book. Otherwise at date of second Prayer Book. ' lapideum, et ab Episeopo conseoratum.' The treatise then proceeds to state that by most ancient usage, as early as the Council of Tovtrs, in the year 667, the standard of the cross, ' VexjUum crucis,' -vras to be placed in the middle of tbe altar ; it states that by the term ' cross ' is meant ' the crucifix;' and it refers to two comparatively modeipi decla- rations on the subject by the Holy See, one in 1746 and another in 1822, by which orders are given with respect to the size and position of the crucifix on the altar. It then refers to the lights upon the altar : ' Ad utrumque crucis latus cereum in missse saorificio accendi jubet eoclesia ' (p. 21) ; and it refers to the Rubric, by which it is ordered : ' Collocetur crux et candelabra saltern duo ' (p. 23). Such, then, as regards its form, is the Eoman Catholic altar. A stone structure fixed in the church, and immovable with a plain surface, or ' mensa,' on which the unbloody sacrifice (' sacrificium incrueutnm ') may be offered ; on which the Host and the Cup (' Hostia et Calix ') may be placed with a crucifix, and two candlesticks, as essential adjuncts to it. , At the date of the Krst Prayer Book of Edward YI., the doctrine of the English Chm-ch as to the Real Presence and the nature of the Holy Communion was undecided ; the book therefore enjoined no change in the form of the altar, but spoke of the rite itself as the Lord's Supper, commonly called the High Mass, and of the struc- ture indifferently by the names of the altar and the Lord's Table. It contains a prayer for the consecration of the sacred elements, iu which the sign of the cross is to be used. The bread is to be unleavened, and round as it was aforetime. The corporas, the paten, the chalice, the vestments, are all articles directed to be used in the Roman Catholic Ritual, and spoken of by those name's in the Missal. But by the time when the Second Prayer Book was in- troduced, a great change had taken place in the opinion of the English Church, and the consequence was, that, on thq revision of the service, these several matters were com- pletely altered ; the use of a surplice was substituted for the several vestments previously enjoined ; the prayer for BliAL. Judgment. Privy Council Judgments. §9 consec/raUon of the elements was onvitted, though m the 1857. present Prayer Booh it is restored;'^ the bread and wine liddell delivered to the communicants were no longer described as •(yj.aTERTON the Body and Blood of Christ, as was the case in the First ™d Prayer Book ; the table was no longer spoken of as the altar, but as the Lord's Table, or as God's Board; and the table is to have, at the time of the Communionj a fair white linen cloth upon it, and is to stand in the body of the church, or in the chancel, where morning prayer and even- ing prayer are appointed to be said. And it is declared by the Biubric that, ' to take away the superstition which • any person hath, or might have, ia the bread and wine, it 'shall suffice that the bread be such as is usual to be eaten at the table with other meals, but the best and purest wheaten bread that conveniently may be gotten. And if any of the bread and wine remain, the curate shall have it to his own use.' The distinction between the Supper of the Lord and the -^^ also in , ... Articles of Sacrifice of the Mass is set forth with great precision in the 1562. Articles agreed on in Convocation in the year 1562, soon after the accession of Queen Elizabeth, and which still form the Articles of the Church of England. The 28th Article, ' Of the Lord's Supper,' contains this clause: — ' The Supper of the Lord is not only a sign of the love that Christians ought to have amongst themselves one to another, but rather is a sacrament of our redemption by Christ's death ; insomuch that to such as rightly, worthily, and with faith receive the same, the bread which we break is a partaking ©f the Body of Christ, and likewise the cup of blessing is a partaking of the Blood of Christ.' The Article then con- tains a declaration against transubstantiation ; and Article 31, entitled ' Of the one Oblation of Christ finished upon the Cross,' declares that the ' sacrifices of masses in the which it * The italicised words are a misapprehension, as the Second Prayer Book contained the prayer in question, hut altered so as to leave out the sign of the cross and the prayer for the sanctiflcation of the elements by the Holy Spirit (eiriK\i7(ris). In the Report by Brodrick and Freemantle the italicised words are changed, and made to run as follows : — ' Material alterations were introduced in the Prayer of Consecration.' 70 Privy Council Judgments. 1857. was commonly said that the Priest did offer Chirst for the LiDDELL 'quick and dead, to have remission of pains or gnilt, were blasphemous fables and dangerous deceits.' This change in the view, taken of the nature of the sacrament, naturally called for a corresponding change in the ancient altar. It was no tonger to be an altar of sacrifice, but merely a table, at which /the communicants were to partake of the Lord's Supper. Accordingly it appears that, with or without suflScient authority, such change had been carried into effect in the majority of churches before the Act of the 6th and 6th Bdwwrd VI. was passed. At his visitation in 1550, Bishop Ridley issued injunctions, in which, after forbidding the use of super-altaries, he introduces, among other directions, the following item : — ' Whereas in divers places some use the Lord's Board after the form of a table, and some as an altar, whereby dissension is perceived to arise among the un- learned ; therefore, wishing a godly unity to be observed in all our diocese, and for that the form of a table may more move and turn the simple from the old superstitious opinions of the Popish Mass, and to the right use of the Lord's Supper, we exhort the Curates, Churchwardens and Questmen here present to erect and set up the Lord's Board after the form of an honest table decently covered in such place of the quire or chancel, as shall be thought most meet by their discretion and agreement, so that the Ministers with the Communicants may have their place separated from the rest of the people ; and to take down and abolish all other by-altars and tables.' (1 Cardwell, Doc. Ann., p. 94) This injunction extended only to Sddley's own diocese, and probably had no binding force even there ; but an order was afterwards, in the month of November in the same year, issued by the King's Council to Ridley and the other Bishops, reciting that in most of the churches the altars were already taken down, and ordering that those which still remained should be taken down, and tables substituted. (1 Cardwell, Doc. Ann., p. 101.) Bishop Burnet remarks upon those changes, that the reasons for Privy Council Judgments. 7 1 tbem -were to remove the people from the superstitious 1857. opinions of the Popish Mass, and that a table was a more " j^^^ proper name than an altar for that on which the Sacrament was laid. He says : ' It was observed that altars were erected for the sacrifices under the Law, which ceasing they also were to cease, and that Christ had instituted the Sacra- ment, not at an altar, but a table, and it had been ordered by the Preface to the Book of Common Prayer, that if any doubt arose about any part of it, the determining of it should be referred to the Bishop of the diocese. Upon these reasons, therefore, was this change ordered to be made in aU Unglcmd, which was universally executed this year.' (Burnet, Hist, of Ref., vol. ii., p. 95.) By the in- injunctions junctions of Queen Elizabeth issued in the first year of her °*^i^»''»"'- reign (1 CardweU, Doc. Ann., p. 234) it is ordered 'that the holy table in every church be decently made, and set in the place where the altar stood, and there commonly covered, as thereto belongeth, and as shall be appointed by the visitors, and so to stand, saving when the Communion of the Sacrament is to be distributed ; at which time the same shall be so placed in good sort within the chancel, as whereby the Minister may be more conveniently heard of the communicants in his prayer and ministration, and the communicants also more conveniently, and in more number, communicate with the said Minister. And after the Com- munion done, from time to time the same holy table to be placed where it stood before.' These injunctions plainly show that the Communion of Effect oi the the Lord's Supper was to be held at a table as distinguished from an altar, a table in the ordinary meaning of that term ; that as by the Rubric the bread used was to be ' the ordi- nary bread eaten at table with other meats,' so the table was to be of the character of those employed on such occasions ; that it was not only to be moveable, but was from time to time to be moved. The 82nd Canon of 1604 — that which 82na Canon., is now in force — introduces no material alterations ; it assumes the existence in all churches of convenient and decent tables for the celebration of the Holy Communion, and proyides that they shall be kept in repair. It orders 72 1857. Westebton and LiDDBLl V. Beal. Jndgment. Law at present. Applied to tlie altar at St. Barna- 'Table,' what? Privy Council Judgments. that the table be covered in time of Divine Service with A carpet of silk or other decent stuff thought meet by the Ordinary, and at the time of the ministration with a fair linen cloth, as becometh that table. Since this period no alteration^has been made in the Law with respect to the nature of the table to be used. The Rubric of the present Prayer Book provides only that at the Communion time the table, having a fair white hnen cloth upon it, shall stand in the body of the church, or chancel, where morning or evening prayer are appointed to be said ; and the Priest is to commence the service standing at the north side of the table. The term ' altar ' is never used to describe it, and there is an express declaration at the close of the service against the doctrine of transubstan- tiation, with which the ideas of an altar and sacrifice are closely connected. Under these circumstances the first question is, whether the stone structure at St. Ba/mabas' is a Communion Table within the meaning of the Canons and the Rubric ; and their Lordships are clearly of opinion that it is not. The' case is within the principle of Sir Herbert Jenner Fusfs de- i cision in Faullmer v. LitcJifield (\ Robert,Eccl. Rep., p. 184),* from which indeed the present proceeding is in effect an appeal. In the elaborate judgment in that case, the whole subject is discussed with a learning and ability which makes it useless on the present occasion to go further than their Lordships have already done into the authorities. The decree complained of in the appeal of Liddell v. Beat, has ordered the church or chapel wardens of St. Barnabas' to remove the present structure of stone used as a Communion Table, and to provide instead thereof a moveable table of wood. Their Lordships had at first some doubt whether the Law had prescribed of what material the table should be made ; but, on further consideration, they are satisfied that the opinion expressed by Sir Herbert Jemier Fust, and adopted in the decree in this case, is well founded. The term ' table,' and the corresponding Latin word * For statement of this case see Aj>pendix, Note B. Privy Council Judgments. 73 'mensa,' especially yflasu it is considered for what purpose 1857. it is to be used, naturally import a table of the material of L^i^i which tables are ordinarily made. The Communion Table „ "■ was to be provided by the parish, was to be moveablej not ™rt by machinery, but by hand, and was actually to be very ». frequently moved. "Wood is a lighter and cheaper material j^^ ^^^j. than stone, and tke circumstance that the old altar was " ^ ' necessarily of stone would be an additional reason with the Reformers for requiring that the table should be of wood. -The Canons of 1671 expressly provide that it shall be of Canons ot that material:. — ' Mensa ex asseribus composite juncta ; ' and although those Canons, not having received the Royal assent, were not of themselves of binding force, it is probable that they were generally acted upon, and they sufficiently show what was at that time understood to be the proper material of th^ table which, under the Act of Elizabeth, and the regulations of EdAJoa/rd VI., was to be substituted for the altar. The Canons of 1604, which Canons of are now in forces do not contain any provision upon this point. They speak of Communion Tables as things which already exist in parish churches, and provide for their repair, and give minute directions as to the covering to be used. If any doubt had existed at that time as to the material of the table itself, it is not probable that the Canons would have omitted all notice of this questioUi Their Lordships, therefore^ are satisfied that the decision upon this point in FaMlhner v. Litchfield is well founded^ and they must advise her Majesty that the decree as to the , removal of the stone structure at St. Bcmiahas', and the , cross upon it, and the substitution of a Communion Table of wood, ought to be affirmed. Next with respect to the wooden cross attached to the Cross on Communion Table at St. Pcml's. Their Lordships have ^s,^'s. already declared their opinion that the Communion Table intended by the Canon was a table in the ordinary sense of the word, flat and moveable, capable of being covered with a cloth, at which, or around which, the communicants might be placed in order to partake of the Lord's Supper ; and the question is, whether the existence of a cross attached to the 74 Privy Council Judgments. 1857. Ci-edence Tables. table is consistent either witli the spirit or with the letter of those regulations. Their Lordships are clearly of opinion that it is not ; and they must recommend that upon this point also the decree complained of should he affirmed. It may be urged, and, indeed, was urged with great force by Counsel at the bar, that in modem usage the Commu- nion Table never, in fact, is moved ; that the general adop- tion of rails to fence off the table frona the rest of the church shows that its removal is never contemplated ; and that, if it is not to be moved, it is useless to require it to be moveable ; that if it be in such a form that a sufficient por- tion of it may be covered with a fair linen cloth to receive the sacred elements, it is idle to insist on the whole being capable of being covered. To these observations the answer is, that the distinction between an altar and a table is in itself essential; that the circumstances, therefore, which constitute the distinction, however trifling in them, selves, are for that reason important ; and that when posi- tive rules are established by Law, courts of justice, when called into action by parties entitled to maintain the suit, are bound to enforce the Law as they find it, leaving it to the Legislature, if it see fit, in any manner to alter it. The next question is as to the Credence Tables. Here the Rubrics of the Prayer Book become important. Their Lordships entirely agree with the opinions expressed by the learned Judges in these cases, and in Faulkner v. Litch- field, that in the performance of the services, rites, and ceremonies ordered by the Prayer Book, the directions con- tained in it must be strictly observed ; that no omission and no addition can be permitted ; but they are not pre- pared to hold that the use of all articles not expressly mentioned in the Rubric, although quite consistent with, and even subsidiary to, the service is forbidden. Organs are not mentioned, yet, because they are auxiliary to the singing, they are allowed. Pews, cushions to kneel upon, pulpit-cloths, hassocks, seats by the Communion Table, are in constant use, , yet they are not mentioned in the Rubric. Beal. Judgment. Privy Council Judgments. 75 Now, wliat is a Credence Table ? It is simply a small 1857. side-table, on whicb the bread and wine are placed before l^^i, the consecration, having no connection with anv sunersti- „ "■ tious usage oi the Church of Rome. Their removal has ana been ordered on the ground that they are adjuncts to an altar ; their Lordships cannot but think that they are more properly to be regarded as adjuncts to the Commu- nion Table. The Rubric directs that at a certain poiut in the course of the Communion Service (for this is, no doubt, the true meaning of the Rubric) the Minister shall place the bread and wine on the Communion Table, but where they are to be placed previously is nowhere stated. In practice they are usually placed on the Communion Table before the commencement of the service, but this certainly is not ac- cordiug to the order prescribed. Nothing seems to be less objectionable than a small side-table, from which they may be conveniently reached by the officiating Minister, and at the proper time transferred to the Communion Table. As to the Credence Tables, their Lordships, therefore, must advise a reversal of the sentence complained of. Next, as to the embroidered cloths, it is said that the Embroidered 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 Lord- ships 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 this Canon seems to be to secure a cloth of a suf- ficiently handsome description, not to guard against too much splendour. In practice, as was justly observed at the bar, black cloths are in many churches used during Lent, and on the death of the Sovereign and some other occasions, and there seems nothing objectionable in the practice. Whether the cloths so used are suitable, or not, is a matter to be left to the discretion of the Ordinary. In this case their Lordships do not see any sufficient reason for interference, and they must, therefore, advise the rever- 76 Privy Council Judgments. 1857. Westertok and LlDDELL u. Beal. Judgment. sal of the sentence as to the cloths used for the covering of the Lord's Table during the time of Divine Service, both with respect to St. Paul's and St. Barnabas'. The last question is with respect to the embroidered linen and lace, used on the Communion Table at the time of the ministration, of the Holy Communion. The Rubric and the Canon prescribe the use of a fair white linen cloth, and both the learned Judges in the Court below have been of opinion that embroidery and lace are not consistent with the meaning of that expression, having regard to the nature of the table on which the cloth is to be used. Although their Lordships are not disposed in any case to restrict within narrower limits than the Law has imposed) the dis- cretion which within those Hmits is justly allowed to con- gregations by the rules both of the Ecclesiastical and the Common Law CourtSj the directions of the Rubric must be complied with ; and, upon the whole, their Lordships do not dissent from the construction of the Rubric adopted by the present decree upon this point ; and they must there- fore advise her Majesty to afiS.rm it. As the judgments in these cases have been materially altered, and such alterations ought to have been made at the hearing in the Arches Court, so much of the sentence of that Court in each case as awards costs against the Appellants must, of course, be reversed ; and in these proceedings, as well as in the present appeals, each party must bear their own costs. In the case of ' Gorham v. Bishop of Uxeter,' where a difference of opinion as to the judgment existed amongst the Prelates who attended at the hearing, it was thought proper publicly to announce such difference. In the pre- sent case it is satisfactory to their Lordships to be able to state that both his Grace the Archbishop of Oajnterhwry and the Lord Bishop of London concur in the judgment which has just been delivered. 1860. LIDDEUj V. Bbal. Further proceedings." Privy Council Judgments. li [Further proceedings in Liddell r. Beal (St. Bwrnabas') * June 22, 1860. — ^Motion made by Hayes and Money, the Chapel wardens of St. Barnabas', stating on affidavit that the orders of the Court contained in the Monition had been complied with, and praying that they might be dis- charged, with costs, from the further observance of the suit. This was objected to by the Respondent, who brought in an Act on Petition to enforce the Monition, alleging that it was in great part not complied with ; first, that the metal cross had been placed on the sill of the great eastern window of the Church above the Communion Table ; second, that the Table which had been substituted for the stone altar was not a flat table, but had an elevation or super-altar ; third, that the Commandments were not set up on or against the east end of the Church over the Com- munion Table, but were set up against the walls on the east side of the Chancel screen. In the answer it was alleged that the Monition had been obeyed ; that the cross was disconnected with the Com- munion Table ; that the Table was flat, the elevation being a moveable ledge of wood at the back of the Table, on which the candlesticks were placed ; and, lastly, that, on account of the structure of the Church, the Congregation would not be able to read the Com m andments if they were placed over the Communion Table. After argument by Mr. Beal (the Respondent) in person, and by Dr. PMllimore, Q.C., and Dr. Tristram for the Chapelwardens, judgment was pronounced by Sir J. Knight Bedob, as follows : — judgment. The question before their Lordships is whether the ilinister, or Incumbent, and the Churchwardens, or Chapel- wardens, of St. Barnabas', in the Diocese of London, have complied with a Monition issued in the course of last year in consequence of a decision of the Privy Council in a former year, by which l^ey were directed to remove the * before Archbishop of York ; Lord Kingsdown ; Lord Justice Knight Brace ; Lord Justice Turner ; Sir Edward Eyan ; Sir John T. Coleridge. 78 1860. LiDDELL V. Beai. Further proceedings. Judgment. Privy Council Judgments. structure of stone used as a Cominuiiioii Table, in the said Church, or Chapel, together with the cross on or near to the same, and to provide instead thereof a flat, moveable Table of wood ; to remove any cover used at the time of the ministration of the Sacrament of the Lord's Supper worked or embriodered with lace, or otherwise ornamented, and to provide and substitute a fair white linen cloth with- out lace, or embroidery, or other ornament to cover the Communion Table at the time of the ministration of the Lord's Supper, and to cause the Ten Commandments to be set up on or against the east end of the said Church, or Chapel, in compliance with the Canon in that case made and provided, thirty days after they shall have been served therewith. It has been alleged by Mr. Beal in a very temperate argument, and a very sensible one, that these requisitions have not been complied with ; at least that some of them have not, because as to some of the requisitions there is not any complaint or question. The first is the direction ' to remove the structure of stone used as a Communion Table in the said Church, or Chapel.' That has been done ; there can be no doubt that that has been obeyed. But the Monition goes on ' together, with the Cross at or near the same.' Now there was formerly a cross which stood upon the stone table, and was, in a sense, at least affixed to it ; which was objected to, and, as it appears, properly objected to. The stone table has been altogether removed, and with it the cross ; but the cross has been placed in another part of the Church, or Chapel, not in any sense upon the table which has been substituted for the stone table, nor in any sense in communication, or contact, or connection with it. It re- mains in the church as an ornament of the church, and their Lordships think (if the word may respectfully be applied to such a subject) not an unusual or improper ornament ; in no sense remaining there so as to disobey or conflict with the order contained in this Monition. Their . Lordships therefore think that that part of the Monition which directs the structure of stone to be Judgment. Privy Council Judgments. 79 removed, together with the cross on or near the same, has i860. been oheyed. lJ^^i, It then directs that there shall be provided 'instead ^^^^ thereof a flat, moveable table of wood.' That has been Further done. It is stated, however, with truth that upon this p™™^*™^^- Table there is placed, and in general stands, a moveable ledge of wood for the purpose of holding the candlesticks and vessels ; at least that is the purpose for which it is used. It is, as I have said, not- fixed to the Table. If remaining there when the cloth is to be placed upon the Table for the purpose of the administration of the Lord's Supper, as it would interfere with that, it is accordingly- removed, and the cloth is placed on the Table, and then the ledge replaced. It is not shown, aiid their Lordships think it ought not to be inferred, that there is anything superstitious (if the term may be used) or anything improper in the addition of that ledge. But if there were, their Lordships are not satisfied that it is within the terms of the Monition, or that the Monition in any sense or respect extends to it. But in whatever way that matter be taken, their Lordships think that neither disobedience rnor ofience is established with regard to the moveable ledge. They are then directed ' to remove any cover used at the time of the ministration of the Sacrament of the Lord's Supper worked or embroidered with lace, or otherwise ornamented, and to provide or substitute a fair white hnen cloth, without lace or embroidery, or other ornament, to cover the Communion Table at the time of the ministration of the Lord's Supper. That has been done, because, as has already been said, though the ledge would interfere with the covering of the Table completely if the ledge re- mained, the removing of the ledge for the purpose prevents any such difficulty or objection. They are further directed ' to cause the Ten Command- ments to be set up on or against the east end of the Church, or Chapel,' in compliance with the Canon in that case made and provided. The whole of that part of the sentence must of course be taken together, and when we refer to 80 Privy Council Judgments. I860. Beal. Further proceedingE Judgment. the Canon on the subject (wMct is the 82nd Canon) we find it its thus expressed : — ' That the Ten Commandents he set up upon the east end of everj Church, or Chapel, where the people may best see and read the same.' Now it appears upon the evidence, and their Lordships are satis- fied that, if this were literally complied with in the manner contended for, from the nature of the screen, and the opening in the screen, which has not been directed to be removed, the people assembled could not see or read the Ten Commandments so set up ; and their Lordships are of opinion, from the evidence before them, that the Ten Com- mandments are set up as nearly according to the Canon as the nature of the structure will permit; and they think, therefore, that neither disobedience, nor irregnlarity, nor evasion has been established with respect to the circum- stance ; and as to the letters in which the Ten Command- ments are written, a facsimile of the writing having been laid before us, their Lordships are of opinion that there is no substantial difficulty in the way of reading the letters which have been used; the letters (which are now not uncommon) can very easily be deciphered and understood by anyone capable of reading ordinary vmting or printing, which in ordinary cases is used. Their Lordships are of opinion, therefore, that no dis- obedience, no impropriety, no irregularity has been estab- lished ; and that the present application therefore fails. But the application has been conducted temperately and properly, and their Lordships do not think it necessary to give any direction as to costs.] [Reported in 14 Moore's Privy Council Reports.] 81 The reverend ROWLAND WIL- "I . LIAMS Appellant; The right REVEREND the LORD 1 ^ BISHOP OE SALISBURY . . . .) Respondent. The REVEREND HENRY BRISTOW WILSON, Clerk . . . AND I Appellant ; The REVEREND JAMES FENDALL, 1 ^^^^^^^^^^ , Clbee J On Appeal from, the Arches Gov/rt of Canterbury . Proceedings against a CJerk in Holy Orders under the Churcli Discipline Act, 3rd and 4th. Vic, c. 86., for publishing heretical doctrines in contravention and violation of the Articles of Religion and Formu- laries of the Church of England, are of a criminal nature, and it is necessary that the accusation should be stated with precision and distinctness in the pleadings. The Articles of Charge must (1) distinctly state the opinions "which the Clerk has advisedly maintained, and must set forth the passages of the work in which those opinions are stated ; and (2) such Articles must specify the doctrines of the Church, which the opinions of the Clerk are alleged to have contravened, and the particular Articles of Religion and the Formularies which contain such doctrines. The Accuser is for the purpose of the Charge con- * Present: The Lord Chancellor (Westbury); the Archbiehop of Canterbury (Dr. Longley) ; the Archbishop of York (Dr. Thomson) ; the Bishop of London (Dr. Tait) ; Lord Cranworth, Lord Chelmsford, and Lord Kingsdown. G 82 Privy Council Judgments. fined to the Charges, which are included and set out in the Articles of Charge as the matter of accusation; but it is competent to the Accused to explain from the rest of his work, from which the passages libelled are extracted, the sense or meaning of any passage or word that is challenged by the Accuser. With respect to the le^l tests of doctrine in the Church of JEnglcmd, by the appHcation of which the Judicial Committee, or the Appellate Court is to try the soundness of the passages libelled, it is the pro- vince of that Court, on the one hand, to ascertain the true construction of the Articles of Religion and For- mularies referred to in each charge, according to the legal rules for the interpretation of Statutes and written instruments ; and, on the other hand, to ascer- tain the plain grammatical meaning of the passages which are charged as being contrary to, or incon- sistent with, the doctrines of the Church. Matters of doctrine in which the Church has pre- scribed no rule may be discussed without penal conse- quences ; and no rule is to be ascribed to the Church, which is not found expressly and distinctly stated, or which is not plainly involved in, or to be collected from, the written law of the Church. In the eleventh Article of Religion it is laid down that ' we are accounted righteous before God only for the merits of our Lord and Saviour Jesus Christ, and not for our own works or deservings.' Held, that ag the Article was wholly silent as to the merits of Jesus ; Christ being transferred to us, and asserts only that we are justified for the merits of Jesus Christ our Saviour by faith, and by faith alone, that it was not penal in a Clergyman to speak of merit by transfer as a 'fiction,' however unseemly that word may be when used in connection with' such a subject. In an A.rticle against a Clergyman it was charged that it was a contradiction of the doctrine of the Chlirch of Englami as laid down in the 6th and 20th Articles of Religion, the Nicene Creed, and in the Ordination Service of Priests to affirm that any part of the Canonical Books of the Old and New Testament upon any subject whatever, however unconnected with reli- gious faith, or moral duty, was not written under the inspiration of the Holy Spirit. Reld, that the charge that every part of the Scriptures was written under Privy Council Judgments. 83 the inspiration of the Holy Spirit was not established, as it was not to be found either in the sizth or twentieth Articles of Religion, the Formularies, the Service for the Ordering of Priests, or the Nicene Creed. It is not competent for a Clergyman of the Church oi England to teach or suggest, that a hope may be entertained of a state of things contrary to what the Church expressly teaches or declares will be the case. An Article setting forth extracts of a review of a work that a Clergyman of the Church of England had reviewed, charging that he had therein advisedly de- clared that after this life there would be no judgment of God, awarding either eternal happiness or eternal misery, contrary to the Three Creeds, the Absolution, the Catechism, and the Burial and Commination Ser- vice : Held, not established by the passages of the work pleaded. It is not penal for a Clergyman to express a hope of the ultimate pardon of the wicked. These appeals were brought from sentences pronounced June 1863. by the Dean of the Arches (Dr. Lushington), in two separate -ysril^jis suits instituted in that Court. The one promoted by the "• Respondent, the Bishop of Salisbury, against the Appellant, salisetoy the Rev. Boviland Williams, D.D., Vicar oi Broad Ghalh, in Wilson the county of Wilts, and Diocese of Salisbury ; and the fexdail. other promoted by the Respondent, the Rev. James Fendall, statement. against the Appellant, the Rev. Henry B. Wilson, a Clerk in Holy Orders, and Vicar of Great StaugJiton, in the Diocese of Ely. Both suits came before the Arches Court on Let- ters of Request at the instance of the Bishops of Salisbury and My, and were instituted under the Church Discipline Act, 3 and 4 Vic. c. 86, for publishing in a book, called ' Essays and Reviews,' two .separate Articles, or Essays (the one by the Appellant Williams, entitled ' Btmsen's Biblical Researches ;' and the other by the Appellant Wilson, called ' Seances historiques de Geneve ' — ' The National Church'), in both of which were maintained and affirmed as it was alleged by the Promoters, erroneous and heretical doctrines, and opinions contrary and repug- nant to the doctrine and teaching of the United Church of England aud Ireland. g2 84 1863. WnMAMS V. Bishop of Salisbury and WlLSOH V, Fendall. statement. Privy Council Judgments. The Articles of Charge brought in by the Respondent the Bishop of 8alisbwry in the Arches Court against Dr. Williams were originally twenty-two, ziaA those against Mr. Wilson by the'Respondent Fendall nineteen in number, in which various passages extracted from the Appellants' respective Essays were articled and alleged to contain doc- trines contrary to, or inconsistent with, the doctrines of the Church of England., as set forth in the Articles of Religion, and contrary to, and in derogation of, the doctrine and teaching of the Church as contained in the Book of Com- mon Prayer and in her Formularies. The several Articles of Charge were objected to, and op- posed on behalf of both the Appellants ; those admitted against the Appellant Dr. Williams, and which remained, or were reformed, and now formed the subject of Appeal to the Privy Council, were Originally numbered the 7th, 12th, and 16th, and were as follows : — ' Seventh. And we further article and object to you, the said Rev.i2. WilUams, that in the said Essay, or Review, are contained the fol- lowing passages — that is to say, at pages 60 and 61 : — " As in his Egypt our author sifts the historical date of the Bible, so in his ' Oott in der Gesohichte ' he expounded its directly religious element. Lamenting, like Pascal, the wretchedness of our feverish being, when estranged from its eternal Stay, he traces, as a countryman of Segel, the Divine thought bringing order out of confusion. Uuhke the despairing school who forbid us to trust in God, or in conscience, unless we kill ourselves with literalism, he finds salvation for men, and states, only in becoming acquainted with the Author of our life, by whose reason the world stands fast, whose stamp we bear in our forethought, and whose voice our conscience echoes. In the Bible, as an expression of devout reason — and therefore to be read with reason in freedom-^he finds record of the spiritual giants, whose experience generated the religious atmosphere we breathe." At pages 77 and 78, "But if such a notion alarms those who think that, apart from Omniscience belonging to the Jews, the proper conclusion of reason is Atheism ; it is not inconsistent with the idea that Almighty Privy Council Judgments. 85 God lias been pleased to educate men, and nations employ- 1863. ing imagination no less than conscience, and suffering His -vrii^Mg lessons to play freely witUn the limits of humanity, and its -^^^^^ qj, shortcoming. Nor will any fair reader rise from the pro- saushuht phetical disquisition, without feehng that he has been Wilson under the guidance of a master's hand. The great result fendall. is to vindicate the work of the Eternal Spirit, that abiding statement. influence which, as our Church teaches us in the Ordination Service, underlies all others, and in which converge all images of old time, and means of grace now ; Temple, Scripture, Finger and Hand of God; and again preaching;- Sacraments, Waters which comfort, and Flame which burns. If such a Spirit did not dwell in the Church, the Bible would not be inspired, for the Bible is, before all things, the written voice of the co^g^egation, Bold as such a theory of inspiration may sound, it was the earliest creed of the Church, and it is the only one to which the facts of Scripture answer. The sacred writers acknow- - ledge themselves men of Uke passions with ourselves, and we are promised illumination from the Spirit, which dwelt in them. Hence, when we find our Prayer Book constructed on the idea of the Church being an inspired society, instead of objecting that every one of us is falUble, we should de- fine inspiration consistently with the facts of Scripture and of human nature. These would neither exclude the ideas of fallibility among Israelites of old, nor teach us to quench the spirit in true hearts for ever. But if anyone prefers thinking the sacred writers passionless machines, and calling Luther and Milton ' uninspired,' let him co- operate in researches by which his theory, if true, will be triumphantly confirmed." ' And we article and object that in the passages heinbefore recited, being portions of the said Essay, or Review, you did advisedly maintain or affirm that the Bible, or Holy Scripture, is "an expression of devout reason," and " the written voice of the congregation," not tbe " Word " of God, nor containing special revela- tion of His truth, or of His dealings with mankind, nor .of the rule of our faith ; or that you did therein advis- 86 Privy Council Judgments. 1863. WlLLIASIS edly maintain and affirm doctrines or opinions to that or the like purport and efi'ect, and that the said doctrines, positions, or opinions, are contrary to, or inconsistent with, the 6th, 7th, and 20th, of the said Articles of Religion, and contrary to, and inconsistent with, that part of the Niaene Creed which declares in *snbstance that the Holy Ghost spake by the Prophets.' ' Twelfth. And we article and object to yon, the Rev. B. Williams, that in the said Essay, or Review, is contained the following passages, at pages 81 and 87 : -^" Propitiation would be the recovery of that peace which cannot be while sin divides us from the Searcher of hearts." And we article and' object that in the passage hereinbefore recited, being a portion of the said Essay, or Review, yon did advisedly maintain and affirm that the offering of Christ is not the propitiation for the sins of the whole world ; or that you did therein advisedly maintain and affirm a doctrine, or opinion, to that or the like purport and effect, and that such doctrine or opinion Is contrary to, or inconsistent with, the Thirty-first of the said Articles of Religion.' ' Fifteenth. And we further article an(J object to you, the Rev, E. Williams, that in the said Essay, or Review, is contained the following passage, at pages 80 and 81, in the words following — to wit : — " For though he embraces with more than orthodox warmth New Testament terms, he explains them in such a way that he may be charged with using Evangelical language in a philosophical sense. But, in reply, he would ask what proof is there that the reason- able sense of St. Paul's words was not the one which the Apostle intended ? ' "Why may not justification by faith have meant the peace of mind or sense of Divine approval which comes of trust in a righteous God, rather than a fiction of merit by transfer ? St. Paul would then be teaching moral re- sponsibility as opposed to sacerdotalism, or that to obey is better than sacrifice, Faith would be opposed, not to the good deeds , which conscience requires, but to works of appeasement by ritual. Justification would neither be an arbitrary ground of confidence, nor a reward upon con- Privy Council Judgments. 87 dition of our disclaiming merit, but rather a verdict of for- 1863. giveness on. our repentance, and of acceptance upon the -williaws oflFering of our hearts." _ bismpok ' And we article and object that in the passage herein- sausbuky before recited, being a portion of the said Essay, or Review, wilsok you did 8,dvisedly maintain and affirm that justification by fekdall. faith meaas only the peace of mind, or sense of Divine ap- statement. ^ proval, wHch comes of trust in a righteous God, and that justification is a verdict of forgiveness upon our repent- ance, and of acceptance upon the offering of our hearts ; or that yoi did therein advisedly maintain and affirm a doctrine or opinion to that or the like purport and effect ; and that such doctrine or opinion is contrary to, or incon- sistent with, the Eleventh of the said Articles of Religion.' As regarded the Appellant Wilson, the Articles of Charge remaining ard reformed were those originally numbered Eighth, Twelfth, and Fourteenth. The Eighth Article was as follows : — ' And we further article and o')ject to you, the Rev. H. B. Wilson, that in the said Bsay, or Review, is the following passage, at pages 175, li6, and 177: — "It has been matter of great boast within the Church of England, in common with other Protestmt Churches, that it is founded upon the 'Word of Gd' — a phrase which begs many a question, when applied collectively to the Books of the Old and New Testamtnts, a phrase which is never so applied to them by any cf the Scriptural authors, and which, according . to Protestantprinciples, never could be applied to them by any sufficientauthority from without. In that which may be considerec' the pivot article of the Church, this expres- sion does not occur, but only ' Holy Scripture,' ' Canonical Books,' ' 01c and New Testaments.' It contains no de- claration of tie Bible being throughout supernaturally sug- gested, nor aiy intimation as to which portions of it were owing to a special Divine illumination, nor the slightest attempt at d'fining inspiration, whether mediate or imme- diate, whethr through, or beside, or overruling the natural faculties of tie subject of it — not the least hint of the re- 88 Privy Council Judgments. 1863. Williams V. Bishop op Salisbdby and Wilson V. Fendall. Statement. lation between the Divine and Luman elements in the com- position of the Biblical Books. Even if the Fathers have usually considered ' canonical ' as synonymous with ' mi- raculously inspired,' there is nothing to show that their sense of the word must necessarily be applied in our own Sixth Article. The word itself may mean either Books ruled and determined by the Church, or regulative Books, and the employment of it in the Article hesitates between these two significations. For at one time ' Holy Scripture ' and Canonical Books are those Books ' of whosi authority never was any doubt in the Church ' — that is, they are ' determined ' Books — and then the other, or noi- Canonical Books, are described as those which ' the Chuiph doth not apply to establish any doctrine ' — that is, tley are not ' regulative ' Books. And if the other princiml Churches of the Reformation have gone further in defintion in this respect than our own, that is no reason we should force the silence of our Church into unison with their expressed declarations, but rather that we should rejoice in our com- parative freedom. The Protestant feeling among us has satisfied itself in a^ blind way with the anti-Isman declar- ation that ' Holy Scripture containeth all thiigs necessary to salvation ; so that whatsoever is not read therein, nor may be proved thereby, is not to be require!, of any man that it should be believed as an Article of the FVith,' etc., and without reflecting how very much is wisely len open in that Article. For this declaration itself is partlyWegative and partly positive. As to its negative part, it Seclares that nothing — no clause of creed, no decision oi council, no tradition or exposition — is to be required to bl believed on peril of salvation, unless it be Scripture; but it does not lay down that everything which is contained W Scripture must be believed on the same peril. Grit maype expressed thus : — The Word of God is contained in Scrip are, whence it does not follow that it is co-extensive wih it. The - Church to which we belong does not put tha stumbling Block before the feet of her members ; it is the r own fault if they place it there for themselves, authors (' their own ofience." ' ' Privy Council Judgments. 89 ' And we article and object to you, that in the passage 1863. hereinbefore recited, being portion of the said Essay, or Re- -yy^^jig view, yoa did advisedly declare and affirm in effect that the Scriptures of the Old and New Testament were not written under the inspiration of the Holy Spirit, and that they were not necessarily at all, and certainly not in parts, the Word of God ; or that you did therein advisedly declare and af- firm a doctrine or opinion to that or the like purport or effect ; and that such doctrine or opinion is contrary to, or inconsistent with, the 6th and 20th of the said Articles of Religion, and contrary to, or inconsistent with, the teaching of the said Church, as contained in that part of the Nicene Creed which declares in substance that the Holy Ghost spake by the Prophets ; and as set forth in the Ordination of Priests in the Book of Common Prayer — to wit, in the words followiag : — " The Bishop shall deliver to every one of them the Bible into his hands, saying, ' Take then authority to preach the "Word of God.' " ' Twelfth. Also we further article and object to you, the Rev. H. B.Wilson, that in the said Essay, or Review, are the following passages, at pages 153 and 154 : — "And when we hear fine distinctions drawn between covenanted and uncovenanted mercies, it seems either to be a distinction without a difference, or to amount to a denial of the broad and equal justice of the Supreme Being. We cannot be content to wrap this question up, and leave it for a mystery as to what shall become of those myriads of non-Christian races." And we article and object to you that in the passage hereinbefore recited, being portion of the said Essay, or Review, you did advisedly declare and affirm that the condition of men in a future state of existence will be determined by their moral conduct, according to the law or sect which they severally profess, exclusive of their religious belief; or that you did therein advisedly declare and affirm a doctrine or opinion to that or the like purport or effect ; and that such doctrine or opinion is con- tradictory to, or inconsistent with, the 18th of the said Articles of Religion.' ' Fourteenth. And we further article and object to you, 90 Privy Council Judgments. Williams r. Blsuop of Saliselky and Wiisos V. Fendall. statement. the Rev. H. B. Wilson,, that in the said Essay, or Review, is contained the following passage, at page 206 : — " The Christian Chnrch can only tend on those who are com- mitted to its care to the verge of that abyss which parts this world from the world unseen. Some few of those fostered by her are now ripe for entering on a higher career; the many are but rudimentary spirits-;— general souls. What shall become of them ? If we look abroad in the world, and regard the neutral character of the multi- tude, we are at a loss to apply to them either the promises or the denunciations of revelation. So the wise heathens could anticipate a reunion with the great and good of all ages ; they could represent to themselves, at least in a figurative manner, the punishment and purgatory of the wicked ; but they could not expect the reappearance in another world, for any purpose, of a Thersites or an Hyper- bolos — social and political justice had been sufficiently done upon them. Tet there are such as these, and no better than these, under the Christian name — babblers, busybodies, livers to get gain, and mere eaters and drinkers. The Roman Church has imagined a Umbus infantium ; we must rather entertain a hope that there shall be found, after the great adjudication, receptacles suitable for those who shall be infants, not as to years of terrestrial life, but as to spiritual development — nurseries, as it were, and seed grounds, where the undeveloped may grow up under new conditions — the stunted may become strong, and the per- verted be restored. And when the Christian Church in all its branches shall have fulfilled its sublunary office, and its Founder shall have surrendered His kingdom to the Grreat Father, all, both small and great, shall find a refuge in the bosom of the Universal Parent, to repose, or be quickened into higher life, in the ages to come, according to His will." And we article and object to yon, that in the passage hereinbefore recited, being a portion of the said Essay, or Review, you did advisedly declare and affirm, in efieot, that after this life, and at the. end of the existing order of things on this earth, there will be no judgment of God awarding to those men whom He shall then ap- Privy Council Judgments. 91 prove everlasting life or eternal happiness, and to those 1863- men whom He shall then condemn everlasting death or wimAMs eternal misery ; or that you did therein advisedly declare ^^^^^ „^ and affii-m a doctrine or opinion to that or the like pur- ^'^^''"^ port or effect; and that the said doctrine or opinion is Wilson contrary to, or inconsistent with, the teaching of the said fendall. Church, as contained in the Creeds commonly called the statement. _ Apostles' Creed, the Nicene GreeA, and St. Athafmsms' Creed ; and as contained in the Absolution or Remission . of Sins, which forms part of the Morning Prayer in the said Book of Common Prayer, and in which the Priest says, "Wherefore let us beseech Him to grant us true repentance and His Holy Spirit, that those things may please Him which we do at this present, and that the rest of our life hereafter may be pure and holy, so that at the last we may come to His eternal joy, through Jesus Christ our Lord." And as contained in the following part of the Catechism, which forms part of the said Book of Common Prayer : — " Question. What desirest thou of God in this prayer ? Answer. I desire my Lord God, our Heavenly Father, who is the Giver of all goodness, to send His grace unto me and to all people. And I pray unto God that He will keep us from all sin and wickedness, and from our ghostly enemy, and from everlasting death." And as contained in the following portions of the Order for the Burial of the Dead, which forms part of the said Book of Coinmon Prayer : — " In sure and certain hope of the resurrection to eternal life through our Lord Jesus Christ, who shall change our vile body, that it may be like unto His glorious Body, according to the mighty working whereby He is able to subdue all things unto Himself" " merciful God, the Father of our Lord Jesus Christ; who is the B«surrection and the Life, in whom whosoever believeth shall live though he die ; and whosoever liveth, and believeth in Him, shall not die eternally ; who also taught us, by His Holy Apostle St. Paul, not to be sorry as men without hope for them that sleep in Him ; we meekly beseech Thee, Father, to raise us from the death of sin unto the life of righteousness, that when we shall 92 Privy Council Judgments. 1863. WiLLUJIS V. Bishop op Salisbury and Wilson r. Fexdall. Statement. 1862. Proceedings in Gonrt of the 'Arches. depart this life we may rest in Him, as our hope is this our brother doth ; and at the general resurrection in the last day, we may be found acceptable in Thy sight and receive that blessing which Thy well-beloved Son shall then pro- nounce to all who love and fear Thee, saying, ' Come ye blessed children of My Father^ receive the kingdom pre- pared for you from the beginning of the world.' " And as contained in the following portions of the Commination Service, which forms part of the said Book of Common Prayer : — " The day of the Lord cometh as a thief in the night." — " Then shall it be too late to knock when the door shall be shut, and too late to cry for mercy when it is the time of justice. O terrible Voice of most just judg- . ment, which shall be pronounced upon them, when it shall be said unto them, ' Go ye cursed into fire everlasting, which is prepared for the devil and his angels.' This if we do Christ will deliver us from the curse of the law, and from the extreme malediction which shall hght upon them that shall be set upon the left hand ; and He will set us on His right hand, and give us the gracious benediction of His Father, commanding us to t^e posses- sion of His glorious kingdom." The admission of the original Articles of Charge was opposed in the Court below (the Arches Court of Canter- bury) both by Dr. Williams and Mr. Wilson, and argued against at great length by Dr. Deane, Q.C., and Mr. Fitzjames Stephen on their behalf; Dr. PMllimore, Q.C., Mr. Coleridge, Q.G., and Dr. Swabey were heard in support of the Articles. The learned Judge of the Court of Arches (the Right Hon. Dr. Lushington) gave judgment on the question of the admissibility of the original Articles on June 25, 1862. With regard to the case of Dr. Williams, he rejected all such Articles of Charge as were not merely formal ones, except the 7th, 12th, and 15th, ordering the 7th and 12th to be reformed. With regard to the case of Mr. Wilson, he rejected all such Articles as were not merely formal, except the 8th, 12th, and 14th, ordering the 8th and 12th to be reformed, and gave to either party leave to Privy Council Judgments. 93 appeal to Her Majesty in Council* from those judgments, 1862. but no appeal in eithe? case was asserted. wimTMs The Articles were accordingly reformed and brought in -^^^g^a^ ^^ in the form before stated. salisbtjky Both Dr. Williafns and Mr. Wilson filed allegations in Wilson answer to the reformed Articles, in which they severally feitoali.. and specifically denied that they had maintained, or affirmed, statement. ^ heretical doctrines contrary to tiie doctrine and teaching of the Church. The allegations in reply to the reformed Articles having, after argument, been admitted, evidence was directed to be taken vvvd voce in open Court. The authorship and the publication of the several Essays in question were admitted, but no evidence was adduced by either side. On the 15th of Dec, 1862, the learned Judge, in pronounc- ing the final sentence of the Court, said that he had already pronounced his opinion on the Articles of Accusation, and that he saw no reason to alter, or retract any portion of the judgments he had delivered on June 25, 1862 ; and by -his final sentences declared the Articles of Accusation proved, and in each case pronounced sentence of suspension ah officio et heneflcio for the term of one year, condemning both the Defendants (^Williams and Wilson) in costs. Separate Appeals were brought ^om these sentences, j^me 19, The Respondents adhered to the Appeals. ' 20, 25, and The Appellants, Dr. WilUams and Mr. Wilson, appeared ^ ' in person ; Proceedings The Queen's Advocate (Sir B. PhilUmore, Q.C.) and judicial Dr. Swabey for the Respondent Fendall ; and °'°°'' The Queen's Advocate and Mr. Coleridge, Q.C, for the Respondent the Bishop of Salishwry. The Respondent Fendall abandoned at the hearing of the Twelfth Article of his Charge. Mr. Wilson and Dr. Williams, Appellants in person, were heard in support of their respective Appeals. * 3rd and 4th Vic, c. 86, sec. 13, gives a discretionary power to the Judge to refuse or allow an appeal from interlocutory judgments in pro- ceedings under that statute., 94 Privy Council Judgm.ents. 1863. Williams V. Bishop of SAUSBrrET and WlLSOS V. Fendall. Feb. 8, 1864. Judgment. Character of the suits. Limits of the jurisdic- tion of the Court as to doctrine. Tte Queen's Advocate contra for both. B/espondents. Mr. Coleridge, Q.O., for the Bishop of SaUsiwry, having been heard, Judgment was reserved to February 8, 1864, when it was delivered by ^ The Lord Chancelloe (Westbury). These Appeals do not give to this Tribunal the power, and therefore it is no part of its duty to pronounce any opinion on the character, effect, or tendency of the publications known by the name of ' Essays and Reviews.' Nor are we at liberty to take into consideration, for the purposes of the ' prosecution, the whole of the Essay of Dr. WilUdms or of the Essay of Mr. Wilson. A few short extracts only are before us, and our judgment must by Law be confined to the matter which is therein contained. If, therefore, the Book, or these two Essays, or either of them as a whole, be of a mischievous and baneful tendency, as weakening the foundation of Christian belief, and likely to cause many to offend, they will retain that character, and be liable to that condemnation, notwithstanding this our judgment. These prosecutions are in the nature of criminal pro- ceedings, and it is necessary that there should be precision and distinctness in the accusation. The Articles of Charge must distinctly state* the opinions which the Clerk has advisedly maintained, and set forth the passages in which those opinions are stated ; and, further, the Articles must spefcify the doctrines of the Church which such opinions or teaching of the Clerk are alleged to contravene, and the particular Articles of Religion or portions of the For- mularies which contain such doctrines. The ActJuser is, for the purpose of the Charge, confined to the passages which are included and set out in the Articles as the matter of the accusation ; but it is competent to the accused party to explain from the rest of his work the sense or meaning of any passage or word that is challenged by the Accuser. With respect to the legal tests of doctrine in the C Lurch ■ of England, by the application of which we are to try the soundness or unsoundness of the passages libelled, we agree with the learned Judge in the Court .below that the Privy Council Judgments. 95 judgment in the Gorham case is conclusive : — ' This Court, Peb. S, constituted for the purpose of advising her Majesty in ^ matters which come within its competency, has no jurisdic- Williams ,tion or authority to settle matters of faith or to determine bishop of what ought in any particular to be the doctrine of the anrj Church of England. Its duty extends only to the consider- Wilson ation of that which is by Law established to be the doctrine Fenball. of the Church of England, upon the true and legal con- ■" ^™ " ^ struction of her Articles and Formularies.' (Ante, p. 35.) By the rule thus enunciated it is our duty to abide. Our province is, on the one hand, to ascertain the true construction of those Articles of Religion 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 con- trary to or inconsistent with the doctrine of the Church, ascertained in the manner we have described. It is obvious that there may be matters of doctrine on Some which the Church has not given any definite rule or doctrine are standard of faith or opinion — there may be matters of ^'*'°p^°- 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 reKgious speculation and enquiry on which the Church may have refrained from pronouncing any opinion at all. On matters on which the Church has 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. With resnect to the construction of the passages extracted Accused, ^ . ^ . now far re- from the Essays of the accused parties, the meaning to be sponsible. ascribed to them must be that which the words bear, ac- cordincr to the ordinary grammatical meaning of language. That only is matter of accusation which is advisedly taught or maintained by a Clergyman in opposition to the doctrine of the Church. The writer cannot, in a proceeding such as. 96 Privy Council Judgments. Feb. 8, 1864. His views as to Holy Scripture. the present, be held responsible for more than the concln-' sions which are directly involved in the assertion he has made. With these general remarks we proceed to consider, in the first place, the Charges against Dr. WilUains. All the Charges against Dr.'' Williams were rejected by the learned" Judge in the Court below, or given up at the hearing before us, except the Charges contained in the 7th and 15th Articles. The 7th Article, as reformed, sets forth certain passages extracted from pages 60 and 61, and from pages 76 and 78, of the volume containing Dr. WilUanns' Essay, and charges that in the passages so extracted Dr. Williams has advisedly maintained and affirmed that the Bible, or Holy Scripture, is an expression of devout reason, and the written voice of the congregation — not the Word of God, nor containing any special revelation of His truth, or of His dealings with mankind, nor the rule of our faith. Dr. Williams has no- where in terms asserted that Holy Scripture is not the Word of God ; and the accusation, therefore, must mean that by calling the Bible ' an expression of devout reason, and therefore to be read with reason in freedom,' and stating that it is ' the written voice of the congregation,' Dr. WilliaTns must be taken to affirm that it is not the Word of God. Before we examine the meaning of these expres- sions it is right to observe what Dr. Williams has said on the subject of Holy Scripture in the second of the passages included in this Charge. Dr. Williams there refers to the teaching of the Church in her Ordination Service as to the abiding influence of ' the Eternal Spirit,' and then uses these words:— 'If such a Spirit did not dwell in the Church, the Bible would not be inspired ; ' and, again, ' The Sacred Writers acknowledge themselves men of like passions with ourselves, and we are promised illumination from the Spirit that dwelt in them.' Dr. Williams may not unreasonably contend that the first result of these passages would be thus given : ' The Bible was inspired by the Holy Spirit that has ever dwelt and PHvij Council Judgments. 97 still dwells in the Churcti, which dwelt also in the Sacred Feb. 8, Writers of Holy Scripture, and which will aid and illnmi- ^_^- nate the minds of those who read Holy Scripture trusting Williams to receive the guidance and assistance of thai Spirit.' bishop op The words that the Bihle is ' an expression of devput ®^ 'Ind"*"^ reason, and therefore to be read with reason in freedom,' ^^^°^ are treated in the Charge as equivalent to these words : — fendall. The Bible is the composition or work of devout or pious ^"'^^°"*" - men, and nothing more ; but such a meaning ought not to opinion of be ascribed to the words of a writer who, a few lines further tSereo"' on, has plainly affirmed that the Holy Spirit dwelt in the Sacred Writers of the Bible. This context enables us to say that the words ' an expression of devout reason, and therefore to be read with reason in freedom,' ought not to be taken in the sense ascribed to them by the accusation. In like manner we deem it unnecessary to put any inter- pretation on the words ' written voice of the congregation,' inasmuch as we are satisfied that whatever may be the meaning of the passages included in this Article, they do not, taken collectively, warrant the Charge which has been made that Dr. Williams has maintained the Bible not to be the Word of God, nor the B,ule of Paith. We pass on to the remaining Charge against Dr. Williams, ^is aiiegoii T«T» ■ • -flrtrt ^*«^ A --W views QiS "Co which IS contained m the fifteenth Article of Charge. The jnstiactttiou. words of Dr. Williams, which are included in this Charge, are part of a supposed defence of Baron Bimsen against the accusation of not being a Christian. It would ^e a severe thing to treat language used by an imaginary Advo- cate as advised speaking or teaching by Dr. Williams. Against such a general charge as that of not being a Chris- tian, topics of defence may be properly urged, although not in conformity with the doctrines of the Church of iEnglamd. But, even if Dr. Williams be taken to approve of the arguments which he uses for this supposed defence, it would, we think, be unjust to him to take his words as a full statement of his own belief or teaching on the subjec of justification. The eleventh Article of Religion, which Dr. Williams is ^^l^Zi'^ accused of contravening, states, ' We are accounted right- ■ H 98 Privy Council Judgments. Eeb. 8, 1864. Charges against Mr. Wilson. His Tiewg as to Holy Scripture. eous before God only for the merits of our Lord and Saviour Jesus Christ, by faith, and not for our own works or deserv- ings.' The Article is wholly silent as to the merits of Jesus Christ being transferred to us. It asserts only that we are justified for the merits of our Saviour by faith, and by faith alone. We cannot say, therefore, that it is penal in a Clergyman to speak of merit by transfer as a fiction, how- ever unseemly that word may be, when used in connection with such a subject. It is fair, however, to Dr. Williams to observe that, in the argument at the bar, he repudiated the interpretation which had been put on these words, that ' the doctrine of merit by transfer is a fiction,' and he explained fiction, as intended by him, to describe the phantasy in the mind of an individual, that lie has received or enjoyed merit by trans- fer. Upon the whole we cannot accept the interpretation charged by the Promoter as the true meaning of the pas- sages included in the fifteenth Article of Charge, nor can we consider these passages as warranting the specific Charge, which, in efiect, is that Dr. Williams asserts that justification by Faith means only the peace of .mind, or sense of Divine approval which comes of trust in a right- eous God. This is not the assertion of Dr. Williams. We are, therefore, of opinion that the judgment against Dr. Willia/ms must be reversed. We proceed to consider the Charges against Mr. Wilscm. These have been reduced to the eighth and fourteenth Articles of Charge. The other Articles of Charge were either rejected by the Court below, or have been aban- doned at the hearing before this Tribunal. In the eighth Article of Charge an extract of some length is made from Mr. Wilson's Essay, and the accusation is, that in the passage extracted Mr. Wilscm has declared, and affirmed in eflfect, that the Scriptures of the Old and New Testaments were not written under the inspiration of the Holy Spirit, and that they were not necessarily at all, and certainly not in parts, the Word of God ; and then refer- ence is made to the sixth and twentieth Articles of Reli- gion, to part of the Nicene Creed, and to a passage in the Ordination of Priests in the Book of Common Prayer. Privy Council Judgments. 99 This Charge involves, therefore, the proposition ' That Feb. 8, it is a contradiction of the doctrine laid down in the sixth ^^^*- and twentieth Articles of Religion, in the Nicene Creed, Wiluaws and in the Ordination Service of Priests, to affirm that any bishop or part of the Canonical Books of the Old or New Testament, ®*"na""'' upon any subject whatever, however unconnected with reli- '^'^''^ gious faith or moral duty, was not written under the inspira- fendali,. tion of the Holy Spirit. Jndgment^ The proposition or assertion that every part of the Scrip- tures was written under the inspiration of the Holy Spirit is not to be found either in the Articles or in any of the Formularies of the Church. But in the sixth Article it is said that ' Holy Scripture containeth all things necessary to salvation,' and the Books of the Old and New Testa- m.ent are therein termed Canonical. In the twentieth Ar- ticle the Scriptures are referred to as ' Grod's Word writ- ten ; ' in the Ordination Service, when the Bible is given by the Bishop to the Priest, it is put into his hands with these words, ' Take thou authority to preach the Word of God ; ' and in the Nicene Creed are the words, ' the Holy G-host, who spake by the Prophets.' We are confined by the Article of Charge to the consi- deration of these materials, and the question is, whether in them thp Church has affirmed that every part of every Book of Scripture was written under the inspiration of the Holy Spirit, and is the Word of God. Certainly this doctrine is not involved in the statement of the sixth Article, that 'Holy Scripture containeth all things necessary to salvation.' But inasmuch as it doth so from the revelations of the Holy Spirit, the Bible may well be denominated ' Holy,' and said to be ' the Word of God,' ' God's Word written,' or ' Holy Writ ; ' terms which can- not be affirmed to be clearly predicated of every statement and representation contained in every part of the Old and New Testaments. The framers of the Articles have not used the word Opinion oi ' inspiration ' as applied to the Holy Scriptures ; nor have thereon.' they laid down anything as to the nature, extent, or limits of that operation of the Holy Spirit. The caution h2 100 Privy Council Judgments. Feb. 8, of the framers of our Articles forbids our treating their 1864. language as implying more than is expressed ; nor are we Williams warranted in ascribing to them conclusions expressed in new forms of words inyolving minute and subtle matters of controversy. After an anxious consideration of the subject, we find ourselves unable to say that the passages extracted from Mr. Wilson's Essay, and which form the subject of this Article of Charge, are contradicted by, or plainly incon- sistent with, the Articles and Formularies to which the Charge refers, and which alone we are at liberty to discuss. We proceed to the remaining Charge against Mr, Wilson ; namely, that contained in the fourteenth Article. His view o£ The Charge is, that in the portion of his Essay which is punisiimeiit. ^^t out in this Article, Mr. Wilson has advisedly declared and affirmed in effect that after this life, and at the end of the existing order of things on this earth, there wiU be no judgment of God, awarding to those men whom He shall then approve everlasting life, or eternal happiness, and to those men whom He shall then condemn everlssting death, or eternal misery ; and this position is aflSrmed to be con- trary to the three Creeds, the Absolution, the Catechism, and the Barial and Commination Services. In the first place we find nothing in the passages ex- tracted which in any respect questions or denies that at the end of the world there will be a judgment of God, award- ing to those men whom He shall approve everlasting life, or eternal happiness ; but with respect to a judgment of eternal misery, a hope is encouraged by Mr. Wilson that this may not be the purpose of God. Limits of We think that it is not competent to a Clergyman of the tids'pSn™ Church of England to teach or suggest that a hope may be entertained of a state of things contrary to what the Church expressly teaches or declares will be the case ; but the Charge is that Mr. Wilson advisedly declares that after this life there will be no judgment of God, awarding either eternal happiness or eternal misery — an accusation which is not warranted by the passage extracted, Mr. Wilson expresses a hope that at the Day of Judgment those men Privy Council JudgmenU, 101 wio are not admitted to happiness may be so dealt witt as I'eb. S, that ' the perverted may be restored,' and all, ' both small ^^'''''^ and great, may ultimately find refage in the bosom of the 'Williams Universal Parent.' The hope that the punishment of the bishop ov wicked may not endure to all eternity is certainly not at ''^"nT"* variance with anything that is found in the Apostles' Creed, Wilson- or the Nicene Creed, or in the Absolution, which forms part PExcALr,. of the Morning and Evening Prayer, or in the Burial Ser- vice. In the Catechism the child is taught that, in repeat- ing the Lord's Prayer, he prays unto Grod ' that He ■will keep us from all sin and wickedness, and from our ghostly enemy, and from everlasting death ;' but this exposition of the Lord's Prayer cannot be taken as necessarily declaring anything touching the eternity of punishment after the Resurrection, There remains the Commination Service and the Atlin- naslan Creed. The material passage in the Commination Service is in these words : — ' terrible voice of most just judgment, which shall be pronounced upon them, when it shall be said unto them, " Go, ye cursed, into the fire ever- lasting which is prepared for the Devil and his angels." ' In like nsanner the Athanasian Creed declares that they who have done evil shall go into everlasting fire. Of the mean- ing of these words ' everlasting fire,' no interpretation is given in the Formularies which are referred to in the Charge. Mr. Wilson has urged in hie defence, that the word ' everlasting ' in. the English translation of the New Testament, and of the Creed «f St. Athanasius, must be subject to the same limited interpretation which some learned men have given to the original words which are translated by the Enghsh word ' everlasting,' and he has also appealed to the liberty of opinion which has always existed without restraint among very enainent English Divines upon this subject. It is material to observe that in the Articles of King Bearing on Edward , YL, framed in 1552, the forty-second Article was ot 42nti'^'^ in the following words : — ' All men shall not bee saved ■*^'^"^'''- at the length. — Thei also are worthie 6f condemnation who indevoure at this time to restore the dangerouse opinion, 102 Privy Council Judgments. Fel). 8, that al menne, be thei never so ungodlie, shall at lengttt bee saved, when thei have suffered paines for their sinnes a Williams Certain time appdincted by God's justice.' This Article was omitted from the Thirty-nine Articles of Religion of the year 1562, and it might be said that the effect of sustaining the judgmenlf of the Court below on this Charge, would be to restore the Article so withdrawn. We are not required, or at liberty, to express any opinion upon the mysterious question of the eternity of final punishment, further than to say that we do not find in the Formularies, to which this Article refers, any snch distinct declaration of our Church upon the subject, as to require us to condemn as penal the expression of hope by a Clergy- man that even the ultimate pardon of the wicked, who are condemned in the day of judgment, may bfe consistent with the will of Almighty Grod, No opinion We desire to repeat that the meagre and disjointed ex- to to'c^Bo(S tracts, which L^ve been allowed to remain in the reformed i^^ews*""* -Articles, are alone the subject of our judgment. On the design and general tendency of the book called ' Essays and Reviews,' and on the effect or aim of the whole Essay of Dr. Williams, or the whole Essay of Mr. Wihon, we neither can, nor do pronounce any opinion. On the short extracts before us our judgment is, that the Charges are not proved. Ruiiiiff as to Their Lordships, therefore, will humbly recommend to her Majesty that the sentences be reversed, and the reformed Articles rejected in like manner as the rest of the original Articles were rejected in the Court below — namely, without costs — but inasmuch as the Appellants have been obliged to come to this Court, their Lordships think it right that they should have the costs of this appeal. T am desired by the Archbishop of Ganterbury and the Archbishop of Yorh, to state that they do not concur in those parts of this judgment which relate to the seventh Article of Charge against Dr. Williams, and to the eighth Article of Charge against Mr. Wilson. \_For note on this case see Apjiendix, Note D.] cost 103 JOHN MARTIN Appellant ; AND The reverend ALEXANDER HE- 1 -„ RIOT MACKONOCHIE, Cleek . . /Respondent.* On Appeal from the Arches Gourt of Ganterhuri/. In a proceeding against a Clerk in Holy Orders under the Ghurch Disdplme Act, 3rd and 4th Vic, c. 86, for offending against thp Laws Ecclesiastical, (1) in kneeling and prostrating himself before the conse- crated elements, and (2) in using lighted candles on the Communion Tahle during the celebration of the Holy Communion, when such candles were not wanted for light: Held, on appeal (reversing the decree of the Arches' Court) first, that, according to the Rubric, the celebrant during the Prayer of Consecration in the Order of Administration of the Holy Communion must stand, and not kneel, or prostrate himself before the consecrated elements, during the recital of the Prayer, and that the words ' standing before the Table,' apply to tlie whole sentence in the Rubric, and to all the acts directed to be done : that, therefore, a change of posture is a violation of the Rubric which imme diately precedes, the Prayer of Consecration, and constitutes an ecclesiastical ofience within the meaning of the Uniformity Acts, 13 and 14 Car. II., c. 4, ss. 2, 17, and 24, taken in connection with 1 Eliz., c. 2, and is punishable by admonition under section 23 of the latter Act, and does not belong to the category of cases whfch, according to the preface to the Prayer ♦' Present: The Lord Chancellor (Cairns) ; the Archbishop of York (Dr. Thomson) ; Loid Chelmsford ; Lord Westbury ; Sir William Erie ; Sir James William Colvile. 104 Priiiy Council Judgments. Book, should be referred to the Bishop of the diocese fcr his direction : Held, further, that it is not open to a Minister of the Church, or to the Judicial Committee in advising her Majesty, as the highest Ecclesiastical Tribunal of Appeal, to draw a distinction in acts which are a de- parture from, or a violation of the Rubric, between those which are important, and those which appear to be trivial, the object of the Act of Uniformity being, as the preamble expresses it, to produce ' an universal agreement in the public worship of Almighty God : ' and the rule laid down by the Judicial Committee in Liddell v. Westerton that, ' in the performance of the services, rites, and ceremonies ordered by the Prayer Book, the directions contained in it must be strictly observed ; no omission and no addition can be per- mitted' adhered to and affirmed. Held, secondly, that it is unlawful to place lighted candles on the Communion Table during the celebra- tion of the Holy Communion, when such candles are not wanted for the purpose of giving light, (1) as the use of lighted candles, if intended as a ceremony or ceremonial act, is not among the ceremonies which are retained in the Prayer Book, and must, therefore, be included among those that are abolished and pro- hibited by 1 Eliz., c. 2, ss. 4 and 27, wMch statute is applicable to the present Prayer Book, and by which theRoyal Injunctions issued in the first jear of Edward VI. (a.d. 1547), even if they possessed! statutable au- thority, were, so far as they could be taken to autho- rise the use of lights as a ceremony or a ceremonial act, abrogated and repealed ; and (2) jif candlesticks and candles were intended to be as ornaments when lighted, and used with reference to a service, in which they are to act as symbols and Illustrations, they are not ornaments within the meaning of the Rubric, as •they are not prescribed by the authority of Parlia- ment as mentioned in the Rubric to tie First Prayer Book ; nor are the injunctions of 1547 the ' authority of Parliament ' within the meaning of that Rubric ; nor are lighted candles subsidiary to the service, for they do not facilitate, much less are tl.ey necessary to, the service ; nor can a separate and ir dependent orna- ment, previously in use, be said to ht consistent with a Rubric which is silent as to it, jand which, by Privy Council Judgments. 105 necessary implication, abolishes what it does not retain. Construction of the Eubric as to ornaments, in the commencement of the Prayer Book, which provides that ' such ornaments of the Church and of the Minis- ters thereof, at all times of their ministration, shall be retained and be in use as were in this Church of Enlgomd by authority of Parliament in the second year of the reign of TSdward VI.' considered, and the following propositions laid down and decided in lAddell Y. Westerton recognised and affirmed : — Eirst, that the words ' authority of Parhament ' in the Rubric refer to and mean the Act of Parliament 2 and 3 Bdw. VI., c. 1, giving Parliamentary effect to the First Prayer Book of Edward VI., and do not refer to, or mean Canons or Royal Injunctions having the authority of Parliament made at an earlier period. Second, that the term ' ornaments ' in the Rubric means those articles the use of which in the services and ministrations of the Church is prescribed by that Prayer Book. , Tiaird, that the term ' ornaments' is confined to those articles. Fourth, that, though there may be articles not ex- pressly mentioned in the Rubric, 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 singing, a Credence Table, from which' to take the Sacramental "bread and wine, cushions, hassocks, etc. This was a cause of the office of the Judge promoted by Nov 17- the Appellant, a parishioner of the parish of St. Alhcm's, 20, 1S68. Eolbom, in the Diocese of London, against the Respondent, MAnTis the Incumbent and Perpetual Curate of the church of that mackoso- parish, for having within his said church, and within two years last past from the date of the institution of 'the cause, offended against the Laws Ecclesiastical in the follow- ing matters. First, by having during the Prayer of Consecration, in the Order of the Administration of the Holy Communion, elevated the Paten above his head, and permitted and CHIE. Statement. 106 Privy Council Judgments. V. Mackono- ClUE. statement. sanctioned such elevation ; and taken into his hands the cup, and elevated it above his head daring the Prayer of Consecration, and permitted and sanctioned the cup to be so taken and elevated ; and knelt or prostrated himself before the Consecrated Elements during the Prayer of Consecration, and permitted and sanctioned such kneel- . ing or prostrating by other Clerks in Holy Orders. Second, by having used lighted candles on the Commu- nion 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 the use of lighted candles. Third, by having used incense for censing persons and things during the celebration of the Holy Communion, and permitted and sanctioned such use of incense, and having unlawfully used incense in and during the celebration of the Holy Communion, and permitted and sanctioned such unlawful use of incense. Fourth, by having, during the celebration of the Holy Communion, mixed water with the wine used in the admi- mistration of the Holy Communion, and permitted and sanctioned such mixing, and the administration to the communicants of the wine and water so mixed. The cause came before the Arches Court of Ganterhim/ by Letters of Request from the Lord Bishop of London to the late Dean of the Arches (the Right Honourable Dr. iMshvngton), under the provisions of the Chm/reh DisdpUne Act, 3 and 4 Vic, c. 86. By the Letters of Request the Respondent was charged, so far as related to the question raised in the present Appeal, with having offended against the Laws Ecclesiastical by elevating the Elements in the Service of the Holy Communion, as before stated ; and 'by bowing, kneeling, or prostrating himself before the Conse- crated Elements during, or after, the Prayer of Consecra- tion;' and 'by using 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 by permitting and sanctioning such use of lighted candles ; ' and the Official Principal of Privy Council Judgments. ]07 the Arches Court was thereby requested to issue a Citation, 1S68. or Decree, calling upon the Respondent to appear at a mT^n certain time and place therein specified, 'to answer to „ *■ . , , , . . ^ ' Mackoko- certam articles, heads, positions, and interrogatories touch- chik. ing his soul's health, and the lawful correction and refer- statement. _ mation of his manners and excesses, and more especially for having offended against the Laws Ecclesiastical in the matters therein before specified, to be administered to him at the voluntary promotion of the Appellant, and to hear and determine the cause according to the law and practice of the Court.' Such Letters of Request having issued, the Respondent was cited and appeared, whereupon Articles were brought in on behalf of the Appellant, the admission of which was in the first instance opposed, but having been reformed, as directed by the Court, were afterwards ad- mitted. To these Articles a responsive plea was filed by the Respondent, for the most part admitting the facts as pleaded, but denying that any ofience against the Ecclesi- astical Law had been committed. The articles and plea, material to the two points raised by the Appeal, are set out in the judgment. The cause was then heard before Sir Bolert PMlUmore ; two witnesses only were examined on behalf of the Appel- lant. With reference to the kneeling or prostrating, it appeared that the Respondent, when himself officiating in the order for the Administration of the Holy Communion, twice knelt down, or prostrated himself, before the Com- munion Table while saying the Prayer of Consecration, once after the consecration of the bread, and again after the con- secration of the cup, and that another officiating Minister did the same in his presence. With reference to the use ef lighted candles, the facts, as alleged in the Articles, were substantially admitted. On March, 28,1868, Sir Robert Fhillimore, by his Interlo- Decision in cutory Decree, or Sentence, pronounced that all the Articles ^^^g"' "'^ given in, or admitted in the cause, except the sixth and twelfth therein specified, were established, and that the Respondent had ofiended against the Statute Laws, Consti- ttitions, and Canons of the Church of England in the par- 108 Privy Council Judgments. ys.KTS.Tm Appeal. ticular matters alleged, and set fortli in the Articles, in manner aS in the Decree was thereinafter mentioned ; and monished the Respondent to abstain for the future from the elevation of the cup and paten during .the administration of the Holy Commiinion, as also from the' use of incense, and from the mixing water with the wiue during the administration of the Holy Communion, as pleaded in the Articles ; but declined ^o pronounce, that the Respondent had offended against the Statute Law, and the Constitu- tions, and Canons Ecclesiastical, by having knelt or pros- trated himself before the Consecrated Elements during the Prayer of Consecration, and by having permitted and sanctioned such kneeling or prostrating by other Clerks in Holy Orders; and omitted or declined to admonish him against so offending in future ; and omitted or declined to pronounce, that the Respondent had offended against the Statute Law, and the Constitutions, and Canons Ecclesi- astical, by having 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 by having permitted and sanctioned such use of lighted candles, and, omitted or de- clined to admonish him against so offending in future ; and declined to condemn the Respondent in the costs incurred in the cause on the part andbehalf of the Appellant. * This Decree, or Sentence, was the subject of the present Appeal, but was limited to the kneeling and prostrating before the Consecrated Elements and the use of lighted * A complete report of the argument in the Court of Arches, with extracts from the authorities both legal and Ecclesiastical, cited and referred to by Counsel on either side, as taken and verified by the short- hand writers, was given in evidence before the Ritual Commissioners, and with the judgment of the learned Dean of the Arches, containing his own notes and illustrations, is to be found in the Appendix to their Second Keport, April 1868. That Appendix also contains verified copies of Injunctions and Visitation Articles from a.d. 1561 to 17341. The reader is referred to the source above mentioned, which, with the abstract of the pleadings given in Law Beports, 2 Adm. and Eceles., p. 117, and the judgment of the learned Judge, constitutes a complete hiatoiy of the case in the Arches Court. Privy Council Judgments. 109 candles, and to the refusal to allow costs ; tte decree of 1868. the Court below in other respects was acquiesced in by both m^^i parties. „ «■ ^ Mackoxo- Mr. A. J. Stephens, Q.C., and Mr. Archibald (Mr. Cole- ohie. ridge, 'Q.O., Mr. Traill, and Mr. Broop with them), for the ^^^^ Appellant : — Every Clerk in Holy Orders of the United Church of England and Irelamd, in administering the Sacraments and other rites and ceremonies of the Church, is bound to use the form and order prescribed for the same in the Book of Common Prayer, without any addition, alteration, or omission ; this was so held and solemnly decided in the case of Liddell v. Westerton by this Tribunal in the year 1857. The kneeling or prostrating before the Consecrated Elements, and the use of lighted candles, as proved and admitted in this cause, are additions to, or alterations of, the form and order prescribed. The elevation of the paten and cup during the Prayer of Consecration having been discontinued by the Respondent dnrijig the pendency of the cause (though disapproved of, and declared illegal by the Judge of the Arches Court, formed no part of his judgment), is not in question in this Appeal. The pros-? trating before the Elements was held by the Judge to be a ma;tter not of criminal procedure, but within the discretion and direction of the Ordinary. First, then, with respect to the kneeling or prostration. "We insist that the kneeling adopted by the Respondent was irregular, and improper ; that it was used, resorted to, repeated, and prolonged at times, and in a manner not directed, or sanctioned by the Rubric. . The judgment of the learned Judge of the Arches on this point is very brief ; he seems to question the proofs, though the testimony of the witnesses is unimpeacbed, and the charge contained in the Articles was admitted by the Respondent's plea. His judgment appears, however, to rest chiefly on his view of the Rubric to the General Confession in the Service of the Holy Communion, which, though it does not give precise directions, that the celebrant shall kneel at the time of Consecration, yet directs the Confession to be made by one Argument, 110 Privy Council Judgments. 1868. of the Ministers, botii he and all the people kneeling; and he seems to think, that the kneeling posture of the Minister, Mack • when consecrating the Elements, is allowable within the cHiE. meaning of that Rubric, and that this inference and conclu- sion is illustrated by the fact, that, at the Savoy Conference, when the Puritans demanded a more specific Rubric touch- ing the kneeling at the Communion, no notice of this request was taken by the Bishops ( GardwelVs Conferences, pp. 275, 363 ) ; he infers, therefore, that the position of Ihe Minister at such times is discretionary on his part, or if not, the error imputed to the Respondent is not such an offence as could form the subject of a criminal prosecution, but that if it was an offence, it belonged to the category of those cases, which should be referred to the Bishop, in order that he might exercise jurisdiction according to the Rubric. This, we submit, is a wholly erroneous view of the Rubric, contrary to the Act of Uniformity, 14 Car. II., c. 4, as well as the previous statutes, 2 and 3 Bdw. VI., c. 1. and 1 Eliz., 0. 2. In the argument in the Court below, the kneeling and prostration was connected with the elevation of the Elements, and the authorities referred to respecting the elevation applied equally to the posture ; but the Rubric, the authorities, and the almost universal custom are all entirely against the practice of such kneeling and prostration. The effect of the directions in the Rubric is, that the Minister is not at liberty to change his position according to his own fancy, but must follow strictly the directions there set forth, and especially, as at the time of the Consecration of the Elements, he is directed to remain in a standing position, and not to kneel or prostrate himself, as has been the practice of the Respondent. Secondly. The learned Judge of the Court below treated the question as to the use of lighted candles on the Com- munion Table, during the celebration of the Holy Com- munion, as falling within the' rules regarding ornaments, as expressly sanctioned by the Laws of the Church ; and, after observing that ' there is no direct prohibition of this ornament of Divine Service,' he proceeds to enquire whether ' the use of lights on the Holy Table falls under the cate- Privy Council Judgments. Ill gory of things indirectly, or by necessary implication, pro- 1868. hibited ; ' and if not, that they might he treated aa ' inno- mIIoto cently subsidiary to Divine worship.' We submit, however, „ "• that lighted candles are not ornaments of the Chtirch ohik. within the legal meaning of the -word ' omamentvm,' as ^p""™*-, interpreted by this Tribunal in Idddell v. Westerion. But the learned Judge of the Arches Court, relying, for the retention of those we contend against, on the Royal Injunctions of 1547 (Edw. VI. ; GwrdweU's Doc. Ann., pp. 5, 6), arrives at the following conclusion : — That inasmuch as he thinks these InJTinctions were issued under statutable authority, and have not been directly repealed by the like authority, ' that it is lawful to place two lighted candles on the Holy Table during the time of the Holy Communion, for the signification, in the language of the Injunctions, " that Christ is the very true Light of the world." ' Now we contend that whether these Injunctions were lawfully issued under statutable authority or not, they have been subsequently abrogated by like authority, and were wholly repealed in the same year they were issued, by the Act oj ZfniformHy, 1 Edw. VI., c. 12, and have never since been revived, either by the TTniformity Act of 1 Eliz., c. 2, or the last Uniformity Act, 14 Car. II., c. 4. Mr. W. M. James, Q.C., and Dr. Beame, Q.C. (with them Mr. Frideaux, Q.C, Dr. Tristram, and Mr. H. Charles'), for the Respondent : — Thejudgment of the learned Dean of the Arches is correct. The elevation of the Elements, and the alleged prostration of the Respondent, are one and the same offence ; and the Respondent having of his own accord discontinued the elevation, the grounds of the Charge have ceased. The kneeling at improper seasons, of which the Respondent is accused, has -reference only to the prostration before the Consecrated Elements, and cannot be maintained as a separate charge. The other offence charged is the use of lighted candles during the celebration of the Holy Com- munion. But candlesticks on the Communion Table have been already declared legal by this Tribunal (Liddell v. Westerton), and allowable within the terms of the Rubric 112 Privy Council Judgments. ilACKONO- CHIE. Argument. relating to ornaments ; the using them by placing lights in them cannot therefore be an offence against the Ecclesi- astical Laws, nnless it be shown that some special signifi* cance was intended which is contrary to Ecclesiastical Law. No such significance is shown, and the learned Judge hSs rightly held them to be legal "hj the injunctions of 1647. Having been declared legal by the Eoyal Injunctions of 1647, made by the authority of the Supremacy Act, 26 Hen. VIII., c. 4, they have not been prohibited, or made illegal, by any subsequent statute, or by either of the Acts of Uni, formiiy — 1 Eliz., c. 2, or the 14 Gar. II., c. 4. Mr. Stephens in reply. Their Lordships' judgment was deferred, and was now (Dec. 23) pronounced by Judgment. Charercs ogainst Eeapondent. Lord Caiens.* The case of Martin v. MAchonocMe, commenced before the Bishop of London, was, under the provisions of the Clergy DisaipUne Act, sent by the Bishop to the Conrt of the Archbishop of Gomterhv/rij for trial in the first instance ; and, having been fully heard before the Judge of the Arches Court, resulted in a decree made on the March 28, 1868. Mr. Machonochie, the Clerk in Holy Orders against whom these proceedings were dii-ected, was charged with four offences against the Laws Ecclesiastical — ^viz. — First. The elevation during, or after, the Prayer of Con- secration, in the Order of the Administration of the Holy Communion, of the Paten and Cup, and the kneeling or prostrating himself before the Consecrated Elements. Second. Using lighted candles on* the Communion Table during the celebration of the Holy Communion, when such candles were not wanted for the purpose of giving light. Third. Using incense in the celebration of the Holy Communion. * Subsequent to the hearing of the Appeal, and before judgment was pronounced, Lord Cairns haO resigned the Great Seal. ■Privy Council Judgments. 113 Eourth. Mixing water -with the wine used in the adminis- 186$. tration of the Holy Communion. liJ^xDt The learned Judge of the Arches Court, by his decree, k^okono. sustained the third and fourth of these charges, and ad- <=™a monished Mr. MaehonocMe to abstain for the future from ^°^™*-,^ the use of incense, and from mixing water with wine, as Decree ot pleaded in the Articles. Against this part of the decree ccn^°'"" ' there is no appeal. The second charge, as to lights, was not sustained, the learned Judge holding that it was lawful to place two lighted candles on the Communion Table during the time of the Holy Communion. Against this the Promoter has appealed. As to the first charge, Mr. Mcbchonochie, while admitting the elevation of the Consecrated Elements at the times and in the manner alleged, pleaded that he had. discontinued the practice before the institution of the suit. The learned Judge, therefore, admonished Mr. Maclconochie not to recur to the practice ; but as to the other part of the charge — namely, the kneeling and prostrating himself before the -Consecrated Elements — the learned Judge held, that if Mr. Mackonochie had committed any error in that respect, it was one which should not form the subject of a criminal prosecution, but should be referred to the Bishop, in order that he might exercise his discretion thereon. The Promoter appeals from the latter part of the decision of the learned Judge in this charge, and he also complains in his Appeal that the Defendant was not ordered to pay the costs of the suit. The questions thus raised by the Appeal were very fully and ably argued before this Tribunal, and their Lordshipa have now to state their reasons for the advice, which they propose humbly to offer to her Majesty. They will advert first to the charge of kneeling. before charge oi the Consecrated Elements. betee'the It is necessary to refer to the whole of the charge on this H^eat& ^ head, as contained in the Third and Fourth Articles, although some of the acts charged are said to have been discontinued before the suit commenced. I 114 Privy Council Judgments, ■1868. MAJJTDf ■Mackono- Judgment. Ar{;iclcs of Chaige, Answer of 3eqpondcnt. " These Articles run thus : — * Third. That the said Alexamder Seriot MackonoeJiie has, in his said Church, and within two years (to wit, on Sun- day, December 23, on Christmas Day last past, and on Sunday, December 30, all in the year of our Lord 1866), during the Prayer of Consecration in the Order of the Ad- zuinistration of the Holy Communion, elevated the Paten above his head, and permitted and sanctioned such ele- vation; and taken into his hands the Cup, and elevated it above his head during the Prayer of Consecration afore- said, and permitted and sanctioned the Cup to be so taken and elevated ; and knelt or prostrated himself before the Consecrated Elements during the Prayer of Consecration, and permitted and sanctioned such kneeling or prostrating by other Clerks in Holy Orders. ' Fourth. That such elevation of the Paten, and such ^taking and elevation of the Cup, and such kneeling and prostrating, are severally unlawful additions to, and varia- tions 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 Par- liament passed in a session of Parliament, holden in the 13th year of Queen Elizabeth, chap. 12, and to the 25th and 28th of the Articles of Religion therein referred to.' Mr. MaclconocJiie's answer to these Articles is as ' fol- lows: — ' 3. Whereas in the third Article, given in and admitted as amended in this cause, it is pleaded that the said Alex- ander Heriot MacIconocMe has — ^to wit, on Sunday, Decem- ber 23-, on Christmas Day last past, on Sunday, December 80, all in the year 1866 — during the Prayer of Consecration in the Order of the Administration of the Holy Communion, elevated the Paten above his head, and . permitted and sanctioned such elevation, and taken into his hands the Cup and elevated it above his head during the Prayer of Privy Council Judgments. 115 •Consecration aforesaid, and permitted and sanctioned the 1868. Oap so to be taken and elevated, and knelt or prostrated ji^^ Mmself before the Consecrated Elements during the Prayer jiiOKoso- ■of Consecration, and permitted and sanctioned such kneel- o^ie, ing or prostration by other Clerks in Holy Orders. Now J'^gme"*- __ the same is in part untruly pleaded, for the party proponent alleges that, while he admits that the said Alexander Seriot MacJconocMe did on the said two Sundays and on Christmas Day, during the Prayer of Consecration, kneel, and sanc- tion kneeling by other Clerks, before the Lord's Table, he denies that the said A. H. MacJconocMe, did on the said two Sundays, and on the said Christmas Bay, kneel, or prostrate himself,- before the Consecrated Elements, or permit and sanction such kneeling or prostration by other Clerks in Holy Orders, as in the third Article pleaded. And he further alleges, that while he admits, that he did on the said two Sundays and Christmas Day, in the said third Article mentioned, elevate, and sanction the elevation by other Clerks ■of the Paten and Cup above his head, as in the said third Article pleaded, yet that such elevation of the Paten and Cup has been wholly discontinued by the said Alexander Seriot MachonocMe during the administration of the Holy Communion, ever since the said December 30, 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 Convo- cation, as was well known to the promoter of this suit before he instituted the same.' Before turning to the evidence in support of this charge, Preliminary it will be proper td consider a preliminary objection which was taken to the Articles, and to the Letters of Request' and Citation, by which they were preceded. ■ ' It was said that, although the Articles alleged that the Respondent ' knelt or prostrated himself before the Conse- crated Elements during the Prayer of Consecration," the Letters of Request and Citation were for ' bowing, kneel- ing, or prostrating himself before the Consecrated Elements during or after the Prayer of Consecration.' It was con- i2 objeotiuii. 116 1868, SlABTDf. V. MAOKOXO- CHIE. Jndgment. Overruled by the Court. Evidence for the charge. Privy Council Judgments. tended that the citation showed no offence, for it might be- taken, as in an indictment, in the sense most favonrable to the accused, and as affirming nothing more than that he bowed after the Prayer of Consecration, which, it was said,, would or might be innocent. And the Articles, it was- argued, by omitting this alternative, were a departure from the Citation. To this it might be sufficient to reply that the objection taken to this Citation — a Citation which it is not disputed does contain other charges cognizable by the Ecclesiastical Conrt-^s an objection of a strictly technical character, and one, which would be waived by the appearance of the Re- spondent as he did appear, without protest, and by praying for Articles. But, passing from this, it is be observed that- the supposed analogy between the Citation and an Indicts ment, on which this objection is founded, entirely fails. The Act of Uniformity, 1 Eliz., cap. 2, contemplates two modes of procedure for enforcing its provisions — one, by indictment under section 4, and the other by process for admonition before the Ordinary under section 23 ; and it is under the latter, and not the former section, that the present proceedings are taken. Moreover, in the case of an Indictment followed by judgment, the Indictment and judgment become the record, and the judgment is read with reference to the Indictment ; and if the Indictment is open to a construction which is innocent, and would not sustain a judgment, the judgment would be vicious and mugt be arrested ; whereas the Citation is followed by articles, which in turn are met by a plea ; and the Court, after hearing evidence, defines by its sentence how much of the charge it considers to bg relevant and to have been proved, and thereby corrects any excess of averment in the Citation. The preliminary objection, therefore, on this change their Lordships feel themselves obliged to repel. It is necessary now to examine the evidence adduced in support of the charge ; and iu doing this, and in considering the character of the charge itself, their Lordships will con- fine their attention to the conduct and acts of th.e Re- Privy CouncilJudgments. 117 nspondent, as the celebrating or consecrating Minister. The 1868. allegations and proof as to * sanctioning and permittin"' „ Other Llerks are so vague that no weight could be, and v- in the argument little weight was, attempted to be given cioe!'"" to them. Judgment. The chief witness in support of the charge is Mr. Beames. Mr. Beames. He has not been cross-examined, and no evidence has been a,dduced for the Respondent. The statement of *Mr. Beames may therefore be taken to be uncontroverted. He speaks ■of December 23 and 25, 1866. On both these occasions -the Respondent was the celebrant at the Communion Service. The effect of the answers of Mr. Beames may be «tated to be, that the Respondent commenced to read the Prayer of Consecration standing ; that on reaching the words ' the same night that He was betrayed' he elevated the paten above his head, returned it to its place on the Com- Tnunion Table, and then knelt on his knees towards the ■Table, inclining or prostrating his head towards the ground ; that he then rose and resumed the Prayer ; that when, in -the further course of the Prayer, he took the chalice, he •elevated it above his head, as he had done the paten, re- placed it on tho Communion Table, and knelt or prostrated Mmself as before. The elevation of the Elements has, as already said, been •discontinued ; and as to the kneeling after the consecration ef the chalice, it might possibly be suggested that it was a, kneeling after finishing the Prayer of Consecration ; and with reference to the next part of the Service, in which the ■celebrant becomes himself the recipient. Omitting, there- fore, for the present the elevation and the second kneeling; the evidence remains that the Respondent, after co'mmenc- iing the Prayer of Consecration standing, paused in the middle of the Prayer, knelt down, inclining, or prostrating, liis head towards the ground, and then, rising up again, •continued the Prayer standing. In order to bring the conduct of the Respondent on this -r^^^o Ihead to the test of Ecclesiastical Law, it is proper now to ^^^^ Hiurn to the Rubric of the Order of the Administration of considerea. 'the Holy Communion. 118 1868. Martin V. Mackoso- CHIE, Judgment. Construction of Rubric liefore the Prayer of Consecra* tion. Pnvy Council Judgments.. The Lord's Prayer and the Collect, with which the- Service commences, are to be said by the Priest ' standing- at the north side of the Table.' The Priest is then to turn to the people, and rehearse- distinctly all the ten commandments, ' the people still', kneeling,' implying that the Priest is still to stand. This is to be followed by one of the Collects for the Sovereign, 'the Priest standing as before,' and by the- Collect for the day. The Priest is then to read the Epistle and Gospel,, and to say the Creed, during which no change of attitude is indicated. After the sermon, when the Priest has returned to the- Lord's Table, the sentences of the Offertory, the Prayer- for the Church Militant, and the Exhortations are to be ' said ' by the Priest, without any direction as to change oT posture ; and then, at the Confession, he, as well as all the- people, is directed to kneel. For the Absolution and the sentences which follow, the Priest is directed to stand up, and to turn himself to the people ; for the words, ' It is very meet,' etc., and the- * Prefaces,' he is to turn to the Lord's Table, and he is then to kneel down at the Lord's Table, and, in the name- of all the recipients, say the prayer, ■* We do not pre- sume,' etc* The Rubric before the Prayer of Consecration them follows, and is in these words : — -' When the Priest, stand- ing before the Table, hath so ordered the bread and wine that he may with the more readiness and decency break the bread before the people, and take the cup into hia hands, he shall say the Prayer of Consecration, as follows.'' Their Lordships entertain no doubt on the constructiom of this Rubric that the Priest is intended to continue in one po.stnre 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 this ia made more apparent by the consideration that acts are t?- Privy Council Judgments. 112 be done by tbe Priest before the people as the Prayei- pro- 1868. ceeds (such as taking the paten and chalice into his hands, mIbtTsi: breaking the bread, and laying his hand on the various jj^oKOKtf- vessels) which could only be done in the attitude of ™™' standing.: Judgment, This being, in their Lordships' opinion, the proper con- struction of the Rubric, it is clear that the Respondent, by the posture, or change of posture, -which he has adopted during the Prayer, has violated the Rubric, and committed an offence within the meaning of the 13 and 14 Car. II., cap. 4, sees. 2, 17, 24, taken in connection with the 1 Eliz., cap. 2, and punishable by admonition under sec. 23 of the latter statute. It was contended on behalf of the Respondent that the act complained of was one of those ininnte details which could not be taken to be covered by the provisions of the Rubric ;- that the Rubric could not be considered as exhaustive in its directions, for no order could be shown in it requiring the celebrating Minister to kneel while himself receiving the bread and wine ; and that there was no charge or evidence against the Respondent, that in kneeling after the consecration, any adoration of the Sacrament was intended. Their Lordships are of opinion that it is not open to a -umHa oi Minister of the Church, or even to their Lordships in ad- ^^^Jf : vising her Majesty, as the highest Ecclesiastical Tribnnal ^^^"'^^ of Appeal, to draw a distinction in acts which are a depar- ture from, or violation of, the Rubric, between those which are important and those which appear to be trivial. The object of a Statute of Uniformity is, as its preamble ex,- presses, to produce ' an universal agreement in the public worship of Almighty God,' an object which would be wholly frustrated if each Minister, on his own view of the i-elative importance of the details of the Service, were to be at liberty to omit, to add to, or to alter any of those details. The rule upon this subject has been already laid down by -the Judicial Committee in Westerton v. Liddell, and their •Lordships are disposed entirely to adhere to it : — ' In the performance of the services, rites, and ceremonies ordered by the Prayer Book, the directions contained in -it 120 Privy Council Judgments. 186S. HABTm , V. 1£a.ckono« CHIE. Judgment. <■. — , ' * AJl meekly kneeling ' reCeis to ccliibrant as well ns to people. mnst be strictly observed; no omission and no addition can be permitted.' (^Ante, p. 74.) There would, indeed, be no difficulty in showing, that the posture of the celebrating Minister during all the parts of the Communion Service was, and that for obvious reasons, deemed to be of nd small importance in the changes introduced into the Prayer Book, at and after the Beforma- tion. The various stages of the Service are, as has already been shown, fenced and guarded by directions of the most exact kind as to standing and kneeling, the former attitude being prescribed even for prayers, during which a direction to kneel might have been expected. And it is not. imma- terial to observe, that whereas in the first Prayer Book of King Edward VI. there was contained at the end a Rubric in these words : — ' 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 Rubric was, in the second Prayer Book of Edward VI., and in all the subsequent Prayer £ooks, omitted. The argument against the completeness of the directions as to posture, derived from the supposed absence of any order, that the celebrant shall kneel while himself receiving, does not appear to their Lordships to be well founded. In the Rubric as to the reception of the bread and wine,, the words ' all meekly kneeling ' apply, as their Lordships think, to the celebrant, as well as to other Clerks, and to the people. And this is made more clear by the. Rubric termed the ' Black Rubric,' added at the end of the Service. It is true, as was contended, that there is no charge against the Respondent that the kneeling complained of 'was intended as an act of adoration of the Sacramental Elements. Such a charge, involving, as it would, an enquiry •into sentiments and feelings, of which no Tribunal can ade- quately judge, .would be difficult of proof; and the rubrical 'enactments appear to have been wisely confined to pre- scribing an order of service free from those outward move- ments, which had become more or less associated with errors in doctrine, which at the Reformation were renounced. If Privy Council Judgments. l2l this order is departed from, it is, as their Lordships think, 1868. unnecessary to enquire into the motive by which the depar- Mlmix ture has been occasioned. „ »• Maceoko- Another argument urged on behalf of the Bespondent chie. should also be noticed. Mr. James contended with great ^"^^°"*' . ability that the charge, as to kneeling during the Prayer of Kneeling a Consecration, was made in connection with the charge as to tte Buteio*. the elevation of the Sacrament, and that the charge of kneeling was only an aggravation of that elevation, which had been discontinued. This, no doubt, is so ; but the kneeling under the circumstances described being itself, as their Lordships think it is, a violation of the Rubric, they do not think, that the judgment of the Court should the less be passed upon it, because the other part of the charge — namely, that as to the elevation--is no longer resisted. It only remains, on this part of the case, to advert to the . very learned and elaborate judgment of the Dean of the . Arches. That learned Judge states, that the Rubric does not give precise directions that the celebrant should kneel, at the times, when it appears that the Respondent does kneel ; that he is far from saying it is not legally competent to him to adopt this attitude of devotion ; and that it cannot be contended, that, at some time or other, he must not kneel during the celebration, although no directions as to his kneeling at all are given by the Rubric. Their Lordships, however, think, as they read the Rubric, that directions as to the celebrant kneeling at a particular time of the celebration — namely, when he himself receives the Sacrament— are given, and that at the time when it 'appears that the Respondent kneels — namely, during the Prayer of Consecration — the directions in the Rubric are ■precise, that he should stand, and not kneel. The learned Judge farther observes, that if Mr. Macho- nocliie has committed any error in this respect, it is one 'which should not form the subject of a criminal prosecu- tion, but belongs to the category of cases, which should be referred to the Bishop. This category the learned Judge had previously defined to be — ' Things neither ordered, nor 122 1868. Martdj V. Mackono- CHIE. Judgment, Kneeling is a question for the Court. Besult as to kneeling or prostration. Chaise as to lighted candles. Privy Council Judgments, prohibited, expressly, or by implication, but the doing, or use of which must be governed by the living discretion of some person in authority.' And as to cases in this category, the learned Judge con- sidered that, according to the Preface to the Prayer Book, the ' parties that doubt or divfersely take anything should always resort to the Bishop of the diocese.' Their Lordships do not think it necessary to consider minutely the cases to which, or the manner iii which, this direction in the Preface to the Prayer Book is applicable, inasmuch as in their opinion the charge against the Re- spondent, with which they are now dealing, involves what is expressly ordered and prohibited by the Rubric, and is therefore a matter, in which the Bishop could have no jurisdiction to modify, or dispense with the rubrical pro- visions. On the whole, their Lordships are of opinion that the charge against the Respondent of kneeling during the Prayer of Consecration has been sustained, and that he should be admonished, not only not to recur to the ele-- vation of the paten, and the cap, as pleaded in the third Article, but also to abstain for the fnture from kneeling, or prostrating himself before the Consecrated Elements during the Player of Consecration, as in the same Article also pleaded. The other ciarge, involved in this Appeal, is that of using lighted candle? on the Communion Table, during the cele- bration of the Holy Communion, when such candles are not wanted for the purpose of giving light. This charge is contained in the fifth and sixth Articles, which are as follows : — ' Fifth. That the said Alexwnder Heriot Mackonoclde has in his said Church, and within two years last past— to wit, on Sunday, December 23, on Christ- mas Day last past, on Sunday, December 30, all in the year of our Lord 1866, and on Sunday, January 13, in the year of our Lord 1867 — used lighted candles on the Com- munion TaLle 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 Privy Council Judgments, 123 tise of lighted candles. Sixth. That the use of such lighted 1868. candles is an unlawful addition to, and variation from the i„~^ form and order prescribed and appointed by the said h^okoko. Statutes, and by the said Book of Common Prayer, and "hie. Administration of the Sacraments, and other rites and f °'^^^°^ . ceremonies of the Chnroh, and is contrary to the said Statutes, and to the 14th, 36th, and oSthof the said Consti- tutions and Canons.' The responsive plea of Mr. MacJconocMe on this head is Answer of as follows .— ' Fifth. Whereas it is pleaded in the fifth Article b^«">"4™*' that the said Alexander Seriot MaclconocMe has in his said Church, and within two years last past — to wit, on Sunday, December 23, on Christmas Day last past, and on Sunday, December 30, all in the year of our Lord 1866; and on Sunday, January 13, in the year of our Lord 1867T-used lighted candles on the Communion Table, during the cele* bration of the Holy Communion, at times when such lighted candles were not wanted for the purpose of giving lights and permitted and sanctioned such use of lighted candles. Now, the same is in part untruly pleaded, for the .party proponent alleges that on the said three Sundays, and Christmas Day, in the said fifth Article mentioned, the said Jighted candles were not placed on the Communion Table, ■ but u'pon a narrow movable ledge of wood resting on the said Table, and that the said candles were so placed and kept lighted, not during the celebration of the Holy Com- munion only, as falsely suggested in the said fifth 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 ,dnring the delivery of the sermon. Sixth. That he denies 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 Administration of "the Sacraments, and other lites 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, as in the said sixth Article alleged.' i24 1868. 2IACK0X0- CHIE. judgment. Are lighted candles ornaments, or. part of a K^eremony 2 Testimony of Gonncil of Trent: of Dr. Donne. Distinction between ornaments and cere- monies. Privy Council Judgments. The facts, therefore, on this part of the case appear to be that the Respondent uses two lighted candles during, with reference to, and as an accompaniinent of, the Communion Service, and not for the ordinary purpose of giving light, and that these candles are placed on a ledge of wood which is placed on the Communion Table. • The Dean of the Arches seems to have considered that all the practices complained of before him, including tliis use of lighted candles, were ceremonies. The Respondent, in the argument of his Counsel at the bar, appeared to prefer to treat the question as one of ornament, and Mr. Jamies said he considered the lighted candles * part of the symboli- cal decoration of the altar.' If it were necessary to decide which of these views is correct, their Lordships would feel disposed to agree with the Dean of the Arches, that however candles and candle- sticks may per se be looked upon as a part of the furniture or ornaments of the church, taking the word ornaments in the larger sense assigned to it by this Committee in Wester, ton V. Idddell, yet the lighting of the candles and the consuming them by burning throughout, and with reference to a service, in which they are to act as symbols and illus- trations, is itself either a ceremony, or else a ceremonial act forming part of a ceremony, and making the whole ceremony a different one from what it would have been had the lights been omitted. The Council of Trent (22nd Session, Sth chapter). Be MisscB ceremoniis, et ritihus, says, ' Ceremonias item adhibuit ut mysticas lenedictiones, lumina, tJiymiamata, vestes, aliague multa.' Dr. Donne also in his Sermons (Pol. Ed., p. 80, 1640), writing in support of the use of these lights, calls it a cere- mony. He says, ' It is in this ceremony of lights as it is in other ceremonies.* 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 Privy Council Judgments, 125 banner, a torcli, a candle and candlestick, may be parts of 1868. the furniture, or ornaments of a cburcb ; bnt the censing of j^^^ persons and things, or, as was said by the Dean of Arches, jj^okono- the bringing in incense at the beginning, or during the ™ib. celebration, and removing it at the close of the celebration J°'^p°™*- . 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 inexpressive, and the act must be justified, if at all, as part of a ceremonial law. If the use of lighted candles in the manner complained n iigMea of be a ceremony, or ceremonial act, it might be sufficient ceremony, it to say that it is not — nor is any ceremony in which it forms by'the a part — among those retained in the Prayer Book, and it ^^^ must therefore be included among those that are abolished ; for the Prayer Book in the Preface divides all ceremonies into these two classes : those which are retained are speci- fied, whereas none are abolished especially, or by name ; but it is assumed that all are abolished which are not expressly retained. Passing however from this, the use of lighted candles, ^giitea if a ceremonial act or part of a ceremony, would be pro- <=andiea r , .• ' i Tiewea as hibited by Queen Elizabeth's Act of Uniformity, 1 Eliz. c. 2, P^rt °t a sec. 4, which is now applicable to the present Prayer Book, prohibitedby T 1 • 1 1 -i. 1 i XT. -J. Elizabeth's and which makes it penal to use anyotner rite, ceremony, Act ofuai- order, form, or manner of celebrating the Lord's Supper ™™ ^' , , . , than is mentioned and set forth in the said Book ; and anf prior authority for the practice, from usage or otherwise, would be avoided by sec. 27, which enacts that * all Laws, Statutes, and Ordinances, whereby any other service, administration of Sacraments, or Common Prayer is limited, established, or set forth to be used within this realm, shall from henceforth be utterly void and of none efEect.' As to the argument that the use complained of is at most only part of a ceremony, their Lordships are of opinion 126 1868. Maktin Mackono- CHIE. Judgment. Privy Council Judgments. that when a part of a ceremony is changed the integrity of the ceremony is broken, and it ceases to be the same ceremony. The learned Judge of the Arches Court was of opinion that these lights were ordered by injunctions having statut- able authority, which injunctions had not been directly repealed ; that they were primitive and Catholic in their origin, Evangelical in their proper symbolism, purged from all superstition and novelty by the very terms of the in- ■ junction, which ordered their retention in the Church, and that, therefore, it was lawful to place them on the Holy Table, during the time of the Holy Communion ' for the signification that Christ is the very true Light of the world.' The authorities cited show beyond all doubt the very ancient and general use in the Church of these symbolical lights ; and the injunction, to which the learned Judge refers, is the third of those issued A.d. 1547, in the first year of the reign of King Edward VI. By this it was ordered that images should be taken down and destroyed^ and that spiritual persons should suffer no torches or candles to be set aforo any image or picture, but only two lights upon the High Altar, before the Sacrament, which, for the signification that Christ is the very true Light of the world, they should suffer to remain. It would deserve consideration how far under any cir- cumstances this injunction could now be held operative, having- regard to the words ' upon the High Altar, be- fore the Sacrament,' and to the distinction pointed out by this Committee in Westerton Vv Liddell, and Parher- v. IJeach,* between the Sacrificial Altar and the Commu* nion Table. But, without dwelling on this, and without stopping at this place to enquire into the nature of the authority, under which the injunctions of 1547 were issued, their Lordships are clearly of opinion that the in- junction in question, so far as it could be taken to authorise the use of lights as a ceremony or ceremonial act, was ab- rogated or repealed by the Act 1 Bliz., c*. 2, particularly by sec. 27, already mentioned, and by the present Prayer Book and Act of TTniformity, and that the use of lighted * For statement of this case see Appendix, Note C. Privy CouncilJudgments. 127 ■candles, viewed as a ceremony or ceremonial act, can derive 1868. KARTOr BO warrant from that injunction. Reference was made in the argument for the Respondent io a Constitution of the Council of Oxford, under Walter, ohie! Archbishop of Canterbury, A.D. 1322. That Constitution is Jt'dgment. -in these words : — ' Tempore quo missarum sdlemnia peragim- ^g, ^^ ^^^ ■tur, accendentur dues candelm, vel ad minus una ; * and is. anna- ponsutu- , '■^ tions of Tently a repetition of the earlier Constitution of a.d. 1222 Oxtord,i322. (Wilkins, Concilia, vol. i., p. 595) : — ' Tempore quo missarum ■sdlemnia peraguniur, accendentur dum candelce, vel. ad minus ima cum lampade.' As to these Constitutions, it is suffi- cient to say that, in their Lordships' opinion, they must he taken, if of force at the time of passing of any of the Acts of Uniformity, to have been repealed by those Acts. It remains to be considered whether the use of these two Lighted lighted candles can be justified as a question of 'ornaments,' ^"^^'ag according to the definition of that term already referred to. ornaments. It was in this sense that the argument for the Respondent appeared to prefer to regard them ; and the learned Judge •of the Arches Court also, although, at the earlier part of the judgment, he had stated that the matters complained of before him must be considered as * ceremonies,' appears ultimately to have applied to the use of lighted candles the Law, or Rubric, as to ornaments. The Rubric, or note, as to ornaments, in the commence- •ment of the Prayer Book, is in these words :^ ' And here is to be noted that such ornaments of the Ohurch, and of the Ministers thereof, at all tirhes of their ministration, 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 Hdward YI.' The construction of this Rubric was very fully con- constrnction isidered by this Committee in the case of Westerton v. mente''"' ■Liddell, already referred to ; and the propositions which their KiMo- Lordships understand to have been established by the judg, anent in that case may be thus stated : — First. The words 'authority of Parliament,' in the Rubric, refer to and mean the Act of Parliament 2_and S Edw. VI., cap. 1, giving Parliamentary effect to the 128 Privy Council Judgments. 186&. Maokoko- Judgment. Lighted cnndles are not ' orna- ments.' Krst Prayer Book of Edimrd VI., and do 'not refer to, or mean Canons or Royal Injunctions having, the authority of Parliament, made at an earlier period. (Ante, p. 54.) Second. The term ' ornaments ' in the Ruhric means those articles, the use of which, in the services and mi- nistrations of the Church, is prescribed by that Prayer Book. (Ante, p. 51.) Third, The term * ornaments^ is confined to these articles. (Ibid.') Fourth. Though there may be articles not expressly mentioned in the Rubric the nse of which would not be restrained, they mnst be articles which are consistent with, and subsidiaiy to, the services ; as an organ for the sing- ing, a credence Table from which to take the sacramental bread and wine, cushions, hassocks, &c. (Ante, p. 74.) In these conclusions, and in this construction of the Rubric, their Lordships entirely concur, and they go far, in their Lordships' opinion, to decide this part of the case. The lighted candles are clearly not ' ornaments ' within the words of the Rubric, for they are not prescribed by th& authority of Parliament therein mentioned — namely, the First Prayer Book — ^nor is the injunction of 1547 the autho* rity of Parliament vrithin the meaning of the Rubric. They are not subsidiary to the service, for they do not aid or facilitate, much less are they necessary to the service ; nor can a separate and independent ornament previously in use be said to be consistent with a Rubric, which is silent as to it, and which, by necessary implication, abolishes what it- does not retain. It was strongly pressed by the Respondent's Counsel that the use of lighted candles, up to the time of the issue of the First Prayer Book, was clearly legal ; that the Hgtted candles were in use in the Church in the second year of Edward VI., and that there was nothing in the Prayer Book of that year making it unlawful to continue them. All this may be conceded, but it is in reality beside the question. The Rubric of our Prayer Book might have- said, those ornaments shall be retained which were lawful, or which were in nse in the second year of Edward Yl.y Privy Council Judgments. 129 and the argument as to actual use at the time, and as to 1868. the weight of the injunction of 1547, might in that case jj^^^, have been material. But the Euhric, speaking in 1661, ilij,*o^o. more than 100 years subsequently, has, for reasons which c™b- is not the proviace of a judicial tribunal to criticise, defined f°^g°|^*- . the class of ornaments to be retained by a reference, not to what was in use de facto, or to what was lawful in 1549, but to what was in the Church by authority of Parliament in that year ; and in the Parliamentary authority, which this Committee has held, and which their Lordships hold, to be indicated by these words, the ornaments in question are not found to be included. Their Lordships have not referred to the usage as to lights during the last 300 years ; but they are of Opinioil that the very general disuse of lights after the Reformation (whatever exceptional cases to the contrary might be pro- duced), contrasted with their normal and prescribed use previously, affords a very strong contemporaneous and continuous exposition of the Law upon the subject. Their Lordships wiU, therefore, humbly advise her Eesnitaato Majesty that the charge as to lights also has been sus- ^^^^' tained, and that the Respondent should be admonished for the future to abstain from the use of them, as pleaded in these Articles. All these charges against the Respondent having been costs, thus established, their Lordships see ho reason why the usual consequence as to costs should not follow ; and they will advise her Majesty that the Respondent should pay to the Appellant the costs in the Court below, and of this Appeal. By an Order of her Majesty in Council made thereon it Order, was ordered ' that the decree of the Court below ought to be amended to the extent hereinafter mentioned, the prin- cipal cause retained, and therein that, in addition to the matters ia which the said Alexander Heriot ManJconochie was in the decree appealed from pronounced to have offended, and from which he was thereby monished to abstain for the future, he, the Bsii Alexander Heriot MacJco- nochie, ought to be pronounced to have offended against the Maokoxo- 130 Privy Council Judgments. 1868. Statutes, Laws, Constitutions, and Canons of the Churcli Mtumj pf JBnglcmd by having within the said Church of the new parish of St. Allan's, Holbom, knelt, or prostrated himself, before the Consecrated Elements during the Prayer of Con- ■ ° ^™ ' ■ secration, and also by having within the said Church used lighted candles on the Communion Table during the cele- bration of the Holy Communion, at times when such lighted candles were not wanted for the purpose of giving light ; and that the said Alexander Seriot Machonochie ought to be admonished to abstain for the future from kueeling, or prostrating himself, before the Consecrated Elements during the Prayer of Consecration, and also from using in the said Church 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, further, that he, the said Alexander Meriot MackonocMe, ought to be condemned in the costs incurred on behalf of the said John Martin, as well in the Court below as in the Appeal. [For notes on this Case, see Appendix, Notes E and F.J 131 .JOHN MARTIN ..... Appellant ; AND The rev. ALEXANDER H. MACKO- 1 ■„ ^ , NOCHIE, Oleek I Respondent.* . Jn a Cause aiid Appeal from the Arches Gowrt of Ganterhury. Motion to enforce obedience to a Monition to carry into effect an Order in Council {ante, p . 129) prohibit- ing the Respondent from elevating the Cap and Paten during the administration of the Holy Communion, and from kneeling or prostrating himself before the Consecrated Elements, and from using lighted candles on the Communion 'Table, during the celebration of the Holy Communion, when such lighted candles were no c wanted for the purpose of giving light. It appeared that the . elevation of the Cup and Paten, for which the Respondent had been articled in the Court, below, was an elevation above his head, which was the only mode of elevation pleaded in the Article, after it had been reformed, and. was, there- fore, that prohibited" by the sentence of the Court, and that the Respondent had substituted for such, an elevation only to the level of his head : Held by the Court, that, though disapproving and discountenancing any elevation of the Elements whatever, the illegality of the elevation since practised by the Respondent not being raised by the pleadings, he had techni- cally complied with the terms of the sentence, and could mot be held to have disobeyed the Monition in that respect. That, with regard to kneeling, it was proved that > * Before : The Lord Chancellor (Hatherley) ; the Archbishop of York (Dr. Thomson) ; Lord Chelmsford; Sir James William Colvile ; and Sir Joseph Napier, Bart. k2 132 Privy Council Judgments. the Respondent did prostrate, and bow Ms knee at the times alleged, in such a manner as to be unable- himself to say whether he touched the ground with his knee, or to make it possible for anyone to see whether he was kneeling or not : - Held, that such prostration, was literally ^neeling, and alike contrary to the Rubric and to the letter and spirit of the- Monition. That, respecting the lighted candles, inasmuch as it appeared that the candles on the Communion Table, though lighted and burning during the whole service before the celebration of the Holy Oommunion, and until the commencement thereof, were then extinguished,, their Lordships were unable to hold that there had notr been a literal compliance with the strict terms of the Monition ; though the charge established by the evi- dence was for using candles on the Communion Table at times wheil they were not wanted for the purpose of giving light. Under the circumstances, their Lordships expressed their opinion that the Monition had been disobeyed with reference to the kneeling during the Prayer of Consecration, and monished the Respondent to refrain therefrom for the future ; and, to mark their disappro- bation of his course of proceeding, ordered him to pay the costs of the motion. The principles laid down in the case of Martin v. Maelionoehie referred to and confirmed. Bee. 2 & 4, 1869. Majotn This was an application to the Judicial Committee for an order to enforce compliance with a Monition issued to carry into effect the order made by her Majesty in Council in the above cause. It appeared that, notwithstanding the Order and Moni- tion, the Respondent refused to comply therewith, and to a great extent continued the practices he was monished to abstain from ; that he continued to elevate the Cup and Paten, to kneel or prostrate himself before the Consecrated Elements, and to use lighted candles on the Communion Table, when they were not wanted for the purpose of giving light. A Petition was, therefore, presented, pray- ing their Lordships to enforce the Monition, and that the Respondent might be condemned in costs. Privy Council Judgments. 133 The Petition was supported by affidavits, in whioh the 1869. arrangements of the Respondent's church, and his manner ji^^^ -of proceeding in conducting the services, was described and jj^„Jono •deposed to, as witnessed on two several occasions, when chie. the Deponents attended Divine Service there, as follows : — „^^^\ ' That, during the whole of the Morning Prayer aiid statement. Communion Service, there were seven lamps suspended Affiaa-rfts Sn -frova the ceiling of the church, over the chancel, each lamp motion, -containing a coloured light, which lights were burning during the whole of the Morning Prayer and Communion -Service ; that at the commencement of the Morning Prayer there were eight lighted candles upon a shelf, about six inches above the level of the Communion Table, and which Appeared to form part thereof, two of such candles being in candlesticks, and six in two candelabra, holding three can- ■dles each, such candlesticks and candelabra standing upon the said shelf ; that such eight candles were extinguished immediately before the commencement of the Communion Service, up to which time they were kept continuously burning ; that neither such lamps nor such candles were j-equired for the purpose of giving light. ' That when the Respondent, in celebrating the Commu- nion Service, came to that part of the Prayer of Consecra- ■tion at which the Rubric directs the Priest to take the Paten 'into his hands, he paused in reading the said Prayer, and that during such pause, and before taking the Paten into his hands, he bowed himself down to the Communion TablCj so that his forehead nearly touched the same ; he then stood upright, and immediately afterwards knelt down mpon the steps leading to the Communion Table ; that, after kneeling for a few seconds, he rose, and again stood Tup, and took the Paten into his hands, and raise^d it level with his head ; that he then replaced the Paten upon the Communion Table ; that he then again bowed down to the Communion Table, so that his forehead nearly touched the same ; he then again stood upright, and immediately after- wards knelt down upon the steps leading to the Commu- nion Table ; that after kneeling for a few seconds he again arose, stood up, and proceeded with said Prayer of Consecra- 134 Privy Council Judgments. 1869. Maetis Affidavits of Bespondent. tion, until he came to that part at which the Rubric directs'- the Priest to take the Cup into his hands ; he then again, paused in reading the said PrayCT; that during such' pause, and before taking the Cup into his hands, he bowed himself down to the ' Commumon T^ble, so that his fore- head nearly touched the same ; he then stood upright, and immediately afterwards knelt down upon the steps leading' to the Communion Table ; that, after kneeling for a few seconds, he again rose and stood up, and took the Cifp into • his hands and raised it level with his head ; he then re- placed the Cup upon the Commujjiion Table ; he then again bowed down to the Communion Table, so that his- forehead nearly touched the same ; he then rose and stood upright, and immediately afterwards knelt down upon the • steps leading to the Communion Table ; that after kneeling ■ for a few seconds he again rose, stood up, and proceeded with the Prayer of Consecration ; that in handing the Cup ■ to the assistant Priest he knelt down facing the Priest, and bowed himself down very low, the assistant Priest at the- same time holding up the Cup as high as he could reach ; and the same was repeated when the assistant Priest returned the Cup to the celebrant, after the communicants had partaken ; and that such pauses, bowings, and kneeling oui the part of the Respondent were designed and intentional, and were not accidental or caused by any infirmity.' ■ The Respondent, who appeared, as he asserted, under • protest, filed two affidavits made by himself, and one by -Mr. Wallcer, one of his curates. In his own affidavit he stated ' That the manner of elevation of the Cup and Paten at the Church of St. Allan's, during the Consecration Prayer ■ and the Service for the Administration of the Holy Com- muniouj adopted and sanctioned by him, had invariably been one and the same siace he discontinued the elevation above the head, and was the same as that of which Sir- Eohert Pliillimore, in his judgment in this case in the Court- of Arches, said, "His present practice is not complained of;" ' ' and he added, ' I did not on either of the days or times - mentioned in the affidavits on which this motion is foundedi- nor have I ever since the service of the said Monition oui PabtII. Statement. Privy Council Judgments. , 135' me, prostrated myself, or knelt on steps leading to the Com- 1869. munion Table, or elsewhere, when celebrating the Holy i£^;;^" Commnnion, during any part of the Consecration Prayer. „ "• 1 admit, ne continued, that it is my practice during the oHm, Prayer of Consecration, when celebrating the Holy Com- munion, and whilst standing before the Holy Table, reverently to bend one knee at certain parts of the said Prayer, and occasionally in so doing my knee momentarily touches the ground, but such .touching of the ground is no part of the act of reverence intended by me. Whether my knee may have thus momentarily touched the ground on either of the days mentioned in the affidavits on which I am stated to be the celebrating Priest, I am, of course, un- able to say.' The further affidavit put in by the Respondent stated that, ever since the Monition of the Court in the above cause was served upon him, he had endeavoured to obey it ; and had never intentionally or advisedly in any respect disobeyed it, or sanctioned any practices contrary to the provisions of that Monition. The affidavit of, Mr. Wallcer deposed to the same effisct as to the manner of elevating the Paten and Cup, and expressly stated that ' the Respondent did not prostrate himself or kneel upon the steps leading to the Communion Table, or elsewhere, at any time during the Prayer of Consecration,' on the days mentioned in the affidavits of the Appellant's witnesses, and, to the best of his (the Deponent's) belief, he (the Respondent) did not touch the ground with either of his knees at all during that time on the occasions on which the Respondent was accused of doing so, adding that, 'having regard to the positions of the celebrating and assisting Priests during the Consecration Prayer, as well as to the length and nature of their dress, I do not believe that it is possible for any person in the body of the Church to say whether the Respondent did kneel or not.' The motion came on for final hearing on these affi- Hearm] davits. Mr. A. J. Stephens, Q.C., Mr. ArcMhdld, and Mr. Droop for the Appellant '; 136 Privy Council Judgments. 186a. The BiespmiAent in person. maetis The LoED Chancblloe (Hatherley) : — In this case a motion has been made calling npon their Lordships to take proceedings, in order to enforce the Mo- nition, which has been served'uponthe reverend Respondent,/ with regard to the execution of a sentence pronounced ia, the first instance by the Court of Arches. This sentence was in some degree extended and modified by the judgment which this Committee was called on to pronounce, or rather, by the decision which they were called upon, after argu- ment, to recommend as fit to be made by an Order of her Majesty in Council. The Order provided for several matters ; as to three of which only it is now alleged that there has been a breach by the Respondent of the Monition issued in pursuance of the Order. Those three matters are : First, that he continues to elevate the "Cup and Paten during the administration of the Holy Communion; secondly, that he continues to kneel or prostrate himself before the Consecrated Elements during the Prayer of Consecration ; and, thirdly, that he continues to use lighted candles on the Communion Table , at times when such lighted candles are not wanted for the purpose of giving light. In order to see how far that which is complained of has been a breach of the Monition, we must of course, in the first instance, look to the Monition itself. The Monition having recited that the Respondent was pronounced to have offended against the Statutes, Laws, Constitutions, and Canons of the Church of England by having knelt or prostrated himself before the Consecrated Elements during the Prayer of Consecration, and also by having, within the said Church, elevated the Cup and Paten during the Holy Communion, and also by having 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 Kght, proceeds to direct him to abstain for the future from the elevation of the Cup and Paten during the administration of the Holy Comtnu- The Moni- tion. Privy Council Judgments. 137 nion, and from kneeling or prostrating himself before the 1869. Elements during the Prayer of Consecration, and also from nujms using in the church lighted candles on the Communion Table, during the celebration of the Holy Comniunion, at times when such candles are not wanted for the purpose of giving light. The evidence, which is before their Lordships, is addressed Evidence as to these three difierent heads. We will deal with them in a caudles, different order from that in which they appear in the prayer of the application, and take the case of lighted can- dles on the Communion Table, at times when such candles are not wanted for the purpose of giving light, in the first instance, because, with reference to that part of the case, it appears to their Lordships that the affidavits do not make out the ofience charged. In the first place, it appears that the offence chai'ged is not in strict conformity with the Monition, because the Monition is itself confined to using those candles on the Communion Table at times when they were not wanted for the purpose of giving light, leaving out the words ' during the time of the Holy Comngiunion.' Of course it is not competent for their Lordships to pro- ceed beyond the actual Monition which has been served upon the Respondent. It is that which he is said to have disobeyed, and it is to the disobedience of the Monition only that their Lordships can address themselves. It is plaia upon the afiidavits that the candles have not been lighted during the Holy Communion, for the course taken by the Respondent has been this, that the candles are lighted (as he says they always have been, and were at the time of the proceedings herein being taken), and are kept burning up to the period of the Holy Communion, and then immediately before the commencemept of the Holy Communion they are extinguished. There is no doubt, therefore, in this case a literal Kesnitaato ' ' lighted compliance with the terms of the Monition. The candles candies. are not lighted during the period of the Holy Communion, They are lighted, indeed, when there is no necessity for their being lighted for the purpose of giving light, but they are extinguished before the Holy Communion ; 138 1869. Mabtih V, Hackono- CHIE. PabtII. Judgment. Elevation of Cup and faten. The moni- tion must be interpreted by the article of charge. Privy Council Judgments. therefore, the compliance -with the terms of the Monition has heen literal and complete, and not, in that sense, eva- sive, for the Respondent was limited to a particular time in reference to the candles ; and whatever one may feel as ^ to the course of the reverend. Respondent, looking to the spirit of the Monition, of course the Monition could not go beyond the matters that were charged ; the offence charged was one which he has abstained from ; and in this respect, therefore, their Lordships are clear that the prayer of this motion cannot be complied with. The next charge is, that he continues to elevate the Cup and Paten during the administration of the Holy Commu- nion ; and, with reference to this matter, their Lordships feel that the case is placed in a position that is eminently unsatisfactory. On the former occasion the sentence of the Judge in the Court below was approved of with reference to this particular subject ; therefore that sentence is the sentence to which recourse must be had by their Lordships wheii interpreting the Monition, which cannot, of course, proceed further than the sentence itself. The sentence of the Court below was thus worded :^The -Respondent was ordered ' to abstain for the future from the elevation of the Cup and Paten during the administration of the Holy Communion, and also from the use of incense, -and from the mixing of water with the wine during the administra- tion of the Holy Communion, as pleaded in the Articles.' Their Lordships think that the words ' as pleaded in the Articles ' must bo applied to those several offences which are charged in the passage just quoted — ^namely, the eleva- tion of the Cup and Paten — also the use of incense, and the mixing of water with wine ; and their Lordships are thrown back, therefore, to the Articles to see what it was that was there pleaded, and they find this state of circum- stances : — Originally the third Article pleaded that there was an elevation of the Cup and Paten beyond what was necessary for the purpose of complying with the terms of the Rubric, which directs that at a particular part of the Prayer of Consecration, when the Sacred Elements are dealt with, the Paten shall be taken into the hands, and at Privy Council Judgments. 139 another part that the Cup shall be taken into the hand, or 1869. hands (for there is some little variation in the two parts of MARira the Rubric itself) of the officiating Minister. That would jh^okoko- have been, as it appears to all their Lordships, a charge <"™. which would have raised a distinct and definite issue, ^^ktii. whether the elevation of the Paten or the elevation of the ~ l^^™*' ^ Cup were, or were not, a Vond fide raising it, so far only as is necessary for anything to be raised — that is, to be tajcen from the Table — or whether or not there was some ulterior purpose^-that is to say, an act of elevation wholly distinct from, and going beyond, what was necessary for the mere purpose of taking the Paten and Cup into the hands of the officiating Minister. But the words ' and otherwise ' were also inserted in the Asreformea same third Article in a part which rendered it very difficult below. to attach any definite sense to them. Those words were so vague, that the learned Judge before whom the case first came (Dr. I/usMngtoii) conceived that he could not admit the Article in that form, and that the words introduced such a degree of vagueness as to render it improper to call on the Respondent to answer the charge in its then shape; and, therefore, the learned Judge said that the Article must be reformed. In the reforming of that Article, those who reformed it appear to have gone beyond anything that was required- by the decision of the learned Judge in the course of the argu- ment upon the admission of the Articles. They not merely struck out these words ' and otherwise,' but they also ma- terially varied the language by describing definitely in the reformed Article the act which had been performed — namely, that it was an elevation of the Elements ' above the head of the Respondent.' The Article then became confined to that particular ■wiiioii deals mode of elevation, instead of being a charge of elevation "ne^p™. beyond what was necessary for the proper compliance with ofeieraSonf the . Rubric ; and, therefore, when the sentence of the Judge, which directs that he shall abstain for the future from the elevation ' as pleaded in the Articles,' is consi- dered, it appears to their Lordships that they are necessa- 140 1869. Uaskono- CHIE. FastII. Judgment. TSo elevation asdis- tingnishcd from mere removal is sanctioned. Privy Council Judgments. rily confined to that particular charge ■which is there con- tained, and that particular mode of elevation which is there complained of. We have been thus particular in going through aU the circumstances of this case, which is left, as it appears to their Lordships, in a very unsatisfactory position, because it is most desirable, and their Lordships are all of opiniopi that it should be distinctly understood that they, give no sanction whatever to a notion that any elevation whatever of the Elements, as distinguished &om the mere act of re- moving them from the Table, and taJdng them into the hand of the Minister, is sanctionedby Law. It is not necessary for their Lordships to say more (but most undoubtedly less we cannot say) than that we feel nothing has taken place in the course of this cause, that can possibly justify a conclu- sion, that any elevation whatever, as distinguished from the raising from the Table, is proper or sanctioned. All that their Lordships can say on the present occasion is,, that the point has never yet been in these proceedings raised, that a particular and definite mode of elevation only has been averred and complained of, and with that partictdar and definite mode of elevation we have nothing further to do, because it is conceded on all sides that such parti- cular mode has been departed from. It is not for us to say how far the letter to which the ^Respondent himself has referred, and in a part of which he says that the simple compliance with the Eubric— r- namely, taking the Cup and Paten into his hands — ^would be sufficient for the purpose of satisfying a certain portion of his parishioners as regards the elevation of the elements, may or may not have misled the Judges who had this case before them. They held that the matter complained of, having been discontinued, had in efiect not been complained of — ^that is, by the Articles — and we have felt it to be right and proper to say thus much ; nothing, therefore, which we are now deter- mining can be pleaded her^fter as a justification for any mode of elevation, which is to be distinguished from the Piii)y Council Judgments. 141 mere act of removing the Elements from the Table, and 1869. taking them iato the hands of the Miaister. iHj^ns Inasmutih, then, as the reverend Respondent has said jj^ "■ npon oath, and it is not now contravened, that his course ohie. of procedure has only been that which he says he adopted ^'■"'tii- at the time of the first hearing of the matter, owing' to the " ^™°° ' complaint made of the higher elevation pleaded in the Eesuit. Articles, their Lordships think they cannot, in that state of circumstances, say that he has thereby committed a breach of the Monition which has been served upon him. Thfe third matter which has been complained of is as as follows ; and as to this matter, their Lordships think the case is open to very different considerations : — The Respondent was admonished ' not to kneel or pros- Kneeling or trate himself before the Consecrated Elements during the Prayer of Consecration ; ' and, without going through the affidavits, the exact state of circumstances may be taken to be as they appear upon the affidavits made by the Respond- ent himself, and by Mr. Walker, the gentleman who was present on the several occasions referred to in the m.otion. The affidavits in support of the motion stated distinctly acts of prostration and of kneeling during the period of the Prayer of Consecration. Into the details of those affidavits it is unnecessary to enter, because in the affidavit of the . Respondent there is this, which seems to set the case in a very fair light so far as the facts are concerned. The Respondent says, ' I did not on either of the days or times mentioned in the affidavits on which this motion is founded, nor have I ever since the service of the said Monition on me, prostrated myself or knelt on steps leading to the Communion Table, or elsewhere, when celebrating the Holy Communion during any part of the Consecration Prayer. I admit that it is my practice during the Prayer of Consecration, when celebrating the Holy Communion ' (the time, therefore, is exactly fixed to which the Monition would apply), 'and whilst standing before the Holy Table, reverently to bend one knee at certain parts of the said Prayer, and occasionally in so doing my knee momentarily 142 1869. Maptto V. MAOKONO- CHIE. PAIiTlI. Judgment. How far the Monition complied with. Privy Council Judgments. touches fclie ground, but sucli touching of the ground is no part of the act of reverence intended by me. Whether my knee may have thus momentarily, touched the ground on either of the days mentioned in the said affidavits, on which I am stated to be the celebrating Priest, I am, of course, unable to say.' Mr. Walker is a little bolder upon that point, because he says this (he was present on these days) : — ' That the Respondent did not prostrate himself, or kneel upon the steps leading to the Communion Table, or elsewhere, at any time during the Prayer of Consecration on July 18 and November 14, 1869, as mentioned in the said affidavits ; and, to the best of my belief, he did not touch the ground with either of his knees at all during that time on the occasions on which the Respondent is accused of doing so.' Then he further says this-: — ' And, having regard to the positions of the celebrating . and assisting Priests during the Consecration Prayer, as well as to the length and nature of their dress, I do not beheve that it is possible for any person in the body of the church to say whether the Respondent did kneel or not. Therefore, the case as stated is this ; Mr. MaclconooMe being enjoined against kneeling during this Prayer, admits, a gesture which he contends is not kneeling, but he. admits a bowing of his knee, a bowing of it to an 'extent which occasions it at times momentarily to touch the ground, a bowing of it to an extent which renders it impossible (ac- cording to Mr. Walher's affidavit) for anybody to see whether he is or is not kneeling ; this is the distinct statement in the affidavit — viz., that nobody could see whether he is kneeling or not. Krst of all their Lordships would consider the literal question which is before them, whether there has been even a literal compliance with the Monition in this act of Mr. ■MackonocMe. Their Lordships are all of opinion that there has not been even a literal compliance ; that Mr. Maohonoclm has knelt ; and that bowing the knee in the maimer which he has described is kneeling ; and that it is not necessary that a person should touch the ground in order to perform such an act of reverence as will constitute kneeling. Of Privy Council Judgments. 143 course there may be such a bowing of the knee as would 1869. 'not amount to kneeling in the sense of the' Monition, but ^[^^ Mr. MaokonocMe y&cj properly says that he takes no „ "■ , advantage of any suggestion of that sort. There may be an chie. accidental bowing of the knee, arising from fatigue or other- ^^'^ ^' wise ; but here is a kilee bent for the purpose of reverence, ' ■ ' and in such a manner that those who behold cannot tell "whether or not what Mr. Machonochie and Mr. WalJeer call kneeling — that is, touching the ground with the knee — ^has been arrived at, and indeed Mr. Maclamoalde says that at •certain times his knee has momentarily touched the ground. This seems to their Lordships to be literally kneeling. ■ But the case must be put much higher than that, because ^^^i""^ neither this Tribunal, nor any Tribunal v^ill suffer its orders' ^^^ ■>* ^'^^ to be tampered with by mere evasion ; and a mere evasion it would be to allow a person wJien ordered not to kneel (the whole gist and purport of the order, as I shall prer sently show, being the kneeling by way of reverence) to say, ' I did all that I could do towards so kneeling ; I bowed my knee ; I nearly touched the ground with it — I did not quite touch the ground, but I did it in such a manner that all my congregation, all who were attending ' and seeing that which I did, could not possibly tell whether I were kneeling in that sense or not.' It would be in- tolerable to allow any order to be trifled with in such a manner as must be implied if their Lordships were to give place for a moment to any such argument on the part of Mr. MaclwnocMe, as that this was a compliance with the order. Now, with reference to this particular matter of kneeling, it is one, undoubtedly, of very great importance as regards the judgment which has been pronounced, and the occasion of that judgment. "We cannot do better, with reference to this part of the subject, than call attention to the purport and intent of. the Book of Common Prayer, when prescrib- ing what is to be done, and in omitting to prescribe that which it does not intend to be done. For that purpose I will refer to the judgment which was pronounced by Lord Cairns as the judgment of the Judicial Committee on the 144 1869. Mahtik V. Magkono- Privy Council Judgments. fdfmer occasion. His LorclsMp tlius expresses Mmself in that judgment {ante, p. 119) : — ' Their Lordships are of opinion that it is not open to a Minister of the Ghurch, or even to their Lordships in advising her Majesty, as the highest Ecclesiastical Tribunal of Appeal, to draw a dis- tinction in acts which are a d!epartnre from, or violation of, the Rubric, between those which are important and those which appear to be trivial. The object of a 'Statute of tfmformity is, as its preamble expresses, to produce "an universal agreement in the public worship of Almighty- God *' — an object which would be wholly frustrated if each Minister, on his own view of the relative importance of the details of the service, were to be at liberty to omit, or add to, or alter, any of those details. The rule upon this subject has been already laid down in Westerton v. Liddell, and their Lordships are disposed entirely to adhere to it":— ^ " In the performance of services, rites, and ceremonies ori dered by the Prayer Book the directions contained in it must be strictly observed ; no omission and no addition can be permitted'" (anfe, p. 74). And then upon this very subject matter his Lordship 'further proceeds to say, ' There would indeed be no difficulty in showing that the posture of the celebrating Minister during all the parts' Of the Commu- nion Service was, and that for obvious reasons, deemed to be of no small importance in the changds introduced into the Prayer Book at and after the Reformation. The various stages of the Service are, as has already been shown, fenced and guarded by directions of the most exact kind as to standing and kneeling — the former attitude being prescribed even for prayers during which a direc- tion to kneel might have been expected. And it is not im- material to observe, that whereas in the first Prayer Book of King Hdward VI. there was contained at the end a Rubric in these words : — " 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 Rubric was in the second. Prayer Book of Edward VI., and in all the subsequent Prayer Books omitted.' (Ante, p. 120.) Part II. Judgment. tion. Privy Council Judgments. 145 We may further add an observation as to the extreme 1869. care which is taken in the Prayer Book to guard all mTmw persons who might feel a scruple with reference to jj^^ckono- kneeling at the reception of the Holy Communion, from ohie. any inference that might therehy be raised in their minds of a nature contrary to that which was intended by the Prayer Book itself to be expressed — namely, any iniention of adoration of the Holy Elements. This is most particu- Kneeimg at larly and carefully guarded against, and the reason for uoTadora-'^ such kneeling is explained, and said to be ' for a signifi- cation of our humble and grateful acknowledgment of the benefits of Christ therein given to all worthy receivers, and for the avoiding of such profanation and disorder in the Holy Communion as might otherwise ensue.' Then it is explained : — ' Yet, lest the same kneeling should by any person, either out of ignorance and infirmity or out of malice and obstinacy, be misconstrued and depraved, it is hereby declared that thereby no adoration is intended, or ought to be 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 sub- stances, and therefore may not be adored ; for that were 'idolatry, to be abhorred by all faithful Christians.'* And, again, carefully does our Church provide in her Twenty-eighth Article against any such adoration as we have spoken of by this declaration :-^-' The Sacrament of the Lord's Supper was not by Christ's ordinance reserved, carried about, lifted up, or worshipped.' Now, that being so, and it being of the utmost import, ance that, for the purposes of common prayer, such union should be preserved as is essential to the happiness and comfort of all who are joining in this most holy ordi- nance ; what can be a greater offence than the offence of, either by addition or omission, occasioning trouble or con- fusion in the minds of those who are invited to join in conimon prayer, and in one common act of reverence ? * Declaration at the end of the Semce of the Holy Communion. I. 146 Privy Council Judgments. 1869. Mabtdj V, Maceono- CHI£. PaetII. Judgment. . More re- quired than an evasive compliance ■with the Law. Acts of reverence where necessary are enjoined ; and the use of additional acts of reverence, where they are not enjoined, is, according to the judgment which has been pronounced in this very matter, a thing prohibited. If, therefore, the reverend Respondent, in performing his own special, act of reverence, does it in such a manner that no one can tell whether he is not doing the very thing which he is prohibited from doing, and has performed that special act of reverence at a time when there is no direc- tion ia the Book of Common Prayer for that performance, he certainly does that which militates, in every possible view of the case, both in letter and spirit, against the Mo- nition which he has received, and the reasoning which occasioned that Monition to be issued. Whether or not Mr. MacJconochie can reconcile it with his view of what is right, that a judgment of this kind should be so narrowly scrutinised, that every possible limit should be placed upon it, and that notwithstanding the reasons which are assigned for it — namely, the desire of promoting uniformity in common worship — it should be, as far as possible, evaded, it is not for their Lordships to say. There may be some who feel great grief and sorrow at any act which may appear to be at variance with the common charity and love that should ijiduce us at all times when assembled for worship, and most especially this highest and holiest act of worship, to be as far as pos- sible of one mind, so that then at least our unity be not disturbed. But what one is justified in saying, as regards the act which is now complained of, as a breach of the Monition, is this— that it is not possible, happUy, to recpncile with the administration of oui^ Law in its narrowest sense, any mere evasion of that which the Law sanctions, of that which the Law has ordered, by an authority which binds this reverend gentleman, as it binds every subject of the realm, to strict obedience. That obedience may be ren- dered grudgingly, if so it must be ; it may be rendered in a manner which I am sure the reverend gentleman would not tolerate on the part of any of his fiook, if it Paut II. Judgment. Privy Council Judgments. 147 were a question of obedience to a higher power ; it may 1869. be rendered, therefore, strictly -within the limits which are maete,- exactly prescribed by the Monition ; but that Monition may jjj^o^oso- not be evaded. Amere literal compliance is not all that even chie. the Law requires ; the compliance must not be literal in a sense which is but evasive. I will not, in the name of their Lordships, sav more Narrowness t, J. T n • T •■, m of obedience npon wnat, i coniess, presses npon me individnally very ofBcspond- strongly — ^the narrowness of obedience shown by the course taken as to keeping iihe candles lighted until the very moment when they are forbidden, and then extinguishing them, and as to the elevation of the Elements to something which, even on the affidavits themselves, appears to me to be more than necessary for simply taking the Cup and Paten into the hands of the officiating Clergyman, since we have been obliged to hold that these acts were, never- theless, in literal compliance with the Monition having reference to the Articles. But here, in this matter of kneeling, their Lordships find that there is, first, not even a literal compliance with the Order ; and, secondly, if, upon any strained interpret- , ation of the word 'kneeling' (for strained as it appears to their Lordships it would be), they could arrive at the conclusion that it did not preclude the act of bowing one knee so low that it must at times touch the ground, and in a manner which cannot possibly be distinguished from kneeling by those who witness the act ; still, if it was a representation of a forbidden act, as nearly as the party charged dared to represent it, and in such a guise as to convey to aU at a distance the impression that the act of kneeling was really performed, that would be a species of evasion of the Order, which a Court of Justice would find it right and due to the maintenance of its own force and vigour to visit as being itself a breach of the Order which had been made. For this reason it has seemed to their Lordships (and it is the opinion of us all) that there has been a clear breach of this Monition. Their Lordships next take into consideration what is Bnforoement ot orders, 1,2 1869. MAB'IIN V, Mackono- CHIK. Pabt II. Judgment. 148 Privy Council Judgments. proper and right to be done. They did not hear Mr. Stephens upon the question as to whether or not this Tribu- nal has the means of enforcing its orders. Happily it has been supplied (and I use the word ' happily,' because it would be in vain to establish a Tribunal which has no power to enforce its orders )*with abundant means for that purpose by the Statutes which have been passed in that behalf; but into the examination of these means, and the different modes which might be adopted for that purpose, we are not, for the reason I am presently going to mention, about to enter. In declining to take any more severe step than that of compelling Mr. MacJconocMe to pay the costs of this application, their Lordships have had to consider the affidavit which was last made by him, and to which they have been desirous to give the most favourable construc- tion and allowance ; and in that affidavit Mr. Maekonoehie very properly says that he never intentionally or advisedly, in any respect, disobeyed the Monition, or sanctioned any practice contrary to its provisions. I confess I think, as I have already intimated, that Mr! Maehonoehie takes an ex- ceedingly narrow view of that which the word ' obedience ' ordinarily implies, when he says that he has endeavoured to obey this Order ; but he does say that which in a sense, for the purpose of clearing his contempt, he may have a right to claim the benefit of— that he never (intentionally or advisedly, in any respect, disobeyed the Monition. CMts. He now, We hope, will learn that mere literal compliance in a merely evasive manner will not suffice. Literal com- pliance with regard to the actual limits of the Order is, of course, all that he is held to in Law ; for an obedience to the spirit of the Order we can only trust to his own feel- ings and to his own conscience. And when he thus tells us that it has not been, and is not, his desire wilfully to disobey the Law, or to disregard its Monition, their Lord- ships think that they are bound, on this first occasion of the matter being brought before them of any non-compliance with the Order, to allow Mr. Maehonoelde the benefit of that affidavit ; and thoy do not think it necessary on the pre- sent ixcpasion to do more, after expressing their opinion Privy Council Judgments. 149 judicially that the Monition has been disobeyed with refer- 1869. ence to kneeling during the Prayer of Consecration, than mIr™ to mark their disapprobation of such a course of proceeding by directing that he shall pay the costs of the present application. Their Lordships make no further order. The following Monition was drawn up and issued in pur- suance of their Lordships' judgment : — ' The Lords of the Committee, having heard Alexander Monition. Heriot Maokonodhie, the Respondent, in person, and Counsel on behalf of the Appellant, pronounced that he, the said Alexander Heriot MacTconoehie, had not obeyed the Monition which had been served upon him, and whereby he was, amongst other things, commanded to abstain for the future from kneeling before the Consecrated Elements during the Prayer of Consecration ; monished him to abstain there- from for the future ; and condemned him in the costs of these proceedings.' 150 JOHN MARTIN Appellakt; AND The reverend ALEXANDER H.lj> , MACKONOCHIE . . . . ]■ ilBSPONDENT. In a Cause and Appeal from the Arches Court of Ganterbwy. Motion against the Respondent for disobedience to a Monition founded upon an Order in Council, wHch ordered liini (amongst other tMngs) ta abstain for the future ' itom the elevation of the Cup and Paten during the administration of the Holy Communion, and from kneeling and prostrating himself before the Conse- crated Elements during the Prayer of Consecration ; ' in that he knowingly and habitually sanctioned the elevation of the Cup and Paten above the head of the officiating Clergyman in the Prayer of Consecration, and knowingly and habitually sanctioned kneeling and prostration during the Prayer of Consecration. It appeared that the ordinary course pursued was for the officiating Clergyman, on reaching the words of insti- tution in the Prayer of Consecration, to drop his voice so as to be nearly inaudible ; that he then elevated (not the Paten) but a large wafer bread, find, replacing it upon the Communion Table, bowed his head down towards the Table, and remained some seconds in thai, position ; that he then elevated the Cup so that the rim was some inches above his head, and, replacing it on the Table, bowed as before, after which the adminis- tration of the Elements commenced : Held, that such elevation of the wafer was equivalent to an elevation of the Paten, the elevation which is unlawful being that of the Consecrated Bread itseU^ and not the Paten * Present : The Lord Chancellor (Hatherley) ; the Archbishop of York (Dr. Thomson) ; and Lord Chelmsford. Privy CouncilJudgments. 151 in which it is placed ; that the bowing of the head in the manner described at the Prayer of Consecration, though without bending the knee, was a prostration before the Consecrated Elements, whereof the sanc- tioning was a disobedience of the Monition, and the Order in Council for such disobedience of the Moni- tion ; and the Respondent ordered to be suspended from the discharge of all clerical duties and ofi&oes and the execution thereof for the space of three calendar months. This was a motion to enforce obedience to a Monition Nov. which had been served on the Respondent, admonishing 16, 18, 25, 1870 him (among other things) ' to abstain from the elevation of ,' the Cup and Paten during the administration of the Holy Maktin Communion, and from kneeling and prostrating himself mackoko- before the Consecrated Elements during the Prayer of paet rri. Consecration.' statement. ^ ^ Affidavits were filed to the effect that the Respondent had not complied with the Monition, and a motion was made to the Judicial Committee on December 2, 1869 ■(ante, p. 131), to enforce the Monition. On December 4 their Lordships pronounced, inter alia, ' that the Respondent had not obeyed the Monition which had been served upon him, and whereby he was (amongst other things) com- manded to abstain for the future from kneeling before the Consecrated Elements during the Prayer of Consecra- tion ; monished him to abstain therefrom for the future ; and condemned him in the costs of the proceedings.' Notwithstanding these proceedings, the Respondent continued to disobey the Monition by knowingly and habitually sanctioning the elevation of the Paten and Cup above the head of the officiating Clergyman in the Prayer of Consecration during the administration of the Holy Communion, such elevation being then practised by his Curates and other Clerks in Holy Orders, when officiating and saying such Prayer in his stead and place, and in his presence, in the church of which he was Incum- bent; and he also knowingly and habitually sanctioned kneeling or prostration before the Consecrated Ele- ments during such Prayer by his Curates and other Clerks 152 Privy Council Judgments. 1870. Martin u. Mackono- CHIR. Part III. Statement. in Holy Orders, ■when so officiating and saying such Prayer. These violations of the Monition were deposed to by several witnesses,who,in their affidavits, described the course usually followed in the Respondent's church, which ap- peared to be for the principal officiating Clergyman, when he came to that part of the Office for the Administration of the Holy Communion where the Consecration Prayer is to be read, to lower his voice so as to become indistinct, and only audible as a kind of murmur by the greater part of the congregation ; and that whUe he was thus indistinctly speaking and making a brief and momentary pause, a bell began to toll, and the following actions and circumstances took place : — The officiating Clergyman paused, and then bowed down over the Holy Table, and then knelt down with his hands resting thereon, and on rising elevated either the Paten or what appeared to be, and was, a large wafer-bread, about three inches above the level of his head ; and, on replacing it on the Holy Table, again bowed and knelt down as before ; and after a short interval he similarly raised the Chalice, or Cup, so that the rim thereof was about three inches above his head, and imme- diately after replacing the same on the Holy Table knelt down upon both knees, and bowed his head below the level of the top of the Holy Table, and on rising, after a short pause, proceeded with the administration of the Holy Communion. In consequence of such practices, notice of an applica- tion to enforce the observance of the Monition was served on the Respondent ; and a case was lodged in the Council Office containing the particulars of the acts of disobedience to the Monition. This case, with the affidavits referred to, with notice of the intended motion thereon, was served on the Respondent, who did not appear ; but after some delay he filed counter- affidavits, which ■ in no respect contradicted, though they purported to explain, the practices deposed to and alleged against him^ The Appellant filed a supplemental case with affidavits in reply to those filed by the Respondent. CHIG. Part III. Statement. Privy Council Judgments. 153 Mr. A. J. Stephens, Q.C., Mr. Archibald, and Mr. Shaw in 1870. support of the motion to enforce the Monition. They also ul^ cross-examined the Respondent as to the alleged practice maokoxo. of elevating the Cnp and Paten and prostration before the Consecrated Elements during the Prayer of Consecration, and regarding his allowing and sanctioning other offi- " ' ' dating Clergymen to do the same. The substance of such cross-examination is fally stated in the judgments Judgment was reserved, and now delivered by Lord Chblmsfoed : — This is an application against the Reverend Alexander Nov. 25, Heriot Machonoohie, Perpetual Curate of the Parish of St. Al- 1870. hem's, Holborn, for disobedience to a Monition founded upon judgment. an Order in Council of January 19, 1869, by which he was statement oi commanded (amongst other things) to abstain for the fature ' from the elevation of the Cup and Paten during the administration of the Holy Communion, and from, kneeling and prostrating himself before the Consecrated Elements during the Prayer of Consecration.' A previous application for disobedience to the Monition in thesfe parti- culars was made against Mr. Maakonochie, upon which their Lordships expressed an opinion that the Monition had been disobeyed with reference to kneeling during the Prayer of Consecration, and condemned him in costs. Upon that occasion their Lordships explained the way in which the Article of Charge with respect to the elevation of the Cup and Paten came to be worded as it was. The Article, as it was originally framed, was objected to as vague and general, and was ordered to be reformed. The Article, as reformed, charged Mr. Machonoohie with having elevated the Paten and the Cup above his head during the Prayer of Consecration. It was quite unnecessary to charge an elevation of the Paten and the Cup to the extent described in the reformed Article, because the twenty-eighth of the Articles of Religion prohibits all ele- vation of the Elements, declaring that ' the Sacramept of the -Lord's Supper was not by Christ's ordinance reserved, car- ried about, lifted up, or worshipped.' So the elevation of the Part III. Judgment. 154 Privy Council Judgments. 1870. Paten and Cup need not have been charged to have taken mIk™ place during the Prayer of Consecration. It would have ,, "• been sufiBcient to have stated it to have occurred during cHiE. the administration of the Holy Communion. But the charge having been thus precisely framed (however unne- cessarily), the specific offence to be proved against Mr. MacJconooMe was not simply an elevation of the Cup and Paten, but an elevation of them above his head at the particular period of the administration when the Prayer EnUngof the of Consecration was being read. Upon the original hear- Arches. ing before the Dean of the Arches, he pronounced that Mr. Maekonochie had offended in the terms of this Article, and monished him to abstain for the fature from the ele- vation of the Cup and Paten during the administration of the Holy Communion as pleaded in the Articles. There was no appeal from this part of the sentence. In the Monition which followed the appeal to this Committee from the rest of the sentence of the learned Judge of the Arches Court, Mr. Maekonochie is commanded to abstain for the future from the elevation of the Cup and Paten during the administration of the Holy Communion ; but, upon the strict con- former application against Mr. Maekonochie for disobedience struction of ^ . ^t. . t.tti- n .. the Monition to this Monition, their Lordships were of opinion that the appUcation. words ' as pleaded in the Articles ' must be understood as being in the Monition, and, therefore, that the prohibited elevation was confined to the degree and the time charged in the Article. The unnecessary particularity in the word- ing of this Article of Charge affprded Mr. Maekonochie the opportunity, of which he availed himself, to obey the Mo- nition to the letter, and still to continue to elevate the Cup and Paten during the administration of the Holy Com- munion, but not above his head, nor during the Prayer of Consecration. Judgment on Their Lordships were, therefore, compelled, upon the plication as evidence produced upon the former application against Mr. i>t Elements Mockonochie, to come to the conclusion that he had not and prostra- disobeyed the Monition in this respect, but they took care ' to have it distinctly understood that they gave no sane- 155 1870. M&KTIIf V. MAOKONO- CHIE. PART III. Judgment, Privy Council Judgments. tion whatever to a notion that any elevation of the Ele- iments, as distinguished from the mere act of removing them from the Table, and taking them into the hands of the Minister, was sanctioned by Law.' Upon another charge of disobedience to the Monition Mr. Mackonoohie was not so successful as upon the former occasion, in pro- tecting himself by a supposed literal compliance with its terms. He was commanded not to kneel or prostrate him- self before the Consecrated Elements during the Prayer of Consecration. He admitted that it was his practice during the Prayer of Consecration reverently to bend one knee at certain parts of the Prayer, and that occasionally in so doing his knee momentarily touched the ground, but that such touching of the ground was no part of the act of reverence intended by him. And he contended that this genuflection, unless the knee reached the gronnd, was not kneeling. Their Lordships, however, expressed a clear opinion that bowing the knee in the manner described by Mr. Maakonoehie was kneeling, and that it was not neces- sary a person should touch the gronnd in order to perform such an act of reverence as wiU constitute kneeling. Their Lordships thought it right upon that occasion, to express a hope that Mr. Mackonochie would learn that a mere literal compliance with the Monition in a merely evasive manner would not suffice. And they observed that literal com- pliance with regard to the actual limits of the Order was of course all that he was held to by Law ; and for obedience to the spirit of the Order they could only trust to his own feeHngs, and his own conscience. Mr. Mackonochie is now again before their Lordships _ , upon complaint of acts of disobedience to the Monition, plaint of dis- similar to those with which he was charged upon the former occasion. The Appellant prays their Lordships to declare that Mr. Mackonochie has not complied with the Monition, inasmuch as, first, he knowingly and habitually sanctions the eleva- tion of the Paten and Cup above the head of the officiating Clergyman in the Prayer of Consecration ; and, secondly. 156 Privy Council Judgments. 1870. Allegations of dasobedi- ence and counter alle- gations. that he knowingly and habitually sanctions kneeling or prostration before the Consecrated Elements during the Prayer of Consecration. The affidavits filed on behalf of the Appellant describe the acts done by the officiating Clergyman, during the administration of the Holy Communion, upon seven differeSit Sundays in the months of December 1869 and January and February 1870. As the affidavits on the other side do not deny the general correctness of the account of what took place upon those occasions (nor did Mr. MackonoeMe in his cross-examination), it may be assumed that they de- scribe what is the ordinary course pursued in the adminis- tration of the Holy Communion in the Church of St. A Iban's. It appears, then, that the practice is that, upon the offici- ating Clergyman reaching the solemn words of institution in the Prayer of Consecration, he drops his voice so as to be nearly inaudible, and a bell begins to toll ; that he then elevates (not the Paten, but) a wafer, and, replacing it upon the Communion Table, bows his head down towards the Table, and remains for some seconds in - this position ; that he then elevates the Cup,' and, replacing it on the Table, bows down as before; after whicli the administration of the Elements commences. The Appellant alleges that, on the days mentioned in the affidavits which he has filed, the Paten and Cup were elevated above the head of the officiating Clergyman during the Prayer of Consecration ; and that during the same Prayer there was kneeling or prostration before the Con- secrated Elements. To begin with his case as to the Elevation of the Cap and Paten, the Appellant has distinctly proved that, upon each of the seven Sundays mentioned in the affidavits, the officiating Clergyman, during the Prayer of Con- secration^ elevated a large wafer-bread above his head, and also, during the same Prayer, elevated the Cup, so that its rim was some inches above his head. These statements are opposed by the affidavits of the Clergy^ men who officiated upon the several Sundays mentioned in the Appellant's affidavits. Mr. Howes, who was the Privy Council Judgments. lo7 officiating Clergyman on four of the Sundays, denies that, 1870. on eitlier of those days, he raised or elevated the Paten uums or Chalice above his head during the Prayer of Con- jjj^o^ono- secration, and adds that he had not consciously, nor to cmis. the best of his knowledge, done so since the practice was j'^J^^enV discontinued by Mr. Machonochie after December 30, 1866. " — -^' ' Mr. Stcmton, who officiated on Sunday, December 26, 1869, swears that he did not intentionally elevate the Paten or Cup above his head in the Prayer of Consecration ; and Mr. Willington, who officiated on two of the Sundays, states positively that he did not elevate the Paten or Cup above his head in the Prayer of Consecration. It is to be observed that these affidavits might, according to a possible view entertained by the reverend gentlemen, be regarded by them as literally true, because the Paten was not elevated by them, but a wafer-bread, and the whole of the Cup was not raised above the head, but only the upper part of it. It appears from the cross-examination of Mr. MachonocMe that, after the institution of proceedings against him, he introduced the practice of elevating the wafer, and not the Paten. As he has confessed that his object on every occasion has been merely to comply literally with the Law, it was not unfair to presume that the change from the Paten to the wafer was made in order that he might not be accused of elevating the Paten. But Mr. MaohmocUe stated to their Lordships (and they accept his statement) that ' he has in no way sheltered himself behind the difference between the wafer and the Paten, but has treated the wafer as the Paten, and considered the elevation of the wafer as equivalent to the elevation of the Paten.' It is sufficient, therefore, to say that if any such distinction had been attempted, it could not have been suc- cessfal, as the elevation which is unlawful is that of the Consecrated Bread itself, and not of the Paten in which it is placed. Again, thei-e can be no doubt that the elevation of any part of the Cup above the head is an elevation to that extent of the Cup itself. This Mr. MachmocUe very properly ad- mitted in his cross-examination. He said, ' The Cup is the 158 Privy Council Judgments. 1870. -wliole Cup : to raise any part of the Cup above the fore- m"7^- iead is to raise the Cup above the forehead.' Now, the conclusion to be drawn from this state of facts is, that Mr. Maekonochie, having determined to yield the merest literal obedience to the precise letter of the Moni- tion, had resolved that neither he nor his Curates should Kesuit of elevate the Paten or the Cup above their heads during the to elevation. Prayer of Consecration ; but, in consequence of keeping the exact degree of elevation intended, the officiating Clergyman unconsciously and unintentionally elevated the wafer and the Cup to the extent mentioned in the affidavits. But if Mr. Maekonochie has been (as he admitted) ' care- fully scanning the Monition and the Order in Council to see how he could keep exactly within them,' and has been acting upon his understanding ' that legal judgments should be interpreted according to their letter,' he has no right to complain if the letter of the Monition is applied against him, and he is made accoujitable for an actual noncom- phance with its terms, whatever his intentions to obey it may have been. The act of elevation to the prohibited degree was witnessed ; the secret intention could not be known. That the elevation charged took place during the Prayer of Consecration appears from the evidence of Mr. Mac- lionocMe, that the raising of the wafer and of the Cup takes place after the words of institution in each kind ; conse- quently, the wafer, at least, must be raised as the Prayer is proceeding. Kneeling or The remaining charge to be considered against Mr, prostration. Maekonochie is, his sanctioning kneeling or prostration be- fore the Consecrated Elements during the Prayer of Conse- cration. Their Lordships (as already mentioned) having upon the former occasion, when Mr. Maekonochie was charged with disobedience to the Monition, decided that the genuflection which he practised amounted to kneeling, Mr. Maekonochie, with the same object he always had in view, to pay only the closest literal obedience to the Moni- tion, gave notice to his Curates that he intended thence- forth to bow without bending the knee at the part of the Prayer of Consecration where he had previously knelt. Privy Council Judgments. 159 This intention he and Ms Curates carried out, according to 1870. the description given in the affidavits, by bowing down ]^^^ towards the Table after replacing the wafer upon it, and jjj^g^g^.u remaining- sqme seconds in that position, and adopt- chie. ing the same course with respect to the Cup. Mr. ^'"'^"i- . . Juagment. Mackonocme stated that on some of these occasions his • . ' forehead may have touched the Table, but that this was no part of the act of bowing, his object being merely a low bow. Their Lordships do not regard a reverential bow in the light of an act of prostration, as contended for by the learned Counsel for the Appellant ; hut the posture assumed and maiatained for some seconds by Mr. Maahonoehie is certainly not a mere bow, but an humble prostration of the body in reverence and adoration. Their Lordships consider that the charge against Mr. MackonocMe of sanctioning the prostration before the Consecrated Elements, is therefore fuUy proved. Their Lordships cannot refrain from expressing their great regret at the course which Mr. MachonooMe has thought himself justified in adopting in his proposed submission to the authority of the Monition. He has (as he admitted in his cross-examination) ' carefally scanned the Monition, and the Order in Council, to see how nearly he could pre- serve the prohibited ceremonies, or,' as he expressed it, ' how far he could obey the Law of the Church ' (or what he chooses to consider the Law of the Church) ' without disobeying the Law of the State.' Mr. MachonocMe must be reminded that the right of the Church of England to ordain ceremonies is asserted by the thirty-fourth of the Articles of Rehgion, to which he has given his assent, and that none of the ceremonies which he ■ practices are prescribed by the Church. In the attempt to satisfy his conscience, and to shelter Resnitof himself under the narrowest literal obedience to lawful '"°*'™- authority, Mr. Maekonochie has been a second time foUed. Upon the former occasion their Lordships, after expressing their opinion judicially that the Monition had been dis- obeyed, did not think it necessary to do more to mark their disapprobation of Mr. MachonocTlie's course of proceeding 160 Privy Council Judgments. 1870. Mariin V. •Mackono- CHIE. Part III. Judgment. than by directing that he should pay the costs of the appli- cation. Upon this repetiton of the offence, their Lordships think that they ought to proceed farther. They, therefore, declare that Mr. Maekonochie has not complied with the Monition in respect of the elevation of the Paten or wafer, nor as to abstaining from prostration before the Conse- crated Elements. And they order that he be suspended for the space of three calendar months from the time of nt)tice of the suspension from all discharge of his clerical duties and ofiBces, and the execution thereof — that is to say, from preaching the Word of God, and administering the Sacraments, and celebrating all other clerical duties and offices — and, further, that he pay the costs of this appli- cation. Order. The following Order, dated November 25, 1870,was drawn up and issued in pursuance of their Lordships' judgment : — ' The Lords . of the Committee, having maturely deli- berated, pronounced that the Reverend Alexander Heriot Maekonochie, Clerk, Incumbent, and Perpetual Curate of the new Parish of Saint Alban's, Holborn, in the County of Middlesex, Diocese of London, and Province of Gant&rbunj, the Respondent, had not obeyed the Monition, which had been duly served upon him, bearing date, January 19, 1869, more especially in not having abstained from the elevation of the Paten during the Prayer of Consecration in the Order of the Administration of the Holy Communion, and from prostrating himself before the Consecrated Elements during the Prayer of Consecration, and their Lordships accordingly ordered that for such his disobedience he, the said Reverend Alexander Heriot Maekonochie, be suspended for the space of three months, from and after this day, from the discharge and execution of all the functions of his clerical ofiBce — that is to say, from preaching the Word of God, and administering the Sacraments, and performing all other duties of such his clerical office-r-and their Lordships directed that a Decree of Suspension be issued, suspending him accordingly, and that the same be published by affixing a copy thereof on or near the door of the Church of the Privy Council Judgments. ' 161 said new Parish of St. AIIom's, on Sunday next, November 1870. 27, 1870, as also by personally serving it upon said Re- Minvm verend Alemamder Meriot MaohonocMe. Tbeir Lordships did further condemn the said Eeverend Alexander Heriot Mackonoehie in the costs incurred by the Appellant in these proceedings. 162 HENRY jam: Y HBBBERT, heretofore CHARLES! , ES ELPHINSTONE . . _| appellant , AND The REV. JOHN PURCHAS, Cleek . Respondent*. On Appeal from the Arches Gowrt of GoMterhwry . Construction of the Notice termed ' The Orna- ments Rubric ' prefixed to ' The Order for Morning and Evening Prayer,' which provides ' That sitch Ornaments of the Church, cmd of the Ministers thereof, at all ti/mes of their mimstration, shall be retained, and he m use, as were im, this Church of JEngland, by the authority of Parliament, in the second year of the reign of King ildma/rd VI. ; and of the Rubric prefixed to ' The Order of Administration of the Lord's Supper, or Holy Communion,' w^hich describes ' the Priest stcmdmg at the north side of the Table,' with that which precedes the ' Prayer of Consecration,' and enjoins ' when the Priest, standimg before the Table, hath so ordered the Bread a/nd 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 well as that appended to the same service regarding the Sacred Elements ; and of the Rubric appended to the service for the Holy Communion — that ' to take away all occasion . of dissension, and superstition, which any person hath or rmghi have concerning the Bread and Wine, it shall suffice that the Bread shall be such as is usual to be eaten; but the best and purest Wheat-Bread that corweniently may be gotten.' * Present : The Lord Chancellor (Hatherley) ; the Archbishop of York (Dr. Thomson) ; the Bishop of London (Dr. Jackson) ; and Lord Chelmsford, Privy CouncilJudgmenis. 16 S Krst, as regards tte vestments of the Minister whilst officiating in the administration of the Holy Communion, or in other ministrations, the ' Orna- ments Rubric,' as explained by the injunctions of Queen Elizabeth, A.D. 1559, and the advertisements of Elizabeth, a.d. 1564, made pursuant to the Act of Uniformity, 1 Eliz., c. 2, and explained by subsequent Visitation Articles, when construed with the Canons of ie03-4,a3id the Act of Uniformity, 13 and 14 Car. II., c. 4, does not permit the use by the Minister while officiating at the Holy Communion of the Chasuble, the ATb, or the Tv/nicle, but allows of the Gope being worn in ministering the Holy Communion on high feast days, in cathedrals, and collegiate churches, and requires the use of the Surplice in all other ministra- tions. The.use of the Ghas-uhle, Alb, and Tv/nicle by the celebrant, while officiating in the Communion Service, is illegal. Second, the Rubrics regairding the position of the Minister during the Communion Service designate the north side of the Communion Table as the proper place for the Minister throughout tlie Communion Service, and also whilst reading the Prayer of Conse'- cration ; his proper position, therefore, is on the north side, or the north end, of the Table, if it is placed east or west facing the south, and not at that part of the west side of the Table which is nearest the north ; the object being, that the people shall see him break the Bread, and take the Cup into his hands, which they cannot do if he stand with his back to the people, and between the people and the Holy Table. Third, the Rubric regarding the Elements requires that the Bread to be used at the Holy Communion be pure wheaten bread, as is directed by the Canons of X503— i, and not wafer-bread, which is illegal ; and does not allow the administering of Wine miied with water, instead of Wine only, to the com m unicants at the Lord's Supper; whether the water be mingled with Wine before or during the Communion Service. The use of a BiretiM, or cap, as a vestment in the service of the Church is illegal. The provisions of the Canons of 1603-4, and Prayer Book, must be read together, as far as possible, and the .Canons 17, 25, and 58, upon the vestments of the Ministers, are an exposition, and limitation of the m2 164 Privy Council Judgments. Not. 16-19, 21, 1870. HiSBBERT V, PURCHAH. Statement. Judgment i Court of Arches. ' Ornaments Rubric' Such ornaments are to be limited, as to the vestments, by the special provision of the Canons themselves, which were not repealed by the Act of Uniformity, 13 and 14 Car. II., c. 4. The cases of Liddell v. Westerton and Ma/rtin v. Maehonoehde considered*and confirmed. This Appeal was brought from a sentence of the Arches Court of Gcmterhury in a cause of the office of the Judge, originally promoted by OKarles James EVphmstone against the Respondent, the Rev. John Pttrchas, a Clerk in holy orders of the United Church of Englcmd and Irelcmd, the Perpetual Curate of the church, or chapel, of St. James, at Brighton, in the county of Sussex. After the institution of the appeal JEl/phmstone died, and the Appellant Hebbert was substituted as Promoter in his place. The cause was promoted in the Arches Court by virtue of Letters of Request by the late Lord Bishop of Chichester, in accordance with the provisions of the Church Discipline Act, 3 and 4 Vic, c. 86. No appearance was given to the citation by Pv/rohas, and the proceedings were carried on in default. By the Articles admitted in the cause, Pwchas was charged with having offended against the Laws Ecclesias- tical by using and sanctioning the use of certain rites, cere- monies, acts, and observances in connection with the per- formance of Divine Service of his church. On February 3, 1870, the Judge of the Arches Court (Sic Mohert PhilUmore), by an Interlocutory Decree, pronounced that Purehas had offended against the Statute Law, and the Constitutions, and Canons Ecclesiastical of the realm, in having, during Divine Service in his church, used and worn, and authorised to be used and worn, certain vest- ments ; and observed, and authorised to be observed, rites and ceremonies ; and read, and authorised to be read, prayers ; and done, and authorised to be done, other acta not prescribed by the Rubrics or Formularies of the United Church of Unglcmd and Irelcmd ; and admonished him to abstain from the use of, or sanctioning the use of, Privy Council Judgments. 165 the rites, ceremonies, acts, or things in which he had so 1870. ojEfended, and decreed a Monition to issue accordingly, and hkeeeiit further cDudemned him in the costs, excepting the costs „ ''• ' ^ a PURCIIAS. or such Articles as had not been sufficiently proved. statement. The present Appeal was from this Decree, so far and ' ' ' inasmuch as the Judge omitted or declined to pronounce from." - that Pwchas had oifended against the Statute Law, and the Constitutions, and Canons Ecclesiastical, first, by ad- ministering wine mixed with water to the communicants at the Lord's Supper, as pleaded in the sixteenth Article ; second, by standing with his back to the people, between the people and the Holy Table, whilst reading the Prayer of Consecra- tion in the Service of the Holy Communion in such wise as pleaded in the seventeenth Article ; third, by the use of wafer-bread, instead of bread such as is usual to be eaten, in the administration of the Holy Communion, as pleaded in the twentieth Article ; fourth, by causing holy water, or water previously blessed or consecrated, to be poured into divers receptacles for the same in the said church, in order that the same might be used by persons of the con- gregation, or by causing and permitting the same to be used by others, as pleaded in the twenty-fifth Article ; fifth, by himself wearing, and sanctioning, and authorising the wearing by other officiating Ministers, whilst officiating in the Comtnunion Service, and in the administration of the Holy Communion in the church, a vestment called a Ghasuble, as pleaded in the thirty-sixth Article ; Sixth, by himself wearing, and causing or suffering to be worn by other officiating clergy, when officiating in the Commu- nion Service in the church, a certain vestment called an Alb, instead of a Surplice ; seventh, by causing or sufifering to be worn by the officiating clergy, when officiating in the Communion Service in the said church, certain other vest- ments called Tunics, or Tunicles ; eighth, by himself wear- ing, carrying, or causing or suffering other officiating clergy in the said church to wear, or bear in their hand, a certain cap, called a Biiretta, during Divine Service, as pleaded in the thirty-eighth Article ; and had also omitted or declined to admonish him against offending in future in 166 1870. Peb. 23, 1871. Judgment. Chare:es againsc Bespondent. Privy Council Judgments. the said matters conaplained of; and also omitted or de- clined to condemn him in the costs incurred by BVphinstone in respect of such matters. As the Respondent did not appear, the Appeal was heard expwrte. ^ Mr. A. J. Stephens, Q.C., and Dr. Tristram (with them Mr. T. B. Archibald and Mr. B. Shaw) for the Appellant.* After argument the consideration of their Lordships' judgment was reserved. Judgment was now delivered by The LoED Chancelloe (Lord Hatherley) : — In this case, which comes to us from the Arches Court of Canterbury, the learned Judge of that Court has directed a Monition to issue to the Reverend John Purchas, as to several matters and things complained of by the Pro- moter, and has condemned him. in costs ; and the Defendant has not appealed. But as to certain Charges contained in the sixteenth, seventeenth, twentieth, twenty-fifth, thirty-sixth, and thirty-eighth Articles of Charge, the learned Judge has refused or omitted to direct a Monition to issue against the Defendant, and to condemn him in the costs of these Articles ; and against the deci- sion upon these Articles the Promoter has appealed. The substitution of Hebiert as Promoter, for the purpose of this Appeal, for EVphinstone, the Promoter in the Court below, since deceased, has been allowed by a former judg- ment of this Committee.! The Rev. John Purchas, the Respondent, has not ap- peared, and the Committee has not had the assistance of the argument of Counsel on his behalf. The Charges which are the subject of this Appeal are that the Respondent has offended against the Statute Law, and the Constitutions, and Canons Ecclesiastical, by admi- nistering wine mixed with water, instead of wine, to the communicants, as pleaded in the sixteenth Article ; and * It is deemed unnecessary to give an outline of the very elaborate argument of Counsel, as the several points are fully dealt with in the udgment. t Law Eeports, P.O., vol. iii., p. 245. Privy Council Judgments. 1 67 by standing witli his back to the people, between the people 1871. and the Holy Table, whilst reading the Prayer of Consecration hebbebt in the Holy Communion, as pleaded in the seventeenth ppjjuHAs Article ; and by the use of wafer-bread, instead of bread judgment. such as is usual to be eaten, in the administration ©f the ' ' Holy Communion, as pleaded in the twentieth Article ; and by c&using holy water, or water previously blessed or consecrated, to be poured into divers receptacles for the same in the said Church, in order that the same might be used by peisons in the congregation, or by causing or permit- ting the sane to be used by others, as pleaded in the twenty- < fifth Article; and by himself wearing, and sanctioning, and authorising the wearing by other officiating Ministers, whilst officiating in the Communion Service, and in the administratioi of the Holy Communion in the said Church, a vestment ciUed a Ghasuhle, as pleaded in the thirty- sixth Article ; and by himself wearing, and causing or sufier- ing to be won by other officiating clergy, when officiating in the Commuiion Service in the said Church, certain other vestments calld. Dahnaties, Twnics, or Twnicles, and JZ6s, and . by himself wesring, carrying, or causing or sufiering other officiating Cleigy in the same Church to wear or bear in their hand a certain cap, called a Biretta, during Divine Service, as plesded in the thirty-eighth Article. We find it ctnvenient to adopt the order followed by Krstasto . « Testmenta. the learned Dian of the Arches, and to. examme first the charge of vearing, and causing to be worn, a Chasuble, Tunics, or Tuiioles, and Albs in the celebration of the Holy Communim. It is necesssry to review shortly the history of the History of Rubric usually known as the ' Ornaments Rubric,' which Rubric, governs this qmstion. The First Payer Book of King Bdnvard, VI. (1549), ^^^rprayer contains the fdlowing Rubric at the beginning of the '^°°^- Communion Oflce : — ' Upon the diy, and at the time appointed for the mi- nistration of tie Holy Communion, the Priest that shall execute the Hoy Ministry shall put upon him the vesture apppointed for that ministration — that is to saj, a white 168 Privy Council Judgments. 1871. Pdrchas. Edward's Second Prayer Book. Elizabeth's Prayer Book, And Act of Uniformity. Alhe plain, ■With a Vestment or Cope. And where there may be many Priests or Deacons, there so many shall be readj/to help the Priest in the ministration as shall be requisite ; and shall have upon them likewise the vestures appwnted for their ministry — ^that is to say, Allies with Twrdol^.' In the Second Prayer Book of Edward YI. (1552), this was altered, and it was ordered that the Minister ' shall use neither Alb, Vestment, nor Oope ; but beii/g Arch- bishop or Bishop, he shall have and wear a Rcchet, and being a Priest or Deacon, he shall have and w/ar a Sur- phce only.' The Prayer Book oi Elizabeth (1559), provide! that ' the the Minister at the time of the Communion/ and at all other times of his ministration, shall use sue! ornaments in the church as were in use by authority o/ Parliament in the second year of the reign of King Edward VI.,, according to the Act of Parliament set in me beginning of this Book.' This Committee has already decided, inl Westertcm v, Liddell, that the words ' by authority of Parliament in the second year of the reign of King Edward JVI., refer to the First Prayer Book of King Edwa/rd VI.' i The Act of Parliament set in the beginning of Elizabeth's Book is Queen Elizabeth's Act of UniformityQ Eliz., c. 2), and the twenty-fifth clause of that Act conains a proviso, ' that such ornaments of the Church and the M nisters thereof shall be retained and be in use, as were in this Church of Englamd by authority of Parliament in the second year of the reign of King Edwa/rd VI., and until oher order shall be therein taken by the authority of the Q een's Majesty, with the advice of the Commissioners app inted and au- thorised under the Great Seal of England fo causes Eccle- siastical, or of the MetropoUtan of this realn ' The Prayer Book, therefore, refers to the Act, and the Act clearly contemplated further directions o be given by the Queen, with the advice of Commissio: ers or of the Metropolitan. It was not, apparently, tho ght desirable to efiect an immediate outward change if ceremonies, although the adoption of the Second Prayer iDok oiEdwavd Privy Council Judgments. 169 VI., in lien of the first, had effected a great change in 1871. the very substance of the Communion Service, -with which the theory of the peauliar vestments (the Alhe and Chasuble) was closely connected. The Rubric and the proviso together seem to restore for the present the ornaments of the Minister which the second Prayer Book of Kjng Edward had taken away. But Sandys, afterwards Archbishop of York, who assisted at the revision of the Prayer Book, gives to Archbishop Parker a different suggestion. 'Our gloss upon this text,' he says, 'is, that we shall not be forced to use them (the ornaments), but that others in the meantime shall not convey them away, but that they shall remain for the Queen.' (^itrmei's Reforma- Followed by tion, vol. ii., Records, p. 332.) The injunctions of Eliza- of 1559? ""^ beth appeared in the same year, 1569 ; and the forty-seventh orders ' that the churchwardens of every parish shall deliver unto the visitors the inventories of vestments, copes, and other ornaments, plate, books, and especially of grails, couchers, legends, processionals, hymnals, manuals, portasses, and such like appertaining to the Church' {Card- well, Doc. Ann., i., p. 196 [Ed. 1839] ). The Commissioners began to carry out these injunctions in the same year. One of their returns is in the Record Office (Calendar of State Papers, Domestic, 1547-1580, p. 148), which shows that they chiefly occupied themselves in taking inventories of Church ornaments, and of the service Books in use. In the year 1564 appeared the advertisements of Eliza- Ana by ari- beth. They make order for the vesture of the Minister in of 1664. these words : — In the ministration of the Holy Communion in cathedrals and collegiate churches, the principal Minis- ter shall wear a Cope, vrith Gospeler and Epistoler agree- ably, and at all other prayers to be said at the Commu- nion Table to use no Copes, but Surplices.' ' That every Minister saying any public prayers or minis- tering the Sacraments or other rites of the Church, shall wear a comely Surplice with sleeves, to be provided at the charge of the parish.' (Oa/rdwell, Doc. Ann., i., p. 326.) These advertisements were very actively enforced within 170 Privy Council Judgments. 1871. Hebbeet Visitafciou Articles. Attitude of Puritan party. a few years of their publication. An inventory of the ornaments of 160 parishes in the Diocese otLmcoln, 1565- 1566, has heen published by Mr. EdAvard Peacock ; and it shows that the Chasubles, or Vestments, and the Albs, were systematically defaced, destroyed, or put to other uses, and a precise account was rendered of the mode of their de- struction. Proceedings took place under Commissions in Lamcashi/re in 1565 and 1570 ; in Ca/rlisle in 1673, and following years, when ' vestments seem to have disappeared altogether.' (Rev. J. Baine, on ' Vestments.' London, 1866.) There is no reason to doubt that all through the country commissions were issued to eiiforce the observ- ance of the advertisements, within a few years after they were drawn up. The Visitation Articles of the Archbishops and Bishops about this time, show that the operation of the advertisements had been rapid and complete. Arch- bishop Grindal, in 1571, enquires ' whether all vestments, albs, tunicles, stoles, phanons, pixes, paxes, hand-bells, sacring-bells, censers, crismatories, crosses, candlesticks, holy water, stocks, images, and such other reliques and monuments of superstition and idolatrie be utterly defaced, broken, and destroyed ' (Rit. Com., 2nd Rep., App., p. 408) ; Archbishop ParTcer, in 1575, asks ' in the time of celebration of Divine Service whether they wear Surplices.' (Rit. Com., 2nd Rep., App., p. 416) ; Aylmer, Bishop of London, uses the same form of question as Archbishop Ormdal (ibid., p. 418) ; Sandys, Archbishop of Yorjc, enquired, in 1578, ' whether your Parson, Vicar, or Curate at all times, in saying the Common Prayer on "Sundays and holidays, and in administering of the Sacrament, doth use and retain, the Surplice, yea or nay.' (Jhid., p. 422.) Upon the whole there is abundant evidence that within a few years after the advertisements were issued the vest- ments used in the Mass entirely disappeared. It is true that for some years after the appearance of the advertisements, great reluctance was exhibited by the Puritan party to the use of the Surplice, and in the Strugs gle against the use, they sometimes asserted that, if the Surplice were insisted upon, then, by virtue of the Rubric Privy Council Judgments. 171 and Act of Parliament, the other vestments mentioned 1871. in the First Prayer Book of Edward VI. should also be HKBBEnT used. «. Pttrcit a fl In a somewhat rare tract printed in the reign of James judgment. I., 1605, and addressed to the Bishop of Waroesteir, defend- ""'"'^ ' ing ' the not exact use of the authorised Book of Common a Tract Prayer,' the writer (p. 34) argues that no such order was ^^^''^^' made by the Queen as was directed by the Act of Par- liament ; yet even he admits that the Metropolitan, ' on the Queen's Mandative Letters that some order might be taken, had conference and communication, and at the last, by assent and consent of the Ecclesiastical Commissioners, did think such orders as were specified in the advertise- ments meet and' convenient to be used and followed ' (p. • 36) ; but he asserts that they were of no value, since the Queen's assent was not yielded. This last proposition can hardly be maintained ; for if the Queen's Mandative Letter preceded the compilation of the advertisements, and if, as it appears abundantly, they were afterwards enforced by her authority, her assent must be presumed. It appears probable that the Queen hesi- tated before the advertisements were thus enforced ; as to which see a remarkable letter from the Archbishop to Oecil, on March 28, 1566, cited by Mr. Perry in his book on 'Lawful Church Ornaments' (p. 209), from the Farker Correspondence, on which Mr. Ferry remarks, ' It would seem that the Archbishop's application had at length some success, for immediately afterwards he sent his letter to the Bishop of London for confonnity,' and in the letter to the Bishop he requests him ' to transmit the book of advertisements to the other Suffragans of the province.' But, as has been said, the contemporaneous evidence Contempo- as to the abolition of all vestments obnoxious to the evidence. Puritan party (other than the Surplice, hood, and tippet, and the square cap) is abundant. In a scarce book, called ' A Part of a Register,' in which '-^^^^f '^ is a considerable number of documents collected by those 'who objected to Church Ritual, the complaint is imiformly 172 1871. Hebbekt ' A View of Antichrist,' etc. Privy Council Judgments. against Copes and Surplices. Thus, in a letter by A. G , 1570, p. 13, he complains of ' crossing, coping, and sur- plessing.' A report of the examination of Smith, Nia-on, and others before the Lord Mayor, the Bishop of London, and other Commissioners, 1667, p. 28, describes HawMns, one of the accused, as saying, ' Surplesses and copes be superstitious and idolatrous.' Irtla/nd, another of them, (p. 32) says to the Bishop, ' But you go like one of the Mass Priests still ; ' to which the Bishop replies, ' Tou see me wear a Cope or a Surpless at St. Paul's. I had rather minister without these things, but for order's sake and for obedience to the Prince.' In another of these documents, called ' A View of Anti- christ, his Laws and Ceremonies,' there is a carefal enumer- ation of ornaments complained of as Popish, not mention- ing Alb, nor Chasuble ; but (p. 63) there is mention of the ' Cap, the Tippet, the Surplice for small churches, the Cope for great churches, furred hoods in summer for the great Doctors, silken hoods in their quiers upon a Surplesse, and the grey Amise with the catte's tails.' This mention of the Amise is the only notice in the many tracts collected in the register of any specific vestment, other than the Surplice and Cope being worn. But in the same book is con- tained ' A Letter by Master Bohert Johnson to Master Udwin Sandys (1673),' in which, at p. 104, he says, 'Tou must yield some reason why the tippet is commended, and the stole ' forbidden : why the vestment is put away, and the cope retained ; why the alb is laid aside, and the sur- plice is used ; or why the chalice is forbidden in the Bishop of Canterhwry's Articles, or the grey amice, by the Canon more than the rest, why have they offended, etc' jEdward Bering (1693), in another tract in the same book, speaks of the grey amice having been specially forbidden in the 'Book of the Discipline of the Church of England.' He goes on to say that other vestments, equally superstitious, are used ; and in a passage immediately before this he asks, ' how he can subscribe to the ceremonies in cathedral churches, where they have the Priest, Dean, and Sub-Dean in copes and vestments all as before ;' but that be is Privy Council Judgments. 173 alluding in this to the Cope and Surplice is plain, both 1871. from the before cited statement of the Bishop of London hebbeet to SawMns, and from the question in Jolvnscm's tract, _ uc'has ' why the Vestment is put away, and the Cope retained, the judgment. Alb laid aside, and the Surplice in use ; ' and the enumer- ' ' ' ation of Popish ornaments in ' The View of Antichrist.' Now all the Tracts above cited are dated within ten years after the date of the advertisements, and the complaints so bitterly made as to the Cope and Surplice would certainly have been extended to the Alb and Chasuble, had they not then ceased to exist. In the correspondence with foreign reformers, called the ' Zurich Letters,' the controversy is treated as having been confined to the Cope and Surplice. At the Hampton Court Conference the Puritans objected to the Surplice, as ' a kind of garment which the Priests of Isis used to wear.' {Gam-dwell, Conferences, p. 200.) There was evidently no other vestment in use to which they could object. The revised Prayer Book, issued soon Prayer Book after, retained the Ornaments Rubric in the same form as in the Prayer^Book of Queen JElizabeih. The Canons Canons of -of 1603-4, enacted by both Convocations, and ratified by the King's consent, sanctioned the use of this Prayer Book. But whilst thus implicitly sanctioning the Ornaments Rubric, the Canons also provide specially for the vesture of the Minister. Canon 24 directs the use of a ' decent cope ' lor the principal Minister in the Holy Communion in cathe- drals and collegiate churches, ' according to the advertise- ments published Armo 7 Elizabeth ; and Canon 58 directs 'that every Minister saying the public prayers, or minister- ,ing the Sacraments, or other rites of the Church, shall use a . decent and comely surplice with sleeves, to be provided at the charge of the parish.' Their Lordships think it needless to adduce authorities to show that there was no attempt to revive or use ihe 'Chasuile, Alb, or Tvmiole between the years 1604 and 1662. The Ornaments Rubric of 1662 is as follows: — ^ And omamems here is io be noted that such ornaments of the Chweh, cmd lee^" " 174 Privy Council Judgments. 1871. Hebbert V. PUBOHAS. Judgment. of the Ministers thereof, at all times of their ministration, shall be retained, and he in use, as were in this Church of England, by the authority of Parlia/memt, im, the second year of the reign of King Hdwa/rd VI.' The form of this Rubric is different from that of the^^jreceding Prayer Book, and follows, for the most part, the wording of the proviso of the Act of Queen Elizabeth. The learned Judge in the Court below assumes that the Puritan party at the Savoy Conference objected to this Epubric, whereas it was the Rubric of James that they were discussing. Upon tbat, the Puritans observed that, ' Inas- much as this Rubric seemeth to bring back the cope, alb, and otber vestments forbidden by the Common Prayer Book, 5 and 6 Edw. VI., and so for reasons alleged against ceremonies under our eighteenth general exception, we deem it may be wholly left out.' The Rubric had been in force for nearly sLsty years, and they do not allege that the vestments had been brought back ; nor would a total omission of the Rubric have been a protection against them. The Bishops in their answer show that they under- stand the Surplice to be in question, and not the vestments. (Oardwell, Conferences, pp. 314, 345, 351.) But the learned Judge through this oversight, has overlooked the most im- portant part of the proceedings. The Bishops determined that the Rubric ' should continue as it is.' But after this they did, in fact, recast it entirely. It must not be assumed that alterations made under such circumstances were made without thought, and are of no importance. The Rubric had directed the Minister to ' use at the time of the Com- munion, and at aU other times of his ministrations,' the ornaments in question. The statute of Elizabeth did not direct such use, nor refer to any special times of ministra- tion, but it ordered simply the retaining of the ornaments till further order made by the Queen. The Bishops threw aside the form of the old Rubric, and adopted that of the statute of Elizabeth, but added the words ' at all times of their ministration ' without the words which had in all former Rubrics distinguished the Holy Communion from other ministrations ; a mode of expression more suitable Privy Council Judgments. VI h to a state of things wherein the vestments for all ministra- 1871. tions had become the same. The change also brought in hebbeIit the word ' retained,' which, it has been argued, would not ^ "• include things already obsolete. Whatever be the force of judgment. these two arguments, the fact is clear that the Puritans ' ' objected to a Rubric differing from this ; and that after their objections the Rubric was recast, and brought into its present form. With regard to the suggestion attributed to the House of Lords * whether the Rubric should not be mended where all vestments in time of Divine Service are not commanded which were used by Hdward VI.' {Gard/well, Conferences, p. 274), the learned Judge has overlooked the fact that this applies to the earlier Rubric ; and the suggestion did not emanate from the House of Lords, nor was it ever adopted by that body. And the learned Judge omits to observe, that the Rubric of Jarnies, which was objected to, was amended after the suggestion. From the passing of the Act of Uniformity there is subsequent abundant evidence to show that the vestments in question unaormity were not used at all. Their Lordships may refer to the ^Intfwere various Visitation Articles published in the Second Report ■">* ^^sea. of the Ritual Commission and elsewhere, as showing that the Surplice alone was to be used, and that deviations from that rule were on the side of defect, and not in the direction of returning to the vestments of the Mass. Some of these Articles were pubKshed by Bishop Gosim, and others, who took part in the revision of the Prayer Book. In the Sixth Article Bishop Godn enquires, ' Have you a large and decent surplice (one or more) for the Minister to wear at all times of his public ministration in the church? ' (Rit. Com., 2nd Report, App., p. 601.) The repetition of the words ' at all times ' of his ministration, the exact words of the Rubric, is very significant as a contemporaneous ex- position of it by one of its framers. These, then, are the leading historical facts with which Sommary of we have to deal in the difScult task of construing the tim to"onla'. Rubric of Ornaments. The Vestment, or Cope, Alb, and Rubric Tunicle were ordered by the First Prayer Book of Edwa/rd 176 Privy Council Judgments. 1871. PUKOHAS. Judgment. Thfi adver- tisements of Elizabeth are of legal oblisration. VI. They -were abolished by the Prayer Book of 1552, and the Surplice was substituted. They were provisionally restored by the statute of Elizabeth, and by her Prayer Book of 1659. But the injunctions and the advertisements of Elizabeth established a new order within a few years from the passing of the statute, under which GhasvMe, Alb, and Tvmele disappeared. The Canons of 1063-4, adopting anew the reference to the Rubric of Mdmia/rd, VI., sanc- tioned in express terms all that the advertisements had done in the matter of the vestments, and ordered thp Svir- IpUoe only to be used in parish churches. The revisers of our present Prayer Book in 1662, under another form of words, repeated the reference to the second year of Ednva/rd VI., and they did so advisedly, after attention had been called to a possibility of a return to the vestments. The authority of the advertisements has been questioned on the ground that it has never been shown that they re- ceived the assent of the Queen. Supposing, -for the sake of argument, that the advertisements did not receive the official assent of the Queen, but were acted upon under a number of Royal Commissions, and with the approval of the Metropolitan, their Lordships think that this was a ' taking other order' within the meaning of the statute (1 Eliz., c. 2, s. 25). There is no doubt that the advertisements were carried into effect as legally binding, and were enforced by Royal Commissions. There is no doubt that they were accepted, in some cases by reluctant people, as of legal obligation ; and their authority is expressly recognised by the Twenty-fourth Canon of 1603—4. In the case of Macdougall v. Pwrrier (4 Bli. H. L. Cases, 433), the House of Lords presumed the enrolment in Chancery of a Decree of Commissioners appointed by an Act of Henry VIII., for settling the tithes in London, although no such enrolment could be found, on the prin- ciple that where instruments have been long acted upon, and acquiesced in by parties 'interested in opposing their effect, all formalities shall be presumed to have been observed. No special form of consulting the Metropolitan is prp- scribed to the Queen. Privy Council Judgments. 1 77 Their Lordships are now called on to determine the force 1871. of the Riibrio of 1662, and its effects upon other regula- HmranT tions, such as the Canons of 1603-4. They do not disguise p ^^^^ from themselves that the task is diflacult. Judgment.' The learned Judge in the Court below has said, that ""■■ ^ ' the plain words of the statute, according to the ordinary of Bubriort principles of interpretation,- and the construction which ^^^^ they have received in two judgments of the Privy Council, oblige me to pronounce that the ornaments of the Minister, mentioned in the First Prayer Book of lldwa/rd VI., are by the Dean those to which the present Rubric referred.' (Law Rep., Aiohcs; 3rd Ad. and Eco,, pr 94.) ' They are, for Ministers below the order of Bishops, and when officiating at the Communion Service, Cope, Vestment or G^wsuble, Swrplioe, Alb, and Ttmdcle; in all other services the Surplice only, except that in cathedral churches and colleges the academical hood may also be worn.' He considers that the obiect of the adver- °' *3!^ ^- , _ -J vertiaements: tisements of Elizabeth ' was to receive as great an amount of decent Ritual as the cirpumstance of the time would permit.' ' As to the Visitation Articles,' from the time of the yidtation statute of OJuwles II., the learned Judge observes, 'the Arttotes, 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.' (Law Rep., 3 Ad. and Eccl., p. 94.) Remarking upon the question, whether the con- sent of the King to the Canons of 1603-4 could be held to be an execution to the powers given to the Queen by the statute of Mizabeth, the learned Judge, after some comments which their Lordships do not feel called on to examine, says ' a subsequent statute, which expressly re- vived a prior statute inconsistent with the advertisements of Mizabeth would, by necessary implication, repeal them.' (Ibid., p. 87.) The Committee is unable to accept this interpretation of Refected by the Advertisements and the Visitation Articles as the true mittee, one. Their Lordships think that the defacing and destroy- 178 . Privy, Council Judgments, 18,71. Hbbbkrt V. PURCHAS. Judgment. A minimum and maxi- mum of Kitual ncon« pistent with the Rubric considered as a positive order. ing, and converting to profane and other nses, of all the vestments now in question, as described in the Linaoln MS. published by Mr. Peaeoch, show a determination to remove utterly these ornaments, and not to leave them to be used hereafter, when higher Ritual might become possible. They think that the "enquiries of Somdys and Ayhner already quoted, show that the Stirplice was not to be the least or lowest, but the only vestment of the parochial Clergy. They think that the Articles of Visitation (cited, Bit, Com., 2 Hep., App.) issued at and after the passing of the Act of Uniformity, which ask after the 'fair surplice for the Minister to wear at all times of his ministration,' without any suggestion of any other vestment, could scarcely have been put fqrth by Bishops- desirous of a more elaborate Ritual, and aware that the vestments were now of statut- able obligation. They think that in prescribing the Sur- plice only, the Advertisements meant what they said, the Surplice only ; and that strong steps were taken to ensure that only the Surplice should be used. Their Lordships remark further that the doctrine of a minimum of Ritual represented by the Surplice, with a maximum represented by a return to the mediaeval vest- ments, is inconsistent with the fact that the Rubric is a positive order, under a penal statute, accepted by each Clergyman in a remarkably strong expresslion of ' assent and consent,' and capable of being enforced with severe penalties. It is not to be assumed, without proof, that such a statute was framed so as to leave a choice between contrary interpretations, in a question that had ever been regarded as momentous, and had stirred, as the learned Judge remarks, some of the strongest passions of man. Historically all the communications between Archbishop Tarlcer and the Queen, and her Government, indicate a strong desire for uniformity, and the Articles of Visitation after 1662 were all framed with the like object. If the Minister is ordered to wear a Surplice at all times of his ministration, he cannot wear an Alb and Tumcle when Msisting at the Holy Communion ; if he is to celebrate the Privy CouncilJudg merits. 179 Holy Communion in a Chasuble, he cannot celebrate in a 1871. HSBBEUT Surplice. In order to decide the question before the Committee, it _ seems desirable first to examine the efiect of the Church judgment. legislation of 1603-4. The 14th Canon orders the use of • . ' the Prayer Book without omission or innovation ; and the legislation o£ 80th Canon directs that copies of the Prayer Book are to ^^^^' ' be provided, in its latest revised form, and, by implication, . the Ornaments Rubric is thus made binding on the Clergy. Canon 24 directs the use of the Cope in cathedral and col- legiate churches upon principal Feast Days, ' according to the advertisements for this end, amw 7 JEUzabeth.' Canon 58 says. that 'every Minister saying the public prayers, or mioistering the Sacraments or other rites of the Church, shall -wenr a decent or comely surplice with sleeves, to be * provided at the charge of the parish.' There is no doubt that the intention here was not to set up a contradictory rule, by prescribing vestments iu the Prayer Book, and a 8v/rplice in the Canons, which give authority to the Prayer The Canons Book. It could not be intended, in recognising the legal prayerSook force of the advertisements, to bring back the things which ™J ^ the advertisements had taken away, nor could it be ex- t°getiier. pected that either Minister or people should provide vest- ments in lieu of those which had been destroyed, and accordingly no direction is given with regard to them. The provisions of the Canons and Prayer Book must be read together, as far as possible, and the Canons upon the vesture of the Ministers must be held to be an expo- sition and limitation of the Rubric of Ornaments. Such ornaments are to be used, as were in use in the second year of Edward VI., limited as to the vestments, by the special provisions of the Canons themselves ; and the con- temporaneous exposition of universal practice shows that this was regarded as the meaning of the Canons. There does not appear to have been any return to the vestments in any quarter whatever. The Act of 1662 sanctioned a Prayer Book with a different Se'o^M™' Rubric, but it referred back to the second year of King ^/^^f^^a^" k2 180 1871. PUBCHAS. Judgment, ■ -■ Kret Book revived by the Book of 1662? Three opinions. Fii-st the Act cl 1662 re- pealed all legislation made after 1549. Besnlt of this view. The Act of V nif ormity of Chas. n. is not a re- pealing Actf Privy Council Judgments. Edward VI., and in some sense or other revived tbe Rubric of King Edn/iard's First Book ; the question is, in what sense, and in what degree. There seem to be three opinions on this point. - One, that the Act of 166^ repealed all legislation on the subject of the ornaments of the Minister ; the second, that the Act and the Canons set up two distinct standards of B/itual on this subject ; and the third, that the Act of 1662 is to be read with the Canons of 1603 still in force, and har- monised with them. I. The first is that expressed by Dr. Lushmgton, in the case of Westerton v. Idddell, that in reviving the Rubric of 1549 the Act of 1662 excluded and repealed all provisions whatever of Act of Parliament or Canon which had been made after 1-549 and prior to 1662. This view was adopted by Sir Johm, Dodson in the same case, when it reached the Arches Court. The consequence of this must be, that every celebration of the Holy Communion in a Surplice only, from 1662 to the present day, would be a violation of the statute. The Canons of 1603-4 being repealed as to this matter, to- gether with the advertisements on which the Canons were built, there would be no legal warrant for using the Surplice and omitting to use the vestments at the Holy Communion. Tet there is no doubt of the practice. For one hundred and eighty years the Vestment was never worn. And thus there would be the unusual occurrence of a statute repeal- ing former legislation, and fortified with heavy penalties, which was systematically broken, not only by one and all of those who had declared their unfeigned assent and con- sent to all and everything contained in the Book of Com- mon Prayer, but by the framers of the Rubric themselves immediately after the confirmation of it by Act of Parlia- ment. Nor is there during that time one single instance of calling to account or censuring anyone for his particular share in an universal violation of the law. It appears pliiin to their Lordships from these facts that the idea of the re- pealing power of this Rubric is a modem one. But the 24th clause of the Act of Umformity (13 9,nd 14 Car. II., c. 4) shows, that it was not the intention of the Privy Council Judgments. 181 passers of the A.ct to repeal past laws. It provides that ' the 1871. several good Laws and Statutes of this realm, which are now hebbrrt in force, for the uniformity of prayer and the administration of pob^ohas the Sacraments . . . shall stand in full force and strength, judgment, to all intents and purposes whatever, for the establishing and confirming the said Book.' The laws were to remain ; but they were to bear on the new Book of Common Prayer, and not upon any former one. Now, the Prayer Book up to that time in use — the book which was the subject of the Hcmipton Gcmrt Conference — rested upon the Canons of 1603-4 ; and it is hard to suppose that the most obvious ' laws,' of all those in force up to that moment, were ex- cluded from the saving power of the 24ith clause. Their Lordships think that the Canons relating to the vestmmis of the Ministers were not repealed by the Act of Umformity, and that the Canons had the same force after the passing of that Act which they had before. The contemporary exposition on this point is very strong. Bishop Ssmc/iman, and tus view of Salishwry, in 1662, in inquiring whether his churches ty'S^-'^ are provided with the Prayer Book 'newly established,' g"™^"^" enquires for the 'comely, large, and fine surplice,' and for no other vestment. The same enquiry for the ' comely large surplice for the Minister to wear at all times of his ministrations,' is found in a great number of Visitation Articles, republished by the Ritual Commission (2nd Rep., App., pp. 606, 614, and following), extending from 1662 to the end of the century. Bishop Fuller, of Lincoln, a.d. 1671, Bishop Chmnmg, of Ely, a.d. 1679, and Bishop Trim- nell, of Uonvich, a.d. 1716, refer to the 58th Canon as unre- pealed, in the margin of their Visitation Articles upon the Surplice. Their Lordships are of opinion that the Canon was not repealed, and that the ecclesiastical authorities had no suspicion that it had been. II. The next opinion is, that the Canons and the Act of second, the Uniformity being irreconcilable, set up distinct standards of canoM%t Ritual, the one of a more elaborate, the other of a severer 8tMdai-df of type ; the one a maximum, the other a minimum ; the one ™*JJ^''j represented by the Rubric, the other by the 58th Canon, an untenable To this view the learned Judge in the Court below appears 182 Privy Council Judgments. 1871. Hebbebt PtmCHAS, Judgment. Third, that the Act of 1662. is to be read with 'ihe Canons cJ 1603, ' to incline. Their Lordships, notwithstanding this autho- rity, are obliged to come to the couclusion that this view is at variance with all the facts of the case. They have already observed that the Ghasuhle, Alb, and Tmniale were swept away with severe exactness in the time of Queen MUzabeth, and that there was no trace of any attempt to revive them. The Act of Zfniformiiy reflects by the strictness of its provi- sions the temper of the framers. The fate of a ' proviso as to the dispensation with deprivation, for not using the cross and surplice,' which was sent down from the House of Lords to the House of Commons, illustrates this. The Commons rejected the proviso (Commons' Journals, viii., 413), and in the subsequent conference between the two Houses the Manager, Serjeant Oha/rlton, gave, amongst other reasons for rejecting the proviso, ' that it would un- avoidably establish schism .... that he thought it better to impose no ceremonies than to dispense with any ; and he thought it very incongruous at the same time when you are settling uniformity to establish schism.' (Lords' Jour- nals, "vol. xi., p. 449.) And the House of Lords agreed that this proviso should be struck out. (Lords' Journals, vol. xi., p." 450.) It cannot be supposed that an Act which applied the principle of uniformity' so strictl^in one direc- tion, was intended on the other to open the door to a return to practices that were suspected as Romish, and this with- out serious remonstrance in either House from the minority. The purpose of the Act is clear. It was to establish an uniformity upon all parties alike. That is its language, and that is the interpretation it bore with those in autho- rity, who had to expound! it in Visitation Articles and the like. III. The third opinion remains that the provisions of the Rubric of Edward VI. are continued, so far as they are not contrariant to other provisions still in force. And hero it is to be observed again that the Rubric was altered, after refusal to listen to the Puritan objections, to a form different from that of any former Rubric, by introducing the word ' retained.' Both in the statute of Elizabeth and in the Rubric in question the word ' retain ' seems to Privy Council Judgments. . ' 183 mean that things should remain as they were at the time 1871. of the enactment. Chasuble, Alb, and Twnich had disap. hSbert peared for more than sixty years ; and it has been argued p "Jj^^^ fairly, that this word woald not have force to bring back jodsnnent.' anything, that had disappeared mpre than a generation '~^' ago. To retain means, in common parlance, to continue something now in existence. It is reasonable to presume that the alteration was not made without some purpose ; and it appears to their Lordships, that the words of the Rubric strictly construed would not suffice to revive ornaments, which had been lawfully set aside, although they were in use in the second year of Bdward VI. But, whether this be so or not, their Lordships are of opinion that as the Canons of 1G03-4, which in one part seemed to revive the vestments, and in another to order the SurpHce for all ministrations, ought to be construed together, so the Act of Uniformity is to be construed with the two Canons on this subject, which it did not repeal, and that the result is that the Gope is to be worn in minis- tering the Holy Communion on high feast days in cathe- drals and collegiate churches, and the SwrpUce in all other ministrations. Their Lordships attach great weight to the andtws abundant evidence which now exists that from the days of ^rte^by'"' Elizabeth to about 1840, the practice is uniformly in ac- ^B^e'°°'' cordance with this view, and is irreconcileable with either of the other views. Through the researches that have been referred to in these remarks, a clear and abundant expositio contemporanea has been supplied, which compensates for the scantiness of some other materials for a judgment. It is quite true that neither contrary practice, nor irsage helps disuse can repeal the positive enactment of a statute, but terpretation. contemporaneous and continuous usage is of the greatest efficacy in law for determining the true construction of ob- scurely framed documents. In the case of the Attorney. General v. the May or of Bristol (2 Jac. and W., p. 321) Lord Eldmi observes : ' Length of time (though it must be admitted that the charity is not barred by it), is a very material consideration, when the question is, what is the 184 1871. PUKOHAS. The question of vestments was not de- termined In Liddell v. Westerton, nor m Maxtin V. Mackono- ohie. Besult. The Bixetta, Privy Council Judgments. effect and true constriictioii of the instrument. Is it according to the practice and enjoyment which has ob* tained for more than two centuries, or has that prac- tice and enjoyment been a bl-each of trust ? ' We may ask, in like manner, what is the true construction of the Act of of 1662, and of the Rubric which it sanctioned. Is.it accorduig to the practice of two centuries, or was the practice a continual breach of the Law, commanded and en- forced by the Bishops, including the very Bishops -who aided in framing the Act ? The learned Judge relies on two former judgments of this Committee as having almost determined the question of vestments ; one of them in the case of Westerton v. Liddell, and the other in the case of Martin v. Machonoehie. In Westerion v. Liddell the question which their Lord- ships had to ' decide was, whether the Rubric which ex- cluded all use of crosses in the service, affected crosses not used in the service, but employed for decoration of the building only, and they determined that these were un- affected by the Rubric. They decided that the Rubric in question referred to the Act passed in 2 and 3 Edui. IV., adopting the First Prayet Book, and not to any Canons or Injunctions having the authority of Parliament, but adopted at an earlier period. Their Lordships feel quite free to adopt both the positive and the negative conclusions thus arrived at. In constru- ing the expressions made use of in that judgment, it should be borne in mind, that this question of the Vestments was not before the Court. In MaHvn v. Mackonochie the Committee stated anew the substance of the judgment in Westerton v. Liddell upon this point, but did not propose to take up any new ground. Their Lordships wUl advise her Majesty, that the Re- spondent has offended against the Laws Edclesiastical in wearing the Ghasuhle, Alb, and Tv/nicle ; and that a Moni- tion shall issue against the Respondent accordingly. With respect to the cap called a Biretta, which the Respondent is saiid to have carried in his hand,' but not to have worn in church, their Lordships would not be justi- Privy Coundl Judgments. 185 fied, apon the evidence before them, in pronouncing that 1871. the Respondent did an unlawful act. hkbbebt As to holy or consecrated water in the church, "the evi- pdbohas. dance does not go to the full extent of the charge. There judgment. is no proof whatever that the water placed in the church """ — ■ ' was consecrated at all, nor that it was put there by the Respondent, with the purpose of its being used as the con- gre^tion seems to have used it. This is a penal proceed- ing, and each charge must be strictly proved as alleged. Upon this point, too, the Appeal must be disallowed. Their Lordships now proceed to the Sixteenth Article, ^^^^^^ which charges that on a certain day the Respondent ' ad- Ininistered wine mixed -with water instead of wine to the communicants at the Lord's Supper.' The learned Judge in the Court below has decided that it is Ulegal to mix water with the wine at the time of the Service of Holy Communion ; but he decides that water may be mixed with the wine ' provided that the mLngHng be not made at the time of the celebration.' (Law Rep., 3 Ad. and Eccl., p. 102.) For this view the learned Judge quotes, amongst other autho- rities, Bishop Andrews, but it has escaped him that the practice of Bishop Andrews was that which he condemns ; in his Consecration Service the Bishop directs as follows : •'—Episcopus de novo in calieem. ex jpomlo quod in spuyrd mensd stdbat, effumdit admistdque aqua, redtat clwre verba ilia eonsecratoria. {Spam-ow's Articles, p. 396, etc.) The learned Judge considers that the act of mixing has some symbolical meaning, but he holds — referring to his judgment in Mar- tin V. Mackonoahie (Law Rep., 2 Ad. and Eccl., 216) — that it was ' wholly unconnected with any Papal superstition, or any doctrine which the Church of England has rejected.' Nor does it appear that the controversy between the Romish and Reformed Churches, turned so much upon the symbolism of the mixed cup, as upon the necessity of its use. Their Lordships find here two questions for their con- ^n° S."*" sideration. Since it has been decided by this Committee, solved, that additional ceremonies or innovations are excluded by implication by the Service for Holy Communion ; or, in PtmOHAS. 186 Privy Council Judgments. 1871. other words, that the Service for Holy Communion is not only a guide, but a sufficient guide in its celebration ; and since the learned Judge has decided that the act of ming- Judgment. li^g wine with water in the Service, with a view to its ""^ ' ' administration, is one of the additional ceremonies so ex- cluded, the first question is whether the doing the act before the Service, and in the vestiy or elsewhere, could so alter the symbolical character of the act that the cup might be brought in and consecrated, and administered to the people, without constituting an innovation or additional ceremonial act beyond what is ordered in the Service. Is the pre- If this question be decided in the affirmative, the second UDgo?TTOter question would be, whether upon ti fair construction of the adatonS™ directions of the Rubrics, this previous mingling could take ceremony? place without violation of the Rubrics. The first question is, whether this is an additional ceremony, not provided in the Rubric. The second question is, whether it is contrary to the express directions of the Rubric. ■ On the formev question their Lordships observe' that, whether the water mingled with the wine be used because Christ himself is believed to have used it, or in order to symbolise the water from the rock given to the thirsty Israelites, or the blood and water from the side of our Lord, or the union of Christ with His people (the water being a type of the people), or the union of two natures in the one Lord, it can scarcely be said that the reception of the min- gled chalice had no share in this symbolism, but only the act of mingling. Their Lordships are unable to arrive at the conclusion that, if the mingling and administering in the Service water and wine is an additional ceremony, and so unlawful, it becomes lawful by removing from the Ser- vice the act of mingling, but keeping the mingled cup itself and administering it. But neither Eastern or Western Church, so far as the Committee is aware, has any custom of mixing the water with wine apart from and before the Services. Is It allowed As to the second question, the addition of water is pre- Eubrio? scribed in the Prayer Book of 1549 ; it has disappeared Privy Council Judgments. ISlT from all the later Books, and this oinissioii must have been 1871. designed. The Rubric of 1662, following that of 1604, h^^t says, ' The bread and wine for the Communion shall be pmJ^'juig. provided by the Curate and Churchwardens at the charges judgment. of the parish.' So far wine, not mixed with water, must be ' iniended. The Priest is directed in the Rubric before the Prayer for the Church Militant to place on the Table ' so much bread and wine as he shall think sufficient.' Of so much of this wine as n\ay remain unconsecrated it is said that ' the Curate shall have it to his own use.' These directions make it appear that the wine has not been mingled with water, but remains the same throughout. If the wine had been mingled with water, before being placed on the Table, then the portion of it that might revert to the Curate would have undergone this symbolical mixing; which cannot surely have been intended. , Their Lordships gladly leave these niceties of examina- tion to observe, that they doubt whether this part of the Article is of much importance. As the learned Judge has decided the act of mingling the water with the wine in the Service is illegal, the private mingling of the wine is not , likely to find favour with any. Whilst the former practice has prevailed both in the east and in the west, and is of great antiquity, the latter practice has not prevailed at all ; and it would be a manifest deviation from the Rubric of the Prayer Book of Edward VI., as well as from the excep- tional practice and directions of Bishop And/r&ws. Upon this Sixteenth Article, however, whether it be more or less important, their Lordships allow the Appeal, and will advise that a Monition should issue against the Re- spondent. The Twentieth Article charges the Respondent with Wafer-bread, using on divers occasions ' wafer-bread, being bread made in the special shape and fashion of circular wafers, instead of bread such as is usual to be eaten,' and with administer- ing the same to the communicants. The Rubric of the Prayer Book now in force runs thus : — ' And to take away all occasion of dissension and superstition, which any per- son hath or might have concerning the bread and wine, it FilBCHAS. Judgment, 1 88 Privy Council Judgments. 1871. shall suffice that the bread be such as is usual to be eaten ; but the best and purest wheat bread that conveniently may be gotten.' This is the same with the Rubrics of 1552, 1569, and 1604, with two exceptions. The present Rubric omits after ' eaten ' the words ' at the table with other meats,' and it introduces words which have been prominent in the argument in this case. Instead of ' to take away the superstition,' it reads ' to take away all occasion, of dissen- sion and superstition.' In the First Book of Edward VI. the direction is different : — ' For avoiding all matter and occa- sion of dissension, it is meet that the bread prepared for the Communion be made through all this realm after one sort or 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 ; aaid every one shall be divided in two pieces at the least, or more, by the discretion of the Minister, and so distributed.' One of the Elizabethan injunctions (of 1559) is at variance with the Elizabethan Rubric con- tinued from ohe Second Book of King Edward, and pro- vides as follows : — * Where, also, it was, in the time of King Edwa/rd VI., used to have the Sacramental Bread of com- mon 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 this same Sacramental Bread be made and formed plain, without any figure thereupon, of the same fineness and fashion round, though somewhat bigger in compass and thickness, as the usual bread and wafer heretofore named singing cakes, which served for the use of the private Mass. (Va/rdwell, Doc. Ann., vol. i., p. 202, Ed. 1839.) The learned Judge calls this injunction a contemporanea, expositio of the Rubric, but it is in fact a superseding of the Rubric, nor can it be regarded as at all reconcileable with it. Upon these facts the learned Judge decides as follows :, — ' It appears, therefore, that while the first Rubric prescribed an uniformity of size and mate- rial, the later and the present Rubric are contented with the order that the purest wheaten flour shall suflBce, and the bread may be leavened according to the use of the Privy Council Judgments. 189 Eastern, or unleavened according to the use of tlie Western, 1871. Ghnwh.' (Law Eep., 3 Ad. and EceL, 103.) ^:^^^ Their Lordships do not find any mention of flour, and, „ *• apart irom this shght inadvertence, their Lordships are jadgment. unable to accept this view of the passages that have been ^ ' ' quoted. The First Book of JEdward has in view uniformity of practice, and not the choice of two practices ; the bread is to be made ' through all this realm after the same sort and fashion.' The Second Book of Edward VI. is not so positive in form, for the words 'it shall suffice' are used ; but it produced uniformity, and not diversity, for the in- junction of 1669 says : ' It was in the time of King Hdwa/rH VI. used to have the Sacramental Bread of common fine bread.' This general use the injunction proposes to change ; but, again, the order is universal, and binds the very minutest details ; the bread is to be plain without any figure, fashioned round, but somewhat bigger in compass and thickness than the cakes used in private Masses. There is no trace of an intention to leave men free to fol- low the fashion of the Eastern, or of the Western Church. So there are three distinct orders ; first, for wafer-bread, unleavened as before, but larger, and without print ; then for common bread tisual at the Table ; then for a new kind of bread thicker than the wafer, and without symbolical figures ; and the first and last are in their form universal and absolute ; and the second also had brought about a general usage, and not a diversity. There. was, no doubt, a great division of opinion upon this question, and this makes it all the more remarkable, that none of the three orders takes the natural course of leaving the matter free. Each seems to have aimed at uniformity, but each in a dif- ferent practice. But it has been argued by som3 that the phrase 'it shall CoBstraobion suf&ce,' implies a permission — that the words may mean auiBoe.' ' it shall be sufficient, but another usage is allowed, and might even be better.' On the other hand, it has been argued, that in other places in the Liturgy, ' it shall suf- fice ' must be construed into a positive direction ; that if ' it shall suffice ' to pour water on a sickly child, this ought 190 Privy Council Judgments. Evidence from his- tory points to wheat- bread. And so does the twentietli Canon, to restrain the Clergyman from immersing a child known to be sickly ; that even the weaker fprm ' it may suffice •' in the Rubric, as to children and infants brought to be baptised, conveys to the Minister a distinct direction as, to what he is to do, and leaves no alternative course apparent ; that ' it shall suffice that the Litany be once read ' for both Deacons and Priests is meant to be, and is received as, a positive order ; and that in such cases ' it shall suffice ' mean,s ' it shall be sufficient for the completeness of a sa- crament or for the observance by the Minister of the Rubric' Their Lordships are disposed to construe this phrase in each case according to the context. Here the expression is ' to take away all occasion of dissension and superstition .... it shall suffice.' If these words left the whole matter open, and only provided that the usual bread should be sufficient where it happened to be used, it is difficult to see how either dissension or superstition would be taken away ; not dissension, for there would be a license that had not existed since the Reformation ; nor superstition, for the old wafer with its ' print,' its ' figures,' which the First Book of Udward and the injunctions desired might be ex- cluded, might now be used, if this Rubric were the only restraint. Their Lordships are therefore inclined to think, on this ground alone, thaJt the Rubric contains a positive direction to employ at the Holy Communion the usual bread. It is at least worthy of notice that when Cosin and others, at the last revision, desired to insert words making the wafer also lawful, these words were rejected. But their Lordships attach greater weight to the exposi- tion of this Rubric furnished by the history of the question. From a large collection of Visitation Articles, from the time of Ghwrles II., it is clear that the best and purest wheat bread was to be provided for the Holy Communion, and no other kind of bread. They believe that from that time till about 1840 the practice of using the usual wheat-bread was universal. The words of the 20th Canon, to which the Visitation Articles refer, point the same way. The churchwardens Privy Council Judgments. 191 are bonnd to supply * -wheaten bread,' and this alone is men- 1871. tioned. If wafer-bread is equally permitted, or the special cakes of Edward VI.'s First Book, and of the injunctions, it is hard to see why the parish is to supply wheaten bread, in cases where wafers are to be supplied by the Minister, or from some other source. And if wafers were to be in use, a general injunction to all churchwardens to supply wheaten bread would be quite inapplicable to all churches where there should be another usage. Upon the whole, their Lordships think that the law of Result as to the Church has directed the use of pure wheat-bread, and ■^»'"-''"^' they must so advise her Majesty. It remains to consider part of the 17th Article of Charge, position of which sets out that the Respondent, during the whole of i^priest^ the Prayer of Consecration at the Holy Communion, ' stood at the middle of that side of the Holy Table which, if the Holy Table stood at the east end of the said Church, or Chapel (the said Table in St. James' 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.' The learned Judge deals with this charge very briefly, behoving it to have been settled by this Committee in the judgment in Ma/rtim, v. MaoJconocMe. He says, ' I must observe that the Rubric Bniingof the does not require that the people should see the breaking of ^xohes, ^ 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 hand, and some of them at least could see him break the bread.' (Law Rep., 3 Ad. and Ecc, 109.) The Rubric on this point is this : — ' When the Priest, standing before the table, hath so ordered the bread and 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 followeth.' Their Lord- ships are of opinion that these words mean, that the Priest is so to stand that the people present may see him break 192 Privy Council Judgments. 1871. Hebbebt V. PCKOHAS. Judgment. FoBition of table. the bread, and take the cup into Hs hands ; although the learned Judge is right, if he means to say that the mere ■words do not speak of seeing. Their Lordships think that the evidence of the witness ' Y&rrall', which there is no reason to doubt, proves that ' generally the congregation could not see ' the breaking of the bread, because the Respondent had his back turned to them. As regards the cup, the witness said that they could see him take the cup into his hand ; but, being asked further, he says, ' I could tell he was taking the cup into his hand.' This is consistently explained by supposing that the witness and others could see a certain motion of the Respondent, which, from their knowledge of the ser- vice, and from the subsequent elevation, they were sure was the taking of the cup into his hands. It would pro. bably be impossible in any position so to act thai all the con- gregation could see, or that all should be unable to see ; but we take it as proved that the greater part of the congregation could not see the breaking of the bread, or the act of taking the cup into the hands. The facts being established, their Lordships proceed to consider the question itself. In default of argument on the Respondent's side, they have been somewhat aided by a large mass of controversial literature, which shows how much interest this question excites, and which has probably left few of the facts unnoticed. The Rubric upon the position of the table directs, that it shall ' stand in the body of the church, or in the chancel where morning and evening prayer are appointed to be said.' This is the same as the Rubrics of 1552, 1569 and 1604, excepting the verbal alteration of ' are ' for * be,' It goes on, ' And the Priest standing at the north side of the table, shall say the Lord's Prayer with the Collect follow- ing,' The table is a moveable table. By the Injunctions of Queen Elizabeth (Oardwell, Doc. Ann. vol, i, p. 201) it is ordered ' that the Holy Table in every church be de- cently made, and set in the place where the altar stood and there commonly covered, as thereto belongeth and as shall be appointed by the Visitors, and ap to gtand, saving Privy Council Judgments. 193 when the Communion of the Sacrament is to be distri- 1871. huted ; at which time the same shall be so placed in good sort hebbbrt within the chancel, as whereby the Minister may be more pp^cHAs conveniently heard of the communicants in his prayer and judgment ministrations, and the communicants also more conve- niently, and in more nnm.ber communicate with the said Minister. And after the Communion is done, from time to time, the same Holy Table to be placed where it stood before.' If this custom still prevailed of bringinjg the table from the east, and placing it in the chancel, the two Rubrics would present no difficulty. The Priest, standing on the north side as directed by the one, would also be standing before the table, so as to break the bread before the people, and take the cup into his hand as required by the other. No direction was given for a change of position in the Prayer of Consecration in the Second Book of King Udwa/rd VI., but only a change of posture in the words ' standing up.' But before the time of the Revision of 1662, the custom of placing the table along the east wall was becoming general, and it may fairly be said that the Revisers must have had this in view. The following questions appear to require an answer, in The north order to dispose of this part of the case : What is meant tawe is that by the * north side of the table ' ? What change, if any, is to tie north. ordered by the Rubric before the Prayer of Consecration ? And what is the meaning of 'before the people' in that Rubric ? As to the first question, their Lordships are of opinion that ' north side of the table ' means that side which looks towards the north. They have considered some ingenious arguments in- tended to prove that ' north side ' means that part of the west side that is nearest to the north. One of these is, that the middle of the altar before the Reformation was occupied by a stone or slab, called mensa come&ratoria and sigillvm altaris, that the part of the altar north of this was called north side, and that to the south of it was called t}ie south side. Without enquiring whether English altars were generally so constructed, which is, to say the least, 194 1871. Hebbert V, PnHOHAS. Jndgment. Authorities favour this view. Privy Council Judgments. doubtful; their Lordships observe that in the directions for the substitution of a moveable table for the altar, and for its decent covering, and its position at various times, there is no hint that this is to revive the peculiarity of the altar which it replaced ; and tjiey do not believe that the table was so arranged or divided. Another argument- is drawn from the Jewish Ritual. On offering sacrifices before the Lord, the altar was to be sprinkled with the blood, and a red line was drawn across the altar to mark the height at which it should be sprin- kled ; and it is argued that the line being only in front, the Priest must have stood in front in order to see it, and be guided by it. But on the other hand, the Hne probably went all round the altar, and the sprinkling was applied to all the sides. And even if, the fact was rightly stated, it would be impossible to allow an argument so remote and shadowy to supersede the plain sense of a direction so clear in itself. When the table was placed in the body of the church, or the chancel, the Priest or Minister was to stand on the north side of it, looking south. When it became the custom to place the table altarwise against the east wall, the Rubric remained the same. And there are many authorities to show that the position of the Minister was still upon the north side or end, facing south. It is only necessary to cite a few. Archdeacon Pory (1662) in his Visitation Articles, says, ' The Minister standing as he is appointed at the north side or end of the table when he celebrates the Holy Communion.' In the dispute be- tween the Vicar of Qrantham and his parishioners (1627) Bishop Williams plainly shows that whichever way the table was to stand, which was the matter in dispute, the position of the Minister was on the north. ' If you mean by altarwise that the table shall stand along close by the wall, so that you be forced to officiate at one end thereof (as you may -have observed in great men's chapels), I do not believe that ever the Communion Tables were other-, wise than by casualty so placed in country churches.' He also says, 'I conceive the alteration was made in the Rubric to show which way the celebrant was to face.' Privy Council Judgments. 195 Hetjlin says, quoting the Latin Prayer Book of 1560 : 1871. ' I presume tliat no man of reason can deny but that the hebbeht northern end or side, call it what you will, is pa/rs sejpten- p„boba3 trionalis, the northern part.' When Bishop Wren was im- judgment. peached in the House of Lords, a.d., 1636, for consecrating " ' ' the elements on the west side of the Table, he answered that he stood at the north side at all the rest of the service, except at the Prayer of Consecration. ' He humbly con- ceiveth it is a plain demonstration that he came to the west side only for the more conveniency of executing his ofiBce, and no way at all in any superstition, much less in any imitation of the Romish Priests, for they place themselves there at all the service before, and at all after, with no less strictness than at the time of Consecrating the bread and wine.' Nicholls, Commentary on Book of Common Prayer (1710); BcTOTOeff, Annotations on Book of Common Prayer (1708) ; Wheatley, Rational Illustrations of Common Prayer (1710), confirm the view that when the Table was placed east and west, the Minister's position was stiU on the north. Their Lordships entertain no doubt whatever that when the Table was set at the east end the direction to stand at the north side was understood to apply to the north end, and that this was the practice of the Church. It will be convenient to consider next what is the mean- Mr. A. J. Stephens, Q.C., and Mr. T. B. Archibald, for the Appellant, contra : — The Statute, 2 and 3 Will. IV., c. 92, sec. 2, transferred the powers of the High Court of Delegates to the Queen in Council, and also abolished the Commission of Review. In the Report of the Ecclesiastical Commissioners of 1832, p. 20, it is expressly stated, that from the decision of the High Court of Delegates no further appeal lies as a matter of right, and that although the unsuccessful party might present a petition to His Majesty in Council for a Com- mission of Review, yet that it was very rarely that the facts of a case warranted the exercise of the royal prero- gative. By the Statute, 3 and 4 Will. TV., c. 41, this Tribunal is constituted the ultimate Court of Appeal in ecclesiastical causes, having the same authority and juris- diction as was possessed by the Court of Delegates, except the power of granting a Commission of Review, which is expressly taken away by 2 and 3 Will. TV., c. 92, sec. 3. The object of these Petitions is to resuscitate the old Com- mission of Review, which proved so pernicious in its working and results as to lead to its positive abolition by Statute. The Judicial Committee is, by Statute, a Court of Law fully constituted, and capable of enforcing an Order in Council made on an appeal, and punishing for contempt. Even if a rehearing was granted, and judgment given in favour of the Petitioner, the inevitable consequence would be that the Appellant would then have a right to present a Petition to the Queen in Council urging that conflicting judgments had been given, and, therefore, that it was necessary to rehear the case again. To allow a rehearing of a judgment of the Appellate Court upon a question of Church doctrine solemnly decided, would be most mis- chievous. The judgment is in conformity with the prin- Privy Council Judgments. 207 ciples laid do-wn in Westertcm v. Liddell and Ma/rtm v. 1871. MaokonocUe. h^et The Solidtor-Oeneral replied. PimoHAa. The Lord Chancellob : — oeedmgs. Their Lordships are of opinion, in respect of the two Petitions addressed to the Crown, that no farther prooeed- ihgs shonld be taken therein. Having carefully weighed the arguments, and considering the great public mischief which would arise on any doubt being thrown on the finality of the decisions of the Judicial Committee, their Lordships are of opinion, that expediency requires that the prayer of the Petitions should not be acceded to, and that they shonld be refused with costs. Three separate Orders were made by Her Majesty in Council on May 16, 1871, upon the Appeal and the two Petitions. The Order in Council made on the first and principal Appeal set forth, ~that their Lordships had ' agreed humbly to report to Her Majesty their opinion in favour of the said Appeal ; that the Decree or Order appealed from ought to be amended to the extent thereidafter mentioned ; that the principal cause ought to be retained, and therein that, in addition to the matters in respect of which the said John Furchas was by the Decree appealed from pro- nounced to have ofiended, and from the use of or sanction- ing the use of which he was thereby admonished to abstain, he, the said John Pv/rchas, ought to be pronounced to have ofiended against the Statute Law and the Constitutions and Canons Ecclesiastical of the realm by himself using and wearing a Vestment called a Chasuble while of&ciating in the Communion Service, and in the administration of the Holy Communion in the said church or chapel of St. James, at Brighton; and by sanctioning and authorising, whilst present, and responsible for the due performance of Divine Service, the wearing of a Chasuble by other Clergy, men whilst officiating in the Communion Service, and in the administration of the Holy Communion in the said 208 Privy Council Judgments. 1871. churcli or chapel ; and by himself wearing, -when officiating Hebeeet ^^ *^^ Communion Service, a Vestment called an Alb^ and Pheohas ^y causing or suffering other Clergy officiating or assisting Further pro- at the Communion Service, in his presence, to wear certain oeedings. ' jr » • » ' Vestments called Tunics, OJunicles, and Albs; and by ad- ministering wine mixed with water, instead of wine, to the commxinicants at the Lord's Supper ; and by the use in the said church or chapel, in the administration of the Holy Communion, of wafer-bread instead of bread such as is usual to be eaten ; and by standing in the said church or chap'el with his back to the people, between the people and the Holy Table, whilst reading the Prayer of Conse- cration in the Holy Communion ; and that he, the said John Pv/rohas, ought to be admonished to abstain from the use of, or sanctioning the use of, the rites, ceremonies, acts, obser- vances, matters or things, as well those in which he has been pronounced by the aforesaid Decree of the Court below to have offended, as those in which their Lordships did report that he had also offended ; and that a Monition admonishing him accordingly ought to be issued out of the Seal of Her Majesty in ecelesiasjical and maritime causes; and further, that he, the said John Pv/rohas, ought to be condemned in all the costs incurred in the said cause in the Court below on behalf of the said Charles Jomies Elphmstone, and also in the costs incurred in the said appeal on his behalf, and on behalf of the said Henry Heilert, save those incurred in the application of the said Hemry Mehiert to be admitted and substituted as Promoter in the said appeal, in respect of which no Order was made.' By the Order in Council made on the two Petitions of rehearing, it was ordered, ' that the Petition of the said John Pwrehas ought not to be granted, and that no further steps ought to be taken in regard thereto.' 209 THOMAS BTARD SHBPPARD . Appellant; AND Rev. WILLIAM JAMES EARLT BEN- "! ^ NETT, Clerk . . . . } Respondent * On Appeal from the Arches Oourt of Ganterhury. Ctanges in the Book of Common Prayer by which words or passages, inculcating particular doctrines, or assuming a belief in them, have been struck out, are most material as evidence that the Church has delibe- rately ceased to affirm those doctrines in her public services. The necessary effect of such changes, when they stand alone, is that it ceases to be unlawful to contradict such doctrines, and not that it becomes unlawful to maintain them. The Church of England holds and teaches affirm- atively a presence of Christ in the ordinance of the Lord's Supper to the soul of the worthy recipient. As to the mode of this presence, nothing is affirmed. To maintain a presence which is ' real, actual, and objective' — a presence upon the altar, under the form of bread and wine, though such a presence is not affirmed, or required by the Articles and Formularies — is not so contradictory or repugnant to them as to be properly made the ground of a criminal charge : and the assertion of a real, actual, and objective presence of the Body and Blood of Christ in the Sacrament, after a heavenly and spiritual manner, does not expressly, or by necessary imphcation, assert a presence other than spiritual; nor is such assertion necessarily coutra- * Present : The Lord Cbaneellor (Hathetley) ; the Archbishop of York (Dr. Thomson); the Bishop of London (Dr. JaoksonJ; Lord Eomilly, M. R. ; Sir James W. Colvile ; Sir Joseph Napier, Bart. ; Sir W. M. James, L. J. ; Sir George Mellish, L. J. ; Sir Montague Smith j Mr. Montague Bernard. P 210 Privy Council Judgments. dictory of the 28tli, and 29tli Articles of Religion, or of the Declaration of Kneeling. The -words ' corporal presence ' of the Black Rubric of 1662 cannot he regarded as a mere equivalent for the words 'real and essential presence' of King Edward's Second Bobk. It is not lawful for a Clergyman to contradict, ex- pressly or by inference, the proposition laid down in the Slst Article of Religion, 'that 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 ' that there is none other satisfaction for sin bnt that alone ; ' nor to contradict any proposition plainly deducible from the condemnation of propitiatory masses, which forms the second part of the 31st Article of Religion. It is not lawful for a Clergyman to teach that the sacrifice, or offering of Christ upon the Cross, or the redemption, propitiation, or satisfaction wrought by it, is, or can be, repeated in the ordinance of the Lord's Supper ; nor that in that ordinance there is or can be any sacrifice or offering of Christ which is efficacious in the sense in which Christ's death is efficacious to procure the remission of the guilt or punishment of sins. It was maintained by a Clerk in Holy Orders that the Communion Table is an altar of sacrifice, at which the Priest appears in a sacerdotal position at the cele- bration of the Holy Communion, and that at such cele- bration there is a great sacrifice or offering of our Lord by the ministering Priest, in which the mediation of our Lord ascends from the altar to plead for the souls of men : Held, that it was not clear that the word ' sacrifice,' as used, contradicted the language of the Articles. It is unlawful to teach or maintain that adoration is due to the Consecrated Elements, or to any corporal presence of Christ therein. It was maintained by a Clerk in Holy Orders that adoration is due to Christ present upon the altars (thereby referring to the Communion Tables) 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 Jesus' Christ: Seld, that such expressions, though Privy Council Judgments. 211 rash, ill-judged, and perilously near a violation of the law, are not so inconsistent witH the Declaration of Kneeling, and the Articles of Religion, as to afford grounds for jpenal proceedings, and that the Clerk was entitled to the benefit of the doubt. It is not the part of the Court of Arches, or of the Judicial Committee, to usurp the functions of a synod or council. Their duty is to ascertain whether state- ments are so repugnant to the Articles and Formu- laries construed in their plain meaning as to merit judicial condemnation. Authorities are only valuable as illustrating the liberty left by the Articles and Formularies, ■ and actually enjoyed by the members and Ministers of the Church. The cases of Gorham v. Bishop of Hxeter, lAddell V. Westerton, and Martin v. MachonocMe, referred to, and ai£.rmed. 2, 1871. Sheppaud This was an Appeal from the final sentence or decree Nov. 28 pronounced by the Dean of the Arches Court of Gwnter- y igTi bti/ry, on July 23, 1870, in a cause of the office of the Judge, promoted by Thomas B. Sh&ppard, against the Rev. William James Ea/dy Bemiett, Vicar of the parish of Frame Selwood, in the diocese of Bath and Wells, for having offended against the laws ecclesiastical by having within two years from the date of the institution of the cause, caused to be printed and published certain works in which he is alleged to have advisedly maintained doc- trines directly contrary or repugnant to the Articles and Formularies of the United Church of England and Ireland, in relation to the Sacrament of the Lord's Supper. The cause was, instituted in the ArcShes Court of Canter- bury, by virtue of Letters of Request of the late Lord Bishop of Bath and Wells, in accordance with the provi- sions of the Act 3rd and 4th Vic, c. 86. The admission of the Articles in the Court below (the Court ttf the Arches) was moved on October 26, 1869, and on the 30th of the same month Sir B. J. Philli- more decided that certain passages in the Articles were in- admissible, and directed the Articles to be reformed. p2 212 Prwy Council Judgments. 1871. Sheppard V. Bennett. Statement. Ag.'^inst tlis decision the Promoter appealed to the Judi- cial Committee, who, on March, 26, 1870, affirmed the decision. The cause was remitted to the Arches Court, and the Articles were reformed by Sir J2. /. Phillimore, counsel for the Promoter, objecting to the reformation as being at variance with the reformation directed by the order of Ocbober 30, 1869. On June 16, 1870, the cause came on for hear- ing, and counsel for the Promoter applied that certain passages struck out by the Judge in his reformation of the Articles, on June 3, might be reinstated. No order, how- ever, was made on the application. On July 23, 1870, Sir B. J. Fhillvmnre pronounced his decree that the Proctor for the Appellant had failed in proving the Articles, and dismissed, the Respondent from the suit. The present Appeal was from so much of the interlo- cutory decree of June 3, 1870, as directed the pas- sages in the 5th, 6th, 7th, and 32nd Articles to be struck out ; also from the interlocutory decree of June 16, 1870, whereby in eflfect the Judge declined to allow such passages to be reinstated, and from the final sentence of July 23, 1870. The Articles as reformed. The following are the material parts of the reformed Articles : — 3. That you, the said Respondent, have, within two years last paot, written and published, in a book entitled ' The Church and the World,' a certain article, entitled ' Some Results of the Tractarian Movement of 1833.' 4. That you, the said Respondent, have, within two years last past, written a certain letter, entitled 'A Plea for Tolera- tion in the Church of England, to the Rev. B. B. Pusey, D.D.,' 2nd edition ; also a certain letter to the same, and similarly entitled, 3rd edition. 6. That in the said article, entitled ' Some Results of the Tractarian Movement of 1833,' are contained the following passages, that is to say : — Privy Council Judgments. 213 At page 10 :— 1871. (B) ' TTie Doctrine of the Holy EueJicmist. — Two questions gni^IiD are here involved, the doctriae of sacrifice and of the .^^ real presence. Dr. Newman tells us, in his " Apologia," statement. "When a correspondent, in good faith, wrote to a newspaper " ' ' to say that the sacrifice of the Holy Eucharist spoken of from ■ Re- in the tract, was a false print for Sacrament, I thought the Traotarian mistake too pleasant to be corrected before I was asked Jtisl™™' about it." This may be a fair representation of the doc- trine held by the general average of the Bishops and Clergy at that time ; and of course, therefore, in the world any idea of a sacrifice in the Blessed Eucharist would have been a chimera. An act of memorial — an agape or love feast, a solemn record of Jesus' passion and death — that would have been the sum total of the general idea of the Holy Eucharist in those days.' At pages 11 and 12 : — (C) 'When Dr. Pusey, in 1843, put forth his remarkable sermon, entitled " Holy Communion : a Comfort for the Penitent," that world was startled.. Yes, and much more than the world ; the learned University was startled. The sermon stated, " The same reality of the Divine gift makes it angel's food to the saint and a ransom to the sinner. And both because it is the Body and Blood of Christ. Were it only a thankful commemoration of His redeeming love, or only a showing forth of His death, or only a strengthen- ing and refreshing of the soul, it were indeed a reasonable service, but it could have no direct healing to the sinner. To him its special joy is, that it is His Redeemer's very broken Body ; it is His blood which was shed for the re- mission of his sins. In the words of the ancient Church, ' he drinks his ransom,' ' he eateth the very Body and Blood of the Lord, the only saoHfice for sin.' God poureth out for him 'the most precious Blood of His only begotten ; they are fed from the Cross of the Lord,' 'because they eat His Body and Blood.'" For this doctrine, this holy comforting doctrine, this true catholic doctrine — who would believe it now? — our dear friend was absolutely condemned 214 1871. BENNirrT, Statement. Extracts from 'Re- sults of the Tractarian Movement of 1883.' Privy Council Judgments. by the University of Oxford and suspended for two years. But patience! The learned University of Oxford had to learn as well as the rest of the world ; it condemned because it was ignorant. Time advanced; the same Doctor preached again when his suspension was over, and reiterated the condemned doctrine. Ten years had passed, and the same sermon was continued as though nothing had intervened, and then the doctrine was received. How dignified, how grand, how noble was that patient waiting for the teaching of time ! The second sermon is entitled " The Presence of Christ in the Holy Eucharist." The sermon states : " The presence of which our Lord speaks has been termed sacra- mental, supernatural, mystical, ineffable, opposed not to what is real but to what is natural. It is a presence without us, not within us only : a presence by virtue of our Lord's words, although to us it becomes a saving presence, received to our salvation through our faith The word body is no figure. For our Lord says, ' This is my body;' and not so only, but ' This is my body, which was given for you-.' Since, then, it was His true Body which was given for us on the Cross, it .is His true Body which is given to us in the Sacrament. The manner of the presence of the Body is different. The Body which is present is the same ; for He has said, 'This is my body, which is given for you.' " ' At pages 12 and 13 : — (D) ' The Priest or Priest and deacon, formerly stand- ing 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 office to offer. Formerly, an ordinary surplice, and frequently not over clean or seemly, covered the person of the ministering Priest, no difference being manifested between that and all other offerings of prayer ; now the ancient vestments pre- sent 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 subsisting. Privy Council Judgments. 215' And towards tliiis are tending all tke ancient rites of the 1871. Church which are now in course of restoration. The SH^i[i]^D 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 mediation of Jesus ascending from the altar to plead for the sins of man.' 6. That in the said letter, entitled 'A Plea for Toleration in the Church of England,' 2nd edition, referred to in the fourth preceding Article, are contained in the following passages, that is to say : — At pages 2 and 3 : — (B) ' The greater part of the priesthood does now main- Extracts tain and set forth without flinching those doctrines which piea for were then (that is, in the year 1830), to say the least, held 2nd°edition. in abeyance. To spea"k: only of myself, I have worked steadily onward as far as my humble powers have enabled me, cheered and instructed by the " Tracts for the Times," and your own (Dr. Pus&y's) more special teaching in Oxford, to " contend earnestly for the faith once delivered unto the saints ' ' — that faith seeming to me to derive its whole eflScacy from a right appreciation primarily of the doctrine of the Incarnation, and depending on that, the real, actual, and visible presence of our Lord upon the altars of our churches. Without that doctrine, as containing and inferring the sacer- dotal ofi&ce of the Priest and the sacrificial character of the altar, there would seem to me no church at all. It could not but be that somehow the words of our blessed Lord must be true — " Except ye eat the flesh of the Son of man, and drink His blood, ye have no life in you." ' At pages 4 and 5 : — (F) ' In proportion as the doctrines of the Real Presence and Bucharistic Sacrifice have found their way iato the faith of congregations, so have ceremonial observances increased, and have become more and more acceptable. That which I taught first in 1842 I have naturally followed up when the opportunity came ; and it is now my happiness 216 Privy Council Judgments. 1871. Extracts from 'A jelea for Toleration/ 2nd edition. to say that I have been enabled, with God's blessing, to realise many things in the dignified observance of the blessed Sacrament which I then only dreamed of as possible. I have been enabled to revive the ancient Catholic vest- ments, and to use, togetfier with them, many beautiful ceremonies, which,'though of late years fallen into desuetude, always formed a part of the service of the Eucharist in olden times.' At page 5 J — (G) ' Our eucharistic office, instead of being, as in too many instances it used to be, mutilated and curtailed of its fair proportions, and very often a mere dead piece of formalism, has become a living, real, spiritual ofiering of Jesus Christ upon the altar.' At page 14: — (H) ' Well, I do not know what others of my brethren in the priesthood may think — ^I do not wish to compromise them by anything I say or do — but seeing that I am one of those who bum lighted candles at the altar in the day time; who use incense at the Holy Sacrifice; who use eucharistic vestments ; -who elevate the Blessed Sacrament ; who myself adore and teach the people to adore the Con- secrated Elements, beheving Christ to be in them, believing that under their veil is the sacred Body and Blood of my Lord and Saviour Jesus Christ ; seeing all this, it may be conceived that I cannot rest very much at ease under the imputation above recited.' At page 15 : — (I) ' Is it reaUy the case that the Church ot Borne is the only Communion in which men may hold the doctrines of the Real Presence and the Eucharistic Sacrifice, and be in , proportion reverential in their devotions and adore God in that blessed ofiering ? Is the Church of Sngland to stand aloof and be singular in the aspect of a dead intellectual monotony, excluding all that has faith, passion, love, or feeling in her devotions ?' At page 63 : — (K) ' It is not for a chasuble or a cope, lighted tapers or the smoke of incense, the mitre or the pastoral stafi', that Privy Council Judgments. 217 we are contending, but, as all those who think deeply on 1871. either side of the question know full well, for the doctrines sheppabd which lie hidden under them. No one of the commonest gj^^^^,, capacity would either undergo the trouble or encounter the statement. expense which is unavoidably connected with the proper ' ^ observance of religious ceremonies, if it were only for the external show which was to be gained in them.' At pages 63, 64, and 66 : — (L) ' The Church of Ungland, as all catholic churches, is agreed upon this, and therefore the Bishop of London, though he may not be so just, is still in his generation the wiser (if he desire at once to go to the root of the matter) not to heed the ritual, but plunge at once into bhe doctrine. Let us ascertain, then, what the doctrine is which is Extracts brought into question. It is threefold — 1. The real objec- pie™tor tive presence of our blessed Lord. 2. The sacrifice offered ind^diS. by the Priest ; and, 3. The adoration due to the presence of our blessed Lord in the Holy Eucharist. Here it is that the Bishop of London fastens upon us without mercy. There is no subterfuge or circumlocution in him (for which I honour him). We are guilty, ia his opinion, of holding and teaching false doctrine, and he says so. But, with all due deference to him, it does not follow that because he condemns us of false doctrine therefore we are guilty. As it always was, so it is now in the Church of Christ. We have an appeal ; a Bishop may be himself heretical in charging others with heresy. ■ Church history furnishes abundance of examples. St. Afhomasms came forth victo- rious in the truth, though Arius had the upper hand by law and by force for many years. And in this particular question it may be asked of him, why it is that now, after so many trials, the doctrines of the Holy Eucharist are again set forth as matters of agitation, and those who hold the catholic faith denounced afresh, as though they held something new and strange, when everyone knows they have been determined by the Church long ago. It is not as if these doctrines now appeared for the first time in Church history. They are the first principles of the oracles of God, and it seems hard to be thus compelled to 218 Privy Council Judgments. 1871. Sheppakd V. Bennett. Statement. lay their foundation over and over again. You yourself (Dr. Fusey), my dear friend, have in these latter days made them amply known, and have claimed them as the indis- putable heritage of the Church. When, first, in the " Tracts for the Times," and'then in your University and other sermons, you were challenged by the world, you proved them to be our doctrine. When you preached, in 1843, on " Comfort to the Penitent in the Holy Eucharist," you were suspended by the University. When you preached the same doctrine, only much more strongly, in 1863, the University, by its then silence, showed that it was able to accept what you taught, and there was no more question concerning it ; ten years had cleared away the misunderstanding of your first statement, and the Church dwelt confidently in the strength of her faith, now no longer gainsaid.' 7. That in the said letter, entitled ' A. Plea for Toleration in the Church of England,' 3rd edition, are contained the following passages, that is to say : — Extracts from 'A Plea for Tolera- tion,' 3rd edition. At pages 3 and 4 of the preface : — (N) ' I therefore send forth this third edition with as little comment as possible, and in precisely 'the same language as that which was used in the first and second editions, save and except the two passages referred to, omit- ting also the postscript, which, by the events in the Church which have occurred in the interval, has noT^ no bearing on the subject. The reader will observe that in the two first editions, at page 3, the words were, " the real, actual, and visible presence of our Lord upon the altars of our churches." In the present edition he will find, at page 2, the following words substituted : " the real and actual presence of our Lord under the form of bread and wine upon the altars of our churches." He will also observe that at page 14, in the former editions, the words were, " who myself adore and teach the people to adore the Con-- secrated Elements, believing Christ to be in them — believ- ing that under their veil is the sacred Body and Blood of Privy Council Judgments. 219 imy Lord and Saviour Jesus Christ." He will now find the 1871. following words substituted : " who myself adore and teach SHErelJtD the people to adore Christ present in the Sacrament, under b^^bct the form of bread and wine, believing that under their veil statement, is the sacred Body and Blood of my Lord and Saviour Jesus ^ ' ' Christ." 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 substi- tuted ; 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, with- out any doubt, will convey the doctrine of the Real Presence, as the Church would teach it, has been suggested to me by him whose name stands at the head of this pamphlet (Dr. Pusey} ; one to whom the whole Church would implicitly bow, and all revere. I have no hesitation in adopting his words as my own, fully and completely, and on this basis am ready with him patiently to contend for the faith once delivered to the saints, and, if need be, gladly to suffer.' At page 6 of the said preface-^- (0) ' The three great doctrines on which the Catholic Extracts Church has to take her stand are these: — 1. The real ^^^ot objective presence of our blessed Lord in the Eucharist. ^ja^^\^°'' 2. The sacrifice offered by the Priest ; and, 3. The adora- tion due to the presence of our blessed Lord therein.' At page 2 of the said book — (P) ' The greater part of the Priesthood does now main- tain and set forth, without flinching, those doctrines which were then, to say the least, held in abeyance. To speak only of myself, I have worked steadily onwards, as far as my humble powers have enabled me, cheered and instructed by the " Tracts for the Times," and your own more special teaching in Oxford, "to contend earnestly for the faith once delivered to the saints ; " that faith seeming to me to derive its whole efi&cacy from a right appreciation primarily of the doctrine of the Incarnation, and depending on that, the real and actual presence of our Lord, under the form of 220 Privy Council Judgments. 1871. Bewnett. statement. hread a/iid vmie wpon the altars of owr churches* Without that doctrine as containing and inferring the sacerdotal office of the Priest, and the sacrificial character of the altar, there would seem to me no church at aU. It could not be but that somehow the words' of our blessed Lord must be true : " Except ye eat the flesh of the Son of Man, and drink His blood, ye have no life in you." ' At pages 3 and 4 : — (Q) (R) Copies of the passages set out in the 6th Article, lettered F and G. At page 11 : — (S) ' Well, I do not know what others of my brethren in the Priesthood may think. I do not wish to compromise them by anything I say or do. But seeing that I am one of those who burn lighted candles at the altar in the day- time ; who use incense at the Holy Sacrifice ; who use the eucharistic vestments ; who elerate the Blessed Sacrament ; who myself adore, and teach the people to adore, Christ present m the Sacrament, under the form of hread and im,ne,f believ- ing that under their veil is the sacred Body and Blood of my Lord and Saviour Jesus Christ ; seeing all this, it may be conceived that I cannot rest very much at ease under the imputation above recited.' At pages 12, 49, 60, and 61 : — (T) (U) (V) Copies of the passages set out in the 6th Article, lettered I, K, L. Formal charges of Appellant as to passages set out in Sth preceding Article. 8. That in the passages set forth in the fifth preceding Article you have maintained the doctrine, that in the Sacra- ment of the Lord's Supper there is an actual presence of the Body and Blood of our Lord in the consecrated bread and wine. 9, That in said passages you have maintained that there * By reference to the 6th Article, letter E, it will be seen that the words in the 2ud edition were, ' real, actual, and visible presence of our Lord upon the altars of our churches.' t By reference to the 6th Article, letter H, it will be seen that the words in the 2nd edition were, ' who myself adore, and teach the people to adore, the Consecrated Elements, believing Christ to be in them.' Privy Council Judgments. 221 is an actual presence of the true Body and Blood of our 1871. Lord in tlie sacramental bread and wine, without or ex- sh^^hd temal to the communicant, by virtue of, upon, or after Bj.s5S:5a;r the consecration of the same, irrespectively of the faith statement. and ■worthiness of the communicant, so as to be received ' by all communicants irrespectively of their faith and wor- thiness. 10. That in the said passages you have maintained that there is an actual presence of the true Body and Blood of our Lord in the consecrated bread and wine, without or external to the communicants, prior to and separate from the act of reception by the communicants. 11 . That in the said passages you have maintained 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 (thereby referring to the Com- m.union Tables) of the churches, under the form of bread and wine. 13. That in the said passages you have maintained that the Holy Communion Table is an altar of sacrifice, at which the ministering Priests of the said church appear in a sacerdotal position at the celebration of the Holy Com- munion, and that at such celebration there is a great sacri- fice or offering 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. 14. That in the passages set forth in the 6th preceding Formal Article, you have maintained, etc. (similarly as in the 8th AHpfiSnt as preceding Article). Kt'o'Stta"^ 15. That in the said passages you have maintained that jng^tide' the true Body and Blood of our Lord are actually and visibly present upon the altars (thereby referring to the Commu- nion Tables) of the churches under the form or veil of and in the sacramental bread and ^inc, by virtue of, upon, and after the consecration of the same, irrespectively of the faith and worthiness of the communicant, so to be received- by all communicants ii^espectively of their faith and worthi- ness. 222 Privy Council Judgments. 1871. Bennett. Statement. 16. That in the said passages you have maintained tliat the true Body and Blood of our Lord are actually and visibly present upon the altars (thereby referring to the Commu_-. nion Tables) of the churches, under the form or veil of and in the consecrated bread and wine, prior to and sepa- rately from the act of reception by the communicants. 17. That in the said passages you have mentioned, etc. (similarly as in the 11th preceding Article). 19. That in the said-passages you have maintained the position that the Holy Communion Table is an altar of a sacrificial character, at which the ministering Priests of the Church of Englamd discharge a sacerdotal office at the celebration of the Holy Communion, and that at such celebration there is a living, real, and spiritual ofiering of Jesus Christ by the ministering Priest. 20. That in or by the passage lettered H you have maintained the doctrine that adoration or worship is due to the consecrated bread and wine. Formal charges of Appelant as to passages set out in 7th preceding Article. 21. That in the passages set forth in the seventh pre- ceding Article, you have maintained, etc. (similarly as in 8th and 14th Articles of Charge). 22. That in the said passages you have maintained the doctrine that the Body and Blood of our Lord are actually and objectively present upon the altars (thereby referring to the Communion Tables) of the churches of the said United Church of Frnglcmd and Ireland, under the form or veil of and in the sacramental bread and wine, by virtue of, upon, and after the consecration of the same, irrespec- tively of the faith and worthiness of the communicant, so as to be received by all communicants irrespectively of their faith and worthiness. 23. That in or by the said passages you have maintained the doctrine, that the Body and Blood of our Lord are actually and objectively present upon the altars (thereby- referring to the Communion Tables) of the churches, 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. Privy Council Judgments. 223 24. That in or by tlie said passages you have maintained '871. the doctrine that in the Holy Communion the natural Body shbppakd and Blood of our Saviour Christ are not only in heaven, Bjj^,'jjn, but here ; to wit, upon or before the altars (thereby re- statement. ferring to the Communion Tables) of the churches of the "" " ' United Church of England and Ireland, under the form or veil of bread and wine. 26. That in or by the said passages you have maintained, etc. (similarly as in' the 19th preceding Article of Charge). 27. That in or by the passages lettered N, 0, and S, set forth in the 7th preceding Article, you have maintained the doctrine that adoration is due to Christ, present upon the altars (thereby referring to the Communion Tables) of the churches of the said United Church of JEngla/nd and Jrela/nd 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 Jesus Christ. The case was heard by Sir B. J. PMllimore, the Dean of Hearing in the Arches, on June 16, 1870. Arches. The Biospondent did not appear. A. J. Stephens, Q.C., Dr. Tristram, Archibald, and B. Shaw for the Promoter. Judgment was reserved to July 23, when an elaborate judgment was delivered by the learned Dean of the Arches, in which he held that it was not contrary to law for a Minister of the Church to aifl&rm or promulgate the doctrine, that there is an actual and real presence, external to the act of the communicant in the elements consecrated in the administration of the sacrament of the Holy Communion ; that it is unlawful for a Minister of the Church to teach (1) that there is a visible presence of our Lord upon the altar at the celebration of the Holy Communion, (2) that- ador- ation is due to the Consecrated Elements, From this, decision the Promoter appealed, as also from the interlocu- tory decrees or orders of June 3 and 16, 1870. The case was heard on Nov. 28, 30; Dec. 1, 2, 1871. 224 Prwy Council Judgments. A. J. Stephens, Q.O., Dr. Tristram, AraUhaU, and B. Shaw for the Appellant. The Respondent did not appear. Judgment was reserved to June 8, 1872, when the follow- ing judgment, at the requesi of the Lord Chancellor, was read by the , Archbishop of Tobk (Dr. Thomson): — June 8, 1872. This is an Appeal from the final sentence or decree pro- nounced by the Dean of the Arches Court of Ocmterhury, Judgment, on July 23, 1870, and also from two interlocutory orders made by the same Judge, in a cause of the office of the Judge promoted by Thomas Byard Sheppard, the Appellant, against the Rev. William Ja/mes Early Ben/nett, Vicar of the parish of Frame Selwood, in the diocese of. Bath and Wells, the Respondent, for having offended against the laws ecclesiastical by having, within two years from the date of the institution of the cause, caused to be printed and published certain works in which he is alleged to have advisedly maintained or affirmed doctrines directly contrary or repugnant to the Articles and Formularies of the United Church of England and Ireland in relation to the sacra- ' ment of the Lord's Supper, such works being entitled re- spectively ' Some Results of the Tractarian Movement of 1833,' forming one of the essays contained in a volume entitled ' The Church and the "World,' edited by the Rev. Orhy Shipley, Clerk, printed and published in London in the year 1867 ; ' A Plea for Toleration in the Church of England, in a Letter addressed to the Rev. E. B. Pusey, ' D.D., Regius Professor of Hebrew, and Canon of Ohrist Ohurch, Oxford,' 2nd edition, printed and published in London in the year 1867 ; and 'A Plea for Toleration iu the Ohurch of England, in a Letter to the Rev. E. B. Fusey, D.D., Regius Professor of Hebrew, and Canon of Christ Ohurch, Oxford,' 3rd edition, printed and published in London in the year 1868. The cause was instituted in the Arches Court of Canter., bury by virtue of Letters of Request of the late Lord Bishop Privy Council Judgments. 225 of Bafh and Wells, in accordance -with the provisions of the 1872. Act 3rd and 4th of the Queen, cap. 80. Sh^pIbd The Eespondent was duly cited on July 26, 1869 ; but b^jj^ett no appearance was given- to the citation, and in default judgment. of appearance articles were filed in accordance with the " '~^ ' practice of the Court. in Arohes On October 30th, 1869, the Judge, having previously ""^ ' heard counsel on behalf of the Appellant, directed the Articles to be reformed by omitting such parts thereof as charge the Respondent with contravening the 29th Article of Religion, entitled ' Of the wicked which eat not the Body of Christ in the use of the Lord's Supper.' Prom such decree or order a Petition of Appeal was pre- sented, with the permission of the Judge, and the Appeal came before the Judicial Committee of the Privy Council on Mar. 26th, 1870, when the Lords of the Committee, hav-. ing heard counsel on behalf of the Appellant, agreed to report to Her Majesty their opinion against the Appeal, and that the decree or order appealed from ought to be affirmed, and the cause remitted, with all its incidents, to the Judge of the Court from which the same was appealed. An Order in Council, confirming, the report of the Judicial Committee, was afterwards made. The cause was accordingly remitted to the Arches Court oi Canterbury, and on June 3rd, 1870, in default of appear- ance on the part of the Respondent, the Judge of the Court, having heard counsel on behalf of the Appellant, himself reformed the Articles, and admitted the same as so reformed, notwithstanding that the counsel for the Pro- moter objected to the reformation of the Articles so made by the Judge, as being at variance with, and exceeding the reformation directed by, the order of October 30th, 1869. On June 16th, 1870, the cause came on for hearing, and an application was then made by counsel that the passages in the 5th, 6th, 7th, and 32nd Articles, which had been struck out by the Judge in his reformation of the Articles, on June 3rd, might be reinstated. The Judge, however, 226 1872. Bennett. Judgment. Judgment in Court of the Arches. Appeal. Eespondent does not Considera- tion of Appeal from inter- locutory ;order. Privy Council Judgments. made no further order thereon, and the hearing of the cause was continued. On July 23rd, 1870, the Judge, by his interlocutory de- cree, having the force and efifect of a definitive sentence in ■writiag, pronounced that ^le Proctor for the Appellant had failed in sufficiently proving the Articles, and dismissed the Respondent from the suit. The present Appeal is from so much of the interlocutory decree or order of June 3rd, 1870, as in effect directs the passages in the 6th, 6th, 7th, and 32nd Articles to be struck out ; also from the interlocutory decree or order of June 16th, 1870, whereby, in effect, the Judge declined to allow such passages to be reinstated, and from the final sentence or decree of July 23, 1870. The Respondent has not appeared on the hearing of the Appeal, and the Court has not had that assistance from the argument of counsel in his behalf, which is especially de- sirable in cases like the present, where the Committee are called upon to advise Her Majesty on matters of grave importance as a Tribunal of Ultimate Appeal. The Counsel for the Appellant first opened the Appeal from the interlocutory order of the Judge of June 3, 1870, whereby he adhered to the reformation that he had made in the 6th, 6th, 7th, and 32nd Articles of Charge. With regard to the reformation of the Articles, the course originally taken seems to be sanctioned by usage ; but it appears to their Lordships to be a course attended with considerable inconvenience, and one which might lead to great delay, if not to a miscarriage. The original order of the Arches Court directed the Articles of Charge to be reformed, by omitting all such parts thereof as charged the Respondent with contra- vening the 29th Article of Religion, and this order was affirmed on appeal, on the recommendation of this Com- mittee. The form of the order leaves open to further determi- nation by the Court what parts of the Articles of Charge do, in effect, charge the Respondent with contravening the 29th Article of Religion, and thus opens the door to further Privy Council Judgments. 227' discussion and (as in this case) to a further appeal. In the mean time the Judge himself strikes out such parts of the Articles of Charge as he conceives to be within the previous order of the Court, and then proceeds to hear the cause with the record so altered. If he should have erroneously struck out parts not affected hj the order, the attention of the Accused, in his answer or evidence, will not have been called to the parts struck out, for he would be entitled to consider them as no longer forming part of the charge ; but if the Promoter, on appeal, should succeed in restoring the passages in question, it would obviously become neces- sary to allow the Respondent an opportunity of meeting the restored charges. In the present case we have thought it best to allow the Appellant to conduct his argument as if the passages which he avers should not have been struck out still remained part of the record, and to found any argument upon such passages as he might be advised, provided the argument did not seek to establish a contravention by the Respondent of the 29th Article of Religion. But we think it right to observe that it would be proper, in future, that before any appeal be presented to Her Majesty in Council, in respect of an order directing the reformation of Articles of Charge or other pleadings, the actual reformation which appears to the Judge to be re- quired, should be made by him on the face of the order, so that on appeal the very passages omitted should be clearly brought under the judgment of this Committee, instead of an order directing, by general reference, the nature of the alteration required. On proceeding to the consideration of the appeal from the final decree of the Court of Arches, there is one point which was prominently brought forward in the opening of the case by the Counsel for the Appellant, which it appea'rs to their Lordships may be separately disposed of. The Articles of Charge set forth several passages from the 2nd and 3rd editions of a work pubHshed by the Re- spondent, called 'A Plea for Toleration in the Church of England, in a letter to the Rev. H. B. Pmey.' Now the a2 1872. Of appeal from final decree of Court of the Axclies. To hold a visible presence is uuluwtul. 228 Privy Council Judgm.e7its. 1872. '2nd edition of this work was published in 1867, and the SH^i^RD ^^^ edition in 1868. The 3rd edition contains important »; , corrections of expressions in the 2nd edition, which ex- Ju(%ment. pressions form part of the charge against the Respondent. ' •~~~' The original expressions *nd their correction are fairly- stated and set forth by the Appellant in the 7th Article of Charge. The learned Judge in the Court below has stated, that he has no doubt that the expres- sions originally used by the Respondent — viz. ' the real actual and visible presence of the Lord upon the altars To maintain of our churches ; ' and again, ' who myself adore and Christ in the teach the people to adore the Consecrated Elements, Eiementsia believing Christ to be in them — believing that under unlawful. tijgij. yeii ig the sacred Body and Blood of our Lord and Saviour Jesus Christ ' — ' contravened the plain and clear intent of the Formularies of the Church.' And the learned Judge has also set forth the alterations made in the 3rd edition of the Respondent's work of these statements, and on the passages so altered has found that the Respondent has not been guilty of a contravention of the Articles as alleged by the Promoter. Mr. Bennetffs own words, in adopting the altered words, are as follows : — ' 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 learned Judge has regretted that these altera- tions made by Mr. Bennett in his 3rd edition are unac- companied by any expression, of regret or self-reproach on the Respondent's part, for the mischief which his crude and rash expressions have caused. Their Lordships feel obliged to adopt the censure of the leai'ned Judge on this point. Distinction Upon thijs state of facts the learned Counsel urged that RnSTrT ^""^ there had beet no retractation of the original user, and that,- editions. in default of actual retractation, the learned Judge should ha%'e condemned the Revspondent in • respect of the words Privy Council Judgments. 229 used by him in the 2nd edition of his work, though varied 1872. by the substituted words in the 3rd edition, and he cited sh^^rd several authorities for the purpose of supporting this argument. Bat, without regarding the Respondent's language as a retractation, their Lordships think that it is competent for them to take into consideration any explanation that an accused person may give of the language used by him, and to determine whether such explanation is made hona fide and is entitled to credit. They attach great importance to the' fact that the 3rd edition was published before suit, and they think that they may accept his later words as the more correct expression of the Respondent's m^eaning. In proceeding to consider the substance of the charges Pi-incipies against the Respondent, their Lordships think it desirable governed™ to recall to mind the principles on which former decisions aeoMons in similar cases have proceeded. In the cases of Williams and Wilson (ante, p. 94) their Lordships laid down as follows : — ' ' These prosecutions are in the nature of criminal pro- inthe'Es- ceedings, and it is necessary that there should be precision Tlews^case and distinctness in the accusation. The Articles of Charge must distinctly state the opinions which the Clerk has advisedly maintained, and set forth the passages in which those opinions are stated ; and, further, the Articles must specify the doctrines of the Church which such opinions or teaching of the Clerk are alleged to contravene, and the particular Articles of Religion or portions of the Formu- laries which contain such doctrines. The accuser is, for the purpose of the charge, confined to the passages which are included and set out in the Articles as the matter of the . accusation ; but it is competent to the accused party to explain from the rest of his work the sense or meaning of any passage or word that is challenged by the accuser.' So in the judgment in the Gorham, case : — ' The question which we have to decide is, not whether ;„ the Gor- the opinions are theologically sound or unsound, not i'''™<=»se, whether upon some of the doctrines comprised in these opinions, other opinions opposite tO' them may or may not 230 1872. Bennett. Judgment. • Privy Council Judgments. be held with equal or even greater reason by other learned and pious Ministers of the Church; but whether these opinions now under our consideration, are contrary or re- pugnant to the doctrines which the Church of England, by its Articles, Formularies, aoid Rubrics, requires to be held by its Ministers, so that upon the ground of those opinions the Appellant can lawfully be excluded from the benefice.' {Ante, p. 2'2.) ' This question must be decided by the Articles and the Liturgy ; and we must apply to the construction of those books the same rules which have been long estab- lished, and are by law applicable to the construction of all written instruments. We must endeavour to attain for ourselves the true meaning of the language employed, assisted only by the consideration of such external or historical facts as we may find necessary to enable us to understand the subject-matter to which the instruments relate, and the meaning of the words employed.' {Ante, p. 23.) ' There were difierent doctrines or opinions prevailing or under discussion at the times when the Articles and Liturgy were framed, and ultimately made part of the law ; but we are not to be in any way infiuenced by the particular opinions of the eminent men whb propounded or discussed them, or by the authorities by which they may be supposed to have been influenced, or by any supposed tendency to give preponderance to Calvinistic or Arminian doctrines. The Articles and Liturgy, as we now have them, must be considered as the final result of the discussion which took place ; not the representation of the opinions of any parti- cular men, Calvinistic, Arminian, or any other ; but the conclusion which we must presume to have been deduced from a due consideration of all the circumstances of the case, including both the sources from which the declared doctrine was derived, and the erroneous opinions which were to be corrected.' {Ante, p. 23.) ' This Court has no jurisdiction or authority to settle matters of faith or to determine what ought in any case to be the doctrine of the Church of England. Its duty extends only to the considera- tion of that which is by law established to be the doctrine Privy Council Judgments, 231 of the Churcli of England upon the true and legal construe- 1872* tion of the Articles and Formularies.' {Ante, p. 36.) sbotpIbd Lord Stowell had long before said, in the case of King's benkett Proctor V. Stone, ' If any Article is really a subject of judgmRnt. dubious interpretation, it would be highly improper for the ^ ' ' Court to fix on one meaning and prosecute all those who hold a contrary opinion regarding its interpretation. It is a very different thing where the authority of the Articles is totally eluded, and the party deliberately declares the intention of teaching doctrines contrary to them.' (1 Con- sist. Rep., p. 429.) To the principles thus laid down their Lordships will adhere in the present case. The attention of the Court has been directed to the sue- Principle t* ... be applied cessive revisions of the Book of Common Prayer, and to in dealing alterations or omissions which have been made in it at dif- tions in the, ferent times. Changes by which words or passages incul- Bookr eating particular doctrines, or assuming a belief in them, have been struck out, are most 'material as evidence that the Church has deliberately ceased to afi&rm those doctrines in her public services. At the same time it is material to observe that the necessary effect of such changes, when they stand alone, is that it ceases to be unlawful to contra- dict such doctrines, and not that it becomes unlawful to maintain them. In the public or common prayers and devotional oriices of the Church all her members are ex- pected and entitled to join ; it is necessary, therefore, that such forms of worship as are prescribed by authority for general use should embody those beliefs only which are assumed to be generally held by members of the Church. In the case of West&rton v. lAddell (and again in Martin v. ^ stricter *■ o vme 18 to DB Maakonochie) their Lordships say, ' In the performance of appuea to . T . TTiii-n matters ol the services, rites, and ceremonies ordered by the i'rayer ntuai than Book, the directions contained in it must be strictly ob- of opinion, served ; no omission and no addition can be allowed.' (Ante, pp. 74, 119.) If the Minister be allowed to introduce at his own will variations in tlie rites and ceremonies 232 Privy Council Judgments. Sheppaed V. Benhett. Judgment. Ti-ipartite nature of charge 1872. that seem to Mm to interpret the doctrine of the service in a particular direction, the service ceases to be what it was meant to be, comm.on ground on which all Church people may meet, though they differ about some doctrines. But the Church of England has wisely left a certain latitude of opinion in matters of belief, and has not insisted on a rigorous uniformity of thought which might reduce her communion to a narrow compass. ' Dealing only with the 3rd edition of the Respondbnt's work, and having regard to their former decision, that the Kespondeut. charge of contradicting the 29th Article of Religion as to reception of the wicked should be struck out, their Lord- ships may consider the remaining charges against the Respondent under three heads : — 1. As to the presence of Christ in the Holy Communion. 2. As to sacrifice in the Holy Commwmon. 3. As to adoration of Christ present in the Holy Gom- mwnion. , The Respondent is charged with maintaining under these three heads the following propositions :■ — ■ 1. That in the sacrament of the Lord's Supper there is an actual presence of the true Body and Blood of our Lord in the consecrated bread and wine, by virtue of and upon the consecration without or external to the communicant, and irrespective of the faith and worthiness of the com- municant, and separately from the act of reception by the communicant, and it was contended by counsel under this head that the true Body of Christ meant the natural Body. 2. That the Communion Table is an altar of sacrifice, at which the Priest appears in a sacerdotal position at the celebration of the Holy Communion, and that at such cele- bration there is a great sacrifice or offering of our Lord by the ministering Priest, in which the mediation of our . Lord ascends from the altar to plead for the sins of men. Astoadora- 3. That adoration is due to Christ present upon the under the altars or Communion Tables of the churches, in the Sacra- iiementB. ment, under the form of bread and wine, on the ground Alleged doc- trine of Eespondeut as to ' tlie Presence.* As to the sacriticlal character of the Lord's Supper. Privy Council Judgments. 233 that under their reil is tlie Body and Blood of ohr 1872. Lord. „ Sheppard The several positions so maintained are averred, each „ "• ^ _, ' BENNFfT. and all, to be repugnant to the doctrines of our Church, as judgment, set forth in the Articles and Formularies in tha't behalf ' ' specially alleged. Their Lordships are bound to consider, in the first place. The dcmtrme what has been affirmed and what has been denied, in chSlhon reference to the doctrine to which these three statements ^^ . subjects. relate. The 4th Article of Religion affirms : — ' That Christ did truly rise again from death and took The 4th . . . . Article again His body, with flesh, bones, and all things appertaining to the perfection of man's nature, wherewith He ascended into heaven ; and there sitteth until He return to judge all men at the last day.' In the 28th Article of Religion it is affirmed.: — a. ' The Supper of the Lord is not only a sign of the The 28th love that Christians ought to have among themselves, one to another, but rather is a sacrament of our redemption by Christ's death ; insomuch that to such as rightly, worthily, and with faith receive the same, the bread which we break is a partaking of the Body of Christ, and likewise the cup of blessing is a partaking of the Blood of Christ.' 6. ' Transubstantiation (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 Scripture, overthroweth the nature of a sacrament, and hath given occasion to many superstitions.' c. ' The Body of Christ is given, taken, and eaten in the Supper only after an heavenly and spiritual manner.' d. ' The mean whereby the Body of Christ is received and eaten in the Supper, is faith.' e. ' The sacrament of the Lord's Supper was not by Christ's ordinance reserved, carried about, lifted up, or worshipped. ' By the 29th Article of Religion it is affirmed : — /. ' The wicked and such as be void of a lively faith, xhe 29th although they do carnally and visibly press with their ■*^"''^- 234 1872. Sheppabd V. Bennett. Judgment. The 3lBt Article. Tlie Catechism. Privy Council Judgments. teeth (as St. Augustine saith) tlie sacrament of tlie 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.' By the 31st it is affirmed": — g. ' The offering of Christ once made is that perfect redemption, propitiation, and satisfaction for all the sins of whole world, both original and actual ; and there is none other satisfaction for sin, but that alone.' And — h. ' The sacrifices of masses, in which it was commonly said that the Priest did offer Christ for the quick and the dead to have remission of pain or guilt, were blasphemous fables and dangerous deceits.' i. In the Catechism it is stated that 'the Body and Blood of Christ are verily and indeed taken and received by the faithful in the Lord's Supper.' Their Lordships proceed, with these passages before them, to examine the charges made against the Respondent. The first relates to the presence of the Body and Blood of Christ in the Holy Communion. First as to the Presence. 1. The Church ofUngland in the passages just citedholds and teaches affirmatively that in the Lord's Supper the Body and Blood of Christ are given to, taken, and received by the faithful communicant. She implies, therefore, to that extent, a presence of Christ in the ordinance to the soul of the worthy recipient. As to the mode of this pre- sence she affirms nothing, except that the Body of Christ is ' given, taken, and eaten in the Supper only after an heavenly and spiritual manner,' and that ' the mean whereby the Body of Christ is received and eaten is faith.' Any other presence than this — any presence which is not a presence to the soul of the faithful receiver — the Church does not by her Articles and Formularies affirm or require her Ministers to accept. This cannot be stated too plainly. The question is, however, not what the Articles and For- mularies affirm, but what they exclude. The Respondent maintains a presence which is (to use his own expression) ' real, actual, objective,' a presence in the Sacrament, a pre- Privy Council Judgments. 235 sence upon the altar, under the form of bread and wine. 1872. He does not appear to have used the expression ' in the gH^^m, Consecrated Elements' in his 3rd edition ; this is one of the -^^^^^ points on which the language of the 2nd edition was altered, judgment. And the question raised by the Appeal is, whether his " ' ' position is contradictory or repugnant to anything in the Articles or Formularies, so as to be properly made the ground of a criminal charge. Setting aside the declaration at the end of the Commu- The Ee- nion Office, which will be presently considered, we find Srinedoes nothing in the Articles a,nd Formularies to which the "°ri,y°con. Respondent's position is contradictory or repugnant. 28th ArtMe The statement in the 28th Article of Eeligion that the oi ReUgion. Body of Christ is given, taken, and eaten in the Lord's Supper, only after a heavenly and spiritual manner, ex- cludes undoubtedly any manner of giving, taking, or re- ceiving which is not heavenly or spiritual. The assertion of a ' real, actual, objective ' presence, introduces, indeed, terms not found in the Articles or Formularies ; but it does not appear to assert, expressly or by necessary implication, a presence other than spiritual, nor to be necessarily con- ^tradictory to the 28th Article of Religion. The 29th Article of Religion, which is entitled ' of the Northe . . „ 29th. Wicked which eat not the Body of Christ in the use of the Lord's Supper,' and which affirms that the wicked and such as be void of a lively faith, ' are in no wise partakers of Christ,' may suggest, indeed, an inference unfavourable to the Respondent's statements, but cannot be said to be plainly contradictory of them or necessarily to exclude them. The two propositions, that the faithful receive Christ in the Lord's Supper, and that the wicked are in no wise partakers of Christ, when taken together, do not appear to be contradicted by the statement that there is a real, actual, objective presence of the Body and Blood of Christ in the Sacrament after a heavenly and spiritual manner. The ' Declaration of Kneeling ' should now be con- Considera- = tion of ' The sidered. It as as follows : — Black ' Whereas it is ordained in this ofiElce for the administra- 236 1872. Bennett. Judgment, ■Which was altered on ro-insertion ia 1GG3. The Appel- lant's con- Privy Council Judgments. tioii of the Lord's Supper, that the communicants should receive the same kneeling (which order is well meant, for the signification of our humble and grateful acknowledg- ments of the benefits of Christ therein given to all worthy- receivers, and for the avdftding of such profanation and disorder in the Holy Communion, as might otherwise ensue_), yet, lest the same kneeling should by any persons, either out of ignorance or infirmity, or out of malice and obstinacy, be misconstrued and depraved ; It is hereby de- dared, That thereby no adoration is intended, or ought to be done, either nnto the Sacramental Bread or Wine there bodily received, or unto any corporal presence of Christ's natural Mesh 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.' This declaration originally appeared in the second Prayer Book of Edward VI., a.d. 1562, in vrhich book the position of kneeling was positively enjoined upon those who received the Sacrament. It was issued by the King, and was ordered by the Council to be appended to the Prayer Book, but after the book had received the sanction of Parliament, so that it was not of statutory authority. From the Prayer Book of lElizabeth (1659) the declaration was omitted ; perhaps be- cause it had been incorporated in the Articles of Religion of 1562. It was omitted from the Thirty-nine Articles of Re- ligion in 1562. In 1662 it was inserted in the present Prayer Book, and became of equal authority with the rest of the Prayer Book. The form of the declaration was somewhat altered ; the words ' unto any real and essential presence there being of Christ's natural Flesh and Blood,' were altered to 'unto any corporal presence of Christ's natural Flesh and Blood,' and the words 'true natural Body ' became ' natural Body.' It was urged for the Appellant that, since the Church recognises only one Body of Christ, the natural and now. Privy Council Judgment/i. 237 glorified Body which is spoken of in the Ponrth Article for 1872. Religion, and since the declaration asserts that this Body is gnm?^ ' in heaven and not here,' the only presence in the Sacrament ■which can be held consistently with the declaration is a presence to the soul of the communicant. It was insisted that the word * natural ' applied to the this point. Body of Christ can convey no additional meaning, unless it be used to distinguish the true Body of Christ, which is His nataral Body, from the Church, which is His Body in a mystical or figurative sense ; and that the expression ' cor- poral presence ' cannot mean a presence in the manner or under the conditions in and under which material bodies are present or exist in space ; that it must mean or include any presence whatever in the elements, as contra-distinguished from a presence to the spiritual apprehension of the re- ceiver. There can be no question, it was argued, as to the mode or manner of the presence : for no mode or manner of presence is conceivable which would reconcile the propo- sition that the true Body of Christ is in the elements, with the proposition that the natural Body is in heaven and not here. Their Lordships are of opinion that these inferences, whether probable or not, are by no means of that plain and certain character which the conclusion they are asked to draw from them requires. The matters to which they relate are confessedly not comprehensible, or very imper- fectly comprehensible, by the human understanding ; the province of reasoning as appHed to them is therefore very limited ; and the terms employed have not, and cannot have, that precision of meaning which the character of the argument demands. Concerning the mode of reception, of the Body and Blood of Christ by the faithful commu- nicant, the Church affirms nothing more than that it is heavenly and spiritual, and that the mean whereby we re- ceive is faith. Nor can their Lordships accede to the argument that the 'Corporal' words ' corporal presence of Christ's natural Flesh and equi™umt Blood ' must be understood as the Appellant understands egspniiai""'' them, and the phrase ' corporal presence ' regarded merely 238 1872. Sheppard V, Bennett. Judgment. to a sacrifi- cial altar. The Chnroh of England lias no altar. Privy Council Judgments. as an equivalent for the different expression in Ken of which it was substituted. On the contrary, it is at the least pro- bable that, as the declaration itself was introduced in order to conciliate scruples in one quarter, the alteration made in it was designed to remove "Objections entertained against it in another. Their Lordships could not advise the ' condemnation of a Clergyman for maintaining that the use in 1662 of the word ' corporal ' instead of the words ' real and essential ' in the Declaration of Kneeling was an intentional substitution, im- plying that there may be a real or essential presence as dis- tinguished from a corporal presence. The Respondent has nowhere alleged in terms a corporal presence of the natural Body of Christ in the elements ; he has never affirmed that the Body of Christ is present in a ■ corporal ' or ' natural ' manner. On the contrary, he has denied this, and he speaks of the presence in which he be- lieves as ' spiritual,' ' supernatural,' ' sacramental,' ' mys- tical,' 'ineffable.' 2. The next charge against the Eiespondent is, that he has maintained that the Communion Table is an altar of sacrifice, at which the Priest appears in a sacerdotal position at the celebration of the Holy Commuion, and that at such celebration there is a great sacrifice or offering of our Lord by the ministering Priest, in which the mediation of our Lord ascends from the altar to plead for the sins of men. The Church of England does not by her Articles or Formularies, teach or affirm the doctrine maintained by the Respondent. That she has deliberately ceased to do so would clearly appear from a comparison of the present Commu- nion Office with that in King Edward's First Book, and of this again with the Canon of the Mass in the Sarum Missal. This subject was fully discussed before their Lordships in Westerton v. Liddell, when it was decided that the ' change in the view taken of the Sacrament naturally called for a corresponding change in the altar. It was no longer to be an altar of sacrifice, but merely a table at which the com- Privy Council Judgments. ' 239 municants were to partake of the Lord's Supper.' (Ante, 1872. p. 70.) "^^ ^^^^^ The 31st Article of Religion, after laying down the pro- «. position (which is adopted also, in words nearly the same, . _ " in tlie Prayer of Consecration), that ' the offering of Christ ■■ -" once made, is that perfect redemption, propitiation, and satisfaction for all the sins of the whole world, both original and actual,' and that ' there is none other satisfaction for sin but that alone,' proceeds, on the strength of these proposi- tions, to say that ' 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 guilt, were blasphemous fables and dangerous deceits.' It is not lawful for a Clergyman to contradict, expressly Norany pro- or by inference, either the proposition which forins the first oaeriig* part of this Article, or any proposition plainly deducible from the condemnation of propitiatory masses which forms the second part of it, and is stated as a corollary to the first. It is not lawful for a Clergyman to teach that the sacrifice or offering of Christ upon the Cross, or the redemption, pro- pitiation, or satisfaction, wrought by it, is or can be repeated in the ordinance of the Lord's Supper ; nor that in that ordinance there is or can be any sacrifice or offering of Christ which is efficacious in the sense in which Christ's death is efficacious, to procure the remission of the guilt or punish- ment of sins. It is well known, however, that by many Divines of Quaiiaed use eminence, the word sacrifice has been applied to the Lord's 'sacrifice' Supper in the sense not of a true propitiatory or atoning sacrifice, effectual as a satisfaction for sin, but of a rite which calls to remembrance and represents before God that one true sacrifice. To take one example. Bishop Bull says : ' In the Eucharist, then, Christ is offered, not hypostati- as in Bishop cally, as the Trent Fathers have determined, for so He was but once offered, but commemoratively only ; and this com- memoration is made to God the Father, and is not a bare 240 * Privy Council Judgment?. 1872. remembering or putting ourselves in mind of Him. For every Sheppakd sacrifice is directed 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 ianages of the precious Blood of Christ shed for us, find 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 represented, beseeching Him for the sake thereof to bestow His heavenly blessings on us.' (Bull's Works, vol. ii., p. 22.) Distinction The distinction between an act by which a satisfaction for between a ., ^ . ^.^,. . thing and sm IS made, and a devotional rite by which the satisfaction presentation SO made is represented and pleaded before God, is clear, t ereof. though it is liable to be obscured, not only in the apprehen- sion of the ignorant, but by the tendency of theologians to exalt the importance of the rite till the distinction itself well-nigh disappears. To apply the word sacrifice in the sense in which Bishop Bull has used it to the ordinance of the Lord's Supper, though it may be liable to abuse and misapprehension, does not appear to be a contravention of any proposition legitimately deducible from the thirty-ninth of the Be- Article. It is not clear to their Lordships that the Respon- se ot™aori- dent has so used the word ' sacrifice ' as to contradict the doubt'tui. language of the Articles. Thiraiy, as 3. Their Lordships now proceed to the third charge, to adoration, ^vhich relates to the adoration of Christ present in the Sacrament. The 20th and 27th Articles of Charge contain the false doctrines alleged to be held by Mr. Bennett. The 20th charges that he afl&rms the doctrine that adoration or wor- ship is due to the consecrated bread and wine. The 27th, that he afl&rms that adoration is due to Christ present upon the altars of our churches in the sacrament of the Holy Communion, under the form of bread and wine, on the ground that under their veil is the sacred Bodyand Blood of our Lord (the passages referred to for proof are set out in the 7th Article). The 31st Article charges that these doctrines are con- Privy Council Judgments. 241 trary to the 28tl2 Article of Religion, and the Declaration on 1872. Kneeling. , The passages relied on as the grdund of these charges are "• thefoHowing:- f^™: ° Judgment. ' The reader will observe that in the two first editions, "~ — ' ' at page 3, the words were, " tU real actual and visible uedZ'b "' presence of our Lord wpm the altars of our churches:' In the -^pp^"™*- present edition he will find at page 2 the following words substituted : " fhe real and actual presence of ow Lord under the form of bread and wine upon the altars of our churches." He will also observe that, at page 14 in the former editions, the words were, "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." He will now find the following words substituted : " who myself adore and teach the people to adore Christ present in the Sacrament, under the form of bread and wine, believing that wnder their veil is the sacred Bodg and Blood of my Lord, and Saviour Jesus Christ." ' ' The three great doctrines on which the Catholic Church has to take her stand are these : — I. The Real Objective Presence of our Blessed Lord in the Eucharist ; II. " The sacrifice offered by the Priest; " and. III. The adoration due to the Presence of our Blessed Lord therein." ' ' Well, I do not know what others of my brethren in the Priesthood may think — I do not wish to compromise them by anything that I say or do — ^but seeing that I am one of those who bum lighted candles at the altar in the daytime ; who use incense at the Holy Sacrifice ; who use the eucharistic vestments ; who elevate the Blessed Sacra- ment ; who myself adore, and teach the people to adore, Christ present in the Sacrament, under the form of bread and wine ; believing that under their veil is the sacred Body and Blood of my Lord and Saviour Jesus Christ; seeing all this, it may be conceived that I cannot rest very much at ease . under the imputations above recited." Their Lordships agree with the learned Judge of the Court Adoration of below that the doctrine charged in the 20th Article — oratedlie- 242 Privy Council Judgments. 1872. Bennett. Judgment, menfcs con- ' demned. Adoration of Christ under the form of br-ead and ■^'ine consi- dered. namely, that adoration is due to the Consecrated Elements, is contrary to law, and must be condemned. But they have admitted, as the learned Judge has done, Mr. Bennetfs ex- planation of that language, and therefore they are not called upon to condemn Mr. Bennett under the 20th Article. The 27th Article of Charge therefore alone remains for decision ; it is as follows : — ' That in or by the passages lettered N, 0, and S, here- inbefore set forth in the seventh preceding Article, you have maintained or affirmed and promulgated the doctrine that adoration is due to Christ, present upon the altars (thereby referring to the Communion Tables) of the churches of the said United Church of England and Ireland in the sacra- ment of the Holy Comm.union 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 Jesus Christ.' Their Lordships have now to consider whether or not the passages from the Eespondent's writings above set forth are necessarily repugnant to or contradictory of the 28th Article of Religion, or of the Declaration of Kneeling as alleged in the 31st Article of Charge. The Declaration of Kneeling states that, by the direction that the communicants shall receive the Consecrated Elements kneeling, ' no adoration is intended or ought to be done either to the sacramental bread and wine there bodily re- ceived, or to any corporal presence of Christ's natural Flesh and Blood.' According to this declaration, neither the elements nor any corporal presence of Christ therein ought to be adored. The 28th Article lays down that ' the sacrament of the Lord's Supper was not by Christ's ordinance reserved, car- ried about, lifted up, or worshipped.' In the 25th Article it has been affirmed 'that the Sacraments were not ordained by Christ to be gazed upon, or to be carried about, bat that we should duly use them.' It 'was laid down in Martm v. Maakonochie' th&i such acts as the elevation of the cup and paten, and kneeling Privy Council Judgments. and prostration of the Minister before them, were unlawful, because they were not prescribed in the Rubric of the Communion Office, and because acts not prescribed were to be taken as forbidden. Their Lordships in that judg- ment adopted the words of the Committee in Westerton v. Liddell ; ' for the performance of the services, rites, and ceremonies ordered by the Prayer Book, the directions contained in it must be strictly observed ; no omission and no addition can be permitted.' (Ante, pp. 74, 119.) It follows, then, that the Church of England has for- bidden all acts of adoration to the Sacrament, understanding by that the Consecrated Elements. She has been careful to exclude any act of adoration on the part of the Minister at or after the consecration of the elements and to explain the posture of kneeling prescribed by the Rubric. If the charge against Mr. Bennett were that he had performed an outward act of adoration on any occasion in the service, the principles laid down in Martin v. Machonoehie would apply to this ease. Such an act could not be done except in the service, because the Sacrament may not be 're- served.' But even if the Respondent's words are a con- fession of an unlawful act, it is questionable whether such a confession would amount to false doctrine. And it is also fair to remember, in the Respondent's favour, that the judgment in the case of Martin, v. Machonoehie, which established the unlawfulness of introducing acts of adora- tion, was not delivered until December 23, 1868, after the publication of the words that are now impugned. Some of their Lordships have doubted whether the word ' adore,' though it seems to point rather to acts of worship, such as are forbidden by the 28th Article, may not be construed to refer to mental adoration, or prayers addressed to Christ present spiritually in the Sacrament, which does not neces- sarily imply any adoration of the Consecrated Elements or of any corporal or natural presence therein. Upon the whole, their Lordships, not without doubts and division of opinions, have come to the conclusion that this charge is not so clearly made out as the rules which govern penal proceedings require. Mr. Bennett is entitled e2 243 1872. Bennett. Judgment Application of doctrine of the Court to outward acts, and to Re- - spondent's words. The Respon- dant is en- titled to the benefit of the doubt. 244 Privy Council Judgments. Comments on the judgment of i-ii- B. J. PhUlimore. Short ox- tracts only mislead. to the benefit of any doubt that may exist. TTi'h language has been rash, but as it appears to the majority of their Lordships that his words can be construed so as not to be plainly repugnant to the two passages articled against them, their Lordships will give him the benefit of the doubt that has been raised. Their Lordships having arrived at the conclusion that they must a,dvise Her Majesty that the Appeal must be dismissed, feel bound to add that there is much in the judgment of the learned Judge in the Court below with which they are unable to concur. The learned Judge has endeavoured to settle by a mass of authorities what is the doctrine of the Church of England on the subject of the Holy Communion. It is not the part of the Court of Arches nor of this Committee, to usurp the functions of a synod or council. Happily their duties are much more circumscribed — ^namely, to ascertain whether certain state- ments are so far repugnant to, or contradictory of, the language of the Articles and Formularies, construed in their plain meaning, that they should receive judicial con-i dem nation. Their Lordships will not attempt to examine in detail the catena of authorities which the Judge of the Arches has brought together, nor that of the learned Counsel who appeared for the Appellant. No mode of argument is more fallacious on a subject so abstruse and of so many aspects ; short extracts, even where candidly made, as in +his case, give no fair impression of an author's mind. Thus Dean Jachsmi is quoted in. the judgment; but the quotation omits the preceding sentence, which gives to the whole passage a meaning difficult to reconcile with the purpose for which it is used ; while the opinion of this eminent Divine wotild have been more correctly represented by referring also to the following remarkable passage in a previous chapter of this work : ' What need, then, is there of His bodily presence in the Sacrament, or of' any other presence than the influence or emission of virtue from His heavenly sanctuary into our souls ? He has left us the consecrated elements of bread and wine, to be unto us Privy Council Judgments. 245 more than the hem of His garment. If we do hut touch 1872. and taste them with the same faith by which this woman sheppIed touched the hem of His garment, our same faith shall BEKNErr. make us whole.' (Works, iii., x., 55.) Several of those judgment. who are cited by the learned Judge are living persons of greater or less note, who cannot rank as authorities for the ofifyhi"per- history of a great controversy.* sons do not One of the authorities is so questionable, that it requires authorities. a passing examination. The learned Judge, after quoting Jttei^aoes the 28th Article of Religion, introduces as * a eontempo- ^l^^^^ tranea expositio, from the compiler of this article, which ^^« Court, sannot, I think, be gainsaid,' a letter from Bishop Gheast to Cecil, under the date 1556 (probably a mistake for 1566) explaining the sense which he put upon the word ' only ' in the 28th Article. Gheast does not say that he was the ' compiler of the 28th Article, all but one sentence of which had been in the Articles of 1552; and the con- text shows that he used the word ' Article ' only of this sentence, which, he says, was ' of mine own penning.' Upon the faith of this letter, genuine or not, avowedly written for a personal purpose ('for mine own purgation '), is founded an exposition of the words 'only after a heavenly * Among the authorities relied on hy Sir E. J. Phillimore in his elaborate judgment, occupying one hundred pages of the Law Reports (Ad. and Ec., vol. iii., p. 167), are Katramn, MKiic, Hooker, Jewel, Andrewes, Laud, Donne, Overall, Herbert, J. Taylor, Hey, Pearson, Savaria, Jackson (Dean of Peterborough), Cosin, Brevint, Thorn- dike, Bramhall, Sparrow, Tillotson, Yardley, Beveridge, Nicholson, Sherlock, Seeker, Ken, Field, Poynet, St. Augustine, Cranmer, Bull, Waterland, South, Barrow, Wilson, Cleaver, Keble ; and among living persons, Dr. H. P. Liddon, Bishop of St. David's, Bishop of Carlisle (Dr. Goodwin), Bishop of Salisbury (Dr. Moberly), Bishop of Ely (Dr. Browne), Pusey. The method of arriving at a judi- cial conclusion by the examination and citation of authorities, is con- demned as fallacious by the Committee, the true question being, not whether the doctrines libelled can be supported by a catena of authorities, but whether such doctrines contradict the Articles and For- mularies of the Church. If they do so contradict the Articles and Formularies, the citation of great names is no protection ; if they do not, such citation is unnecessary. 246 Privy Council Judgments. The Court takes its stand on the Articles and Liturgy as they now exist. Citations only illus- trate the liberty which has heen enjoyed. and spiritual manner,' as meaning that though a man 'took Christ's Body in his hand, received it with his mouth, and that corporally, naturally, really, substantially, and carnally .... yet did he. not for all that see it, feel it, smell it, nor taste it.' Upon this alleged exposition their Lordships feel themselves free to observe that the vv^ords ' only after a heavenly and spiritual manner,' do not appear to contain or involve the words ' corporally, naturally, and carnally,' but to exclude them ; and that it is the Article, and not the questionable comments of a donbtfiil letter written for personal inotives, which is binding on the Clergy and on this Court. Their Lordships recall once more, in acknowledging the learning that has been brought to bear upon this case, the principle which this Committee has long since laid down; ' There were different doctrines or opinions prevailing or under discussion at the. times when the Articles and Liturgy were framed, and ultimately made part of ths law ; but we are not to be in any way influenced by the particular opinions of the eminent men who propounded! or discassed them, or by the authorities by which they may be supposed to have been influenced, or by any supposed tendency to give preponderance to Calvinistic or Arminian doctrines. The Articles and Liturgy, as we now have them, must be considered as the final result of the dis- cussion which took place ; not the representation of the opinions of any particular men, Calvinistic,* Arminian, or any other ; but the conclusion which we must presume to have been deduced from a due consideration of all the cir- cumstances of thecasp, including both the sources from which the declared doctrine was derived, and the erroneous opinions which were to be corrected.' (Ante, p. 23.) Citations from established authors may be of use to show thab ' the liberty which was left by the Articles and Formu- laries has been actually enjoyed and exercised by the members and Ministers of the Church of England' But, to say the least, very few of the quotations in the judg- ment exhibit the same freedom of language as do the extracts from Mr. Bennett. And after every authority had Privy Council Judgments. 1J47 been examined, there would still remain tlie question that 1872. is before this Committee, whether the license or liberty is s^^^-^j, really allowed by the Articles and Formularies — whether »• Benneit anything has been said by the Respondent which plainly judgment. contradicts them. If the Respondent had made statements ' ' contradicting the Articles or Formularies, the citation of great names would not have protected him ; if he has not done so, he is safe without their protection. There is one passage in the judgment which seems especially to call for comment : — ' With respect to the second and corrected edition of his ^^her ■*■ comment pamphlet, and the other work for which he is articled, I on judgment say that the objective, actual, and real presence, or the below. spiritual real presence, a presence external to the act of the communicant, appears to me to be the doctrine which the Formularies of our Church, duly considered and con- strued so 3,s 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 Receptionist Doctrine is inadmis- sible ; 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, real, actual, and spiritual, is certainly not contrary to the law.' Their Lordships regret that the learned Judge should And its have put forth this extra-judicial statement, in which he ciai state- adopts words that are not used in the Articles or Formu- laries as expressing their doctrine. The word ' receptionist' is as foreign to the Articles as the word ' objective.' If it refers to the doctrine that ' the mean whereby the Body of Christ is received and eaten is faith,' then it is plainly admissible, for these are the very words of the Church ; and the question before their Lordships has been rather what amount of deviation from them was admissible. Their Lordships have already said that any presence which is not a presence to the soul of the faithful receiver, the Church does not by her Articles and Formularies affirm. They need not ask whether there is really any doubt as to the admissibility of the doctrine of Hooker meuts. 548 Privy Council JudyTrients. 1872. Sheppard Bensett. Judgment. fteneral ob- servations on the Re- spondent's language, etc. and Waterland, who appear to te described as ' reception- ists,' in the Ohnrch of which they have been two of the greatest ornaments. Their Lordships have not arrived at their decision with- out great anxiety and occ&sional doubt. The subject is one which has always moved the deepest feelings of rehgious men, and will continue to do so. There might have been expected from a theologian dealing with this subject, if not a charitable regard for the feelings of others, at least a careful preparation and an exactness in the use of terms. The very Divine whose opinions Mr. Bennett seems to have sought to represent, was obliged him.self to point out how erroneous was his statement of those opinions. The Respondent corrected the manifest error without an expression of regret at the pain he may have caused to many by his careless language. Even in their matnrer form, his words are rash and ill-judged, and are perilously near a violation of the law. But the Committee have not allowed any feeling of disapproval to interfere with the real duty before them, to decide whether the language of the Respondent was so plainly repugnant to the Articles and Formularies as to call for judicial condemnation ; and, as these proceedings are highly penal, to construe in his favour every reasonable doubt. There will be no order as to costs, as the Respondent has not appeared. 249 APPENDIX. !N"oTE A. gouham t. bishop of exetjer. The deoiaion of the Gorham case set at rest the question as to the comprehensiveness of the Church in relation to the suhject of Christian Baptism. It decided, that on a principal point in dispute hetween different theological schools, the Church of England maintains an absolute neutrality ; and that there is nothing in the Baptismal offices to hinder the adherents of such schools from holding office together as members of an united Cliristian body. If the judgment of the Committee had been in favour of the Eespondent, the highest Ecclesiastical Court in the realm would have contravened the position occupied by the Church from the earliest time in relation to the doctrine of the efficacy of Baptism ; for it can be historically shown that the doctrine of an absolute regeneration of infants in Baptism has never been authoritatively regarded as essential. In that great monument of primitive antiquity, The Apostles' Greed, there occurs no mention of the Sacrament of Baptism, infant or adult. In the Athanasian Creed, which so elaborately formulates the chief doctrines of the Church, there is no allusion to Baptismal efficacy as an ' Article of Faith.' In the Nicene Creed there is a clause which acknowledges ' one Baptism for the remission of sins.' But this is a phrase borrowed from Scripture, which occurs in connection with but two subjects in the New Testament : the Baptism by John (Mark i. 4 ; Luke iii. 3), and the Baptism by St. Peter on the Day of Pentecost (Acts ii. 38), and if its Biblical signiflcation is to govern its meaning in the Creed, it would appear that the context of those passages not only does not enjoin but almost forbids the inclusion within the words of the Baptism of infants, and even if it did, the question as to whether such Baptism or remission of sin is conditional or absolute would still be undetermined. , Udeham Bishop of Exeter. Note A. 250 QUBHAM V, BlBHOF OF Exeter. Note A. Appendix. But if the Creeds do not assert the dogma, neither is there any authoritative statement of it in the Councils of the Church, if we except the first Canon of the Fourth Council of Carthage, which, in giving rules for the examination of one elected to he a Bishop, directs, amongst other things, a^ follows :— ' QuBerendum etiam ab eo, si in Baptismo omnia peccata, id est, tarn originale contractum, quam ilia quae voluntarie admissa sunt dimittantur.' From this Canon it would appear that no one in the Primitive Church could possibly be ordained a Bishop without its being first ascertained that he ' believed original sin to be remitted in Baptism." * There is, however, much reason to believe that the Canons of the Fourth Council of Carthage are from beginning to end a complete forgery ; and even if they were genuine, there is nothing to support the assertion that they were adopted by the General Council of Chal- cedon ; and had they been so adopted, apd thus ' have had the authority of the whole Catholic Church,' they contain, amongst other things, these two regulations : — ' That no Bishop shall read a Gentile book ;' that ' no Bishop, on pain of deprivation of the right of ordination, shall ever ordain a Clergyman who has been twice married, or who has married a widow.'t It has been said that the question whether grace was conferred by the work wrought, the opus operatum was settled in the Church of Rome from the earliest period. But it would appear that there never was any authoritative assertion of the dogma anterior to the Council of Trent. The decrees of that Council which treat of Baptism, are the 6th, 7th, and 8th Canons passed in the 7th Session (1547). The 6th Canon is in these words : — ' Si quis dixerit, Sacramenta novae legis non continere gratiam quam signiticat, aut gratiam ipsam non ponentibus obicem non conferre, quasi signa tantum externa sint, acceptse per fidem gratisB, vel justitife, et notse qusedam Ohristianse professionis, quibus apud homines discernunturfideles abinfidelibus, anathema sit.' Thus the grace is held to be given to those ' non ponentibus obicem,' not interposing any obstacle. The 7th Canon is as follows : — ' Si quis dixerit, non dari gratiam per hujusmodi Sacra- menta semper, et omnibus, quantum est ex parte Dei, etiam si rite ea suscipiunt, sed aliquando, et aliquibus, anathema sit.' And this grace before said to be given to all persons not presenting an obex, is here said to be given always and to all. Then the 8th Canon is * Letter of the Bishop of Exeter (Dr. Philpotts) to the Archbishop of ■Canterbury, p. 15. t Essays on Church and State, by A P. Stanley, D.D., Dean of West- minater, p. 29. Appendix. 251 thus : — ' Si quis dixerit, per ipsa novss legia Sacramenta opere operiito non conferri gratiam, sed solam fldem divines promissionis ad gratiam consequendam aufficere, anathema sit.' Here the doctrine that grace is conferred by the work wrought, and not by- faith only, is declared and pronounced. Against this doctrine of the Church of Rome, the 26th of the Articles of the Church of England, sanctioned by the Convocation of 1552 is levelled. That Article is in these terms : — ' Of the Sacraments. — Our Lord Jesus Christ gathered His people into a Society by Sacraments, very few in number, most easy to be kept, and of most excellent signifi- cation — that is to say, Baptism and the Supper of the Lord.' This was pointed against the Seven Sacraments, as declared by the Church of Rome. It goes on : — ' The Sacraments were not ordained of Christ to be gazed upon, or to be carried about, but that we should duly use them. And in such only as worthily receive the same they have a wholesome effect or operation, not as some say, " Ex opere operate," which terms as they are strange and utterly unknown to Holy Scripture, so they do yield a sense which savoureth of little piety, but of much superstition ; but they that receive them unworthily receive to themselves damnation. The Sacraments ordained by the Word of God be not only badges or tokens of Christian men's profession, but rather they be certain sure witnesses, effectual signs of grace and God's good will towards us, by the which He doth work invisibly in us, and doth not only quicken, hut also strengthen and confirm our faith in Him.' In the corresponding Article of 1562, the 25th, the same doctrine is held though the language is transposed. In Bishop Burnet's view, its effect is to exclude the ' opus operatum' as formally as the Article of 1552 excluded it. He says : — ' For the virtue of the Sacraments being put in the worthy receiving, excludes the doctrine of the " opus operatum," as formally as if it had been expressly condemned ; and the naming of the two Sacraments instituted by Christ is upon the matter the rejecting of the? rest.' (Burnet on Articles, page 314.) It would appear from these considerations that the dogma of the unconditional regeneration of infants in Baptism has no authority in the ancient Creeds, or in the decrees of the General Councils of the Church ; that up to the Council of Trent (1547) it had never been promulgated as an Article of Faith, while in the English Church it has always remained an open question ; ard this is the liberty which is vindicated for the Church by the ruliiifi: of the Judicial Committee in the Gorham case. GORHAM V. Bishop oj? EXKTEII. Note B. 252 ■Westerton and X4IDDELL V. Beal. NoteB. Appendix. Nora B. LIDDJELL V. WESTERTON. LIDBELL V. BEAL. (Statement of Faulkner 1;. Litchfield.) In the judgment pronounced by Lord Kiugsdown in Liddell v. Westerton, and the associated case of Liddell v. Beal, frequent reference is made to the case of Faulkner v. Litchfield. That case is of such importance that it has been deemed advisable briefly to give the substance of it, and a f«w passages from the judgment of Sir H. Jenner Fust, the Dean of the Arches, by whom it was decided. Faulkner v. Litchfield, or the stone altar case, was the first case in which the two great schools or parties in the Church came to a direct issue in the Courts of Law, In that case, Mr. Faulkner, the Vicar of the Parish of St. Sepulchre, in Cambridge (whose Church was then undergoing restoration), opposed the grant of a faculty or licence which was applied for by the Churchwardens, to authorise a stone Altar and a Credence Table. The cause was heard, in the first instance, before the Chancellor of the Diocese of Ely, assisted by an ecclesiastical advocate as assessor. The case is reported in the 'British Magazine' for August 1844, and judging from the statement of it in that journal, it would appear that the Vicar's argument received but little con- sideration. The ruling of the Chancellor's Court having con- firmed the issuing of the Faculty, the Vicar appealed to the Arches Court of Canterbury, and after a learned argument, judg- ment was giveji on January 31, 1845. It resulted in the reversal of the decree of the Court below, and consequently the ratifi- cation of the stone Altar and the Credence Table was refused ' The judgment, in opposition to the view that Ecclesiastical Eites generally practised in ancient times had, per se, a claim to be sanctioned and revived, declared, that such Rites cannot be justified by a simple regard to their antiquity, and without re- ference to their relation both to the letter and spirit of what took place at the Reformation. Further, it was in effect laid down that the enactments and authorities of the 16th, and 17th cen- turies, have a more direct bearing on disputed questions of English Ritual than citations from ecclesiastical historians, or patristic writers, and the important principle was clearly enunciated that such authorities will be construed according to the received rules of legal exposition — rules which are the product of great acute- Appendix. ne.=s, and wide experience in interpretation, and -witli -wliicli non- professional minds have little exact acquaintance. The material parts of the judgment, which ran to great length, are as follows : — ' The ques'tion is one simply of the construction of the Rubric and Book of Common Prayer, which are incorporated into the Statute of Uniformity, 13 and 14 Car. II., and of the Canons which were passed in 1603, and of that number the 82nd, which more particularly applies to the subject. In proceeding to con- aider this subject, the Court must proceed precisely in the same manner as it would in construing other Acts of Parliament. The question is, whether this stone Communion Table is or is not a Communion Table within the meaning of the Rubric, and the Constitutions and Canons Ecclesiastical . . . . it is to be observed, with respect to the use of the word "Table" in the present Rubric, the term is to be construed according to its usual and proper meaning .... it is not unimportant to consider what was the structure, and what was required at the time at which these Tables, under the name of Altars, were used in the R imish Church, and also to see what ehanges have been made in the material, and in the mode of erecting these Altars I think I may assume the fact, that at the time of the Reform- ation, this was the usual form of Altars in most Churches ; they were certainly made of stone, they were fixed and immovable, and the generality of them were in the form of the tombs of the martyrs. Such was the description of Altar which was to be got rid of at this time, in order to remove as far as possible all those superstitious notions which attached to the performance of those Services in the Church of Rome which were connected with, the doctrine of Transubstantiation, or the change in the Elements of the Lord's Supper. As that was one of the principal points upon which the Church of England separated from that of Rome, at the commencement of the Reformation alterations were made in the performance of the Service to a certain extent, but not to any great extent, at that time. The Mass continued to be performed during the time of Henry VIII., and also for the first two years of the reign of Edward VI. We find by his Prayer Book, set forth in 1549, the Service thus described: — "The Supper of the Lord and the Holy Communion, commonly caUed the Mass." The Second Book then went on to say : — "The Table having, at the Com- munion time, a fair white linen cloth upon it, shall stand in the body of the Church, or in the chancel, where Morning Prayer and Evening Prayer be appointed to be said ;" and the directions, as it will presently appear, in the present Rubric are substantially the 253 LIDDELL 0. Westertok and lilDDELL V. Bbat.. ISote B. 254 Appendix. LiDDELi, same. Again, in the Prayer Book of 1549, the Priest is directed _ to stand "humhly afore the midst of the Altar," and say the and Lord's Prayer, &c. In that of 1552, the Priest is directed to LiDDELL stand " at the north side of the Table." Now the word •' Altar " beal. occurs in several other parts of tihe first Prayer Book; the Minister ^ Note B . is said to set the bread and wine on the " Altar." After the Con- secration Prayer, the Priest is still to turn to the "' Altar," but •without any Elevation or showing the Sacraments to the people. Again, on Wednesdays and Fridays, Sec, the Priest shall say all things at the Altar. In the bread there is an alteration made, and it is a point to which the Court must advert — the bread is declared to be bread. There is some alteration in the form of the bread which was received by the people in the Sacrament. It was, according to the First Book, to be fashioned after the manner of " unleavened bread," " and round as it was afore ; " but in the Second Prayer Book th« direction runs thus : — " And to take away any superstition which any person hath or might have in the bread and wine, it shall suiiice that the bread shall be such as is usual to be eaten at the table with other meats." Now here it does appear to me impossible to doubt what the meaning of the word Table was as used in the Second Prayer Book, in reference to the bread which is to be taken on this occasion, that it shall be such as is '' eaten at table with other meats." Can the word "Table" mean anything but that table at which meals are usually eaten P The expression, bread usually " eaten with other meats," necessarily implies it. It was not to be such as was re- ceived before 1549, but it should be bread such as is commonly used at tables. It appears, therefore, to me, that these alterations throw a very important light upon the meaning of the word Table which is substituted for Altar in these several portions of the Prayer Book ; and it is to be observed that the word "Altar" occurs nowhere in the Rubric of the Second Book of Prayer of Edward VI., although it is used as well as the word Table in that Book published in 1549.' After commenting on Ridley's Injunctions (1550), directino- ' Curates, etc., to erect and set up the Lord's Board after the form of an honest Table,' and the Orders in Council of November 19 (1550), sent to the Bishops, enjoining them 'to pluck down the Altars ' and to set up instead Tables to serve for the ministration of the Blessed Communion, and upon the fact that these alter- ations were actually made throughout the kingdom in the vear 1550, and from that time to the end of Edward VI. 's reign the Communion was administered accordingly ; and that on the accession of Elizabeth, there was 'a return to the administration Appendix. 255 of the Sacrament, and the performance of the Rites and Cere- liddelt, monies of the Church, as they stood at the end of the reign of ,„'•,, Edward VI. — the learned Judge continued : — ' It is to be observed, and that the object in framing the Second Prayer Book (of Edward ^eli, VI., 1552) was the removal of old superstitions; and when one beat,. of the modes of carrying that object into effect was to be the . ^°^^ ■°" , abolition of all Altars, and the substitution of Tables for those Altars, it must be that something more than a mere alteration of name was intended. It would not have satisfied the purpose for which the alteration was made merely to change the name of Altar into Table. The old superstitious notions would have adhered to the minds of the simple people, and would have continued so long as they saw the Altai-, on which they had been used to con- sider a real sacrifice was offered. For these reasons I consider a substantial alteration of the structure was made.' The learned Judge then referred to the Injunctions of Elizabeth (1559), which imply ' a most complete substitution of the Table for the Altar, and not only that the Table was to be so substi- tuted, but also that it was a structure capable of being moved from time to time, and calculated to do away with all super- stitious notions that belonged to the Popish Mass, one of which wa,s, that it was essential that the Altar be immovable. The Altar was to be fixed ; here the Table was to be substituted for the Altar, and moved from time to time when the Holy Communion was to be administered.' Further, the judgment shows in detail that these Injunctions were immediately acted upon, ' with the intention of removing anything of the nature of superstition which was sup- posed to attach to Altars, and that what was then done does not appear afterwards to have been undone.' The Canons of 1571, approved of by Convocation, fully accord with what had been previously done. In the Canon entitled, ' .^Editui Ecclesiarum et alii selecti viri,' are these directions : — [^ditui] ' curabunt menr sara ex asseribus junctam, quae administration! sacrosanctae Com- munionis inserviet.' The 82nd Canon, of the Canons of 1604 which are now in force, is entitled, 'A decent Communion Table in every Church,' and runs thus:— 'Whereas, we have no doubt but that in all Churches within the realm of England, convenient and decent Tables are provided and placed for the celebration of the Holy Communion, we appoint that the same Tables shall from time to time be kept and repaired in sufficient and seemly manner, and covered in time of Divine Service with a carpet of silk, or other decent stuff, thought meet by the Ordinary of the place, if any question be made of it, and with a fair linen cloth at the time of the ministration, as becometh that Table, and so 256 Appendix. LiDDKLi, stand saving when the Holy Communion is to he administered, at Westert w ■''■hich time the siune shall he placed in so good sort within the and Church or chancel, as therehy the Minister may be more con- iDDELL yguiently heard by the Communicants in his prayer and minisH beal. tration, and the Communicants also more conveniently, and in Note B. more number, may communicate with the said Minister.' ' This, ' then,' the learned Judge continues, ' is precisely in accordance witli what has been done in Elizabeth's reign. The 82nd Canon does not indeed express, as that of 1571 does, that the Table should be " ex asseribus juncta ;" but is there any possible reason to be conceived or assigned why this should not be of the same material ? That it should be a movable Table is necessarily im- plied, because it is to be placed in a different position if required at the time when the Communion Service is performed from that in which it is to stand when not in use.' A.fter reviewing the subject so far as it receives illustration in the history of the period of Charles I., and commenting on the letters of Dr. Williams, Bishop of Lincoln, and Lord Chancellor of England, the sum of which is carefully to distinguish a Table from an Altar, and various other treatises of that time, all agree- ing that the understanding of all persons who were called to act on the Injunctions, was that the Table was no longer to remain immovably fixed, but that for the purpose of removing the super- stition connected with the Popish Mass, it was to be movable as the occasion might require, the learned Judge proceeded to in- quire whether any alteration was made affecting the subject in 1662, when the last review of the Book of Common Prayer took place. He says, continuing : — ' There is no intimation, that I can discover, leading to the supposition, that a different sense was intended to be applied to the word Table from that which 1 have hitherto considered to be the true meaning of the word. Moreover, "Table" is used throughout ; " Altar " nowhere appears, except in one or two sentences in the Offertory, wherein the word Altar was necessarily retained as being the term used in those passages of Scripture whence the sentences were taken. Added to this, there is a de- claration made after the last Rubric in the Communion Service not to be found in the Prayer Book as revised in the reign of Elizabeth, respecting the meaning of the posture of kneeling prescribed in receiving the Holy Communion, which goes to sub- vert the notion that a real sacrifice is intended, and is consequently at variance with the proper meaning of " Altar." ' What is the notion that would present itself to any one's mind of the word " Table " taken abstractedly ? Surely it would not Appendix. be that of tLe object now under consideration — a stone structure o£ amazing weight and dimensions, immovably fixed. It is un- doubtedly possible, by an ingenious argument, to contend that the present erection is a Table ; it may be so according to one defi- nition given by Dr. Johnson — "a flat surface raised above the ground" — but that notion would not readily present itself to the mind ; such is not the ordinary meaning of the word. ' When I take into consideration, then, that there is nothing whatever, so far as I can see, in the Injunctions and Canons which I have reviewed, to lead me to the conclusion that the word " Table " in the Book of Common Prayer is to be understood in an unnatural sense, but much the other way, I must pronounce that the structure in question is not a Communion Table within the meaning of the Rubric.'' (1 Robertson Reports, p. 184) [No reference is made to the rest of the judgment disallowing Credence Tables, as on that point the judgment was overruled in Liddell v. Westerton.] lilDDEU V. Webteietoh and LZBDELIi V. Beal. Note B. Note C. PARKER v. LEACH. Decided in 1866 by the Judicial Committee of the Privy Council, on Appeal from the Chancery Court of York, contains some valu- able ohiter dicta on the question of Altars as distinguished from Tables. It was a cause of perturbation of a seat or pew, and was heard before Lord Westbury, Sir James W. Colvile, and Sir Edward V. Williams. In giving judgment (Nov. 20), Lord Westbury commented on the judgment of Dr. Lushingtdn in the Arches Court, in the case of Turner v. Parishioners of Ilanwell, in which words are attributed to Dr. Lushington which Lord Westbury said could hardly have been used by him ; but if they were used, were obiter dicta not necessary for the case before him. ' He,' continued Lord Westbury, ' is reported to have said, ".If the Altar has been taken down, there must be a reconstruction", as my jurisdiction depends entirely ratione loci." If the learned Judge used these words, it is quite clear he must have borrowed them from the equivalent expressions which are found in John da. Burgh, or other writers previous to the Reformation, and intended to apply wholly to Roman Catholic Churches. In a Roman Catholic Church there is an Altar, or place where the Priest offers sacrifice. In a Protestant Church there is no Altar in the Parkek V. Leach. Note C. 258 Appendix. Leigh. Note C, same sense, but there is a Communion Table, on wliich bread and wine are placed, that the parishioners may come round it to ^ari take of the Sacrament — the Supper of oulfLord. ' It is impossible to derive from language applicable to a Koman Catholic Altar a conclusioi^ of l*w applicable to a Protestant Church, which conclusion cannot be drawn unless you hold the Communion Table to be in all respects equivalent to the Altar of a Eoraan Catholic Church.' (4 Moore's Privy Council Reports, New Series, page 180.) WILUAMS v. lilSHOPOP Sauhrurt and WlLSOK fl. Fehdall. Wote D. Note D. WILLIAMS V. BISHOP OF SALISBUMT. WILSON T. FENDALL, ' Essays and Eeviews.' ' Essays and Reviews,' which resulted in the above suits, were published in the early spring of 1860. The book contained sevbral essays. The subjects treated, and the authors' names, were aa follows : — 1. The Education of the World. By Frederic Temple, D.D., Head Master of Rugby. (Bishop of Exeter, 1869.) 2. Bunsen's Biblical Besearches. By Rowland WiUiams, D.D., Vicar of Broad Chalk, and Vice-Principal of Lampeter College. 3. On tU Study of the Evidences of Christianity. By Baden Powell, F.R.S., Savilian Professor in the University of Oxford. 4. Stances historiques de Genh>e. — The National Church. By Henry B. Wilson, B.D., Vicar of Great Staughton, Hunts. 5. On the Mosaic Cosmogony, By C. W. Goodwin, M.A. 6. Tendencies of Religious Thought in England, 1688-1750. By Mark Pattison, B.D. 7. On the Interpretation of Scripture. By Benjamin Jowett M.A., Regius Professor of Greek in the Univeisitv of Oxford. ^ ■The object of the work, and the degree of responsibility of the writers, were thus stated in the Preface : ' It will readily be understood that the authors of the easmns Essays are responsible for their respective Articles only. They have written in entire independence of each other, and without iConcert or comparison. ' ' »». Appendix. ■25& ' The volume, it is hoped, will fee received as an attempt to illustrate the advantage derivable to the cause of moral and religious truth, from a free handling, in a becoming spirit, of ' subjects peculiarly liable to suffer by the repetition of conventional language, and from traditional methods of treatment' Attention was first called to the character of the work by an article in the ' Westminster Review ' of October 1860, which was followed by an attack in the ' Quarterly' of January 1861. A letter, signed by all the Bishops in England and Ireland, and of unknown authorship, was then published disapproving of certain opinions imputed to the Essayists. Convocation met shortly afterwards, and in the Lower House a vote of thanks to the Upper House was carried, and a Committee was appointed to examine into the book. About this time, too, a memorial con- demning, as inconsistent with the teaching of the Cliurch, extracts from the work, and signed by 10,000 Clergy, was presented at Lambeth ; and in the following June, a report was presented to the Lower House of Convocation, and a motion was introduced to •the effect, that there were grounds for proceeding to a Synodical Judgment. The Upper House, however, postponed the consider- ation of the subject till after the decision of the Judicial Com- mittee, it appearing that, in case of an Appeal in the pending suits, some of the members of the House might be called to serve as judges. Tliat decision was pronounced in February, 1864. Acquit- ting theEssayists, it was followed by considerable restlessness and excitement. The statute for the endowment of the Greek Chair' at Oxford, held by Mr. Jowett, was defeated. An Oxford Committee drew up a declaration contravening in substance the effect of the decision, and quesdpning its validity. This document, which obtained the signatures of 11,000 Clergymen, was as follows : — ' We, the undersigned Presbyters and Deacons in Holy Orders of the Church of England and Ireland, hold it to be our bounden •duty to the Church, and to the souls of men, to declare our firm belief that the Church of England and Ireland, in common with the whole Catholic Church, maintains without reserve or qualifi- cation the inspiration and Divine authority of the whole Canonical Scriptures, as not only containing, but being, the Word of God and further teaches, in the Words of our Blessed Lord, that the ''punishment" of the "cursed," equally with "the life" of the " righteous," is " everlasting." ' The subject was also revived in •the Convocation of the Province of Canterbury, where, notwilh standing considerable opposition on the part of eminent members of both Houses, Synodical Condemnation of the bock was passed in the month, of July 1864, s2 WlUJAMS V. Bishop oif Saubbukt anrt WiLiOS Fendaix. Notp D. 260 .Appendix. Note E. MARTIN T. MACKOKOCHIE. Extract from Eeport of Eoyal Commissioners on Eitual as to the use of lighted caudles and incense. . MAKTm By the judgmeint of the Dean of the Arches in this case (March JiAOKOKO- 28, 1868), the Respondent was monished to abstain from the use cHiE. of incense during the celebration of the Eucharist, but the learned Note E. Judge omitted to pronounce that the Respondent had offended against the Law by having lighted candles on the Communion Table during the said celebration, when such candles were not ■wanted for the purpose of giving light. Both these matters — the use of incense and lighted candles on the Oommunion Table — ^were, at the time of the Arches Judg- ment, under consideration of the Ritual Commissioners, and are dealt with in their second Report, signed April 30, 1868, with this distinction, that their consideration of the use of incense is not confined to its use during the administration of the Lord's Supper. The Report is to the following effect : — 'The use of lighted candles in celebrating the Holy Communion, when they are not needed for the purpose of giving light, and the use of incense in the public Services of the Church, are the mat- ters connected with this branch of the subject to which our attention has mainly been directed. ' We have taken evidence, and have availed ourselves of the infor- mation furnished by the arguments in the recent suits before the Court of Arches of Martin v. Machmoehie and Flamank v. Simpson, both in respect of lights used at the celebration of the Holy Communion, and also in respect of the use of incense as part of the public Services of the Church. ' The use of lighted candles at the celebration of the Holy Com- Inunion, has been introduced into certain Churches within a period of about the last twenty-five years. It is true that there have been candlesticks with candles on the Lord's Table during a long period in many cathedral and collegiate churches and chapels, and also in the chapels of some colleges, and of some Royal and Episcopal residences ; but the instances that have been adduced to prove that candles have been lighted as accessories to the Holy Communion, are few and much contested. 'With regard to Parish Churches, whatever evidences there may be as to candlesticks with candles being on the Lord's Tabl^ no sufficient evidence has been adduced before us to prove that at any time during the last three centuries lighted, candles have hee» Appendix, 261 Used in any of these Churcbes as accessories to the celebration of the Holy Communion until within about the last twenty-five years. 'The use of incense in the public Services of the Church during the present century is very recent, and the instances of its introduction are very rare ; and so far as we have any evidence before us, it is at variance with the Church's usage for 300 years. ' Under these circumstances, we are of opinion that it is expe- dient to restrain in the public services of the Church all variations frcm established usage in respect of lighted candles, and of incense.' The Report is signed, without reserve as to the result of the evidence, by twenty-three Commissioners. Six Commissioners declined to sign ; but, with one exception, they did not thereby dissent from the conclusions stated above. Mabtis ■». Maokono- CHIE. Kote E. liTOTB P. MARTIN V. MACKONOCHIE. Sumner v, Wix, The question of the lawfulijess of lighted candles, and the use MAnTiir of incense, came before the Arches Court of Canterhury (Sir R. J, . hackono. PhMimore presiding), on January 10, 1870, in a suit entitled, chje. '.The Office of the Judge,' promoted by Bishop Sumner v. Wix. Note F. The case is interesting, as it extended the rulings of the Judicial ' Committee, in Martin v. MackonocMe,' aa to the unlawfulness of lighted candles, so as to include the case of lighted candles held one on each side of the Priest when reading the Gospel, such lighted candles not being required for the purpose of giving light. The material allegations contained in the Articles, and the sub- stance of the evidence ofiered in support of them, appear fully in , the judgment. Dr. Deane, Q.O., and Dr. Tristram appeared for the Promoter; Mr. CliarUa for the Defendant. Judgment was delivered, February 3, 1870, by Sir R. Fhillimore, as follows : — In this case, the office of the judge is promoted by the late Bishopr of Winchester against the Rev. Richard H. JE. Wix, Vicar of St. Michael and All Angels, Sivanmore, 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 Wmchester, continues to be the promoter of the suit. The Defendant is charged with the Ecclesiastical Offences of 262 Jippendi'x. MAtmx adding to 'the Ceremonies and Rites prescribed by the Law to be; MAOKONo- '^^•^'^ ^^ Chmch, by the burning of lights and the use of incense. ; cHiE. The charges with respect to the burning of lights are contained Note F. in the following Articles : — ■* ' ■ '3rd. That the said Sichard H. E. Wix, in the Church of the said Perpetual Curacy or Vicar%e of St. Michael and All Angels,' on the following Sundays, February 7, March 28, Apjril 18, and May 23, all in the year 1869, used lighted candles on the Com- munion Table in the said Church, or oq a ledge or shelf immedi- ately above the said Communion Table, the said ledge or shelf; having the appearance of being affixed to, and of forming part of, the said Communion Table, during the celebration of the Holy Communion, at times when such lighted candles were not required, for the purpose bf giving light, and permitted and sanctioned such use of lighted candles. ] ' 5th. That the said Richard H. E. Wix, in the said Church, on the following Sundays, March 28, April 18, and May 23, all in the year 1869, used lighted candles placed in candlesticks, 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 Miehard H. E, Wix, in the said Church, on Sunday, March 28, 1869, caused or permitted 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 pur-' pose of giving light.' I will 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 April 3, in last year, and before the commencement of this suit ; at the same time Mr. Wix contends the practice is lawful, and the judgment of the Court is prayed by the Promoter thereupon. • I am of opinion that the practice charged in this Article is un- lawful, as an addition to the Rites and 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 3rd Article, Mr. Wix offers the following defence in his responsive plea (3rd Article). He says the charge against him ' is, in part, iintruly pleaded, for' lie alleges that on the said days, in the said 3rd Article men- Appendix, 26^ MACKONOt CHIE. tionsd, fhesaid lighted candles were not placed on th'e Commuriion Table, or on a ledge or shelf immediately above the same, as therein alleged, but upon a certain other Tabte, called a Retable, the said Retable standing distinct and separate from, and not NoteF. forming, or appearing to form, part of, and not being aifixed, or ' ' appearing to be aifixed, to the said Communion Table ; ' and he denies that the use of such lighted candles is an imlawful addition to, or deviation from, the forms prescribed by the Law. With respect to the charge in the 6th 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 stAA Richard JI. E. Wix, in the said Church, on the following Sundaj s, February 7, March 28, April 18, and May 23, 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, denies that he on the days in the Article mentioned, used incense for censing persons fend things in and during the celebration of the Holy Communion, or as subsidiary thersto, or permitted 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. ' 11th. That the said Richard H. E. Wix, in the said Church, on the following Sundays — to wit, on February 7, on March 38, on April 18, and on May 23, all in the year 1869, used incense during Divine Service, or as subsidiary thereto, and permitted and sanc- tioned 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 naid 13th 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 Richard Hooker Edward Wix, in th^ said Church, on the following Sundays — to wit, on February 7, on March 28, on April 18, and on May 23, all in the year 1869, Seremonially used incense, and permitted and sanctioned such, Gerenionial use of incense.' 264 Appendix. Martin As to this Article, the Defendant in his responsive plea (Arf. Mackoho- ^^) denies that he on the days in the said Article mentioned used OHiE. incense ceremonially, or permitted or sanctioned such ceremonial Note F. use of incense, ' ■ ' It appears from the evidence that what is called the Eetahle 18 a separate and distinct piece of furniture from the Holy TaUe ; that it is placed hehind the Holy Table ; and that the ledge or shelf of it, to use the words of the witness, ' appears like a mantel- piece ' over the Holy Table ; that on this Betable stood two large candles and twelve branch candles, and that on each side of the Holy Table there stood a largo candlestick which rested on the ground. All these candles were lighted at the time and in the manner which 1 will now state. And I may remark, that the counsel for Mr. Wix admitted, very properly, that the eviderce given by the witness Cooper was substantially correct, and did not cross-examine him. It appears from his evidence, that after the Third Collect for grace had been said, there was a Ser- mon ; 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 all the things on the Betable and Holy Tablej 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 Communion Service was over, the censers were again fetched from the Vestry ; another procession was formed, and the lights were extinguished. There were no lighted candles on the Holy Table itself: there was no incense burning during the time of the celebration of the Eucharist, Between the close of the Morning Prayers and the beginning of the Communion Service, some of the pongregation left the Church, and other persons came in, and a bell was rung to denote that the Communion Service had begun. These few facts which are proved in the case, are much relied upon by the counsel for Mr. Wix, as materially differing in the present case from that of Martin v. Machonochie, so much so, as to make this case. one of primee itnpi'essionis. . It has been forcibly contended that the two judgments of Martin \.. Machonochie and Liddeli v. Wesierton are irreconcilable in principle, and that I ought to follow the doctrine laid down in the former and not in the latter case, Jf, indeed, the duty were Appendix. 265 cast on me of demonstrating that the two decisions were in eyery 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 Liddell v. Westerton, and their entire rejection in Martin v. Mackonochie, when they were relied upon for the purpose of showing that the burning of two candles to represent 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 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. Mackono- chie (p. 387), ' inert and unused,' but things actively employed aa 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 decoratipns, and neither 'omamenta' nor ceremonies. 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 services, 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 incense had been I'emoved, a bell was rung to signify that the second service was about to begin ; but looking at all the circumstances, I think it would be unreasonable and un- judicial not to conclude that the burning of the incense was in- tended 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 alto- gether, 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 condemn him in the costs of this suit. HACKONO' CHIE. Note F. 266 Appendix. " Note Gr. HEBBEST Y. PURCHA& Eurharistic Vestmegt*. Heebert X SEW words of explanation as to tlie various ornaments referred PnKOHAs. to in the judgment, may be has been thought desirable to furnish it at length. After a very lengthy statement in the case of the historical aspect of the question, the following query was submitted : — Query. — Suppose a clergyman of the Church of England to administer the Holy Communion in a Parish Church habited in the vestments prescribed by King Edward VL's first Prayer Book (1549), does he infringe the law, and commit an oifence cognisable by any legal/tribune ? Opinion. — We are of opinion that the question should be an- swered in the affirmative, A careful consideration of the language of the Act of Uniformity of 1662, and the Rubric of the Prayer Book, and a comparison of that language with the previous Rubrics and enactments applicable to the question, lead us to the con- clusion that the intention of the Legislature was not to revive or restore the use of any ornaments which had become obsolete. The Statute of Elizabeth, as altered by the advertisements, had been recognised both by the Liturgy and Canons of James in 1604, and appears unquestionably to have been in force down to 1662 ; and since there is nothing in the Statute of that year (except so far as it establishes the Rubric) which touches the point, it is by the Rubric alone that the practice, which had been established by the £idvertisements, can have been altered or repealed. We do not think that the Rubric has, or was intended to have, this eifect. On the contrary, it would seem to apply only to such ornaments of the Minister as are common at all times of his ministration, and to point to a retention of such as were then in use, rather than to a revival of such as had been diaplaeed by the advertisements. This interpretation is supported by the universal practice which has prevailed from 1662 down to the present time, and which affords a 'contemporaneous exposition' of the Rubric, to which "reat Appendix. 269 weight would be attached hy every Court of Law in England.^- hibbbiit Signed, Rounddl Palmer, H, M, Cmrm, George Mellish, Francis Barrow. The grounds of the opinion given above, Sir Rmmdell Palmer states as follows : — I. It is a clear principle of law, that in the exposition of the words of a law, or other written instrument, which has been re- ceived and acted upon in one consistent and uniform manner from the time of its enactment or execution, for a long subsequent period, that interpretation ia to be preferred (supposing the words of the document in any way to admit of it) which is in accordance -.with the snbsequent practice and usage, and not that which is contrary thereto. ' Contemporanea expositio fortisidma est in legej ■etc. And the application of this rule is most necessary, and the reasons for it most forcibly apply, when the subject-matter of the law is a thing of great public importance, and of constant daily, and notorious use. II. It is also a principle of law, that a prior enactment or pro- vision is not to be deemed to be repealed or altered, except by express words, or really necessary implication ; and this rule applies most forcibly, when the effect of such repeal would be to revive some earlier law, which had itself been, on consideration of its eifeet, expressly and deliberately repealed or altered; and when the implication is derived from words occurring, not in the body of any statute, but in a subordinate and directory part of another document, confirmed by statute. III. My opinion did not at all proceed upon the notion that the vestments, etc,, of the first Prayer Book of Edward VI. had be^ come abrogated by mere desuetude ; but I considered that they had been made actually iUega] by the exercise of the legislative power given to the Crown by the Statute I Eliz., c. 2, sec. 25 ; that is, that the advertisements of 1565-6 were issued by the Boyal Authority, and had the force of law under that Statute.; and that, if this had not been the case, the Canons of 1604, to which both the King and the Metropolitan were parties, would be sufficient for the same purpose. IV. It is clear that the Act of Uniformity of Charles II. did not repeal, but left in force, the Act of 1 Eli»., c. 2, with every- thing which had been done under the authority of that Statute, except so far as the particular enactments of the Act of Chas. II. •were at variance therewith. The use, therefore, of the very language of sec. 26 of the Act 1 Eliz., c. 2, in what is f erroneously i called, the Eubrie prefixed to Chas. II. 's Prayer Book,, is quite 270 Appendix. HBBBEnT intelligible, if it was intended merely to leave the law as to 'PuBCTAs ""vestmenta, etc., in the state in which it then stood under that Note I. section. ^= — . ' V. The words of the so-called ' Rubric' of 1662, when accurately weighed, do not seem to.me to be intended, nor to be apt in themselves, to restore anything which at that date was not ' retained' and ' in use ' in the Church of England. An enactment that certain things shall be ' retained ' and be ' m ttse' naturally implies that the former state of things is, so far, to be continued; not that a new state of things is to be then introduced, or (what amounts to the same thing) that an old state of things, long be- fore prohibited by law, and also disused in practice, is, for the future, to be revived and brought into use again. •■ VI. It is to be noted that this so-called Kubric appears, on the face of it, to relate only to 'the order for Morning and Evening Prayer daily to be said and used throughout the year,' not expressly mentioning the Communion Office, nor any other -special office. And the ' ornaments ' of which it speaks are those ' of the Church and of the Ministers thereof, at aU times of their ministration.' These words may, without any violence to their grammatical sense, mean either of two things : — (1) Ornaments which are always and in all ministrations to be equally and in- differently used (and which, therefore, would necessarily be used during the order for Morning and Evening Prayer, to which the 'Rubric' primarily, if not solely, relates)'; or, (2) Ornaments some of which are to be used at some times, and others at other times, of the ministration of the Minister. Of these two senses the former appears to me to be the more natural and probable in such a 'Rubric ;' if it be the correct one, then this 'Rubric' has no reference at all to any special Eucharistic vestments, etc. and fails to support any argument in their favour. And that this is tTie correct interpretation is, to my mind, strongly confirmed by two arguments. The first, that in the former notice for which this was substituted, though introduced by the title, ' The Order where Morning and Evening Prayer shall be used and said ' the words were, 'at the time of the Communion and at all other times of his ministration,' which words necessarilv extended to ornaments which might be in use at the time of the Communion though not at the time of Morning or Evening Prayer. The change 1 coinciding vrith the eftect of the 58th Canon, which pro- vided for the use of the Surplice by every Minister saying the Public Prayer, or < ministering the Sacraments, or other" Rites of (the Churphi') omitted, certainly not .without purpose, the express Appendix. 271 teference to the time of Communion. The other argument is, that from date of this change, till the last few years, the authors of the change themselves, and the -whole clergy of every grade, proved, by their uniform practice, that they so intended and understood it. — Signed, if. P. (First Report of Royal Commis- ison on Ritual, pp. 138, 139, 140.) HliSBBRT Note K. 8HEPPARD v. SENNETT. The judgment of the Judicial Committee in the case of Mr, Bennett takes rank with the other two great judgments of the Court — the judgment in the case of ' Essays and Reviews,' and the judgment in the case of Mr. Gorham. As by the judgment in the case of Mr. Gorham the legal position of the so-called Evangelical School was established, and as the judgment in * Essays and Reviews ' established the legal position of the school which has always claimed the right of free enquiry, so the judg-: ment in the case of Mr. Bennett has included within the limits of the National Church the Sacerdotal party, and accorded to it, yet with a caution, the same latitude in the expression of opinion^ that in former years was granted to the other schools of thought within the bounds of the Establishment. The three cases alluded to were all cases involving questions of doctrine. They have had this feature also in common, that they have resulted in the ac- quittal of the accused. Yet the circumstances under which those acquittals were pronounced are so difl'erent int^ se, that they demand apassing observation. In the case of Mr. Gorham, the doctrinal statements of the Defendant, which were impugned by the Bishop of Exeter, were not only allowed by the Court, but in a great measure justified. In the case of ' Essays and Reviews,' it was decided that the Church had made no formal statement of the doctrines alleged by the promoters of the suits to be repugnant to the Articles and Formularies of the Church of England ; whereas in the case of Mr. Bennett the Committee comment in terms of harshness on the doctrinal statements put forward by the reverend Respondent. Unwilling, however, to restrict the latitude allowed by the Church in matters of opinion, and the charge being made in a highly penal proceeding, the Committee gave the accused the benefit of the doubt that, was entertained by the majority an^ dismissed the appeal. Sheppabd V. Bennett* Note K. 272 Appendix. Sheppakd The most remarkable feature of the Bennett judgment is it» Beksett. unexampled severity. 'Careless language'— 'crude and rash ex- Note K. pressions'— 'words rash, and ill-judged, and perilously, near a ■ ' — -' violation of the law'— such are the terras in which Mr. Bennett's shielded statements of the doctrine of the Lord's Supper are as- sailed. His statement of 'the presence,' in his 2nd edition of ' A Plea for Toleration,' is ' careless ' and mischievous. "When corrected under the advice of the Kev. E. B. Pusey, it is character- ised as ' rash, ill-judged, and perilously near a violation of the law. It is asserted repeatedly by the Court that the Articles and Formularies give no colour or sanction to the Sacramental doctrines taught by the Respondent. All that is decided in his favour amounts to no more than this: that the dogmatic statements which he makes, when charitably viewed and taken in mitiori senm, are not so plainly repugnant to, or irreconcilable with the te"hching of the Church, as to j ustify the Court in visiting him with punishment. To many persons, the expressions substituted in the 3rd edition of ' A Plea for Toleration,' will seem to be a mere evasion of the more direct language used by Mr. Bennett in his 2nd edition, and Unhesitatingly condemned by the Court. But if Dr. Pusey is the real Respondent, having supplied the form of words against which the prosecution was directed, it is not without its own instructive lesson to remember what was said by him at the meeting of the Church Congress in 1864. Commenting on the recent decision in ' Essays and Reviews,' he said, ' No lasting evil arises from the wrong acquittal of an individual, so long as the standard itself by which right and vTrong, truth and falsehood, are measured, is not inade crooked. For such is our English love of truth, that if any one should escape condemnation, simply because he had stated his false belief evasively, no human talent would ever restore his influence.' . . . ' Churchmen claim for themselves only the self-same liberty, which is afforded to Dissenters, to make clear the undoubted meaning of our Formularies, in any case in which- their meaning shall be morally certain, yet may not be so ex- pressed as to render it imperative on the legal mind (which thinks it right to give the accused the benefit of any possible way of escape) to pronounce the offender guilty.' There is no recession in this judgment from the conclusions arrived at by the Committee in the previous suits of Westerton v. Liddell, Martin v. Mackonochie, and Hebbert v. Puvohas. If Mr. Bennett had been charged with any outward act of adoration, h» would have been liable to the same condemnation as Mr. Macko- Appendix. 273 nochie. The Committefl draw a distinction between the ohserv- shetpard ance of outward ritual in the public service and the publication of benk'eit. private opinion on the part of the Priest — between the authorised Note K. doctrine for which the Church is responsible and the opinion of ' ■ ' the individual, for which he alone is responsible. The former is the common property of the whole congregation, and all are ex- pected to share in it. The latter no one need accept any further than he pleases. Mr. Bennett may therefore continue to assert his opinions with the same freedom as the truth of them is denied by members of the same Church, but he must not use the ritual or ceremonies of the Church as instruments for inculcating his opinions. For the law, though 'unequal to a contest with the subtle and incomprehensible refinements of theological doctrine, is competent to deal with overt acts, about which there can be no mistake. Sacerdotalism, repudiated again and again by the Court, is not the teaching of the Church, but a private view tolerated within it. It asserts its claims among a crowd of teachers, who openly deny it and condemn it. It is, like the doctrine of the non-etemity of future punishment, among the permitted theories of the clerical function. ^ With reference to the ornaments of the Church, and of the Minis- ters thereof in relation to the administration of the Lord's Supper, the following summarised statement of points ruled by the Court may prove useful : — The Church of England has no altar of sacrifice (pp. 69-73, 238, 255, 256, 257). The Lord's Table must be of wood and movable (pp. 73, 253-257). A stone altar is illegal (pp. 73, 257). A cross attached to the Lord's Table is illegal (p. 73). Lighted candles on the Lord's Table during the celebration of the Lord's Supper, when not wanted for the purposes of light, are unlawful (pp. 122-129). The use of incense during the administration of the Holy Communion is unlawful (p. 108). The use of em- broidered linen and lace on the Holy Table during the adminis- tration of the Holy Communion is unlawful (p. 76). The mixed chalice is unlawful (pp. 108, 185-187). Wafer bread is illegal (pp. 187-191). The use of the Chasuble, Albe, and Tunicle while oificiating in the ordinance of the Lord's Supper is illegal (p. 134). The following points in connection with the Rubrics governing the administration of the Lord's Supper have been ruled: — The celebrating Priest, during the Prayer of Consecration, must T 274 Appendix. SHEPPAED Stand and not kneel, or prostrate himself, before the Consecrated bkhhett. Elements (pp. 118, 123) ; bowing with the knee is kneeling and Note K. unlawful (pp. 142-146) ; bowing the head down towards the '■^ — ' Table, and remaining some seconds in that position, is prostration, and unlawful (pp. 156, 158). The north side of the Table, where the chancel faces the east, is the proper place for the celebrating Priest during the Commu- nion Service, and also during the Prayer of Oonsecratioa (pp. 191-196). To stand at the north end of the west side, or with back to the people, is unlawful (pp. 193 — 198). To elevate the cup, paten, or bread more than is necessary to take it into the hand of the Priest during the administration of the Holy Communion is unlawful (p. 140, 157). The following points in relation to the doctrine of the Church on the Lord's Supper have been ruled : — The Church of England has no sacrificial altar (p. 238), nor any propitiatory offering on the Lord's Table (p. 289). To teach that the sacrifice, or ofiering, of Christ can be repeated is illegal (p. 239). i The Church of England does not affirm any presence in the Lord's Supper except a presence to the soul of the faithful receiver (p. 234). To adore the Consecrated Elements is illegal (p. 242). INDEX. ADORATION: of elements not charged against Mr. MackonocMe, 120. as held and t?,ught by Mr. Bennett, 216, 220. if paid to the Consecrated Elements, is unlawfal, 243. or to any corporal presence of Christ therein, 242. ADVEETISEMENTS (of EUzabeth, 1564) : provide for the vesture of the Minister, 169. are of legal obligation, 171, 176. view of the Dean of Arches as to, 177< rejected by Judicial Committee, 177. (See ' Injuitctions, Peociamation.') ALBE: {See ' Vestments.') ALTAR: at St. Paul's and St. Barnabas', 46-48. difference essential between Communion Table and, 66, 126. nature of Boman Catholic, 67, 193. in 1652, called Lord's Table, 69. Bidley's and the Ein^s injunctions as to (1550), 70, 71. is a word not known to the Prayer Book, 72. of stone, as erected at St. Barnabas', illegal, 72. a term used habitually by Mr. Bennett, 214-223. of sacrifice unknown in the Church of England, 238. judgment of Sir H. J. Fust as to, 252. (See ' CoMiTONiojr Table.') APPEAL: history of Cotut of, vide ' iMTBOinTCTioN ' to Upper House of Convocation, 38. no rehearing of, 200. t2 276 Index. ARTICLES OF EELIGION: to be interpreted by the established rules of construction of written instruments, 22, 95. the final result of discussion, 23, 246. they do not decide all questions, 24. of 1536 and 1562 distinguislied, 27, 28. baptismal points left open by, 28. they are the code of faith, 29. of 1562 distinguish the Lord's Supper from the Mass, 69. the nth has no mention of any transfer of merit, 98. they do not use the word ' inspiration,' 99. right of Church to ordain ceremonies asserted by, 159. bearing of the 42nd of 1552 on the question of eternal punish- ment, 101. bearing of, on question of real presence, etc., 233-235. bearing of, on question of a sacrificial altar, 238. bearing of, on question of adoration, 240-243. ARTICLES 01' CHARGE: must distinctly state opinions impugned, and doctrines contro- verted, 94. the accused is confined to the charges in, 94. ARTICLES OF VISITATION: of Edward VI. as to images, 58. of Elizabeth as to the same, and vestments, 64, 170. from time of Charles II., as to ' bread,' 190. as to position of celebrating Priest, 194. (See 'Injunction,' ' Peoclamation,' ' Abvebtisembnt.') ' AUTHORITY OF PARLIAMENT :' in Ornaments Rubric applies to 2 and 3 Edward VI., c. 1, 64, 127, 128, 168, 184. BAPTISM: Mr. G-orhapi's doctrine of sacrament of, 4-14, 22. as distinguished by Dean of Arches, 16. variety of opinion as to sacrament of, 23, 26, 28. consideration of forms of public. and private, 31, 32. opinions of English Divines not distinguishable from those of Mr. Gorham, 35-37. decision of Privy Council as to Mr. Gorham's doctrine of sacra- ment of, 38. note en unconditional regeneration in, 249. Index. 277 'BEFORE THE PEOPLE:' rubrical meaning of, considered, 195. 'BEFOBE THE TABLE:' rubrical meaning of, considered, 195-197. BIBLE: (See ' Inspieation.') BIBETTA : ruling as to lawfulness of, 184. BLACK EUBEIC: {See 'Deolabation op Kneklino.') BOOK OF COMMON PEAYER: tripartite nature of, 29. deTOtional exercises in, are not evidence of doctrine, 29. expressions in services of, must be construed charitably, 34. private judgment may be exercised on points undetermined by, 34. principle to be applied in dealing with alterations in, 231. BREAD: {See ' Elevation,' ' Wafbe Bbead.') CANDLES : {See ' Lighted Candles.') CANONS : of Henry VIIL, validity of, 54, 127. 82nd of 1604, as to Communion Table, 71, 73, 79, 255. of 1571, as to Lord's Table, 73, 255. of 1604 provide for vesture of Minister, 173, 176. of 1604, their bearing on the vestment question when read with Prayer Book, 179, 181. 20th of 1604, as to description of bread, 190. CHASUBLE: (See ' Vestments.') CATECHISM : bearing of, on baptismal question, 33. bearing of, on the Lord's Supper, 234. COMMANDMENTS (Ten): ordered to be set up at east end of church, 49. set up on a screen held to be a compliance with the order, 80. 278 Index. COMMON PEAYEE: {See ' Book of Common Peateb.') COMMUNION TABLE : the structure at St. Barnabas' not a, 72. referred to in Canons of 1671 and 1604, 73. embroidered cloths on, 7S. embroidered linen aiid lace on, not lawfnl, 76. distinction between altar and, essential, 66, 126. decision as to lighted candles on, 122-129. Enbric as to position of, considered, 192. construction of ' north side of,' 193, judgment in Fatdkner v. Litchfield as to, 252. text of 82nd Canon as to, 255. (See ' AxTAE,' 'Elbtation,' ' Pbostbahon.') CONSTITUTIONS OF CLARENDON: brief account of. (See ' Inteoduction.') CONSTITUTIONS OP OXFOEB (1322): are repealed by Acts of Uniformity, 127. COPE: directed to be worn by Canons of 1604, 173, 179. a legal vestment, 183. (See ' Vestments.') CORPORAL (Plcesenee) : is not an equivalent for 'real and essential,' 237. CREDENCE TABLE : at St. Paul's and St. Barnabas', 43. di.sallowed by Dr. Lushington, 44. allowed by Privy Council, 74, 76. CROSSES • at St. Paul's and St. Barnabas', 43, 46-48. viewed as decorations, 55. difference between images and, 66, ceremony of creeping to, 59. opinions of reformers as to, 64. legal as architectural ornaments, 65. attached to Lord's Table are unlawful, 73. CUP: (See 'Elevation,' ' Mixed Craiice.') Index. 379 DALMATIC : (See ' Vestments.') ' DECLARATION OF KNEELING : ' referred to, 120, 145, 236-238, 242. DEVOTIONAL EXERCISES are not as of course evidence of doctrine, 29. absolute expressions in, must be received with qualification, 30. DIVINES : their opinions do not bind the Court, 23, 35. but are only evidence of liberty, 36, 37, 246. arguments based on quotations from, fallacious, 244. if living, do not rank as authorities, 245. ELEVATION (of Paten and Cup) : ruling of the Dean of Arches as to, 1-08. motion to enforce obedience as to, 132-135. the monition to be interpreted by the Articles of Charge, 138. which deals only with one particular mode of, 139. but no sanction of, by Committee, 140. further motion in respect of, 151. judgment in respect of, 156-158. practised by Mr. Bennett, 241. EMBROIDERED CLOTHS: at St. Paul's and St. Barnabas', 43. disallowed by Dr. Lushington, 44. allowed by Privy Council, 75. EMBROIDERED LINEN AND LACE (during Holy Communion) : at St. Paul's and St. Barnabas', 43. disallowed by Dr. Lushington, 44. and by Privy Council, 76. 'ESSAYS AND REVIEWS:' (Appendix, Note D.) ETERNAL PUNISHMENT: Mr. Wilson's views as to, 100. bearing on the subject of, of 42nd Article, 101. opinion of the. Court, 102. 280 Index. FAULKNEE v. LITCHFIELD : referred to by Lord Kingsdown, 72. statement of, in Appendix, 252. HOLY SCEIPTUEE: (See ' Inspieation.') • HOLY WATER: charge as to, not proven, 18S. INCENSE: the use of, during Holy Communion unlawful, 108. but used by Mr. Bennett, 216. its use preparatory to the Holy Communion illegal (Appendix, Note F). INJUNCTIONS : of Edward VI. (1547), 56, 111, 126. . of Queen Eliziabeth, 64, 71, 169, 192. Bishop Eidley's, 70. King Edward's, of 1550, 70. of 1547 do not warrant lighted candles, 126. of 1547 are not referred to in the Ornaments Eubric, 128, 184. INSPIEATION (of Holy Scripture): Dr. Williams' views of, 96. , opinion of the Court thereon, 97. views of Mr. Wilson as to, 98. and opinion of the Court, 99. JUSTIFICATION : views of Dr. Williams as to, 97. statements of 11th Article reviewed, 97. opinion of the Court, 98. 'KING'S PKOCTOE v. STONE:' referred to, 231. KNEELING : {See 'Pbosikamon.') LIGHTED CANDLES (on Communion Table) : allowed by judgment of Dr. PhiUimore, 108. judgment on appeal as to, 122-129. if a beremony they are abolished, 125. not ornaments within the Eubric, 127. Index. 281 . LiaHTED OAmyh^S— continued : motion to enforce monition as to, 132 Mr. Mackonochie's practice as to, 133. during reading of Gospel. (Appendix, Note F.) LORD'S TABLE: ()Ses ' CoMmjNioN Table.*) MACDOUGALL v. PUREIER: referred to by Lord Hatherley, 176. MASS: a term used in first Prayer Book, 68. struck out in second, 69, 72. Articles of 1562 distinguish Lord's Supper from, 69. and so do Bishop Ridley's injunctions, 70. disappearance of vestments used in, 170. MIXED CHALICE: mixing water with wine during administration illegal, 108. but if the mixing be not made at time of celebration, held by Dean of Arches to be legal, 186. this decision overruled, 185-187. NORTH SIDE OF TABLE : ^ is that side which looks to the north, 193-195. the proper position of the Priest during the Consecration Prayer is at the, 196. ORNAMENTS : meaning of generally, 51. meaning of, in ' Ornaments Rubric,' 55. lighted candles viewed as, 127-129. ORNAMENTS RUBRIC: construction of, 51, 127, 128. history of, reviewed, 167-17*. PARKER V. LEACH: referred to by Lord Cairns, 126. statement of, in Apfehbix, Note C. PATEN: {See ' EiiEVATioN.') 282 Index. POSITION (of consecrating Priest) : judgment as to, 191-198. PEEMUNIKE (Statutes of) : brief acoount of. {See ' Inthoduotion.''^ PRESENCE (of Christ in the Eucharist); Dr. Puse/s views as to, 213, 214. Mr. Bennett's, 213-221, 232. the Church of England does not affirm, or lecjuire any, except to the soul of the faithful reeeiver, 234. alteration of Black Rubric as touching the, 236. ' Corporal' is not an equivalent for ' real and essential,' 237. PROCLAMATION: first of Edward VI., 69. second of Edward VI., 60. third of Edward VI., 61. PROSTRATION (before the Consecrated Elements) : held by Dean of Arches to be a question for the Ordinary, 109. but by Judicial Committee to be a question for the Court, 122. during Prayer of Consecration the Priest is to stand, and not to kneel, 118. motion to enforce obedience to monition as to, 132. bo\^ng the knee is a, 142, 147. as is also bowing towards the Table, and so remaining for some seconds, 159. {See ' Aboeation.') PROVISORS (Statutes of) : brief account of. {See ' Inteoduotion.') QUEEN'S BENCH: judgment in, on motion to send appeal to Convocation, 39. REAL PRESENCE: {See ' Pebsencb.') RETABLE : obiter dicta as to propriety of, 79. RITUAL COMMISSIONERS : Report of, as to Lights (Appendix, Note E). Report of, as to Vestments (Appenbix, Note H). , Index. 283 SACRIFICE (In the Holy Communion) : opinions of Mr. Bennett as to, 232. is not an efficacious offering, 239. Bishop Bull's use of the phrase, 239. {See ' Ajltae.') STANDING WITH BACK TO PEOPLE: is a disobedience of the Eubric, 196. not ruled on in Martin v. Mackonochie, where the question was as to posture, 197. STATUTE OF UNIFORMITY: object of, 119, 144. 'SUFFICE' (It shaU): construction of, 189. SUMNER V. WIX: statement of, in Appendix, Note F. SUPREMACY (of Crown in ecclesiastical matters) : history of, vide ' Inteodtiction.' SURPLICE: ordered by advertisements of 1564, 169. reluctance of Puritan party to accept, 170, 173. the only Testment prescribed by advertisement, 178. the proper vestment for the GTergy, 183. TUNICLE : {See ' Vestments.') VESTMENTS (Chasuble, Albe, Tunicle, Dalmatic) : described, Appendix, Note G. worn or sanctioned by Mr. Purchas, 167. ordered by advertisements of 1564, 169. , disappearance of, used in the Mass, 170. obnoxious to Puritan party abolished, 171. no attempt to revive them between 1604 and 1661, 173. 'Ornaments Rubric' reviewed, 174- force of ' at all times of their ministration,' 174, 175. not used since last Act of Uniformity, 176. the Dean of Arches' view that the ornaments of Edward's first Book are prescribed by Eubric of 1662 overruled, 177. 284 Index. VESTMENTS— CO., HBW-STttEET SQ1TA.BE AJTD FABJ.IAUSHT SllUiET