'i«r,-nn(in»t«.»..,fl«i(t<' fy.. ■ ,. .,^^y^. , ; ,W^ ^ jv^v^ ^.f.!^^V:^tf^^ The Folkestone Ritual Case Arguments - Procbbdikgs Judgment and Report CORNELL UNIVERSITY LIBRARY THIS BOOK IS ONE OF A COLLECTION MADE BY BENNO LOEWY 1854-1919 AND BEQUEATHED TO CORNELL UNIVERSITY Cornell University Library BX5155 .R54 Folkestone ritual case : The araument de olin 3 1924 029 446 683 Cornell University Library The original of tiiis 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/cu31924029446683 FOLKESTONE EITUAL CASE. THE ARGUMENT DELIVERED BEFORE THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL (JAiniAEY 23, 24, ?5, 26, 27, 29, 30, 31, and FEBRUABT 1, 1877,) IN THE CASE OE HIDSDALE -• CLIFTON & OTHEES. SIE JAMES STEPHEN, aC, AND ME. AETHTJE CHAELES, Q.C., (ON BEHALF OF THE APPELLANT,) AECHIBALD JOHN STEPHENS, LL.D., Q.C., AND . ME. BENJAMIN SHAW, (ON BEHALF OF THE RESPONDENTS.) TOGETHER WITH THE PEOCEEDINGS IN THE CASE; THE JUDGMENT OE LORD PENZANCE; AND THE REPOET OF THE JUDICIAL COMMITTEE. London C. Keban Paul & Co., i, Paternoster square 1878 INTRODUCTOEY NOTE. The Appeal to the Judicial Committee of the Privy Council, Eidsdale v. Cliftoa and others, had a special importance : it arose out of the first Prosecution under the Public Worship Eegulation Act (37 and 38 Victoria, c. 86, a.d. 1874) ; it was the first Ecclesiastical Suit brought before the Judicial Com- mittee as altered by the "Appellate Jurisdiction" Act (39 and 40 Yictoria, c. 59, a.d. 1876); and it related to questions of Ornament and Ceremonial, the chief of which had been decided in the Case of Hebbert v. Purchas upon only an ex parte hearing. Under the circumstances, and with a view to future publication if considered desirable, it was decided to have a verbatim Eeport of the Argument delivered on behalf of both the Appellant and the Eespondents : this is now printed in the following pages from a Transcript of the Notes of the Short- hand "Writers (Messrs. Marten & Meredith, 13, New Inn, "W.C.) kindly revised by the several Counsel themselves, except that Mr. H. E. Droop has obligingly finished the revision which Mr. Benjamin Shaw had but partly made at the time of his decease. The Documents connecting the Appeal with the original Suit in the Court of Lord Penzance are prefixed to the Argument which is followed by the a 2 iv Introductory Note. Eeport of the Judicial Committee to Her Majesty, tlie Order of the Queen in Council thereon, and the subsequent Eemission of the Cause to the Court below. This volume thus presents the whole Case in a complete form which, it is hoped, will render it the more useful to those who now take an interest in the subject itself, or to any who may have occasion hereafter to consider this recent Judgment of the existing Court of Knal Appeal in Causes Ecclesiastical. T. W. P. October 31, 1877. CONTENTS. PAGE Representation of the Complainants (William Clifton & others) under the Public Worship Regulation Act, 1874 1-5 Declakation by the Complainants of the truth of the Statements contained in the Representation 6-7 Answer of the Respondent (Rev. C. J. Ridsdale) 7-10 Faculty, granted by Sir Travers Twiss, 1870 10-13 Judgment of Lord Penzance, February 3, 1876. Remarks upon the Court and the Public Worship Regulation Act 13-16 Charges against the Respondent 17-18 Construction of the Ornaments Rubric by the Judicia,! Committee 19-21 Insufficient number of Communicants 22-3 The Crucifix on the Chancel Screen 29-32 The Crucifix and Lights on the Chancel Screen 33-4 The Crucifix on the Chancel Screen 35-40 The Stations of the Cross 41-4 Concluding Remarks 45 Appeal of the Respondent 46-7 Monition of Lord Penzance to the Respondent ... 47-51 Application to Lord Penzance and his Refusal to Suspend the Execution of the Monition 51-5 Application to the Judicial Committee for the usual Inhibi- tion, AND THEIR LoRDSHIPS' JUDGMENT THEREON, MaRCH 14, 1876 55-63 The Appeal to the Judicial Committee, 1877 64 Argument of Sir James Stephen, Tuesday, January 23rd. Reasons for asking the Judicial Committee to re-consider the Deci- sion in Hebbert ?;. Purchas 65-8 Argument on the Merits — Vestments 69 Construction of the Ornaments Rubric, LiddeU v. Westerton ... 70 Form of the Judgment, Hebbert n. Purchas 71 Four incorrect Propositions of Fact in Hebbert v. Purchas ... 72-4 The Legislation on Vestments, 1549-1552 and 1558-9 ... ...75-6 The Injimctions, of 1559 only Executive Acts 77 vi Contents. PAGE Internal Evidence that they had not the force of Law 78-9 The Interpretations of the Injunctions, 1561, had only Episcopal Authority 80-1 Their character proves this. They merely hmit the Vestments ...82-3 Queen Elizabeth's Letter to the Ecclesiastical Commissioners, January 22, 15(i0-l, an exercise of her power to make " further Order " under 1 EUz. 2, sec. 2fi 84-5 The Proceedings in Convocation, 1562, shew that the Vestments were then lawful 85-9 The Advertisements of 1564 not issued until 1566, after the Dates of destruction of Ornaments as given in Mr. Peacock's Lincoln- shire Inventories — ^this shewn by a comparative Table of Dates 89-93 History of the Advertisements : the Queen's Letter to Archbishop Parker, January 24, 1564-5, compared with her Warrant for the High Commission Court 94-6 Archbishop Parker's Letter to Grindal, Bishop of London, desiring him to ascertain the Varieties in Divine Service — Return thereon to Secretary Cecil ...96-8 Archbishop Parker to Secretary CecU, enclosing first Draft of the Articles (Advertisements) of 1564-5, and pressing for the Queen's sanction to them 98-9 The Archbishop complains of the evil of delay ; he sends Cecil a new Draft of the Advertisements ' 100-1 The Draft of 1564-5 mentioned the Queen's " consent : " this was omitted in the Draft of 1565-6, thus shewing that the Arch- bishop could not get the Queen's Authority for the Advertise- ments 102-5 Archbishop Parker sends them to Grindal, Bishop of London, March 28, 1566, but writes to Cecil despairing of success if the Queen will not give the sanction for which he had asked 106-8 The Bishop of London sends the Advertisements to the Dean and Chapter of St. Paul's; an expression in the Bishop's Letter explains the meaning of the words "the Queen's Majesty's authority," as used in reference to them 109-11 The Advertisements were against the Nonconformists and the illegal opposition to the Ornaments and Ceremonial ... 112-3 Letter of Bishop Grindal to Zanchius, 1571, shews that the Ad- vertisements had not altered the Law 114-5 Dr. Cardwell considered that the Advertisements did not receive the Queen's authority 116-7 The Advertisements referred to in the Canons of 1571 and 1575 ; the reference omitted before the latter were confirmed... 118-20 Dr. Cardwell considered that the Advertisements had not the Great Seal 121 Wednesday, Jandahy 34th. The Case of Keyley v. Manning as to the Great Seal; comparison with this of the Queen's Mandatory Letter of 1560 ... 122-4 Collier's account of the origin of the Advertisements and of the difficulty in issuing them 124-5 Carte's account of the Advertisements (History of England) ... 126 Neal's notice of the Advertisements (History of the Puritans) ... 127 Summary as to the Date of the Advertisements 128 Summary as to the Authority of the Advertisements 129 The general character of the Advertisements proves that they were not a repeal of the then existing Laws 130-1 Contents. vii PAGE The particular Advertisements relating to the Vestures of the Clergy in their ministrations were not an alteration of the Ornaments Rubric ... • 133-& Other portions of the Advertisements also prove that they were not an alteration of the Laws then in force 134-5 The Advertisements were to secxire the use of the Surplice when most of the other Vestments were illegally destroyed ... 136-7 No negative words in the Order to wear a SurpUoe 138 The Surphce and other Vestments were worn together 13t> The Vestments, how ordered to be worn in the Rubric of 1549 ... 140 The Notes in the Prayer Book of 1549 require the Bishop to wear three Vestments 141 The Advertisements were not Law at all ; they differed materially from the form of the Injunctions of 1547 142-3 The Decision of the Judicial Committee, in Phillpotts v. Boyd, applies to the Advertisements 143-4 The Ornaments Rubric continued unaltered in aU the Elizabethan Prayer Books published after the Advertisements ... ... 145 The substance of the Judgment, as to Vestments, in Hebbert v. Purchas 146 The Canons of 1604 were not, as held in Hebbert v. Purchas, the authority for the Prayer Book of 1604 147 Letter of King James, February 9, 1603-4, to the Archbishop of Canterbury, authorizing alterations in the Prayer Book of 1559 148-9 Royal Proclamation ordering the use of the Prayer Book of 1604 150 The Canons of 1604 were made after that Proclamation 151 Canon 80 required the Parish to provide the Prayer Book as altered under the Statute 1 Eliz. 2, sec. 26 ... ... 152-3 The Canons of 1604 could not alter the Prayer Book 154 Judicial Opinions (Justices Blackburn and WiU.es) as to the force of these Canons ... 155 Supposed effect of the Canons of 1604 upon the Rubric, not warranted by Canons 24, 25, and 58 156-7 The Advertisements were not made Law by Canon 24 158 A minimum of Rubrical requirement, as to the use of the Common Prayer recognised in Canon 14, though the Rubric of 1604 ordered Daily Service 159-60 Effect of the Canons of 1604 upon the Rubrics 161 Proposal of the Lords' Committee in 1641 shews that the Vest- ments were then lawful ... 162-3 The Advertisements — how described by the Committee 164 The Rubric — how understood at the Savoy Conference 165 The Ministers objection at the Conference to the Rubric, as answered by the Bishops, and the Puritans' Rejoinder to the Bishops, shew that both considered the Rubric was kept in force 166-9 No real difference between the Rubric of 1604 and 1662 ... 170-1 Comparison of the Rubrics of 1559 to 1662 172 Cosin's reason for altering the Rubric 173 The Proviso of the Act of 1559 and the Rubric of 1559 formed the Rubric of 1662 ; Cosin professed to foUow the Act ... 174-6 The alteration was not made to satisfy the Puritans 177 The word "retained" was taken from the Elizabethan Act, and therefore did not refer to existing practice 178-9 Effect of Section 24 of Statute of 1662 upon other Acts 180 viii Contents. PAGE Black Letter Prayer Book of 1636, with MS. , Notes, used in the Eevision of 1661, furnishes proof that the change then made in the Ornaments Rubric was not " material " 181-2 The Rubric, as altered in 1661, consistent with Cosin's Notes on the Prayer Book which maiutain the lawfulness of the Vest- ments ... ... ... ... ... .•• ••• 183-5 No evidence that Cosin had changed his opinion in 1661 186 The Vestments, though disused, held to be lawful by Writers of authority from 1710 to 1845 187-8 Opinion of the Judicial Committee, in Hebbert v. Purchas — ^that the Advertisements had the Queen's Authority— not sustained by their Lordships' reference to McDougaU v. Purrier and to the alleged Royal Commissions 189-92 Inquiries for the SurpUce, in the Visitation Articles of Cosin and others, did not exclude the Vestments — this shown by Cosin's Notes 192-5 The view of the Judicial Committee — that long disuse of Vestments impUes UlegaUty — disproved by other instances of undisputed Rubrical directions ; and by notorious violations of imdoubted CivU and Ecclesiastical Laws 195-9 The Antiquarian character of the Rubric would partly account for the long neglect of its directions 200-1 Thuesdat, Januaby 25tli. The Case, as to the Vestments, really rests upon the Rubric of 1662 alone 202-3 Meaning of the Rubric plain and obvious 204 Judgment of the Arches Court, in Hebbert v. Purchas, was justified by the previous decisions of the Consistory and Arches Courts and of the Judicial Committee in Liddell v. Westerton 205-8 History and meaning of the Rubric stated by the Judicial Committee in Liddell «). Westerton 209-10 Inquiry of the present Court as to the variation of the language in the Ehzabethan Rubric 211-2 The Interpretation of the Rubric by the Judicial Committee in Liddell v. Westerton, confirmed by the Judicial Committee in Martin v. Mackonochie, and by substituting for " such Orna- ments " their names .... 213-6 The Rubric not altered in the Ehzabethan Prayer Books printed after the Date of the Advertisements ... 216-7 Reason for inserting the Act of Uniformity, 1559, in the Ehzabethan Prayer Book 218 II. The Wafer Bread. The Charge as to Wafer Bread, evidence in the Court below as to its use 218-20 The shape, not the material, objected to 220 No shape prescribed in the Prayer Book 221 No new ground taken before the Judicial Committee 222 The charge the same as in Hebbert v. Purchas ... 223 No offence, unless it is proved that Bread was not used 224 Proposition of Law — the form of the Bread not illegal 225 Proposition of Pact — the substance is Bread 226 The charge compared with the Rubrics of 1549 to 1662 : and with the Rubric in the Scotch Oifice of 1637 227-9 Contents. ix PAGE The Elizabethan Rubric and Injunction of 1559 229 Object and origin of the Injunction ... ... 230 The Injunction not consistent with the Rubric 231 Inquiry of the Court as to the Authority of the Scotch Office of 1637 232 Abp. Parker's account of the opposition to Wafer Bread ... 233-4 Order of the Privy Council 1580, on Wafer Bread, to Bp. Chaderton as one of the High Commissioners 234-5 Wafer Bread used in Canterbury Cathedral in 1569 235 Cosin held Wafer Bread to be lawful — relates where it was used ... 236 The Elizabethan Injunction described the Wafer Bread 237 III. The PostiioN of the Celebbakt. The charge as to the Position of the Celebrant : the Position a sub- ject of much controversy 238 The Rubric as to the Position, how altered in 1661 239 Order of the Rubrics in the Communion Office, considered... 240-1 The Position complained of is a legal one 242 The Rubric as to the place of the Lord's Table involves a discretion in the Celebrant's Position 243-4 The meaning of the Rubric discussed 245 The term " North side " supposed to refer to the general position of the Table in 1552, but the fact of its " table-wise " position is questionable 246-9 Instances where the Rubrics might imply change of place or position by the Celebrant, and would not necessarily require him to be at the " North side," i.e. the end looking south... ... 249-52 The placing of the Elements upon the Table brings the Celebrant on the West side of the Table, facing East : no Rubric alters his place for the Exhortations, Confession : the Absolution only makes him turn to the people 253-5 The reply of the Bishops to the Puritans at the Savoy Conference, on the " Minister's turning," illustrated by the Prayer of humble access 256-7 The Rubric before the Consecration Prayer : meaning of " before the Table " illustrated 258-9 The practice of Cosin, Laud, and Wren 260 Discussion by the Court as to the Place or the Shape of the Table, affecting the meaning of " before " 261-2 The Revisers of 1661 favoured the Altarwise position of the Table 263 Meaning of " before" in the Marriage Service and also in the Coro- nation Service 264-5 Meaning of "before the people " is consistent with the Eastward Position of the Celebrant 266 The Position of the Celebrant as held by the Judicial Committee in Hebbert v. Purchas : their Lordships said that the meaning of " North side " is not to be inferred from pre-reformation terms, nor from the analogy of Jewish Ritual ... 268-71 Their conclusion virtually alters the Rubric. Also it requires the remodelling of the Rubric " When the Priest, standing before the Table," &c 272-3 Bearing of the Privy Council Judgment, Martin v. Mackonochie upon tbis subje^: how applied by Sir R. PhiUimore and by the Judicial Committee in Hebbert 1). Pui'chas 274-6 Usage can be shewn of the Eastward Position in the English and the American Church 277 X Contents. Friday, January 26th. page Supplementary remai-ks on the meaning of the word " Wafer " 278-9 rV. The CRUciFrx. Charge as to the Lawfulness of the Crucifix 279-80 Question — whether the Faculty for the Screen included the Crucifix — remarks of the Court ... 280-1 Bearing of the Pubho Worship Regulation Act upon the Crucifix 282 The facts as to the erection of the Screen and Crucifix, shew that both were put up together ... 283-4 Is the Crucifix a " decoration forbidden by Law " ? If not, it is protected by the Faculty ... 285-6 Distinction as to a Faculty in proceedings under the general Eccle- siastical Law and the Public Worship Regulation Act... 287-8 Lord Penzance held the figure to be illegal 289 The Judicial Committee asked to review this decision ... ... 290 The grounds of Lord Penzance's Judgment compared with Liddell V. Westerton and with Plullpotts v. Boyd 291-2 Examination of Lord Penzance's apphcation of the Cases ... 293-4 Is the Crucifix an object of " superstitious reverence " ? ... 294-5 Article 22, and the Council of Trent as to veneration of Images 295-6 Discussion of Lord Penzance's view of the meaning of the language of the Council 297-8 Article 22 not opposed to the use of Images and other objects of Art as aids to Devotion 299-300 The Lights on the Screen and near the Crucifix not deemed illegal by Lord Penzance ; yet the history of the Crucifix and its con- nection with the Rood, held by him to be adverse to its restor- ation now 301-4 But a superstitious use of Images not a present or probable danger 304-5 Lord Penzance considered " intellectual culture " not a safeguard against " superstition " — this discussed, and also his view of the case of " the weak and ignorant " 306-9 The long continuance of the Crucifixion in the window of St. Mar- garet's, Westminster, adverse to the supposed danger... 309-10 Superstition not generally caused by Works of Art 311 The Crucifix alone, thought by Lord Penzance to be inferior as a Church decoration — this discussed ... 312-3 Conclusion of the Argument, summary as to the Crucifix, the Wafer Bread, the Eastward Position, and the Vestments ... 314-6 Printed Papers laid before the ConRi and referred to in Sir J. Stephen's Argument. No. I. Tabular view of the dates of destruction of Church Ornaments, recorded in Mr. Peacock's Lincohishire Inven- tories 316 No. II. Parallel view of the Ornaments Rubric 1559 to 1662 317 No III. The Ornaments Rubric as altered in Cosin's hand- writing in a Prayer Book of 1619 317 No IV. Dates referred to during tlie Argument ... 818-9 Argument of Mr. Arthur Charles. The Ornaments Note unambiguous 320 The Judicial Committee in Hebbert v. Purchas, held that the Rubric was "recast" — this discussed 321-2 Contents. xi PAGE The Rubric was based upon the Act of 1559, where the word " re- tained" refers to the future: proof of this from Cosin and Sanoroft ; tlie language of the Judicial Committee in Martin v. Mackonochie compared witli tliat in Hebhert x\ Pm-chas 80-^-5 Tlie objections of Baxter and others to the New Rubric, shew tliat it was unchanged 326-7 Cosin's Visitation Articles, 1662, do not support tlie view taien by tlie Judicial Committee, in Hebbert v. Purchas : they were framed upon tlie Prayer Book of King James 327-9 Meaning of the Rubrical words " at all times " 330 Supposed Legislation between 1559 and 1662 : the Injunctions were not tlie " other order " of the Act of 1559, they did not au- tliorize tiie destruction of the Ornaments which took place S81-S The " Interpretations of tlie Injunctions," their authority 334 The Advertisements were not the " other order " — ^tlus shewn by Queen Elizabeth's Letter about tlie New Lessons ; by the Title of tiie Advertisements themselves ; and by the terms in which . the Visitation Articles of Parker, Cox, and "Wliitgift describe them 335-40 The Letter of Queen Ehzabetii to Abp. Parker, Ausinst 20, 1571, also sliews tliat die Advertisements were not the " other order " of the Statute of 15, Ml 340-1 The Canons of 1604 were not tiie " other order ' ; for they were not made acoorduig to the Statute of 1550 342-3 The Alteration of the Prayer Book by King James in 1603, was professedly by Authority of the Statiite : the King's Com- mission for altering the Book : his Proclamation authorizing its use ... ... ... ... ... 344-7 The Piiiyer Book thus altered had a Statutory force which repealed the Advertisements even if they were Law 34S Canon 14 enforces the Book of 1603 : Canon 24 may be dispen- satory 348-9 The " good laws and statutes " maintained by the Act of 1602 do not include the Canons : this further shewn by the terms of the Act of 1553 350-3 n. Thk "Wafer Bbe&d. The Chaise as t» the use of Wafer Bread discloses no Ecclesiastical offence • 353 Discussion — ^whetiier. in the Court below, any distinction was di-awn between Wafer and Bread 353-5 Saturdat, Jaxfart 27th. The Charge further considered — the Appellant admits using Wafer Bread : tlie form is the only charge 356-T The Rubrics of 155!) and 1662 as to the Communion Bread 357-S The Injunction of Queen Elizabeth not conb-ary to tlie Rnbiic of 1550 — tliis shewn by Abp. Parker's Letter to Cecil stating his conversation with the Queen 358-60 Common Bread disliked for the Sacrament in Ei^land and Greneva — .360-1 Bishop Wren wished Wafer Bread to be mentioned m the Rnbno of 1602 ••• ^ — .— 362 Visitation Arddos of Parker and TSren as to the Commumon Bread '^"--'^ xii Contents. PAGE No proof given of incompliance with the Rubric by the Appellant... 364 " It shall suffice " could be pleaded if necessary 364-5 III. The Position of the Celebrant. The Eastward Position — ^the standing of the Celebrant " before the Table " justified by the history of the Rubric 365-6 Discussion by the Court as to this mode of proof 367-8 When the words of the Rubric were only " stand up," Cosin and Wren used the Eastward Position 368 Wren impeached for it: his defence as prepared though not de- livered 369-70 Cosin articled for it : the Articles rejected 370 " Before the Table," when one side of the Table is against the Wall, must mean on the West side of it 371-2 The Canons of 1640 recognise this Position of the Table, and so bear upon the Rubric 372-3 " Before the people," means in their presence 374 In their " sight," was proposed at the Savoy Conference, but was not put in the New Rubric ... -375-6 The Rubric compared with one in the Marriage Service 877 The Rubric was prepared by Cosin and Wren 378 Error of the Judicial Committee in Hebbert v. Purchas, as to the date of Cosia's Visitation Article touching the Celebrant's Position : it was 1627 not 1687 379-80 rV. The Crucifix. The Crucifix — if in itself a legal Ornament, the Court may issue a Faculty for it under a provision of the Public Worship Regu- lation Act 381-2 Lord Penzance held it to be illegal — this tested by the opinion of the Judicial Committee in Phillpotts v. Boyd 383-4 Inquiry of the Court — whether the Prayer Book of 1549 was ac- cessible in 1662 384-5 Argument of Dn. A. J. Stephens for the Respondents. The question as to the Vestments is — are the Chasuble and Alb legal Ornaments? 386 Order iu the Prayer Book of 1549 as to the Ornaments of the Minister 387 Distinction to be made between Sacrificial and non-Sacrificial Vest- ments 388-9 Two classes of Copes— superstitious and plain 390 The Surplice and Alb cannot be both worn together ... 390-1 Charge as to the Cope made in the Prayer Book of 1549 392 The Prayer Book of 1549 was a compromise : it was superseded by the Book of 1552 393-4 The Elizabethan Act of Uniformity : its Proviso as to the Vest- ments illustrated by the Case of Sir Edward Walgrave, 1561, and other Ecclesiastical proceedings 394-7 The Injunctions of 1559, whether or not issued under the Act of Uniformity, were always received as Law : they led to the destruction or disuse of Albs and Chasubles : tms shewn by the Inventories given to the Visitors 397-401 The Commission of 1559, how composed ... 402 Contents. xiii PAGE Did the Conunissionera destroy lawful Vestments and other Orna- ments? The question discussed in reference to Mr. Peacock's Lincolnshire Inventories 403-6 Distinction between Superstitious and Decent Copes — shewn from Parkhurst, Rushworth, Cosin, the Canons of 1603, Peter Smart's language, the Order of the Queen's Commissioners at Oxford, and Dr. Rock 406-9 The Injunctions of 1559 : uncertain what Vestments they prescribed : the doubt removed by the " Interpretations of the Injunctions" — the true date of these is 1559 not 1561, proof as to this 410-13 The " Interpretations " ordered the Cope and the Surplice : thus the non-Sacrificial Vestments only were kept : this further shewn by the Vestments worn at Parker's Consecration and at the Service in the Queen's Chapel 414-6 Proceedings in the Synod of 1562 as to the Vestments 417 The controversy in Queen EUzabeth's reign related to the Cope and the Surphce, not to the Chasuble and the Alb 418-9 The Queen's Letter to Archbishop Parker, January 25, 1564-5, as to Varieties iu the Service : the return to the Inquiries conse- quently made led to the preparation of the Advertisements 420-22 The Advertisements : considerations as to their authority ... 422-3 Bishop Grindal sends them to the Dean and Chapter of St. Paul's 424 Articles presented to the Queen in 1583, recognize them ; they are also recognized in the Canons of 1575, in Visitation Articles from 1569 to 1603, by the Oxford Commission of 1573, and by the Canons of 1603 and 1640 425-8 The Use of the Surplice was the point in dispute at the Hampton Court and Savoy Conferences 429-30 Acts of Uniformity are inconsistent with a theory of Maximum and Minimum Ritual 431-2 Charges presented by the House of Commons to the House of Lords against Cosia ia 1640 432-3 Cosin's Notes on the Book of Common Prayer as to the lawfulness of the Vestments ... 433-4 " Shall be retained and be in use " — meaning of the language 435-6 Interpretation of the Rubric by the Judicial Committee in Liddell v. Westerton : that Judgment only recognizes as legal those Ornaments which are required by or are consistent with the Services 437-9 Unlikely that the House of Commons in 1662 would restore the Alb and the Chasuble 439-41 The Ehzabethan Act of Uniformity, 1559, not repealed 441 The word " retained " must be read by the state of things in 1662 442-3 No use made of the Chasuble and the Alb since 1559 443 Summary of the previous Argumen,t 444 Result of the foregoing Argument 444-5 II. The Eastward Position. The Eastward Position — it must be considered with reference to the legal place and position of the Table , 445-6 The Table, in Communion-time, must not stand at the East End of the Church, along the wall 446-8 The Reformation sought to get rid of the Roman CathoUc Altar, and of its old place in the Great Chancels at Commimion- time 449-51 xiv Contents. PAGE The place and position of the Table must be determined, in order to construe the Rubric and the Injunction of 1559 — illustrations of this 451-4 The 82nd Canon of 1603-4 further settles the place 454-5 The Table must be moveable : so held by the Dean of the Arches in Faulkner v. Litchfield ; and thus ruled in Bancroft's Visita- tion Articles, 1605 455-6 Archbishop Laud sanctioned the placing of the Table Altarwise, in and out of Communion-time, in Gloucester Cathedral ; also at St. Gregory's near St. Paul s, by an Order in Council... 456-60 Archbishop Laud was charged, in 1644, with placing the Table Altarwise at Lambeth 461 The Archbishop and other Prelates acted illegally in placing the Table Altarwise: Pierce, Bishop of Bath and Wells, an example ... 462-4 Letter of the Bishop of Lincoln, 1633, on the legal place of the Table 464 Comments of the Dean of the Arches, in Faulkner v. Litchfield, upon the controversy, in 1627, between the Vicar of Grantham and Bishop WiUiams 465-7 Order of the House of Commons, 1640, as to the place of the Table in Westminster Abbey ; and of the House of Lords, 1640-1, as to Lincoln and other Dioceses 468-9 The Rubric, "The Table at Communion-time," &o., forbids the Altarwise Position of the Table then 470-1 Resistance of the Laity to Archbishop Laud's Innovations ... 472 Order of the House of Commons, 1641, to remove the Table from the East End of every Church, and to take away the Rails ... 473 Joint Order of the Lords and Commons, 1643, to the same purpose 474-6 The Tables were not placed Altarwise between the Restoration and the Act of Uniformity, 1662 476-7 The Revision of 1662 did not afi'ect the place of the Table at the Communion-time : this shewn from the MS. Book originally attached to the Act of Uniformity, 1662 478-81 Effect of the Rubric in the MS. Book before it was altered therein 482-3 The Direction of the Table 483 The word " Side," in the Rubric as to the " North side," is not equivalent to the term " End " : this shewn by Wren's Orders, 1636 ; Laud's Defence, 1644 ; and Return from the Dean and Chapter of Canterbury, 1564 484-7 This Rubric was not changed in 1662 487 Meaning of " Side " in the Welsh Prayer Book 487-8 Causes of the present Ulegal place and direction of tlie Table shewn by the speech of Sir T. Littleton in the House of Commons 488-90 Doctrinal significance of the Altarwise position of the Table since the publication of tlie Tracts for the Times in 1841 491 No Practice or Disuse can repeal or afi'ect the positive enactment of a Statute 492 The Position of the Minister at " the North side " held, in Hebbert V. Purchas, to apply to the whole Office 492-4 The omission of the Manual Acts, from 1552 to 1662, made it need- less for the Celebrant to turn to the Table 494-5 The absence of the Manual Acts is recognized by the 21st Canon of 1603. These Acts restored in 1662. The Rubric then altered 495-6 The Decisions of the Judicial Committee, in Hebbert v. Purchas and Martin v. Maokonochie, on the true construction of the Rubric ... ... ... ... ... 497-9 Contents. xv PAGE Further proof from the Non-Jurors' Office in 1T18 499-600 Meaning of " before the people," illustrated from Laud, Wren, Gosin, and the Welsh Prayer Book 500-2 Result of the foregoing Argument 503 Bearing of Latin and Greek Translations of the Prayer Book 502-4 III. Wafee Bread. Wafer-bread, the Charge as to : the Rubric as to the Communion bread 504 Puritan Objections — an Answer to them quoted: its authority questioned by the Court 505-6 " It shall suffice " — the Words first introduced in 1553 506 Opinion of the Judicial Committee, in Hebbert v. Purohas, as to the Elizabethan Injunctions for Wafer-bread 506-7 Proposal to insert in the Rubric permission for Wafer-bread, not adopted 508 A Circular Wafer is not in accordance with the Rubric 508 IV. The CEnomx. The Crucifix — ^its description by the Appellant 509 The Crucifix was part of the old Rood : it was an abused Image, being an object of adoration 510-12 Abused Lnages were ordered by the Injunctions of 1547, and the 3 and 4 Bdw. 6, c. 10, 1549, to be destroyed : therefore the Rood or Crucifix is illegal 513-3 Conclusion of the Argument — the Charges against the Appellant are part of a system opposed to the Acts of Uniformity 514-5 Akodment of Mb. Benjamin Shaw, Wednesday, January 31st. Mr. Shaw proposed to notice chiefly the Vestments and the East- ward Position 515 I. The Vestments. The Injunctions of Queen Elizabeth were an Order under the Act of Uniformity of 1559 516-7 Objection — there were no Ecclesiastical Commissioners when the Injimctions were drawn up — this answered 517-8 The tijunctions mention Commissioners ; this implies their existence ... 519 Lord Coke's remarks as to the first Commission, and the Depriva- tion of some Marian Ecclesiastics, imply the existence of a Commission earlier than July 19, 1559 519-33 If no Commission existed before, the Commission of July 19ih was early enough to assent to the Injunctions before their Publication 523-5 No Visitors acted before the Warrant of July 19th 536 Other objections answered 537-8 The Advertisements were a good Order under the Elizabethan Act of Uniformity 538-9 Minute in the Privy Council Register, 1566, as to Crowley's Case, seems to refer to the Advertisements 529-30 Letters in the Parker Correspondence, about Crowley and the in- tervention of the Council, shew that the dispute related to the Advertisements ... ... ... ... 530-33 xvi Contents. PAGE Hooker refers to the Advertisements as " confirmed by Her Majesty's authority" 532-3 Cosin and Wren said that the Advertisements were authorized by the Statute 1 Eliz., c. 2 534-5 Meaning of the term "Public authority" illustrated by examples of its use 535-6 The Advertisements were not a mere Episcopal order ... 537-8 The reference to them by the Lords' Sub-committee of Divines, 1641, did not relate to the Vestments ... ... ... 538-9 Commissioners being appointed to take Order, no further formal authorization by the Crown was needed for the Advertisements 540 Queen Ehzaheth's Letter to the Archbishop and the other Eccle- siastical Commissioners, as to the Calenders : no further formal sanction of the Crown to acts done by them under that Letter 540-2 An Order, as to Kood Lofts, made later under the authority of that Letter 542-3 Another Letter from the Queen to Archbishop Parker, autliorizing him to publish Prayers and Orders for fasting during the Plague, was prospective : no evidence of subsequent ratifica- tion of his acts 543-4 If formal ratification was needed, it must be presumed ... 544-5 Order under the Great Seal not requisite ... ... 545 No improbability in a ratification of the Advertisements having been lost 545 The Canons of 1604 were a good Order under the Elizabethan Statute 546 The Power given to the Queen, under 1 EUz., c. 2, ss. 25 and 26, survived to Her successors 546-8 Archbishop Laud justified Copes by the Canons only, not by the Rubric 548-9 The Injunctions, Advertisements, and Canons, did not ordain only a Minimiun of observances : proof of this from Jewel, Bancroft, the Rubric of 1662, and Enquiry of Sancroft, 1686 ... 549-52 How far contemporaneous and long continued usage may influence the construction of a Statute 552-3 The Commission for the Savoy Conference and the Preface to the Prayer Book of 1662, only contemplated express alterations from accustomed forms; not the making of alterations by leaving a Rubric unaltered 554-6 Was the Proviso in the Elizabethan Statute, as to Ornaments, repealed? 557 Mere re-enactment does not repeal intermediate legislation 558-9 The Rubric is a general clause of reference as to Ornaments ... 559 The Advertisements and Canons are specific provisions only as to the Dress of the Minister 559 Alterations of the Rubric in 1662 559-60 The word "retained" must be construed in connexion with the omission of the words " at the time of the Commimion " &c., and the substitution of the words " at all times of their ministration" 560-3 The language of the Judicial Committee, in Liddell v. Westerton, only oftiter dictem as to the Vestments 563-4 The opinions of the Revisers of 1662 inadmissible in the con- struction of the Rubrics 5(55 Baxter's Bill for the relief of the Puritans only mentioned the Surplice 665-6 Contents. xvii II. The Eastward Position. PAGE If the Table may oven stand at the East End of the Church, the Minister must not have Ills back to the people 560-7 Discussion as to evidence which Sir J. Stephen could have offered of the use of the Eastward Position during the last 120 years in tlie Church of England 568-9 Evidence of living persons must be -given by parol 570 " Before tlie people " are the important words of the Rubric ... 571 They are not a mere protest against secret Consecration 57a The marginal Rubrics would prevent this 67.'i Meaning of "before" in the Baptismal and Marriage Services: illustrated by "in presence of testator" : tlie meaning to be ascertained from contemporaneous sources, viz., Puritans' Savoy Liturgy, Directory' for Public Worsliip, A Lasco's Liturgy, 1550, Tradale's Supper of the Lord, 1583 ... 674-80 Hooper contrasts public and secret breaking of the Bread ... 680-1 Bishop Juxon's Inquiry, 1640, impUos that the Chm-chwardens could see tlie Manual Acts, the Minister being at the North End 581-2 Arclibishop Laud's answer as to the Scotch Rubric, and Wren's Defence were known at tlie Revision of 1662 : this adverse to the contention that " before the people '' means the Eastward Position 588-6 The Non-Jiu-or's rubric, " in the view of the people " opposed to tlie Eastward Position 585 Usage subsequent to 16(VJ shown from Visitation Articles and from ilie writings of Beveridge, Horneck, Ken, Patrick, and WUson 586-8 The Rubric not miu'kod for alteration in 1689 588-0 Further Arguments as to "before" 689 " Before the Table," in tlie Marriage Service : Dm-eU's translation, 1667 590 The Celebrant not to stand witli " back to the people " during the Pmycr of Consecration — L'Estrange's AJQiance of Divine Offices 591 The term " Nortli Side " applies generally to tlie Minister's Position 592 Standing " before tlie Table " is limited to Uie ordering of the Elfflnents 893 After " ordeiing " the Minister is to retiu-n to the North End ... 594 The wording of the Rubric unaccountable unless it related to "ordering" 595 How tlie difficulty was met in the Scotch Prayer Book and in the Book of 1662 596 Language of the Judicial Committee in Martin v. Mackonoohie ... 597 "Standmg" applies to the Prayer: "before tlie Table" does not 598 If standing " before the Table " apply to the Prayer, it must not be repugnant to " before the people " 699-600 The words 'jit " and " before," how used by Ooverdalo, A Lasco, and the Welsh Pi-ayer Book 600-1 Certain meanings are inapplicable when the Table stands East and West 601-2 if the Eastwiu-d Position be right, the Ordinaries contradict Canon 82 by placing the Tablo at the East end of the Chancel 608-4 b xviii Contents. Thdrbday, Febbuaby 1st. FAQG Inquiry by the Court— whether the Puritans replied to the Bishops' Answer, " Minister's tui-ning," &c. Sir J. Stephen answers it from " The Grand Debate." Mr. Sliaw's remark upon the passage 604-0 Recapitulation of the Argument as to " back to the people " G07-8 III. Wafees. Wafers — evidence of their shape and appearance ... 608 Remarks as to whether Sir J. Stephen agreed in the Court below to admit that the Wafer proper was used 609-10 The " Superstition " referred to in the Rubric, was connected with shape ... ... ... ... 010 The words " It shall suffice " must be imperative 611 The Rubric in the Scotch Prayer Book of l(iH6 allowed Wafer Bread; the framers of the EngUsh Rubric in 1661 did not foUowit 011-2 The Elizabethan Injunction probably M^ira i;irM 612 Archbishop Laud's testimony to the use of ordinary Bread ... 612 IV. The Cbuoiwx' Romish doctrine as to the worship of the prototype 613 The Crucifix is not a mere Architectural Decoration 614 Conclusion — the Acts of Uniformity are imperative : if the Appeal be allowed the things complained of must be enforced on all... 616 Reply or Sib James Stephen, Thursday, Fedruaby 1st. Sir J. Stephen's explanation of what occurred in the Court below as to Wafer Bread 615-7 I. The Vestments. The Vestments were opposed on Doctrinal grounds by Council for the Respondents : but the Doctrine held lawful in Sheppard v. Bennett 018-20 The Argument of Dr. Stephens was contrary to the First Prayer Book and to the Act of Uniformity, 1552, which described it as a "very Godly Order" 620-1 This further shewn by the restoration, in the Elizabethan Prayer Book, of the words used at the delivery of the Sacrament in the Prayer Book of 1549 622-4 Bishop Latimer's opinion of the Communion Offices of 1549 and 1552 corroborates this view 624 The Argument for the Respondent took different ground from that on which Hebbert v. Purchas was decided g24 The Vestments were not abolished by the Injunctions of 1559 : they were not named in them, and the Injunctions were to carry out the Prayer Book 625-6 The Judicial Committee in Hebbert v Purchas, held that the In- junctions only ordered Inventories of the Vestments to be made 627-8 No evidence of any Commission to destroy Vestments ... ... 628 Contents. xix PAQB Mr. Peacock's Lincolnshire Inventories no proof of their authorized destruction of Vestments 629-30 The so called " superstitious " Copes at Durham 630-1 Vestments were assigned for use in the Services, e.g., at Bodmin, in the eighth year of Elizabeth 631-2 The Prayer Book of 1 549 shews that the Alb is not, as was con- tended by Dr. Stephens, from Dr. Rock's " Church of our Fathers," a "sacrificial" Vestment: remarks upon the subject by the Court and Dr. Stephens 633-6 Question of the Lord Chancellor — whether the Prayer Book of 1549 allowed a Celebration without Communicants? Answer of Sir J. Stephen 686-7 The Injunctions of 1559 were not, as contended by Mr. Shaw, an Order under the provision of the Act of Uniformity of 1559 638-9 There were no Ecclesiastical Commissioners in 1559 who had authority to assent to the Injunctions 639-40 The Injunctions of 1559 were an Order by the Queen in CouncU ... 641 The 28rd Injunction of 1559 as to Monuments of Idolatry, was copied from the Injunctions of Edward VI 641-2 The Injunctions, according to the Judicial Committee in PhiUpotts V. Boyd, were only an administrative act 642-3 The Vestments were not monuments of superstition and idolatry... 644 No proof has been given of the Royal Sanction to the Advertise- ments 644-5 The Parker Correspondence proves the contrary: it, and the Preface to the Advertisements, and Grindal's Letter to the Dean and Chapter of St. Paul's, shew that the Advertisements were not the Queen's Laws 646-50 Discussion by the Court as to the bearing upon the Advertisements of the Queen's Order to Parker and Grindal 650-1 The Advertisements, as to Apparel, refer to the Injunctions : Grindal claimed no more than this 652-8 Counsel for the Respondents admitted the Queen's delay to assent to the Advertisements 653-4 The joint Letter of Parker and Grindal, March 20th, 1565-6, and Parker's Letter to Cecil, March 28th, 1565-6, prove that they could not gain the Queen's authority 654-6 Furtlier proof from Parker's last Letter to CecU, April 28, 1566, and from the different language which he used when he could recite the Queen's Authority 657-9 The Parker Correspondence was not adverted to by the Counsel for the Respondents : but presumptions and supposed penalties were pressed in favour of the alleged authority of the Adver- tisements 659-61 Discussion by the Coiu-t whether Sect. 25 of 1 Eliz. c. 2 is repealed by the Act of Uniformity of 1662 662-3 Some of the Authorities cited in favour of the Advertisements are only in the nature of Secondary Evidence 663 The legal inferiority of the Advertisements is shewn by the term " public authority'' &c. applied to them : though Hooker and Wren assign to them the Queen's authority 663-5 Meaning of the expression " gospeller and epistoler agreeably " ... 666 , The Canons and Prayer Book of 1604, — re-statement of the argu- ment as to their bearing upon the Ornaments Rubric... 667-8 Discussion by the Court as to the authority by which the Prayer Book of 1604 was issued 668-9 The Prayer Book of 1604 re-enacted the Ornaments Rubric ... 070 XX Contents. PAGE The Canons of 1604 were not, as contended, made under Sect. 25 of 1 Eliz. c. 2 : they had not the assent of the Ecclesiastical Com- missioners or the Metropolitan : if made under the EUzahethan Act of Uniformity they would bind the Laity, but they do not 671-3 The Canons of 1604 enforced the SurpHce, but did not limit the Rubric 673-4 Archbishop Laud's defence of the Cope from the Canons only was pohtic 674-5 The Ornaments Rubric considered by the Judicial Committee, in LiddeU v. Westerton ; the ratio decidendi included Vestments under the definition of Ornaments 675-7 The meaning of the Rubric will be further shewn by making certain substitutions for the words " Authority of Parliament," &c. 678-80 The Rubric is too plain to need a resort to Legal Rules of construc- tion for its intepretation : the Case of Gorham v. Bishop of Exeter, cited by Mr. Shaw, does not apply 680-1 No intention, as alleged, of altering the Ornaments Rubric in 1662 682 The Visitation Articles of Bishop Cosin, 1662, do not support the view drawn from his use of the words "at all times of their ministration" 683-4 Question of the Court answered, as to the Ornaments Rubric being part of the Act of Uniformity, 1662 684-5 II. The Eastwabd Position. The Eastward Position : contention of Dr. Stephens — that the present position of the Table is illegal — opposed to his Arugument against Vestments : yet not consistent with His- torical Fact 685-8 Mr. Shaw's argument upon the words, " Before the people," does not prove his contention as to the Position of the Celebrant 688-90 Translation of the contested words, in Latin and Greek versions of the Prayer Book, support the Eastward Position ... 690-1 Question of the Court — whether the Communicants could see the Manual Acts? — answered 692-3 m. The Wafee-Bbkad. The Wafer-bread : re-statement of the Argument for it 694 The Shape of the Bread is the real Charge — that is no offence 694-6 IV. The Cbbcifix. The Crucifix : the Trent Doctrine as to it was not acted upon by Mr. Ridsdale 695-6 Two points omitted in Uie Reply as to the Vestments and the Ornaments Rubric ... 697 The Judgment of thi-: Judicial Committee. The four points upon which the Appeal to the Judicial Committee was brought, viz., tlie Vestments, the Eastward Position, the Wafer-bread, and the Crucifix , 699-700 Whether the Decision in Hebbert v. Purchas is absolutely con- clusive ; the Court holds itself free to examine the Reasons of it 700-2 Contents, xxi I. The Vestments. PAGE The Vestments : the Rubric Note of 1662 did not repeal the Law 702-3 The Rubric, if the only Law, is not optional 703-4 The state of the Law previously: the Rubric in the successive Prayer Books 7044 The Elizabethan Rubric was quahfied by Sections 25 and 26 of the 1 Elizabeth, c. 2, 1559 : that Rubric was only a Memorandum 705-7 The Advertisements were an Order under the Statute of Elizabeth : Grindal's Letter to the Dean and Chapter of St. Paul's, May 21, 1566, a proof of this 707-8 The legitimate inference to be drawn from Public Documents, and from Acts done under them, is not to be controlled by the Parker Correspondence: nevertheless the Court draws from that Correspondence an opposite conclusion to that of the Appellant 708-11 The facts mentioned, and Archbishop Parker's Letter of November 15, 1573, tend to prove the Queen's authority for the Adver- tisements 711-3 The same thing is shewn by the reception of the Advertisements and by their enforcement of die SurpUce in Visitation Articles 713-4 The Visitation Articles of Parkhurst and others prove that they accepted the Advertisements as Law 714-6 The Advertisements are referred to as of Legal authority in the Canons of 1571 ... 716 The framers of the Canons of 1603-4 considered the Advertise- ments to be consistent vidth Canons 14, 16, and 26, which enforced the Prayer Book 716-8 Hooker and Wren treated the Advertisements as authorized by Law 718 The conclusion in Hebbert v. Purchas, as to the Advertisements, is irresistible, though the Court erroneously treated them as promulgated before the destruction of the Ornaments described in Mr. Peacock's Book 718 The Advertisements are to be read into Section 25 of 1 Elizabeth, c. 2, which the History of the Revision in 1662 shews not to have been repealed 719-20 The Puritan Exception to the Rubric was not yielded to by the Bishops ; but their refusal to alter the Rubric could not imply that they intended to restore the Vestments 720-1 The bearing upon this point of the Legislative Declarations in the Statute and Book of 1662 721-2 The Statute of Elizabeth was reprinted in the Prayer Book of 1662 as imrepealed and effective 722-3 The words " at all times of their ministration," in the Rubric of 1662, removed the previous distinction as to Vestures... 724-5 This explanation agrees vpith the List of Alterations in the MS. Book of 1661 in the House of Lords' Library 725-6 The Rubric is not inconsistent with 1 Elizabeth c. 2, sect. 25 726-7 The Official Acts of the Bishops and others were inconsistent with the supposed change of the Law in 1662 727-8 Visitation Articles of 1663-86, and subsequent practice are con- sistent with the view that the Law was not changed in 1662 • 729 xxii Contents. PAGE The Law, how understood by Bishop Spai-row, the Commissioners of 1689, and the Bill of Comprdiension 730 The weight due to contemporaneous and continual usage ... 781-i! Incongruity of the Rubric if not read with tlie I^oviso of 1 EUzabetli, c. 2 ; tliere would be no vestiu'e for certain Offices, but this was supplied by the Advertisements 732-8 The Opinions of Commentators referred to by Counsel for the Appellant, viz., Bennett, Cosin, Gibson, Burn, and CardweU, cited and examined by the Court 784-7 The bearing of previous Decisions of the Court : LiddeU v. Wester- ton referred only to Ornaments of the Church 737-8 The effect of 1 Elizabeth, c. 2. sect. 25, was not considered by tlie Court in Liddell D. Westerton 738-9 Misconception of the interpretation of the Ornaments Rubric by the Court in LiddeU v. Westerton, and adopted in Martin v. Mackonochie 739-40 The decision of the Court below as to the Vestments, afltoned ... 740 IL The Eastward Position. The Position of the Celebrant : the Rubrics do not require the removal of tlie Table ; but the Communicants are to be con- veniently placed 741-3 "North side": the meaning of it limited by the Rubrics ... 742-4 The rule laid down iu Hebbert v. Purchas would be correct but for the precise words of the Rubric before the Prayer of Conse- cration 744-5 No specific direction is given for the place of Consecration, but tlie object of the Rubric — that the Manual Acts shotild be seen — must be regarded 746-7 No penal charge established against the Appellant, therefore the Decree of the Com-t below must be altered 747 The Judgment in Martin v. Mackonochie has no material bearing on this question of the Eastward Position 748 III. The Waper Bread. The Wafer Bread : the Appellant's contention tliat the charge against liim relates only to the shape and not to tlie composition of the Bread must prevail 748-9 The Rubric and Canon seem to contemplate only ordinary Bread, tliough there was some diversity of practice 750-2 The Wafer, properly so called, is illegal 752 The averment and proof as to tlie Bread used by the AppeUant, in- sufficient, therefore the Decree of the Court below must bo altered 752 IV. The Crucifix. The Crucifix : the Monition of the Court below as to port of the charge against the Appellant, has been obeyed 753-4 The Cruciiix is not covered by the Faculty for the Screen 754 The Court below held that tlie Crucifix was not a mere " architec- tural ornament " as allowed in LiddeU v. Westerton and PhUl- potts ■!;. Boyd 754-5 The Crucifix was regarded by Lord Penzance as analogous to tlio Rood, and thus liable to abuse as an object of adoration 756-7 Contents. xxiii PAGE The decision of the Court below afiirmed on these grounds 757 The recommendation of the Court as to the Appeal and Costs ... 758 The Order in Council, May 14th, 1877, upon the Report of the Judicial Committee 759-66 The Remission of the Case to the Court of Arches, June 25, 1877 766-70 Index to the Proceedings in the Case ; the Judgment of Lord Penzance; and the Argument 771-92 Index to the Judgment of tie Judicial Committee 793-8 CORRIGENDA. PAGE 64, line 5, after " 31st January • add " and Thursday, February 1st," 70, line 3, for " Rubrics " read " Rubric" 112, line 9, for "from" read "to" 218, line 11, for " Edward the Sixth " read " Elizabeth " I ■■ r ' T 1 n C ^om bottom, for " Respondent " read " Respondents " 615, line 10 J 557, line 9, for " statutary " read " statutory" 565, head line, /or " inadmissable '' read " inadmissible " 630, line 16 from bottom, /or " Thiresby " read " Thorseby " 630, line 9 from bottom, /or " Walker's " read " Walter's" 653, head line, for " Respondent " read " Respondents " 668, lines 5 and 7,/or " The first Prayer Book " read " The Prayer Book ' of James 1st" 716 and 717, head lines, for " thus referred to in Canons of 1571, whose framers held them consistent," &c. read " thus referred to in Canons of 1571 . framers of Canons of 1604 held them con- sistent " &c. APPEAL. RIDSDALE t-. CLIFTON AND OTHERS. Eepeesentation. , Public Worship Regulation Act, 1874. To the Most Eeverend Father in God, Archibaid Campbell, by Diyiae Providence Lord Archbishop of Canterbury. We, William Clifton, of Safl5x)n's Place, Dover Street, Folkestone, in the County of Kent and Diocese of Canterbury, Gteorge Miller, of 2S, Dover Street, Folkestone aforesaid, and James Harris, of 24, Dover Street, Folkestone, afore- said, being three parishioners of the Parish of Saint Peter, Folkestone, in Tour Grace's Diocese \rithin the intent and meaniag of the " Public Worship Eegulation Act, 1874," that is to say, being three male persons of full age who now have and for one year next before the ninth day of August, 1875, have had our usual places of abode respectively within the District Chapelry of St. Peter, Folkestone, in Folkestone aforesaid, in Your Grace's Diocese, and who have already transmitted to Tour Grace the solemn Declara- tion contaiaed in Schedule A. to the "Public Worship Eegulation Act, 1874,'- do hereby represent : — 1. — ^That the Eeverend Charles Joseph Eidsdale, the Incumbent or Perpetual Curate of the said District 2 Bepresentation of Complainants. Chapelry (over wMch he has the exclusiye cure of souls), on Sunday the 4th day of July, in the year of our Lord 1875, in his Church or Chapel of St. Peter, being the Church or Chapel of the said District Chapelry, at the early service commencing at 7.30 a.m., and again at the mid-day service commencing at 10.30 a.m., and also on Sunday the 11th day of July, 1875, at the like mid-day service unlawfully used lighted candles on the Communion Table at which the Communion was at the said times respectively being celebrated, or on a ledge immediately over the same during the celebration by him of the Holy Commu- nion, and when such lighted candles were not wanted for the purpose of giving light. 2.— That at all the said services on the said days the said Eeverend Charles Joseph Eidsdale when officiating in his said Church in the Communion Ser- vice and in the, administration of the Communion unlawfully wore certain unlawful Ecclesiastical vest- ments other than and besides or instead of those ap- pointed and allowed by law, to wit, a vestment known as an Albe, and a vestment known as a Chasuble. 3. — That at all the said Services on the said days the said Eeverend Charles Joseph Eidsdale when officiating in his said Church in the Communion Ser- vice unlawfully mixed water with the Sacramental Wine used in the Communion, and also then adminis- tered or caused to be administered wine mixed with water to the Communicants at the Lord's Supper. 4. — That at all the said Services on the said days the said Eeverend Charles Joseph Eidsdale when officiating in his said Church in the Communion Ser- vice and in the administration of the Communion to Communicants unlawfully used in such service and administration wafer bread or wafers, to wit, bread or flour made in the form of circular wafers, instead of bread such as is usual to be eaten. 5. — That at the said mid-day services commencing at 10.30 a.m. on the said 4th day of July, and on the said 11th day of July the said Eeverend Charles Joseph Representation of Complainants. 3 Eidsdale when, officiating in his said Church, in the Communion Service unlawfully stood while saying the Prayer of Consecration in the said Service at the middle of the West side of the Communion Table (such Communion Table then standing against the East wall with its shorter sides towards the North and South) in such wise that during the whole time of his saying the said Prayer he was between the people and the Communion Table with his back to the people, so that the people could not see him break the bread or take the cup in his hand. 6. — That at the said mid-day services on the said 4th day of July, and the said 11th day of July the said Eeverend Charles Joseph Eidsdale when officia- ting in his said Church in the Communion Service and saying the Prayer of Consecration in the said Service did not continue in a standing posture, but twice unlaw- fully knelt or bent the knee during the reading thereof. 7. — ^That at the said mid-day service commencing at 10.30 a.m. on the said 11th day of July, 1875, immediately after the conclusion of the Prayer of Consecration in the Communion Service the said Eeverend Charles Joseph Eidsdale unlawfully caused to be sung in his said Church the words or hymn or prayer commonly known as " The Agnus," that is to say, " Lamb of God, that taketh away the sins of the world, have mercy upon us." 8. — ^That at the said mid-day service comniencing at 10.30 a.m. on the said 4th day of July, 1875, and at the like service on Sunday the 1st day of August', 1875, the said Eeverend Charles Joseph Eidsdale when officiating in his said Church TinlawfuUy celebrated the Lord's Supper in the course of Divine Service, and himself then consecrated and received the ele- ments when only one person communicated with him. 9. — That at the said mid-day service commencing at 10.30 a.m. on the said 4th day of July, 1875, the said Eeverend Charles Joseph Eidsdale in his said Church after the conclusion of Morning Prayer and immediately before the commencement of the Com- b2 4 Representation of Complainants. munion Service, and as connected witli such Commu- nion Service and in the presence of the congregation then assembled in the said Church for such service, unlawfully formed and accompanied a procession con- sisting of the choir and of two acolytes in short surplices and red cassocks, and that four banners and a processional cross were carried in such procession, and that it proceeded from the chancel down the north aisle and up the nave back to the chancel again, the choir singing a hymn while walking in the procession, and that the said Reverend Charles Joseph Eidsdale whUe taking part in such procession wore a Chasuble and had a cap called a Biretta upon his head, and that on the return of the procession to the chancel the Communion Service at once commenced. 10. — That on the occasion of the Evening Service on the evening of Sunday July the 4th, 1875, and immediately after an offertory which took place at the conclusion of the sermon, and without any break or interval and as connected with such service and in the presence of the congregation assembled for such ser- vice, the said Eeverend Charles Joseph Eidsdale in his said Church unlawfully caused a like procession to that before mentioned as having taken place at the Morning Service to be formed and accompanied the same round the Church, in like manner singing, and at one period of such procession all those who took part in it fell upon their knees and remained kneeling for some time, and after their return to the chancel the General Thanksgiving was iutoned and the con- gregation were then dismissed. 11. — That the said Eeverend Charles Joseph Eidsdale without lawful authority and unlawfully and since the consecration of his said Church, that is to say, in the year 1872, set up and placed upon the top of the screen separating the chancel of the said Church from the body or nave thereof, and still un- lawfully retains there a crucifix and 24 metal candle- sticks with candles, and that at the ordinary Evening Service on Sunday, July 4th, 1875, the said candles Representation of Complainants. 5 were lighted on either side of such crucifix, and so contiQued during such service, although the other lights in the Church were amply sufficient to Hght the Church, and the said candles were not needed for that purpose. 12. — That the said Eeverend Charles Joseph Eidsdale without lawful authority and unlawfully set up and placed in his said Church since the consecra- tion thereof, that is to say in the year 1871, and still unlawfully retains therein certain representations of figures in coloured relief of plastic material, purporting to represent scenes of our Lord's Passion, attached to the walls of the said Church .and forming what are commonly called as Stations of the Cross and Pas- sion, such as are commonly used ia Eoman Catholic Churches and not in the Churches of the Church of England, and that some of the said representations relate to legendary and superstitious scenes not part of the Gospel History and not accepted or recognized as authentic by the Church of England, and that the said representations as a whole tend to encourage ideas and devotions of an unauthorized and supersti- tious kind, and are unlawful. 13. — That the said acts, matters, and things, here- inbefore mentioned, are respectively alterations ia. or additions to the fabric, ornament or furniture of the said Church, made without lawful authority, decorations forbidden by Law, unlawful ornaments of the Minister of the said Church, failures on the part of the Incum- bent to observe and cause to be observed the directions contained in the Book of Common Prayer relating to the performance ia such Church of the services, rites, and ceremonies, ordered by the said Book, or unlawful additions to and alterations of such services, rites, and ceremonies. Dated this 10th day of August, 1875. WiiLiAM Clifton, G. Miller, James Harris. 6 Declaration of Complainants. Declaration by Complaikants of the Tetjth op the Statements contained in the Eepeesentation. We, William Clifton, of Saffron's Place, Dover Street, Folkestone, in the County of Kent and Diocese of Canterbury, George Miller, of 28, Dover Street, Folkestone, aforesaid, and James Harris, of 24, Dover Street, Folkestone, aforesaid, do, and each for himself doth hereby solemnly and sincerely declare that we are respectively Parishioners of the Parish of St. Peter, Folkestone, in your Grace's Diocese, within the intent and meaning of the Public Worship Act, 1874, that is to say, we are male persons of full age, and now have, and for one year next before the 9th day of August, 1875, have had our usual places of abode respectively, within the District Chapelry of St. Peter, Folkestone, in Folkestone aforesaid, (over which said Chapelry the Incumbent of St. Peter aforesaid has exclusive cure of souls,) and have already trans- mitted to His Grace the Archbishop of Canterbury, the solemn declaration contained in Schedule A., to the Public Worship Eegulation Act, 1874, and that the several Statements contained in the Pepresenta- tion hereunto annexed, made by us in pursuance of the Provisions of the Public Worship Eegulation Act, 1874, in which the Eeverend Charles Joseph Eidsdale, Clerk, Incumbent, and Perpetual Curate of the said District Chapelry of St. Peter, Folkestone, in Folke- stone aforesaid, in the Diocese of Canterbury, is the person complained of, are true according to the best of our knowledge and belief. And we and each of us make this solemn Declaration, conscientiously believing the same to be true, and by virtue of the provisions of an Act of Parliament made and passed in the Session of Parliament holden in the 5th and 6th years of the reign of King William the IVth, in- tituled, "An Act to repeal an Act of the present Session of Parliament, intituled an Act for the more effectual abolition of Oaths and Affirmations taken Answer of Respondent. 7 and made in various Departments of the State, and to substitute Declarations in lieu thereof, and fol- the more entire suppression of voluntary and extra- judicial Oaths and Affidavits, and to make other provisions for the abolition of unnecessary Oaths." Declared by the said William Clifton,' George Miller, and James Harris, at Folkestone, in the County of -nrxTTx.,, n^-r^^^^ Kent, this 10th day of Au^t, J"^^^ Clifton, 1875. Before me, ^ ' ) G. MiLLEE, W. G. S. Habkison, James Hahris. a Commissioner to administer Oaths in Chancery in England. ' Answeb of the Eespondent. I The Eeveeeio) Chahles Joseph Eidsdaie, Clerk, Incumbent, and Perpetual Curate of Saint Peter, Folkestone, in the Diocese of Canterbury, in answer to the said Eepresentation, say as follows : — 1.— I admit that, as stated in the 6th head of the Eepresentation, I did on Sunday the 4th day of July, 1875, kneel or bend the knee once only during the Prayer of Consecration, in the Order of the Administra- tion of the Holy Communion, and having since further considered the subject, I admit that such kneeling or bending the knee was unlawful. I do not now when I celebrate the Holy Communion so kneel or bend the knee, and I have for some time ceased so to do. I submit therefore that no order need be made in respect of this head of the Eepresentation. 2. — Save as aforesaid I do not admit, and I require the Complainants to prove every charge which they have made in the Eepresentation. 3. — The vestments respectively known as an Alb and a Chasuble, are I submit not unlawful Ecclesias- tical vestments as alleged in the 2nd head of the Eepresentation. 8 Answer of Respondent. 4. — ^At the mid-day service on Smiday the 4th day of July, 1875, and at the same service on Sunday the 1st day of August, 1875, and during the whole of the said service, there were present in the Church of Saint Peter a convenient number to communicate with the Priest, and every opportunity was given to them and every of them to communicate with the Priest. 5. — On the 25th day of August, 1870, a Faculty was granted hy the Commissary Court of Canterbury for the erection of a Screen of ornamental iron work in the said Church of St. Peter. This Screen separating the chancel from the nave was erected in the year 1872. The upper part of this Screen consists of an iron unpainted figure of our Saviour about 18 inches long upon the Cross, and 24 brass Sconces for candles screwed into the end of every upright rod of the Screen. The said figure of our Saviour upon the Cross and the said brass Sconces form part of the said Screen, and the whole Screen was erected at the same time and in one piece. 6. — The Parishioners of the Parish and Church of Saint Peter, Folkestone, have an interest in the retention of the said Screen consisting as aforesaid in the said Church, and I am advised that they are necessary parties to any Suit in which any Order may be made for the removal of the said Screen or any part thereof. 7. — There are in the said Church of Saint Peter 14 embossed pictures in framed squares of plastic material coloured and in relief, pturporting to represent scenes of our Lord's Passion, hanging on nails driven into the waUs of the nave and aisle of the said Church. These embossed pictures have been so hung since the 8th day of September, 1871. They are I submit not unlawM. 8. — The allegation in the 12th head of the Ee- presentation that the representation of figures pur- porting to represent scenes of our Lord's Passion are such as are commonly used in Eoman Catholic Churches and not in Churches of the Church of Answer of Respondent. 9 England, and that some of the said representations relate to legendary and superstitious scenes not part of the Gospel History and not accepted or recognized as authentic by the Church of England, and that the said representations as a whole tend to encourage ideas and devotions of an unauthorized and superstitious kiad, are I submit irrelevant, immaterial, and calcu- lated to prejudice, and improperly made against me. 9. — In the month of March, 1874, I was- served with a Monition from the Commissary Court of Can- terbury, addressed to me as the Incumbent of Saiat Peter's Folkestone, and to John Fagg and Edward Mummery as the Churchwardens of the said Church, recitiug that there were ia the said Church certain representations of figures in coloured relief of plastic material, representing scenes of our Lord's Passion, attached to the walls of the said Church and commonly called Stations of the Cross and Passion such as are commonly used in Eoman Catholic Churches and not in Churches or Chapels of the Church of England, and that the said representations of figures had been introduced into the said Church since the Consecration thereof, and without the authority of any Faculty, and that the use and exhibition of them was contrary to Law, and monishing and citing us to remove or cause to be removed the said representation of figures, or to enter an appearance in the said Commissary Court and show cause why they should not be removed. I did not show cause, but, the said John Fagg and Edward Mummery did, as I am informed and believe, show cause, and having taken an objection that one John Benjamin Lee, at whose instance the said Moni- tion was issued, had not shown any interest on the face of the said Monition sufficient to support it, were ultimately dismissed from the Suit. By reason thereof the embossed pictures in the said Church, which are intended by the representations of figures mentioned in the said Monition, have not been removed from the said Church. The said John Fagg and Edward Mummery and the Parishioners of the said 10 Faculty. Clmrch of Saint Peter have an interest in the retention of the said embossed pictures in the said Church, are as I am advised necessary parties to any Suit in which any Order may be made for the removal of the said embossed pictures. 10. — I submit that if necessary the Court should grant a Faculty or direct a Faculty to be applied for, to confirm the erection or hanging up of the said embossed pictures. Wherefore I humbly pray that I may be dismissed from all further observance of justice in the matter of the said Eepresentation. Dated the 17th day of December, 1875. C. J. ElDSDALE. Faculty dated 23iid August, 1870. The Eight "Worshipful Sir Travers Twiss, Knight, Doctor of Laws, Commissary General of the City and Diocese of Canterbury, lawfully constituted. To all Christian people to whom these presents shall come or whom they shall in any way concern, and more especially to the Parishioners and Inhabitants of the Parish of Saint Peter, Folkestone, in the County of Kent and Diocese of Canterbury, Greeting. Whereas it having been represented unto us by a Petition under the hands of the Eeverend Charles Joseph Eidsdale, Clerk in Holy Orders, the Incum- bent, and John Fagg and Edward Mummery the Churchwardens of the Parish of Saint Peter, Folke- stone, aforesaid, to the effect set forth in the Citation or Notice hereinafter recited. We did Order the said Citation or IS'otice with Intimation to be issued in the words and figures following, namely, '* Sir Travers Twiss, Knight, Doctor of Laws, Commissary General of the Most Eeverend Father in God, Archibald Campbell, by Divine Providence Lord Bishop of. Faculty. 11 Canterbury, Primate of all England and Metropolitan, To all Clerks and literate persons in and thronghout the wliole City and Diocese of Canterbury, Greeting. Wbereas it bath been represented unto us by a Peti- tion under the bands of tlie Eeverend Cbai-les Josepb Eidsdale, Clerk in Holy Orders, the Incumbent, and John Fagg and Edward Mummery tbe Churobwardens of tbe Parish of Saint Peter, Folkestone, in tbe County of Kent and Diocese of Canterbury, Tbat in consequence of there not being sufficient accommo- dation in the said Parisb Cburcb of Saint Peter, Folkestone, for tbe Parisbioners and Inhabitants to attend Divine Worship therein, it bas been agi-eed upon to enlai'ge tbe said Cburcb by adding a Nortb aisle thereto, by lengtbening tbe North Ti-ansept and Vestry, and also tbe Chancel according to tbe copy plan annexed tbereto. Tbat in carrying out the said enlargement, it will be necessary to t^e away tbe eai"tb from tbe floor of tbe nave to tbe deptb of two feet below its present level, to build tbe walls of tbe Cburcb five feet higher than they now are, to take down tbe porcb and tbe North walls of tbe nave and North Transept and Yestry, and also the West wall of tbe North Transept, and tbe East wall of tbe Cbancel, to make the present pews into a more commodious form and size, and to alter their arrangement in tbe Transept in accordance with tbe said plan, to open two doorways in tbe East wall of the North Ti-ansept, and block up one window in tbe Soutb wall of tiie Cbancel, and one in tbe East wall of the Soutb Tran- sept, to remove tbe present choir steps and stalls further Eastwai'd, to sdter the level of the Chancel, to build a dwarf wall with sci'een thereon of light ironwork between tbe Cbancel and Nave, to remove tbe altar further Eastward, to erect a new table for tbe Communion with new rails and otber proper furniture, to remove the font from its present position to the Western extremity of tbe Church, and to cut the present roof for the insertion of a ventilating flecbe. That there is not existing in the said Church any pew 12 Faculty. or sitting held by faculty or prescription that will require to be removed. That at a Vestry Meeting of which due notice was given, holden at the Vestry Eoom of the said Church on Thursday the 17th day of March, 1870, it was proposed and carried unanimously that the plans submitted to the Meeting by the Incumbent for the above recited enlargement and alterations should be carried out, and that a Faculty should be applied for, for the purpose. That the cost of the said enlargement and alterations should be met by voluntary contributions, and not in any way be made chargeable on the Parishioners by rate or other- wise. That it will not be necessary in carrying out the said works to remove any monument, gravestone, or mural tablet. And whereas the said Petitioners have prayed that a License or Faculty might issue authorizing such enlargement and alterations. Where- fore we do hereby require you to cite or cause to be cited all. persons having or pretending to have any interest in the premises, by publicly affixing this original notice on the principal outer door of the said Church, and by leaving thereon affixed a true copy prior to Diviae Service on the Sunday next immediately following the receipt hereof, to enter an appearance ia our Diocesan Eegistry situate within the precents of Christ Church near and within the walls of the City of Canterbury in the said County of Kent, within fifteen days after service hereof, and to shew good and sufficient cause why a License or Faculty should not issue for the purposes aforesaid. And we do hereby iatimate that if no such appearance be entered or no sufficient cause be thereon shewn we will proceed to decree a License or Faculty to be granted for the purpose aforesaid. Dated at Canter- bury the 28th day of May, in the year of our Lord 1870.— W. H. CuUen, Deputy Eegistrar." And whereas none of the parties cited have entered any ap- pearance in our Diocesan Eegistry, against the issue of a License or Faculty for the several purposes aforesaid. Therefore, we the Commissary General aforesaid, by Judgment of Lord Pensance. 13 virtue of our ordinary power and jurisdiction, and as far as by the Laws Ecclesiastical of this Eealm, we may or can, do give and grant to you the said Eeverend Charles Joseph Eidsdale and John Fagg and Edward Mummery our Licence or Faculty for the several purposes hererabefore mentioned. Provided always and upon condition that you take especial care that the said works be carried out as soon as practica- ble, so as to interrupt or impede the performance of Divine Service as little as possible. And moreover that you the said Eeverend Charles Joseph Eidsdale, John Fagg, and Edward Mummery, shall and do render to us our lawful Surrogate, or some other competent Judge in this behalf, a true and just account of your proceedings therein, when lawfully required. In witness whereof we have caused the seal of our office to be hereunto affixed. Dated at Canterbury the 25th day of August, in the year of our Lord 1870. W- H. CULLEN, Deputy Registrar. The Cause was heard before Lord Penzance, in the Public Library at Lambeth Palace, on Jan. 4:th, 5th, 8f 6th, 1876. Cotmsel for the Complainants — De. A. J. Stephens, Q.C, and Mb. B. Shaw. for the Respondent — Me. J. F. Stephen, Q.C. ; Ma. A. Chables; Me.F.H.Jettke; & De. Waliee G. F. Phtllimoeb. Judgment dbliveeed 3ed Febetjaet, 1876. LoED Penzance. Some misconception, I fear, exists as to the functions, powers, and duties, of this Court. Some also with regard to the source of its juris- diction. It is not well that this should be so ; for those who, however unadvisedly, question the authority or juris- diction of a Court, can hardly be expected to yield to its decrees that readiness of obedience in which the true force of all tribunals resides. 14 Remarks upon the Court I think it, therefore, not out of place that, before proceeding to the details of the case before me, I should try to set in their true light some matters that have been by some unwittingly but grievously distorted, and in the interests of the many who con- scientiously desire to yield obedience to an authority which they perceive to be lawful, to remove the mis- conceptions set on foot by the very few who may have no desire to submit to any authority at all. It has been said, and I fear widely accepted, that this Court is a new Court ; that its authority is ia- dependent of the Church; that the Bishops' Courts, which ought properly to entertain such questions as those now before me, have been by Parliament suppressed ; and that a lay Tribunal has been set up in their place, to sit in judgment not only upon Eitual, but on soundness of doctrine and the mysteries of religion. If these things were true, they might afford ground for criticism upon the Statute, though they could not affect the duty of obeying it, I hope, however, that those who may be inclined to act upon their truth wiU be at the pains of readiug the Statute for themselves. They wiU then perceive that every one of these four propositions is absolutely incorrect in fact. In the first place the Public Worship Eegulation Act did not, from one end to the other of it, create any new Court, or indeed any Court whatever. By section 7 it enacted that a person with certain legal qualifications should be nominated and appointed by the two Archbishops, with Her Majesty's approval, to be a " Judge of the Prdvincial Courts of Canterbury and York." "The Provincial Courts" here spoken of, are of course the existing Provincial Courts, namely — ^what is commonly caUed the Court of Arches in the Southern Province, and the Chancery Court in the Proviace of York. At the time the Statute passed there were very and the Public Worship Regulation Act. 15 learned Judges presiding in each of these Courts, though they have both since, then retired, and the enactment which thus created a new Judge to be a Judge in both of them, without defining his relation to the existing Judges, may be fairly criticized on that score, but is not open to the opposite charge of haying created a new Court. This explanation removes also the objection that the Courts upon which the powers given by the Statute are conferred, are Courts independent of the Church, unless, indeed, those who make this objection are willing to contend that the Provincial Courts of the two Archbishops deserve that designation. The next objection, as to the suppression of Diocesan Courts, is equally incorrect in point of fact. These Courts are not named or referred to, directly or indirectly, in the Statute; their rights, their powers, and their jurisdiction remain to them since the Act passed as they existed before it was passed, untouched and unrestricted. What has really been done by the Statute is to con- fer on the Provincial Courts (with a more speedy and less costly procedure than heretofore) the right to entertain questions of Eitual concurrently with, but not to the exclusion of, the Diocesan Courts. This jurisdiction is no more than the Provincial Courts exercised before the Statute upon Letters of Eequest from the Bishop — they may exercise it now without those Letters of Eequest ; but the necessity for the Bishop's assent which is thus withdrawn in one direction, is restored in another, for by section 9 no suit can be carried into this Court if "the Bishop shall be of opinion that proceedings should not be taken." The Provincial Courts therefore have substantially gained no new jurisdiction by the Statute. But rf they had, the question I am considering is, not what ad(fition has been made to the powers of the Provin- cial Courts, but whether the Diocesan Courts have been suppressed to make way for another tribunal — 16 Remarks upon the Court. and what I have here advanced (which any one'may verify for himself on reading the Statute) will, I hope, serve to show that their suppression hy this Statute is purely imaginary, and contrary to the fact. There may, I daresay, he some to whom the arming of the Provincial Courts as Courts of concurrent Juris- diction, with a more expeditious and efficient pro- cedure, will appear to be the same thing in substance as suppressing the Diocesan Courts. To others, on the contrary, it may appear that the rendering a Court less likely to be resorted to than before, by bringing another and more effective Court into competition with it, is hardly the same thing as suppressing or abolishing it. I have no desire to entertain the question which of these two views is the more correct. Provided that the matter be truly stated and understood according to the fact, and not according to conclusions drawn from the fact, every one can judge for himself, and my end will have been attained. I am no further concerned with the remaining suggestion that a lay Tribunal has been set up to deal with Doctrine as well as Eitual, than to affirm that in all matters of Doctrine this Court has now precisely the same jurisdiction, and no more than it had, before the Statute was passed : nothing has been added, and nothing taken away. There are some, I believe, who contend that all questions touching the Clergy in their ministrations ought to be referred only to a Synod or some other Tribunal composed of Ecclesiastics. With such a proposition I have nothing here to do, and I will dismiss the subject with the remark that those who assert it must needs go further, and either point out where in the Judicature of this country such a Tribunal is to be found, or contend that the Church of the State has no laws to govern it, or, what is the same thing, no laws capable of being enforced. Charges against the Respondent. 17 I now address myself to the merits of the present case : — It is a proceeding taken under the Public "Worship Eegulation Act. Three parishioners of the parish of St. Peter's, Folkestone, have transmitted to the Arch- bishop of Canterbury a representation under that Statute complaining of certain proceedings and matters which they allege to be unlawful in the conduct of the Eespondent on the 4th and 11th days of July, A.D. 1876. On the 1st day of November, 1876, and after the duties of Judge under the Statute had become merged in the oflS^ce of Official Principal (or Dean of Arches) of the Provincial Court of Canterbury, this representation was transmitted to me, and, conse- quently, the proceeding before me, by virtue of sec. 7 of the Act, became at once a proceeding in the Court of Arches. The representation complains of many things done by the Eespondent which, at the hearing of the case, he did not deny — nor did he deny that these things were unlawful in the present state of the law, as enunciated by the Judicial Committee of the Privy Council, reserving to himself the right to question that state of the law, so far as he may be allowed to do so by that Tribunal, should he appeal to it in the present case. I will shortly enumerate these offences : — 1. — ^The use of lighted candles on the Communion Table, or on a ledge immediately over it, at the time of the Celebration of the Holy Com- munion, when those candles were not required for giving light. 2. — The mixing of water with wine for the service of the Holy Communion. 3._^The use of wafer bread, instead of bread such as is usually eaten, in the administration of the Holy Communion. 4. — Standing at the middle of the west side of the Communion Table with his back to the people, so 18 Charges against the Respondent. that the people could not see Mm break the bread diiring the Prayer of Consecration. 5. — Kneeling during the Prayer of Consecration — a practice, however, which he says he has since discontiuued. 6. — Causing the hymn or prayer commonly known as the "Agnus Dei" to be sung, during the Communion Service, immediately after the Prayer of Consecration. 7. — Forming and accompanying a procession, con- sisting of a choir and two acolytes in short surplices and red cassocks ; four banners, a brass instrument, and a processional cross being carried in it ; the choir singing a hymn, and the Eespondent walking in it with a cap called a biretta on his head; such procession taking place after the service of Morning Prayer and imrnediately before the Communion. 8. — Forming and accompanying a like procession, on another occasion, when, at one period of it, all those who took part in it fell on their knees and remained kneeling for some time. The facts of these eight charges having been ad- mitted by or on behalf of the Eespondent, and the unlawfulness of his conduct on these occasions being unquestioned before me, and, in my opinion, un- questionable, my duty on the present occasion will be confined to admonishing him not to offend again in the same way. There is one other charge, upon which in like manner no defence has been offered, which requires, I think, some further notice. I allude to the charge of celebrating the Holy Communion in the vestments known by the names of " Chasuble " and *' Albe." This question of vestments is one which stands in a peculiar position, in respect of the Judicial decisions of which it has been the subject. Dr. Lushington, Sir John Dodson, and Sir E. Phillimore, have all held what are called the Edwardian Yestments to be lawful. By the Court of Appeal in Liddetl v. Westerton, Construction of Ornaments Rubric by J. Committee. 19 consisting of some of the ablest judges of our time, Lord Cranworth, Lord Wensleydale, Lord Kingsdown, Sir John. Patteson, and Mr. Justice Maule, with the late and present Archbishops of Canterbury, it was affirmed in the following words, that "the same dresses and the same utensils or articles which were used under the first Prayer Book of Edward VI. may still be used." In the case of Martin v. MacJconochie, it was declared generally that the Court " entirely concurred " in the construction of the Ornaments Eubric in the previous case, and particularly that "the term ornaments in the Eubric means those articles, the use of which in the services and ministrations of the Church is prescribed by the first Prayer Book of Edward YI." In Liddell v. Westerton, it is right to observe that the Court in the remarks above quoted, was comment- ing upon this Eubric for the particular purpose, and the particular purpose only, of showing that it applied to articles and things which were "used" in the service as distinguished from ornaments which were not " used," but " set up in Churches as ornaments in the sense of decorations." The terms, therefore, in which their construction of the Ornaments Eubric was declared, constituted a Judicial dictum (very valuable no doubt, considering the high authority of the Judges from whom it eman- ated), but still a Judicial dictum only. But in the later case of Martin v. MacJconochie, the question arose directly whether the lighting of a candle could be justified as the " use " of an ornament per- mitted by this same "Ornaments Eubric," upon which' the question of vestments turns. It thus became necessary to construe the language of that Eubric, and the Court having^ as above statedj declared their adherence to the construction given to the Eubric in the former case, went on to say that this construction "went far to decide the case in hand," — ^and concluded thus: "But the rubric, speak- ing in 1662, more than one hundred years subset c2 20 Construetion of- Ornaments Rubric hy J. Committee. quently, has, for reasons which it is not the province of a judicial tribunal to criticize, defined the class of ornaments to he retained, by a reference, not to what was in use de facto, or to what was lawful in 1649, but to what was in the Church, by authority of Parlia- ment, in tliat year, and in the Parliamentary authority which this Committee has held, and which their Lord- sliips h-old to be indicated by these words, the orna- ments in question are not included." The argument of the Court, therefore ran thus : — The ornaments which may be lawfully used are de- fined by the Eubric of the present Prayer Book ; the meaning of that Eubric is, that such " ornaments " may be used as are prescribed by the first Prayer Book of Edward VI. ; the use of a lighted candle is not found to be prescribed by the first Book of Edward YI. ; therefore, it is not lawful. I can only regard this case, then, as a decision directly based upon the proposition that the Eubric of the present Prayer Book defined the " ornaments " which should be lawful in future as those which had been prescribed by the first Prayer Book of Edward YI. No doubt, the category of lawful ornaments to be found in the first Book of Edward YI. was appealed to in that case to prohibit a lighted candle as not being within it ; it must be invoked by those who uphold the Edwardian vestments as a justification for the use of aU vestments which are within it ; but it is difficult to conceive that this distinction warrants a different conclusion as to the Eubric' s meaning. If the directions of the Book of Edward YI. are to be taken as the test of what may be lawfully used under the present Prayer Book, for the purpose of excluding matters and things which are not within them, it may be well urged that they are also the test of legality for the purpose of justifying the use of the things which are within them, and expressly enjoined by them. When fully considered, therefore, this case affords not a mere judicial dictum, but a direct authority, as Construction of Ornaments Rubric by J. Committee. 21 to the true meaning of the Eubric judicially announced as the ratio decidendi of the Court, and acted upon as the basis of its ultimate decision. With this decision, the subsequent one of Hebbert v. PurchaSj condemning the vestments which are among the "ornaments" prescribed by the first Book of Edward YI., appears to be directly in conflict : but, then, it must be borne in mind that the case of Martin v. MacJconochie dealt with things ■ used in the church services (such as a candle), while the case of Hebbert V. Purchas dealt with the dresses of the ministers, as to which dresses the Canons of a.d. 1603 had given certain directions; and it was to these canons, as I understand the latter case, that the Court ascribed the authority to qualify the subsequent Statute and rubric in respect of dresses or vestments. The only passage which throws any light on the aspect in which the previous decision was regarded by the Court, is the following — " In Martin v. Mackonochie^ the Committee stated anew the substance of the Judgment in Westerton v. Liddell upon this point, but did not take up any new ground." Save in these words, no reference whatever to the case oi Martin v. Mackonochie is made in the Judgment in Hebbert v. Purchas. So brief a notice and summary a dismissal seem rather to favour the conclusion that the case was con- sidered unimportant to the matter in hand than that it was meant to be over-ruled. It may be, therefore, that this conflict of authorities is rather apparent than real ; but, whether it be the one or the other, my course ia this Cdurt is clear. I cannot doubt that of two Judgments delivered in the Appellate Court, which are in any degree inconsistent, I am bound in pronouncing the decision of the Inferior Court to obey and carry out that which was addressed directly to the matter in issue here, and which also was the last pronounced. As this result was inevitable the learned Counsel 22 Insufficient number of Communicants. have done well I think not to argue the question, and as the question has not been argued I forbear to express my own opinion on the subject. I must therefore hold that Mr, Eidsdale has offended against the law in celebrating the Communion in a Chasuble and in an Aibe, and admonish him to refrain from doing so in future. If this decision is wrong it must be corrected by the Appellate Court. I proceed now to deal with the remaining charges, and I will take jfirst the charge which relates to the celebration on the 4th July, 1875, at the service commencing at 10.30 of the Holy Communion, when only one person besides the Eespondent received it. The fact is not denied. The only answer given is, that the great bulk of the congregation remained in the Church — that there were 200 to 250 people present, and that the Eespondent had reason to believe, and did believe, that a sufficient number of them would communicate with him. I will examine the correctness of this last assertion presently; but, in the first place, it is desirable to turn to the Eubric itself, which is said to have been contravened. It is in these words — "And there shall be no celebration of the Lord's Supper except there be a convenient number to com- municate with the Priest, according to his discretion. And if there be not above twenty persons in the Parish of discretion to receive the Communion, yet there shall be no Communion except four (or three at the least) communicate with the Priest." It cannot, I think, be said that the words of this Eubric admit of any but one interpretation — ^there is to be no Communion unless as many as three persons are present and communicate with the Priest. It was not even in argument contended that the Eubric meant anything else. It does not say there shall be no Communion "unless the Priest believes," or *' unless he has reasonable Insufficient number of Communicants. 23 ground to believe^" th.at there will be as many as three commimicants, but expressly that there shall be no Communion " except three at the least " do in fact ''communicate with the Priest." But it was urged on Mr. Eidsdale's behalf, that his infraction of this Eubric was not a wilful or Toluntary one, and that on a priaciple which pervades the administration of all laws, he ought not to be held^ responsible for what he could not prevent. I must observe that this defence was rather that of his Counsel in argument than that which he had urged himself in his " Answer." All that he there says is, that a convenient number of persons were present who might have communicated, and that every opportunity was given to them to do so, studiously omitting to say either that he honestly thought the requisite number would communicate, or that he had no means of knowing whether they would or not. I cannot regard this as otherwise than a very significant and possibly intentional omission. Still the question remains, whether there was on this occasion, or would be on other occasions, any real impossibility of conforming to the Eubric, a proposi- tion which it devolves upon the Eespondent to establish. This impossibility is said to reside in the fact that the Priest must, accordiag to the several Eubrics regulating the administration of the Sacrament, con- secrate the elements and receive them himself, before he has any means of knowiag whether there will be as many as three persons coming forward to receive them after him. But is this the fact ? Neither by any evidence that he has given, nor by any conclusions to be extracted from the Eubrics of the Communion Service, does it, seem to me to be established that a Priest really desirous of conforming to the Eubric, is practically unable to discover whether the celebration he is about : to enter upon will be a lawful one or not. On a perusal of the several Eubrics as they occur in 24 Insufficient number of Communicants. tlie Communion Service, it certainly seems to be assumed throughout that the number of those who are about to communicate will be known (or, at least, approximately so) to the Priest, and, if others are present (the propriety of which is, I believe, a con- troverted point, but one with which this Court has nothing now to do), discriminated in some manner from them. Thus at the very beginning of the Order for the Administration of the Communion, it is said, — *' So many as intend to be partakers of the Holy Com- munion, shall signify their names to the Curate at least some time the day before." Then at a later period of the service, " The Priest shall then place on the Table so much Bread and Wine as he shall think sufficient; " and again, — "At the time of the Celebration of the Communion, the communicants heing conveniently placed for the receiving of the Holy Sacrament;" and again, — "Then the Priest shall say to them that come to receive the Holy Communion ;^^ and again, — "Then shall this General Confession be made in the name of all them that are minded to receive the Holy Communion.''^ Those, therefore, who intend to receive the Holy Sacrament are invited to give notice of their inten- tion : — a quantity of bread and wine is to be placed on the Communion Table, which is to be estimated in reference to the probable number of them : — they are to be conveniently placed " for the receiving of the Holy Sacrament ; " and they are to be addressed in the character of communicants by the Minister : all of which provisions seem to imply that the Minister has some; meahs of distinguishing them. But no precise direction appears to be given as to the details of the manner in which any separation, discrimination, or distinction, between those who do, and those who do not, communicate, is to be brought about. A reference to the Eubrios of the previous Prayer Insufficient number of Communicants. 25 Books may throw some light on the general intention of the Legislature on this head. In the first Prayer Book of Edward VI., at the end of the Offertory, stands the Kubric following : — " Then so many as shall be partakers of the Holy Communion shall tarry still in the quire, or in some convenient place nigh the quire, the men on the one side, and the women on the other side, — all other (that mind not to receive the said Holy Communion) shall depart out of the quire, except the Ministers and Clerks." In the second Book of Edward VI., this Eubric desiring the communicants to remain in the quire was omitted, perhaps because the congregation was no longer invited to come into the quire, and deposit their alms in the box which used to stand near the altar, or perhaps because a Eubric was then for the first time introduced, directing that the Table at the time of the Commiinion should stand in the body of the Church, except in those churches where Morning and Evening Prayer were read in the chancel. But at this same time a further alteration was made by adding the following very strong expressions to the form of exhortation which was to be said " at certain times." "And whereas ye offend God so sore in refusing this Holy Banquet, I admonish, exhort, and beseech you that unto this unkindness ye will not add any more, which thing ye shall do if ye stand by as gazers and lookers on them that do communicate, and be no partakers of the same yourselves. For what thing can this be accoimted else than a further contempt and unkindness towards God. * * * » "Wherefore, rather than ye should do so, depart you hence, and give place to them that be godly disposed." This exhortation is looked upon by some, I beheve, as addressed only to those who were not in the habit of communicating at all. By others on the contrary, it is regarded as an invitation to all who are not about to communicate on the particular occasion, to 26 Insufficient number of Communicants. leave the Clmrch, and thus separate themselves from the communicants. But, whatever may have been the intention of it, it is not unlikely that it gave rise to a custom more or less general for the non-communicants to withdraw. On this matter I will quote a passage from a judg- ment delivered in the Metropolitical Court of Armagh, in theyear 1852. The case was cited by Dr. Stephens, and I am indebted to him for a copy of the judgment. Speaking of this Exhortation, the Eev. Judge of that Court said : — " This striking address, repeated in all the churches of the kingdom during a period of nearly a hundred years, very effectually brought about and established the custom of the non-communicants withdrawing — a custom that continues to this day, although this part of the Exhortation was omitted in the Prayer Book of 1662." He then adverts to the fact that the Eubric above quoted, as to the communicants " being conveniently placed," was for the first time iuserted in the present Prayer Book, and goes on thus : — "When, therefore, the non-communicants have withdrawn, and the communicants have placed them- selves conveniently for receiving the Sacrament, that is in a part of the Church near the Lord's Table, it would seem to be easy for the officiating minister to make a tolerably accurate estimate of the numbers for whom he is to provide a sufficient quantity of bread and wine, even though they have not signified their names previously." The only other matter which sheds any light on this subject is the language of the twenty-fifth Article of Eeligion, which speaks of the Sacrament as not to be carried about or " gazed upon." Upon this review of the history of these Eubrical directions, the conclusions at which I arrive are, that the Legislature, in both Prayer Books of Edward YI. as well as the Book of 1662, contemplated that there would be some method of discriminating between those who intended to partake of the Holy Commu- Insufficient numher of Commumcai^ts. 27 nion, and those who did not; that under the 'first Book of Edward VI. the means of doing so were specifically prescribed ; that under the second Book of Edward YI., and the present Book, no such specific means are prescribed (except they be found in the direction that the communicants should be "con- veniently placed"), and that the custom, however general, of the non-communicants retiring from the Church is not specifically enjoined by any positive direction of the existing rubrics, Nor am I aware that the Minister has any means at his command to enforce compliance with this custom, supposing it to be desirable to do so, upon which matter it is not my duty here to express an opinion. But admitting this to be so, it was still urged by the complainants that the Minister has, practically, other means within his reach of ascertaining whether a sufficient number are about to communicate, did he choose to avail himself of them. It was not asserted, nor can it be assumed, that the members of the Eespondent's congregation would do otherwise than assist him in avoiding the celebra- tion of the Sacrament in a manner contrary to the express letter of the law; and it was therefore contended that the Eespondent had only to make known to his congregation the difficulty in which they placed him by the practice of non-communicants remaining in the Church when the celebration of the Holy Sacrament was about to begin, without any separation being effected between them and the com- municants, for the difficulty to pass away. To this it was replied that a clergyman has no means of doing so without violating the Eubrical directions, and the Judgment in Westerton v. Liddell was relied upon to show that the details of the Communion Service could not be added to, or varied, by any announcement on the part of the minister, without infringing the law. Various means were suggested, however, by which it might be done, and either through the Church- 28 Insufficient numher of Communicants. ■wardens or through the pulpit, or otherwise, it was said that the Minister might make known his desire that if non-communicants chose to remain in the Church, the communicants should conveniently place themselyes apart from the rest, so as to enable him to recognise them. The most formal method of proceeding in this direction, perhaps, would be for the Clergyman to apply to his Ordinary, and with his leave to read out during the service a notice describing what those who intended to communicate should do to declare them- selves, and thus comply with the Eubric, immediately preceding the Offertory, on the subject of notices to be given in Church. » I do not dwell further on this, or pause to decide what the Eespondent might best have done, because he has in fact done nothing and attempted nothing, and further because I am not even satisfied that he had any reasonable cause to expect that the celebration on the 4th July would be other than what it actu- ally was. It appears, on the Respondent's own evidence, that what happened on the 4th July had happened on several previous occasions ; that he had taken no steps to prevent the recurrence of it, and that on leaving his cure in the hands of two other Clergymen when he went abroad in August, he gave them no warning or directions, so that the same thing happened again in his absence. The possible difficulties of a position can hardly, therefore, be listened to in exculpation of one who has not been at the pains of ascertaining whether they are real difficulties or not. But now I turn to the question whether the Ee- spondent had reasonable ground to believe, or did even in fact believe, that there would be a sufficient number of communicants on the 4th July. It is impossible, I think, to read his own evidence on this head and not perceive that he entered upon the celebration of the Holy Sacrament on that day without, as he states it himself on re-examination Crucifix on the C/iancel Screen. 29 "any positive expectation, one way or the other." It is true there were many present as to whom he did not know that they might not communicate, and as to some, he says he thought they might, but he had no belief that iJiey would. Whatever may be said as to whether reasonable grounds for believing that the proper number would communicate existed or not, it is clear, I think, that the Eespondent must establish that he did in fact believe that they would do so, before he could possibly be in a position to set up any exculpation based on the imperfect state of his own knowledge. This he has failed to do. The Eubric has, in my opinion, been violated, and without excuse. It will, therefore, be my duty to admonish the Eespondent to obey the Eubric in futui'e. The next questions for the decision of the Court concern the lawfulness of the Cruci&x, and of the paintings called the Stations of the Cross, which have been set up in St. Peter's Church. The solution of these questions depends not on any single contested passage of a statute or a rubric to be construed by the Court, but on the general result of the various acts of the Sovereign and the Legis- lature, which go to make up that momentous change in the State religion, and the ecclesiastical laws of the realm, which is known as the Eeformation. The field, therefore, over which such an iaquiry is capable of being pursued, is an almost unbounded one, but it does not, I thiuk, devolve upon this Court so to pursue it. For the gi-ouud has been already ti-avelled by the appellate tribunal in the two cases of JVcsfcr^n v. ZiddeU, and Fhillpoffs v. Boffd, in which all that historical research and able argument could do to elucidate the legal propositions deducible from an inquiry of the kind, was fully and effectually done. I will state in a few sentences the points decided in these cases so for as they affect the present inquiry. In the case of Westerfon \. Liddeli, the Court had 30 Crucifix on the Chancel Screen. to pronounce upon the legality of a Cross set up \tL Mr. Liddell's Churcli. And it was decided that although before the Eeformation, the symbol of the Cross had no doubt been put to superstitious uses, "yet that Crosses when used as mere emblems of the Christian faith, and not as objects of supersti- tious reverence, may still lawfully be erected as architectural decorations," and that the wooden Cross erected in that particular case " was to be considered a mere architectural ornament." The Court determined nothing directly as to the legality of a Crucifix, but was at great pains through- out the Judgment to point out that Crosses were to be distinguished from Crucifixes, saying that "there was a wide difference between the Cross and images of saints, and even, though in a less degree, between a Cross and a Crucifix," the former of which, they said, had been " used as a symbol of Christianity two or three centuries before either Crucifixes or images were introduced." I must infer, therefore, that in the opinion of the Court, as declared in this case of Wesierton v. Lid- dell^ the use of the Cross was only to be justified when it played the part of a mere architectural ornament^ and that the views and arguments upon which that justification was based did not afford the same justi- fication to Crucifixes. In Phillpotts V. Boyd, the Court, in justifying the erection of the Exeter Eeredos, adhered entirely and very distinctly to the position taken up in the previous case, and pronounced that erection lawful, though it included many sculptured images, on the express ground "that it had been set up for the purpose of decoration only,'''' declaring that it was "not in danger of being abused," and that "it was not suggested that any superstitious reverence has been or is likely to be paid to any of the figures upon it." These two cases, considered together, afford to this Court a sufficient guide for the principles which it is now bound to apply. Crucifix on the Chancel Screen. 31 All that remains is to apply them. In doing so it is necessary first to have a clear idea of what is meant by " superstitious reverence being paid," and then to ascertain whether such "reverence" is likely to be, or in danger of being "paid" to the particular objects here complained of, or whether, on the contrary, it is established that those objects are for architectural ornament only. It will be observed that the contrast set up by the Court in. these cases, is between superstitious reverence, on the one hand, and architectural decora- tion on the other; and I cannot but think that the Court considered that all figures in sculpture or painting, must needs fall within one category or the other — so that if the objects and figures here in question were intended to be, or were likely to become anything more, or other, than mere architectural decorations, they would be illegal as objects of "super- stitious reverence." This view would at once simplify the definition of " superstitious reverence," and reduce the inquiry to the question whether the limits of mere architectural decoration have been exceeded or not. But, passing this by, and considering the matter in a more general light, I conceive that the words "superstitious reverence" or "idolatrous practices," together with the more general term "abuse," all which expressions are used indifferently by the Court in Phillpotts v. Boyd, are intended by the Court to mean the same thing as " worship," and " adoration," which are found in the 22nd Article of Eeligion. This appears from the following passage in that judg- ment. "As the Eeformation proceeded, and the Articles of Eeligion came to receive statutory authority, the doctrine of the Church on this subject was plainly set forth. The 22nd Article of Eeligion declares that 'The liomish Doctrine concerning Purgatory, Pardons, Worshipping and Adoration, as well of Images as of Eeliques, and also invocation of Saints, is a fond 32 Crucifix on the Chancel Screen. thing, vainly invented and grounded upon no -warranty of Scripture, but rather repugnant to the "Word of God ; ' in other words, it condemns only the ' abuse ' of images." What then was this Eomish doctrine ? The actual worship of the graven image in place of the Deity it represents, has never, so far as I am aware, been inculcated by the Eomish Church. It certainly forms no part of the teachings of. that Church, if I may rely on the testimony produced in this case from the lips of the witness Dominic Criscitelli. The "Eomish doctrine" "concerning worshipping and adoration of images," spoken of in the 22nd Article of Eeligion as "a fond thing vainly invented," must therefore be intended in that Article to mean the devotion and prayer which the Eoman Church to this day enjoins its adherents to offer, not to images themselves, but to God before crucifixes, images, or paintings, and the like. And it was this doctrine, together with the practices which had been found to result from it, which it was a main object of the Ee- formation to denounce and utterly put away from, the Eeformed Church. That I may in no wise mistake or misapprehend the doctrine of the Eomish Church on this matter, I will refer to the following passage from the Decrees of the Council of Trent : — "Imagines porro Christi, deiparse Yirginis, et aliorum sanctorum in templis prsesertim habendas et retinendas, eisque debitum honorem et venera- tionem impertiendam, non quod credatur inesse aliqua in iis divinitas vel virtus propter quam sint colendse, vel quod ab eis sit aliquid petendum, vel quod fiducia in imaginibus sit Agenda veluti olim fiebat a gentibus, quae in idolis spem suam coUocabunt, sed quoniam honos qui eis exhibitur refertur ad prototypa quae illee representant ita ut per imagines quas osculamar et coram quibus caput aperimus et procumbimus Christum adoremus et sanctos quorum illae simili- tudinem gerunt, veneremur — Session XXV. — "De Crucifix and Lights on the Chancel Screen. 33 Invocatione, veneratione et reliquiis sanctorum et sacris imaginibus." — Corpus Juris Civ., vol. 2., p. 84. It was not, therefore, intended in tlie above decision of tbe Court of Appeal by tbe use of the words "super- stitious reverence," "adoration," or "worship," to convey only the limited idea of a figure or object itself worshipped like a Pagan idol. On the" contrary, I understand these expressions as intended to embrace the far more extended conception of worship, adora- tion, or reverence paid to the Deity in presence of or before those objects or figures. It may not be easy to push definition further than this, and define what it is that in any, or every case, constitutes adoration or worship in presence of an image or figure ; nor is it necessary to do so ; it is enough for the purpose in hand to say that it must be taken to include all and every form or degree in which the object in question is made to take a place^ or play a part, in the devotions which are paid to the Deity before it. It is in this sense, then, that I propose now to in- quire whether it can fairly and reasonably be said that the figures complained of are likely to be or in danger of being objects of " worship " or " supersti- tious reverence." There is no dispute as to what these figures are or where they are placed. There is a screen of open ironwork some nine feet high stretching across the Church at the entrance to the chancel; the middle portion of this screen rises to a peak, and is sur- mounted by a Crucifix or figure of our Saviour on the Cross in full relief and about eighteen inches long — this is the Crucifix complained of. The screen, of course, from its position directly faces the congrega- tion, and the sculptured or moulded figure of our Lord is turned towards them. There is, further, a row of candles at distances of nearly a foot apart all along the top of the screen, which is continued up the central and rising portion of it, the last candles coming close up to the Crucifix: on either side, so that when D 34 Crucifix and Lights on the Chancel Screen. tlie candles are lighted for the evening service, I should presume that the Crucifix would stand in a full light. These candles were proved to have been lighted for the Evening service on the 4th July, 1875 ; it hardly seems that they were necessary for the purpose of lighting the -Church at the beginning of the service on that occasion ; but, on the other hand, it appears that the gas was necessarily turned on before the service concluded, and I cannot say that it is made out to my satisfaction that the candles were not then wanted for lighting purposes. I may at once then dispose of the charge which, though not distinctly made in the representation, was urged in argument, that the position of the candles in relation to the Crucifix and the manner in which they were used together constituted a ceremonial ob- servance, and as such were not warranted by law. I hold that this charge is not made out, and I pass to the more serious consideration, whether a Crucifix so placed and lighted is in danger of being an object of " superstitious reverence." The, best forecast of the future in most cases, but especially in those wherein the weaknesses and failings of mankind are concerned, is to be obtained from the experience of the past. And it was to the past that the Court in Phillpotts v. Boyd^ emphatically appealed in justification of the Exeter Eeredos. In speaking of "painted representations of portions of sacred his- tory, to be found in many of our churches," the Court relied upon the circumstances that these paintings " had been proved by long experience to be capable of remaining there without giving occasion to any idola- trous or superstitious practices." Would an appeal to the experience of the past, in the case of Crucifiies, bring out the same result ? — or, rather, it should perhaps be asked, would not the result be the very opposite ? It is precisely here that, to my mind, the great difficulty presents itself in the proposal now made to Crucifix on the Chancel Screen. 35 sanction the restoration of so well known an object as the Cnicifix to that place in our Churches to which for 300 years it has been a stranger. The Crucifix, as set up in our Churches, has a special history of its own. Before the Eeformation, the "Eood" was ordinarily to be found in Parish Churches in this country. It presented the carved, sculptured, moulded, or painted figure of Jesus Christ on the Cross, and was, in fact, " a Crucifix, with images at the base." — See Perry's " Lawful Church Ornaments," p. 247. This figure was erected on a structure called the Eood Loft, which appears to have traversed the Church at the entrance to the chancel ; lq fact, it occupied as nearly as may be the position which the iron screen in the present case does. There is in existence the most precise and un- questionable evidence on this matter, and it is to be found in the records of the Lincolnshire parishes, printed in Mr. Peacock's book on Church Furniture, and dated a.d. 1565-6. So universal does the existence of the "Eood" in some form, either sculptured or painted, seem to have been, that in these returns of the Churchwardens of upwards of 150 parishes, there ia mention of the Eood as having been defaced or pulled down in at least 140. It will also be found that in Bonner's Articles, put forth during the reign of Queen Mary, in. the year A.D. 1554, (see Card. Doc. Ann, vol. i., p. 152), in- quiry is made "whether there be a Crucifix, a Eood Loft, as in times past hath been accustomed ; and if not, where the Crucifix or Eood Loft is become, and by whose negligence the thing doth want." Again, in Cardinal Pole's Articles, a.d. 1557, (Card. Doc. Ann, vol. i., p. 206), " whether they have a Eood in their Church of a decent stature, with Mary and John." After this period, the historical evidence abounds that in the reign of Elizabeth these Eoods and Eood d2 36 Crucifix on the Chancel Screen. Lofts were destroyed, far and wide, as monuments of idolatry and superstition, but I am not at present con- cerned with that circumstance, save so far as it serves to show that they had existed, and were of general if not universal occurrence. Not oiily so, but in the year 1560 a discussion appears to have arisen as to the propriety of setting the Eoods or Crucifixes up again in Parish Churches. In the Zurich Letters, first series, p. 67, is a letter by Bishop Jewel, dated 4th February, 1560, in which he says : " This controversy about the Crucifix is now at its height. . . A disputation upon this subject will take place to-morrow. . . , For matters are come to that pass, that either the Crosses of silver and tin, which we have everywhere broken in pieces, must be re- stored, or our Bishoprics relinquished." In the same series, at pages 73-74, dated 1st April, in the same year, is a letter of Bishop Sandys, in which is the following passage : " We had not long since a controversy respecting images. The Queen's Majesty considered it not con- trary to the "Word of God, nay, rather for the advantage of the Church, that the Image of Christ crucified, together with Mary and John, should be placed, as heretofore, in some conspicuous part of the Church, where they might more readily be seen by the people. Some of us thought far otherwise, and more especially as all images of every kind were, at our last Visitation, not only taken down, but also burnt, and that too by public authority, and because the ignorant and super- stitious multitude are in the habit of paying adoration to this Idol above all others:^ ***** « God delivered the Church of England from stumbling blocks of this kind." From aU this it is plain that the Crucifix formed an ordinary feature in the Parish Church before the Eeformation; and it cannot be doubted that it did so, not as a mere architectural ornament, but as an object of reverence and adoration. Crucifix on the Chancel Screen. 37 If any proof was required of this proposition, it may be found in the fact that the worship of it was enjoined in the Sarum use, the Missal most largely accepted and used ia England before the Eeformation. This was especially the ease on Palm Sunday. In the order of service for that day, given in the Sarum Missal, a very elaborate service ended with the adora- tion of the "Eood" by the celebrant and choir, before passing into the chancel. — See Eock's " Church of our Fathers," vol. ii., p. 229, Sarum Missal, Burntisland Edit. A.D. 1861, p. 262. Such is, most briefly, the part played by the " Eood" or Crucifix in English Churches ia the past. If set up again in them now, what part is it likely to play in the future ? It is no doubt easy to say. What proof is there of danger of idolatry now? What facts are there to point to a probability of " abuse " ? But when the Court is dealing with a well-known sacred object — an object enjoined and put up by authority in all the churches of England before the Eeformation, in a particular part of the Church, and for the particular purpose of "adoration" — ^when the Court finds that the same object, both in the Church and out of it, is still worshipped by those who adhere to the unreformed Eomish faith, and when it is told that, now after a lapse of 300 years, it is suddenly proposed to set up again this same object in the same part of the Church as an architectural ornament only — ^it is hard not to distrust the uses to which it may come to be put, or escape the apprehension that what begins in " decoration "may end in " idolatry." If this apprehension is a just and reasonable one, then there exists that likelihood and danger of "super- stitious reverence" which the Privy Council, in Phill- potts V. Boyd, pronounced to be fatal to the lawfulness of all images and figures set up in a Church. Before concluding that it is so, let me pass in review the arguments urged in favour of the opposite side of the question. 38 Crucifix on the Chancel Screen. I will place, first, among them the consideration, forcibly pressed on the Court, that the times we live in are not as the times before or at the period of the Eeformation ; that images and figures which gave occasion then "for unhealthy minds" to abuse, "we, in our more extended knowledge, may be permitted to use with safety." That there is a wide difference in the state of know- ledge, and still more in the degree of its general diffusion, between the 19th and 16th centuries will not be denied ; but is it equally certain that super- stition has waned in proportion as the light of in- tellectual culture has advanced, and that the ground gained by the one, has been lost by the other ? Is it really so absurd, as it was argued to be, to imagine that in the present day the worship of lifeless images and figures, not as idols, perhaps, but as aids to devotion, should again prevail as in old times ? The fear that it should be so may be unfounded, but I question whether intellectual culture can be relied upon as a safeguard against it ; for, if so, what is to be said of the Eomish Church and of those able and distinguished men who, in our own day, have not hesitated to join it and accept its doctrines. What I am here discussing, I must again repeat, is not the belief in an idol of wood or stone, but the practice of involving in devotional exercises outward and visible forms, as inculcated in the devotional books of the Eoman Catholic creed. This is the "fond thing vainly invented" of the 22nd Article of Eeligion ; and the mere fact of the existence of such a doctrine in that Church, among whose members high intellectual power and acquire- ment is rife, is to my mind a conclusive answer to the suggestion that the intellect or knowledge of the present day may be relied upon to take the place of those safe- guards which it was the work of the Eeformation to establish. But another consideration must not be lost sight of. If the intelligent and the cultivated no longer need Crucifix on the Chancel Screen, 39 the protection of old days, can the same be said of the weak and ignorant ? The Parish Church is for all — not for a class — and if the Crucifix, placed as it is in this instance, is lawful for St. Peter's Church, it is lawful for every Parish Church in the country, and may be provided for every congregation — strong- minded or weak, instructed or ignorant. Let it be considered to what such a state of things as that would be likely to lead. If devotion to our Lord comes to be habitually paid immediately before a sculptured figure of His Body on the Cross, which arrests the eye and occupies the imagination while the miad is in attitude of prayer, it may be easy to some, and possible to many, but hardly possible to all, to wholly dissociate the outward object from the inward prayer, and exclude it from playing any part in that devotion. The immediate presence before the eye of an out- ward form. or object proffers an assistance, though of a spurious kind, towards fixing wavering thoughts, and exalting religious fervour, which can hardly be rejected by those who most feel the want of it, and to whom all abstract thought is a difficult exercise. "When there cease to be any such, the peril may cease also ; but, until then, it is impossible, I think, to accept the alleged robust temper of the present times as a safeguard against so obvious a temptation. Another argument urged for the Eespondent was this, that crosses had been as much abused and wor- shipped before the Eeformation as Crucifixes, and are therefore as much in danger of abuse now, and yet Crosses were by the Court, in Westerton v. lAddell, held not to be unlawful as ornaments. I will only say on this head of argument that the Court in that case were of a contrary opinion ; that for reasons which they considered sufficient, they distinguished Crucifixes from Crosses in this respect, and that if they had been unable to do so, there is nothing to show that, in their judg- ment, either Crosses or Crucifixes would have been lawful ornaments. 40 . Crucifix on the Chancel Screen. A further objection was then taken that, if the delineation of the Crucifixion in sculpture may not be lawfully set up in a church, the same thing must be equally true of a picture in a painted window, exhibiting a similar figure. It is not to be doubted that, in many churches (and in the notable instance of St. Margaret's Church, at "Westminster, where the window is of great age), re- presentations of the Crucifixion in painted glass or paintings are to be found, and I am not prepared to offer any definition which should draw a sharp line of distinction between such decorations and a Crucifix. Indeed, I doubt whether any narrower or more exact definition of what is lawful and what unlawful, can, for practical purposes, be framed, than that which is set forth in the case of Phillpotts v. Boyd. But, adhering to that decision, and each case standing on its own circumstances, it is, I think, to be presumed that the Court of Appeal would not hesitate to adjudge even painted windows, or paintings portraying the same subject, to be unlawful if it was satisfied from the mode in which the subject was treated, the place which they occupied, or other the incidents and surroundings cir- cumstances that they were in real danger of adoration, worship, or superstitious reverence. So long as they are free from this charge and fulfil no other function but that of fitly decorating the Church, they are free from objection — the moment that, from any cause, whether residing in the objects themselves, or arising among those who worship in the Church, the danger of their adoration is made manifest, I conceive that they cease to be innocent, and fall under th.e charge of illegality. Up to this point I have considered only the reasons which lead to a conclusion that this Crucifix is likely to invite " superstitious reverence." I will now say a few words on the alternative proposition, that it is intended only, and is likely to serve only, as an archi- tectural decoration. Yiewing the matter in this light, the remark stations of the Cross. 41 naturally arises that this particular figure of the Crucifijx, while it may be justly said to stand, highest among the representatives of Gospel history in its fitness for the purposes of adoration or worship, must surely be admitted to occupy a very iaferior place among the subjects adapted for the display of mere architectural beauty. In association with other figures, and as embodyiag the scene of the Crucifixion, it has no doubt been the subject of artistic treatment; but, by itself, as it appears here in this Church, standing alone, without incidents or adjuncts, it is a subject which, however artistically treated, might be so well spared iu the mere decoration of Churches, that it is not easy to conceive that it should be selected solely for that purpose. Upon the whole, then, I must declare that the Crucifix surmounting the screen, in this case, has not been shown, to my satisfaction, to have been set up as an architectural decoration only, and that there does exist a danger and a likelihood that it may be the object of "adoration" and "superstitious reverence." This conclusion makes it unnecessary to consider whether its erection was originally covered by the Faculty which was obtained for the iron screen — and the Court must now order it to be removed — ^but a removal of the Figure leaving the cross standing, will be a compliance with this order. It remains to deal vrith "the Stations of the Cross." They are described in the Eepresentation as " Figures in coloured relief of a plastic material, attached to the walls of the Church, purporting to represent scenes of our Lord's Pafesion, and such as are commonly used in Eoman Catholic Churches." It was not denied that this general description of them is a correct one. More particularly, they are a set of fourteen separate groups aff'ecting to delineate the Sufi'erings of our Lord, commencing with His Judgment and Con- demnation, and ending with His Crucifixion and Burial. 42 Stations of the Cross. The first objection taken to tliem I must hold to be a fatal one, namely — ^that they constitute "an addition to tlie fabric ornament or decoration of tbe Cburcli " ■within the meaning of the Statute, and have been set up in the Church by the Eespondent " without lawful authority," no Faculty having been either granted or applied for to justify their erection. The law which requires that those who wish to fix or set up any new decoration in a Church must apply to the proper authorities for a Faculty before they do so, is very salutary, and ought to be upheld. It serves as a safeguard against the introduction of many objectionable things into the Chiirch, which apathy or want of vigilance on the part of the parishioners might, in many instances, facilitate, and it maintains the principle, which is a wholesome one, that the structure and ornament of the Church is not to be meddled with except upon due consideration and lawful authority. It is upon this ground, therefore, that I shall order their removal. But the Eepresentation further alleges that they are " decorations forbidden by Law," and as they now stand I think they are. It is needless to enter into the history of this set of pictures, "Whatever origin they or some of them had, it is clear that the three falls of Christ under the Cross, and the legend of Sainte Yeronique, have no warrant in Gospel History. It is also clearly established by the two devotional books put in evidence, " The Crown of Jesus," pub- lished under the authority of Cardinal Wiseman and four Eoman Catholic Archbishops in Ireland ; and " The Key of Heaven," by St. Alphonsus Liguori ; that these fourteen Kepresentations are to the present day authorised objects of adoration in that Church. In the " Crown of Jesus," p. 421, the following in- struction appears : — "Devotion to the Passion of our Lord is a singular special means of Grace. The great means of impress- Sfafions of the Cross. 43 ing this devotion profouudly on tlie Soul is the Holy Mass, tho Iloly Eosaiy, and the Stations of the Cross. Yon shoukl ondi^nour to make the Stations of the Cross every week. The Church encourages this practice by the greatest indulgences. Every time that in a state of Grace you go round the Stations of the Cross, kneeling before each (or if the crowd be great, simply turning and kneeling towards each), and with a truly contrite heart meditate on each stage of our Lord's Passion, as represented in the 'Via Crucis,' you have it in your power even without Com- munion aud without any additional Special Pi-ayers to obttiin several plenary indulgencies for yourself, as also for the poor souls in Purgatory. * * * In niakiui;' the foUowiua,' Stations, the same induls-ences lue gained as if they m ere made at Jerusalem, on the very spot where our Saviour suffered." Then thei-e follow a set of Prayers for each Station, with direc- tions at what part of them the worshipper is to kneel. These exti-acts sufficiently show the character and objects of the pictures in question, as used among Poman Catholics ; the Eespoiulent puts them up in a Churcli of the Church of !&iglaud and asks the Court to say that they are arcfiifeetural decorations onli/. and of a lawful character. I think they are neither. Some of them, if they stood alone, dissociated from the rest, such for instance as the Judgment of Pilate, may be unobjectionable in themselves, whilst others such as the three falls of Chi-ist rmder the Cross and the fable of St. Yeronique, whether they stand alone or not, may well be held objectionable in themselves; but the entire set viewed as a whole, and in their relation to theu- well-known history, must be regai-ded, I think, as likely (if not intended) to be used for the purposes for which they always have been used, and not for the more purpose of decorating the Church. I shall, therefore, as I have aboAe said, order their remoA-al, leaving it open to the Eespondent if he shall desu-e it to apply for a Faculty to authorise the intro- 44 Stations of the Cross, and the Crucifix. duction into his Cliiircli of such of them as may turn out to be free from objection. It will be observed that, in dealing with the question of lawfulness, both as regards these "Stations of the Cross" and the Crucifix, I have hitherto excluded from view all conclusions to be drawn from the manner in which the Eespondent has been in the habit of conducting the services of his Church. At the same time it is obvious enough that the probability of both the Crucifix and the " Stations of the Cross " being turned to superstitious uses, is largely augmented by the fact that they have been set up by a clergyman who celebrates the Holy Communion with a mixed ChaHce and wafer bread, and, with a " Biretta " on his head, accompanies a procession round his Church with banners, crosses, and acolytes in red cassocks, in apparent imitation of the Church of Eome. But the structure or ornament of a church is more or less a thing of permanence, while the ministrations of a particular clergyman are more or less temporary, and if sound objections exist, as I think they do in this case to the objects complained of, in themselves, those objections constitute the best, because the most permanent basis for their condemnation and removal. I will only add that I have endeavoured in the above conclusions rightly to interpret and apply the decisions of the Appellate Court on this grave subject, in their spirit as well as their letter. I say grave subject, for no one can doubt that the slightest return to the use of graven images or pictures as an aid to prayer or a spur to devotion, would be justly regarded as a surrender of principles, vindicated at high cost in the Keformation, and dear to the people of this country. On the other hand, it would be a matter of no small concern if any needless restriction or prudery of apprehension should serve to check the generous piety of those who have laboured to restore what the hand of time had defaced; to undo the work of Puritan Concluding Remarks. 45 excess ; to repair the ravages of neglect ; and enhance the outward heauty of the House of God. It is between these alternatiye evils that the de- cisions of the Appellate Court appear to lae to be designed to occupy a safe position. It may be that, in some cases, the line of severance between the " mere decoration," which is free from harm, and the "superstitious reverence," which is fuU. of peril, may be difficult to draw or uncertain to maintain. I do not think it is so in this case ; but if I deceive myself ia that belief, there remains the obvious reflection that a false step in one direction is likely to be fraught with evils far greater than any that can ensue ft-om an error committed in the other. If sculptured figures, or pictures, are once set up in our churches, and sustained by the Law ; to which (whether from the natiu*al tendencies and weaknesses of the human mind on this subject, or from the teachings of books, or the promptings of individuals) adoration or superstitious reverence should, contrary to expectation, come to be paid, an irreparable step towards idolatry may prove to have been taken ; for the outward object once sanctioned, the inward de- votion is beyond the reach of Laws. In the opposite direction I can discern no evil comparable to this. The range of decoration and artistic design is prac- tically without a limit, and, in the profusion of choice, the loss by prohibition of any special figures or objects can at no time be more than &intly felt, and can at all times be easily repaired. As the Judgment of the Court is, on all the charges, in fevour of the Complainants, the Itespondent must pay the costs of these proceedings. 46 Appeal of the Respondent. Appeal, Whereas at the hearing of the above Eepresentation the Eight Honourable James Plaisted, Baron Penzance, a Judge of the said Court, did on the 3rd day of February, 1876, order and decree that the Eeverend Charles Joseph Eidsdale, Clerk, Incumbent of Saint Peter, Folkestone, in the Diocese of Canterbury, had oflfended against the Laws, Constitutions and Canons of the Established Church of England by having on Sunday the 4th day of July, 1875, at the early service commencing at 7.30 a.m., and again at the mid-day service commencing at 10.30 a.m., and also on Sunday the 11th day of July, 1875, at the like mid-day service when officiating in his said Church in the Communion Service and in the administration of the Communion, unlawfully worn certain unlawful Ecclesiastical vestments, to wit, a, vestment known as an Albe and a vestment known as a Chasuble, and also by having at all the said services on the said days when officiating in his said Church in the Com- munion Service and in the administration of the Com- munion to Communicants, used in such service and administration wafer bread or wafers (to wit, bread or flour made in the form of circular wafers) instead of bread such as is usual to be eaten, and also by having at the said mid-day service commencing at 10.30 a.m. on the said 4th day of July, and on the said 11th day of July when officiating in his said Church in the Communion Service, unlawfully stood while saying the Prayer of Consecration in the said service at the middle of the West side of the Communion Table (such Communion Table then standing against the East wall with its shorter sides towards the North and South) in such wise that during the whole time of his saying the said Prayer he was between the people and the Communion Table with his back to the people, so that the people could not see him break the bread or take the cup into his hand, and also by Monition to the Respondent. 47 having without lawful authority and unlawfully and since the Consecration of the said Church, that is to say in the year 1872, set up and placed upon the top of the Screen separating the Chancel of the said Church from the body or nave thereof, and still unlawfully retaining thereon a Crucifix. And did by his said Order or Decree admonish the said Eeverend Charles Joseph Eidsdale to abstain for the future from the practices and acts set forth as aforesaid, and from sanctioning and permitting the same. And did further direct the said Eeverend Charles Joseph Eidsdale to remove or cause to be removed from the top of the said Screen the figure on the Cross fixed thereon. Now therefore take Notice, that I the said Eeverend Charles Joseph Eidsdale, hereby appeal from so much of the said Order or Decree as is hereinbefore set forth to Her Majesty in Council. Dated -this 16th day of February, 1876. C. J. ElDSDAIiE. Monition. James Plaisted Baron Penzance, Official Principal of the Arches Court of Canterbury, to the Eeverend Charles Joseph Eidsdale, Clerk, the Incumbent or Perpetual Curate of the District Chapelry of Saint Peter, Folkestone, in the Diocese of Canterbury, greeting: — Whereas at the hearing of the matter of a Eepresentation made by William Clifton, George Miller, and James Harris in pursuance of the pro- visions of the Public Worship Eegulation Act, 1874, in which you the said Eeverend Charles Joseph Eidsdale are the person complained of, We did pronounce that the Complainants had sufficiently proved the practices, acts, matters, and things alleged in the said Eepresen- 48 Monition to the Respondent. tation, and that you had offended against the Statutes, Laws, Constitutions, and Canons of the Church of England in respect of the following practices, acts, matters, and things, to wit, by having after the 1st day of July, 1875, in your said Church or Chapel of Saint Peter, Folkestone, unlawfully used lighted candles on the Communion Table at which the Com- munion was being celebrated, or on a ledge immediately over the same, during the celebration by you of the Holy Communion, and when such lighted candles were not wanted for the purpose of giving light. And also by having when officiating in your said Church in the Communion Service and in the administration of the Communion, unlawfully worn certain unlawful Eccle- siastical vestments, to wit, a vestment known as an Alb and a vestment known as a Chasuble. And also by having after the said Ist day of July, 1875, when officiating in your said Church in the Communion Service unlawfully mixed water with the Sacramental Wine used in the Communion. And also by having then administered or caused to be administered wine mixed with water to the Communicants at the Lord's Supper. And also by having after the said 1st day of July, 1875, when officiating in youir said Church in the Communion Service and in the administration of the Communion to Communicants unlawfully used in such service and administration wafer bread or wafers (to wit, bread or flour made in the form of circular wafers) instead of bread such as is usual to be eaten. And also by having after the 1st day of July, 1875, when officiating in your said Church in the Communion Service unlawfully stood while saying the Prayer of Consecration in the said service at the middle of the "West side of the Communion Table (such Communion Table then standing against the East wall with its shorter sides towards the North and South) in such wise that during the whole of your saying the said Prayer you were between the people and the Communion Table, with your back to the people so that the people could not see you break the Monition to the Respondent. 49 bread or take the cup into your hand. And also by having after the said 1st day of July, 1875, when ofliciating in your said Church in the Communion Service and saying the Prayer of Consecration in the said service not continued in a standing posture, but unlawfully knelt or bent the knee during the reading thereof. And also by having after the said 1st day of July, 1875, immediately after the conclusion of the Prayer of Consecration in the Communion Ser- vice unlawfully caused to be sung in your said Church the words, or hymn, or prayer commonly known as the "Agnus," that is to say, "O Lamb of God that taketh away the sins of the world, have mercy on us." And also by having after the said 1st day of July, 1875, when officiating in your said Church unlawfully celebrated the Lord's Supper in the course of Divine Worship, and having yourself then consecrated and received the elements when less than three persons. communicated with you. And also by having after the said 1st day of July, 1875, in your said Church after the conclusion of Morning Prayer and immediately before the commencement of the Communion Service, and as connected with such Communion Service, and in the presence of the congregation then assembled in the said Church for such service, unlawfully formed and accompanied a Ceremonial Procession, and by having while taking part in such procession unlawfully worn a Chasuble and had a cap called a Biretta upon your head. And also by having at Evening Service on the said 1st day of July, 1875, and as connected with such service, and in the presence of the congregation assembled for such service, unlawfully caused a like procession to that before mentioned as having taken place at the Morning Service to be formed, and by having accom- panied the same round the Church. And also by having without lawful authority and unlawfully, and since the consecration of the said Church, that is to say, in the year 1872, set up and placed upon the top of the screen separating the chancel of the said Church B 50 Monition to the Respondent. from the body or nave thereof, and still unlawfully retained there a Crucifix. And also by having without lawful authority and unlawfully set up and placed in the said Church since the consecration thereof, that is to say, ia the year 1871, and still unlawfully retained therein certain unlawful representations of figures in coloured relief of plastic material purporting to represent scenes of our Lord's Passion, the same being attached to the walls of the said Church, and forming what are commonly called Stations of the Cross and Passion — such said practices, acts, matters, and things being respectively alterations in or additions to the fabric, ornaments or furniture of the said Church made with- out lawful authority, decorations forbidden by law, unlawful ornaments of the Minister of the said Church, failures on the part of the said Incumbent to observe and cause to be observed the directions contained in the Book of Common Prayer relating to the performance in such Church of the services, rites, and ceremonies ordered by the said book, or unlawful additions to and alterations of such services, rites, and ceremonies. And whereas We did by Our said Decree admonish you the said Eeverend Charles Joseph Eidsdale to abstain for the future from any such practices, acts, matters, and things as aforesaid, and from each and every of them, and from sanctioning, or permitting, and suffering the game or any of them ; and We did further admonish and order you the said Eeverend Charles Joseph Eidsdale within twenty-one days from the service upon you of the Monition to be issued in accordance with Our said Decree to remove or cause to be removed from your said Church the said Crucifix placed on the top of the said screen in such Church ; and further, within twenty-one days of the service of such Monition to remove or cause to be removed from your said Church the said representations of figures in coloured relief attached to the walls of your said Church and forming what are commonly called Stations of the Cross and Passion, and did con- demn you the said Charles Joseph Eidsdale in Costs. Refusal to suspend execution of Monition. 51 Now We do therefore command you tlie said Eeverend Charles Joseph. Eidsdale to abstain for the future from any such practices, acts, matters, and things as aforesaid, and from each and every of them, and from sanctioning or permitting and suffering the same or any of them. And We do farther command you the said Eeverend Charles Joseph Eidsdale within twenty-one days from the service of this our Monition to remove or cause to be removed from your said Church the said Crucifix placed on the top of the said Screen in your Church. And also within twenty-one days of the service of this our Monition to remove or cause to be removed from your said Church the said Eepresentations of figures in coloured relief of plastic material purporting to represent scenes of our Lord's Passion, the same being attached to the walls of your said Church and forming what are commonly called Stations of the Cross and Passion, and herein fail not. Given at London the nineteenth day of February, 1876. . ©Cyetts Waddilovb, Deputy Eegistrar. On the 26th February, 1876, Appellants' Counsel (Dr. Walter G. P. Phillimore) moved Lord Penzakce to suspend the execution of the Monition, pending the Appeal, in respect of the four points appealed : his Lordship having heard Eespondent's Counsel (Mr. B, iSHAw) delivered the following Judgment. LoED Pj:nzancb. — I must say I think it would be a great misfortune if I were bound by any view of the justice of this case to concede this application. One of the evils that existed before the late Act was the grievance that, when the Court of Arches had decided E 2 52 Refusal to suspend execution of Monition. the thing to be lawftil or unlawful, appeal was had to the Queen in Council, and the immediate effect of that appeal was to stay the hand of the inferior Court, so that the decisions of the Court never could have any effect until a great length of time had elapsed, and until very great expense had been incurred. Eeference has been had to what happens in other Courts, It is now, as Mr. Shaw has very properly said, under the Judicature Act, the universal practice in all the Courts that the Court appealed from should be able to hold its hand over the circumstances under which the Appeal should go on, and that it should have the discretion to suspend the operation of its own. Judgment or Decree in proper cases, but that, where such circumstances do not exist as to render it a proper case for that suspension, the rule should be that the Decree of the Inferior Court should go forward. That was the practice in the Probate Court under the Probate Act, it was the practice of the Courts of Equity, and in some cases it was the practice of the Courts of Law, but now by the Judicature j^.cts it is the practice of all the Courts in Westminster HaU. To that extent the analogy of other Courts is a thing to look to. But the circumstances under which other Courts think it right to stay the execution of the Decree of the inferior Court will be of very little assistance to this Court, owing to the very different nature of the matters involved. Therefore I do not hold with the proposition that because Courts of Equity lay down the rule — if they do lay it down — that irreparable injury must be done before they will stay the Decree, that this Court should take the same principle as its guide. I think that the principle, and the only principle, if it can be called a principle, which is to be adopted is, that the Court in each case should consider the whole of the circumstances, the amount of actual injury, the amount of grievance to people's feelings, the circumstances under which the alleged offence has been committed, the state of the law in previous cases, and a variety of other circumstances, in fact every cir- cumstance that could bear upon the matter — that the Refusal to suspend execution of Monition. 53 Court should take all that into its consideration and then, if special grounds are shown to exist, that it should hold its hand until the Superior Court has had cognizance of the case. That I believe is the only- principle which can be laid down for the exercise of the power confided to this Court by the late Act of Parliament. Then the question is whether in this case any special grounds have been shewn. The Eespondent in the present case has been in the habit of conducting the Services of his Church in direct contravention of the law as settled by the Supreme Tribunal in the last case that came before it. I do not know whether I may assume, from his appealing only in respect to certain points, that he is prepared to yield obedience to the law upon those points as to wluch he has not appealed, I hope I may : but in the cases in which he has appealed he now asks upon no special grounds, — except that he still maintains that these matters are not illegal, which is a proposition that everybody maintains in such cases, — upon no special grounds he asks that he should be allowed to continue the Services, in a way which the Supreme Court of Appeal has declared to be illegal, until he can have the oppor- tunity, if the Court permits him that opportunity, of questioning again in that Court its own decision and inducing it to revoke the conclusion at which it previously arrived. Now that seems to me a very unreasonable thing to ask. I think he should obey the law as it stands. I think he should perform the Services of the Church as the Supreme Court of Appeal has declared they ought to be performed, and then he will come with clean hands at least to the Superior Court, saying, I have been obedient to the law up to the present time, and I ask you to allow me to open the question again which you have previously decided, and to endeavour to persuade you if I can that you on a former occasion came to a wrong decision. That applies to three of the four points upon which alone an appeal is granted. 54 Refusal to suspend execution of Monition. Tlie fourtli point is as to a decision of this Court of a novel character relating to a point wliicli lias not been decided before. Now upon tbat matter I will say tbis, tbat I think this Court like all Inferior Courts ought not by any means to assume that its own Judgment will ultimately be affirmed, and there- fore if any decision is given in this Court upon which an Order is issued which may be very painful to the consciences of those against whom it is directed,' I can conceive cases in which it would be very proper indeed that that order should be withheld, or its operation suspended until the Superior Court had had an opportunity of declaring whether it was justified or not ; but in this dase I can conceive no difficulty of that kind because the order here is to take oflf from the crucifix the figure which, as has been very properly pointed out by Counsel, was proved in the case not to be a part of the same structure as the cross but to have been distinct from it, and screwed upon the cross; it therefore can be detached without the slightest difficulty, it also can be detached and removed without doing injury to the religious feelings, scruples, or consciences of anybody; because we must always recollect that the Eespondent maintains that this figure is a mere Architectural decoration, and if it is only a decoration of the Church, the loss of that decoration for the period during which this case is under Appeal is not a matter that really could wound the most sensitive conscience. Yiewing this figure therefore in the light in which the Eespondent views it, it seems to me that there is no pretence for applying to the Court on any special grotmd as to the injury that would be done to people's feelings, or to the structure of the Church, by the removal of the figure, until the Court of Appeal shall have determined, if it does determine, that it may lawfully be put up again. Therefore going through the items of the Eespon- dent' s Appeal, looking at the circumstances in which they stand, looking particularly to the state of the law as it now is settled by the Supreme Tribunal in Application for usual Inhibition. 55 these matters, and not throwing aside or being unaware of the strong feeling that exists upon many of these subjects, I still thmk it plain that the Eespondent ought to obey the law as he now finds it, and that until he can succeed in reversing it he ought to be content to conduct the Service of the Church in accordance with the Judgment that the Privy Council have already delivered. The power confided to this Court under the Section of the Act to which allusion has been made * is one that ought to be sparingly applied — ^it is one that ought to be applied only where very special circumstances exist, and as in my opinion no such circumstances exist in this case I must reject the application. I hereby certify that the above is substantially a correct report of the Judgment delivered by the Right Honour- able James Plaisted Baron Penzance, Judge of the Arches Court of Canterbury, on the 26th day of February, 1876, in the case of Ridsdale v. Clifton, and others. Gainsfoed Beuce, Temple, 11th August, 1876. Lord Peistzance having refused to suspend the execution of the Monition, and a Caveat having been lodged against issuing the usual Inhibition during the Appeal, Appellant's Counsel, (Dr. "Walter Philli- more) applied, on March 14, to the Judicial Committee to authorize the Inhibition. Mr. B. Shaw was heard for the Eespondents. Present — The Lord Chancellor (Cairns) ; Lord Hatherly ; Sir Robert J. Phillimorb ; Sir Barnes Peacock ; Sir Montague E. Smith. JXTDGMENT, DELIVERED 14tH MaRCH, 18T6. In the case in which their Lordships have now to express their opinion an Appeal has been instituted against the decision of Lord Penzance, as Judge of the * The Public Worship Eegulation Act, 1874, 37 & 38 Vict., c. 85, s. 9. 56 Judgment of Judicial Committee Arches Court, dated 3rd of February, 1876, and tlie matters complained of, with, regard to that decision, are these : First, that it pronounces unlawful the wearing of certain vestments ; Secondly, that it pronounces as un- lawful the use in the Holy Communion of wafer bread or wafers ; Thirdly, that it pronounces unlawful the stand- ing by the minister while saying the Prayer of Con- secration in the Communion Service at the middle of the west side of the Communion Table, in such wise that during the whole time of the saying of the Prayer he was between the people and the Communion Table, with his back to the people, so that people could not see him break the bread or take the cup into his hand ; and. Fourthly, that it pronounces as unlawful the setting up and placing on the top of the screen separating the chancel of the church from the body of the church, and still retaining thereon, a crucifix. The decree which is thus complained of and appealed against in its form admonishes the present Appellant, the Eeverend Charles Joseph Eidsdale, to abstain for the future from the practices and acts set forth in the- decree, and from sanctioning and permitting the same ; and it also further goes on to direct, affirmatively, the Eeverend Charles Joseph Bidsdale to remove or cause to be removed from the top of the screen the figure on the cross fixed thereon. Now that decree having been made, and notice of appeal having been given, an application was made, as is usual in such cases, for the process which is called Inhibition, and Citation and Monition for Process — monition for documents ; and against the issuing of that process a caveat has been lodged, which has made it necessary for the Eev. Mr. Eidsdale, the Appellant, to come before their Lordships, and to ask that the process which he seeks should issue. If the process issues in the triplicate form to which I have referred, of inhibition, citation, and monition, the inhibition will restrain the execution of the decree, to which I have referred, pending the appeal; and therefore, in sub- stance, the motion now before their Lordships raises the on application for visual Inhibition. 57 question whether proceedings ia this case under the de- cree should or should not be stayed pending the appeal. Now it has been contended, on behalf of Mr. Eids- dale, here, in the very able argument which we have heard, that the issuiag of an inhibition, ia cases like the present, has always been a matter of course, and is still a matter of course, notwithstanding the pro- visions of the Public Worship Eegulation Act of 1874, and that therefore the caveat against the issuing of the inhibition ought to be removed, and the inhibition ought to issue as a matter of course, as part of the process. That "makes it necessary for their Lordships to consider what the nature and character of the part of the process termed the inhibition, upon the occasion of an appeal, was before the passing of the Act of Parliament to which I have referred. There is no doubt that in every appeal in ecclesiastical cases it was very much a matter of course to issue an in- hibition. It was in fact so much a matter of course that it was permitted to the officer of the Court to issue the inhibition as part of the process, whenever it was applied for. But their Lordships cannot arrive at the conclusion that because in every case where there was, or appeared to be, a probable cause for litigation, evidenced by the appeal being brought, the issue of this process was so common as to be left as a ministerial act to the officer of the Court ; they cannot from this arrive at the conclusion that the discretion of the Court as to issuing an inhibition was taken away, or that this Tribunal or the Supreme Tribunal for the time being in ecclesiastical cases, where a case was brought pointedly before its notice, would not have it in its power to exercise its discretion as to whether an inhibition staying proceedings should or should not issue. If their Lordships look to authority upon the subject they cannot but think that the expressions of Sir John Nichols, in the case of Herbert v. Herbert^ show very clearly that in his opinion in a proper case the discretion rested with the tribunal to issue, or not to issue, an inhibition ; and the authorities which are 58 Judgment of Judicial Committee referred to in the argument, in that case of Herbert r. Herbert, go very strongly to the same point, especially the passage cited from Ayliffe's Parergon, which is printed at length in a note to the case of Herbert v. Herbert. MoreoTer, upon the reason of the thing, their Lord- ships also are of opinion that a Court which has the right to entertain an appeal must of necessity have this discretion with regard to the issuing of a process, such as inhibition. The inhibition is only a collateral and incidental part of the process. The main process is that of citation, calling upon the party in possession of the decree to appear before this Tribunal, and to defend the decree which he has obtained. It would be a strange thing indeed if that which is ancillary and incidental to the main jurisdiction of the Appellate Tribunal could not be moulded, issued, or refused to be issued, as the tribunal should think best under the circumstances of the particular case. I have only to add to this, with regard to the position of matters before the passing of the Public Worship Eegulation Act, the circumstance that certain Eules were issued by this Board in pursuance of the statute 6th and 7th of the Queen, chap. 28, and that it is necessary to refer to an argument which has been urged with regard to these Eules, that 'they in some way have made the issuing of an inhibition in this case absolutely necessary. Now the Eules which are material upon this point are the 4th and 5th. The 4th is in this form : " When the Eegistrar has ascertained thai the petition of appeal has been referred to the Judicial Committee, he may, on the application of the solicitor, issue the usual inhibition and citation and monition for process." He may do this, on the application of the solicitor, issue the triplicate form of process, inhibition, and citation, and monition for process ; but if their Lordships are right in considering, as they do consider that the issue or non issue of the inhibition was a matter of discretion, of course this reference in the Eules to the usual inhibition, citation, and monition on application for usual Inhibition. 59 for process must mean triplicate process when it was to be in triplicate; and where, if ever, the Court should hold that the inhibition should not issue, then the process confined and limited to the citation and monition for process. The 5th Eule is to this effect : " If within one month from the date of the petition of appeal being referred to the Judicial Committee, the solicitor for an appellant shall not take out the inhibi- tion and citation and monition for process, the appeal shall stand dismissed." Upon that it was argued, that, unless the threefold process were to issue, Mr. Eidsdale would be deprived of his appeal, and it would be absolutely dismissed in consequence of this Order. Their Lordships cannot adopt that construction of the Eule. In their opinion, if it is in their discretion, as they think it is, to say, on a proper case being pre- sented to them, whether the inhibition shall or shaU not issue, the Order that it shall not issue will render the taking out the other two parts of the process, the citation and monition for process, suflB.cient to save the appeal under this Order. In point of fact, the descrip- tion of the triplicate process is description only, and does not raise the necessity, as an absolute necessity, that the process should be in that triplicate form. Now, that being the state of the law, as their Lord- ships understand it, before the Act for the Eegulation of Public Worship passed, their Lordships have to consider the effect of that statute. Their Lordships approach the consideration of the statute, bearing in mind therefore that before it passed the issue of an inhibition, although so common as to be almost matter of course, was still matter of discretion, if the dis- cretion of this Board were called upon to be exercised upon it. The statute of 1874 provides, by the 9th section, what shall be the form of proceedings before the Judge under the Act, or the Judge of the Court of Arches, as the case may be, and it provides that the Judge shall pronounce judgment on the matter of the representation, and shall deliver to the parties on application, and to the Bishop, a copy of the special 60 Judgment of Judicial Committee case, if any, and judgment. It provides farther that the Judge shall issue such monition, if any, and make such order as to costs as the judgment shall require. It provides then, further, that upon any judgment of the Judge, or monition issued in accordance therewith, an appeal shall lie in the form prescribed by Eules and Orders to Her Majesty in Council ; and then comes this final sentence in the clause, " The Judge may, on application, ia any case suspend the execution of such monition pending an appeal, if he shall think fit." "We find, therefore, in this Act of Parliament, that which certainly did noi. exist as a power in the Ecclesiastical Judge before the Act passed. Before this Act passed there was no power whatever in the Ecclesiastical Judge to suspend proceedings under his decree pend- ing an appeal. There was, as has been pointed out at the bar, a power somewhat, perhaps, arbitrary In the Judge to keep possession of his decree in the. office of the Court until an opportunity were given for the dis- satisfied party to present a petition of appeal to Her Majesty in Council, and to obtain an inhibition, which, if obtained, would prevent the execution of the decree. But power in the Judge himself to restrain proceedings under the decree during the whole of the appeal did not exist. That was given for the first time by this statute. Now their Lordships cannot look at . this provision in the statute as otherwise than an indication that in the opinion of the Legislature it ought to be considered in each particular case whether the decree made in that case should be executed pending an appeal, or should be stayed pending an appeal. The intimation of the Legislature is distinct, that that is a matter which ought to be entertained as a question of discretion,, and brought, at all events in the first instance, for the decision of the Judge himself who has made the decree. That has been done in the present case, and the decision of the Judge in the present case is, for reasons which he has stated, that the execution of no part of his decree should be suspended pending the on application for usual Inhibition. 61 appeal. Their Lordsliips are not sitting upon appeal from tliat order of the learned Judge, because no appeal from that order appears to' be given by the Act of Parliament ; but they are sitting here considering the application which is now made to them, that in their discretion the inhibition in the present case should not issue restraining the execution of this decree, either in whole or in part, and they are unable to treat the Act of Parliament as doing otherwise than introducing a new element for them to consider in exercising their discretion as to whether the inhibition ought to issue. Now, therefore, applying those principles to the case which their Lordships have to decide, in their opinion the mode in which they have to look at a case like the present is this : to consider the balance of convenience or inconvenience with regard to the execution of the decree ; that is to say, looking at the facts of the particular case, looking at what is ordered by the Court to be done, whether upon the whole it would be better that the decree of the Judge should be allowed to take its course, or whether the things which it orders to be done are in their nature such as that the doing'of them would produce so much injury that it would be more desirable that the decree should be stayed until the decision of the final tribunal is known. That is a practice which is well known in other Courts. It is well knovra, for example, in the Court of Chancery, where, upon an application to stay the execution of a decree, it has always been considered to be the question for the Court whether the balance of convenience was more in favour of restraining the execution of the decree in the particular case, or more in favour of letting the decree take its course. Now in the present case, their Lordships do not desire to express, and it would not be proper for them to express, any opioion whatever as to the merits of the appeal, which Tiltimately will have to be heard from this decree. They gire credit for the present purpose to the decree as the decree of the learned 62 Judgment of Judicial Committee Judge by whom it has been made. On the other hand, they give credit to the ' sincerity of those who have considered that there is ground for impeaching that decree, and who wish to have their case against the decree heard at the proper time. But, on the other hand, treating the decree as at present, until reversed, the order of the Court, and on the other hand treating the Appeal as evidence, that in the opinion, at all events, of the Appellant there is probabilis causa litigandi^ they have to look at what are the things which the decree orders to be done or to be left undone. Now in that respect they find a very marked difference between different parts of the decree. With regard to the vestments pronounced unlawful, and which therefore are directed not to be worn ; with regard to the use of the wafer bread, which is also pronounced to be unlawful, and which ia therefore directed not to be used ; with regard to the posture of standing during the Prayer of Consecration at the west side of the Communion Table, which is also pronounced unlawful, and where therefore the minister is directed not to stand at that time ; with regard to all these things, their Lordships consider that no inconvenien.ce and no injury which would be irremediable will arise from the decree being obeyed in those matters pending the appeal. The other point is different. I refer to the part of the decree which pronounces unlawful the setting up and placing on the top of the screen separating the chancel of the church and retaining there a Crucifix ; and as to this the decree directs the Eevd. Charles Joseph Eidsdale to remove or cause to be removed this Crucifix from the screen. Their Lordships do not desire to make any difference between this and the other parts of the decree as to what may be termed the merits ; that is to say, they do not, by what they are going to order, wish to place that part of the decree in any different position from the other parts of the decree as regards the correctness of the decree itself. They give credit on that part of the decree as on application for usual Inhibition. 63 they do to the other parts of the decree, to that which is for the present the decision of the Court below, hut they see that different consequences may arise, as to this part of the decree, from executing it pending the decree. It is unnecessary to go into wh^t those con- sequences are, beyond saying that it is, obviously from the nature of the case, at least possible that a subject which ought to be treated with the greatest reverence might be accompanied with feelings of a different kind if the decree were in this respect in the first instance to be executed, and afterwards upon a reversal of that decree the process had to be repeated of making another change. Tor those reasons, and for those only, their Lord- ships desire to make a difference between this last part of the decree and the parts which precede it. And as to this latter part of the decree, they desire that by the inhibition the execution of that part of the decree should be suspended pending the appeal. The inhibition therefore will go limited in the manner which has been indicated to the last part of the decree, but not so as to restrain the execution of any of the other parts of the decree. With regard to costs, their Lordships do not think it fit to give any costs of this appeal to either side. 64 The Appeal to the Judicial Committee. The Appeal on the Merits was heard by the Judicial Committee of the Privy Council on Tuesday 23rd, Wednesday 24th, Thursday 25th, Friday 26th, Saturday 27th, Monday 29th, Tuesday 30th, Wednesday 31st January, 1877. The Lord President (The Duke of Richmond and Gordon) was present at the opening of the Court. Members of the Court. 1. The Lokd Chancellor (Cairns.) 2. Lord Sei,borne. 3. Sir James W. Colville. 4. Lord Chief Baron (Keli,y.) 5. Lord Justice James. 6. Sir Robert J. Phillimore. 7. Sir Montague E. Smith. 8. Sir Robert P. Collier. 9. Sir William B. Brett. 10. Sir Richard P. Amphlett. Assessors. 1. The Archbishop of Canterbury. 2. The Bishop of Chichester. 3. The Bishop of St. Asaph. 4. The Bishop of Ely. 5. The Bishop of St. David's. Counsel for the Appellant. Sir James F. Stephen, Q.C. Mr. Arthur Charles, (now Q.C.) Mr. Francis H. Jeune. Dr. Walter G. F. Phillimore. Counsel for the Respondents. Dr. Archibald J. Stephens, Q. C. Mr. Benjamin Shaw. Argument of Sir James Stephen. 65 ARGUMENT. Tuesday, January 23kd. Sir James Stephen.— May it please your Lord- ships. In this case the Reverend Charles Joseph Eidsdale is the Appellant, and Mr. Clifton and two others are the Respondents. This case comes before your Lordships upon appeal from the Court of Arches, and I do not think it necessary to state in any detail the circumstances connected with the earlier stages of the case. The. questions for your Lordships' decision will be the following, provided, that on consideration, your Lordships think it right that on the three first of those questions I should be heard. The first ques- tion is the legality of certain " vestments worn by the Appellant at the celebration of the Communion. There is no question about what they are, and I will call them generally vestments. The second question is the legality of what is known as wafer bread. The third question is the question of the legality of what is commonly called the eastward position, which means that the Clergyman during the prayer of con- secr3,tion in the Communion Service stands in the middle of the west side of the table, the west side on the usual arrangement, looking towards the east. The last question is the question of the legality of the certain figure or crucifix which has been afiixed to a screen across the Chancel of Mr. Eidsdale's Church. 66 Reasons for ashing the Judicial Committee. Those are the four issues to be decided in this case, supposing your Lordships hear what I have to say. My Lords, as to the first, second, and third of those questions, the decision of your Lordships' Court m the case of Hebbert v. Purchas is, I must_ admit, directly in point, for which reason we abstained in the Court below from arguing the points which had been decided by that case and confined ourselves to stating that, for various reasons which I will imme- diately give your Lordships more at length, our intention was to ask your Lordships' Court to recon- sider that decision when the proper time arrived. The learned Judge, Lord Penzance, delivered Judgment, and before I go to the merits of the case I will offer to your Lordships some reasons why it might be expedient for your Lordships to allow me to call in question the decision in Hebbert v. Purchas, and to argue that that decision was arrived at on mistaken grounds. The first reason I would suggest is that the learned Judge in the Court below, in delivering Judgment, although we had not argued the point at all, himself pointed out that in his opinion there was an inconsistency between the decisions of Hebbert v. Purchas, and the previous decisions of Liddell v. Westerton, and Martin V. Mackonochie. The case of Clifton v. Ridsdale is reported in the Law Eeports, 1st Probate Division, p. 316 and following pages. The particular passage to which I now refer occurs on pp. 341 to 343. In that passage Lord Penzance observes, after going at some length into the meaning of the case of lAddell V. Westerton and the case of Martin v. Mackonochie :^- ''When fully conaideredj this case," Martin v. Mackonochie, " affords not a mere judicial dictum but a direct authority as to the true meaning of the rubric judicially announced as the ratio decidendi of the Court, and acted upon as the basis of its ultimate decision. With this decision, the sub- sequent one of Hebbert v. Pwrehas, condemning the vest- ments which are among the ' ornaments ■" prescribed by the first Book of Edward the Sixth, appears to be directly in conflict." to reconsider Decision in Hehbert v. Purchas. 67 Then he goes on with some further considerations upon the character of the cases. He says : " It may be that this conflict of authorities is rather apparent than real, but whether it be the one or the other, my course in this Court is clear. I cannot doubt that of two Judgments delivered in the Appellate Court which are in any degree inconsistent, I am bound in pronouncing the decision of the Superior Court to obey and carry out that which was addressed directly to the matter in issue here, and which also was the last pronounced. As this result was inevitable, the learned Counsel have done well I think not to argue the question, and as the question has not been argued I forbear to express my own opinion on the subject." Therefore, the matter as regards that case stands thus :— The learned Judge of the Court below has said that there is an apparent conflict between the two decisions, and has intimated not obscurely his own opinion that they really are perfectly incon- sistent. There is at least one instance in which your Lordships' predecessors have distinctly departed from an earlier decision of the Judicial Com- mittee of the Privy Council, directly in point upon the matter in question. I refer to the case of Fenton v. Hampton, 11th Moore. The whole matter is summed up in the Judgment of the Court on that occa- sion, which was deUvered by the late Lord Chief Baron Pollock in a way which enables me by read- ing one passage to show your Lordships that on that occasion, at all events, one decision of the Judicial Committee was departed from and reconsidered by a subsequent decision on the same matter. The question at issue was as to the right of a Legislative Council to commit for contempt qrm Legislative Council. The Lord Chief Baron says : " The subject is not new to this Cojirt, it has been dis- cussed before on more than one occasion. In the case of Beaumont v. Barrett, from Jamaica, 1st Moore, p. 59, it was decided that an assembly possessed of supreme legislative authority had the power of punishing contempts, that the power was inherent in such an assembly, and antecedent to 68 Reasons for ashing the J. Committee to reconsider^ ^c. its legislative functions, and according to the Judgment in that case every Colonial Assembly or Council possessed the same authority to punish those contempts which the House of Commons had exercised in this kingdom for a long series of years, hut in the year 1842 the same question in sub- stance came before this Committee, on an Appeal from New- foundland, and was twice argued, the second time before the Lord Chancellor, two noble members of the Committee, who had formerly held the Great Seal, the three chiefs of the Common Law Courts in Westminster Hall ; two out of the four members of the Court who were present at the decision of the case of Beaumont v. Barrett, the Vice Chan- cellor, and Dr. Lushington, and, on that occasion, their Lord- ships were of opinion that the House of Assembly did not possess the power to arrest with a view to Adjudication on a complaint of contempt committed out of its doors. They held that the power of the House of Commons in IJngland was part of the lex et consultodo SarUami entii, and the existence of that power in the Commons of Great Britain did not warrant the ascribing of it to every supreme legislative authority or assembly in the Colonies. We think we are bound by the decision of the case of Kenney v. Ca/rson, the greater authority of which, as compared with Beaumont v. Barrett, it is quite unnecessary to enlarge upon." So much in explanation of the request which I submit to your Lordships to be allowed to argue this case, notwithstanding the decision in EelbertY. Purchas. I may add that there are some special circumstances connected with that decision which your Lordships may possibly think ajQFord an ad- ditional reason why the matter should be more fully heard. The case of Hebbert v. Purchas or ElpUnstone V. Purchas was in each instance heard exparte. Neither before the learned Judge, the then Dean of the Arches, Sir Robert PhiUimore, nor before your Lordships' Court, was Mr. Purchas represented by Counsel, a circumstance due I believe to the poverty, and I will add to the honourable poverty, in which he lived and died. Under those circum- stances the Court were called upon to decide a case, which as I fear your Lordships will find, turns almost entirely upon minute points of Ecclesiastical history, upon which it is hardly possible that any Court Argument on the Merits — Vestments. 69 should be instructed, unless they have the assist- ance of Counsel to put before them the result of researches collected by persons specially competent in that matter. Therefore, the ground upon which I respectfully submit to your Lordships the request that I may be allowed to argue this case is, that the course is not of itself unprecedented, and that the special circumstances of this case, being as it is, one that deeply interests the feelings of a very numerous and most important class of the community, afford a reason why it should be reheard. If I may assume that your Lordships will hear me upon this point, I will now proceed with my argu- ment. The Lord Chajstcellor. — Their Lordships think that you may pursue your argument, and their Lord- ships will consider whether and how far this case comes under previous decisions binding on their Lordships. Sir James Stephen. — I will now proceed to deliver my argument upon this question. The first question is as to the legality of the vest- ments. I think the most convenient mode of presenting the argument upon this subject to your Lordships will be to compare, in the first place, the case which I venture to submit with what, on an attentive study of their Lordships' judg- ment, I apprehend to be the reasoning upon which their Lordships founded their decision in the case of Hebbert v. Purchas. Having stated to your Lord- ships the two views taken on the subject, I shall then proceed to submit some reasons which appear to me to shew that their Lordships were misled, owing to that want of information upon minute points of Ecclesiastical History which, under the circumstances of the case, it was almost impossible to avoid. The whole question with regard to the vestments turns upon the true meaning of what is called the Ornaments Rubric, which rubric is one item in the 70 Ornaments Rubric, Liddell v. Westerton. schedule to the Act of Uniformity of 1662, which contains the Book of Common Prayer. The words of the Ornaments Rubrics are these : " And here is to be noted, that such Ornaments of the Church, and of the Ministers thereof, at all times of their ministration, shall be retained and be in use, as were in this ' Church of England, by the authority of Parliament, in the second year of the reign of King Edward the Sixth." There are certain points which are not in dispute between my learned friend and myself. In the first' place, it is admitted on all hands, and it has been expressly decided by your Lordships' Court in two cases, that the words " By the authority of Parlia- ment in the second year of the reign of King Edward the Sixth " refer to the first Prayer Book of King Edward the Sixth. In the second place it is also common ground that by the first Prayer Book of King Edward the Sixth the vestments — I call them by that name generally for shortness — were ordered to be worn. That being so, I submit to your Lordships our case upon this matter. And I think that I can do so with a degree of short- ness which I wish I could apply to the rest of the arguments. Although our case upon the mat- ter is an extremely short and simple one, I am afraid that it will be a matter of some time and some labour to go through the reasoning which con- vinced their Lordships that it was wrong, and to show your Lordships why that reasoning appears to be incapable of being supported. I can put our case into the form of the shortest and most direct syllo- gism that can be imagined, the major premiss of that syllogism being expressed in the very words of the ratio decidendi of Westerton. v. Liddell (Moore's Eeport, p. 159) : " The same dresses . . . which were used under the first Prayer Book of Edward the Sixth may still be used." These dresses were used under the first Prayer Book of Edward the Sixth. Form of Judgment, Eehbert v. Purchas. 71 Therefore, these dresses may still be used. That is our case. It would be an impertinence for me to insist at length upon the proposition that the shortness of the case is a measure of its strength. In observing upon the reasons which have conducted their Lordships to a different conclusion, I shall, I hope, be able to de- velope a little the strength of that case, but in the meantime I put it in that form. Now let me pass to the view which their Lord- ships appear to have taken of the subject. The form into which their Judgment is thrown is to a considerable extent that of a commentary. It begins with a history of the legislation on the sub- ject. It goes on to a commentary upon the Judg- ment of the learned Judge of the Court below and upon some other matters which have been put forward. Then the precise relation to each other or the different parts of the Judgment is not always, to me at least, completely easy to follow. The Judg- ment begins at page 634,* but the part where it enters into this question begins at page 636. The interpre- tation which their Lordships appear to have put upon the Ornaments Rubric is something of this kind. They take the words " retained and be in use," as the leading words, and they consider, apparently, that those words mean to say the existing state of things shall be maintained, and that existing state of things is that all Edward the Sixth's vestments are legal, those only excepted which have been rendered illegal by subsequent legislation. They had already said, in another part of their Judgment, that certain Ad- vertisements of Queen Elizabeth and the Canons of 1604 had legislative efficacy, and were in point of fact laws ; that those laws had forbidden the use of the vestments in dispute, and that therefore when the whole is put together the Ornaments Rubric comes to this — The Prayer Book of Edward the * Law Keports, 3 P.O. 634, &c. 72 Four incorrect Propositions Sixth, as qualified by the Advertisements and the Canons, is to be taken as the rule as to what vest- ments are to be used. The Canons and Advertise- ments leave the surplice, but exclude the chasuble and the alb. That I take to be in the main their Lordships' view of the Ornaments Rubric of 1662. I submit that at all events the view which I suggest is simpler and more direct, and more in accordance with the ordinary use of language. Of course I am not going to leave the matter nakedly there. It will be necessary for me, in order to bring the whole subject into the broadest possible lights to consider each and everyone of the diflferent allegations or propositions into which their Lordships' Judgment, may be finally resolved, and of which it is composed. I will now point out what in my opinion appear to be the vital affirmations of fact upon which that Judgment proceeds. They are four different pro- positions of fact, each of which it is necessary to establish before the view set forth in the Judgment of Helbert v. Purchas can be supported. Each of these propositions I affirm to be incorrect. The first proposition is that the Advertisements of Queen Elizabeth had the force of law and forbade the use of these Yestments. Our counter proposition is that those Advertisements had not the force of law, but were a mere Administrative Act, done by the Bishops of that time, not merely without the authority of the Queen, but the Queen expressly witholding her authority for reasons still on record, which I wiU state before your Lordships. Further, we say that whether those Advertisements had the force of law or not, yet they do not condemn the use of those vestments, that their intention was altogether different and that they were directed against a totally different class of persons from those who might have been disposed to use those vestments improperly, (assuming that their use was improper). That is the first issue of fact upon which I shall address your Lordships. of Fact in Hebbert v. Purchas. 73 Next, their Lordships state that the Advertise- ments and certain Injunctions, on which I shall say a word or two hereafter, caused the destruction and removal of the vestments, and that by reason of the issue of those Advertisements the vestments were in point of fact disused, and in many instances destroyed or taken away. That statement of fact is essential to the logical continuity of the Judgment, because their Lordships lay stress upon this destruction of the vest- ments under the authority of the Advertisements as a contemporaneous exposition of the object with which the Advertisements were issued. Our counter pro- position is, that the Advertisements were not the cause of the destruction of these vestments and that this can be proved by the very evidence which led their Lordships to the conclusion that they were. The third proposition which is necessary to their Lordships' Judgment (a proposition repeated in several parts of that Judgment) relates to the Canons of 1604 Their Lordships say in relation to those Canons that the Prayer Book of James the First, which was also published in 1604, derived its authority from them. In page 646 there is this expression — " There can be no doubt that the intention here was not to set up a contradictory rule by prescribing vestments in the Prayer Book and a surplice in the Canons -which give authority to the Prayer Book." Again, in page 647 — " Now the Prayer Book up to that time in use— the book which was the subject of the Hampton Court Conference — rested upon the Canons of 1603-4; and it is hard to suppose that the most obvious ' laws ■" of allj those in force up to that moment, were excluded from the saving power of this 24th clause." Near the bottom of page 649 — • "Their Lordships are of opinion that as the Canons of 1603-4, which in one part seemed to revive the vestments, and in another to order the surplice for all ministrations, ought to be construed together, so the Act of Uniformity is to be con- 74 Four incorrect Propositions of Fact, <^c. strued with the two Canons on this subject, which it did not repeal." The effect of that, and more to the same purpose which follows, is, that the Canons are treated as a legislative authority upon which the Prayer Book of 1604 and the rubric in that Prayer Book were based. Tour Lordships will find, in the course of this argument, that that also is one of the essential propositions of the Judgment. I shall contend that it is incorrect, because it can be shown that the Prayer Book of 1604 was in no sense based upon the Canons, but, on the contrary, proceeded from an entirely different source, and received its authority in a different manner. Lastly, it is stated, as a matter of fact (the precise words are not material, and therefore I do not think it necessary to delay you by referring to them), that the rubric of 1662 was settled advisedly with reference to an objection made by the Puritans at the Conference of the Savoy, so as to prevent it from having the effect of reviving the vestments referred to in the Prayer Book of Edward the Sixth. I think I shall be able to supply your Lordships with docu- mentary evidence of the most singular kind, con- sidering that we are speaking of a matter which occurred 214 years ago, as to the terms upon which that document actually was settled, and I shall show your Lordships that there was a misapprehension in their Lordships' mind as to the grounds and the nature of the alterations which were then made, I mention these different facts, because I have found myself, in attempting to master this case, in the greatest possible difficulty in ascertaining precisely what the bearing of the different facts insisted upon really is, and what the exact questions at issue really are. I hope that I have now made intelligible to your Lordships the general nature of the case which I am about to present, namely, first of all, that Mr. Ridsdale in wearing these vestments acted in obedience Legislation on Vestments^ 1549-1552. 75 to the express words of a still subsisting Act of Parliament, then that the different reasons for showing that that Act of Parliament is not still in force, but that it has been repealed by subsequent legislation, are all based upon mistakes of fact. I think it will now be convenient, in order to give a full account of this matter, to follow the example of their Lordships in considering the history of the legislation which has taken place at different times in reference to this matter. I think I shall thus be able to give your Lordships a sufficiently distinct notion of the grounds on which I have formed the conclusions already stated. The first Act which it is necessary to mention is the Act 2 and 3, Edward VI., Chapter I., which was passed in the year 1548. That Act prescribed under very heavy penalties the use of a Prayer Book, and that Prayer Book was published in 1549, and is known as the first Prayer Book of King Edward VI. It contains the directions upon which this case turns as to the vestments the clergyman is to wear. The rubric in question is in these words : " Upon the day, and at the time appointed for the minis- tration of the Holy Communion, the Priest that shall execute the Holy Ministry^ shall put upon him the vesture appointed for that ministration^ that is to say, a white albe, plain, with a vestment or cope. And where there may be many priests, or deacons, there so many shall be ready to help the priest in the ministration, as shall be requisite ; and shall have upon them likewise the vestures appointed for their ministry, that is to say, albes with tunicles." In 1552 was published the second Prayer Book of King Edward VI., which left out that rubric. In 1553 came the reign of Queen Mary, when the Mass was restored. In 1558-9 was passed the famous Statute of Uniformity, 1st Elizabeth, chapter 2. The general character of that Act of Uniformity is well known. It re-establishes the second Prayer Book of Edward VI., it brings back the Prayer Book of 1552, and the rubric about the vestments, of 1549. 76 Legislation on Vestments, Statute 1558-9. The earlier part of the Act contains directions about the Prayer Book, and about its use, and penalties of surprising sti-ingency, extending, in some cases, to imprisonment for life, imposing the use of this book. Then there is a proviso at the end, which forms in the revised Statutes Section 13 : — " Provided always, and be it enacted, that such Ornaments of the Church and of the Ministers thereof, shall be retained and be in use, as was in the Church of England by authority of Parliament, in the second year of the reign of King Edward the Sixth, until other order shall be therein taken by the authority of the Queen's Majesty, with the advice of her Commissioners appointed and authorised under the Great Seal of England for causes ecclesiastical, or of the Metro- politan of this realm. And also, that if there shall happen any contempt or irreverence to be used in the ceremonies or rites of the Church, by the mis-using of the orders appointed in this book, the Queen's Majesty may, by the Hke advice of the said Commissioners or Metropolitan, ordain and publish such further ceremonies or rites as may be most for the advancement," and so on. That is the first Act of Uniformity on this subject. The judgment in Hehbert v. Purchas, in page 643, sums up the effect of that legislation thus : "The vestment, or cope, alb, and tunicle, were ordered by the first Prayer Book of Edward the Sixth. 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 1559." My Lords, I submit there vfas nothing provisional about that arrangement at all, unless indeed it be said that the power of the Queen to take further order gave it a provisional character. But it was not pro- visional in any other sense, and I would ask your Lordships to compare with the remark which I have just read in the Judgment in Hehbert v. Purchas.) an analogous comment upon the very same enactments in the case of Westerton v. Liddell, page 158 : " After the overthrow of Protestantism by Queen Mary, and its restoration on the accession of Queen Ehzabeth, a great Injunctions^ 1559, only Executive Acts. 77 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 the Sixth. 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 Ministerj were to be according to the First Prayer Book." Your Lordships will find that the question which of these two views is correct, is one which has a bear- ing upon the interpretation of subsequent Statutes and other documents, because, if it were a mere pro- visional arrangement that would lay something of a foundation for the notion that subsequent adminis- trative acts were intended to alter it — if, as I contend is the more correct view of the matter, it wei'e a com- promise, then it is not probable that subsequent acts done by the Queen would be intended to defeat that compromise. Passing from that I go on to the year 1559, in which year there were pubhshed certain, I hardly know what to call them, but what were called Injunc- tions, by her Majesty. They do not immediately bear upon the question of vestments, but they are noticed frequently in the Judgment which I have commented upon. They have a bearing upon the subject, and it will therefore be needful for me to criticise some- what at length, at all events more fully than seemed necessary to their Lordships, their true legal effect and legal character. Those injunctions appeared, as I say, in 1559, and they are to be seen in Card- well's Documentary Annals, I. 210. Now, my Lords, the assertion which I make as to these injunctions is, that they had not in any shape the character of law, that they were exactly like, in some cases identical in their terms, with similar injunctions of Edward the Sixth, which your Lordships recently held in the case of Philpotts v. Boyd to be mere acts of executive authority and not to have the force of 78 Internal evidence that law. My Lords, my assertion that these injunctions were not law and were simply administrative acts, is founded partly upon the absence of legal authority for them, partly upon the extraordinary nature of their contents. They purport to be according to their title : ''Injunctions given by the Queen's Majesty concerning both the clergy and laity of this realm, published Anna Domini 1559^ being the first year of the reign of our Sovereign Lady Queen Elizabeth.'' I shall show your Lordships immediately that when Her Majesty intended to exercise the power conferred upon her by the proviso to the Act of Uniformity, it was her practice to exercise it by the most express and pointed reference to the power. Here there is none, and when your Lordships look at the various things contained in these documents, I think it will become obvious that they are not law. There is one Injunction, the 29th, which it is difficult in these days to read with complete gravity. The effect of it is that, although there is " no prohibition by the word of God that the priests and ministers should have an honest and sober wife, and though, in point of fact, many of the clergy have been so married, yet, because there hath grown offence and some slander to the Church by lack of discreet and sober behaviour in many ministers of the Church, both in choosing of their wives, and in indiscreet living with them, remedy whereof is necessary to be sought, it is thought, therefore, very necessary that no man- ner of priest or deacon shall hereafter take to his wife any manner of woman without the advice and allowance first had upon good examination by the Bishop of the same diocese and two Justices of the Peace of the same shire dwelling next to the place where the same woman hath made her most abode before her marriage, nor without the goodwill of the parents of the said woman." She is also spoken pf as if she were a servant : — they had not the force of law. 79 " If she have any liviDg, or two of the next of her kins- folk, or, for lack of knowledge of sachj of her master or mis- tress where she serveth. And before he shall be contracted in any place, he shall m.ake a good and certain proof thereof to the minister, or to the congregation assembled for that purpose, which shall be upon some holyday, where divers may be present." There is a good deal more to the same effect. It is surely impossible to ascribe to a regulation of that sort the force of law. The next of these Injunc- tions is to the effect that as Her Majesty wishes the clergy to have " outward reverence," she thinks it right that they should wear proper clothes, and that all who are " admitted into vocation ecclesiastical, or into any society of learning, shall use and wear such seemly habits, garments and such square caps, as were most commonly and orderly received in the latter part of the reign of Edward VI.," and that all things may be done decently and in order. Also nobody is to use any " witchcraft or soothsaying." The 46th is " that in every parish three or four discreet men which tender God's glory and his true religion, shall be appointed by the Ordinaries diligently to see that all the parishioners duly resort to their church, and there continue the whole time of the service," and that they report to the Ordinary everybody who is slack and neghgent in that matter. So that that was a tem- porary kind of Inquisition. The 51st Injunction provides that "because thei*e is a great abuse in the Printers of books, which for covetousness chiefly regard not what they print so they may have gain, whereby ariseth the great disorder by publication of unfruitful, vain and infamous books," the Queen orders " that no manner of person shall print any man- ner of book or paper of what sort, nature, or in what language soever it be, except the same be first licensed by her Majesty by express words in writing or by six of her Privy Council, or be perused and licensed by the Archbishops of Canterbury and York, the Bishop of London, the Chancellors of 80 Interpretations of the Injunctions, 1561. both Universities," and certain other persons. These matters seems to me to show that the Injunctions never had the force of law, and secondly, that Her Majesty did in point of fact issue commands not having the force of law bearing upon all the most important subjects of life. Only one of these In- junctions is quoted by their Lordships in Hebberi v. Purchas. It is the 47th which provides that — " The Churcliwardens of every Parish shall deliver unto our visitors the inventories of vestments, copes and other ornaments, plate, books, and specially of grails, couchers, legends processionals, hymnals, manuals, portasses, and such like appurtenant to the Church." It says nothing about their use, but merely that Inventories are to be taken of them. The reason why I have argued at such length that these Injunctions cannot be regarded as law, is in order to show that a document founded upon them, called the^Interpretations of the Injunctions, is stUl further removed from being law. Although this document was mentioned in the Court of Arches by his Lord- ship, Sir Kobert Phillimore, in his Judgment, it was not mentioned in the Judgment of the Court in Heb- beri v. Purchas, I think it right to call attention to it, because it has a direct and important bearing upon this subject. The Interpretations of the Injunctions did apparently forbid the use of these vestments, and I will show your Lordships what the Interpretations of the Injunctions were. You will find an account of them in two places. The Lord Chancellor. — What is the date ? Sir James Stephen. — 1561. In 1561 there were issued Interpretations of the Injunctions. The LoSd Chancellor. — Did you say by what authority the Interpretations of the Injunctions was issued? Sir James Stehhen. — I was going to inform your Lordships. I have said already that the Injunctions themselves appear to have been issued by the Queen had only Episcopal Authority. 81 as one of those somewhat high-handed acts of power which Her Majesty was in a position to do, and which she did often no doubt with great benefit to the public, but still not so as to impose any legal obligation on succeeding generations. I may just remark, because it applies to many of the matters in this case, that in those days, if Her Majesty chose to take the responsibility of issuing a distinct order, no one was likely to discuss its exact legal value, and it would be a much safer and easier course for all persons concerned to obey it than to remonstrate against it or test its legality. To return to the Interpretations of the Injunctions, all that I am in a position to tell your Lordships about them is to be found in two places, namely, 1 Strype's Annals of the Reformation, p. 213 in the marginal paging, in my edition p. 318, and Strype's Parker. Strype speaks as follows : " Another thing also was now drawn up in writing by the Archbishop and Bishops, for the further regulation of the inferior clergy. This paper consisted of Interpretations and further considerations of certain of the Queen^s Injunctions, for the better direction of the clergy, and for keeping good order in the Church. It was framed, as it seems to me, by the pen of Cox, Bishop of Ely, and revised by the Arch- bishop." That is Archbishop Parker. If your Lordships look at 1 Strype's Life of Parker, marginal paging 92, there is this statement : " Other things also were drawn up by the diligent Arch- bishop [Parker] in his own name, and in the name of the rest of the Bishops : which were Interpretations and Con- siderations of certain of the Queen's Injunctions for the better instructions of the clergy: which are too long to be here set down ; but may be found among the Archbishop's own MSS. preserved in the Benet College Library, in the volume entitled Synodalia; and in the Annals of the Eeformation." I now propose to show your Lordships what were the contents of that document, it appears from what I have read that these Interpretations were merely the 82 Their character proves this. work of the Bishops themselves. It seems to me ex- tremely doubtful whether they ever were published at all. There are facts which show, as I submit, to positive demonstration, that they, at all events, never had the force of law. Whether they were ever acted upon is a point upon which I have no information, but I should think it very unlikely that they were, at all events, in their entirety. They constitute an exercise of authority the like of which in these days it is hardly possible to imagine. The 20th Injunction in an abridged form is this : " All the Queen's faithful and loving subjects shall from henceforth celebrate and keep their holy day accordingto God's holy Will and pleasure ; that is in hearing the Word of God read and taught, iu private and public prayers, in know- ledging their offences to God, and amendment of the same, in reconciling themselves charitably to their neighbours, where displeasure hath been, inoftentimes'receiving the Com- munion of the very body and blood of Christ, in visiting of the poor and sick, using all soberness and godly conversa- tion." And so on. They are not to work and they are advised respecting the passing of the Sunday in a profitable manner. Upon that the Bishops at that time. Cox, the Bishop .of Ely, the Archbishop advis- ing, put this interpretation, first, to the 20th (This is in Strype's Annals, marginal p. 213) — " That on Sundays there be no shops open, nor artificers going about their affairs worldly : and that all fairs and com- mon marts falling upon the Sunday, there be no showing of any wares before the Service be done." Then there is an order to make a Catechism and Homilies upon some subjects which had been pro- mised. Also some directions are given about the habits of the clergy, namely : " Also, That all Bishops and others having any living Ecclesiastical, shall go in apparel agreeable, or else, within two monitions given by the Ordinary, to be deposed or se- questered from his fruits, according to the discretion of his said Ordinary, or his lawful deputy. They limit the Vestments. 83 " That sucli as be for their wilfulness deprived in this necessity of ministers, shall be called by the discretion of the Ordinary to minister some cure upon reasonable wages ; else to be ordered according to the laws." And then comes the following provision, which appears to me most surprising : "Also, That incorrigible Arians, Pelagians, or Free-will men be sent into some one castle in North Wales, or Wall- ingford ; and there to live of their own labour and exercise : and none other to be suffered to resort unto them but their keepers', until they be found to repent their errors." That is also to be found in Cardwell's Docu- mentary Annals, p. 237. It cannot have been the law of this country at any time. Here your Lordships will find a distinct statement upon the subject of the vestments, there is a running title, " Concerning the Book of Service," and under that comes — " That there be used only but one apparel : as the cope in the ministration of the Lord's Supper, and the surplice in all other ministrations ; and that there be no other manner or form of ministering the Sacraments, but as the Service Book doth precisely prescribe." Here you no doubt have a distinct prohibition of the use of these vestments. It is the only official, I cannot call it legislative, but official authoritative prohibition of these vestments, which is to be found, as far as I know, in anything which claims the ap- pearance of authority. To pursue the history a step further. In 1559, and from 1559 onwards to 1562, there was a very strong Puritan reaction in the Church of England, under the influence of persons returning from the Continent who had left during Queen Mary's reign, and under the influence of Queen Elizabeth's legisla- tion. One special illustration of that feeling to which it is necessary to call attention is given in a mandatory letter written by Queen Elizabeth upon the subject of a further table of lessons. (1st Cardwell's G ^ 84 The QueeirCs Letter to Eccl. Comrs., 1560, Doc. Ann., p. 294). It is dated on January 22, 1560, and, beyond all question, it was an exercise of the Queen's power to take further order. I appeal to it as evidence to show, that when Her Majesty wished to take further order under the pro- viso contained in the Act of Uniformity, her legal advisers prepared documents for her signature pre- cisely in the same way in which any legal adviser would do so now ; that is to say, by expressly re- citing and referring to the power, and by then proceeding to exercise it. The letter is addressed to— " The Most Eeverend Father in God, our right trusty and right well-beloved Matthew, Archbishop of Canterbury ; the Eight Eeverend Father in God, our right trusty and well- beloved Edmund, Bishop of London, and to the rest of our Commissioners for causes Ecclesiastical." It is dated from Westminster the two and twentieth of January in the third year of our reign — that is to say, 1560-1, and recites at the commencement that, " by Act of Parliament, holden in the first year of our reign," the Queen had authority " to take further order in any rite or ceremony appointed in the Book of Common Prayer," in concert with the Ecclesias- tical Commissioners or the Metropolitan. Then it goes on to state that there was need for sup- plyingcertain" other chapters or parcels of Scripture," to be read as lessons, and prescribes what is to be read. Then it goes on in a passage, which I refer to in order to verify what I said just now as to the reaction which was then taking place, and the Queen's extreme desire that matters might be conducted with as much reverence and ceremonial as possible, and that public worship might be conducted in as satisfactory a manner as possible under the circumstances. I wUl just read a few words of the letter for that purpose-^ " That furthermore, in sundry churches and chapels, where divine service, as prayer, preaching, and ministra- tion of the Sacraments be used, there is such negligence, and an exercise of power to make further Order. 85 lack of convenient reverence used towards tlie comelj^ keep- ing and order of the said churches^ and especially of the upper part called the chancels, that it breedeth no small offence and slander to see, and consider on the one part the curiosity and costs bestowed by all sorts of men upon their private houses, and on the other part the unclean or negligent order, or spare keeping of the house of prayer, by permitting open decays and ruins of coverings, walls and windows, and by appointing unmeet and unseemly tables with foul cloths, for the Communion of the Sacraments, and generally leaving the place of prayers desolate of all cleanli- ness and of meet ornaments for such a place, whereby it might be known a place provided for divine service/^ Further on it says for a remedy for this the new calendars of lessons are to be printed, and also the Commissioners are to consider the great disorders and decay of churches, and the unseemly keeping of chancels and so forth, and it goes on to give directions for matters being brought into order. The tables of the Commandments shall be hung up, and — " They are diligently to provide that, whatsoever ye shall devise, either in this, or in any other like point, to the reform- ation of this disorder, that the order and reformation be of one sort and fashion, and that the things prescribed may accord in one form, as nigh as they may." There, I say, is an unmistakable instance in which Her Majesty did act in execution of that power and in which she did make further order for certain things. When I come to contrast that Avith the manner in which Her Majesty behaved with reference to the advertisements, the weight and importance of that observation will become more apparent. The next fact to which I wish to ask your Lord- ships' attention is the Synod of 1562. This Synod is one of the turning points in the History of the Church of England, because it was at the Synod of 1562 that the 39 Articles as we now have them were framed. Accordingly, it is one _ of the most conspicuous events in the Ecclesiastical History of those times. I think I shall be able to give your Lordships the most positive and conclusive 86 Proceedings in Convocation, 1562, proof that at that time, at all events, the vestments in question were legal, and that neither the Injunctions in which the orders were given that Inventories of them should be kept, nor the Interpretations of the Injunctions by which the Bishops prohibited their use, were considered to have affected their legality. In an account of this famous Convocation, as Strype calls it, given in 1 Strype' s Annals, part 1, cap. 27, marginal page 315, Strype says, at page 317 — " Touching the second, that is to say, for rites, Sfc, in the Boole of Common Prayer ; Firsf;, that the use of vestments, copes, and surplices, be from henceforth taken away." I submit that that is a distinct proof that at that time vestments, copes, and surplices, were regarded by the Archbishop of Canterbury as being legal, because, if their legality had been affected by the Injunctions or Interpretations of the Injunctions, there would have been no object in making that proposition. How- ever, my Lords, when we come to consider the actual proceedings of the Convocation, it will be found that this proposition was not brought forward in terms, but a proposition which went somewhat less far was brought forward, and was negatived by a majority of one. On page 335, your Lordships will find a copy of a paper containing a series of proposals which might have been described in general terms as reducing all the ritual of the Church of England for the future to the very simplest form, for instance; kneeling at the Communion, the cross at Baptism, singing and playing of organs, and then the use of copes and surplices (there is nothing said about vestments there), were to be taken away and the ministers were not to be " com- pelled to wear such gowns and caps as the enemies of Christ's Gospel have chosen to be the special array of their priesthood." At page 336 : There was a request of certain members of the Lower House to the number of 32 — " Concerning such things as that House nevertheless agreed not to by common consent." shew that Vestments were then lawfvl. 87 The first proposition is against the playing of organs ; the second proposition against the cross in Baptism ; the third proposition that kneeling at the Communion may be left indififerent to the discretion of the Ordinary; the fourth, that the use of copes and surplices may be taken away, so that all ministers in their ministry use a grave, comely, and side gar- ment, as commonly they do in preaching ; the fifth, that the ministers of the word and sacraments be not compelled to wear such gowns and caps as the enemies of Christ's Gospel have chosen to be the special array of their priesthood ; the sixth, about the thirty-third Article, concerning ceremonies, that that should be altered ; the seventh, that Saints' days should be clearly abrogated. That is signed by a variety of distinguished persons of that date. That proposition appears not to have been adopted. Then at page 337 : " On February ISth tLere was a notable matter brought into the Lower House ; the determination of which matter depended upon a narrow scrutiny of the members. For on the day aforesaid these articles were read to be approved or rejected." Then follow six other Canons which to a great extent reproduce the seven which I mentioned just now, though in a form which I suppose was intended to some extent to meet the views of the other side, because the 5th is conceived in gentler language about the vestments. The fifth article of February 13th is less stringent than the fourth article of the previous set, it is : " That it be sufficient for the minister, in time of saying Divine service, and ministering of the Sacraments, to use a surplice ; [that is, that he be dispensed from the others] and that no minister say service, or minister the sacraments but in a comely garment or habit." Upon this a great contest arose in the House, some saying they approved of the articles, and some not, and finally, " they went to the suffrage in the after- 88 , Proceedings in Convocation^ 1562, noon," and divided. Then follows the division list, and it appears that the articles were lost by 58 to 59. They were lost by a majority of one, the majority of the persons present being in favour of the articles, but the proxies were called, and the proxies turned the scale, and by a majority of one that proposition was lost. I submit that it would be impossible in the nature of the case to produce more cogent evidence of the fact that in the year 1562, when that Synod sat, these vestments were regarded not only as being lawful, but as being obligatory, than I have now given, because they begin by proposing that they shall all be abolished. That appears to be thought to be somewhat too stringent. Other pro- positions are drawn up, which say that the cope and surplice alone are to be left. That again they seem to have felt could not be carried. Then they say that it shall be sufficient that a surplice shall be worn, and that the minister wear a comely habit. That is the subject of a very hot debate, and the result is that the motion is lost by a majority of one. So much for the Synod of 1562. Now I come to another matter. I have already read the mandatory letter of Queen Elizabeth, in which she speaks of the disgraceful condition, as she considered it, to which the Churches had been reduced, and in which, under the authority of the proviso in the Act of TJniformity, she calls upon the Bishops to give orders for its amendment. The Lord Chancelloe.— What do you consider to have been the exact proposition made at that Synod ? Sir James Stephen. — The ultimate proposition was that a surplice should be sufficient, that is to say, that the vestments should not be forbidden, but that they should not be enforced, and that the clergy should be allowed, if they liked, to wear the surplice only. That is what I take to be the result. That is what the words seem to me to mean. The Lord Chancellor. — Was any mention made sheu) that Vestments were then lawful, 89 of vestments other than the words you have men- tioned? Sir James Stephen. — Your Lordships will see there are three stages in the matter. First of all, there is the paper by an unknown hand which Strype finds amongst the Archbishop's papers, and that pro- posed in direct words the taking away the vestments and the copes and the- surphces. It would, I presume, be a sort of draft, such as the Government would naturally make before they brought in the Bill. Then they ascertain what the feelings of the House are, and successive alterations are made in order to enable it to pass. First of all, they wish to take away all the vestments, then they say, let us take away the copes and surplices ; then they find that that is not likely to be carried, and then they say, let us compromise it thus— let nothing be obli- gatory except the surplice, and allow the surplice to be obligatory; let us have the surplice, and let the surplice suffice. This view of the subject gives occasion to a very warm debate, and the ultimate result is, that the proposition is lost by a majority of one, and that the law is left to stand as it had been settled by the proviso to the Act of Uniformity, that is to say, in accordance with the first Prayer Book of Edward the Sixth. My Lords, 1 now pass to a different subject. Their Lordships, in the Judgment of Hebhert v. Purchas, naturally lay great weight upon what was actually done. The Judgment is much affected, indeed, I think I should not be wrong if I were to say its character is determined, by the opinion which they have formed, that the Advertisements to which I am coming directly caused the destruction of the vestments. I will read to your Lordships one or two passages from the Judgment which shew what their Lordships' view upon the matter was. The first passage is at p. 637. They say : "In th^ year 1564 appeared tlie Advertisements of Elizabeth." 90 The Advertisements not issued until 1566, after Their Lordships, therefore, are under the impres- sion that the Advertisements were issued in 1564, and that they were actively in force within a few years of their publication, and in proof of that as- sertion they refer to a work by Mr. Edward Peacock, who published an Inventory of the Ornaments of 150 parishes in the Diocese of Lincoln, Anno Domini, 1565-6 : " And it shews that the chasubles or vestments and albs were systematically defaced, destroyed, or put to other uses, and a precise account was rendered of the mode of their destruction." Mr. Peacock and his work are again referred to in p. 644 of the Judgment. Speaking of one of the opinions expressed by the Dean of Arches in his Judgment in the Court below, their Lordships say : " The Committee is unable to accept this interpretation of the Advertisements, and the Visitation Articles, as the true one. Their Lordships think that the defacing and destroy- ing and converting to profane and other uses all the vest- ments now in question, as described in the Lincoln MS., published by Mr. Peacock, shew a determination to remove entirely these ornaments, and not to leave them to be used hereafter, when the higher Eitual might become possible." There is one other passage to which I will refer in page 643, which contains a short summary of the preceding part of the Judgment : " These, then, are the leading historical facts with which we have to deal in the difficult task of construing the Eubrio of Ornaments. The vestment or cope, alb and tunicle, were ordered by the first Prayer Book of Edward the Sixth. 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 1559, But the Injunctions and Advertisements of Elizabeth established a new order within a few years from the passing of the Statute under which the chasuble, alb, and tunicle disappeared." There is another passage at page 648, in which their Lordships say that these vestments were swept the dates of destruction of Ornaments given 9 1 away with severe exactness in the time of Queen Elizabeth, and that there was no trace of any attempt to revive them. Therefore, their Lordships find in these various parts of the Judgment — ^for their Lordships returned to it on four different occasions — that the advertisements are to be construed in the light of the fact, that their result was the destruction of the vestments, which fact they considered to be proved by the publication of Mr. Peacock as to what took place in Lincolnshire in the years in ques- tion. Their Lordships also stated as a fact, and I think your Lordships will perceive that it is an abso- lutely essential fact in their chain of reasoning, that it was in 1564 that the advertisements were issued, and that shortly after they were issued in 1564 the vestments were destroyed throughout Lincoln- shire, under and by virtue of those advertisements, to wit, in the years 1565 and 1566. Therefore, this part of their Lordships' Judgment rests entirely upon the evidence of Mr. Peacock, and the essential part of Mr. Peacock's evidence is the alleged fact that, after the issue of the advertisements, persons acting under those advertisements, destroyed the vestments throughout a considerable number of parishes in the county of Lincoln. In reply, I beg to point out to your Lordships that this is an instance in which one may be permitted to regret that their Lordships had not, in drawing up that judgment, such assistance as Counsel were able to give, because I think I shall be able to satisfy your Lordships, by distinct documentary evidence publicly recorded, first that the advertisements were not issued in 1564, but that they were issued in May, 1566, and next that the destruction of ornaments recorded by Mr. Peacock did not take place under or by virtue of those advertisements, but during a considerable series of years before the advertisements were issued, and that it must have been completely concludedatthetime when the advertisements were issued. If that be the fact, of course their Lordships delivered judgment 92 in Mr. Peacock's Lincolnshird Inventories ; under an erroneous impression as to a matter of fact. My Lords, Mr. Peacock collected togetherandpublished a number of inventories relating to the destruction of different vestments in the diocese of Lincoln. I will give your Lordship a short analysis of the con- tents of Mr. Peacock's work. It contains either 151 or 153 inventories — I do not know which — and it does not matter. fhese inventories were taken between the 4th of March, 1565-6, and the 26th of May, 1566. The Lord Chancellor. — Old style ? Sir James Stephen — No, the Ecclesiastical style ; it was all old style then. The first was the 4th March, 1565-6, and the last was on the 26th of May, 1566. These inventories specify the dates at which the different things mentioned in them were destroyed, and the dates so specified are in the year 1552, which would be the end of Edward the Sixth's reign, 1559, 1560, 1561, 1562, 1563, 1564, 1565, and 1566. Sir Robert Phillimore. — What do you say about that ? Sir James Stephen. — I say that the inventories specify the dates at which the things inventoried were destroyed, and some of them were destroyed so early as 1552. There also occur dates in 1559 onward to 1560. The greater part of the destruction took place in 1565 and 1566. My learned friend, Mr. Jeune, has gone through the whole, and verified the whole. The inventories show the destruction of 44 copes, 25 of which copes were destroyed before the year 1566. Your Lordships are aware, and it cannot be denied, that the cope was prescribed by the inter- pretations of the injunctions, and that the cope was, and still is, in certain cases, a legal vestment. 44 of them appear to have been destroyed. There were also 86 candlesticks destroyed, and 124 crosses, and 5 cushions or pillows, as they are called in the in- ventories. The dates are material, because all those things, at the time they were destroyed, were legal. Consequently, the fact that the inventories show the shewn hy comparative Table of Dates. 93 destruction of any particular vestment is no proof at all that at the date when it was so destroyed it was illegal. The next matter to which I want to call atten- tion is the date of the advertisements. I shall show your Lordships that the advertisements were issued, not in 1564, as their Lordships imagined, in Hebberi v. Purchas, but in London on the 21st of May, 1566. For the moment, I merely assert this without proving it, but, if so, they could hardly have reached the county of Lincoln as early as the 26th of May, in the year 1566; but the last of the inventories to which I have referred was taken on that day, and thus, from a comparison of the dates of the inventories, on the one hand, and the 'advertisements on the other, it is proved, I submit, to demonstration, that the destruction of vestments and other things recorded in these in- ventories could not have been caused by the advertise- ments, inasmuch as the last of the inventories was taken only five days after the advertisements were published. The date when the inventory was taken, of course, is a later date than the date when the destruc- tion which the inventory commemorates took place. I have here a small table,* which has been extracted from Peacock's work, of which your Lordships will be supplied with copies by my friends. It puts in a tabular form the characters of the things destroyed, and the dates at which they were destroyed, and it sub- stantially shows that the destruction in question took place before the date I have assigned for the publica- tion of the advertisements. 1 come now to discuss the question of the publica- tion of the adyertisements. To enable your Lordships to follow the docu- mentary evidence in the matter with more facility, I may observe in a word that, according to my view, the advertisements were nothing more than orders * See the Paper No. I, p. 316, 94 History of the Advertisements : the Queen's issued by the Ecclesiastical Commissioners — not acting under Her Majesty's authority, but after Her Majesty, having been solicited to authorise the adver- tisements, had refused to do so. That conclusion results from an examination of a series of letters, which I am about now to put before your Lordships, and which passed between Queen Elizabeth, Arch- bishop Parker, and Cecil, who was then Secretary of State, and with whom Parker corresponded on the subject. The great majority of those documents appear in the Parker Correspondence, published by the " Parker Society." The first letter in the series is dated 25th of January, 1564-5, Queen Elizabeth to Archbishop Parker — " Parker Correspondence," page 223. That letter is written in the somewhat elaborate style which prevailed at that time, and I think I should do full justice to the subject if, instead of reading to your Lordships the whole letter, I read the marginal notes which compress the substance into a very short compass. The marginal notes are these : " Nothing in government conduces more to the pleasore of God, the comfort of governors, and the weal of the people, than unity. " Diversities in ministers or people must needs provoke the displeasure of God, be discomfortable to governors, and bring danger of ruin on the people. The Queen's earnest care has been that her realm should be governed by public officers and ministers following one rule, yet to her grief she has heard, that for lack of regard of the Primate and Bishops, there has crept into the Church open and manifest disorder, by diversity of opinions, and specially in rites and ceremonies. She had trusted that the same would have been stayed by the Archbishop and Bishops, but perceiving the same doth rather increase, she has determined to have all such diversities brought to one manner of uniformity." Those are the recitals. Now, the operative part of the letter is this : "And, therefore. We do by these our present letters require, enjoin, and strictly charge you, being- the Metro- politan, according to the power and authority which you Letter to Abp. Parker, Jany. 24, 1564-5 : 95 have under us over the Province of Canterbury (as the like we will order for the Province of York), to confer with the Bishops your brethren, namely such as be in commission for causes ecclesiastical, and also all other head officers and persons having jurisdiction ecclesiastical, as well in both our Universities as in any other places, collegiate, cathedral, or whatsoever the same may be, exempt or not exempt, either by calling to you from thence whom you shall think meet, to have assistance or conference, or by message, process, or letters, as you shall see most convenient, and cause to be truly understand [sic] what varieties, novelties, and diversities there are in our clergy or amongst our. people within every of the said jurisdictions, either in doctrine or in ceremonies and rites of the Church, or in the manners, usages, and behaviour of the clergy themselves, by what name soever any of them be called. And thereupon " It does not say execute the power contained in the Act of Uniformity, but " Thereupon, as the several cases shall appear to require reformation, so to proceed by order, injunction, or censure, according to the order and appointment of such laws and ordinances as are provided by Act of Parliament, and the true meaning thereof, so as uniformity of order may be kept in every church, and without variety and contention." Then it says : " And for the time to come, we will and straitly charge you to provide and enjoin in our name, in all and every places of your province, as well in places exempt as other- wise, that none be hereafter admitted or allowed to any office room, care, or place ecclesiastical, either having cure of souls, or without cure, but such as shall be found disposed and well and advisedly given to common order." The essential part of it is that he is called upon, in the words of the marginal note, to confer with Bishops and Ecclesiastical oflScers to ascertain what varieties there are in the practice of the clergy, and to proceed to direct uniformity. That is, the Queen directs the Archbishop to use his own canonical authority in such ways and means as he is possessed of, by law, in order to obtain the object of enforcing uniformity. Before leaving that,! must just remind your Lordships 96 compared with Warrant for High Commission Court. of the letter mandatory, which I read a short time ago, and I may point out that, on different occasions in which the intention was to issue a commission, under which proceedings might be taken, Her Majesty spoke in a different temper. She used a different form of speech for instance, in the warrant for the Court of High Commission ( 1 Cardwell's Documentary Annals, p. 258, paragraphs 4 and 5). Your Lordships will there see the style in which the Ecclesiastical Com- missioners were empowered to proceed to — " Inquire, hear, and determine, all and singular enormities^ disturbances, and misbehaviour, done and committed, or hereafter to be done and committed, in any church or chapel, or against any divine service, or the minister or ministers of the same, contrary to the law and statutes of this realm." Then in the fifth paragraph — " Prom time to time, and at all times, during our pleasure, to visit, reform, redress, order, correct and amend, in all places within this our realm of England, all such errors, heresies, crimes, abuses, oflFences, contempts and enormities, spiritual and ecclesiastical wheresoever, which by any spiritual or ecclesiastical power, authority, or jurisdiction, can or may lawfully be reformed, ordered, redressed, cor- rected, restrained or amended." And so forth. Those were the forms used when it was intended either to give visitatorial power to comrbissioners, or they were to exercise the power conferred by the Act of Uniformity, and nothing can be more different than the language of the letter to the Archbishop. The next step is in the Parker Correspondence, p. 227. It is a letter from Parker to Bishop Grindal, who was then Bishop of London. The marginal note is sufficient : ''For the performance of his duty to God and his Sovereign, he charges the Bishop of London to execute the laws, and to signify the Queen's orders to the rest of their brethren in the Archbishops province, sending up persons incorrigible to the Archbishop, and certifying what varieties Beturn, shewing the Varieties in Service. 97 in doctrine or ceremonies exist in the cturch, by the last day of the next February." SiE Robert Phillimore. — Is that from Parker to Grindal, or from Grindal to Parker? Sir Jambs Stephen. — From Archbishop Parker to Grindal, telling him what he has heard from the Queen, and requiring him to certify what varieties there are, and send them in by the end of February. The next document (Strype's Parker, i., p. 152) shows that the advertisements were directed not against persons inclined to use vestments that had been in use in Roman Catholic times, but against persons disinclined to use any vestment whatever; Strype says that : " The confused varieties that divers ministers in these days used in the service of God, and in tTieir habits which they wore, ^ave much offence, and were complained of. Insomuch, as I find a paper among the Secretary's MSS.,' specifying these varieties, dated February 14, 1564, which was the month before the Articles for Uniformity, afterward mentioned, were devised by the Archbishop and the other Bishops." The paper is headed " Varieties in the service and administration used " ; and with reference to the " Administration of the Communion," it says: "Some with surplice and cap; some with surplice alone; others with none." A friend of mine who has examined the original of this is inclined to think that " cap " is a misprint for " cope," but it does not really very much matter whether it is or not. And then, as to " Baptizing," it says : " Some minister in a surplice, others with- out." And of the " apparel " of the clergy, it adds : " Some with a square cap ; some with a round cap ; some with a button cap ; some with a hat ; some in scholars' clothes ; some in others." It is obvious enough from that examination what the state of things was. There was a diversity of practice; and there was certainly no inchnation on H 98 Parker to Cecil, First Draft of Articles, 1564-5. the part of anyone to go too far in the direction of wearing a variety of expensive vestments. The next letter is in the Parker Correspondence, page 233. The Lord Chancelloe. — Is what you have been reading in the words of Grindal to Parker ? Sir James Stephen.— No; that occurs in Cecil's Manuscripts. Sib Egbert Phillimore, — "What occurs? Sib James Stephen.- — What I have just read, which is in a paper in the Cecil Manuscripts. Cecil appears to have taken information as to what the state of things was in the Church at this time ; and this paper is found — ^it does not appear where he got it from — but it is a report that some one or other had brought to him of the state of practice at that time in the Church; and that shows what was the state of things with reference to which the advertise- ments were framed. The next letter is in Parker's Correspondence, page 233 — from Archbishop Parker to Sir WiUiam Cecil (dated 3rd March, 1564-5) : " Sir, — I send your Honour a Book of Articles, partly of old agreed on amongst us, and partly of late these three or four days considered, which be either in paper fasted on, as ye see, or new written by secretary hand. Because it is the first view, not fully digested, I thought good to send it to your Honour to peruse, to know your judgment, and so to return it, that it may be fair written and presented. The devisers were only the Bishops of London, Winchester, Ely, Lincoln, and myself." Then he goes on about some other matters. Then comes this paragraph : " I pray yon in tot a hac causa, ne nimium tendag funiculum; and furthermore, I must earnestly pray your Honour to obtain a private letter from the Queen's Majesty to my Lord of London, to execute laws and injunctions; which he saith, if he be so charged, he will out of ha,nd see reformation in all London. And ye know there is the most disorder, and then is the matter almost won thorough the realm. I pray you earnestly, expeditely to procure these letters, for he is now in Parker presses for the Queen's sanction to them. 99 a good mood to execute the laws, and it will work nrach more than ye would think." It is to press him on, because in the present moment he is in the state of mind to obey her direc- tion. The next letter is at page 234, from Parker to Cecil (8th March, 1564-5). This is a letter to which I invite your Lordship's particular attention : Sir, — I send your Honour our book, which is subscribed to by the Bishops conferrers, which I keep by myself. I trust your Honour will present it upon opportunity " — that must, of course, mean present it to the Queen — " which ye can take in removing offences that might grow by mine imprudent talk." Then follows a passage which shows very distinctly what these things were : " If the Queen's Majesty will not authorise them, the most part be like to lie in the dust for execution of our parties — ^laws be so much against our private doings. ' The Queen's Majesty, with consent, &c.' I trust shall be obeyed." The way in which that is printed is somewhat remarkable, because I think it is a clear reference to the words of the Act of Uniformity. The writer means — if you will say — '* the Queen's Majesty, with the consent of the Metropolitan or Ecclesiastical Commissioners, authorise these advertisements," then I shall have no difficulty; but if you do not choose to go so far as that, I shall do no good — " laws be so much against our private doings." The importance of that letter, I submit, is that it clearly shows that Parker, at that moment, does not consider himself as authorised in any way to issue anything binding. On the contrary, he is pressing Cecil to get that authority which would give force to what he writes, and convert his private doings to something having a binding legal authority. The next letter is Archbishop Parker to Sir W. Cecil, p. 236 (24th March, 1564-5), in which he says — h2 100 Parker complains of the evil of delay: " Sir — I would ye had not have stirred istam camarinam, or else to have set on it to some order at the beginning. - This delaying works daily more inconvenience, et ohfirmatiores fiunt. If it be purposed to have some of these earnest men afore the whole body of the council to the end only to be foul chidden, verba tantum et jprcBterea nihil and I doubt whether it will work to a quietness, the deformities to be openly intreated. All men be not one man's children. If my Lord of Leicester and your Honour would consult with my Lord Keeper how to deal in this cause to do good and to pacify the Queen's Majesty, I think ye shall spend a piece of your afternoon well. If your Honour shall think good to have my Lord of London and me to meet you there at my Lord Keeper's, I leave it to your prudence." There he shows that he cannot get the matter carried forward, that he is placed in a very uncomfortable position, because after he has been set to take this matter in hand, the Queen would not give the autho- rity which was necessary to enable him to do it properly. The next letter again is also from Parker to Sir W. Cecil, April 7, 1565, and is at p. 237 : " Sir J — The talk, as I am informed, is much increased, and unrestful they be, and I alone, they say, am in fault." " They " are obviously the Puritans, " For as for the Queen's Majesty's part, in my expostula- tion with many of them I signify their disobedience, wherein, because they see the danger, they cease to impute it to Her Majesty, for they say, but for my calling on, she is indif- ferent. Again, most of them dare not name your Honour in this tragedy, for many must have your help in their suits, &c. My Lord of London is their own, say they, and is but brought in against his will. I only am the stirrer and the incenser. And my Lord, of Durham will be against us all : and will give over his bishopric rather than it shall take place in his diocese. Now, my Lord of Leicester, they say, shall move and obtain the Queen's Majesty, and this thing is now done in his absence, and Mr. Cole is now at the Court in his hat and short cloak, which will overthrow all this attenipt : and such twitell-twaytel there is much." So he goes on setting forth the uncomfortable posi- sends Cecil a new Draft of the Advertisements. 101 tion in which he is placed — how having been ordered by the Queen to do what he can, he found himself left alone, and made responsible for the whole of the proceedings. The next is on the 28th of March, 1566. Your Lordships will perceive there is a whole year's inter- val during which very little is done ; in fact, there is only one notice of it, not sufficiently important for me to call your Lordships' attention to it. But I go on to the 28th of March, 1566, and the letter wiU be found on page 271 of the Parker Correspondence : " I pray your Honour to peruse this draft of letters, and the Book of Advertisements with your pen, which I mean to send to my Lord of London. This form is but newly- printed, and yet stayed till I may hear your advice. I am now fully bent to prosecute this order, and to delay no longer, and I have weeded out of these articles all such of doctrine, &c., which peradventure stayed the book from the Queen^s Majesty's approbation, and have put in but things advouchable, and, as I take them, against no law of the realm. And where the Queen's Highness will needs. have me assay with mine own authority what I can do for order, I trust I shall not be stayed hereafter, saving that I would pray your Honour to have your advice to do that more prudently in this common cause, which must needs be done. Some of these silly recusants say now that they thought not that ever the matter (in such scarcity of ministers) should have been forced, and some begin to repent ; and one of them was with me this day to be admitted again to his parish, and now promiseth conformity, whom I repelled till I had him bound with two good sureties of his own parish, and so I have, and he now saith that there will come more to that point, whom I will so order. For as for the most part of these recusants, I would wish them out of the ministry, as mere ignorant and vain heads. The sooner (as I think) this determination be known abroad, the sooner shall the speech cease, and the offence assuage, and more peace and or^er to follow." The Archbishop says, in effect : — There is the draft of the advertisements ; I have done my best with them ; I have taken out of them those things which I supposed prevented Her Majesty approving of them ; 102 Draft of 1564-5 mentions the Queen^s '•^consent: " I have put in nothing which was illegal, and, as the Queen will needs have me assay with my own authority what I can do for order, I do trust I shall be allowed to follow my own way. Then he goes on to describe how he has had a clergyman before him, and the clergyman is ready to give in, and will do as he is told, whereupon the Bishop binds him over with two sureties that he will do as he is told. Then there is a piece of evidence as to the true character of these documents. The Loed Chancblxoe. — What documents ? Sib James Stephen.— The Advertisements. This draft to which I am now about to call your Lord- ships' attention, is the draft which was enclosed in that letter of the 8th March. This is the first draft of the advertisements, 3 Strype's Parker, page 84, No. 28 : " The Queenes Majestie of her godlie state, callings to re- membrance how necessarie it is to th' advancemente of Goddes glorie, and to th' establishmente of Christes pure religion, for all her lovinge subjects, especiallie the state ecclesiasticall, to be knytt together in one parfecte unytie of doctrine, and to be conjoyned in one unyformytie of rites and manners ia the mynystration of Goddes hoKe woorde, in open praier and mynystration of sacraments ; as also be of one decent behaviour in their outward apparell, to be knowen partly by theire distincte habitts to be of that voca- tion ; who shoulde be the rather reverenced in their office, as mynysters of the holie thinges whereto theye be called." !Fow come the important words : " Hathe by the assent of the Metropolitane,and withe certeine other Her Commisioners in causes Ecclesiasticall, decreed certein rules and orders to be used as hereafter foILowith.'' ' That is a distinct reference to the proviso in the Act of Uniformity, and that, no doubt, is what Parker meant when he wrote to Cecil, that — " ' The Queen's Majesty, with consent, &c.', I trust shall be obeyed." That was the original draft of the Articles, and in this omitted in the B¥aft 1565-6 ; 103 the latter draft of the Articles, which was issued a year afterwards, those words about the assent of the Metropolitan are struck out and do not appear. Lord Sblborne. — Not the Queen's Majesty? Sir James Stephen.— No, the Queen's Majesty comes in, but the words " with consent," &c., are struck out altogether, and the eflfect of that is to shew, I submit, tha;t it was origina,lly intended that these advertisements should be issued under and by virtue of the proviso contained in the Act of Uniformity; but that being unable to obtain Her Majesty's assent on account of the influence of Lord Leicester and the leaders of the Puritan party at that time, Parker was forced, as he says in this last letter, to assay with his own authority what he could do for order, and being so forced he put out the book of the advertisements without those words which purported to give it the authority which the Act of Uniformity would confer. The Lord Chancellor. — Will you read again how it ran in the first draft ? Sir James Stephen.— Probably the most con- venient plan Would be if I were to begin by reading the proviso of the Statute and then the words in the draft. The proviso in the Statute is : " That such ornaments of the Church and of the ministers' thereof, shall be retainedj and be in use as was in this Church of England by the authority of Parliament in the second year of the reign of King Edward the Sixth, until other order shall be therein taken by authority of the Queen's Majesty, with the advice of her Commissioners, appointed and authorised under the Great Seal of England for causes Ecclesiastical, or of the Metropolitan of this Realm." Then the original draft was : " The Queen's Majesty calling to mind how necessary it is to the advancement of God's glory," , and so forth— " hath by the assent of the Metropolitan and with certain other her Commissioners in causes Ecclesiastical, decreed certain rules and orders to be used as hereafter folioweth." 104 shewing that the Archbishop could not get The Lord Chancellor. — " Hath by the assent" of whom? Sir James Stephen. — " Hath, by the assent of the Metropolitan, and with certain other her Commissioners in causes Ecclesiastical." They have not followed the exact words of the Statute, but there can be no mistake as to the inten- tion to refer to it : "And with certain other her Commissioners in Causes Ecclesiastical decreed certain rules and orders, to be used as hereafter followeth ": — Sir M. Smith. — What are the words of the second draft? Sir James Stephen. — Those words are all left out. The Lord Chancellor. — Are they left out? Sir James Stephen. — •! will read to your Lord- ships the final draft of the articles as they were finally sent out. Your Lordships will see how emphatically they go back from that distinct statement upon the subject which was made in the original draft: " The Queenes Majesty of Her godly zeale calling to remembraunce how necessary it is to the advancement of God's glory, and the establishment of Christ's pure religion, for all her loving subjects, especially the State Ecclesiastical, to bee knitte together in one perfecte unitye of doctrine." That is to say, in the one case, Parker wished to make Her Majesty, " Queen Elizabeth, by the consent of the Metropolitan and Her Commissioners " decree certain rules and orders. What she actually does say, after all this correspondence which I have read to your Lordships is, Her Majesty has directed the Archbishop of Canterbury and the Ecclesiastical Commissioners that they are to do what they can for reforming and repressing the diversities and varieties amongst the clergy and the people. Surely, my Lords, when you have first of all the draft with those words in it, then the letters of Parker earnestly requesting that that draft may be published with the the Queen's Authority for the Advertisements. 105 words, " The Queen, with the consent, &c." in it, in order that that may give legal authority, when you compare it with his declaration in his letters to Cecil, that certain things have been taken out of the book, which probably stayed Her Majesty from giving her approbation, and that he has put into it nothing but things vouchable ; and when you find him saying that he hopes he will not be interfered with, because the Queen will needs have him assay " with mine own authority what I can do for order :" when all these things are put together, it is proved, clearly, that Parker was earnestly pressing Her Majesty to give statutory authority to these rules, and that Her Majesty, under the influence of Lord Leicester and other people, took a course which was by no means unfamiliar to her, viz: she left other people to do disagreeable and unpopular things, and declined the responsibility of doing them herself: that she called upon the Bishops on this occasion, just as she called upon Her Ministers and advisers upon various other occasions, to take the responsibility. She said, in substance, — You go and charge these people upon their canonical obedience; do what you can for order by your own authority ; assay by your authority what you can do for order ; but mind it is to be your act, not mine ; it is not my order, and I will not authorize it. Such conduct was extremely characteristic of that great Queen. She was in the habit of acting in that way with Her Ministers. To pursue the matter : this letter of the 28th March, 1566, which was addressed by Parker to Sir William CecU, enclosing a copy of a letter which he sent to Bishop Grindal dated the same day, the 28th March, 1556, is an elaborate letter, enclosing the book of advertisements. The letter is a long one, and accord- ingly I will content myself, as on former occasions, with reading the marginal notes. Your Lordships will find it at page 271 : " The Bishop knows what offence is taken at the want of 106 Parker sendsthertito the Bp. ofLond.March 28, 1566 : uniformity in service and apparel in contempt of the Queen's authority. The Bishops have power by law to reform aU offenders. The Queen a year past charged upon the Bishops the duty of enforcing obedience. There has ensued a humble comformity, save in some few persons ; in some of them perhaps from lack of particular description of orders to be followed. For the reformation of the Same, the Archbishop requires the Bishops to see the Queen's laws and injunctions observed, and also the orders in the books now sent." That is to say, the advertisements, — that is, the general substance of the letter — but it may be worth while to read some parts of it more fully : " And whereas the whole state of the realm, by Act of Parliament openly published, doth most earnestly in God's name require us all to endeavour ourselves, to the uttermost of our knowledge, duly and truly to execute the said laws, as we will answer before God. By the which act also we have full power and authority to reform, and punish by censures of the Church, all and singular persons which shall offend. And whereas also the Queen's Most Excellent Majesty, now a year past and more, addressed Her Highness' letters enforcing the same charge, the contents whereof I sent unto your Lordship in her name and authority, to admonish them to obedience, and so I doubt not but your Lordship have dis- tributed the same unto others of our brethren within this province of Canterbury; whereupon hath ensued in the most part of the realm an humble and obedient conformity, and yet some few persons, I fear more scrupulous than godly prudent, have not conformed themselves ; peradventure some of them for lack of particular description of orders to be followed, which, as your Lordship doth know, were agreed upon among us long ago, and yet in certain respects not published. Now, for the speedy reformation of the same, as the Queen's Highness hath expressly charged both you and me, of late being therefore called to her presence, to see her laws executed, and good orders decreed and observed, I can no less do of my obedience to Almighty God, of my allegiance to her princely estate, and of sincere zeal to the truth and promotion of Christian religion now established, but require and charge you, as you will answer to God and to Her Majesty, to see Her Majesty's laws and injunctions duly observed within your diocese, and also these our convenient orders described in these books at this present sent unto your Lordship." but writes to Cecily despairing of success^ 107 It seems to me that this is the letter of a man writ- ing with an earnest wish to put the authority of the advertisements, as high as he possibly can, that he accordingly begins about how bad a thing this want of conformity is, how it is in contempt of the Queen's authority, how Bishops have power by law to reform all offenders, how the Queen has charged them to do so, how most people have obeyed, and then he says, in effect, — I charge and command you in the most solemn manner to put into operation Her Majesty's injunctions and this book of orders. But he is very careful not to say anything higher of the Advertisements than this, " These our convenient orders." The general tone of the letter is as imposing as possible, but when you scrutinize the actual words of it, it appears very plainly that the Archbishop makes a clear distinc- tion between " these our convenient orders," and " Her Majesty's laws and injunctions." Then he goes on to say how Grindal is to proceed against those who do not obey. I think I need not trouble your Lordships with that. The last letter on the subject of the advertisements in the Parker Corres- pondence is at page 280, of the date of 28th April^ 1566, from Archbishop Parker to Sir William Cecil: "The Queen's Majesty willed my Lord of York to declare her pleasure determinately to have the order to go forward. I trust Her Highness hath devised how it may be performed. I utterly despair therein as of myself, and therefore must sit still, as I have now done, alway waiting either her toleration or else further aid. Mr. Secretary, can it be thought that I alone, having sun and moon against me, can compass this difficulty ? If you of Her Majesty's council provide no otherwise for this matter than as it appeareth openly, what the sequel will be horresco vel reminiscendo cogitare. In King Edward's days the whole body of the Council travailed in Hooper's attempt. My predecessor. Dr. Cranmer, labouring in vain with Bishop Farrar, the Council took it in hand, and shall I hope ■ to do that the Queen's Majesty will have done ? What I hear and see, what complaints be brought tinto me, I shall not report j how I am used of many men's hands, I 108 if the Queen will not give the sanction he ashs for. commit all to God. If I die in the cause (malice so far prevailing) I shall commit my soul to God in a good con- science. If the Queen's Majesty be no more considered, I shall not marvel what may be said or done to me." So it goes on. That is the bitter complaint of the man who has been led into a very great difficulty, who has been called upon to perform a task to which he feels himself utterly unequal, and has not received that support from the Queen and Council which he thought would have enabled him to carry out the task he was set upon to a satisfactory conclusion. Sir Egbert Phillimoke. — What are the words after " If the Queen's Majesty be no more considered?" Sir Jambs Stephen. — " If the Queen's Majesty be no more considered I shall not marvel what is said or done to me." Lord Selborne. — In the former passage there was the order to go forward. Sir James Stephen. — " The Queen's Majesty willed my Lord of York to declare her pleasure determinately to have the order to go forward." That is to say the Queen keeps pressing on the Bishops to secure uniformity in the Church : " I trust Her Highness hath devised how it may be per- formed." To put it in a less respectful way : — It is all very well of the Queen to say she wants this to be done, but I wish she would tell us how it is to be done. I am utterly in despair of being able to eflFect it unless you will give me some authority to do so, and must, therefore, sit down, as I have done, and await her toleration or further aid. I have done my utmost. I have sent these things to Bishop Grindal, and told him they are my convenient orders ; but if the Queen refuses to give me her authority or take up these advertisements under the Act of Uni- formity, which she has power to do, I utterly despair. Bp. Lond. sends the Advts. to D. Sf C. of St. PauVs. 109 That, I submit, is the true interpretation of that letter. That is the last letter to which I need make any reference, but your Lordships will find another document, to which I refer only for the purpose of the date which it gives. That is a letter which your Lordships will find from the Bishop of London, Bishop Grindal, to the Dean and Chapter of St. Paul's, in State Papers, Domestic, Elizabeth, volume 39, No. 76. It is one of the publications ordered by the Master of the Rolls. The Lord Chancellor. — What is it? Sir James Stephen. — A letter from Bishop Grindal of London to the Dean and Chapter of St. Paul's sending them the " treaty," called the advertisements, " which I send herewith enclosed to you " : " After my heartie comendacyons these are to require and to give you in especyall charge that with all convenyent speed you call before you all and singuler the mynisters and ecclesiastical persons within your Deanry of Poules and office, and to prescribe and enioyn everie of them upon payne of deprivacon to prepare forthwith -and to weare such habit and apparell as is ordeyned by the Queen's Maiesties authoritie expressed in the treaty entituled, the Advertise- ments, &C.J which I send heerein enclosed unto you, and in like to inioyne everie of them under the said payne of deprivacon as well to observe the order of ministracon in the Church with Surples, and in such forme as is sett forth in the saide treatie, as alsoe to require the subscription of every of them to the said Advertisements. And yf you shall perceive any of them to be disobedient, which shall refuse to conform themselves herein, that then without any delay you certifie me the names of all such before Trynitie Sundaie next ensuinge, to the intend I male proceed to the reforma- con and deprivacon of everie of them as apperteyneth in this case with a certificate aUsoe of the names of such as pro- miseth conformytie. And thus I bidd you farewell from my howse in London this 21st of Male, 1556." I refer to that letter for two purposes. In the first place it shows distinctly what was the date when these advertisements were first acted upon in London, that is to say, they were sent by the Bishop of London to the Dean and Chapter of St. Paul's on the 1 10 The Bp's. Letter has an Expression which eusplains 21st May, 1566; and that date, as I submit, abso- lutely disposes of all the considerations founded upon the notion that the advertisements were published in 1564, and that the inventories published by Mr. Peacock show their effect upon the vestments and other matters, the destruction of which is recorded in his inventories. I submit that paper shows perfectly clearly that these advertisements were not published in London till the 21st May, 1566, and that, therefore, they could not affect what took place for the most part in the northern part of the Diocese of Lincoln in a period of time which ended with the 26th of May, 1566. I am quite aware that there are sonae expressions in that letter which may appear, at first sight, to assert that the advertisements had Her Majesty's authority, but I think that, on a closer examination of the letter, and of the contents of the advertisements, it will appear that such a construc- tion of the passage in question would be ill founded. Lord Justice James. — I want to know what con- struction you mean. SiE James Stephen There are expressions in the letter of Grindal to the Dean of St. Paul's, which might be interpreted, and I dare say my friend will interpret them to mean that the advertisements had the authority of the Queen under the Act of Uni- formity. I am going to shew your Lordships why I am of opinion that that interpretation is incorrect. The expressions are " To prepare forthwith," (it is a direction to all persons) : " And to weare such habit and apparell as is ordeyned by the Queen's maiesties authoritie expressed in the treaty entituled, the Advertisements, &o., which I send heerein enclosed unto you, and in like to inioyne everie of them under the said payne of deprivacon, as well to observe the order of ministration." And so forth. The important words are : " To weare such habit and apparell as is ordeyned by the Queen's Maiesties authoritie expressed in the treaty, entituled the Advertisements." the meaning of " the Queen's Majesties authority.^ ' 111 In the first place, I have already given your Lord- ships my reasons for saying that whatever any per- son might think about them, you have the very best possible evidence, namely, the evidence of the origi- nal documents themselves, and of the original draft as compared with the amended draft, that Her Majesty's authority was not given to that document; but apart from that, when you come to consider the meaning of the expressions which I have read, I would submit to your Lordships that the expression in question obviously refers to a part of the advertise- ments, which consists of articles for outward apparel of persons ecclesiastical. You will find in the advertisements rules about habit and apparel founded upon the injunctions, which injunctions had the Queen's authority. How- ever, be that as it may, I rely not upon what anybody says about the advertisements, but I rely upon the documents, upon the correspondence which I have just read to your Lordships, and which passed between the persons principally interested in their being put together. I say when these documents are studied, and the two drafts are compared, it appears that Parker kept pressing Her Majesty to give them legal authority, under the proviso of the Act of Uniformity, and that the Queen, being under the influence of the Puritan party, refused to do so; and, therefore, Parker, describes his position as one of despair, because he was not able to do by his own authority that which, nevertheless, the Queen required to be done. Now, my Lords, I propose to give an illustration of what I have said several times as to the persons against whom the advertisements were directed, and in confirmation of what I shall have to say hereafter as to their construction, and for that I would refer to another letter from Parker to Cecil, dated on the 12th April, 1566, and contained in the Parker Cor- respondence, p. 277. In that letter the Archbishop gives Sir William Cecil an account of the state of 112 The Advertisements were against the Non-conformists, things whicli then existed, and your Lordships will see at once that the difficulty with which Parker and others had to contend was not an inclination to wear chasubles, but the strongest possible disinclination to wear surplices; and it was therefore natural that the Queen and her Archbishop should do all in their power to try for something that there was a chance of getting, namely, the wearing of the surplice. Upon that point this letter from Cecil is as follows : " Sir, — I received your letters yesterday afternoon sitting in commission with Doctor Lewes, Mr. Osboumej and Dr. Drurie, about brabbling matters^ as this whole week I have done and fuUy tired with the importunity. And whereas I was minded to have come this day unto the court, my health faileth me that I cannot, but am compelled to keep my bed. Your honour desireth to know whether there were six hundred persons ready to the communion and came unto a churchj and found the doors shut. These reporters make ex musca elephantem. My Lord of London can best answer for his own jurisdiction ; but this I can say, that where I have sent divers days three and four of my Chaplains to serve in the greatest parishes, what for lack of surplice and wafer- bread, they did mostly but preach. And one of my Chap- lains serving the last Sunday at a parish, and being informed that divers communicants would have received, the table made all ready accordingly, while he was reading the passion, one man of the parish drew from the table both cup and the wafer-bread, because the bread was not common, and so the minister derided, and the people disappointed. And divers churchwardens to make a trouble and a difficulty, will provide neither surplice nor bread. As for mine own peculiars, fourteen or fifteen be all in order." There is a great deal more to the same effect. I will just, in leaving that part of the matter, make one remark, which I think throws some light on the state of affairs in the Church at that time. It is neces- sary in reading these injunctions and advertisements and episcopal orders of different kinds, to remember that at that period there was no such thing per- mitted as dissent on the one hand, and on the other that the police of the country was in a most in- effective state. The consequence was, that if the and illegal opposition to Ornaments, ^c. 113 Bishops ordered anything which was unpopular, a riot took place in the Church, and there was nobody to stop it, so that the ultimate result cei'tainly repre- sented very much more the passions of the people and very much less the laws of the land, than one hopes would be the case in the present day. Those considerations, I venture to think, do away with a good deal of the weight which your Lordships in the Judgment of Hebbert v. Purchas had attached to the fact, that the use of the different vestments speedily djisappeared, and that it never appears to have been resumed. It disappeared for the simplest of all reasons, namely, that the people did not like it because they had a strong objection to everything associated in their minds with the old state of things. That objection extended to every kind of ceremonial and vestment, especially including the surplice and an attempt to enforce the use of any vestment of the kind, however legal it might be, would simply have led to a breach of the peace, which there were no adequate means in that day of putting down. This I submit greatly diminishes the weight of the argument from contemporanea expositio, for the contemporary expositors were in many instances neither more nor less than disorderly mobs of rioters, who pulled to pieces everything that offended them. So much as to the documents connected with the issue of the advertisements. I may add (it is rather a minor point) one piece of evidence to what I have already said, which is to be found in a letter from Bishop Grindal to Zanchius, a well-known foreign reformer. The letter is in the remains of Archbishop Grindal, Parker Society, pp. 338 to 340. In the original it is Latin and the letter is this : Sir Robert Phillimore. — "What is the date? Sir Jambs Stephen. — That is a little uncertain, but if your Lordships will refer to the work where it appears, it would seem to have been written about 1571, or possibly the beginning of 1572, at all events I 114 Letter of Grindal to Zanchius a.d. 1571, shews it was written some considerable time after the advertisements had been issued, and the object of referring to it is to shew Grindal's view of the advertisements. The foreign Reformers took the deepest interest in all that was taking place in England in connection with the Eeformation, and this letter shows that Grindal did not regard anything done by the advertisements as having altered anything done by the first Act of Uniformity, 1559. " When first Her Highness Elizabeth, under most happy auspices, began her reign, the Popish doctrine and worship being cast off, she restored all things to that standard of the administration of the Word of God and the Sacraments, and the whole of the religion which had been drawn up and established during the reign of Edward VI., of happy, but also of most lamented, memory. To this all the states of the kingdom with full consent gave their voices in the great council of the nation, which in our vernacular language we call the Parliament.'" That of course would be an allusion to the Act of Uniformity. " The authority of this Council is so great, that the laws made therein cannot by any means be dissolved, except by the sanction of the same. Whereas, then, in this form of religion of which I have spoken, drawn up by King Edward, there were many commands respecting the habits properly adapted to ministers of the Church, and also concerning other things which some good men wish to be abolished or amended, it was forbidden by the authority of the law that anyone should meddle with this matter. Tet the law itself allowed the Queen's Majesty, with the advice of some of the Bishops, to alter some things." That obviously refers to the prdviso. " Nothing, however, of the law is either altered or dimin- ished ; nor, as far as I know, is there a Bishop, who does not himself obey the prescribed rules, and also lead or persuade the rest to do the same. Wherefore there is no reason why you should give yourself the trouble to persuade what they themselves have some time ago willingly yielded to you, viz : either that they should remain in their several posts, or that the Queen should deal more gently with those who decline conformity." that the A dvertisements had not altered the Law. 115 The effect of this is, as I understand it, that the Act of Uniformity, which can be altered by Parlia- ment only, gives power to the Queen to make certain alterations, but nothing, so far as he knows, has been altered or diminished. He could hardly have said that if an alteration had been made by these adver- tisements in the manner which has been suggested — The Lord Chancellor. — What are the words which follow " Nothing has been altered or diminished?" Sir James Stephen. — *' Nothing, however, of the law is either altered or diminished; nor, as far as I know, is there a Bishop, who does not himself obey the prescribed rules, and also lead or persuade the rest to do the same." That would refer, I submit, to the Injunctions which I mentioned to your Lordships before. He says, such prescribed rules as there are are obeyed by the Bishops and the Clergy. You need not trouble yourself to interfere with the Queen and ask her to deal gently with those who decline conformity, because, in point of fact, most people do conform. Then he says, ''As for doctrine, hitherto we retain it unshaken and unadulterated in our Churches. And therefore, since all our controversy has flowed from disclipline, these are the usual grounds of complaint. Ministers are required to wear commonly a long gown, a square cap, and a kind of tippet over the neck hanging from either shoulder, and falling down almost to the heels. In public prayers and every sacred administration, besides this ordinary dress, the Ecclesiastical discipline requires the ministers to wear a linen garment, called by a new appellation a Surplice." The Surplice was now the great bone of contention, as it continued to be long afterwards : " And since the priests of corrupt religion are distinguished from those who administer the light of the gospel by these things, as it were by certain tokens, some allege that it is not lawful for them by such comphances either to approve the hypocrisy of idolaters, or to pollute their own ministry. I 2 116 Dr. Cardwell considers that the Advertisements The more moderatOj though they will by no means allow themselves to be compelled to obey the prescribed rites^ yet neither are willing to censure others as sinful for yielding obedience, nor esteem the use of these things as impious." There is not much else in that letter worth reading, but the substance of it is that Grindal, writing to a foreign Reformer and giving an account of the state of things in England, does not in any shape or way refer to the advertisements, as having altered any- thing that had been established by the Act of Uniformity. So far I have argued upon the original documents and the letters of persons who are immediately con- nected with this transaction, and now I must pro- ceed, before I come to consider the advertisements themselves, to call your Lordships' attention to the view which has been taken of this transaction of the advertisements. I think it more convenient to do so before criticising the advertisements themselves. The first point to which I call your Lordships' atten- tion is, the note by Cardwell in I. Documentary Annals, p. 321. It is a note appended by Mr. Card- well to the advertisements themselves : " These Advertisements and the proceedings consequent thereon occasioned the first open separation of the Noncon- formists from the Church of England, the professed ground of separation being the necessity of wearing the same apparel that was used by the Romanists, but the real point at issue being, and soon afterwards showing itself to be, the right principle of Church government The advertisements were drawn up by the Archbishop and other bishops in commission with him, in obedience to peremptory letters addressed to him by the Queen, who had been informed that great irregularities prevailed without any endeavours on the part of the bishops to repress them, and was determined that stricter methods of discipline and good order should be exercised for the future. It appears, how- ever, that several of her Council, as, for instance, Leicester, Burleigh, Knollys, and Walsingham, were disposed to favour the wishes of the Puritans, and whether from this cause or some other, although the Queen was the person really responsible for the Advertisements, she did not officially did not receive the Queen's authority. 117 give her sanction to them at the time^ but left them to be enforced by the several Bishops on the canonical obedience imposed upon the Clergy and the powers conveyed to the Ordinaries by the Act of Uniformity. Their title and preface certainly do not claim for them the highest degree of authority, and although Sfcrype infers from certain evidence which he mentions (Parker, vol. I., p. 319) that they after- wards received the Royal sanction, and recovered their original title of articles and ordinances, it seems more pro- bable that they owed their force to the indefinite nature of episcepal jurisdiction, supported, as in this instance was known to be the case, by the personal approval of the sovereign. - The way in which the archbishop speaks of them in his articles of enquiry, issued in the year 1569 (No. 73) certainly assigns to them 'public authority,^ but clearly distinct from that of the crown; and in the year 1584 (No. 99) Archbishop Whitgift refers to them as having authority, but atill calls them simply the book of Advertisements. It is worthy of remark also, that they are quoted as authoritative in the Canons of 1571 ,but that those Canons never received the confirmation of the Crown, and that a similar reference was made to them in the Canons of 1675 by the convocation of that period, but was expunged by the Queen before she ordered the Canons to be published. In practice, however, they were uniformly treated as having authority ; and being quoted as such in the Canons of 1603, which were confirmed by King James (see Canon 24) they may be considered as having thereby obtained the royal sanction." As to the references to them in the Canons of 1604, I shall have a good deal to say immediately; but your Lordships will perceive that that note is, in fact, a short summary of vrhat I have been saying. Dr. <]ardwell says that the Queen never in any way what- ever authorised these advertisements, and that, on the contrary, for reasons satisfactory toherself atthe time, and probably from her extreme reluctance to be more mixed up in religious disputes, by taking a definite side, than she could possibly avoid, she left those matters to be arranged by the pressure of canonical obedience on the part of the bishops over the clergy, which at that time was much more powerful than it would be at the present day. There is one part of that note to which I will take the 118 The reference to the Advertisements in the liberty of calling your Lordships' attention a little more fully — that is, the reference to the advertise- ments in the Canons of 1571 and the Canons of 1575. I have read your Lordships the correspondence con- nected with the issuing of the advertisements, and it is enough for me now to say in general terms that the Archbishop obviously was extremely anxious that they should receive Eoyal authority, and by reference to the Constitutions and Canons of 1571 and 1575, your Lordships will perceive that Convo- cation were very anxious to get these advertise- ments recognised by the Queen, and for that purpose they inserted in the Canons references to them. Sir Robert Phillimorb. — They inserted references in what? Sir James Stephen. — In the Canons; thinking no doubt that if they could get the advertisements quoted and referred to in the Canons, the effect of that reference and quotation would be to supply the defect of authority, which was owing to the Queen not having authorised them directly. The effect of this was somewhat singular. In one set of Canons the adver- tisements were mentioned, but that set of Canons the Queen would never ratify, consequently they never could go for anything. Sir Robert Phillimore. — Which Canons are those ? Sir James Stephen. — The Canons of 1571. The Canons of 1575 were ratified by the Queen, but before she would ratify them she struck out all reference to the advertisements, which is a very significant circumstance. I will give your Lordships the reference to 1 Cardwell's Synodalia, p. 126. Constitutions and Canons of 1571: in a note he says — " Libello ad/monitionum. — The celebrated Advertisements of the year 1564, whichj acting on the same principle as in the case of these CanonSj the Queen refused to put forth with her sanction, although she had required the Bishops in commission to draw them up, and afterwards insisted that they should be rigorously enforced. By this, and by other Canons of 1571 and 1575 how treated. 119 synods, they seem to have been considered as having the most perfect authority." I have no doubt that the Synod wished to get a recognition of them, but the Queen said, No. She would not sanction the Canons with that reference in them. Accordingly, the Canons of 1571 still re- mained in an unsanctioned condition. The next point is as to the Canons of 1575, in the same volume, at page 136. There Mr. Cardwell prints the Canons of 1575 : " VIII. Item : That all licenses for preaching granted out by any Archbishops or Bishops within the province of Canterbury, bearing date before the 8th February, 1575, be void and of none effect. And, nevertheless, all such as shall be thought meet for that oflB,ce, to be admitted again without difficulty or charge, paying nothing for the same." " IV. Item : That diligent inquisition be made in every diocese for all such as have forg'd and counterfeit letters of orders, that they may be deposed by the Commissioners Ecclesiastical," (p. 134.) There is a long note of Cardwell's upon various matters, but the passage which I wish to call your attention to wUl be found at the bottom of page 136 — " There are two minor differences also which deserve to be noticed. In the 4th Article, [on page 134,] the expression of the Bishops was ' they may be deposed and punished ; •* but the two words '' and punished ' were not allowed to be published. In the 8th Article, the clause ' paying nothing for the same,' had been framed by the Bishops in the following manner, ' paying not above fourpence for the seal, parchment, writing and wax for the same, according to an article of the Advertisements in that behalf.' By inserting this clause the Bishops might have wished to obtain indirectly the Queen's confirmation of the Advertisements ; from which, however, she appears to have withheld her official sanction during the whole of her reign, although they were drawn up and enforced at her command." So that, according to this account, the Bishops, in one instance, put in the advertisements, and then the Canons not ^eing confirmed, they put them in again in a second instance, and then, before the Canons are confirmed, the reference to them is struck out. 120 The alterations in the Canons of 1575. The Lord Chancelloe. — Am I right in this, — ■ that what was put in and afterwards struck out is " fourpence for the seal, parchment, and writing? " Sir Jambs Stephen. — Yes, your Lordship will observe not only that they were to charge fourpence for the seal, parchment, writing and wax, but it added " according to the advertisements in that behalf." The Lord Chancellor. — They did not strike out merely the words that refer to the advertisements? Sir James Stephen. — No; they did not confirm the canons in the other case. Sir William Brett. — They struck out the four- pence, as well as the reference. Sir James Stephen. — ^They struck out both the enactments, so to call them, about the costs, and also the reference to the advertisements. I hope I have conveyed to your Lordships that they did not leave in any reference to the advertisements. The Lord Chancellor. — What is the evidence about the Queen striking out anything? Sir James Stephen. — I do not know what the evidence is as to the Queen's striking it out. I do not know anything more about it than what is contained in this note. I suppose the author of this work, which is a work of the highest reputation, was likely to know a great deal more than I can pretend to know. The note says thus, — the 8th Article on page 136 originally ran — '' Nevertheless, all sucli as shall be thought meet for that office, to be admitted ap;ain without difficulty or charge, paying not above fourpence for the seal, parchment, writing and wax for the same, according to the article in the adver- tisements in that behalf." That is the shape in which the Canons passed con- vocation; but, before they were confirmed, what I have read was struck out by some one; and the note says — " By inserting this clause the Bishops might have wished to obtain indirectly the Queen's confirmation of the advertisements, from which however she appears to have Cardwell, Advertisements hadnot the Great Seal : 121 withheld her official sanction during the whole of her reign, although they were drawn up and enforced at her command." The Loed Chancelloe. — Is it tlie case that Dr. Cardwell makes a suggestion about the want of the Great Seal to these advertisements? SiE James Stephen. — I have not met with that suggestion. Lord Selboene. — I am under the impression that there is such a note, that he refers to some case in which there was the want of the Great Seal. Sib James Stephen. — I am not aware of it, but my friend Dr. Phillimore says it is not the case. [After a pause.] My friend. Dr. Stephens, is good (enough to put into my hand a later edition of Cardwell's History of Conferences — the 3rd edition, 1849, and there Dr. Cardwell certainly does say — " It is true these advertisements were not binding in law, as they had not been sanctioned under the Great Seal," (p. 39.) Lord Selboene. — May not that be the ground of Dr. Cardwell's notion, that they wanted the official sanction, which they never received? Sir James Stephen. — I cannot say. I have only just had the book put into my hands ; but I will look it out : — " It is true that these Advertisements were not binding in law, as they had not been sanctioned under the great seal ; but it is clear they were considered binding, as they certainly were approved by the Queen ; and, it had not yet been ruled, that edicts issued by the Queen's commission were not binding, unless they were confirmed by the Queen officially." This I take it is the passage which I have been reading to your Lordships, and then he quotes Croke's Reports, 2 James, 37. What Croke says upon this subject I do not pretend to say, but I shall be in a position to tell your Lordships when I appear before you again. [Adjourned to to-morrow at 10.30.J Keyley v. Manning as to Great Seal : 122 Wednesday, Janttakt 24th. Sir James Stephen. — Just before the Court rose yesterday, Lord Selborne was good enough to call my attention to a remark made in the last edition of Cardwell's Conferences, that the advertise- ments did not possess legal authority, because they were not under the Great Seal, and I understood his Lordship's suggestion to be — that that tended at any rate to diminish the value of his judgment. The Lord Chancellor. — I do not think any ob- servation was made to that extent. It was merely a question whether there was not that statement. Sir James Stephen. — I quite understand your Lordships, but I was about to thank Lord Selborne for his goodness in directing me to this matter, because the case cited from Croke on that subject is one which your Lordships may consider as not un- deserving of attention. The reference in Dr. Card- well is wrong ; it is the case of Keyley v. Manning^ as my learned friend Dr. Phillimore found in looking the matter up. It is in Croke, Charles, 180. The case is this — " Covenant for not building of anhouse^ where the Defendant covenanted that he would erect three houses upon such land demised to hinij unless he were restrained by the king's proclamation, &c. The Defendant pleaded that such a day and year the king made a proclamation to restrain building. " The Plaintiff thereupon demurred and the cause shown was because a proclamation was pleaded and no place expressed where the proclamation was made, and so no visne, if issue should have been joined thereupon, also, because it is not pleaded to have been made sub magna sigillo anglioe ; otherwise it is not good. " And all the Court were of this opinion upon the first motion, because a proclamation binds not unless it be under the Great Seal, and if it be denied there can be no issue thereupon, but only " nul tiel record," which cannot be unless he plead it to be sub magna sigillo." comparison of Mandatory Letter, 1560. 123 Then they afterwards said there was some doubt ■whether it should not be intended under the form of pleading that it was sub magna sigillo. However, the whole Court were of opinion that it was necessary to the validity of the proclamation that it should be under the Great Seal. I do not propose, in arguing a case of this kind, to rely on any narrow or technical grounds, but I would respectfully submit to your Lordships that the absence of the Great Seal, the absence of any sort of official notification, anything to give authority of an unmistakeable kind to these advertisements, is a most notable and important circumstance. The mandatory letter which I read to your Lordships, and which beyond all doubt was an execution of the power, because it pursues the words of the statute — begins " Elizabeth, by the Grace of God;" audit ends — "^er ipsam reginam^^ and it is under the Great Seal, and as your Lord- ships know — I speak of course under correction —but as I have always understood where you get those words, per ipsam reginam^ it is a sufficient war- rant for affixing the Great Seal without its under- going the official routine of the Signet, and the Privy Seal. Hence, whatever may be the strict legal effect of the absence of the Great Seal from these adver- tisements, the fact that it was not attached is weighty evidence for the consideration of your Lordships, upon the point of the degree of authority attaching to them. I will now give your Lordships one or two other authorities besides Dr. Cardwell's, shewing the light in which these advertisements have been re- garded by recognized authorities. The Lobd Chancellor. — Did we understand you to say that the mandatory letter as to the lessons was under the Great Seal ? SiE James Stephen. — I do not think the words locus sigilli, or anything of that kind, are upon it, but it is, " Elizabeth, by the grace of God," and it ends, " per ipsam reginam' ' Your Lordship, of course, from daily experience, knows how that is, but I apprehend 124 Cottier's account of the origin of the that those words are a sufficient warrant to affix the Great Seal. Here is a letter in Cardwell's Docu- mentary Annals, page 294. It is headed by the Queen, and it begins with the word " Elizabeth," and it ends, " Given under Our Signet, at the Palace of Westminster, 22nd January, the 3rd of the year." I apprehend the sign manual at the top and the signature at the bottom would be the proper course. The Sign Manual is the authority for the Signet, the Signet the authority for the Privy Seal, the Privy Seal the authority for the Great Seal. I would suggest one consideration as what I had always understood to be a well-acknowledged constitutional principle upon this matter. Here is a document, which is said to be an exercise of the very highest power which could be conferred upon any person. It enables the Queen to make laws and to alter the Act of Uniformity. Surely, my Lords, some ofiQcial course, something of which not only private persons, but Courts of Justice, would be bound to take notice, must have been done in order to authenticate an instrument of so solemn a character. In the second volume of Collier's Ecclesiastical History, folio 494, your Lordships will find some account of the issuing of the advertisements. Collier quotes the paper which I read from Cecil's Manu- scripts about the clergy — how some adopted one usage and some another. The marginal note is, " The Queen -wTites to Archbishop Parker to press conformity," and then Collier says — " To put a stop to ttese disorders, the Queen wrote to the Archbishop, requiring him and the other Bishops in the Ecclesiastical Commission, together with all other ordinaries, heads of colleges, and persons of jurisdiction in collegiate churches, to assert the constitution of the Church, and manage their authority with more vigilance and vigour. She complains of their remissness, and commands them to press conformity, and execute the laws without any un- seasonable connivance, that such variety of practice, such disagreement in religion, such disregard of the establishment. Advertisements and difficulty in issuing them. 125 were productive of very ill consequences, disturbed the pnbKc harmony, and dissevered the Government." In short, he abridges the letters which I read to your Lordships yesterday. Then he says, " The Dissenters, being apprehensive of rigour, applied to their patrons to soften the Queen. By the way, they had several great men who favoured their interest both in Church and State. Amongst the Ecclesiastics, Pilkington, Bishop of Durham, wrote to the Earl of Leicester, another of their friends, in their behalf. This prelate was one of the English refugees, and had brought some Calvinistical fancies home •with him. He stuck in the scruples of the habit, disliked the cap and surplice, though not to that degree as to refuse the wearing of them. However, he was by no means for forcing compliance upon other people." And he writes a long letter to Lord Leicester upon that subject, trying to get Lord Leicester to induce the Queen not to proceed in the matter, I do not know that it adds very much to what I put before your Lordships, but the conclusion, after a good deal of quotation from these letters, comes to this : " The application being well received by the Earl of Leicester, was not without its effect; for now the Queen seemed not unwilling to relax in the discipline of the Church, and come towards an indulgence for the Dissenters. But the Bishops, receiving no countermand to their former directions, drew up several articles, entitled 'Advertisements.' They were first styled ' Ordinances, accorded by the Archbishop of Canterbury, &c., in his province.' But the Queen's zeal growing cool, and refusing to enforce the book with the authority of the privy-council, — for this reason, I say, — it is probable the title was altered from ' Ordinances ' to ' Advertisements.-" " Then he goes on with an account of the advertisements, which T pass over for the present, because I shall have occasion to refer to it again in the course of my argument. Collier's view of the case exactly accords with the history I had to relate to your Lordships yesterday, that it was at first intended to give these advertisements legal Authority, but owing to the influence brought to bear 126 Cartels account of the Advertisements : upon the Queen by the Puritans that authority was not given to them. Another work to which I refer your Lordships, is Carte's History of England, volume 3, from page 420 to 422, where there is a similar account of the same matter. The Loed Chancellor. — What is the date of that book? Sib James Stephen. — The date of this edition is 1752. He wrote early in the 18th century, and his work is mentioned with very great respect by Mr. Hallam as one of the most learned Histories of England. It is " By Thomas Carte, an Enghshman. Printed for the author at his house in Westminster, 1752." The quotation is at 420 and onwards to 422, but I need not read it to your Lordships. I will just go through the marginal note. " Conformity exacted of the Puritans, that excepted as to the habits of the clergy." Then the substance of it is that there was a Puritan reaction, so that " they railed against aU that used [the ecclesiastical habits] in obedience to the orders of the Church and the Queen's injunctions "and " Matters being come to this pass, the Queen was tigUy ofifended; and wrote, on January 25 [1564], to the two arch.- bishops ; expressly requiring them to take away all diversity among the clergy, as breeding nothing but confusion and breach of common charity; and see order in the habita strictly observed by all ecclesiastical persons throughont the churches of their respective proviuces ; and to admit none to any cure or office in the Church, who did not, before admittance, promise solemnly to observe and maintain such order and uniformity in all external rites and ceremonies, both in respect of the Church and their own persons, as by law and good usages were already provided. The arch- bishops accordingly signified these instructions to their sufiragans." The Lord Chancellor. — Will you tell their Lordships what the conclusion drawn was? Sib James Stephen. — " These courtiers," and he mentions them " had influence enough to pre-' similar notice in NeaVs History of the Puritans. 127 vent the Queen's authorising some orders, drawn up by the Bishops for all ministers to sub- scribe." Amongst other parts of the advertise- ments the ministers were to sign a declaration of obedience to them. Therefore, to put it as shortly as it can be put, Carte says, the Queen was prevented by influence from authorising these advertisements. Carte of course would wish, from his opinions, to put the legal obligation of anything that imposed the duty to wear surplices as high as he possibly could. He was not likely, therefore, to say that the Queen did not authorise them if in fact she did. There is a similar passage in Neal's " History of the Puritans, 1 Neal; page 188 and 204. The Lord Chief Baron. — What date is that? Sir James Stephen. — I do not know when the first edition was published — the copy I have in my hand is dated 1732. I do not wish to read the details. Your Lordship will find the matter referred to in that place. Having thus stated to your Lordships the whole history connected with the advertisements, and having read the letters upon which they were founded, and given the authority of historians who say they never were authorised by the Queen, I proceed to make some observations upon the advertisements them- selves. I have had to mention, in the course of my argument, a great variety of dates, and I think it might be some convenience to your Lordships to have a list of them. There has been a list of them printed. The Lord Chancellor. — What dates? Sir James Stephen. — A variety of dates which I have mentioned, and other dates which I shall have to mention in the course of my argument. Your Lordships might find it convenient to have them before you in this form. [Tlie learned Counsel handed copies of a Table of Dates to their Lordships!] I was going to the contents of the advertisements 128 Summary as to Date of the Advertisements. themselves. They are to be found in 1 Cardwell's Documentary Annals, page 321 and following. I was going to observe to your Lordships, in the first place, that they are dated in Cardwell, and that date has been repeated in their Lordships' judg- ment, 1664. I think that the correspondence which I have read to your Lordships shows that that date is, to say the least, entirely misleading, because it is quite clear from that correspondence to which I have referred, that there was a first draft, and then a second draft, and attempts were made to get the Queen to ratify the one draft or the other, which attempts failed, and the first occasion on which these adver- tisements were in any way publicly acted upon, was when Archbishop Parker sent them to Grindal, Bishop of London, in 1566 — on the 21st May, 1566, — with directions to forward them to the Dean of St. Paul's, which forwarding took place in May, 1566. There- fore, I submit that the date 1564 is fallacious and misleading, and that, in point of fact, the true date of the advertisements is the one which I have assigned to them — namely, 1566. Sir William Brett. — It is put March in your list. Sir James Stephen. — They were not acted upon in March. I went through the whole of- the history. There was something in the nature of a publication in March, because they were sent to Cecil; but the first time they were acted upon is May. We have given the earher date for the sake of perfect fairness. However, I have here a copy of the advertisements printed in 1584. Cardwell has apparently printed his from a more correct copy : "Advertisements partly for due order in the public administration of common prayers, and using the Holy Sacraments, and partly for the apparel of all Persons Ecclesiastical by virtue of the Queen's Majesty's letters commanding the same the 25th day of January, in the seventh year of the reign of our Sovereign Lady Elizabeth," and so on. Upon that I have to remark that that title, which no doubt is the original title, is drawn Summary as to Authority of the Advertisements. 129 up^ in such a manner as to mislead any person who might read it, because, your Lordships having had before you all the correspondence connected with these advertisements, are now aware that that letter of the 25th January, 1564 — or, as we should call it, 1565 — did not authorise these advertisements. They were not then drawn up. The letter was merely an order from the Queen to the Bishops to draw up advertisements; the Bishops produce a draft which the Queen rejects, clearly because it contained an express assertion that they were made on Royal authority. They then pre- pare another draft and publish it. There is not only nothing to shew the Queen ever authorised that second draft, but everything to shew that for reasons of her own she intentionally withheld her authority from it ; yet, when the advertise- ments come to be published, the Bishops draw up. a heading to them which I must say, though true to the letter, is calculated to produce a false impression upon anyone who reads it, because they vouch this letter of the 25th January, telling them to draw up advertisements, in a manner which would lead per- sons to suppose that the letter of the 25th January authorises the advertisements which follow, whereas it is quite clear it could not ; it is a mere direction that orders of some kind should be prepared. Then comes a passage at the beginning of the advertisements, which in Cardwell is printed as a preface ; I do not know that there is very much in it. In the edition which I have, a preface is printed apart from the articles themselves on a separate page. If your Lordships will look back to the letter of the 25th January, you will see the preface is very Httle more than a quotation from or abridgement of the letter, and it says in substance that the Queen, being anxious for uniformity, has ordered the Bishops to do the best they can to secure it, and that there- upon the Bishops had drawn up these articles which follow. That preface is only a statement made by 130 General character of the Advertisements proves the Bishops in their justification to shew that in drawing up these articles on their own authority they had only done that which the Queen had ordered them to do, and were using their general canonical authority for the purpose of carrying out the objects which the Queen had at heart. In short, I submit that these advertisements differ from pastoral letters of different kinds which the Bishops are in the habit of issuing in their dioceses on different occasions, mainly in this, that they were drawn up, not in the ordinary discharge of Episcopal functions, but in compliance with an order by the Queen that they should be drawn up in order that the Bishops might do all they could to resist the tendency towards Puritanism which had become very prevalent at that time, and which the Queen regarded as highly disastrous. Before I mention the manner in which these advertisements bear upon the question of vestments themselves, I will make a remark or two upon the general character of their contents, to shew how completely the substance of them corresponds with the general character which 1 have assigned to them, and how very far indeed the greater part of them are from even pretending to a legislative character, least of all from pretending to be an exercise of the particular power in the Act of Uniformity, in virtue of which alone the Queen had a right to make any alterations in these matters. They are divided into four different parts ; the first part relates to doctrine and preaching. It contains many matters as to the character of the sermons which are to be preached. The Clergy are to set out in their preaching the reverend estimation of the Sacrament, and if they teach any matter having any tendency to dissent or derogation of religion, the preacher is to be reported. The clergynian is to preach every three months if he is able, or else he is to preach by another. These regulations are remarkable, because I submit to your Lordships they are obviously not laws in any sense. them not to be a repeal of Existing Laws. 131 They would impose no legal obligation on clergymen, but they are Episcopal orders which the clergy were called upon to carry out on their canonical obedience. Then follow articles for the administration of Prayer and Sacraments; the Common Prayer is to be said or sung in the proper place, no clergymen not admitted by the Bishop is to expound any doctrine or to say anjj^thing by way of exhortation. Under these articles for doctrine and preaching they are to — " Move the people to all obedience as well in observation of the orders, appoynted in the booke of common service, as in the Queene's majesties injunctionSj as also of all other civill dutyes due for subjects to d.o." I have shewn your Lordships the character of the injunctions. I have contended that they were not law although they were issued by royal order, and although they would naturally at that time have greater authority than a mere Royal proclamation would have at the present day. Much less were the advertisements law, their object is to cause the Clergy to observe the Prayer Book, to observe the Kubrics, to observe the Canons and Injunctions, but there is not a single word to suggest that they could or do vary or repeal any one of them. That is strongly shewn by the next class into which they are divided : — " That the Common Prayer be sayd or song decentlye and distinctlye/' that is to say, you are to use the Common Prayer properly appointed, " that no parson or curate, not admitted by the bysshope of the dioces to preache, do expounde in his own cure or elsewhere, any scripture or matter of doc- trine, or by the way of exhortation, but only study to reade gravely and aptly without any glosing of the same, or any additions, the homelyes already sett oute, or other suche neces- sarye doctrine as is or shall be prescribed for the quiet instruction and edification of the people. " That in cathedrall churches and coUedges the holye com- munion be ministred upon the firsts or seconds Sundays of sverys monethe at the leaste. So that both deane, pre- bendaries, priestes, and clerkes do receavs, and all other of discretion of the foundation do receave foure tymes in the veare at the Isaste," k2 132 The particular Advertisements, as to the Vestments, Then come the particular advertisements which have been relied upon with regard to this matter, which their Lordships treat as a repeal by Her Majesty of an express provision in the Act of Uniformity. I think your Lordships will see that that can hardly be the proper construction of it — " In ministration of the holy communion in the cathedral and collegiate churches, the principall minister shall use a cope, with gospeller and epistoler agreeably ; and at all other prayers to be sayde, at the communion table, to use no copes but surplesses." Lord Selborne. — It is " wear " in this black letter copy which I have. Sir James Stephen. — The meaning is the same, that they are to use no copes but surplices. I do not know what copy your Lordship has ? Lord Selborne. — 1594. Sir James Stephen. — This which I have in my hand is 1584, " printed in London," and this copy I find agrees with Cardwell. I think your Lordship's copy is a reprint, because I have a similar reprint here. This book professes to be printed in 1564, but it is only a reprint of some earlier edition. It is the same title page as your Lordship's, because it has cum pnvilegio, Anno Domini, 1564, and I am told it is a reprint of some earlier copy. The Lord Chancellor. — Very well. We will take note of the difference. Sir James Stephen. — This copy also has "use," and the copy I hold in my hand, which was 1584, has the word "use." I do not know, really, that there is any difference between them, but, be it what it may, there it is. This rule is — " That in the ministration of the holy communion in the cathedral or collegiate churches, the principall minister shall use a cope, with Gospeller and EpistoUer agreeably ; and at all other prayers to be sayde at the communion table, to use no copes but surplices." The Prayer Book of Edward the Sixth did not require these vestments except when there was a not an alteration of the Ornaments Eubric. 133 Communion ; therefore, the latter part of that cannot affect the question. " Item, That the deane and prebendaries weare a surplesse •with a silke hoode in the quyer ; and when they preache in the cathedrall or collegiate churche, to weare theire hoode. " Item, That every minister sayinge any publique prayers, or ministringe of the sacraments or other rites of the churche, shall weare a comely surples with sleeves, to be provided at the charge of the parishe ; and that the parishe provide a decente table standinge on a frame for the communion table. "Item, That they shal deoentlie cover with carpet, silke, or other decent coveringe, and with a fayre lynnen clothe (at the time of the ministration) the communyon table, and to sett the Tenne Commandments upon the easte walle over the said table. *' Item, That all communicantes do receave kneeling, and as is appointed by the lawes of the realme and the Queene's Majestie's injunctions." There, again, they based their authority on the laws of the Realm and the Queen's Majesty's Injunctions. " Item, That therebe none other holidayes observed besides the Sundayes, but onlye suche as be set out for holidayes, as in the statute, ' anno quinto et sexto Bdwardi sexti,' and in the new calendar authorysed by the Queene^s Majesty. " Item, That when any Christian bodye is in passing, that the bell be tolled, and that the curate be specially called for to comforte the sicke person.'' I read this as an illustration of the way in which the Bishops on these occasions passed beyond any limits of their authority. " Item, That on Sundaies there be no shoppes open, nor artificers commonlye goinge aboute theire affaires worldly; and that in all faires and common markets falling uppon the Sunday, there be no shewing of any wares before the service be done." That is an order as to which the Bishops had no authority. They might say it was wrong, but it could not have the force of law upon any one. Then we come to articles of Ecclesiastical polity. " Item, That younge preistes or ministers made or to be made, 1 34 Other parts of the Advertisements also prove be so instructed, that they be able to make apte aimsweres concerninge the forme of the catechisme prescribed. " Item, That no curate or minister bee permitted to serve without examination and admission of the ordinary or his deputy in writing, having respect to the greatness of the cure and the meetnes of the party ; and that the sayde ministers, if they remoove from one dioces to another, bee by no means admitted to serve without testimonye of the diocesan, from whence they come, in writing of theyre honesty and ability. " Item, That the bishop doo call home once in the yeare any prebendary in his churche, or beneficed in the dioces, whiche studieth at the universities, to know how he profiteth in leaminge, and that he be not suffered to bee a servinge or waytinge man dissolutely. " Item, That at the archedeacon's visitation the arche- deacon shall appoynte the curates certaine textes of the Newe Testamente to be conde without bookes. And in their nexte synode to exact a rehearsall of them.''' The Bishops are to set lessons to the clergy and to tell them they are to learn so many chapters before the next Synod and then say them. ''Item, That the churchewardens once iu the quarter declare by theire curates in billes subscribed with their handes to the ordinarye or to the nexte oflicer under him, who they be, which will not readily paye theire penalties for not comminge to Goddes divine service accordingly.'-' And they are to examine and forsee all simo- niacal facts or covenants, and that no one is to marry within the prohibited degrees. Then follow a whole series of " Articles for the out- ward apparel of persons Ecclesiastical." The first strikes at very exalted persons, because it says, " That all Archbishops and Bishops do use and continue their accustomed apparel," then, "that aU Deans" and other persons mentioned, " shall weare in their common apparell abrode a syde gowne with sleeves strayght at the hand without any cuttes in the same; and that also without any fallinge cape; and to weare typpets of sarcenet, as is lawfull for them by thact of Parliament, ' anno xxiv. Hen. octavi.' " Then it deals with doctors of physic, with clergy on their journeys, who are to wear cloaks with them not to he an alteration of the Laws in force. 135 sleeves and so on, and then it is good enough to say that in their private houses and studies they are to use their own liberty. Inferior persons are to wear long gowns, and a great deal more of that sort. Then follow certain " Protestations to be made, pro- mised, and subscribed," and I call special attention to this, because it is obvious that the whole of these advertisements cannot have the force of law. " Inprimis, I shall not preaclie or publiquely interprets, but onely reade that, 'whiche is appointed by publique authoritye, without special license of the bysshope under his seale. " I shall read the service appoynted, playnly, distinctly, and audibly, that all the people may heare and understande. "^I shall keepe the register booke accordinge to the queene's majesties injunctions." They always refer when they can to higher authority, " I shall move the parishioners to quiet and concord," and then " I will read daily one chapter of the Old Testament and one of the New," and various other things. It seems to me that to say that the whole of that ever had legal authority would be incredible. But if it is not all law, it is extremely difficult to draw the line between what is law and what is not. It is difficult, I think, to say that one part of it had the effect of repealing a bit of the Act of Uniformity, and that other parts impose no legal obligation at all upon any person whatever. I would just say, before entering on another subject, that I hope we have now got to the bottom of the question whether the word is " use " or " wear." My friend Dr. Phillimore has looked into the matter, might I ask your Lordship (Lord Selborne) whether the copy you were referring to was imprinted at London by Reginald Wolfe. Lord Selborne. — Yes. Sir James Stephen. — In 1 Strype's Parker, pages 313 and 314, it is stated that " these articles were printed with a preface this year 1564." This Preface is given by Strype, in vol. 3, pages 84 and 85, and runs thus : 136 The A dvertisements sought to secure the Surplice, " The Queene's Majestie, of her godlie state, callinge to remembrance how necessarie it is to the advancemente of Godde's glorie, and to the establishmente of Ohriste's pure religion, for all her lovinge subjects, especiallie the state ecclesiasticall, to be knytt together in one parfecte nnitie of doctrine, and to be conjoyned in one unyformytie of rites and manners in the mynystration of Godde's holie woorde, in open praier and mynystration of sacraments; as also to be of one decent behaviour in their outward apparell, to be knowen partly by theire distincte habitts to be of that vocation ; who shoulde be the rather reverenced in their office, as mynysters of the holie thinges whereto they be called ; hathe, by the assent of the Metroplitane, and with certein other her Commissioners in causes Ecclesiastical], decreed certein rules and orders to be used as hereafter foUowith." " These were not authorized nor published," is, says Strjrpe, Cecil's endorsement upon them. So that the copy to which Lord Selborne was referring is a reprint in 1594, and a copy printed in 1564 of a draft which was an incorrect draft and never put forward. LoED Selborne. — Very likely. I see they are headed, " Articles, 1564." SiE James Stephen. — That appears to be the explanation of that small matter. I wiU now examine the eflFect of these items in the articles, and I must remind your Lordship for >a moment exactly how the matter stands. The Act of Uniformity dis- tinctly says that the first book of Edward VI. is to be observed — that is the substance of it. One main object of these advertisements is to put a stop to the dissensions which were taking place, by an exercise of episcopal authority, and more particularly to over- come, if it should be possible, the extreme reluctance shown by the Puritans of those days to wear any ecclesiastical vestments whatever on any occasion, and more particularly to wear surplices. As your Lordships know, the most extraordinary attacks were made on surplices. Indeed, at the Hampton Court Conference the ministers say they were relics of the idolatries of the priests of Isis, who, it seems, wore surplices. These advertisements, I submit. when most other Vestments were illegally destroyed. 137 are episcopal admonitions, put forward in the man- ner described, and intended to get what there was some chance of getting, and enforcing what there was some chance of enforcing. Your Lordships will recollect that at the time in question, as Mr. Pea- cock's work shows, the old ecclesiastical vestments had been for the most part destroyed and taken away. Before these advertisements were issued they had been destroyed. It is obvious from the whole history of the time that people were then proceeding, as the great bulk of the people will proceed, in times of great excitement. They acted not in accordance with the law, but by the more summary course of destroying that which they did not like, and which oflFended them as recalling Roman Catholic usages. I am afraid in the present day it is necessary that I should defend myself against being supposed that I wish to speak in any way in derogation of the Refor- mation and of the great blessings it conferred upon England and upon the world. Still it was a time of tumult and violence while it lasted, there can be no doubt about that, and the destruction of these rare and expensive dresses, which it was very difficult for any one to procure, made it practically impossible to wear them, to say nothing of their extreme unpopularity. In that state of things this order comes out, " In ministration of the Holy Communion, in the cathedral and collegiate churches, the principal minister shall use a cope with Gospeller and Epistoler agree- ably," which I suppose means that the gospeller and epistoler were abo to wear copes, and at other prayers they were to wear no copes. Sir Robert Phillimoee. — What are you reading from now ? Sir James Stephen. — From the advertisements. Then they go to the Deans and Prebendaries. The Deans and Prebendaries were to " wear a surplice with a silk hood in the choir," and when they preach they are to wear their hoods. Then, " Every minister saying any public prayers, or ministering of the sacra- 138 No negative words in the Order to wear a Surplice. ments or other rites of the Church, shall wear a comely surplice with sleeves, to be provided at the charge of the parish; and that the parish provide a decent table for the Communion Table." That is what their Lordships, in the case of Hebbert v. Purchas, regard as a prohibition to wear anything but surplices. Surely, if the words of an Act of Parliament are to be repealed, notice ought to be given of it — it ought to be said, " Notwithstanding the rubric in Edward VI.'s Prayer Book, you are no longer to wear what is there prescribed, but you are to wear this comely surplice with sleeves, and nothing else." I should submit there are no negative words at all, but the plain meaning of it is, you are to wear a surplice. It does not say you are not to wear a chasuble, and whatever other vestments there may be, but it says simply, " You shall wear a surphce with sleeves." The Lord Chancellor. — Are surplice and vest- ments ever worn together ? Sir James Stephen. — Yes, The Lord Chancellor. — Are the alb and the surplice both worn together ? Sir James Stephen. — I am very imlearned in these matters. I. never saw any one of these vest- ments, except the surplice. Here are some pictures, here is a man who has got all three of them, the cope, surplice, and alb. The chasuble is to be worn with the alb. The alb is a thing like a shirt, and the surplice we all know. The chasuble as I am credibly informed (I never saw one) is a dress of an expensive character with a hole cut in the middle of it, through which hole you put your head, and it falls down before and behind. It may be worn over an alb or a surplice, or both, or either of them, and in short, if one may introduce a very familiar meta- phor indeed, the advertisement is like saying to a man, " you must wear a shirt." It does not follow he is not to wear a coat or waistcoat. If his habits were sansculottic — if he had an objection to clean linen, if there were a party of people distinguished Surplice and other Vestments were worn together. 139 by their dislike for wearing clean linen, it would be natural to say, " you must wear a clean shirt on all proper occasions." A soldier may be in the habit of wearing a red coat, but he would naturally wear other articles on particular occasions. If some ques- tion had arisen about the red coat, and it was neces- sary to order it to be worn at certain times, because some persons objected to wear it at those times, we should not interpret an order to wear a red coat at those times, as a prohibition to wear say, a bear- skin cap also at times when by the rules of the ser- vice bearskin caps and red coats were usually worn together. This matter is worth insisting on, because in the case of Hebhert v. Purchas^ their Lord- ships appeared, in the absence of Counsel, not to have been altogether so well informed with respect to the nature of these vestments as might have been desir- able. This passage occurs at page 645 of the judg- ment : " If the minister is ordered to wear a surplice at all times of his ministration, he cannot wear an alb and tunicle when assisting at the Holy Communion ; if he is to celebrate the Holy Communion in a chasuble, he cannot celebrate in a surplice.^' I have no doubt my friend. Dr. Stephens, could have informed their Lordships, if they had asked him the question, about the character of these garments, but their Lordships are rfiistaken in a plain matter of fact, because it is the easiest thing in the world to wear both of these vestments together. I am informed and believe that nobody ever thought of administer- ing the Communion in a chasuble only, without other Ecclesiastical vestments, without a surplice or an alb. The Lojrd Chancellor. — Are you instructed to say it is common to use an alb with a chasuble ? Sir James Stephen. — If a man has a chasuble he has an alb under it, or a surplice. The Lord Chancellor. — Is it common to use a surplice with an alb ? Sir James Stephen. — No, an alb and a surplice 140 Vesfments hmo ordered to be worn in Rubric of 15A9. are one and the same thing, with this exception, that the sleeves of the surplice are large, and the sleeves of an alb fit tightly to the arm. The Loed Chancellor. — Then, is it common to use a chasuble with a surplice ? Sir James Stephen.— I am told it is generally used with an alb, but may be used with a surplice. The Lord Chancellor. — Is it ever used with a surplice ? Sir James Stephen. — In one instance it is ordered to be used with a surplice. The Lord Chancellor. — I am asking about your instructions as to the practice of this time. Sir James Stephen. — I do not know what it is, but I am told the common practice is, that if a cope is worn, a surplice is worn under it, if a chasuble is worn, an alb, which is a surplice with close sleeves, is worn. If a cope is worn it is put on over the sur- plice, and if a chasuble is worn it is put on over an alb. The Lord Chancellor.— In the rubric of the first Prayer Book of Edward the Sixth, the words occur in this way — " The Priest that shall execute the holy ministry, shall put upon him the vesture appointed for that ministratioUj that ia to say, a white alb, plain, with a vestment or cope." Are the vestment and cope dififerent garments ? Sir James Stephen. — ^A vestment is synonymous with a chasuble. The Lord Chancellor. — So that it is as if it was — a chasuble or cope. Sir James Stephen. — Yes. The Archbishop oe Cantbrburt. — ^^The cope is something different? Sir James Stephen. — Yes, it is a very ample dress, which goes over everything. I was going to call your Lordships' attention to the fact, that their Lordships were under the impression that the surplice and cope excluded each other. I read your Lordships that passage from the Purchas judgment. Notes in p. Bk.l5 Ad, require Bp.to wear ^Vestments. 141 LoKD Selboene. — Do I understand you to say that a surplice and alb are not worn together? Sir James Stephen. — You can wear them to- gether, but it would be superfluous. Each is a white linen dress, the one having large sleeves and the other close sleeves. But, in illustration of this matter, and to conclude it, I was going to point out to your Lordships the passage in the Prayer Book of 1549, which I venture to say is conclusive of the possibility of wearing these garments together. It is at the latter end of the Prayer Book, and is a part of— " Certain notes for the more plain explication and decent ministration of things contained in this book.'^ It is the second paragraph of these notes — " And whensoever the Bishop shall celebrate the Holy Communion in the Church, or execute any other public ministratiouj he shall have upon him, beside his rochette, a surplice or albe, and a cope or vestment ; and also his pastoral staff in his hand, or else borne or holden by his chaplin.^' Therefore, it is obvious that the Bishop is required to wear two at least of these garments, at the same time, besides his rochette, which makes three ; and he is to have his pastoral staff. He is to wear a surplice or alb, and a cope or vestment, so that it is not only possible, but in the case of the very highest Ecclesias- tical dignitaries, it is required and obligatory to wear two of these vestments. The Lord Chancellor. — Not a surplice and an alb? Sir James Stephen. — Not a surplice and an alb. I was showing merely that the one does not exclude the other, that they are, so to speak, parts of the same uniform. Sir Robert Phillimore. — What is the page in Keehng? Sir James Stephen. — It is at the very end of the Prayer Book of 1549. There is one other rubric which perhaps may throw light upon a matter which appeared to have occurred to the Lord Chancellor, I 142 The Advertisements not Law at all : they differ mean, about the relation between the surplice and the alb. It is the rubric in the first Prayer Book of Edward the Sixth. In one of the rubrics about the communion it says — " Though there be none to communicate with the priest, yet these days (after the Litany ended) the priest shall put upon him a plain alb or surplice^ with a cope." So that they seem to have treated the plain alb and the surplice as almost interchangeable. At any rate, he had a discretion whether he would wear his alb or surplice with the cope. Ls I understand the matter, the alb is nothing more or less than the surplice with tight sleeves. Upon the whole, then, to return to the argu- ment, I venture to submit to your Lordships, on these advertisements, in the first place they are not law at all, and, in the next place, if they are law, they do not in any way restrict and limit the Act of Uni- formity then in force ; but, on the contrary, prescribe compliance with it and add, so to speak, an extra sanction to one particular part of it, because, accord- ing to that Prayer Book, it was necessary to wear a surplice, and, the surplice being much objected to, these advertisements especially required obedience on that point. So much with regard to the criticism upon the advertisements themselves. I have already made a variety of observations upon the legal character of this document. There is one remark on the con- struction of the advertisements which I forgot when your Lordship made a remark to me just as I was about to make it, and that is upon the words " To be provided at the charges of the parish." They are to wear surplices with sleeves, to be provided at the charges of the parish. I am disposed to submit to your Lordships that those words form an exceedingly important part of these advertisements. Ecclesiasti- cal vestments, as I have said, had been destroyed. As to getting chasubles, your Lordships have heard materially from the form of Injunctions^ 1547. 143 that the clergy are not to be allowed to marry maid- servants without special permission from their masters, therefore they were not exactly in a position to go to the expense of getting these vestments. It would be a matter of great importance to them, conse- quently, who was to pay for the surplice, and the point of this is to get the parishes to provide some decent dress in which the ecclesiastical functions might be duly discharged. In considering the legal position of these advertisements, I would contrast them with the injunctions of Edward the Sixth. These injunctions I do not wish to refer to in detail, because I do not wish to tire your Lordships upon the subject; but the injunctions of Edward the Sixth are the first document' contained in " Cardwell's Documentary Annals." They contain a series of commands. They are given expressly in the King's name: " The King's most Eoyal Majesty, by the advice of . . . . the Duke of Somerset . . ■. . . . doth minister unto his loving subjects these godly injunctions hereafter following; whereof part were given unto them heretoforOj by authority of his most dearly beloved father, Henry the Eighth, of most famous memory, and part are now ministered and given by his Majesty : all which injunc- tions his highness willeth and commandeth his said loving subjects, by his supreme authority, obediently to receive, and truly to observe and keep." You cannot have a more forcible or pointed way of giving royal authority to any set of orders what- ever. These injunctions provided for a great variety of subjects. They are directed against images ; they require the provision of bibles; they denounce pil- grimages, and the lighting of candles and doing acts of reverence to images, and a variety of other things of the same kind. In short, they were one of the most important transactions of that day. In the case of Philpotts v. Boyd^ in Law Reports 6, Privy Council Appeals, page 460, your Lordships will find, that after the most careful and elaborate 144 Decision in PMlpotts v. Boyd applies to Advts. consideration of these injunctions and of their effect, these injunctions are held not to be law, and the passage which I particularly refer to wUl be found on page 460 : "This order, or letter, then, of the King's Council, explained as it is in its objects and intentions on the face of the document itself, appears to their Lordships to amount to no more than an administrative Act or step taken at the time, and dictated by the necessities peculiar to the time." It was in these injunctions that the use of images was condemned, and it was contended, in the case of Philpotts V. Boydf that the Exeter Reredos was to be taken away, because it was opposed to provisions contained in these injunctions. Your Lordships held that the injunctions were Tnerely an executive act done at the time, for the time, and with reference to the circumstances of the time, and that although they proceed in the most distinct manner from Edward the Sixth, and purport in terms as distinct as it was pos- sible to use to Qonvey orders to His Majesty's subjects. I should say a multo fortiori^ a far less extensive operation should be conceded to the advertisements which do not purport to be issued by Queen Ehzabeth. They surely are directed to the time ; are intended for the time; and are issued with a view to the peculiar questions of the time — questions arising out of the strong Puritan feeling which then pre- vailed ; and I submit to your Lordships that it would be altogether impossible to say that the advertisements are law and the injunctions are not, and your Lord- ships have already held that the injunctions are not. 1 have concluded what I have to say about the advertisements, and if I have succeeded in convincing your Lordships that the advertisements were what I say, the result is that they cannot possibly be regarded as a taking of further order under the Act of Uniformity, and if they are not, your Lordships will find, when T come to examine more particularly the general construction of the judgment of the Court in Hebbert v. Purchas, the foundation for the greater part of that judgment is altogether removed. 'The Rubric continued unaltered in the P. Bk. 145 There are one or two minor matters during the reign of Queen Elizabeth which I may mention. One matter ought certainly not to be passed over, without notice. The view taken in the judgment of Hehbert v. Purchas is, that these vestments were ren- dered legal by the reference to them in the Act of Uniformity, that they were in effect prohibited, and that the rubric was repealed to that extent by the advertisements, and that from the date of the adver- tisements they became illegal, and were removed. If that is so, it surely is singular that through- put the reign of Queen Elizabeth the Pray'er Book which was in force should have been continu- ally printed and reprinted with Royal authority, and one may suppose, under the Queen's direct orders, and that it should still contain the rubric entirely unaltered, standing just as it was. I am instructed to inform your Lordships that there are in the British Museum two Prayer Books published in the reign of Queen Elizabeth, one in Case 25 m 8 : "The booke of Commoia prayer and administration of the Sacraments, and other Rites and Ceremonies in the Church of England. Imprinted at London, by Christopher Barker. Printer to the Queenes Majestie.- Cum priuilegio Regias Majestatis. Anno Dom., 1580." Then there is another with a similar title. It is printed in Anno, 1592, about a quarter of a century after the advertisements were published, and these Prayer Books contain the Act of Uniformity, and the rubric stands just as it did in the terms which I read to your Lordships. I do not think I have read the Elizabethan rubric; but I shall have to comment at such length upon it afterwards that I wish to save your Lordships any unnecessary trouble. The Elizabethan rubric is this : " And here is to be noted, that the minister at the time of the Communion, and at all other times in his ministration, shall use such ornaments in the Church, as were in use by authority of Parliament in the second year of the reign of L 146 Substance of the Judgment, Hebbert v. Purchas. King Edward the Sixth, according to the Act of Parliament set in the beginning of this book." That rubric continued to be printed up to the year 1592, with Royal authority and by the Queen's printers, that is, for at least a quarter of a century after the rubric had (according to the judgment in Hebbert v. Purchas) ceased to represent the state of the law, and after it had been to a considerable extent repealed and narrowed by the eflfect of the advertisements. That surely is a very strong indica- tion that neither Her Majesty nor her advisers, nor those who were responsible for so serious a step as the publication of the Prayer Book, it being a branch of the Eoyal prerogative to publish bibles and books of Common Prayer, never discovered that this rubric had been in any degree impaired or altered by the advertisements which are said to have repealed it. I now come to the next step in the history of the legislation, or for that which passed for legislation upon these matters. That step brings me to the year 1604, in which the Hampton Court Conference took place; more accurately, perhaps, I should say, 1603-4. The Loed Chancellor. — You are going to the next branch of your argument ? Sib James Stephen. — No, the same branch of the argument. I will tell your Lordships how far I have got. In the case of Hebbert v. Purchas, as I understand their Lordships' judgment, their view of the case is this, — Vestments imposed by the Act of Uniformity; the Act of Uniformity to that extent repealed — First by the advertisements ; — If not by the advertisements, then by the canons of 1604; and, lastly. The Act of Uniformity of 1662 is to be con- strued as being subject to the advertisements and changes made by the advertisements and the canons. That is what I understand to be the substance of this part of the Judgment. Canons of 1604 not the authy.for P. Bk. 1604. 147 The Lord Chancellor. — You are now coming to the canons? Sir James Stephen. — Yes, I have said what occurred to me on the advertisements, and I am now coming to the canons. I gave your Lordships refer- ences to the judgment in Hebbert v. Purchas, which show in what view their Lordships regarded those canons. I do not know that I need repeat them, but I will confine myself for the sake of brevity to repeat- ing, that three or four times over their Lordships base what they say, upon the assertion — that the canons gave authority to the Prayer Book of James the First, and that the rubric in the Prayer Book of James the First is to be read subject to the provision of the canons. That raises an issue of fact upon which I proceed to address your Lordships, and I propose, as the first step in my argument, to show your Lordships that the Prayer Book of James the First owed nothing to the canons, derived no authority whatever from them, but, on the contrary, that the, canons were ancillary to what had been done with regard to the Prayer Book, that the Prayer Book is the authority and not the canons. I m ay just say that there are four successive Prayer Books in this case. The first Prayer Book of Edward the Sixth, the second Prayer Book of Edward the Sixth, the Prayer Book of James the First, and lastly, the present Prayer Book. The Prayer Book of Elizabeth goes back to that of Edward with some little alterations. In 1604 it was proposed to issue a Prayer Book, and, with a view to the preparation of the Prayer Book, King James held a conference with the various divines representing different ' parties in the Church, which was called the Hampton Court Conference, and the Hampton Court Conference in 1603-4 is the first matter to which I have to call your Lordships' attention on this part of the case. You wiU find an account of it in " Cardwell's Con- ferences." Before I go into the question of the con- tents of the Prayer Book or of the canons, it wiU be l2 148 Letter of K. James to the Abp. of Canterbury, necessary to give your Lordships, in the first place, the dates relating to them, for the dates in this matter are of great importance. There were three sittings held at the Hampton Court Conference. The first was on the 12 th January, 1603-4, the second on the 16th, and the third on the 18th, of which sittings your Lordships will find an account in " Cardwell's Conferences," p. 169. On the 18th January, 1603-4, or, according to our mode of speaking, 1604, the con- ference ended. The Lord Chancelloe. — Is " Cardwell's Confer- ences" the same book as "Cardwell's Synodalia?" Sir James Stephen. — No, the history of the Con- ferences contains a report of the discussions On the 9th of February, 1603-4, King James issued a letter to the Archbishop of Canterbury, which your Lordships will find in " Cardwell's Conferences," p. 217. That letter is, I apprehend, under the Great Seal, though. I am not quite certain about it. I think it is so, because it begins — " James, by the Grace of God, &c., to the most reverend father in God, our right trusty and well beloved Councellor." And it ends — " And these our letters patents or the enroUement thereof shal be your sufficient warrant for all and every the premisses contayned in them. Witness our selfe at Westminister, the ninth day of February. Per ipsum regem." That letter recites, in direct words, the proviso con- tained in the Act of Uniformity, therefore, it is beyond all question whatever an exercise of the power contained in the Act in regard to rites and ceremonies. It recites, after the style and address of the Archbishop : " Whereas all such jurisdictions, rights, priviledges, superiorities, and preheminences, spirituall and Bcolesiasticall, as by any spirituall or Bcclesiasticall power or authority have, heretofore beene or may lawfully be exercised or used for visitation of the Ecclesiastical state and persons, and for ppformation, order, and coi'rection, as well of the. same as of authorizing alterations in P. Bk. o/1559. 149 all manner of errors, heresies, schisms, abuses, offences, con- temptes, and enormities, to the pleasure of Almighty God, the increase of vertue, and the conservation of the peace and unitie of this our realm of England, are for ever, by authoritie of Parliament of this ,our realme, united and annexed to the imperiall crowne of the same." " And whereas also by Act of Parliament it is provided and enacted, that whenever we shall cause to take further order for or concerning any ornament, righte, or ceremony appointed or prescribed in the booke commonly called ' The Book of Common Prayer, Administration of the Sacraments, and other rites and ceremonies of the Church of England,' and our pleasure knowne therein, either to our com- missioners, authorized under our great Seal of England, for causes Ecclesigsticall, or to the metropolitane of this our realm of England, that then further order should be therein taken accordingly. We therefore,'^ — Then it authorises a new Book of Common Prayer. Upon that transaction there can be no doubt what- ever. That was distinctly an exercise of the King's powers under the Acts of Parhament relating to the Church and to his Ecclesiastical supremacy. It was an exercise of the special power vested in him by the proviso in the Act of Uniformity, and it confers upon the Prayer Book which was referred to in that letter, (there is a great deal of it) all the authority which the King could give, in fact it gives to the Prayer Book parliamentary authority. The Loed Chancelloe.— Will you read the recital again, so that I may follow the words of the Statute ? SiK James Stephen. — The exact words are not followed, but the resemblance is so close that you will see it is substantially a recital of the proviso : " Whereas also by Act of Parliament it is provided and enacted, that whenever we shall cause to take further order, he." [reading the above recital] . As your Lordships have followed the proviso, I would submit that, although it does not take the exact words of the proviso, it obviously refers to it and nothing else. 150 Proclamation ordering the me of P. Bk. 1604. Lord Selborne. — But very inaccurately. Sir Jambs Stephen. — It gives the effect of them. It might have been done more neatly, but there can be no doubt what it refers to. I admit it does not recite it as a modern draftsman would do, but, on the other hand, it refers to it in a manner in which I submit there can be no possible doubt ; therefore, I submit that the Book of James, which is in fact annexed to that order, had all the authority the King could give it, and that it was an execution of the power contained in that proviso, and that there- upon all the alterations made in that book upon that order were lawfully made. On the 5th of March, 1603-4, your Lordships will find what I am about to refer to in Card well's Con- ferences, page 225 : " Proclamation for the authorising and uniformity of the Book of Common Prayer to be used throughout the realm." I do not know that I need redd it all ; it is in a very redundant style. This is part of it : " Wherefore we require all Archbishops, Bishops, and all other public ministers, as well ecclesiastical as ciAdl, to do their duties in causing the ; same to be obeyed, and in punishing the oflfenders according to the laws of the realm, heretofore established for the authorising of the said Book of Common Prayer." He recites the Hampton Court Conference, and that he the King had got very much the best of those who opposed him at the Conference, and that he would lose the benefit of it if some legdl steps were not taken. Then it recites, that We — " for that purpose gave forth our commission under our Great Seal of England to the Archbishop of Canterbury and others, according to the form which the laws of this realm in like case prescribe to be used, to make the said explana- tion, and to cause the whole Book of Common Prayer, with the same explanations, to be newly printed." He says that the book is to be observed, and is to be the Book of Common Prayer, That is dated on the 5th of March — The Canons of 1604 made after the Proclamation. 151 " Given at our Palace of Westminster, the fifth day of March, in the first year of our reign ... 1 603." That is, as we should say, 1603-4. Lord Justice Jambs. — Where are you reading from ? Sir James Stephen. — Cardwell's Conferences, page 225. I submit now that the effect of all these proceedings was that on the 5th March, 1603-4, at the latest, King James' Prayer Book had the authority of law, and had all the authority which could be given to it, by virtue of an express and direct exercise in plain terms of the power reserved to King James for that purpose by the • proviso in the Act of Uniformity. I go on to the next step in the matter. On the 20th March, 1603, Convocation met, and on the 13th April, 1604, the Royal License was read. I may observe, at that time (it is a minor point, but still one not to be passed over) "there was no Metropolitan, because the Archbishop had died, the see of Canter- bui'y was then vacant, and the Bishop of London was the President of the Convocation. That appears on the face of the canons. Sir R. p. Amphlett. — He could not be dead on the 9th of February, I suppose, because there is a letter directed to him. Sir James Stephen. — Of course not. However, on the 13th of AprU the Royal License was read in Convocation — that preceded the business. On the 2nd of M&j the canons of 1604 were submitted to Convocation. On the 9th of July Convocation was prorogued, and subsequently to the 9th of July, 1604, (the exact date is immaterial) the canons were printed and published. I contend, upon these facts, that the Prayer Book of James was not in any sense dependent on the canons for its authority, but that, on the contrai-y, the authority of the Prayer Book of James was derived from the King, who communicated authority to it by executing the power conferred upon him by the proviso at the end of the Act of 152 The 80fA Canon required the Parish to provide Uniformity ; and I further submit that, inasmuch as he had just issued this Prayer Book by his own authority, as he had just issued a proclamation com- manding the Prayer Book to be universally observed, and giving to it all the legal force in his power, it is inconceivable that Convocation should have intended to or should have been allowed to repeal the Prayer Book, or that their canons, whatever they were, should have given the Prayer Book its authority. The Loed Chancelloe. — Do I understand you that James First had power to make a new Prayer Book ? SiE James STEPHEN.-^Tes, by the Act of Uni- formity. - The Loed Chancelloe. — "What power? SiE James Stephen. — The making further order. Loed Selboenb. — Additional rites and ceremonies? Sis James Stephen. — I do not know how far that might have been stretched. I see it is necessary to go more closely into the proclamation than I had supposed. The Lord Chancelloe. — I quite understand your argument. Sir James Stephen. — My argument is this — that the amended Prayer Book, call it the book of Edward Sixth, the book of James First, or Edward's book, amended by James, the name is immaterial, had all the authority the law could give it before the Convocation met. It must have been pubhshed be- fore Convocation met, because the 80th canon directs the people to buy it. I will read the 80th canon of 1604, the title of which is : (t The great Bible and Book of Corrmion Prayer, to he had m every Church. The Ohurcliwardens or Questmen of every Ohurch and Chapel shall, at the charge of the Parish, provide the Book of Common Prayer, lately explained in some few points by his Majesty's authority, according to the laws, and his Highness's prerogative in that behalf, and that with all convenient speed, but at the furthest within two months after the publishing of these our Constitutions. And if any parishes be yet unfurnished of the Bible of the largest the P. Bk. as altered under L Eliz., 2, 25. 153 volume, or of tlie Books of Homilies, allowed by authority, the said Churchwardens shall within convenient time pro- vide the same at the like charge of the parish." That sheAvs. clearly that the alterations in the Prayer Book, be they more or less, were made (whether the King exceeded his authority is not a matter to be argued now) by King James under that power, actual or supposed, which he derived from or which he claimed to exercise under the proviso in the Act of Uniformity; and that the Prayer Book derived its authority from him, and was imposed by him upon the Convocation, and did not derive its authority from the Convocation or the canons passed by him. If that be so, then it will follow that so much of the judgment in nebbert v. Purchas as de- pends upon the repeated assertion which is made in that judgment, that the Prayer Book derived its authority from the Canons, was given under mis- apprehension. A great deal is involved in this, when the matter comes to be considered. The first point is this. I have before me a copy (and perhaps it may be convenient if I hand copies to your Lordships) of the four rubrics material in this case. They have been printed for convenience \The learned Counsel hands several copies to their Lordships?^* First of all there is the Prayer Book of 1549, and then Elizabeth's Prayer Book. Then there is the Statute of the 1st Elizabeth, cap. 2 section 25, which is the proviso in the Act of Uniformity. Then, there is the Prayer Book of 1603-4, which is the one I am now speaking of, and lastly, there is the Prayer Book of 1662, which is our present Book of Common Prayer. The piece of paper prijnted at the bottomf I will explain afterwards. It does not bear upon this matter, though it has an importance of its own. What I am now remarking upon is the substantial identity between the Prayer Book of 1559, the Statute of Elizabeth, and the Prayer Book of 1603-4. * See the Paper No. II. p. 317. t See No. HI. p. 317. 1 54 The Canons of 1604: could not alter the, P. Bk. " And here is to be noted, that the minister at the time of the Communion, and at all other times in his ministra- tion, shall use such ornaments in the Church as were in use by authority of Parliament in the second year of the reign of Edward the VI." The only difference there being that it is " King Edward the Sixth," in the earher book, — "according to the Act of Parliament set m the beginning of this book." The only difference between the two is a slightly modernised spelUng, and nothing else. There- fore, the Prayer Book of 1603-4, which is forty years after the advertisements, repeats identically the very words which occurred in the Prayer Book of 1559 in relation to these ornaments. That is done, although their Lordships seem to have thought, in Hebbert v. Purchas,, that the advertisements of 1564 had re- pealed and narrowed the rubric in the book of 1559. I submit that, when James issued that Prayer Book in 1603-4, and on the strength of the proviso issued the amendments of it which I have quoted, and repeated the exact words of the rubric of 1559, he and those who advised him on the occasion, showed, in the most emphatic manner in which it was possible to show it, that they were not aware of any alteration of the law as it stood in the Prayer Book of 1559, and that they cannot have thought at the time they published this rubric, that it had been altered by the advertisements of the Bishops in the year 1564. Now, if James the First was under that impression, I say it is almost impossible to conceive that even if Con- vocation had had authority to repeal any part of the Prayer Book of 1559, they should have intended to do so. As to their having authority to repeal it, I say at once I feel a very great difficulty in assigning their exact legal value to the canons of 1604. Very little is to be said about them, except that in the weU- known case of Middleton v. Croft, it is decided that they are not binding on the laity. In Marshall v. The Bishop of Exeter^ in Law Eeports 3 House of Lords Cases, page 17 — SiE Robert Phillimobb. — Whatisthedateof that? Judicial opinions on the force of these Canons. 155 Sir James Stephen. — It would be 1868, I think. The judges ia that case were consulted by their Lordships' House and they delivered their opinions. Mr. Justice Blackburn said, " The canons are pre- scriptions to the Clergy binding in matters within the scope of the visitatorial power of the Crown," and Mr. Justice Willes said he reserved his opinion as to the validity of the canons, except so far as they might be binding on the conscience of the clergy by reason of the authority with which they are made. My friend's note is somewhat short, but some one seems to have said: "We express no opinion. as to how far in matters Ecclesiastical the Clergy are bound by the canons." I humbly join in that observa- tion, and T express no opinion on the matter how far, or why those canons are binding; but it is sufficient for my argument to say that what- ever authority may be possessed by the canons of 1604, I cannot understand how they can have ascribed to them such efficacy as to enable them to repeal the provisions of an Act of Parliament ante- cedent to them. I would add that, be their authority what it may, at all events, it is impossible to suppose that Convocation in 1604 could have had the intention of repealing anything contained in the very Prayer Book which they were prescribing to everybody to be used, and which had just been published by royal authority. The Lord Chief Baron. — Have you the date of the publication of James the First's Prayer Book? Sir James Stephen. — It is 1603-4. It would be more convenient to call it 1604. The 5th March, 1604, is the proclamation for the book to be received. The Letters Patent authorizing the book are in February. The proclamation about receiving the book is on the 5th of March, and Convocation did not meet until the 20th March. The Lord Chief Baron. — ^I meant to ask the date of the actual publication, so that people could buy it. 156i Supposed effect of the Canons upon the Rubric^ Sir James Stephen. — That does not appear, but I should submit the book must have been accessible on the 5th March, because on that day there is a proviso that it is to be received ; that could not be done if the book could not be bought. The Lord Chief Baron. — Have you a Prayer Book of James the First ? Sir James Stephen. — I think it is printed in Keeling in parallel columns. I will now proceed to point out the very singular result to which their Lordships' view of the canons leads. They regard in the first place the advertise- ments as a further order, which further order had the effect of limiting the rubric of 1559. Then, inasmuch as the canons again limit that rubric, the canons it would seem, according to their Lordships, repeal that which is already repealed, but at the same time that they repealed that which was already repealed, inferentially they apparently revive it by re-enacting the very rubric which they have re- pealed. The notion is that the book derives its authority from the canons and that the canons repeal the rubric. Well, then, if the canons repeal the rubric, it is a very extraordinary thing that the canons should authorise the rubric in another place. That is hardly an imaginable way of pro- ceeding, and not only is the notion that such a course was taken, one that could hardly be accepted, but I think when the expressions that occur in the judgments as to the canons and rubrics are compared with the dates I have given your Lordships, it wiU appear that the view their Lordships took was based upon a mistake as a matter of fact as to the relations in which the two proceedings stood the one to the other, I have now to consider by what means the canons are supposed to have repealed this rubric. I need not dwell upon so weU known a document as the canons or upon their contents, but the canons which are supposed to have had the effect of repealing the not warranted hy Canons 24, 25, and 58. 157 rubric of the Prayer Book of Edward the Sixth, which is also the Prayer Book, as amended by James, are the 24th and 25th. The 24th canon is : " In all Cathedral and Collegiate Churclies the Holy Com- munion shall be administered upon principal feast days, sometimes by the Bishop, if he be present, and sometimes by the "Dean, and at sometimes by a Canon or Prebendaiy, the Principal Minister using a decent Cope, and being assisted with the Gospeller and Epistler agreeably according to the Advertisements published Anno 7 Eliz, The said Communion to be administered at such times, and with such limitation, as is specified in the Book of Common Prayer. Provided, That no such limitation by any construction shall be allowed of, but that all Deans, Wardens, Masters or Heads of Cathedral and Collegiate Churches, Prebendaries, Canons, Vicars, Petty Canons, Singing-men, and all others of the foundation, shall receive the Communion four times yearly at the least.''' Then the 25th canon says: " In the time of Divine Service and Prayers in all Cathe- dral and Collegiate Churches, when there is no Communion, it shall be sufiBcient to wear Surplices ; saving that all Deans, Masters, and Heads of Collegiate Churches, Canons, and Pre- bendaries, being Graduates, shall daily, at the times both of Prayer and Preaching, wear with their Surplices such Hoods as are agreeable to their degrees." That is all that the Canon contains on the subject of these vestments. The Archbishop of Canterbury. — No, there is the 58th canon. Sir James Stephen. — I beg your Grace's pardon : " Every Minister saying the public Prayers, or ministering the Sacraments, or other Bites of the Church, shall wear a decent and comely Surplice with sleeves, to be provided at the charge of the parish. And if any question arise touching the matter, decency, or comeliness thereof, the same shall be decided by the discretion of the Ordinary. Furthermore, such Ministers as are Graduates shall wear upon their Surplices, at such times, such Hoods as by the orders of the Universities are agreeable to their degrees, which no Minister shall wear (being no Graduate) under pain of suspension. Notwithstanding it shall be lawful for such. 158 The Advertisements not made Law by Can. 24. Ministers as are not Graduates to wear upon their Surplices, instead of Hoods, some decent Tippet of black, so it be not silk." Those are tlie provisions of the Canons with respect to this subject of vestments, and those are the pro- visions which their Lordships in Hebbert v. Purchas considered had repealed the rubric of Edward the Sixth, and had rendered it illegal to wear the vest- ments which are there prescribed. With regard to that I have very little to add, as to their construction, to what 1 said on the subject of the advertise- ments. In my argument of yesterday I pointed out the manner in which it had twice been attempted unsuccessfully to introduce into earlier canons an allusion to the advertisements. On this occasion the advertisements are mentioned in the canons, but surely, ray Lords, it would be a very extraordinary kind of constructive legislation to say that the passing mention of these advertisements — (" you are to use a decent cope and be assisted by a Gospeller and Epistoler agreeably to the advertisements ") — could be considered as giving the advertisements the force of law. I should have thought that if the canons could have any such eflFect on the matter — ^if they are to be regarded as an exercise of the powers given to the King by the Act of Uniformity, the only result of that reference to the advertisements would be that they enact, and give whatever authority they could to a particular passage in the advertisements, which, without their authority, had no sanction. In fact, it strikes my mind, that the reference to the advertise- ments there rather indicates that the advertisements had no legal authority, and seeks to enforce one of their provisions, than that they had legal authority. If the advertisements were already law, why should it be necessary to mention them in the canon, and confirm them in that indirect manner? As to the 58th canon, the wearing of the surplice, I repeat what I said before in relation to the con- struction of the advertisements. They order, no Minimum of Rubric recognized in Can. 14. 159 doubt, that a surplice should be worn on all occasions, but they do not order that these other vestments, which are compatible with the use of the surplice, should not be worn. They leave that matter to be regulated by the Prayer Book. They are in every respect auxiliary to the Prayer Book, which was not founded upon them. It would be more exact to say that they were founded on it, at all events, they were passed in order to carry out part of a policy which had been admitted without convocation. Therefore, I submit that, whatever they did, they did not by any means repeal any part of that Book which they have enjoined to be observed. There is one further point in connection with these canons to which I wish to refer. Their Lordships felt a very great difficulty in accepting certain views as to the meaning of these enactments which were put before them, because those views implied that the advertisements and the canons enforce, or were intended to enforce, a minimum degree of ceremonial. Their Lordships said that that opinion, for various reasons which I will consider hereafter, could not be admitted. There is one case in the canons which shews that the canons, as far as in them lies, actually did sanction a minimum degree of ceremonial; that is the 14th canon : " The Common Prayer shall be said or sung distinctly and reverently upon such days as are appointed to be kept holy by the Book of Common Prayer, and their Eves, and at con- venient and usual times of those days, and in such place of every Church as the Bishop of the diocese, or Ecclesiastical Ordinary of the place, shall think meet for the largeness or straitness of the same, so as the people may be most edified. All Ministers likewise shall observe the Orders, Rites and Ceremonies prescribed in the Book of Common Prayer, as well in reading the Holy Scriptures, and saying of Prayers, as in administration of the Sacraments, without either diminishing in regard of preaching, or in any other respect, or adding anything in the matter or form thereof." Here the use of the Book of Common Prayer is en- joined in the strongest manner, and at the same time a 160 The P. Bk. 0/ 1604 ordered Daily Service. minimum degree of observance is prescribed, that is to gay, Common Prayer is to be read on the days ap- pointed to be kept holy by the Book of Common Prayer and their Eves. According to the Book of Common Prayer then in force, your Lordships will find that then, as now, the law of the land was that there should be daily service, morning and evening, throughout the whole year. That is prescribed, my Lords, in the book of 1604, in these words — " All Priests and Deacons shall be bound to say daily the Morning and Evening Prayer, either privately or openly, except they be let by preaching, studying of divinity, or by some other urgent cause." There, my Lords, is an express order in the Book of Common Prayer that, under all ordinary circum- stances, specified cases only excepted, they were read to morning and evening service every day through- out the. year. The canon prescribes also clearly a less observance, prescribing that the service shall be read, making no mention of the daily service, but of service on holy days. The Loed Chancellor. — That is not very material. I think you must not assume that. There is a double enactment in the canon; first, the Common Prayer shall be said or sung, distinctly and reverently, upon those particular days, and then it goes on : "Ministers likewise shall observe the orders, lites and ceremonies prescribed in the Book of Common Prayer, as well in reading the Holy Scriptures and saying of prayers." And so on ; and among those orders there is one which says that a clergyman, not reasonably hindered, shall say the prayers daily in the church, but I do not think it is very material. Sir James Stephen. — It renders the illustration a little less neat than it otherwise would be, but the fact is this : Under those two provisions, taken together, the clergyman was under an obligation to read the Common Prayer every day in the church, unless he was hindered by some urgent cause ; and, as a special Effect of Canons of 1604 upon Rubrics. 161 service was appointed for holy days, he was under a special obligation to read the service on those days. Then the canon puts him under an express obligation to read them on particular days. The inference T draw from that is, that, comparing the 14th canon with the rubric, you have a clear instance of a double obligation imposed, first by the rubric, and then by the canon, to do a particular thing, and it is impossible to say, in that case,- that the obligation arising under the canon, to read the service on holy days, excludes the obligation imposed by the rubric to read the service on common days or holy days either. The effect of it is, you are obliged to read the service on holy, days, both by the rubric and the canon. So I saj'^, with regard to these vestments, the obligation with regard to some of them depends entirely on the rubric which occurs in the Prayer Book, and which occurred in the. Book of Edward the Sixth. The obligation to wear the surplice is a double one, partly under that rubric and partly under the canon. Your Lordships are aware, of course, that in the Book of Edward the Sixth, the surplice is prescribed as well as the other vestments. 1 say, the only effect that the canons could have on the matter was, to furnish the Clergy with an additional reason to the one which they already had for wearing surplices, leaving- tha other vestments as they were before the canons were passed. So much for the canons of 1604, and the- Prayer Book of James. The next point to which I would direct your Lordships' attention occurred in the year 1641. The House of Lords, on the very eve of the Civil War, or at least within a very short time of it, appointed a Committee to take into consideration innovations in the Church respecting religion. The Committee was one of very great dignity and import- ance, for it consisted of ten Earls, ten Bishops, and ten lay Barons, who were empowered to associate with them as many divines as they pleased, and they did associate, amongst others, Archbishop Usher, Dr. M 162 The Proposal of the Jjyrds^ Committee^ 1641. Prideaux, Dr. Warde, Dr. Twisse, and Dr. Racket, who, I suppose, was afterwards Bishop Hacket. The authority for this matter is Cardwell's Conferences, page 238, and your Lordships will also find some information upon the subject in 2 Collier's Ecclesi- astical History, page 799. This Committee was to consider all innovations in doctrines. Their pro- ceedings were printed under this title : " A copy of the proceedings of some worthy and learned divines touching innovations in the doctrine and discipline ef the'Church of England, together with considerations upon the Common Prayer Book.^' The Committee was appointed by the House of Lords in the year 1641. These eminent persons make a series of considerations upon the Book of Common Prayer, and the third of those considerations is " whether the rubric should not be mended, where all vestments in time of Divine Service are now commanded, which were used in the second year of Edward the Sixth," so that, according to the view which was taken by their Lordships at that time, or rather taken by these very eminent persons, the Committee of the House of Lords, the sense of the book of 1604 was, that all vestments used in the time of Edward the Sixth were still commanded to be used, and it was suggested to the House of Lords that that rubric ought to be amended. Their Lord- ships, in the Judgment of the case Hebbert v. Purchas, referred to the matter in these terms, page 642 :— " 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 now commanded which were used by Edward the Sixth ' (' Cardwell Con- ferences,' P*ff6 274) ; the learned Judge has overlooked the fact that this applies to the earlier rubric ; and the sugges- tion 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 James, which was objected to, was amended after the suggestion." As to those observations, it certainly is true that shews that the Vestments were then lawful. 163 the rubric of 1662, which I presume is the rubric to which their Lordships refer, is an amendment, and does in some words differ from the rubric of 1603-4, but I shall have more to say on that hereafter. It is also perfectly true that the suggestion in question did not emanate from the House of Lords, but it did ema- nate from the Committee constituted in the manner which I have described, and assisted by the most emi- nent divines of the time, but as to its having been adopted by the House of Lords, shortly after that time alterations were made in the constitution, of both Church and State, which must have thrown these questions into an immeasurable distance. But, be that as it may, it leaves altogether unaffected the object for which I direct your Lordships' attention on the pre- sent occasion to that proceeding. When the Judgment in Hehbert v. Purchas is carefully studied throughout, your Lordships will find more and more the turning point of the whole is the legal character of the advertisements, and that the reason upon which that Judgment is almost entirely based, is, that the adver- tisements and the canons, but more particularly the advertisements, operated as a further order, under the proviso of the Act of Uniformity, and that they repealed, to a certain extent, the rubric contained in the Prayer Book of Edward the Sixth. Upon that point I have already commented fully, and I have referred to what happened in 1603-4, but with, regard to this transaction that took place in 1641, the suggestion which proceeded, certainly not from the House of Lords, but certainly from persons of the highest authority and eminence, selected by the House of Lords to advise them, shows that those distinguished persons, at aU events, were clearly of opinion at that time that the law as it then stood did prescribe the use of these vestments, and they thought the law ought to be altered for that reason. The Lord Chancellor. — Was there a report made to the House of Lords by the Committee? Sir James Stephen. — So I understand from M 2 164 Advertisements^ how described by the Committee. what is stated in Cardwell. The word " report " has not caught my eye in the statement of the pro- ceedings, but the whole matter is printed in Card- well's Conferences from page 270 to 277. It is part of a long article which begins at 238, and contains much other matter; but the particular matter to which I have referred is at page 270, and although the word "report" does not appear, yet still, so far as I understand the proceedings, these suggestions, or whatever they are called, considerations on the Prayer Book, are very much in the nature of what we should regard in the present day as a report. They seem to me to be a variety of considerations suggested to the House of Lords as to various inno- vations which have taken place in theological matters with various suggestions for consideration as to what should be done upon them. I am informed that Baxter speaks of them as the concessions of Archbishop Usher and Archbishop Williams, and many others. But there is another remarkable pas- sage in that document to which also I will refer your Lordships. It occurs at page 273 : " Innovations in discipline." Of the 10th innovation it is mentioned : " By pretending for tLeir innovations, the injunctions and advertisements of Queen Elizabeth, which are not in force, but by way of commentary and imposition, and by putting to the Liturgy printed secundo tertio Edwardi sexti, which the Parhament hath reformed and laid aside." So that one of the innovations in discipline to which they objected was attributing the force of law to the injunctions and advertisements. That is at page 273, No. 10. Sir R. p. Amphlett. — Whose words are you reading ? Sir James Stephen. — I take it to be the report of this Committee to the House of Lords. Lord Selborne. — They seem to be gravamina of the Puritans. Sir James Stephen. — ^^At all events they con- Rubric, how understood at the Savoy Conference. 165 tairi exprfessed opinions of Usher, among others, that the advertisements were not in force but by way of imposition. Be it that they were the gravamina of the Puritans, at all events, persons of great eminence appear to have considered that the rubric which enjoined the use of these vestments was still in force, and ought to be amended for that reason. I pass from that to the Conference at the Savoy, which took place in the year 1661. Your Lordships will find an account of it in Cardwell's Conferences, page 269. The Savoy Conference was summoned by Charles the Second upon his restoration, and met under letters patent dated on the 25th March, 1661. On the 4th May, 1661, the Puritan ministers pre- sented their exceptions. The Bishops answered the exceptions, and the whole controversy between the Bishops and the Puritans will be found in Cardwell's Conferences, and in another work called " The Grand Debate," which I think gives a part of the matter which Cardwell has omitted. What I am about to say to your Lordships upon this subject is in order to shew what was the understanding of the persons concerned as to the law at that time. I wish to shew your Lordships that the ministers at that time considered that the rubric then proposed to them (they had the Book of Common Prayer before them substantially as we have it now) sanctioned the use of these vestments. The Loed Chancellor. — 1661 was the date of the Conference? Sir James Stephen. — Yes ; and the Act of Uniformity was passed the year afterwards, and the point which I am putting before your Lordships is, that in 1661, the Prayer Book, as we now have it, was published and debated between the non-con- formist ministers on the one hand and the Bishops on the other, and that the non-conformist ministers took objection to that Prayer Book, which afterwards became the Book of 1662, on the ground that it sanctioned the use of these very vestments, the 166 The Ministers' objection to the Rubric: legality of which is now in question, and that when that objection was taken by the non-conformist minis- ters, the Bishops treated it in a manner which showed that, in point of fact, it was well founded, and that the rubric was intended to, and actually did, sanction the vestments in question. Upon that subject, first of all, there is the rubric and the exception taken to the rubric. Your Lord- ships will find it at p. 314 of CardweU: " And here is to be noted, that the minister, at the time of the Communion, and at other times, in his ministration, shall use such ornaments in the church, as were in use by authority of Parliament, in the second year of the reign of Edward the Sixth, according to the Act of Parliament." Lord Selborne. — That is as it stood before? Sir James Stephen.— That is as it stood before the final settlement. Then the exception is : " Forasmuch as this rubric seemeth to bring back the cope, albC) &c., and other vestments forbidden by the Common Prayer Book, 5 and 6 Edward the Sixth, and so* our reasons alledged against ceremonies under our eighteenth general exception, we desire it may be wholly left out." The eighteenth general exception will be found in Cardwell, pp. 310-12. It goes at some length into the question of ceremonies and the importance of not imposing them unless they were absolutely necessary ; in fact it puts forward the Puritan view of that subject. The general reply of the bishops to this wiU be found at pp. 345 to 351. The bishops put forward on the other hand the opposite view regarding ceremonies, and argue that it is right that certain ceremonies should be imposed. The substance of one is : Your ceremonies are objectionable, and the trxie general principle as to ceremonies is to have as little as possible. And the result of the other is : Our ceremonies are in themselves unobjectionable; * Probably should be " for." See " The Grand Debate," &c., 1661, p. 12. the Bishops' answer to their objection. 167 a certain amount of ceremony is a good thing, and we are the judges of bow much. The only remark I need make upon that argument between the bishops on the one hand, and the ministers on the other, is that the general principles laid down by the bishops would cover just as well the chasuble and the alb, or anything else, as they would cover the particular things objected to, namely, the surplice and cross in baptism. There is no doubt at aU that the great bones of contention at that time were the cross in baptism, and the use of the surplice. They were objected to upon general grounds, and they were defended upon general grounds, and both the grounds upon which they were objected to, and the grounds on which they are defended^ would each apply equally well to the use of the particular vestments now in question. Besides the exception and the general reply, there was a special reply, which was made to this particular objection. That special reply was in very few words : "Rubric 1. We think it fit that the rubric stand as it is, and all to be left to the discretion of the ordinary. Rubric 2. For the reasons given in our answer to the eighteenth general, whither you refer us [this is the one in question] , we think it fit that the rubric continue as it is " (p. 351). The Puritans had said : Tou propose to bring back the vestments specified in the Prayer Book of Edward the Sixth, and for that reason we desire that the rubric may be alto- gether left out, and that on the grounds of our eighteenth general objection. To which the answer is : For the reasons given in our answer to the eighteenth general objection, whither you refer us, we think it fit that the rubric continue as it is. That is to say : You object to the introduction of these vestments, or rather to the re-enactment of these vestments, on general grounds, on which you object to other things 168 The Puritans' Rejoinder to the Bishops : as well, and upon those general grounds on which we answer your general objection we also answer this particular objection, we think it fit that the rubric continue as it is. Not a word, not a suggestion of any kind, to lead the Puritans to suppose that they did not mean to re-enact whatever had been law in the time of Edward the Sixth. Lastly comes the work called " The Grand Debate," printed in 1661, on p. 118, and the first reply to the remark of the Puritans is this : " We have given you reason enough against the imposition of the usual Ceremonies, and would you would draw forth those absolute ones to increase the burden." The Loed Chancelloe. —Obsolete, I suppose ? SiE James Stephen. — It is printed "absolute," and I suppose it is an old form of the word obsolete. SiE Robert Phillimoee.— No, I think not. SiE James Stephen. — It may be ones which are untied, "absolved," which have been dispensed with, and I should think that probably would be the interpretation of the word — :" We have been absolved hitherto, we have not been troubled with these cere- monies for a great length of time, practically they have been disused, and you are now going to give them new force by re-enacting them in a new Prayer Book, which is to have the force of an Act of Parlia- ment," That, I. submit, shows clearly how the rubric was understood at the time it was enacted by the parties whom it affected. And I would just observe to your Lordships, by way of anticipation of an observation which may be made upon that rejoinder, it may be said, when the Puritans speak of these vestments as being "absolute," they mean to say that, in point of fact, their use had ceased to be obligatory by law; but I submit to your Lordships that it would be a complete mis- take to put that construction upon what they say. It is one thing to have a law lying in the Statute book, in an obscure place, where few persons know both considered th6 Rubric kept in force. 169 where to look for it. It is quite another thiiig to have it re-enacted as part of the living and existing law of the land. Your Lordships are well aware, from constant experience, that when Parliament thinks proper to consolidate or throw into one body, any branch of the law, you naturally repeal all that has become obsolete and unsuitable to be re- enacted; and nothing would be more natural than to say on such an occasion — At aU events, leave the law as it is, and do not, now that you are bringing forth a new code of religious worship, go and re-enact a provision which would have the effect of giving new, life to ceremonies and vestments to which we greatly object, and which, for a considerable length of time, have not in fact been imposed upon us. I submit that is the effect of what the Puritans said, and I also submit it shows clearly that those who drew up that Prayer Book, and those who were afraid of having to submit to it, both considered that the effect of the rubric would be to revive these vestments which were used in the time of Edward the Sixth. Now, in their Lordships' judgment in Hebbert v. Purchas, referring to this matter, their Lordships say that the dispute was then understood to relate to the surplice only. Sib Egbert Phillimoeb. — What page is that ? Sib Jambs Stbphbn, — It is page 641, at the end. Their Lordships' remarks upon the matter upon which I have just been commenting are these: *' The Rubric had been in force for nearly 60 yearSj and thejj" that is, the Puritans, " did not allege that the vest- ments 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 understand the surplice to be in question, and not the vestments. — (Cardwell Conferences, 314, 345, 851). But the learned Judge, through this oversight, has overlooked the most important part of the proceedings. The Bishops determined that the Rubric ' should continue as it is.' But, after this they did, in fact, re-cast it entirely. It must not be assumed that alterations made under such circumstances were made without 170 No real difference between the Rubric thonght, and are of no importance. The Rubric had directed the minister to ' use at the time of the Commnnion, and at all other times of his ministration,' the ornaments in ques- tion. The Statute of Elizabeth did not direct such use, nor refer to any special times of ministration, 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 to a state of things wherein the vestments for all ministrations had become the same. The change also brought in the word ' retained/ which, it has been argued, would not include things already obsolete. Whatever be the force of 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 re-cast, and brought into its present form." My Lords, I will compare immediately the two forms of rubric — the form to which objection was taken, and the form which was ultimately adopted, and I hope I shall be able to convince your Lordships that there really is no substantial diflference whatever between those two forms ; but at present I confine myself to a different remark upon the comments which their Lordships make upon the rubric in ques- tion. It is quite true that the Puritans did not say that the vestments had been brought back. No doubt they had not. No doubt they had in fact been disused for a very long period of years, exactly as images and many other things were disused because they had become the object of popular hatred from being associated with the Roman Catholic religion. They had been destroyed, I do not say in all cases illegally, but in many cases illegally and tumultuously. They had been destroyed by the opponents of the system, of which they formed a part. Civil war had been brought on and caused the execution of the Archbishop of Canterbury, and the King himself No doubt they had not been brought back, but what the Puritans say in effect is : of 1604 and the Rubric 0/ 1662. 171 Now that you have got the upper hand, now that you have come back in power and are in a position to do what you like, we know you will bring back the surplice upon us and we shall be forced to wear that, and we fear that you may bring back those other " absolute " ornaments, that is to say, the other orna- ments which, although they may have been legally binding, at any rate we have not in practice been obliged to use. And the Bishops, instead of saying : The only thing we want is the surplice, and the only thing to which the rubric applies is the surplice, and you need not be afraid of the vestments. Which would have completely answered the ob- jection made, saj', on the contrary : We think it right upon the general principles which we have laid down on ceremonies that the rubric should continue as it is, and we do that after distinct notice of the interpretation which it was feared would be put upon them. My Lords, I read just now a passage, about half a page, from the judgment in Hebbert v. Purchas^ which, as I understand it, contains their Lordships' view as to the re-casting, as they say, of the orna- ments rubric. I am at a loss to understand what was the intention of that passage, unless their Lordships mean to say that the rubric was re-cast after objection had been taken to it, for the purpose of meeting that objection. Unless that is their Lordships' meaning, I fail to perceive what their meaning is. I must, therefore, argue the matter upon the supposition that their Lordships meant to say that the difference be- tween the form of the rubric to which the Puritans objected, and the form of the rubric which was ulti- mately passed as it stands in our present Prayer Book, and which now forms part of the law, was made in order to avoid the inconvenience of reviving these vestments. Upon that, I have to say, that when your Lordships come to compare the two forms together, I think I shall be able to submit : First, reasons showing 172 Comparison of the Rubrics^ 1559-1662. what the intention really was, and, Secondly, reasons showing that the intention hardly could have been that which, as I understand the Judgment of their Lord- ships, their Lordships ascribe to the persons who framed that rubric as it now stands. You will observe that there are four very similar forms of this rubric. There is the Prayer Book of 1559, the Statute of the 1st Elizabeth, the Prayer Book of 1603, and the Prayer Book of 1662, and to that I may add the other earlier form of the rubric of 1662, (retained in the Prayer Book of 1603-4) which I have already read to your Lordships, and which is printed in Cardwell's Conferences, page 314, as being the form to which the Puritans objected. Lord Selbornb. — It is the same as that of 1603. SiE James Stephen. — No, it is not verbally the same, but I think I may say that the form of 1603 is substantially the same as the form to which the Puritan Divines objected at that Conference. I will read the two. The form of 1603 is this : " And here is to be noted that the minister at the time of the Communion, and at all other times in his ministra- tion," The word " all " is not in the rubric as objected to, it is : " At other times in his ministration, shall use such orna- ments in the Church, as were in use by authority of Par- liament in the second year of the reign of Edward the Sixth, according to the Act of Parliament." It does not add " set in the beginning of this book," so that the difference between the form of 1603-4, and the form to which the Puritans objected, consisted in the omission of the word " all," and in the omission of the words " set in the beginning of this book,"* and I do not think that anything turns upon either of those omissions. Now, it is said, that the difference between the Prayer Book of 1603, and the Prayer Book of 1662, * In "The Grand Debate," 1661, " &c." is substituted for these words : this is not printed in Cardwell. — Ed. Bishop Cosines reason for altering the Rubric. 173 is a difference intended to meet the objection urged by the Puritan Divines about the vestments. The Lord Chancellor. — In order to be accurate, have we any constat as to what the exact form was upon which those observations were made at the Con- ference ? Sir James Stephen. — I was just telhng your Lordships they are printed in Cardwell, and if you will look at the third column of the paper in your Lordships' hands, it is identical with that form with two exceptions. The word " all" is omitted, and the words " set in the beginning of this book," are omitted. In other respects the two are identical. Lord Justice James. — Are the words " according to the Act of Parliament " the end? Sir Jambs Stephen. — It ends with the words " according to the Act of Parliament," my Lord. The best way I think of showing what a thing does not mean and why it was not done, is by showing what it does mean, and why it was done ; and I think that the paper that has been printed and submitted to your Lordships states, in the clearest possible shape, the reason why the change was made between the forms of 1603 and 1662. For that purpose I would ask your Lordships also to look at the other paper* which is printed at the bottom, and which contains the rubric in the Prayer Book of 1603-4, as altered by Bishop Cosin, in his handwriting in the edition of 1619. Bishop Cosin, as your Lordship is aware, was one of the leading authors of the Act of Uniformity and of the Prayer Book under that Act. Bishop Cosin's literary remains of every kind, or many of them, are preserved, as I understand, at Durham, of which he was Bishop, and amongst the rest there appears a page of the book of which we have here a photograph with a variety of alterations made in his handwriting or the handwriting of Sancroft, who at that time was his chaplain and acted as his secretary, which alterations were in many instances, and especially * See the Paper, No. III., page 817. 174 The Proviso of the Act of 1552 and in this particular instance, afterwards adopted by the Bishops in settling the Prayer Book of 1662. Here is the photograph of Bishop Cosin's Prayer Book. Of course the alterations are in manuscript and are not very easy to read ; but, this is an exact photograph, and therefore your Lordships have an exact reprint of the original draft in wluch tbe alterations were made. If your Lordships consider the difference between the two forms, namely, the form of 1662 and the form of 1603, and look at the alteration made by Bishop Cosin, your Lordships will see exactly what took place. It was thought better, possibly in con- sequence of the discussion with the Puritans, to follow as far as possible the very words of the 1st Elizabeth, chapter 2, the proviso to the Act of Uniformity. As your Lordships will perceive,- it was impossible to re-enact these words verbatim, because the proviso in the Act of Uniformity concludes by saying, " until other order shall be therein taken by the authority of the Queen's Majesty with the advice of her Commissioners." It was impossible to re-enact that, because the Ecclesiastical Commission had become illegal, and was not to be revived, and the consequence was that the reference to the Ecclesi- astical Commissioners had to be left out. But if those words are omitted — that is, all the words following " until," your Lordships will find that the rubric of 1662 corresponds verbatim with only a single addition, to which I shall address myself directly, with the Statute of the 1st Elizabeth. The rubric of 1662 is this, " And here is to be noted that such ornaments," that of course is substituted for "Provided always, and be it enacted," - "that sucli ornaments of the Church and of the Ministers thereof, at all times of their Ministration, shall be retained and be in use as was," they altered that into " were," I suppose for the sake of grammar, the Rubric of 1559 formed the Rubric of 1662. 175 " as were in this Church' of England by the authority of Parlia- ment, in the second year of the Reign of King Edward the Sixth." Then they leave out the words " until," &c., and there the matter stops. The only difference (with the exception of trifling differences in spelling) between the proviso of Elizabeth and the rubric of 1662, consists in the insertion into the 1662 rubric of the words " at all times of their ministration." Where did those words come from? Your Lordships will see at once Avhere they came from. They came from the rubric of the Prayer Book of 1559, and of the Prayer Book of 1603-4. The Prayer Book of 1559, has the words " at all other times in his ministration," and the same words occur in the Prayer Book of 1603-4, the only difference between that expression and the expression contained in the rubric of 1662, is that in the one they speak of ministers in the plural, and in the other they speak of minister in the singular. The Lord Chakcellok. — There is mention of " the'time of the Communion " and there is the " other times," in contradistinction to that? SiE James Stephen. — Yes, my Lord, that is so ; in the rubric of 1662, it is " at all times." It is a little more extensively expressed in the one rubric than in the other, but it has exactly the same effect; because, of course, " at the time of the Communion, and at all other times," is the same thing as to say " at all times." [Their Lordships conferred.] The way in which I read the rubric, is this, that at all times whatsoever the Clergyman is to use such ornaments as are prescribed for those times by the Prayer Book of King Edward the Sixth. At the time of the administration of the Communion he is to use what is prescribed for the administration of the Communion ; at other times, when there is no Com- munion, then he is to use what is prescribed at those other times. But at all times of his ministration he is to use those ornaments which are prescribed by the Prayer Book of Edward the Sixth. 176 Bishop Cosinprofessed to follow the Act. Your Lordships will see, that in the print given at the bottom of No. III., in Bishop Cosin's manuscript, the Bishop says in the margin, " These are the words of the act itself vide supra" and there is a very remarkable erratum, because he had obviously thought at one time of specifying the particular ornaments, and he proposed to add these words, " As were in this Church of England by the Authority of Parliament, in the second year of the reign of Ejng Edward the Sixth, that is to say, a surplice, &c." The surplice was to be specified, and the " &c."^ would cover such other ornaments as were to be used. But that is struck out upon further con- sideration, and the matter is left standing as it now stands, the Bishop considering, no doubt, that as the matter had been greatly questioned, and had excited vehement agitation, and as they did not mean to go back from what was proposed, it would -be the most convenient form to adopt the very words of the proviso of the Statute of Elizabeth, putting in only these other words : " at all times of their minis- tration," which would not alter the efifect of the proviso in the slightest degree, but which might dispose of certain particular little questions which I believe occasionally arose ; for instance, the case of a minister performing the funeral service. If it had said " in the Church," there would be room for him to say: I have only to wear the surplice in the Church, and if I am ministering in the churchyard I may take it off. Accordingly they said, in order to meet matters of that kind, of which there were many, baptisms and others, " We will use the words, ' at all times of their ministration.' " My Lords, that explanation of the words of the rubric, I submit, speaks for itself, and when you have before your eyes these four forms, of which the last is the final result, and when you have the draft The alteration not made to satisfy the Puritans. Ill corrected in the hand of its principal author, it is perfectly clear how the rubric fell into its present shape. That being the simple and natural explana- tion of the manner in which the rubric came to be framed as it is, why need one go further ? I will, however, now point out to your Lordships that it is exceedingly difficult to suppose that this form was adopted, not for that simple and natural reason, but in order to meet an objection which had been taken by the Puritans. The first difficulty to be got oyer in regard to that view is, that there was not the slightest disposition on the part of anyone at that time (and especially not on the part of the Bishops who settled the Prayer Book) to make any concessions to the Puritan party. On the contrary the policy they adopted, if I may be permitted to give expression to my own opinion, in an evil day, for the peace and prosperity of the Church, was to drive out of it all the more Protestant part of the ministers, and that purpose, as is well known, was most efiectually carried out by the way in which the Prayer Book was settled. Why then should we suppose that they would recast this rubric in a spirit, and for a purpose, altogether alien to the spirit and to the purpose which pervaded in all the rest of their doings on that occasion? As I said before, I am not quite sure that I correctly apprehend the view taken by their Lord- ships ; but, unless I misapprehend it, their Lordships seemed to think in the passage which I read, that the words " shall be retained and be in use," speak rather of time present, and that they mean to say, upon the whole, that the existing state of things shall be main- tained. Sir Robert Phillimorb. — Retained? Sir James Stephen. — Shall be retained : We will make no alteration, and inasmuch as these vest- ments have, in point of fact, been disused for a long period of time, we will retain the surplice which is now in use, we will leave on one side, and N 178 '^Retained" taken from the Elizabethan Act : so supersede, the vestments which have gone out of ■use. The answer to that suggestion is, that the word " retained " obviously comes from the Statute of Elizabeth. It is copied from that Statute ; it speaks therefore as from the time when the proviso itself speaks ; and it is a very remarkable circumstance in the construction of this rubric, that it is possible to shew by the simplest reference to facts of the widest notoriety, facts which form turning points in English history, that neither in 1662, nor at 'the date of Queen Elizabeth's Act of Uniformity, 1558-9, would it have been possible to use that word "retained" with reference to the state of things immediately antece- dent to the time when it was used. [^The Lord Chancellor and Lord Sdborne conferred]. If the word " retained " is meant to speak as from the year 1662, and if the intention is that everything then in use should continue to be in use, what would be in use then? Why, before the Act of Uniformity, in the year 1661, when this Conference took place, it is well known that the greatest possible absence of uniformity prevailed. The country had been passing through a period of civil war and revolution ; civil war provoked, revolution caused, to a considerable extent, by insisting upon vestments and ornaments and various kinds of ritual observances which were unwelcome to the people, and the consequence of that notoriously had been that at the time when the Act of Uniformity had to be passed, nothing was in possession, and nothing had been in possession for a considerable length of time. Accordingly, if you are to give that meaning to the word " retained," you will have to go back for a long period of time before you can get an existing state of things to which an appeal could be made ; and it seems to me a very unnatural way of construing a document, to place so much reliance upon that particular word. But the argument which I have just applied to the use of the word " retained" in the year 1662, applies with even greater force to the use of the word " retained " in therefore did not refer to existing practice. 179 the I'eign of Queen Elizabeth, because, when Queeii Elizabeth spoke of " retained and be in use," she spoke as a person restoring Protestantism after several years of Popery. The very object of her Act of Uniformity was to do away with the Pope and the mass, and consequently, when she speaks of what is to be retained and be in use, she goes back, not to the time which had immediately preceded her own (the reign of Mary) but to the reign of King Edward the Sixth, which was six years before. Sir Robert Phillimore, — The word " retained " does not occur in the Prayer Book ? Sir James Stephen. — Not in Queen EHzabeth's Prayer Book, but it does in the proviso to her Act of Uniformity ; and I say it has found its way into the present Pr3.yer Book from the proviso in the Act of Uni- formity passed in her reign, therefore, you must look to that Act of Uniformity to see what it means, and it obviously does not mean there that which was in force in the reign of Mary, but it means that which was in force six years before, in the reign of Edward the Sixth. Therefore, when you come to construe the meaning of the rubric of 1662, it is a fallacy to suppose that the word " retained" means that you are to retain an existing practice as against an obsolete law. I say, it means clearly and plainly what it says, viz., that you are to go back to the Prayer Book of Edward the Sixth, and that the Prayer Book of Edward the Sixth is for the future to form the standard. The Lord Chancellor. — Supposing that to be the case, may I ask you what you consider is the bearing (if it has any bearing) upon this argument of the 24th section of the Act of Uniformity of 1662 : " The several good laws and statutes of this realm, which have been formerly made, and are now in force for the unifor- mity of prayer and administration of the sacraments, within this realm of England and places aforesaid, shall stand in full force and strength, to all intents and purposes whatsoever, for the establishing and confirming of the said book, intituled * The Book of Common Prayer and Administration of n2 180 Statute 1662, effect of section 2^ upon other Acts. the Sacraments, and other rites and ceremonies of the Church, according to the use of the Church of England; together with the Psalter or Psalms of David, pointed as they are to be sung or said in Churches, and the form or manner of making, ordaining and consecrating of Bishops, Priests, and Deacons, hereiubefore mentioned, to be "^joined and annexed to this Act ; and shall be applied, practised, and put in use for the punishing of all offences contrary to the said laws, with relation to the book aforesaid, and no other/-* Sir James Stephen. — I say that the effect of that is to maintain and keep in force the Acts of Uni- formity of Elizabeth and Edward the Sixth ; that the effect is, that to this day, any one depraving the Book of Common Prayer is liable, for the third offence, to be imprisoned for life.. The effect of section 24 is to put the new Book of Common Prayer exactly in the same position as the book passed in the second year of Edward the Sixth. The Acts of Uniformity of Edward and Ehzabeth are still law, but the penalties which they contain are now applied to the Book of Common Prayer enacted in 1662, instead of the Book of Edward. I would just remark, in confirmation of that view of the law, that your Lordship will find these Acts still printed in the Revised Statutes, and that it was not considered by the learned persons charged under your Lordship's direction with the duty of repealing, spent, or obsolete Acts by express enactments, that their force was spent. This is one of the many instances in which Acts of Parliament continue to be in force long after they are supposed to be obsolete, and continue to impose penalties of great severity upon acts which would no longer be regarded from the same point of view as at the time the Statutes were passed . I could give your Lordship, if you cared to have them, many other Acts relating to religion which were in force at the date of the Act of Uniformity, and which were intended to be con- firmed, and no doubt were confirmed and continued by that Act. But, by way of further answer to your Lordship's question, I may observe that, in intro- Prayer Bk. 1636, with M.S. Notes, used in 1 661 ; 181 ducing that provision in the Act of Uniformity of 1662, Parliament followed a precedent which had been set to it in the Act which established the second Prayer Book of Edward the Sixth. That Act con- tained no independent penalties, but it treated the second Prayer Book of Edward the Sixth in the same way as the present Book of Common Prayer is treated, that is to say, it said that all the penalties which applied to the first Prayer Book were to be in force, and applied to the second Prayer Book, " to be in force in order to ratify this book," that is to say, the second Prayer Book of Edward the Sixth. I told your Lordships that I had remarkable docu- ' mentary evidence to offer in support of the argument which I should advance upon this subject, and I have partly redeemed my promise by the production of the photograph of the manuscript alterations of Bishop Cosin ; but there is another very remarkable piece of evidence upon this subject, to which I will now refer your Lordships. There has been discovered an original copy of the Prayer Book which was used at the last revision of the Book of Common Prayer. The alterations for the Prayer Book annexed to the Act of Uniformity were made in a black-letter copy of a Prayer Book published in 1636, and marginal manu- script notes and alterations were made in that Prayer Book by the persons charged with the revision of the Prayer Book in the year 1662. The copy attached to the Act of Uniformity was written from that book, and the original copy was some time ago discovered at Westminster by Dean Stanley. It has since been photo-zincographed, and- /ac similes have been pro- duced in that way. The Lord Chancblloe. — Fac similes o£ the Pr&jer Book that was altered ? Sir Jambs Stephbn. — It is a fac simile of the original corrected draft, if I may use the expression, from which the Prayer Book of 1662, the present Book of Common Prayer, was produced; and I may state that these copies were printed at the Govern- 182 proof fromit thatchangein O.Eub.wasnot " material." ment expense. Your Lordships will find a narrative about it at the beginning, and after the preface comes a page of alterations handsomely written, and I suppose it gives what were regarded as the principal alterations. The original I am told is in the House of Lord's Library. The Loed Chancellor. — This is not the sealed book ? Sir James Stephen. — No, my Lord. The Lord Chancellor. — It is that from which the sealed book was printed ? Sir James Stephen. — It is that from which the " sealed book was printed. It is what we may call the corrected draft before it was engrossed. What I am referring your Lordships to is at the page next after the preface. Your Lordships will see the word " alterations," there is a list of alterations headed on one side "old," and on the other side "new;" those obviously were regarded as the material altera- tions in the book, and my point is, although some of the alterations in the rubrics are mentioned, yet that this alteration was not regarded as important enough to be put down in the list of alterations then made. I submit — that, that fact taken together with the other matters to which I have referred, proves the inference for which I contend, namely, that the alteration was regarded as a verbal one which did not require notice. The argument which I have been submitting to your Lordships, and which refers amongst other things to the corrections made in manuscript by Bishop Cosin, does not stop with the single fact that Bishop Cosin made that correction, because I shall be able to show your Lordships some material circumstances regarding Bishop Cosin's view as to the interpretation of that rubric, and the rubric of James which preceded it. In page 642 of the judg- ment in Hebbert v. Purchas, reference is made to Bishop Cosin. It is said that in the 6th article of his visitation enquiries, Bishop Cosin enquires : — " Have you a large and decent surplice (one or more) for The Rubric, as altered by Cosin m 1661, 183 the minister to wear at all times of his public ministration in the church ?" And then their Lordships go on to say the repetition of the words, " at all times of his ministration," being " the exact words of the rubric, is very significant as a contemporaneous exposition of it by one of its framers." Their Lordships attach great importance to the views which Bishop Cosin held upon the subject of the interpretation of this rubric. That being so, it becomes material to point out what Bishop Cosin's view, upon the subject was, and I think I shall be able to satisfy your Lordships of the following facts ; first, that many years before the rubric was drawn at all Bishop Cosin drew Visitation Articles, being, I think, at that time Archdeacon, in substantially the same words or very nearly the same words as the visitation articles upon which their Lordships com- ment; next, that after drawing these visitation articles and holding various visitations in connection with them, he drew the altered rubric of which I have shown your Lordships the photograph in his own hand writing; then that, after that he issued visitation articles when he was Bishop of Durham, which visita- tion articles still continued to be substantially in the same form^ and indeed almost in the same words, and lastly, that from first to last through the whole Of Bishop Cosin's career, he believed that the use of these vestments was lawful under both rubrics. Of course if that was the view taken by Bishop Cosin, it shows conclusively that the document drawn by him was not likely to have been drawn with the intention of rendering these articles unlawful. It appears that Bishop Cosin published at diflferent times three sets of notes upon the Prayer Book. Your Lordships will find them in Bishop Cosin's works in the library of Anglo-Catholic Theology, vol. 5. These notes were notes upon the Prayer Book, containing Bishop Cosin's exposition of what he con- sidered lawful in the Prayer Book of James. The date of the first set of notes is between 1619 and 1638, and it is a note, at p. 42, upon the words : 184 consistent with his Notes on the Prayer Book, "As were in use" [at the time of King Edward] , "And then were in use, not a surplice and hood, as we now use, but a plain white alb, with a vestment or cope over it ; and there- fore, according to this rubric, are we all still bound to wear albs and vestments, as have been so long time worn in the Church of God, howsoever it is neglected. For the disuse of these ornaments, we may thank them that came from Geneva, and in the beginning of Queen Elizabeth's reign, being set in place of Government, suffered every negligent priest to do what him listed, so he would but profess a difference and opposition in all things (though never so lawful otherwise) against the Church of Rome, and the ceremonies therein used. If any man shall answer, that now the 58th Canon hath appointed it otherwise, and that these things are alter- able by the direction of the Church wherein we live; I answer, that such matters are to be altered by the same authority wherewith they were established, and that if the authority be the convocation of the clergy, as I think it is (only that), that the 14th Canon commands us to observe all the ceremonies prescribed in this Book. I should venture to differ from Bishop Cosin there, thinking that that authority is the authority of Par- liament. I have already said what I had to say to your Lordships about the canons, and do not intend to repeat it, but I certainly cannot agree with the authority I am quoting now. I quote him only to show that he considered that the rubric of 1603 did authorise the use of those vestments. There is also a second and third series of notes. I do not know that I need trouble your Lordships with more* than a very short reference to them. The last series is probably mostly before 1640. It is in the same volume of his works, from page 438 to page 441. There he says : "Such ornaments as were in use in the second year of King Edward VI.'] In that year, by the authority of Parliament, was this order set forth, in the end of the Service-Book then ap- pointed. At Morning and Evening Prayer, the administration of baptism, the burial of the dead, &c., in parish churches; the minister shall put upon him a surplice ; in cathedral and collegiate churches, and in colleges, the archdeacons, deans, president and masters, may use the ornaments also belonging to their degrees and dignities. But in all other places it shall maintaining the lawfulness of the Vestments : 185 be free for them whether they will use any surplice or not. The Bishop administering the Lord's Supper, and celebrating the Sacraments, shall wear a rochet or alb, with a cope or vestment ; and shall have also his pastoral staff. And before the Communionj upon the day appointed for the celebration of the Lord's Supper, the priest having on him an alb, with a vestment or cope, shall stand at the altar ; and where there be many priests or deacons, so many of them as be needful, shall help the chief minister, having albs or tunicles upon them." " These ornaments and vestures of the ministers were so displeasing to Calvin and Bucer, that the one, in his letter to the Protector, and the other in his censure of the liturgy, sent to Archbishop Oranmer, urged very vehemenently to have them taken away, not thinking it tolerable that we shall have anything common with the papists, but show forth our Christian liberty,'in the simpHcity of the gospel." "Hereupon, when a Parliament was called, in the fifth year of King Edward, they altered the former book, and made another order for vestments, copes and albs not to be worn at all j allowing an archbishop and a bishop a rochet only, and a priest or deacon nothing but a surplice." " But, by the Act of Uniformity, the Parliament thought fit not to continue this last order, but to restore the first again ; which since that time was never altered by any other law, and therefore it is still in force at this day." Upon the whole I submit that the authorities to which I have referred your Lordships at large, show that Bishop Cosin regarded these vestments as legal, and that while he regarded them aslegal, he did not in his visitation articles enquire for anything more than the surplice, because he knew practically that there would be no use in asking for more. Bishop Cosin did not stand alone in his opinion as to the legality of these vestments. Their Lordships in several parts of their judgment comment at considerable length upon the fact that the vestments had been disused. I believe I could, if I thought it material, giye your Lordships some scattered instances of par- ticular vestments having been used here and there in different parts of England (my friend has evidence of a chasuble which was in existence in 1770) but I do not think I should occupy your time profitably by 186 no evidence that his opinion had changed in 1661. doing so. No doubt it is substantially true that after the period I have mentioned the vestments were, as a matter of fact, disused until of late years, but it is by no means' true that it was generally or ever acknow- ledged by any person who had power to make admis- sions in that matter that they were illegal. On the contrary, I can produce to your Lordships, and I propose now to produce a series of writers of gi'eat eminence, who from time to time have asserted the legality of these ornaments — The Lord Chancellor. — Did I understand you to say, Sir James Stephen, that you had some refer- ence to make to expressions of Bishop Cosia after 1662? Sir James Stephen. — The references I have to make after 1662 are to this effect, that the visitation articles which issued after 1662, were exactly similar to those which issued before, or at least within a year or two. I think I have misled your Lordship. I had misunderstood the matter. It appears that we have no expression as to his opinion upon the sub- ject after 1662. I thought I had, but I find I have not. I am afraid I shall have to appear before your Lordships to-morrow, and if I do I shall hope to be able to speak with more certainty upon that matter. However, I was going to give your Lordships some instances of persons of eminence and learning who have said — The Lord Chancellor. — Acts done by him in the course of his visitation were public acts of an official character in the face of the world, and may be very instructive to refer to, and may have a con- siderable bearing. I do not express any opinion about it, and weight having been laid upon them in the judgment to which you have referred, it of course is quite legitimate for you to supplement them with expressions of Bishop Cosin himself. But with regard to expressions of opinion by a writer, not, as 1 understand, a legal writer on points of law — I do not want to interrupt you in any way — you will con- sider how far they can be attended to by us. Vestments, though disused, held to be lawful by 187 Sir James Stephen. — I quite feel the weight of your Lordship's observation; I feel that I am rather in the position of a man who, having put in a document, proceeds afterwards to give parole evidence of its contents, because your Lordships now actually have before you, as far as I know, tlje whole of the facts about the advertisements and about the canons, and all that has been said upon the subject. There- fore, to shew that other persons have taken the same view of them as I have submitted to your Lordships, can hardly be material. If they were right it is not necessary, and if they were wrong it is no use. I will therefore only give the names of those authors. I could do no harm, and it is done in a moment. The Loed Chancellor. — If you give us the names and references to them, perhaps it will answer your purpose? Sib James Stephen. — Quite so ; but I was going to make one remark. It is stated in the judg- ment that these vestments were used after a complete disuse over a long period of time, and of course that fact considerably affected their Lordships' minds in drawing up the judgment, and it is a matter of great weight. The only point which I wish to make about the authors to whom I am about to refer is this. It may be replied to their Lordships : True it is that the use of these things has been discontinued ; but, on the other hand, their legality has been frequently asserted. If the question of usage is altogether to be put out of the case, and the matter is to be decided merely on the legal materials which are before your Lordships, or on such others as may be supplied, I am. content. I have no more to say ; but if usage is to be employed against me, I think I ought to be at liberty to say : — The usage may be against me ; but, on the other hand, there is the repeated assertion of legality which, as far as it goes, is in my favour. The Lord Chancellor. — You will consider how far that is so. Sir James Stephen, — I will just give your Lordships the names of the authors. 188 Writers of authority from 1710 to 1845. Lord Selborne. — And the dates; it will be con- venient to have the dates as well, if you can furnish them. Sir James Stephen. — The first author is Thomas Bennet, "Paraphrase on the Book of Common Prayer," second, edition, page 2, cited by Stephens in his " Book of Common Prayer," vol. i., page 351. My friend seems to have quoted it rather curtly, and I must ask your Lordships to look at the original without wishing any disrespect to him. My reason is that it is not quoted quite fully. Then, my Lord, the next is, William NichoUs, " Commentary on the Book of Common Prayer," and the date of that is 1710. I cannot give your Lordships the page, but I suppose it will be a running commentary on the Book of Common Prayer and therefore, the part to which I wish to refer your Lordships will be his Commentary on the Ornaments Rubric. Then Charles Wheatley, " A Rational Illustration of the Book of Common Prayer." Those who agreed with Mr. Wheatley were oddly enough called " Rationalists," which is a singular anticipation of a modern word. I refer your Lordships to the 1st edition, page 32, 1710. There is also an edition in 1720. Then I refer your Lordships to " A Rational Illustration of the Book of Common Prayer," pp. 97 to 107. Oxford, 1810. Then, ray Lords, there is Johnson's " Clergymans' Vade Mecum." I quote from a copy bearing the venerable name of Wilham Scott, date 1775, page 21. I then refer your Lordships to 1 Gibson's Codex edition of 1713, pp. 361, 363. I have also references to page 297 of the edition of 1761, and there are two other passages, pages 201 and 390. The references to "the first edition are pages 226, and 362, and 472. Then there is Burn's Ecclesiastical Law, vol. iii., p. 437. The earliest edition of Burn is between 1760 and 1765, and there were eight editions of that work before 1824. This is the ninth edition. Then I refer your Lordship to an eminent living author, Opinioii of the J. Committee, in Hebbert v. Purchas. 189 Dr. Stephens, vol. i. of his Prayer Book, p. 367. I do not know how far I ought to press that, or urge it as an estoppel against him. My friend simply says that no further order was taken under that proviso. I dare say he will get out of that ; I hear him say it was in the days of his youth. Then there are one or two observations which Richard Baxter makes on the Savoy Conference, which I quote from Baxter's Life, edition of 1696, page 369. There is another passage in Baxter which does not appear to be particularly important, but it is at page 38. I say, then, my Lords, that although it has been put forward all along that there has been certainly a disuse in point of fact of these vestments for the reasons I have mentioned, a disuse which I compare to the destruction of images commented upon in Phillpotts V. Boyd, stUl their legality has been asserted on a variety of occasions from the time when they ceased to be used, till their legality was asserted in our own days by the Bishop of Exeter in a very emphatic manner on occasions which I have no doubt your Lordships will remember. Those are the observations which I have to make as to the history of the vestments. I now, my Lords, come to put my own argument upon the subject in another point of view. And, first of all, I wish to add some remarks to the comments I have made in passing upon their Lordships' judgment. I feel placed in a difficulty upon the matter, because their Lordships had not the assistance of. Counsel in arriving at their jtidgment and the effect, of that was that the judgment is addressed to a somewhat dif- ferent view of the case from that which I have been putting forward, and therefore I do not find it alto- gether easy to gather from their Lordships' judgment how the matter would have struck them if the con- siderations which have now been submitted to your Lordships had been submitted to them. As far, how- ever, as I have been able to form an opinion upon the 190 that the Advertisements had the Queen's authority, subject, their reasons would seem to be, in general, that it is scarcely possible to believe that if these vestments had been enjoined by the terms of a highly penal statute, their subsequent disuse should have arisen without some legal authority. It is not likely, they say in substance, that a highly penal law would have been violated perpetually in this manner for a long series of years, and therefore there is a strong probability that there was some legal ground for the disuse of the ornaments, and it is in connection with that that their Lordships referred to a case well known to your Lordships of McDougall v. Furrier, 4 BligKs H. L. Case, N. S., p. 433. I think if that case is read through you will find it is a lead- ing and standing authority for the general principle of the law of evidence known as, Omnia presmnuntur rite acta. It is so explained by Lord Eldon in the course of his speech to the House of Lords on that occasion. He says, you wiU presume that the formal requisites for the validity of an act creating a right have been fulfilled, where you find that a right has actually existed, and that, of course, is a well- established principle. The way in which their Lordships apply that prin- ciple to the present case is this : they say — " The authority of the Advertisements has been ques- tioned on the ground that it has never been shown that they received 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 Royal Commission and with the approval of the Metropolitan, their Lordships think this was a ' taking other order ' within the meaning of the Statute. 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 recognized by the 24th Canon of 1608-4. ''In the case ofMacdougallv. Furrier (4 Bligth's Reports, 433) * the House of Lords presumed the enrolment in Chancery of a Decree of Commissioners appointed by an Act of Henry Vni. for settling the tithes in London, not sustained hy McDougall v. Purrier ; 19 1 although no such enrolment could be found, on the prin- ciple that where instruments have been long acted on and acquiesced in by parties interested in opposing their effect, all formalities shall be presumed to have been observed." In answer to that observation of their Lordships, any one vfho reads McDougall v. Purrier will se& Aat the strong probability is that, in point of fact, the Decree had been enrolled, although no evidence could be produced at the time respecting it. It had been constantly acted upon ; the objection about the want of enrolment had never been taken ; it was in a matter of very great importance, and a very large number of decisions had been given which were grounded upon that decree, and the strong probability is that it had actually been enrolled, but that the enrolment had in some way or other been lost. But, my Lords, in this case there is no question about what was done ; because your Lordships have before you the very letters which passed upon the subject. Tour Lordships have aU the materials to consider, and to assume that the Queen gave her consent to these advertisements is a presumption, not without evidence, but, as I submit, altogether opposed to the evidence. The view which I put forward as to the character of these advertisements is, that when the whole transaction is considered, when the nature of the advertisements, the way in which they were issued, and the form which they assumed, are studied, it is obvious that they were in point of fact simply episcopal mandates issued by the Bishops who tried to do what they could by their own authority, and from whom the Queen, for reasons of her own, with- held that authority which it was in her power to give. That is altogether a diflferent case from McDougall V. Purrier^ and has no sort of connection with it. Their Lordships make further statements with regard to the advertisements, and to other parts of the case, upon which I must make a word or two of comment. They say, for one thing, " There is no 192 nor by the alleged Royal Commissions. doubt that the advertisements were carried into effect as legally binding, and were enforced by Eoyal Com- missions." No Royal Commission is cited, and there- fore I am unable to say what the Royal Commissions were which their Lordships had in their mind on the occasion, but I think I could refer your Lordships to some Royal Commissions which were issued about that time upon Ecclesiastical subjects, and which had no reference whatever to this question of vestments, but did, on the contrary, refer, and refer directly, to a great variety of other, subjects which had nothing whatever to do with the advertisements, and would not authorize the destruction of vestments. In fact, the great object which the Royal Commissioners would appear to have had in view during Elizabeth's reign, was to produce as much uniformity as possible, and to correct the different irregularities which had arisen. As I say, I am unable to teU what Commissions their Lordships had in their minds, and I can there- fore only do what I can to give an account of some few of the Royal Commissions about that time. I do not know whether my friend will be able to give others. The Lord Chancellob. — Had not you better wait? To cite a number of commissions for the purpose of shewing that they had nothing to do with the matter would be useless. Sir James Stephen. — I entirely agree with your Lordship. I would further observe that their Iiordships refer in a great many places to various Visitation Articles issued by the Bishops. They refer to them at page 638, where they say that " The Yisitation Articles of the Archbishops and Bishops about this time show that the operation of the advertisements had been rapid and complete." They refer to them again at page 642, where they mention Bishop Cosin's enquiries. They quote his enquiry : " 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 ?" Inquiry for Surplice^ by Cosin and others, did not 193 I could shew your Lordship, if it were necessary to do so, that that enquiry was issued under the Prayer Book of 1603-4, and not under the Prayer Book of 1662. It was issued, I believe, early in the year 1661-2, and it was put out at a time before the new rubric had been enacted. The consequence of that is, that Bishop Cosin's view as to the legality of the vestments is consistent with his having put out this enquiry about the surplice, and that one fact goes a very long way to shew what the true value of these Visitation Articles is. There is no doubt that the surplice is the only thing enquired for by the Bishops, but, at the same time, if it is proved to demonstration by those opinions of Bishop Cosin's, that a very eminent Bishop, who regarded the vest- ments as legal, enquired only for the surplice (and that for the very best possible reason that it was no good to enquire for what was notoriously non- existent,) all these Visitation Articles are perfectly consistent with the view which I present to your Lordships, that the vestments, though legal, had come to be disused. Lord Selbokne. — Can you tell me when Cosin was made Bishop, and when he was made Arch- deacon? Sir James Stephen. — I am told he was created Bishop of Durham on the 2nd December, 1660; and it appears that the Visitation Articles, from which their Lordships quote, are really to be dated in the year 1661. Lord Selbornb. — Before the argument is con- cluded, perhaps you will be able to tell us when he was made Archdeacon? Sir James Stephen. — He was made Archdeacon in September, 1625; in 1660 he was made Bishop; in 1661-2 he brought out these Visitation Articles, and in 1662 the Act of Unformity was passed ; and at various periods, coming down to 1640, he wrote these notes, shewing that, in his opinion, albs and chasubles and other vestments were lawful. The result of that 194 exclude Vestments: shewn by Cosines Notes. is, that at a time when he thought these albs and chasubles were lawful, he published the Visitation Articles, enquiring for the surplice only, the conclu- sion from which is — that you cannot infer that a Bishop regarded the vestments as illegal, because he enquired for the surplice only. That is the whole of the argument, when it comes to be thoroughly carried out. There are some additional observations which their Lordships make in their judgment upon this matter, upon which I will just say aword or two. They say they think that, in prescribing the surplice only, the adver- tisements meant what they said, " the surplice only, and that strong steps were taken to insure that only the surplice should be used." It is true that only the "surplice is prescribed in the advertisements, but it is hardly accurate to say that they prescribe the surplice only, in the sense of the surplice, to the exclusion of everything else : and certainly their Lordships, when they said that the advertisements meant what they said ■ — the surplice only — cannot be meaning to quote — because there is no such expression to be found in the advertisements. Sir Robert Phillimorb. — The word " only " does not occur there ? Sir James Stephen. — No, my Lord, certainly not. The only observation made by their Lordships which that leaves for me to deal with, is the observation upon the improbability that this Act would not be enforced. Lord Justice James. — What is the mis-quotation you were commenting upon? Sir James Stephen. — I do not put it as a mis- quotation — Their Lordships " think that in prescribing the surplice only, the advertisements meant what they said, the surplice only." I said, their Lordships cannot, in this place, have been intending to quote, because those words do not occur yiewofj. Committee^that long disuse of Vestments 195 in the advertisements, nor do any words like them occur. Therefore, it is their Lordships' own interpre- tation of the effect of the advertisements. Sib Egbert Phillimore. — It is not put as a quota- tion ; it is meant that that was in substance what was done? Sir James Stephen. — It is using the word " only" as if it was " exclusively." The last observation which I have to make upon this part of the subject is, a remark or two upon ex- pressions which occur in different parts of the judg^ ment, to the effect that it is incredible that the law of the land should have been systematically broken for so long a time, and that their Lordships are unwilling to adopt an interpretation of the rubric, which would involve, as a consequence, a persistent breach of the law of the land. I will just read what they say upon that subject on page 647 : "There is no doubt of the practice. For 180 years the vestment was never worn. And thus there would be the unusual occurrence of a Statute repealing 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 consent to all and everything contained in the Book of Common Prayer, but by the framers of the Eubrio themselves immediately after the con- firmation of it by Act of Parliament. Nor is there, during that time, one single instance of calling to account, or cen- suring any one for his particular share in a universal violation of the law. It appears plain to their Lordships, from these facts, that the idea of the repealing power of the Rubric is a modern one." As to the repealing power of the rubrics, and as to the general way in which this case is to be put, I have some remarks to make which I defer for the present, but I propose now to deal with that observa- tion of their Lordships. I hope your Lordships will not allow it to exercise with this Court the influence which it appears to have exercised a few years ago, because nothing is easier than to quote instance upon instance in which the express words 2 196 implies illegality, disproved by other of highly penal Acts of Parliament have been con- stantly, systematically, and openly broken for many years together, and in which no person whatever has been called to account for the breach of them. Such a result is one of the incidents inseparable from the history of a country in which every party of men and every shade of opinion from time to time obtains a prominent and commanding position, and attempts to bind its own views and wishes upon succeeding ages. The inevitable effect of that is, that you get a quantity of legislation which becomes practically obsolete, and which is never enforced. And of no subject is that so true as of subjects connected with religion. I could give your Lordships instance upon instance from the Prayer Book itself, where the plainest prescriptions of the Prayer Book are con- stantly, habitually, and with perfect impunity, violated by all manner of persons. I will take two cases, one of which is precisely in point, because it forms part of this very matter. Their Lordships decided in the Purchas case that the Cope was not only a lawful vestment, but a vestment which every Bishop was bound to wear when he celebrated the com- munion, and that he could not lawfully do otherwise. I appeal to the experience of the members of the Right Reverend Bench who are now present, as to how many Bishops have ever worn Copes on those occasions. The Cope, my Lord, has notoriously been disused utterly. Curious investigation has discovered Copes in the Cathedral of Durham, and there are, I believe. Copes which are worn at coro- nations by the clergy of Westminster Abbey; but with those trifling exceptions the cope has been as rare as the chasuble ; and yet, by their Lordships' own judgment the cope under certain circumstances is as compulsory as the surplice itself. Take another instance : the canons are regarded by their Lordships as having for this purpose the force of law, and as having power amongst other things to repeal an Act of Parliament. Now, I would refer your Lordships instances of disregard of undisputed Rubrical 197 to the 74th canon, and ask you to say whether that has the force of law, and has power to impose obliga- tions on the clergy, and whether it has not been systematically violated on every occasion. After a preamble about " The true, ancient and flourishing churches of Christ," it provides : " That the Archbishops and Bishops shall not intermit to use the accustomed apparel of their degrees. Likewise all DeanSj Masters of Colleges, Archdeacons and Prebendaries, in Cathedral and Collegiate Churches (being Priests or Deacons), Doctors in Divinity, Law, and Physic, Bachelors in Divinity, Masters of Arts and Bachelors of Law, having any Ecclesiastical living, shall usually wear gowns with standing collars and sleeves straight at the hands, or wide sleeves, as is used in the Universities, with hoods or tippets of silk or sarcenet and square caps. And that all other ministers admitted or to be admitted into that function shall also usually wear the like apparel as is aforesaid, except tippets only. We do further, in like manner, ordain that all the said Ecclesiastical persons above mentioned, shall usually wear in their journeys cloaks with sleeves, commonly called priests' cloaks, without gua,rds, welts, long buttons, or outs. And no Ecclesiastical person shall wear any coif or wrought nightcap, but only plain nightcaps of black silk, satin, or velvet." The whole of that provision is obviously obsolete. There are other provisions of the same sort relating, not merely to dress, but to the actual service itself. One half of this rubric, which has been so much discussed, is devoted to ornaments; but the other half of the same rubric is devoted to daily service. It begins thus: "Theorder for morning and evening prayer daily to be said and used throughout the year ; " and it declares that '' the morning and evening prayer shall be used in the accustomed place of the church, chapel, or chancel, except it shall be other- wise determined by the Ordinary of the place." Now, I ask, how often that has been observed? Was it ever observed at all till modern times in any church? In how many churches is it observed now? Is not that every bit as legal as the latter part of 198 directions; and by notorious violations of the same clause? There are a great variety of other matters to which I might refer. The Athanasian Creed is directed to be read on a great number of days. According to the usual practice, many of those days are not observed as days of public ■worship at all. I do not know, I am sure, whether, if they were observed, the Athanasian Creed would be read upon them; but I venture to say that in a great many churches it would not. Take again the injunctions in the rubric about the public catechising of children. Parents and masters are required to bring their children to church to be catechised, and the clergyman is duly to catechise them at a certain appointed time in the service. How often is that done, and how often is ths-t rubric violated and broken through, and in how many churches? Look again at the extreme strictness with which the rubrics relating to the administration of the Communion are construed. They are so strictly construed, that there is a difficulty in saying that a man may move or turn, or do anything with- out a positive direction in that behalf. In how many churches does it happen that the clergyman leaves the north end of the table, or wherever else he may be, goes into the vestry, changes his surplice for a black gown, oiFers in the pulpit a prayer, often an ex tempore prayer, at any rate a prayer not in any way prescribed by the Prayer Book. While he is so engaged the congregation is singing a hymn not in any way authorised. After the sermon is over he goes back to the vestry, and if there is a Communion, dresses himself in his surplice again, and comes back to the Communion Table. Is not that equally a systematic violation of the rules of the rubric? If that is so, why should we say that this cannot be the law because it has been violated? I do not wish to be wearisome, but there is no limit to the illus- trations which might be given. Take the case of the churchwardens ; how often do they present notorious evil-livers, which it is their duty by law to do ? undoubted Qivil and Ecclesiastical Laws. 199 Take the criminal jurisdiction of the Ecclesias- tical Courts, over laymen. Its existence is undoubted. If your Lordships look at the two statutes which regulate various matters relating to the Ecclesiastical Courts, you will find that any man who commits a deadly sin, or any immorality, might be sentenced by the Ecclesiastical Courts to six months imprisonment. I should like to know how often that has been acted upon, or is likely to be"' acted upon ? Or, look again at the en- actments relating to Jesuits, contained in the Catholic Emancipation Act, passed in the year 1829. Why, any Jesuit who comes into England, commits a misdemeanour, is liable to be banished for life, and if he remains three months after the sentence of banishment, he is liable to penal servitude for life. How often has that been acted upon? There are similar enactments a.pplying to persons taking monastic vows and entering monastic institutions There, my Lords, is a case of one of the most memorable Acts in recent history, passed after the greatest possible disr cussion, and as the close of a controversy of many years standing, containing a series of some of the severest penalties known to the law, and which never have been acted upon at all. To conclude the subject, I may just mention the Ecclesiastical Titles' Bill, which passed into an Act. How often was that put in force ? How often was the Ecclesiastical Titles' Act openly and publicly violated by the very persons against whom it was levelled ? It was never once put in force. After all these illustrations, to which I could add many more, if I did not wish to avoid the appearance of overloading the case, I would, ask whether any inference can be drawn from this particular omission? Let me conclude my argument upon this part of the subject, by asking your Lordships to consider, what, after all, this omission comes to. This transgression, which seems to their Lordships so impossible that they cannot think that it was really committed. What is it? It 200 The Antiquarian character of the Rubric is an omission to wear a dress whicli was only to be worn at the occasional ceremony of the Administra- tion of the Communion only, and the order to wear it is not an order given by express words, but by reference to an Act of Parliament referring to an obsolete Prayer Book, the Act of Parliament and the Prayer Book being both of them documents of which no common person could by any possibility be aware. Where is the improbability that clergymen scattered up and down the country, who had many more important duties to discharge than that of looking into Acts of Parliament passed many years before, should follow, not perhaps the strictly legal use, but the common use to which they were well accustomed, which they saw in force all around them, and which they understood it to be their duty to follow. The mere fact that there was lying in wait a long way back an old Act of Parliament of which they knew nothing, which referred to, and to a certain extent embodied a book, of which, if possible, they knew less, surely, is a fact which would exercise no influence at all over their conduct and which they would be morally certain to leave altogether un- noticed. Of late years this matter has attracted great attention, persons have enquired very carefully into the law, and they have, by elaborate investigation^ discovered, as they think, that these vestments are prescribed by law. My Lords, if that is the case, I humbly submit, not only that they have a right to wear them, but that it is their duty to do so, and that it would indeed be hard that they should be punished for acting according to the express words of an Act of Parliament. The Lord Chancellor. — How much longer do you suppose you will be upon this part of the subject ? Sir James Stephen. — It is always. difficult to say how long one will be in a case of this sort. I shall be some little time, because I wish to emphasise what I said in the earlier part of my argument, that would partly account for long neglect. 201 all this about advertisements and injunctions and the rest of it, is not my case at all ; that these are mere answers to the objections to our case, which is one of extreme simplicity, and I wish to show your Lord- ships that, really and truly, I might have left out, perfectly well, the whole of the argument with which it has been my duty to trouble you upon the injunc- tions, advertisements, and canons. The Lord Chancellor. — It is rather tantalising for us to hear you say that. Sir James Stephen. — It cannot be more tan- talising to your Lordships than it is to me, but, as I should have had to bring it out by way of reply, sooner or later your Lordships would have been troubled with it. I have gone into it, in my opening address, out of respect for the judgment upon which I have been commenting so freely; it is necessary to follow where that leads, and accordingly it is necessary to shew where I conceive their Lordships to have been mistaken; but, I wish to point out to your Lordships, that, in fact, this matter is shut up in a very narrow compass indeed, and that the question is not a question of injunctions or adver- tisements, but a question as to the plain words of an Act of Parliament, which, as I submit, speak entirely for themselves. The Lord Chancellor. — Then I think we will ask you to break off here. {Adjourned to the morrow at half-past 10.] 202 The case as to the Vestments redly Thursday, January 25th Sir James Stephen. — May it please your Lord- sbips, when I concluded my argument yesterday, I was saying that I had a few additional observations to address to your Lordships upon the subject of these vestments, and that I proposed to show that the greater part of the argument with which I have been occupying your Lordships' time for two days past, was really unnecessary to the decision of this case; and I received from the Lord Chancellor the inti- mation that I had held forth to your Lordships a tantalising view as to what might have been in the way of brevity. My Lords, I hope that I have not really wasted time, because T have found it necessary to answer in the fullest detail all the matters which had been set out by their Lordships in the judgment in Hehhert v, Purchas^ as being the reasoning Avhich had led them to the conclusions specified in their judg- ment. But I would respectfully remind your Lord- ships that at the beginning of my argument I pointed out that my own independent case upon this matter was a case of the most extreme simplicity, that I take my stand upon the Statute of 1662 as inter- preted not only by its own obvious meaning, but by the express words of Liddell v. Westerton, followed in Martin v. Mackonochie ; and that my case was that the express words of that statute expressly authorise the course which has been pursued by my client, and that anything that was said and done in the course of the 16th century, either by Her Majesty Queen Elizabeth, or by the Ecclesiastical Commissioners, or by the Bishops upon their pastoral authority, was entirely subordinate to the Act of Uniformity of 1662 ; that it occupied one of two positions with respect to that Act, either the position of being superseded by it, or the position of being rests upon the Eubrie of 1662 alone. 203 repealed by it. As regards supersession, I may simply remind your Lordships of all that I have said, and I say that there was nothing in any of those documents, nothing in the injunctions, nothing in the interpretations of the injunctions, nothing in the advertisements of 1566, and nothing in the canons of 1604, which required in any way whatever to be repealed, in order that the Act of Uniformity might have full force and effect. At the same time, if there should be any discrepancy between any or all of those documents and the Act of Uniformity itself, then, my Lords, I say that the Act of Uniformity is absolute statute law, and that its plain sense is not to be con- trolled by the ambiguous and obscure contents of documents of which the legal character is even more ambiguous and obscure than the expressions con- tained in them. My Lords, I propose now, by way of concluding my argument, and by way of enforcing the observations which I have made, to call to your Lordships' attention some of the observations made by their Lordships in the case of Hebbert v. Purchas, and I propose to proceed to examine with them the two cases of Liddell v. Westerton and Martin v. Mackonochie, and with that I shall conclude this first and much the most laborious and lengthy portion of what I am well aware is an exceedingly lengthy and tedious argument. My Lords, at page 644 of the report, your Lordships say : "Their Lordships are now called on to determine the force of the rubric of 1662, and its effect upon other regula- tionSj such as the canons of 1603-4. They do not disguise from themselves that the task is difficult. The learned jiidge in the Court below has said that ' the plain words of the statute^ according to the ordinary principles of interpre- tation, and the construction which they' have received in two judgments of the Privy Council, oblige him to presume that the ornaments of the minister, mentioned in the first Prayer Book of Edward the Sixth, are those to which the present rubric referred.^ ' They are, for ministers below the order of Bishops, and when officiating,^ " &c. Upon this their Lordships make a variety of observa- 204 The meaning of the Rubric plain and obvious. tions with which I have dealt in the course of my argument on the different documents referred to, and therefore I need not repeat them. Of course, it is not for me to criticise in any but the most perfectly respectful spirit the statements made by their Lord- ships in delivering judgment. I confess, however, that, to my apprehension, the difficulty lies, not in construing the rubric and the statute, but in finding any grounds whatever for giving to them but one perfectly plain and obvious meaning. To adopt as my own the words of a late member of your Lordships' Board, who was entitled to and received as much vene- ration as any judge that ever sat on any bench, I would liken the case to the case of a regulation with regard to the wearing of any other kind of dress, and I would say, supposing there was an Act of Parliament which said that the same uniform shall be retained and be in use as was in use in the days of Henry the Eighth by the yeomen of His Majesty's Guard, and suppose that uniform had been set out in some docu- ment referred to on some public occasion. What could be the meaning of that ? What would any ordinary person think upon reading these words? Why, to use the words of the lamented person to whom I refer, he would say simply, " Look at the document, whatever it is, that specifies the uniform, and there you have your rule." I would say in the same way, look at the words of this ornaments rubric, and let us suppose that any person absolutely unacquainted with all the minutiae of antiquarian ecclesiastical learning, of which I have become the mouthpiece before your Lordships were asked what these words meant, could they possibly put upon them any other meaning but one, namely, that whatever was legal at the time of Edward the Sixth is legal now, and if you want to know what that is, you are to look at the statute in which the ornaments are specified. My Lords, I confess that my difficulty in arguing this part of the case is the difficulty which one feels The Arches Judgment in Hebhert v. Purchas 205 in proving any proposition which appears to one's own mind, (perhaps through some defect in its con- struction, inasmuch as minds of so much greater eminence have seen the difficulty) to be perfectly plain. But, when I come to look at the interpretation which your Lordships' predecessors in this Court have put upon them, I confess that it appears to me that the learned Judge who decided Hebhert v. Purchas in the Court below, and who now sits at your Lordships' Board, said nothing in the passage which I read to your Lordships, which was not warranted in the most complete manner by the Judgments in the two cases to which he referred, of Liddell v. Westerton and Martin V. Mackonochie. In order to make this plain, I think it will be well that I should call your Lordships' attention a little more fully to those cases, and remind your Lordships what were the questions at issue ia them, what was the decision at which the Court arrived, and what was the ratio .decedendi upon which that decision was based. The question in Liddell v. Westerton was the legality of a certain cross which was put up as an architectural decoration on an altar screen, and upon that different decisions were given, first by Dr. Lush- ington in the Consistory Court of London, then by Sir John Dodson, as the Dean of Arches, and subse- quently at your Lordships' Board. Dr. Lushington held that the cross was an ornament, but that the cross was not justified by the ornaments rubric, and your Lordships will allow me to read a very few words out of that great Judge's Judgment upon that subject. They occur at the bottom of page 31 of Moore's Report of Liddell v. Westerton, and I read them, not only on account of the person by whom they were uttered, but also because they were ulti- mately confirmed and acted upon by your Lord- ships' predecessors : " I am well aware/' says Dr. Lushingtoiij " of the irresis- tible argument that the last Statute of Uniformity, by referring to the First Book of Common- Prayer of Edward 206 justified by previous decisions of Sixthj excluded, not only the second Book of Commoii Prayer, but everything else effected in the interval between 1549 and 1662, whether by Act of Parhament, or by Canon, which could or might have altered what existed in 1549 ; and, consequently, I am equally well aware that nothing done from 1549 to 1662, however lawful during that period, has in itself force or binding authority after the Statute of 1662 came into operation. But though I take this to be a proposition undoubtedly true, it unhappily affords me very little assistance towards discovering what were the orna- ments of the Church in use by authority of Parliament in the second year of Edward the Sixth." i)r. Lushington, after putting that forward as the foundation of the wTiole of his judgment, proceeds at considerable length to discuss the question of the meaning of the word " Ornaments," and he arrived at the conclusion, on grounds which I need not refer to now, that a cross, forming part of the architectural structure of the church, was an ornament within the meaning of the rubric. He arrived at the further conclusion that it was not one of the ornaments prescribed in Edward the Sixth's first Book, and that therefore it was illegal. I pass over Sir John Dodson's view of the case, because it is not material to the present purpose. The view which your Lord- ships' Board took upon the subject, although it differed from that of Dr. Lushington as to that particular cross being an ornament, coincided with the view of Dr. Lushington as to the interpretation of the ornaments rubric, namely, as to the irresistible argument, as he called it, on which his whole view was based. It agreed with Dr. Lushington in holding that, whatever was authorised by the first Prayer Book of Edward the Sixth, was also author- ized by the Act of Uniformity, and was accordingly then the law of the land ; but they further held that an architectural cross was nob an ornament within the rubric at all, and, therefore, that it was not excluded by the enumeration of ornaments in the ornaments rubric. My Lords, the report by Mr. Moore of the Judgment of the Privy Council in the Consistory and Arches Courts and 207 Liddell v. Westerton, leaves, as I conceive, no doubt whatever on that point. I begin at page 155. Their Lordships say : "Dr. Lushington seems to have held that the question was, according to the rubric of the present Prayer Book, what ornaments could be shewn to have been in churches in the second year of the reign of Edward the Sixth, by authority 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 certain royal injunctions, and an Act of Parliament, against the use of Images, amongst which he considered crosses to be included." Then their Lordships go on to consider the meaning of Ornaments, and at page 156 the marginal note by- Mr. Moore is " Application of the word ' Ornaments ' in the Rubric." The Judgment says : " Their Lordships, after much consideration, are satisfied that the construction of this rubric which they suggested at the hearing of the case is its true meaning, and that the word ' Ornaments ' applies, and in this rubric is confined to those articles the use of which in the Services and Ministra- tions of tho Church is prescribed by the Prayer Book of Edward the Sixth." The Lord Chancellor. — Did any question arise in Liddell v. Westerton as to the effect of intervening Acts, such as the Advertisements of Queen Elizabeth ? Sir James Stephen. — I do not think the advertise- ments are specifically referred to in lAddell v. Westerton, but the injunctions are referred to very much. The question in Liddell v. Westerton turned mainly upon them, at least in one of the Courts. The injunctions contain directions about images, and Dr. Lushington's view of the matter was that the cross was an ornament and not an image. He said, looking at the question of Ornaments, I consider that the whole subject of ornaments is regulated by the Act of Uniformity, whatever may have happened with regard to injunctions. The Privy Council agreed with him in supposing that the question to be 208 of the Jud. Committee in Liddell v. Westerton. decided was as to the use of Ornaments, and also that the exclusive authority with reference to Ornaments was the Ornaments Rubric of Edward the Sixth, by virtue of the authority of the Act of 1662, The Injunctions were brought in principally by Sir John Dodson. The Lord Chancellor. — Then there is a refer- ence, is there not, in the judgment, to certain inter- vening legislation on the subject of images ? Sir James Stephen. — It comes in, ray Lords, inci- dentally and indirectly in this manner. Sir John Dodson, in the Court of Arches, regarded the cross as an image. Then he said the injunctions of Eliza- beth forbade images, and, therefore, the cross being an image, forbade crosses. The cross is illegal, because it is an image, and as such is forbidden by the injunctions of Elizabeth. In Liddell v. Westerton^ their Lordships did not directly consider the question of the legal force of Queen Elizabeth's injunctions, because they were of opinion that the cross was not an image, and therefore the injunctions did not apply to it ; but in the case of Phillpotts v. Boi/d, to which I shall have to refer, on the last part of this case, your Lordships held very recently that the injunc- tions of Elizabeth were not law, but were only to be regarded as an administrative act. The Lord Chancellor. — ^Putting aside the case of Phillpoits V. Boyd for a moment, in Liddell v. Westerton^ if I understand you correctly, this Board held that it was unnecessary to consider the effect of the inter\'ening legislation as to images, because the cross was not an image ? Sir James Stephen. — Yes, my Lord. I should not exactly put it in that way. They did not con- sider the effect of intervening legislation, or whether there was any intervening legislation. They did intimate that a cross was not an image, and that intimation that a cross was not an image would, of course, render it unnecessary to consider the effect of the injunctions. I do not cite Liddell v. Westerton History and meaning of the Rubric stated by 209 as an authority for saying that the advertisements were not law. I only cite it as an authority for shewing what the meaning of the Act of Uniformity is upon this subject. My Lords, I will now proceed to show how their Lordships treated the Act of Uniformity in this case of Liddell v. Westerton. First of all, they determine that this architectural cross is not an ornament for- bidden by the Act of Uniformity ; that is the substance of it. Of course, in order to arrive at that conclu- sion, it was absolutely necessary that their Lordships should hold what the Act of Uniformity does mean, and for that purpose they go through a considerable discussion, which your Lordships will find at pages 158 and 159 of Moore's Report, which is to the following efiect : — They had previously been speaking of ornaments, and then they go on — " If reference be now made to the alterations in these matters introduced by the second Prayer Book of Edward the Sixth, and the subsequent Rubric to this Prayer Book of Elizabeth, the meaning will be sufi&ciently 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 Elizabeth, 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 the Sixth. 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. c. 2, was passed." Then the proviso is set out; and it is said — " The rubric to the new Prayer Book^ framed to express the meaning of this proviso, is in these words," P 210 the Judicial Committee in Liddell v. Westerton. Here they read the proviso, which is printed in parallel columns before your Lordships, and they add — " Here the term ' ornaments ' is used as covering both the vestments of the minister 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 will be observed that this rubric does not adopt precisely 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 thereof shall be retained and be in use ' ; the Rubric, ' that the minister shall use such ornaments in the church.' " The Rubric to the Prayer Book of January 1st, 1604, adopts the language of the Rubric of Elizabeth. The Rubric to the present Prayer Book adopts the language of the Statute of Elizabeth ; but they all obviously mean the same thing, that the same dresses and the same utensils, or articles which were used under the first Prayer Book of Edward the Sixth, 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." I do not know how language can be made more express or emphatic than that. Their Lordships say, obviously, in the first paragraph, which I read, that these two documents express the same thing in difi'er- ent words. The words of the Statute are in the second column of the paper before your Lordships : " Such ornaments of the church, and of the ministers thereof, shall be retained and be in use." The rubric, which was framed to express the Statute, sa:ys, that " the minister shall use such ornaments in the church." Surely, my Lords, it is absolutely certain from that, that in delivering their judment in Liddell v. Westerton^ their Lordships were of opinion that the two expressions, " such ornaments shall be retained and be in use," and, " the ministers shall use such ornaments," were, to use their own words, two ways of expressing the same thing. My Lords, that is Liddell v. Westerton. I have called your Lordships' attention to the judgment in Hebhert Inquiry of the present Court as to the 211 V. Purchas^ and I need not trouble you with it again ; but the whole decision in Hebbert v. Purchas, as far as I can see, turns on that minute variation in phrase- ology, which their Lordships expressly declare in Liddell v. Westerton to be nothing more than a slight verbal alteration, and two ways of expressing the same thing. So much, my Lords, for the case of Liddell v. Westerton, in regard to this part of the matter. Now, will your Lordships turn from Liddell v. Westerton to the case of Martin v. Mackonochie, the report of which is in the Second Law Reports, Privy Council Appeal Cases, page 390? The Lokd Chancellor. — Before you pass to that case, I should like to ask you this question, for the purpose of receiving some information. At page 159 of Liddell v. Westerton, where you have read, this observation is made: " It will be observed that this rubric," that is the rubric in the Prayer Book of Elizabeth, " does not adopt precisely the language of the Statute," that is the Statute of Elizabeth : " But expresses the same thing in other words. The Statute says: 'such ornaments of the church and of the ministers thereof shall be retained and be in use,' the rubric ' that the minister shall use such ornaments in the church.' " Without inquiring whether there is anything more than a verbal difference between the Statute and the rubric, what I want to ask you is this : Do you consider that the rubric in the Prayer Book of Elizabeth, if it differs from the Statute, has any independent authority? Sir James Stephen. — No, my Lord, I cannot see that it has any. The Prayer Book of Elizabeth is substantially, as I understand it, the second Prayer Book of Edward the Sixth. The Lord Chancellor. — Quite so. And in the first Prayer Book of Edward the Sixth there was a different rubric altogether ? p 2 212 variation of language in Elizabethan Rubric. Sir Jambs Stephen. — Yes, quite different, an absolutely different rubric. The Lord Chancellor. — Then, in preparing for the press the Prayer Book of Elizabeth, that was dropped out, and whoever prepared it appears to have inserted this rubric as an impression of what was contained in the Statute? Sir James Stephen. — No doubt, my Lord. The Lord Chancellor. — If it were the case — I do not suggest it was the case — that it departed from the Statute in one respect, so far as it departed from the Statute it would not have any authority ? Sir James Stephen. — Certainly not? The legal position of the case I take to be this: first, the Prayer Book of Elizabeth, or the second Prayer Book of Edward the Sixth, subject to the introduc- tion of the ornaments rubric, from the first Prayer Book and some other statutory alterations ; but with regard to this case, that is the important part. The Lord Chancellor. — Perhaps it would be correct to say, subject to the introduction of that clause of the Statute? Sir James Stephen. — ^Tes; the clause of the Statute must in fact be read into it, The view of the Statute taken by the persons who prepared and issued, what is called the Prayer Book of Elizabeth, which sought to give effect to the Statute, is conclu- sively shown. I put it as their view expressed by the rubric which they inserted. Lord Selborne. — It is merely a mode of reference to the Statute? Sir James Stephen. — Well, my Lord, we have heard a good deal of contemporanea expositio in this case, and you can hardly have a much stronger one than that which is given by the official publication of a Prayer Book which it would have been a high misdemeanour to publish without authority. You have an official publication of the Prayer Book by the very persons who had drawn the Statute, and under the very same authority, and they say that is the meaning. Interpretation. of Rid), by J. C.,LiddellY. Wesierton^ 213 Lord Selborne. — That is a very just observation. Sir James Stephen. — I put that as the strongest possible contemporaneous exposition of the Statute. Now, my Lords, I was going on to the case of Martin V. Mackonochie, the report of which is in the Second Law Reports, Privy Council Cases, and the passage I refer to is at pages 390 to 392. The point at issue in that case was the legality of lights upon the altar, and they were held by your Lordships' Board to be illegal. It is the converse to a certain extent of Liddell v. Westerton^ because they were ornaments and were not within the rubric. In Liddell v. Westerton, the cross was held to be legal because it was not an ornament, and was therefore unaffected by the rubric. In Martin v. Mackonochie the lights were held to be illegal because they are an ornament and are excluded by the rubric, but in each case the interpretation put upon the rubric is precisely the same. Martin v. Mackonochie is remarkable principally for this, that it repeats and confirms, if it needed any confirmation, in the strongest form the doctrine laid down in Liddell v. Westerton — " The rabric or note as to ornaments in the commence- ment of Prayer Book is in these words." And then follow the words : " The construction of this rubric was very fully considered by this committee in the case of Westerton v. Liddell, already referred to; and the propositions which their Lordships understand to have been established by the judgment in that case may thus be stated : ' First, the words authority of Parliament ' in the rubric, refer to and mean the Act of Parliament 2 and 3 Edward the Sixth, c. 1, giving Parlia- mentary effect to the first Prayer Book of Edward the Sixth, and do not refer to or mean canons or Royal injunctions, having the authority of Parliament, made at an earlier period. '^ That is not relevant to the present case. It refers to the old Ecclesiastical law before the Reformation. " Second; the term ' Ornaments' in the rubric, means 214 confirm.ed by J. Committee^ Martinv. Mackonochie; those articles the use of which, in the services and ministra- tions of the church is prescribed by that Prayer Book. Third, the term ornaments is confined to these articles/' Then, fourthly, which is material to this matter : " Though there may be articles not expressly mentioned in the rubric, the use of which would not be restrained, they must be articles which are consistent with, and subsidiary to, the service, as an organ for the singing, a credence table from which to take the sacramental bread and wine, cushions, hassocks, &c. 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." In other words, their Lordships affirm all that is said in Liddell v. Westerton ; they re-affirin it with the utmost particularity, and clear away, if I may say so, every possibility of misconstruction. The authority of Parliament means this Act, and it refers to this Prayer Book, and the questions which have been raised about the dates of publication and so on, are immaterial ; the word " ornaments," mean the articles, the use of which in the services or minis- trations of the Church, is prescribed by that Prayer Book. Now, my Lords, it is not an inconvenient plan to test the real meaning of any document of this kind, by substituting the words referred to, for the words of reference, and reading the words re- ferred to as part of the. document in which they are referred to. The words referred to are : "Such ornaments shall be retained, and be in use as were in this Church of England by the authority of Parliament in the second year of the reign of King Edward the Sixth." That we are told is equivalent to those things which were prescribed by the first Prayer Book of Edward the Sixth. In Hehbert v. Purchas we find that the things prescribed in that Book for the Com- munion Service are these : " Cope, vestment or chasuble, surplice, alb and tunicle ; in all other services the surplice only." and by substituting the names of ^''such Ornaments." 215 The words of the ornaments rubric are — " And here is to be notedj that saoh 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 the Church of England, by authority of Parliament, in the second year of the reign of King Edward the Sixth." Now substitute the names of the things referred to for the words of reference, and we get-^" The orna- ments of the ministers shall be, when officiating at the Communion Service, cope, vestment or chasuble, surplice, alb, or tunicle." If those substitutions are made, it seems to me it is like working out a mathematical equation. 'I'he ornaments rubric interpreted by the cases to which I have referred, exactly work out that result, they are an express and direct order that the clergyman shall use these vestments at that time. My Lords, I cannot put the case more strongly, or carry it further. I have to say so much, and trespass so long on your Lordships' indulgence, that I wish to put matters as shortly as 1 can, but if your Lordships go through the Judgment in Hebbert v. Purchas, and are good enough to bear in mind nfy argument upon this subject, you will find that I have addressed myself, well or ill, as may be, to every single consideration their Lordships have given us as to the reasoning on which they found their Judgment, and I end this argument as 1 began it, by putting it to your Lord- ships in this short syllogism, which I say contains the essence of the case. First of all, Liddell v. Westerton^ at page 159, authorizes this major proposition. Major ;-- — the same dresses which were used under the first Prayer Book of Edward the Sixth may still be used. Minor ; the dresses in dispute were used under the first Prayer Book of Edward the Sixth. That is admitted. Conclusion : — therefore, those dresses may still be used. And that is my case, my Lords. My Lords, I have one slight observation to make. It is not a matter of argument at all, but it is 216 The Rubric not altered in Elizabethan P. Books with reference to a request that was made bj' the Lord Chief Baron yesterday. The Lord Chief Baron at the rising of the Court expressed a wish to see a Prayer Book printed in Queen Elizabeth's reign. Your Lordships may remember I stated that Prayer Books printed long after the advertisements appeared with the rubric unaltered. I have here two Prayer Books, one of which bears on its title page the date of 1596. That is thirty years after the' advertisements. It has the Act of Uniformity set out in the beginning of it in the manner mentioned, and there is the " Provided always, and be it enacted," and so on in black letter. Then at the beginning of the Order for Morning and Evening Prayer, it says — " Here is to be noted that the minister at the time of the Communion and at other times of his ministration shall use such ornaments," and so on. There is rather a remarkable circum- stance, which I think answers incidentally a remark made by the Lord Chancellor, when he called my attention to a slight variation in the language in the different rubrics, with reference to the word " all " " at all times of his ministration." I have another Prayer Book here, which has no title page, but from the calendar which sets forth the dates for Easter, it would appear to have been published apparently in 1580, or thereabouts, because the almanack gives the dates for Easter, to begin from 1580 and goes down to 1611, so that it must have been published about 1580. Now, this copy does not seem to contain the Act of Uniformity, but it does contain the rubric, and in the rubric oddly enough the word " all " occurs, although, it does not occur in the other Prayer Book. I suppose no Prayer Book would be printed in those days without royal authority. It is a small matter, but, as far as it goes, it seems to show that the absolute verbal correspondence of the rubrics was not considered of the first importance in those days. printed- after the Date of the Advertisements. 217 I do not know whether your Lordships would like to look at the books? Lord Justice James. — It leaves out the word " all." Sir James Stephen. — No, in the Prayer Book of 1580, it is— " And here is to be Boted that the minister at the time of Communion and at all other times in his ministration shall use," and so on; and in the Prayer Book of 1596, it is — " Here is to be noted that the minister at the time of the Communion and at other times of his ministration shall use," and so on. Lord Sblborne. — May it not be a printer's slip? Sir James Stephen. — Well, my Lord, they left out the word " not," on a famous occasion in printing one of the ten commandments, for which they were fined and put in the pillory. The Lord Chancellor. — Before you leave this point, I wish to ask another question. In the passages you read from the judgment in Liddell v. Westerton^ you observed that the Rubric and the Statute of Queen Elizabeth are referred to as meaning the same thing. In the rubric of the Prayer Book of 1662, the reference to the Act of Parliament is omitted at the end of the rubric. Do you raise any argument upon that? Sir James Stephen. — No, my Lord, the way that I explain that is this. I suppose that the Act of Uniformity of 1662, was regarded, so to speak, as a new root to the title, and they did not care to refer to the earlier Act of Uniformity. The way in which I account for the difference at the end is two- fold. First, the Act of Uniformity of 1662 did not require to refer to any earlier Act. The earlier Acts seem to rest on the act of 1662, because it refers to, and for certain purposes incoi-porates, them. The 218 The Wafer Breads charge as to it. second observation is, that the reference to the Ecclesiastical Commission could not be repeated because that Ecclesiastical Commission had come to an end, and as your Lordships know one of the great results of the Civil War was that the Ecclesiastical Commission did come to an end. [Their Lordships consulted.'] My Lords, I was going to remark that a different way of putting what I have been saying to your Lordships, has been suggested to me. The reason why the Act of Uniformity of Edward the Sixth was inserted in the Elizabethan Prayer Book was, that that was the Act which gave the Prayer Book its authority, and gave the rubric its authority. That results from the few words that passed between myself and Lord Selborne just now. The Prayer Book and the rubric which it contained is a contem- porary exposition of the Statute itself, and conse- quently that Act was affixed to the more elaborate and official copies of the Prayer Book, as shewing the authority on which the Book itself rested ; but when the new Prayer Book of 1662 was published, its legal position was that of a schedule to the Act of Uni- formity itself. It is a manuscript book, and was affixed as a schedule to the Act of Uniformity itself. Consequently, the Act which would be put into that book is the Act of 1662 ; and in large copies found in churches, and so forth, you commonly find the Act of 1662 prefixed to the Book of Common Prayer. THE WAFER BREAD. My Lords, the next point to which I have to call your Lordships attention will not occupy your time so long as this question of the vestments. It is the question about what has been called wafer-bread, and it turns upon the 4th article of charge, the charging part of which is in these words : " That you unlawfully used in such service and administra- Evidence in Court below as to its use. 219 tion wafer-bread or wafers, to wit, bread or flour made in the form of circular wafers, instead of bread, such as is usual to be eaten." My Lords, the answer is an admission as to part, and a general traverse as to the rest, calling upon the promoters to prove what they allege. They had witnesses who were examined and cross-examined, and Mr. Ridsdale was also examined, and the nett result of the matter comes to be very short. First of all, I am called upon at page 12 to say what I would admit, and, after admitting certain things, I say — " As to the wafer-bread, I will admit that, subject to one observation, that I dare say you will admit on your side, that is, that the wafer-bread was used, but that, as used, it was broken. Mr. Shaw : I am afraid we do not admit that. Mr. Fitzjames Stephen : Then you must prove it. Lord Penzance : Will you go on then, please ? " Therefore, that came to nothing. Then on page 13, line 21, your Lordships will see Mr. Shaw says — " Then, did you see what it was that Mr. Eidsdale con- secrated as the elements in administering to the com- municants where bread is only communicated ? A. White wafers — circular wafers. Q. Does that apply to all the services that you were present at, — that is, on the 4th and 11th of July? A. Yes." Then a question arose as to whether it was broken or not, which did not come to much. I do not think my friend insists upon that, because Mr. Ridsdale said, upon re-examination, he made a point on all occasions of breaking one of these wafers, as they have been called. Then on page 20, about line 7, another witness, Henry Bevan, is asked: " What did he administer to the communicant ? A. Wine and water, and wafer. Q. What do you mean by wafer ? Will you describe? A. It was a circular thing, about the size of a penny piece, very thin and white." Then he goes on to examine about its being whole or 220 The shape, not the material, objected to. not. That, I think, is really the material part of the evidence, except at page 29, when I am examining Mr. Ridsdale, I say, at line 22 — " It has been admitted you use these wafers? A. Yes. Q. And do you, at any period of the service, break any of the wafers ? A. Yes. Q. When do you break them? A. At the time that the rubric orders such breaking. Q. Where the words are ' Here shall he break the br^ad? ' A. Yes. Q. There you break the wafer ? A. Yes," Now, my Lords, the charge against us is this. There is no quibbling in the matter. I am willing to adopt the word wafer, and have adopted it, and I do not mean to retire from it ; but, at the same time, I wish to call your Lordships' attention to this fact, that what we are charged with on page 20 here, is the use of — " Wafer bread or wafers, to wit, bread or flour made in the form of circular wafers, instead of bread, such as is usual to be eaten." All that is objected to there is, that the bread or flour is made in the form of circular wafers; and what I say to the charge is simply this, that there is no proof whatever, nor is it the fact, that these so-called wafers were anything else. The word wafer is commonly used, and we have used it — but the things so called are simply pieces of bread made about the size of a penny piece, and very white. LoKD Selborne. — Is there a charge that he did not break the bread? Sir James Stephen. — No, my Lord; I merely prove that he did break it. I do not think there is any charge to that effect. My answer to the whole charge lies in a word. Bread of this shape is not illegal. The objection lies to the shape of the bread, not to the material used. When your Lord- ships look into it you will find that there is not only no evidence that it was not bread, but in this charge they say it was bread. They say, " bread or flour made in the form of circular wafers," and therefore 221 JSo shape prescribed in the Prayer Book. what they object to is that the shape is round. It is sufficient upon that to say: "Who said it ought to be square or any other shape ? It must be some shape, but the Prayer Book nowhere prescribes any shape." That is the answer to the charge put in the shortest possible form in which I know how to put it. The bread is generally cut into small cubes. The Lord Chancellor. — Do we understand you as desiring to raise the question of fact now, as to whether this was bread, or whether it is what is technically called a wafer. Sir James Stephen. — We desire that it may be proved that we have committed an Ecclesiastical offence. The Lord Chancellor. — The reason I ask the question is, that in the passage you referred us to you are reported to have said : " The wafer bread I will admit that, subject to one obser- vation that I dare say you will admit on your side, that is, that the wafer bread was used, but as used it was broken." Sir James Stephen. — There the admission as tendered is refused, and the matter drops. The Lord Chancellor : " Mr. Shaw. I am afraid we do not admit that." Mr. Pitzjames Stephen. " Then you must prove it." . Sir James Stephen. — Of course it would be con- temptible in a matter of this kind to stand upon concealment or quibbles. What we say is, that this was bond fide bread, and that there is no proof that it was not. We .say it was bread cut round into the shape of a penny piece ; we say it was flour and water baked into bread. [Their Lordships consulted.'] The Lord Chancellor — Do we understand you to be instructed to say it was leavened bread? Sir James Stephen. — I do not say anything about the leaven, but I have yet to learn that the word bread includes the presence of leaven. I say nothing about that. I have not had any instructions on the 222 No new ground taken before the Judicial Oofnmittet. matter. All I say is that the only charge against us is, that we use bread made in the form of circular wafers. Nothing is said about its composition. We are not charged with using unleavened bread, nor is it affirmed that it ought to be leavened. The Lord Chancellor. — It is only desirable that new ground should not be taken here to what was taken in the Court below. The learned Judge in the Court below, on page 46, says this : "I will shortly enumerate these offences." Then, I pass over the first two : "The use of wafer bread instead of bread such as is usually eaten, in the administration of the Holy Com- munion.^' Then, having enumerated the other charges, he con- tinues : " The facts of those eight charges having been admitted by or on behalf of the respondentj and the unlawfulness of his conduct on these occasions being unquestioned before me, and, in my opinion, unquestionable, my duty on the present occasion will be conflned to admonishing him not to offend again in the same way," Sir James Stephen. — I do not wish for a moment to take new ground to what was taken in the Court below, and I must honestly take to myself the blame, whatever there is, for not having at the moment called more distinctly attention to the fact that the question raised there was a question of shape. ITheir Lordships consulted]. Sir R. p. Collier. — Do you say it is eatable, digestible bread? Sir James Stephen. — My Lord, it is, as far as I know. The Lord Chancellor. — What do you consider is the result of the evidence as to the wafer bread, its shape and composition ? Sir James Stephen.— I say there is absolutely no evidence as to the materials of which the bread was composed, or that it was- other than the regular ordi- The Charge the same as in Hebbert v. Purchas. 223 nary bread usually eaten. I would make one observa- tion, in consequence of something which your Lord- ship has said. This charge is copied verbatim from the charge in Hebberi v. Purchas. Their Lordships decided in that case upon that charge, and as they decided upon it we did not think it right to argue it in the Court below. I have nothing to do with the charge in Hebbert v. Purchas, and their Lordships go upon a variety of grounds. I say here that there is no evidence at all that the bread was not bread ustial to be eaten, and I also say that there is no law about the shape into which is to be cut, and there is no charge connected with this bread except the one charge that it was in the form of circular wafers, to which our answer is, that it is not illegal, and for aught that appears it is just like an ordinary piece of bread. The Lord Chancbllok. — It would be necessary that their Lordships should understand the course that you propose to adopt. Without intimating any opinion upon it you may contend that in law what is termed wafer bread is not illegal, and we understood that was one of the points you were going to bring before us. Sib James Stephen. — 1 think I intimated, or intended to use language which would intimate, that I proposed to take a shorter route to that result. The Lord Chancellor. — Then, on the other hand, you may say that by the law, as a matter of fact, you are prepared to hold that you have not com- mitted anything that would form an offence here. You may adopt one of these courses? Sir James Stephen. — With great submission, the course I think I am entitled to adopt in the matter is not to show that I have committed no ofFence, but I am entitled to say that they have not shown I have done so. The Lord Chancellor. — I do not mean to say that both courses are not open, but they must be kept distinct. 224 No offence unless proved that Bread was not used. SiE James Stephen. — Quite so ; but that again is one of the many inconveniences which arise from the unfortunate circumstance that Hebbert v. Purchas was heard ex parte. This charge, which I say is clearly on the face of it a bad charge, was allowed to pass, and the Court delivered judgment on it, and I cannot help thinking that if Mr. Purchas had been represented by counsel he would have said what I now say, namely, you are charging me with doino- an illegal thing, and if for the sake of argument I grant that — The Lord Chancellor. — I think we have nothing to say to that here. You are entitled to take the facts of your case, and the facts of any other case cannot have anything to say to them. On the facts of your case you are entitled to submit any argument you please. Sir James Stephen. — The argument, in fact lies in a nut shell ; it is simply this, that no evidence has been given to show that the substance which they call circular wafers was anything more than small pieces of bread cut into a round shape ; and unless they show that they were composed of some sub- stance which could not with propriety of language be called bread usual to be eaten — common bread unless they can show that, they have shown nothing. That is the argument in point of fact. I can hardly deal with an imaginary state of facts, but I am pre- pared to argue, if necessary, that the judgment deUvered by their Lordships in Hebbert v. Purchas was ill founded in point of law. I do not see, however upon the facts that I have mentioned, that it is necessary for me to do so. [Their Lordships Consulted^ The Lord Chancellor. — Of course, Sir James Stephen, you will pursue the course that you think best, but it is proper that it should be pointed out to you now, that there may be this view argued by your opponents and to be considered by this tribunal namely, that the admission being made with reference Proposition of Law — form of bread not illegal. 225 to the charge and the gravamen of the charge being that it was wafer as distinguished from bread, and the circularity, if I may use the expression, apparently being pleaded more with a view to show that it was wafer and not bread, than for any other purpose, whether the result is not as a matter of fact that there is a charge, and either an admission or evidence in support of it, of your having used wafer and not having used bread. Sib, James Stephen. — Yes, my Lord, I quite understand your Lordship's point, and I will state to your Lordships the course which I propose to take. The course which I propose to take is to argue before your Lordships this mixed proposition of law and of fact. First I say, in point of law, that the shape of the bread is matter of indifference, and that the cutting the bread into a circular figure like what has been described by the witness, whose evidence I quoted, is not in itself an illegal act. Secondly, I shall argue, in point of fact, that there is no evidence that the substance called Wafer was anything else but bread usually eaten, and then I shall argue in addition not only that there was no evidence of that kind, but that there was considerable evidence to the contrary, and that in dealing with a charge of an ecclesiastical offence, your Lordships will presume in favour of innocence and regularity rather than in favour of the reverse. The Lord Chancellor. — What do we understand to be the proposition of law that you are prepared to contend for? Sir James Stephen. — That the circularity and thinness of the piece of bread, to which your Lord-; ships have referred, are not in themselves illegal. The Lord Chancellor — That is to say, supposing it to be ordinary bread, bread such as is ordinarily eaten, circiilarity and thinness is no legal offence. Sir James Stephen, — Quite so, my Lord. The Lord Chancellor. — Then, what is the other proposition? Q 226 Proposition of fact — the substance bread. Sir James Stephen. — The other is a proposition of fact, namely that the thin circular substance sworn to by the witness Bevan, was a piece of bread, or at all events, that there is nothing to show that it was not. I think, my Lord, it will be con- venient to discuss the matter of fact first, be- cause it lies in a very narrow compass, and may be disposed of in a few words. The word wafer is used both by myself and by my learned friend, and your Lordships have already heard read the admission I was prepared to make on the matter. The word wafer is not a word which describes substance at all. It describes form ; it describes shape. For instance, you talk of the wafer with which you seal a letter ; I do not myself know of what that wafer is made, but it is made of some substance which is clearly not bread, and is clearly not a substance which one would eat. I do not pretend to be able to give your Lordships the etymology of the word " wafer," but this one knows; from constant and daily use, that the word "wafer" is simply a word for a small flat round thing of some sort of substance, which substance may just as well be bread as anything else, and when one talks of wafer bread, the ordinary and only meaning of it is simply a piece of bread cut into the form of a wafer, such a wafer as might be used to seal a letter, only rather larger. The natural meaning of the words " wafer bread" is a piece of bread cut into the shape described by the witness Bevan, as round and flat, and he adds " very white." The probability is, that a piece of bread cut thin, and cut into the shape of a penny-piece, would be white. That, I say, is how the matter stands as a matter of fact. The Lord Chancellor. — Let me ask you this ; is there any book, such as a dictionary of authority, as to the term, as a term of art — if it be a term of art or Ecclesiastical law. Sir James Stephen. — I am not aware of it, my Lord, but incidentally in the argument I am about to offer to your Lordships upon the legality of the The Charge corrfpaud with Rubrics 1549-1662 ; 227 shape of the bread,, your Lordships will find some authority upon that point. The passage in the Judgment in Hebbert v. Purchas, relating to this subject, your Lordships will find at pages 653, and following. Their Lordships state the charge which was made against Mr. Purchas, and which has been copied on this occasion : "The twentieth article charges the Respondent with 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 administering the same to the communicants. The rubric of the Prayer Book now in force runs thus : ' And to take away all oc- casion of dissension, and superstition, which any person hath or might have concerning the bread and wine, it shall suffice that the bread be such as is usual to be eaten ; but the best and purest wheat bread that conveniently may be gotten/' This is the same with the Rubrics of 1552, 1559 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. In- stead of " to take away the superstition," it reads, " to take away all occasion of dissension and super- stition." In the first Book of Edward the Sixth, the direction is different : " For avoiding all matter and occasion of dissension it is meet that the bread prepared for the Communion be made through all this realm after one sort of fashion, that is to say, unleavened and rounds as it was afore, ■ but without all manner of print, and 'SomethiTlg more larger' and thicker than it was, so that it may be aptly divided in divers pieces, and every one shall be divided in two pieces at the least or more, by the discretion of the Minister, and so dis- tributed." I should have thought it would have been natural, following the subject in the order of time, to have given the Elizabethan Rubric, which is the same as the rubric contained in the second Prayer Book of q2 228 and with the JRubric in Scotch Office, 1637. Edward the Sixth, Because we have nothing to do for this purpose with the first Prayer Book of Edward the Sixth. The Elizabethan Rubric was in these words : " And to take away the superstition whicL any person hath or might have in the bread and wine it shall suflBce that the bread be such as is usual to be eaten at the table with other meats^ but the best and purest wheat bread that conveniently may be gotten." Then the present rubric is in the words which have already been read to your Lordships, and although their Lordships, say that the shght verbal alterations about taking away the occasion of dissension and superstition, played an important part in the argument before them, I do not, myself, see my way to found any argument upon it at all. I may just observe that the words "the occasion of dissension," comes apparently from an earlier rubric of Edward the Sixth. The Lord Chancellor. — The reference in Keeling is " S.L." Does that refer to the Scotch Liturgy ? Sir James Stephen. — I suppose so, my Lord. The Lord Chancellor. — Is the Scotch Liturgy, which is referred to in 1604, the same date as the Prayer Book of King James ? Sir James Stephen. — The Scotch Liturgy was dated in 1637. The Lord Chancellor That seems to throw some hght on the matter, because it says : " To take away the superstition which any person hath or might have in the bread and wine, though it be lawful to have wafer bread, it shall suffice that the bread be such as is usual, yet the purest and best wheat bread that conveniently may be gotten." Sir James Stephen. — It is a case of ezpressio illorum quce taciie insunt nihil operatur. The Rubric of Elizabeth and of Edward the Sixth is in words the same, except in leaving, out that which begins with " though." It says : : The Elizabethan Rubric and Injunction^ 1559. 229 " To tate away the superstition whicli any person hath or might have in the bread and wine it shall suflBce that the bread be such as is usual to be eaten." Then in ,1637 when the Scoth Liturgy is prepared, that is slightly amplified by putting in : " though it be lawful to have wafer breadj it shall suffice ;" And that I submit is simply an amplification of the words " it shall suffice." It is an important point in the case, but I shall show your Lordships more par- ticularly how it comes in the EHzabethan Rubric I have already read ; and it is material with reference to what immediately follows to direct your Lord- ships' attention to certain dates in this matter. The Injunctions of Elizabeth were to give efiect to her Prayer Book. Her Prayer Book came into force on Midsummer Day, the 24th June 1559, and the In- junctions were issued at the same time. Now, her Prayer Book, as your Lordships have heard, says : " To take away the superstition which any person hath, or might have in the bread and wine, it shall suffice that the bread be such as is usual to be eaten." Then comes the Injunction. It is given in the Judgment in. Hebhert v. Purchas, and I read it from the Judgment : " Where also it was; in the time of King Edward the Sixth, used to have the Sacramental bread of common fine bread, it is ordered for the more reverence to be given to these holy mysteries, being the Sacraments of the body and blood of our Saviour Jesus Christ, that this same Sacra- mental 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." His Lordship, Sir Robert Phillimore, in his judg- ment in Eebbert v. Purchas, in the Court of Arches, treated that Injunction as a contemporaneous ex- position by authority of the rubric of Queen Eliza- 230 Object and origin of the Injunction. beth, which I have read, and I would submit that it is perfectly impossible to take any other view of it, for this simple reason, the Prayer Book of Eliza- beth, and the Injunctions of Elizabeth, are of even date. The object of the Injunctions is to procure the acceptance of the Prayer Book, and to give di- rections connected with it, and it is surely inconceivable that Her Majesty should with one hand issue the Prayer Book, and with the other hand issue at the same date Injunctions repealing provisions in the Prayer Book, and not expounding them with greater detail, which was considered necesisary; ' I say, therefore, that having regard to the dates" at which the Prayer Book of Elizabeth and the Injunctions were published, it is impossible to regard the Injunctions in any other light than that of a contemporary exposition of the Prayer Book. Your Lordships will find the whole history about the issue of these Injunctions in Burnet's History of the Reformation, vol. 2, pages 614 to 616, Nares' edition. There is no date to it. I will just read a word or two to prove what I have said — " After the Injunctions were then prepared, the Queen gave out commissions for those who should visit all the Churches of England, in which they lost no time, for the new Book of Service was by law to take place on St. John the Baptist's Day," which would be the 24th June, "and these com- missions were signed on the same day." Therefore, as I say, the Injunctions are ancillary to the Prayer Book, and were meant to carry out its provisions, and that seems to prove almost to demonstration that Queen Elizabeth, at all events, and her advisers, regarded the rubric which I read as consistent with the use of bread made in this round form and commonly called and known by the name of wafer bread. Their Lordships in Hebbert v. Purchas, omit to quote the Elizabethen rubric, and having quoted The Injunction not inconsistent with the Rubric. 231 the first Book of Edward the Sixth, they go on to say, " One of the Elizabethan Injunctions is at variance with the Elizabethan rubric, continued from the second book of King Edward, and provides as follows." Then they set out the part of the Injunction, which I have read to your Lordships, and then they say, " the learned Judge, Sir Robert Phillimore, calls this Injunction a contemporaneous exposition, but, it is in fact a superseding of the rubric, nor can it be regarded as at all reconcilable with it." I have offered my argument upon that subject, and I confess I shall wait to hear what my learned friends say in support of that view of the case, or in explanation of it, for I cannot understand either what inconsistency there is between the Injunction and the Prayer Book, or how it can possibly be that Queen Elizabeth should publish Injunctions at the same date with the Prayer Book, and that the Injunctions should be inconsistent with the Prayer Book, and that upon a point connected with the Administration of the Sacrament. However, my Lords, I submit that the thing speaks for itself. What is provided by the Injunction is that the bread is to be — "made and formed plaiuj 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." What is there in that inconsistent with the rubric? which was in these words — " and to take away the superstition which any person hath or might have in the bread and wine, it shall sufiSce that the bread be such as is usually to be eaten at the table." There is nothing here about bread usually to be eaten, but it is merely as to the figure of it. Of course, for the sake of decorum and proper order, you could not bring in an ordinary loaf and there cut it up into pieces and break it before the public, but it 232 Inquiry of Courtasto Authority of Scotch Office, 1637. must be divided into parts in some way, and why they should not be of this particular figure I am quite unable to understand. Then there are some other observations in the Judgment as to the words "it shall suffice." I hardly think it necessary to trouble your Lordships with any observation upon that. The words are very common words and speak for themselves, and I think may be taken in connexion with the Scotch Liturgy, which emanated from a similar authority; not of Queen Elizabeth, but in Charles the First's time, and which amplifies it a little more. The Lord Chancellor. — What was the authority for the Scotch Liturgy? Sir James Stephen. — It was an authority which the Scotch people did not recognise ; very far from it, indeed, and if your Lordships asked me who it was issued it, I should say those who issued it, were, to use the Presbyterian phrase, "left to themselves." But as far as the mere law went, I presume it would be issued by Royal authority, whatever it was worth for that purpose. The Lord Chancellor. — ^There can be no higher authority than that? Sir James Stephen. — No, my Lord, but there are limits to all things. The Lord Chancellor. — Was there a Scotch Act of Parliament for the Scotch Liturgy. Sir James Stephen. — I do not know, my Lord, but it must from the nature of the case have emanated from the King and his advisers. I am told it was issued by a proclamation which I have here. It is a proclamation for authorising the Book of Common Prayer to be used throughout the Realm of Scotland, and made under signet at Edinburgh, on the 20th day of December, 1636. It was under the authority of the Privy Council. However, my Lord, if that Injunction issued by Queen Elizabeth is held to be consistent with the Prayer Book issued by Queen Elizabeth — and I can Ab-p. Parher^s accouni of opposition to Wafer-bread. 233 hardly see how it can be held otherwise — then the cutting of a piece of bread into a round shape must be consistent with the present Liturgy established by the Act of Uniformity, because the Act of Uniformity diifers only in a few perfectly immaterial words from the rubric of Queen EHzabeth. It would be no diffi- cult matter to show your Lordships, if you thought it material, that the use of such bread, under the Liturgy of Elizabeth, was not an unfrequent bone of contention between the high Churchmen and the Puritans. Your Lordships will remember one passage which I read from Archbishop Parker's letters, where he said, for want of surplice and wafer bread there was no service. Lord Selboene. — What is the reference to that ? Sir James Stephen. — It is in the Parker Corres- pondence, page 277; the letter of 12th April, 1566, to Sir W. Cecil. The Lord Chancellor. — What is the passage? Sir James Stephen. — It is a letter to the Secretary of State : " Your Lordship desiretli to know whether there were six hundred persons ready to the Communion, and came unto a church, and found the doors shut. These reporters make ex musca elephantem. My Lord of London can best answer for his own jurisdiction j but this I can say, that where I have sent divers days three and four of my chaplains to serve in the greatest parishes, what for lack of surplice and wafer ■bread, they did mostly but preach. And one of my chap- lains serving the last Sunday at a parish, and being informed that divers communicants would have received, the table made all ready accordingly, while he was reading the passion, one man of the parish drew from the table both cup and the wafer bread, because the bread was not common, and so the minister derided, and the people disappointed. And divers churchwardens, to make a trouble and a diffi- culty, will provide neither surplice nor bread." Sir Robert Phillimore. — I think there is another letter? Sir James Stephen. — There are two letters, one from Archbishop Parker to Bishop Parkhurst of 234 Order of P. Council, 1580, on Wafer-bread, Norwich, at page 457-8 of the Parker Correspondence, dated 17th May, 1574: " You would needs be informed by me whetber I would warrant you either loaf bread or wafer bread, and yet yon know the Queen's pleasure. You have her InjunctionSj and you have also the service book ; and, furthermore, because I would deal brotherly with you, I wrote in my last letters how I used in my diocese for peace-sake and quietness." Bishop Parkhurst, of Norwich, had apparently asked " whether I would warrant you either loaf bread or wafer bread," and the answer is, " and yet you have the Queen's pleasure. You have her Injunctions, and you have the service book." Then, my Lords, the next letter is from the same to the same, dated 14th June, 1574, at page 459 : "And as for their contention for wafer bread and loaf bread, if the order you have taken will not suffice them they may fortune hereafter to wish they had been more conform- able, although I trust that you mean not universally in your diocese to command or wink at the loaf bread, but, for peace and quietness here and there to be contented therewith." Then, my Lords, there is an order of your Lordships' Board of 26th July, 1580. That is given in Peck's '■'■ Desiderata Curiosa" (London, 1732), and I pre- sume it is among the records of your Lordships' office: " The Lords and others of the Council to William Chader- ton. Lord B. Chester." "That in such parishes as do use the common bread, and in others that embrace the wafer, they be severallie continued as they are at this present. Untill which time alsoe your Lordshippe is to be carefull, according to youre good discretion, to perswade and procure a quietnes amongst such as shall strive for the publique maintaininge either of thone or thother : whereof we hope youre Lordshippe will take care, as appertaineth." Sir Robert Phillimore. — Is that an order of Council? Sir James Stephen. — It seems to be a dispatch. It is the Lords and others of the Council to William to Bp. Chaderton as one of the High Commissioners. 235 Chaderton, Lord Bishop of Chester. It is signed by " T. Bromley Cane." to begin with. It is " Thanking him for his great pains and care in the execu- tion of his trust as one of the Queen's High Commissioners in Lancashire." Then, again, on August 21, 1580, Lord Burghley and Sir Francis Walsingham wrote to William Chaderton, Lord Bishop of Chester — " Wishing him to indulge the sticklers for wafer bread in that particular, they being as yet children in Christ, and therefore rather to be fed with milk than strong meat. Concerninge the last pointe of youre letter, contained in a postscript, wherebie appereth that some are troubled aboute the substance of the Communion Bread ; yt were good to teach them, that a,re weak in conscience, in esteeming of the wafer bread; not to make diflFerence. But yf their weakness continue, yt were not amisse, in our opinions, charitabley to tolerate them, as children, with milk. Which we refer to youre Lordshipp's better consideration." That will be found in Peck's " Desiderata Curiosa," No. 20, p. 18. Then, my Lords, in 1 Strype's Parker, pp. 364-5, there is given this answer from the Dean and Chapter of Canterbury Cathedral to the visita- tion article,"^ and the answer is : '' For the ministering of the Communion we use bread appointed by the Queen's Highness's Injunction." The article, if your Lordships care to see it, is in Cardwell, and it is : " Whether they do use to minister the Holy Communic^ in wafer bread, according to the Queen's Majesty's Injunc- tion, or else in common bread." That is the question. The reference to this is in CardweWs Documentary Annals (Document No. 73, question 5, p. 356.) The Lord Chancellor. — What is the date of that ? Sir James Stephen. — 1569, my Lord. Then, 236 Cosm held Wafer-bread lawful — relates its use. my Lords, Bishop Cosin, in his works, volume V., page 481, says, " so that though there was no necessity yet there was a liberty still reserved of using wafer bread, which was con- tinued in divers churches of the kingdom and Westminster for one, till the I7th of King Charles." That is Cosin' s statement as to the usage of his time. The Lord Chancellor. — What is the date of that remark of Cosin's — what time in Cosin's Hfe is that? Sir James Stephen. — It is in the last series of notes which are of uncertain date, but it must clearly be subsequent to 1643. Sir Robert Phillimore. — There are three sets of notes. Sir James Stephen. — Yes, it refers to the 17th of Charles. That passage occurs in his notes upon the Elizabethan rubric, " and to take away supersti- tion it shall suffice that the bread shall be such as is usual to be eaten." He is explaining that : " It is not here commanded that no unleavened or wafer bread be used, but it is said only ' that the other bread shall sufiSce.' So that though there was no necessity, yet there was a liberty still reserved of using wafer bread, which was continued in divers churches of the kingdom and West- minster for one, till the 17th of King Charles." The eflfect of these various authorities would appear to be this — that, after the rubric of Queen EUzabeth, wafer bread was continually used, and that Her Majesty by her injunctions, tried to enforce it, and that the rubric, at all events, was so drawn as to enable her to take that course without inconsistency ; and then I say that that rubric differs only in a perfectly immaterial respect, viz., the taking away of " all occasion of dissension and superstition," from the present rubric, and therefore what was lawful then is lawful now. The Lord Chancellor. — Have you any infor- mation as to what was meant in the Injunction by these words : Elizabethan Injunction describes the Wafer-bread. 237 " The same fineness and fashion rounds 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." Sib James Stephen. — I believe, my Lords, though I am very imperfectly informed on the subject, that the singing cakes had the mark of a cross upon them. The Lord Chancellor. — The words that precede are these : " 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." Sir James Stephen.— The bread heretofore named singing cakes, I take it, means those which were used commonly in the celebration of the mass. I am instructed, my Lords, that singing cakes must have been something like small biscuits with marks upon them varying according to times and fashions, some- times a lamb, sometimes " I. H. S.," and sometimes a cross. The description given to me is that they were things about the size of a penny, about a quarter of an inch thick, and that they had a variety of marks upon them according to the ecclesiastical fashion of the day, whatever it might be, and that the difference which was to be made was that the fashion and figure were to be the same, but that they were to be made of bread ; and I contend again that in what we have done in using what they themselves describe as bread of this shape we have offended neither against the one rubric nor the other. That is the whole of my argument upon the subject of the wafer bread. The Lord Chancellor. — Will you tell me the number of the Injunction of Queen Elizabeth ? Sir James Stephen. — The Injunction is not numbered, but it is a long Injunction, headed with the words, " For tables in the Church," and it will be found at page 234 of 1 Cardwell's Documentary Annals. 238 Position of the Celebrant^ much controverted. The Position of the Cslebeant, ' I now come, my Lords, to the question of what is popularly known by the name of " the eastward posi- tion;" the charge is contained in the 5th article: "That at the said midday service commencing at 10.30 a.m. on the said 4th day of July and. on the 11th day of July, the said Eev. Charles Joseph Ridsdale, when ofiSciat- ing in his said church in the Oom.munion Service, unlaw- fully stood while saying the Prayer of Consecration in the said service at the middle of the west side of the Communion table (such Communion table then standing against the east wall with its shorter sides towards the north and south) in such wise that during the whole time of his saying the said prayer he was between the people and the Communion table with his back to the people, so that the people could not see him break the bread or take the cup in his hand." No doubt that represents the fact, subject of course to this very slight modification, which speaks for itself, that such of the people as happen to be placed during the prayer at some distance on each side, would be able to see what passed, although of course those immediately behind him could not. The Judgment in Hebbert v. Purchas is precisely in point, and I have to ask your Lordships to re- consider it. This subject, for reasons which here I need not enter into, has stirred up the most vehement feeling and has produced hundreds of volumes of contro- versy, with which I am perhaps not as weU ac- quainted as I ought to be, but I am credibly, and I am disposed to think correctly, informed, that a good deal of the learning collected on this subject is not calculated to throw much light upon the question. It seems to me that the legality of the practice in question must depend entirely upon the construction of the rubrics, and I propose to deal with it accordingly. There are, however, one or two points of some importance connected with the history of the rubric which I will notice. The most con- Rubric as to the Position^ how altered m 1661. 239 venient course will be for your Lordships to look at the remarkable book which I called your attention to yesterday, and which shows what the alterations are. Your Lordships will see at a glance the force of the observation. The Lord Chancelloe. — You speak of the Photozincograph copy? Sir James Stephen. — Yes, it is at pages 256 and 257. Your Lordships will see, it says, just before the Prayer of Consecration, " Then the priest standing up, shall say as foUoweth," — and that is altered thus : — ''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 : " The particular point I wish to notice is : That for the rubric directing the priest to stand up, with- out any indication as to where he is to look or how he is to stand, this has been substituted, " When the Priest, standing before the table, hath so ordered the bread," and so on. With that observation I will proceed to bring together the different rubrics, and then to consider first the way in which they ought to be construed, and afterwards the way in which they have been construed by their Lordships in Hebbert v. Purchas. I begin with the beginning, " The order of the administration of the Lord's Supper or Holy Conamunion." Then come the rubrics prefixed to that service, the last of them being in these words, " The table, at the communion time having a fair white linen cloth upon it, shall stand in the body of the church, or in the chancel, where morning and evening prayer are appointed to be said. And the priest standing at the north side of the table shall say the Lord's Prayer, with the collect following, the people kneeling.'' Then come the Lord's Prayer and the Collect. Then the next rubric is, — 240. Order of Rubrics in the Communion Office. "Then shall the priest, turniBg to the people, rehearse distinctly all the Ten Commandments ; and the people still kneeling shall, after every commandment, ask God mercy" and so forth. Then, following the Commandments, comes this rubric — " Then shall follow one of these two Collects for the Queen, the Priest standing as before, and saying." Then follow the collects for the Queen. " Then shall be said the Collect of the day. And immediately after the Collect the Priest shall read the epistle, saying," and so forth. " And the epistle ended, he shall say. Here endeth the Epistle." Then shall he read the Gospel (the people all standing up) saying, the Holy Gospel," and so forth. " And the Gospel ended, shall be sung or said the creed following, the people still standing, as before." Then comes the Nicene Creed — " Then the Curate shall declare unto the people whsit holy days, or fasting days, are in the week following to be observed. And then also (if occasion be) shall notice be given of the Communion; and the banns of matrimony published ; and briefs, citations, and excommunications read. And nothing shall be proclaimed or published in the church, during the time of Divine Service, but by the Minister : nor by him anything, but what is prescribed in the rules of this book, or enjoined by the Queen, or by the Ordinary of the place.'' Then shall follow the sermon, and so on — " Then shall the Priest return to the Lord's table, and begin the Offertory, saying one or more of these sentences following, as he thinketh most convenient in his discretion." Then follow the sentences. Then — "Whilst these sentences are in reading, the Deacons, Churchwardens, or other fit person appointed for that purpose, shall receive the alms for the poor and other devotions of the people, in a decent bason to be provided by the parish for that purpose ; and reverently bring it to the Priest, who shall humbly present and place it upon the Holy Table." Then it goes on — "And when there is a Communion, the Priest shall then Order of Rubrics in the Communion Office. 241 place upon the table so much bread and wine, as he shall think sufficient. After which done the Priest shall say." Then follows the Prayer for the Church militant. Then — " When the Minister giveth warning for the celebration of the Holy Oommunion, (which he shall always do upon the Sunday or some Holy Day, immediately preceding,) after the sermon or homily ended, he shall read this exhortation following.^^ Then follows the exhortation. Then again follows an alternative exhortation. Then — "' At the time of the celebration of the Communion, the communicants being conveniently placed for the receiving of the Holy Sacrament, the Priest shall say this exhortation." And then follows another exhortation — " Then shall this general confession be made, in the name of all those that are minded to receive the Holy Communion, by one of the Ministers ; " Your Lordships will observe there that for the first time it is intimated that there may be more than one minister taking part in the matter. "both he and all the people kneeling humbly upon their knees." "Then shall the Priest (or the Bishop, being present,) stand up and turning himself to the people pronounce this absolution." Then the Priest is to say the " comfortable words," after which he is to proceed, saying — " Lift up your hearts." " Then shall the priest turn to the Lord's table, and say, It is very meet, right," and so on. " Then shall follow the proper preface," and after the preface shall be said, " Therefore with Angels and Archangels," and so on. " Then shall the Priest, kneeling down at the Lord's table, say, in the name of all them that shall receive the Communion this Prayer following : We do not presume," and so forth. E 242 The PosiUon complained of is a legal one. Then, "When the Priest, standing before the table." Your Lordships remember that in the earlier Prayer Book it was " the Priest shall stand up :" " "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 con- secration, as foUoweth." Then that Minister is to receive first himself and then proceed to deliver the sacrament to other com- municants; after which the Priest is to let them depart with his blessing. That is the whole direction, and the question upon it is, as to the position which is to be occupied by the Priest under that direction during the prayer of consecration. LoED Selboene.— There is no question as to any other part of the service. SiE James Stephen. — No, we are charged with no- thing but that, during that prayer, Mr. Ridsdale stood with his back to the people, and his face to the table, but there is no question about any other part of the service at present. There was a minor ques- tion in the Court below, but that was disposed of and need not be further referred to. I may at once tell your Lordships what the proposition is for which I contend, because it is strictly limited to the necessity of my case. My proposition is that the act which Mr. Ridsdale did on this occasion is not forbidden either directly or indirectly by anything contained in those rubrics, and that on the contrary the way in which he performed the service in ques- tion is a legal way of performing it. Whether there may be other legal ways of performing it as well, is a question with which I have nothing whatever to do, except so far as it bears upon the legaKty of the proceedings of Mr. Ridsdale, and I think I shall give your Lordships reason to believe, before I have con- cluded my argument, that it would be very difficult indeed to shew that any one of several positions was illegal under given circumstances. The Rubric as to the place of the Lord's Table 243 That being the general object of my argument, I will first put forward my own view of the matter, and I will then allege certain reasons against the view taken by their Lordships in the Judgment in Hebbert v. Purchas. The first point is this. It is perfectly clear that some latitude is left in these matters throughout the whole of this service as to the position to be assumed by the clergyman, because there is a latitude left by the distinct words of the rubric as to the position of the table itself. I think your Lordships will see reason to believe that whoever it was who drew up the rubrics for this service, felt himself con- tinually hampered by the difficulty of providing for all the possible cases according to the different pos- itions which the table might legally assume, and that the result of that has been to leave a good deal of discretion to the minister performing the service as to the place which he will assume at different parts of it. First of all it is said that the table is to stand in the body of the church or in the chancel, where morning and evening prayer are appointed to be said. That is to say, to use what I understand to be a technical expression in this matter amongst those who are experienced in it, the table may be placed either altar-wise or table- wise. You may either put it against the chancel wall with its ends pointing north and south, or you may put it along the chancel table-wise, as the table at which your Lord- ships are now sitting is placed. The Loed Chancellor. — What is the way the rubric points to ? Sir James Stephen. — Several positions of the table are consistent with the rubric. First, the ordinai^y position standing at the end of the chancel, with one of the sides against the wall, the other side facing down the chancel, and the two ends north and south. The Lord Chancellor. — There is nothing said here in the rubric as to the points of the compass? Sir James Stephen. — There is another point about r2 244 involves a discretion in Celehranis Position. that, there is no rubrical direction at all as to how the church is to stand, and it is obvious enough that the points of the compass are not the really- governing consideration. The position of the church is the governing consideration, and inasmuch as the church might be built pointing to any possible point of the compass, and even inasmuch as the church itself might be round and so point to all points of the compass, as in one instance with which your Lordships are no doubt very famihar — there is a round church which your Lordships know very well in the Temple. Sir R. p. Amphlbtt. — There is a Nave there. Sir Robert Phillimore. — There is a round church at Cambridge. Sir James Stephen. — Yes, and one at North- ampton. But there is no rubrical direction whatever about the points of the compass of the church. It may point in any direction, and an instance may be mentioned of a church where the north side of the table is what is usually the west side, that is to say, the Chapel Royal. The Lord Chancellor. — At present I am only anxious to gather your view. Sir James Stephen. — Your Lordships asked me about the points of the compass, and I begin by say- ing that the whole subject is shrouded in obscurity by the circumstance that there is no rule laid down as to how the church is to stand. The Lord Chancellor. — Do you consider that the rubric indicates that the table wherever it is to be put is to be moved for the purpose of the Com- munion from where it stands normally during the other part of the time ? Sir James Stephen. — I say it indicates that that may be done. It expressly asserts the legality of having the table standing against the wall, or stand- ing in the body of the church. The Lord Chancellor. — And does it say any- thing about standing against the wall? The meaning of the Rubric discussed. 245 Sir James Stephen. — The words are : " The table, at the Communion time having a fair white linen cloth upon it, shall stand in the body of the church, or in the chancel, where morning and evening prayer are ap- pointed to be said." The Lord Chancellor. — Does it mean that morn- ing and evening prayer are to be said in the chancel? Sir James Stephen. — As I understand it means the public chancel, the main chancel of the church and ^not any side chancel or private aisle or place of that kind. It means the- chancel which is part of the building of the church. \_Their Lordships consulted.] My Lords, I apprehend that the expression re- lating to the chancel, which your Lordship has mentioned, would very likely be directed against the practice of having a side chapel or side altar which would be considered objectionable. In Roman Catholic Churches you see a number of small chapels at the side with altars in them, and I understand the words, "where Common Prayer is said," to mean that the altar is to be placed in the chancel, properly so called — the place which the rector of the church would have to repair. Lord Selborne. — Not in the side aisle or chapel? Sir James Stephen. — No. Sir Robert Phillimore. — In the main chancel of the Church? Sir James Stephen. — Yes. The table is to be put either in the body of the church or in the main chancel. Either position is lawful by the words of that rubric. Then again, I would point out to your Lordships that there is nothing in that rubric to say what is to be the shape of the table, or how the table is to stand with reference to the points of the compass. With reference to the church, there is nothing to render it illegal to place the table as it is usually placed along the wall of the chancel, nor is there anything to forbid the tables being placed lengthwise along the chancel itself, nor is there 246 The term " North-side " supposed to refer to the anything to prevent the table being placed north and south across the chancel away from the wall; nor is there anything to prevent similar changes being made in its position in the body of the church. So that the walls of the church may point in any direction, the table, for aught that appears, may be of any shape — the sides of the table may be placed in any place, and that state of things, I say, makes it very difficult indeed, to say that almost any usual position which may be assumed is inconsistent with the terms of the rubric. No doubt there occurs in this rubric the expression "north side." The state of things which the author of the rubric probably had in his mind was the common and usual state of things. [Their Lordships consulted.] I was saying, my Lords, that no doubt the state of things which the author of this rubric — and this part was originally written in 1552 — had in his mind, would be the common state of things, namely, a church standing east and west, and as to the table, that whatever it was, which was the common state of things immediately subsequent to the Reform- ation. Whatever might be the result of antiquarian research on the subject, their Lordships, in Hebbert v. Purchas, say that the common state of things at that time was for the table to be placed tablewise, either in the chancel or in the body of the church. Thus the state of things which the authors of the rubric probably had in their minds was an oblong table placed lengthwise either in the chancel or in the body of the church, and a church standing east and west. I am informed that an issue of fact might be raised as to that, but I do not propose to raise it. I am totally incompetent to do so, and I do not think your Lordships would be much edified if I tried. I will accept for the purpose of my argument their Lordships statement at page 659 : — " When the table was placed in the body of the church or chancelj the priest or minister was to stand on the north general position of the Table in 1552, hut the 247 side of it, looking soutli. When it became the custom to place the table altarwise against the east wall, the rubric remained the same." Their view on this state of facts is this, that at the Eeformation the oblong table was usually placed lengthwise along the church — so that if we suppose this room to represent the church, and that to repre- sent the east, then, where some of your Lordships sit would be the north side of the table according to their view. Well, it does occur to me, as a possible thing, that if their Lordships are right in that view of the case, considering the extreme uncertainty of all these terms, the long side of the table would get the name of the north side, and if the table were turned round so as to occupy the position where the Registrar is sitting — after that side had come to be known as the north side — it would retain that name, although its position was changed in the same manner (to use an illustration very familliar to some of your Lordships) as the official name of the North- West provinces of India is still retained — surviving from the time when they really were the North- West provinces — although since they acquired that name, the province of the Punjab, which extends far to the north and far to the west of the so-called North- West Provinces, would seem to be better en- titled to that designation. Still they are always called the north-west provinces, and in the same way I suggest that possibly this might be called the north side of the table. [The proceedings were 'here adjourned for a short time.] SiE James Stephen. — I was remarking, when the Court rose upon the great uncertainty connected with the meaning of the words " north side," and was illustrating the supposition that "north side" might be a conventional term for that side which faces the north when the table is placed in what their Lordships in Hebhert v. Purchas considered was the usual position at the time in question. The question of fact as to what 248 fact of its " table-wise " position is questionable. really was the common position of the tables in the course of the century between the Reformation and the Civil War,is one of considerable difficulty,and I do not propose to discuss it. For various reasons, I do not think the question very material, but more especially, for this reason,' if you look at the plain and obvious meaning of the rubric, it would seem almost impossible to suppose that the direction with regard to standing at the north side, whatever the north side may be, can apply to anything more than the first two prayers which are directed to be said, "The Priest standing at the north side of the table shall say the Lord's Prayer with the Collect following, the people kneeling." Whatever the north side means, the direction points only to the beginning of the service, and no grounds can be collected from the other parts of the service, for supposing that that direction is intended to govern the position of the clergyman throughout the whole of the administration of the Communion — The Lord Chancelloe. — How would you interpret the rubric before the prayer following the Command- ments, " Then shall follow one of these two Collects for the Queen, the Priest standing as before" ? Sir Jambs Stephen. — I was coming to that. If your Lordships will allow me, I think the easiest way of explaining these things is to go through the whole and see how the rubrics hang together. First of aU, therefore, the rubric declares that the Priest is to stand at the north side and say these two prayers, whatever the " north side " may be. Then he is to rehearse the Ten Commandments turning to the people. I would just suggest that, whilst re- hearsing the Ten Commandments and turning to the people, it would seem natural that he should he at liberty to assume he is addressing the congregation at large, and, if he thought it desirable to come for- ward to a certain extent so as to be better heard, it would seem unnecessary to restrict him by this direction about the north side. I would also observe Instances where Rubrics might imply 249 that, supposing the table to be placed tablewise along the body of the church, it might easily be that the people would be so distributed, that when he had to read the Ten Commandments so as to be heard by them all, standing at the north side might prevent him from being heard by at least one half of them. If the table were standing down the middle of the church and he was compelled to remain at the middle of the north side of the table, he might have behind him a considerable number of persons who would not hear him so conveniently as if he regulated his position according to the distribution of the people in the church, and when the table was standing tablewise in the body of the church, or in the chancel, it is difficult to say that there is any reason of any kind why he should stand at one part of the table rather than at another. After the commandments is to be said a Collect for the Queen, " the Priest standing as before." I suppose that that does refer to the north side. But what then? Why should you say "the Priest standing as before," if there has been no change in the interval? You do not say " the Priest standing as before " when he is going to read the Ten Com- mandments, why then should you say " standing as before " when he is going to read the Collect? Obviously, because it is contemplated as possible that some change in his position might have taken place for the purpose of convenience, in order to read the Ten Commandments, and if that is so you have at once an instance in which a change in the position of the Priest celebrating the Communion is permitted, although, only by implication, and not by express authorisation. Then we come to the reading of the Collect of the day, and after the Collect the Epistle and the Gospel. Where is he to stand when he reads the Epistle and the Gospel? I say that there again there is no reference to place. It would be a singular construction to say that " standing as before," which comes in before the Prayer about 250 change of place or position by the Celebrant, the Queen, is to govern the suceeding Collects and succeeding prayers, when it clearly is useless and out of place if it is supposed to have governed his position during the reading of the Ten Command- ments. I say, therefore, that when you come to the reading of the Epistle and the Gospel, you find that the rubric is silent as to where he is to stand. It does not say he is to stand at the north side. It does not' say he is to stand as before. Then, bearing in mind the various possible positions of the table, a reason im- mediately suggests itself why the Clergyman should have a certain degree of latitude allowed to him in this matter. The usual course, with regard to reading the epistle and gospel is, that if there are two clergy- men they sit at opposite ends of the table, and that the one steps forward and reads the epistle, and the other steps forward and reads the Gospel. But there is not a word about that in the rubric. There is nothing to suggest how they are to stand at that time ; and I would submit that it would be perhaps the most inconvenient, I might almost say unbecom- ing plan, which could be suggested, that the officiat- ing clergyman should stand at the north side of the table facing to the south, so as to be sideways to all his congregation, and there read the Epistle, which is obviously addressed to them all, and that the other clergyman, for whose presence (though it is indi- cated afterwards) there is as yet no authority at all, should be bound to go round to the north end or side of the table, and there read the Gospel. It would be an arrangement so very singular, and is in point of fact so entirely unknown, that unless it was enjoined in the most express terms — I might almost say unless some good reason for it were made ap- parent — it is hardly possible to believe that that would be the law. Yet, if the rubric with regard to standing at the north side is to be taken as a general direction regulating the position of the clergyman throughout the whole of the service on every occasion not otherwise specially provided and would not necessarily require him 25 1 for (and I shall soon show your Lordships that noth- ing less than that is necessary in order to condemn the practice adopted on this occasion) then you have the inevitable consequence that the north side is not the one position which is to be assumed throughout the whole administration of the Communion, but that the position of the Priest must be determined accord- ing to other circumstances and other directions. Then, we come to the next collect, and the next rubric, " Then shall be said or sung the creed following:" — the Nicene Creed — "the people still standing as before." Here, again, I say nothing is said as to the position of the Minister, and I ask again, what reason is there for supposing that he is under any obligation at that time to be stand- ing at the north side of the table looking south ? I shall show your Lordships immediately the reason why I keep repeatedly asking that question at each point at which I arrive. Then the Curate is to declare to the people the Holy Days and Fasting days, and he is also to give notice of the Communion and briefs, citations and excommuni- cations, to be read. My Lords, in these circumstances where is he to stand, and why at the north side? And what irregularity can there be in the Priest who is to give a notice of any kind, coming forward, for the pur- pose of giving it, to the Communion rails — to any position in fact in which he could be most conveniently heard by those whom he is addressing ? If I am right in supposing that he may come forward to the Com- munion rails in order to give the notice for the Communion, then I say he is not to be nailed, as it were, to the north side on all occasions ; and I sug- gest to your Lordships, and especially to the right reverend prelates who are present on this occasion, whether it is by any means a general or even a com- mon practice on the part of clergymen who have to give notice of the Communion, or to give any other notice which it may be necessary to give at that time, to stand at the north end of the table, or whether 252 to be at the " North side" i.e. end, looking South. they do not habitually come forward to a position more convenient for addressing the people? " Then shall follow the sermon." Where is the sermon to be preached ? Obviously and of course from the pulpit. There is not, however, a word about the pulpit here. At this point a common prac- tice is — for the clergyman to leave the place which he has occupied to return into the vestry, there to change his surplice for a black gown whilst a hymn is being sung, to go up into the pulpit and preach the sermon, to return to the vestry again and resume his surplice, and then to return to his place at the Com- munion table. When that is done, putting aside all questions about the black gown and the hymns and the going up into the pulpit, this at least is perfectly clear that the clergyman is to leave his position for the purpose of preaching, be- cause the rubric says: "When he returns to the Lord's table." But when he returns to the Lord's table, to what part of it is he to return ? There, again, the rubric is silent, as I suggest, for exactly the same reason for which it is silent in other parts of this service, namely, because it is contemplated as a possibility, and I am by no means sure that it is not contemplated as the more common and usual course that the table should be placed in the body of the church, for those words are put first. What possible reason can there be for supposing that when he returns after the sermon to the table and begins to read the sentences of the offertory, he is to stand at the north side? The rubric is absolutely silent upon the subject, and one may suggest many circum- stances under which it would be more convenient for the clergyman to assume another position with reference to the manner in which the congregation is arranged. But the principal point which I have to mention, and to which I wish to direct your Lordships atten- tion, is this, that by the time at all events when he has preached his sermon, and is returning to the Placing the Elements upon the Table brings 253 Communion table, the force of the first rubric about the north side must be spent whether it extends beyond the collect and the Lord's Prayer or not, be- cause we have had it, as it were, revived faintly on one occasion by the words "standing as before." We then have two instances in which there is absolute silence as to this position, and I say that that abso- lute silence is not or ought not to be supplied by an interpretation put upon the rubric by your Lordships, to the effect that then and at all other times he is to return to the north side. Then follow the different sentences which are to be read, and I would suggest that the remarks which I made upon other parts of the service, seem to apply with peculiar weight to this part. While the sentences are being read, the clergyman of course addresses himself to the people. The object with which they are read is to stir up their liberality and to put before them the duty of giving alms according to their ability. Of course he must look to the people when he reads them. Why, is it to be supposed that he is to read them from the north side looking south, which I should suggest would be about as inconvenient a position as he could possibly occupy for that purpose. After that the alms are to be brought to the clergyman and he is to put them upon the table, and it goes on : " And when there is a Communion, the Priest, shall then place upon the table so much bread and wine, as he shall think sufficient." Where is he to get the bread and wine ? He must go somewhere for that purpose, because it is to be placed upon the table. In Liddell v. Westerton, it is held, amongst other things, that a credence table is a lawful church ornament, the credence table being the table upon which the bread and wine were placed until they were taken for the purpose of being put upon the Communion table. The Minister cannot of course remain at the north side when he is going to the credence table to put the bread and wine upon 254 the Celebrant on West side, facing East : the Communion table, and when he puts the bread and wine upon the Communion table, unless he puts it directly at the north end, which I presume is, to say the least, unusual, he would naturally put them on the west side of the table, and he would stand of necessity in front of the west side of the table for the purpose of putting them there ; and therefore I sug- gest that at the time when the prayer for the church militant is to be said, which is the next part of the proceeding, if there is to be a Communion, the clergyman has just put the bread and wine upon the table, and of necessity has assumed, for that pur- pose, a position immediately in front of the table and in front (according to the position now usually oc- cupied by the table) of the west side. Then he is to say the prayer for the Church militant. And, again, the same observation applies — there is no direction as to where he is to stand. Then there follow the exhortations which are to be given to persons to attend the Communion ,which I pass over for the present, because they would not apply in the case where the Communion service was actually per- formed. Then we come to the time of the celebra- tion of the Communion : " The communicants being conveniently placed for the receiving of the Holy Sacrament, the Priest shall say this exhortation.'' For that purpose again, where is he standing ? On the last occasion in the history of the ceremony in which any indication occurs as to his position, he must be in the position of having placed the bread and wine upon the table, and having done so he has said the prayer for the Church militant, the people have arranged themselves for the purpose of receiving the sacrament, and he is to give them an exhortation. Of course the remarks I have made before apply to that also. I say he must deliver that exhortation in such a way as to be heard, and turning to them as he is addressing them, the fair the Absolution makes him turn to the people : 255 presumption upon it is that he is standing then in front of the table and addressing the people. Then he calls upon to them attend. Then comes : The " general confession " to " be made^ in the name of all those that are minded to receive the Holy Communion, by one of the ministers ; " — thus showing that there are, or may be, more ministers than one present. So that some or one of them cannot possibly occupy this particular position on the north side- I need not press that. Of course, there might be room for more persons than one to stand at the end of the table ; but I think the supposi- tion that that would be done is so improbable in itself, and so contrary to practice, that I need say nothing about it. Up to this time the last position which has been ascertained by any reasonable construction is, the position in which the clergyman stands immediately after placing the bread upon the table, the eflfect of which would of course be that he is then standing on the west side of the table, looking east. Then follows the Confession, and after the Confession, the Absolution, and before the form of Absolution is this rubric which aflfbrds the next indi- cation as to his position : " Then shall the priest (or the bishop, being present,) stand up, and turning himself to the people, pronounce this Absolution." " Turning himself to the people." In the case of Hebbert v. Purchas^ their Lordships observe, with obvious justice, that that implies that he had previously turned away from the people, and that exactly confirms what I pointed out to your Lord- ships as to the position to which I have traced him before, namely, that when he has placed the alms upon the table, he is standing facing east, that he then turns round for the purpose of saying certain exhor- tations, that he then making the General Confession in the name of the people, turns to the east, turning away from them, and then when he pronounces 256 The Bps. at Savoy Conferenceon ^^ Minister's turning," the Absolution, turns towards the people, that is to say, turns his face towards the west. And upon that point I will shortly refer to Cardwell's Conferences. The Puritan party were objecting not to the rubric in which the words " before the table " occur, but to the rubric of which I am now speaking. In Cardwell's Conferences, page 320, your Lordships will find the exceptions taken by the Puritans to these different rubrics, and the exception which they took to this rubric is as follows : — " Then shall the priest or the bishop (being present) stand up, and turning himself to the people, say thus : Exception. The minister turning himself to the people is most convenient throughout the whole ministration." At page 353 we find the bishop's reply : " Minister's turning. The minister's turning to the people is not most convenient throughout the whole ministration. When he speaks to them, as in Lessons, Absolution, and Benedictions, it is convenient that he turn to them. When he speaks for them to God, it is fit that they should all turn another way, as the ancient Church ever did ; the reasons of which you may see Aug. lib. 2, de Ser. Dom. in monte." What the reasons were I do not enquire. The Puritans said many things in reply to this, and amongst the rest, answered that what was proposed was hke worshipping the sun and various other matters. I do not think their reply on the subject of what Augustine said is important. The effect of it is that the Puritans were not satisfied with the answer of the bishops, as indeed, I can well understand they were not, but that is not the point I am insisting upon. The important point to observe is, that the view with which the bishops settled these rubrics was, that when the minister was addressing the people he should turn to them, and when he was offering up prayer in their name, they should all turn one way, that is to say, that he should turn to the table, and that they should be looking in the same direction. To proceed; next come the comfortable words illustrated by Prayer of hufnble access. 257 which the priest says, still turning to the people. I do not say that that is in the rubric. It is not, but he obviously is turning to the people at the time, when he says those words. He proceeds, and then when he says " It is very meet and right, &c." " Then shall the priest turn to the Lord's Table." So there you have him again, as I suggest, turning to the table and turning away from the people, in order to speak those words. Then come " Therefore with angels." Then comes the proper preface, whatever it may be, during which there is no indication of any change of position at all; and " Then shall the priestj kneeling down at the Lord's Table, say in the name of all them that shall receive the Communion, this prayer following : — We do not presume to come," and so on. Surely, my Lords, when that rubric is taken in immediate connection with the earlier rubric about turning to the table, and further, in connection with the controversy at the Conference, it is clear that here the very case has arisen for which the bishops provided, that the clergyman is offering up prayer in the name of the congregation, and that he is doing that which, according to the view of those who framed these rubrics, was meet to be done, all turning one way. Then we come to the rubric, which was altered in the manner which I described and exhibited to your Lordships in the zincographic copy, page 257. I have so far traced the movements of the officiating minister up to the rubric before the Prayer of Con- secration, and I say that if the old rubric, which was, " then the priest standing up shall say, as folio weth," were still in force, there could be little or indeed no doubt that the position which the clergyman was intended to assume, at that time, wag the position of standing up before the table from the place where he had knelt down before the table, and that, as he had knelt down (as I have already shown, and as appears s 258 The Rubric before the Consecration Prayer: to be clearly proved from the citation from Cardwell) before the table to say the prayer, " We do not pre- sume," so, when he stands up at the Prayer of Consecration, he is intended to be standing up in the same position as that in which he had knelt down, namely, standing up in the middle of the west side of the table, with the congregation all turning one way, to use the words of the Conference — with his face towards the table and with his back to'wards the congregation. That is, of course, assuming the table to be arranged as it is now arranged in our churches. The Lord Chancellor. — Are the words in Card- well " all turning one way " ? Sir Jambs Stephen. — Yes, I think so. But, my Lords, if any doubt could have hung over that inference upon the old rubric, I maintain it is abso- lutely and altogether removed by the new wording which was adopted at the last revision, because that says expressly — "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 foUoweth." My Lords, I say that that is a clear direction that he is to be standing before the table at the time when he orders the bread and wine, so that he may break it with decency before the people. The Lord Chancellor What do you under- stand by the word " before " ? Sir Jambs Stephen. — I understand " before " in the same sense in which I am before any gentleman at the back of this Court. I am not speaking of the table. I say he is to break the bread before the people. The Lord Chancellor. — I refer to the words ''standing before " the table. Sir James Stephen. — " Standing before " the meaning of ^^ before the Table" illmtrated. 259 table I understand to mean standing in front of the middle of the long side of the table. The Lord Chancellor. — It does not say anything about the long side. It may be a table all the sides of which are the same. Sir James Stephen. — " Before " and " behind " are relative terms, and " before " means not behind. If you push a table against a wall, the wall you would say is behind the table, and whoever stands opposite the obstacle which you would naturally call the back of the table, may be said to be standing before it. The Lord Chancellor. — What would your obser- vation be with regard to a table which was placed in the centre of a church. Sir James Stephen. — With regard to that I candidly confess I could give no meaning whatever to it. I would take an illustration before all our eyes at this moment. I should say that, your Lord- ship, Lord Selborne, the Registrar, and myself, might with equal propriety be said to be before the table, but I think your Lordship would hardly say — still referring to the Registrar — that you could describe him as sitting otherwise than at the end of the small table, and if anyone wanted to stand before that table at which he is now sitting, his position would be in a line with me. The Lord Chancellor. — Supposing you are standing where you are now, and the Registrar were standing facing you here, which of you would be standing before the table ? Sir James Stephen. — Both of us. We both should.be standing before the table, though. I should be looking towards it, and he looking from it. I think that a little consideration will explain exactly the difficulty in which your Lordship, is about the table being placed in the middle of the church. A very little consideration will shew that that question really brings to light the circumstances connected with this rubric. Their Lordships think — I do not s 2 260 Practice of Cosin, Laud, and Wren. say whether rightly or wrongly, I do not under- stand it — that in the time before the civil wars, and therefore at the time when James the First's and Ehzabeth's book were in force, the position of the table was usually in the body of the church, and no doubt if the table were usually standing in the body of the church, then there would be a great deal of diflS- cultyin applying the word "before" to it. Accordingly the word " before " was applied to it because the old rubric was — " Then the Priest standing up shall say as follows : " — There is nothing about " before the table." But Archbishop Laud and others wished to put the table against the wall as it now generally stands, because they considered that that was the proper position for the table to occupy, and probably because they thought it would make it look much more like an altar. They did put the table against the wall, and not only so, but great dissensions arose about it, and one of the articles of impeachment against Bishop Wren was framed upon the fact of his having assumed the eastward position against the table. Wren and Cosin, and I think Laud him- self, were all more or less called into question for assuming that position. Then we know, after the civil wars, the rubric came to be resettled and the table had come to be placed along the wall as it commonly stands now. Then the party in power who settled the rubric, by way of affirming what had been the practice amongst the high church party before the civil war, drew up this rubric, " When the priest, standing before the table," having in their mind at the time the table in what has been called th^ altarwise position. Their wish was that the clergyman should stand in this very position which is now in dispute ; and I say, when the whole subject comes to be carefully studied and the different rubrics to be taken together, it will be perceived that all the difficulty that has been introduced into the subject arises from the expression " north side," being .applied under the impression that the table is in one Discussion by the Court as to Place or 261 place, and "before the table " being applied under the impression that the table is in the other place. The imagination of the person who devised the service has to a certain extent oscillated. When he draws the first rubric he is thinking of a table placed along the chancel. When he draws the rubric immediately preceding the Prayer of Consecration, he is thinking of a table standing against the wall, and that is proved by the fact that he used the expression " before the table " in the one case, which would have almost no meaning at all in the other case. When you are speaking of a square table or round table, every one is before it who is looking at it from any point of view. The Lord Chancblloe. — Do you say that if the table were in any part of the church, whether against the eastern wall or not, any person standing at any side of it was or was not standing before the table, I mean facing it either on the one side or on the other, any of the three sides or any of the four sides, if they were all open. If he goes to any one side and stands facing the table, would he or would he not be properly described as standing before the table? Sir James Stephen. — I should say generally, yes, but subject to this explanation, it would depend upon the shape of the table, because a table may be such a shape as this table at which your Lordships are now sitting, it may be of such a shape that one side is much more conspicuous than the other. I think inost people would say your Lordships were sitting before this table, and that I was standing at the side or end of it. The Lord Chancellor. — Does the length of the table make a difi^erence as to the meaning of the word ".before " ? Sir James Stephen. — It is a question of nicety of language. I do not think either is a mathematically exact expression, for if I were speaking with mathe- matical precision I should say that a man is standing before a table if a line drawn across his shoulders: 262 Shape of Table affecting meaning of ^^heforer is parallel to any side of the table ; it would be more natural to describe your Lordships either on the one side or on the other as sitting before the table, and me as standing at the end of it, than to say that I was standing before it. The Lord Chancellor. — To use the illustration I used a short time ago, supposing you were standing as you are at this table and the Registrar at the other end, and two persons at the centre of each side, all facing the centre of the table, which of them is, or are all of them, standing before the table ? Sir James Stephen. — I should say all of them are in one sense, but the two at the two long sides, more emphatically. I would venture to say, with deference, that your Lordships appear to me to be demanding of popular language greater precision than in the nature of the case can be given to it. If one wished to describe the matter as you would describe it in a conveyance, by metes and bounds, you would have to give the bearings and ascertain the position of the person by reference to them. My point is, that when you have a table placed against a wall, like the table at which the Registrar is sitting, then the natural way of speaking is to say, that the wall is behind the table, that that which faces the wall is before the table, and that the other two places are at the side of the table. The Lord Chancellor. — I suppose we must bear in mind what you told us just now, that you under- stood the preliminary rubric — the rubric at the beginning — to contemplate at all events the possi- bility of the' table being in the centre of the church? Sir James Stephen. — Yes ; the view that I sub- . mit to your Lordships is, that the rubric immediately preceding the Prayer of Consecration clearly con- templates an oblong table, as we know a communion table usually is, placed with one side against the wall of the church, and it is with reference to that that the expression " before " is used. It is of course Revisers of IQQl favoured Altarwise position of Table. 263 a matter upon which argument can go a very little way. The Lord Chancellor. — What rubric do you say contemplated the long side against the wall? Sir James Stephen. — The rubric which precedes the Prayer of Consecration. The Lord Chancellor. — Why does it occur to you that that contemplates the table standing against the wall ? Sir James Stephen. — I gave your Lordships my reason by referring to that book which is before your Lordships. In the earlier Prayer Book, the Prayer Book of Elizabeth, the rubric was, " The priest standing up shall say." Then that was struck out, and in 1662 the present rubric was substituted for it. Shortly before that rubric, namely, just imme- diately before the Civil Wars, great efforts had been made to secure the placing of the tables against the wall, no doubt in order to make them resume the place of the Roman Catholic altar. The Lord Chancellor. — I quite understand your reference to history, but I was afraid I had not got some references which you made to the rubric itself. Sir James Stephen. — When your Lordship com- pares the two rubrics together, it seems probable — bearing in mind the history of the transaction — that this later rubric contemplated that position of the tables which the authors of the rubric were notor- iously, exceedingly anxious to procure, and which in point of fact they did succeed in establishing, I believe, almost without exception, throughout the country. That being their object, I say it is a most significant fact that they brought in these words " before the "table" in the position which they now occupy. In illustration of this subject, I may just observe that there are two other remarkable instances in which the words "before the table " occur. I would compare the Communion Service with the Marriage Service. If your Lordships look at the rubrics in the 264 Meaning of " before " in the Marriage Service Marriage Service, you will see first of all the persons to be married come into the body of the Church with their friends and neighbours, then there are various exhortations; then just before the Psalm "Blessed are they that fear the Lord," comes this rubric — " Then the Minister or Clerks, going to the Lord's Table, shall say or sing this Psalm following." Then, after the Psalm, comes — " The Psalm ended, and the man and the woman kneeling before the Lord's Table, the Priest standing at the table, and turning his face towards them, shall say." As to that, I say the words "kneeling before the Lord's Table" correspond to the position of the clergyman at the Prayer of Consecration, and the front of the table means the position which we all know with regard to the Marriage Service. What renders it perfectly clear is the rubric of 1549 about marriage. There can be no doubt there what position the priest occupied. It says — " The Psalm ended, and the man and woman kneeling afore the altar, the priest standing at the altar, and turning his face toward them, shall say." That was at a time when it was an altar : the man and woman were to kneel before it, and the priest was to stand at the altar and to turn his face towards them. Besides the marriage service, in which case I say the words " before the table " clearly bear the meaning which I have put upon them, there is another remarkable and memorable instance in which the same words are employed. They are employed in the Coronation Service which your Lordships will find in Sir Robert Phillimore's work on Ecclesiastical Law, page 1059. The Service is there reprinted. The Lord Chancellor. — What is the date of it ? Sir James Stephen. — I think the Coronation Service was settled in the early part of the last century. I will not be quite sure. Unfortunately I and also in the Coronation /Service. 265 have only a copy of the rubrics and have not the book with me. I believe there were certain alterations of minor importance introduced for the coronation of King William the Fourth, but that substantially the service has remained unaltered for a great length of time before the Reformation. In the Coronation Service there are these rubrics : — " At the end of the Creed one of the bishops is ready iu the pulpit, placed against the pillar at the north-east corner of the Theatre, and begins the sermon, which is to be suitable to the great occasion ; which the Queen hears sitting in her chair on the south side of the altar, over against the pulpit. On her right hand stands the Bishop of Durham, and beyond him, on the same side the Lords that carry the swords," and so on. The Lord Chancellor. — What is the authority of the Coronation Service ? Sir James Stephen. — There obviously ia a Coron- ation Service, because the Act of William and Mary refers to the oath which is taken on that occasion. The Lord Chancellor. — I suppose the service is merely a service arranged by some Officer of State? Sir James Stephen. — I suppose there would be a concert between the officers of State and the Eccles- iastical officers, but it is a service for which there are very ancient precedents. The part of it to which I refer is when Her Majesty takes the Coronation oath she is described in the Coronation Service as " kneeling before the altar.'' I am told that the service is as old as the 12th century substantially. Unfortunately I have not got Sir Robert Phillimore's work on the subject, in which it is printed at large, but in that work it will be found that Her Majesty kneels before the altar, or before the table, to take the Coronation oath. There, therefore, I say, are two distinct instances in which the words " before the table " unmistakeably bear the interpretation which I seek to assign to them here, that is to say, in front of the west side of the table, and looking east. 266 Meaning of " before the people " is consistent Then comes the second part of this rubric : — " When tlie 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." And in the course of the prayer of consecration he is to break the bread. It is argued upon that, that breaking the bread " before the people " means breaking the bread " in the sight of the people," and not only breaking the bread in the sight of the people, but breaking the bread in such a position and such an attitude that, if not all, at any rate the great majority of the persons then present, should be able to see it. My Lords, I submit that, looking at the mere words of the rubric and construing them in the way in which your Lordships construe all documents of this kind, there is absolutely nothing to support that as being the only, the necessary, or probably the intended, meaning of those words. A man is said to do a thing " before the people " when he does it in a public and conspicuous place, and in the sight of the people, before whom he is said to do it. It is perfectly true that I am arguing this case before your Lordships, but there would be no impropriety of speech in saying that I argued this case before other persons standing at the back of the Court. In the same way any indifferent act which a person might do, such as opening or shutting books, reading papers or what not, might be perfectlj' well said to be done before those who happened at the moment to be standing at his back. Indeed, to take a military illustration, if your Lordships heard that an officer was holding the colours before his regiment (suppos- ing he ever does assume such a position, as to which I say nothing), one would imagine to one's self the regiment drawn up in some kind of formation, and the officer in front of it. Or suppose you said he was standing with his sword drawn before his men, surely with Eastward Position of the Celebrant. 267 that would not in any way mean or imply that he had turned round to the men so that they might actually see the drawn sword in his hand, and see the hilt of the sword. It would be a very violent and strained construction to put upon it. It seems to me singular to sav that a person standing and speaking imme- diately in front of a large number of other people, is not speaking before them, and yet he certainly is speaking with his back turned to them. If your Lordships look merely at the words and explain them simply as they stand, I venture to submit that they are equally well fulfilled, whether the clergyman stands facing the Communion table, and with his back to the people, or with his back to the Com- munion table, .facing the people, because, in either case, if he break the bread in the one attitude or the other, he equally breaks the bread before the people. The observation I have to make is so very short and simple, that I do not think it would serve any purpose to illustrate it any further. I have come to the end of the examination of these rubrics, and I repeat the proposition with which I began, which was, that upon a comparison and con- sideration of all the rubrics taken together, there is nothing to show "that a clergyman who occupies the position occupied by Mr. Ridsdale on this occasion, was offending against the ecclesiastical law. I think that I might, if I were engaged in a task, in which I sincerely hope for all reasons I never may be engaged, the task I mean of prosecuting some person who did not assume that position, I might point out that there was a good deal to be said; for one might contend, with considerable plausibility at all events, that that position was not only a lawful position, but the lawful position, the position required by law. I am, however, very far indeed from saying that. I say that Mr. Eidsdale is charged with' an ecclesiastical offence, and it is not he alone, but very many other persons who are in the habit of following the same practice. I say, that being charged with 268 Position of the Celebrant as held by J. Committee in that oflFeiice, he is entitled to that presumption of innocence which every person is enlitled to who is charged either with a crime or with a wrong. If it can be shewn that a reasonable construction of the very words of the rubric justifies that which he did, your Lordships would be exceeding those high functions which are ascribed to you, if you were to find him guilty, and thereby to narrow the line of what is legal to one out of several possible meanings. I do not at all mean to say that there are not other possible meanings. I admitted at once, when the Lord Chancellor put it to me, that it is almost im- possible to assign any distinct meaning to some of the words of one of the rubrics, if you imagine the table placed in what would be a perfectly lawful position — that is to say, in the body of the church, — and if I am asked whether there is no rule upon these matters, I should' say there are many things about which there is no rule, then there can be no ofifence against the rule. I now pass from my own view of the subject to con- sider the view of the case taken by their Lordships in the judgment in Hebbert v. Purchas. Their Lordships' judgment on that point begins at page 657 and goes down to 661 of the Law Reports. Upon the first part of it, I have no occasion to offer any remarks, because it deals only with the facts. I wiU therefore begin what I have to say by referring to page 658 — " 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 shews how much interest this question excites, and which has probably left few of the facts unnoticed." I hope your Lordships will not feel that I have failed in my duty towards you, the duty of giving you aU information that I can on the subject, by not detailing this large mass of controvei'sial hterature ; but if your Lordships think you will derive any information upon the subject from such a detail, I of Hebbert v. Purchas — meaning of " North-side " 269 course should feel it my duty to enter into the subject on an intimation of your Lordships' pleasure to that effect. They proceed to say — " The rubric upon tlie 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 rubric of 1552, 1559 and 1604, ex- cepting 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 following. The table is a moveable table." Then follows a reference to the Injunctions of Queen Elizabeth, which I need not read, and then they say — " If this custom still prevailed, of bringing the table from the east and placing it in the chancel, the two rubrics would present no diflBculty. 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 consecra- tion in the second book of King Edward 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." Upon that, I have only to remark that, for the reasons which I have given your Lordships, it would seem that the revisers had the one practice in view in the one rubric, and that the whole difficulty introduced into the subject is by their having the other practice in view when they spoke of the north side of the table. They then enquire — " What is meant by ' the north side of the table ? ' What change, if any, is 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 Lord- ships are of opinion that ' north side of the table ' means that side which looks towards the north." As your Lordships have partly seen, and as you may see more fully from some later remarks in the 270 riot to be inferred^ they say, from pre-reformation judgment, that observation, obvious as it appears, cannot be taken without qualification, because their Lordships put the case of the Chapel Royal, which is built in such a manner that the chancel wall, instead of being east, is due south; and consequently, if the table is put against it, the north side of the table is what is now commonly the west side of the table. The Lord Chancellor. — The rubric contemplated, at all events, the possibility of the table being placed in the centre ? Sir James Stephen. — The rubric distinctly con- templates the possibility that the table may be placed in one of the two positions in the Church; but I think your Lordships will find that the rubric nowhere betrays any consciousness on the part of its authors, that the church itself might be built with reference to entirely different points of the compass. It is very difficult to believe that the arrangement of the table was intended to have respect to the points of the compass, and not to the arrangement of the church. Their Lordships go so far as to say, that if a church were built south and north, so that the wall of the chancel were the south wall, and the north side of the table would be where the west side usually is, there would be a conflict between the letter and the spirit of the rule. I mention that observation for the sake of remarking that even the plain and obvious remark with which their Lordships began, requires some degree of limitation before it can be fully accepted. Their Lordships go on to say— " They have considered some ingenious arguments intended 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 mens a consecratoria and sigillum altaris, that the part of the altar north of this was called north side, and that to the south of it was called the south side. Without inquiring whether English altars were generally so con- structedj which is, to say the least, doubtful, their Lordships observe that in the directions for the substitution of a move- terms, nor from the analogy of Jewish Ritual: 271 able table for the altar, and for its decent covering, and its position at various times, there is no hint that this is to revive this peculiarity of the altar which it replaced ; and they do not believe the table was so arranged or divided." For the reasons which I have intimated, I do not go into this question. I think if I did I might be able to show your Lordships some reasons for sajdng that their Lordships had not been informed of all the literature upon the subject. However, they go on : " Another argument is drawn from the Jewish . ritual." A few lines further on their Lordships say that this argument appears to them extremely remote and shadowy, and as I have not drawn any argument from the Jewish ritual, I do not think it necessary to make any observation upon it. Then they say — " When it became the custom to place the table altar-wise against the east wall, the rubric remained the same. And there are many authorities to shew that the position of the minister was still upon the north side or end facing south." Authorities are quoted for that. I do not want to enter into the matter, because the criticism I make upon their Lordships judgment is, that without ex- amining the intermediate rubrics to which I have directed your attention, and without remarking on the silence of the rubric as to many points at which it is obvious that some movement must have taken place they go on further to decide — " that the north side is the proper place for the minister throughout the Communion office, and also while he is saying the Prayer of Consecration." In other parts of the judgment they state that the prayer of consecration is to be used at the north side of the table, so that the minister looks south, whether the broader or the narrower side of the table be to- wards the north. In short, if the judgment whicb I am referring to is good law, and is to be followed by your Lordships (and of course I cannot deny that it is law at this moment) the rubric ought not to run as at present : 272 their Conclusion virtually alters the Rubric. " The priest standing at the north side of the table shall say the Lord's prayer with the collect following." But it ought to run thus : " The Priest shall stand at the north end of the table being placed against the east wall, throughout the whole of this service, and shall look with his face to the south, except when it is otherwise hereinafter directed." That is the effect of their Lordships' judgment. I need hardly say that, to redraw the rubric in that way would be, instead of interpreting the old rubric, to make an entirely new one. No doubt if that is the interpretation of the law we are wrong, but if it is not the case then the judgment in Hehbert v. Purchas is wrong, for it implies that that and nothing short of it is the law, and I humbly venture to suggest to your Lordships that the inference from that is, that the judgment in Hebbert v. Purchas does not represent the true effect of the rubric, but very greatly extends it. Their Lordships are ob- viously pressed with the difl&culty as to the position of the clergyman during the arrangement of the bread and wine. If he is always to be standing at the north side, and always looking with his face due south throughout the whole service, how is he to get round to the front of the table in order that he may arrange the bread and the wine. I submit that that difficulty is a refutation of the proposition which involves it. But their Lordships use it in this manner — they say : " That the rubric was purposely framed so as not to direct or insist on a change of position in the minister, which might be needless ,• though it does direct a change of posture from kneeling to standing. The words are intended to set the minister free for the moment from the general direction to stand at the north side for the special purpose of ordering the elements, but whether for this purpose he would have to change the side or not is not determined, as it would depend on the position of the table in the church or chancel, and on the position in which the elements were placed on the table at first. They think that the main object Andalso the Rubric '■'■standing before the Table^'' Sfc 273 of this part of the rubric is the ordering of the elements ; and that the words ' before the table' do not necessarily mean ' between the table ' and the people," (this seems to admit that it is the more natural meaning) " and are not intended to limit to any side/' I pointed out just now how it would be necessary to remodel the rubric about the north side in order to give effect to the judgment in Hebbert v. Purchas. I will now point out how it would be necessary to re- model the rubric immediately prefixed to the prayer of consecration, in order to give effect to the same judgment. " When the Priest, standing before the table, hath so ordered the Bread and Wine," &c. Those are the words. Now, this is the meaning of the words, according to the judgment in Hebbert v. Purchas : " The Priest may, if he thinks proper, and if circumstances require, leave the north end of the table for the purpose of so ordering the bread and wine as to enable him with the more readiness and decency to break them in such a man- ner that the people shall see him do it, and having so done, if required, then he shall say as follows." Of course the words are very rough — they are those which occur to me at the moment, but that, I sub- mit, is not interpreting the old rubric, but making an entirely new one. First of all, you must erect the rubric about the north side into a general direction which overrides the whole communion service, and when you have done that you have not done enough, unless you make a special exception here authoris- ing the clergyman to leave the north side, if circum- stances should require him to do so, in order that he may so arrange the bread -as to be able to break it in a place where the congregation may actually see him going through the process of so breaking it. There is only one other matter to which 1 have to call your Lordships' attention in connection with this branch of the subject, and that is, the bearing upon this case of the case of Martin v. Mackonochie. In the judgment of Hebbert v. Purchas^ your Lordships observed — 274 Bearing of P. C. Judgment. Martinv.Machonochie "The learned Judge in the Court below, in considering the charge against the defendant that he stood with his back to the people during the Prayer of Consecration, briefly observes : ' The question appears to me to have been settled by the Privy Council in the case of Martin v. Mackonochie.' The question before their Lordships, in that case, was as to the posture, and not as to the position of the minister. The words of the judgment are : ' Their Lordships entertain no doubt on the construction of this rubric ' [before the Prayer of Consecration] ' that the priest is intended to continue in one posture during the prayer, and not to change from standing to kneeling, or vice versa ; and it appears to them equally certain that the priest is intended to stand and not to kneel. They think that the words, 'standing before the table,' apply to the whole sentence; and they think that this is made more apparent by the consideration that acts are to be done by the priest before the people as the prayer proceeds (such as taking the paten and chalice into his hands, breaking the bread, and laying his hand on the various vessels), which could only be done in the attitude of standing." Your Lordships will find that passage in the report of Martin v. Mackonochie, 2 Law Reports, Privy Council, 382. Now, the charge against Mr. Macko- nochie in that case was, that at a particular part of the administration of the Communion he knelt down, when nothing about kneeling is said in the rubric. Their Lordships held that he was not entitled to do so; that it was clearly not an indifferent, but a ceremonial act, an act which was meant to form a part of the ceremony, which ceremony is, of course, intended to be regulated with minute precision. Accordingly, their Lordships held that which has been read to your Lordships. 1 think it desirable myself rather to extend the quotation from that judgment. I begin at page 381 ; the conduct is described— " The respondent, after commencing the Prayer of Con- secration standing, paused in the middle of the prayer, knelt down, inclining or prostrating his head towards the ground, and then rising up again continued the prayer standing. In order to bring the conduct of the respondent, on this head, to the test of ecclesiastical law, it is proper now to turn to the rubric of the order of the Administration of the Holy Cora- upon this case: how applied by Sir. E. Phillimore, 275 raunion. The Lord's Prayer and the Collect, with which the service commences, are to be said by ihe 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 ?eople still kneeling,' implying that the priest is still to stand, his 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 sermpn, 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 of posture, and then, at the Confession, he, as well as all the people, are directed to kneel. Por the absolution and the sentences which follow, the priest is directed to stand up and turn himself to the people ; for the words ' It is very meet,' &e., 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 presume,' &c. The rubric before the Prayer of Consecration then follows, and in these words, ' 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 follows : ' Their Lordships entertain no doubt on the construction of the rubric, that the priest is intended to continue in one posture during the prayer, and not to change from standing to kneeling, or vice versa ; and it appears to them equally certain that the priest is intended to .stand and not to kneel. They think that the words, ' standing before the table,' apply to the whole sentence; and they think this is made more apparent by the consideration that acts are to be done by the priest before the people as the prayer proceeds (such as taking the paten and chalice into his hands, breaking the bread, and laying his hand on the various vessels), which could only be done in the attitude of standing." Sir Robert Phillimore, when sitting as Dean of Arches, as has been mentioned to your Lordships, was of opinion that the eifect of that was to show that the words " standing before the table " applied to the whole sentence, and surely, my Lords, that is precisely the very thing that is said: the words " standing before the table " apply to the whole sen- T 2 276 and by J. Committee in Hebbert v. Purchas. tence. According to the judgment in Hebbert v. Purchas, one would have to read it in this singular manner : the word " standing " applies to the whole sentence, but the words " before the table " do not apply to the whole sentence, because he is to stand throughout, but during part of the celebration he is not to be before the table, or, at least, not before the table in the ordinary sense of the word, but he is to go round to the side of the table after he has ordered the bread and wine. He is to go first of all from the end of the table to the middle of the table— there he is to order the bread and wine — then he is to go back to the place where he originally was standing — then he is to read the prayer of consecration, in the course of which he is to break the bread. I may just observe upon that, that I should have thought that a person standing at the narrow end of the Com- munion table, probably with a cushion, and prayer books, and so forth, before him, would find consider- able difficulty in breaking the bread in the sight of the people in any becoming manner, that it would be necessary to reach over in a way which might be very unseemly, in order to perform that operation, and, tha|i being so, it certainly seems a strained construction of their Lordships' judgment in Martin v. Mackonochie to say, that they meant that the word " standing " applies to the whole sentence, and that " before the table " meant going backwards and forwards twice, if not more than twice, to diflferent parts of the table. ' It is as strained a construction of their Lord- ships' judgment to interpret what they say in that manner, as it was a strained construction of the two rubrics which I read, to make the one of them govern the whole of the celebration of the Commun- ion, although, for the reason which I have shown to your Lordships, by going through the whole service, it cannot possibly do so, and then to make the other state a most elaborate and intricate exception to a rule which never was stated at all. I cannot help pressing upon your Lordships, first of all, that upon Usage canbe shewnof E.PositioninEng. ^ Amer. Ch. 277 a full consideration of the rubrics, and of the manner in which they were revised, and the histor- ical circumstances connected with them, this position is not forbidden ; and, in the second place, that the case of Martin y. Mackonochie is absolutely inconsis- tent with its being illegal. I do not go further than that. I do not wish to say that the doctrine laid down in Martin v. Mackonochie would render this position obligatory on all persons, but I do empha- tically say, and I trust your Lordships will not think I say so in vain, that the decision in Martin v. Mack- onochie is inconsistent with the alleged illegality of the conduct which has been pursued by Mr. Ridsdale. That is all I have to say on the subject of these two positions. There is one fact which I am desired to state in general terms, and which I do state accor- dingly, and that is, if your Lordships should in any way consider usage upon this subject as material, or that it is a matter of any importance to show that the usage upon this matter has been, either in this country or in the Episcopal Church of America, which is in some degree connected, because it is recognised by Act of Parliament as in Ecclesiastical connection with the Church of England, I shall be prepared to show many striking instances of the extent to which this usage has prevailed, not only in the present day, but for a very great length of time. I can carry it back, if necessary, to the middle of the last century. However, I prefer to rest the case upon the argument which I have addressed to your Lordships. The only remaining point is that relating to the position of the Crucifix. Lord Justice James. — There is nothing about lights. SiE James Stephen.— No, we have nothing to say to that. There are only four points. It would be a very great personal favor if your Lordships would allow me to conclude my argument for to-day. The Loed Chancellor. — Very well. \ Adjourned to to-morrow at 10.30.J 278 Supplementary remarks on the meaning of Friday, January 26th. Sir James Stephen.— My Lords', in the course of the argument yesterday some observations were made upon the subject of wafer bread, and I am; now in a position to give your Lordships some infor- mation which is new to me, for which I am indebted to my friend Dr. Phillimore, which I venture to hope may not be altogether without some interest to your Lordships, as to the history and meaning of the word wafer. What I am about to saiy is to be seen in a variety of authorities, the most impor- tant of which is Littr^'s recent great French dic-. tionary. It appears that the whole history of the word "wafer" is as follows: The root of the whole is gabe, which is the German for a cell of a honeycomb. From gahe^ according to Littr^, came gatiffre, meaning a honeycake. Then, inasmuch as honeyeakes were made flat and round, you get the word " wafer," a round or flat cake ; and to pass to two other authorities which are deserving of con- sideration, though perheips not often quoted in Courts of Law, if your Lordships look at FralncatelU's Cookery Booh, you will find a description of certain things which are called almond guaflfces, and an almond guafl[re is a piece of flat honeycake twisted round into ornamental shapes. As showing how the word "wafer" means "flat" and "flattening," I may go on to say that the wafers used as Sacramental wafers were made, as I am informed, by pinching them out of a flat sheet of flour with an instrument some- thing like a pair of curling tongs ; and from that again there came another phrase which has gone into another department of things, — ^ladies' dress. It appears that a lady's gown, when it is fastened down in pleats in some way, is said to be gauffred, and that is because it is flattened with a flattening iron. Your Lordships now have it entirely before you, and your Lordships the word " Wafer^ — Lawfulness of the Crvxijix. 279 see that I was more correct than I had any right to be, seeing that I was merely speaking from common knowledge of language when I said that the mean- ing of wafer is simply a flat and thin substance made in this manner. Sir Robert PniLiiiMORE. — Wafel is the low Ger- man word? Sir James Stephen. — ^Yes; it is the same word which has taken different forms. The result of the whole is that a wafer may be of various substances and was originally usually made of honeycomb. As to the singing-cake, I can give your Lordships in- formation about that. They were wafers made in this manner, and they were called singing-cakes because of singing the Mass ; some people say it is from singeing irons. I do not know how that may be. At all events, the word singing-cake had come into popular use, and had come to be used for a wafer such as is used for sealing letters. In the Harleian MSS, Vol. Hi, octavo edition, p. 171, in a tract written in 1590, your Lordships will find the expression, " Letters finished and sealed up with a singing-cake," just as we might say " sealed with a wafer." The net result of the whole is, that when a person is said to have used a wafer, he is said to have used a flat thin substance just as I stated to your Lordships, but that flat thin substance may be of honey or of bread, or of any other material which may be provided for the purpose. So much, my Lords, for that matter. The Crucifix. I now come to the fourth and last point of this case. It is a point relating to the lawfulness of a certain crucifix or figure, which we say was a lawful architectural decoration, and which they say, on the other hand, was an illegal image. This matter is charged in the 11th Article of the charge at p. 4 of the Appendix : " That th© Eeverend Charles Joseph Ridsdale, without lawful authority and unlawfully and since the consecration 280 Question — whether the Faculty for the Screen of his said Ohurcli, that is to say in the year 1872, set up and placed upon the top of the screen separating the chancel of the said Church from the body or nave thereof, and still un- lawfully retains there a crucifix and 24 metal candlesticks with candleSj and that at the ordinary Evening Service on Sunday January 4th, 1875, the said candles were lighted on either side of such crucifix and so continued during such service although the other lights in the Church were amply sufficient to light the Church, and the said candles were not needed for that purpose/' Some question was raised in the Court below upon the subject of the legality of this figure in connexion with the presence or otherwise of a faculty; hut that matter, I believe, will not be brought before your Lordships. SiK Robert Phillimoee. — Was there a faculty in this case ? Sir James Stephen. — There was a faculty for the screen, and there was a question whether the faculty included the crucifix ; but the object is not to raise any technical question of faculty or no faculty, but that the legality of the figure itself xnay be determined. That is, as I understa,nd from my learned friend, the question before your Lordships, and that is the question treated by Lord Penzance. The Lord Chancellor. — I should like to under- stand exactly how the matter of fact is. In this case was there, in point of fact, a faculty for the erection of which you speak ? Sir Jambs Stephen. — There was a faculty for the erection of the screen across the chancel, of which this crucifix, as it is called, formed a part. Whether the faculty did or did not distinctly recognise the figure upon the cross, is a question which was, to some extent, in dispute before the Court below. Sir Robert Phillimore. — Was there a drawing appended ? Sir James Stephen. — There was a ground plan of the alterations shewing where the screen was to go. The Lord Chancellor. — That did not in any way shew what the character of the screen was to be ? Sir James Stephen. — The plan in itself does not included the Crucifix — remarks of the Court. 281 shew the figure on the screen, no doubt. Lord Penzance, in his Judgment, treats that as an im- material question. The object of both parties was that the general legality of the figure itself should be before you. I have the whole of the faculty in my hand. [Counsel and parties were directed to withdraw^ and their Lordships deliberated. After an interval Counsel and parties were re-admitted^ The Lorb Chancellor (to Sir James Stephen.) — Their Lordships desire you should know that they think you must be prepared for their holding that the absence of a faculty in this case, if there be not a faculty for this erection, is a material element, and that they cannot, in a case of this kind, accept an admission between the parties in the place of a faculty, if a faculty be required. Sir James Stephen. — Having received that inti- mation from your Lordships, I will continue my argument on the question. The Lord Chancellor. — Quite so. Take what course you think fit. Sir James Stephen. — Then, my Lords, I was about to say — and I think that it is all the more desirable that I should say it after the intimation I have received of your Lordships' views — a few words in relation to this faculty, and to the course which has been taken upon it in the Court below. The facts of the case, with reference to the faculty, are ex- tremely simple. Your Lordships will find a copy of it at page 42, and following pages, of the Appendix, and the material portion of the faculty with reference to this subject is at line 15, or thereabouts, on page 43: " To remove the present choir-steps and stalls further eastward, to alter the level of the chancel, to build a dwarf wall, with screen thereon of light ironwork, between the chancel and nave, to remove the altar further eastward." And so on.^ The material part of that faculty is : 282 Bearing of the P. W. R. Act upon the Crucifix. " To build a dwarf wall, with screen thereon of Mght ironwork." The facts are that this screen was, accordiagly, built in that position, and, probably, your Lordships will take that statement of fact from me, because it rather makes against me than otherwise, that the screen was erected in its present form, the important part of which is depicted in page 42 of the case. That screen was erected in that shape without further faculty, and without, I believe, either notice or enquiry on the part of the authorities of the diocese, on the part of the Chancellor, or any other person. That being the state of the facts, the next point to which I wish to direct your Lordships' attention in connection with the faculty is, the Public Worship Regulation Act of 1874, under which these pro- ceedings are taken — the 37th and 38th Victoria, cap. 85, section 8. The grounds upon, which the persons specified in the Act may make representations which set the law in motion are specified in that section, and the first ground is that — • "In such church any alteration in or addition to the fabric, ornaments, or furniture thereof, has been made with- out lawful authority, or that any decoration forbidden by law has been introduced into the church." That is the material part of what they may represent, and it is upon those words that the representation which objects to this screen and to the crucifix put at the top of it is founded. LoEB Sblboenb. — Both things seem to be alleged; in the 11th, that it is done without lawful authority; and, in the 13th, that it is forbidden by law and unlawful. SiE James Stephen. — The 11th is the one to which I have been more particularly attending. The 11th article of the representation refers explicitly, point- edly, and in words, to the screen and to the figure on the screen. The words speak for themselves : " That he placed upon the top of the screen separating Facts as to the eredthn of Screen and Crucifix 28S fhe ciiaTioel of the saM chuf eh from the body Or nave thereof^ and still unla\Suvpiic e-&c. IF An order for Morning Prayer dayly ^ and E - uenift g place h^re afayre Compartment: throughout the yeere, N.B. The words underHned are so marked either by Cosin or Sancroft. these are ye words of ye Act itself v. Supr. N.B. The words " these are " &c. are in Sancroft' s hand. 318 Paper of Dates handed into Court. No. IV. — Dates eefeebed to dueinq the Aequment. (See p. 127.) Jan. 28, 1647. — Accession of Edward VI. 1549. — Act of Uniformity authorising First Prayer-book of Edward VI. June 9, 1549. — First Prayer-book of Ed. VI. came into force. 1552. — Act of Uniformity authorising Second Prayer-book of Ed. VI. Nov. 1, 1552. — Second Prayer-book of Ed. VI. came into force. July 6, 1553. — Accession of Queen Mary. * Dec. 20, 1553. — Eestoration of Services of Henry VIII. Nov. 17, 1558. — Accession of Queen Elizabeth. Death of Cardinal Pole, Abp. of Canterbury. Jan. 25 to May, 1559. — First Parliament of Elizabeth. Act of Uniformity authorising her Prayer-book. Between June 1 and 24, 1559. — Injunctions of Queen EHzabeth. June 24, 1559- — Commissions to Visitors. Same Date. — Prayer-book of Elizabeth came into force. July 19, 1559. — High Commission Court. Dec. 17, 1559. — Parker Consecrated Abp. of Canterbury. 1561. — Interpretations of the Injunctions. {It was contended hy Dr. Stephens, for the Respondent, (see p. 412.^ that 1559 is the date of this I)ocument.'\ Jan. 25, 1564-5. — Queen Ehzabeth's Letter to Abp. for Uniformity. Paper of Dates handed into Court, continued. 319 Marcli 28, 1566. — Publication of Advertisements. 1571. — Canons proposed, but not ratified. 1575. — Otber Canons ratified by. Queen. March 24, 1603. — Accession of James I. Jan. 14 to 16, 1603-4.— Hampton Court Conference. Feb. 9, 1608-4. — Letters Patent authorising James' Prayer- book. Marcli 5, 1603-4. — Proclamation authorising James' Prayer- book. March 20, 1603-4. — Summoning of Convocation. July 9, 1604. — Passing of the Canons by Convocation of Canterbury. 1606. — Passing of the Canons by Convocation of York- 1636. — Scotch Prayer-book. 1641. — Lords' Committee. May 29, 1 660.— Eestoration of Charles II. March 25, 1661. — Commission for Savoy Conference. July 24, 1661. — Termination of Savoy Conference, May 19, 1662. — Act of Uniformity authorising present Prayer-book. Aug. 24, 1662. — Present Prayer-book came into force. 320 Argt. of Mr. Charles — Ornaments note unambiguous. ARGUMENT OF MR. ARTHUR CHARLES. Mr. Charles. — My Lords, I am with my learned friend, Sir James Stephen, in this case, and I desire, with your Lordships' permission, to add, on behalf of the Appellant, a few observations upon each of the topics upon which my learned friend has ad- dressed your Lordships ; and, having regard to the length and fulness of the argument of my learned friend, I trust I shall not have to occupy any very large portion of your Lordships' time. Now, my Lords, in following the argument of my learned friend, I think it .will be convenient if I do so in the same order as he has presented it, and deal first with the Vestments; secondly, with the Wafer Bread; thirdly, with the question of the eastward position ; and, lastly, with the question of the Crucifix. At the commencement, and again at the end of my learned friend's argument upon the Yestments, he stated very shortly to your Lordships what our contention with regard to them was. We submit that the ornaments note in the Prayer Book of 16,62 is unambiguous, and that the true construction has been placed upon it by the two cases of Liddell v. Westerton and Martin v. Mackonochie ; and that, according to such construction, the Appellant is still entitled to use any of the vestments prescribed by, or used under — perhaps I ought to use the words, " pre- scribed by " — the first Prayer Book of Edward VL In opposition to this view, is the view of. the Judges Hebhert v. Purchas held that Rubric was '■''recast:''^ 321 in Hebbert v. Purchas, for their Lordships in that judgment, quite apart from the remarks which they offer upon the legislation which intervened between the year 1551 and the year 1662, differ entirely in the construction which they place upon the Orna- ments Rubric itself. Whilst Liddell v. Westerton and Martin v. Mackonochie both stated that the Ornaments Rubric of the Prayer Book of Elizabeth, of the Statute of Elizabeth, of the Prayer Book of James, and of the Prayer Book of 1662, obviously meanC, and were intended to mean, the same thing, their Lordships, in Hebbert v. Purchas, in deaUng with the Ornaments Rubric of 1662, stated that that Rubric was " recast entirely." It is with this part of the judgment that, with your Lordships' permis- sion, I will deal first. In support of the assertion that the Rubric of 1662 was "recast entirely," their Lordships relied upon two alterations in it. They relied upon the introduction into the Rubric of the word " retained," and of the words "at all times of his ministration." And those two alterations, in their Lordships' opinion, amount to an entire recasting of the rubric. In regard to the word " retained," I should wish to call attention to the fact that the revisers of 1662 had before them one, and only one, statutory form of the previous rubric, that is to say, the form in the Statute of Elizabeth itself. The Prayer Book of Elizabeth differed from the Prayer Book of 1662 in this, that it was not scheduled to the Elizabethan Act of Uniformity. The Prayer Book of 1662, as your Lordships are aware, was scheduled to the Act of Uniformity of Charles, and by that Act it is expressly ordered that the Prayer Book should be annexed. The Prayer Book of James was not sanctioned by Parliamentary authority at all, but was issued by Royal Proclama- tion, and the consequence was, that when the revisers of 1662 came to deal with the ornaments rubric, they had, as I have said, no statutory form of rubric to deal with, except that contained iji the 322 this discussed : the R'ubric based upon the statute of Elizabeth, although, of course, the inter- pretation placed upon it by the Prayer Book of Elizabeth can still be used as contemporanea expositio. The Lord Chancelloe. — What is the statute of Edward VI.? Mb. Charles. — The second Prayer Book of Edward VI. was annexed to the Statute of Edward VL The Lord Chancellor. — What did the statute say about it? Mr. Charles. — The section is as follows : — " The King's most excellent Majesty .... hath caused the aforesaid order of common service, entitled the ' Book of Common Prayer,' to be faithfully and godly perused, explained, and made fully perfect, and by the aforesaid authority hath annexed and joined it, so explained and per- fected, to the present statute." Thus, the first Prayer Book of Edward VI., ex- plained, altered, and made fully perfect, and in the form of the second Prayer Book of Edward VI., was annexed to the second Act. The Lord Chancellor. — Do you say that the second Prayer Book was annexed to the second Act? Mr. Charles. — Yes. The second Act of Edward VI. recites the fact that a Prayer Book was in existence, it alters that Prayer Book, and annexes it, and in that respect the statute of Charles follows the statute of Edward; but the statute of Elizabeth simply enacts that the second Prayer Book of Edward VL, "with one alteration, or addition of certain lessons to be used on every Sunday in the year, and the form of the Litany altered and cor- rected, and two sentences only added in the deUvery of the Sacrament to the Communicants, and none other or otherwise" be used for the future, but it does not annex the book. [Adjourned for a short time.] Mr. Charles. — My Lords, I had just obseryed that the only statutory rubric previous to the Prayer Book of 1662 was the 25th section of the Elizabethan Act 0/1559, where '"''retained " refers to the future : 323 Act of Uniformity ; and I submit, with regard to the use of the word " retained," that, far from " retained " being used with any intention of recasting the rubric, it was a natural recurrence on the part of the revisers of 1662 to the very words of the Statute, a recur- rence which was natural, because they were aware that objections had been taken to the rubric of James by the Puritan party which they had declined to accede to, and, therefore, they may well have thought fit to recur to the statutory form as the most satisfactory which they could adopt. That being so, I desire to call your Lordships' attention to the fact that in the Statute the word " retained " refers, beyond all question, to the future — " Provided always, and be it enacted, that sucli ornaments of the Church and of the ministers thereof shall be retained and be in use, as was in this Church of England, by the autho- rity of Parliament, in the second year of the reign of King Edward the Sixth, until other order shall be therein taken by the authority of the Queen's Majesty with the advice of Her Commissioners,. . . , or of the Metropolitan of this Realm." The Lord Chancellor. — Your impression is, that "retained," in the Statute of Ehzabeth, is to be read with reference to the words "further order"? Mr. Charles. — Yes ; that is the observation I would make, " shall be retained until further order is taken." The word " retained," therefore, I sub- mit, in the Statute, clearljr had application to the future and not to the past. Of course, the other part of the section has reference to the past by men- tioning the period of history which is recurred to. Why, then, should it be assumed, as their Lordships, in Eehbert v. Purchas appear to have assumed, that when the revisers in 1662 adopted the word "retained " from the Statute, where it bore a meaning with reference to the future, in their own note it should have reference to the past? Because, as I understand the suggestion of their Lordships as to this part of the alleged recasting of the rubric, it is that the word "retained" is only apt to keep what was Y 2 324 proof of this from Cosin and Bancroft; Martin v. in use at the time that they themselves were altering the rubric. The Loed Chancellor. — In order to understand your observation, let me ask you this — To what, do you say, the word "retained" in the rubric of 1662 referred? What future words are there there to attach to it ? Mr. Charles. — There are no future words in the rubric of 1662 to which it can be attached; but I suggest that they went to the Statute for the word, where it bore a signification with reference to the future — "retained until." They were making a re- vision of the Prayer Book which was to be final, and the word " retained " is equivalent to " remain and be," or " be kept for good," instead of " be kept until" further order, and the word is used without reference to , any thought of keeping only what was then actually in use. I would refer your Lordships to the statement which is already before your Lord- ships in the paper which has been handed to the Court. In Cosin's and Bancroft's Alterations of the Ornaments Note we find, in Cosin's handwriting, the words, " Such ornaments of the church," &c., down to the end ; and then comes this — " These are the words of the Act itself. Vide supra" in Cosin's handwriting. {See No. III. p. 317.] The Lord Chancellor. — That was not correct, was it, because the Act did not contain the words ^' at all times of their ministration"? Mr. Charles. — That is so. It is an inaccurate reference as far as regards the words " at all times of their ministration," but accurate with reference to the introduction of the word " retained." I do not think my learned friend read to your Lordships the passage in Martin v. Mackonochie, in which this matter is referred to. He read a part of it, but he did not read the whole of it. The part of it which my friend read was the part as to the term " ornaments " in the rubric, meaning those articles the use of which in the services and ministrations of the Church is prescribed MdckdnocMe compared with Hebbert v. Purchas. 325 in the first Prayer Book of Edward VI. (Brooke's Privy Council Judgments, page 128). Their Lord- ships pi'oceed : " The rubric of our Prayer Book miglit have said those ornaments shall be retained which were lawful or which were in use in the second year of Edward VI., and the argument as to actual use at the time and as to the weight of the Injunction of 1547 might in that case have been material. But the rubric, speaking in 1661, more than a hundred years subsequently, has, for reasons which it is not the province of a judicial tribunal to criticise, defined 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 Ohurch by the 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." Now, my Lords, I proceed to make a few obser- vations upon the other reason given in the Judgment in Hebbert v. Purchas, from which their Lordships derive the conclusion that the rubric was recast in 1662; I mean the introduction of the words, "at all times of their ministration." Their Lordships say that the introduction of those words, without the words which had in all former rubrics distinguished the Holy Communion from other ministrations, is a very significant circumstance. " 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 former rubrics distinguished the Holy Communion from other ministrations ; a mode of expression more suit- able to a state of things wherein the vestments for all minis- trations had become the same. The change also brought in the word ' retained,' which, it has been argued, would not include things already obsolete. Whatever be the force of 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." But, my Lords, to the rubric in its alleged recast 326 Objections of Baxter andoihers to new Rubric shew form the Puritans objected with equal vehemence. One member of the Puritan party who was present at the Savoy Conference, was Richard Baxter, and Richard Baxter, in the year 1668, six years after the enactment of the present rubric, was invited, it appears, to a conference with some of the Episcopal party, with a view to a scheme of comprehension and toleration being arrived at. I am reading from Sylvester's Life of Baxter, page 23. It is Baxter's own life edited by Sylvester ; it is an autobiography. Now, their Lordships, in the Judgment in Hebbert v. Purchas, quite truly said that — " 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 now commanded which were used by Edward VI./ 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." But what I am anxious to press upon your Lord- ships is this, that Richard Baxter, one of the most prominent members of the Savoy Conference, and one of the most prominent members of his party, took the same objection to the new rubric as had been taken to the old ; in other words, he thought that the Bishops had kept their word when they said that they thought fit the rubric should remain as it was, and that they had left it as it was, although indeed they had introduced " at all times of their ministration " and the word " retained " from the Statute. At page 123 he says : " In January '68 I received a letter from Dr. Manton that Sir John Barker told him that it was the Lord Keeper's desire to speak with him and me about a comprehension and toleration. WhereupoUj coming to London, Sir John Barker told me that the Lord Keeper spake to him to bring us to him for the aforesaid thing, and that he had certain proposals to offer us, and that many great courtiers were our friends in the business, but that, to speak plainly, if we would carry it we must make use of such as were for tolera- tion of Papists also j and he demanded me how we would answer the question what will satisfy you." that it was unchanged. Cosines Articles, 1662, 327 Whereupon, Richard Baxter and his friends oflFered the following emendations of the Liturgy — " That the old preface be restored instead of the new ones ; the order for all the priestSj deacons, and curates to read the liturgy once or twice every day be put out; the rubric for the old ornaments which were in use in the second year of Edward VI. [be] put out." Sir Robert Phillimore. — That was in 1666? Mr. Charles. — That was in 1668; and the use I make of it is this, that the Puritans, at all events, were under the impression then that the Bishops had acted as they had said they would act, and had left the rubric as it formerly was. Now, with reference to the words, " at aU times of their ministration," their Lordships, in the judg- ment in Hebbert v. Purchas, lay great stress upon the 6th Article of Bishop Cosin's Articles of Visita- tions of the year 1662. They say — "Prom the passing of the Act of Uniformity there is abundant evidence to show that the vestments in question were not used at all. Their Lordships may refer to the various Visitation Articles, published in the Second Report of the EituEil Commission and elsewbere, as showing that the surplice alone was to be used, and that deviations from that rule were on the aide of defect, and not in the direction of returning to the vestments of the Mass. Some of these articles .were published by Bishop Cosin, and others who took part in the revision of the Prayer Book. In the 6th Article Bishop Cosin inquires, ' 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 ? ' (2 Ititual Com- mission, 601, a.) , This repetition of the words, 'at all times of his ministration,^ the exact words of the rubric, is very significant as a contemporaneous exposition of it by one of its framers." My Lords, I venture to say that that significance is removed when we find, as we do, Bishop Cosin writing of the rubric of James, which was — " At the time of the Communion and at all other times in his ministration," 328 do not support the view in Hebhert v. Purchas : in precisely the same terms as he uses in his Visita- tion Article. That appears from the 5 th volume of his works. At the end of the 5th volume there is a series of " Particulars to be considered, explained, and corrected in the Book of Common Prayer," and in those particulars, written long before the revision of 1662, with reference to the rubric of James, Bishop Cosin says this — " ' The minister is appointed to use sucL. ornaments in the churchj and at all times in his ministrations, as were in use in the second year of King Edward the Sixth.' " Now, I submit that this language deprives of all significance the reference, in the Visitation Articles of 1662, to " all times of his ministration," without any reference to the Communion time. There is also another reason for saying that the Visitation Articles of Cosin, dated in 1662, really throw no light upon the subject. They are printed in the Second Report of the Ritual Commission, p. 601, and although it appears that they were published in the year 1662, they bear internal evidence of having been prepared before the book of 1662 came into operation; because, by the fifth of them, Bishop Cosin makes this inquiry — " Have you two books of Common Prayer set forth by public authority, and are they both of the largest volume, one for the minister and another for the clerk, to use at the celebration of all the divine oflBces ? Have you likewise a book of the Sermons or Homilies that were set forth in the time of King Edward VI., and in the reign of Queen Elizabeth, together with the works of Bishop Jewel in defence of the Church, which King James commanded to be had in all churches, and a book of the Constitutions or Canons Ecclesiastical, the books or forms of divine serdoe for the 5th November, the 30th January, and the 29th May, and a table of marriages prohibited by the law of God? " By making an inquiry in those terms, it would seem that Bishop Cosin had in his mind the book of James, they were framed upon the P. Bh. of K, James. 329 for the services for the 5th November, and the 30th January, and the 29th May, are separately inquired after. These services were all of them for days sub- sequent to the publication of James' Book, and were separately printed ; whereas, in the present Prayer Book, they form part of the book itself; and if your Lordships would compare the form of Cosin's inquiry with the form of inquiry of the Bishop of Salisbury in p. 610 of the Ritual Commissioners' Eeport, the difference is at once remarkable — " Have you in your churcTi or chapel the whole Bible of the largest volume and of the last translation, and the Book of Common Prayer newly established and set forth V The fact that Cosin inquires for two books, and also separately for the occasional services, furnishes, at all events, very considerable evidence that these Visita- tion Articles of Cosin were prepared before the Prayer Book of Charles the Second came into operation. There is a similar difference to that just mentioned between his inquiry and Bishop Reynolds' on p. 619 of the Ritual Commissioners' Report, where Reynolds, Bishop of Norwich, inquires — . " Have you a Bible of the largest volume, and of the last translation with the Book now established ? " I may remind your Lordships that the present Prayer Book came into force on the 24th August, 1662. Even if the matter rested there, one would be disposed, I should submit, to come to the conclusion ' that Cosin's Articles were drafted with reference to the Prayer Book of James, and, therefore, that the phrase "at all times of his public ministration" had no significance whatever such as their Lordships attribute to it in Hebbert v. Purchas ; but it is clear that whenever the Articles were published (and they are the last articles of Cosin which exist), they were prepared long before the 24th of August, 1662,. for it appears from a manuscript which is preserved 330 Meaning of the Rubrical words " at all times" at Durham, and which is not yet printed* (so that I must ask your Lordships to accept my statement of what it is), that Bishop Cosin's secretary, on the 4th March, 1661, writes to Durham from London, stating, " I am now writing my Lord's book of Articles of Visita- tion for the press, whicli are very strict, I assure you." I have ventured to dwell so long upon this point, because it is quite obvious, in reading the Judgment in Hehbert v. Purchas, their Lordships do attribute significance to the fact that the words " at all times of his ministration " are used by Cosin in this docu- ment, although, as I have pointed out, he used the very same phrase in his correspondence about the rubric of James, where the phrase was, " Communion and all other times." There is another consideration which appears to me to show that " at all times " m.ust be read as meaning, that at the " Communion and all other times the minister is to wear such vestments or dress as is appropriate to each office," and that is this : the surplice does not run through all the offices of the first Prayer Book. There is the surplice for one office, matins and evensong (strangely enough, no dress is prescribed, for the Litany in the first Prayer Book of Edward VI). The Lord Chancelloe. — In the first Prayer Book of Edward VL? Me. Chaeles. — There is no dress prescribed for the saying of the Litany; but your Lordships will ., see, I think, the force of the remark I am going to make, when I have said what the vestments in the first book were — "A surplice for matins and evensong, a white alb, plain, with a vestment or qope for the Communion office." Now, if the surplice had run through the book of 1549 from end to end, one could say that the words, *Mr. Charles referred to a M.S. copy and was not aware that the Letter had since been printed in Vol. ii. p. 313, of the " Cosin Correspondence," published by the Surtees Society; — ^Ed. Supposed Legislation between 1559 and 1662 ; 331 " at all times of his ministration " might possibly — were it not for other considerations — ^bear the inter- pretation put upon them by their Lordships in Hebhert v. Purchas ; but how can they be interpreted in any other way, except in the distributive way which I suggest to the Court ? Suppose, for example, a man was ordered to-day by one document to wear a coat of a particular colour in the morning and a coat of another colour in the evening, and to-morrow, by another document, was ordered "at all times" to wear the coats prescribed in the previous document. Which coats ? Clearly those prescribed for morning and evening. If there was a vestment running through every office in the Prayer Book of Edward VI., there might be some shadow of reason for saying that that was the one which was meant ; but there is no such vestment, my Lords, which, I submit, is an additional reason for saying that the words "at all times of their ministration " are exactly equivalent to the words "Communion and at all other times." My Lords, I have finished what I wished to say upon the re-casting of the rubric, and I submit it was not re-cast ; but that really it did, as in Liddell v. Westerton and Martin v. Mackonochie, the Judges held, mean the same thing as the rubrics of the previous Prayer Books. That, as my friend, at the beginning of his argument on the vestments and at the close of it said, is our case ; but it will be necessary, if you will allow me, that I should add a few observations upon the other parts of the argu- ment as to vestments, and address myself shortly to what the supposed Elizabethan legislation was upon the subject. If any further order was taken under the proviso of the Statute of Elizabeth, the further order must have been taken by the injunctions and interpre- tations, or by the advertisements, or by the canons in the reign of James I,, which I will not allude to now. I should not have troubled your Lordships with any remarks upon the injunctions, were it not for an expression in the judgment in Hebbert v. Purchas, 332 the Injunctions not the '■'■other order" of 1559 : where their Lordships seem to throw out that the injunctions and advertisements effected the destruc- tion of the vestments. It is necessary, therefore, to show that the injunctions were not the " other order " under the proviso in the 25th section of the Act of Uniformity. I will not repeat a word of what my learned friend said about the internal evidence which the injunctions themselves supply ; but I wish to point out, in addition, that if your Lordships will look at the date of the injunctions, you will see that they, at all events, could not be a " further order " under the Elizabethan Statute. The further order, your Lordships will remember, was to be taken with the advice of the Metropolitan or of the Ecclesiastical Commissioners. The injunctions were published between June 1st and 24th, 1559. There were no Ecclesiastical Commissioners then, and there was no Metropolitan; therefore, the provisions of the Statute could not be pursued. The Ecclesiastical Commission is dated the 19th July; the Consecration of the Archbishop is dated the 17th December. The injunctions are twice referred to in the judgment in Hebbert v. Purchas, on the first occasion, on page 169 of Brooke's Privy Council Judgments, where their Lordships say : " The Injunctions of Elizabeth appeared in the same year, 1559 ; and the 47th orders 'that the churchwardens of every parish shall deliver unto the visitors the inventories of vestments, copes and other ornaments, plate, books, &c., and such like appertaining to the church.' The Commis- sioners began to carry out these Injunctions in the same year. One of their returns is in the Record Office, which shows that they chiefly occupied themselves in taking inventories of church ornaments and of the service books in use." With regard to the Commission there referred to, my Lords, the form of it appears in Cardwell's Documentary Annals, vol. i., page 249, and certainly, upon reading it, it is very difficult to trace that they had any instructions whatever to make inventories of these vestments, copes and other ornaments. they did not authorize destruction of Ornaments. 333 The Loed Chancellor. — To make what ? Mr. Charles. — To make these inventories, my Lord. The object of the Commission appears to have been to visit and reform the various dioceses. I do not think my learned friend can point to any inven- tory among the returns, which of itself is a significant circumstance, but in point of fact the destruction of the ornaments which took place very soon after the accession of Elizabeth, did not take place under the Injunctions, but, as has already been pointed out, took place because people were so strongly prejudiced against the old state of things, that it was difficult, if not impossible, to restrain them. I will only trouble your Lordships with one passage from Strype's " Life of Grindal " upon that subject, which shows that, very soon after Elizabeth came to the throne, a wholesale destruction of ornaments, legal and illegal, took place. I refer your Lordships to pages 35 and 36 : " And as distinct visitors were appointed by tlie Queen's special Comission for each, part, so London and tlie parts adjacent had their peculiar Commissioners And the first and chief care seemed to be taken for the reforming of the City of London, that commonly gave the example to all the rest of the realm. To trace, therefore, a little, this visitation On the 18fch of July the Visitors sat at the Bishop of London's Palace. In this visitation they took care to have all the utensils and instru- ments of superstition and idolatry demolished and destroyed out of the churches where God's pure service was to be set up ; such as the roods, that is, the images of Christ upon the cross, with Mary and John standing by : also images of other saints, tutelaries of the churches, to whom they were dedi- cated, popish books, altars and the like." Then, after a passage which I need not trouble you with, the writer proceeds : " September 1 6th, the rood, with Mary and John, belong- ing to St. Magnus Church, was burnt at the corner of Pish Street, together with other superstitious things pertaining to that church ; which no question wanted not for things of that sort, Maurice Griffith, a violent Papist, and Bishop of 334 '■'' Interpretations of the Injunctions" their authority. Rochesterj being lately Incumbent, and about seven or eight months before buried there, so that from Bartholomew-tide, and so forward, within a month's time, or less, were de- stroyed all the roods, church-images, church-goods, with copes, crosses, censers, altar-cloths, rood-cloths, books, banner-staves, wainscot, with much other like gear in and about London " — the destruction, your Lordships see, being wholesale, and being of things confessedly legal as well as of things illegal. Now, with reference to the Interpretations of the Injunctions which do mention the Surplice and the Cope, I have nothing to add to what my learned friend, Sir James Stephen, has said, except to cite from Strype's " Life of Parker," vol. i., page 183, his description of them — " That they were things drawn up by the diligent Arch- bishop in his own name and in the name of the rest of the Bishops " — not pretending, as I understand, to have any statutory authority. The result, then, appears to be this : that down to the month of May, 1566, when the advertisements were issued, the vestments of King Edward VI. were beyond all question legal; and yet, although they were legal, they had been destroyed by whole- sale throughout the country. I have cited what occurred in the diocese of London. Mr. Peacock's Inventory shows what was occurring in the diocese of Lincoln, and I have no doubt that one could obtain evidence similar in character for every diocese in the country. The importance of this point, of course, is, that the destruction which is relied upon in the judg- ment of Hebhert v. Purchas, as being an act done under the advertisements, really preceded the advertise- ments, and took place while the ornaments destroyed were legal. I now come to the advertisements. The adver- tisements are said to derive authority from what was actually done under them, and from what was after- The Advertisements not " other order " — shewn by 335 wards said about them, in various visitation articles. Those a,re the two principal grounds upon which the learned Judges in the Judgment in Hebbert v. Purchas rely. They cannot be said to derive par- liamentary authority from themselves, because their form does not indicate that they are the " other order " under the Statute of Elizabeth ; and without repeating my learned friend's argument upon this point, I would ask your Lordships to refer to the striking difference, both in style and also in the presence of the Great Seal, which exists between the advertisements and two documents, one of which my friend alluded to, but the other of which I do not think he mentioned — almost contemporary documents: one is the Queen's warrant for the establishment of the High Commission, printed in Card well, vol. i., page 255. The Loed Chancellor. — The Commission was required to be authorised under the Great Seal; there is no other way of appointing it — the Act of Parliament says so. [Some of their Lordships conferred.'] Me. Chaeles. — That objection, my Lord, would not apply to the other document, to which I desire to draw your attention, which is Queen Elizabeth's letter about the ISTew Lessons in the Calendar from the Prayer Book, which is printed in Cardwell, vol. i., p. 294, which professes to be in execution of the authority of the Queen to take "further order" in any rite and ceremony under the proviso of the statute, and also professes to be given under her signet. It is headed — " By the Queen, Given under, our signet at the Palace, Westminster, in the 23rd year of our reign." LoED Justice James. — The Signet is not the Great Seal? Me. Chaeles. — No, my Lord; that is the sign manual. The Loed Chancelloe. — And may have been followed by the Great Seal? 336 Queen Elizabeth's Letter about New Lessons; by Mr. Charles. — I do not know how that would be; whether it would be followed by the Great Seal. The Lord Chancellor. — Not necessarily? Mr. Charles. — The importance of the letter is, that it professes to be in execution of the Statute, because, I need scarcely say, that neither my friend nor myself rely upon the absence of the Great Seal alone as a reason for objecting to the advertisements, although we think it is a significant circumstance. Now, if your Lordships will look at the history given in Strype's " Life of Parker " of the Advertise- ments, vol, i., p. 313, it becomes clear to some extent why it was that the advertisements diflfer so widely upon the face of them from the other con- temporary authoritative documents which profess to be executions of the Statute. My learned friend read the first paragraph of the chapter, and there- fore I will not trouble you with it again, in which Strype says, that the advertisements were sent to the Secretary, but not " presently " published. He pro- ceeds thus : " For these are the words written upon them by the Secretary's own hand. Mar., 1 5fi4 : Ordinances accorded by the Archbishop of Cant.j &c., in his province. These were not authorised or pubhshed," And then the author goes on to say — '^The matter, I suppose, was this : When these Articles (by Leicester's means no question) were refused to be con- firmed by the Queen's Council, the Archbishop, however, thought it advisable to print them under his and the rest of the Commissioners' hands, to signify, at least, what their judgment and will was ; and to let their authority go as far as it would .... But, because the book wanted the Queen's authority, they thought fit not to term the contents thereof Articles or Ordinances, by which names they at first went, but by a modester denomination, namely. Advertise- ments." And then he gives the actual title of the advertise- ments, which I will not read again; the difference the Title of the Advertisements themselves; 337 being, that in the one the Queen, with the consent of the Metropohtan, is mentioned, whereas, in the other, the Queen had, by her own letters, directed them to " take order." In the draft of the Adver- tisements, as sent to the Secretary, there was an introductory statement or recital that they were issued by the assent of the Metropolitan and of certain other of the Queen's Ecclesiastical Commis- sioners. The title was " Ordinances " instead of " Advertisements," and penalties were imposed on those who should be disobedient. In their published shape, the title was changed, the recital was changed^ and the penalties were abolished. The Lord Chancellor. — There was no authority to impose penalties, was there ?" Mr. Charles. — In the Act of Uniformity there are penal clauses, but they all precede the 25th section. Whether they apply to the 25th section or not may be, perhaps, a question, but in the copy of the Advertisements issued under the 25th section, and sent by the Archbishop to the Secretary, the Archbishop appears to have assumed that they did. So far, therefore, as the document itself goes, I submit to your Lordships that the presumption is against its being the " other order " under the Statute, and I presume that the learned Judges in Hebbert v.- Purchas must have taken somewhat the same view of it, because, in order to arrive at the conclusion that the advertisements are "other order " under the Statute, they rely upon what was done, as they thought, under them, and upon what was said about them. With regard to what was done under them, I will not add anything, because I trust my learned friend abundantly proved that what the learned Judges in Hebbert v. Purchas thought had been done under them, was, in point of fact, done before them. But I should like to add a few words upon the other point upon which their Lordships relied — viz., what was said about them; and 1 cannot help thinking that, when the Yisitatiori 338 and by the terms in which the Visitation Articles, upon which so much reliance is placed in the judgment, are looked at, the proper inference to be drawn from them is, that the advertisements had no statutory authority, and that the Bishops who published those Visitation Articles were aware that they had not, although they were very anxious to enforce them. Without referring to the passages in Hebbert v. Purchas, which refer to the Visitation Articles, the general effect of them is this, that the frequent inquiries for the surplice which had been ordered by the advertisements, was a proof that the advertisements were being actively enforced. The first remark I would make upon that point is this, that we find the same inquiry about the surplice in the Visitation Articles of Archbishop Parker which preceded the issue of the advertisements — precisely the same inquiry. In 1563 Archbishop Parker {vide " Ritual Commissioners' Report," p. 403) inquires — " Whether your priests, curates, or ministers do use, in the time of the celebration of Divine Service, to wear a surplice prescribed by the Queen's Majesty^s Injunctions and the Book of Common Prayer." That is the way in which the Archbishop inquired, with reference to the use of the surplice in the year 1563. In the year 1567, in Archbishop Parker's Visitation Articles for that year, which was after the pubUcation of the advertisements (vide Card. Doc. An., vol. i., p. 337) the Archbishop inquires — "Whether they [the ministers] use seemly or priestly garments according as they are commanded by the Queen's Majesty's Injunctions.^' The Lord Chancellor. — What particular Article is that you refer to in 1567? Mr. Charles. — It is the very first, and I use it for the purpose of showing that the Archbishop did not refer to the advertisements in any way, although they had then been published. Then, what is more remarkable still, in 1569 (vide Card. Doc. Ann., vol. i., page 355), he enquires, in the first Article — Articles of Parker, Cox, and Whitgift 339 " Whether the Holy Sacrament be likewise ministered reverently in such manner as by the laws of this realm, and by the Queen's Majesty's Injunctions, and by the advertisements set forth by public authority, is appointed and prescribed." Your Lordships will notice the change of phrase, and, in the third of the same set of Visitation Articles, printed on page 356, the Archbishop enquires — " Whether your priests, curates, or ministers do use in the time of the celebration of Divine service to wear a surplice prescribed by the Queen's Majesty's Injunctions and the Book of Common Prayer." Now, if it were the case, as is supposed in the Judgment in Hehhert v. Purchas, that it was the advertisements which the Archbishop is enforcing by these Visitation Articles, how comes it that, he asks " whether the ministers wear a surplice prescribed by the Injunctions " ? I, first of all, show that he made the same enquiry before the advertisements were issued at all, and then that, even after they were issued, he made the same enquiry with refer- ence to the surplice — still turning back to the Injunctions as compelling the use of it, although, in fact, the Injunctions themselves prescribed nothing of the sort, and, for the reason I have already given, could not have the force of " other order " under the Statute. Then, without wearying your Lordships by going through all these Visitation Articles, I will only refer to two or three more. In 1570 there are some Visitation Articles of Cox, Bishop of Ely, printed on page 406 of the second report of the Ritual Commis- sion, and there the Bishop of Ely prescribes for his clergy — " That every parson, vicar and curate, shall use in the time of the celebration of divine service, to wear a surplice prescribed by the Queen's Majesty's Injunctions and the Book of Common Prayer, and shall keep and observe all other rightes and orders prescribed in the same Book of Common Prayer and Injunctions, as well about the oele- z 2 340 describe them : letter of Q. Elizabeth to ParJcer, "bration of the Sacraments, as also in their comely and priest-like apparel, to be worne according to the precept set forth in the book called Advertisements." Your Lordships will notice the remarkable change of words. Lord Justice Amphi.ett. — What is the date of those ? Mr. Charles. — The date of those Visitation Articles is stated to be about 1570 to 1574; and we have this noticeable fact, that Bishop Cox, one of the persons whose name is subscribed to the Adver- tisements themselves, drew this marked distinction between the " Queen's Majesty's Injunctions " and the directions as to apparel, set forth in "the book called the Advertisements." In 1584 appeared some Articles of Whitgift, which are printed in Cardwell's Documentary Annals, vol. i., page 468, and there we have the same peculiarity: " That all preachers and others in Ecclesiastical Orders do at all times wear and use. such kind of apparel as is prescribed unto them by the book of Advertisements and Her Majesty's Injunctions." I am referring to Article 4, where your Lordships will see the same distinction drawn between the " Queen's Injunctions " and the " Book of Advertise- ments." I do not think I need trouble your Lord- ships with any further reference to the Visitation Articles. I will only, on this part of the subject, further refer you to a letter from Queen Elizabeth to Parker. That letter is printed in the Parker Correspondence, at page 386, and it is dated the 20th August, 1571 — 1571 being the very year, your Lordships may recollect, in which the Canons of 1571 were refused royal ratification, containing, as they did, a reference to the advertisements. There is no evidence on the face of the Canons of 1571 that that was the reason ; but the fact is, that the Canons of 1571, which did contain reference to the advertise- ments, were refused royal ratification. 1571, also shews they were not the ^^ other order." 341 ' The Lord Chancellor — Were they refused, or was it merely the fact that they were not ratified ? Mr. Charles. — They were not ratified. I beg your Lordship's pardon — that is the accurate expres- sion — they were not ratified, and the suggestion made to the Court yesterday was, that they were not ratified because they contained a reference to the advertisements; whereas, in the Canons of 1575, which were ratified, that reference had disappeared. In the same year the Queen wrote to the Arch- bishop, requiring him — " To have good regard that such uniform order in the Divine service and rules of the Church might be duly kept as by the laws in that behalf is provided and by our Injunctions also declared and explained." I use that letter as I used the Bishop's Visitation Articles, to show that both the Queen and the Bishop were aware, and intended, that the advertisements were not " other order " under that Statute. They are described in terms of far less authority than the Injunctions throughout the Visitation Articles, and here, in a letter which the Queen herself addresses to the Archbishop, requiring him to have good regard to the preservation of uniformity in Divine service, Her Majesty refers to the Injunctions only, and is silent as to the Advertisements. The Lord Chancellor. — How would it be in point of law if this were the case — if the Queen issued injunctions," considering that she had of her own authority power to mould and control these matters, and remained of that opinion, but that subsequently there were issued by her and by her authority, in conjunction with the Metropolitan and other Bishops, provisions controlling also the act of uniformity in the same direction, and in some respects in the same way, as the Injunctions had done. The Injunctions might be open to objection, on the ground that there was not the consent of the Metropolitan: the advertise- ments would not be open to objection, we will 342 The Canons of 1604 not the " other order'': for suppose, as to the assent of the Metropolitan. "Would references afterwards made by the Queen and by others to the Injunctions, as if they were suflScient of themselves, prevent the Advertisements, which com- plied with the Act of Parliament, operating as an execution of the power ? Me. Charles. — I should answer that question thus : they would not prevent it ipso facto, but the fact that the Queen was relying throughout on the Injunctions, coupled with the other evidence in the case, shows, that whilst to the Injunctions on the one hand, the consent of the Metropolitan was never obtained, to the Advertisements, on the other hand, the consent of the Crown was never obtained, so that in both cases the necessary assent would be wanting. I would only add, with regard to these advertise- ments, that I pray in aid all the remarks of my friend, Sir James Stephen, with regard to their being executive acts suited to the exigencies of the times, and even if they were put forth with proper authority not affecting the present question. I now pass, my Lords, to the Canons of 1604. Now, the Canons are not put forward in the Judg- ment of Hebhert v. Purchas, as I understand, nor do I apprehend that they will be put forward, as any execution of " other order " under the 25th section of the Act of Uniformity. {Dr. Stephens made a communication to the learned Counsel.] My friend is good enough to mention to me "that he does intend to argue that the Canons of 1604 are " a further order " under the 25th section of Elizabeth's Act of Uniformity. Well, I really do not quite feel able by anticipation to meet that argument; because, how constitutions and canons treated of in Convocation by the Bishop of London can be "a further order " under a section which requires the assent of the Metropolitan, I feel great difficulty in seeing. they were not made according to the Statute. 343 The Lord Chancellor. — Was the Metropolitan not an assenting party to the Canons ? Mr. Charles. — There was no Metropolitan, my Lord. The Lord Chancellor. — ^There was none at that time? Mr. Charles. — No, my Lord. Further, I should submit that it is a very doubtful matter whether the authority conferred by the 25th section of the Act of Uniformity of Elizabeth is anything more than a personal authority to the then reigning Sovereign, having regard to the nature of the subject matter of the proviso. [Some of their Lordships consulted.'] The Lord Chancellor. — I suppose there is no doubt about what you say, that, as a matter of fact, there was no Metropolitan at that time ? Sir James Stephen. — There was not, my Lord. It appears, on the face of the Canons, that there was no Metropolitan at that time ? Mr. Charles. — It appears on the face of the Canons themselves, because the recital is this : "James, by the Grace of God, &c. Wliereas our Bishops, Deans of our Cathedral Churches, Archdeacons, Chapters, and Colleges, and the other Clergy of every diocese within the Province of Canterbury, being summoned and called by virtue of our writ directed to the Most Reverend Father in God, John, late Archbishop of Canterbury," and they are headed — " Constitutions and Canons Ecclesiastical treated upon by the Bishop of London, President of the Convocation for the Province of Canterbury." So that, first, I say that these cannot, being Canons drawn up in Convocation, be treated as the "other order" under the 25th section of the Act of Uniformity; secondly, that the 25th section of the Act of Uniformity, as far as the proviso is concerned, conferred upon the then reigning Sovereign 344 Alteration of the P. Book by K. James, 1 603, a personal authority only. But, if that be not so, my Lords, and if the 25th section of the Act of Uniformity of Elizabeth gave authority to James to take "further order," he did take it under the proclamation establishing his Prayer Book, and then, I pray your Lordships' attention to what the state of things is — [Some of their Lordships consvlted^ ' The Lord Chancellor. — What do you say is the effect of the proclamation of James? Mr. Charles. — I say, if he had power to take " further order " under the 25th section of the Act of Ehzabeth, it would give Parliamentary authority to James's Prayer Book; the royal proclamation establishing James's Prayer Book, which professes to be exercise of his power to decree rites and ceremonies, would operate as a Parliamentary establishment of the Prayer Book of James. The Lord Chancellor. — WUl you refer us to the proclamation? Lord Selborne — There were two proclamations, you know, of James. Mr. Charles. — If my learned friend is right, that James had power to take "further order" under the 25th section of the Act of Uniformity (and I can afford to admit that he had, and yet argue, as I trust conclusively, that the canons were not "further order"), but supposing my friend is right, then James did take, as he professed to take, " further order " in the two documents to which I now draw your Lordships' attention. I am obliged to Lord Selborne for reminding me that the documents with reference to the Prayer Book of James are two. On page 217 of CardwelVs Conferences, 2nd edition, is a copy of the commission issued by James for the refonnation of the Prayer Book, dated the 9th February, 1603, and it recites: — " And whereas also by Act of Parliameiit it is provided and enacted, that whenever we shall cause to take further professed to he by Authority of the Statute: 345 order for or concerning any ornament, righte, or ceremony appointed or prescribed in the booke commonly called ' The Book of Common Prayer, Administration of the Sacraments, and other rites and cereibonies of the Church of England,' and our pleasure known therein either to our commissioners, authorised under our Great Seal of England, for causes ecclesiasticall, or to the metropolitane of this our realm of England, that then further order should be therein taken accordingly; We, therefore, understanding that there were in the said booke oerteyne thinges which might require some declaration and enlargement by way of explanation," Then follow the changes. The Lord Chancellor. — What were they? Mr. Charles. — I believe none of the changes are material to the present argument. The second part of the catechism, as it now exists, M'^as added, and the Kalendar appears to have been altered; then there was a " prayer for the Queen" to be inserted after the Litany ; and there were " thanksgivings for fair weather, plenty," &c. But I think I may state, positively, there was nothing material to the argu- ment I am now adducing to your Lordships. The Lord Chancellor. — Nothing whatever? Mr. Charles. — Nothing whatever. Then, "having set out the alterations which he deemed material, the King authorised the new Prayer Book, and, at the close of his commission, says : — "And these our letters patents, or the enroUement thereof, shall be your sufficient warrant for all and every the premisses contayned in them." I might cite this, in passing, as another example of the phrases which the Crown used when it really did intend to execute the authority of the 25th section of the Act of Uniformity — " Willing and requiryng, and withall authorising you the Archbishop of Canterbury that forthwith you do command our printer, Eobert Barker, newly to print the said Com- munion Book, with all the said declarations and enlargements by way of exposition and explanation above mentioned, and 346 the King's Commission for altering the Book: that you take such order not only in your own province, but likewise in our name, with the Archbishop of Yorke, for his province. [Some of their Lordships consvltedi] The Loed Chancellor. — How is it that the per- mission seems to be to print the Communion Book? Mr. Chaeles. — If your Lordships will look at the previous paragraph, you will find that the Prayer Book must be referred to : — "All which particular poynts and things in the said book are thus by you declared and enlarged by way of exposition and explanation. Forasmuch as wee having maturely considered of them, do hold them to be very agreable to our own several! directions^ upon conference with you and others, and that they are in no part repugnant to the word of God, nor contrarie to anie thinge that is already contained in that book" — That is, the Book of Common Prayer, as appears from the recital. The Lord Chancellor. — Yes, but tbe authority is — " Newly to print the said Communion Book, with all the said declarations and enlargements by way of exposition and explanation above mentioned." Me. Charles. — That must refer to the Prayer Book, because the added alterations, many of them, are not in the communion office. [Some of their Lordships consulted^ Me. Chaeles. — " Newly to print the said Communion Book, with all the said declarations and enlargements, by way of exposition and explanation, above mentioned ; and that you take such order, not only in your own province, but likewise in our name, with the Archbishop of Yorke for his province, that every parish may provide for themselves the said booke so prynted and explained, to be onely used by the minister of every such parish in the celebration of divine service and admynistration of the Sacraments. And duely by him to be observed according to the lawe in all the other parts, with his Proclamation authorizing its use : 347 the rites and ceremonies therein contained and prescribed for him to observe." That is a royal authority issued in strict pursuance of the Statute; and, as I say, it furnishes another example of the Crown using the very words of the Statute, when it really intended to execute the Statute. Then, the next document is the Proclamation itself, which authorises the Book of Common Prayer. It is contained in " Cardwell's Conferences," p. 227. It recites the fact, that — " We gave forth our Commission under our Great Seal of England to the Archbishop of Canterbury and others, according to the form which the laws of this realm in like case prescribe to be used, to make the said explanation, and to cause the whole Book of Common Prayer, with the same explanations, to be newly printed." Your Lordships see that " Communion Book " must refer to the Book of Common Prayer, because, in the Proclamation, the Commission is said to be a Com- mission " under our Great Seal of England to the Archbishop of Canterbury and others, according to the form which the laws of this realm in like case presoHbed to be used, to make the said explanation, and to cause the whole Book of Common Prayer, with the same explanations, to be newly printed. Which, being now done and established anew, after so serious a deliberation ; although we doubt not but all our subjects, both ministers and others, will receive the same with such reverence as appertaineth, and conforme themselves thereunto every man in that which him con- cerneth ; yet have we thought it necessary to make known by proclamation our authorising of the same, and to require and enjoin all men, as well ecclesiastical as tempoi'al, to conform themselves unto it, and to the practice thereof, as the only public form of serving God, established and allowed to be in this realm And we think it also necessary that the said archbishops and bishops do each of them, in his province and diocese, take order that every parish do procure to themselves within such time as they shall think good to limit, one of the said books so explained." 348 it repealed the Advertisements^ even if Law. Can. 14 If, then, the power of James, exercised by him in issuing that commission, and afterwards publishing his Prayer Book, altered by that Commission, was a power under the 25th section of the Act of Uni- formity, it would seem to follow that the Prayer Book of James has statutory as well as Royal authority ; but, if it is statutory as well as Royal, the advertisements are repealed by the book of 1603-4. Because the book, as altered and explained, contains the rubric — " And here is to be noted that the minister, at the time of the Communion, and at all other times in his ministration, shall use such ornaments in the church as were in use by authority of Parliament in the second year of the reign of Edward VI., according to the Act of Parliament set in the beginning of this book." So that I fail to see that my learned friend's pro- posed contention will assist him ; on the contrary, if well founded, it would appear that the advertise- ments, if ever they were law, had ceased to be law in the year 1662. Now, with reference to the Canons, I desire to draw your Lordships' attention once more to Canon 14 — " The Common Prayer shall be said or sung distinctly and reverently upon such days as are appointed to be kept holy by the Book of Common Prayer, and their eves, and at convenient and usual times of those days, and in such place of every church as the Bishop of the Diocese, or Ecclesiastical Ordinary of the place shall think meet for the largeness or straitness of the same, so as the people may be most edified. All ministers likewise shall observe the orders, rites, and ceremonies in the Book of Common Prayer, as well in read- ing the holy Scriptures and saying of prayers, as in adminis- tration, of the Sacraments, without either diminishing in regard of preaching, or in any other respect, or adding anything in the matter or form thereof" What I would urge upon your Lordships is, that the canons themselves give directions for the enforcement of the rites and ceremonies prescribed in the Book of Common Prayer. Among those orders, rites, and enforces Bk. 0/ 1603 : Can. 24 may he dispensatory. 34i) ceremonies, was, first of all, an order for daily prayer, from the performance of which it may be that the ministers are liberated by the operation of the first part of Canon 14. So this Book of Common Prayer prescribes the vestments of the first Prayer Book of Edward VI., and the Canon says that all ministers are to use them, but it may be that Canon 24 may operate as a dispensation from their use, except upon the occasions mentioned in that Canon. In other words, my Lords, I submit that the Canons were published to enforce, and not to alter, the Prayer Book; although, as I say, it may be that the express direction as to saying the Common Prayer upon certain days, and the other express direction, as to wearing copes and vestments on certain other days, may operate as a dispensation, and may justify ministers of the Church in not using all the ornaments prescribed by the Prayer Book, and in not saying Common Prayer daily as is pre- scribed by the Prayer Book. I do not think I can usefully add any more to what my learned friend said on the subject of the Canons of 1604; and I now have to say only a few words as to the legislation of 1662, because I have already, at the commence- ment of my argument, commented upon the alleged " re-casting of the rubric " in the year 1662. As I pointed out to your Lordships, the Act of Uniformity of Charles had annexed to it the Prayer Book which we now use; and the 24th section enacts — " That the several good laws and statutes of this realm which have been formerly made, and are now in force for the uniformity of prayer and administration of the Sacra- ments, within this realm of England and places aforesaid, shall stand in full force and strength, to all intents and purposes whatsoever, for the establishing and confirming of the said book." With regard to the " good laws and statutes," there are two which I can mention to your Lordships which satisfy the description of "good laws and 350 The " good laws and statutes " maintained statutes," "for the establishing and confirming of the book." One of them, of course, is the Eliza- bethan Act of Uniformity; the other is the second Act of King Edward VI. LoED Justice James. — It is not "for the estab- lishing and confirming of the book ? " Mr. Charles. — " Of the said book." I.ORD Justice James. — It is "for the uniformity of prayer." Read the words. Mr. Charles. — " That the several good laws and statutes of this realm, which have been formerly made, and are now in force for the uniformity of prayer and administration of the Sacra- ments, within this realm of England and places aforesaid, shall stand in fuU. force and strength.^' The suggestion which I make to the Court is this, that those good laws and statutes are amply satisfied by a reference to the Act of Uniformity of Elizabeth, and the Act of Uniformity of Edward VI. They were both — " Good laws and statutes of this realm, which have been formerly made, and are now in force, for the uniformity of prayer and administration of the Sacraments." Now, my Lords, in the Judgment of Hebhert v. Purchas, their Lordships considered — and not un- naturally considered, as they were of opinion that the Prayer Book of James was founded on the Canons, whereas it preceded the Canons — that among the " good laws and statutes' of this realm," mentioned in section 24, were the Canons of James. I submit to your Lordships that the Canons of James do not fulfil the description of — " A good law and statute of the realm, which hath been formerly made, and is now in force for the uniformity of prayer and administration of the Sacraments." Sir Robert Collier.^ — You were reading the 24th section ? Mr. Charles. — Yes, my Lord ; the 24th section by Act of 1662 do not include the Canons : 351 of the Act of Uniformity of Charles. I particularly draw your attention to the fact that the good laws and statutes" which are to stand in full force and strength," are " Good laws and statutes for the uniformity of prayer and administration of Sacraments." And I submit that that is a description wholly in- applicable to the Canons of 1604. The Lobd Chancellor. — To the Canons? Mr. Charles. — ^Yes, my Lord, to the Canons. But then, as I said before, with all due respect, one is not surprised that the learned Judges in Hebbert V. Purchas thought that section 24 applied to the Canons, because their Lordships were also of opinion that the Prayer Book of James rested on those Canons. The Lord Chancellor. — Is it clear that that is what is referred to in the Judgment of Hebbert v. Purchas — that the Canons are referred to there ? Mr. Charles. — Yes, my Lord. The learned Judges called them — " The most obvious ' laws ' of all " with reference to this section. As I understand the Lord Chancellor's question, it was this, whether the Judgment in. Hebbert v. Purchas describes the Canons as laws under this section ; to which my answer is, that the Judgment does so describe them. The Lord Chancellor. — What page of Mr. Brooke's book is that in ? Me. Charles. — Your Lordships will find it on page 180 — " The 24th clause of the Act of Uniformity shows that it was not the intention of the passers of the Act to repeal past laws. It provides that ' the several good laws and statutes of this realm which are now in force, for the uniformity of prayer and the administration of the Sacra- ments, .... shall stand in full force and strength to 852 this further shown by terms of the Act of 1552. all intents and purposes whatever, for the establishing and confirming the said book.' " Then their Lordships proceed, " The laws were to remain" "the laws" — that is those laws. But they were to bear upon the new book, but not upon any former book* — " Their Lordships think that the Canons relating to the vestments of the ministers were not repealed by the Act of Uniformity, and that the Canons had the same force after the passing of that Act which they had before," So that it is quite obvious that their Lordships thought that the words, " good laws and statutes," of section 24, included the Canons of 1604; and I respectfully submit that, in that respect, their Lord- ships were mistaken. But, as I said, one cannot be altogether surprised at the error, because their Lordships were also of opinion that the Prayer Book of 1603 rested on those very Canons. There is one other remark that I desire to make to your Lordships in reference to this part of the case. If further proof were wanted that the canons cannot be referred to by that section, it would be found in looking back to the second Act of Edward, because the second Act of Edward pursued the same course with reference to the first Act of Edward, as the Act of Uniformity did with respect to the previous statutes. In the second Act of Edward it is pro- vided — " That the said former Act [that is the Act of Edward] to stand in full force and strength to all intents and con- structions, and to be applied, practised, put ia use, to and for the establishing of the book of Common Prayer now explained and hereunto annexed." So that your Lordships will see the legislation pro- ceeded in parallel Unes. In 1552 the revisors annexed the altered book to their Act, and said that the former Act was to stand in force, to establish the book as altered. In 1662 the revisors annexed their book Wafer-bread: no Ecclesiastical offence charged. 353 to their Act, and also enacted in almost identical language that the former statutes relative to the book should remain in force — a very necessary enactment, because the Act of Parliament of Charles did not contain many of the penalties that are contained in the Act of Elizabeth, and because the Act of Edward contained clauses "which no doubt it was thought desirable to maintain, with regard to enforcing attendance at Divine service. The Wafer-Bread. With regard to the charge as to the use of Wafer- bread or Wafers, to which I now pass, I have to submit to your Lordships that clause 4 of the repre- sentation discloses no ecclesiastical offence whatever. There is no question raised before your Lordships in this case other than as to the shape of the bread; no question is raised as to the use of leavened or unleavened bread; and of course we are desirous of confining our attention to the charge, although I confess that a very considerable amount of argument might be addressed to your Lordships on the lawful- ness as well of unleavened as of leavened bread. The Lord Cbancellor. — Have you considered whether or not there was any distinction drawn in the proceedings below between a wafer and bread in the ordinary acceptation of the term ? Let me refer you to page 18 of the evidence where this question is asked by Mr. Fitzjames Stephen, who is cross- examining — " Q. I understood you to say, you cannot say wHether or tio Mr. Eidsdale broke any of the wafers before lie ad- ministered the communion, either to himself or anybody else ? A. He did not break them in the act of administering. Q. That is never done, I believe, with the bread ; but did you see him break a wafer at the time he read the consecra- tion prayer ? A. I did not see him." Mr. Cbearles. — Yes, my Lord. A A 354 Discussion — whether^ in the Court below, The Lord Chancellor. — He appears to draw a distinction? Mr. Charles. — I understand your Lordships to mean that my learned friend's question appears to draw a distinction. The Lord Chancellor. — Do you proceed upon an admitted basis of distinction between the two? Mr. Charles. — There is no doubt it is so, the question does draw a distinction? Sir James Stephen. — There is no doubt, it is better to say so fairly, that when I asked that question I had not this matter present to my mind, but I con- sidered it afterwards. It is quite clear that my mind then was upon another point, namely, the point of its being imputed to Mr. Ridsdale that he had not gone through the prescribed form of breaking, whatever it was, that was used : I was using the word " wafer " as the name that was used for a particular thing, but without having my mind turned upon this question of substance at all at the moment. Mr. Charlbs.^ — In support of that remark of my friend's, if your Lordship will turn to page 29 of the evidence, you will see that my friend seems to have had in his mind throughout the question of breaking, because, at line 28, he asks Mr. Ridsdale himself, who is under examination : "Q. Where the words are 'here shall he break the bread.' A. Yes. Q. There you break the wafer ? A. Yes." Then, Lord Penzance seems to have been struck by that, for he says : " There you do what ? A. Break the bread" — so that your Lordship sees " wafer " is suggested to the witness by the Counsel. Sir Robert Phillimore. — I see Mr. Fitzjames Stephen lower down says : " But do I understand you always break the wafer at the place where the rubric says : ' Here shall he break the bread.' ? A. Quite so." The Lord Chancellor. — Very well. [Some of their Lordships consulted.] a distinction was drawn between Wafer and Bread. 355 Mr. Chaeles — The breaking of the bread takes place during the prayer of consecration. I mean the symbolical breaking — and when the bread is brought to the communicants in any church, of course the minister does not break it then. The symbolical breaking has taken place during the prayer of con- secration. LoBD Justice James. — It appears to be whole before the symbolical breaking — it is put together ? Mr. Charles. — Yes. [Adjourned to to-morrow at 10.30.] AA 2 356 The charge further considered — appellant admits Satubdat, Januaet 27th. Mr. Charles. — My Lords, I desire to correct a reference which I gave to your Lordships yesterday afternoon. The reference should have been to Sylvester's "Life of Baxter," Book I., Part 3, pages 23, 38, and 39. I also desire to refer to Book I., Part 1, page 369, where Baxter says: " And here, because they would abate us nothing at all considerable, but made things far harder and heavier than before, I will annex the concessions of Archbishop Ussher, Archbishop Williams, Bishop Morton, Bishop Holdsworth, and many others, in a Committee at Westminster (before mentioned), 1641." That is the Committee to which my learned friend. Sir James Stephen, has already drawn your Lord- ships' attention — a Committee of the House of Lords. The date of Baxter's writing that passage is 1668. Now, with regard to the charge with which I was dealing when the Court adjourned, in reference to the first answer which the appellant makes to it, I would point out to your Lordships that the answer is not a technical answer, but it is a substantial one. The appellant, I am sure, has no desire to take, and I have no desire on his part to take, any point of technicality in such a case as this. But the charge against him is a charge of administering bread in the wafer shape, and throughout the whole of the pro- ceedings, both as regards the evidence as well as regards the charge, I submit to your Lordships that it was assumed, on both sides, that the substance administered was bread, but bread in a wafer shape. Now, the appellant at once admits, before your Lord- ships, as he did before Lord Penzance, that he does administer wafers — he does administer wafer bread. He is charged with administering bread; he does iising Wafer-bread: the form is the only charge. 357 administer bread, but he administers it in the wafer form. Therefore, the only charge really which I have to meet, is with reference to the form of the bread with which the Communion is celebrated. We submit that, having regard to the terms of the rubric of the Prayer Book, as to the material to be used, the appellant has committed no Ecclesiastical offence, and, more than that, that no Ecclesiastical offence is charged, a point which, no doubt, would have been taken on behalf of Mr. Purchas, if his case had been argued at the bar. The Lord Chancelloe. — Do you understand that that point was taken in the Court below — the point which you say was not taken in the other case, namely, that the charge referred to a state of things in which that which was used, was bread, but in a wafer shape ? ' Mr. Charles. — In the present case, the appellant did not take the point that no Ecclesiastical offence was charged, but what happened with regard to the charge as to wafer bread, was simply this : it was discovered that that charge was in the very same words as the charge in Hebhert v. Purchas. Upon that charge, in Hehbert y. Purchas, a judicial decision had been delivered, and, therefore, to have argued before the Dean of Arches that no Ecclesiastical offence was charged by those words, would really have been unavailing, inasmuch as it had been held, by implication, in Hebbert v. Purchas^ that an Eccle- siastical offence was charged. Now, my Lords, I draw your Lordships' attention to the terms of the rubric which governs this matter : " And to take away all occasion of dissension, and super- stition, which any person hath or might have concerning the bread and wine, it shall suffice that the bread be such as is usual to be eaten ; " — I am reading from the Prayer Book of 1662, the rubric with reference to the bread to be used at the Communion — 358 Jtulrics of 1559 and 1662 : the Injunctions not "but the best and purest wlaeat bread that conveniently may be gotten." That differs from the rubric of Elizabeth only in two respects ; first, by adding the word " dissension " to the word " superstition." In the rubric of Eliza- beth the rubric was — " And to take away the superstition which, any person hath, or might have, in the bread and wine, it shall suffice that the bread be such as is usual to be eaten at the table with other meats." Secondly, the last words, " with other meats," are omitted in the existing rubric. Your Lordships will remember, that contemporaneously with the Prayer Book of Elizabeth, appeared the Injunctions of Elizabeth, which expressly enjoined the use of wafer- bread. The Injunctions, I submit to your Lordships, cannot be construed as the learned Judges in Hebbert V. Purchas construed them, as being contrary to the Prayer Book; but, on the other hand, being issued at the very same date, if not on the very same day, must be regarded as a contemporary exposition of what the rubric would allow, and that that was the view then taken of the Injunctions, appears from a remarkable letter of the Archbishop to Sir William Cecil, dated the 8th January, 1570-1. It is printed in the Parker Correspondence, page 375. I may add, that it is referred to in the Judgment of the learned Dean of Arches in Elphinstone v. Purchas : " A question having arisen as to the proper character of the Communion bread, the Archbishop reminds Sir W". Cecil that the Queen has power to ordain new ceremonies." I read the words of the letter upon this point — " Where upon the return of my Lord of London from the Court, we had communication of the Communion bread, and he seeming to signify to me that your honour did not know of any rule passed by law in the Communion Book that it may be such bread as is usually eaten at the table with other contrary to Euhric 1559 — shewn by Parker's Letter 359 • meatSj &o. ; I thought it good to put jou in remembrance, and to move your consideration in the same. For it is a matter of much contention in the realm : where most part of Protestants — " This is somewhat singular, having regard to the associations which have now gathered round the use of the word " wafer " — " where most part of Protestants think it most meet to be in wafer-bread, as the Injunction prescribeth ; divers others, I cannot tell of what spirit, would have the loaf-bread, &c. And hereupon one time at a sessions would one Master Fogg have indicted a priest for using wafer-bread, and me indirectly for charging the wafer-bread by Injunction : where the Judges were Mr. Southcoots and Mr. Gerrard, who were greatly astonied upon the exhibition of the book. And I being then in the country, they counselled with me, and I made reasons to have the Injunction prevail. First, I said, as Her Highness talked with me once or twice on that point, and signified that there was one proviso in the Act of the Uniformity of Common Prayer, that by law is granted unto her, that if there be any contempt or irreverence used in the ceremonies or rites of the Church by the misusing of the orders appointed in the book, the Queen's Majesty may, by the advice of her Commissioners or Metropolitan, ordain and publish such further ceremonies, or rites, as may be most for the reverence of Christ's holy mysteries and sacraments, and but for which law her Highness would not have agreed to divers orders of the book. And by virtue of which law she published further order in her Injunctions both for the Communion bread and for the placing of the tables within the quire." I may add that the Archbishop changed his views afterwards with regard to those Injunctions, and appeared to consider them as Injunctions issued by virtue of the Royal prerogative, and not so much as a further order under the Statute. The Lord Chancellor. — ^This is not the view of the Archbishop — it is what the Queen said to him ? Mr. CharlbS; — I thank your Lordship. I observe that it is a recital of the conversation of the Sove- reign — 360 to Cecil, stating his conmrsation with Q. Elizabeth. " And by virtue of wMcli law she published further order in her Injunctions both for the Communion bread and for the placing of the tables within the quire. They that like not the Injunctions force much the Statute in the book. I tell them that they do evil to make odious comparison betwixt Statute and Injunction^ and yet I say and hold, that the Injunction hath authority by proviso of the Statute." The Loed Chancblloe. — There he seems to state his own views ? Me. Chaeles. — That view he seems afterwards to have somewhat altered in another letter, to which I need not now draw your Lordships' attention — " And whereas it is said in the rule that ' to take away the superstition which any person hath or might have in the bread and wine, it shall suflBce that the bread be such as is usually to be eaten at the table with other meats,'' &c. ; ' it shall suffice,' I expoundj where either there wanteth such fine usual bread, or superstition be feared in the wafer-bread, they may have the communion in fine usual bread : which is rather a toleration in these two necessitieSj than is in plain ordering, as is in the Injunction." Now, my Lords, the learned Judges in Hebbert v. Purchas — I will not, of course, use the Archbishop's phrase, but they did make a comparison between Statute and Injunction, and they said they were contrary the one to the other. That, at all events, was not the view of the Archbishop himself, as appears from this letter — " This I say to show you the ground which hath moved me and others to have it in the wafer-bread ; a matter not greatly material, but only obeying the Queen's Highness, and for that the most part of her subjects disliketh the common bread for the Sacrament. And, therefore, as her Highness and you shall determine, I can soon alter my order, although now quietly received in my diocese, and I think would breed some variance to alter it. I hear also that in the Court you be come to the usual bread." I think there is nothing else in the letter which requires attention. With reference to the observa- Common bread disliked in England and Geneva. 361 tion of the Archbishop that the Protestants preferred wafer-bread, I may remind your Lordships that Calvin, at Geneva, was in the ht^bit of using wafer- bread. That appears from a passage in the 5th Vol. of Cosin's Works, p. 481, where he says — '' The first use of the comnioii bread was begun by Parel andViret at Geneva, 1538, whicli so offended the people there, and their neighbours at Lausanne and Berne (who had called a synod about it) that both Farel and Viret, and Calvin and all, were banished for it from the town, where afterwards the wafer-bread being restored, Calvin thought fit to continue it, and so it is at this day." Tour Lordships will perceive that there is no question about the substance — it is always bread — the form is the matter from first to last — bread, but wafer-bread. So, again, there is a passage from Hooker, Eccl. Polity, in the 4th book, chapter 10, 1st vol. of Keble's Edition, page 449 : " Sorry we are that any good and godly mind should be grieved with that which is done, but to remedy their grief lieth not so much in us as in themselves. They do not wish to be made glad with the hurt of the church : and to remove all out of the church whereat they shew themselves to be sorrowful, would be, as we are persuaded, hurtful if not per- nicious thereunto. Till they be able to persuade the contrary, they must and will I doubt not find some other good means to cheer up themselves. Amongst which means the example of Geneva may serve for one. Have not they old Popish custom of using godfathers and godmothers in Baptism ? the old Popish custom of administering the blessed sacra- ment of the holy Eucharist with wafer-cakes ? " There is no doubt, I apprehend, that the usage for some time, at all events, was the use of wafer-bread. That sufficiently appears from the letter of Arch- bishop Parker, to which I have already referred, and from the other letters of Archbishop Parker, to which my learned friend referred yesterday, and one of which I think he read. 362 Wren wished Wafer-bread to be put info the Rubric : Sir Robert Phillimore. — Do you know the date of the last extract from Hooker ? Mr. Charles. — Sometime about the latter end of the reign of Elizabeth. In addition to the corre- spondence relied on by my friend, I would remind your Lordships of the letter of the Council to the Bishop of Chester, on which he also relied, the opinion of Cosin, which he gave your Lordships, and, in addition to that, I would add, the opinion of Wren, who, in his notes for the amendment of the Book of Common Prayer, suggests that — " In the bread and wine it shall suffice that the bread, where it is not of fine wafer, pure and without any figure or print, be such as is usual to be eaten.'' That is from the Bishop of Chester's " Fragmentary Illustrations of the Book of Common Prayer," the book consisting of a collection of manuscripts, amongst which is a manuscript of Bishop Wren's, containing notes by himself, which he thought might have been useful for the amendment of the book as it then existed. It shows that, when he penned that emen- dation, a common usage must have existed that the bread was a fine wafer. I have only one other remark to make as to wafer-bread, and that is, as to the Yisitation Articles, which, upon this point, as on the first point, are strongly relied upon in the case of Hebbert v. Purchas. Those Visitation Articles certainly do enquire after fine white bread, but amongst the persons who make the enquiry for fine white bread is Wren himself, whose observations I have just read. The Lord Chancellor. — What is the enquiry of the Visitation Articles ? Mr. Charles. — I would remind your Lordships that, in 1575, Archbishop Parker himself, (See Second report of the Ritual Commission, page 416), enquires for wafer as well as for other bread. Having pre- viously, in the year 1563,' made the same enquiry, " whether they do use to minister the Communion his and Parker's Visitation Articles as to the Bread. 363 in wafer-bread, according to the Queen's Majesty's Injunctions, or in common bread," be twice enquires in the alternative. Referring once more to Wren, because that is a most remarkable instance, and will save me the necessity of quoting further Visitation Articles, Wren, who himself so strictly insisted that wafer-bread was legal, makes this enquiry with refer- ence to the Communion bread (Report of the Ritual Commission, page 562) : "Doe the Churoliwardens against every Communion, advise with the Minister, about the providing of a sufficient quantity of fine white-bread ? " Now, their Lordships, in Hebbert v. Purchas, dis- tinctly referred to the fact of fine white bread being enquired after, as very strong evidence that wafer- bread was illegal. The Lord Chancblloe. — Before you pass away from that, let me see if I have followed your argu- ment correctly on the words of the rubric. Is it your contention now, that in these words — " Take away all dissension, superstition, &c., it shall suffice that the bread is such as is usual to be eaten, and the best and purest wheat bread that can conveniently be gotten," is it your contention that you bring your case, and what you have done here, under those words, " Bread usual to be eaten — the purest wheat bread," and that you say that the only thing to be alleged against you is, that the bread was in wafer shape? Mr. Charles. — That is so. The Lord Chancellor — You are not yourself obliged to resort to any peculiar meaning of the words, " it shall suffice? " Me. Charles. — No. The Lord Chancellor. — There has been an argu- ment raised as to whether the words " it shall suffice " did not leave it open to have something 364 1^0 proof of incompliance with the Rubric ; yet besides that which was specified. If I follow your argument correctly, you do not resort to that? Me. Charles. — I am not obliged to resort to that. The Lord Chancellor. — ^You say, here, there is bread; and the only question is, what is the shape? Mr. Charles. — Yes ; the argument we address to your Lordships as to this is, that it rests upon the respondent to show that our case is out of the rubric. We say there is no evidence before your Lordships that what has been done in this case is not perfectly consistent with its being within the rubric, and therefore we are not driven to argue as to any alternative ceremonial — the use of any other sub- stance other than bread, because, in this case, ex con- cessis, on the face of the charge, and on the face of the evidence, what was administered was bread. Your Lordships will forgive me for -adding this. I am anxious not to be misunderstood upon it. "We say it is not necessary to argue anything with refer- ence to the words " it shall suffice," because our opponents have not proved that we have violated the rubric ; . but, if it be necessary, then we pray, in aid of the observations which my friend and myself have addressed to your Lordships, the words, "it shall suffice," and the user, under such words, of wafer- bread, or common bread, in the reign of Elizabeth. The Lord Chancellor. — Do I understand you to say, as a matter of fact, upon the pleadings or upon the evidence here, you assert that that which was here used was bread, such as ordinarily is eaten? Mr. Charles. — As a matter of fact, upon the pleadings, and upon the evidence, I assert that the charge refers to bread which was ordinarily eaten. But, if your Lordships should be of opinion that upon the pleadings and upon the evidence, the bread is not bread such as is usual to be eaten, although I have looked -in vain myself through the evidence to see that it is anything else, — then we rely upon the language of the rubric, and we say the words " it shall suffice " mean what Archbishop Parker suggests " it shall suffice " covld be pleaded. — The Position of 365 that they mean in the letter which I read, and do not mean what they have been held in Hebbert v. Purchas to mean — an absolute direction to use no bread except such as is usual to be eaten. The Lord Chancelloe. — We also should like to ask you whether you understand the words in the rubric " such as is usual to be eaten " to refer to com- position, or to shape, or to both? Mr. CiiAELES. — To composition ; and I think that will be obvious, if your Lordships refer to the corresponding rubrics in the earlier Prayer Books, which, we say, substantially mean the same thing, where the words, " with other meats," are inserted — of course, not prescribing any particular shape, but only composition. It is true the words " other meats " are struck out in the present rubric ; but I submit that the words " as is usual to be eaten " mean the same thing as " as is usual to be eaten with other meats," which would apply to composition and not to shape. Perhaps it is reiteration; but I desire not to be understood as abandoning the alternative argument, as to " it shall suffice." The Position of the Celebrant. I now pass to the question of the eastward position. The conflicting views with reference to the eastward position may, I think, very shortly be stated thus : the view in Mebbert v. Purchas is that the prefatory rubric, the north-side rubric, is the governing rubric. The view which we submit to your Lordships is this, that with regard to the prayer of consecration (and that is the only part of the communion office with which we are concerned in this case) the rubric intro- duced in 1662, immediately preceding that prayer, is the governing rubric, and that the prefatory rubric does not, if I may use the expression, reach so far into the communion office as the prayer of consecra- tion. I am not going to trouble your Lordships by 366 the Celebrant " before the Table " shewn by the going through the rubrics, because my friend did that yesterday at considerable length; but I would draw your Lordships' attention to one point. Primarily the north side rubric would seem to refer to the Lord's prayer and the collect following : but when it is the intention of the persons who prepared the Prayer Book to send the priest back to the north side — and they do so on one occasion — the rubric is : " The priest standing as before." " Then shall follow one of these two collects for the queen, the priest standing as before, and saying." Then follow numer- ous and necessary changes of position, including the change of position to fetch the bread and wine from wherever it is placed, and the change of position in order to preach the sermon, and the change of position when more than one minister is present at the reading of the Epistle and the Gospel, and then the part of the office more immediately in connection with the prayer of consecration commences with this rubric : " Then shall the priest stand wp^'' not " stand- ing as before^'' but " stand up, and turning himself to the people, pronounce this absolution." Treating the question, therefore, as one in which your Lordships will mainly look at the new rubric introduced in the year 1662, I desire to say a few words upon the meaning of " before the table," and "before the people." In order to interpret those words, it is necessary that I should very shortly shew to your Lordships how that new rubric came to be framed; for when your Lordships hear the history of the framing of it, I think your Lordships will come to the conclusion that the words, " before the table," and " before the people," are susceptible of the interpretation which we seek to put upon them. Now, I quite agree with the learned Judges in Hebberi v. Purchas, if I respectfully may say so, that the opinions of such persons as Bishop Cosin, and of other eminent persons, are of very great authority in a case of this description. The Lord Chancellor.— -Do you consider that history of the Rvhric — the Court questioned this 367 the private opinion of individuals, however eminent, as to the construction of a document of this kind, can be of weight ? Mr. Charles. — No ; if T am asked as a matter of law, I say that the private opinion of no person, however eminent, can influence the Court in the construction of a rubric. The way in which I put the matter is this : I put it exactly in the same way as it was put by the learned Judges in Hebbert v. Purchas^ where they say that the fact, for example, that (as they thought) Bishop Cosin (who, we may say, is almost the author of the two rubrics in dispute) — The Lord Chancellor. — Is it not the case that this is the production, in the eye of the law, of a Legislative Body, and not of the individual who submitted it to the Legislative Body? Mr. Charles. — The rubric is the production of a Legislative Body. But I submit that, in a matter of this sort, it is important that the Court should know how it was that the Legislative Body came to enact that particular form of rubric. It may assist the Court in placing a construction upon an ambiguous document, and I have the high sanction of the Judgment in Hebbert v. Purchas for doing so, because their Lordships placed great weight upon what they erroneously thought was a Visitation Article of Cosin's applicable to the altered rubric of 1662. The Lord Chancellor. — Any official act done by Bishop Cosin, or anybody else, at or about the time of the document, may be referred to, and also, of course, all the surrounding circumstances which led to the enactment or legislation taking place. The question I have put had reference to the opinion privately entertained or privately expressed, or expressed in a book, by a person who may have been the framer of the enactment. Mr. Charles. — I do not know whether I have correctly caught the intimation which your Lordship 368 mode of proof. When " stand up " was the Rvbric^ desired to convey to me, but I propose to confine myself to the historical facts. The Lord Chancellob. — History before and his- tory after, and history at the time, is quite admissible. Mr. Charles. — I will simply bring before your Lordships the history of the rubric, and show how it was that the rubric came into the Prayer Book in its present form. The Lord Chancellor. — We are quite safe in your hands, and are only anxious to direct your attention to what I have mentioned. Mr. Charles. — The new rubric, introduced in 1662, was introduced after attempts had been made by some to use the eastward position, and amongst other persons who had used that eastward position was Bishop Cosin. Bishop Cosin had been com- plained of, in 1629 or 1630, by one Peter Smart, for standing with his back to the people. He was articled, for using that practice, before the High Commission Court of York. He was a Prebendary of Durham at the time. The article of charge against him is to be found in Cosins Correspondence^ published by the Surtees Society, vol. i., page 190, article of charge, 22. And a still more remarkable attempt to use the eastward position occurred in the case of Bishop Wren. Your Lordships will remember Wren was impeached in 1641. One of the articles of charge against him was, that he used the eastward position. At that time, I may admit, so far as this argument is concerned, he did it wrongfully, because the rubric, on which we now rely, was not then in the Prayer Book. The words simply were, " stand up." In answer to that charge, Wreii gave an answer for which, having regard to the difficulty and danger of the times, he may possibly have had some excuse — but, certainly, he said, in answer to that charge, that the reason he stood at the east was, because he was short of stature, and could better use his hands in that position. The Lord Chancellor.— Do I understand you to Cosin and Wren used the Eastward Position : 369 say that the rubric, at that time, you agree, "would not have authorised the standing towards the east. Mr. Charles.— No ; I do not agree to that. But so far as this argument I am now addressing to your Lordships goes, I might well agree to it; for the rubric I am now relying upon was not then in exist- ence. His defence to the article of charge is to be found in Wren's " Parentalia " — that is, a collection of the sayings of Bishop Wren and others, by his son, page 14, and also at pages 103 and 104. The article of charge was, that " he, in the same year, 1636, in a church at Ipswich, used idolatrous actions in administering the Lord's Supper, consecrating the bread and wine with his face toAvards the east and his back towards the people." And his answer was this : and for the justification of the answer I may mention that this matter occurred, not in 1636, as their Lordships, in Hehhert v. Purchas^ considered — the oflfence was in 1636 — but Wren was on his trial after the Long Parliament had met, and when there was considerable personal danger in giving answers on matters of this kind. Lord Selbornb. — This was a Parliamentary im- peachment, was it? Mr. Charles. — Yes. Their Lordships, misled by the date of the offence charged, thought that the whole, both charge and ofifence, occurred in 1636. The Bishop, in his defence, says : " He acknowledgeth that, for the better taking of the breadj and for the easier reaching both of the flaggon and the cup for the wine, because they stood upon the table farther from the end thereof, then he, being but low, of stature, could reach over his book unto them, and yet still proceed on in reading of the words without stop or interruption, and without danger of spilling the bread and wine, he did, in Tower Church, in Ipswich, anno 1636, turn unto the west side of the table, but it was only while he rehearsed the fore-mentioned Collect, in which he was to take the bread and wine, and at no other time. And he humbly conceiveth, that altho' the Kubrick says that the minister shall stand at the north side of the table, yet it is not so to be meant, as B B 370 Wreinls Defence, prepared but not delivered. that upon no occasion^ during all the Communion-timej he shall step from it : For it is usual to go before the table to read the Epistle and Gospel, and necessary to go from the table to the pulpit to preachj and with the bason to receive the offerings, if any be ; and with the bread and wine to distribute to the communicants." He seems to have relied substantially upon similar arguments to those addressed to the Court by Sir James Stephen yesterday. Those are conspicuous instances of a desire, at all events, to use the east- ward position, prior to 1662. The Lord Chancelloe. — What became of the pro- ceedings against Bishop Cosin? Do you know? Me. Charles. — The articles were rejected. No- thing happened to him. With regard to Bishop Wren, your Lordships will remember that he remained in prison for many years, but eventually escaped the fate of Laud. I am informed by my learned friend, Mr. Shaw, and I ought to state it to your Lordships, that Wren never actually delivered the defence which he wrote out for delivery, and which appears in the Parentalia ; but the circumstance by no means diminishes the force of my argument, and only relieves Wren from any imputation of insincerity that might be cast upon him. The next historical fact in relation to this rubric is this — for what it is worth, and it may be worth nothing,' or very little — it can be proved to demon- stration that the rubric before the prayer of consecra- tion came from the pens of Cosin and Wren. Now, with reference to the proof, I do not know how far I may go. The Loed Chancelloe. — Do you think that material? Do you think that can enter into the question of construction? Me. Chaelbs. — Very well, then, my Lords, I pass from it. With reference to the words " before the table," I would submit this to your Lordships-- assuming for a moment that the north side rubric does not extend so far, and that the rubric, before " Before the Table" when one side agst. Wall, must 371 the prayer of consecration, governs this matter entirely, I contend that where the table is not set free, but where it is fixed with one of its longer sides against a wall, the meaning of the words " before the table," spoken of a table in that position, would be before its longer side. If a wall ran up from this table opposite that side of the table at which the Lord Chancellor sits, and any one were to enter the room and were asked to go and stand before the table, I feel certain that he would not come where I am, and equally sure that he would not go opposite to where I stand, but that he would go to where your Lordships are sitting, on the Lord Chancellor's side of the table . The Lord Chancellor. — I suppose that you mean to say that, if you secure a postulate, that the table . has a back, then you know what the meaning of the word " before " is, and that where you get a table against the wall you have got your postulate. Mr. Charles. — Yes ; I cannot put it in any other manner. If the table has a back like a sideboard has, then " before the table," is looking at the back of the table opposite to the fixed side of the table. Now, that being the postulate, what is the meaning of the words " before the table " in the rubric? Your Lordships will remember that in 1662, although there may have been, and no doubt were, many varieties of position for the table from 1552 to 1662, yet in the year 1662, as the learned Judges in Hebhert v. Purchas justly observed, the altar-wise position was by no means un- common. If the rubric were penned with reference to a table standing against the east wall, surely it is sus- ceptible of the construction put upon it by the Appell- ant in this case. The learned Judges in Hebhert v. Purchas,m dealing with the north side, go through the history of the position of the table ; and although there are some of their Lordships' observations which, with great respect to them, do not appear to me to be quite accurate, I believe it is accurate to say that, when it became the custom to place the table altar- wise against BB 2 372 mean on West-side of it: the Canons 0/ 1640 the east wall, the rubric, that is, the old north-side rubric, remained the same. That it had become the custom to place the table altar-wise against the east wall by the year 1662 — there is little doubt. The rules of Laud had produced a very considerable effect upon the practice. As your Lordships will remember, the Injunctions of Elizabeth indicate that at the Com- munion time the table may be moved from the east end of the church down into the chancel or body of the church. Whether, in moving it, it was turned round, there is no evidence at all; but, beyond all question, after the Elizabethan Injunctions, there was a practice very frequent of moving the table from the east end at the Communion time, but there is no evidence, or very little, I believe, that in moving it, it was turned ; in other words, it would or might be moved from the east end parallel to its original position, or at right angles to its original position — and no doubt it was done both ways — but in the year 1637 Laud issued an order to place the tables at the east end, and rail them in. I find from Dean Hook's " Lives of the Archbishops of Canterbury," volume vi., page 243, the order was one which gave rise to a storm of opposition, but it was an order which Dean Hook states at page 250 was eventually and generally obeyed. The fact that it was generally obeyed, accounts for the difference of language which is observable between the 7th Canon of 1640 and the language of the Elizabethan Injunction, which had been substantially repeated in the Canons of 1604. The Elizabethan Injunction and the Canons of 1604 appear to contemplate a moving of the table as the rule, and its stopping at the east end as the exception ; the Canons of 1640 contemplate the table remaining at the east end as the rule, and its being moved as the exception. The Lord Chancellor.— You refer to the Canons of 1640 as matter of history, and not as an authentic document ? shew this Position, and so bear upon the Rubric. 373 Me. Charles. — Merely as matter of history, I am not quite able to see why they have not got the same authority as the Canons of 1604, because all the Statute of Charles the Second says is, that the Canons of 1640 are not to be considered to have Parliamentary authority, and, of course, they never did have that ; they were ratified by the Crown, and I do not quite see why they do not rest on the same footing as the other Canons. Of course, the reference I make to the canon is simply to show that, as a matter of fact, the altar-wise position had become common. That being so, upon the Restoration — the interval is so short between 1660 and 1662, that it is difficult to say any usage had grown up — but one can scarcely doubt, having regard to the history of the time and the feelings of the people, that the altars would be replaced where they were in 1640. I think, therefore, it must be taken that, even if they were not replaced at the east end of the church in every case, they were replaced in many cases, and that, I submit to your Lordships, is a most important consideration in coming to a conclusion as to the meaning of the words "before the. table" in the rubric, because the persons who penned that rubric must have had before their eyes, in numerous instances, tables plac'ed altar- wise. What, then, is the natural meaning of " before the table," except somewhere or other in front of the table, if the table has a back ? At all events, can your Lordships say that it is a criminal offence to stand there ? Is not the rubric, at all events, sus- ceptible of this interpretation, that " before the table " means at the west side of the table ? That is all that the appellant in this case contends for. He has no desire, if it should turn out to be your Lordships' opinion, having regard to other rubrics of the Communion Service, that any other position is allowable — ^he has no desire to ask your Lordships to narrow it, but what he does urge upon your 374 '''' Before the people " means — in their presence: Lordships is, that, having regard to the fact that, when this new rubric was put in for the first time, the tables were in many cases placed altar-wise, with a wall at the back of them; surely it is not an unreasonable construction of the rubric to say that the words, " before the table," mean at the west side of it. I may here remind your Lordships that we have the judicial decision, to which my friend referred yesterday, in Martin v. Mackonochie, that this rubric, introduced, as it were, on purpose to govern the prayer of consecration, and containing these words, " standing before the table," do govern the whole of the prayer of consecration. It is true that that decision was with reference to the word " standing," but I submit that, if " standing " governs the whole prayer, " before the table " governs the whole prayer also. ' I now come to say a few words on the phrase " before the people," because, it may be said, that the words " before the people " mean in sight of the people, of necessity, and, therefore, render it incum- bent on the minister to stand somewhere else than before the table. Sir Robert Phillimore. — Those words occur only in that rubric ? Mr. Charles. — Only there. There are very similar words in the Marriage Service, to which I will allude directly. Now, the question is, do the words, " before the people," mean merely in the presence of the people, or do they mean in the eyes and sight of the people? It is a singular circumstance, and I think within the rule that I may refer to historical facts, that Baxter presented to the Savoy Conference a form of rubric which he and his fellow Puritans would have regarded as satisfactory. It is in Hall's Reliquice Liturgiece, vol. iv., page 70. Lord Selborne. — What is the date of it? Mr. Charles. — I cannot give your Lordship the in their " sight" proposed at Savoy Conference, 375 date of the book. I have sent for a copy of it, and before the close of the argument your Lordship shall know the date of it. It is, I believe, a comparatively recent work. The Puritan Divines had presented a Liturgy to the Savoy Conference, which they would have been pleased to have seen adopted, and in this case, the rubric which they proposed is as foUows — that is, during the prayer of consecration : " Then let the Minister take the Bread, and hreah it in the sight of the people, saying; The Body of Christ was broken for us, and offered once for all to sanctify us : Behold the Sacrificed Lamb of God, that taketh away the sins of the world." Of course, the frame of the Liturgy was altogether altered, but what the Puritans asked was, that the bread should be broken, "in the sight of the people." Then again — "In lihe manner, let him take the Gup, and pour out the Wine in the sight of the congregation, saying, We are redeemed," and so on. That was the suggestion which was before the revisers of 1662 — the suggestion which nowhere did they think fit to adopt, but, on the other hand, they inserted these words, " before the people," which are susceptible, 1 submit to your Lordships, at all events, of the meaning simply in the presence of the people. The Lord Chancelloe. — That reference is very important, because it appears to afford a clue to the introduction into this rubric of what never was there before — a reference to the people, and what was to be done either before them or in sight of them. Mk. Chakles. — The use which I make of it is this — that they did not adopt the phrase which was suggested to them ; but, in introducing the rubric, adopted the words "before the table" and "before 376 but not put into the new Rubric. The Rubric the people." The Puritans desired that the bread should be broken in the sight of the people, and also that the cup should be taken into the hand in the sight of the people. Now, this rubric, at all events, has no reference whatever, with regard to the cup, to its being taken into the hands of the celebrant in the sight of the people. It is that he may, " with the more readiness and decency, break the bread before the people and take the cup into his hands," not, " break the bread and take the cup into his hands before the people." The Lord Chancellor. — Is that your construction of this, that the words, "take the cup into his hands," had no reference to " before the people " ? Mr. Charles. — The language of the rubric "before the people," is applied to the bread. The Lord Chancellor.— Just read the rubric again? Mr. Charles — " 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." Certainly, on the face of the rubric, the words, " before the people," are applied to the bread and _not to the cup, although, no doubt, in point of fact, if my construction of " before the people " is the right one, he does both before the people, which, perhaps, is an additional reason for the construction for which I am contending. The Lord Chancellor. — Let me ask this ques- tion — does your construction give any eflfect whatever to the words " before the people "? Mr. Charles. — Yes. It gives this effect, that this action of breaking the bread is to be done with the congregation there, that the communicants are present to whom the bread will presently be deli- compared with one in Marriage Service. 377 vered; otherwise, there seems to be nothing to prevent the practice of celebrating in private, or bringing the bread, broken already into pieces, from the vestry or some place near the church. That is the construction which the appellant places upon the words, namely, that the symbolical act of breaking is to be done in the presence of the- communicants, and that the bread is not to be broken in private, but in public. Your Lordships will remember that, by Article 28 of the Church, the Sacrament is not to be reserved. The revisers of the Prayer Book, therefore, took great pains that the bread should be brought into church as bread, and that the symbolical act of breaking should not be performed except in the presence of the communicants. That is the con- struction which I place upon the words '' before the people," a construction which, I submit, satisfies their being there. I believe that nowhere else in the Prayer Book do these exact words, " before the people," occur, but in the Marriage Service there is an expression which, I think, throws some light upon the meaning that can be attached to them, because, after all, that is all the appellant is arguing for — he is arguing for a possible meaning for these words — a meaning which will cover him,, although it may leave others to adopt a diflferent view. There is a passage in the Marriage Service to which Sir James Stephen did not refer on this point. I am quoting from Keeling, page 228, in the Marriage Service. The minister makes this address to the people who have come ,to the marriage, after the marriage : " Forasmucli as M. and N. have consented together in holy wedlock, and have witnessed the same before God and this company." But, my Lords, the consent there is given by two persons who have their backs to the company, yet 378 The Rubric prepared by Cosin and Wren. Error of the expression in the Prayer Book is, that they have done what they do "before this company." It is worth notice, I think. The Prayer Book is a statute, and the word " before," in one part of the statute, may throw some light on the meaning of the word " before " in another part. Now, my Lords, if I have correctly gathered that your Lordships think it is going beyond the Hne to show, as a part of the history of this rubric, where it came from and who drew it, I have finished the remarks I have to make upon the eastward position. The Lord Chancellor. — If you think it material, as a matter of fact, to tell us the history of who did draw it, we shall be happy to hear your state- ment, but at this moment, speaking for myself alone, I do not know that the authority would make much difference, Mr. Charles. — As a matter of history the rubric did unquestionably come from the pen of Wren and Cosin. The Lord Chancellor. — I suppose that may be said of most of the alterations in the Prayer Book at that time. Mr. Charles. — No doubt, of many of them, as a matter of history, they are from the pens of Wren and Cosin. There is in existence at Durham, and printed in the second volume of Cosin's Correspond- ence, a Prayer Book of 1619, in which he made alterations, and there this rubric appears. The same observation may be made with regard to Wren, for there is a manuscript in existence of Wren's, where almost the words of this rubric also appear. The rubric in Cosin's Prayer Book runs thus : — "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 bi'ead before the people and take the cup into his hands, he shall say as folio weth : — " The Lord Chancellor. — You said 1619. I under- Hebbert v. Purchas as to Cosin's Visit. Articles : 379 stood you to mean merely that the Prayer Book in ■which the alteration was made, was his own Prayer Book of that date? Me. Charles. — That is so ; as far as I am aware, there is nothing authentic known as to the action of Cosin in this matter of the eastward position, subse- quent to the Prayer Book of 1662, although their Lordships, in Hebbert v. Purchas, seem to have con- sidered that there was, because they conclude their judgment upon the eastward position in this manner (Brooke, 198 & 3 Law Reports, Privy Council Appeals 663)— " Upon the whole then, their Lordships think that the words of Archdeacon, afterwards Bishop, Cosin, in a.d. 1687, express the state of the law, ' Doth he [the minister] stand at the north side of the table, and perform all things there, but when he hath special cause to remove from it, as in reading and preaching upon the Gospel, or in delivering the Sacrament to the communicants, or other occasions of the like nature.'" That was a Visitation Article, — but not of 1687, but of 1627. Sir Robert Phillimore. — It could hardly be a misprint, because an argument is founded upon it. Mr. Charles. — It is clearly erroneous, because the document to which their Lordships refer is dated 1627, and I can cite it from the Ritual Commissioners Report if necessary. I am informed that in some of the copies of the Privy Council Judgment in Hebbert v. Purchas, the figures 1627 do appear instead of 1687, but I pray your Lordships to remark that it can scarcely be regarded as a mere misprint, because the point of the citation is to emphasize the interpretation of a rubric which did not exist trll nearly fifty years afterwards. The Lord Chancellor. — Of course, if it were 1627, it would have no bearing on the construction of the rubric of 1662. 380 they were 1627, not 1687 as cited. Me. Charles. — No; and yet it is used here to emphasize their Lordships' construction of that new rubric. However, I believe there is nothing after 1662 from Cosin which is relative to the matter. The Lord Chancellor. — Probably what was meant was, that the rubric of 1662 had not altered the law expressed in 1627. Me. Charles. — No doubt that was their Lordships' meaning. Lord Chief Baron Kelly. — Did you say it is a misprint for 1627? Mr. Charles. — I may be wrong ; but, with great respect to their Lordships, I cannot help thinking that when the passage was penned and inserted in the Judgment in that connexion, their Lordships were under the impression that the visitation article was an exposition of the meaning of the rubric in the present Prayer Book. The Lord Chancellor. — It is not very material, but it must be as you say, because they call him " Archdeacon," and he was Archdeacon in 1627. Mr. Charles. — Yes ; the only observation I make is, in point of fact, it could not throw much light upon the rubric of 1662. Before leaving the subject, I have to supply Lord Selborne with the information he asked as to the ReliqucB Liturgicce. The Rev. Peter HaU is the author, and the book was written about fifty years ago. The Crucifix. I have very little to add on the question of the crucifix. With regard to the question of the Faculty, I would remind your Lordships that, by section 14 of the Public Worship Regulation Act, there is power The Crucifix — if in itself legal, the Court may 381 given to the Judge to direct, if he thinks fit, a Faculty to be applied for. "It shall not be necessary to obtain a faculty from the Ordinary in order lawfully to obey any monition issued under this Act, and if the Judge shall direct in any monition that a faculty shall be applied for, such fees only shall be paid for such faculty as may be directed by the rules and orders." If therefore Lord Penzance had come to the con- clusion that the crucifix on the altar screen was not a decoration forbidden by law, if he thought it was legal, it would have been in his Lordship's power to ■ direct that a faculty should issue to authorize it ; and therefore I submit that, in any case, your Lordships will not consider that the fact of its not being at present authorized by a faculty, if indeed it is not — The Lord Chang ellok.— You say that if there is no objection in point of law to it, this Tribunal ought to give an opportunity of applying for a faculty to cure the technical objection of the want of a faculty? Mr. Charles. — Yes, if that technical objection really exists, which, of course, is a question upon the evidence as to which Sir James Stephen addressed your Lordship, and upon which I do not propose to add anything. The evidence certainly would seem to show that there was a faculty for it. Upon the question whether it was a decoration forbidden by law, the appellants accept the view of the law taken by Lord Penzance. The question, therefore, reduces itself to this — whether, upon the evidence in this case, or otherwise, this is a decoration liable to be abused. Now, my Lords, I really do not think that I ought to trouble your Lordships with any observations in addition to what Sir James Stephen said yesterday, as to the liability of this ornament to abuse, beyond reminding your Lordships, that the charge against 382 issue Faculty for it under P. W. R. Act: but Mr. Ridsdale is very different indeed from the charge against Mr. Purchas in this matter. Mr. Purchas was charged with having set up a large metal crucifix in his church, " the same being intended for a ceremonial and religious purpose, and not being a part of the architectural decorations of the church." That is a very different charge from the charge in the present case, which is simply a charge of this crucifix being placed on the screen for the purpose of architectural decoration. The Lord Chancelloe. — A charge of being placed on the screen for the purpose of architectural decoration ? Mr. Charles. — A charge of having it on the screen, the evidence being that it was placed there for architectural decoration, Lord Penzance being satisfied, on the evidence, that it was not placed there for a ceremonial purpose. His Lordship, in his Judgment, says that he comes .to the conclusion that it was placed there as a part of the screen for architectural decoration. I do not know that he actually says so in so many words, but I will call your Lordships' attention to a passage in his Judg- ment, at page 56 of the Appendix : " I may at once, then, dispose of ths charge which, though not distinctly made in the representation, was urged in argument, that the position of the candles in relation to the crucifix and the manner in which they were used together constituted a ceremonial observance, and, as such, were not warranted by law. I hold that this charge is not made out, and I pass to the more serious consideration, whether a crucifix, so placed and lighted, is in danger of being an object of ' superstitious reverence.' " The rest of his Lordship's Judgment is devoted to the consideration whether this is an architectural Lord Penzance held it to he illegal : this tested hy 383 decoration liable to be abused or not, and the con- clusion at which he arrives is this (at page 60) : " Upon the whole, then, I must declare that the crucifix surmounting the screen, in thia case, has not been shown, to my satisfaction, to have been set up as an architectural decoration only, and that there does exist a danger and a likehhood that it may be the object of ' adoration ' and ' superstitious reverence.' " So that his Lordship, as I understand it, considers that, if it can be shown that if there was no danger or likelihood of adoration and superstitious reverence, this decoration would be lawful as an architectural decoration. He says : " It has not been proved to my satisfaction to have been set up as an architectural decoration only." His Lordship appears to think that the clergyman charged with this offence ought to show that. I should have respectfully submitted that it ought to be shown against him that it was otherwise than an architectural decoration only. The remark I was making was, that the charge here is widely different from the charge in Elphinstone v. Purchas^ which was the ceremonial use of the crucifix. Here the charge is simply the placing of the crucifix upon the screen. Upon the question, whether this is an orna- ment likely to be abused or not, I would only cite to your Lordship one passage from the Judgment in Phillpotts V. Boyd, (6 Privy Council Appeals,) page 466, where their Lordships, in considering the character of the Exeter Reredos, say : ".What then, is the character of the sculpture, on the reredos in the case before their Lordships ? For what purpose has it been set up ? To what end is it used ? and is it in danger of being abused ? It is a sculptured work in high relief, in which are three compartments. That in 384 the Opinion of J. Comee. in PUllpotts v. Boyd. ' the centre represents the Ascension of our Lord, in which the figure of our ascending Lord is separated by a sort of border from the figures of the Apostles, who are gazing upward. The right compartment represents the transfigura- tion, and the left the descent of the Holy Ghost on the day of Pentecost. The representations appear to be similar to those with which every one is familiar in regard to the sacred subjects in question. All the figures are delineated as forming part of the connected representation of the historical subject. The Ascension necessarily represents our Lord as separated from the Apostles, who are gazing at Him on His ascent. As finials to the architectural form of the reredos, there is on each side a separate figure of an angel. It is plain to their Lordships that the whole erection has been set up for the purpose of decoration only." Their Lordships come to that conclusion after asking to what find it was used, and whether it was in danger of being abused. Now, with regard to the actual use of the crucifix in Mr, Ridsdale's church, there is no evidence what- ever that it ever has been abused in fact. Of course, a circumstance not conclusive as to the danger of its being some day or other abused, but stiU I submit a material circumstance for your Lordships' considera- tion. As to the liability of its being abused, I desire to add nothing to what has been already addressed to your Lordships by my friend Sir James Stephen. My Lords, I have now concluded the observations which I have felt necessary to address to your Lord- ships on behalf of the appellant. The Lord Chancellor. — We are very much obliged to you. Before you leave, let me ask you one question — I dare say you have some information about it — is there anything to shew, one way or the other, what access there was on the part of the people of the country to the first Prayer Book of Edward the Sixth at the time of the Act of Uniformity of 1662 ? Was it supposed to have been accessible, kept in any of the churches, or otherwise accessible to the people ? Argument of Dr. A. J. Stephens for Respondents. 385 Mr. Charles. — I cannot answer the question. I am informed that many copies continued to exist, but of course it had been superseded only three years after its enactment, by the second Prayer Book of Edward the Sixth, more than 110 years before the passing of the Act of Uniformity of 1662., The Lord Chancellor. — As a matter of literary curiosity, is it known whether any new editions were published, or that it had been re-printed in any way after it was superseded by the second Prayer Book of Edward the Sixth ? Mr. Charles. — I cannot give your Lordships any information myself. My learned friend, Dr. Stephens, informs me that there is no trace of a re-print of the book. Sir Eobert Phillimorb. — Perhaps you will make enquiry, and let their Lordships know in the reply. Mr. Charles. — I will endeavour to obtain that information. DE. STEPHENS FOE THE RESPONDENT. Dr. Stephens. — In this case, I have the honor of appearing before your Lordships on behalf of the Eespondents. I may, perhaps, be permitted in limine to state, that the entire of my proposed argument c 386 Are the Chasuble and Alb legal Ornaments ? will be subsidiary to tbe main principle, that was decided in Martin and Mackonochie, and Helbert and Purchas, namely — ^that the Prayer Book is to be regarded, as the complete and sufficient guide of wor- ship, and that no person has a right to add thereto or to omit therefrom. I. The Chasuble and Alb. The question in reference to the Vestments, is a very simple one ; viz., whether the chasuble and alb are legal ornaments of the minister in the Church of England ? Before I proceed to direct your Lordships' attention to the ornaments of the minister, "as were in this Church of England by the authority of Parliament in the second year of the reign of King Edward VI.," I shall venture to remind your Lordships of the character and nature of the Prayer Book of 1549. The Sarum Missal was in 1549, the chief Service Book of the unreformed Church of England, and that Missal was made the basis of the reformed Communion office. It remained in force until the enactment of the first Act of Uniformity. The framework, however, of the old Communion office was retained in the Book of 1549. Little or nothing was transposed, but passages containing positive error were omitted. Your Lordships in Liddell and Westerton^ (Moore, p. 179.) have thus referred to that Book : " At tte date of the first Prayer Book of Edward YI., tie doctrine of the English Church 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 structure, indifferently, by the names of the Altar, and the Lord's Table. It contains a prayer for the consecration of the sacred elements, in 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 Order in p. Booh 1549 as to Ornaments of Minister. 387 Chalice, the Vestments, are all articles directed to be used in the Roman CathoHc ritual, and spoken of by those names in the Missal." Eespeeting the ornaments of the minister, that were in use for the administration of the Holy Communion, and other services, under the Prayer Book of 1549 : — It is ordered, by the fourth paragraph of the first Communion rubric, (Liturgies, Edward YI., p. 76, ed, Parker Society.) that the following vestures shall be used by the clergy, namely, " a white albe plain, with a vestment or cope " for the celebrant : and for assistant ministers, " albes with tunicles." In the second paragraph of " certain notes for the more plain explication and decent ministration of things con- tained in this Book," it is directed, [ilid. p. 157.) that " whensoever the Bishop shall celebrate the Holy Com- munion in the Church, or execute any other public min- istration, he shall have upon him, besides his rochette, a surplice or albe, and a cope or vestment, and also his pastoral staff in his hand or else borne or holden by his chaplain." And, in the first paragraph of the same notes, it is likewise directed, that : " In the saying or singing of Matins and Evensong, Baptiz- ing and Burying, the minister, in Parish Churches and chapels, annexed to the same, shall use a surplice. And in all Cathedral Churches and Colleges, the Archdeacons, Deans, Provosts, Masters, Prebendaries, and Fellows, being graduates, may use in the quire, besides their surplices, such hood as pertaineth to their several degrees, which they have taken in any university within this realm. But in all other places, every minister shall be at liberty to use any surplice or no. It is also seemly that graduates, when they do preach, shall use such hoods, as pertaineth to their several degrees." It therefore appears, that there are eight ornaments for the minister mentioned in this Book, viz. : the vest- ment, the alb, the tunicle, the cope, the surplice, the hood, the pastoral staff, and the rochette. Of these the rochette and pastoral staff need not be further noticed in this argument, as they have no connection cc2 388 Distinction to he made between Sacrificial with the present case. It is, therefore, proposed only to comment upon the remaining six ornaments of the minister. Such ornaments are susceptible of being divided into two classes, viz., (1) sacrificial vestures and (2) non-sacrificial vestures. The sacrificial vest- ures are the vestment, the alb, and the tunicle. The non-saorificial vestiires are the cope, the surplice, and the hood. One principle pervades our reformed and unre- formed Liturgies, viz., that the vestures of the offici- ating clergy always follow, and are in agreement with, the doctrine taught in each particular liturgy. The Loed Chancellor. — How are we to ascertain which of these, or whether any of these, are what you term "sacrificial vestments"? Dr. Stephens. — -Under the Sarum Missal, the vest- ment or chasuble, the alb, and the tunicle, were the vestures exclusively enjoined to be worn at the altar in the celebration of the Sacrifice of the Mass ; and this rule is still in force in the Eoman Catholic Church. In reference to the tunicle or tunic Dr. Eock says, in his 'Hierurgia,' (p. 451.) that it is a vestment " assigned to the Sub-deacon in his ministry about the altar." The reason that attention is directed to the tunicle, is, that it will be met with in a number of documents connected with the chasuble and alb. The tunicle, however, forms no part of the charges in this Case, but it is in the same category with the chasuble and alb. The expression " chasuble," does not appear in the Prayer Book of 1549, but the expression "vestment" is used. That expression, however, has two, if not three meanings, which it is requisite to distin- guish in order to avoid ambiguity. The expression means fixst, — generally, any vesture worn by the clergy in their ministrations ; secondly, in a special or tech- nical sense, it means the chasuble, which is called the principal vestment worn by the celebrant at the altar in the Eacharistic sacrifice ; thirdly, it is sometimes used for the whole set of eucharistic robes and non- Sacrificial Vestments. 389 worn by the celebrant, namely, the chasuble, alb, amice, stole, maniple, and girdle. The expression " vestment," as it occurs in the Book of 1549 means, the chasuble only, because it is there distinguished from the alb, which was included in the vestment, when that word signified the whole suit : and in Elphinstone and Purchas^ (3 Law Eep. Adm. and Eccles. p. 94.) the then Dean of the Arches, Sir Eobert PhiUi- more, speaks of the vestment, as " the vestment or chasuble." Dr. Eock in his ' Hierurgia,' (pp. 439, 436.) thus alludes to the Chasuble : " The use of it was restricted to the sanctuary. . . . For a thousand years the chasuble has been assigned to the Priest, at the time of ordination, as the habit peculiar to his order, when about to offer up the Holy Eucharistic Sacrifice," .... " The sixth and last garment which the priest, who is about to offer up the Holy Sacrifice of the Mass, puts on, is called the chasuble." Of the Alb, Dr. Eock, in his Hierurgia, (p. 424.) states : " The Church has now consecrated the alb or linen tunie to the use of her priests, her deacons, and her sub-deacons, who are ministering at the altar." I wUl now direct your Lordships^ attention to the non-sacrificial vestments, viz. the Cope, the Surplice, and the Hood. In reference to the Hood, which is a mere academical distinction, it is not mentioned by the Eespondents in their representation. I have only now alluded to it, iu order to remind your Lordships, that that ornament was allowed by the Book of 1549, to be worn when graduates preached, and it wiU be referred to at the end of this branch of the argument. Eespecting the Cope, Dr. Eock in his Church of our Fathers (vol. 2, p. 44.) remarks : " We should remember, that the Church, especially in the Western parts of Christendom, has ever since she adopted this robe, looked upon it, pre-eminently as her processional, in the same manner as she always deemed the chasuble her sacrificial, vestment." 390 Copes^ superstitious and plain — the Surplice There were two classes of copes, viz., (1) the super- stitious cope, and (2) the plain cope. The superstitious cope was ornamented with figures of saints, pictures of legendary miracles, and other superstitious images and representations. Copes of that class were destroyed in the reigns of Edward YI. and Elizabeth, as monuments of superstition and idolatry. The plain or decent cope had no symbolical representations upon it, and was made of velvet, silk, or other material, with embroidery more or less elaborate, like that, which was worn by Arch- bishop Howley at the Coronation of the Queen. From the first Act of Uniformity down to the present time, with the exception of the reign of Mary, and a few months in the reign of Edward VI., the plain cope has been legal in the Church of England. It is dealt with as such, in the 24th Canon of the Canons of 1603, and its legality has also been recognised in HeUert and Purchas. (3 Law Eep. P. C. p. 620.) Dr. Eock, in his Church of our Fathers, (vol. 2, p. 7.) after stating, that the surplice had grown out of the alb, but had loose sleeves instead of tight sleeves, says : " The spirit of St. Osmund's rubrics clearly is, that though the surplice might be worn by those of the Clergy who sat in the choir, or had to move to another quarter of the Church to sing any portion of the office, still for everyone employed about the altar, no matter at what distance from it, and though even he were not more than an acolyte, the alb was the allotted gar- ment : if we may so say, the surplice was the choral, the all the sacrificial ministering robe." In Helhert and Purchas, (3 Law Eep., p. 645.) it was held: "If the minister is ordered to wear a surplice at all times of his ministration, he cannot wear an alb and tunicle when assisting at the Holy Communion ; if he is to celebrate the Holy Communion in a chasuble, he cannot celebrate in a surplice." This statement, although questioned by my friend and the Alb — both cannot be worn together. 391 Sir James Stephen, is, I respectfully submit, substan- tially correct: at least no authority has been, nor I believe can be, produced to prove that it is wrong. The tunicle cannot be worn over the surplice, because the tunicle has smaller sleeves than the surplice. And no rubrical authority can be produced, for wearing a tunicle with the surplice : or for wearing the alb and surplice together, at the Holy Communion. The rubric of 1549 names them in the alternative, " an alb or surplice." (Liturgies, Edward YI., pp. 97, 157.) The Loed Chancellor. — I do not think Sir James Stephen said — at least I did not understand him to say — that a surplice with sleeves, and an alb could be worn together. Sir James Stephen. — What I was instructed to say upon the subject is, that it would be physically possible, but somewhat unnecessary, inasmuch as the surplice would in that case cover the alb. Dr. Stephens. — A sacrificial robe, and a non-sacri- ficial robe, cannot be worn together. Sir James Stephen. — Simply in order that your Lordships may know the respective positions of the parties in this matter, I may be allowed to say, that what I am instructed to state about these vestments is, that it is physically possible to wear the two at the same time, the alb and the surplice, just as it would be physically possible to wear a shirt and a surplice at the same time, and I believe that is commonly done. On the other hand, although physically possible to do it, it would not be a likely thing to be done, because the surplice being the larger garment of the two would cover over the other. As for my learned friend's distinction about sacrificial and non-sacrificial vestments, it is his and not mine, and I know nothing about it, and say nothing about it. Dr. Stephens, — The only distinction I venture to submit to your Lordships is this : that the vest- ures in the first book of Edward YI. were divided into two classes, viz. sacrificial and non-sacrificial. 392 Change as to Cope made in P. BJc. 1549 : Sir Eobekt Phillimoee. — The alb, the tunicle, and the chasuble you say are sacrificial ? Dr. Stephens. — The sacrificial vestments are; (l)the chasuble, the alb, and the tunicle : the non-sacrificial vestments are ; (2) the surplice, the hood, and the cope. The Lord Chancellor. — Then did I tmderstand you to say, that in your view, what you term sacrificial and non-sacrificial vestments could not be worn to- gether ? Dr. Stephens. — Certainly, there is no authority for it.* Under the Samm Missal, and by the rule of the Latin Church for one thousand years, it was and is compulsory upon the celebrant of the altar service to wear a chasuble and an alb. He might not, and may not, wear a cope or a surplice sepa- rately or jointly, as celebrant in that service. The Lord Chancellor. — Did the Sarum Missal specify the vestments ? Dr. Stephens. — ^Yes, my Lord.f By the authority of Parliament, in the second year of Edward the Sixth, the Bishop was for the first time authorized to celebrate at the altar, wearing a cope and surplice. At some other services in the Eoman Catholic Church, the cope and alb are allowed to be worn together, for instance in processions, as dis- tinguished from the altar service. Li the Prayer Book of 1549, which was transitional, both in doctrine and ritual — the celebrant, being below a Bishop, was to wear a white alb plain, with a vestment or cope. That was the important distinction which was * A fuller answer to this question was allowed by their Lordships to be given on a subsequent day. That answer is given here, not to interrupt the argument. f In the Sarum Missal, (p. 89, Ed. Cologne, 1500.) the Idtmy is ordered to be sung by seven boys in mid choir in Surplices, mean- while the priest standing at the altar, puts off his chasuble and, puts on a red silk cope. The, Litany ended, the Mass begins with Xi/ne Meyson, while the priest assumes the chasuble, and then says the Confiteor. At p. 90, the rubric mentions the chasuble, tunicle or dal- matic, the amice, and the alb, as worn in the Mass. that Book a compromise : superseded hy 393 made between a Bishop and a Priest. (Liturgies, Edward YI., p. 76.) In order not to offend by too abrupt a change, the religious prejudices of those, who were still attached to the Eoman Catholic Eeligion, the sacrificial vestments, which were in use under the Canon Law and were enjoined by the Sarum Missal, were continued as law- ful in the book of 1549 ; — ^but as the laity, and those of the clergy, who had renounced the errors of Eome, regarded the sacrificial vestures of the Mass, as monu- ments of superstition and of idolatry, a compromise was effected. The cope was allowed to be worn by the celebrant, as an alternative in the place of the vestment or chasuble. The surplice was, in the case of a Bishop, and in the case of a Bishop only, allowed to be used in the administration of the Holy Communion, as an alternative in place of the alb, — the words being " sur- pUce or alb." Thus, the cope with the surplice, which under the Sarum Missal and the practice of the Latiu Church, were only used as processional or choir vestures, and never before used by the celebrant in the adminis- tration of the Holy Communion, were for the first time legalized by " the authority of Parliament," in the second year of the reign of Edward YI., to have equal weight, in the Church of England, with the sacrificial vestments under the Canon law. The Prayer Book of 1549, was a mere temporary and unsatisfactory compromise, between the Protestant Eeformers and the Eoman Catholics; and this fact accounts for the rapidity and ease, with which that Book was superseded by the Book of 1552, not- withstanding it destroyed all remains of the super- stitious service of the Mass, with its altar service, and rendered the chasuble and alb, illegal vestments in the Church of England. What was the result? That the sacrificial vestments under the Canon Law, were, in the reign of Elizabeth, destroyed as monuments of superstition and idolatry, and from 1559, with the exception of the illegalities, that have arisen since the publication of the 'Tracts for the Times,' not a single 394 Prater Bk. 1552. Elizabethan Act ofUniformity : chasuble, or alb, has been used in the Church of England; — while, on the other hand, the non-sacri- flcial vestments, exclusively introduced by authority of Parliament in 1649, namely, the Cope, Surplice, and Hood, have been in use, and retained by the Acts of Uniformity of Elizabeth and Charles II., down to the present moment. The book of 1552 was enacted on the 6th of April of that year: it came into force upon the 1st of November following, and the King died on the 6th of July, 1553, — consequently, that book was only in operation between eight and nine months. ElizabetKs Act of Uniformity. Passing over the events of the reign of Mary, I will proceed to consider the provisions of Elizabeth's Act of Uniformity. (1 Eliz. c. 2.) The Loed Chajstcellok. — Before you go to that, let me ask you, is it the case, that the second Prayer Book of Edward YI. abolished the cope, as well as what you term, the " sacrificial vestments" ? De. Stephens. — The Second Book abolished the sacrificial vestments, and the cope,* but that ornament was restored by Elizabeth. The surplice and a rochette for a Bishop, were alone retained under the book of 1552. SiE EoBEET Phillimoee. — It leaves " neither alb, vestment nor cope." Those are the words. De. Stephens. — They are the words, my Lord. Although Elizabeth's Act of Uniformity substantially legalized the book of 1552, yet in reference to the ornaments of the minister, there was in the 25th section, this proviso : " That such ornaments of the Church and of the ministers * The cope was omitted for tlie reason stated by Geste, when subsequently consulted by Queen Elizabeth and Cecil, respecting its restoration, "Because it is thought sufficient to use but a surplice in baptizing, reading, preaching and praying, therefore it is enough also for the celebrating of the Communion." (Card well, Confer- ences, p. 50.) the Proviso as to Vestments illustrated hy 395 thereof, shall he retained and be in use, as was in this Church of England by authority of Parliament, in the second year of the reign of King Edward YI., until other order shall be therein taken by the authority of the Queen's Majesty, with the advice of her Commissioners, appointed and authorized under the Great Seal of England for causes Ecclesiastical, or of the Metropolitan of this Realm." This proviso, retaining the ornaments of the Minis- ter, which were in use in the second year of Edward VI., must be taken, as applying exclusively to orna- ments, which were not inconsistent with the policy and the leading principles of the new service, pre- scribed by the Act of TJniformity of 1659. In other words, while the sacrificial vestments were destroyed, with all the other adjuncts of the superstitious service, the non-sacrificial vestments were retained. Conse- quently, a power was given to the Queen, by which she could retain or discontinue, all or any of the non- sacrificial vestures. The Queen, therefore, had a power to restore the cope and the hood, which had been omitted from the book of 1552. It required no express words in Elizabeth's Act of Uniformity to prohibit the use of the sacrificial vestures, which symbolized and were adjuncts of the Eoman Catholic or superstitious service, upon the principle, — that where the subject is destroyed, the adjunct drops of course. I will here refer your Lordships to Sir Edward Wal- graveh Case. (2 Dyer, p. 203a, oct. ed.) That Case was an indictment, in 1561, under the 3rd section of Elizabeth's Act of Uniformity, against a Popish priest for saying of Mass. It was held, that he was within the 4th section of such Statute, which applied to any manner of parson, vicar,or other whatsoever minister,etc. — "by which the meaning of the Parliament appears, that the superstitious service in the Church, should be abolished, and the true service planted in Ueu of it." That the principle thus laid down in Walgraveh Case, was fully recognized in the Ecclesiastical Courts in 1569 is evident, from the proceedings in the Bishop's Court at Durham, which are preserved in the Diocesan 396 Walgrave^s Case and other Ecclesiastical registry, and have been published in the 21st volume of the Surtees' Society's Publications, entitled, " De- positions and other Ecclesiastical Proceedings." At page 127, a report is given of a " libel against hearers of Mass," the date of which is 1569. In this libel, the following articles appear. First: "That no other rite, ceremony, order, form, or manner of celebrating the Lord's Supper, openly or privily .... is to be used in any cathedral or parish church, or other place, than is mentioned and set forth, in one book called ' the Book of Common Prayer,' etc., which book is estab- lished by Act of Parliament anno prime Elizabeth." Secondly : " That there is no other open prayer, or divine service, tolerable in this realm." Thirdly : " That by the same laws of England, not only Mass, matins, evensong, and other superstitious Latin service, devised of late years by the Bishop of Eome, enemy to the Crown of England, with all his usurped authority, is for most just causes utterly abolished : but also all books and ornaments pertaining to the same service is or ought to be defaced, rent, and damned for ever." The Loed Chancblloe. — That is the libel. De. Stephens. — Yes, my Lord. This latter part of the libel is admitted, by four of the accused, at pages 136, 143, 148, 169, and 170. Clergymen _have been prosecuted and punished for not wearing a surplice; but in no ecclesiastical prosecution, from the commence- ment of the reign of Elizabeth down to the present time, was the charge put in the alternative, for wearing neither chasuble, nor alb, nor surplice. Thus Sampson, Dean of Christ Church, was deprived in 1564, for not wearing the habit in his sacred ministra- tion. This appears in Strype's Annals ; (vol. 1, pt. 2, pp. 132, 133.) and at page 125, the apparel in the ministration is stated to be " the surplice." (See also, 1 ISTeal, Puritans, p. 168.) The Loed Chancelloe. — Is it a charge there, or is it simply a narrative, or what ? Dr. Stephens.— It is a proceeding before a Court. Proceedings. The Injunctions of 1659, 397 Sir Egbert Phillimore. — ^Does it appear what Court it was ? Dr. Stephens. — At p.' 132 it appears, that Sampson was tried before the Ecclesiastical Commissioners. Sir James Stephen. — It is only a letter from the Archbishop who told him he ought to wear these things. [The letter was subsequent to the Trial, ibid, p. 133.] The Lord Chancellor. — ^What do you understand to be the habits here mentioned ? Dr. Stephens. — ^Your Lordship will find, at page 125,- that it is the surplice. The Lord Chancellor. — But it does not say what it is : it only says " the habit,s." Dr. Stephens. — The contention is, about wearing the apparel prescribed to ministers by the Queen's Injunctions, and Strype (Annals, vol. 1, pt. 2, p. 125.) says, "in their ministration, the surplice." The Injunctions o/1559. About June or July, 1559, Queen Elizabeth issued Injunctions to explain, and to enjoin the use of, the new Book of Common Prayer, which was then com- ing into use. Those Injunctions were entrusted for execution to the Eoyal Commissioners, who had to make an Ecclesiastical Visitation of all the dioceses in England : — and they were accompanied by Articles to be enquired of, at such Yisitation. I will now proceed to discuss the authority of these Injunctions. In Parker's Correspondence, (p. 375.) Archbishop Parker writes to Sir William Cecil, the Queen's Secretary, a letter, in which, inter alia, he says : " First, I said, as Her Highness talked with me once or twice in that point, and signified that there was one proviso in the Act of the Uniformity of Common Prayer, that by law is granted unto her, that if there be any contempt or irreverence used in the ceremonies or rites of the Church by the misusing 398 whether issued under the Act of Uniformity of the orders_appointed in the boot, the Queen's Majesty may, by the advice of her Commissioners, or Metropolitan, ordain and publish such further ceremonies or rites, as may be most for the reverence of Christ's Holy Mysteries and Sacraments, and but for which law Her Highness would not have agreed to divers orders of the book. And by virtue of which law, she published further order in her Injunctions both for the Communion bread, and for the placing of the Tables within the quire. They that like not the Injunctions force much the Statute in the book. I tell them that they do evil to make odious comparison betwixt Statute and Injunction, and yet I say and hold, that the Injunction hath authority by proviso of the Statute." The Lord Chancelloe. — What is the date of that letter ? De. Stephens. — 1570-71. The Lord Chancellor, — Will you point out what you think material in the letter ? Dr. Stephens. — It appears upon the authority of Queen Elizabeth and Archbishop Parker, that these Injunctions were issued, under the power given to the Queen, by the proviso of the 25th and 26th sections of the Act of Uniformity of 1559. If this deduction be exact, then it constitutes the " other order " which the Act contemplated. The Lord Chancellor. — In order that I may follow you, let me ask you this : as I understand the letter, it is, that Archbishop Parker expresses his opinion in writing to Sir William Cecil, that the Injunctions were issued in pursuance, and were an execution of the Act of Parliament. Dr. Stephens. — Yes, my Lord, but using the Queen's words. The Lord Chancellor. — The Queen's words to him? Dr. Stephens. — Parker professes to quote the words of the Queen to himself. The Lord Chancellor. — The difficulty, as no doubt you are aware, is this, that whatever the Queen may have thought, or whatever Archbishop Parker may have thought, the question is, whether the Injunctions 1559 — were always received as Law : 399 are oomprised in the proviso — whetlier- they were, in point of fact, an order of the Queen with the assent of the Metropolitan, or of the Ecclesiastical Com- missioners ? De, Stephens. — Undoubtedly, that is the point. What I am endeavouring to establish is this, that the Injunctions were always received as law. The statement of Archbishop Parker, in the letter under consideration, applies more immediately to the last two of the Injunctions, which relate to the placing of the Communion Tables and to the Sacramental bread. (1 Cardwell, Doc. Ann., pp. 233, 234.) If that be so, it covers the whole document, and thus they become, the " other order " under the Statute. In Faulkner and Litchfield, (1 Eobertson, p. 228.) Sir Herbert Jenner Fust said : / " Some doubt has been raised as to tbe force of the Injunc- tions. Into that question, however, I am not going to enter ... I may here observe, however, that these Injunctions were referred to by Laud in the trial, in the year 1637, of Bastwick, Burton, and Prynn, for libels, to which I must again presently advert, as lawful injunctions, as justifying the removal of the Com- munion Table; also, upon his own trial in 1640-44, when justify- ing himself in the course he had pursued in changing the position of the Communion Table. Again, they were quoted, and their authority was not questioned, in the trial of Henry Sherfield, Esq., for breaking a painted church window at Salisbury." It is said, that these Injunctions were not executed with the requisite formalities, but whether they are strictly formal, or whether they are informal, they have been always acted upon and recognized as law, and their binding force has never, until recently, been disputed. Is it probable, that if these Injunctions were illegal, they would have been universally submitted to, when we know, that at the commencement of the reign of Elizabeth, there was a very powerful body of the clergy, who were hostile to her Act of Uniformity and to everything, that was done under it ? In fact, that statute was passed, without any mention in it of the assent of " the Lords Spiritual," every one of 400 led to destruction or disuse of Albs and Chasubles : whom, voted against the Bill. (Cardwell, Conferences, p. 30.) The 23rd Injunction, (1 CardweU, Doc. Ann., p. 221.) ordered the removal and destruction of all monuments of idolatry and superstition in churches and houses : and the 2nd Yisitation Article enquired (ibid., p. 242.): " Whether in their churches and chapels, all images, shrines, all tables, candlesticks, pictures, paintings, and all other monu- ments of feigned and false miracles, pilgrimages, idolatry and superstition, be removed, abolished, and destroyed." The Commissioners, as it appears from Peacock's Eeturns, acting upon these Injunctions and Articles, did in the Visitation of 1559, remove and abolish all chasubles and albs, under the description of monuments of idolatry and superstition, and in most cases caused them to be at once destroyed, sold, or otherwise dis- posed of. Some of these vestures, however, although all were removed by the Commissioners from use in the churches, were not wholly destroyed, but were converted — ^the albs into surplices, and the chasubles into coverings for the Communion Tables or the pulpits. Some were left in the official custody, either of the churchwardens, (Peacock, p. 162.) or of the parish clerk, (ibid., pp. 57, 68.) or of the minister, (ibid., p. 61.) Some, which had belonged to private persons, were returned to them in 1559. (Ibid., pp. 147, 61, 67.) The Lord Chancellor. — Do you say that the 23rd Injunction contemplated the destroying of chasubles and vestments of that kind ? Dr. Stephens. — Everything was to be destroyed or removed from use, that was a monument of superstition and idolatry. The Lord Chancbllob. — How do you reconcile that with Clause 47, that the Churchwardens of every parish shall deliver up to the Yisitors the Inventories of vestments, copes, and other ornaments appertaining to this' shewn hy Inventories given to the Visitors. 401 the Church ? If they were to be destroyed, how is that consistent with inventories being delivered ? De. Stephens. — The Inventories were placed in the hands of the Visitors, who ordered, that some of the ornaments should be retained for use in the church ; {ibid., pp. 42, 49, 114.) that others should be destroyed or defaced; and that the remainder should be placed in official custody ; {Ibid., pp. 162, 168.) which were afterwards dealt with by the Commissioners in 1565. {Ibid., p. 147.) It appears from Peacock, that inl559 every chasuble and alb was either destroyed, effaced, or removed from use, no single instance can be shewn in opposition to that statement. The Loed Chancelloe. — You spoke of some of the vestments being converted into albs. De. Stephens. — No, my Lord, the albs were converted into surplices. (Peacock, p. 157.) These facts will be found in many historical accounts of this Visitation, viz., in Stow, Strype, and other authors, but they appear most clearly in Peacock's Lincoln Eeturns. In regard to these Eeturns, some confusion exists in reference to the Commission of 1 5 6 5 . What occurred was this : The Commissioners of 1559 having removed from use in the churches, all the sacrificial vestments ; — a second Commission was, in 1665, sent down for the purpose of calling in all those vestments, that were in private or in official custody, in order to have them delivered up to be destroyed or effaced, as monuments of superstition and idolatry. The Commission of 1559, consisted of noblemen, officers of State, landed gentry, divines, and lawyers. A schedule of their names to the number of 130 will be found in the State Papers (Domestic), Elizabeth, 1559. (vol. 4, No. 34.) The document has no title or endorsement, but is styled in the printed Calendar of State Papers, " Schedule of names of Great Officers of State, Noblemen, Gentlemen, and Divines, classed under the separate dioceses, and the Universities of 402 The Commission o/1559, how composed. Oxford and Cambridge — probably Commissioners for a General Yisitation." The wbole of England was divided into six districts, according to the dioceses, and for each district a separate Commission was issued, and also one for each, of the Universities of Oxford and Cambridge. In this document, the names on the right hand of the page, are the great officers of State, noblemen, knights and gentry; those on the left, are the names of the divines and lawyers, and the names agree with those, that are known to have been appointed as Commissioners in 1559, as given by Card- well, (1 Doc. Ann. pp. 249, 250.) in the Commission for the Northern parts. Those for London are named by Stow in his Annals; those for Exeter are mentioned by Oliver in his History of the Cathedral of that city. (Cited by Mr. Justice Keating in the Exeter Eeredos Case, Bureh, p. 172.) There is another document among the State Papers (Domestic, Elizabeth 1559, vol. 7, No. 79), which recalls certain members of the Yisitation Commission of 1559 ; its date appears to be about October, 1559 ; the persons recalled, are only eighteen in number, and they are exclusively from among the clerical and legal members of the Commission. They returned to London on the eve of Cras Animarum, as appears from a letter of Jewel, who was one of them, written in London on Nov. 2, 1559; (1 Zurich Letters, p. 44.) and from a letter of Sandys, {ihid., p. 73.) who was another of those, that were recalled, in which he states, that he was engaged in the Northern Visitation down to the beginning of November. There is, how- ever, no record shewing the recall of the great majority of the Commissioners. The "Visitation of 1565 in Lincolnshire, may therefore have been, a continued exercise of the Commission of 1559, with new members added to the Commission; or it may have been a delegation from the standing High Com- mission for Causes Ecclesiastical, who sat in London, and who are said to have had power to send certain of their members, to any part of the country, to act Did the Commissioners destroy lawful Vestments 408 witti other local Commissioners as Eoyal Visitors. (Barrow, " Brief Discovery of the False Chiu'ch," p. 367 ; ed. 1707, written in 1590.) Sir James Stephen has referred to an analysis of the Lincoln Eeturns, shewing the dates, at which the various vestments and other adjuncts of the altar or superstitious service were destroyed. A very remarkable omission occurred during the entire of Sir James Stephen's argument, viz., he never once attempted to prove or to state, that either the chasuble or alb was legally in me in any parish church, since the year 1559. He contended, that the Commissioners of 1559 de- stroyed many things confessedly legal, and that there- fore, the destruction of vestments and albs, is no proof, that those vestures were illegal. The articles that my friend says, were destroyed, although "confessedly legal," ai'e first 44 copes, 25 of which were destroyed before 1505 ; but he has overlooked the fact, that there were two classes of copes, viz., superstitious copes and plain copes. Consequently we find ia these Eeturns, two different modes of dealing with copes — in some instances, they were retained for use at Com- munion time, in other cases, they were destroyed, and their superstitious character would account for this different mode of treatment. I will here refer to the case of Billingborowe, (Peacock, p. 49.) where, after mentioning the selling and defacing of vestments and albs, the following entry occurs : "Item, 1 cope remaineth in our parish church with a surplice and 5 towels which we occupy about the Communion ; but all the trumpery and popish ornaments is sold and defaced, so that there remaineth no sup^stitious monument within our parish church of BUlingborowe." This Eeturn is subscribed by " Nicholas, Bishop of Lincoln ; John Aelmer, Archdeacon of Lincoln ; George Monson;" who, at p. 108 of Peacock, are dd2 404 and other Ornaments ? — this discussed in stated to be Eoyal Commissioners, on the "18 March, 1565." As to the second statement of my Mend, that ia 86 instances, candlesticks, were destroyed — which he said were legal ; — What are the facts ? The candle- sticks destroyed were part of the furniture of the altar, and were destroyed as adjuncts of the altar service. Thus, we find in Peacock, (p. 37.) instances, such as the following : " 1 cross of lattin, 1 pair of sensers, 2 handbells, 2 candle- sticks of lattin, 1 pix, with other mettel of papistry. Sold to Robert Fowler, and he sayeth, that they be defaced." My friend then said, that "124 crosses were destroyed, although they were legal." Now, the crosses mentioned as being destroyed by the Com- missioners were crucifixes, for at the death of Mary, a simple cross without the figure of our Saviour upon it, was very uncommon. Tour Lordships iu lAddell and Westerton, (Moore, p. 178.) referred to the '■'■Insti- tutiones Liturgicce ad usum Seminarii Romani^'' by Fornici, as the present text-book of the Pope's Seminary, and quoted that book, as stating, that by the term " cross " is meant the " crucifix." It has not yet been determined, that crucifixes are legal. In reference to crosses without the figure of our Saviour, it is certain, that when used as instrumenta in the services of the Church, they are illegal — not being found in the Book of 1549. The fourth statement of my friend was, that "five pillows were destroyed," which he said, were also legal. But they were destroyed as adjuncts of the altar service. ■Eo doubt, if they were, like the copes, ornamented with superstitious legends, they would be destroyed, as monuments of superstition and idolatry : — And if plain, they would be retained. Thus, at page 166 of Peacock, we find: " 1 linen cloth, a velvet cushion, and a chalice, which now remain in the church, and are occupied about the Communion Table there." reference to Mr. Teacoclth Lincolnshire Inventories. 405 That pillows, when adjuncts of the altar service were destroyed, appears from page 118 of Peacock, where this entry will be found : " Item, one little pillow, whicli was accustomed to be laid upon the attar, which Walter Pell bought." As this pillow lay upon the altar, it was for the use of the altar service, and probably had superstitious symbols upon it, and was destroyed. A like instance occurs at page 120, viz.: " Item, one pillow, which lay on the altar given to a maid to make her a stomacher of." "With regard to vestments, the Eetums published by Mr. Peacock establish, that the Injunctions of 1559, immediately removed all chasubles and albs from use in the churches, at the same time, that the Book of 1559 came into use. Enquiries* for concealed chasubles and albs, were made by the Prelates in their Visitations, throughout the reign of Elizabeth. And, in 1628, enquiry was made by Laud, after those illegal vestures concealed in private houses. In his Yisitation Articles for the Diocese of London ia that year (5 Laud, Works, p. 414) he enquires : " Whether there be any in your parish, who are known or suspected, to conceal or keep hid in their houses any Mass- Books, Breviaries, or other books of Popery or superstition, or any chalices, copes, vestments, albs, or other ornaments of super- stition, uncancelled or undefaced, which is to be conjectured they keep for a day, as they call it." That is to say, for the return of the superstitious service, which they hoped would come At p. 401, [ihid.) it will be found, that Laud had previously en- quired in the 1 9th Article of the same Yisitation : * The following five paragraphs have been brought forward, in order that the argument may remain unbroken — they were spoken in a later part of the argument, after the answer had been given to the Lord Chancellor's question, which now follows, instead of pre- ceding, these paragraphs. 406 Distinction of Superstitious and Decent Copes — " Whether doth your Minister wear the surplice while he is saying the public prayers and administering the sacrament, and a hood, according to his degree of the University." These were two of the ornaments to which I drew your Lordships' attention, as having been authorised by the authority of Parliament in 1549. («refop. 389.) The like enquiry is made by Laud in his Visitation of the Peculiars of Canterbury in 1637. (5 Laud, Works, p. 448.) Superstitious Copes, and Decent Copes. The Lord Chancellor. — With regard to the copes you mentioned, how does it appear that there were two classes, one that you have termed superstitious, and the other not ? Do you find the distinction taken in any of the books ? * Of superstitious copes, an account will be found in the Second Eitual Commissioners' Eeport, (p. 402.) where, in 1561, Bishop Parkhurst enquires in the 2nd article of enquiry : " Whether .... superstitious and dangerous monuments, especially paintings and images in wall, boot, cope, banner or elsewhere, of the blessed Trinity or of the Father (of whom there can be no image made) be defaced and removed out of the Church and other places and are destroyed, and the places where such impiety was so made up, as if there had been no such thing there." Such representations upon copes, rendered them superstitious copes, and they were therefore destroyed. The following instances of such superstitious adorn- ments of copes, will be found in Dolby's ' Church Furniture ' (pp. 105, 106.) : " A cope of red velvet, broidered with archangels and stars of gold, and an image of the crucifix- in the hood. " Two copes of black satin, orphreys red damask, broidered with flowers of gold, having in the back souls rising to their * The following answer was, by permission, given on a subsequent day, but it is inserted here as more convenient for the sequence of the argument. shewn from ParhJiurst, Rushworth, Cosin, the 407 doom, either of them having in the hood, an image of our Saviour sitting upon the rainbow. " The salutation of our Lady and the Assumption, and the coronation of the Virgin, frequently form the subject on the hoods in these lists." It is submitted, tliat tMs class of cope is super- stitious. In Eush-wortli's, Historical Collections, (vol. 4, p. 209.) another illustration occurs in tlie charges brought against Cosin by the House of Commons ia 1640. In the 13th Article he was charged: " That by his appointment, there was a cope bought, the seller being a convicted Jesuit, and afterwards employed in that Church, having upon it the picture of the invisible and in- comprehensible Trinity." In Cosia's Works, (vol. 4, p. 394.) it appears, that in 1658, Cosin wrote a reply to these charges, to a Mr. Warren, ia which he states : " As I never approved the picture of the Trinity, or the image of God the Father in the figure of an old man, or otherwise to be made or placed anywhere at all, so I was weU assured, that there were none such, (nor to my knowledge or hearsay, ever had been) put upon any cope that was ever used among us. One there Was, that had the story of the Passion embroidered upon it, but the cope that I used to wear, when at any time I attended the Communion service, was of plain white satin, only, without any embroidery upon it at all." Here Cosin denies, having used such a cope, as would be defined " superstitious," i.e. coming under the description given by Dolby, and by the Injunctions of Bishop Parkhurst. Cosin states, that he wore a plain white cope, which would be like that, which was in 1552 assigned for the administration of the Com- munion at Dysse. (Exchequer Court of Augmentations, vol. 503.) The difference between copes which were super- stitious by reason of legendary images being em- broidered upon them, and copes which were free from superstition, is recognized by the 24th Canon 408 Canons o/1603, Peter Smarfs language, of the Canons of 1 603, wMch enjoins a decent cope. Th.e best illustration of a decent cope, is that which has been used since the Eeformation by the respective Archbishops of Canterbury at the Coronation of our Sovereigns. For instance, the cope, that Archbishop Howley wore at the Coronation of the Queen, was, as I have previously remarked, (^ante, p. 390.) a plain or decent cope, because it bore no superstitious emblems or legends. The distinction between the superstitious and the decent cope, is relied upon by Mr. Peter Smart in his ' Treatise on Altars,' written in 1629. He was Canon of Durham in 1617, when King James received the Communion there on Easter day. He gives the follow- ing account of that ceremony. The book, containing that account, is very scarce, and I now propose to read from a MS. copy of it. The Loed Chancelloe. — What do you cite it for ? De. Stephens. — In order to show Peter Smart's construction of the word " decent cope " in 1629. The Lord Chancblloe. — Does not that come under the category of expressions by writers of their own opinions ? De. Stephens. — He was holding at the time an oflS.cial position. He speaks of what occurred when King James visited the Cathedral. It is submitted, that it may be referred to, as a matter of history. The Loed Chancelloe. — Is there any public account which you think it material to refer to ? De. Stephens. — Yes, my Lord, there is. The account is very short. It was written in 1617, and Peter Smart was treasurer of the Cathedral at that time. The Loed Chancelloe. — If it is short you may as well read it. De. Stephens, — The following paragraph will be found, at page 19 of Smart's Treatise, that is now in the British Museum. (Press Mark, 4103, d.) : " Which myself being treasurer of this Church at that Queen's Commissioners at Oxford, and Dr. Rock. 409 time, and receiving the Communion with his Majesty (as my office required) I did see and take order should be performed according to the King's pleasure and direction ; at which time there were no images or other gay and gaudy ornaments of superstition and idolatry to be seen. Two copes indeed were worn, both decent, as the Canons prescribe, not party coloured nor pibald, like ours at Durham, but plain without any picture or other imbroidring of Crosses or images, which the doctrine of the Church of England, in the book of homilies and injunctions straightly forbids in our Churches to be used at any part of God's service, especially at the Communion Table, or in windows above it." In the Collectanea Curiosa (vol. 2, p. 2 SO, Oxford 1781.) there is an Order, dated 5 May, 1573, from the Queen's Commissioners at Oxford, to deface all monuments of superstition within the College, it is as follows : " Whereas by credible report we are informed that as yet there are remaining in your coILege divers monuments of super- stition undefaced : these be by virtue of the Queen's Majesty's Commission to us directed to will and command you forthwith upon the sight thereof utterly to deface or cause to be defaced, so that they may not hereafter serve to any superstitious purpose, all copes, vestments, albs, missal-books, crosses and such other idolatrous and superstitious monuments whatsoever." The Lord Chancellor. — Copes ? De. Stephens. — " Copes, vestments, albs." Sir Egbert Phillimoee. — " All copes," you read it. Dr. Stephens. — Yes, my Lord, " all copes." But observe what follows. "All copes, vestments, albs, missal-books, crosses and such other idolatrous and superstitious monuments whatsoever." A superstitious cope is thus described by Dr. Eock, (2 Church of our Fathers, p. 30.) : " The whole surface of the cope was overspread with circles, or quatre foils enclosing embroideries, each a little picture, a work of art in itself, telling some story from Holy Writ, or out of the Saints' Legends." 410 The Injunctions o/1559 — uncertain what Injunctions o/1559, continued. Having, as I trust, satisfactorily explained the dis- tinction between superstitious copes and plain copes, I will nowrevert to the Injunctions of 1559. (ante, p. 406.) The 23rd Injunction having removed from use the sacrificial vestments as superstitious, the 30th Injunction, (1 Cardwell, Doc. Ann., p. 225.) proceeds in the following language : " Her Majesty being desirous to have the prelacy and clergy of this realm to be had as well in outward reverence, as other- wise regarded for the worthiness of their ministries, and thinking it necessary to have them known to the people in all places and assemblies, both in the Church and without, and thereby to receive the honour and estimation due to the special messengers and ministers of Almighty God ; willeth and com- mandeth, that all archbishops and bishops, and aU other that be called or admitted to preaching or ministry of the sacra- ments, or that be admitted into vocation ecclesiastical, or into any society of learning in either of the Universities, or elsewhere, shall use and wear such seemly habits, garments, and such square caps, as were most commonly and orderly received in the latter year of the reign of king Edward the Sixth: " With regard to the garments to be worn in the Church, it is not at first sight clear, what garments were prescribed. The 30th Injunction does not refer directly to any statute, but rather to the vestments commonly worn in the latter year of Edward VI. This "latter year," — according to the dates, to which reference has been made, viz., the 1st of November, 1552, when the Second Prayer Book came into force, and the 6th of July, 1553, when Edward YI. died, — would apply to the time before the second Act of Uniformity came into force, because it was only in force between eight and nine months. The vestures worn within the '' latter year," were the surplice and the cope. The legal use, under the second Act of Uniformity, was the surplice only. But that book had scarcely got into use before the death of Edward VI., and there is evidence of a plain white cope, without any Veshienfs thep prescribed — this doubt 411 figures upon it, having been in use at Communion time witHn the last ten months of that King's reign, and therefore in the "latter year." This fact your Lordships will find in the ' Inventory of the Church Goods,' made by the Eoyal Commissioners in Sep- tember, 1552 : " Item, one white cope for the minis- tration of the Communion," and this, it is added, was " assigned to be used in the ministration of the Divine Service there." (Dt/sse, Exchequer Court of Augmentations, vol. 503.) The language of the 30th Injunction of 1559, is doubtless very indefinite in regard to the vestures to be worn by the minister in church, but it is the fact, that from that time, the use of the cope and surplice, was enjoined upon the authority of the Injunctions. In Archbishop Parker's Visitation Articles in 1563, which your Lordships will find in the Second Eitual Commissioners' Eeport (p. 403.) the Archbishop asks, " whether your Priests, Curates, or ministers do use in the time of the celebration of Divine Service to wear a surplice, prescribed by the Queen's Majesties Injunctions, and the Book of Common Prayer?" This reference to the Injunctions must apply to the 30th, as prescribing the surplice, because no other Injunc- tion touches the question of the garments to be worn by the minister in the time of Divine Service. The cope also is ascribed to the authority of the Injunc- tions in Peacock's Eeturns. (p. 114, et al.) It is observable, that neither the surplice, nor the cope, is enjoined by name in the Injunctions of 1559. The uncertainty caused by this omission, will be removed by referring to the " Interpretations " of those In- junctions drawn up by the Prelates at the time of their enforcement ; — which wiU be found in Cardwell. (1 Doc. Ann., p. 236.) Before the Eoyal Commissioners, entered upon the Visitation of 1559, in which the Injunctions were put ia force, — Parker and other divines, drew up certain " Interpretations and further Considerations " of 412 removed hy the " Interpretations " — date of these these Injunctions, for the better direction of the clergy. These Interpretations were quoted, without the slightest qualification, by the Dean of Arches in Faulkner and Litchfield, (1 Eobertson, p. 228.) This document bears no date, but Sir James Stephen has assigned to it the date of 1561 — the date, however, of this document is 1559. It was prepared before the visitation of June and July in 1559, and is, therefore, of the same date, as the Injunctions which it in- terprets. This will be established by reference to the document itself. At p. 239, of Cardwell, (vol. 1, Doc. Ann.) the following paragraph occurs : " Item, that one brief form of declaration be made, setting out the principal Articles of our Religion ; the rather, for the unity of doctrine in the whole Realm ; especially to be spoken by the Parsons, Curates, or both, at their first entry; and after, twice in the year, for avoiding all doubt and suspicion of varying from the doctrine determined in the Realm." This intention was carried out, and the declaration thus proposed was drawn up, and it will be found in Cardwell; {ibid, p. 263.) where the date is given " anno 1559, Elizabeth 1." Now, as the first year of Elizabeth ended the 17th of November, 1559, the Declaration must have been previous to that date, and the Interpretations, which speak of the intention of drawing up the Declaration, must have been earlier still. In Cardwell, [ibid, p. 238.) there is the following sentence : " That the Communion Bread be thicker and broader, than it is now commonly used." These last words refer to the larger wafer used in the Mass. The Lord Chancelloe. — "Would not it be better to reserve that, until we come to the question of wafers ? De. Stephens. — It is for the purpose of identifying the date of this Document. I shall not refer to it for the wafer bread. The Lord Chancelloe. — Do you differ from the date Sir James Stephen assigns to it ? not 1561 but 1559 — proof as to this. 413 Dr. Stephens. — The date that Sir James Stephen has assigned to it, is 1561. But it is submitted, that the document is of the date of 1559. The Loud Chancellor. — Does it make any diflfer- ence ? Dr. Stephens. — Tes, my Lord. The Queen's In- junctions had used like language as to the singing cakes used at the private Mass; therefore it follows, that the Interpretations were drawn up, while the Mass was yet in use, that is, before June, 1559. It appears from Cardwell, {ibid., p. 252.) that, the Visitation Commission in 1559, authorized the Visitors to put in force the Queen's Injunctions, which were annexed to the Commission, and likewise other Injunctions agreeable and like to the same. The language is : " Injunetiones presentibus annexas, personis in eisdem nominatis, nomine nostro, traden- dum, aliasque injunetiones congruas et competentes, vice et auctoritate nostris, eis indicendum, dandum et assignandum.''^ It is observable^ that of the Injunctions annexed to the Commission, the word used is " tradendum,''^ sig- nifying, that the Commissioners were to hand over those Injunctions, as put into their hands by the Crown. In regard to the ^ other Injunctions of the like import, the words used are, ^'- indicendum, dandum et assignandum" signifying, that these latter Injunc- tions were to proceed from the Commissioners them- selves — " vice et auctoritate nostris " in the Queen's stead, and with her full authority. The Injunctions annexed had coercive authority. The other Injunc- tions, to be added by the Commissioners, were sub- sidiary to the first Injunctions. Thus, the Commission recognized two sets of Injunctions — ^those annexed, and those not annexed, to the Commission. It appears from Parker's Correspondence, (p. 74, dated the 27th August, 1559.) that he and Bishop Grindal, who were members of the High Commission and of the Visitation Commission, had devised a form of subscription to be used in the order of Visitations. 414 The '■'■Interpretations^^ ordered Cope and Surplice; Such a form occurs in the "Interpretations and further Considerations." (1 Cardwell, Doc. Ann., p. 240.) Parker likewise states, in the same letter (p. 73.) that Dr. Smyth, weighing the form of the oath of the Queen's Majesty's supremacy by the exposition inserted in the Injunctions, was contented to take it; and then Parker offered him "to consider the form of subscription, which we [Parker and Grindal] devised to be used in the Order of Visitations." Dr. Smyth both took the oath, and subscribed the form of subscription. Such a form of subscription, is only to be found in these *' Intierpretations and Considerations." Thus, Parker and Grindal acted upon the two classes of Injunctions, recognized in the Eoyal Commission, viz., in regard to the oath of supremacy, they acted upon the In- junctions annexed, and in regard to the form of subscription on doctrine, they acted upon the " Inter- pretations and Considerations," as Injunctions not annexed. It has been urged, that there is no proof that these Interpretations were ever published. Assuming that they were never published, the explanation is, that their object was to give the Commissioners instruction and guidance in carrying out the Queen's Injunctions, and therefore publicity was not essential. In these Interpretations, under the heading " Con- cerning the Book of Service," it is directed, in the first item, " That there be used only but one apparel, as the cope in the ministration of the Lord's Supper, and the surplice in all other ministrations." (ibid. p. 238.) Thus, the omission of the Injunctions to name the cope and surplice is supplied by the " Interpreta- tions and further Considerations," and this regulation of cope and surplice at Communion time, was adhered to throughout the reign of Elizabeth, and never dis- puted. And, the Injunctions, in carrying out the provisions of the Act of Uniformity, removed the chasuble and alb as monuments of superstition, and retained the cope and the surplice. This action of the Injunctions is in accordance with thm only the non-sacrificial Vestments were kept: 315 the Act of Uniformity of 1559, which abolished the superstitious service, and all its adjuncts ; and with its proviso, when interpreted, as retaining only the non- sacrificial vestures. But if the proviso be interpreted, as retaining also the sacrificial vestures mentioned in the Book of 1549 " until other order," then the action of the Eoyal Commissioners, in removing and destroy- ing them under the Injunctions, is due to the fact, that the Injunctions, being issued by the Queen, with the concurrence of the Metropolitan, constituted that " other Order" contemplated by the proviso. It may be remarked, as your Lordships said in Hebbert and Purchas, (3 Law Eep. P.O., p. 644.) " no special form of consulting the Metropolitan is prescribed " by that statute. It has been urged, that at the date of the Injunc- tions^ there was no Metropolitan, because Parker was not consecrated until December, 1659 ; but Parker appears to have accepted the Archbishopric early in July, 1559, and from that time he was Bishop nominate, and is so named in the High Commission, dated July 19, 1559. (1 Cardwell, Doc. Ann. p. 255.) LoED Selbornb. — ^When was he consecrated ? De. Stephens. — ^He was not consecrated until De- cember 1559. LoED Selboenb. — Long after the Injunctions ? De. Stephens. — After the Injunctions. But he was Bishop nominate before the 19th of July, 1559. No Visitation Commissions^ for the southern province, has been cited by my friends, and it seems, that no such Commission was issued before the 15th of July, 1559. The first important Church ceremony, subsequent to the enactment of Elizabeth's Act of IJniformity, was the consecration of Archbishop Parker at Lambeth, on the 17th of December, 1559. It appears from Strype's Parker, (vol. 1, p. 114.) that on that occasion : " the Archbishop had on a linen surplice, the elect of Chiches- ter used a silk cope, being to administer the sacrament. On whom attended and yielded their service the Archbishop's two 416 shewn by Parker's Cons''- ^ Service in Q. Chapel. Chaplains, Nicolas Bullingham, and Edmund Geste, the one Archdeacon of Lincoln, and the other of Canterbury, having on likewise silk copes. The elect of Hereford and the suffra- gan of Bedford wore linen surplices : but Miles Coverdale had nothing but a long cloth gown." TMs account proves, that at the consecration of Archbishop Parker, nothing was worn by the officiat- ing clergy, except the cope and the surplice : there is no trace of the chasuble, or of the alb. It appears from Stow's Annals, (p. 640.) that on the 9th of Septem- ber, 1559, solemn obsequies were performed in St. Paul's, in honour of the then late king of France. The com- munion was administered, and the " Bishops were in copes on their surplices, only at the administration of the said communion." The highest church ceremonial that existed in England in 1560, was in the Queen's private chapel, to which chapel, Elizabeth's Act of Uniformity did not apply. The ceremonial used in the Queen's chapel, was not used in any cathedral or parish church, and its use gave great offence to the prelates, and they pro- tested against it. (Letter from Bishop Sandys to Peter Martyr, 1st April, 1560, 6 Burnet, Hist. Eef., pp. 445, 446.) Burnet, (3 ibid., p. 499.) has preserved a letter from Thomas Sampson to Peter Martyr, dated January the 6th, 1560, in which he describes, the particulars of the offence given by the ceremonial in question. He says : " Let others be Bishops, he desired only to be a preacher, but no Bishop. There was yet a general prohibition of all preaching ; and there was a crucifix on the altar still at Court, with lights burning before it ; . . . . "Three Bishops officiated at this altar ; one as priest, another as deacon, and a third as sub-deacon, all before this idol, in rich copes ; and there was a sacrament without any sermon." It appears from this letter, that even in the Queen's chapel, neither the chasuble, nor the alb, was intro- duced ; and no reliable evidence can be produced, of the chasuble and alb, ever having been worn in Queen Elizabeth's private chapel. Proceedings in Si/nod of 1562 as to Vestments. 417 In Heylyn, (2 Hist. Eef., p. 314.) the foUowiog description is given of the state of the Church of England in 1560, immediately after the Yisitation of 1559 had put in force the Act of Uniformity and the new book of Common Prayer, according to the Queen's Injunctions : " These Bishops nominated and elected according to the statute in the 25th of King Henry VIIT., never appearing pub- licly, but in their rochets, nor officiating otherwise than in copes at the holy altar. The priests . . . not executing any divine office but in their surphce." Sir James Stephen attached great importance to the action of the Synod in 1562, •vrhich, he remarked, ■was " one of the turning points of the Church of England." He adduced the documents connected with that Synod, as a proof, that the vestments in question were at that time legal. He quoted the words of a paper containing matters prepared for the Synod, which will be found in Strype's Annals, (vol. 1, pt. 1, p. 475.) One passage in that paper was, " that the use of vestments, copes, and surplices, be from henceforth taken away." Upon that passage Sir James Stephen relied to prove, that the chasuble and alb were legal ; but the explanation is simply this, that the word " vestments," is not used here in its special or technical sense of chasuble, but in its general sense, as vestures worn by the clergy in their ministrations. Thus, Bishop Sandys, (1 Zurich Letters, first Series, p. 74.) writing in 1560, says : "Only the popish vestments remain in our Church — I mean the copes ; which, however, we hope wiU not last very long." Accordingly, the proposal prepared for the Synod was no more than this : that the use of " ministerial ves- tures, viz., copes and surplices, be from henceforth taken away." And when the business came before the Synod, (1 Strype, Annals, pt, 1, p. 501.) the pro- position was thus stated, " that the use of copes and 418 The controversy in ElisabeWs reign related to surplices may be taken away," which was the same pro- position that was at first prepared, only the general word " vestments " was not used, because it was surplusage. I agree with Sir James Stephen, a great importance is to be attached to the language of this Synod, because the use of copes and surplices was objected to; and a fortiori chasubles and albs, if in use, would also have been objected to, and they were not. During the reign of Elizabeth, the only questions that were the subject of controversy, respecting the vestures of the clergy in their public ministrations, had exclusive reference to " cope or no cope," " surplice or no surplice." It is true, that at the commencement of the reign of Elizabeth, many of the ultra Eeformers, among whom were Bishop Sandys and Bishop Pilkington, objected very strongly to the enforced use of what they called "papistical garments." These objections did not allude to the chasuble or the alb, because it appears from all the correspondence of that time, that by " papistical vest- ments," the extreme reformers meant, the cope and surplice, which they considered as relics of the popish or superstitious service. (1 Strype, Parker, p. 308, 1 Zurich Letters, pp. 72-74.) The Injunctions, ex- plained by the "Interpretations," required the surplice in the celebration of divine service. The Yisitation Articles of Archbishop Parker, Bishop Sandys, and Bishop Cox, referred to by my friend Mr. Charles, uniformly required the use of the surplice, as being enjoined by the Injunctions of Queen Elizabeth and by the Prayer Book, — whereas the Book of 1549 re- quired the alb, to be used by the priest and deacons in the ministration of the Holy Communion. In 1565 Archbishop Parker, (1 Strype, Parker, p. 427.) urged by the Queen, proceeded against upwards of a hundred of the London clergy, to ascertain, whether they would promise conformity in their ministrations and outward apparel, as established by law and the Injunctions. These clergymen were examined before the Commissioners for Ecclesiastical Cope and Surplice^ not to Chasuble and All. 419 Causes ; sixty-one of them promised conformity ; nine were absent; and thirty-seven of them refused to conform. The Archbishop and his brother Com- missioners " did suspend them, and sequester their fruits, and put them from all manner of ministry; with signification, that if they would not reconcile themselves within three months, then to be deprived." {lUd. 429.) Sir James Stephen referred to a very important paper, preserved among the Cecil MSS., and reprinted by Strype in his 'Life of Parker,' (vol. 1., p. 302.) It appears, that in 1564, the Queen desired to have returns from all the dioceses, shewing the varieties then practised in the services. (Parker, Correspondence, p. 226.) Of those Eeturns, this paper presents the summary : The following, are all the varieties, then practiced in the ministration of the Holy Communion, as regards vestments: "some with surplice and cope." The last word has been printed "cap," but it should be " cope," for the " caps " are discussed later in the paper. It then continues — " some with surplice alone ; others with none." It appears, that in no single instance, was a return made of the ttse of the chasuble or alb in any church in 1564. The Lord Chancblloe. — What year was that ? De. Stephens. — The date of the Queen's letter was the 25th of January, 1564-5. The date of this paper was 14th of February, 1564-5. The Loed Chancelloe. — In how many churches was that ? De. Stephens. — It was universal. This Paper ap- pears to be a summary of returns from all the dioceses. The Loed Chancelloe. — You say it is stated in the Parker Correspondence, "that that is the result of the return " ? De. Stephens. — rl do not find the return mentioned in that letter. This is the letter of Queen Elizabeth to Archbishop Parker, dated 25th January, 1564-5. No single instance can be shewn in that Paper, of E E 2 420 The Queen's Letter to the Ahp., Jan. 25, 1564-5, the use of chasuble or alb in any cburcli in the year 1664. The Lord Chancellor. — Do I understand you to say, there is any reference to some returns in that letter?" Dr. Stephens. — ^Yes, my Lord, the letter commanded inquiries to be made ; and it was upon those returns, that the Advertisements were founded. The Lord Chancellor. — "What is the page of it? Dr. Stephens. — Your Lordship will find it at pages 225 and 226. The Lord Chancellor. — Will you read what you refer to ? Dk. Stephens. — " Therefore, "we do by tbese our present letters require, enjoin, and straitly charge you, being the Metropolitan, according to the power and authority which you have under us over the Province of Canterbury, (as the like we will order for the Province of York), to confer with the Bishops your brethren, namely, such as be in commission for causes Ecclesiastical, and also all other head officers and per- sons having jurisdiction ecclesiastical, as well in both our Universities as in any other places, Collegiate, Cathedral, or whatsoever the same be, exempt or not exempt, either by calling to you from thence whom you shall think meet, to have assistance or conference, or by message, process, or letters, as you shall see most convenient, and cause to be truly understand, [sic], what varieties, novelties, and diversities there are in our clergy or amongst our people within every of the said jurisdic- tions, either in doctrine or in ceremonies and rites of the Church, or in the manners, usages, and behaviour of the clergy themselves, by what name soever any of them be called. And thereupon, as the several cases shall appear to require reforma- tion, so to proceed by order, injunction, or censure, according to the order and appointment of such laws and ordinances as are provided by Act of Parliament, and the true meaning thereof, so as uniformity of order may be kept in every church, ^nd without variety or contention." The Lord Chancellor. — This is, as I understand it, an order from the Queen to Archbishop Parker to proceed to enquire as to uniformity ? Dr. Stephens. — Precisely so, my Lord. The Lord Chancellor. — You spoke of some re- turns. What were they ? as to Varieties in Service — return to inquiries 421 Dr. Stephens. — I beg to refer your Lordship to Strype's Parker, (vol. 1, p. 302.) — the second item. The Lord Chancellor. — The second item of what ? Dr. Stephens. — The item of the paper entitled " varieties in the service and administration used." {Ihid. p. 302.) Chapter 19, (iiid. p. 300.) is headed as follows: " The Archbishop labours an uniformity among the ministers ; in habits and other ceremonies appointed." At p. 301, Strype says : " And the confused varieties that divers ministers in these days used in the service of God, and in their habits which they wore, gave much offence, and were complained of. Insomuch as I find a paper among the Secretary's MSS. specifying these varieties, dated February 14th, 1564, which was the month before the article for uniformity, afterward mentioned, were devised by the Archbishop and the other Bishops. This paper I think worthy our transcribing, for the illustrating our present history. Which is as follows, verbatim." Then occurs the paper entitled, " varieties in the service and administration used." The Lord Chancellor. — I understand that Strype prints some paper giving items of various divergencies. "What paper is that ? Dr. Stephens. — It is the paper from which I am reading, and I will hand it to your Lordship. The Lord Chancellor. — I see what is stated here is, " I found the paper among the Secretary's manu-^ script." Is that Secretary Cecil ? Dr. Stephens. — ^Yes, my Lord. The Lord Chancellor. — I see it is from the Cecil manuscripts. The way in which I understood you to use it is, that it is an historical Manuscript stating what were the diversities in practice, and as to vest-, ments mentioning nothing but the surplice and the square cap. Dr. Stephens. — The surplice and cope. It is printed "cap," but it should be cope. The Document is cited, as an historical Manuscript, in order t© 422 thereon led to preparation of the Advertisements. show that this return was made immediately before the Advertisements were issued. The Lord Chancelloe. — Why do you call it a return ? De. Stephens. — It is difficult to know, how Cecil and Parker could have procured that universal information, except it were founded upon some return. As a matter of history, it seems, that it was in consequence of that paper, whatever it may have been, that the Advertise- ments were issued. It is questionable whether the returns, or exact copies of them, exist.* The Advertisements. I wiU now proceed to the Advertisements. After the Injunctions of 1559 had been issued, great negli- gence existed among the clergy, respecting the use of the cope and even of the surplice. The result was, that shortly after January 1564-5, certain rules and orders were issued, which are known by the name of "Advertisements." (1 Cardwell, Doc. Ann. p. 321.) Among those rules and orders, the 2nd, 3rd, and 4th paragraphs applied to the ornaments of the minister, p. 326.) and are as follow : " In ministration of the Holy Communion in the Cathedral and Collegiate Churches, the principal Minister shall use a cope with Gospeller and Epistoler agreeably ; and at all other prayers to he said at the Communion Table, to use no copes but surplices. " That the Dean and Prebendaries wear a surplice with a silk hood in the quyer ; and when they preach in the Cathedral or Collegiate Church, to wear their hood. " That every Minister saying any Public Prayers, or minis- tering of the Sacraments, or other rites of the Church, shall wear a comely surplice with sleeves, to be provided at the charges of the Parish, and that the Parish provide a decent table standing on a frame for the Communion Table." f *In Strype's Parker, p. 364, one of these returns is quoted from the MSS. of C.C.C. Cambridge. This return was obtained by Parker in obedience to the Queen's command. f These paragraphs were not read at this point but merely referred to, because they had been read by the Counsel for the Appellant. Considerations as to their authority : 423 The distinction between tlie action of th.e Advertise- inents upon tlie vestures of the clergy, and the action of the Injunctions of 1559 is, that — ^the Injunctions began by sweeping away " all monuments of super- stition " under which category, the chasuble, and alb were destroyed or removed from use; but the cope and the surplice were dealt with, as legal ornaments of the minister. The Advertisements dealt with the cope, the surplice, and the hood. There were, at that time, no other vestures in me. They dififer from the Injunctions by withdrawing the cope from all parish churches, and confining its use to cathedrals and coUegiate churches. Thus we find, that, under Elizabeth's Act of Uniformity, her Injunctions and Advertisements agree in rejecting the chasuble and alb from wse, and in retaining the cope, surplice, and hood. Eespecting the presumption of a due authorization of the Advertisements by the Crown, it is a principle of law, that those presumptions should be favoured which give validity to acts. It is conceded, that the Advertisements do not in express terms bear upon their face, the Eoyal sanction ; but no special form testifying the Eoyal sanction, is required by the proviso of Elizabeth's Act of Uniformity. There is, however, no doubt, that the Advertisements were imiversally obeyed, as lawfully binding. The Loed Chancellor. — Why do you say, that they do not bear the Eoyal sanction? De. Stephens. — The sanction of the Crown does not appear on the face of the document. LoED Selboenb. — The title is 'By virtue of the Queen's Majesty's Letters.' [Her Majesty's letters were only the command to prepare the Advertise- ments, (1 Cardwell, Doc. Ann. 321.) and not a sanction of them when prepared.] De. Stephens. — The Advertisements were not under Her seal. On the 21st of May, 1566, the Advertisements were 424: Bp. Orindal sends them to D. 6f C. of S. Paul's: dealt "witli as authoritative, by Grindal, Bishop of London. Grindal, was one of the Commissioners for Causes Ecclesiastical, and assisted in the preparation of the Advertisements. He wrote an official letter to the Dean and Chapter of St. Paul's, who had a separate and special jurisdiction over certain parishes or pecu- liars. This letter will be found in the 39th volume of the 'Domestic State Papers of Elizabeth,' (No. 76.) and is signed by the Bishop of London. It is as follows : " After my hartie comendacyons, these are to require and to give you in especyall charge, that with all convenyent speed you call before you all and singular the mynisters and ecclesi- astical persons within your deanry of Poules and office, and to prescribe and enjoyn everie of them upon payne of deprivacon, to prepare forthwith and to weare such habit and apparell as is ordeyned by the Queenes majesties authoritie expressed in the treaty, entituled ' The Advertisements,' &c., which I send heerin enclosed unto you and in like to enjoyne everie of them, under the said payne of deprivacon, as well to observe the order of ministracon in the church with surples, and in such forme as is sett forth in the saide treatie, as alsoe to require the subscription of every of them to the said Adver- tisements. And yf you shall perceive any of them to be disobedient which shall refuse to conform themselves heerin, that then without any delay you certifie me the names of all such before Trynitie Sundaie next ensuinge to the intent I male proceed to the reformacon and deprivacon of everie of them as apperteyneth in this case, with a certificate allsoe of the names of such as promiseth conformytie." .... " From my House in London this xxjth. of Male, 1566." If Eliiiabeth's Act of Uniformity did not by its own force, abolish the chasuble and alb ; and if the Adver- tisements never received the sanction of the Crown; not only Bishop Grindal, who enforced the subscrip- tion of the clergy, within the Peculiar of S. Paul's to the Advertisements, under pain of deprivation, — ^but every clergyman in England became liable to fine and imprisonment, for wearing at the administration of the Holy Communion, a surplice prescribed by the Articles presented to the Queen, 1583, recognize them: 425 Advertisements, instead of the alb, "with either the chasuble, or the cope, as prescribed by the first book of Edward VI. The presumption of omnia rite acta here applies ; which will receive illustration from Sichel and Lambert (15 C. B., New Series, p. 789.) where Mr. Justice Keating said : " We have here the fact of a religious ceremony having been performed by a minister of religion in a place of public worship. All that is required to make the marriage a strictly v.ahd marriage, is, — the parties being Roman CatholicSj — that the place where the ceremony was performed was duly licensed under the statute for the celebration of marriages, and that the Registrar was present. The question is whether we may presume the existence of those two requisites. I think we may, consistently with all the doctrine of legal presumptions, fairly presume that the ceremony was properly and legally performed, seeing that if it were otherwise, the ofB elating clergyman would have been guilty of felony." An important document is preserved among the 'Domestic State Papers of Elizabeth, (vol. 163, No. 31.) It is endorsed: " October, 1583 — Articles presented to Her Majesty by the Archbishop of Canterbury, and by the Bishop of Sarum in the names of themselves, and the bishops of London, Rochester, Lincoln, Peterborough, and Gloucester. At St. James." One of the Articles applies to the vestures, and is as follows : " That all preachers and others in Ecclesiastical orders, do at all times wear and use such kind of apparell as is prescribed unto them by the Book of Advertisements — that is, cloak with sleeves, square cap, gown, tippet," etc. : There is a marginal note to this Article, in which the following words occur — " the Article is warranted both by the Advertisements set out by Her Majesty's authority, and also by the Q's Injunctions anno primo Elizab." 426 also Canons o/1575 and Visitation Articles^ Can it be for one moment supposed, that the Archbishop of Canterbury, the Bishop of London, and five other prelates, would have stated in a document presented by them to the Queen in 1583, that the Advertisements were set out by Her Majesty's au- thority, unless they had been so issued ? Sir James Stephen relied upon an alteration made in the Canons of 1575, as proving that the Queen was unwUling to recognize the authority of the Advertise- ments. In the draft of these Canons, (1 Card well, Synodalia, p. 136.) there was a clause providing, that the clergy should take out licences for preaching : " paying not above fonrpence for the seal, parchment, writing and wax for the same, according to an Article of the Adver- tisements in that behalf." This Clause was afterwards changed ; which change, if I understood Sir James Stephen exactly, was made by the Queen, into the words — "paying nothing for the same." The explanation is obvious. The charge fixed by the Advertisements was withdrawn, and consequently the reference to the Advertisements, as the authority for the charge, was, as a matter of course, withdrawn likewise. It will appear from the Visitation Articles, published in the Second Eeport of the Eitual Commissioners, that from 1569 to 1603, the Prelates in their Yisitation Articles, recognized the authority of the Advertisements in express words. I need only refer to two of Arch- bishop Parker's Yisitation Articles. In 1575 the Archbishop, {ibid. p. 418.) enquires: "Whether they have uprightly and unfeignedly both ob- served in their own persons, and towards all other, put in due execution the ecclesiastical laws of this realm the Queen's Majesty's Injunctions, and other Her Highness command- ments, orders, decrees, and advertisements set forth for the public administration of God's holy word, and sacraments. Whether they have commended and favoured all those that sought the same, and condignly punished all those that sought the contrary." 1569 to 1603 ; Oxford Commission 1573 : 427 And in 1569, the Archbishop, in his first Yisitation enquiry, (1 Cardwell, Doe. Ann., p. 355.) asks : "Whether the Holy Sacraments be likewise ministered reverently in such manner, as by the laws of this realm, and by the Queen's Majesty's Injunctions, and by the Advertise- ments set forth by public authority is appointed and pre- scribed." It would be dij0fi.cult for Parker to have used more forcible, or more explicit language than this, because he ascribes to the Advertisements, "public authority;" that is, an authority to which every subject must yield . obedience. In all the Yisitation Articles during the reign of Elizabeth, the only ornaments of the minister, respect- ing which enquiries are made, are the surplice with sleeves, and the university hood, according to the degree of the minister. The provisions of the Adver- tisements were enforced in every Diocese. The unwillingness of the Queen to recognise the authority of the Advertisements, has been urged at great length ; the answer is, that the original draft of the Advertisements, contained a reference to the then proposed Articles of Eeligion. (Parker's Correspon- dence, p. 272. Dr. Blakeney, Prayer Book, 3rd ed., p. 284.) When that reference was omitted, the Queen withdrew her objection, and gave her sanction to the Advertisements . It has been stated, that the destruction of vestments, albs, etc., which were confessedly legal ornaments, was done in a state of "tumult." Your Lordships need only to be reminded of one Case in order to illustrate this so-called "tumult." It was an order made in 1573, by the Queen's Commissioners at Oxford, which has been already quoted. (2 Collectanea Curiosa, p. 280, ante p. 409.) After ordering the destruction of copes, vestments, and albs, it concludes thus : "And within eight days after the receipt hereof, to bring true certificate of their whole doinge herein to us or our Colleagues, 428 and the Canons o/1603 and o/1640. whereof fail you not as you will answer to the contrarye at your perill. From Magdalen College in Oxford, 5 Maye, 1573. Laur. Humfry ; Herbert Westfaling ; J. 0. Kennall ; Wm. Cole." LoED Selboene. — It is a special Commission apparently — Lawrence Humphrey was tlie President of Magdalen College, Oxford. Dr. Stephens. — Yes, my Lord, that was so, — and it seems difficult to imagine, how the destruction of these monuments of superstition, under such circum- stances, can be legitimately called "tumultuous." The Canons of 1603 afford another presumption in fayour of the valid execution of the Advertisements. The 24th of those Canons prescribes the garments to be worn in Cathedral Churches by those, who administer the Communion. That order is founded upon the Ad- vertisements of Eli^iabeth in the following words : " according to the Advertisements published anno 7 Eliz." These Canons were published by James I., under the Great Seal, and it may be doubted, whether any State Paper so authorized, would thus quote by the Eegnal year, a document of doubtful validity. The Canons of 1640 expressly describe the Advertise- ments, as " the Advertisements of Queen Elizabeth." (1 Cardwell, Synodalia, p. 404.) These Canons were issued by Charles I. under the Great Seal, and though not now effectual in law, yet they are as much a solemn act of the Crown, as a Eoyal Proclamation. A Proclamation in Bex v. Sutton (4 M. & S., p. 632.) was held to be prima facie evidence of the facts stated in it. But at all events the Canons of 1603 and 1640, are good evidence of reputation or usage. The axithority of the Authorised Version of the Bible, is a case analogous to that of the Advertise- ments. No trace can be found of any Eoyal sanction formally given to what is known as, and entitled, the " Authorised Yersion of the Bible appointed to be read in Churches." In fact, there is no evidence extant, of this Version ever having been submitted to Parliament, The Surplice the point in dispute at 429 or even to the Privy Council. Canon "Westcott in his * History of the English Bible' (2nd ed., p. 123.) says : " No evidence has yet been produced to shew, that the version ■was ever pubHcly sanctioned by Convocation, or by Parliament, or by the Privy Council, or by the King." The recognition of the Authorised Yersion of the Bible, necessitates the presumption, that all proper sanction had been given ; and it is difficult to know upon what principle, a distinction can be drawn, between the recognition of the Authorised Version of the Bible, and the recognition of the Advertisements of Queen Elizabeth; especially, as the usage of the Church of England, has been in conformity with the Advertisements for more than three hundred years. (See also Devine v. Wilson, 10 Moore, P.C. p. 527.) Canons o/1603, — Hampton Court and Savoy Conferences. — Visitation Articles. In reference to the Canons of 1603 ; the 24th, 25th, and 58th, of these Canons restrict the use of the cope, even further, than the Advertisements had done, en- joining, that even in cathedral and collegiate churches they should only be worn on the days of the prin- cipal feasts- The Canons agree with the Advertisements in requiring not the alb, but the surplice, to be worn at all ministrations in parish churches. The 58th Canon varied from the Advertisements, by adding the use of the hood in the case of graduates, and the tippet in the ease of non-graduates. Eespecting the Hampton Court and Savoy Con- ferences, the substantial question in difference was, whether the surplice should be used or not. The Puritans detested the surplice and wished to see it abolished. Under Elizabeth's Act of Uniformity, the surplice down to 1661, excluding the period of the Commonwealth, was enforced upon them. The object of the Puritans at the Savoy Conference was, that they should not be required to wear the surplice under the proposed revised Prayer Book. 430 the Hampton Court and Savoy Conferences. Tlie Puritan Divines at that Conference, objected ia particular to the then Ornament Eubrio, which was that of Elizabeth's Book of Common Prayer — ^they said: " Forasmuch as this rubric seemeth to bring back the cope, albe, &c., and other vestments forbidden by the Common Prayer Book, 5 and 6 Edward VI., and so our reasons alleged against ceremonies under our 18th general exception, we desire it may be wholly left out." (Oardwell, Conferences, p. 314.) The Puritan ministers by this language prove, that neither the cope, the alb, nor any other Eoman Catholic vestures, forbidden by the Prayer Book of 1562, were then in use in the parish churches of England, because they speak of the rubric, as " seeming " to briag them back. In Cardwell's Conferences, (pp. 350, 351.) the Bishops in their reply recognized, that the surplice, was the only grievance of which the Puritans had to complain in regard to vestures ; and accordingly de- clined, to recommend any change in the language of the then Ornament Kubric. It is clear, that the object of the Puritans at the Savoy Conference was per fas aut nefas to get rid of the surplice, {ibid. pp. 310, 345.) It appears from the Visitation Articles, published by the Eitual Commissioners, that whenever the prelates in their visitations referred to chasubles or albs, they invariably directed, that they should be destroyed, as " monuments of superstition ; " and, with the like uni- formity, they required the use of the surplice by the minister in all his ministrations in parish churches. It will only be requisite for me, on the present occasion, to recall your Lordships' attention to Laud's Visitation Articles, which have been quoted in a previous part of the argument. (5 Laud, Works, pt. 2, pp. 401, 414, 448, ante p. 7.) That prelate, so far from recognizing the legality of chasubles and albs as ornaments of the minister, required the churchwardens to deal with them, as ornaments of superstition. Acts of Uniformity inconsistent with a theory 431 Theory of Maximum and Minimum. Sir James Stephen has discussed the theory of maximum and minimum, — ^but the principle of the Acts of Uniformity is irreconcileable, with the theory of maximum and minimum, — ^because that theory, by its Tery terms, produces and sanctions variety, and not uniformity. The main principle of the Act of Uni- formity is, that there should be one uniform order of common service and prayer, and of the administration of Sacraments, rites and ceremonies in the Chiirch of England. In Martin and Mackonochie, (2 Law Eep. P. C, p. 383.) Lord Chancellor Cairns, in giving judgment, said : " The object of a statute of uniformity 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, 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 must be strictly observed ; no omission and no addition can be permitted.' " These views of his Lordship are supported, if any support be required, by the Advertisements. Immediately before the issuing of the Advertise- ments, in some churches (1) the surplice and the cope were used ; in others (2) the surplice alone ; in others again, (3) neither surplice nor cope ; therefore there was no uniformity. In order to secure "one uniformity of rites and manners in the ministration of God's holy word, in open prayer, and ministration of Sacraments," (1 Cardwell, Doc. Ann., p. 322.) the Advertisements required, that the surplice, and the surplice alone, should be worn in parish churches, neither more nor less. A maximum and minimum of ritual is inconsistent 432 of maximum and minimum Ritual. Cosin, with the rubric, considered as a positive order; thus, in Hebbert and Purchas, (3 Law Eep., P. C. p. 645.) : " Their Lordships remark further, that the doctrine of a minimum of ritual represented by the Surplice, with a maxi- mum represented by a return to the mediaeval Vestments, is inconsistent with the fact that the Rubric is a positive order, under a penal Statute, accepted by each Clergyman in a remarkably strong expression 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 Parker and the Queen and her Government, indi- cate a strong desire for uniformity, and the Articles of Visita- tion after 1662 were all framed with the like object. If the minister is ordered to wear a surplice at all times of his minis- tration, he cannot wear an alb and tunicle when assisting at the Holy Communion ; if he is to celebrate the Holy Commu- nion in a chasuble, he cannot celebrate, in a surpHce." Cosin's Notes. Sir James Stephen occupied a large portion of your Lordships' time, in discussing the opinions of Cosin, as serving to interpret the Prayer Book of 16(32. I have, at least, as deep a respect for Bishop Cosin, as my learned friend has. It must, however, be admitted, that Cosin was a theological partisan, and as such, cannot be the safest guide to influence your Lordships in the construction of the Act of Uniformity of 1662. Before a single observation is made respecting Cosin's notes, upon which my friend so greatly relied, atten- tion should be directed to the first four charges brought by the House of Commons before the House of Lords, against Cosin in 1640. The Lord Chancelloe. — That was when he was Archdeacon ? Dr. Stephens. — Yes, my Lord. He was not made Bishop until after the Eestoration in 1660. These charges throw a gloss upon all that Cosin has said or charges against him in 1640 ; his Notes 433 written, or -what lie is supposed to have said or written. It appears from the Articles against Dr. Cosin, (4 Eushworth, Historical Collections, p, 208.) : " 1. That he was the first man that caused the Communion Table, in the Church of Durham to be removed, and set altar- wise ; in the erecting and beautifying whereof, he, being then treasurer, expended £200. " 2. That he used to officiate at the west side thereof, turn- ing his back to the people. " 3. That he used extraordinary bowing to it. " 4. That he compelled others to do it, using violence to the persons of them that refused so to do ; for instance, once some omitting it, he comes out of his seat, down to the seat where they sat, being gentlewomen, called them (a name which I could not think of pronouncing before your Lordships), and jades, and pagans and the like unseemly words, and rent some of their clothes." Sir Eobekt Phillimoee. — Those are charges ? Dk. Stephens. — Those are charges by the House of Commons, which were presented to the House of Lords ; and as your Lordship is well aware, when Laud lost his head, and Wren was confined in the Tower, Cosin went abroad. Sir James Stephen stated, that Cosin published at different times, various notes upon the Book of Com- mon Prayer. Now, the notes to which my friend referred, were not published by Cosia, nor in his lifetime, nor until 1709, which was thirty-eight years after his death. The Lord Chancellor. — There were three sets of notes? Dr. Stephens. — ^Yes, my Lord. The Lord Chancellor. — ^You say that none of them were published till after his death ? Dr. Stephens. — ^None of them, my Lord ; nor until 1709, which was thirty-eight years after his death. These notes were written by Cosin in his early life, and were nothing more, than rough notes written in different Prayer Books; and the amount of theological FF 434 on the Book of Common Prayer as to capital, that has been extracted under such circum- stances from these notes, is extraordinary. Sir James Stephen read several of Cosin's notes, to show that Cosin considered, that by force of the rubric all the vestments of the Book of 1549 were legal ; but he did not read one of those notes, which occurs in Cosin's Works. (Vol. 5, p. 43.) The Series in which this note is inserted, was written in a Prayer Book of the date of 1619. Cosin in this note, having first argued, that the vestments were still legal by the rubric, and that the 58th Canon which had appointed otherwise, could not set aside the rubric, some years after added this note — ^'■But the Act of Parliament, I see, refers to the Canon, and until such time as other order shall he taken.^^ There is a long note by the Oxford Editor upon those words, in which he states " Bishop Cosin alludes to the Act of Uniformity of Elizabeth." The Lord Chancellor. — "The Act of Parliament,! see, refers to the Canons " — that is Elizabeth's Act. Dr. Stephens. — I will read the editor's note upon it. He says ; The words of Cosin's note [which I have read] were added at a later time. Lord Sblborne. — Cosin's words are : "But the Act of Parliament, I see, refers to the Canon, ' till such time as other order shall be taken.' " Dr. Stephens. — ^Yes, my Lord. The editor con- tinues : " Bishop Cosin alludes to the Act of Uniformity of Elizabeth, which was referred to in the rubric until the last review. The words of that rubric were, 'And here it is to be noted, that the minister at the time of the Communion, and all other times in Ms ministration, shall use such ornaments in the Church as were in use by authority of Parliament, in the second year of the reign of King Edward the VI., according to the Act of Parliament set in the beginning of this hook.' The words in italics are not now a part of the rubric." The Lord Chancellor. — ^Whose expression is that you are reading ? Dr. Stephens. — It is a note by the editor ; and the lawfulness of the Vestments. ''^ Retained and 435 I have given your Lordship the substance of it. Before Cosin wrote this note, which was added in a parenthesis, he had thought the vestments were legal, but by such note he substantially declared, that they were illegal. That note was not however read by my friends to your Lordships. What Cosin meant was, that the Act of Elizabeth gave power for other order, and that this order was taken by the Canon. Sir Eobbrt Phillimoeb. — ^By the Canon of 1604. Dr. Stephens. — ^Yes, my Lord ; that was Cosin's opinion. Eirst he writes, that he thinks the vestments were legal; then having grown wiser upon the subject, he wrote the note under consideration. This fact of the altered opinion of Cosin, takes away all the force, that has been ascribed by Sir James Stephen to these notes of Cosin, which were not pub- lished until thirty-eight years after his death. " Shall he retained and le in use.''^ I will now proceed to discuss the force of the most important words in this controversy, viz. — " shall be retained and be in use," which occur in reference to the ornaments of the minister, in the Ornament Kubric of 1662. Maxwell on Statutes, (p. 66.) states : " It is an established rule of construction, that general words and phrases, however wide and comprehensive in their Hteral sense, must he construed, as hearing only on the immediate object of the Act, and as not altering the general policy of the law, unless, of course, no reasonable sense can be applied to them consistently with the intention of preserving that policy ilntouched." The word "retained" in this rubric, is used in the sense of keeping, or continuing, those ornaments of the minister, which were actually in use at the time of the enactment of the Act of TJniformity, in 1662 ; and implies, that prohibited and disused vestures should not be revived or brought into use. It would be opposed to every Canon for the construction of lan- Fr2 436 le in use'" — meaning of the language. guage, to apply in 1662 the word "retained" to the chasuble and alb. Such vestments had not only ceased to be in use since 1659, in any parish church in the country ; but had been actually removed and destroyed by public authority. The force of the word "re- tained," is, that it left everything in statu quo. It restored nothing, and it abandoned nothing. This construction of the word "retained," is illus- trated by 3 & 4 Edward VI., c. 10. The first Section directed, that all popish books, primers, &c. should be destroyed. And the 5th Section provided, that : " any person or persons may use, keep, have, and retain any Primers in the English or Latin tongue, set forth by the late King of famous memory, King Henry the VIII., so that the sentences of invocation or prayer to the saints in the same Primers, he blotted or clearly put out of the same." Here the word "retain" applies to Primers already in possession^ which when altered, were to continue in possession. The meaning of the word "retain" is made clear by its use in the preface of the Book of Common Prayer — " Of ceremonies, why some be abolished and some retained^'' — where the word clearly means re- serving ceremonies then in use; as it is expressed ia the words that follow, "It is thought good to reserve them still,''^ In 1689 a Eoyal Commission was issued to prepare alterations in the present Book of Common Prayer. The Eeport has been published and issued by the House of Commons, and is entitled : " Alterations in the Book of Common Prayer prepared by the Royal Commissioners for the revision of the liturgy, in 1689, ordered by the House of Commons to be printed, the 2nd of June, 1854, No. 283." With regard to the Ornament Eubric, the Com- missioners suggested, that the whole paragraph should be omitted, and the following one substituted. (Eeport, p. 9.) : " [The whole paragraph struck out, and the following new one substituted.] Whereas the surplice is appointed to be Interpretation of the Rubric in lAddelly. Westerton. 437 used by all ministers in performing divine offices, it is hereby declared, that it is continued only as being an ancient and decent habit." Here tlie -word " contimied " gives the sense of tlie word "Tetained " in the rubric of 1662. Sir Egbert Collier. — ^Who writes these notes ? Dr. Stepheis^s. — They were written by the Commis- sioners. Sir Egbert Phillimgre. — It was in the Lambeth Library. Dr. Stephens. — It was, my Lord. Lord Justice Amphlett. — ^Nothing followed upon it? Dr. Stephens. — ^Nothing ; and the passage is only referred to for the purpose of language, in order to show, that the word " continued " is synonymous, so far as regards this argument, with the word "retained." A limited construction of general words of reference from one statute to another, may be justified, whenever a more extended one will not stand with reason and right. Thus, in the second Institute, (p. 287.) it is said, that " in the construction of general references in Acts of Parliament, such reference must be made only, as will stand with reason and right." In Liddell and Westerton^ (Moore, p. 159.) your Lord- ships said : "The rubric to the Prayer Book of January 1st, 1604, adopts the language of the rubric of Elizabeth. The rubric to the present Prayer Book adopts the language of the statute of Elizabeth ; but they all obviously mean the same thing, that the same dresses and the same utensils, or articles, which were used under the first Prayer Book of Edward 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." In Elphinstone and Purehas, (3 Law Eep., Adm. & Eccl., p. 94.) the learned Dean of the Arches, relied upon this passage, in order to establish the legality of the chasuble and alb. The learned Judge, in availing 438 But only those Ornaments are legal which are himself of this decision of the Judicial Committee, overlooked one important principle of construction, which is necessary to be applied for its right inter- pretation, viz., — that those ornaments of the church, or minister, are only retained as legal, which are necessary for, or consistent with, the performance of the services, prescribed by the Book of Common Prayer. In the interpretation of a statute, its language is always used secundum suhjectam materiam, and it must therefore be understood in the sense, which best harmonizes with the subject matter. Ornaments prescribed by the first Book of Edward YI. are not now lawful in those cases, in which the service to which they belonged, and for which they were used, has been removed from the Book of Com- mon Prayer ; and we therefore find, that all the ornaments and instruments belonging to services, which were in the Prayer Book of 1649, but omitted from the Prayer Books of 1552 and 1559, were destroyed as monuments of superstition. The chrisom, and the chrismatory, were ornaments of the Church, which were used under the first Book of Edward VI. (Liturgies, Edward YI., p. 112.) In the office of public baptism in the first Prayer Book, the minister is directed to put on the child, a " white vesture commonly called the chrisom, and say, ' Take this white vesture for a token of the innocency,'" &c. In the second Prayer Book of Edward YI., and in the Prayer Books of 1559 and 1662, this ceremony of the investiture of a newly baptized child, is omitted, and the words that accompanied it, are likewise omitted. The chrisom thus became no. longer an ornament of the Church of England, because the service of which it was an adjunct had been repealed by Parliament, and the chrisoms disappeared from our churches. In the first Book of Edward YI. there was enjoined a ceremony, in Public Baptism, of anointing the infant with oil, with the use of certain words ; and in the Yisitation of the Sick, there was a ceremony of anoint- required hy or are consistent with the Services. 439 ing tlie sick person with oil, and using certain words. {Ihid. 139.) For the performance of these ceremonies, certain ornaments called " chrism atories," were re- quired, which were boxes containing the sacred oUs. The Prayer Books of 1552, 1559, and 1662, omitted these ceremonies, and the chrismatories, as adjuncts of those ceremonies, were destroyed, as monuments of superstition. (Peacock, pp. 36, 145, 160, 161.) The like remarks apply to cruets, and to the pix. (Liturgies, Edward VI., pp. 85, 141.) LoED Selborne. — ^What is the use of the pix in that liturgy ? De. Stephens. — ^Your Lordship will find at p. 141, of the Liturgies of Edward VI. an order for the reser- vation of the sacrament for the administration to the sick ; that reservation required, the use of some vessel, such as the pix, for keeping the consecrated elements ; so that the use of the pix, was lawful under the first Book. But in the subsequent Prayer Books, the reservation of the sacrament was abolished — thereforq the pix became an illegal ornament of the Church, and accordingly it was destroyed in the first year of Eliza- beth, as a monument of superstition. This appears from a number of instances in Peacock's ' Church Furniture'; thus, at p. 37, {ibid.) the following entry occurs, " The pix destroyed before the parish." Laud's Prayer Book. The degree of confidence to be attached to the photozincograph copy of Laud's Prayer Book, that has been presented to your Lordships by Sir James Stephen, receives illustration from what occurred in 1661. It appears from Card well's Con- ferences, (pp. 378, 389.) that the House of Commons so much dreaded any recognition of the views of the Laudian party, that when they could not procure the manuscript copy of the second Book of Edward VL, they selected a copy of the Prayer Book of 1604, which had been sanctioned by the Crown, and not a copy of Laud's Prayer Book of 1636, which had never 440 Unlikely that Ho. of Com. in 1662 would restore Alb been sanctioned, by the Legislature or tbe Crown, in order to avoid the danger of Laud's alterations io tbat edition. Cardwell states, (ibid. 378.) tbat : " the Commons were jealous of the preference given to the corrected Book of Common Prayer over the edition of 1604, and suspecting that some differences might have heen introduced between the two periods when the Books were respectively printed, directed a close comparison to be made between them. On the 16th of April they proceeded so far in their fear of change, as to make it a question whether they should not re-consider the corrections made in convocation ; and though they decided to adopt them without further examination, tbe division was only of 96 to 90 in their favor." Is it tben credible, tbat tbe House of Commons, wbo were so anxious to procure tbe manuscript Book of 1552, and wbo would not tben adopt tbe Prayer Book of 1636, because it was Laud's Book, would bave deliberately brougbt back tbe cbasuble and alb? A Tabula rasa. Sir James Stepben urged, and it bas also been urged by a Prelate, wbo is entitled to tbe deepest respect, tbat, on tbe restoration of Cbarles II. — "Tbe constant advance and ultimate success of Puritanism, bad swept away all tbe ornaments of the Church and minister, whether Edwardian or Elizabethan. There was, in fact, a mere blank, a tabula rasa, to be filled up according to the new In- junctions, whatsoever they might be. If, therefore, the rubric enjoined, tbat only those of the Edwardian vestments, which had survived all tbe changes were to be retained, tbe Injunction meant nothing at all, for there was nothing to retain." The Loed Chancelloe. — ^What is that you are reading ? De. Stephens. — The copy of a pastoral letter to the clergy of the diocese of Winchester by the Bishop of Winchester in 1875, entitled, " The Position and Parties of the English Church." The Loed Chancelloe. — ^Wbat is your object in reading that ? and ChasMe. The Statute of Elisabeth not repealed. 441 De. Stephens. — ^Because my friend put forward this proposition, that in 1662 there was a tabula rasa, and if so, there was nothing to retain, and the Bishop of "Winchester has had recourse to a like argument. The Lord Chancellor. — I understand you are combatting the argument, that a tabula rasa was made ? Dr. Stephens. — Certainly, my Lord. The Church is an Institution, and survived throughout the Common- wealth. The Act of Uniformity of Elizabeth had never been repealed, and was in force at the Eestoration of Charles II. ; and in the 24th section of the Act of Uni- formity of 1662, the '' good laws and statutes of this Eealm which have been formerly made " were declared to be " now in force." In fact, immediately after the Eestoration, the clergy resumed the use of the services of the Church, and of all lawful ornaments, and instru- ments, in use before the Commonwealth ; and such orna- ments and instruments had been agaiu in use for nearly two years, before the time of the enactment of the Act of Uniformity of 1662. With the deepest respect, it is submitted, that the fallacies of the arguments of the Bishop of Winchester, and of Sir James Stephen, arise from their having assumed, that the Act of Elizabeth was repealed. The Lord Chancellor. — Are you aware that the Act of Elizabeth is printed at the beginning of the sealed book ? Lord Justice James. — It is part of the Prayer Book. The Lord Chancellor. — The Act of Elizabeth is the first document in the sealed book. Dr. Stephens. — That is so, my Lord. A question arose in Martin and Mackonochie as to the Church being an Institution. An account of it will be found in the Appendix, to the Fourth Eeport of the Eitual Commission, (p. 197.) from which it appears. Sir William Erie stated, that "the Church of England was an Institution ; " therefore it survived throughout the Commonwealth. The Preface to the Book of Common Prayer of 1662, states : 442 "Betained" must be read ly the state of things " By what undue means, and for what mischievous purposes the use of the Liturgy, (though enjoined by the laws of the land, and those laws never yet repealed,) came, through the late unhappy confusions, to be discontinued, is too well known to the world, and we are not willing here to remember." Lord Selboene. — The next sentence is to the same effect. De. Stephens. — I am obliged to your Lordship : " But when upon His Majesties happy restoration, it seemed probable, that, amongst other things, the use of the Liturgy would also return of course, the same never having been legally abolished." " Shall be retained and be in use^^'' continued. I now propose to return to the force of the word " retained," (ante p. 439.) It is to be read with reference to the state of things in 1662, and to what was then in legal use. Of this use, the Canons of 1603 are evidence: they shew, what was taken to be law at that time. In a like manner, when it was disputed in the Queen v. Chadwick, (11 Q. B., pp. 233, 241.) what were the prohibited degrees of marriage, mentioned in 5 & 6 William IV., c. 54, the Court gave great weight to the 99th Canon, as shewing the current opinion and the law deemed to prevail at that day. So, the Canons of 1-603, and the practice under them previously to 1662, are evidence, of what is meant by the word " retained." They are evidence of what was in use, and what was in use could alone be retained. The Lord Chancellor enquired, whether copies of the first Prayer Book of Edward VI. were in 1662 easy of access, for the people to learn its directions ? An answer to this question may be afforded by the fact, that about one hundred years before 1662, Arch- bishop Whitgift, who, as your Lordships are aware, was a voluminous writer on the Prayer Book and Eitual, stated, that he had never seen the books of King Edward VI. That wUI be found in Strype's Life of Whitgift. in 1662 : no use of Chasuble and Alb since 1559. 443 (vol. 3, p. 92.) The statement is in a letter from a Mr. Beale to tlie Archbishop, vindicating himself from something laid to his charge by the Archbishop, in which he states : " Heretofore your Lordship confessed to me, that you had never seene the Bookes of Kinge Edward, whereupon the law- fulnes of the booke now used consisteth." Sir Eobbet Phillimoee. — What is the date ? Dr. Stephens. — There is no date here. [At p. 98 the date is given "7th of May, 1584."] The Lord Chancellor. — Just let me understand ; at what time did Whitgift live ? Dr. Stephens. — He succeeded Grindal as Arch- bishop. The Lord Chancellor. — Is this his own language ? Dr. Stephens. — 'No, my Lord. The Archbishop had had a dispute with a person of the name of Beale. Beale's defence to Whitgift was : "Your Lordship confessed to me, that you had never seen the Books of King Edward, -whereupon the lawfulness of the book now used consisteth." iVbra- User of Chasuble and Alb. Sir James Stephen has refrained from attempting to shew any user of chasuble and alb, from 1559 down to the present time ; whereas the history of the last 300 years, establishes a user in the Church of England for cope, siirplice, and hood, to the exclusion of chasuble and alb. In this case there are six points,, which give especial weight to the argument of user : Mrst, the adverse user has prevailed, not in some one or two narrow districts, but all over England; thus, excluding local reasons, and the result of chance which might- affect usage of a particular place. Secondly, this user is not merely occasional like the aimual holding of a fair under a charter, but con- tinuous, being used on one day, at least, in every week. Thirdly^ this adverse user is not secret, but open and 444 Summary of the previous Argument. known to all. Fourthly, it has not been done merely by connivance, but by direct sanction of the very authorities, namely, the prelates in their Visitations, especially charged to see, that things are done rightly. Fifthly, the user has been continuous, from the time of the enactment of Elizabeth's Act of Uniformity, down to this time — a period of 318 years. Of course, in calculating that period, I discard all illegalities, that hare arisen since 1840. Sixthly, all this has taken place, when all parties, if acting erroneously, were liable to proceedings in the Temporal and Ec- clesiastical Courts, for not wearing the chasuble and alb. Yet no malice, no desire of vindicating the ritual of the Church, induced any person to institute proceedings, for such a supposed breach of the laws ecclesiastical. My Lords, I will conclude these observations by reminding you of what was said in Hehbert and Purchas, (3 Law Eep., P. C, pp. 642, 644, 650.) : "From the passing of the Act of Uiiiformity, there is abundant evidence to shew, that the vestments in question were not used at all Their Lordships think, that the de- facing and destroying, and converting to profane and other uses, of all the vestments now in question, as described in the Lincoln Manuscripts, published by Peacock, shew a determina- tion to remove utterly these ornaments, and not to leave them to be used hereafter, when higher ritual might be possible .... and their Lordships attach great weight to the abundant evidence, that now exists, that from the days of Elizabeth to about 1840, the practice is uniformly in accordance with this view .... a clear and abundant expoaitio contemporanea has ■ been supplied, which compensates for the scantiness of some of other materials for a Judgment. ... It is quitfe true, that neither contrary practice nor disuse can repeal the positive enactments of a statute, but contemporaneous and continued usage is of the greatest efficacy in law, for determining the true construction of obscurely framed documents." Eesult of the foregoing Argument. I therefore beg to submit to your Lordships, as the result of my argument, that the language of the Orna- The Eastward Position — must be considered with 445 ment rubric speaks exclusively from 1662, the date of its enactment. For the legalisation of the ornaments of the minister, at the time of prayers, and sacraments, two conditions are required by that rubric : first^ they must have been in use immediately before the enact- ment of the rubric in 1662, otherwise, they could not be "retained"; secondly, they must likewise have been in use by authority of Parliament in 1549. Three ornaments of the minister fulfil both these conditions; namely, the cope, surplice, and hood, in cathedrals ; the surplice, and hood, in parish churches. The chasuble and alb fail to fulfil the first condition. II. The Eastward Position. The question in reference to the Eastward Position is, — whether it is lawful or unlawful for the priest to stand before the West side of the Communion Table, with his back to the people, during the Prayer of Consecration ? This question cannot be satis- factorily determined, until it has been ascertained, what is the legal position of the Table during the time of the administration of the Holy Com- munion. Provision has been made in the rubrics for the position both of the Table and of the minister. The rubrics, on this point, are consistent one with another ; and not only so, but there is a rational and well considered connection between them, which affects these two essentially co-ordinate subjects. In discussing the legal position of the priest, during the Prayer of Consecration, the whole difficulty has arisen from its being assumed, that the present ordinary position of the Table, placed altarwise against the East wall or end of the Church or chancel, is its legal position, during the administration of the Holy Communion. That assumption is in direct opposition to the Prayer Books of 1552, 1559, 1604, and 1662. 446 reference to the legal place and position of the The legal position of th.e Table at Communion time, involves two points, which, it will be necessary to deal with separately : first, the legal place in which the Table is to stand ; secondly, the legal direction in which the Table is to stand in that place. When these points have been ascertained, it will be com- paratively easy to determine, what is the legal position of the priest at the Commimion Table during the Prayer of Consecration. Upon one point, it is very satisfactory to .find, that Sir James Stephen holds the like views with myself, as to the motives which led to the Lord's Table being placed in its present ordinary position, close against the East wall. My friend said : " Immediately before the Civil Wars, great efforts had been made to secure the placing of the Tables against the wall, no doubt, in order to make them resume the place of a Roman Cathohc Altar." I cordially admit the truth of this account of the efforts of Laud and his party ; and now. Sir James Stephen is taking a further step, and making "great efforts to secure the placing" of the minister against the West front of the Table, with his back to the people ; and "no doubt, in order to make" him "resume the place of a Eoman Catholic '' sacrificing priest. Place of the Table. The place of the Communion Table, at the time of the administration of the Holy Communion, is governed by two rubrics, which are to be found in our present Book of Common Prayer. The rubric immediately before the Ornament rubric, is as follows : " The Morning and Evening Prayer shall be used in the accustomed place of the church, chapel, or chancel ; except it shall be otherwise determined by the Ordinary of the Place." This rubric gives to the Ordinary, a power to appoint, Table : in Communion time it must not stand at 447 where Morning and Evening Prayer shall be said. If the Bishop do not exercise that power, it must be said in the place, where it has been the custom to say it. The second rubric on this point is the fourth paragraph of the first Communion Eubric, and a like rubric, and in a like place, appears in the Prayer Books of 1552, 1559, and 1604. The words are : " The Table at the Communion time having a fair white linen cloth upon it, shall stand in the body of the church, or in the chancel, where Morning and Evening Prayer are appointed to be said. And the priest standing at the north side of the Table shall say the Lord's Prayer, with the Collect following." No further discretion is hereby given to the Bishop. The place of the Table, at Communion time, must be in the body of the church ; or, if in the chancel, then in that part of the chancel, where Morning and Evening Prayer are appointed to be said; — thus limiting the part of the chancel, where the Table is to stand at Communion time. At other times, viz., when there is no celebration of the Holy Communion, there is no prohibition against placing the Communion Table against the East end of the chancel, or elsewhere. The appointed place for saying the Morning and Evening Prayer, is not against the wall at the East end of the chancel. That place, therefore, cannot be the legal place for the Lord's Table to stand in, at Communion time. The Lord Chancellor. — Do you carry your argu- ment so far, as to say that it is illegal, to have the Lord's Table placed along the wall, close up to the wall of the East end ? Dr. Stephens. — Certainly, my Lord ; and I have very little doubt of ultimately establishing that point. No language can be clearer, than that of the rubric which I have just read. Its literal sense is supported by the practice of the Church, from the commencement of the reign of Elizabeth down to the enactment of the Act of Uniformity of 448 the East End of the Church, along the wall. 1662 ; except in those Cases, where Laud, and his party turned the Table, against the will of the laity, into the altarwise position, and placed it close up to the wall of the East end of the chancel. In Westerton and Liddell, (Moore, p. 183.) your Lordships recognized the fourth paragraph of the first Comjnunion rubric, as the existing law, and without any qualification, in the following language : " The Rubric of the present Prayer Book provides only that at the Communion time, the Table, having a fair white linen cloth upon it, shall stand in the body of the church or chancel, where morning and evening prayers are appointed to be said ; and the priest is to commence the service standing at the north side of the Table." Your Lordships then proceed to say (ihid p. 185.) : " The Communion Table was to be provided by the parish, was to be moveable, not by machinery, but by hand, and was actually to be very frequently moved." Your Lordships' construction of that rubric, was very different from the present ordinary position of the Tg,ble, permanently placed, and never moved from the East wall of the church. It would be difficult to draw any distinction in principle between a Eoman Catholic altar that is not moved, and the moveable Communion Table placed altarwise and never moved. The consecutive legislation, which has regulated the place of the Lord's Table, may be thus stated : — The first book of Edward YI. contained no direction respecting the place of the Lord's Table, during the administration of the Holy Communion, — owing to the fact, that the altars in 1549, remained, as they were upon the death of Henry VIIL, structures of stone fixed to the wall. In Westerton and Liddell, (Moore, p. 179.) your Lordships, in a passage which has been read, (ante p. 386.) alluded to the ambiguous doctrine of the Prayer Book of 1549. In Cardwell's Documentary Annals, (vol. 1, p. 100.) will be found an order in Council, which was issued in 1550, to take down all altars, and, The Reformation sought to get rid of R. C. Altar, 449 instead of th.em, to set up a Table in some convenient part of the chancel, within every church and chapel, to serve for the ministration of the Holy Communion. The object of this order, as stated by Sir Herbert Jenner Fust in Faulkner and Litchfield (1 Kobertson, p. 224.) : " was for the purpose of removing the superstitions of the Popish mass ; and it is most important to keep in mind the motive which induced this alteration, tn be made, and also that this was executed, throughout the kingdom, in the year 3550." One of the essential principles of the Eeformation was to destroy, as far as possible, all resemblance to the Eoman Catholic altar. Your Lordships in Wester ton and Liddell (Moore, p. 185.) said: " The 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." In accordance with this ruling principle, the east end of the church or chancel, being the place, where the altar used to stand, would be the one place, where the Communion Table should not stand. This coincides with the language of Sir Herbert Jenner Fust, in Faulkner and Litchfield, (1 Eobertson, p. 241.) where he said : "It was contended, that if the table stood as the altar did, the superstition would be, to a certain extent, retained." The order in Council of 1550, for taking down altars, (1 Cardwell, Doc. Ann., p. 101.) had required the Table "to be set up in some convenient part of the chancel." The fourth paragraph of the Communion Eubric of 1552, ordered the Table to stand, first " in the body of the church," and then, only as an alterna- tive " in the chancel ; " and in the chancel it was restricted to that place, "where Morning and Evening Prayer be appointed to be said." Which place had already been fixed by the Eubric before the order of Morning Prayer. The Lord Chancellor. — What do you understand 450 and of its old place in the Great Chancels by the words " chancel where Morning and Evening Prayer are appointed to be said ?" De. Stephens. — In the Liturgies of Edward VI., (p. 217.) "The Morning and Evening Prayer shall be used in such place of the church, chapel, or chancel, and the minister shall so turn him, as the people may best hear." The Lord Chancellor. — Does that rubric mean anything more than that it is to be the sort of chancel we are now accustomed to, not a side or private chancel, but the chancel of the church ? What do those words mean as applied to a chancel ? Dr. Stephens. — None of the documents or formu- laries of the Church of England, recognize more than one chancel in one church. They speak uniformly of " the chancel." This is the language of the Injunc- tions of 1559 ; the Canons of 1603 ; and the first rubric before the Morning Prayer. And the like expression, is uniformly used in all the Yisitation Articles. The great chancels, were for the public use of the clergy, and the people, especially for the celebration of the Eucharist and other public offices of religion. The lesser chancels or aisles were erected for the sole use of private persons. [Churton v. Frewen, 1 Law Eep. Chancery, p. 634 ; Chapman v. Jones, 4 Law Eep. Exchequer, p. 278 ; 2 Phillimore, Ecclesiastical Law, tit. Chancel; 1 Stephens, Laws of the Clergy, tit. Chancel.)* The Lord Chancellor. — ^Do not let me interrupt your argument, but let me suggest this for your con- sideration : of course, there can be no question now before us, whether the Communion Table fixed at the Eastern wall or placed there, is legal or illegal, — that is not the question at present ; but does your argument require anything more than this, that the rubric to which you have referred us, contemplates the possi- * Part of the foregoing answer was given at a subsequent stage of the argument, but is introduced here to keep the subject matter together. at Communion time: its place and position must be 451 bility, at all events, of the Communion Table being removed, for a time ? Dr. Stephens. — Certainly, my Lord. The Lord Chancellor. — Tour argument requires you to contend, that it ought always to be removed, and never to be allowed to stand along the wall. Dr. Stephens. — ^Tes, my Lord, at Communion time: and until your Lordships have determined the legal place of the Table, and the direction of the Table in that place, it is impossible to determiae, which is the North side of the Table for the clergyman to carry out the directions of the rubric. It may be remarked, that a clear principle pervades these two correlative rubrics, namely, that the Table and minister should be so placed, as that the people may best hear. The object is obvious : — In 1552, Common Prayer may be said to have then just come into existence. The use of the vernacular language in divine service, was beginning to be appreciated, and it was therefore essential, so far as practicable, that the congregation should be enabled to see and to hear what was done and said. On the accession of Elizabeth, the fourth paragraph of the first Communion rubric of 1552 was re-enacted, by which the Communion Table was placed at Com- munion time "in the body of the church, or in the chancel where Morning Prayer and Evening Prayer be appointed to be said." (Liturgy, Elizabeth, p. 180.) But the Queen desired to enforce a greater reverence to the Lord's Table, when it was not used for the Holy Communion ; and accordingly we find in Card- well, (1 Doc. Ann., p. 234.) and quoted by your Lordships in Hebhert and Purchas, (3 Law Eep., P.C, p. 658.) that by the Injunctions of 1659, it was 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 appomted by the visitors, and so to stand, saving when the Commnnion of the Sacrament is to be distributed ; at which time the same shall gg2 452 determined, in order to construe the Rubric 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 Communion done, from time to time the same holy table to be placed where it stood before." This Injunction, under the authority of the pro- viso of Elizabeth's Act of Uniformity, supplemented the rubric in Elizabeth's Prayer Book, inasmuch, as it regulated the place of the holy table, when not in use for the celebration of the Holy Communion, for which no express regulation had been made by the rubric. This Injunction, however, differed from the rubric, because it omitted to mention, the body of the church, as one of the places, in fact, the first place, in which the holy Table might stand for the cele- bration of the Holy Communion ; but this Injunction agreed with the rubric in this; that, although the Table was, when not used, to stand at the East end', yet, at the time of the Communion, it was to be placed in some other part of the chancel, and not at the East end, and to be taken back to the East end, when Com- munion was over. This agrees with the words of the rubric : "in the chancel where Morning and Evening Prayer are appointed to be said." In accordance with this Injunction and this rubric, was the order given by Bishop Middleton, of St. David's, in 1583. It will be found in the Appendix to the Second Eeport of the Ritual Commission, (p. 426, Article VI.) It is in these words : " When there is a Communion to be ministred, that the Communion table bee placed at the lower ende of the Chauncell, as neer unto the people as maie bee convenient, and when the ministration is doen, remove it to the upper end of the saied Chauncell." That is, when the Communion is to be administered, the Table is to be brought down to the hither end of ithe chancel, and when the Communion has been ad- .- and the Injunction o/1559 — illustrations of this. 453 ministered, it is then to be taken back and placed at tbe East end of the chancel. The limitation in the Injunctions of 1559, that the Table at Communion time should be placed ex- clusively within the chancel, was in direct opposition to the rubric. This limitation was, however, imme- diately afterwards modified by the " Interpretations and further Considerations " (1 Cardwell, Doc. Ann., p. 238.) — which directed : " That the table should be removed out of the choir into the body of the church, before the chancel door ; where either the choir seemeth to be too Httle, or at great feasts of receivings. And at the end of the Communion to be set up again, according to the Injunctions." This extension of the Injunctions of 1559, by which they were made to agree with the rubric, was acted upon, as the law of the Church, during the reign of Elizabeth. The Loed Chancelloe. — That is the Interpreta- tions of the Injunctions ? De. Stephens. — Yes. Tour Lordships' attention was directed to them yesterday. From a Case in 1567, against the Churchwardens of Sedgefield, for removing the Communion Table, which is reported in the 21st volume of the Surtees' Pub- lications (p. 119.) it appears, that in 1562, Pilking- ton. Bishop of Durham, had appointed : " the Lord's Table should stand in the body of the Church j and also that the Common Prayer should be there said and done in all places within the Diocese of Durham." Accordingly, in 1567 the Churchwardens of Sedgefield were prosecuted by the Bishop, for removing their Com- munion Table in their parish church, contrary to the Bishop's orders, and were punished for that offence. The Bishop's order, that the Lord's Table should stand in the body of the church in all places in his diocese, was in accordance with the rnbrie of Elizabeth ; but it was in opposition to her InJMnetions, except as they were modified by the "Interpretations and further 454 The 82nd Canon of 160S further settles Considerations." This modification of the Injunctions of ] 559, was subsequently incorporated into the 82nd Canon of the Canons of 1603. In reference to Pilkington, his authority may perhaps be received with great respect, because he was one of the Divines appointed by Elizabeth, to revise the Book of Common Prayer, and he was also, one of the Eoyal Commissioners appointed in 1559, to bring the Act of Uniformity and the Queen's Injimctions into operation in the University of Cambridge. The following is the language of the 82nd Canon of the Canons of 1603 : " Whereas we have no doubt, but that in all churches within the realm of England, convenient and decent tables are pro- vided and placed for the celebration of the Holy Communion, we appoint, that the same tables shall from time to time be kept and repaired ia sufficient and seemly manner, and covered, in time of diviae service, with a carpet of silk or other decent stuff, thought meet by the Ordinary of the place ; " and so stand, saving when the said Holy Communion is to be administered : at which time the same shall be placed in so good sort within the church or chancel, as thereby the minister may be more conveniently heard of the communicants in his prayer and ministration, and the communicants also more conveniently and in m.ore number, may communieate with the said minister." It win be perceived, that the 82nd Gaaaa^ by ordering the Table to stand at Conmnmion time within the church or chancel, embodies not only the Injunctions of 1559, placing the Table in the chancel, but also the " Interpretations and farther Considera- tions " of Parker and other Divines of the same year, by which the Table might be removed into the body S'«(ie," in the Rubric ^'^ North side" not equivalent The altars had a side to the "West, therefore the Tables were required to have a side to the North ; to stand tablewise, not altarwise. Eespeoting Tables of an oblong form, the distinction has been frequently drawn, and insisted upon, between the longer sides and the shorter ends. It has, indeed, sometimes, been urged, that the expression " side " is applicable to the shorter, as well as to the longer partSj of the Table. Such language may be justified in a geometrical discussion, but in common parlance, it would not be understood. Thus, Webster in his Dictionary, explaining the word " end" in its popular sense, says : " The extreme point of a line, or of anything that has more length than hreadth ; as the end of a house ; the end of a table ; the end of a finger ; the end of a chain or rope. When bodies or figures have equal dimensions, or equal length and breadth, the extremities are called sides." In the Case of the oblong Table now before me, I should submit, adopting popular language, that it has two ends and two sides. Lord Selboene. — ^We have not got the word "end" here at all. Dr. Stephens. — I am endeavouring to shew the distinction between ends and sides. In 1637 Bishop Williams, in his work, entitled "The Holy Table, Name and Thing," (pp. 52, 55, 57.) arguing against the opinion advanced by some of the Laudian party, that end and side, meant the same thing, says : "If you speak therefore, according to the rules of art, a side in geometry, is a line or length; and four sides are but four lengths. But a side in the English tongue is a long length. . . . When you speak to the people of a side, you must take a side as they take it. We must take the words that are most usual, that is, those of daily speech and com- munication. . . . But to dally with you no longer, learned men, in these very particular ceremonies we have in hand, have appropriated the word ' sides,' to the long, and the word ' end,' to the short length of an oblong square : so as to term '■'■ End^'' — shewn ly Wren's Orders,lQ3Q; 485 they cannot now be otherwise (but improperly) used When you officiate at the end of the table, you may officiate at a part (and well enough for aught the writer of the letter saith to the contrary,) but you cannot officiate at that part of the table, to the which by the rubric, confirmed by Act of Parliament, you are literally directed and appointed." Another illustration is afforded by onr ordinary language, respecting a church ; in regard to which, no one would think of describing it, as having four sides, but every one would speak, of the East and West ends, and, North and South sides, assuming it to be placed as churches ordinarily are. The 82nd Canon of the Canons of 1603 directs, that " the Ten Commandments be set up on the East end of every church and chapel." It would have been re- markable language, if the Convocations of Canterbury and York, had directed the Ten Commandments to be set up on the East side of a church. The distinction between sides and ends is recog- nized by the Laudian Convocation of 1640, in their Seventh Canon, in the following language : " The standing of the Communion Table sideway under the East window of every chancel or chapel." (i Cardwell, SynodaHa, p. 404.) This distinction was likewise recognized by Wren in his orders for the Diocese of Norwich ru 1636 — when he directed, the Tables always to stand, under the East wall of the chancel, the ends thereof North and South. (2 Cardwell, Doc. Ann., p. 252.) It was likewise recognized in the charges against Wren. (4 Eush- worth, Hist. CoUect., p. 351 ; 2 Cobbett, Pari. Hist., p. 861.) The second charge was, as follows : " That the Communion Table, which is appointed by the said rubric at the time of the celebration of the Holy Communion, to be placed in the body of the church or chancel, wbere divine prayers are usually read, and where the people might best hear, should be set up close under the wall of the East end of the chancel, altarwise, and not be removed from thence ; 486 Laud's Defence^ 1644 ; and return from D. 6f 0, of whereby the Minister, who is by the law to officiate at the North side of the table, must either stand and officiate at the North • end of the table^ so standing altarwise, or else after the Popish and idolatrous manner, stand and officiate at the "West side of the table, with his back towards the people." Laud, in his Defence, (Canterburies Doome, p. 479.) said, " My Injunctions for railing in of altars and Lord's Tables altarwise, with the sides against the East wall of the Choir, is consonant to the Queen's Injunctions." Here Laud, in 1644, uses the word " sides," in a sense, which excludes ends. That a definite meaning was attached to the word " side," as it stands in the rubric, appears from a return made in 1564 by the Dean and Chapter of Canterbury cathedral to Archbishop Parker, which wni be found in Strype's Parker, (vol. 1, p, 364.) Parker having, in January 1564, required an account of the conformity of their practice to Elizabeth's Act of Uniformity, the following is a copy of the Certificate made to the Archbishop's Commissary : " Christ's Church, Cantuar. The Certificate of the Vice- Dean of the cathedral and metropolitical church of Christ, in Canterbury, and the Prebendaries of the same church here present. After due consultation had upon the copy of a letter directed from the most reverend Father in God, Matthew, Lord Archbishop of Canterbury, unto you his Grace's Com- missary, containing the Queen's Highness pleasure and com- mandment for special regard to be had to the clergy within the province, for their conformity in doctrine, and uniformity in rites and ceremonies of the Church, and for their private manners, usages, and behaviour, according to the tenor of the said letters ; we do make our certificate for the state of our church touching the premises in manner and form follow- ing." . . . . " The Common Prayer daily though the year, though there be no Communion, is sung at the Communion Table, standing North and South, where the High Altar did stand. The Minister, when there is no Communion, useth a surplice only, standing on the East side of the table with his face toward the people." "The Holy Communion is ministered ordinarily the first Sunday of ovory month throughout the year. At what time the table is set East and West." Canterbury lt>64:. — This Rubric not changedin 1662. 487 This return shows, that in the Metropolitan church of Canterbury, the Daily Prayers, Morniug and Even- ing, were sung at the Communion Table ; which then stood '■'■ altarwise^'' but detached from the wall, for the minister stood at the East, that is ^<& further side of the Table, facing the people. But when the Communion was to be administered, it was the practice, that the Table should be set East and TFes^, by which a side would be to the North. Because, otherwise, the rubric could not be obeyed, which required the minister at Communion time to stand at the North Side. It is therefore eyident, that the celebration of the Holy Communion, when the Table stood North and South, was not a compliance with the Communion Eubric. And there could have been no other object in changing the position of the Table at that time, than to enable the minister to stand at the North side, as directed by the rubric. At the revision of the Prayer Book in 1662, no change was made by the Legislature, in the rubric which thus regulated the direction, in which the Lord's Table was to stand. As already pointed out, the Manuscript Prayer Book, which forms a part of the Act of Uniformity of 1662, shows, that the rubric was originally written, with the words " North part," instead of " North side," a change which would have permitted an end to be towards the North, as legally as a side, but that change was not enacted by the Legislature. By the 27th section of the Act of Uniformity of Charles II, order was taken, for the exact translation of the English Prayer Book into the Welsh tongue. In the Welsh translation, made under that Section, the fourth paragraph of the Communion Eubric, as I am informed by Welsh scholars, is to this effect : "And the priest standing at the side North of the table ; " where the word " side," cannot mean " end," which would be expressed by a different word. 488 Meaning of " side " in Welsh P. Bk. — Caiise of the The Loed Chancellor. — ^When was the "Welsh translation made ? De. Stephens. — In the reign of Charles II. Lord Selborne. — The Eishop of St. Asaph, has favoured me with a translation in the words which have been mentioned. Lord Justice James. — ^The Bishop says, the "Welsh word used for side means the long side of an oblong table. Dr. Stephens. — I have here an authorised copy of the "Welsh Prayer Book ; and a copy of the Bishop of St. Asaph's Charge of 1874, which I will hand to your Lordships. That Charge contains, I believe, every information on the subject. It is therefore submitted, that the provisions of the Acts of Uniformity of 1552, 1559, and 1662, require, that at Communion time, the Lord's Table should stand with the ends East and "West, — ^thus, providing a side to the North, at which the priest is to stand and officiate. Causes which have led to the Illegal Placing of the Table. It is now desirable, shortly to examine the causes, which have led to the general adoption, in the present day, of that place and direction for the Communion Table at Communion time, which the Legislature had thus excluded, that is, the Table standing altarwise, close up to the East wall of the chancel. Shortly after 1662, the Table at Communion time began to be changed, from its place in the body of the church or chancel, — to the East wall or end of the chancel, and to be placed altarwise. That change was gradual, taking place in some parts of the country earlier than in others, Eor instance. Canon Barnard in his life of Heylyn, written in 1682, (prefixed to 1 Heylyn, Hist. Eef.-, p. ex., Ed. Eccles. Hist. Society, Cambridge, 1849.) says : " In most country churches to this day, the table is set at the present illegal place and direction of the Table shewn, 489 hither end of the chancel, without any traverse or rails to fence it." So likwise, from the Diary of Bishop Cartwright, of Chester, published by the Camden Society in 1843, (p. 72,) it appears, that when his Lordship yisited Liverpool in September 1687, he "commanded the churchwardens to set the Communion Table altarwise, against the wall." It is therefore evident, that, at Liverpool, down to 1687, the Holy Table had not stood altarwise or against the wall. There are a number of other like illustrations to shew, how gradually the change was made, which will be found, among other authors, in Bloxam's Gothic Archi- tecture, (p. 487.) Canon Robertson in his work, "How shall we conform to the Liturgy ? " gives instances of the continuance of the ancient and legal use, even down to 1843 ; (p. 145, note 49, ed. 1 869.) and Dean Howson in his learned publication, "Before the Table," quotes a number of the like instances, (pp. 42-44). This illegal change was not made without protest, and was at the time described, as an illegal innovation. This appears from the language of Sir Thomas Lit- tleton, afterwards Speaker of the House of Commons. A Laudian party among the clergy were, at that time, systematically introducing ceremonies into the church, which were opposed to the letter and spirit of the Act of Uniformity. In 1667, Sir Thomas Littleton said, in the House of Commons. (4, Cobbett, Pari. Hist., col. 415, 417.): " So long as the Church was true to itself, the Nonconformist never hurt the Church ; but, as soon as innovation and alteration came in by the Churchmen, and they favourites with the Crown, the Church declined. — In ceremonies we have much alteration ; the Communion Table set altar manner, whereas it ought to be in the body of the church, that the guests might come to the table, and the second service might be the better heard. — No Canon for the bowing at the altar, or, if any, quite laid aside. — Now, if new ceremonies have been made, besides putting the tapers (on the Communion Table), if private persons have dared to intrude these things against law, what will be the 490 Ify speech of Sir T. Littleton in the Commons, 1667. end ? And none but such, as will comply with this Innovation shall have any preferment, and as this way has once ruined the church, he hopes that Parliament will not countenance the doing it again." Two days later, in the same debate, (ibid, col. 417.) Sir Thomas Littleton likewise said : " The churchmen are arrived to that pass, as to bring in what ceremonies they please, though they lie under suspicion of Popery, and that others must conform to these Innovations." No person in the House of Commons is reported to have denied these grave charges. The fourth paragraph of the Communion Eubric not having assigned any place for the Holy Table out of Communion time, the Laudian party availed themselves of such omission, to introduce gradually those very changes in the place of the Table, which they had been prevented from effecting in the time of Laud, or at the revision of the Prayer Book in 1662, The Laudian clergy astutely seized the opportunity permanently to retain the Table in its altarwise position at the upper end of the chancel. Such object was essentially facilitated by the fact, that a large portion of those of the laity and clergy, who were, before 1662, most opposed to the altarwise position of the Table at Communion time, became, after the enactment of the Act of Uniformity, merged into Nonconformist communities. The Laudian party were further aided in their purpose, by the growing apathy of the laity upon the subject. This state of apathy arose from two causes, viz., (1) negligence and (2) indifference. (1) This negligence may be thus accounted for. It was obviously convenient to churchwardens and others, that the Table should be fixed in some definite place, instead of being continually removed, from time to time, for the administration of the Holy Communion, and then removed back again. (2) The cause of the indifference upon the subject is likewise obvious. The Protestant faith having been firmly established by the just Doctrinal significance, Tracts for the Times. 491 expulsion of James II. from the throne, and the settle- ment of 1688, the position of the Table after that period, became a matter of indifference to the laity ; — because, the doctrine of the Sacrifice of the Mass had ceased to be a question of controversy, and no longer agitated the public mind. This indifference continued throughout the whole of the last century, and, owing to it, the unmoved altarwise position of the Table at Communion time became, notwithstanding its illegality, almost universal throughout our churches. But since the publication in 1841 of the ' Tracts for the Times,' the question of the altarwise position of the Table, has resumed its doctrinal significance and importance ; — ^because, the doctrine of the Sacrifice of the Mass, and all the adjuncts of the altar service, are once more revived in the midst of the Church of England. Those of the clergy, who now advocate the doctrine of sacrifice, call the Lord's Table "the altar," and consequently, they logically contend for its altar- wise place and direction, and for the sacrificial posture of the priest, with his back to the people, wearing the chasuble. SiE James Stephen. — I must respectfully object to any imputation upon us, of holding any doctrine whatever of any sort or kind, which my learned friend says is wrong. We are here simply upon the con- struction of a particular rubric, and we have had no charge and no notice whatever, that any question is to be raised as to our orthodoxy. We are now being charged with holding opinions which, for aught that appears, we know nothing about. The Lokd Chatstcellor. — I do not understand Dr. Stephens — whatever the value of his observations — to be referriag to your argument, but simply to his view of the present position of public matters. He may be right or wrong. De. Stephens. — My remarks were merely historical, explaining why it was that the Table, which by the Act of Uniformity was placed East and West, i.e table-wise and not altar- wise, came to be illegally placed 492 Position of the Minister at " the North side" held, in altarwise, and against the East wall or end of the chancel. Admitting that from this negligence and indiffer- ence, the practice had become almost universal of the Lord's Table being always placed at the Com- munion time, as well as at other times, at the East wall or end of the chancel with its ends North add South, — the answer is, that no practice or disuse, can repeal or affect the positive enactments of a statute ; because : " If the usage have been to construe the words of a statute, contrary to their obvious meaning by tlie vulgar tongue, and the common acceptation of terms, such usage is not to be regarded ; it being rather, say the books, an oppression of those concerned, to force upon them a conventional meaning than a construction of the statute." (Dwarris on Statutes, p. 573.) Position of the Minister. Eespecting the position of the minister, the fourth paragraph of the Communion rubric of 1662 directs, like the rubric of 1552, — " That the priest standing at the North side of the Table, shall say the Lord's Prayer," etc. (Liturgies, Edward YL, p. 265.) Your Lordships in HebbertsLoA. Purchas (3 Law Eep., p. 662.) held, that this rubric was, " a general direc- tion to stand at the North side;" and, at p. 661, your Lordships said : — " The North side being the proper place for the minister throughout the Communion office, and also whilst he is saying the Prayer of Con- secration." It has been argued, that the rubric at the commencement of the Communion office was not a general direction regulating the place of the minister throughout that office. My friend, Mr. Charles, contended, that this prefatory rubric does not reach so far, as the Prayer of Consecration, and that the minister must leave the place there appointed at dif- ferent times, as, for instance, when he goes to the pulpit to preach. In reply to this argument, the words of Cosiu, upon whose authority my friends so greatly JSehhert v. Purchas^ to apply to the whole Office. 493 rely, were quoted by your Lordships in Hellert and Purehas. (ibid, p. 663.) Lord Selborne. — Can you give us the reference to the passage in the works of Cosin ? Dr. Stephens. — "Bishop Cosin's Correspondence, pt. 1, p. 106, Surtees' Society Publications." In reference to Cosin, your Lordships said : " Upon the whole, their Lordships ttink that the words of Archdeacon, afterwards Bishop, Cosin in A.D. 1627 express the state of the law, — Doth he [the minister] stand at the North side of the Table, and perform all things there, but when he hath special cause to remove from it, as in reading and preaching upon the gospel, or in deUvering the sacrament to the communicants, or other occasions of the like nature." These words had reference to the Prayer Book of James L, but they equally apply in principle to the Book of 1662, because, both Prayer Books equally required him to preach the sermon. The like principle is maintained by Wheatley, to whose work on the Prayer Book of 1662, my friends have referred your Lordships. Wheatley's words are thus quoted by your Lordships, (ibid, p. 661.) : "And consequently he must stand on the North side, there being, in our present rubric, no other place for the performance of any part of this office." Eespecting the rubric which regulates the position of the priest during the Prayer of Consecration, it is to be observed, that in the Prayer Book of 1549, (Liturgies, Edward YL, p. 87.) the words were : " Then the priest, turning him to the altar, shall say or sing this prayer foUowing." The Lord Chancellor. — What part of the Com- munion Service is that you are referring to ? Dr. Stephens. — During the Prayer of Consecration, my Lord. In the Book of 1552, (ibid., p. 279.) the words were, "Then the priest standing up, shall say as foUoweth." This direction regulated only the posOire of the priest ; he was to stand up, where 494 Omission of Manual Acts made it needless to turn he was before kneeling. That place had been regulated by the rubric next preceding, which directed, "Then shall the priest, kneeling down at God's board, say in the name of all them, that shall receive the Communion, this prayer following." {ibid. p. 278.) Consequently, at the Consecration Prayer, the priest was to be standing up at the Lord's Table, and he is not ordered, as in the book of 1549, to "turn him to the altar." The word " at" in the book of 1552, instead of the word "afore," left the priest free to stand, facing the congregation. In the book of 1604 these rubrics of 1552, remained unchanged. The rubric before the Prayer of Consecration in our present Book of Common Prayer is different. In the former books there was no necessity to have any direction to turn to the Lord's Table, because, the manual acts, which had been ordered in the book of 1549 were omitted from them. In 1559 the omission of the manual acts from the Prayer Book, then proposed to be enacted, was, in the House of Lords, pointed out by Dr. Scot, Bishop of Chester, who urged that: " By the order of this book, neither doth the priest take the bread in his hands, bless it, nor break it, neither yet hath any regard or respect to the bread, when he rehearseth the words of Christ, but doth pass them over as they were telling a tale, or rehearsing a story." (Cardwell, Conferences, p. 112.) But, notwithstanding this objection, the book was enacted without the manual acts. Lord Selborne. — What is the date of that ? Dr. Stephens. — It was in a debate in the House of Lords in 1559. The Lord Chancellor. — It is an "oration made by Dr. Scot in the Parliament House against the Bill of the Liturgy." Dr. Stephens. — That is so, my Lord. I wUl now refer your Lordships to another authority. In 1583, Bishop Middleton of St. David's, in his Injunctions, which will be found in the Second Keport to the Table — Canon o/1603 recognised their absence. 495 of the Eitual Commissioners,, (p. 426.) assigns, as a reason for the omission of the manual acts, that : " heretofore in sundry places it hath been a foolishe use amongst a sort of ignorant, blinds priestes and ministers, that at the saiying of these wordes, imediatly goying before the distribution of the sacramentall bread and wine : who in the same night he was betraied tooke bread, and when he had given thanks, &c. Likewise after supper he tooke the cup, &c. Thei would take the bread and wine in their handes, lift it up, and showe it unto the people : whereupon hath ensued horrible idolatries, and religious adoration of the sacramentes themselves, or rather of the bread and wine, as by kneeling, knockyng of the breast, leftying up of handes, closying of their eyes, with the finger and the thombe. For the avoidying whereof it is decreed, that no persone, vicare, or curate, what- soever, hereafter shall handle, lifte up, or shewe unto the people, the bread and wine, but shall let it lie still upon the table, untill the distribution thereof, and then to breake it, receive it himself, and distribute it unto others, accordyng to the orders of the booke, without any addition or detraction." The absence of the manual acts is recognized by the 21st Canon of 1603, which says : " no bread or wine newly brought shall be used ; but first the words of institution shall be rehearsed, when the said bread and wine be present upon the Communion Table." The Loed Chancellor. — ^What is the meaning of that — " Furthermore no bread and wine newly brought " ? De. Stephens. — .It meant when more bread and wine was required to be consecrated. The fact is, that so far as regards the manual acts at that time, the presence of the bread and wine on the Table, was all that was required. The taking the elements into the hand was not then ordered. The omission of the manual acts in the books of 1552 and 1559, was to preyent eleyation. At the revision in 1662, the manual acts of taking the bread into the hand, and breaking it during the prayer of Consecration, and taking the cup into the hand, were first introduced by the marginal directions 496 These Acts restored in 1662. Rubric then altered. to that prayer. The rubric before the Consecration Prayer, was, in 1662, altered to meet this change, and is as follows : "When the Priest, standing before the Table, hath so ordered the Bread and Wine, that he naay 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." These words "standing before the Table" were first introduced into the Prayer Book of 1662, and the objects of such introduction, was to facilitate the break- ing of the Bread, and taking the cup into the hand, during the consecration thereof. Under the books of 1552, 1559, and 1604, which did not sanction those manual acts, it had been deemed sufficient to direct the Minister to stand up, when saying the Consecration prayer. Then he might stand leside the Table turning his face to the people ; but now having to perform the manual acts, he must stand not beside the Table but before the Table, not turned facing the people, but turned facing the Table; standing always at the North side thereof. In fact, there are two ex- pressions in the Prayer Book, regulating the position of the priest: (1) "at the Table" and (2) "before the Table." The difference is this, "at the Table," leayes it free, which way the priest turns his face ; it may then be turned towards the congregation, "Before the Table " leaves the minister no longer free : — ^he must then turn towards, or facing the table. The Consecration Prayer in the Book of 1662 is in strict accordance and harmony with the fourth paragraph of the first Communion rubric. If the Communion Table be placed in the body of the church, or in the chancel, with one of its sides to the North, and the minister stand at the North side facing the Table, then he is standing before the Table, and can then break the Bread before the people, and take the Cup into his hands. Thus interpreted, the rubrics are rendered har- HeVbert v. PwrcJias and Martin v. MackonocMe 497 monious with, each otter, and the position of the minister is fixed, without difficulty, at the North side of the Table throughout the Communion office, and whilst he is engaged in saying the Consecration Prayer. In Hehhert and Purchas, (3 Law Eep. P. C, p. 658.) your Lordships said : " If this custom still prevailed, of bringing the Table from the East and placing it in the chancel, the two rubrics would present no dif&culty. 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." That judgment of your Lordships strictly coincides with my argument. It has been contended, that the words " before the Table " can only mean " in front of the Table on the West side of it." This, as your Lordships have remarked in Hebbert and Purchas, {ibid,, p. 663.) is " mere assumption." It has arisen from the Table, being now commonly, but illegally, placed altarwise against the East wall or end of the chancel at the time of Communion. But if the Table stood, in its legal position in the body of the church, or in that part of the chancel, where Morning and Eveniag Prayer are appointed to be said, with a side to the North, there would be no distinction of front or back; and then the meaning of the words, " standing before the Table " would be plain, vi^. : standing with his face turned towards the Table. This construction, that before the Table means facing the Table at whatever part, is consistent with Martin and Maekonochie. It has been urged, that your Lordships' Judgment in Martin and Maekonochie, (2 Law Eep., P.C., p. 382.) where in considering the rubric before the Prayer of Consecration you state, "the words, standing before the Table, apply to the whole sentence," not only legalised, but prescribed the Eastward position. In that Case, the question before your Lordships, was in 498 on the true construction of the Rubric. regard to the posture, and not to the position, of the priest; the charge in the Articles beuig, that the Eespondent had "knelt or prostrated himself before the consecrated elements during the Prayer of Consecra- tion." («Wt?. p. 378.) Consequently, the words "before the Table" had no bearing upon the point ia issue; and had those words been omitted, the word " standing " would per se have supported your Lordships' Judg- ment. And it may be likewise remarked, that nothing is said in the Judgment, about the priest standing be- fore any special side or end of the Table, The Judg- ment applies equally to the priest standing before the North side of the Table, as to his standing before the West side. This construction also agrees with Hebhert and Purchas, (3 Law Rep., P.C., p. 668.) where your Lordships said : " If this custom still prevailed, of bringing the Table from the East and placing it in the chancel, the two rubrics would preseut no difficulty. The priest standing on the Korth side as directed by the one, would also be standing before the Table .... as required by the other." In the Purchas case, the question before your Lord- ships applied to the position of the priest. The 17th Artide charged the Eespondent with standing before the middle of the "West side of the Table, during the whole of the Consecration Prayer. Consequently the only question then in issue, was, before which side of the Table, the priest should then stand ; and it was decided, that he ought to stand before the North side of the Table, throughout the Prayer of Consecration. This is not at variance with the Judgment in Martin and Mackonochie, which prescribed standing before the Table, without any limitation to any side. The diffi- culties of this question have arisen ; from the assumption, that " before the Table," could only mean before the West side of the Table. The only other place in the Prayer Book in which the words, "before the Table," occur, is in the following Proof from the Non-jurors Office in 1718. 499 rubric, which, occurs in the marriage service. " The Psalm ended, and the man and the woman kneeling before the Lord's Table, the Priest standing at the Table and taming his face towards them, shall say." The man and the woman are to kneel before the Lord's Table, and, no doubt, this places them faciag the West side or part of the Table ; but the reason is, that as they come up from the West or body of the Church, the West side of the Table is that, which is before them, and they kneel before it. In the Communion Ser- vice in like manner, since the Priest has his position appointed at the North, to him " before the Table," is before the North side of the Table ; so, likewise, if there be an assistant Minister on the South, to him " before the Table," would be before the South side of the Table. This rubric, in the marriage service, is not inconsistent with the Table being placed tablewise in the body of the church or in the midst of the chancel. The man and woman would still approach from the West, and kneel before the West part of the Table, and the Priest standing at the Table, not facing the Table, would turn his face towards them. The like explanation applies to the rubric in the Coronation service, where the Sovereign approachiag from the West is to stand "before the altar," but that Service has no statutable authority. This construction of the words, " before the Table," receives illustration from a rubric prefixed to the Com- munion Office, drawn up by the Non- Jurors in 1718, (5, Hall, Fragmenta Liturgica, Non- Jurors, p. 10.) which is as foUows : " Note, that whenever in this office the Priest is directed to turn to the altar or to stand or kneel before it, or with his face towards it, it is always meant that he should stand or kneel on the North side thereof." Hence it appears, that to stand " before the Table," means to stand with the face towards it; and the word " before," has no special or exclusive reference to the West side, since it is here applied to the North. side. kk2 500 Meaning of " before the people,^^ illustrated Accordingly we find that the posture of the Priest, at the time of consecration in the Communion Office of the Non-Jurors, is fixed in the following rubric {ibid. p. 32.) : " He shall turn to tlie people and say, ' Let us pray.' Then the Priest shall turn to the altar and standing humbly before it, he shall say the Collect following : This position was fixed by the introductory rubric " on the North side thereof." Thus, the posture of the minister is, standing with his face to the Holy Table; — and his position is, on the North side thereof; and standing there, he is " before the altar." In like manner, in the rubric of the Prayer Book of 1662, the words ''standing before the Table," fix the posture, not the position, of the priest ; that posture being, standing with his face towards the Lord's Table. Thus, the word "before," does not apply to a.nj front of the Table, for properly placed, the Table has no special front; but it applies to the attitude of the minister in feeing the Table. Before the People. Having thus discussed the meaning of the expres- sions '.' at the Table " and " before the Table " I wiU proceed to direct your Lordships' attention to another expression, which occurs in the rubric before the Consecration Prayer, viz., " before the people." No evidence has been adduced from the time of Eliza- beth's Act of Uniformity, down to 1840, of any known usage of the priests of the Church of England, con- secrating the Elements with their backs to the people. In the Cases of Laud, of Wren, and of Cosin, that position was made the subject of impeachment. Bishop Cosin, had been accused of consecrating Eastward. The Loed Chancelloe. — ^What year was that ? Dr. Stephens.— 1628-29. The Lord Chancellor. — That was before this rubric? from Laudj Wren, Cosin, and the Welsh P. Bk. 501 Dr. Stephens. — ^Yes, my Lord. The reply of Cosin is given in the Appendix to the Acts of the High Commission Court of Durham, (34, Surtees Society, p. 218.): " He denieth that he did ever officiate witli his face purposely towards the East. But he constantly stood at the North side or end of the table to read and perform all parts of the Commu- nion Service there; saving that the bread and wine be unusually placed in the middle of the table, which is about seven foot in length. He might haply do, as others did before him, (though he remembereth not to have so done this twelve years), and step to the former part thereof, to consecrate and bless those elements, which otherwise he could not conveniently reach." In the Welsh Prayer Book, the words rendering the English expression " hefore the people " always involve, as I am informed, the idea of sight ; so that the words would mean, " in the sight of the people." The Lord Chancellor. — Let me ask, whether in Welsh the word "before," which occurs twice in the English version, is rendered by the same or different words. Lord Justice James. — Different words : the first is, " at the table," the other is, " before the people." Dr. Stephens. — ^Tou have, my Lords, among your assessors two eminent Welsh scholars. Lord Selborne. — It may be taken by both Counsel on both sides, that the words are translated by those eminent Welsh scholars, " standing at the table " and " in sight of the people." Sir James Stephen. — I am absolutely ignorant, my Lord, upon the whole subject. I am not in a position to say, if you appeal to me. Lord Selborne. — I say the eminent Welsh scholars who assist their Lordships say, that the translation of the Welsh words is what I have read, "standing at the table," and " in sight of the people." Lord Justice James. — That is the " literal re-trans- lation of the words of the Welsh Prayer Book." Dr. Stephens. — ^Your Lordships having in Hebbert 502 Result of the Argument. Bearing of and Purchas, (3 Law Eep. P. C, pp. 660, 661.) collected authorities on the expression "before the people," I beg to remind your Lordships of that fact, and therefore will not trouble you with any further authorities on that point. Result of the foregoing Argument. Upon the foregoing premises, it is submitted that the Communion rubrics can only be harmonized by this construction, viz., that the legal position of the Table is, — not against the East wall or end of the chancel, but either in the body of the church, or in that part of the chancel, where Morning and EYcning Prayer are appointed to be said; and that the legal direction of the Table, is with a side, or longer part to the North — ^the priest standing before the Table on the North side throughout the Prayer of Consecration. I assume that your Lordships will construe the language of the Kubric as, (adopting the phrase of the 24th Article of Eeligion) " understanded of the people," and not as mathematical language, and will hold, that there is a distinction between the sides and the ends of an oblong Table. I have now placed before your Lordships, what I conceive to be the legal position of the Lord's Table, and likewise of the priest during the Prayer of Con- secration: — But if your Lordships should be of opinion, that I have placed an inexact construction upon the rubrics in reference to such questions, then I rely upon the authority of Hebbert and Purchas, as an answer to this appeal, in respect to the Eastward position of the priest, with his back to the people. Latin and Greek Translations of the Prayer Book, The Lord Chancellor. — ^Before you leave this question, I should like to direct the attention of Counsel on both sides to one matter upon which they may desire to say something before the Case closes, Latin and Greek Translations of the P. Book. 503 that is this : the Act of Uniformity of Charles pro- vides that Common Prayer at the Universities and at certain colleges might be said in Latin. I do not know, whether it is the case that any Latin translation about the same time, or soon afterwards, received any authoritative sanction by the Universities ; but if Counsel can find whether that was the case or not, perhaps they would inform their Lordships before the Case closes. Do you understand what I mean ? Dr. Stephens. — I do, my Lord. The Lokd Chancellor. — In connection with that, there is another subject I should like Counsel to consider, which is this : it appears from a book which one of their Lordships has put into my hand, that shortly after the Act of 1662, in 1665, three years afterwards, there was a translation of the Book of Common Prayer into Greek. It was made by a divine who, I believe, was the Dean of Peterborough, Dr. Dufour, and there is some internal evidence of that in the book, and there is some external testimony to the fact, that he was the translator. He was an eminent Greek scholar. It is dedicated to Sheldon, Archbishop at the time, and, I think, the Chancellor of Oxford. It is printed, however, at the University Press of Cambridge. In the rubric before the Prayer of Consecration the word which appears as " before " in the English version is translated differently on the two different occasions when it is used. On the first occasion "before the table" is 'i/j-itpoaQev rrts rpimii^-ns^ and on the second occasion when it is "before the people" it is ivdimov rov \aov, I do not offer any suggestion as to how far this is to be attended to, but Counsel wUI perhaps consider that also before the Case ends. Dr. Stephens. — Certainly, my Lord.* I beg respect- fully to state, that in reference to the suggestion which your Lordships have made to me, I have refrained from referring to the Greek and Latin translations, * The following answer to the Lord Chancellor's question, was given at the close of Appellants' Case. 504 Wafer-Bread— charges as to — the Rubric. because, while the "Welsh translation is authorized by the Act of TJniformity of 1662, the Greek and Latin translations are not authorized by any Statute. III. Water Beead. I will now proceed to the question of "Wafer Bread. That question is stated in the 4th paragraph of the Eepresentation. (1 P.D., p. 317.) The charge is : " That at all the said services on the said days, the said Reverend Charles Joseph Eidsdale, when officiating in his said church in the Communion Service, and in the administration of the Communion to Communicants, unlawfeUy used in such service and administration, wafer bread or wafers, to wit, bread or flour made in the form of circular wafers, instead of bread, such as is usual to be eaten." The 5th paragraph of the rubric in the Prayer Book at the end of the Communion Service, enacts : " That to take away all occasion of dissension and super- stition, which any person hath or might have concerning the bread and wine, it shall suf&ce that the bread be such as is usual to be eaten ; but the best and purest wheat bread, that conveniently may be gotten." It is admitted, that what the Appellant administered was circular in form, like a wafer; but it is con- tended on behalf of the Appellant, that there is no offence in a circular wafer. But it is submitted on behalf of the Eespondents that under this rubric "bread, such as is usual to be eaten" is a matter both of substance and form. It must be in substance, "such bread as is usual to be eaten," and in such form, as is usual in bread that is commonly eaten ; and bread is not commonly eaten, in the form of a circular wafer. The word " superstition," which ap- pears in this rubric, is likewise to be found in the Second Book of Edward YI., and also in the books of Elizabeth and James. It may therefore be ex- pedient for me to remind your Lordships, that our Puritan objections — Hutton quoted hy Nicholls. 505 Eeformers removed the wafer for fear of superstition. It offended them iq many ways. In Nicholls' Prayer Book, Supplement (p. 28.) there is a note on the word " Superstition." The title is, "Puritan Objections against the Common Prayer answered." " This wafer cake was removed, for fear of idolatry, yet not kneeling forbid, because the reason is not alike. For the wafer bread did in many ways offend. First, for the substance, because it was not usual, as that our Saviour had. Secondly, in the quality, for the thinness it did not so fully represent the Form of ordinary bread. And, thirdly, the Fashion was round." The Loed Chancellor. — Before you put that away, let us know, what he is speaking of there. Dr. Stephens. — He is dealing with wafer cake, and he says the wafer cake was removed . The Lord Chancellor. — ^You see how difficult it is to judge of a passage taken alone. On examining this book, I find this appears to be a chapter of this kind : " Further exceptions taken against the Book of Common Prayer and other ordinances of the Church of England, with reasons exhibited to the Bishop of Exeter by some ministers of his diocese for their refusal to subscribe to the Book of Common Prayer, with brief answers thereto made by Mr. Thomas Hutton, printed in 1606." That is nearly 60 years before the Act of 1662, and this is simply the answer, which Mr. Thomas Hutton made to some clergymen of the diocese. How can that be an authority ? Dr. Stephens. — Merely as shewing the popular opinion at that time respecting, the superstition which attached to the shape of wafer bread. NichoUs' Commentary, with its Supplementary Papers, has been continually quoted. The Lord Chancellor. — I am not questioning the authority of that book now, but what you read just now does not come from Dr. NichoUs, but from Mr. 506 " It shall suffice " — first introduced: in 1552. Thomas Hutton. Who Thomas Hutton was, I really have not the least idea. De. Stephens. — I only quoted the publication as historical evidence upon a matter relating to the kingdom at large. Sir Montague Smith. — "Keasons for the refusal of subscription." De. Stephens. — Yes, my Lord, but I was merely commenting upon the word "superstition." Although I cannot prove who Mr. Hutton was, still he must have been a person of position; — and there has been always a degree of respect attached to the Papers, that are annexed to MchoUs. However, I do not wish to occupy your Lordships' time with further discussion upon this question and will merely respectfully reiter'ate, that superstitions existed between 1559 and 1662, in reference to the thkmess of wafers, and in consequence of their fashion being round : and it was to remove all question of such superstitions, that the Legislature in 1662 prohibited the use of wafers, by requiring that the bread should be such, " as is usual to be eaten : " and that regulation must be observed, as I respect- fully submit to your Lordships, both in substance and form, otherwise its purpose would be defeated. Sir James Col vile. — But were the words "It shall suffice " first introduced in 1662 ? De. Stephens. — They were first introduced in the Prayer Book of 1552. It has been contended by Sir James Stephen, that roundness of form is not incompatible, with the require- ments of the rubric, because the Injunctions of Eliza- beth prescribed roundness, and yet were in accordance with the rubric. It appears from Cardwell, (1, Doc. Ann., p. 234.) that by Elizabeth's Injunctions in 1559, an order was issued respecting sacramental bread in these words: " That the same sacramental hread be made and formed plain, without any figure thereupon, of the same fineness smA fashion round, though somewhat bigger in compass and thickness, as Hehhert v. Purchas on the Elisabethan Injunctions, 507 the usual bread and wafer, heretofore named ' singing cakes,' which served for the use of the private Mass." This Injunction does not require tlie bread to be unleavened, but it does require it to be iu fashion round like a wafer, tbougb somewhat bigger in com- pass and thickness. In Hehhert and Purchas, (3 Law Eep., P.O., p. 654.) your Lordships said : " That this Injunction is at variance with the Elizabethan rubric, continued from the second book of King Edward ; " . . . . "It is in fact a superseding of the rubric, nor can it be regarded as at all reconcileable with it." This opposition between the Stattite and the Injunc- tion, created considerable opposition in the reign of Elizabeth. Her Injunctions differed from her Prayer Book, for that book ordered, that the bread should be such " as is usual to be eaten at the table " ; — but her Injunctions ordered, that the bread should be made of the same fineness and fashion round, as the wafer or " singing cakes of the private mass." This was not the form of bread usual to be eaten at the table. In 1570 dissensions arose in regard to the wafer- like form or " fashion round" as contrary to the rubric. Strype, in his Life of Parker, (Vol. 2, p. 33.) writiQg of 1570, states, that : " as there was this stir at this time about the form of the bread, so there was not long before, as great about the kind of it, whether wafer bread, or loaf, or common bread." Sir Egbert Phillimore. — The Archbishop ap- pointed that it should be wafer bread,, and so enjoined in his Injunctions. Dr. Stephens. — I only cite it, my Lord, for the purpose of shewing, that at that period there were great dissensions on the subject ; and particularly in reference to the form of the wafer. So powerful was the opposition to the wafer bread, that the observance of the Injunction was relaxed in 1580, and permission 508 Circular Wafer not in accordance with Rubric. "was granted to use common bread in accordance with Elizabeth's Prayer Book. (1 Collectanea Curiosa, pp. 16, 19 ; Eobertson, Liturgy, p. 169, 3rd ed.) In the 20th of the Canons of 1603, fine white bread was ordered to be provided by the churchwardens, and no allusion was made to wafer bread. Dr. Card well in his Conferences, (p. 392.) in a note says, that one of the proposals of the Laudian School in 1662 was, that the following words should be introduced into the rubric : " though wafer bread, pure and without any figure upon it, shall not be forbidden." But this was rejected. The Loed Chancelloe. — Do you know by whom the proposal was made ? De. Stephens. — No, I do not, my Lord. SiE James Colyiie. — Was it at the Savoy Confer- ence? De. Stephens. — I am not, at the present moment, exact as to the date. I only cite it from a note in Cardwell. SiE EoBEET Phillimoee. — It was objected to by the Puritans in 1574 ? De. Stephens. — ^Yes, my Lord; but it was not allowed to be inserted. The Loed Chancelloe. — I see at the commence- ment of that note. Dr. Cardwell says that it is "a specimen of the corrections in Mr. Sancroffc's book, which would seem to belong to the Laudian School of Theology." De. Stephens. — The alterations, I believe, repre- sented the Laudian views. With these observations, it is submitted to yoizr Lordships, that a wafer of a circular form, as ad- ministered by the Appellant, is not in accordance with the rubric. The Crucifix — description thereof by Appellant. 509 IV. The Crucifix. I will now proceed, my Lords, to discuss the subject of the Crucifix. The description of the crucifix under consideration is giyen by the Appellant in the 5th paragraph of his Answer, (1 P.D., p. 320.) : " The upper part of this screen consists of an iron unpainted figure of our Saviour, about 18 inches long upon the cross, and 24 brass sconces for candles, screwed into the end of every up- right rod of the screen. The said figure of our Saviour upon the cross, and the said brass sconces, form part of the said screen, and the whole screen was erected at the same time and in one piece." It, therefore appears, that the figure or image of our Saviour, is fixed upon the cross, which cross, is fixed upon the apex of the chancel screen. Sir James Stephen in his argument appears to divide, all ornaments of the church, into two classes, making them either (1) instruments used in the services or else, (2) mere architectural decorations. But this division is not exhaustive, — ^because there is a third class, namely, objects of religious devotion, which are neither instruments used in the services, nor mere architectural decorations. Of this third class the most prominent object in the Churches in England, before the Eeformation, was the Eood, and such is the elevated crucifix, which is now under consideration. Every rood is a crucifix, but every crucifi:x is not a rood. The rood was the large crucifix of a Eoman Catholic Church in England. Such large crucifix was either fixed, upon the central apex of a chancel screen, as in the case of St. Peter's Church, Folkestone, — or it was fixed above the level chancel screen upon a rood loft, with the figures of Mary and John on either side, which are accessories to the rood but not the rood itself. In the reigns of Edward YI., Mary, and Elizabeth, the image of our Saviour, so placed, was called the 510 The Crucifix was part of the Old Rood : it was " rood." Heylyn, in his History of the Eeforma- tion, (vol, 1, p. 84.) writing of the year 1647, says : " The image of Christ, best known in those times by the name of the rood." (See also ibid., vol. 2, p. 112.) Cardinal Pole, (1 Cardwell, Doe. Ann., p. 206.) in the 10th of his Visitation Articles of 1567, enquires, "whether they have a rood in their church of a decent stature with Mary and John, and an image of the patron of the same church?" and Stow, in his Annals, (p. 627.) says : " To see their rood lofts repaired, and the image of the crucifix, with Mary and John, thereon to be fixed." LoKD Justice Jambs. — " The image of the crucifix," he says ? Dr. Stephens. — ^Tes, my Lord ; the crucifix at that period was very often, and more commonly known as the cross. Sir Egbert Phillimore. — Sometimes, not always. Dr. Stephens. — These words show, that the roods in parish churches, were crucifixes fixed upon the rood loft, and therefore fixed images, and that such images were distinct from the image of Mary and John, (See Peacock, pp. 43, 106, 122, 153, 170 et al) In the Exeter Eeredos ease, (Phillpotts and Boyd, 6 Law Eep. P. C, p. 466.) the crucifix was not one of the figures upon the Eeredos, and, therefore, although the judgment of the Judicial Committee sanctioned the retention of that particular Eeredos, it gave no sanc- tion to the erection of a crucifix, even upon a Eeredos ; much less to a rood upon a chancel screen. Lord Penzance, the learned Judge in the Court below, said, (1 P.D., p. 350.) that : " In Phillpotts V. Boyd the Court, in justifying the erection of the Exeter Eeredos, adhered entirely, and very distinctly, to the position taken up in the previous case, and pronounced that erection lawful, though it included many sculptured images, on the express ground, ' that it had been set up for the purpose of decoration onh/,' declaring, that it was ' not in danger of being abused,' and that ' it was not suggested that any super- stitious reverence has been, or is likely to be paid to any of the figures upon it.' " an abused Image — an object of adoration. 611 For many centuries, the rood or crucifix has been, an abused image^ and superstitious reverence is paid to it. It cannot be denied that, before the Eeforma- tion, the figure of the crucifix, was the special object of popular adoration, and constituted, above all other images, that, which the Homilies term "peril of idolatry." Dr. Eock (Church of our Fathers, p. 305.) speaking of the use of images in the Anglo-Saxon Church, says : " But before all and above all other images, in their estimation, was that of the crucifix. The figure of Christ was frequently of the' purest gold." The learned Dean of the Arches gives a brief state- ment " of the part played by the Eood or Crucifix in English Churches in the past." His Lordship says (1 P.D., p. 355.) : " From all this it is plain, that the crucifix formed an ordinary feature in the parish church before the Reformation ; and it cannot he doubted, that it did so, not as a mere archi- tectural ornament, but as an object of reverence and adoration." The rood was not only an object of adoration and reverence at all times, — but there was also a special service for the people to offer public adoration to it. That service was provided in the Sarum Missal, (col. 262, ed. Burntisland, 1861.) viz. on Pabn Sunday " in adoration of the rood." In the procession on Palm Sunday, one of the stations was performed "before the great Cross of the Church," i.e., the rood above the screen at the entry to the choir ; and the direction for its performance, is as follows : "Hie fiat quarta statio,* scilicet ante crucem in Ecclesia ; et in ipsa statione Executor officii incipiat antiphonam Ave, cruce jam discooperta ; et respondeat chorus Rex noster cum genu- flexione osculando terram." * In the Palm Sunday Procession, there were four Stations. The Jirst Station, was at the " Great Cross " in the Church yard: The second, was on the South of the Church : The third was, before the West door : The fourth and last Station was, before the Eood in the Chv/rch. 512 Abused Images destroyedhy Injunctions of 154:7 and This Address was made to tlie fixed Bood or Figure hanging on the Cross — Ave Rex Noster. The anthem being finished, the Clergy and Choir entered the Choir — Intrent Chorum. It may be here remarked, that there was another like Service in honour of the move- able crucifix of the Altar, which was performed on Good Friday. It was among the first of the super- stitions abolished in the Eeign of Edward VI. Lord Penzance stated, (1 P.D., p. 352.) that the Court of Appeal in PM^o^fe and Boyd did not intend: "by the use of the words ' superstitious reverence,' 'adoration' or ' worship,' to convey only the limited idea of a fig;ure or object, itself worshipped like a Pagan idol. On the contrary, I under- stand these expressions, as intended to embrace the far more extended conception of worship, adoration, or reverence paid to the Deity, in presence of or before those objects or %ures." In 1547 Edward YI. issued Injunctions which had the force of a Statute, whether under 31 Wen. VJIL, c. 8, giving the Eing's Proclamations tfse force of Law; or, by virtue of the Act of Supremacy. The third of those Injunctions directs, (1 Ckrdwell, Doc. Ann., p. 7.) that images abused, shaU fer the avoid- ing of the offence of idolatry, be taken down and destroyed. Under this Injunction, the roods were removed in 1547, throughout the country. On the 21st February, 1547-8, an Order in Council, [ibid. p. 47.) was sent to Cranmer, ordering the removal of all the images remaining in any church whether abused or not. The reason assigned for this order was, that contentions had arisen, whether this or that image had been abused or not. It is not requisite to discuss the legal effect of that order in Council, because in the following year, 1549, the 3 & 4 Edward YL, c. 10 was enacted, requiring all images yet stand- ing in any church to be destroyed. That Statute was entitled " An act for abolishing and putting away divers Books and Images," and by its second section, any per- son or body poHtic, or corporate, having in their custody .... any images of stone, timber, . . . graven, or Statute of 1549 — therefore Rood or Crucifix illegal. 513 carved, . . . which, heretofore have been taken out of any church or chapel, or yet stand in any church or chapel, shall deface and destroy them." Adopting the language of Mr. Justice Keating in the Exeter Eeredos case, (Burch, Eep., p. 171.) " this Act is somewhat loosely drawn, but it cannot be doubted, that it con- tains a statutable declaration of the illegality of retain- ing any images in churches." (See also, Liddell V. Westerton, Moore, pp. 170, 171.) Your Lordships in Phillpotts and Boyd (6 Law Eep. P.C., p. 466.) asked, "What, then, is the character of the sculpture on the Eeredos in the case before their Lordships? For what purpose has it been set up? To what end is it used ? and is it in danger of being abused ?" If these questions be applied to the Crucifix — it will be clear, that that image, must fall under your Lordships' condemnation. For, — what is the character of the Crucifix ? It is an image, that has for centuries been abused, as an object of superstitious adoration, and is at all times in danger of being abused, and for which there are Special Services on Palm Sunday and Good Friday. Lord Penzance in the Court below (1 P.D, p. 353.) said: " The best forecast for the future in moat cases, but especially in those wherein the weaknesses and fellings of mankind are concerned, is to be obtained from the experience of the past. And it was to the past, that the Court in Phillpotts v. Boyd emphatically appealed in justification of the Exeter Reredos. In speaking of ' painted representations of portions of sacred history, to be found in many of our churches,' the Court relied upon the circumstance that these paintings 'had been proved by long experience to be capable of remaining there without giving occasion to any idolatrous or superstitious practices.' Would an appeal to the experience of the past, in the case of crucifixes, bring out the same result? — or, rather, it should perhaps be asked, would not the result be the very opposite?" It is, my Lords, therefore submitted, that the Eood or Crucifix in question, is illegal. hh 514 Conclusion of the Argument — the present Charges Conclusion of the Aegtjment. The observations which I have made throughout this argument, will receive forcible corroboration and illus- tration from the fact, that the four charges that are now under the consideration of your Lordships, form part of twelve charges, upon all of which, the Eeverend Appellant has been condemned by the Provincial Court — and in regard to eight of those charges, the Appellant has acquiesced in the justice of that con- demnation. The twelve charges, when regarded in their combination, form one consistent system, in direct opposition to the Acts of Uniformity. Now, what was the appearance of St. Peter's Church, Folkestone, and the solidarity of the ritual therein, at the time, when judgment was pronounced, against the Eeverend Appellant, in the Provincial Court? The Stations of the Cross with their alleged miracles; and the elevated Kood, or image of Christ upon a cross, on the apex of the chancel screen, — gave, to St. Peter's Church, a very remarkable and distinctive Eoman Catholic character — seldom so fuUy developed in the Eoman Catholic chxirches of England and of Ireland. The Eeverend Appellant, at Communion time, used the mixed chalice and the lighted candles ; he stood with his back to the people, in the position of a Eoman Catholic sacrificing priest ; he used wafer bread ; he knelt at a part of tiie Prayer of Consecra- tion ; he caused the Agnus Dei to be sung, which contains the very words by which, the Church of Eome adores the consecrated wafer ; and he also wore a chasuble — the vesture exclusively appropriated to the sacrificer, when ofiering up the Son of God, in the Sacrifice of the Mass — thus symbolizing, and thereby teaching, all that Eoman Catholic doctrine, which the Legislature in 1552, 1559, and 1662 solemnly re- pudiated. It would, my Lords, be an act of injustice, part of a system opposed to the Acts of Uniformity. 515 to the Eeverend Appellant, to assert, tliat the Kitual under consideration is not intended to be the visible expression of Divine truth, — because, without dogma, it would be an unbecoming theatrical display. In conclusion it is respectfully submitted, that the surest way of inculcating the tenets of Eome, and subverting the Acts of Uniformity, would be, by your Lordships legalising in the Church of England, the Eitual of the Roman Catholic altar Service. ME. BENJAMIN SHAW FOE THE RESPONDENT. Wednesday, Januaet 31. Argument of Mr. B. Shaw — points to be noticed. Mr. Benjamin Shaw. — If your Lordships please, perhaps your Lordships- will allow me to say that I do not intend to trouble your Lordships with more than a very few sentences about either the Wafer. Bread or the Crucifix. The points to which I shall ask your Lordships' attention are chiefly the Yestments and the Eastward Position. ll2 516 The Injunctions^ an Order under the I. The Vestments. In the first place, I contend that the Injunctions of Elizabeth do extend to the dress of ministers in church, and as such may be taken to be an order under the Act of Uniformity of Elizabeth. That such was the acceptation at the time, I think, can scarcely be doubted. In the Visitation Articles of Archbishop Parker of 1563 (2nd Eep. Eit. Com., p. 403), Arch- bishop Parker asks : _ " Whether your priests, curates, or ministers do use in the time of the celebracion of diuine seruice to weare a surplesse, prescribed by the Queenes Maiesties Injunctions and the boke of Common Praier." The Lord Chancellor. — Did the Injunctions refer to the dress ? Mr. Shaw. — I think the 30th Injunction had that effect by prescribing the dresses which were in use in the latter year of Edward VI. I admit that the Injunction is obscurely worded, and there may have been a reason for that ; but, I submit, it allows of that construction, and I ask your Lordships to put that meaning on it, considering what was done at the time. The 30th Injunction is : " Her Majesty being desirous to have the prelacy and clergy of this realm to be had as well in outward reverence, as otherwise regarded for the worthiness of their ministries, and thinking it necessary to have them known to the people in all places and assemblies both in the church and without, and thereby to receive the honour and estimation due to the special messengers and ministers of Almighty God ; willeth and commandeth, that all archbishops and bishops, and all other that be called or admitted to preaching or ministry of the sacraments, or that be admitted into vocation ecclesiastical, or into any society of learning in either of the universities, or elsewhere, shall use and wear such seemly habits, garments, and such square caps as were most commonly and orderly received in the latter year of the reign of King Edward the Sixth ; not thereby meaning to attribute any holiness or special worthiness to the said garments." Act of Uniformity/, 1559 ; 517 I think that must apply to the garments of the minister in church, because nobody could attribute holiness or special worthiness to garments out of church. I cannot see any other reason for citing the Injunctions in the way in which they are cited. Thus again, in the Articles of Bishop Parkhurst in 1569 (2nd Bit. Com. Eep., p. 405), there is this enquiry : " WhetKer your Diuine Seruice be sayde or song in due tyme and reuerently, and the Sacraments duely and reuerently mynistred in such decent apparel as is appoynted by the laws, the Queene's maiesties Iniunctions, and other orders set forthe by publike auothoritie in that behalfe." The Lord Chancellor. — That was after the ad- vertisements ? Me. Shaw. — Yes, but it goes back to the Injimo- tions. There is a Case of the Attorney- General v. Drummond (1st Drury and Warren, p. 368), which I only quote for a dictum of Lord St. Leonards' s : " One of the most settled rules of law for the con- struction of ambiguities in ancient instruments is, that you may resort to contemporaneous usage to ascertain the meaning of the deed : Tell me what you have done under such a deed, and I will tell you what that deed means." Now what was done under those Injunctions was, that the Commissions of Visitors were sent out, and the Visitors did deal with this question of vestments in executing their duty under the Injimctions. Thea upon the point whether the Injunctions were a good and valid exercise of the power under the Act of Elizabeth, we know that the Queen claimed to act under that power in issuiag the Injunctions. I need not read to your Lordships again the passage in the Parker Correspondence, in which Parker expressly says that the Queen told him that the Injimctions as to ordaining the wafer bread was set forth under the proviso in the statute. (Parker Corr., p. 376) But then the objection which meets one at once is, thati 518 Objection— no Ecclesiastical Commissioners when the Act requires the Queen to make orders with the consent of the Metropolitan or of the Ecclesiastical Commissioners, and that there were no Ecclesiastical Commissioners then in existence. That is the question to which, with your Lordships' permission, I would now apply myself. That objection depends on the fact that the first warrant or patent for the Court of High Com mission that seems to be now in existence is the one in 1 Cardweli's Doc. Ann., (p. 255), and that is un- questionably dated on the 19th of July, 1559. Now the Injunctions no doubt were drawn up some weeks before that, because they appear to have been appended to the Commission of Visitors for the North, and your Lordships will find at p. 249 of 1 CardweU's Doc. Ann. that that Commission is dated the 24th June, 1559. The Injunctions being appended to that Commission shew that they were in existence in June, and then the objection is that there was no Eccle- siastical Commission in existence until the 19th of July. Now the first answer I have to give to that is, that the Injunctions themselves make mention upon their face of Ecclesiastical Commissioners. If your Lordships look at p. 230 of 1 CardweU's Doc. Ann., which is the concluding part of the Injunctions, you will see : "And because many pamphletts, plays, and ballads be oftentimes printed, wherein regard would be had that nothing therein should be either heretical, seditious, or unseemly for Christian ears, her majesty likewise commandeth that no manner of person shall enterprize to print any such, except the same be to him licensed by such her majesty's com- missioners, or three of them, as be appointed in the city of London to hear and determine divers causes ecclesiastical, tending to the execution of certain statutes made the last parliament for uniformity of order in religion." Therefore whatever explanation is to be given of it, the Injunctions do apparently state the fact that there was then an Ecclesiastical Commission. drawn up ; hut Injunctions mention Commissioners ; 519 SiE E. J. Phillimore. — Existing then ? Mr. Sh^lW. — One does not quite see the use of appending these Injunctions to the Commission of the Visitors if there was no power at that time of fulfilling this direction. I think some light is cast on that point as to whether it is present or future at p. 254 of the same book. That is the Commission to the Yisitors in the North, and there it says that : "lidem yiri a vobis commissariis assignati, plenam potestatem habebunt, etiam post commissariorum decessum, et post finitum etiam visitationis tempus, de omnibus articulis, ordinibus, et institutis ejusdem visitationis inquirendi ; et violatores eorum, cujuscunque conditionis fuerint, conveniendi et examinandi ; et omnes querelas, quatenus uUum impedimentum aut offensio- nem nostrse visitationis continebunt, accipiendi et audiendi; et bujusmodi personas, offensiones, et querelas commissariis nostris Londini residentibus, et ad ecclesiasticarum rerum reformationem delegatis, praesentabunt et exbibebunt illis viis et modis, quibus boc convenifentissime videbunt fieri posse." From this therefore again, and especially from the word " delegatis," we should infer that there were Ecclesiastical Commissioners then — ^that is, on the 24th June, though the first warrant given in Cardwell for the Ecclesiastical Commission is the 1 9th July. To explain that, I would refer to Lord Coke's 4th Institute, p. 326. Lord Coke is there com- menting upon the section of the statute of the 1st Elizabeth, which gaye jurisdiction to the Crown for the Visitation of the Ecclesiastical state and persons, under which section the High Commissions were issued. He says : " Thfe tbird observation is tbat tbis class dividetb itself into two brancbes, the first concerning tbe visitation of the ecclesi- astical estate and persons. Tbis branch was enacted out ox necessity, for that all the Bishops, and most of the Clergy in England, being then Popish, it was necessary to raise a com- mission to deprive them that would not deprive themselves, and in case o£ restitution of religion to have a more summary proceeding than by the ordinary and prolix course of lavr is required." 520 and Lord Coke's remarks as to the first Commission, Then he goes on : — " The first commission upon these statutes, whereby about twenty Bishops were deprived and many others of the Popish clergy, is said to be lost, and enrolled it is not as it ought to have been, and it is affirmed by some that have seen it, — " So that Lord Coke seems to have spoken from the evidence of persons who had seen it : — " That it passed not above twenty sheets of paper copywise ; but now the high commission contains above three hundred sheets of papers. And it is likewise affirmed that never any high commission was inroUed (as they all ought to have been) untn my Lord Chancellor Egerton's time, so as no man, before that time, could know what jurisdiction was till that time." He seems to have been mistaken about that, because the commission of the 19th July is enrolled, but I do not know that that affects what he says as to the other point. Coke expressly states here that the Marian Bishops were deprived by Commissioners acting under an Ecclesiastical Commision now lost. E'ow Bonner must have been deprived before the 22nd June, 1559, because on June 22nd the conge d^ilire issued to elect a Bishop of the See of London, and it is recited in the conge d'elire, "per privationem et depositionem Edwardi Bonner . . . vacat." [B.ymer, vol. 15, 532.) The Bishop of Ely again was deprived before July 18th, for on that day the conge d^elire issued for the See of Ely, "per Legitimam inde remotionem Thomse, ultimi episcopi ibidem, jam sit Pastoris solatio desti- tuta." (Eymer, vol. 15, 537.) Therefore your Lordships see that these Bishops were deprived, one in June and the other certainly before July 18th. Therefore they were both deprived before July 19th, which is the date in Cardwell of the first extant High Commission ; and if Lord Coke is right, that they were deprived by Ecclesiastical Com- missioners, they must have been deprived by a Com- mission not now in existence, and, therefore, there were Ecclesiastical Commissioners in existence in time and the Defrivation of some 621 to assent to the Injunctions. Lord Coke has another very similar statement at p. 321 of the 4th Institute, and there he says this : — " Another objeotioa was made," that is by the Roman Catholics, " against our Archbishops and Bishops, for that the Commission, being never enrolled, whereby the Bishops, made in Queen Mary's time, were deprived before the fourth year of the reign of Queen Elizabeth, or the record of the approbation of them cannot be found, and therefore it was pretended that the Archbishops and Bishops, made by Queen Elizabeth, (living the former) should be no lawful Bishops. But by the statute, 39th Elizabeth, chapter 8, the Archbishops and Bishops are adjudged lawful as by the said act appeareth." That statute is found amongst other places in Gib- son's Codex, (vol. 1, p. 123, 2nd Ed., p. 142, 1st Ed.) The title is :— "Every deprivation of any Bishop or Dean, made in the beginning of the Queen's reign, shall be good, and all Arch- bishops, Bishops, and Deans, made by the Queen, shall be adjudged lawful." And it says : — " "Whereas divers and sundry persons exercising the office and function of Bishops and Deans of divers Sees and Bishop- ricks and Deaneries, within this realm, in the reign of our late Sovereign Lady Queen Mary, were, before the tenth day of November in the fourth year of the most happy and blessed Government of the Queen's most excellent Majesty that now is, lawfully and justly deprived from such Bishopricks and Deaneries as they severally enjoyed and took upon them to hold, and in their steads and places, sundry, excellent, and worthy men duely preferred to the same : and whereas the parties, so deprived, did, notwithstanding, as it is pretended, make secret appeals, and used other secret means, pretending, thereby, to support the continuance of their said offices and functions : II. " Be it therefore declared and enacted by authority of this present Parliament, that all and every deprivation and deprivations, and all and every sentence and sentences of de- privation whatsoever, had, pronounced or given, at any time between the beginning of the Reign of the Queen's most excel- lent Majesty, that now is, and the tenth day of November in 522 Marian Uccksiastics, imply the existence the fourtli year of the same, against any person or persons which was, or took upon him to be Archbishop or Bishop of any See or Bishoprick, or Dean of any Deanery within this Realm, or any the Dominions thereof, in the Reign of the said late Queen Mary, from such See or Bishoprick, shall be adjudged, deemed, and taken good and sufficient in law to all intents and purposes, and so shall remain and continue ; any appeal, exception, or other matter or thing, whatsoever, to the coritrary thereof in any wise notwithstanding." Now at the time of the passing of that aet Coke wa» Attorney General, and it was his duty to advise Par- liament in matters of law. Therefore he must have had his attention very much directed to the subject before he wrote the 4th Institute, and it is impossible to suppose that he was misinformed of what had taken place only 40 years before, in his own lifetime, though he was at that time a boy. The only objection that I can suppose is that it may, perhaps, be urged that the Statute of the 1st Elizabeth, cap. 1, is so framed as to inflict ipso facto deprivation, and that no sentence was needed. That of course is a hypothetical objection^ Lord Coke positively says that there was a sentence, and against it must also be set the circumstance that the words of the 39th Elizabeth, cap. 8, speak of sentences of deprivation and of appeals against those sentences. It is hard to suppose that the Parliament of 1597 did not know what had taken place in 1559. It is possible that, notwithstanding the words of the act which look like an ipso facto deprivation, a sentence of deprivation may have been added on account of the canonical rule which your Lordships are aware of, that when canons speak of ipso facto excommunication, or any like words, a declaratory sentence is still neces- sary ^ It is therefore possible that, even if the act did make deprivation to be incurred ipso facto — Still a sentence was in fact added. That sentence must have been given by some Ecclesiastical Commissioners, and therefore that goes to support Lord Coke's view. Then again there is this difficulty : that if the Act of Par- liament inflicted ipso facto deprivation and nothing 0:f a Commission earlier than July 19 ; yet, 523 else was necessary or took place, what was the use of passing the second Act of Parliament ? The two Acts of Parliament were exactly of the same validity and of the same force. But if, on the other hand, an actual sentence followed in each case of deprivation there would be something for a second Act of Parlia- ment to confirm, and that would be the operation of the 39th Elizabeth. Your Lordships will find that Strype follows Coke, as to the lost commission in his Annals, vol. 1, part 1, pages 205 and 210 (Oxford Edition, 1824). I will not do more than give the reference. There is a foot note which your Lordships will see in Gibson, which shews that Gibson also follows Coke. Bishop Gibson therefore knew nothing to the contrary of what Coke says. The note is this: — " The pretence of a Plenarty in the Sees, at the time the new Bishops were made, was not only founded on fore-men- tioned appeals to Rome ; but also, as my Lord Coke observes, (4 Inst., 322), upon the not inrolling of the Commission, in virtue of which the deprivations were made ; for it was either not infolled, or the record could not be found, and for the supplying of this defect, as well as silencing that pretence from the appeals, this statute was made." Then again we find further, in support of my present contention, that at a subsequent period when Arch- bishop Parker himself, under another commission, had power to tender the oath, the refusal of which was the thing that led to the deprivation, he was directed not merely to record the refusal to take the oath, as there- by leaving the statute to operate ipso facto, but was to proceed to the deprivation of all the recusants' livings according to the tenor of the said statute. There is, in Parker's Correspondence, p. 105, a letter from the Lords of the Council to Archbishop Parker and the rest of the Ecclesiastical Commissioners. They say : " After our very hearty commendations to your Lordship, Whereas Dr. Carter and Dr. Seggiswick having refused before our very good lord the Earl of Westmoreland and other Com- missioners in the north parts to receive the oath and service 524 if not, that Commission was early enough to by law established, were by them bound to appear personally before us, we have thought good upon their appearance here to send them to your Lordship, praying you to proceed further with them according to the qualities of their faults and the laws provided in that behalf." And at p. 104 of tho same book Sir Thomas Parry and Sir William Cecil to Archbishop Parker elect : " The Queen's Majesty's pleasure is that ye proceed with Mr. Boxall, whom we send unto you, according to the form of the Statute and your Commission, offering him the oath, which if he shall refuse to take. Her Highness' pleasure is, ye then proceed to the deprivation of all his livings according to the tenor of the said Statute." Showing, therefore, that there was some sentence, apparently, which followed upon it. But even if the view of Lord Coke be erroneous, even if there was no Ecclesiastical Commission at aU until the 19th July, I should still submit that that Commission would be in time to assent to the Injunc- tions before they were enforced. The Commission for the North, (1 Cardwell's Documentary Annals, p. 249,) is dated June 24 ; that seems to be the earliest Commission that we know of, excepting one for visit- ing the University of Cambridge which is not in point because that was a University Commission. There is a list of several of these Commissions which are given in 1 Strype's Annals, pt. 1, pp. 247, 248 : there is a Commission for Oxford, Lincoln, and so on — that Commission was dated July 22nd. Then there is a Visitation Commission for Llandaff, St. Davids, &c., July 18th, that was the day before the Ecclesiastical Commission in Cardwell, but it would not be acted upon till afterwards. Then the Commission for visiting Sarum, Bristol, &c., dated the 19th July is of even date with the Ecclesiastical Commission. The Commission for the dioceses of Norwich and Ely is dated August 21st, which is long after; and though the Northern Commission is dated June 24th, the Visitors did not begin to act under that Commission assent to the Injunctions lefore their PuMication. 525 until August 22nd, wlien they commenced at St, Mary's, Nottingham. That appears from Strype's Annals, vol. 1, pp. 245-6, he says : — " This Commis- sion I saw in the Queen's paper-house ... It began at St. Mary's, Nottingham, August 22nd." It did not, therefore, begin to act until after the Ecclesiastical Commission of July 19th had been set up. Perhaps I should mention that there is a Commission for London the date of which Strype does not give, and about which he makes, I think, some confusion. At p, 248 of the 1st volume of the Annals he says that these Commissioners sat on June 18th; but then he goes on to say that other sessions were on June 21st and June 25th held at Mr. Sheriff Howe's house. Now that meeting is clearly the same as the one he speaks of at p. 210, where he says that the Bishops of Lincoln and Winchester were brought to Mr. Howe's house and were deprived. What I rely upon that for, is to show that it could not possibly have been a Commission for visiting London, because a Commis- sion for visiting London could not have had any authority to deprive the Bishops of Lincoln and Winchester. Therefore I submit Strype is not trust- worthy as to that. It is a confusion between the London Yisitors and the authorities who deprived the Bishops. It is quite clear that the Commission of Yisitors for London acted first on August the 11th, because Strype says in his ' Life of Grindal ' at p. 36 : — " First, the cathedral church of St. Paul's was to be purged, and the Yisitors sat there August 11th." I am very sorry to have had to take your Lordships through such complicated dates, but my argument from them is this — I submit that the mere framing of the Injunctions and obtaining the Queen's assent to them would not be " taking order " within the mean- ing of the statute. In a document of this nature order is not taken until the document is published to those who are to obey it, and therefore the giving the Commission to the Yisitors with the Injunctions annexed would not be such a publication if they were 526 No visitors acted before the Warrant not to act on it until it had been approved by : the Ecclesiastical Commissioners. And I contend that I have shown that none of these Commissions of Visitation acted until after July 19th, when the warrant for the Ecclesistical Commission is dated, and therefore the Commissioners would have had time to assent to and approve the Injunctions as delivered to the Commissioners before any act was done upon them. Until then their commission might be said to be a sort of escrow. It seems to come to this — that no other conclusion can be drawn from the express word " delegatis," used in the Commission to the Northern Yisitors, but that there were Commissioners delegati when the Commission to the Northern Yisitors was issued. That Commission says so. Either, therefore, there were Commissioners existing when it was signed, or else it speaks from the time when it was put in ure, and refers to the Commission of July 19th, which it was intended to grant before the Yisitors acted ; con- sequently the dates show there was plenty of time for the Ecclesiastical Commissioners to have assented to the Injunctions ; and if the Ecclesiastical Commis- sioners could have assented to the Injunctions, I submit that the presumption upon every principle of law is, that they did assent to them, " Omnia prsesu- muntur rite esse acta." It is true the Injunctions professed to be issued with the assent of the Council, but two of the Council were afterwards on the Ec- clesiastical Commission, and it is by no means clear that the lost Commission of which Lord Coke speaks might not have embraced many or all of the Council, and then the advice of the Council would have been the advice of the Commissioners. There is no par- ticular form of testifying the advice of the Commis- sioners prescribed by the Act ; it is not as if a consent under seal had been necessary in law, and therefore I submit that — ^whether with Lord Coke we considex that a body of Ecclesiastical Commissioners under,' a previous Commission was in existence in May or of July 19, 1559. Other oljections answered. 527 June, or whether we consider that the Commission of July the 19th was the first Commission, in either case Ecclesiastical Commissioners authorized under the Great Seal would have had time to assent to these Injunctions before they were put in ure. There is another objection that may be raised, viz., that no recital of the Act is made in the Injunctions. I should meet that by submitting that the Injunc- tions extended to a great variety of subjects in no way connected with the Act ; and it may have been on this account that it was not thought needful to mention the Act for the sake of a single clause or so. In the case cited on the other side where a reference to the Act was made, the document appears to have dealt mainly with matters coming within the proviso, or at least it was supposed to do so. The Injunctions take a much larger range. That the Crown may have had the consent of the Ecclesiastical Commis- sioners, though it did not recite that it had, I submit will be presumed at the present day if it be shewn to be possible. There are a number of cases upon that; there is one I would mention — Goodtitle v. Milburn, 2 Meeson & Welsby, p. 853 ; there Enclosure Commissioners were empowered to make exchanges provided that all such exchanges were made with the consent of the owner or owners, proprietor or proprietors, such consent to be testified in writing under his or their hands. There was an ex- change of a mortgaged property; it was stated that the exchange was made with the consent of the mortgagor, but it was not said that it was made with the consent of the mortgagee. It was held that the consent of the mortgagee, if necessary, would be presumed. Lord Abtnger says (p. 862) : "It is not necessary to say whether the consent of the mortgagee was necessary, in order to the validity of the exchange, because we think that hesre we have no right to presume that it was not obtained. The commissioners were not bound to set forth in their award all the authorities they had, and the presumption is, that they acted according to their 528 The Advertisements^ a good Order under the jurisdiction, unless the contrary appears ; and the setting forth that they had the authority of the mortgagor, does not preclude the presumption that they had also that of the mortgagee." I submit that the recital of the assent of the Council to the making of the Injunctions does not show at all that the consent of the Ecclesiastical Com- missioners was not given. It is like a case where a man has both a power and an interest, and creates an estate which cannot legally take effect out of the interest, when it will be referred to the power eyen although the power is not recited. It is contended on the other side that the Injunctions were what Sir James Stephen called mere administrative acts. Some of them may possibly be so regarded, and may or may not be valid. As to that I should say, "Utile per inutile non vitiatur." If the Injunctions contained an order made under the Act, it is immaterial as regards the validity of that order what else they may have con- tained. Then as to the want of the Great Seal, the matter stands in this way. The Commissions to the Visitors were under the Great Seal, and the Injunc- tions were appended to those Commissions, therefore the Injunctions were in point of fact authorised by the Great Seal. That concludes what I have to trouble your Lord- ships with on the Injunctions. Then I come to the Advertisements. I submit that the Advertisements were a good Order under the Statute. The argument on the other side, by which it was attempted to shew that they had not the Queen's sanction, I submit only goes to this extent — that they had it not up to a certain time. I quite admit that the Queen did delay to assent to them. But that does not shew that she did not assent afterwards. That is precisely the course which the Queen appears to have taken in respect to the Homilies. At p. 177 of Parker's Correspondence, Parker writes to Sir William Cecil : " For, that I intend by God's grace to visit my diocese shortly after midsummer, thoroughly thereby to know the Statute. Minute in Council Register, 1566, as to 529 state thereof myself personally, and to take order among them ; I would gladly the Queen's Majesty would resolve Herself in our Books of Homilies, which I might deliver to the parishes as I go." The Editor's note is : " The second book of Homilies which is here referred to, was- settled at the Convocation of January, 1562-3, and was printed with the date of 1563. It remained unpublished, awaiting the Queen's approval, for many months." I contend that all that has been shewn on the other side is, that something of the same sort took place with reference to the Advertisements. Now, my Lords, there is a remarkable entry in the Council Books on this subject, which I believe has not been published. Through the favour of Lord Sandon, Mr. Droop — ^who is known to your Lordships as having written with research and ability on these subjects — and myself, were allowed to inspect the Council Books in this office. I should teU your Lordships that the Council B«gister is very defective. At the time of the issue of the Injunctions, and also at the time when we say the Advertisements would be confirmed, i.e., from December 1565, to, I think, October 1566, the minutes are extremely defective. We have no record of the more critical time ; but in October, 1566, there is a remarkable entry. I think the date is the 27th, though it is not quite clear. The entry is this : " October, 1566, a letter to the Archbishop of Canterbury, and the Bishop of London," (that evidently means that a letter was directed to be written) " That where in summer last, Mr. Crowley, the preacher, was committed to the Bishop of Ely, for disobeying such orders as were thought requisite by the Queen's Majesty to be observed by ecclesiastical ministers ; they are required for that the said Bishop is desirous to be discharged." (That is to be relieved of the custody of the person who had been committed to him.) "And for that they are personally impeached," (I believe that word is equivalent to empecher, and means "for that they, the Council, are personally hindered") "by reason ofmattersofParliament, and also in causes M M 530 Crowley' s Case seems to refer to the Advertisements. pertaining to the state of the realm, to hear and order the case of the said Mr. Crowley, a»d to take such order thereon as they shall in reason think most req^uisite ; for that they think his case more fitter to be determmed by them than by their Lordships, &c., according to the minute, &c." ''According to the minute," means apparently that it is a copy of the rough minute, There is no power of tracing this matter previously, because the Eeeords are defective, but that the reference is to the Advertise- ments seems probable. It is a very few months after the time when we say the Advertisements were sanctioned. The probability is, the Advertisements were sanctioned in the Spring or Summer of 1566, perhaps about May. That the Advertisements are alluded to is probable, not only from the time, but from the language. It speaks of " such orders as were thought requisite by the Queen's Majesty to be observed by ecclesiastical ministers." The Advertise- ments themselves say, " These orders and rules ensuing, have been thought meet and convenient to be used and followed." The words can refer, I submit, to but three things, the Prayer Book, or the Injunctions, or the Advertisements. Now the words are not appropriate for either the Prayer Book or the Injunctions. Certainly, the Prayer Book would not be spoken of as " such orders as are thought requisite by the Queen's Majesty to be observed by ministers," and the Injunctions are invariably cited, as " Her Majesty's Injunctions," or "the Queen's Majestie's Injunctions," they are always called Injunctions. Further light is shown on the subject by the history of this man Crowley, who is the person mentioned in the minute. "We find that the previous April, when Parker was enforcing the Advertisements, he had trouble with this very man Crowley. In the Parker Correspondence, p. 275, Parker says : " I am complained to that Crowley and his Curate gave a great occasion of much trouble yesterday in his church, for expelling out of his church divers clerks which were in their surplices, to bury a dead corse, as customably they use, and as Letters about Crowley Sf the intervention of Council 531 they say, my Lord of London did before prescribe them to wear surplices within the churches. Tomorrow we intend to hear the cause, and if we find the deserts of them to be such as they gave such occasion of tumult in a people so gathered together, I trust the Queen's Majesty nor the Council shall think any severity in us, or lack of prudence, in considering thp time." Crowley was Incumbent of St. Giles, Cripplegate. Then in tlie next page 276 is another letter from Parker to Cecil : " If your Honour have leisure to hear of our doing with Crowley this afternoon, and with one Sayer, the alderman's deputy, and the singers. We found that Crowley quarrelled first with the singing men for their ' porter's coats,' and said that he would shut the doors against them, and so far was the deputy charged with such words. In the examination of Crowley fell out many fond paradoxes that tended to ana- baptistical opinions, to have a notion in conscience to preach in his church, (being not deprived,) without extern vocation, and saying, as pastor he would resist the wolf if he can, meaning the surplice man. We asked whether he would resist a minister so sent to them. He said that till he was discharged, his conscience would so move him, whereupon he desired to be discharged. I seeing his desire, I did even presently discharge him of his flock and parish. Then he fled to this, that he would be deprived by order of law, which I told him was to say that he would be deprived and yet not be deprived. He seemed that he would have had the glory to be committed to prison, rather than he would grant to suffer such a wolf to come to his flock, but I dulled his glory ; but yet for some severity and in suspense, we charged him to keep his house, and bound the deputy in £100 to be ready at calling when the Queen's Council should call for either of them to judge of their doings. The deputy seemeth to be an honest man, yet per- adventure too much leaning from the surplice ; he protested that he threatened the singing men to set them fast by the feet, if they would break the peace. By his tale there was a fond uproar among them, but the singing men shrank away, and they then fell to quietness with shrewd stomachs. Per- ad venture your Honour may think we have done too little, but yet the suspense and secret prison is some terror, and I doubt that few will think it too much. And so at length, my Lord of London and I dismissed them all with our Advertisements in their obedience." It was a struggle therefore as regarded the use of M M 2 532 shew that the dispute related to the Advertisements : the surplice, tte very tliiiig at which the Advertise- ments were levelled. Then at p. 284 there is another letter from Parker to Haddon. On 6th June, 1566, he writes to Haddon an account of what had taken place, and he says : " Ye may well marvel at the boldness of these men ecclesi- astical, advancing themselves so far, to insult against the Prince and public authority of Laws, &c., and not to be ashamed to put their fancies in public print," and so on. " I am deceived if a little be not enough to satisfy wise and learned men in these controversies. And thus signify to you that with the assistance of the Queen's Majesty in Council, we have dispersed a few of the heads of them, some to the Bishop of Winchester, some to Ely, and some to Norwich to school them, or else at the least to have them out of London, till we see cause to restore them their liberty." Your Lordships will compare this with the fact that it is the Bishop of Ely who in this Council minute, ■desires to be discharged of the custody of Crowley. There is a good deal more about Crowley and about the whole business ia Strype's Parker, vol. 1, p. 433 &c. The matter there seems treated as a dispute about the Advertisements. And then Strype goes on with the story of Crowley. What I submit then, is that the whole transaction was clearly a dispute about the Ad- vertisements, according to Strype, and that Crowley had got into trouble for defying the Advertisements, and the Archbishop proceeded against him. Then also we find that the Council had sent some men who gave trouble to various Bishops, and among others to the Bishop of Ely. Then we find Crowley stated to be in the custody of the Bishop of Ely, and the Bishop of Ely is desirous to be discharged of him. There is another passage on the subject which I do not think has been noticed, in 3rd Keble's Hooker, p. 587, it is in his answer to Travers, §17. Your Lordships are aware that there was a dispute between Hooker and Travers, and that Travers presented his supplication to the Council, but the Council gave him so little en- couragement that it was not necessary for Hooker to Hooker refers to them as " confirmed hy Her Majesty's 533 put in a reply. It is all mentioned in Walton's ' Life of Hooker.' It was, however, thouglit necessary that Hooker should vindicate himself, and accordingly he addressed — ^not to the Council — ^but to the Archbishop, a formal defence of himself. This was about as formal a document as can well be imagined, except that it did not possess a strictly legal character. Now in the Advertisements, one clause was, that there was to be no public opposition between preachers of different sentiments, and in reference to that, Hooker says in this letter addressed to the Archbishop of Canterbury, and intended as an indirect answer to a formal suppli- cation to the Council by Travers : " For the avoiding of schism and disturbance in the church, which must needs grow if all men might think what they list and speak openly what they think ; therefore by a decree agreed upon by the Bishops, and confirmed by Her Majesty's authority, it was ordered that erroneous doctrine, if it were taught publickly, should not be publickly refuted : but that notice thereof should be given unto such as are by Her Highness appointed to hear and determine such causes." (Keble's Hooker, iii., p. 587, ed. 1845.) The clause of the Advertisements referred to is at p. 324 Cardwell's Doc. Ann., vol. 1 : " If any preacher or parson, vicare or curate, so licensed, shall fortune to preache any matter tendinge to dissension, or to the derogation of the religion and doctryne receyved, that the hearers denounce the same to the ordinaries or the next byshope of the same place ; but no man openly to contrary or to impugne the same speeche so disorderly uttered, whereby may growe offence and disquyet of the people ; but shal be convinced, and reproved by the ordinary after suche agreable order, as shal be seene to him according to the gravity of the offence." It may be mentioned that Keble in his note takes pre- cisely the same view of Hooker's meaning. He quotes a passage from Strype, stating that the book ultimately got her Majesty's authority, in support of Hooker's assertion. Now Hooker was proverbially a cautious man, and not likely to commit himself to a mistake 534 authority.''^ Cosin and Wren said that the Advertise- when writing what would certainly be read by all the Bishops and the Council. Then, as regards Opsin, it has been stated on the other side that he had some doubt about the Ad- Tertisements, and there is rather a remarkable passage in the series of notes which my learned friend on the opposite side has spoken of. It is in 5th Cosin, p. 90 : The Lord Chancellor. — Does he refer to the Advertisements ? Mr. Shaw. — Yes; I refer to his notes on the Common Prayer, (1st Series) : " In cathedral churches the epistoler is seldom a priest, and therefore, as this rubric was ordained generally for all England, most places having but one priest to serve it ; so for cathedral churches it was ordained, by the Advertisement in Queen Elizabeth's time (that authority being reserved, not- withstanding this book, by act of parliament,) that there should be an epistoler and a gospeller besides the priest, for the more solemn performance of the Divine Service." That appears to be evidence that when Cosin wrote that note, he believed the Advertisements to be an exercise of the power in the statute. Lord Selbornb. — Does it not stand thus, that in the first notes he somewhere says that the vestments of Edward VI. are still to be used, and, at some later time, he seems to take notice that he had over- looked the poWer to make further order ? Mr. Shaw. — Here he does treat the Advertisements as legal. Wren held exactly the same opiuion. I do not cite these as the opinions of the revisers, because I disclaim the view that your Lordships have anything to do with the revisers' private opinions, but I cite them as the opinions of leading churchmen of that day. The passage is at p. 75 of Wren's Parentalia. This was the answer which Wren wrote, and intended to deliver in Parliament, but the answer was never called for, and, I am bound to say, never actually delivered. It was written for delivery in answer to the Impeachment. He says : " But where chancels were, it was by law, as he humbly ments were authorised by Statute. " Public authority,''^ 535 conceiveth, appointed, that the Table should stand up at the East end of the chancel. The words of the Queen's Injunc- tions (set forth, 2 Eliz., 1559) being, that the Holy Table in every church shall be set in the place where the altar stood : and that, if for more convenience, at the time of the distri- bution of the Communion, it were set in any other place of the chancel, yet after the Communion done, from time to time it should be placed where it stood before. Now these Injunc- tions are allowed and confirmed by the Queen's Advertise- ments, cap. 1, Art. 3. And those Advertisements are authorised by law, 1 Eliz., cap. 2, sect, penult." The Loed Chancellor. — Do I understand you to refer to those expressions of Cosin and "Wren, not as expressions of opinion upon a matter of law, but as some evidence of reputation as a matter of fact, namely, whether the Queen's assent was given to the Advertisements ? Me, Shaw. — Yes, as good evidence of reputation of the way in which the Advertisements were commonly looked upon — not because Wren and Cosin were revisers or supposed framers of the rubric, but as eminent churchmen speaking upon subjects with which they must have been familiar. I will not trouble your Lordships with any more instances of confirmation of the Advertisements, because many such are cited in the Purchas Case, and I do not think I should be justified in taking up your Lord- ships' time further with them. The words "public authority," as used in relation to the authority of the Advertisements in certain documents, have been relied upon on the other side as showing that they had not royal authority. The use of those words " public authority," however, appears to be extremely various and extremely loose. Thb Loed Chancellor. — For what purpose do you refer to that ? Mr, Shaw. — I wish to show your Lordships the use of the words "public authority." Thus, in 1st Card- weU's Doc. Ann,, p, 413, we have Grindal's "articles to be enquired of in the province of Canterbury, in the year 1576." One of his enquiries is : " Whether 536 meaning of the term illustrated by examples of its use. they teach the grammar set forth by King Henry YIII. of noble memory, and none other; whether they teach anything contrary to the order of religion now established by public authority." Public au- thority there comprehends Acts of Parliament. At p. 319 of the same book there is an admonition to such as intend to marry, by Archbishop Parker, which contains the famous table of prohibited degrees. One of the things there ordered is : " That no parson, vicar, or curate shall innovate or alter anything in the church, or use any old rite or ceremony which is not set forth by public authority." There it seems to mean legal authority. At p. 221 of the same book it seems to have the same meaning. This is Queen Elizabeth's 22nd Injunction : " That they shall instruct and teach in their cures that no man ought obstinately and maliciously to break and violate the laudible ceremonies of the church commanded by public au- thority to be observed." That must mean, I should think, Elizabeth's Act of Uniformity. In the 65th Canon of 1 604 we have a direction that all Ordinaries shall, in their several jurisdictions, carefully see and give order as to those who obstinately refuse to frequent " Divine Service established by public authority within this realm of England." There, of course, it must mean the Act of Uniformity. In Canon 72 the title is : " Ministers not to appoint public or private feasts but by authority." It says : " No minister or ministers shall, without the license or direction of the minister of the diocese first obtained under his hand and seal, appoint and keep any solemn fasts, either publicly or in any private houses other than such as by law are, or by public authority shall be appointed." That means probably a royal proclamation, but, at all events, it means something which is legal. I will quote only one more instance. In the Parker Corres- pondence, p. 451, Archbishop Parker-writes to Bishop Sandys : " After my right hearty commendations to your Lordship. The Advertisements not a mere Episcopal order : 537 For as mucli as the Queen's Majesty being very careful and desirous that one uniform order in the celebration of divine service, and ministration of sacraments, should be used and observed in all places of this Her Highness's realm and dominions, according to the Book of Common Prayer set forth by public authority and Her Majesty's injunctions." "Public authority" is liere placed in juxtaposition to her Majesty's Injunctions, and most certainly does not necessarily mean any lower authority. Then, as regards the construction of the Advertise- ments, I contend that the Advertisements could not he a mere episcopal order as Sir James Stephen seemed to maintain. I submit this is obvious, because they vary from the first Prayer Book of Edward VI. In the Advertisements it is said, (Card. Doc. Ann., vol. 1, p. 326,) — " Item : In ministration of the Holy Communion in the Cathedral and Collegiate Churches, the principal minister shall use a cope with gospeller and epistoUer agreeably." My learned friend. Sir James Stephen, admitted that this meant that the gospeller and epistoUer were to wear copes. But they were to wear albs and tunicles by the rubrics of Edward's First Book, and therefore this is a direct contravention of that Book. No mere episcopal order could effect that. Then again, the Advertise- ments say, "That at all other prayers to be said at the Communion Table," that is, I suppose, when Communion is not administered — " to use no copes but sui-plices." Edward's Book especially ordained copes where the sacrament was not administered. It says : "And though there be none to communicate with the priest, yet these days after the Litany ended, the priest shall put upon him a plain alb or surplice, with a cope, and say all things at the altar (appointed to be said at the celebration of the Lord's Supper,) until after the Offertory." Then again the Advertisements say : " Item : That every minister saying any public prayers, or ministering of the sacraments, or other rites of the church, shall 538 reference to them hy Lords' Sub. Com"^- of Divines, wear a comely surplice with sleeves, to be provided at the charges of the parish." If it were the Holy Communion that he ministered, he was bound by the Prayer Book of Edward to wear an alb with a vestment or cope. Therefore, there is a contradiction between that Prayer Book and the Advertisements, shewing that the latter must proceed from some authority claiming to override the Book of Edward. Something was said on the other side about an apparent slight put upon the authority of the Adver- tisements and Injunctions, by a document which issued from a sub-committee of the House of Lords in 1641, and which is given in Card. Conf. 270. They complain of changes introduced by certain persons, " By pretend- ing for their innovations, the Injunctions and Adver- tisements of Queen Elizabeth, which are not in force, but by way of commentary and imposition." The original Committee appointed by the House of Lords never reported. This was not that Committee; it was only a kind of sub-committee, and the proceedings are headed in Card well as : — ''A copy of the proceed- ings of some worthy and learned divines, touching innovations in the doctrine and discipline of the Church of England." However, if I may be allowed to say so, what they seem to me to have had in their minds at this time, was something quite different; not the question of vestments at all. It was the turning the Holy Table altarwise, and most commonly calling it an altar, and certain other things which were there enumerated as innovations to which they objected. I think your Lordships will see that this must have been what they refer to, because it was just after the Canons of 1640. These Canons raised a great storm, and of course, these persons who were rather on the Puritan side, would greatly object to them. The Canons of 1640, 1 Cardwell's Synodalia, p. 404, say : "And albeit, at the time of reforming this church from that gross superstition of popery, it was carefully provided that all 1641, did not relate to the Vestments. 539 means should be used to root out of the minds of the people, both the inclination thereunto, and memory thereof; especially of the idolatry committed in the mass, for which cause all popish altars were demolished : yet notwithstandine;, it was then ordered by the Injunctions and Advertisements of Queen Elizabeth of blessed memory, that the holy tables should stand in the place where the altars stood, and accordingly have been continued " That seems to be what this sub-committee were thinking of. Their first grievance is the turning of the Holy Table altarwise, and most commonly calling it an altar. Another thing that they object to is reading the Litany in the midst of the body of the church in many parochial churches. That refers to the 18th Injunction of Queen Elizabeth, which, as your Lordships will find, dealt with that subject : " The priest shall kneel in the middle of the church, and sing or say plainly and distinctly the Litany." There- fore, they were not dealing with the question of vest- ments at all ; and if the opinion of this sub- committee were of any authority, which I submit it is not, it would be perfectly open to me to contend that the Injunctions and Advertisements were good orders, so far as regards vestments, by virtue of 1 Eliz., c. 2, § 25. The ornaments of the minister were, by that clause, to be retained until the Queen should make other order, but the 26th section does not give power to take other order ; it is only a power to iake further order, and they might well have thought that a rubric to alter the place of the Commimion Table (which must have been made under this 26th clause), con- flicted with the order of the Prayer Book, regarding the position of the Table, and so was ultra vires. There- fore, upon this theory, it is perfectly consistent that they might have disputed the force of the Injunctions and Advertisements on that particular point, and yet not have meant to throw any doubt on them as to vest- ments. There is one more point to be noticed in connection with the question whether the royal authority was 540 No further formal authorisation ly the Crown needed. given to the Advertisements. According to the practice of that period, when the Sovereign appointed Commissioners to take order about a matter, their orders would seem to have taken effect without any- further formal authorisation by the Crown. I do not mean that the Crown would not in fact assent to the orders, but it would not be in that formal shape which my learned friends have insisted upon as neces- sary in the case of the Advertisements. In 1 Card- well's Documentary Annals, p. 294, your Lordships will find Queen Elizabeth's letter about new lessons in the Calendar at the beginning of the Prayer Book. This was a letter addressed to the Archbishop and the other Ecclesiastical Commissioners : " Most reverend father in God, right trusty and right well beloved * * * we greet you well, letting you to understand that where it is provided by Act of Parliament, holden in the first year of our reign, that whensoever we shall see cause to take further order in any rite or ceremony appointed in the Book of Common Prayer, and our pleasure known therein, either to our Commissioners for causes ecclesiastical, or to the metropohtan, that then eftsoons consideration should be had therein ; we, therefore, understanding that there be in the said book certain chapters for lessons and other things ap- pointed to be read, which might be supphed with other chapters or parcels of scripture, tending in the hearing of the unlearned or lay people more to their edification ; and that furthermore in sundry churches and chapels where divine service, as prayer, preaching, and ministration of the sacraments be used, there is such negligence and lack of convenient reverence used towards the comely keeping and order of the said churches, and specially of the upper part, called the chancels, that it breedeth no small offence and slander, to see and consider, on the one part, the curiosity and costs bestowed by all sorts of men upon their private houses, and on the other part the unclean or negligent order, or spare keeping of the house of prayer, by permitting open decays and ruins of cover- ings, walls, and windows, and by appointing unmeet and unseemly tables with foul cloths for the communion of the sacraments, and generaUy leaving the place of prayers desolate of all cleanliness, and of meet ornaments for such a place, whereby it might be known a place provided for divine service; have thought good to require you, our Commissioners, sa The Queen's Letter as to the Calendar. 541 authorised by our Great Seal for causes ecclesiastical, or four of you, (whereof we will you, Matthew, Archbishop of Canter- bury, Edmund, Bishop of London, William Bill our almoner, and Walter Haddon, one of the masters of our requests, to be always two) to peruse the order of the said lessons throughout the whole year, and to cause some new calendars to be im- printed, whereby such chapters or parcels of less edification may be removed, and other more profitable may supply their rooms ; " There is a large exercise of discretion given to these C/ommissioners by the terms of this warrant : "And further also to consider, as becometh, the foresaid great ■disorders in the decays of churches, and in the unseemly keep- ing and order of the chancels, and such like, and according to your discretions to determine upon some good and speedy means of reformation, and amongst other things, to order that the tables of the commandments may be comely set or hung up in the East end of the chancel, to be not only read for ■edification, but also to give some comely ornament and •demonstration, that the same is a place of religion and prayer^ and diligently to provide that whatsoever ye shall devise, either in this or any other like point, to the reforma- tion of this disorder, that the order and reformation be of one sort and fashion " And so on. Then it goes on : "And for publication of that which you shall order, we will and require you, the Archbishop of Canterbury, to see the same put in execution throughout your province, and that you with the rest of our commissioners before mentioned, prescribe the same to the Archbishop now nominated of York, to be in like manner set forth in that province, and that the alteration of anything hereby ensuing, be quietly done, without shew of any innovation in the church. And these our letters shall be your sufficient warrant in this behalf." Therefore there is a prospective authority which they were to carry out. The Loeb Chief Baron. — ^Was anythiug done upon that ? Mr. Shaw. — ^Yes ; the Calendar was made and the Tables of the Commandments were put up, and other things were done which I will shew your Lordships. 542 No further formal sanction to Commissioners' acts From Parker's Correspondence, p. 134, it would seem that Parker acted upon it in the sense I have sug- gested, because after the Queen's Letter, -which is given in the same words as I read from Cardwell, comes a letter from Parker to Grindal. He recites the substance of the Queen's letter, and then says : '• Fraternitati vestrsB ex parte suae regise majestatis firmiter praecipiendo mandamus, quatenus receptis praesentibus, cum omni qua poteritis celeritate et matura ailigentia, ordinationes, correctiones, seu reformationes Kalendarii, simul cum tabulis praeceptorum Dei, per nos et alios regies commissaries auctori- tate et vigore dictarum literarum suarum regiarum missivarum, juxta formam statuti prasdicti factas, conceptas, et stabilitas, quorum exemplaria in papiro impressa vobis, prEesentibus annexa, transmittimus." There is no symptom in that letter of any subse- quent formal Koyal assent. The Crown no doubt consented to the order, but there is no formal assent mentioned. What Parker relies upon is the original letter, which says, — " These our letters shall be your sufficient warrant." There was another order made, as far as we know, under the same letter from the Queen ; that is to be found in the 2nd volume of Eobertson's Edition of 'Heylyn's History of the Eeformation,' p. 360 : " Orders taken the 10th day of October, in the 3rd year of the reign of our sovereign Lady Elizabeth, Queen of England, France, and Ireland, Defender of the Faith, &c. By virtue of Her Majesty's letters addressed to her Highness' Commis- sioners for Causes Ecclesiastical as followeth : — " Imprimis, for the avoiding of much strife and contention, that hath heretofore risen among the Queen's subjects in divers parts of the realm, for the using or transposing of the rood-lofts, fonts, and steps, within the queres and chancels in every parish-oburch. It it thus decreed and ordained, that the rood-lofts, as yet being at this day aforesaid untransposed, shall be so altered that the upper part of the same with the seller be quite taken down, unto the upper parts of the vautes, and beam running in length over the said vautes, by putting some convenient crest upon the said beam towards the church, with leaving the situation of the seats (as well in the quere as in the church) as heretofore hath been used." under that Letter. Another letter giving the Archbishop 543 This order must be subsequent to Parker's letter to Grindal, because it recites the alteration of the Calendar as having taken place. Then in 1 Cardwell's Documen- tary Annals, p. 357, we find Parker in 1569 treating this as an order which persons were bound to obey. One of his Visitation Articles is — " Whether the rood- loft be pulled down according to the order prescribed^ That must be the order which I have read to your Lordships. At p. 398, ia his Articles to be enquired of within the province of Canterbury in 1576, Arch- bishop Grindal asks : " Whether your rood-lofts be taken down and altered so that the upper parts thereof, with the soller or loft, be quite taken down unto the cross beam, and that the said beam have some convenient crest put upon the same." , This is a reference to ,the very words of that order. Therefore it was understood to be an order, although there is nothing on the face of it to shew that it had the Queen's subsequent sanction. Another instance of the same kind occurs in 1 Cardwell's Documentary Annals, p. 313, in Queen Elizabeth's letter to the Archbishop authorising him to publish prayers and orders for fiasting during the plague. The Queen writes : " And understanding that you have thought and considered upon some good orders to be prescribed therein, for the which ye require the application of our authority for the better observation thereof amongst our people ; we do not only commend and allow your good zeals therein, but do also command all manner our ministers, ecclesiastical or civil, and all other our subjects to execute, follow, and obey such godly and wholesome orders as you, being primate of all England and metropolitan of this province of Canterbury, upon godly advice and consideration, shall uniformly devise, prescribe, and publish." There again the authority is prospective, and, as far as I know, there is no evidence of any subsequent ratification. In fact, the Crown would not have allowed the orders to issue if it had not approved of them, but the only formal authority is given in the 544 prospective authority. If formal ratification was original letters. I further submit that, even supposing that a final and formal ratification were needed to the Advertisements, nevertheless upon proof of authority having been given to draw up the Advertisements, and of their actual enforcement, (of which there is no doubt), such ratification must be presumed, as your Lordships said in the Purchas case, 3 Law Eeports, Privy Council, p. 643. The translation of the Bible is another very strong case ; I will not go into that, because my learned friend Dr. Stephens did so. There is no ratification to be found of the translation of the Bible ; therefore it must either rest on the doctrine of prospective authority, as I venture to contend is the case with respect to the orders I have just read, or else the ratification must be lost, a supposition which would apply equally to the ratification of the Advertise- ments. It was certainly not necessary for the Crown to make any order under the Great Seal approving of the Advertisements. I submit that there is a fallacy in the argument of my learned friends as to that. They have said the Act of Uniformity could not be repealed without the Great Seal. I submit it is not in the least a repeal of the Act of Uuiformity that is in question, it is an acting under an express pro- vision in that Act. It was treated on the other side as if it were something at variance with the Act of Uniformity ; but it is only the making of an order for which the Act especially provided, though it specified no particular form in which the order was to be made. It would be quite enough if the Crown took order in the form in which order was generally taken in matters ecclesiastical, and that was by letter. I need not cite instances of that, because they abound in Cardwell. Of course the Commissioners must be appointed under the Great Seal — of that there is no doubt, — but there is nothing that requires the order to be made under the Great Seal. I should submit that the Ecclesi- astical Commissioners, when these warrants were given to them, were treated as Her Majesty's ministers for ecclesiastical matters, and when they needed, it must be presumed. Order under Great Seal 545 had the authority to take a thing in hand, their order was the Crown's order unless the Crown interfered. At all events the ratification might be by the same means as the original authority to draw up the document; that, unquestionably, was simply by a Eoyal letter, and therefore the other might be the same. I would refer to the case of Buron v. Denman, in 2nd Exchequer Eeports, p. 167 : the Defendant relied on a ratification by the Crown of a certain command ; the Plaintiff said it ought to be under the Great Seal — the answer was that it need not be under the Great Seal because such a command might have been given by the Crown without the Great Seal, and therefore a ratification would be good if it were in the same form. As to there having been a ratification which may have been lost, there really is no improbability in that. Perhaps I may read your Lordships a few lines from the writings of an author who was very careful in literary researches — Mr. Isaac D'Israeli: in his ' Curiosities of Literature '* he says, in regard to Eoyal Proclamations : "Tliese proclamations are frequently alluded to by letter writers of the times among the notes of the day, but usually their royal virtue hardly kept them alive beyond the week. Some on important subjects are indeed noticed in our history ; many indications of the state of affairs, the feelings of our people, and the domestic history of our nation may be drawn from these singular records. I have never found them to exist in any collected form, and they have been probably only accidentally preserved." If a proclamation might perish, much more the informal consent given to the Advertisements would be likely to do so. There is one remark which was made on the other side, viz., that it was anomalous, if the Advertise- ments were law, that the Injunctions should contuiue to be cited after the Advertisements were issued. If the theory which I have put before your Lordships is *Vol.vi., p. 187, 9thed. If N 646 notrequisite. Canons 1604^oo«? Order under Statute. correct, the Advertisements were rather an expansion of the Injunctions to some extent. If I am correct in supposing that the Injunctions did deal with clerical dress, it is quite possible that as being one of the first solemn acts of the Queen's reign, the Queen would rather desire that they should not be forgotten and put in the background. We may in that way accoimt for their being cited along with the Advertisements even after the Advertisements were issued. My next point is this : Even supposing that the In- junctions and Advertisements were not legally binding, the Canons of 1604 were a good order within the meaning of the Act. There was no Metropolitan then. That no doubt is true, but it is equally true that there unquestionably were Ecclesiastical Commissioners, because with respect to James's revision of the Prayer Book, your Lordships will find them expressly men- tioned in the Eoyal Letter to the Archbishop of Canterbury, for the revision of the Book of Common Prayer. " We therefore understanding there were in the said booke certeyne thinges which might require some declaration and enlargement by way of explanation ; and, in that respect, having required you our metropolitane, and you the bishops of London and Chichester, and some others of our commissioners authorized under our great seal of England for causes ecolesi- asticall, .... (Cardwell, Conferences, p. 218.) And so on. I contend that there is nothing anomalous in supposing that the Crown might make an order under 1 Eliz., c. 2, by means of Canons. The first point of course is whether the power under the statute sur- vived to the successors of Elizabeth. That appears to be clear. James claims it himself in the Eoyal Letter just read, as to the revision of the Prayer Book. Charles I. claimed it expressly in 1640. (1 Card. Syn. 387.) I hardly think I need trouble your Lord- ships with more than one legal authority. Lord Hale is very strong indeed that a power of that sort does The Power survived to ElisabeWs successors. 547 survive. It is in Hale's ' Pleas of the Crown,' vol. 1, p. 706. " But as touching Acts of Parliament, regularly the word 'King' extends to his successors, and therefore the statute 11th Henry VII., chapter 18, for service in the King's wars, 7th Henry VII., cap. 1, fer departing of soldiers, though the pre- amble seems personal to that King, yet (it hath been ruled) do include successors. ... So Poyning's law, 10th Henry VII., in Ireland for the manner of passing Acts of Parliament, though that Act speaks only of the King without successors, yet it extends to his successors And although the power of altering the laws of Wales was a great trust reposed in Henry VIII., by the statute 34th Henry VIII., chapter 26th, for "Wales and was thought by some to cease by his death, (12 Co. Rep., p. 48), yet they durst not rest upon that, and it was specially repealed by the statute 21 Jac. cap. 10." This being so, the case of Charles I. in relation to the Canons of 1640, certainly shows that it was not considered anomalous to exercise that power by way of Canons. SiE EoBEET Phillimoee. — Those Canons were never considered in force. Me. Shaw. — They were perhaps considered in force till the civil wars, but not since the statute of Charles II.* I do not desire to go into that. I am simply arguing that the King did attempt to make Canons, and that he did so as an exercise of his powers under 1 Eliz. c. 2, and that in so doing, he was not doing anything which was thought irregular. The Loed Chancelloe. — I think you need not labour that. Me. Shaw. — Then there is the next objection : that the King does not expressly claim to act under the statute in the ratification of the Canons. I do not know that it is necessary to trouble your Lordships with that. It would be only one or two of the Canons to which such a claim could apply. But as regards * 13 Car., 2, c. 12, § 5. N Jf 2 648 Laud justified copes only hy Canons, not by Rubric. dress, those Canons were absolutely at variance with the 1st Book of Edward VI. That is the same question that I brought before your Lordships just now, because in fact the Canons confirm the dresses of the Advertise- ments. Therefore I think I am entitled to put this alternative. The 24th and 58th Canons as regards dress of the Clergy can only be taken in one of two ways : — either they were a taking of order, &c., such as the statute contemplated, or else they must have merely intended to reiterate the rule of the Advertise- ments, in the belief that these Advertisements had Eoyal authority, a point about which it will not be presumed at a distance of 200 years that those who lived at a distance of only 40 years were utterly mis- taken. These Canons were ratified under the Great Seal. Then as to the reiteration of the Eubric by the republication of James I's. Prayer Book. That point was relied on very much by my friends on the other side. I admit this republication, but I say that, concurrently with it, the Canons were being con- tinually appealed to as binding, so that any incon- sistency between them and the Prayer Book was never imagined. In Laud's trial, over and over again he relies on the Canons and the Canons only, in defence of the copes which he was charged with wearing. Thus he says, ('Hargrave's State Trials,' p. 885, Cobbett's State Trials, vol. iv., p. 456, 10th day of Laud's hearing,) "And for copes, they are allowed at times of Communion by the Canons of the Church." The same thing occurs repeatedly in this trial, as for example at pp. 887, 891. He always justifies himself for the use of copes by the authority of the Canons. Now he was on trial for his life ; and surely if he had thought that he could have alleged an Act of Parliament, instead of alleging Canons, which the Parliamentary party especially dis- liked, he surely would have done so ; and if he could have alleged the statute, he might have made a merit of it, saying : Injunctions^ Advertisements &f Canons^ did not only 549 "Instead of wearing more than I am entitled to, I have worn a great deal less; I have worn a cope, when I might have worn a chasuble and an alb ; I might have offended you ten times more, and out of my moderation I did not do it." It never occiirred to him to raise that argument. Although, he was upon trial for his life, he relied on the Canons and the Canons only, raising a strong inference that he did not think he could refer to anything else. I do not know whether your Lordships wish me to deal with the contention that the Injunctions, Ad- vertisements, and Canons were only meant to ordain a minimum — ^that they were not intended to be exclusive. I have already touched that, because I have shown your Lordships that they were positively inconsistent with Edward's First Book, and, therefore, did not ordaia a minimum, but made an entirely new rule. I wish to show you how Bishop Jewel treats that in his 'Defence to the Apology.' The date is 1567, which would be very soon after the Advertise- ments issued. The passage is in the ' Defence of the Apology,' (3 Jewel's Works, Parker Society Series, p. 176). The Loed Chancellor. — ^Was the Defence of the Apology placed publicly in. the churches along with the Apology ? Me. Shaw. — I think so. The Loed Chancelloe. — The question I asked was this : — In the public print which, I believe, was commonly put in the churches, was the Defence of the Apology added ? Me, Shaw. — I am informed that the Defence of the Apology is contained in an edition of Bishop Jewel's "Works, printed in folio, in the year 1609, by John Norton, printer to the Queen's Most Excellent Majesty. And in Archbishop Bancroft's Letter about Pluralities, in 2 Card. Doc. Ann., p. 160, Archbishop Bancroft says : " I have been content that all Bishop Jewel's Works should be printed together, in one 550 ordain a minimum. Proof from Jewel and Bancroft. volume, to the end that every parish in England might have one of them." Well, then, Harding charges Jewel in this way : " Concerning ceremonies, if ye show us not the use of chrism in your churches, if the sign of the cross be not borne before you in processions and otherwheres used, if holy water be abolished, if lights at the Gospel and Communion be not had, if peculiar vestments for deacons, priests, bishops, be taken away, and many such other the like ; judge ye whether ye have duly kept the old ceremonies of the church." Then Jewel's answer is this : " Verily, M. Harding, we hate not any of all these things. For we know they are the creatures of God. But you have so misused them, or rather so defiled and bewrayed them with your superstitions, and so have with the same mocked and deceived God's people, that we can no longer continue them without great conscience." This is not the way of dealing with a minimum — ^nor with things that are disused^ but with things that are not to he used. My learned friend, Dr. Stephens, quoted the Articles of Archbishop Laud ; and, among others, I will merely give your Lordships a reference to Bishop Bancroft's Articles, (2 Eit. Com., p. 438) ; — (he was the Bishop who presided at the making of the Canons), In these, and several others, the words are the same, viz. : " Whether there be any in your parish who are noted, knowne, or suspected to conceale, or keepe hidden in their houses, any masse bookes, portesses, breviaries, or other bookes of poperie and superstition, or any challices, copes, vestments, albs, or other ornaments of superstition." I ought to mention that the word " challice " appears to relate to " chalices " formerly used at the Mass. The word chalice disappeared from the English Prayer Book after the first Prayer Book, and did not reappear till the last Prayer Book of 1662. Now I come to the Eubric of 1662. I would ask Rubric of 1662. Enquiry of Saner oft, 169i6. 561 your Lordships to approach the conBideration of this matter, recollecting the conditions of the question ; and one of the most important of these conditions is, the overwhelming evidence of usage. If the con- struction on the other side is valid, it follows not only that there is some evidence of usage at variance with law, but that the Advertisements and Canons, and the administrative acts of the whole series of Bishops, and the procedure of the Church for two hundred years, is founded upon a breach of the law. For, if order were not taken in the Injunc- tions, Advertisements, and Canons, or if the rubric of 1662 restored the law of 1549, the law must have been systematically disobeyed and set at naught by those whose duty it was to enforce it. I will only quote one instance, which seems to me a remarkable one. It is on p. 654 of the 2nd Eeport of the Eitual Commission. These are the Articles of Bancroft. In 1686 he was visiting the Diocese of Lincoln as Metropolitan. Bancroft was mixed up, ^as your Lordships know, with the whole transactions of 1662 ; and must have known everything that waS done then. He asks : " Doth your parson, vicar, or curate, read Divine Service on all Sundays, and holy days ; and the Litany (at least) on every Wednesday and Friday ; and publictly administer the Holy Sacraments of Baptism, and the Eucharist, and perform all other ministerial offices, and duties, in such manner and form as is directed by the Book of Common Prayer, lately established, and the Act of Uniformity therewith published, and the three offices before mention'd, without addition, diminution, or alteration ? And doth he in those his minis- trations wear the surplice, with a hood or tippet befitting his degree P " Now, my Lords, if he had worn a chasuble, the hood could not have been seen, and the churchwardens could not have reported it. It is quite clear what Saneroffc meant to enforce, and what he considered to be performing the service without diminution. My Lords, I do not know whether there is any 552 How far contemporaneous and long continued notion that chasubles and albs have been worn until quite recently ; if so, it must have been in very rare instances indeed : and, as regards that, I would venture to quote what your Lordships said in Martin V. Mackonochie (2 Law Eep., P.O., p. 391) with regard to the Altar Lights : "Their Lordships have not referred to the usage as to lights during the last three hundred years ; but they are of opinion that the very general disuse of lights after the Reformation, whatever exceptional cases to the contrary might be produced, contrasted with their normal and prescribed use previously, affords a very strong contemporaneous and con- tinuous exposition of the law upon the subject." I would also just cite half-a-dozen words from the Judgment of Lord Campbell in the Case of Gorham V. The Bishop of Exeter — ^not the Case before this Court, but the subsequent Case where a Prohibition was moved in the Queen's Bench (15 Q. B. Eeports, p. 73) : " "Were the language of the statute, 25 Henry YITI., cap. 19, obscure, instead of being clear, we should not be justified in differing from the construction put upon it by contem- poraneous and long continued usage. There would be no safety for property or liberty, if it could be safely contended that all lawyers and statesmen have been mistaken for centuries as to the true meaning of an old Act of Parliament." My Lords, in the face of that usage, I submit that the Court will iucline to such a view of the rubric as — ^not being inconsistent with legal principles of interpretation — is in accordance with the usage. The rule seems to be laid down very concisely and poiatedly by Chief Baron Pollock in the Case of Pochin V. Duncomhe, (1st Hurlstone and Norman, p. 856). There was some discussion then, on this very point, about the force of usage as affecting the con- struction of an Act of Parliament, and the Chief Baron says : " The rule amounts to no more than this,, that if the Act be susceptible of the interpretation which has been put upon it by long usage, the Courts usage may influence construction. The Savoy 553 will not disturl) that construction." That is exactly the proposition for which I contend. It may or may not be that our construction is that which might strike a reader at first sight ; but, with so much usage to back us, all we have to do is to show a construc- tion of which, according to legal rules of interpre- tation, the words are susceptible. Of course, my Lords, it will be urged that no usage can prevail against clear words. No doubt, that is so. But, in the application of this rule in order to ascertaui the sense of a document, you must look, not at a particular clause, but at the whole document or whole statute which is under consideration. There is a very re- markable case, Williams v. Pritchard (4th Term Eep., p. 2), on this subject. It was a question of the construction of apparently conflictiag Acts. Lord Kenyon says : " It cannot be contended that a subsequent Act of Parlia- ment will not control the provisions of a prior statute, if it were intended to have that operation ; but there are several cases in the books to show, that where the intention of the legislature was apparent, that the subsequent Act should not have such an operation, there, even though the words of such statute, taken strictly and grammatically, would repeal a former Act, the courts of law, judging for the benefit of the subject, have held that they ought not to receive such a con- struction." Now there are two ways of looking at the rubric under consideration, viz., either as substantially un- altered at the last review — which I understand my learned friends to contend — or as having had con- siderable alterations made in it, in which latter case it is necessary also to consider what their effect is. I will take it in both ways. In order to ascertain the meaning of this review of the Prayer Book, I will ask your Lordships to look at the King's Warrant, which set the Savoy Commission on foot.. It is in Cardwell's Conferences, p. 298. "What I am going to read is at p. 300, that the Commission are- - " to take into their serious and grave considerations the several 554 Commission 6j- Preface o/1662 only contemplated directions, rules, and forms of prayer and things in the said Book of Common Prayer contained, and to advise and consult upon, and ahout the same and the several objections and exceptions which shall now be raised against the same. And if occasion be, to make such reasonable and necessary alterations, corrections, and amendments therein, as by and between you the said archbishop, bishops, doctors, and persons, hereby required and authorised to meet and advise as aforesaid, shall be agreed upon to be needful or expedient for the giving satisfaction unto tender consciences, and the restoring and con- tinuance of peace and unity in the churches under our pro- tection and government; but, avoiding as much as may be, all unnecessary alterations of the forms and liturgy, wherewith the people are already acquainted, and have so long received in the Church of England." It appears then obviously that the design was to keep things in the state in which people had been accustomed to see them, as far as possible, and I respectfully ask, — ^Was it in conformity with such a design, that, not by making alterations, but simply by forbearing to make alterations, the greatest possible change should be made in what the people had been accustomed to see in respect to the dresses of the clergy ? because, virtually, that was silently to enact the most serious alterations, where the King's warrant was only to make such alterations as they should think necessary. There is nothing whatever in an unaltered rubric to indicate that the former state of things is to be altered. Then I come to the preface to the Prayer Book, which resulted ultimately from all that took place in 1661-2. The preface to this Prayer Book, says : " By what undue means and for what mischievous purposes the use of the Liturgy (though enjoined by the laws of the land, and those laws never yet repealed) came, during the late unhappy confusions to be discontinued, is too well known to the world, and we are not willing here to remember. But when upon His Majesty's happy restoration, it seemed probable that amongst other things the use of the Liturgy would also return of course, (the same having never been legally abolished), unless some timely means were used to prevent it." express alterations from accustomed forms, 555 ' The preface evidently contemplates the use of the Liturgy as the people had known and been accustomed to it. It goes on : "Those men, who tinder the late usurped powers, had made it a great part of their business to render the people disaffected thereunto, saw themselves in point of reputation and interest concerned, (unless they would freely acknowledge themselves to have erred, which such men are very hardly brought to do), with their utmost endeavours to hinder the restitution thereof. In order whereunto divers pamphlets were published against the Book of Common Prayer, the old objections mustered up with the addition of some new ones, more than formerly had been made, to make the number swell. In fine great impor- tunities were used to His Sacred Majesty, that the said Book might be revised, and such alterations therein and additions thereunto made, as should be thought requisite for the ease of tender consciences, whereunto His Majesty out of his pious inclination to give satisfaction, (so far as could be reasonably expected) to all his subjects, of what persuasion soever, did graciously condescend." I argue the same thing from this passage, viz., that where there was no alteration made, it was not con- templated that any alteration would take place. Then the preface says : " Of the sundry alterations proposed unto us we have re- jected all such as were either of dangerous consequence, (as secretly striking at some established doctrine or laudable practice of the Church of England, or indeed of the whole Catholic Church of Christ), or else of no consequence at all, but utterly frivolous and vain. But such alterations as were tendered to us, (by what persons, under what pretences, or to what purpose soever tendered), as seemed to us in any degree requisite or expedient, we have willingly and of our own accord assented unto : not enforced so to do by any strength of argument, convincing us of the necessity of making the said alterations, for we are fuUy persuaded in our judgments, (and we here profess it to the world) that the Book as it stood before established by law, doth not contain in it anything contrary to the Word of God, or to sound doctrine, or which a godly man may not with a good conscience use and submit unto, or which is not fairly defensible against any that shall oppose the same, if it shall be allowed, such just and favourable construction as in common equity ought to be allowed to all htiman writings, *556 not alterations made by leaving a rubric unaltered. especially such as are set forth by authority, and even to the very best translations of the Holy Scripture itself. Our general aim, therefore, in this undertaking was, not to gratify this or that party in any their unreasonable demands ; but to do that, •which to our best understandings we conceived, might most tend to the preservation of peace and unity in the Church, the procuring of reverence, and exciting of piety and devotion in the publiok worship of God, and the cutting off occasion from them that seek occasion of cavil or quarrel against the Liturgy of the Church. And as to the several variations from the former Book, whether by alteration, addition, or otherwise, it shall suffice to give this general account. That most of the alterations were made either first, for the better direction of them that are to oificiate in any part of Divine Service, which is chiefly done in the calendars and rubricks ; or secondly, for the more proper expressing of some words and phrases that were either of doubtful signification, or otherwise liable to misconstruction. Or thirdly, for the more perfect rendering of such portions of Holy Scripture as are inserted into the liturgy." .Then it ends : " If any man, who shall desire a more particular account of the several alterations in any part of the Liturgy, shall take the pains to compare the present Book with the former, we doubt not but the reason of the change may easily appear." The contention on the other side is, that though there is no alteration at all apparent on the face of the rubric, a most enormous practical alteration in the form of worship of the Church of England, was silently introduced, without any alteration being made, and without anything to show it. Now the preface to the Prayer Book is the governing preface to the whole. It is like the preamble of an Act. Then, moreover, as regards this rubric, I a little demur to its being called an Act of Parliament, in the sense that it is liable to the same rigid and strict construction as an Act of Parliament. It really is a schedule to an Act of Parliament ; that is the utmost that can be said of it. The whole of the Prayer Book is scheduled, and therefore, your Lordships would surely construe it not as an Act of Parliament, but merely as a schedule to the Act of Parliament. Moreover, when vou look at the Was Elisabeth} s proviso as to ornaments repealed ? 657 peculiar nature of the subject, the peculiar nicety of these distinctions, and the general terms in which this rubric is expressed, I confess I must a little demur to construing this particular rubric, as if it were actually a certain clause or section in the body of the Act. The Lord Chancellor. — There being in the Act of the 1st Elizabeth a positive enactment, "whatever the meaning of it may be as to ornaments, that remains a statutary enactment until it is repealed. I wish to ask, with a view to get an answer both from yourself and your opponents, what are the words in the legis- lation of 1662, which repealed that section of the statute of ElizalDeth and put some other enactment in its place ? Mr. Shaw. — None, at all events, as to any previous exercise of the power given to the Crown by the proviso.* The other side must contend that it was intended, by leaving a rubric unaltered, to bring into use for the first time a state of things which people had never seen since the accession of Elizabeth, never, in short, in the Eeformed Church at all, except for three years under Edward VI. For practical purposes, I venture to say that that is not a revival, but a new law. As further evidence that there was no alteration intended where none was made, I would refer to the first section of the Act of Uniformity of Charles II. The recital is : "Since which time, upon full and matured deliberation, they, the said Presidents, Bishops and Clergy of both provinces, have accordingly reviewed the said Book, and have made some alterations which they think fit to be inserted, in the same." There is not a particle of evidence that, where no alteration was inserted, an enormous alteration was intended. The very same thing had taken place be- fore, because 1662 was not the first occasion on which * This answer was given more at large. It seems sufficient here to state the purport and effect in a condensed form. 558 Mere re-enactment does not repeal intermediate legis- the Prayer Book had been revised since the issuing of the Advertisements, and the rubric yet allowed to stand. James I. did the same thing in 1604, and it was actually a book of 1604 which the Legislature worked from in 1662; yet, certainly, what was done in James' time, was not thought to have wrought a repeal of the Advertisements, for Canon 14 directs the use of the Prayer Book, while Canon 24 cites the Advertise- ments ; and therefore the Eubric could not possibly be deemed to be at variance with the Advertisements. "Where an intention can be discovered, that a new act shall not repeal a former one, it does not repeal it, and the same principle would apply to a change of law by the exercise of statutory power. The effect of such a change has recently been bef6re the Court of Queen's Bench in the Case of the Queen v. Walker, (10 Law Eep., Q. B., 355). It was there held that a man might be indicted for breaking an order made under a statute as if for a breach of the statute itself. Mr. Justice Lush says : " An order, made under a power given in a statute, is the same thing as if the statute enacted what the order directs or forbids." Now, I submit that the re-enactment of a statute by no means always repeals what has been done, in the interval, between the original enactment and the re- enactment, unless there is something to shew that such a repeal was intended. There is another Case on that point, the Case of Morisse v. The Royal British Bank, (1 Common Bench Eep., New Series, p. 67). The facts of that Case were these : The Bankruptcy Act, 6th George IV., c. 16, enacted that the proving any debt under a fiat should be deemed an election by the creditor to take the benefit of such fiat. Then came the 7th and 8th Yic, c. Ill, which enacted that proceedings in Bankruptcy, against a Company, should not prejudice the right of the creditors to proceed by action against a member of it. Then came the 12th and 13th Yic, c. 106, which was an act to amend and consolidate the Law of Bankruptcy. This Act makes the proving of a debt in Bankruptcy an lation. Rubric, general ; Advertisements, Sfc. specific. §59 election to take the benefit of the fiat or petition in Bankruptcy, and therefore not to proceed hy action against any Bankrupt. Held that, as that was a mere re-enactment in the same words of the old Act of George IV., it did not repeal the 7th and 8th Vic, c. Ill, which had been passed in the mean time. Mr. Justice Willes says : — " The 182nd section of the 12th and 13th Vic, c. 106, is a mere re-enactment in the same words as that part of the 6th George IV., c. 16. It is not, therefore, a provision enacted since the Joint Stock Companies Winding np Act of 1844, and, consequently, does not repeal it." Mr. Justice Vaughan Williams says, (p. 86) : — " The only point, which presented any plausibility of argu- ment, was the suggestion that the 10th Section of the 7th and 8th Vic, c. Ill, was repealed hy the 182nd Section of the last Bankruptcy Act, the 12th and 13th Vic. c. 106, but it is clear that this last mentioned provision cannot, by merely re-enacting a previous section of the 6th Greorge IV., c. 16, operate a repeal of the intermediate enactment." Here the Eubric, by throwing together the orna- ments of the Church and of the Minister as it does, shews that the clause is merely meant as a general clause of reference as to ornaments. On the other hand, the Advertisements and Canons are specific provisions as to one of those items only, namely, the dress of the Minister, therefore they will not be over- turned by a clause more general in its form. No matter in what way the intention may be presumed or inferred, the rule must hold that the mere re-enactment does not work a repeal. I contend that this intention is to be inferred, first, from the nature of the transaction, which shews that where no alteration was made none was intended ; secondly, from the declared motives in the preface ; and thirdly, from the way in which the act was understood by the authorities who lived at the time and had to enforce it. I will now go to the alterations which were, in fact, introduced into the Kubrie, and see what the efiect 560 Alterations of rubric in 1662; "Eetained" to he of them is. The contention, on the other side, is that the intention was to restore abolished vestments^ peculiar to, and forming a distinguishing feature of, the Communion Service ; whereas the fact is that all special mention of the Communion Service was now, for the first time, struck out of the Eubric. Then again the word "retained " is introduced, and the contention, on the other side, is that this Eubric was in fact imposed de novo in 1662. If it were imposed de novo I should contend it would speak from that time ; so must other alterations, or else they would be insen- sible. The word "retained" in the preface about Ceremonies, must certainly speak from 1662, other- wise it would be inconsistent, because many things which were retained in 1549, when that preface was first drawn up, were discarded in 1662, and had long been discarded, and, therefore, the word "retained" must apply to the state of things in 1662, and not to the state of things in 1549. It acquired a new sense, therefore, though simply re-enacted. The word " retained " may well have a different reference to what it had in 1559. In the Queen v. The Justices of Kent, 2 Q. B., (the passage I am quoting is at p. 691) Mr. (Justice Coleridge says : " The argument as to corresponding clauses in former acts ' has in my opinion no weight. The appeal clauses in each of those acts can relate only to the particular kind of orders there specified ; but this is an act consolidating others, and words used in a Consolidation Act may have a dififerent meaning from that of the same words when used in any one of the acts comprehended." I do not contend that it has a different meaning properly speaking, I say the word has the same absolute meaning, but it has a different relative meaning because it speaks from a different time. In each case the word speaks from its enactment. There is great reason for putting this construction upon the rubric, because it extends also to the ornaments of the church, and of them there are several which had been more or less construed in connexion with the omission of '•'■at the 561 employed in the Laudian pra which it was probably intended to discard. It may be said, no doubt, that the word "retained," naturally implies a selection of some things and the discarding of others. Now I appre- hend it has exactly that meaning as regards ornaments of the church, and ornaments of the church are included in this rubric. As to the ornaments of Bishop Andrews' Chapel in James I's time, I will cite Perry's ' Lawful Church Ornaments,' pp. 351-2. This is the list of things in Bishop Andrews' Chapel : "Two candlesticks with tapers; the silver and gilt canister for the wafers {a) ; the tonne, upon a cradle (6) ; a linen napkin (called the aire) to cover the chalice, embroidered with coloured silks ; the tricanale, being a round ball with a screw cover, whereout issued three pipes, and is for the water of mixture ; a sier (side ?) table, on which, before the communion, stand {a) and (6) upon two napkins ; a basin and ewer, to wash before con- secration ; the towel appertaining ; a triquertral censer, wherein the clerk putteth frankincense at the reading of the first lesson; the navicula, out of which the frankincense is poured ; five copes." All this therefore was in use in James I's time — not in legal use, of course, but it is obvious the rubric may have used the word '' retained," in order to cut off all that. As regards ornaments of the church, it says, we cut off all that has been used in the interim, but is not in the first Book of Edward. It was designedly so worded perhaps in order to discard these things. This view of the word " retained " is confirmed by the cir- cumstance that it accounts for the omission of the words which were in the rubric of Elizabeth, namely, "At the time of the Communion and at all other times in his ministration." These words were no longer needed, because the special Communion dress had been abolished, and therefore it was not a thing that could be retained. Your Lordships will also notice the word "all" before "times" was now put in. My learned friend, Mr. Charles, cited upon that some articles of Bishop Cosin, which he said were drawn up before the act. One of your Lordships found that if they were 562 Ume of the Oommunion,^'' Sfc, and the substitution so drawn, an alteration had unquestionably been made in them, because they speak of the service for May the 29th, and if that were put into them it is quite obvious that " all times of his ministration " may have been put in too. Sir James Stephen. — I think you are mistaken about that. The way in which 1 understood what passed was this. We said that these Visitation Articles were drawn before the passing of the Act, which was in 1662 ; but, that they were drawn sub- sequent to the Eestoration in 1660, and therefore it was natural that they might have in them the service for the 29th of May. Mr. Shaw. — Not the service for the 29th of May — it was not legalized. He is asking whether they observed the Prayer Book, and among other things the service of the 2&th of May. That is as I understand it. Sir James Stephekt. — I think that is not so. Mr. Shaw. — ^Your Lordships see ' Forms of Divine Service for the 5th November, 30th January, and the 29th May.' It appears to me to shew that the Articles must have been altered since the Eestoration, and if they refer to the Book of James in other parts, all that has to be said is, that they have clearly been altered and modified up to the time of Charles II., and therefore the words " all times " may have been put in then. It may be that the omission of the words, "at the Communion and at all other times of their ministration," and the substitution of the words " at all times of their ministration," throws some light on the word "re- tained ; " because if that word were really used to shew that nothing abolished was to be retained, the result would be that there were no different habits, at all events in parish churches, for the Communion. There- fore it became less necessary to specify the Communion. It is rather observable that the contested Ornaments Eubric is headed by the words : " The order for of " at all times of their ministration.''^ Liddell v. 563 Morning and Evening Prayer daily to be said" — again an entire omission of the Communion. The Lord Chancellor. — ^Do I understand you to read the rubric in this way ; — " Such ornaments of the Ministers suitable for use at all times of their minis- tration, shall at all times of their ministration be retained and be in use as were in the Church," etc. Mr. Shaw. — I should a little object to the inter- position of those words. The Lord Chancellor. — Do you understand the rubric to mean that. Mr. Shaw.— I thinlc in the rubric taken altogether there is an intimation that there were not to be various habits for the Communion. I think that is the infer- ence. Your Lordships observe the scrupulous way in which the Communion is left out, and the rubric is headed by " Order for Morning and Evening Prayer." Sir E. p. Amphlett. — Do you apply that to cathe- drals as well as parish churches ? Mr. Shaw. — The cope would be used in cathedrals. It was so held in Hebhert v. Purchas, but at all events the design was not to put a stress on different vestures for the Communion. That I apprehend is one reason why there was no reference to the Act of Elizabeti in 1662, as there had been in the rubric up to 1662,^ namdy, because it became in a measure unnecessary for the future, to say anything about the proviso, inas- much as the word "retained," if it spoke from 1662, settled the point. Nevertheless the Act of Elizabeth is printed at the beginning and it is a pai't of the Prayer Book, shewing the proviso of the 25th section, and the whole will stUl be read together. Now, my Lords, I would just say one word about the case of Liddell v. Westcrton, which has been so much relied upon against us. In that case there was no question before the Court as to the dress of the minister, but only as to the ornaments of the church. What was said as to the former was merely an obiter dictum — ^the point was not before the Court at all — it was not raised or argued. As to the authority 00 2 564 Wesierton only obiter dictum as to Vestments. of Liddell v. Wesierton upon a point which was not raised, and certainly not fully discussed ia the case, I may venture to quote the authority of on® of your Lordships, Sir Eobert Phillimore, in Sheppard v. Bennett. The case of Liddell v. Westerton was very much pressed, in the Court below, in Sheppard v. Bennett with reference to the doctrine of Sacrifice, and the Dean of the Arches, says, (3 L. E., Ad. & Eccl., 256): " I have been referred to the case of Liddell v. Westerton as a Judgment of the Privy Council upon this point. It is said that this decision established that the use of the term " sacrifice," as applied in any way to the eucharist, was unlawful. I am unable to take that view of the judgment for various reasons : " First, the question as to the lawfulness of the term had never been raised in the argument, and a decision upon it was not necessary for the issue in the cause." And after a few more remarks on this the learned Judge proceeds : " Secondly, — Since the observations on this point in Liddell V. Westerton, a flood of learning has been poured out upon the subject by the very learned treatises of Dr. Pusey, Mr. Keble, the 'Bampton Lectures' of Bishop Moberly, the, essay of Archdeacon Churton, and other works." I claim to apply these words to the present case : Not only had the question of vestments not been examined at the time when Liddell v. Westerton was decided, as it has since been examined, so that the Court could not have been assisted with the same materials which your Lordships have had placed before you now, but it was a point not argued and not raised at all. Then there is this point, which I would venture to bring before your Lordships. There has been a great deal said in this case about what are called the opinions of the Eevisers, and it has been said that the framers of the rubric must be supposed to be the persons who knew most about it. I would draw your Lordships' Opinions of Revisers inadmissable. Baxter's Bill 565 attention to this, that precisely the same point came before this Court in Sheppard v. Bennett. There was a question on the 28th Article, and a private letter of Guest's was mentioned stating that he was the framer of the Article. What the Court said on that subject was : " One of the authorities is so questionable that it requires a passing examination. The learned Judge, after quoting the 28th Article of Religion, introduces as a ' contemporanea expositio, from the compiler of this article, which cannot, 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 puts 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 substance in the Articles of 1552, and the context shews that he used the word ' Article ' only of this sentence, which he says was ' of mine own penning.' " Then they set out the letter and proceed : " Upon this alleged exposition their Lordships feel them- selves free to observe that the words, ' only after an 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 com- ments of a doubtful letter written for personal motives, which is binding on the clergy and on this Court." (4 L. R., P. C, 416.) So that this Court rejected the letter of Bishop Guest, who claimed to be the framer of the words ia question. There is only one more point that I wish to bring be- fore your Lordships. Baxter was cited by my learned friend, Mr. Charles, to shew that there was a real alarm about the bringing back of the vestments. The words of the Puritan objection are only, " seemeth to bring back." They do not assert that the rubric had ever been really thought to bring the vestments back ; or, that there was any decision to that effect — or that any person of authority had ever held such an opinion — or that it had ever been enforced. They merely said, that in their judgment, looking at the rubric, " it seemeth 566 only mentioned surplice. II. Even if Table may stand to bring back." But then it was said that Baxter pressed that again afterwards. But I believe, con- siderably later than the passage, which my learned friend, Mr. Charles, cited from Baxter, there is another passage which is also to be found in Sylvester's Life of Baxter, pt, iii., (p. 158). In that passage we have a bill which Baxter himself says he drew, and which was what he wanted to get passed for the relief of the Puritans, and, unless I am mistaken and have read it wrongly, the only thing that I see in it about vestments, is this : "Be it also enacted that no person shall be constrained against his conscience to the use of the cross in baptism, or of the surplice." It was merely the surplice that he thought it necessary to put into the bill. I have now, my Lords, finished what I have to trouble your Lordships with on the point of the Vestments. II. Eastward Position. My Lords, I now come to the question of the East- ward Position. I cannot hope to add anything to what Dr. Stephens has exhaustively argued as to the illegality of the Table standing at the East end at Communion time, and, therefore, it will be my duty, by arrangement with Dr. Stephens, to present to your Lordships an alternative argument, viz., that assuming, for the sake of this argument, that the Ordinary may legally exercise his discretion, so as to let the Table remain at the East end during the Communion, still it is not lawful for the minister to stand with his back to the people during the Prayer of Consecration. My Lords, I may as well say that as to the case of the Church of St. Gregory, (2 Card., Doc. Ann., 237), I should submit, that really that case only lays down, at the utmost, that the Ordinary has a discretion upon the subject. I respectfully submit that it is really not an order made by the King, with the consent of the Metropolitan, under the Act, because it has none of the characteristics that would naturally attend such at East End, minister must not have lack to people. 567 an order. It seems to have been a calling away of a particular case from the Dean of the Arches to the Council Board. The Eing sat in person, in defiance, as I venture to say, of the law laid down by Coke in the 12th Eeports, 63 b, that the King cannot sit in person in his Courts of Justice, and, at all events, all that the case says is this : " For so much as concerns the liberty of the said Common Prayer Book or Canon, for placing the Communion Table in any church or chapel with most conveniency ; that liberty is not so to be understood, as if it were ever left to the discretion of the parish, much less to the particular fancy of any humorous person, but to the judgment of the Ordinary, to whose place and function it doth properly belong, to give direction in that point, both for the thing itself, and the time when and how long, as he may find cause." That is, as I understand it, as he may find cause with regard to the specific peculiarities of any particular church, as to which he makes a particular order, and if the case be good for anything at all, it is an exercise of the discretion of the supreme Ordinary as to where the Table should stand in St. Gregory's Church. Assuming that to be so, and that the East end is one of the lawful positions of the Table according to the discretion of the Ordinary, still, I contend, it is not lawful for the minister to stand with his back to the people during the Prayer of Consecra- tion. As to this question, also, I would ask your Lordships to approach it under a sense of the very great weight of usage which lies against the Eastward position, and in favour of the North side position, in saying the Consecration Prayer. Of course we cannot prove a negative, and I do not understand that my friend has set up any distinct instances to the contrary, at all events, any such distinct instances as could possibly constitute a usage within your Lordships' appreciation of that term. SiE James Stephen. — Your Lordships wiU remember that I ofifered to do so, but your Lordships intimated an opinion that it would be of no importance. 568 Discussion as to evidence of usage. Me. Shaw. — But did you oflfer to set up a continuous usage ? The Loed Chancblloe. — I did not catch, what you said? SiE James Stephen. — My friend was saying that we had not shown any usage of the Eastward position, to which I reply that I offered to produce to your Lordships certain evidence as to usage upon that subject, but that I received an intimation from your Lordships, which I understood to suggest that it was not important that I should do so. The Loed Chancelloe. — We did not understand that the evidence was presented of usage other than observations Sir James Stephen made, proposing to read the opinion of certain writers. Those references, to those writers, were given by Sir James Stephen, and, in addition to that, I think Sir James Stephen mentioned something about the American Church which, certainly, their Lordships thought would not be relevant. SiE James Stephen. — I was unfortunate in not making myself intelligible, if that was the impression conveyed, because I said I had certain cases in which I could prove usage for a long period of time in particular churches in England ; and in particular I was prepared to prove an instance of usage for 120 years, dating from the present day back to the early part of the 18th century, in a well-known church near London. The Loed CHANCEiiLOE. — When you say you were prepared with evidence, do you mean evidence given in the Court below ? SiE James Stephen. — No, my Lord, in the Court below this subject was never argued at all, because of your Lordships' decision in the former Case of Hehbert v. Purchas. It happens singularly enough, that in one particular instance I could have given the evidence of a gentleman who has himself been in- cumbent of a church in which he succeeded his father and his grandfather, and, singularly enough, the three What evidence Sir J. Stephen offered. 569 incumbencies cover exactly 120 years ; and he is the repository of personal knowledge for about half that time, and there is a tradition at first hand for the rest. The Lord Chancellor. — How can that, as evidence of a matter of fact, be given here ? Sir James Stephen.— I am not saying how it could be given, but my friend is commenting upon our not having given it. The Lord Chancellor. — That would be a very fair observation. Sir James Stephen. — I say if there is to be any discussion about a question of fact, I am prepared to discuss that ; but I take my stand upon the Prayer Book. I do not want to go into any question of fact, and I rather understood when I made a suggestion of this kind — or what I supposed to be such — I under- stood from the way in which it was re'ceived by your Lordships, you did not consider it important. The Lord Chancellor. — ^What I think their Lord- ships expressed was, concurrence in your observation that it must be determined on the construction of certain documents ; but I was only anxious to know whether we had misapprehended any tender of any legitimate evidence upon the subject, and, speaking for myself, I do not see how any evidence could be tendered here. Sir James Stephen. — Then that is exactly how I understood your Lordships ; and, if that be so, then my friend, in speaking of usage and continuous usage, is affirming a matter of fact which I have not had an opportunity of contradicting, and which I do not admit to be correct. The Lord Chancellor. — Of course if there is any historical evidence of the ordinary kind pointing to the state of things on this subject at the date of the statute, or following consequent upon the enactment of the statute, that would be legitimate to be looked at, and their Lordships will hear it. We have not yet had any such matter offered to us. 570 Evidence of living persons must he given hy parol. SiE James Stephen.— Of course, my Lord, as that intimation of your Lordships' judgment upon the subject applies equally to my friend and myself, I am content, and have no more to say, because all that I was objecting to was, that my friend should state without any proof and as matter — ^as I understood him to be about to state — of acknowledged and admitted fact that the usage was favourable to the view which he maintains. Of course, if he refers your Lordships to the class of evidence which your Lordships have said you will listen to, I have no more to say. I shall remark upon it as it arises. Me. Shaw. — Well then, my Lords, I do not under- stand my friend. Sir James Stephen, to say that he even attempts to show that there has been a wide- spread usage. It is certain cases that he is going to give evidence of . Sib, James Stephen. — I am not going to give any evidence. Me. Shaw. — He does not profess more than certain cases, and therefore, even allowing him the utmost benefit of what he has said, it would come within the rule of Martin v. Mackonochie^ of " very general disuse, whatever exceptional instances to the contrary may be adduced." That was said as regards another matter. I am speaking now of the Eastward position. The Loed Chancelloe. — To what are you referring now, the position of the Table, or the position of the minister ? Me. Shaw. — The position of the minister. I had some evidence to bring before your Lordships, but perhaps, after that intimation, I had better not do so. But, at all events, I may rely upon this, that there was no visitation enquiry . The Loed Chancellor. — Then do you propose to produce any evidence of the kind to which reference has just now been made — any historical evidence of the state of things in this respect at or after the passing of the statute ? Me. Shaw. —Eo ; I merely intended to have pro- " Before the people " are the important words : they 571 duced a certain piece of evidence from a higli source as regards tiie custom of the cathedrals till a very recent day, but I will not do so. The Loed Chancellor. — If you wish to tender any evidence, you must tell us exactly what it is, other- wise we cannot form an opinion. Me. Shaw. — It is to prove that the Eastward position was not adopted. The Loed CniEr Baeon. — Of the priest, or of the Table ? Mr. Shaw. — Of the priest at Consecration. The Loed Chancellor. — ^What is the evidence you propose to offer ? Me. Shaw. — I was going to read the statement of Bishop Wordsworth of his own enquiries as to the practice in the cathedrals. The Lord Chanoelloe. — That is just what I say. If it is giving evidence of persons speaking at the present day as to what they have heard or seen, it would require to be evidence given in the regular way by parol. Me. Shaw. — If that is your Lordships' ruling, of course I will not pursue it. My Lords, the important words of this rubric, as I shall respectfully contend, are the words " before the people," The rubric is : " 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 hand, he shall say the Prayer of Consecration as follows," I contend upon that, that the object of the rubric is to secure that certain acts shall be done with readiness and decency ; and those acts are the breaking of the bread by the minister before the people, and the taking of the cup into his hand. If I am right in contending, as I submit upon the con- struction of the rubric I must be, that those words are intended to secure that those acts shall be done with the more readiness and decency, those words must dispose of any such solution as holding up the 572 are not a mere protest against secret consecration. bread above the head, or turning half round in the course of the Prayer in order that the people may see the breaking, because those ai'e not ready or decent methods. They are mere expedients which a person resorts to, failing a ready or decent method. It has been said, that the words merely mean that the bread should be broken at that point of the service, and not beforehand in the vestry, and as a protest against secret consecration. That is one theory upon the subject. But, my Lords, there was no need to protest against secret consecration. There has never been secret consecration in the Western Churches. It has always been done openly in church; and, in the next place, the mere direction to break the bread would have sufficed to secure this. The marginal directions, which you will see in the Prayer, "Here the priest is to take the Paten," and, "Here he is to break the bread," would have amply sufficed for that purpose, viz., to show that it was to be done then, and not beforehand. The consequence is, that upon that theory, the words " before the people " in the rubric are merely surplusage. The Lord Chancellor. — One of their Lordships would desire to have from you an answer to this question with reference to consecrating the elements. Has it been the practice of the Greek Church to consecrate the elements in private, and has that ever been the practice of the Eoman Catholic Church ? Mr. Shaw. — I believe it is the practice of the Greek. Church ; and, I believe, it is not the practice of any Church in the "West, so far as I am informed. The Lord Chancellor. — Not of the "Western Church ? Mr. Shaw. — No ; no Church in the "West, as far as I am informed. It is the oriental rite, I believe ; but, at all events, your Lordship sees this, which is my strong point, that the marginal directions in the prayer are perfectly sufficient to secure that. The Lord Chancellor. — Perhaps you may answer with reference to the practice of the Eoman Catholic The marginal rubrics would prevent this. 573 Cliurcli, whether it has been their habit to consecrate the elements at different times ? Mr. Shaw. — Oh, yes, to reserve the elements ; but they had always consecrated them in the church publicly. SiE E. J. Phillimore. — But at a different time to the distribution ? Me. Shaw. — Yes, but the Consecration was in public. The act which is done in the Eoman Catholic Church, which corresponds to the act directed to be done in the Church of England by this Prayer, so far as I know, is done in public. Then, my Lord, if I am correct in saying that the directions in the margin of the Prayer perfectly accomplish the object of the rubric, if that object be considered as a mere direction to break the bread and take up the cup at that period of the service, the whole rubric is needless, because the manual acts are sufficiently provided for by the marginal directions in the Prayer. It follows, therefore, that the true con- struction is, that while the object of the marginal directions is to secure the breaking of the bread and the taking up of the cup at a particular period of the service, it is the object of this rubric to secure those acts being done both before the people and with the more readiness and decency. That the words, " before the people," are emphatic appears, because there is not the least difficulty in a minister breaking the bread, or taking up the cup with readiness and decency, as an act considered in itself. It is the simplest possible action. If he were meant to do it standing before the middle of the Table, with his back to the people, and without their seeing it, not only would the words "before the people" be sur- plusage, but the whole direction to secui-e readiness and decency would be unintelligible. The true sense of these words, " before the people," may be gathered from other places where they occur. Thus, in the office of Private Baptism, there is, "before divers witnesses I baptized this child." Here "before" 574 " Before " in Baptismal and Marriage services. obviously means so that they witness it with their eyes. A passage in the Marriage Service has been relied upon against this view : " Forasmuch as M and N have consented together in holy- wedlock, and have witnessed the same before God and this company, and thereto have given and pledged their troth either to other, and have declared the same by giving and receiving of a ring and by joining of hands." My answer is, first, it is not clear that the company here are meant to be more than witnesses of the spoken vow, which is a question of hearing, not of seeing ; secondly, it is not this congregation but this company — that is, the bridal party, who would see in any event ; and thirdly, and this is the best answer, that this part of the service is to be said in the nave of the church before going to the Lord's Table. This takes place in the nave of the church where the people would see, and therefore, really it is an instance on our side. According to the modern usage in many churches the parties go to the Communion Table from the first, but if you look at the service they should be married in the nave, and go afterwards to the Communion Table. The Lord Chancellor. — Are these expressions in Marriage Service anything more than a sort of synonym for a marriage in facie ecclesice, as that word was under- stood in law. Mr. Shaw. — It may be so ; but, at all event, I say it has to do mainly with hearing not seeing. In other places also it is used, as to what persons bear witness to, rather with their ears than their eyes. In the office of the Baptism of such as are of riper years, the sponsors are exhorted to put the baptised persons in mind "what a solemn vow, promise, and profession they have now made before this congregation, and especially before you their chosen witnesses." Now, here it is obvious that the congregation and sponsors are presumed to have the opportunity of knowing what has taken place, and being able to testify to it. The words are " In presence of testator^'''' meaning ascertained 575 not used of an act wMch may have taken place in tlie church, as to which they had no means of know- ing whether it took place or not. My friend, Sir J. Stephen, in commenting upon the word "before," said that he was speaking before your Lordships, but that he was equally speaking before the people at the back of the Court. That may be so, because a man in some sense speaks before anybody who can hear him, but the question of seeing a manual act belongs to an entirely different class of ideas. My friend, Mr. Charles, says that the words " before the people " are merely equivalent to "in the presence of the people." I would, just in passing, remind your Lord- ships of the very strong construction which has been placed by the Courts upon the words "in the presence of the Testator," in respect to Wills, first under the Statute of Frauds, and then under the recent Statute on Wills, where the words are re-enacted, viz., that it must be done so that the Testator can see the witnesses whilst they are attesting. That is the con- struction which the Courts have put upon the phrase " in the presence of," — -no doubt to prevent the chance of another will being substituted. Sir E. J. Phillimoee. — He may see them out of a window. Me. Shaw. — Yes, but he must see them. At all events, in contemplation of law he must be able to see them. There must not be an impossibility in his seeing them, and that is exactly what we contend for, — not that all the congregation will invariably see the manual acts, but that upon a reasonable construction they will have the opportunity of seeing them in contemplation of law, exactly like the Testator in the Wills Act. In the Wills Act, the object is to pre- vent a suppositious will being substituted behind the back of the Testator. Here it is, as I contend, because great importance was attached to the thing being done before the people. The same conclusion is arrived at by ascertaining the sense of " before the people " from contempora- 576 from contemporaneous sources, viz. Puritans' neous sources. As regards the sources wMch the Court would look to, for ascertaining the meaning of language, I do not wish to go beyond what was laid down in the House of Lords in the case of Lady Hewley's Charity, and it is there said that the mean- ing may be ascertained both by showing how the phrase was used in contemporaneous writings, and by showing the circumstances surrounding the party — that is, in this case, the circumstances surrounding the Eevisers and the Legislature in 1661-2. Your Lordships wUl remember that was very much dis- cussed in that case of Shore v. Wilson, 9 Clark, and rinelly. The way then to obtain the meaning of these words, is either from contemporaneous usage, or, from showing the circumstances surrounding the Legislature in 1662. In looking at the preface to the Prayer Book, which I read to your Lordships this morning, we iind ob- jections spoken of in deference to which alterations were made. This rubric is an alteration; it is entirely new. Therefore, I submit that the recital in the preface lets in evidence as to what the objections were. In Cardwell's Conferences, p. 321, one objec- tion of the Puritans is given. It was " We conceive that the manner of the consecrating of the elements is not here explict and distinct enough, and the ministers breaking of the bread is not so much men- tioned." This was a Puritan objection which was accepted by the Eevisers. Now even without more, it is not prima facie an unfair inference, that an act to which so much importance was assigned, should, when required to be done, be at the same time required to be so done, as that the people should know that it was done. But we can go further. In explanation of the objections of the Puritans, a Liturgy drawn up by them was handed in at the Savoy Conference, and that Liturgy is printed in Hall's ' Eeliquise Liturgicse,' vol. 4. It is addressed " to the Bishops," and says, "Eight Eeverend, having already given you our judgments on Savoy Liturgy. Directory for Public Worship. 577 several things in the Book of Common Prayer, and our desires for the alteration of some parts of it, leaving the rest unaltered : we here tender you some of the said alterations, which in our former paper we showed to be needful." Therefore, that incorporates this Liturgy with the objection which I showed your Lordships the Puritans raised ; that it was not definitely stated in the Prayer Book that the minister was to break the bread. They say this Liturgy is handed in to explain what their objections were. Now in this book (p. 70) the rubric is, " Then let the minister take the bread and break it in the sight of the people." Again it must be remembered that this is a Puritan objection, and that during the Commonwealth there had been a Puritan Directory for Public Worship used instead of the Prayer Book, and from pp. 54 to 56 of that Directory, which is printed in the 3rd vol. of Hall's 'Eeliquise Liturgicse,' it clearly appears that the minister was to break the bread before the people. I simply claim to use this as a part of the circumstances surrounding and throwing light upon the Puritan objection. The words are these : In the 54th page it is said : " After this exhortation concerning •warning and invitation, the table being before decently covered, and so conveniently placed that the communicants may readily sit about it or at it ; the minister is to begin the action with sanctifying and blessing the elements of bread and wine set before him the bread in comely and convenient vessels so prepared, that being broken by him and given, it may be distributed amongst the commu- nicants . . . ." Then there is a direction : " The elements being now sanctified by the word and prayer, the minister, being at the table, is to take the bread in his hand, and say in these expressions (or other the like used by Christ or his Apostle upon this occasion) 'According to the holy institution, command and example of our blessed Saviour Jesus Christ, I take this bread; and having given thanks, break it and give it to you." p F 578 A Lascoh Liturgy, 1550. Obviously that was a public action whicli they would see. I submit it would be with that usage in their minds that the one party asked, and the other made, the concession. In an earlier Liturgy the same appears. There was a Liturgy in 1550, in Edward VI.'s time, drawn up by John A. Lasco, who was a man who was held in very great consideration at the Court, and whose Liturgy was brought very promi- nently before them. In Proctor's History of the Prayer Book, pp. 48, 49, he says : "All that can be alleged respecting the opening portion of our service, is tliat the hint may have been taken from two books of service used by congregations of refugees in England, the one being the version of Calvin's form, by Pollanus ; and the other that used by the Walloons under John Laski or A. Lasco. This truly influential person was a Polish noble, who left his country and his honours for the freer acknowledgment of the Gospel. His first visit to England was in September 1548, when he resided six months with Cranmer. The intro- duction of the Interim into Friesland compelled him to seek a shelter in England, in 1550. He was then appointed super- intendent of the congregations of foreign Protestants, German, Belgian, French, and Italian, in London ; and his personal character appears to have obtained for them the Church of St. Augustine's Monastery, with permission to use their own ceremonies. He published in Latin the service used by his church. His friendly intercourse with Cranmer would naturally lead to an enquiry into the form of his worship, and that not only with reference to the English Service Book then under review, but that the English government might know to what they were giving shelter and sanction." He was an influential man of his time, and the Government had great regard for him ; he was named by Edward VI. as one of the 32 Commissioners for revising the ecclesiastical laws — ^therefore he and his book must have been very well known, and indeed Edward VI. authorized the publication of this Liturgy. At p. 142 of this book (which is the second volume of Johannis A. Lasco opera, printed at Amsterdam in 1866, and which contains a reprint of this Liturgy) we have: TyndaWs Supper of the Lord, 1533. 579 " Eo ipso die quo coena Domini administrari debet, prius- quam conveniat Ecclesia, mensa quae est in totius EcclesisB prospectu panno lineo mundo instemitur tota." And then at p. 163 the minister descends from the pulpit : " Venitque ad reliquos ministros seniores ac diaconos ante mensam instructam in totius Ecclesise prospectum, ut antea dictum est, ibique in medio ministrorum considens, recitat, versus ad populum, Isetum illud ac salutare toti Ecclesise nuncium ex Paulo," etc. And then it proceeds : "His dictis considet ad meditulHum mensae, versS, ad populum facie, Ecclesiastes, a cujus demum utroque latere reliqui ministri, seniores ac diaconi omnes ordine una ac- cumbunt, aliique prseterea ex ecclesia viri, donee mensa tota impleatur, relicto interim ante Ecclesiasten spatio vacuo, ut is a tota semper Ecclesia at videri commode et audiri possit. Tlbi vero mensa tota, relicto ante Ecclesiasten spatio, completa est, Ecclesiastes in conspectu totius EcclesicB sumit in manus panem e majore lance, quae pane referta est, videnteqiie et auscultants tot^ Ecclesia, clara voce et verbis distinctis ait : ' Panis quern frangimus communio est corporis Christi ' simulque dum haec dicit, panem in manus sumptum frangit," etc. As early as 1533 Tyndale, the reformer, published a work on the Supper of the Lord, saying how he conceived it ought to be observed. That is printed in the volume called ' Tyndale's Answer to More, &c.' in the Parker Society's Series. What I am about to quote is not really the answer to More, but a treatise on the Supper of the Lord, which is bound up with it. At p. 266 your Lordships will see : " This done, let him come down, and accompanied honestly . ■with other ministers, come forth reverently unto the Lord's Table ; the congregation now set round about it, and also in; their other convenient seats." And then it goes on that they are to pray : " Which done, let him take the bread and eft th6 wine in the sight of the people, hearing him with a loud voice, with godly gravity, and after a Christian rehgious reverence, pp2 580 Hooper contrasts public and secret breaking. rehearsing distinctly the words of the Lord's Supper in their mother tongue ; and then distribute it to the ministers, which, taking the bread with great reverence, will divide it to the congregation, . . . ." The Lord Chancellor. — What is this supposed to be? Me. Shaw. — A treatise of Tyndale's to shew how he thought the Supper of the Lord ought to be administered. I am only on the question of publicity, that it was a matter of notoriety that the breaking of the bread and the distributing was to be public. The Lord Chancellor. — But this is what he wished to have done himself. Me. Shaw. — Certainly; I only cite it as a contem- porary treatise. All the treatises of the time which laid any stress on the breaking of the bread at all laid stress on the publicity. The Lord Chancellor. — It is only to shew that there was a demand made by those who agreed with the writer of this book that these acts should be done in the sight of the people. Mr. Shaw.— That is all. The Lord Chancellor. — That is the purpose you use it for ? Me. Shaw. — That is all, my Lord. I was citing all these things in order to shew that the question was one of some notoriety before and at the time of the revision in 1662. I believe that the fact is, that the Church of England at the Eeformation from disliking the secret actions of the Eomaa Catholic priest who performed the act of consecration with his back to the people, and because these actions gave opportunities for the elevation of the elements, abolished these actions altogether by the book of 1552; but it would seem that one great objection was the secret mystery — it was this that was -dis- liked by the theologians of that day, not the actions itself. In the Parker edition of Bishop Hooper's writings at pp. 464, 466, there is a comparison of our Lord's institution oi the Lord's Supper with the Juxon^s enquiry, 1640, implies that Churchwardens 581 manner in wHcli it was observed by the Eoman Catholics in parallel columns; and as to the bread, he says : " Christus iu sacra coena accepifc panem et publice gratias egit. Romani neoterici in impia missa panem accipiunt, et secreto atque tacite panem crucibus signant. Christus panem publice aliis fregit. Neoterici arcane sibi ipsis panem frangunt." Therefore it would seem that the great objection was the seeresy ; it is the more probable that that was the objection, because at the very time when the Ee- fornaation came in, the vernacular service came ia also, and it was required that everything should be done so that the people could have knowledge of it. By degrees it seems to have been felt that the manual acts might be safely used, as being in analogy with the original institution of the sacrament, provided that there was no elevation, (which was emphatically guarded against by the article against elevation), and provided that they were done publicly and without mystery. Bishop Juxon in 1640, (2nd Eeport Eit. Com,, p. 520), enquires of the churchwardens, "Is the bread provided for the Lord's Supper of the best and purest white bread that can conveniently be gotten ? " I may mention in passing, that that is a demand merely for pure wheat bread ki the year 1640, which may have some bearing on the wafer question. Then, " Doth the minister take the same into his hands to bless and consecrate it to that holy use as oft as he administereth the Communion ? " There was no direction in the rubric at that time to do it, but Bishop Juxon asks the churchwardens whether it was done because it seems to have crept in from a feeling that there was nothing really objectionable in it. But then the very form of the question shows that it is addressed to. the churchwardens, and that they are to bear testimony as to whether it is done or not ; and therefore, obviously they could see it done, and it must have been done in such a way as that they could see it and bear witness 582 could see manual acts, minister heing at North end. of it. This of course would be the case if the minister did it at the North end, as at that time unquestionably he did. There is a peculiar weight in these Yisitation Articles, because they were the Articles which were compiled by the Convocation of 1640 as the heading prefixed to them shews. It may be taken therefore as a fact, that during the earlier part of the 17th century the manual acts, though at that time without legal warrant, had been coming, back, but it was subject to the condition of publicity, which was ensured by the North side position. This was the state of facts at the time of the revision of 1662, and I venture to repeat that under this state of facts the words " before the people " must have been understood to mean "in the sight of the people," for the clergy had got into the habit of doing the manual acts standing on the North side, so that all the people could see them. The words "before the people" must in the ordinary acceptation of such language in Charles I's time, have meant that the people could see them, and could not have been understood to apply to the priest's doing the acts privately, in a way then completely novel, and which had been totally unknown since the time of Edward YI. The Lord Chancelloe. — ^At the period you are referring to, 1 640, what do you suppose to have been the position of the Table ? Mr. Shaw. — It varied. The Lord Chancellor. — Varying ; sometimes at the wall and sometimes standing in the church ? Me. Shaw. — ^Yes, my Lord, but when it was at the end of the church, (a state of things which Laud had, no doubt, introduced into a number of churches) the minister, as I have sought to shew, was so to do the acts that the churchwardens could bear witness to the acts being done. This would result from his standing at the North side. The question is whether taking all the evidence into account, the phrase " before the people " must not have been intended to mean "in the sight of the people" unless there was a Laud's answer as to the Scotch Rubric, and 583 deliberate intention to mislead, whicli is not to be supposed. When the Prayer Book was revised, it must have been in the recollection of everyone that only about 20 years before, at Laud's Trial, accusations had been made by the Scotch against the Scotch Prayer Book which Laud was supposed to have had a hand in, and amongst other things there was a dispute upon this very subject, an account of which is to be found in the 3rd Vol. of Laud's Works, (Anglo Catholic Library, p. 345). The objection of the Scotch Commissioners was this: " It seems to be of no great matter, that without warrant of the Book of England, the presbyter going from the north end of the table, shall stand during the time of consecration at such a part of the table where he may with the more ease and decency use both his hands : yet being tried it importeth much : as that he must stand with his hinder parts to the people, re- presenting, (saith Durand), that which the Lord said to Moses, ' Thou shall see my hinder parts.' " The Scotch rubric which is referred to was in these words : " Then the Presbyter standing up shall say the Prayer of Consecration as folio weth," but then during the time of Consecration he was directed to *' stand at such part of the Holy Table where he may with the more ease and decency use both his hands."^ Of course that was intended to place the priest with his back to the people. That was the objection of the Scotch Commissioners — that it put him with his back to the people, and Laud says, " Truly this charge is no great matter " and so on. Then the Scotch ob- jectors go on to say : " He must have the use of both his hands, not for anything he hath to do about the bread and wine, for that may be done at the North end of the table and be better seen by the people, but we are taught by the Eationalists " — And that is a word which has curiously changed its signification, for at that time it meant the high cere- monialists of those days, — 584 Wren's defence known in 1662. " that he may by his outstretched arms represent the exten- sion of Christ on the Cross." Then Laud in Ms answer says : " The reason given in the rubric doth not satisfy them, for they say plainly, 'they have no use of both their hands for any thing that is to be done about the bread and wine,' surely these men consecrate their elements in a very loose and mean way, if they can say truly that they have not use of both their hands in this work. Or, that whatsoever is done ' may as well be done at the North end of the Table ; ' which in most places is too narrow, and wants room to lay the service book open before him that officiates, and to place the bread and wine within his reach. So that in that place 'tis hard for the presbyter to avoid the unseemly disordering of something or other that is before him, perhaps the very elements themselves ; . which may give scandal to them which come to communicate ; especially since, in the margin of the Prayer of Consecration, he is ordered to lay his hand upon the bread and wine which he consecrates. As for his 'being better seen of the people,' that varies accord- ing to the nature of the place, and the position of the table ; so, that in some places he may be better seen, and in some not. Though I am not of opinion that it is any end of the adminis- tration of the Sacrament, to have the priest better seen of the people." Now these accusations against Laud must have been well remembered in 1662, and in the face of such facts, can it be supposed that the words " before the people" were inserted in any other sense than that which every "one must have supposed them to bear, who was acquainted with this dispute about the minister turning his back to the people. "What sense the words would naturally bear to Bishop "Wren for instance, cannot be doubted, because some years before in his intended defence he justified one of his Yisitation Articles, intimating that all pews ought to face towards the East in this way : "The defendant himself, therefore, could have no other intention in that Inquiry but this — that the East being the highest end of the church, and the Holy Table standing there, by kneeling in that way the people would give no offence or Non-Jurors' rubric, ^^ in the view of the people." 585 disturbance to one another, and would also the better hear and see what the minister said and did in his administration. (Parentalia, p. 78.)" It is not, therefore, saying too much to assert that in this state of things, existing in 1662, or immedi- ately before, the words "before the people" must have caused misconception, and have directly tended to mislead, if they meant anything else than " in the sight of the people." The ' Non-Jurors' Liturgy,' which my friend Dr. Stephens quoted upon another point yesterday is to the same effect ( ' Hall's Frag- menta Liturgica,' vol. 5, pp. 31-2.) The Non-Jurors not only retained the manual acts of our Book, but restored the act of putting a little water to the wine, and they say, " Then shall the priest take so much bread and wine as shall suffice, and putting the wine into the chalice, or else into some fair and convenient cup, prepared for that use, putting thereto, in the view of the people, a little pure and clean water : " so that when the Non- Jurors restored this abolished manual act, they restored it under the conditions of publicity, which they evidently under- stood to be applicable to all the manual acts ; because there could be no reason why that particular manual act should be more public than the rest ; and the words are the more observable, because they take the rest of this rubric verbatim from the first Prayer Book of Edward YI., but add the words "in the view of the people." Then, if we look at the subsequent usage, we find evidence indicating that, as a fact, the manual acts were so done that the people could see theni. In the 2nd Keport of the Eit. Com., p. 626-7, we have the Yisitation Articles of Archdeacon Pory, and there is an article there which is a verbatim copy of Juxon's Article of 1640, which I have already read. Now in Juxon's days at all events, I submit, that consecration must have been performed from the North side, be- cause the rubric before the Consecration Prayer was not in existence in Juxon's day. Pory then in 1662 586 Subsequent usage shown from Visitation Articles repeats verbatim the words of Juxon, and those -words are an inquiry to the Churchwardens — "Doth the minister take the same into his hands to blesse and consecrate it to that holy use as oft as he administreth the Communion ? Doth he so likewise with the wine provided ? " Evidently he speaks of it as a public act which everybody could see ; and, at p. 648 of the same volume, your Lordships wiU find the Visitation Articles of Bishop Gunning, in the year 1679 — which, of course, is after the revision. " Doth he at the cele- bration of the Holy Communion in the due places appointed by the Liturgy, take the paten into his hands, and break the bread, and lay his hand upon all the bread, and also likewise take the cup into his hand, and lay his hand upon it, and every vessel in which there is any wine to be consecrated ? " Clearly this shews that the manual acts were public things, which everybody could see ; and your Lordships will see that, while there is the utmost care in these Visita- tion Articles to ascertain that the manual acts them- selves were done, there is in no case any inquiry whether the minister stood in the Eastward position while doing them; although, that would be a perfectly new requirement, and would therefore be the very thing to be inquired after, for fear any minister should have neglected it. I will now cite the writings of well-known authors, as evidence to the same effect, because they assume (and found exhortations upon the assumption), that the people could and ought to see the manual acts. There is a sermon by Bishop Beveridge, on the Excellency and Usefulness of the Book of Common Prayer. It is, I believe, in the edition of his general works,* but I have it in a separate pamphlet, published in 1682. He had been restoring his church, and was re-opening it, and, among other things, he had set up a chancel screen, and he justifies the use of a chancel screen, on the ground that the communicants ought to be placed * Beveridge's Works by Home, (1824), vol. ii., p. 6. and from the writings of Beveridge^ Rorneck, Ken, 687 apart all together within the chancel, in quietness and tranquillity : " Furthermore," he says, " it is not only convenient, but in some sense necessary, for every communicant to observe and take special notice of the several circumstances which our Lord hath ordained to be used in this sacrament, as the breaking of the bread, and the consecrating both of that and the wine, to represent his death, the breaking of his body, . . . ." And so on : " But this cannot be so well done, except there be a place set apart for them, where they may all be placed about or near the Communion Table, and so behold what is there done at the consecration of the elements." Your Lordships will recollect that in the charge against the Appellant in this case, it is averred that the people could not see what was done. Then again among the writings of Homeck, Vicar of All Saints, Oxford, and afterwards Canon of West- minster, and Preacher at the Saroy, there is a treatise on the Sacrament called " The Crucified Jesus " (edition of 1700, p. 112). He says : "See here what reflections thou art to make, when thou seest the holy bread broken before thine eyes in this Sacra- ment." And at p. 580 there are particular acts of devotion at the acts of Consecration, and at the minister's breaking of the bread there is a particular Prayer to be used. So too. Bishop Ken in his "Exposition of the Church Catechism," (Eound's edition of his Works, 1838), p. 326, says : "When at Thine altar I see the bread broken, and the wine poured out, oh, teach me to discern Thy body there. Oh let these sacred and significant actions create in me a most lively remembrance of Thy sufferings." So that, my Lords, he relied on the communicants seeing it as a matter of devotion. Bishop Patrick writes precisely to the same effect 588 Patrick, and Wilson. Rubric not marked for in a passage in his " Mensa Mystica, or a Discourse concerning the Sacrament." At p. 277, (I am quoting from an edition published in 1677), he says: "When you see the minister stand at the Table of the Lord " — the preposition there is not insignificant; he does not say "before" but "at," " to consecrate the bread and wine by prayer, and the words of Christ's institution, then send up an act of wonder and adoration;" and in p. 279 we find this : " When we see the bread broken and the wine poured out, it is a fit season to entertain ourselves with these three meditations, . . ." My Lords, I will only trouble you with one more of these quotations. It is from Bishop Wilson, who is a very great authority, and certainly was not a Low Churchman. At p. 275 (Library of Anglo- Catholic Theology, 4 Wilson's Works), is a treatise called an ' Instruction for the Indians.' It is a supposed conversation between a missionary and one who is willing to become a convert ; and the Indian says, " Let me know how this Sacrament is observed amongst Christians." The missionary says : " They do it after this manner : First, the minister of Christ placeth, or causeth to be placed upon a table in our churches, a portion of bread and wine in the sight of all the people." He then describes the meaning of this, and then proceeds : " At the same time he breaketh the bread into pieces and poureth the wine into a cup, to represent unto our senses, by these outward and visible signs, the death of Christ, whose Body was broken and Blood poured out upon the Cross." There is another observation to be made upon this point, namely, that the rubric now under discussion was not marked for alteration in 1689. There was a great disposition in 1689 to conciliate the Dissenters, and it was proposed that the rubrics should be, as far as possible, modified to meet their objections. I have the book here containing the account of the alterations proposed : (Alterations in the Book of alteration in 1689. Further arguments as to '^before." 589 Common Prayer, prepared by the Eoyal Commission for the Ee vision of the Liturgy in 1689. Printed by order of the House of Commons, 1859), and there is no trace of any proposed alteration on this point, or of any objection made upon it. But to return to the word " before." A man is standing at a table, whether he is facing the table or not. But the object of this rubric was not only to ensure standing as opposed to kneeling (for which end the insertion of the word " standing " was alone required), but also to provide that the minister should turn to the Table. But the expression " standing to " would not be good English, and on this account, perhaps, they said " standing before," which may be taken as a concentrated expression for standing at and turning to. They could not say " turning to," because this might allow of his kneeling at the time, but they wished to lay an emphasis on the word '' standing ; " and, as they could not say " standing to," they therefore said " standing before." Now my friend. Sir James Stephen, has contended for great liberality in the construction of these rubrics, and says that they define very little. Perhaps that may be the case as to some of them, but it is not the case here, because here is an explicit direction for an act to be done " before the people." Then my friend says, an officer would be before his regiment if he was marching before them ; but, in that view, the words ", before the people " would be surplusage, because if the priest was standing before the Table, he must necessarily be in that sense before the people. Then an argument is drawn from the Marriage Service, where the married people are directed to "kneel before the Table ; " but when that expression originally came in, which was, I think, in 1552, the married people were to receive the Communion. There must, therefore, have been a Communion, and therefore the Table would have been moved down into the church. Those words have been retained 590 " Before the Table " Marr. Ser. DurelVs translation. "without alteration in the present Prayer Book, but that is the history of their origin. But take the words as they stand, and what do they shew ? They show that the married couple, kneeling as they do now before the long side of the Table with their backs to the congregation, are before the Table ; but they do not shew that in no other position would they be so. In a crowded parish where there were a great many marriages, would your Lordships say that if there were more persons to be married than could be accommodated at the long side of the Table, they would break that rubric by kneeling at the ends of the Table where the rails go round ? I should humbly conceive not. Now, my Lords, for the purpose of interpretating the language used, and not as an authoritative exposition of the meaning of the Prayer Book, perhaps I may be allowed to cite a translation of the Liturgy into French, The history of that translation is, that it was drawn up by command of Charles II. In the Calendar of State Papers Domestic, Charles II., for 1662, p. 508, is to be found the order of the Krag, " That John Durell's French Translation be used, as soon as printed, in the parish churches of Guernsey and Jersey, and other French congregations." I cite this as a translation made by persons of eminence at that time ; and it is very remarkable that the word " before " in the rubric of which we are speaking is not the same word as that in the Marri9,ge Service. In the Marriage Service it is, *' L'homme et la femme itant devant la Table ; " but in this rubric before the Communion Service the words are these : " Ahrs k pritre se tenant dehout d la table en sorte qu'il puisse d'autant plus ais^ment et avec d'autant plus de bien- seance rompre le pain devant le peuple et prendre la coupe entre ses mains, il dira, etc" The Lord Chancellor. — What is the date of that translation ? Mr. Shaw.— The date of the book is 1667, and I Not ^^back to peopW^ during Prayer of Oonsecration.691 have referred your Lordships to Charles II.'s order for the printing of it. That order is dated 1662. Now, my Lords, Sir James Stephen seems to have admitted that, although there is great laxity in the rubric of the Communion Service, the minister is obviously bound to face the people while reading the sentences and exhortations addressed to them. Must he not much more face them when he is expressly told to do an act before the people ? There is a passage in L'Estrange's 'Alliance of Divine Offices ' which shews the importance attached to the North side. The first edition of the ' Alliance of Divine Offices' was published in 1659. L'Estrange, speaking of the rubric at the beginning of the Com- munion Service, says, " 'As for the priest standing at the North side of the Table,' this seemeth to avoid the fashion of the priest's standing with his face towards the East, as is the Popish practice. So the MS. Collections of a Learned Man." The Loed Chancelloe. — Of what time is he speak- ing ? There are parts of the rubric which clearly speak of the North side. Me. Shaw. — ^Yes ; but he held that it governed the whole service, because your Lordships know the Popish practice is more especially for the priest to stand with his back to the people, when using the Prayer of Consecration ; he says that is the Popish practice. Well then, my Lords, if it is shewn that the words " before the people " are equivalent to "in their sight," then the question arises — how are the words "before the Table "to be dealt with ? Assume that they mean with the back to the people, and it follows, I submit, that in that case they cannot be applicable to the Prayer of Consecration, because they would make the rubric repugnant and insensible. While it directs acts to be done in the sight of the people, it would cause the body of the person doing these acts to hinder the people, as Wheatley says, from seeing the acts done. It follows, therefore, that by necessary 592 " North side,'''' applies generally to Minister's position. implication a change of position is to be made. A change of position directed by implication is no novelty ; it occurs, as my friend, Sir James Stephen, admits, in regard to the sermon, for there is no direc- tion for the priest to leave the Table to go to the pulpit, except by implication, because after the sermon he is told to return to it. Now, my Lords, I would wish to say one word upon the words " North side." I think that the North side did originally point to the longer side of the Table, and did indicate the position of the Table where the North side coincides with the long side, as my learned friend. Dr. Stephens, argued ; but arguing, as I am now doing, on the assumption that the Table may stand at the East end with its ends North and South, — on this assumption, I say the words " North side" must mean North end, or else the word "North" would have no significance whatever ; it would be absolutely contravened if the minister when directed to stand on the North side stood elsewhere than at the North end. That is the way I should understand the words North side. And I submit that the North side rubric is generally applicable to the minister's place, except where it is otherwise expressed; as is stated in your Lordships' Judgment in the Purchas case, * it plants him at the North, looking South, in all positions of the Table. Now why is this rubric to be spent and exhausted at the end of the first two prayers, as is argued on the other side ? "What is there peculiar about those prayers to justify such a construction ? Why should not it continue to govern? My position is that the last thing ordered continues unless expressly or by implication there be a manifest direction to change it. There is a direction to change it in preaching the sermon by implication, because the minister is told after the sermon to return to the Lord's Table. "When the Table stood East and West in the body of the church, this rubric would suffice * See Law Eeports, 3 P. C, pp. 659, 663. ^'Before the Tahle,^^ limited to ordering of Elements. 593 for all purposes, for h.e -would naturally stand in the middle of the long side with the elements hefore him. But when the Tahle stands North and South, a dif- ficulty may arise as to the ordering and as to the readiness and decency of the act of consecration ; and hence to meet this particular case the rubric directs him to stand " before " while ordering the elements. This is the- first construction I am going to submit to your Lordships ; but I am going to submit two alternatives: first I say that the words "before the Table " — ^if your Lordships should hold that they apply strictly to the long side — are exhausted by the act of ordering the elements, after which the minister returns to the North side. That seems to have been the construction maintained in the Judg- ment in Hebbert v. Purchas. Secondly, if your Lordships think that the word "before" as well as the word "standing" overrides the whole — ^not only the ordering, but the Consecration Prayer, then I should contend that ex necessitate rei the words "before the Table " must be taken in such a liberal sense as not to put them in conflict with the words " before the people." But first of all I submit there is a great deal of ground for saying that .the words " before the Table " are exhausted by the act of ordering the elements. The Loed Chief Baron. — Where would you say the priest should stand if the church were North and South and yet the Table is placed altarwise ? Me. Shaw. — I think the point of the compass is simply used to signify the dexter side of the Table, if the Table is against the wall. That very case arose in Hehhert v. Purchas^ because there, as is also the case in one of the Chapels Eoyal, the Table did not stand, as usual, at the East end. The Loed Chief Baeon. — If the Table is altarwise and the altar is due South, where is the priest to stand ? Me. Shaw.— At the dexter side, that is at the QQ '594 After- " ordering ^^ minister to return to North End. proper right, what would be the North side if the Table stood at the East end. The Loed CnrEP Baron. — He is to stand then on the East side ? Mk. Shaw. — Yes, he would do so in such a case, because the letter must be made to give way to the spirit. The rubric was drawn up on the presumption that the churches would be built East and West, and if they be not, it is inevitable that the letter must give way to the spirit. But though this rubric is superfluous if the Table stands East and West, for then the North side will correspond with the long side, and the priest will throughout stand before the Table, and it seems to be conceded that when he stands at the long side of the Table he stands before it whatever its position. The rubric then in such a case is not repugnant or insensible ; and on the other hand, when the Table stands North and South, it is expedient to have such a rubric, in order to secure the convenient ordering of the elements. It follows that everything is explicable upon that hypothesis. The direction to stand before while ordering meets a temporary exigency in cases where the Table stands North and South, viz., a difficulty as to the act of ordering.; but as soon as the ordering is over the difficulty is over, and the words "before the Table" inserted to meet that difficulty are spent, and then the minister must return to the North side by virtue of the initial rubric which governs the whole unless where otherwise expressed.. The same thing is neces- sary when the minister is directed after preaching to return to the Table. The North side rubric must be carried on, or else there is nothing whatever to shew at what part of the Table the minister is to place himself. So after receiving and placing the alms on the Table there is no direction to return to the North side, and my friend 'Sir James Stephen seems to draw the inference that in that state of things the minister is to be free to do whatever he likes ; but I apprehend that your Lordships will be more incliired to hold that Wording unaccountable, unless for "orderinff." 595 the rubric as to the North side determines the position where there is nothing contrary to it. Then the wording of the rubric is observable. The l-ubric had previously stood thus : " Then the priest standing up shall say the Prayer of Consecration as followeth." If it had been intended that the words "before the Table" should govern the whole of the saying of the Consecration Prayer, why were not those words simply inserted ? — " Then the priest standing up before the Table shall say as follows," Instead of this, the whole construction of the sentence was changed, and they said : " 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 " — without defining where. Surely so marked an alteration in the form of the sentence makes it at least open to be held that the two portions are independent, i.e., that the directions for ordering the elements are one thing, while saying the Prayer of Consecration is another. The Court, therefore, will not, I submit, presume that such a vast alteration as the placing the minister with his back to the people was made by language which is by no means the most natural and ready language for the purpose. Then again, why is there any mention at all in this rubric of the ordering of the bread and wine ? If the minister stands at the middle of the side of the Table with his back to the people throughout the Prayer of Consecration, why is there any necessity to say any- thing about "readiness and decency?" He would not have the slightest difficulty or embarrassment in ordering the bread and wine. On the other hand, according to the construction for which I now contend, there is ample reason for the words " that he may with the more readiness and decency break the same," because in some churches there may be a little prac- tical embarrassment in performing the manual acts from the North side when the Table is at the East end, QQ 2 596 How difficulty was met in Scotch Book 6f in 1662. unless some little arrangement, such as is directed here to be made, take place previously. This comes out and is made the very most of by Laud in his defence of the Scottish rubric, which I have read to your Lordships. The Scotch rubric having placed the priest at the middle of the Table during the Prayer of Consecration, the Scotch objectors found fault with that. Laud defended it by alleging a difficulty in consecrating from the North end, and this difficulty appeared to him to be one of very great magnitude. How did he cure it? By sending the minister to a different part of the Table to consecrate. He was to stand at such part where he could use both his hands, and, having directed this — which was a sufficient direction for the purpose — Laud said nothing whatever about the ordering of the bread and wine, an argument that any such words are quite superfluous if the minister is meant to stand before the Table at the consecration. That was the way in which Laud met the difficulty in the Scotch Prayer Book. In England, in 1662, this difficulty seems not to have been altogether denied, though considered to be of less importance and to be capable of solution by a preliminary arrangement. The minister is set free from the North side position, that he may so order the elements as to overcome any little subsequent difficulty in consecrating from the North side, after he has re- turned to it. For this purpose, the words are strictly appropriate, but they are not appropriate, supposing the Eastward position in consecration to be law, be- cause they are then superfluous, and, in fact, were, as such, omitted in the Scotch rubric, which did send the priest to the Eastward position for consecration. Then, turning to the Judgment in Martin v. Mackonochie, I find it said* : " The priest is intended to continue in one position through-, but the prayer, and not to change from standing to kneeling or vice versa ; and it appears to their Lordships equally certain that the priest is intended to stand and not to kneel." * Law Eep., 2 P.O., 382. ■ Jud. Committers Judg*- in Martin v. Mackonoehie. 697 And I submit that that was the only point in their Lordships' mind. Then they go on : " They think that the words, ' standing before the Table,' apply to the whole sentence ; and they tMnk ' this is more apparent by the consideration that acts are to be done by the priest before the people," I would draw your Lordships' attention to this — in that very judgment their Lordships noticed the fact that acts are to be done before the people : " Such as taking the paten and chalice into his hands, break- ing the bread, and laying his hand on the various vessels, which could only be done in the attitude of standing." What is here insisted upon is not that acts had to be done merely which require standing, but that acts are to be done, "before the people," which could only be done in the attitude of standing. It seems incom- prehensible why their Lordships should have inserted the words "before the people," if they really thought that they were laying down a rule which would compel the priest to do these acts so that the people could not see them done. But, in fact, there is nothing to show that their Lordships understood the term, " before the table," to mean the middle of the West side, and the circumstance, that they distinctly assumed that the manual acts were to be done before the people, indicates that they may have taken it to mean " before the North side." Something seems to have taken place in the argument in Martin v. Mackonochie which drew forth an observation from Lord Chelmsford.* I do not know whether your Lordships would like me to quote it or not, it is to. the effect that the Table was not always, at that time^ at the end of the church. The Lord Chancellor. — I do not think you need go into that, it really was, not the point at issue in Martin v. Mackonochie. Mr. Shaw. — If this construction were adopted, viz. * See 4th Eep. Eit. Cmb., p. 1»4. 598 '^Standinff^' applies to prayer, ^'before the Table" does that the words, " before the Table," apply only to the ordering, then it may be asked, is there anything at all left to show that the priest is to stand during the Prayer of Consecration ? I submit no difficulty can arise as to that ; first, because the reason given by the Court, that he has acts to do before the people which can only be done with readiness and decency in the attitude of standing, remains wholly unaffected ; and in the next place because the word, " standing," does, as their Lordships say, apply to the whole rubric in this important sense, that it is the last position named, and there is no direction to change ; and that is the ground which is more than once relied upon in the Judgment in relation to other parts of the same Service. See the observations at p. 381. But then why do not the words, " before the Table," equally apply to the whole sentence ? The answer is, because there is an implied direction to change, before saying the prayer, by the use of the words " before the people ;" that is Wheatley's view, and that evidently must have been the Non-jurors' view according to that rubric of theirs which I just now referred to, as well as according to that which my friend. Dr. Stephens, quoted to the effect that, wherever the words, ' ' before the altar," are used they are to mean the North side. The con- struction for which I am now arguing makes no part of the rubric unmeaning or surplusage, but gives full effect to every word. It is sanctioned by old writers on ritual, writing within a few years of the time that the rubric was drawn, (for instance NichoUs in 1709). But the view contended for, on behalf of the Appellant, asks us to suppose that the priest is directed, for the first time, to turn away from the people by the very rubric which, for the first time, directs him to do certain acts before them. But secondly, if your Lordships should hold that the words " standing before " do apply to the Prayer of Consecration, and not only to the time of ordering the elements, I should, in that case, submit that the manifest intention must be carried out by giving such not. But if " before the Table " apply to prayer, 599 a sense to the words, " before the Table," as to prevent their being repugnant to or inconsistent with the words, " before the people." When the Table stands in the midst of the chancel, (as seems to be intended by the 82ad Canon, which says that it is to stand "in so good a sort within the church or chancel, as thereby the minister may be more conveniently heard by the communicants in his prayer and ministrations,") in that case there might be room to group the people round the Table on all sides. The diflS.culty only arises in the one particular case, when the Table is against the East wall, and when therefore the people cannot be gathered round it. This happens now to be the usual case, but legally speaking, looking to the rubric and canon, and to the decisions as to the moveability of the Table, such as Faulkner v. Litchfield, (1 Eobertson's Eecl. Eep., 184), and lAddell v. Westerton, it can hardly be called the nor- mal case. This being so, there is nothing paradoxical in saying that the rubric, in this special and abnormal case, must receive a reasonable interpretation in order to prevent its object and spirit from being defeated. If the position at the East end be allowed, in consequence of your Lordships declining to put a rigid construction up- on the rubric, canon and injunction, as to the place of the Table ; then the Court will, I submit, also decline to put such a construction on the words "before the Table" in the Consecration rubric, as will defeat the object of that rubric — namely, the more ready and decent fraction of the bread before the people It is analo- gous to the case put to me by the Lord Chief Baron just now, that when a church was not properly orientated, a liberal construction must necessarily be given to the phrase " North side." There is no positive law that churches shall stand East and West. The North side rabric is simply based upon the assumption that they do stand East and West, but if they are not East and West it must be modified. But in any case, I contend that the Court will 600 it must not be repugnant to " before the people." subordinate the words "before the Table," which are not the point and object of the rubric, to the words "before the people," which do express the object of the whole clause, and will, if necessary, modify the former words in order to accomplish the object of the latter. The principle on which I am relying is very concisely laid down by Chief Justice Jervis in Edwards V. Hodges, (15 Common Bench, p. 484.) He says : "The best rule for the construction of statutes is, that laid down by Burton J. (in Warburton v. Loveland d. Ivie, 1 Hudson and Brooke, p. 648.) I appreherd, (says that learned Judge) it is a rule in the construction of statutes, that in the first instance, the grammatical sense of the words is to be adhered to. If that is contrary to, or inconsistent with, any expressed in- tention, or any declared purpose of the statute, or if it would involve any absurdity, repugnance, or in- consistency in its different provisions, the grammatical sense must then be modified, extended, or abridged, so far as to avoid such inconvenience, but no further." Now I submit that it is certainly inconsistent that the rubric should direct a man to stand with his back to the people for the express and declared object of doing an act before them. But in fact the words " at " and "before" are not words of a very determinate sense. Scholars differ very much as to their import. On this point, I would refer your Lordships to Coverdale's Works, (Parker Society, p. 471), where in a translation of a Danish order for the Communion, he says : "At the quire door, beside the Table of the Lord, stand two good sober singing men, which (commonly a quarter of an hour afore the sermon) begin a psalm ; and all the people both young and old, with one voice, do sing with them, after such a fashion that every note answereth to a syllable, and every syllable to one note commonly and no more, so that a man may well understand what they sing. But first for the most part, they sing the Paternoster in their mother tongue, and then the psalms, sometimes more, sometimes fewer, according as the time requireth, but all in their own language." How used hy Goverdale, A. Lasco, Welsh P, Bk. 601 Then after the sermon it says : " So after that lie hath wished the peace of God unto his audience he cometh down. Then all the congregation and church in manner aforesaid, do sing the creed or belief in their own mother tongue. And when that is done, the curate or else his coadjutor, standeth up afore the Table of the Lord." We should have expected him to say behind it. Because the Table was at the choir door, and he was standing with his face to the people, and was clearly behind the Table, yet that is called " afore the Table." Then, my Lords, I will only remind you of a passage which I quoted from A. Lasco (ante p. 579) in which he uses the phrase Ante mensam instructam. It is quite evident from the context of the passage, that the minister sat behind the Table. Again, the Non- Jurors must have thought that the word " before " might be used of the North side, or else they would have altered it instead of merely adding an interpre- tation clause to the effect: "that the word 'before' should always mean at the North side." Interpre- tation clauses are generally used not for assigning to a word a meaning which grammatically it cannot bear, but for selecting one out of two or more mean- ings that it can bear. In the Welsh Prayer Book, which my learned friend, Dr. Stephens, put in yesterday, the words " before the Table," as I am informed, clearly mean "at," precisely the same as in the French Prayer Book from which I read to your Lordships just now ; there is no stress on the word " before " whatever, and it must be remembered that that was a Prayer Book translated under the express provisions of the Act of Uniformity of Charles 11. Moreover, in this Welsh Prayer Book, the word "before" in the Marriage Service is different, and means strictly " before." When the Table stands East and West (which to say the least has never been forbidden) it seems 602 Certain meanings inapplicable when Table E. 6r W. admitted that to stand in front of the long side of .the Table would satisfy the North side rubric, and that the priest would stand there throughout the service because in that case there could be no reason for changing and consequently in that case the word "before" would simply denote the long side. If this be so, the words " before the Table " have no relation to the position of the people, because they would mean simply " before the long side of the Table." It does not matter where the people are, they are entirely dismissed from consideration in defining the meaning of the words "before the Table." Nothing is taken into account except the way that the Table is turned. If that be so, the notion that the words necessarily mean "between the Table and the people" must be abandoned, because in one case, at all events, they can have no such meaning, and therefore they can have no such indispensable meaning in any case. If then it be admitted that the priest would comply with the rubric by standing at the North side during the consecration, whenever the Table stands East and West, all the argument about facing Eastwards in prayer is at an end, because then he would face South- ward during the whole of the service. But if the words merely refer to the long side^ what do they mean when the Table is square? There is no prohibition against having a square Table, nay, it is said that there is one now in a church in Yorkshire All this shews the great difficulty involved in the Court's being governed by considerations of this kind instead of by the emphatic words "before the people," which are the main guide to the interpretation of this rubric. If the minister may stand facing South with his side to the people when the Table stands down in the chancel of the church, it cannot become in itself improper that he should so stand, simply because the Table occupied another position in the church. In fact, when the Table is at the East end, considerations of greater or smaller size, with regard to the sides of the Table, give way. The word " side " more naturally means the long; If Eastward Position he right, Ordinaries contradict 603 side, but not necessarily ; and hence, when the Table stands at the East end, with the long side against the wall, it must mean the North end, or "north " would be wholly disregarded. The words, " standing before the Table," I submit naturally point to one construction, which perfectly harmonises them, viz. : a combination of standing at and turning to the Table — the expression has refer- ence to the acts to be done there. But again, assuming that the Ordinary has a dis- cretion as to where the holy Table shall be placed at the time of Communion, I submit that the consequence of holding the Eastward position in Consecration to be right and proper, would be that all the Ordinaries of England have exercised their discretion improperly, and for the following reason : The rubric says that the Table is to stand, at the Communion, in the body of the church, or in the chancel, where Morning and Evening Prayer are appointed to be said. Assuming then that, at the discretion of the Ordinary, the Table may stand in the chancel, it is not said at what part of the chancel, but the 82nd Canon supplies the means of resolving this doubt, and not being contradictory to the rubric it will be read with it. The Canon says : " The Table is to be placed in so good a sort, within the church or chancel, as that the minister may be more conveniently heard." The Ordinary, therefore, has a limit put to his discretion by the Canon. He is not so to exercise that discretion as to place the Table in a part of the church or chancel where hearing will, of necessity, be very inconvenient. Suppose the minister to stand at the North side throughout, it may be that the East end of the church is not a place inconvenient for hearing; but if the minister is required, by the true meaning of the rubric, to turn his back to the people, in saying the Prayer of Con- secration, it is obvious that the Table, when placed at the East end, stands in apparent conflict with the language of the Canon. It stands, if one may be permitted so to express it, in so had sort in th» 604 Can. %1ly -placing the Table at E. end of chancel. cliancel that, thereby, the minister may be less con- veniently heard than at any other place in the whole church. To place him at the extreme East end, with his face to the wall, is to assign to him the worst position for being heard that can be found, and a position where it is practically impossible that his actions can be seen by the people. Such a position contravenes alike the two principles of " more con- venient hearing," and " of breaking the bread before the people." If the true place of the minister is with his back to the people, while saying the Prayer of Consecration, the Ordinaries of the whole country, by placing the table at the East end, have been exercising their discretion in a manner not in conformity with the principles by wliieh the b2nd Canon declares that it ought to be regulated. This your Lordships will not lightly assume. In other words, when the Ordina- ries assented to the present position of the Communion Table, they must have held that the minister was not to assume the Eastward position, or else they must have acted contrary to their duty, and I submit, with the greatest deference, that for the future, if your Lordships hold that the Eastward position is the legal position, it wiU be extremely difficult for the Ordinaries to exercise their discretion in conformity with the 82nd Canon in allowing the Table to stand against the East wall, because the rule laid down is that it is to stand so that the minister may be con- veniently heard. But this position against the east wall is the most inconvenient position for hearing in the whole church, if the Table be placed altarwise, and the minister stands with his back to the people. Thtjesdat, Febrtjaet 1. The Lord Chancellor. — ^Before you go to the re- maining parts of your argument, there is a question which one of their Lordships wished me to ask. In the Eeoord which we have in Cardwell, of the proceedings of the Savoy Conference, there is this sentence in the rubric — "Before the Confession, then shall the priest Inqwiry hy the Court — whether the Puritans replied 605 or the bishop being present, stand up, and turning himself to the people, say thus " — the exception is : *'The minister turning himself to the people is most convenient throughout the whole ministration." That is an exception, apparently relating not to any particular prayer, but to the whole ministration, and suggesting that the minister should turn always to the people. The answer of the bishops to that is this : " Minister's turning ; the minister turning to the people is not most convenient throughout the whole ministration. When he speaks to them as in the Lessons, Absolution and Benedictions, it is con- venient that he turn to them. When he speaks for them to God, it is fit that they should all turn another way, as the ancient Church ever did.'' The answer appears to relate not to a particular prayer, but to prayers in general. Are you aware whether anything further came of that exception and answer, whether there was any further reply ? Mr. Shaw. — I am not aware that there ever was. My answer to it, if it is urged as applicable to the Prayer of Consecration, is this : that the Prayer of Consecration is not merely a prayer, but an act. It involves certain acts, and acts specifically directed to be done before the people. SiE James Stephen. — Your Lordships asked my learned friend, Mr. Shaw, a question which I am in a position to answer, namely, whether anything further passed upon the exception and reply which your Lord- ship read. There is a further rejoinder to that which is published in a book called ' The Grand Debate.' It is the Puritan report of what occurred in reference to the Savoy Conference, p. 125.* The Puritan party say : " It is not yet understood by us why the ministers or people (for which you mean by ' they all ' we know not) should turn another way in prayer ; for we think the people should hear the prayers of the minister; if not, Latin prayers may serve; and then you need not except against extemporate prayers, * Eeprinted in Documents relating to tte Settlement of 1662. (Kent & Co. 1862) p. 313. 606 to the Bishops' Answer, ^^ Minister's turning ^^ Sfc. because the people cannot own them ; for how can most of them own what they hear not, whatever it be ? As for Augustine's reason for looking toward the East when we pray (utadmoneatur animus ad naturam excelkntiorem se convertere, id est, ad Domi- niim ; cum ipsum corpus ejus, quod est terrenum, ad eorptts excellentius, id est, ad corpus cceleste convertitur) we suppose you will not expect that we should be much moved by it, if we should, why should not we worship towards any of the creatures visible, when we can pretend such reasons for it as minding us of superior things? And why should we not look Southward when the sun is in the South ? And we fear the worshipping towards the sun as representing or minding us of Christ's heavenly body, is too like to the prohibited worshipping before an image, and too much like that worshipping before the host of heaven, in which the old idolatry consisted, or at least which was the introduction of it ; of which our Protestant writers treat at large against the Papists, on the point of image worship. See also Vossius de Idolatria, liber ii., cap. 23, etc." That is all I know about it. Mr. Shaw. — Then, my Lords, my answer would be twofold. In the first place, what we stand upon, as the ultimate result of all that took place at the Savoy Conference and elsewhere, is the Act of Uniformity and the Prayer Book. We have no reason to believe that that answer of the bishops was adopted by the Legislature, and it is the final settlement— the Act of Parliament passed by the Legislature, which must decide the question. But, my Lords, I further say that (even assuming that there were such a general proposition), the case, as regards this prayer, is taken out of it by the fact that it is not a mere prayer, but regards certain acts, and also because there is a specific piece of legislation specifying that these acts are to be done before the people, and so that the people may see them, which involves the not standing with the back to them. The passage, as I caught it, does not I think show anything more than that the Puritans held to their objection, and very possibly the Legis- lature may have agreed with them, but I do not admit that it is in any way conclusive. Perhaps I may say one word as to what my friend Mecapitulation of Argument as to ^^back to people." 607 Sir James Stephen said on the point of usage ; I have got his words down on my notes, I think correctly. The offer which he made to your Lordships was this : "I could show striking instances of the Eastward position as far back as the middle of last century." Supposing that that evidence had been admitted, and also that my friend had proved all that he asserted, I venture to say that his offer, to use the old pleading language, is pregnant with an admission, that these were instances, and not a continuous and general much less universal usage. I think I am entitled to say that he did not submit to your Lordships that he could have proved more than certain instances, and not any continuous and general usage on his side. Perhaps also your Lordships will allow me in half- a-dozen words, to repeat the points that I wish to lay before your Lordships as regards the " back to the people." They were these. The object of the rubric is, the doing certain acts before the people with readiness and decency, and hence that must be the principal point to be kept in view. Then the words " before the people," when their sense is ascertained by the appropriate means (as laid by the House of Lords in Shore v. Wilson, 9 Clark and Finnelly, 356, as to admitting extrinsic evidence to interpret documents), are found to mean in the sight of the people. That being so, there are two ways of dealing with the phrase "before the Table," in order to in- terpret it in harmony with the words "before the people." First to hold that the words " before the Table " refer to the time of ordering the elements only, the minister returning to the North side to consecrate; or secondly, to hold that the words "standing before the Table" apply to tho Prayer of Consecration, as well as to the ordering, but to give such a sense to the words " before the Table " as does not limit it to the West side, and for such a sense I endeavoured to shew your Lordships there were sufficient authorities. In Martin v. Mackonochie no question arose, and nothing was determined, as to 608 Wafers — evidence of shape and appearance. the sense of " before the Table." And lastly, the dis- cretion of the Ordinary, (assuming him to have a discretion) as to the place of the Table is limited by the considerations of convenient hearing laid down in the 82nd Canon, and it would be an improper exercise of his discretion, because in direct contravention of the 82nd Canon, to place the Communion Table at the East end of the church, if that involved the minister standing facing the wall and with his back to the people, because that would probably be the most in- convenient place for hearing in the whole church. III. Wafers. Tour Lordships will now permit me to go on to the question of Wafers, about which there has been some little controversy between us. The thing in question was called a wafer throughout the trial in the Court below on both sides. We gave prima facie evidence, from its shape and appearance, that it was a wafer, and that is exactly what we did in the Purchas case, and what has always been done, I believe, in these Cases. As to the mixture of water with the wine, we called a witness who stated that, to his impression, it had the appearance of water. We could not do more. We could not prove that it was actually water. It was a white colourless liquid, like water. Here we gave evidence that this was a thin white substance, having the appearance of a wafer. As your Lordships will see, there is a very peculiar diflficulty connected with this subject, because, of course, no right-minded person would wish that any- one should go up to receive the Holy Communion for the purpose of being able to prove strictly and legally what the constitution of the wafer was, and should take the wafer home with him and have it analysed. It would be abhorrent to every one's feelings. We have given prima facie evidence, and it is for your Lordships to say whether it was not for the other, side to shew anything that they could shew, as regards the constitution or substance of this wafer, Whether Sir J. Stephen agreed to admit Wafers. 609 supposing it to be at all material. There is no doubt that there was a little misunderstanding between Sir James Stephen and ourselves at the hearing. At p. 12 of the Appendix, your Lordships wiU see Mr. Fitzjames Stephen says : "I can save my friend trouble. We do not deny the wine — we really hardly deny anything in the Case. Mr. Shaw : Will you tell me what you desire to be proved ? — you see you have denied everything in your Answer except one thing. Mr. Fitzjames Stephen : I will tell you what we should like to have proved. I will go through the Articles and teU you." Then he goes through the other Articles, and then he says : " The wafer bread, I will admit that, subject to one obser- vation that I dare say you will admit on your side, that is, that the wafer bread was used, but that as used it was broken. Mr. Shaw : I am afraid we do not admit that. Mr. Fitzjames Stephen : Then you must prove it." Now, my Lords, Sir James Stephen says here (and if he says it, I am perfectly certain it was his meaning at the time), that he meant that to be a compromise which was offered, and that it proved abortive. But that is not the way I read it. I have no doubt he meant it so, but the question is, did he give us sufficient opportunity of understanding that that was his meaning. When I say, " I am afraid we do not admit that," he does not say '* then you must prove your whole Case as regards wafers," but " you must prove «V," — ^that is, that the wafers were not broken, and nothing else; and that is the point which we went on to prove, and, under that impression, we asked questions as to that and nothing else. And when my learned friend him- self, at p. 29, examines his own witness, your Lord- ships will find at line 22 that the question he puts to him is, " It has been admitted you used these wafers ? " that is, the wafers as charged — the wafers that we re- lied upon — the wafers that were the subject of dispute throughout. He puts it to his own witness, " It has been admitted you used these wafers ? " Mr. Eidsdale 610 The ^^ superstition^'' referred to, connected with shape. answers "Yes," and then my learned Mend goes on and asks him simply about the breaking, and no other matter whatever, which certainly confirmed in our minds the impression that everything was admitted except the question of breaking. That was the state of the Case in the Court below. Tour Lordships see that if the objection as to the, composition of the wafer had been raised we might have given evidence, or done some- thing more, but then it was not raised. I do not know whether my impression is correct, but I have always understood that your Lordships are rather reluctant here to enter upon any question which might have been raised, and was not raised, in the Court below. Then that superstition was connected with the wafers appears by the words of the rubric. The words of the rubric expressly connect superstition with them. It is " to avoid dissension and super- stition." This superstition must surely have been associated with the shape, because it is the shape and appearance that the laity would perceive and be conscious of; and, if tbe shape be immaterial, it really comes to this, that you may use any shape in the Communion bread ; and your Lordships, I think, could hardly hold that any shape whatever would be admissible. Here the shape is the Eoman Catholic shape — a shape which has been supposed to create superstition ; ihat is the shape which the appellant uses. The Loed Chancellor. — Where do you say there is a reference to the shape ? Mr. Shaw. — ^No ; I say there is a reference to superstition, and I say that the shape and appearance are the facts that the laity would ordinarily be most conscious of. It is not the taste of the wafers, but the appearance which has given offence, and which has been connected in the mind with, the services of the Eoman Catholic Church as distinguished fr9m the Protestant Church. I do not think people trouble themselves very much about the exact recipe for " It shall suffice^"" must he imperative. Scotch rubric. 611 making a wafer in the Eoman Catholic Church. It is the shape and appearance. Then I venture to say that the words "it shall suffice," in this instance, must be imperative, for this reason : If your Lordships compare the different rubrics on this subject, you will see that in Edward's first Book, dissension was to be taken away, and this was to be effected by having one uniform form, namely, the wafer. In Elizabeth's Eubric supersti- tion is to be taken away by having the common bread, bxit nothing is said about dissension. At the last review, in 1662, the two words are taken up and put together; superstition is to be avoided by having common bread, and this must be common„lp"ead only, or else dissension would not be avoided, because one church might have one thing, and another another, and people would quarrel about it, and uniformity would not be attained. • Then my learned friend relied upon the Eubric in the Scotch Prayer Book. Now, the Scotch Prayer Book is of no authority in this country, but it is a document which must have been in the hands of the authorities in 1662, and the only observation I have to make upon that is, that the Scotch Eubric did intend to allow wafer bread, and because it did intend it, it used words for that purpose which are not to be found in the English Eubric. Those who framed the English Eubric must have had this before them. The Lord Chancellor. — "What is the date of the Scotch Eubric ? Mr. Shaw. — I think it is 1636. It was in Laud's time. It is to be found in Keeling, p. 230 : " Though it be lawful to have wafer bread, it shall suffice that the bread be such as is usual to be eaten at the table with other meats, yet the best and purest wheat bread that conveniently may be gotten." My learned friend argues from that, that " it shall suffice " is permissive and not imperative. I argue on the contrary, that these words, by themselves, are not permissive; because when it was intended to make " it shall suffice " R R 2 612 ElisabeWs Injunction probably ultra vires— Xawc?. permissive, there was a remarkable parenthesis put in : "Though it be lawful to have wafer bread," and that was not adopted by the English Eevisers. The makers of the Scotch Book, who meant to admit wafers, used apt words for that end, and the omission of those apt words shows that the English did not intend the same construction. There was a great dispute about Elizabeth's Injunc- tion ordaining wafer bread, and the probability is that the Injunction was ultra vires. And for this reason I mentioned the point yesterday [ante p. 539) as to the difference between the 25th and 26th Sections of Eliza- beth's Act of Uniformity. The 25th Section, as to the ornaments of the church and of the ministers, gives the Queen power to take " other order," that is, order to vary. The 26th Section, under which this order as to wafer bread was made, only enabled her to enact further rites and ceEemonies. There was no power to alter anything: only to add. Her Injunction, I submit, was a contravention of the rubric in her Prayer Book, and, therefore, could have had no effect. This, in fact, was the very objection taken in Parker's time, and I think that objection must have prevailed, for this reason : that in Hargrave's State Trials, 13th day, at p. 899, these very remarkable words are given as used by Archbishop Laud. He says, when on his trial, "And for wafers I never either gave or received the Communion, but in ordinary bread." It is not merely that he never gave it, but that, through all his life — in all the churches where he had received the Communion, from his youth upwards — ^he had never received wafer bread or anything but common bread. "At Westminster, I know, it was sometimes used, but as a thing indifferent;" he mentions that as an excep- tion. It could not be a thing indifferent. That usage is good for nothing, because Queen Elizabeth's Injunc- tion was imperative, if it had any effect at aU. If Laud did not use it, we may be pretty sure that very few others did. It was quite the exception. That is aU I trouble your Lordships with upon that point. Crucifix. Romish doctrine worship of prototype. 613 IV. The Cetjcifix. Now, I have only two words to say upon the Cruci- fix. Upon that Sir James Stephen contended that the Eoman Catholic doctrine really was of that gross and material kind that it involved a certain kind of worship of the image. The Council of Trent, in the passage which is to be found in the judgment of the Court below, (L.E. 1 P.D. 352) says : " Quoniam honos qui eis exhibetur refertur ad prototypa qu8B illsB representant, ita ut per imagines quas osculamur et coram quibus caput aperimus et procumbimus, Christum adoremus . . . ." That is not a chance passage, for the Catechism of the Council of Trent, which is an authoritative inter- pretation of it, is in nearly the same words. In the passage at part 3 of that Catechism,, chapter 2, question 24, it is said : "The Pastor will not content himself with showing the lawfulness of the use of images in churches, and of paying them honour and respect : when this honour and respect are referred to their prototypes : but he will also shew that, up to the present day, this practice has been attended with great advantage to the faithful." Therefore the Church of Eome does, unmistakeably, say that the honour is to be referred to the prototype. Then, my learned friend says that this Crucifix is to be treated as a mere architectural decoration within the doctrine of Liddell v. Westerton. I have only one observation to make upon that. Tour Lordships will remember there was an Interlocutory application made here on the question whether the monition to abstain from all the practices complained of should be enforced or not, pending this Appeal. Your Lordships decided that it should be enforced pending the Appeal, with one remarkable exception, and that exception will be 614 Crucifix not a mere Architectural Decoration. found in your Lordships' judgment in the Eespondent's case, p, 16. Tour Lordships say : " The other point is different. I refer to the part of the decree which pronounces unlawful the setting up and placing on the top of the screen separating the chancel of the church and retaining there a crucifix ; and as to this, the decree directs the Revd. Charles Joseph Ridsdale to remove, or cause to be removed, this crucifix from the screen. Their Lordships do not desire to make any difference between this and the other parts of the decree as to what may be termed the merits ; that is to say, they do not by what they are going to order, wish to place that part of the decree in any different position from the other parts of the decree as regards the correctness of the decree itself." The Loed Chancellor. — Are you reading what was said on the application to stay proceedings ? Mr. Shaw. — Yes. The Lord Chancellor. — Surely nothing was said at all touching the merits ? Mr, Shaw. — No. But will your Lordships allow me to continue : " Tbey give credit on that part of the decree, as they do to the other parts of the decree, to that which is for the present the decision of the Court below; but they see that different con- sequences may arise, as to this part of the decree, from executing it, pending the decree. It is unnecessary to go into what those consequences are, beyond saying that it is, obviously from the nature of the case, at least possible that a subject which ought to be treated with the greatest reverence, might be accompanied with feelings of a different kind if the decree were in this respect in the first instance to be executed, and afterwards upon a reversal of that decree the process had to be repeated of making another change." My Lords, if it is not presumption to say so, I most entirely feel the wisdom of your Lordships' decree on that point ; but I do submit that if it had been a mere cross, not a crucifix, as in Liddell v. Westerton, your Lordships would have had no scruple in taking it down. It shows that it is something very much more, and attended with very different feelings, than a mere architectural decoration, which your Lordships would If vestments 6fc. allowed, must be enforced on all. 615 have ordered to be removed along with the other things complained of. In conclusion, I would venture to submit to your Lordships, with, great humility, that the Acts of Uni- formity are imperative. You are asked to allow this Appeal for the benefit of Mr. Eidsdale. If this Appeal be allowed, I humbly submit the consequence must be not merely to allow the Appellant to do and use the things complained of, but to enforce them on the whole body of the clergy, a vast majority of whom, as well as their parishioners, are opposed to them. KEPLY OF SIE JAMES STEPHEN. Thuesday, Febetjary 1. SiE James Stephen. — May it please your Lordships. It now becomes my duty to reply, and I hope that I shall be able to do so without any excessive trespass upon yoiir Lordships' time or patience. I think it will be the more convenient course, if I begin my reply with a word or two upon one particular subject, which is fresh in your Lordships' minds, and which involves some degree of personal responsibility on my part for the course taken by me. I refer to the 616 Reply of Sir J. Stephen — explanation of what observations which my learned friend, Mr. Shaw, has just made upon the subject of wafer bread. He says that a reason, at all events, if not the reason why further evidence was not given on the point m question, as to the substance of the wafers in the Court below, is to be found in the manner in which I conducted the case, and that I, by my cross- examination, and also by my offer to make an admission, if they on their part would make a corre- sponding admission, misled them as to the points which were to be taken in the matter. The Lord Chancblioe. — I do not think Mr. Shaw put it that you misled them, but that they were mis- led. Me. Shaw. — Quite so. Sir James Stephen. — My learned friend, Mr. Shaw, has known me long enough to know that I should not mislead him intentionally, and if he said I had misled him, I should think he meant merely what your Lordship has said. I only want to explain a very simple point. The simple truth of the matter, which 1 think your Lordships must have already perceived, is this, — that at the time when that ques- tion was before the Court below, I really had not studied this question of wafer bread; that is the whole truth. I did not at that time know what the material points were. The Lord Chancellor. — If there was any mis- apprehension about it, nothing could be more natural than what occurred. Sir James Stephen. — I cross-examined in the first words that came to my mouth, as one naturally does. We had plenty to do even on that occasion. This point had been determined by the case of Hebhert v. Purchas^ in which I was not engaged, and of which at that time I was profoundly ignorant. Understand- ing that it had been so determined, I did not trouble myself to study the question, and if I used language, which in any way had the effect of misleading my learned friends, or putting them in a worse position occurred in the Court below as to Wafer-bread. 617 than they would otherwise have been in, it is my fault for not having properly prepared myself in the Court below. I cannot, however, feel that the question at issue between us, has been seriously affected by the course that I took, and for this reason. My learned friend has given a reason, I think a conclusive reason, why he could not push to the very utmost, his re- searches into the composition of any particular wafer which might be used, and if his honourable and proper feelings, and those of others associated with him, would of course have prevented him from taking the course which he pointed out, I do not know what more he could do than he has done, except one thing, and that is, when he had Mr. Eidsdale in the Box, he might have asked him what the bread was made of, for he was likely to know. Me. Shaw. — We understood it to be admitted. Sir James Stephen. — My learned friend was a very distinguished special pleader for many years, and if he had passed the same time in examining witnesses, possibly he would have taken a different course. Tour Lordships now see how the matter stands, and all I have to say about it is, that the words in which the charge was expressed employ the word "bread." Now that my attention has been carefully directed to them, I stiU think that if we are to take the special pleading view of the matter, they admit that bread was used, and that by pnttiug the word "wafer" before the word "bread," you can mean nothing else but a thin circular flat piece of bread. The result is this. The accusation is that we gave wafer bread. The proof is, that we gave things like penny pieces, very white. The inference, and I submit the only legal inference, is, that what we gave, were pieces of bread cut into the shape which has been described. Therefore, the only question before your Lordships is a question of shape. I pass fi-om that being glad to be relieved of it. I am sorry that any little questions of that kind should have been introduced into a matter which has occupied so much of your Lordships' time, and which is re- 618 The Vestments — opposed on Doctrinal grounds ly garded by so large a number of people witb sucb very strong feeling. My Lords, having made that remark while the matter was still fresh in your Lordships' recollection, I pass to the more important matters to which I have to refer, and I take them in the order in which I spoke of them, and in which they have been treated by my learned friends. I. The Yestmbnts. The first point which I have to refer to, is the point of the Yestments. Upon that question — ^and the remark applies to some extent to all the charges — I have a preliminary observation to make. I have argued this case throughout, as I considered it ought to be argued, purely and simply as a legal question, upon the construction of certain words embodied by refer- ence in an Act of Parliament, and I have not, as your Lordships are aware, taken one single step from that position. But that has not been the course taken by my learned friends. My learned friend Dr. Stephens, and to some extent my learned friend Mr. Shaw, not only introduced what I may call a theological element into this question, but they have made it the basis of a great part of their argument. My learned friend Dr. Stephens did so in this way. If he said it once in the course of his argument, I am sure he said many many times, that these vestments were monuments of superstition and idolatry. The words recurred again and again in the course of his argument. He declared also again and again that they were sacrificial vest- ments, and he concluded his argument by pointing out in forcible language, that there were other charges against Mr. Eidsdale as to the manner in which he had performed service in his church at Folkestone. He said that all of these things must be taken together, that they showed a sort of guilty mind, and that that guilty mind was to introduce by all ways and means, Eoman Catholic doctrine into the Church of England. Counsel for Respondent: hut the Doctrine held legal 619 My Lords, I shall have some remarks to make upon that point, but the first observation which I make upon it is this. Since the decision ia the Gorham case, and the decision in the case of the Essays and Eeviews, the Bishop of Balisbury v. Williams^ and Fenton v. Wilson, and since the decision in the case of Sheppard v. Bennett, I contend that it is not open to anyone to deny that very great latitude of opinion upon a great variety of important subjects, is by law permitted within the Church of England; and, although I have nothing to say to what Mr. Eidsdale's opinions may be, I will for the sake of argument, and for the sake of argument only, accept the epithet which my learned friend uses of " sacrificial " as applied to these vestments. If your Lordships look to the case of Sheppard v. Bennett, you will find that one of the article^ of charge against the Defendant in that case was, for actually holding and preaching the doctrine, at which my learned friend says, these vestments are ia some way or other a sort of hint, and with which they are associated. It was held that it was legal to preach that doctrine in terms as unequivocal in their nature as any language could be. Now if the doctrines themselves, to which my learned friend seems so much to object, are legal, where is the foundation for his "argument, that a vestment which so to speak hints at them — and it is only his assertion that your Lordships have for it that it does hint at them — where is the foun- dation for the assertion that a particular garment accidentally associated with such doctrines, must by reason of such association be illegal ? As soon as by a series of cases of the highest authority, the doctrine of "open questions" has been estab- lished as the law of the Church of England, then such remarks as my learned friend used in this case, and which he made the basis of his whole argument, appear to me, with all respect to him, to become totally irrelevant, because the very utmost that he can say of these dresses is, that they are 620 hy J. Com""-: argument of Dr. Stephens contrary to vestments associated in the minds of some one or other, with a doctrine which your Lordships have held to be a legal doctrine, a doctrine permissible within the Church of England, and one which can be avowed without breaking the law. I need not say, that, the only question with which your Lordships can be concerned is, the question of the legality of these opinions. Their truth is a matter of which your Lordships' Coxirt have always, and under all circum- stances, steadily refused to take any cognizance what- ever, direct or indirect. Having made those general remarks, I will proceed to make a few further observations upon this point. I wish to show to your Lordships how completely the ad- mission of that general principle cuts away the founda- tion of a very large portion of my learned friend's argument upon this m9,tter. At one part of his argu- ment my learned friend expressly declared that the proviso of the Act of Uniformity must be construed as applying to those ornaments only which were in accord- ance with the principles of the Act ; and then he further said that the general principle of the Act was to do away with the monuments of idolatry and superstition. He seemed to admit, by using that argument, that unless, in some way or other, he could get rid of the Prayer Book of Edward and of the proviso in the Act of Tlniformity he was in the position of one who calls that superstitious and idolatrous which the Prayer Book in question absolutely prescribed and ordered to be used. Therefore he has to resort to a theological principle and a theoretical principle directly opposed to the very words of the Act of Uniformity upon which the whole of this matter turns. There are penalties con- tained in the Act of Uniformity against those persons who deprave the Book of Common Prayer, meaning the Book of Edward, and I am afraid that if a learned Counsel, appearing before the Council Board in the days of which we have heard, had told your Lordships that Queen Elizabeth had ordered to be used certain monuments of superstition and idolatry, that learned First P. Book and Act of Uniformity, 1552. 621 Counsel would have shown a good deal more courage than discretion, and would have had to undergo very- serious consequences. I would just call your Lordships' attention to the language which is used in the second Act of Uniformity about this first Prayer Book. Dr. Stephens, amongst other language which he used, observed that it was an unsatisfactory compromise between Protestant and Catholic, that it was, in fact, a half Popish Book and bad in itself. Now let me point out to your Lorships the manner in which the Act of Uniformity of the 5th and 6th, Edward VI, which set out the second Prayer Book, speaks of the earlier Act in which the first Prayer Book was con- tained : " Wheare there hatha been a verie Godlye ordre, set forthe by auctoritie of Parliament, for Commoii Prayer and adminis- tracion of the Sacramentes to be used in the mother tongue within this Churche of Englande, agreable to the worde of God and the Primative Churche, verie comfortable to all good people desyringe to lyve in Christian conversacion, and moste profyt- able to the estate of this Realme : upon the whiche the mercy, favour, and blessinge, of Almightie God, ys in no wise so redylye and plenteouslye powred as by common prayers, due usinge of the Sacramentes, and often preachinge of Gospell, with the devocion of the hearers : And yet thys, notwithstand- inge, a great nombre of people in diverse partes of this Realme folowinge their owne sensualitye, and lyvinge, either without knowledge or due feare of God, doe wilfullye and damnablye, before Almighty e God, abstayne and refuse to come to their parishe churches and other places where common prayer, ad- ministracion of the Sacramentes, and preachinge of the worde of God, ys used upon the Sondayes and other dayes ordeyned to be Holye dayes." The Book, therefore — ^which is to be to a certain extent modified — is spoken of in terms of the very highest admiration, admiration almost extravagant one would say as applied to any human composition, and then my learned friend is to speak of this Book as one which enjoins the use of monuments of idolatry and superstition. That, however, is by no means all that is to be said 622 This further shewn by restoration in P. Bk.y 1659, of on the subject. The Prayer Book of 1552 has not been much before your Lordships ; but then came the third Prayer Book, the Prayer Book of Elizabeth, which revived the second Prayer Book for some pur- poses and the first Prayer Book for others. I want to show your Lordships how the third Book, in what was regarded in those days as a momentous and most important particular, went back from the language of the second Book to the language of the first Book, upon this very subject of the administra- tion of the sacrament. I am going to refer to the statute immediately to show your Lordships that the alteration, which I am now going to mention, of the second Prayer Book, the return of the second Prayer Book to the language of the first Prayer Book, was directed by the statute itself, and I will show your Lordships how in a moment. In the administration of the Communion the words of the first Prayer Book, the Prayer Book of 1549, were these: "The Body of our Lord Jesus Christ, which was given for thee, preserve thy body and soul unto everlasting life." In 1552 the words, "The Body of our Lord Jesus Christ" and so on, are omitted, and the second form is, " Take and eat this, in remembrance that Christ died for thee, feed on him in thy heart by faith, with thanksgiving." Therefore the earlier Book of 1549 speaks of "the Body of our Lord Jesus Christ." The second Book of Edward does not speak of the Body, but says simply " Take and eat this." The third Book, which is the one now in use on this point, combines the two into the well known form in use in the present day. It is not quite the same : " The Body of our Lord Jesus Christ, which was given for thee, preserve thy body and soul into everlasting life : and take and eat this in remembrance that Christ died for thee, feed on Him in thine heart by faith with thanksgiving." That slightly amplifies the later one. There is an analagous alteration with regard to the cup. In 1549 the words are : " The blood of our Lord .words usdd at delivery of Sacrament in P. B/c, 1549. 623 Jesus Christ whicli was shed for thee, preserve thy body and soul unto everlasting life." In 1552 there is no reference to the blood, but it says simply " Drink this in remembrance that Christ's blood was shed for thee, and be thankful." In the later form, 1559, the two were combined, " The blood of our Lord Jesus Christ, which was shed for thee, preserve thy body and soul into everlasting life : and drink this," and so on. It is exactly a combination of the two. That alteration in the Prayer Book is the only alter- ation, with one exception, that was made in the Book of 1552, when it was re-enacted in 1559. If your Lordships look at the Act of Uniformity your Lord- ships will see that that is carefully specified. The Clergy are required to perform " common and open prayer in such order and form as is mentioned in the Book authorised by Parliament in the 5th and 6th years of Edward YL, with one alteration or addition of certain lessons to be used on every Sunday in the year, and the form of the Litany altered and corrected, and two sentences only added in the delivery of the Sacra- ment to the communicants, and none other, or otherwise." Therefore, my Lords, this addition, or remodelling of the words, with which the elements are delivered to the communicants, restores into the Book of 1559 that which was in use in 1549, and contemporaneously with that, the vestments, which were to be used in 1549, are reintroduced and com- manded to be used in 1559. My Lords, that surely shows that the re-introduction of the vestments, in 1559, was a carefully considered step, and that it took place contemporaneously with the re-introduction of the words in the service itself, which certainly look so much in the same direction if you are to attach any significance to those vestments at all. Then my learned friend says, "Oh, vestments must be illegal because they are monuments of superstition and idol- atry, and because they are sacrificial." If that is so, I should venture to submit that the Prayer Book itself, which contained the direction, is, to a considerable 624 Laiimerh opinion of Communion Offices^ 1549 Sfl5.52. extent, a monument of superstition and idolatry. If my learned friend says, "that is a very good reason for altering it," I have not a word to say ; but when you are talking about what the law of the land is, the matter is altogether different, and it does not lie in any one's mouth, before a Court of Justice, to say that that, which is prescribed by law, is either an unsatisfactory compromise, or monument of super- stition and idolatry. If my learned Mend likes to apply those words to it I have nothing to say except this, that he is rather pleading for the alteration of what exists, than showing that it does not mean what it says. I may just observe, in corroboration of what I have been saying, that at the trial of Latimer a distinction is taken. It is in " Latimer's Eemains," Parker Society, p. 483. Bishop Latimer being asked by Weston at Oxford, in 1554, " which Communion Book, the first or the last," he was referring to, replied: "I find no great diversity in them ; they are one supper of the Lord. But I like the last very well." Prolocutor : — " Then the first was naught, belike." Latimer : — "I do not well remember where they differ." It did not seem to him that there was any material difference between them, and certainly, if the one could be described as a monument of superstition and idol- atry, it may be supposed, that a person, who was a martyr to his opinion, would not object to speaking his mind upon the subject. My Lords, be that as it may, I wUl pass on to make a remark or two in order to show the bearing of this observation on my learned friend's argument more generally. I cannot help remarking, by the way, that my learned friend's argument departed throughout ia the most marked and striking manner from the judg- ment in Hehhert v. Purchas^ which was delivered in his favour, and that he asked your Lordships to adopt the view for which he contended on grounds widely different from those on which your Lordships' Vesiments not abolished hy Injunctions o/1559 : 625 Court decided tlie Case of Hebhert v. Purchas. How- ever, his first argument on the subject was, that the Injunctions were a further order, and the Injunctions take away these ornaments. I shall hare a great deal to say about these Injunctions, because my learned friend, Mr. Shaw, also delivered an argument upon them, and although, perhaps, when two men of such eminence and ability argue upon the same side, their minds will not always run in exactly the same track; still there is a very considerable divergence as I shall have occasion to show, not only between the Purchas judgment and my learned friend. Dr. Stephens, but between my learned friend. Dr. Stephens, and my learned friend, Mr. Shaw. It is not, it seems, a very easy thing to say upon what grounds the conclusion, that we have committed an ecclesiastical offence, is to be supported. Now I go to the question of the Injunctions. My learned friend. Dr. Stephens, went into the question of the Injunctions at very considerable length. I will argue the question of their authority immediately and substantially. I understand my friend to say the vestments were done away with by a Eoyal Com- mission carrying out this 23rd Injunction, which orders the destruction of monuments of superstition and idolatry, and, consequently, these vestments, which were so destroyed, have been, so to speak — in a kind of way — judicially held to be a monument of superstition and idolatry. The 30th Injunction is an Injunction about apparel in church. I do not want to waste time, but I will read it and say what I have to say in one word, and have done with it : "Item, Her Majesty being desirous to have the Prelacy and Clergy of this realm to be had as well in outward reverence, as otherwise regarded for the worthiness of their ministries, and thinking it necessary to have them known to the people in all places and assembhes both in the Church and without." The thing speaks for itself, that the Injunction refers to. a man's common dress. There are regula^ tions as to his ecclesiastical vestments. That is one ss ■'626 jiot named therein, and they were to carry out P^Bk. 4hiQg, hut of course' lie would require a dress besides; aud many instances were quoted, in the course of the argument, about persons doing service in hunting coats, and for that purpose it was argued that the minister ought to wear seemly garments, etc. I do not want to insist upon the point, but if it were necessary I feel that is a fatal answer to my Mend's argument. There is another which is equally strong. My learned friend used these words, his catch words in fact, " sacrificial," and " monuments of superstition and idolatry." The concluding words of that Injunc- tion show quite distinctly that they are referring to dress and nothing else. One of two things : either they are referring to ordinary dress and nofiiing else, or else they consider the subject of vestments very .unimportant indeed, because it says, "not, thereby, meaning to attribute any holiness, or special worthi- ness, to the said garments." I do not want to labor that, I think it speaks plainly for itself. Now, to go back to the question about "monuments of superstition and idolatry." My learned friend contends that it was under that clause that these vestments were done away with. To that there is this objection — 'Which never occurred to my learned friend, which he never noticed, although one would have thought it stared him in the face. He took great pains to prove the time at which the Injunctions were issued. I do not very much care when it was, but he says they were issued in 1559, at the very time when the Prayer Book was issued ; but the object of the Injunctions was to carry out the Prayer Book. That Prayer Book, beyond all question, con- tained this rubric about wearing the cope and the chasuble and the alb and the tunicle, and that being so, my learned friend reaUy asks your Lordships to believe that the Queen and her advisers brought out at one and the same time the Prayer Book ordering chasubles, and Injunctions condemning them as monuments of superstition and idolatry. I do not J. Com"-, Hebhert v. Purchas, held they only ordered 627 think I can make tliat any stronger by insisting upon it, and I pass from it accordingly. I liave one other remark to make upon tlie In- junctions, although, the answer I have just given appears to me sufficient. I refer to the Judgment in Hebhert v. Purehas. It did not appear to their Lord- ships that the Injunctions had anything to do with the vestments, because they most distinctly say that all that the Injunctions say about the vestments is, that inventories are to be made of them, and they are to be kept for the Queen ; and their Lordships, in connection with that, refer to a passage in a letter by Archbishop Sandys, in which Archbishop Sandys said — he being the leader of the Puritan Party — "Our gloss upon this text," upon the Eubric, in reference to which the Injunctions required the inventories to be made — " our gloss upon this text is, that we shall not be forced to use them," that is the Ornaments. Now, my Lords, I cannot say I feel any particular interest in saying anything either of Archbishop Sandys' letter, or of his gloss ; but if their Lord- ships are correct in thinking that the only way in which the question is touched by the Injunctions at all is, that it was necessary to make inven- tories, how can my learned friend say that the true eflfect of the Injunctions was to have these things treated as monuments of superstition and idolatry ? I say that that is the private opinion of my learned friend, which stands contradicted by the fact that the Injunctions and the third Prayer Book were contemporaneous ; and which stands contradicted by the Judgment which has been given in his own favor, ^nd which, I should have supposed, he came here to: uphold. Then, my Lords, as to the authority of the Injunc- tions. My learned friend gave you a great deal of history with regard to the Injunctions, and although his great learning undoubtedly enabled him to bring forward several singular fects which one was glad to hear, I must say from time to time it seemed to me ss 2 628 Inventories: no evidence of any Commission tQ , . , as if a powerful imagination supplied tlie necessary- links between them, because my learned friend made several assertions as to matters of fact of great im- portance with, regard to these Injunctions, for which he produced absolutely no evidence whatever. If I understood hi^ argument aright, it was soinething of this sort : that, first of all, the Injunctions were issued in the year 1559, and your Lordships will recollect certain office copies which came here with their stamps and with the names of 130 eminent persons of the day who were Commissioners. Then he appealed to Peacock and his book, referring, as I showed your Lordships, to the year 1566 ; and when he had got to that he said there must have been a Com- mission in 1566 — ^his theory being that the vestments must have been removed from use, as being monu- ments of superstition and idolatry, in 1559 under the first Commission ; and that then in 1566 the second Commission was sent down, which ultimately de- stroyed them, and of which there are records by Mr. Peacock ; but he gave no proof whatever that there was ever any other Commission except the one of 1559 — he produced absolutely no evidence of it, I took down his words. He admitted that there was no record of the Commission in Lincolnshire in 1566 ; but he seems to say that there must have been a Commission notwithstanding, because it is necessary for his argument that there should have been a Commission. I need not comment upon that way of arguing, but I say there is no proof whatever of such a Commission. My learned friend refers me to a passage in the Purchas Case where the Injunctions are referred to. They are referred to simply as part of the general history. There is no reference to any specific Injunction. De. Stephens. — The words are : " The Injunctions and the Advertisements of Elizabeth established a new order " Sib James Stephen. — ^Yes, but it does not say that it destroyed the vestments. It would be useless to desiroy Vestments: Mr. Peacockh Book no proof. 629 ' attempt to misrepresent the matter if I wished to do so. The matter speaks for itself. I say their Lord- ships did not point to any single Injunction as having any bearing on the matter except the one which speaks of the inventories* So inuch for my learned friend and his two Com- missions. Then he goes on to examine Mr. Peacock's work upon this subject, and he says Mr. Peacock's work is the best evidence now accessible ; and he would have you to believe that all the things described in Mr. Peacock's book as having been destroyed were destroyed as being monuments of superstition and idolatry. He found some difficulty in dealing with the argument which I had advanced that that could not be the case, because a large number of copes were destroyed, and because, ac- cording to the Judgment in Hebhert v. Purchas^ copes were then and are now distinctly legal ; and I pointed out some other things, such as pillows or cushions, candlesticks, and other things. My learned friend, who is never at a loss for an argument, immediately got out of that by a distinction, and his distinction was, that there were two classes of copes — supersti- tious copes, and what I suppose I may call rational- istic or reasonable copes ; and that the superstitious copes had upon them various pictures of saints and sacred personages of different kinds, and that the other copes were plain and satisfactory, and that the superstitious copes were destroyed, and that the other copes remained and were legal. In the first place, the only evidence of that was some very shadowy kind of reference to some particular white cope and also a reference to Dr. Eock and his ' Church of our Fathers,' which did not seem to me to set the thing in a very clear light. The point to which I wish to direct attention is, that my learned friend really argued on that occasion in a circle. He first argues that all these things were destroyed because they ■were superstitious, and then that they must have been superstitious because they were destroyed. To 630 '■'^SuperstiUoiis " Copes, so called, at DurJiam. put a particular case he' mentioned — a particular little pillow, which little pillow had used to lie on the altar, and which was &ially turned into part of a maid- servant's dress or something of the kind. Where- upon, says my learned friend, "that little pillow must have been superstitious," — ^in other words, here is a thing prima facie legal, a thing which I will venture to say would naturally be used in every church where you have a Prayer Book on the Com- munion Table. My learned friend says, this having been destroyed, it must no doubt have had a super- stitious picture upon it, otherwise it would not have been destroyed. I submit, that to argue that a pillow had a picture upon it because it was destroyed, is not arguing from the evidence, but it is making evidence in order to justify your argument. I think, with all respect to him, my learned friend's argument fails in fact as well as in logic, because it does so happen that a certain number of copes did survive this destruction of the vestments, and are stiU in existence and to be seen at this day in Durham Cathedral, where they were used imtil Bishop Warburton objected to them, as it is said, in the course of last century. As to what these copes are like, there is a " Diary of Ealph Thiresby " which was published by Mr. Hunter in 1830. Here is his description of the copes of Durham, and we will see whether any copes or anything else could, in the nature of things, be much more superstitious than these copes : "September 15, 1680. Enjoyed the converse of friends; then dined at Cousin Walker's ; went afterward to see the Abbey ; viewed the exceedingly rich Copes and Robes, was troubled to see so much superstition remaining in Protestant Churches : tapers, basins, and richly embroidered I.H.S. upon the high Altar, with the picture of God the Father, like an old man ; the Son as a young man, richly embroidered upon their Copes. Lord, open their eyes, that the substance of religion be not at length turned into shadows and ceremonies." (Vol. I., p. 61.) Vestments assigned for use in the Services in 631; Ho'w' you can carry a breach of the Second Com- mandment further than by images of the persons of the Godhead it is impossible to imagine. Well, then, it goes on : " A.D. 1681, January 1. Afternoon returned to Durham. " 2. Die. Dom. In the forenoon went to the Minster ; was somewhat amazed at their ornaments, tapers, rich embroidered* copes, vestments, &c. Dr. Brevin, a native of France, dis-. coursed of the birth of Christ ; went also to Shinkley, and heard a discourse from Mr. Dixon, Oolos. iii. 3." (Vol. I., p. 75.) De. Stephens. — ^May I ask where my learned frier d gets this from, because it is a manuscript ? De. Phillimore. — I verified it from a printed book in the London Library. Sir James Stephen.-— My learned friend says that every cope destroyed was destroyed because it was superstitious ; and here I say that the copes, which were left in the most conspicuous place of all, had, what I should be inclined to describe, as by very much the most superstitious of all possible figures upon it. Another illustration of the same thing is to bei seen in a Document which has been preserved among the Eecords of the Corporation of Bodmin ia Cornwall ; it is printed ia the " Parochial and Family History of the Deanery of Trigg Minor, iu the County of CbrU'^ wall," 1870, part 2, p. 341. It is an Assignment of goods to the Church of St. Petherick, in Bodmin, dated Michaelmas in the 8th year of Elizabeth, which, by the way, answers a curious remark my learned friend made, that an unofficial document would hardly be dated in the year of the reign. It is the 8th year of Elizabeth, and is made between the Mayor and the Church Wardens, of a quantity of church ornamentSj all of which things are' described "to be used and occupied to the honour of God in the same church from, the day and year aforesaid." Among these Ornaments the following are mentioned: — "Item, one vestment of green satin. Item, one whole suit of blue velvet deacon, subdeacon, and epistoler : a pair of vestments of white damask, one cope of red satin. Item, a vest: 632 the Sth'year of Elisabeth. P. Bh, 1549, shews merit of blue velvet, one -white cope of satin. An albe of silk," and so on.* Dr. Stephens. — I must submit to your Lordships whether this is proper evidence in reply ? SiE James Stephen. — Your Lordships will recollect that my learned friend challenged me, in the course of his argument, to mention any instance in which any of these vestments had been used after a certain time. In answer to that challenge I say here is a case in which, after the day in question, I show you a deed assigning a quantity of these things to be kept and used in the church for the purpose of being used, and of course the inference is that they were used. It is on the feast of St. Michael, that would be the 29th September, 1566, there is mentioned in it a " Cushion of Velvet for the Communion Table," and " a Cushion of Silk for the Mayor's chair." I cannot go into everything that my learned friend said ; but here I say are distinct proofs which speak for themselves, as far as I can go, that, in laying down this distraction between the superstitious copes and the copes that were not superstitious, my learned friend has really done nothing but put forward a conjecture which is, in contradiction to actual facts, capable of being verified at this very day. One remark, which my. learned friend made, illus- trates the boldness of some of his assertions upon these matters. His argument was founded, to a great extent, upon the distinction between sacrificial and non-sacrificial vestments, that is one of the principal points ; and the alb was described as being emphati- cally a sacrificial vestment. If your Lordships look at the first Prayer Book, Edward VI., (Keeling, p. 229,) your Lordships will find that : " TTpon "Wednesdays and Fridays the Englisli Litany shall be said or sung in all places, after such form as is appointed by the King's Majesty's Injunctions : or as is, or shall be other- * This Assignment, (published by Sir John Maclean from the Bodmin Kecords,) is given in full at p. 238 of Perry's Notes on the Purchas Judgment. that the Albe is not a " sacrificiaV^ Vestment, as 633 ■frise appointed by his Highness. And though there he none to communicate with the Priest, yet these days (after the Litany ended) the Priest shall put upon him a plain albe or surplice, with a cope, and say all things at the Altar (appointed to be said at the celebration of the Lord's Supper) until after the Offertory. And then shall add one or two of the Collects aforewritten, as occasion shall serve by his discretion." Here, therefore, is a case in wHch. tlie use of the alb is ordered in the alternative, at all events, only the alb may be worn on an occasion when it distinctly appears there was to be no celebration. The Lokd Chancelloe. — I understood Dr. Stephens' observation was this, that that was one of the great peculiarities of the Prayer Book of 1549, that, for the first time, it made optional, or gave a liberty, as to the use, at the time of Communion, of vestments which were sacrificial or non-sacrificial ; that was his observation as I understood it. SiE James Stephen. — I am not arguing upon that point ; the particular point to which I am addressing myself is this, that my learned friend described an alb as being a sacrificial vestment ; then I say here is an instance in which an alb was to be worn when there was no Communion. The Loed Chancelloe. — I was rather anxious to follow your argument to ascertain your view as to an alb — do you consider that it is what is called a sacri- ficial vestment, or not ? SiE James Stephen. — I totally repudiate the dis- tinction. The Loed Chancelloe. — ^Dr. Stephens' argument was, that in this Prayer Book, from which you are citing, there was an option given, and, therefore, find- ing that an alb is spoken of where you find it, would not carry the question further. SiE James Stephen. — ^My remark upon that is, my friend's argument depends upon a supposed distinction between sacrificial and non-sacrifical vestments. The Loed Chancellor. — In the Eoman Catholic Church before the Keformation ? ()34 alleged hj Dr. Stephens from Dr. RocFs " Church of Sir James Stephen. — ^Yes; he has given na evidence at all; he has not referred your Lordships to a single authority of a theological kind to show that there was any doctrine, or any special significance according to the doctrine of the Eoman Catholic Church, attached to the use of these things, he has simply asserted, in general terms, that it was so, but he has in no way proved it. The Lord Chancellor. — Are you satisfied that none of the references, which he gave us, went to the point ? I have not got them before me, but he read something from Dr. Eock. Sir James Stephen. — In the first place it appeared to me to be merely the statement of a fact that certain vestments were worn at a certain time, but he did not say they were worn at a particular time because there was any doctrine, real or supposed, connected with them. I did not hear from my learned friend a single argument to show that the fact, that a man wore a chasuble when he administered the mass, showed that there was any possible doctrinal or other significance in the use of the chasuble more than in the fact that he wore a pair of shoes — of course he would alvays wear shoes. My learned friend says that, according to Dr. Eock, it is said that he wore a chasuble, but that there was any particular signifi- cance in his wearing a chasuble, or that indeed there is anything at all in the chasuble which there is not in any other dress, or that anybody ever thought there was, my learned friend has not proved in any degree. Dr. Stephens. — I cited passages to prove that there was a very peculiar significance with reference to the chasuble and alb. I cited Dr. Eock's " Church of our Fathers" showing that the chasuble was pecu- liarly worn and appropriated to the sacrifice, and that the celebrant of the Eoman Catholic Church for a thousand years before 1549 was bound to wear that particular vesture, and at no other time. I cited several passages from Dr. Eock on both those points. Sir James Stephen. — Of course my learned friend onr Fathers'''' — remarks hy the Court ^ Dr. Stephens : 635 states correctly what lie quoted, but I have not had. an opportunity of verifying it. I say, the mere fact of showing that a man wore a particular dress for a long period of time, on that occasion and no other, does not show that there was any mystery, or special sanctity, or significance about it anymore than the fact that the soldiers of the British Army have worn red coats for 200 years shows that there is any magic in a red coat. The Lord Chancellor. — Have you found any authorities which would throw light on the matter ? Sir James Stephen. — I have neither found them nor looked for them. I say if anybody finds fault with these things and says they are wicked in them- selves, and therefore the law cannot have intended that they should be worn, let him prove it; but aU my learned friend says is, that for a long period the Eoman Catholic clergy were in the habit of wearing this garment, and according to the rules of their Church did wear it on this occasion. De. Stephens. — In order to preclude any mistake, I have got a full note of my extract from Eock, on the subject of the chasuble and alb. I only ask to be heard in order to set myself right. The Lord Chancellor. — ^We only wanted to be sure that you were right in your reference to Dr. Eock. We have got a note of it, and we do not want to re- open it. Sir James Stephen. — That really is an immaterial issue iu the case, at least upon this part of my argu- ment. If my learned friend admits, and your Lord- ships' view of his argument seem to show that he did admit, that by the Prayer Book of 1549, leave was given to wear these things at times when the sacra- ment was not administered — The Lord Chancellor. — I do not think I made myself clear. "What I understood Dr. Stephens to say was, not that leave was given to wear what he termed sacrificial vestments at a time other than the time of the sacrament, but that leave was given at the 636 questionofLd. C.—didP. Bk.,154.9, allow Celebration time of the sacrament to wear vestments which were, or in the alternative those which were not, what he termed sacrificial. Sib James Stephen. — Of course before the Prayer Book of 1549 I presume that these vestments were in common use in Henry VIII's. time and earlier times. Well then when the Prayer Book of 1549 was put forth they to a certain extent were retained, but it is also, from the passage which I have just shown your Lordships, obvious that the use of the alb, at all events, which he says was a sacrificial vestment, was authorised on an occasion when there was no communion ; therefore the author of that book did not regard the alb as the exclusively sacrificial vest- ment, and if the Eoman Catholics did so, then there is a difference between the Eoman Catholics and the Book of 1649. So much, my Lords, for my learned friend Dr. Stephens on the Injunctions, and now it will be convenient to take what my learned friend Mr. Shaw said on the same subject. My learned friend Mr. Shaw also gave your Lordships a very elaborate argument indeed of an historical nature upon these Injunctions, and he said amongst other things, that at the date of July, 1559, there was in existence an Ecclesiastical Commission capable of assentiag to it. The Lord Chancellor. — Before you pass to that, I should like to understand exactly your view about the rubric to which you have referred, the rubric of 1549. What it says is this : "And though there be none to communicate with the priest, yet these days (after the Litany ended) the priest shall put upon him a plain albe or surplice, with a cope, and say all things at the altar (appointed to be said at the celebration of the Lord's Supper) until after the Offertory. And then shall add one or two of the collects aforewritten as occasion shall serve by his discretion. And then turn- ing him to the people shall let them depart." In that Prayer Book there was nothing which prevented the without CGmmunicants?— answered by Sir J. S. 637 priest communicatiiig witliout the people. That was introduced for the first time in 1549. Sir James Stephen. — I would submit that this clearly refers to a case in which a service similar to that which is familiar in the present day took place, namely, in which there is no consecration of the elements, and no communion, and in which the priest puts upon him an alb, and says everything at the altar which is appointed to be said at the celebration until after the Offertory, that of course is before the Prayer of Consecration ; and then he is to add one or two of the Collects aforewritten as occasion shall serve, and then turning to the people he is to let them depart. What I suggest is, that the whole of that means that he is to go through a service similar to that now in use, and that there is to be no Communion, and on that occasion he is to put upon him an alb or surplice. If that is the case, then I say you have a distinct instance in which an alb is permitted to be used ia the service at a time when there is no Com- munion, and that is contradictory to my learned friend's contention that an alb was a sacrificial vest- ment. The next rubric clenches the matter : " And the same order shall be used all other days, whensoever the people be customably assembled to pray in the ,Church, and none disposed to communicate with the Priest." There are more rubrics at the end of the Communion Office, and if your Lordships look at the end of the fourth of the rubrics which immediately succeed the one that I have just quoted, you will find — ''And. the priest on the week-day shall forbear to celebrate the Communion, except he have some that will communicate with him." These are cer- tain notes at the end of the Communion Office of 1549. If you look through the whole of that rubric, you will see there is an Injunction to the people to communicate with the priest, and a prohibition to the priest to communicate on week-days unless he has some one with him. Therefore on those occasions he would wear the alb, and that I say is a distinct 638 Injunctions not, as Mr. Shaw held, an Order instance in which, the alb is worn on an occasion when there is no Communion; and that is inconsistent with my learned friend's doctrine that it is a sacrificial Testment, as far as that book is concerned, and that book is all that we have to do with. Now, my Lords, I come to my learned friend Mr. Shaw's history of the Injunctions. Mr. Shaw's argu- ment is, that these Injunctions were a further order within the proviso. He entered into a variety of somewhat minute arguments. He is met with this difficulty ; that further order required either the assent of the Ecclesiastical Commissioners or of the Metropolitan. There was no Metropolitan in exist- ence for many months afterwards ; consequently that will not do. Then the only Ecclesiastical Commission which has been known and recognised as such, is of later date than the Injunctions, namely, July, 1559. Therefore, that will not help him. Well, then, says my learned friend, there can be no doubt that there must have been some Ecclesiastical Commissioners before the ones of July, 1559, and then in proof that there were Commissioners before July, 1559, which Commissioners might have consented if they were in existence, he refers to the 4th Institute 326, where Lord Coke says that the first Commission is said to have been lost, and was never enrolled, and he refers also to the fact that Bonner was deprived by some Ecclesiastical Commission, and lastly, he refers to the fact that there is a Statute which was printed ia Gibson's Codex, which he says, was meant to confirm these deprivations, and all that, he says, shews that there was some Commission before July, 1559, which might have consented, and therefore probably did consent to the issue of these Injunctions, and so gave them the authority of law. My answer to that argu- ment is very short indeed. The Act of Supremacy was the Act which gave Her Majesty power to proceed in all ecclesiastical cases, and power to visit ecclesiastical estates and persons. It is sections 17 and 18 : unier Proviso of Act of TJnip- — no Ecclesiastical 639 " That such jurisdictions, privileges, superiorities, and pre- eminences spiritual and ecclesiastical, as by any spiritual or ecclesiastical power and authority hath heretofore been, or may lawfully be exercised or used for the visitation of the ecclesiastical state, and persons, and for reformation, order, and correction of the same, and of all manner of errors, heresies, schisms, abuses, offences, contempts, and enormities, shall for ever by authority of this present Parliament be united and annexed to the imperial Crown of this realm. And that your Highness, your heirs and successors, kings or queens of this realm, shall have full power and authority by virtue of this Act, by Letters Patents under the Great Seal of England, to assign, name, and authorise when and as often as your Highness, your heirs or successors, shall think meet and convenient, and for such and so long time as shall please your Highness, your heirs or successors, such person or persons being natural-born subjects to your Highness, your heirs or successors, as your Majestj-, your heirs or successors shall tbink meet, to exercise, use, occupy, and execute under your Highness, your heirs and successors, all manner of juris- dictions, privileges, and pre-eminences, in any wise touching or concerning any spiritual or ecclesiastical jurisdiction, within these your realms of England and Ireland, or any other your Highness' dominions and countries : and to visit, reform, redress, order, correct, and amend all such errors, heresies, schisms, abuses, offences, contempts, and enormities whatso- ever." In short, she is to have power to appoint Ecclesi- astical Commissioners. I would submit that the Ecclesiastical Commissioners who are to be appointed under that section, are pre-eminently those Com- missioners who are appointed by letters patent in July, 1559, that they are a well-known body of persons exercising this immense authority under letters patent, issued under the provision of the 18th section. Those and no others, I say, are the persons whose consent was necessary to the validity of any further order, which Her Majesty might take under the proviso of which so much has been said. But it is quite consistent with that, that having a general visitoria,l power by the earlier section, the Crown may have issued Commissions to particular persons for particular purposes such as the deposition 640 Com^'- then who had power to assent to them.- • of Bonner and some other bishops. The Ecclesiastical Commission for the North, to which my learned friends have referred, were such a body, they consisted of 130 men of very high rank and position, who were to exercise their authority throughout the North. But those persons, at all events, had no power to assent to the Injunctions, or to give them the force of law ; nor had the Commissioners, whoever they may have been, who, if any, deprived Bonner, nor m fact any other Commissioners except the Commissioners who were appointed in July, 1559, and those Com- missioner:*, I say, were too late for the purpose. Mr. Shaw. — The passage in Coke says that they were appelated under the section which you have read. Sir James Stephen. — It would be going a very long way to give to any document the force of law because Lord Coke says that he believes that something, which he had never seen, and which had been lost, once existed, which gave authority to some unknown persons, and which un- known persons may perhaps have given authority to the document. Your Lordships will hardly thinly that a satisfactory way of giving the force of law to a great body of Injunctions relating to a great variety of subjects. It would introduce very great confusion into the whole ecclesiastical law of the country if that were done. "Well, then, as to the reference in Gibson, and the statute which is referred to there, I would suggest that the inference from that is, that the deprivations of the earlier part of the reign were probably more or less irregular, and that it was thought necessary to confirm them, and that there was some slip in the proceedings. I should suggest it as a very possible thing, that at a time of great excitement, and when it was necessary to appoint a Commission to deprive those who would not deprive themselves, some of the steps which were taken for that .purpose may not have been strictly regular ; and it niay have been thought, at They were an Order hy the Queen in Council. 641 ft all events, the better and more prudent course to have them subsequently confirmed by Parliament. However, my Lords, I must confess I feel a re- luctance to enter in great detail into the question about the date of the issue of the Ecclesiastical Com- mission, and that for two reasons, each of which, taken alone, I apprehend to be amply sufficient to shew that these Injunctions in no way had the force of law. The first is upon the very face of the Injunc- tions themselves. Upon the face of them they do not profess to be made by the Ecclesiastical Commissioners, or by the Crown, with their consent in any way ; and they do profess to be an Order in Council : " The Queen's most Eoyal Majesty, by the advice of Her most Honourable Council, doth minister unto Her loving subjects these godly Injunctions hereafter following." That is what the document says of itself, namely, that it is an order by the Queen in Coimcil, neither more nor less. I do not think it necessary to go minutely into the question of what Her Majesty could do by law, but I know that if Her Majesty, in Council, did issue an Order that people were to do this or that, it would be a very dangerous thing not to obey that Order, especially for any person who held any ecclesiastical preferment. But there is a still stronger argument, if possible, or at least one equally strong ; it is an argument which I put forward emphatically, and pressed upon your Lordships' attention, when I opened this Case. [N'either of my learned friends, who have argued it with so much care, has, as far as I observed, said one word to it. That argument is, that these Injunctions are very nearly a copy of the Injunctions of Edward YI. ; and that the 23rd In- junction, upon which they principally rely, is abso- lutely, word for word, the Injunction given by Edward VI., the words being : " That they shall take away, utterly extinct, and destroy all shrines, coverings of shrines, all tables, candlesticks, trindals, and rolls of wax, pictures, paintings, and all other monuments TT 642 Inj. 23 copied from Inj. Edw. Vlth. : only an of feigned miracles, pilgrimages, idolatry, and superstition, so that there remain no memory of the same in walls, glass windows, or elsewhere within their churches and houses." That, I say, is identically, word for word, a repetition of the Injunction of King Edward VI. Now, my Lords, look at Phillpotts v. Boyd. The ratio decidendi in Phillpotts v. Boyd was this : it was argued most elaborately, and over and over again, that images were illegal because they were opposed to the Injunctions of King Edward VI. This is a passage from their Lordships' Judgment, which is m 6 Law Eeports, Privy Council Appeals, p. 457 : " By the 28th of these Injunctions the clergy are ordered ' to take away, utterly extinct and destroy all shrines, tables, candlesticks, trindles or rolls of wax, pictures, paintings, and all other monuments of feigned miracles, pilgrimages, idolatry, and superstition, so that there remain no memory of the same in walls, glass windows, or elsewhere within their churches and houses.' " Those are the very same words as those now in question. These Injimctions were issued by King Edward VI. with the assent of his CouncU, and at a time when it would seem most probable the King's proclamations had the force of law. Me. Shaw. — Their Lordships say, at p. 461 : "Their Lordships deem it unnecessary to consider by what authority the Eoyal Injunctions were issued." Their Lordships did not decide as to the Injunctions, they simply dealt with the Order quite separately from them. Sir Jambs Stephen. — That particular passage I may have marked wrongly, but, as I read their Lord- ships' Judgment, the short result of it is this : that whatever was done then, either by those Injunctions, or by reason of any particular letter, was in the nature of an administrative act or step taken at the time for the time, and dictated by the necessities peculiar to the time. As I read the Judgment, the effect of the Judgment in Phillpotts v. Boyd is this : be the au- thority of this Injunction more or less, whether it administrative act, according to Phillpotts v. Boyd. 643 was issued under the Act of Parliament which gave the Queen's Proclamation the force of law, or whether it was not, eTeu if it had the force of law, still it was an administrative act suited to the exigencies of the time when it was issued, and it was not a law binding the Church of England for all time to come. That is the construction I put upon Phillpotts v. Boyd. The Case speaks for itself, and it is before your Lordships. I say it would be the most extraordinary mode of construing these ambiguous acts, neither administra- tive nor legislative, that could be adopted if it were to be held that on the one hand that that Injunction, or another in exactly the same words, was merely an administrative act for the time in respect of images, and yet that it constituted an act of legislation as regards vestments which it does not even name, and which could only be brought within its terms by the most violent construction. Therefore upon those two grounds, first, that the Injunctions of Elizabeth were no further Order within the statute, and secondly, that, whatever they were, they were only an ad- ministrative act like the Injunctions of Edward YI. I submit to your Lordships, that they cannot be regarded as further Order, even if they cotdd be regarded, which I deny, as having any relation to the particular matter in question. There is one point in connection with the Injunc- tions of Edward YI. and the proceedings under them, which your Lordships will find referred to in the case of Phillpotts V. Boyd, and I refer to it only in general terms ; with reference to the proceedings of Bishop Jewel at Exeter, when he went down there as a Eoyal Commissioner in order to destroy monuments of super- stition and idolatry in and about Exeter Cathedral. Suppose that instead of destroying them, he had destroyed or caused to be destroyed a variety of Ecclesiastical vestments in Exeter Cathedral, would not that have been a stronger fact than any which has been mentioned by my learned friend ? And yet the fact that he destroyed images, was held by your TT 2 644 Vests, not monuments of idolatry and superstition. LordsMps in Phillpotts v. Boyd, not to shew that the particular Eeredos before them was illegal, or that any image or figure was illegal merely because he destroyed something liie it under a Eoyal Commission 300 years before. To conclude this part of the argument, I may just add this one remark upon the Injunctions, that if the vestments had been monuments of idolatry and supeiw stition, when people were destroying such monuments under the Injunction of Edward YI., how came they to escape till the year 1559 or 1566 as you like to put it ? They could not be so destroyed because the First Prayer Book of Edward VI. actually ordered them, and it would be utterly inconsistent to be destroying the vestments on one hand, and ordering their use on the other, and when in 1559 and 1566 Queen Eliza- beth's book brought about a second operation of the same kind, surely it is impossible to believe that she would have found any such vestments left if they had come within the mischief of the first Injunction^ So much with respect to the Injunctions being a further Order under the Statute. I pass from the Injunctions to the next document relied upon, these much discussed Advertisements. With regard to them I have very little to add to the argument I brought before your Lordships in opening this case, because I feel that the argument has not been in any way touched by either of my learned friends. They both of them pass over this matter very lightly indeed, and I shall pass in an equally summary way over the observations which they made. Although the Judgment in Hehbert v. Purchas seems to be to a great extent founded on the Advertisements, my learned friend. Dr. Stephens, really appeared to attach very little importance to them. In speaking of them, he began by saying that they did not bear the Eoyal sanction on their face, and thereupon Lord Selbome asked him why he said so, pointing out certain words at the beginning of it. After a good deal of difficulty, my learned friend was brought to admit that perhaps No proof given of Royal sanction to Advertisements: 645 they might bear the Eoyal sanction on their face, but it was only when he was repeatedly pressed to that eflfeet by my Lord that he went so far as to make that admission. It is obvious that although he gave way at last after several times having had it suggested to him, that Her Majesty had given them Her sanction, his independent and candid opinion was, that she had not. It is very remarkable that although one of your Lordships had taken a view of the construction of the Advertisements, apparently so favourable to the case for the Eespondent in this Appeal, when my learned Mend, Mr. Shaw came to argue it, he appeared to be entirely unconvinced by the view which had been taken by my Lord. The Lord Chancellor. — I am not aware that any view was taken by any of their Lordships. Sir James Stephen. — I stand corrected in saying that a view had been taken. Lord Selbome asked a question which intimated what was passing through his Lordship's mind, that certain words at Qie begin- ning of the Advertisements amounted to a Eoyal authorisation of the Advertisements. The Lord Chancellor. — ^The question was asked why he said the Queen had not given Her Eoyal assent. Perhaps you will allow me to ask you the same question, then we will compare your answer with that of Dr. Stephens. Sir James Stephen. — I wiU answer it immediately. I say, if your Lordships read the letter which stands at tbe head of the Advertisements, put shortly it comes to this, " Whereas the Queen ordered us to make rules we now make rules." It does not say that she has sanctioned these rules, and it avoids say- ing it. I say, that the proper construction of that letter, when your Lordships read it — especially in connection with the correspondence to which I addressed myself, and to which I called your Lord- ships' attention in detail, is this, the Bishops having been pressed by Her Majesty to do what they could for the sake of order in the Chui-ch, and for securing 646 Parker Correspondence proves the contrary : uniformity, they issued these Advertisements; they wished to give them all the authority they possibly could, and I do not hesitate to say they went to the very extreme limits of trutli in the letter which they prefixed to it, because the words beginning "The Queen's Majesty of Her Godly Zeal " might certainly mislead any person who did not look narrowly at the language used. But when it is compared with the correspondence which actually did pass upon the occasion, the letter which set the whole matter in motion was the letter from the Queen to the Arch- bishop on the 25th January, 1564-5. After that letter follows a long series of correspondence, to the details of which I called your Lordships' attention and with which I will not weary you again, between the Archbishop and Cecil, the Archbishop begging Cecil to get some further authority from the Queen, because, if he merely acted by his own power and relied on his Canonical authority he could do nothing, the law being so much against his private doings. There is not a word to shew that the Queen ever gave him any further authority, and everything to shew that she never did give him further authority, because at the end of the correspondence in 1566, at the moment when he is about to send out the Advertise- ments to Grindal, he speaks of himself, in the letter to Cecil, as having been put forward and not sup- ported, and as being reduced to despair by the treat- ment which he had received. I say that that means, and could mean nothing but this : " You have put me forward to do what I can of my own authority ; you will not support me with your authority, and the consequence is that I am obliged to send out my orders in this incomplete manner." When he does that what follows ? Sending out these letters in 1566 to be executed by Grindal and communicated to St. Paul's Church, he prefixed to them a preface which consists mainly of a sort of digest or abridgment of the letter of the 25th January, 1564-5, which was the first step in the matter, and after the receipt of which he kept it, and the Preface to the Advertisements, and 647 pressing for tlie authority whicli he never received. The letter from Queen Elizabeth to Parker is in the Parker correspondence, p. 223. If your Lordships compare that letter with the preface to the Advertise- ments, I say that, putting the two things together, it is perfectly clear that, in order to produce as strong an impression as he could upon the persons whom he wished to reduce to Uniformity, Parker put forward the letter, which the Queen had written on the 25th January, 1564-5, in such a way that a person not acquainted with all the correspondence which is now before the world at large, and who read the thing somewhat hastily, might very naturally suppose that the Queen had authorised it, when, in fact, she had not. The Lord Chancellor. — Is it your view that he persuaded the Bishop of London that he had the Queen's authority ? Sir James Stephen. — No. The remarks which I have made about one letter apply to the other. In order to judge fairly what those letters mean it is necessary to read them very closely and carefully, and to read them in coimection with that which never was before any one until all these State papers were published, that is to say, the correspondence between Parker, Cecil, and the Queen. I was goiag to criticise these two letters and give a full answer to your Lord- ship's question. The length of the language employed makes it rather difficult to follow, but after your Lordships read it through I think you will see it is as I say. The preface to the Advertisements is : " The Queene's Majestye of Her Godly Zeale calling to remembraunce howe necessary it is to the avauncement of God's glory, and the establishmente of Christes pure religion, for all her loving subjects, especially the state ecclesiasticall, to bee knitte together in one perfeote unitye of doctrine, and bee con- joyned in one uniformity of rites and maners in the ministra- tion of God's holy worde, in open prayer and ministration of sacraments, as also to be of one decent behavioure in their outwarde appareU, to be knowne partely by their distinct habits to bee of that vocation." 648 GrindaVs Letter to D. ^ 0. of Si. PauVs, shew The Loed Chancellor. — I think that you may give their Lordships credit for having the' document before them, and having read it once it may not he necessary to read it again. If you think it necessary to read it again, do so. Sir James Stephen. — ^No, I do not think it is. I am iu your Lordships' hands. I say, with regard to that letter, when it is read through, the verbs to that nomiaative case do not ia any way come to more than this : that the Queen has ordered the Archbishop to use his authority to procure conformity and obedience to the Prayer Book. That, I say, in two words, is the effect of that. I do not want to weary your Lordships by reading it through. Of course your Lordships will see whether what I say is a correct version of the matter or not. Well, then your Lordships are referred also to Grindal's letter to the Dean of St. Paul's, but before I come to that, which I will do immediately, I would ask your Lordships more particularly to refer to the Parker Correspondence, p. 272, a letter which Arch- bishop Parker wrote to Bishop Griudal on the 28th March, 1566, a week before Griadal made his com- munication to the clergy, I am mindful of what your Lordships said just now, and I wUl only direct attention to a very few words in this letter. They occur at the bottom of p. 273. I wiU just read the marginal note : " The Bishop knows what offence is taken at the want of uniformity in service and apparel, in contempt of the Queen's authority." Then it goes on to eay that : " The Bishops have power hy law to reform all offenders." Then: "The Queen a year past charged upon the Bishops the duty of enforcing obedience. There has ensued a humble conformity, save in some few persons ; in some of them perhaps from lack of particular description of orders to be followed. that the Advertisements were not the Queenh Laws. 649 For the reformation of the same, the Archbishop requires the Bishop to see the Queen's laws and injunctions " " duly observed within your diocese." Then, haviiig given Her Majesty's laws and In- junctions, he adds : " And also these our convenient orders described in these books at this present sent unto your Lordship." What I submit to your Lordships upon this is that in that letter Parker draws a distinct line between "Her Majesty's laws and Injunctions" on the one hand, and "these our convenient orders" contained in the Advertisements, on the other. Let me submit to your Lordships one further con- sideration upon this matter. From the suggestions which have just been made to me, your Lordships appear to me to be attaching some weight, at all events, in considering the nature of these Advertise- ments, to what Grindal said about them. The thing to be arrived at is, what the Queen said to Parker, not what Grindal said to the Dean of St. Paul's. I say by this correspondence you are enabled to get behind Grindal to see what Grindal's statement is founded upon. Grindal's statement could, in the nature of the case, be founded only upon what Parker said to him. Here we have Parker saying distinctly to Grindal, before Grindal says anything to the Dean of St. Paul's, " The Book of Advertise- ments are our convenient orders as opposed to the Queen's Majesty's Laws and Injunctions." Then we come to what Grindal says. I read this in opening, and I wiU now just refer to it again. There is no doubt that Grindal's letter to the Dean of St. Paul's contains a passage which, to a person who saw nothing else, would suggest that the Queen's authority was attached to the Advertisements, but I submit that when that is read in connection with the letters, to which I have referred your Lordships' attention, from the Queen to Parker and from Parker to Grindal, and when your Lordships recollect that it was Parker, and 650 Discussion as to the bearing upon the Advertisements not Grindal, wlio was commuiiicated with on that subject, you will see how the matter really is. I am reading from the State Papers, Domestic, Elizabeth, vol. 39, No. 76 : " These are to require you " to " call before you " various persons, and to " enjoin every of them upon pain of depriva- tion to prepare forthwith and to wear such habit and apparel as is ordained by the Queen's Majesty's authority expressed in the treaty intitled The Advertisements &o. which I send herein enclosed unto you, and in like to enjoin every of them, under the said pain of deprivation as well to observe the order of ministration in the church with surplice, and in such form as is set forth in the said treaty as also to require the sub- scription of every of them to the said Advertisements." In the first place, I say that, whatever meaning is to be attached to this letter, it is hearsay upon hearsay. The question is what the Queen said to Parker. There is no evidence that Grindal ever knew anything about it except what Parker told him. The Lord Chancellor. — What Parker told Grindal was that the Queen's Highness had expressly charged both you and me to see her laws executed and good order observed. 'Then he transmitted that order to him. Sir James Stephen. — Kot only to see her laws executed, but, if your Lordship goes a little further on The Lord Chancellor. — It is " decreed " and « executed " at p. 273. Sill James Stephen. — I am quite aware of that passage — ^these are general directions ; if you look a little lower down you wiU see them brought iuto a more specified form. The Lord Chancellor. — I do not wish to express any opiuion about it, but only to direct your attention to this, that you properly speak of what Parker said to Grindal before Grindal sent that letter. What Parker said to Grindal was that the Queen had called them both into her presence and had charged both of of the Queen's Order to Parker and Grindal. 651 them not merely "to see her laws executed," but " good orders " to be " decreed and observed." SiE James Stephen. — ISo doubt that is so ; that refers to sometbing of wbicb we have no knowledge whatever except wbat Parker records by mentioning it to , Griadal, and as to what may have passed at any interview between the Queen and the two prelates, that will never be known. I should interpret those words to mean, the Queen ordered both of us to see good orders decreed and observed, that is, she ordered us to see her laws executed, and to use whatever authority we had to make orders, such orders as we could make apart from her laws. I should not read the word " her " before " laws " as going on to " good orders" also. The good orders that were to be decreed by the Bishop, and her laws to be observed are the laws made by the Queen. He goes on : The Queen having told us that, " I can no less do of my obedience to Almighty Grod, of my allegiance to her Princely Estate, and of sincere zeal to the truth and promotion of Christian religion now established, but require and charge you, as you wiU answer to God, and to Her Majesty, to see Her Majesty's laws and Injunctions diily observed within your diocese, and also these our convenient orders described in these books " That is to say, the Queen told us to execute her laws and to make such orders of our own as we could ; whereupon I call upon you to cause the Laws and In- junctions to be executed, and to see these convenient orders of ours observed. So much for that letter. Then I come to what Grindal said. Grindal tells the clergy that they are — "to prepare forthwith and to wear such habit and apparel as is ordained by the Queen's Majesty's authority expressed in the treaty entitled the Advertisements &c. which I send herein enclosed unto you, and in like to enjoin every of them, under the said pain of deprivation as well to observe the order of ministration in the church with surplice, and in such form as is set forth in the said treaty, as also to require the subscription of every of them to the said Advertisements." 652 Advertisements, as to Apparel, refer to Iiyunctions : The view that I take with regard to that is as follows: — The Advertisements refer to the Injunc- tions. On the subject of the apparel, your Lordships will find that they have two parts. I will just refer your Lordships to the Advertisements : " Articles for outward apparel of persons ecclesiastical : " Archbishops, Deans, and Doctors of Physic. Then it says : " That they and all ecclesiastical persons or other, having any ecclesiastical living, do wear the cap appointed by the Injunctions. And they to wear no hats but in their journey- ing." Then it goes on with some more things of that kind. The effect of that is, you are to wear such habit and apparel as the Advertisements tell you is expressed by the Queen's authority in the Injunctions. The Advertisements refer you to the Injunctions and give some further directions. Tou are to observe such matters in regard to apparel as the Queen's Majesty's authority ordained, which authority is expressed in the treaty intitled the Advertisements, that is to say, you are to observe the Injunctions referred to in the Advertisements, and besides that you are to keep the Advertisements as to the ministration in the Church with surplice. The Queen's authority is referred only to that matter to which the Injunctions apply, and to which the Advertisements say that the Injunc- tions applied. The passage of the Advertisments, which has been so much relied upon, relates to the surplice. If you read those words of Grindal's it is clear to my mind that when he is speaking of the Queen's Majesty's authority, as expressed in the treaty intitled the Advertisements, he speaks of that in one place and he speaks of the surplice in another place, as if he meant to say that that part of the Advertisements which embodies the Injunctions is of Eoyal authority because the Injunctions are of Eoyal authority, but that that part which relates to the Grindal only claimed this. Counsel for Respondent 653 use of the surpKce rests upon another foundation, namely, upon the authority of the Bishops themselves. All that I have to add on this subject is that Grindal in that letter is doing the very utmost that he can to get these Advertisements inforced, and that he natu- rally, and indeed unavoidably, looked about for every- thing that he could think of in order to invest them with as much authority as possible. He was called upon to do an act which, as has appeared from many parts of the argument, was most unpopular and im- mensely opposed, and was the origin, as Dr. Cardwell says, of the first schism in the Church of England. Having to do that, he naturally draws up his manifesto or order on the subject, in. terms, as I submit, purposely contrived to go as far as he could towards claiming the Eoyal authority for what he is doing ; yet, when closely examined, it will be seen that the Eoyal authority which he so claims he claims only with respect to so much of the Advertisements as were in fact a reference to the Injunctions. That is what I have to say upon that letter. I may observe, although I was stopped by your Lordships when I was Speaking of what passed between one of your Lordships and my learned friend. Dr. Stephens, during the argument, that in this case I am almost at one with both my learned friends on the other side. I think I am entitled to take it as something of a proof that my contention is the right one. I have mentioned what Dr. Stephens said, and I now turn to what Mr. Shaw said. Mr. Shaw said, " Our argument shews only that they " — that is the Advertisements — " had not the Queen's assent up to a certain time ; we quite admit that up to a certain time she did not assent, but she did afterwards." SiK EoBEET Phillimoee. — What was that interval of time ? Sir James Stephen. — That I was coming to. It was necessary for my learned friend and highly desirable that he should say when the Queen assented, and how, and where, but he did not say so, and 654 admitted Queen's delay to assent. Letter of Parker neither my learned friend, Dr. Stephens, nor my learned friend, Mr. Shaw, has assigned any time whatever as being the time when the Queen did assent to the Advertisements. My learned friend. Dr. Stephens, indeed did shadow forth some kind of assent which I confess I did not understand : he said that in the first draft of the Advertisements there was a reference to the Articles of Eeligion, and that that was afterwards withdrawn, and then the Queen assented. But like one or two other of my learned friend's remarks — ^that about the second Lincolnshire Commission and so on — that observation seemed to me to belong to that class of " important if true," but I do not see what authority he gave for it. The Lord Chancellor. — What do you understand to have been the temper of the Archbishop, and Bishop, and of the Queen ? Was it that the Prelates were anxious for these Advertisements to come out, or was it the Queen ? Sir Jambs Stephen. — I take the temper of the times — The Lord Chancellor. — I do not mean the temper of the times, but of these Prelates. Sir James Stephen. — The temper of these persons I understand to have stood thus — that the Queen was in many minds upon the matter ; that there were two persons, each of whom had considerable influence with her. As has been stated in many documents cited in the case, Lord Leicester who was a great favourer of the Puritans was on one side, and Cecil, and others who wished to promote uniformity, on the other. The Queen would not decide between them, and inasmuch as the Advertisements were intended to be and were taken as being a great blow struck against the Puritans, she hovered between the two, and Lord Leicester over-persuaded her not to give any authority to them. The Lord Chancellor. — Parker and Grindal write a joint letter to Cecil six days before the Ad- vertisements were issued, 20th March, 1565-6, in and Grindal, and Parker's to Cecil, March 1565-6, 655 which, they state what they projposed to do. They say they proposed to call the London Clergy before them to enquire of everyone of them whether they conform to these regulations, and to suspend such of them as do refuse : then they say " What tumult may follow ; what speeches and talks be like to rise in the realm, and presently in the whole city by this, we leave it to your wisdom to consider. We trust that the Queen's Majesty will send some honourable to joia with us two, to authorise the rather her Commandment and pleasure, as your Honour signified unto me was purposed. And thus, praying you to consult with whom your wisdom shall thmk most meet, that we may be resolved ; and that on Friday, the parties sum- moned for their appearance on Saturday following at one of the clock, order piay be taken." Sir James Stephen. — That seems to be the language of persons who had received uncertain and unsatisfactory instructions, putting them in a position of great difficulty, and calling on them to embark in an undertaking which as subsequent evidence proved was of the gravest possible kind. They wish that their powers shoxdd be clearly defined, and tried to get authority for that purpose, no doubt being pre- pared to obey positive orders, but they cannot get them, and what I suggest is, that they were in a position like that of Davidson, when Mary Queen of Scots was to be beheaded, Her Majesty vacillated about it, and at last sacrificed him by getting him to carry out the execution in a way which more or less enabled her to disavow him afterwards ; she acted in very much the same way towards the Bishops. The letter your Lordship has read is the 20th, but if your Lordships look at the letter of the 28th March which foUows it, you will see the state of despair almost to which Parker was reduced, by the want of the very order which he solicited in the letter men- tioned by your Lordship. " I pray your Honour to peruse this draft of letters and the book of Advertise- ments with your pen, which I mean to send to my 656 prove thai they could not gain Her authority. Lord of London. This form is but newly printed and yet stayed till I may hear your advice. I am now fully bent to prosecute this order, and to delay no longer, and I have weeded out of these articles, all such of doctrine, &c., which peradventure stayed the book from the Queen's Majesty's approbation, and have put in but things advouchable, and, as I take them, against no law of the Eealm." This is the important thing, " and where the Queen's Highness will needs have me assay with mine own authority what I can do for order, I trust I shall not be stayed hereafter, saving that I would pray your Honour to have your advice to do that more prudently in this common cause which must needs be done," That I say is distinctly the language of a man who says, "WeU, you put it on me, I will do my best, and I mean to go on with it. I have taken out things which were objected to." That accounts for what my learned friend says. The point I could not see is where my learned friend's assent comes. The Loed Chancellor. — Do you think it may be considered that what the Prelates were feeling was their want of physical authority ? They first spoke of some suggestion of authority being sent to help them, and then they speak of pointing out some other means by which they may enforce their order. SiE James Stephen. — I suspect they were not men to be deterred by the fear of mere tumult. The real weakness they felt was they were afraid of being dis- avowed afterwards. They could not get any distinct or positive order from the Queen, and they were in exactly the same position as any other person who had to deal with her. No words surely could be stronger than that, " Where the Queen's Highness will needs have me assay with mine own authority what I can do for order." He means to say, "Ton order me to go and attack these people, in fact, I will go and do it, and do the best I can, but I made my orders as unobjection- able to you as I could, and as I am to do this very desperate service I would pray your Honour to have Further, proof from Parker'' s last letter to Cecil and 657 advice as to how I can do it obediently." That is the position in which I say they were placed. My Lords, I have now arrived very nearly at the end of what I had to say upon the particular question of the Advertisements. I was just going to finish the history about that correspondence. After that earnest appeal on Parker's part for authority, there is still one more letter, ia which he speaks of himself as being in a state of complete despair upon the subject. That letter is dated 28th of April, 1566, and as far as I know, it is the last letter which refers to the subject of the Advertise- ments : " The Queen's Majesty willed my Lord of York to declare her pleasure determinately to have the order to go forward. I trust Her Highness hath devised how it may be performed. I utterly despair therein as of myself, and therefore must sit still, as I have now done, alway waiting either Her toleration, or else further aid." Tour Lordships will see, he says : "Mr. Secretaiy, can it be thought that I alone, having sun and moon against me, can compass this difSculty ? If you, of Her Majesty's Council, provide no otherwise for this matter than as it appeareth openly, what the sequel will be horresco vel reminiseendo cogitare. In King Edward's days the whole body of the Council travailed in Hooper's attempt. My predecessor, Dr. Cranmer, labouring in vain with Bishop Farrar," (He was deprived for a variety of things, and his was a very singular case, but I need not deal with it now.) " tbe Council took it in hand ; and shall I hope to do that the Queen's Majesty will have done? What I hear and see, what complaints be brought unto me, I shall not report ; how I am used of many men's hands. I commit all to Grod. If I die in the cause (malice so far prevailing), I shall commit my soul to God in a good conscience. If the Queen's Majesty be no more considered, I shall not marvel what be said or done to me." 658 from his different language when he could recite And so it goes on. The substance of that letter, I suhmit, is a man writing and saying : "What am I to do? You will not support me, you will not give me order; the Council will not help me, the Queen wishes me to go on, and I utterly despair — ^what is to become of me ? " When that is put together you have there the very transaction itself. I can imagine nothing which carries further the position of a man who has not got, and canaot get, the authority which he requires, iu order to go on with the undertaking which is imposed upon him. My Lords, to dismiss this subject, and to answer your question finally about Parker and the Advertisements, let me ask your attention to an earlier letter upon quite another subject, in order to show you how Parker expressed himself when he had the Queen's authority. It is in the Parker Corres- pondence, p. 134, and is a long Latin letter written by Parker to Grindal, under date 16th February, 1560-1. The marginal note of it is this : " The Queen has addressed to the Archbishop Her letter of the 22nd of January last past, commanding that the Ecclesi- astical Commissioners should make certain alterations or re- formations. The Archbishop thereupon commands the Bishop of London with aU speed to publish the orders for reformation of the Kalendar, and setting up Tables of Commandments, whereof a printed copy is annexed to the Suffragan Bishops of the province of Canterburj-." The material words illustrating my contention are these: ,^..:' ' "Matthseus, permission e divina Cantuariensis archiepiscopus, totius Anglise primas et metropolitanus, venerabili confratri nostro domino Edmundo, eadem permissione Londoniensi episcopo, Salutem et fraternam in Domino charitatem. Cum serenissima domina nostra Elizabetha, Dei gratia Angliae Francise et Hibernise regina, fidei defensor, etc, per literas suas missivas datas apud Westmonasterium 22do die mensis Januarii ultimo prseterito, anno regni sui tertio, nobis ac fraternitati vestro et aliis commissariis suis ad causas ecclesi- asticas decidendas per literas suas regias patentes magno sigiUo Angliae sigillatas deputatis et assign atis, inter aha dederit," the Queen's authority/. This Correspondence not 659 And so on. So that your Lordsh.ip sees when he has got the Queen's authority he recites it in the fullest terms, and on the strength of it orders Grindal, his Sxiffragan, immediately to publish the Queen's com- mands, and see them carried into effect. If he had had such an order at the time the question of the Advertisements were under consideration, or any authority which he could vouch at all, is it conceivable that he should have written then to Cecil in the manner I have described. To proceed, my Lords, with the arguments of my learned Mends upon the subject of these Advertise- ments. My learned friends abstained entirely from referring in any manner to the correspondence to which I have now twice called your attention. They have suggested no other way of interpreting it than that which I have submitted to your Lordships, and that after the fullest notice on my part of the con- struction which I put upon the matter. Both my Mend Dr. Stephens and Mr. Shaw in different ways, very clearly expressed their opinion that Her Majesty had not at first given her authority, although my Mend Dr. Stephens suggested out of the great learn- ing which he possesses, that she did in fact consent ; but unfortunately he forgot to mention any authority for that proposition, and even his knowledge would not, I think, suffice to vouch such a fact as that. My learned Mend, Mr. Shaw, said that the Queen acted on this occasion very much as she did with regard to the Book of Honulies. My Lords, I think that is exceedingly likely ; but what I fail to see is this — I do not know what the Queen did about the Book of Homilies, nor can I see that it interests me to inquire, but whatever she did I think it exceedingly likely she did act in a manner which might render it exceedingly difficult, if the occasion should ever arise, (I do not see how it can) to consider how far those books were authorised by Eoyal authority. ]^y Lords, as to minor points I pass over them very lightly indeed. There was a good deal said about tJTJ 2 660 adverted to on the other side: hut presumptions and presumptions; but, I submit this is not a question which, any of the law relating to presumptions comes into question at all. Tour Lordships do not require rules of construction to enable you to judge of plain simple evidence of an actual transaction regarding which you have all the letters before you. A pre- sumption I have always understood to be an artificial rule for deciding in the absence of evidence ; but here you have the actual transaction — ^the whole thing set forth, and the original letters which passed between the parties interested and the paper itself which was published. My friends have to pray in aid aU manner of presumptions, and to quote cases upon all sorts of things which do not seem to me to have much to do with this subject, in order to find some ground upon which it can be held that the Advertisements were authorised ; but I say boldly upon the facts that the transaction itself shews that they were not authorised; and shews why they were not authorised ; and if that is so, one may pass over altogether the whole series of presumptions about " res magis valeat quam pareat," and so forth. My friend. Dr. Stephens, suggested a variety of matters, and I am rather following my note of what he said, than my particular thread of argu- ment. In that way I daresay I am doing him injustice, but he did say about the time he was speaking of the Advertisements, that if the Advertise- ments and Injunctions had not abolished the chasuble and alb, then any clergyman who had administered the Sacrament without wearing the alb or chasuble, might have been imprisoned for it. I have nothing to add to what I have said to your Lordships about the number of very Penal Statutes which have been constantly transgressed with impunity ; but I have a word to say by way of following out a remark which I think dropped from the Lord Chancellor in the course of the argument, as to whether after aU, there were such penalties affixed to the Statute. It is not necessary to argue the matter elaborately, but I think if you look at the Statute of Uniformity you will find supposed penalties pressed for authority of Advert'- 661 great reason to doubt whether any of the penalties of that Act would apply to the non-user of the ornaments in the proviso. The Lord Chancellor. — "Will you repeat that, Sir James Stephen ; I have not quite caught what your proposition is ? Sir James Stephen. — I was saying that much argu- ment has been raised upon the assumption that those who did not wear these Ornaments were, upon our construction, exposed to heavy penalties. In answer to that I referred your Lordship to many other cases in which persons have neglected to conform to highly penal Statutes, and I argued that no reference could be drawn from that. But, besides that, I wish to refer for a moment to a remark which, I think, fell from your Lordship in the course of the argument, namely, as to whether, after all, when you look to the proviso about the Ornaments, there is, in that Statute, any penalty for not wearing the Ornaments directed to be worn in the first Book of Edward YI. It is a highly penal Act — it is one of the most penal Acts on our Statute Books. I will venture to say that there is hardly any Act still in force which has such heavy penalties, because it imposes the penalty of imprison- ment for life on a person who offends three times in certain particulars. Those penalties are imposed for a great variety of offences : for depraving the Prayer Book, for using other Prayer Books, for preventing persons using the prescribed Prayer Book ; and it is declared that those offences may be inquired into either by the Ecclesiastical authority or by the Judges at the Assizes, and then at the end, after going through a long series of offences, occurs the proviso in question, that these Ornaments shall be used, but it does not say what is to happen if they are not used. The Lord Chancellor. — ^Which proviso do you refer to ? Sir James_Stephen. — The proviso upon which, in this case, there has been so much argument— the 662 discussion whether Sect. 25 is repealedhy Stat. 1662. proviso at the end of Queen Elizabetli's Act of Uni- formity. The Lord Chancellor. — Oh! I thought you meant the Act of 1662. Sir James Stephen. — I was saying that the Act of Uniformity, which applies to the present Prayer Book, is the most severe Act on the Statute Book, or, at all events, one of the most severe. It is not a very lead- ing or essential point in my Case, but I do say it. The Lord Chancellor. — As I asked the other side so I should like to ask you, Do you consider that the Section of the Act of Elizabeth, beginning " provided always," is repealed by the Act of 1662 ? Sir James Stephen. — Certainly not. Part of it is obviously spent because part of it refers to the Eccle- siastical Commissioners, and of course that is spent with the Ecclesiastical Commissioners. The Lord Chancellor. — But it is in the alternative, " or the metropolitan ? " Sir James Stephen. — ^Well, my Lord, as to whether Her Majesty might still take " further Order " with the consent of the Metropolitan I do not say she could at all ; but it seems to me an arguable point whether Her Majesty has power to take further order with the consent of the Metropolitan, or whether, in as much as it is put in the alternative — and one branch of the alternative is excluded by circumstances — the whole of that part of the proviso may be considered as being spent ? The Lord Chancellor. — One does not suggest any possibility, or otherwise, of taking further order now ; but, putting that aside, do you consider the Section repealed ? Sir James Stephen. — No, my Lord, certainly not. With regard to all the rest I say that it remains in force, and that it is cumulative with the Act of Uni- formity of 1662, the 24th Section of which is an express saving Section. The penalties of the Act are in force, and are applied by the earlier part of the Act of 1662 to the Book of Common Prayer, which is at Some evidence only secondary as to Adv*'' : their 663 present in use. Then the proviso as to the Orna- ments I consider is in force, and is saved by the general saving clause. As to the Queen's power to take further order that is a doubtful point, but I am not at all prepared to say that Her Majesty could not take further order. My Lords, my learned friends mentioned a good many instances which they supposed to shew that different people of acknowledged authority said that the Advertisements had the force of law. I confess to my mind that seems very unimportant, and for this plain reason, that your Lordships are now, with these letters before you, very much better informed as to the whole of that transaction than any person could be, however near the time he lived, who had not seen that correspondence. Therefore the fact, that anything was said one side or the other as to the authority of the Advertisements, appears to me to resemble secondary evidence when you have got the documents themselves before you, and I really lay very little stress upon it. However, I will just say a word or two, and it shall be but one word or two, upon one or two points that my learned friends have mentioned. My learned friend. Dr. Stephens, said that Arch- bishop Parker in his Yisitation Articles refers to the Advertisements as of " public authority," and he says it is impossible to use stronger or more explicit language ; but in that particular case he did use more explicit language, because he contrasts, in those Visi- tation Articles, (1, CD. A., p. 356), "Injunctions" which had "royal authority" with the "Advertise- ments " which had " public authority," so that he treats the Injunctions and the Advertisements as being of different degrees of authority. This is the enquiry : " Whether your curates or ministers do publicly in their open Churches read in manner appointed the Queen's Majesty's Injunctions and Homilies; the Advertise- ments lately set forth by public authority." Now I should have said, that so far from that being an instance in my friend's favour it is an instance against 664 inferiority shewn hy the terms ^'■public authority,^'' Sfc, Mm, because it clearly puts the "Advertisements lately set forth by public authority " upon a lower level than the Queen's Majesty's Injunctions and Homilies. My friend quoted several of these instances, and I would point out that the same thing appHes even more forcibly to the Articles of Bishop Cox, who was one of the persons who signed the Advertisements. Cox in his Yisitation Articles (2 Kit. Com. Kep., p. 406) orders : " That every Parson, Vicar, and Curate shall use in the time of the celebration of Divine Service, to wear a surplice, prescribed by the Queen's Majesty's Injunctions and the Book of Common Prayer, and shall keep and observe all other rightes and orders prescribed in the same Book of Common Prayer and Injunctions, as well about the celebration of the Sacraments, as also in their comely and priestlike apparel to be worn according to the precept set forth in the Book called Advertisements." So that Cox, who certainly ought to have known, as one of the authors of the documents, what their character was, so far from putting the two on a level, put the Queen's Majesty's Injunctions and the Book of Common Prayer in one division, and the Book called Advertisements in quite another as if they were of a difierent and inferior order. Then there was a reference made to the destruction of copes, vestments, and albs at Oxford, as to which I can only say, set it against Bishop Jewell's destruction of images at Exeter— the mere fact of destruction, as I have already shewn, proves nothing at aU. Then my learned friend, Mr. Shaw, gave his series of authorities upon the Advertisements, and gave an account out of your Lordships' books about an un- fortunate man of the name of Crowley who got into the custody of the Bishop of Ely of that day, and the Bishop of Ely not unnaturally felt himself considerably embarrassed with him and was very desirous of getting rid of him, and when your Lordships consider a little what the proceedings were it really does seem that though Hooker 6f Wren assign them the Qh. authority. 665 Crowley had. rendered himself obnoxious to almost every kind of ecclesiastical censure, because he attended to Ana-baptistical teachers and doctrine, and he spoke of the lawful authority of Her Majesty and her Courts by the disrespectful name of "the wolf," and said he would resist the wolf and hoped to "have had the glory to be committed to prison." "But," says Parker, "I dulled his glory," and it would seem the Archbishop dulled his glory by sending him to prison, because your Lordships will remember there was a difficulty about getting him out. But what can be inferred from a case of this kind, except that this Dr. Crowley in one way or another got himself into trouble before the High Commissioners or the Privy Council of that day ? Then my friend also mentioned that Hooker spoke of the Advertisements as being confirmed by the Queen ; to which I can only say that Hooker's au- thority as a divine, and, I might say, as a man of thought and letters, stands as high as anyone's can : but on a mere point of antiquarian history, or minute questions of ecclesiastical law of this kind, I do not see that his authority is good for anything. The same remark applies to "Wren's ' Parentalia.' There is, however, one remark for which I thank my learned friend, Mr. Shaw, very much, because, after quoting those people as saying that the Advertisements were of public authority, my friend was at great pains to give your Lordships a long catena of authorities of the most irresistible kind to prove that nothing could be more vague than the words " public authority," and that it applied to all sorts of things. Therefore I would answer the first part of my friend's argument with the second part, which appears to me to be the sounder of the two. My friend said that I made an admission (and I think he caught me in a mistake there, because no doubt I did make a mistake,} that in one of the rubrics in the book of 1549 it says, "with gospeller and epistoUer agreeably." Well, says my friend, 666 Meaning of ^^ gospeller 6f eptstoler agreeably.''^ that means that the gospeller and epistoUer were to wear copes as well as the principal minister, and he said that I had admitted that. Then he proceeded to shew from the Advertisements that they contradict that, because they say that those people were not to wear copes. No doubt that does great credit to my friend's ingenuity, but the answer to it is simply that my admission was an improvident and mistaken one, as I think I can conviace your Lordships iu a moment. The Advertisement says, that " In ministration of the Holy Communion in the cathedral and collegiate churches, the principal minister shall use a cope with gospeller and epistoler agreeably." I had admitted, in arguing this matter, and I have no doubt I made a great many mistakes — ^for really the matter is almost indfinite and very strange — that that probably meant they were all three to wear copes ; but upon ftirther and better consideration of the subject, I submit it does not mean any such thing, but means, on the contrary, that they were to wear those ecclesiastical garments which were agreeable or proper when the officiating minister wore a cope. And that appears from the rubric of 1549, where it says that on the day for the Communion the priest is to put upon him the vesture appointed for the administration — a white alb plain, with a vestment or cope. " And where there be many priests or deacons, there so many shall be ready to help the priest in the ministration, as shall be requisite ; and shall have upon them likewise the vestures appointed for their ministry, that is to say, albs with tunicles." So that the cope is to the principal minister as the tuniele is to the gospeller and epistoUer. Therefore the result would be that the words " gospeller and epistoler agreeably " would not present that difficulty which my friend pointed out. Me. Shaw. — I was quite prepared with evidence on that point, but my friend admitted that the gos- peller and epistoler wore copes, and not albs and Canons 6f p. Bk.,lQ04:, — re-statement of argument on 667 tunicles, and therefore I did not prove it. It must not be assumed that I could not have done so. Sir Jambs Stephen. — I suppose there is an end to all things in this world, otherwise we should never conclude this argument. I shall go no further iato this matter ; and, to pass from that, I think it con- cludes all I have to say by way of reply to my friends upon the subject of the Advertisements. Then the next point is their view of the Canons of 1604 ; and upon that I have to remind your Lord- ships of what my argument was. I said, and I think I have proved — because neither of my friends pre- tended for one moment to answer me — I proved, and my friend Mr. Charles proved to demonstration, that the Prayer Book issued by James I. in 1603-4, the amended Prayer Book, was issued by him under the power contained in the proviso to the Act of Uni- formity ; that it was regarded by him as " further Order " under that Act, and so far from receiving authority from the Canons, the Canons were auxUiary to the Prayer Book : and I also shewed your Lord- ships the various reasons upon the strength of which I said that it was essential to my friend Mr. Shaw's argument that the Prayer Book should receive au- thority from the Canons. I then shewed that it did not receive authority from the Canons, and to that argument neither of my friends said anything. Then I went a step further. I said if James the First's Prayer Book, issued in 1604, was a due exe- cution of the authority contained in the proviso, it would override and repeal the Advertisements, because it reintroduces the Ornaments Eubric of the first book of Edward YL, and therefore it would repeal the Advertisements, and it introduced it also without the word " retained " — ^in a sUghtly more favourable form for my contention than the later one. However, be that as it may, I say that the effect of that Act on the part of James I. would be, if it was a valid Act, to repeal the Advertisements. I say, therefore, that the vestments would be reintroduced if they were 668 their hearing upon Orn*'' Rub. — discussion as to repealed by tlie Advertisements, wiiicli I deny, by what undoubtedly was a further Order by that rubric of James I. The Lord Chancellor. — By tbe rubric, or by the Canons ? Sir James Stephen. — The first Prayer Book was published before the Canons. Lord Justice James. — The first Prayer Book re- enacted, so to speak, or at any rate contained a rubric as to the Ornaments Eubric of the first Prayer Book of Edward YI. Sir E. J. Phillimorb. — ^Was Abbott aUve when James' Prayer Book was published ? Sir James Stephen. — I cannot inform your Lord- ship. The Lord Chancellor. — I should like to under- stand what you said just now with regard to James I's Prayer Book. There was a rubric upon Orna- ments in it — ^what authority do you attach to that ? Sir James Stephen. — I say that the Prayer Book issued in that way The Lord Chancellor. — Issued in what way ? Sir James Stephen. — ^TJnder Letters Patent re- citing the proviso at the end of the Act of Uniformity. I say that that was an execution of the Parliamentary authority. The Lord Chancellor. — Then the Letters Patent were followed by a Proclamation ? Sir James Stephen. — ^Yes, they were. The Lord Chancellor. — ^And the Proclamation specified certain alterations ? Sir James Stephen. — ^Yes, my Lord. I take it it meant in substance, so to speak, the re-publication, on the highest possible authority, of Edward the Sixth's Prayer Book with certain alterations. Consequently the part which is unaltered being re-published by the King with a Proclamation of that kind The Lord Chancellor. — The Prayer Book of that time was Elizabeth's Prayer Book. Sir James Stephen. — Yes, it was Elizabeth's Prayer the authority hy which P. Bk., 1604, was issued: 669 Book, and it is taken in connection with the proviso which incorporates so much of the Prayer Book of Edward YI as refers to ornaments. Will your Lord- ship allow me to explain it a little more clearly? Elizabeth's Prayer Book first of all embodies by reason of the Statute of Elizabeth so much of the first Prayer Book of Edward VI as relates to ornaments. The Lord Chancelloe. — Till further order. Sir James Stephen.— Till '' other order." Then come the Injunctions and the Advertisements of which we have heard so much ; and afterwards there comes James I's Letters Patent, which Letters Patent relate to the making of certaiu amendments in the Prayer Book. The Lord Chancellor. — But not specifying what they are to be. Sir James Stephen. — N'ot specifying what they are to be, but saying that by that further order it was proposed to make certain amendments. The Lord Chancellor. — That alone would not give any sanction to specific amendments tiU they were proclaimed in some way. Sir James Stephen. — No my Lord ; first of all the Letters Patent say, " I James 1st am about to take further order under the proviso in the Act of Eliza- beth." The Lord Chancellor. — Yes. Sir James Stephen. — Then, my Lord, the next point is the proclamation. The proclamation says, " This is the further order I was going to take, to wit, I am going to make these amendments and no other iu the Prayer Book." Lord Selborne. — It was left as it was before. Sir James Stephen. — ^With great submission I do not think it was left as it was before. As regarded the further order the alterations no doubt were a further order, but as regarded the rest of the Prayer Book, I say that the publication of that Prayer Book in that manner with that Eubric in it, unaltered, is as strong a declaration on the part of King James I. as 670 that Book re-enacted the Ornaments Rubric. you could possibly have, that in his opiuion the Orna- ments Eubric of Queen Elizabeth was still in force. James I's Prayer Book contained a distinct reference to the Ornaments Eubric of 1559, and that Ornaments Eubric contains a distinct reference to the ornaments prescribed in the first Book of Edward VI. What I say is, that the publication by James I in 1604 of an amended Prayer Book of 1559 is an affirmation at the very least on the part of James Ist that the arrangement with regard to ornaments was then unaltered. The Lord Chancellor. — I was anxious to follow your argument. I quite understand it now. Tour view is this, that over and above the specific alterations which he mentioned and which he sanctioned, the issuing of the rest of the Prayer Book in its former form made it speak as from- that date ; and the Orna- ments Eubric would speak as if the King had ex- pressly said, "That is the Eubric wliich I am now enacting." Sir James Stephen. — Certainly my Lord. That is my argument, and just to complete it, I further add that if the Advertisements are to be regarded as a further order for the purpose of repealing the pro- vision relating to ornaments, that republication of the Prayer Book in 1604 would repeal the Advertisements — it is a still further order. That my Lords is my argument, which your Lordship has stated for me better than I could have stated it myself; and, that being so, I ask whether anything that has been said by either of my friends has in any degree touched that argument ? I venture to assert that neither of them even stated it for the purpose of touching it, although there was a definite argument to be stated and to be met. But my friends then go on to say that the Canons themselves were a " further Order." My Lords, I respectfully submit that that is a most forced and unnatural construction — that if Parliament gives to the Crown the power of legislating in a certain way and by an executive act, that authority must be Canons of 1604 not^ as alteged, made under Sect. 25 ; 671 foUowed in a strict and definite way; and that it would be altogether wrong to say that because the persons who were present in Convocation may have contaiaed a certain number of Ecclesiastical Com- missioners — how that was I am not at this moment able to inform your Lordships — but that because it contained a certain number of Ecclesiastical Com- missioners more or less, therefore whatever those Ecclesiastical Commissioners did as members of the Convocation was an assent on tbeir part as Eccle- siastical Commissioners, and such an assent as was required under the proviso of the Act of Elizabeth. 1 say that whatever Convocation did on that occasion, tbey did that whicb Convocation can lawfully do whatever that may be ; and that their Canons ratified by the King had just so much force as the Canons of any Convocation have when so ratified, and no other. And as regards tbe Metropolitan be certainly did not consent because tbere was no Metropolitan ; and as for tbe Ecclesiastical Commissioners, my friends have not shown wbo they were or tbat they consented. I am not able to inform your Lordship with absolute certainty upon tbe matter. I have been making enquiries and there is some difficulty in arriving at a conclusion upon tbe point, but the Ecclesiastical Commissioners erf James I. were a body of whom you may see the appointment in Eymer. Tbey were to act in a quorum of three, and it is a remarkable thing that tbey were almost all Wincbester people, and amongst others especially the Eecorder of "Wincbester was prominent. Tbe Bishop of "Winchester was to be one, but wbetber tbe Bisbop of "Winchester signed these Canons or not I cannot tell. "We will try to ascertain, but we bave not received any information on tbe sub- ject. If be did not sign tbe Canons Me. Shaw. — ^Will you allow me for one moment. "The Bisbops of London and "Winchester and some others of our Commissioners autborised under our Great Seal for causes Ecclesiastical." Tberefore tbe 672 they had not the assent of Ecc'- Com"or Metropolitan : Bishop of London was present and he was one of the Commissioners. Sir James Stephen. — It is very difficult for me to follow exactly the remarks which my friend interjects in this way, and I cannot really deal with them at a moment's notice ; but if the Bishop of Winchester did not sign the Acts of the Convocation, that would be fatal to the possibility of their being a further Order under the proviso. If, on the other hand he did sign it, then I say he signed it only in his capacity as Bishop of Winchester and member of Convocation, and not in his capacity as Ecclesiastical Commissioner, assenting under the proviso m question. There is one remark on the Canons which I ought to make, which is this : If these Canons are a further Order of any kind, if they are made under the proviso of the Act of Uniformity then it will follow that they have Parliamentary authority, and it would foUow that in aU matters relating to ritual observance and so forth they are biading on the laity, but they are not, {Middleton v. Crofts), and I say that the fact that they have no Parliamentary authority and are not binding upon the laity, is inconsistent with the notion that they can be regarded as an execution of the power contaiaed in the proviso ia question. My Lords, various remarks were made by my friends about these Canons. My friend Dr. Stephens said, and Mr. Shaw repeated, that no express Parlia- mentary sanction was ever given to the authorised version of the English Bible. I am quite aware of the fact, but I cannot follow the consequence. There can be no doubt what is the Bible which is intended to be read in Churches, but speaking in the most strict and literal sense the Bible is not an Act of Par- liament, it is something far different from an Act of Parliament ia every way. As an object of reverence and standard of faith and practice and so forth it is not necessary to say what the Bible is ; but as to the legal character of that book, my friends seemed to take it for granted that the translation of James has if made under Act of Unify- would bind the Laity: 673 some special legal character of its own, and that you must assume some royal sanction, to it wMcli would give tliat legal character. My answer to that is that I am not aware that the Bible of King James hais any such legal character, or any other legal character than that of beiag used for the purposes for which, as we all know, it is used. I was going to observe that perhaps your Lordships may not at this moment have present to your mind the recollection of the particular point upon which Crofts V. Middleton turned, but it was on the validity of a marriage without banns as prescribed by the Canons, and it was decided that the Canons at that time were not bindiag on the laity in that particular. Now that is just one of the particulars ia which the Canons, I submit, would have been binding on the laity if they had been a further order under the proviso of the Act of Uniformity and so had regulated the rites, because it was not doubted that the marriage had not been according to those Canons. We have done what we can to find out whether the Bishop of Winchester signed these Canons, and my friend Dr. Phillimore says that they have looked high and low, and cannot find one way or the other any proof at all about it as to who signed them. They have been to three depositories — The Vicar General's office, Lambeth, and Westminster. The Lord Chancellor. — Then we shall go on in ignorance. Sir James Stephen. — We are entitled to the benefit of the doubt. Dr. Stephens. — He signed them ex officio. Sir James Stephen. — That is part of your "ex- elusive information." I was going on to my friend's criticism about pre- scribing a minimum. I do not think it is exactly the phrase which I should have chosen. I should have put it rather in this way. It seems to me that the Canons (I will not say what their authority may have been) and the Advertisements also, whatever authority they XX 674 enforced Surplice, did not limit Rubric. Laud's may have had, contain an especial order to wear the surplice ; that is to say, they exposed any person who did not wear the surplice to the double consequences of disobeying the first Prayer Book of Edward VI., and also of disobeying the Canon itself. Cumulative prohibitions of that kind are common enough. In fact I could give any number of illustrations, but one wiU be as good as a thousand. There are Statutes which punish, for instance, the forgery of a deed, but the forgery of a deed does not cease to be forgery at Common Law, because it is also a statutory felony ; and you may indict a man at Common Law for forging a deed as for a misdemeanoui- if you think proper. In the same way, the Injunction in the Canons that you are to wear a surplice, is simply an extra and cumu- lative Injunction (whatever the authority of the Canons may be) to the earlier provisions which directed the same thing. Then my friend says that the object of these Canons and of the Act of Uniformity was to prevent any degree of variety, and that therefore that was incon- sistent with the view which I presented. I say to that, that no doubt the object of the Act of Uniformity was to secure such a degree of uniformity as the Act itself prescribed; but the question is how much uniformity it prescribed. There are abundant itt- stances throughout the whole of the Act, in which upon minor particulars something is left to the dis- cretion of the clergyman, as for instance whether he he will read one prayer or another, whether he will read one psalm or another, or which out of several collects he will read at the end of the Communion and so forth. Therefore the fact that the general object was uniformity does not prevent some degree of latitude from being allowed by the Act itself. My friend also mentioned various charges agaiust Bishop Cosin, which came simply to repeating things said about him by a man of the name of Smart ; and my friend, Mr. Shaw, said that Laud when on his trial for his life, referred only to the Canons as his Defence from Canons, Rubric considered by J. Com., 675 defence for wearing a Cope and not to the Statute. Upon that I must observe that Laud would have been very little likely if he had had the skill of an advocate to say, "Well, I not only did wear the cope, but I had a right if I had liked to wear a chasuble too." I think that would have been a line of defence very little likely to have been of use to him. There are a considerable number of matters con- nected with this point which, without any disrespect to either of my learned friends I beg to pass over. I do not think that they have any bearing upon the subject. They are the fringe of the case, and I do not wish to embarrass the case with fringe. There- fore I go at once to what really is the decisive point about the vestments, and that is the rubric of 1662. My Lords upon that, as I pointed out, as your Lordships will recollect, I based what I had to say upon Liddell v. Westerton ; and I put my argument in the shortest possible form, namely, that Liddell v. Westerton expressly decides that the dresses which were worn in the time of Edward YL may be worn now ; that those dresses were then worn and therefore they may now be worn. To that my learned friend Dr. Stephens said nothing. My friend Mr. Shaw said that Liddell v. Westerton did not refer to the ques- tion of vestments. I am not quite just to my learned friend Dr. Stephens in saying that he said nothing, for as I understood him he did say one thing, and that was that he argued that very point himself before the Court in the case of Liddell v. Westerton, namely, the application of it to vestments. De. Stephens. — No. The Loed Chancelloe,. — The point which the Court had to decide in Liddell v. Westerton, was whether anything could be worn which was not in use. De. Stephens. — Ornaments of the Church. SiE James Stephen. — Ornaments of the Church or of the Minister. xx2 676 Llddell v. Wester ton ; the ratio decidendi included Dr. Stephens. — ^No, not of tlie Minister, the orna- ments of the Cliurcli. The Loed Chancelloe. — The point, I suppose, was ■whether there could be any ornament of the Church which was not in use by authority of Parliament in the second year of the reign of Edward YI. ? SiE James Stephen. — That is so, my Lord ; but in order to ascertain that point their Lordships had to decide a preliminary and broader point. If your Lordships look through the judgment in Liddell t. Westerton, it has been so much discussed, that I do not wish to trouble the Court with going through it again ; but if you look through it you will find that a yery large proportion of it is devoted to this question of what is an ornament ; and it was necessary for the Court to ascertain definitely what was meant by the word "ornament," in order that they might decide between the two learned Judges in the Court below, and especially as to the view which had been taken by Dr. Lushington ; because Dr. Lushington had held that the cross was an ornament, and that it Was not within the Ornaments' Eubric. Then the Court held that "ornament" had a narrower signification; and they defined " ornament " in such a way that they themselves used the words " dresses of the minister," as part of the definition. They had in Liddell v. Westerton^ in order to arrive at the decision at which they did arrive, to frame a definition of the word " orna- ment," which expressly includes the dresses worn by the minister. The matter speaks for itself. Then they went on to say, speaking of the other forms which the law assumed at different times, " they all obviously mean the same thing, viz., that such dresses of the minister (amongst other things) may be worn, and such things used as were used in the second year of Edward YI. and no others." Now although I quite accept what your Lordship says as to the actual thing decided, yet I say that the ratio decidendi goes beyond that. The ratio decidendi is based upon a definition of the word " ornament," which includes the dresses in Vestments under the definition of " Ornament''^ 677 issue in this Appeal, and that is how I put the case of Liddell v. Westerton. The Lord Chancellor. — What I meant to say is this, assuming that in your favour you are entitled to argue, and that is what I suppose you wish to argue, that the ratio decidendi in Idddell v. Westerton went further than the actual decision, and implied that everything which could be worn in the second year of Edward VI. could now be worn ? Sir James Stephen. — That is my argument. The Lord Chancellor. — You are entitled to say it is the ratio decidendi, but not a point decided. Sir James Stephen. — I did not say that, or if I did I expressed myself incorrectly. The way in which I venture to put it is the way in which your Lordship has put it now. The ratio decidendi is, that everything which was worn and used in the second year of Edward YI. can be worn and used now, and the ratio decidendi of Liddell v. Westerton forms the major of the short syllogism which I ventured to submit to your Lordship as forming the basis of my argument upon this matter. A great deal has been said to your Lordships — ^really so much that I hope I am not treating any one dis- respectfully in not minutely dissecting it — about maxims for the interpretation of Statutes, and about various cases which have been decided, showing how construction may affect Statutes in this way and that way, in order, as I venture to say, to explain away the plain meaning of plain words ; but I say that all that is beside the question. I say that the words are as plain as words can be, and that they do mean pre- cisely what the ratio decidendi of Liddell v. Westerton, as I understand it, says that they mean, that is to say, that they expressly and distinctly assert, that everything which might be worn in the time of Edward YI., and is mentioned in the Prayer Book of Edward YL, may be worn now, and must, or ought to, be worn now. There is one way of putting this matter, for which , I am obliged to my friend Mr. Charles, which seems 678 Meaning of Rubric further shown hy substitutions to me to have something about it of the character of a quasi mathematical demonstration, and it strikes me as being in itself so forcible that I trust your Lordships will forgive me if I insist upon it as a general answer to all that has been said by my Mends about constru- ing this rubric. I would ask your Lordships (if it were not too great a liberty) to make on a piece of paper a series of substitutions, substituting the things referred to for the words used in the Ornaments rubric as it stands, and see how it works out. Take it step by step and see whether any answer can be offered to what I propose now to submit to your Lordships. First of all what is the Ornaments rubric ? "And here is to be noted, that such Ornaments of the Church, and of the Ministers thereof, at all times of their ministration, shall be retained, and be in use, as were in this Church of England, by the authority of Parliament, in the second year of the reign of King Edward VI." Now my first proposition is this, if you put a mark round the words, " shall be retained and be in use," and transpose those words and put them at the end of the Ornaments rubric instead of at the begumrng — that makes no difference in the meaning of it — it will then run thus. (It seems an unimportant remark, but you wiU see what follows) : "And here is to be noted, that such Ornaments of the Church, and of the Ministers thereof, at all times of their ministration, as were in this Church of England by the authority of Parlia- ment in the second year of the reign of King Edward VI., shall be retained and be in use." I say that that is identically the same proposition as the other, and that the transposition of the words makes no change in it whatever ; but now mark what follows from that, " The authority of Parliament " means, (because that has been held), the first Prayer Book of Edward YL Now make that substitution and we get this : "And here ia to be noted, that such Ornaments of the for the words " Authorittf of Parliament^'''' Sfc. BTS Church, and of the Ministers thereof, at all times of their mi- nistration, as were in this Church of England by the [first Prayer Book of Edward VI., in the second year of the reign of Edward VI.], shall be retained and be in use." I say we have no alteration yet. Now one step more : " But such Ornaments of the Church and of the Ministers thereof, at all times of their ministration, as were in this Church of England by the first Prayer Book of Edward YL, in the second year of the reign of King Edward YI.," is strictly equivalent to " alb, vestment, cope, surplice." "Well then make that substitution and you get this, "And here is to be noted that alb, vestment, cope, and surplice, shall be retained and be in use." The only possible suggestion which occurs to me upon that way of stating the matter — the only point that I can conceive a qxiestion being raised about — is this, you may say that, " at all times of their ministration," might come in rather awkwardly, because you may say you do not mean to say that the alb, the vestment, the cope, and the surplice, are to be worn always. The answer is obvious, and it is that these words naturally mean, and must mean according to the commonest rule of construction, "respectively;" or, reddendo singula sin- gulis, that is to say, the alb and the chasuble are to be used at the times appointed for the use of the alb and chasuble, and the cope and surplice at the times appointed for the use of the cope and surplice. I say that not only is it obvious that that is the meaning of those words, but I say again that no other meaning will fit, and that you cannot say that there is any single vestment which fulfils all the conditions, and which is ordered by either Book to be used at all times, whatever, of their ministration. The Book of Edward YI. does not order the surplice to be always used, and it does not order the chasuble to be always used; but it orders, sometimes, the chasuble to be used, and sometimes the surplice to be used. There- 680 The Rubric too plain to need Rules of construction : fore, if yoTi are required to wear those vestments, whicli are ordered to be used, at all times of your mi- nistration, by the Prayer Book of Edward VI., surely the only sense which can be ascribed to those words is that you are to use vestment A at the time the Prayer Book of Edward YI. says A is to be used, and you are to use vestment B at the time vestment B is to be used. Now I do not pray in aid any cases, or any pre- sumptions, or any rules of law about the construction, or interpretation of Statutes in order to submit that to your Lordships. I say, on the contrary, that that is the plain clear meaning of the words used in the commonest possible sense, and if your Lordships would care to look at the thing reduced to that shape on paper, there it is. I say I want nothing to prove my case except that those plain words shall be construed in that plain manner. There was no one dress which was used even under the Advertisements, because the cope had to be used at the Communion, and the sur- plice at other times. The only way in which you can construe those words, so as to give full and complete effect to each and every one of them, is the simple method which I suggest to your Lordships is the true true one, and whicb, as I say, forms the ratio decidendi of Liddell v. Westerton. "Well then I would just mention one case which my friend, Mr. Shaw, referred to by way of illustration, because I do not wish to occupy the Court's time with unnecessary references. One case, I say, I will men- tion, because, for various obvious reasons, it seems to be the one he thought the most important. It is the well known case where a prohibition was sought from the Court of Queen's Bench to this Committe in the famous case of Gorham v. The Bishop of Exeter, and my learned friend, Mr. Shaw, read out these words from the judgment, which, no doubt, formed part of it: " Were the language of the 25th Henry VIII., section 19, Gorham v. Bp. of Exeter does not apply. 681 ol)SCiire instead of being clear we should not be justified in differing from tbe construction put upon it by contemporaneous and long continued usage. There would be no safety for property or liberty if it should be successfully contended that all statesmen and lawyers have been mistaken for centuries as to the true meaning of an old Act of Parliament." I would say Amen to that with all my heart, but it does not come within miles of this case, nor has it any- thing to do with it. In the first place, in the case in question, the very words show that their Lordships held that the meaning of the old Act of Parliament, the 25th Henry VIII., cap. 19, was clear and not obscure ; and in the next place they said that if there be an obscure Act, and if it has been always construed in one particular way, we shall adhere to that con- struction, which, of course, is undoubtedly true. But what I say here is, that this Act is clear. I say no construction has erer been put upon it at all — ^not a single case has been produced — (except in Hebhert v. Purchas of course) in which it has been construed in the manner suggested. The question in the Gorham Case was whether the Appeal in a case touching the Queen was to go to the Court of Delegates or to the Upper House of Convocation. Of course that was a matter where the law was constantly acted upon by judicial persons acting judicially ; and many appeals were shown to have gone on all sorts of i occasions to the Court of Dele- gates and not to the Upper House of Convocation ; and his Lordship held, besides that, that the meaning of the words was plain, that the appeals ought to take that course. How does that prove that in this case your Lordships are to affix a most artificial, strained, and unnatural construction to these very plain words ? And for what reason ? For no other reason that I can perceive except this, that a reference to a book, little if at all known, and one or two things prescribed by the book, and which nobody thought of any great importance, I daresay at that time, had fallen into disuse and had been forgotten. 682 No intention, as alleged, of altering Rub. in 1662. For tliat reason you are to say that this Act of Parliament means something which to my mind it is hardly possible to suppose it to mean. Various arguments were put forward to suggest some other possible construction than the one I have given. My learned friend, Mr. Shaw, said they were thinking of making an enormous alteration, and when they were thinking of making this enormous altera- tion, is it likely that they would have expressed it in such a manner ? All I can say is that they were not thinking of making any alteration at all — they were thinking of re-enacting the law exactly as it stood, and, as I have shown your Lordships in that paper which was put in, in the very words of the proviso of Queen Elizabeth. They may have thought, and probably did think, that it would not affect the practice; they may also have thought that if any- body chose to wear a chasuble there was no harm in it if he did. It was agreeable to those in power very likely, and they knew well enough that the difficulty was to get the surplice worn at all. My friend talks of an enormous alteration, but he seems to forget that, according to his own construction of the matter, copes are legal; and I will venture to say, in the first place, that the great mass of mankind, even at the present day, have not the remotest conception of what the difference is between the cope and chasuble, and that till this case was brought on and notoriety given to it hardly anybody knew anything about either except a few antiquarians ; and lastly, that if anybody did take to wearing copes on the occasions when, according to the Judgment in Heblert v. Purchas, it is lawful and right to wear them — especially if they were embroidered in the manner in which the copes mentioned at Durham were embroidered — I thmk they would excite as much surprise and as little favour in any congregation as any chasuble possibly could, and yet that, it is fully admitted, is legal ; and if that is legal, why should not this be legal ? My Lords, many things in the course of this long Bp.Cosinh Visit. Articles, 1662, do not support view 683 argument have been said about Bishop Cosin, and, amongst other things, there was a point taken about some of his Visitation Articles. My friend, Mr. Shaw, said a good deal upon that subject ; my friend seemed to me not to have got the thing quite cor- rectly, which I am sure is exceedingly natural ; but I just wish to point out to your Lordships how that matter about Bishop Cosin and his Yisitation Articles stands. First of all about those words "at all times of his ministration," the object is to show that the insertion into the rubric of the words " at all times of their ministration " really makes no difference at all, and the evidence of that is that in Cosin' s Visitation Articles which were made under the Prayer Book of James, 1604, the words " all times of his ministra- tion " occur, — " Have you a large and decent Sur- plice (one or more) for the Minister to wear at all times of his public ministration in the Church ? " and the rubric there is not " at all times of their ministration," but, "at the Communion and at all other times in his ministration." It has been proved that the date of those Visitation Articles was March, 1661-2, that is to say, long before the Book of Common Prayer became law. One of your Lordships seemed to suppose that it was later. There are a variety of small elements, facts which show, first of all, that these Articles were drawn in March, 1661-2 — that the Visitation itself took place in May, 1662; the Articles were drawn in March, 1661-2, and the Prayer Book did not come into operation tiU the 23rd August, 1662. Then it was objected to that, that the Prayer Book referred to the occasional services, which were supposed to have been established in 1662 ; but the answer to that is that there was an Act of Parliament, 12th Charles XL, cap. 14, which was passed in the year 1660, which enjoined the use of these services. Upon the whole it follows that when Bishop Cosin put out those Visitation Articles using those words, he was writing before the Book of Common Prayer came into use, and therefore whatever value or importance 684 from insertion of '•'■at all times of their ministration^ there may be in the words "at all times of their ministration," Cosin used them in reference to the old book and not as to the new. The Visitation itself I find was not in May, but in June and July, 1662, but that is unimportant as the Prayer Book did not come into use till August, (2nd Cosin's Correspon- dence, p. 16.) I do not know that I have anything now to add to what I have said to your Lordships on the subject of vestments. I think that I have pretty well come to the end of that matter, and I must leave it in your Lordships hands. The Loed Chancellor. — Before you leave that I shall just trouble you with one question which one of their Lordships would like answered : What are the words in the Statute of Uniformity, 1662, which you consider make the rubric as to ornaments a part of the Act itself ? Sir James Stephen. — I have taken it for granted throughout that the whole of the Prayer Book in- cluding aU the rubrics, is a schedule to the Act of Uniformity. The Lord Chancellor. — The Prayer Book is scheduled to the Act, no doubt. I onlv wanted to know whether it was present to your mind what were the words in the Act which make it so. Sir James Stephen. — There are several places in the Act, but I will give your Lordships one, which will probably be sufficient : " Be it enacted," and so forth, "that all and singular ministers . . . shall be bound to say and use the Morning Prayer, Evening Prayer," and so forth, "in such order and form as is mentioned in the said Book, annexed and joined to this present Act, and intituled The Book of Common Prayer, and Administration of the Sacraments, and other Eites and Ceremonies of the Church, according to the use of the Church of England : together with the Psalter or Psalms of David." Lord Selborne. — What section of the Act is that ? Sir James Stephen. — It is in the second section ; The E. Position— contention of Dr. S. as to present 685 and I ■will give your Lordships another reference — to the 24th section — which contains matter to the same effect, because it says that all laws now in force "shall stand in full force and strength to all intents and purposes whatsoever, for the establishing and confirming of the said book . . . hereinbefore mentioned to be joined and annexed to this Act." And in all the ecclesiastical cases of late years it has always been argued and determined upon the theory that the rubrics do form part of the Act of Uniformity and have the force of law. II. — ^Thb Eastward Position. The Loed Chancellor. — You were going to the Eastward Position I think ? Sir Jambs Stephen. — I was going to the Eastward Position, and I hope upon that that I shall not occupy your Lordships at such great length ; because, as regards the Eastward Position, I shall have a very short answer indeed to make to what fell from my learned friend. Dr. Stephens. Dr. Stephens, on being repeatedly pressed by your Lordship for explanations as to what he contended, did, as I understood him, contend in the most positive and unqualified manner that the position of the Table at the East end of the church against the wall, which is now universal throughout England, or nearly so, is illegal. To that I have only to say that that, at any rate, is not the offence with which we are charged, and that there is nothing in the Articles to show that in putting the Table in that position we committed any ecclesiastical offence whatever. But just observe what follows from that contention. If the Table is in an altogether illegal position it cuts away all argument. ; it is im- possible to say what position in respect of it is legal, or that one position is more legal than another; if you have got the Table in a place where it had no right to be, then all the language which assumes that it is in the place where it would have a right to be 686 illegal position of Table, opposed to his argument becomes simply unmeaning or inappropriate. How- ever, I will make just this one remark upon my friend's contention : he contended most strongly and, as it seemed to me, with great force upon the meaning of the words "side" and "end," and if his view is right, of course we, like all other Clergymen of the Church of England, have been doing an illegal thing in having the Table at an illegal place ; but if there are degrees in illegality we have stood at the least illegal position, because we have stood at that side which would have been the North side if it had been in its legal position, and we have stood facing the side which we should have been facing if the Table had been placed where he says it ought to have been. My Lords, I was rather struck, I must say, with another inference from my friend's argument. He had been arguing triumphantly about the vestments, that nothing could get over the usage of three hundred years, and that some sort of justification must be found for such usage even by twisting the sense of words — by making some presumption or other which would justify the destruction of those vestments, " You have not done it for three hundred years — it cannot be right." Then when my friend comes to the Communion Table he takes a much sounder view of the law, as it seems to me, namely, that the express words of a Statute cannot be altered by any amount of usage. Accordingly I will leave one half of his argument to fire at the other half ; but at the same time, whilst I say that with regard to my friend, I must point out that I am in a totally different position, because I say that usage most certainly cannot repeal that which is plain, but that usage is highly important when you come to consider that which is obscure. And I think I have been very unfortunate if I have not convinced your Lord- ships that the rubrics upon this subject are very obscure indeed, and very obscure from this circum- stance, that as you read them — I do not mean to repeat the argument I presented, because, like many against Vestments; nevertheless not consistent with 687 other things, I said I do not feel that it has been answered — but I hope I have succeeded in showing your Lordships that great obscurity is thrown over the whole of the subject, first, by the absence of any rule as to the way in which a church is to stand, secondly, by the absence of any positive exclusive rule as to the position which the Table is to occupy in the church. I pointed out in detail how that obscurity made it very difficult to say that any ordinary position — any position not improper in itself — could be said to be illegal. I followed my learned friend's argument with the care and respect which it appeared to me to deserve, but I would ask your Lordships, with regard to the first rubric, whether my learned friend is not in this position, that he is asking you to put an exceedingly strained construction on those words about the chancel where public and open prayer is accustomed to be made, solely for the purpose of upsetting a general practice that has lasted now for upwards of two hundred years. I feel so sure that that is a course which your Lordships will not take, that I do not intend to insist upon it, but if I understand my friend's construction accurately, you would be reduced to this exceedingly singular result, namely, that there is some place in the chancel, a reading desk or pulpit, or whatever it may be, which is the place where Common Prayer is usually made, and if I understand my friend the only legal position of the Table would be close up against that particular place ; but in what direction the Table is to be put seems to remain uncertaia, except that it is to be put lengthwise along the church, with one of its long sides standing North in churches which stand in the usual position. I may just observe that it appears from the Eaculty in this Case, on p. 43 of the Appendix, that we had a Faculty to remove the altar further Eastward, and to put rails round it. There is a plan, which I do not trouble about, which shows amongst other things the position of the altar at the usual place at the 688 historical fact " Before the people,''^ Mr. Shaw's end of the church. It forms a sort of recess, as your Lordships will see, in the usual way. My friend proceeded at considerable length to illus- trate and prove a point which I had suggested, and in which I entirely agreed with him, namely, that the Table came to be placed in its present position owing very much to the efforts which were made by Laud. I dare say that that is the true history of it ; but if so — if as a historical fact Laud and his party suc- ceeded after a great deal of trouble in getting the Table put where it now stands, certainly it does seem in the last degree improbable that when, at the Eestoration, their party came into power they would draw up a Prayer Book in such a manner as to render that position illegal. The strong probability is that the position for which they had paid so dearly at a time when its legality might be questioned, was one which, at all events, they would not sacrifice after Charles II. had been restored. My learned friend, Mr. Shaw, addressed a very long and elaborate argument to your Lordships upon the effect of those words, " before the people." His argument was that they would be satisfied by nothing short of this — in the sight of the people, and that in such a manner that the majority of the people can actually see the clergyman's fingers close upon the bread so as to break it. If my friend's argument did not go that length, if " before the people " is not so strict as that, I submit it falls entirely short of what he says. He argued at great length, and quoted many authorities to show what neither I nor anyone else has ever denied, namely, that great importance was attached to the publicity of the whole of this act of breaking and consecrating the bread. No doubt it was an. object to have the bread consecrated in the church publicly in such a way that all persons favour- ably situated for seeing it might see it done, in such a way that there should be no reservation of the Sacrament, no carrying it about or gazing at it as in the Eoman Catholic Church. That was a very great argument upon them does not prove his contention 689 object; but as for saying that there was any particular reason why a large number of persons should be able to swear in a Court of Justice that they had seen the man's hand close upon the bread and break it, I venture to say that is pressing the matter much farther than it would bear. I beg to recall to your recollection the argument I submitted to your Lord- ships, becaiise I was very careful to state the precise proposition I proposed to prove, which was that the position which we had assumed was not forbidden by law. I did not go so far as to say that any special position was prescribed by law. I gave various reasons, which your Lordships will remember, to show that it was difficult to say that any such position was prescribed, and that according to the varying circum- stances arising from- the shape of the church and the position of the Table, the position of the clergyman during that part of the service must naturally and necessarily vary. How does my friend Mr. Shaw meet that ? By a series of alignments all of which fall far short of what he wants to prove — all of which prove nothing else but this, that it was always con- sidered an essential part of the Protestant service that whatever was done in that behalf should be done publicly, and I say that is effectually provided for. In the first place, the bread is to be taken into the church during divine service. There is no question about that ; the bread is to be consecrated at the service itself — there is no question about that. All the bread that is consecrated, is to be there and then eaten by the people present in the church ; and there- fore the whole process of consecrating the bread and of eating the bread is to be performed in the church in the presence of, and, in that sense, " before the people." I say that, to go fiu'ther than that and to construe these words " before the people " as if they meant either with his face turned to the people, or with his profile to the people, or with his hands in such a position that the people must necessarily see what passed, would be to attach absiu'd importance to TY 690 as to Position of Celebrant. Translation of the words the question of whetlier a man could • or could not see a particular act. Why, my Lords, your Lordships are now in a crowded Court ; I am standing before a large number of persons. I suppose that the number of people who can actually see me turn over the leaves of these books is very considerable, although I am standing with my back to them, because the people can look from one side or the other if the matter is of any interest to them. In the same way with regard to a clergyman in a crowded church, those who are sitting at the side or along the chancel would see him actually break the bread ; but almost all would see the motion of the arms and of the surplice or vestment, and would see the clergyman go through those acts which are immediately con- nected with breaking the bread, even if they did not see his fingers in contact with it. They would see, to put an illustration which I almost shrink from, but of which your Lordships will see the force at once, they would see as much as, if the act were a crime, would convict him in any Court of Justice in the world of having broken the bread ; because they would see the bread unbroken there, they would see his hands applied in that direction, and they would see it broken afterwards. Well, if that is not doing the act "before the people," I do not know what is. My friend was going to read your Lordships cases and decisions, and reports of I know not Avhat, to show the meaning of the word •" before." I venture to think that your Lordships know it already, and I shall add nothing upon that subject. Your Lord- ships, however, did call attention to this — you asked the Counsel on both sides for translations. I have a letter here from a gentleman who writes from Christ Church, Oxford, in answer to a request addressed to him upon the subject. Perhaps your Lordships will allow me to state what he says. This gentleman is Mr. Bright, Professor of Ecclesiastical History at Oxford, and a very high authority upon such matters. He writes as follows : in Latin and Greek Versions of the P. Book. 691 " There has never been any complete Latin version of the Prayer Book of 1662 — I mean a version including all the occasional offices in use in the University. The Latin Prayers used at Christ Church in former years (I believe since Bishop Fell's time) — now for some years disused — included a Latin Communion office, in which the first Rubric has Presbyter stems ad septentrionalem partem (not latus) mensce. The rubric before the Prayer of Consecration is, * Quum Presbyter, stans ante Mensam Domini, partem et vinum ita disposuerit, ut expeditus ac decentius possit panem frangere coram populo, et calicem in manus sumere dicet orationem con- secrationis, prout sequitur.' I copy from a ' Liber Precum Ecclesice Cathedralis Christi Oxon, Litania, Ordo administrandce Ccence Domini, &c., Oxonice 1726.' " Then lie says : " Secondly, the University has still in use a Latin form of Communion (and a Latin Litany) for the opening of each Term. This also has in the first Rubric ' ad septentrionakm partem mensce.' It agrees, as to the Consecration Rubric, with the Christ Church form. I ought to say that both forms have ad mensam Domini before the Collect of humble access. In a word, both forms agree throughout." So tliat at the University of Oxford the forms in use are according to our contention. Lord Justice James. — Is it " ante mensam " and " coram populo .^" Sir James Stephen. — Yes ; but before the prayer of humble access it is " ad mensam.''^ Well, as to the Greek translation. The word " hwitiov " is, in the first place only Hellenistic Greek, and, in the next place, it would be a very strong translation of evwotov to say that it meant with your face turned towards ; and I may mention that in the book of Eevelations in the Greek Testament the word Evalmov occurs several times before the throne, " ivoimov roll Qpovov," but of course that could not mean any particular position. There is one very curious cir- cumstance as to this same position in regard to the administration of the Sacrament of the Mass in St. Peter's. It appears that there are two kinds of Masses : some Masses when you celebrate coram YT 2 692 Roman Missal. Question of the Court — Whether the populo, and others when you celebrate coram Pontifice. I am instructed that if you celebrate coram populo you stand in front of the people with your back to them, and if you celebrate coram Pontifice you stand in front of the Pope with your back to him. Now my friends have gone through this at very great length, and your Lordships have heard it argued backwards and forwards so much that I do not propose to add anything more. I say, with regard to my friend's contention about the position of the Table, it is impossible to adopt it. I say, with regard to Mr. Shaw's contention as to " before the people," it is putting an infinitely finer point on the word " before " than it can possibly bear. I venture to repeat, in regard to my own argu- ment, that if you take a general view of all the rubrics one after the other, you will see that they leave the matter very indefinite, and allow the clerygman to stand at one place or the other as convenience and decency and other circumstances may dictate ; and upon the whole I submit that the proposition for which I contended, and which I now repeat, has not been in any degree touched, that is to say, that this practice is not shown to be illegal, whatever other practices may be legal. I may just add, in conclusion, that I think my friend Mr. Shaw is a little incorrect when he said that " before the Table " was first introduced in 1552. Tour Lordships will find the words " before the altar " in 1549. There are many other little points about this, but I do not wish to trouble your Lord- ships with them. Now I go to the wafer bread . The Lord Chancellor.— Before you go to that, let me ask your opinion as to the effect of the evidence iu this Case — as to whether, upon the evidence, it was or was not possible for the communicants to see the manual acts done by the clergyman ? Sir James Stephen.— My answer to that is, that it entirely depended on the position in the church Communicants could see the Manual Acts? Wafer-hread,Q9S •which they occupied ; but the evidence in this par- ticular Case I think stands substantially thus : the witness who was called by the Eespondents in order to prove the Case said that he could not see what passed, he being behind the clergyman. Then I asked him if he had gone to one side whether he could have seen, and he said yes he could. It speaks for itself. Of course he could. It also appeared that there were about 40 persons present on the occasion, and that they were scattered about the church in the usual way. It always must be a question of degree. Lord Justice James. — In the chancel the commu- nicants being close to the Communion Table. Sib, James Stephen. — I was just going to say, in connection with that remark of your Lordship's, that if my friend Dr. Stephens' view be correct, or even if my view be correct, supposing you imagine a Table put tablewise along the nave of a church and the man is standiug at the North side performing these acts, it is obvious that the people behind him cannot see him — at least, if half are on the one side, and half on the other, he would be standing with his back to half of them at all events, and in any way it must be a question of degree depending upon the manner in which the congregation are arranged, upon their number, and upon the character of the church. III. The Wafer-Beead. My Lords, I now turn to say a word or two about the Wafer bread. I hope that I have made quite clear to your Lordships' minds now the manner in which the question stands, and what passed in the Court below upon the occasion of the trial. Your Lordships will consider what degree of weight is to be attached to it. I will re-state my argument upon that matter, only for the purpose of saying that my friends have not touched it or attempted to touch it. My argu- ment was simply this, that the Injunctions of Queen Elizabeth expressly prescribed wafers; that the In- 694 re-statement of Argument for it. Shape, real charge, junctions of Queen Elizabeth were intended to carry- out the Prayer Book of Queen Elizabeth ; that the rubric in the Prayer Book was the same with the exception of one or two immaterial words, as the rubric in force at the present day ; that if the wafer bread was lawful under the Prayer Book and Injunc- tions it is lawful now, and that it is impossible to suppose that the Injunctions could contradict the "very Prayer Book they were meant to enforce. I add to that that the words " it shall suffice " are a signiE- cant indication that what is called wafer bread is the form that was then preferred. Various instances have been given in proof of that. Mr. Charles read to your Lordships an important passage from Hooker's Ecclesi- astical Polity upon it. I do not think we need go beyond that. Tou have Hooker saying that wafer bread was the practice of the Church in his time. That is a matter upon which Hooker probably would be as high an authority as it is possible to quote. What is the argument on the other side ? I have listened with attention to hear what we are charged with, and my friends have charged us with nothing. They have said it is not proved that it was bread. Then I say what is it ? what do you say it is ? The law is that it is to be bread. You call it wafer bread. Tou do not ask us whether it was made of any other substance than bread, and the consequence is, that I say there is every reason to believe that it was bread, and there is no conceivable suggestion that it was anything else but bread ; and unless it is suggested we had used for instance instead of the ordinary composition which makes up bread — if we had used some other substance, I really know not what, I do not know that anybody ever did use anything else for such a purpose ; but if it is said we did, some sugges- tion ought to be made to that effect. Then it comes to this : your objection is that the bread is round and thin and white. The whiteness is the natural colour, and as to the objection that it is round and thin — what is the harm in its being round and thin ? My im offence. The Crucifix — Trent doctrine as to it 695 learned friend Dr. Stephens said that it ought not to be round and thin, but he did not give any reason why. He said it was to be such bread as is usual to be eaten; but, my Lords, that must apply to substance, I never heard that there is any particular form in which bread is usually eaten ; and in fact, I should say there were few things which differed more than the way in which people Hke to cut bread, thick, thin round or square slices, and knobs, are perhaps all equally popular shapes. Therefore the whole charge really comes to this, that the bread which we use, and which as I say undoubtedly was bread, was in the shape of a penny piece, instead of being iu the shape of a dice. I really do feel that to briag a man into a Court of Justice, and accuse him of breaking Ecclesiastical Law on such a charge, is as unreason- able as if I were to bring a man and say you have committed an offence, because you have cut your bread square. There is just as much authority for the one as for the other. lY. The Crucifix. The last thing is the matter about the Crucifix. There again I do not wish to repeat anything ; I have nothing to withdraw and nothing to qualify. In the argument I addressed to your Lordships, I said, and I repeat, that that passage from the Council of Trent, clearly proves that the Eoman Catholic Church do, whatever any Eoman Catholic may say to the con- trary, enjoin the paying of honour to images, to actual things of wood and stone. It is all very well to say that the honour is to be carried on and referred to the Supreme Being prototyped and so on as Mr. Shaw says. Of course that is what is said : if you ask any Hindoo fakeer why he worships an image, he says that he worships God in the image, and the image is only the channel to the God whom he worships. But I say that these words do distinctly enjoin the payiug of honour to these physical things, not indeed for 696 not acted upon hy Mr. Ridsdale. Two points themselves as expressly stated, but for sometliing further, and because the honour paid to those things is to be carried on, and in some curious way or other offered to the being who is represented by them. But that the honour is to be paid to the thing, is the doctrine of the. Church of Eome, if words have any meaning whatever, Now I ask what there is to show that we have paid any honour to that thing, or are in the very slightest danger of paying honour to anything of the sort. The answer to that is, that my friends say that people in other times and in other iages paid honour to these things. So they did much else that was foolish and wrong, but this may be innocent, it may not be abused ; and I say that your Lordships ought not to interfere with such a matter till it absolutely is abused, or at least till there is some sort of reason to suppose that it will be abused. I repeat what I said before, and I submit that it is impossible to draw any line whatever between that figure and many other figures which have been held to be harmless, and which at other times and under other circumstances were equally or even more abused. That, my Lord, is my reply upon the question of the crucifix. Those are the points I wish to bring before your Lordships in reply to my friend ; I am just reminded that I have omitted two small matters, I daresay I have omitted two hundred. I will mention what they are — I passed over something about Laud having enquired about certain vestments "which they keep for a day, as they call it." The vestments there are mixed up with a great many other things, and it is obvious he is dealing with .Popish recusants, for the purpose of discovering things which they were likely to keep for a day as he says, that is to say, if they were able to re-establish their form of religion. The other matter is in relation to the "Welsh rubric, and in regard to that I have in my pocket, but I am afraid I have mislaid them, various observations by an eminent Welsh scholar as to the meaning of the word em- ployed in the Ornaments Eubric ; and, my Lords, omittedin Reply as to Vestments 6f Ornaments Bubric.697 that eminent "Welsh scholar seems to think that the proper translation of the words in the Ornaments Eubric, is somewhat more favourable to our view of the case than the right reverend prelate, who enlight- ened your Lordships upon the subject. I am mistaken, the Bishop it appears did not mention the Ornaments Eubric, but I am credibly informed and believe that if their Lordships will be good enough to translate the Ornaments Eubric from Welsh into English, your Lordships will find that it confirms all that I have been saying. SiE K. J. Phillimore. — Perhaps you will tell us what the authority is. Sir James Stephen. — The allegation is, that instead of being " retained and be in use," it speaks more positively, and says something to the effect that they shall be used, maintained and preserved. Lord Justice Jambs. — " Shall be kept and used." SiE James Stephen. — ^And I am told there is a Spanish translation in which occurs the word "usara." The man who translated it into Spanish used the word which signifies " shall use " instead of "maintain and use." The Lord Chancellor. — Their Lordships will con- sider this case. THE FOLLOWING JUDGMENT IS KEPEINTBD FROM AN OFFICIAL COPT. " Printed at the Foreign Office hy T. Hwrrison. — 14/5/77." JUDGMENT OP THE LORDS OF THE JUDICIAL COMMITTEE OF THE PEIVY COUNCIL ON THE APPEAL OF THE Eeverbnd CHAELES JOSEPH EIDSDALE, Clerk, V. CLIFTON, From am, Order of the Judge as Official Principal of the Arches Court of Ccmterbury ; DELIVERED 12th MAY, 1877. Present at the hearing of the Appeal : LoKD Chancelme. Lobd Justice Jakes. LoKD Selboenb. Sie Montagtte E. Smith. Sir James "W. Coi.tile. Sie Eobbrt P. Colliee. LoED Chief Baeon. Sie Baliol Bkett. Sie Eobeei Phtllimoee. Sie Richaed Ampheett. Episcopal Assessors : Aechbishop ot Canteebtjey. Bishop of St. Asaph. Bishop of Chichestee. Bishop of Ely. Bishop of St. Davids. The Appeal of Eidsdale v. Clifton, in which their Lordships have now to state the recommendation which. th.ey propose humbly to make to Her Majesty, is an Appeal to Her Majesty in Council brought by the Eev. Charles Joseph Eidsdale, Clerk, Lieumbent, or Perpetual Curate of St. Peter, Folkestone, against an Order or Decree pronounced by Lord Penzance, as Judge or Official Principal of the Arches Court of Canterbury, on the 3rd of February, 1876. This Judgment specified various matters as to which it declared that the Appellant had offended against the laws ecclesiastical ; but the Appeal is brought in respect of four only of these matters, and 700 The four matters appealed upon. Whether the it is to these only that the observations of their Lord- ships need be directed. The four matters as to which the Appeal complains of the Judgment are these : — 1. The weariag during the service of the Holy- Communion of vestments known as an alb and a chasuble. 2. The saying the Prayer of Consecration in the service of the Holy Communion, while standing at the middle of the west side of the Communion Table, in such wise that the people could not see the Appel- lant break the bread or take the cup into his hand. 3. The use, in the service of the Holy Communion, of wafer-bread or wafers, to wit, bread or flour made in the form of circular wafers, instead of bread such as is usual to be eaten. 4. The placing and unlawfully retaining a crucifix on the top of the screen separating the chancel of the church from the body or nave. There were eight other charges against the Appel- lant, as to all of which he was admonished by the learned Judge, but as to none of which is there any Appeal. Of the four charges which are the subject of Appeal, the three first were considered by the learned Judge to be covered by the decision of this Committee in the case of Hebbert v. Purchas, and by the Order of Her Majesty in CouncU made in that case ; and as to them he did not exercise any independent judg- ment. The fourth charge, as to the crucifix, the learned Judge did not consider to be covered by authority otherwise than indirectly and by implication. Their Lordships have had to consider, in the first place, how far, in a case such as the present, a pre- vious decision of this Tribunal between other parties, and an Order of the Sovereign in Council founded thereon, should be held to be conclusive in all similar cases subsequently coming before them. If the case of Hebbert v. Purchas is to be taken as absolutely Decision, Hehlert\.Purchas^is absolutely conclusioe : 701 conclusive of every other case, with the same or similar facts, there can be no doubt that the decision of the learned Judge on the first three heads, being in accord- ance with that of Hebbert v. Purchas, was correct. In Hebbert v. Purchas, the Defendant did not ap- pear, either before the Dean of Arches or before the Judicial Committee ; but, after the decision of the Judicial Committee was pronounced against him, he presented a Petition praying for a rehearing. The Judicial Committee to whom that Petition was referred were of opinion that, to have granted such an application, would have been to violate the spirit of the 2nd and 3rd "William lY., cap. 92, which trans- ferred the powers of the Court of Delegates to the Sovereign in Council, and provided that every Judg- ment, Order, and Decree should be final and definitive, and that no Commission should thereafter be granted or authorised to review any Judgment or Decree made under that Act. All that this decided was the finality of that Judg- ment inter partes ; and the propriety of its being held final in that case was the more obvious from the fact that a Defendant not appearing in the Primary Court or on the Appeal might be supposed to be lying by, taking the chance of a decision in the first instance, and then trying to get rid of it when it turned out to be unfavourable. The present case, however, raises the question of finality not inter partes, but as against strangers. In the case of decisions of final Courts of Appeal on questions of law affecting civil rights, especially rights of property, there are strong reasons for holding the decisions, as a general rule, to be final as to third parties. The law as to rights of property in this country is to a great extent based upon and formed by such decisions. When once arrived at, these decisions become elements in the composition of the law, and the dealings of mankind are based upon a reliance on such decisions. 702 The Court free to examine the Reasons of it. Even as to sueli decisions it would perliaps be difficult to say that they were, as to third parties, under all circumstances and in all cases absolutely final, but they certainly ought not to be reopened without the very greatest hesitation. Their Lordships are fully sensible of the importance of establishing and maintaining, as far as possible, a clear and unvarying interpretation of rules the string- ency and effect of which ought to be easily ascertained and understood by every Clerk before his admission to Holy Orders. On the other hand, there are not, in cases of this description, any rights to the possession of property which can be supposed to have arisen by the course of previous decisions ; and in proceedings which may come to assume a penal form, a tribunal, even of last resort, ought to be slow to exclude any fresh light which may be brought to bear upon the subject. It is further to be borne in mind that in the case of Hebbert v. Purchas, the Judicial Committee, although they had before them a learned and able Judgment of the then Dean of Arches in favour of Mr. Purchas on the points now raised, had not the advantage of an argument by Mr. Purchas' Counsel on those points. These considerations have led their Lordships to the conclusion that, although very great weight ought to be given to the decision in Hebbert v. Purchas, yet they ought in the present case to hold themselves at liberty to examine the reasons upon which that decision was arrived at, and if they should find them- selves forced to dissent from those reasons, to decide upon their own view of the law. Their Lordships will now proceed to consider the first charge against the Appellant, namely, that of wearing an alb and chasuble. They will, however, premise that they do not propose to express any opinion upon the vestures proper to be worn by Bishops, as to which separate considerations may arise ; and in referring to the dress of the parochial clergy, they wiU, for greater convenience, use the Vesf' — Rubric note, 1662, did not repeal the Law. 703 term " vestments " for the purpose of denoting tlie alb and chasuble or cope, as distinguisbed from tbe surplice. The argument of the Appellant on this head, which was very clearly and very forcibly stated, may be thus summed up. The Ornaments Eubric, he contends, in the revised Prayer Book of 1662 is now the only law as to the vesture of the clergy. It contains within its one sentence all that is now enacted upon that subject. It sweeps away all previous law as to the vesture of the clergy, whether that law was to be found in Statute, Canon, Injunction, or otherwise. It author- ises the use of all ornaments which had the Parlia- mentary authority of the First Prayer Book of Edward VI. The vestments in question are among the ornaments which had this Parliamentary authority ; therefore it authorises the use of the vestments in question. To this reasoning, if the first proposition in the series be correct in poiat of fact and law, no exception could, probably, be taken. Their Lordships, how- ever, are unable to accept that proposition. They are of opinion that it is a misapprehension to suppose that the Eubric note of 1662 as to ornaments was intended to have, or did have, the effect of repealing the law as it previously stood, and of substituting for that previous law another and a different law, formu- lated in the words of that Eubric note, and of thus making the year 1662 a new point of departure in the legislation on this subject. Before, however, proceeding to trace the history of the law, their Lordships must observe upon the expression in the argument which asserts that the Ornaments Eubric " authorises " the use of the vest- ments in question. In the opinion of their Lordships, if the only law as to the vesture of the clergy is to be found in the Ornaments Eubric, the use of the vestments of the First Edwardian Prayer Book is not merely authorized, it is enjoined. It is not an enact- ment ordering the accomplishment of a particular 704 Rubric not optional. State of the Law previously. result, and suggesting or directing a mode by wMch. the proposed result may be attained. The sole object of the Eubric is to define the mode of performing an existing ministration. If the Eubric is taken alone the words iu it are not optional, they are imperative ; and every clergyman who, since 1662, has failed, or who may hereafter fail, to use in the admiuistration of the Holy Communion the vestments of the First Edwardian Prayer Book, has been, and will be, guilty of an ecclesiastical ofi'ence rendering him liable to heavy penalties. Any interpretation of the Eubric which would leave it optional to the minister to wear or not to wear these vestments, not only would be opposed to the ordinary principles of construction, but must also go to the extent of leaving it optional to the minister whether he will wear any oflGicial vesture whatever. If the Eubric is not imperative as to the alb, and the chasuble or cope, ia the Communion Office, it cannot be imperative as to the surplice in the other services, or any of them. It is necessary now to ascertain the state of the law before the Act of Uniformity and Eubric of 1662; and then to examine whether any and (if any) what alteration was made by that Act and Eubric. In the first Book of Edward the Sixth (1549), the directions as to the vestures of the ministers officiating in the public services of the Church (omitting all that relates to hoods and the directions as to Bishops) were as follows : In the saying and singing of matins and evensong, baptizing and burying, the minister was to use a surplice. In the administration of the Holy Com- munion the celebrant was to " put upon him a white albe plain, with a vestment or cope," and the assis- tant-ministers (priests or deacons) were to " have upon them likewise the vestures appointed for their ministry, namely, albes with tunicles." These directions were omitted from the Second Book of King Edward (1552) ; and, instead of them, a Eubric was inserted, immediately before the order. Eubric m successive P.Bks. Elisahethan Rub. qualified 705 for Morning Prayer, in these words : " And here it is to be noted, that the minister, at the time of the Communion, and at all other times in his ministration, shall use neither alb, vestment, nor cope ; but .... being a priest or deacon, he shall have and wear a surplice only." This Book was "annexed and joined" to the statute 5th and 6th Edward the Sixth, cap. I., and was established as law thereby. Eing Edward died within a few months after the time appointed for this statute to take effect, and the re-action under Queen Mary followed. Upon the ac- cession of Queen Elizabeth, the Legislatru-e, reverting to the state of mattei-s which had existed when the Second Book of Edward was introduced, detei-mined at once to restore the Liturgy and offices of reUgion contained in that book, with a few specified altei-a- tions, but to leave the question of the vestures of the ministers of the Church open for further consideration. The natural course under these circumstances was that adopted, viz., to '"retain" the use of the vestures which had been authorized before 1552, until a final settlement of that question could conveniently be made. Xo new or revised Prayer Book was annexed to Queen Elizabeth's Act of Uniformity (1 Eliz., cap. 2); but the Second Book of Xing Edward, " with the alterations and additions therein, added and appointed by this statute," (viz., " one alteration or addition of certain lessons to be used on eveiy Sunday in the veai", and the form of the Litanv, altered and cor- rected, and two sentences only added in the deUverv of the Sacrament to the communicimts," as specified in the 3rd section j, was directed to stand and be in full force and effect from the 24th June, 1559. The enactment, however, that the Second Book of King Edward was to be used, with these alterations and additions, "and none other or otherwise,"' (sect. 3\ wasi further qualified by the provisos contained in the 25th and 26th sections, of which the former is in these words : — zz 706 ly Sec\ 25 Sf 26 of Stat. 1559 : that Rub. only a "Provided always, and be it enacted, that such ornaments of the Church, and of the ministers thereof, shall be retained and be in use, as was in this Church of England by authority of Parliament in the second year of Zing Edward the Sixth, until other order shall be therein taken by the authority of the Queen's Majesty, with the advice of Her Commissioners, ap- pointed under the great seal of England for causes ecclesiastical, or of the Metropolitan of this realm." In this manner, and not by any textual alteration of the Eubrics in the Second Book of King Edward, the directions as to ornaments of the First Book were kept in force until other order should be therein taken, in the way provided by the Act. The authorities whose duty it was to issue to the people, in 1559, a printed Book of Common Prayer, made conformable to the Statute, prefixed to the Book so issued by them a copy, in extenso, of the Statute of Elizabeth itself; and they also of their own authority, not by way of enactment or order, but by way of a memorandum or reference to the Statute, substituted a new admonitory note or Rubric for the note immediately preceding the order of Morning Prayer in the Second Book of King Edward. That note or Eubric, as is pointed out by Bishop Gibson,* was not inserted by any authority of Par- liament. It was meant to be a compendious and convenient summary of the enactment on this subject. If it was an accurate summary, it was merely a re- petition of the Act. If it was inaccurate or imperfect, the Act, and not the note, would be the governing rule. It is of importance to bear in mind that the Orna- ments Eubric, which it is now contended contains the whole enactment or law relating to the vesture of the clergy, was not, when originally introduced in 1559, and was not meant to be, an enactment at all ; and it in fact ended . with a reference to the Statute * Codex, Edn. 1761, p. 296.. Memorandum. The Adv*'- were an Order tinder 7^37 1 Elizabeth., cap. 2, set out in the begiiming of the Prayer Book, in terms which showed that the Eubric claimed no intrinsic authority for itself. The Statute, by its 25th section, had enacted that the ornaments of 1549 should be retained and be in use, but only until other order should be therein taken, by the authority of the Queen, with the advice therein mentioned. The enactment was therefore in its nature provisional, and prepared the way for the subsequent exercise of a power reserved to the Queen. If that power was not exercised, the enactment in the 25th clause would remain absolute. If the power was exercised, the order made under the power would not be an order in derogation or by way of repeal of the Act ; but the order would be in pursuance of and read into the Act as if that which was done by virtue of the reserved powei! had originally been enacted in the Statute. Did, then, Queen Elizabeth ever take other order within the meaning of the 25th section ? Their Lordships do not think it necessary to dwell upon the Injunctions of Queen Elizabeth, and still less upon the interpretation of those Injunctions ; because they cannot satisfy themselves, either that the Injunc- tions pointed to the vestments now in controversy, or that they were issued with the advice required by the section of the Act of Parliament. But their Lordships are clearly of opinion that the Advertizements (a word which in the language of the time was equivalent to "admonitions" or "injunc- tions") of Elizabeth, issued in 1566, were a "taking of order," within the Act of Parliament, by the Queen, with the advice of the Metropolitan. It is not disputed that these Advertizements were issued with the advice of the Metropolitan, and, indeed, also with the advice of the Commissioners for causes ecclesiastical ; but it is said that they were not a taking of order by the Queen. The Queen had in the most formal manner, by Her Eoyal Letters, commanded the Metropolitan and other zz2 708 the Stat, CrrindaVs letter, 156Q, a proof. Inference prelptes to prepare these Advertisements, directing them " so to proceed by order, injunction, or censure, according to tlie order and appointment of such laws and ordinances as were provided by Parliament, and the true meaning thereof, so as uniformity of order might be kept in every church, and without variety or contention." There was no particular form required by statute or by law in which the Queen was to take order, and it was competent for Her Majesty to do so by means of a Eoyal Letter addressed to the Metropolitan. The Advertisements were issued by the Prelates as Orders prepared under the Queen's authority. Immediately after their issue, on the 21st May, 1556, Grindal, Bishop of London, writes* to the .Dean of St. Paul's, requiring him to put them in force, and stating that they were issued by the Queen's authority, and that he (Grindal) would proceed to deprive any who should disobey them. The Articles of the Arch- bishop Parker t speak of them as Advertisements set forth " by public authority." In 1583, in Articles presented to the Queen J herself by the Archbishop and some of the Bishops, they are referred to as the " Book of Advertizements," and in the margin as the " Advertizements set out by Her Majesty's authority." Against this it is said that there is, nevertheless, other matter in the "Parker Correspondence" (lately for the first time published in a collected form, though it was partially known to some historical writers of the last century, who drew from it similar inferences), from which it ought to be inferred, as a matter of fact, that the Book of Advertisements was published with- out Queen Elizabeth's sanction. Their Lordships cannot lend any countenance to the suggestion that the legitimate inference to be drawn from the tenor and language of public docu- ments, from the acts done under them, and from * MS. from Dom. Eliz., vol. 39, No. 76. t 1 Card. Doc. An. 320. I 163 State papers, Domestic, No. 31. from pvhlic Documents 8f Acts, not to he controlled by 709 tlie public recognition of their authority, could in any case be controlled by expressions found ia a corres- pondence of this character. As, however, much of the argument against the authority of the Advertize- ments was founded on this correspondence, their Lordships think it right to say that they draw from the Correspondence, as a whole, a conclusion opposite to that in support of which it was referred to. The j&rst draft of the Book of Advertizements was prepared by the Archbishop and his colleagues very soon after the receipt of the Queen's letter of the 25th January, 1564-5, in the form of an order running in the Queen's name ; and it appears, from passages iu several letters, that they wished the Civil Power to undertake as much as possible of the formal responsi- bility of promulgating and enforcing the proposed new order, and that they anticipated very great difficulty if, without that support, the principal share of the burthen should be thrown upon the ecclesiastical jurisdiction. An opposite view, however, prevailed at Court, where some of the Queen's Mioisters and courtiers were more favourable than she was herself to the views of the Puritans, and where it was as well understood as it was by the Archbishop that the measure would encounter much unpopularity and opposition, so far as it was contrary to those views. It further appears that in the first draft of the book (which is printed at length in the Appendix to Strype's " Life of Parker," No. 28, p. 84,) there were several doctrinal articles, and other articles (about the tem- poralities of Bishops, the employment of schoolmasters, and the dissolution of marriages within the prohibited degrees), which were afterwards omitted, and the legality of all or some of which, under any powers then vested ia the Crown, might have been more than doubtful. That the Archbishop knew that no new " Order" could legally be taken by the sole authority of himself and his brother Commissioners, is abundantly clear. When, on the 8th March, 1564-5, he sent the first 710 '■^Parker Correspondence^'' yet Court draws from it draft to Secretary Cecil to be submitted to the Queen, he wrote : — " If the Queen's Majesty will not authorize them, the most part be like to lie in the dust for execution of our parts ; laws be so much against our private doings." That draft was not approved ; he sent it again a year afterwards (12th March, 1565-6), with a letter containing this passage : — " And where once, this last year, certain of ns con- sulted and agreed upon some particularities in apparel (when the Queen's Majesty's letters were very general), and for that by Statute we be inhibited to set out any constitutions without licence obtained of the Queen, I sent them to your honour to be presented. They could not be allowed then, I cannot tell of what mean- ing ; which I now send again, humbly praying that, if not all, yet so many as be thought good may be returned with some authority, at the least way for particular apparel ; or else we shall not be able to do so much as the Queen's Majesty expecteth for us to be done." That the Archbishop, both from his communications (in every stage of this business) with the Secretary of State (whose answers to him do not appear in the correspondence), and also from personal interviews with the Queen, must have had the Queen's pleasure distinctly made known to him, is no less certain. In a letter dated the 12th April, 1566, he gives an account of an audience which he had on the 10th of March preceding (exactly two days before his letter of the 12th March to Cecil), when he had explained to the Queen the difficulty of enforcing the uniformity desired by Her Majesty. "I answered, that these precise folk would offer their goods and bodies to prison rather than they would relent, and Her High- ness willed me to imprison them." In his official letter to Grindal, dated the 28th March, 1566, inclosing the Book of Advertizements, he refers to another interview which they had both an opposite conclusion to that of Appellant : the facts 711 then recently had with the Queen by her own com- mand, in which she charged them " to see her laws executed, and good orders decreed and observed." In the letter which he wrote on the same 28th March to the Secretary of State, submitting the Advertizements in their final form (together with the draft of the letter to Grindal) for approval, he says : — " I pray your Honour to peruse this draft of letter and the Book of Advertizements, with your pen, which I mean to send to my Lord of London. This form is hut newly printed^ and yet stayed till I may hear your advice. I am now fully bent to prosecute this order and to delay no longer, and I have weeded out of these Articles all such of doctrine.^ Sfc, which, peradvent'^re, stayed the Book from Her Majesty^s approbation, and have put in hut things advouchable^ and, as I take them, against no law of the realm.P They could only be " against no law of the realm " if they were issued by the Queen's authority. For what purpose were they sent to Cecil, except to obtain that authority for their promulgation, in the form and manner proposed ? It is true that the words follow (which were relied upon by the Appellant's Counsel) : — " And where the Queen's Majesty will needs have me assay with mine own authority what I can do for order, I trust I shall not be stayed here- after, saving that I would pray your Honour to have your advice to do that more prudently, in this common cause, which must needs be done." Their Lordships understand by this that the Queen had determined that the new order, made with her authority and approbation, should be enforced by the Metropolitan, through the ecclesiastical jurisdiction, without aid from the Privy Council or the secular power; not that the new order itself was to be without warrant, except from the sole authority of the Metropolitan, to whom, without the authorization of the Crown, the law had given no power to make any such order. The facts that this duty was undertaken by the 712 mentioned, ^ Parker's letter, 1573, tend to prove Aj-chbisliop reluctantly and possibly against his own judgment, that his wishes and opinions were on several porats overruled, and that the Book of Advertizements was promulgated, not in the form which he would have preferred, hut in that imposed upon it by the Eoyal wiU, all tend to prove that it was promulgated in that form with, and not without, the Queen's authority. If, indeed, the legal eflfect of the Advertizements were to be judged of (as their Lordships do not think it ought to be) by the private opinion of Archbishop Parker, there is in the correspondence distinct evidence that Parker, after the Advertizements were issued, considered them to be an execution of the statutory power. Writing to the Lord Treasurer, November 15, 1573,* seven years after the Advertizements were issued, he says : — " The world is much given to innovations, never content to stay to live well. In London oiu- fonts must go down I do but marvel what some men mean . . . with such alteration, when order hath been taken publicly this seven years by Commissioners, according to the Statute, that fonte should not be removed." The Advertizements had orderedf "that the fonte be not removed," and this circumstance, and the ex- pressions " order taken," " this seven years," and " Commissioners " (the Advertizements having been signed by the Bishops as Commissioners), make it clear that Parker was referring to the Advertizements. But the Advertizements could not have been a " taking of order publicly " " according to the Statute " unless they had the direct authority of the Queen. Their Lordships now turn to the part J of the Book of Advertizements which deals witii the vestures of the Ministers. It is in these words : — "In the ministration of the Holy Communion in * Correspondence, p. 450. f 1 Card. Doc. Ann. 326. I Card. Doc. Ann. Q's. authority for them. The like sho^m by reception 4" 713 Cathedral and Collegiate Clmrclies, the principal minister shall wear a cope, witli gospeller and epistoller agreeably; and, at as to Crucr&x and Rood Loft, 35 ; deprivation of, 520. Books, Printers of; Injunctions of 1559 as to, 79. Bread: no evidence that the Wafers were a substance which could not be called Bread, 224 ; circularity; and thinness of, not illegal, 235 ; common bread dishked in Eng- land and Geneva, 3C0,-1. Bread, Wafer : the charge as to the use of, 504; roundness of, ob- jected to, 505; great opposition to, in the reign of Elizabeth, 508. Breaking bread before people, 572, 588. Bruce, Knight, Lord Justice : as to Images, 304. Burnet, Bp. : as to Hist, of Injunc- tions, 1559, 230. Calendar : Q. Elizabeth's Letter as to, 84, 335, 540; Parker's letter to Grindal, 542. Candlesticks : destroyed by authority as adjuncts of the Altar, 404. Canon 74, (1604) : as to Dress of Clergy, 197 ; 80, ordered P. Bk. 1604 to be provided in Churches, 152; effect of this Canon upon Rub. and Advts. according to Hebbert v. Purchas, 156 ; 82, as to place of Table, 599. Canons of 1571 : referred to Adver- tisements, not ratified, 118, 340- 41 ; Sir James Stephen's argu- ment as to, answered, 426 ; of 1003 and 1640 refer to the Adver- tisements, 428 ; of 1604 as to the SuipUce and Cope,. 429 ; as to usage and retention in 1662, 442; of 1604 (82nd) as to the removal of the Table, 454; of 1603 cited on the distinction between side and end, 485. Canons of 1575: not ratified until reference to Advertisements re- moved, 119. Canons of 1604: 24th, 25th, 58th, 157 ; 14th, 159, 348 ; not the au- thority for P. Bk. of 1604, 73, 74, 147, 151-153; effect of, upon Ru- brics, 161; not "other" or "fur- ther order," 342 ; no Metropolitan to assent to them, 343; were to enforce, not to alter the P. Bk., 349; not included by Sect. 24, 1662, as to " the several good laws," &c., 8b0-2 ; an exercise of statutory power, 546-8. 774 Index to the Proceedings^ Sfe. Canons of 1640 : their force dis- cussed, 373 ; Charles I. attempted to exercise statutory power by, 546, 547 ; refer to " Advertise- ments of Queen Elizabeth," 539. " Canterburies Doome " : the charge against Laud regarding the Com- munion Table, 461. Canterbury, Abp. of: reference to Can. 58th, 159. Canterbury Cathedral : return from, 1569, as to Wafer-bread, 235. CardweU, Dr. : Interpretations of Injunctions, quoted from, 83 ; Advertisements did not receive the Queen's authority, 116 ; re- ference to them in Canons of 1571 and 1575, effect of, 118-119 ; Advertisements had not the Great Seal, 121 ; return from Cant. Cath. as to Wafer-bread, 235 ; as to Commission of 1559, 332; Warrant for High Commission, 1559, 335 ; EUz. Letter for New Lessons in Kalendar, 335; Docu- ments as to P. Bk. 1604, 344. Carte : as t6 the issue of the Adver- tisements, 116. Cases Cited : Archbishop Laud's Case, 461. Arding v. Bonner, 488. Att. Gen. v. Drummond, 517. Baron v. Denman, 645. Brett V. Brett, 483. Churchwardens v. Dr. Clarke, 472. Clifton V. Eidsdale, 66. Devine v. Wilson, 429. Edwards v. Hodges, 600. Elphinstone v. Purchas, 68, 358, 383, 389, 437. Faulkeher v. Litchfield, 399, 449, 465, 465, 599. Fenton v. Hampton, 67, Goodtitle v. Milbum, 527. Gorham v. Bp. of Exeter, 552. Hebbert v. Purchas, 21, 66, 68, '69, 76, 80, 89, 113, 138, 139, 144, 145, 153, 154, 158, 162, 169, 182, 202-5, 210-15, 223, 224-31, 238-239, 243, 246, 247, 256, 268-74, 321, 325, 329-35, 337-9, 342, 350-352, 357-360,365-71,379,390,415, 432, 444, 461, 492, 493, 497, 498, 507, 544, 563, 593. Keyley v. Manning, 122. LiddeUw. Westerton, 18, 19, 27, 29, 30, 39, 66, 70, 76, 202-207, 209-17, 253, 285, 292, 304, 320, 321, 331, 386, 404, 437, 448, 449, 483, 563, 599, 613. Marshall v. Bp. of Exeter, 154. Martin v. Maokonochie, 19, 21, 66, 202, 203, 211-13, 273-77, 320-1, 324, 331, 374, 431, 441, 497, 852. McDougall V. Purrier, 190. Middleton v. Croft, 154. Morisse v. Royal British Bank, 558. PhiUpotts V. Boyd, 29, 30, 31, 34, 37, 39, 77, 143-144, 189, 208, 293, 299, 383, 510, 612. Pochin V. Duncombe, 552. Queen v. Chadwick, 442. Queen v. Justices of Kent, 660. Queen v. Walker, 558. Sedgefield Case, 453. Sheppard v. Bennett, 664, 565. Shore v. Wilson, 576, 607. Walgrave's Case, 395. Warburton v. Loveland, 600. Westerton v. Liddell, {See Liddell) Williams v. Prichard, 553. Cecil, Sir W. : Return to, 1564, of Varieties in Service, 97 ; Parker's letters to on Advts., 98-101 ; Parker's letter as to lack of Sur- plice and Wafer-bread in City Churches, 112, 233 ; Parker's let- ter to, as to the " other order," 397. Celebrant, Position of the: chai'ge as to, 238 ; some behind him if he stood on N. side of a Table placed E. and W., 249 ; in front of Table, looking East, when putting Bread and Wine on it — no change prescribed after, 265 ; at the Confession and Absolution, 256 ; when ordering B. and W., 268 ; when Consecrating, 266 ; north side, Jud. Com., H, and P., 271; notsettledinM,andM.,274; Rubric before P. of Consecration is the governing Rubric, 365. Chaderton, Bp. : Letters from P. C. to, as to Wafer-bread, 234, 235. Chancel : meaning of in Rub. before Communion Office, 245 ; place of the Table, in, 447 ; the Table to stand as an alternative in, 449 ; meaning of the word, in the Ru- bric, 460. Index to the Proceedings, ^c. 775 Chancels : Q. Elizabeth's Letter, 1560, as to disorder of, 8i, 85. Chancellor, the Lord : gives leave of Court to argue Mr. Eidsdale's Appeal on points decided ia Heb- bert V. Pnrohas, 69 ; questions as to date and authority of the In- terpretations of the Injunctions, 80 ; as to proposition of Synod of 156a, 88 ; as to date of Inven- tories of 1566, 93 ; as to Great Seal to Advertisements, 121 ; question as to wearing different vestments together, 138-140 ; ques- tion as to P. Bk. 1604, 152 ; re- mark as to Canons 1604, 160 ; question as to Lords' Comee. of 1641, 163 ; question as to Savoy Conference, 165 ; question as to wording of Omts. Rub. 1604, 173, 175 ; question as to bearing of Sect. 24, 1662, upon Act 1549, 179 ; as to Bp. Cosin's Visit. Art. after 1662, 186 ; remark as to Commission to destroy Orna- ments, 1559, 192 ; question as to intervening. Legislation between 1549 and 1662, 207 ; as to dic- tum in LiddeR v. Westerton that Rub. and Act of 1559 mean the same thing, 217 ; as to the Wafer- bread being bread, i.e., leavened bread, 221 ; as to course of argu- ment meant to be adopted with regard to Wafer-bread, 223 ; as to propositions of law and fact to be contended, 226 ; as to authority for meaning of Wafer, 226 ; as to date of Scotch P. Bk., 228 ; as to authority for Scotch P. Bk., 232 ; as to date of Return from Cant. Cath. about Wafer-bread, 235 ; as to meaning of some words in Inj., 1559, about Wafer-bread, 236 ; as to position of Table, 243 ; as to moving of Table at Communion- time, 244 ; as to place of Morning and Evening Prayer, 245 ; as to meaning of Rub., "Then shall foUow one of these two Collects for the Queen" &c., 248; as to Bps. answer at Savoy Confce. on " Minister's turning," 258 ; as to meaning of "before," ia Rub. "standing before the Table," 258; as to " before " in reference to a Table in centre of Church, 259 ; as to standing at any side of the Table being " before " it, 261, 262 ; as to place of Table contemplated by Rubric before Consecration Prayer, 263 ; as to Faculty for Crucifix, 280, 286-7 ; as to decision of Delegates on Window at St. Margaret's, Westr., 310 ; question as to P. Bk. and Stat. 1552, 322 ; question as to "retained" in Stat, of EUz., 323-4; question as to " all times of their ministration," 324 ; as to no dress for Litany in P. B. 1549 ; as to Great Seal to High Commission, 335 ; question as to ratification of Canons, 1571, 341 ; question as to effect of Q's Injunctions under certain circum- stances, 341 ; question as to assent of Metropolitan to Canons 1604, 343 ; question as to effect of Pro- clamation of James for P. B. 1604, and as to changes in the Book, 344-346 ; whether Canons of 1604 are referred to in H. and P. as to " good Laws " &c., 351 ; question as to distinction, if any, in Court below, between Wafer and Bread, 353-4; question as to Charge in Court below upon Wafer-bread, 357 ; as to Parker's letter to Cecil, on Wafer-bread, 359 ; question as to bread intended by Rubric, 363 ; whether opinions of Cosia and others can weigh in the con- struction of Rubric as to Position of Celebrant, 367 ; question as to proceedings against Cosin, 370 ; as to meaning of "before the Table," 371 ; question as to Canons of 1640, 872 : as to " sight " in Puritan Liturgy, 375 ; question as to construction of "break the Bread" &c., 376; as to Cosin's Durham Book, 378 ; as to Cosin's Visit. Art. 1627, 379-80 ; question as to J. Comee. allowing Faculty for Crucifix to be applied for, 381 ; question as to accessi- bility of P. Bk. 1549 in 1662, 384-5 ; question as to the Sacri- ficial Vestments, 388 ; as to the joint use of Alb and Surplice, 391 ; as to the abolition of the Cope by the Second Book, 394 ; his question as to the prosecution of Sampson for not wealing the 776 Index to ihe Proceedings^ Sfc. prescribed habit, the Surplice,396 ; question as to the authority of the Injunctions of 1559, 398 ; question as to the inventories of Copes, etc., 400 ; question as to Peter Smart's view of " decent Copes," 408 ; as to the date of the Interpretations, 412 ; as to the date of the returns regarding varieties of worship, 419 ; as to the Royal sanction of the Advertisements, 423 ; as to Cosin, 432 ; as to Cosin's notes, 433 ; as to a tabula rasa during the Commonwealth, 441 ; as to Whitgift, 443 ; as to the position of the Communion Table, 447 ; as to the Chancel and the moving of the Table, 450 ; as to the order of the Chapter of Gloucester for the removal of the Communion Table to the East, 457 ; as to Charles 2nd taking "other order," 460; as to the duly of an Incumbent re- garding the moving of the Table, '470-; as to the MS. Prayer Book, 479 ; as to the Welsh translation, 488 ; as to the observations of Dr. Siephens regarding the doctrinal bearing of the question, 491 ; as to Dr. Scot's oration, 494 ; as to the Manual Acts, 495 ; as to the date of the impeachment of Laud and others for observing the East- ward position, 500 ; as to the Latin and Greek translations of the Prayer Book, 502 ; as to a quo- tation from Nicholls on the Prayer Book, 506 ; as to the pro- posal in 1662 to aUow Waler Bread, 508. Chapel Royal, the : position of, 244. Charges against Mr. Eidsdale, the : 17, 18. Charles, Mr. Arthur: his Argument for the Appellant (Mr. Ridsdale), 320-85. Cliasuble, the : authorized under the lirst Reformed Prayer Book, 386, 387 ; the word does not occur in that Book, but it is intended by the expression, " the Vestment," 388; exclusively worn in the Mass, 389 ; Sacrificial, according to Dr. Rock, 389 ; it never has been used in the Church of England since 1559, 394 ; prohibited by the Book of 1552, 394; clergymen have never been prosecuted for not wearing it, 396 ; not used in any Church in 1564,419; referred to in Episcopal Visitation Articles as a monument of superstition, 430 ; non use of since the Refor- mation admitted by Sir James Stephen, 443. Chester, Dean of : his learned work " Before the Table," 489. Chrismatory : a lawful ornament in 1549, unlawful now, 438. Church-militant Prayer: no place assigned in Rubric for saying it, 254. Church, non-attendance at : Injunc- tion of 1559 as to, 79 ;' attendance at. Interpretations of Injunctions as to, 82. Church, position of the : governs position of Table, 244. Church: Temple, the, 244; the Round, Cambridge, 244 ; North- ampton, 244. Churches: Q. Elizabeth's Letter, 1560, as to disorder of, 84, 85. Clergy : Marriage of. Injunction of 1559 as to, 78, 79 ; Garments of. Injunctions of 1559 as to, 79; In- terpretations, 82 ; Deprived, to be employed at discretion of Ordinary, Interpretations, 83. Coke, Lord : as to first Ecclesias- tical Commissioners, 519-521 ; King cannot administer Justice in person, 567. CoUier : as to issuing the Advertise- ments, 124. Collier, Sir R. P. : question as to nature of Wafer-bread, 222. Commandments, Table of: ordered by Advertisements, 133. Commission Eccl. : (See Eccl. Com.) Commission, High : Warrant for — Great Seal, 335. Commissioners, Ecclesiastical: ex- isted before warrant of July 19, 1559, 518-524 ; large discretion given to, by letter as to Calendar, 541 ; James I.'s Letter to, as to Prayer Book, 546. Commission, Royal : none to destroy Ornaments in 1559, 192 ; object of, 1559, 332. Commissioners, Royal : the execution of the Injunctions of 1559 commit- ted to, 897; abolished, the Sacri- Index to the Proceedings, Spc. Ill ficialVestments,400 ; of whom they consisted, 401 ; defaced supersti- tious Vestments in 1573, 409; issued a set of Injunctions as sub- sidiary to those of the Queen, 413 ; proceeded against non-conforming clergy, 419 ; appointed in 1689 to revise the Prayer Book, 436 ; even the report of, can not be accepted in aid of the construction of a statute, though the statute be founded upon the report, 483. Commons, House of: order of, for the removal of the Communion Table from the East end, 473. Commonwealth : the, acts of, regard- ing the Prayer Book, nuU and void, 441. Communicants : the number required by Rubric, 22; sufficient number not secured by Mr. Ridsdale, 22- 29 ; provision of Rubric to ascer- tain number, 24-27 ; placing of, in Rubrics 1662, 1552, 1549, 24, 25 ; exhortation to non-commu- nicants in 2nd P. Bk., 25 ; Court of Aa-magh, 1852, thereon, 26. Communion, the Holy : times for receiving of, in Cathedrals &c. 131. Communion Office, the: sequence of Rubrics in, 239-242; the Sarum Missal was the basis of the first Reformed, 886. Communion Table : ordered by Ad- vertisements, 133 ; covering of, required by Advertisements, 133. Compass, points of the : no direction as to position of Lord's Table with reference to, 245. Complainants, the : Declaration of the, 6. Comprehension : proposal for, to Baxter, 326. Conference, Hampton Court, the : 146-148. Conference, Savoy, the : 1 65. " Contemporanea Expositio : " as to Ornaments Rubric, drawn from destruction or disuse of Ornaments, temp. Ehz., of little weight con- sidering passions of the period, 113. Consecration, Prayer of : Rubric be- fore, due to Cosin and Wren, 370 ; Rubrics of, 597. Convocation of Canterbury, 1603-4 : no Metropolitan at, 151. Cope, the: to be used in Lord's Supper, Interpretations^ 83 ; pro- posal for Synod of 1562, as to dis- use of, proves lawfulness then, 86; use of, in Cathedrals &c. required by Advertisements, 132 ; some remain at Durham and Westr., 196 ; to be used under the first Reformed Prayer Book, 387 ; a non- sacrificial vestment, 388; a processional vestment according to Dr. Rock, 389 ; two classes of^ the superstitious and the plain, 390 ; authorized by ParUament in 1549 to be used with the surplice in the Holy Communion, 392 ; allowed to be worn under the first Book, as an alternative in the place of the Chasuble, 393 ; pro- hibited by the Prayer Book of 1552, 394; Queen Ehzabeth had power to restore it, by sec. 25 Act of Uniformity, 395 ; superstitious Copes were destroyed under the Injunctions of 1559, 403 ; plain Copes not destroyed, 403 ; super- stitious and decent copes, distinc- tion between, maintained, 406 ; Cosin, as to superstitious Copes, 407 ; a plain wUte cope used in the " latter year " of Edward VI., 411 ; Heylin, as to its use in 1559, 417 ; returns showing the use of, 421. Coronation Service : " before the Altar," 265. Corporas, the : used under the First Reformed Prayer Book, 386. Cosin : his MS. alteration of Omts. Rub., 173, 176, 817; Visitation Art. 1662, 182, 192 ; framed upon P. B. 1604, 193 ; 828-80 ; Notes on Ornts. Rub., 184, 185; when made Archdeacon andBishop, 193; his witness as to use of Wafer- bread, 236 ; charge against him as to E. Position, 368; his Visit. Art. 1627, cited as 1687 by J. Comm., 379-80 ; as to superstitious Copes, 407; his notes, 482; articles against, 433 ; his notes, 433 ; changed his opinion as to the Vestmen! s, 435 ; as to the position of the Minister, 403 ; as to Adver- tisements, 534; Visitation Articles " all times of their ministration," 501. 778 Index to the Proceedings^ Sfc. Council Books, 1566 : " orders thought requisite by Queen," 530. Council of Trent, the : as to Images, 32. Coverdale: Danish Order of the Communion, 600. Court of Lord Penzance, the: re- lation of, to Diocesan and Pro- vincial Courts, 13-17. Cox, Bp.: Visit. Art. 1570, 339. Credence-table : allowed, LiddeU v. Westerton, 253. Croke's Keports: quoted, 122. Cross, Stations of, the : {See Stations) . Crowley : letter from Council as to, 529; resisted Abp. Parker when enforcing the Advertisements, 530, 532. " Crown of Jesus, the " : Devotions for the Stations in, 42. Crucifix, the : on Chancel Screen, Judgment of Lord Penzance as to, 29-41 ; lawfulness of, not de- termined by Liddell v. Westerton as to Cross, 30, 39 ; nor by PhiU- potts V. Boyd as to Exeter Kere- dos, 30, 34, 37, 40; ■"superstitious reverence " or " architectural decoration," the test supplied by these cases, 31 ; Art. 22, its apph- cation to the subject, 31 ; doctrine of Council of Trent as to Images, referred to in Art. 22, also applies, 32 ; whether its position on the Screen and as to the Lights tended to " superstitious reverence," 34 ; formed part of the " Rood " which was destroyed at the Reformation, 35-36 ; apprehension of the revival of " superstitious reverence," a reason against lawfulness of, 37 ; review of arguments in favour of it, 38-41 ; the painting of, in win- dow of St. Margaret's, Westmin- ster, would be unlawful if proved to have a dangerous tendency, 40 ; the Figure to be removed from Chancel Screen, the Cross to re- main, 41 ; appeal to J. Comm. — charge stated, 279-80, 282-83; examination as to, before Lord Penzance, 283-4 ; whether a deco- ration forbidden by law, 285 ; P. W. R. Act, bearing upon, 285-89 ; needful to review Lord Penzance's decision as to it, 289 ; his Judgmt. quoted, 291-302; was it set up only for decoration ? is it likely to be abused ? this the true issue, 293 ; what is the Romish doctrine as to Images, referred to by Lord Penzance, 294 ; Crucifix not opposed to Art. 22, 299 ; its law- fulness not afi"ected by the Lights on Screen, therefore superfluous in Lord P. to mention them, 301 ; in Q. Ehz. Chapel, 303 ; superstition as to, at Folkestone, whoUy im- probable, 308 ; in painted window minister at St. Margaret's, West : never led to superstition, 310 ; in- ferior as a Church Decoration, so held by Ld. Penzance, this dis- cussed, 312-13 ; a suitable Church Decoration, 313 ; can be removed if found to transgress law, 314; if Lord P. had held it to be legal, Faculty could have been applied for under P. W. R. Act, 381; charge as to it, dififerent from charge against Mr. Purchas, 382 ; Lord P. held it was not set up for Ceremonial purposes, 382 ; but not an Architectural Decoration only, 383 ; not Ukely to be abused, 383-4 justified by Exeter Reredos, 383-4 not involved in the Exeter Reredos Case, 509-10 ; the Dean of Arches as to, 511 ; abused to superstition, 513 ; Romish doctrine as to, 612 ; not a m^re decoration, 614. Curates : order of Advertisements as to Examination of, 134. Daily Service : order as to, 1604, 160. Danish Order for the Communion : 600. Dates : table of, referred to in Argu- ment, 318-19. David's, St., Bishop of: in 1583 for- bade Manual Acts, 494. Declaration, the : by the Complain- ants, 6. Delegates, the Court of : decision of as to Painted Window at St. Margaret's, Westminster, 310. Dictionary : Webster's, on the dis- tinction between Side and End, 484. Direction of the Table : 483. Directory for Public Worship : 577. Disraeli, Isaac : Proclamations, 545. Index to the Proceedings, Sj-c. 779 Dodson, Sir John : on Ornaments Rubric, 205 ; quoted by J. Com., 207. Dolby's " Church Furniture : " as to Superstitious Copes, 406. Domestic State Papers of Elizabeth : important document from, showing that the Advertisements were en- forced on the authority of the Queen, 424. Dufour's Greek translation of the Prayer Book, 503. DureU : French Translation of the Prayer Book, 590. Durham : Bishop Pilkington, of, forbade the Altarwise Position of the Table, 453. Durham P. Bk., 1619 : alteration of Rubrics in, by Cosin, 317. Eastward Position, the : used by Cosiu, Laud, and Wren, 260 ; not settled by M. & M., 274 ; one of several legal positions, 315 ; Cosin and Wren used it when Rub. only said " stand up," 868 ; 445 ; an alternative argument, 566-608. Ecclesiastical Commission : illegal in 1662, could not be referred to in Omts. Rub., 174, 218. Ecclesiastical Commissioners. — See Commissioners. Edward's First Prayer Book: rubrics of contradicted by Advertisements, 537. Elements, the, for Sot: no place for them before being put on Lord's Table, given in Rub., 253 ; private consecration of, 572 ; ordering of, 595. Elevation : omission of the Manual Acts was to prevent, 495. Elizabeth, Queen : favoured the re- storation of the Rood in Churches, 36 ; restored Ornaments by P. Bk., 1559,77; her Letter to Eocl. Com. to take "further order " under Sect. 26 of her Act of Uniformity, 84-85 ; her compromise as to 1st and 2nd P. Books, 209 ; Parker's conversa- tion with, as to Wafer-bread, 358 ; her Actof Uniformity, 394; proviso which gave power to take " other Order," 395 ; had power by Act to restore the Cope, 395; Pairker's conversation with, as to the power to take " other Order," 397 ; no Chasuble, no Alb, used in the Chapel of, 416 ; authorized the Advertisements, 424 ; impor- tant Document in the Domestic State Papers of, as to the Ad- vertisements, 425 ; only delayed to assent to Advertisements, 528. Elizabethan Lijimotion : as to Wa- fer-bread, 229. Elizabethan P. Bk., the : latest Edi- tions of, contain Omts. Rub. unal- tered, 145 ; editions of, 1580 and 1596, produced in Court, 216. Ely : Thirlby, Bp. of, deprived, 520 ; Cox, Bp. of, Crowley committed to custody of, 529. End : distinction between Side and, 485 ; Webster in his Dictionary as to, 484; recognized by the Convocation of 1640, 485 ; recog- nized by Laud in his Defence, 486 ; return in 1564 by the Dean and Chapter of Canterbury, re- cognizes the distinction, 486. Epistle, the : no place for reading it assigned in Rub., 250. Erie, Sir W. : as to the survival of the Church of England through- out the Commonwealth, 441. Evidence : the mass of, referred to by the Appellant's Counsel as to the opinions of the revisers, is, so far as it regards the present ques- tion, vox etpraterea nihil, 483. Exeter Reredos Case : did not in- volve the question of the Cruci- fix, 510. Faculty, the : from Commissary of Abp., 10-13 ; question as to, by J. Comee., their decision as to it being material, 280-1 ; quoted 281-82 \ would be applied for under P. W. R. Act, if Crucifix legal, 382. Fairs on Sundays : Interpretations of Injunctions as to, 82. Faulkner and Litchfield : remarks of Sir Herbert J. Fust in, as to the authority of the Injunctions of 1559, 399; as to the Interpre- tations of 1559, 412 ; quoted in reference to the Position of the Table, 448 ; states that the object of the Order of the Council in 780 Index to the Proceedings, &tc. 1549 to remove Altars, was to take away the superstitions of the Mass, 449 ; comments upon the 82nd Canon, and the moveahility of the Table, 455. Free-will men : punishment of, 83. French translation, DureU's: of Prayer Book, 590. "Further Order": taken by Q. EUzabeth, 1560, 84-85. Fust, Sir Herbert Jenner : as to the authority of the Injunctions of 1559, 399 ; comment of, upon the dispute between the Vicar of Grantham and his Wardens, as to the Position of the Table, 465. Geste, Bishop of Rochester: ex- pressed his opinion, as a Com- missioner, that a Surphce and not a Cope should be worn by the Celebrant in the Holy Com- munion, 394. Gospel, the : no place for reading it assigned in Rub., 250. Grantham: dispute between the Vicar of, and his Churchwardens regarding the Position of the Table, 464. Great Seal, the : discussion as to, 120-124, 335. Greek translation of the Prayer Book: 502. Gregory, St., Church of: Order of Council obtained by Laud to place the Communion Table altarwise in, 458. Grindal, Bishop : Parker's letter to him on Queen's Letter, Jan. 25, 1564-5, as to the varieties of Service &c., 96-97 ; letter to D. and C. of St. Paul's, enclosing Advertisements, 109 ; letter to Zanchius, 1571, shews that the Law as to Ornaments was not altered, 114 ; a Royal Commis- sioner, 413 ; enforced the Adver- tisements in 1566 on the authority of the Queen, 424 ; used the term " public authority," 535 ; letter to him from Parker implies Queen's consent to Advertisements, 542. Gunning, Bp. : Visitation Articles assume Manual Acts visible, 586. Hall, Reliquiae Liturgicse : quoted, 375. Hampton Court Conference,the : 146- 148 ; the question in, related to Surplice only, 429. Harleian MSS. : as to meaning of Wafer, 279. Hebbert and Purchas : case of, as to the use of Chasuble and Surplice, 390 ; as to the Maximum and Minimum theory, 432; as to usage, 444; as to the Injunctions of 1559, 451 ; as to the consistency of the Rubrics, the Tablewise Position of the Communion Table being observed, 497 ; collected authori- ties on the meaning of the words " Before the people," 502. Helston Case : Bp. of Exeter as to Vestments, 315. Heyhn : as to the use of the Surplice in 1559, 417 ; his ' Coale from the Altar,' 465. Holidays : order as to in Advertise- ments, 133. Homihes : Elizabeth's assent to, delayed, 528. Hood, the : order of Advertisements as to, 133 ; allowed by the Book of 1549, to be used by Graduates in preaching, 389. Hook, Dean : life of Laud, quoted, 372. Hooker : his statement as to Wafer- bread, 361 ; as to Advertisements, 533. Hooper, Bp. : contrast between pubUc and secret breaking of bread, 581. Horneck : as to seeing bread broken, 587. House of Lords : Sub-committee of divines, 1641, 538. HoweU's State Trials : gives Laud's answer on his trial to the charge regarding the removal of the Table, 461. Howley, Archbishop: Cope worn by, at the Coronation of the Queen, 390. Howson, Dean: gives instances of tlae Tablewise Position of the Communion Table from 1662 to 1843, 489. Hutton's answer: to exceptions to the Prayer Book, 505. Illegal placing of the Table : causes of, 488. Images, adoration of: Council of Index to the Proceedings, Sfc. 781 Trent as to, 32, 295 ; whether right- ly understood by Lord Penzance, 297 ; no danger of now, 305 ; Romish doctrine as to worship of, 613. Injunctions of Edw. VI., 1547 : au- thority of, 143. Injunctions of 1559,the: were not law, shewn from title, and by Nos. a9, 4t), 47, and 51, 77-80 ; remarks of Lords' Oomee., 1641, as to, 164 ; as to Wafer-bread, 229 ; consistent with Rubric, 230 ; Bp. Burnet as to, 230 ; on Wafer-bread, held in H. and P. to supersede EUza- bethan Rubric, 231 ; not the "other order " of Stat., 332 ; their object, 333 ; as to Wafer-bread, Parker's letter to Cecil, 358-60; astomoving of Table, 372 ; authority of, 397 ; issued under the 25th section of the Act of Uniformity, 398 ; always received as law, 399 ; acting upon them, the Commis- sioners abolished Chasubles and Albs, 400 ; the 30th section of, as to Vestments, 410 ; Parker's in- quiry in 1563 must have reference to the 30th section as enjoining the Surplice, 411 ; two sets of, 413 ; of 1559 as to the moving of the Communion Table, 451 ; dif- ference between and the Rubric, 452 ; of 1559 and their opposition to the Statute, as to Wafer Bread, 507 ; of Elizabeth differed from the Prayer Book as to Wafer Bread, 507 ; of Edward VI. agaLnst images, 512 ; apply to dress in church, 516 ; an exercise of statutory power, 517-528 ; not acted upon until after July 19, 524-528; as to wafer bread probably ultra vires, 612. Interpretations of the Injunctions : not law, 80 ; date of, 1561, 80 ; authority of, 81; some contents of, 81-83 ; had no statutory au- thority, 334; history of, 411 ; au- thority of, 414 ; supply the omis- sion of the Injunctions of 1559 by naming SurpKce and Cope, 414 ; as to the Table, 453. Inventories: Injunctions of 1559 as to, 80; the, 401. " It shall suffice : " can be pleaded for Wafer-bread, 364. James K. 1st : Letter of, to Abp. of Cant., 1608-4, authorizing re- vision of P. Bk., 148-149 ; Pro- clamation authorizing revised Book, 150-151. James, Lord Justice : question as to Great Seal, 335 ; as to breaking Wafer, 355 ; as to the identifica- tion of the Act of Ehzabeth with the Prayer Book, 441 : on the Welsh translation of the word " before," in " before the Table," and "before the people," 501. Jewel, Bp. : Letter of, as to con- troversy about the Crucifix, 30 ; as to vestments, 550 ; his Works placed in churches, 549. Judicial Committee of P. Council, the : Judgment on application to for usual Inhibition as to Moni- tion of Lord Penzance to Mr. Ridsdale, 55-63 ; constitution of the Court at hearing of Appeal on the Merits, 64; remarks of Lord Penzance on apparent conflict of previous decisions on points charged against Mr. Rids- dale, 67 : previous decision altered in Penton v. Hampton, 67-68; Purchas Case not argued before them, 68; allowed argument for Mr. Ridsdale to proceed, 69 ; four erroneous propositions of fact ill Purchas Case, necessary to be considered, 72-74; held, in Liddell v. Westerton, that Queen Elizabeth made a compromise as to Services and Ornaments of P. Bk. 1549 and 1552, 77; character of their Judgment in Hebbert v. Purchas really determined as to Vestments, by their view of efi'ect of Advertisements, 89-93, 163 ; their argument from destruction and disuse of Vests., temp. Eliz., diminished in force by disorders of the period, 112-13 ; error as to wearing together different Vests., 139; decision, Phill. v. Boyd, as to Injunctions, apphes to Advts., 144 ; error as to Canons 1604 being authority for P. Bk. 1604, 147, 153 ; their view that O. Rub. was re-cast in 1661, examined, 169-179 ; their erroneous con- clusion from Cosin's Visit. Art. 1661, 183 ; their argument from 782 Index to the Proceedings, 8fc. McDougall V. Furrier, as to au- thority of Advts. not tenable, 190-1; mistaken as to Royal Corns, for effecting destruction of Vests, under Advts., IftS^ ex- amination of their opinion, that the Rub. as to Vests, could not have been disobeyed for 180 years, if law, their decision as to Copes adverse to such a view, also other violations of undoubted Laws, 195 ; conflicting interpre- tation of Ornts. Rub. L. & W., M. & M., H. & P., 202-215 ; held, H. & P., that Inj. 1559, as to Wafer-bread, superseded Rubric 1559, 231; held that Lord's Table was commonly placed with ends E. & W. when Rub. 1552 was made — tissue of fact could be raised, 246 ; as to place of Table before the civil wars, 260 ; as to meaning of " North side " and "before the Table," 269; con- clusion as to position of Cele- brant, virtually alters Rubric, 272 ; " standing before the Table " only meant to set Minister free to order elements, 272 ; remarks upon Sir R. Phillimore's conclu- sion from M. & M. as to position of Celebrant, 274 ; in M. & M., as to position of the Celebrant, 274-5 ; held Faculty for Crucifix to be a material question in Mr. Bidsdale's Appeal, 281 ; grounds for interpretation of Ornts. Rub., Heb. V. Pur., 321, 325 ; in Mart. V. Mack., 325 ; as to object of Inj. 47, Eliz., 332 ; erroneous date (1687) assigned to Cosin's Visit. Art. of 1627, 379. Judgment of Lord Penzance, the : 13-45 ; Appeal from, 46 ; Moni- tion to Mr. Ridsdale, 47-51 ; re- fusal to suspend execution of, 51- 55 ; application to J. Com. for usual Inhibition and Judgment thereon, 55-63. "Key of Heaven, the:" Devotions for the Stations in, 42. KeUy, the Lord Chief Baron : ques- tion as to P. Bk. 1604, 155, 156; question as to Cosin's Visit. Art. of 1627, 380. Ken, Bp.: as to seeing bread broken, 587. " King " : in Acts of Parliament ex- tends to his successors, 547. Kneeling at Communion: required by Advertisements, 133. Laity : apathy of the, aided the in- novations of the Laudian Party after the Restoration, 490. Latin translation of the Prayer Book: 502. Laud, Archbishop : wished to place Table agamst E. wall, 260 ; his order in 1637 as to it, 372 ; re- ferred to the Injunctions of 1559 as of authority, 399 ; enquiry as to Ornaments of Superstition, 405; in his Visitation Articles requires Churchwardens to deal with Chasubles and Albs as' articles of superstition, 430 ; the House of Commons in 1662 op- posed to his views, 439 ; obtained a decree to remove the Table in St. Gregory's to the East, 458 ; changed tlie position of the Table in Lambeth Chapel, 461 ; drew a distinction between the Table out of and in Communion timp, 462 ; his mode of procedure in having the Table placed Altarwise, 463 ; quoted on the distinction between Side and End, 486 ; when defend- ing copes, only relied on Canons, 548; as to Scotch consecration rubric, 584; never received in wafers, 612. Laudian Convocation of 1640 : re- cognized the distinction between Sides and Ends, 485. Laws : various, as much disregarded as the Ornts. Rubric, yet still in force, 199. Lessons : new in Elizabethan Calender, 335. L'Estrange's Alliance : as to North side, 591. LiddeU and Westerton : case of, re- ference to the first Reformed Prayer Book, 386 ; as to the Orna- ments of the Minister, 437. Lincoln : the Visitation of, in 1565, 402 ; letter of the Bishop of " (WUliams), on the controversy in Grantham, between the Vicar asnd Churchwardens, 466. Index to the Proceedings, 8[c. 783 Litany : no Dress prescribed for, in P. Bk., 1549, 330. Littleton, Sir Thos. : Speaker of the House of Commons, in 1667 protested against the innovation of placing the Table " Altarwise," 489 ; his grave charges, 490. Liverpool : the Oonununion Table in . 1687 in, did not stand Altarwise, 489. Lords, House of : Comee. of 1641, proceedings of, as to Rub. on Vests., 162 ; as to Innovations in Discipline, 164 ; order of, for the removal of the Communion Table from the East end to the body of the Church, 474. Lushington, Dr. : effect of Ornaments Rubric, 1662, upon Legislation of the P. Bk. 1549, 205 ; quoted by J. Comee., 207. Manual Acts : omission of, noticed by Bishop of Chester in 1559, 494 ; Bishop Middleton as to, 495 J absence of, noticed by the 21st Canon, 495 ; introduced m 1662, 495. Manuscript Book : annexed to the Act of Uniformity, distinct from the Sealed Books, and the Pho- tozincographed Book, 479. Marriage of Clergy: Injunction of 1559 as to, 78-79. Marriage Service : "before the Lord's Table," 264; "before God" &c., its bearing upon Rub. to Con. Prayer, 377 ; and " before the Table," 499. Mass, the : and its Vestments, Chasuble, Alb, etc., 388 ; adjuncts of, unlawful, 395. Maximum and Minimum : the theory of, 431. Metropolitan, the : to be consulted by the Crown in taking "other order," 395 ; no special form of consultation prescribed, 315. Middleton, Bishop : as to the re- moval of the Table, 452 ; against the Manual Acts, 495. " IVCnister's turning " : Exception of Puritans and Reply of Bishops as to, at Savoy Conference, 256. _ " Ministration, at aU times of their " : Cosin's Note as to, 324; J. Comee. as to 325 ; meaning of, 330. Missal, Sarum : Office for adoration of the rood on Pahn Sunday, 37, 303 ; was the chief service Book in the Unreformed Church, 386. Monition from Lord Penzance to Mr. Bidsdale, the : 47-51; refusal to suspend execution of, 51-55. Monuments of Idolatry : the Sacrifi- cial Vestments destroyed as, 393. Moore's Report, LiddeU v. Wester- ton : quoted, 209-211. Neal : as to issuing of Advertise- ments, 127. Nicene Creed, the : no place for saying it assigned in Rub., 251. NiohoUs on the Prayer Book : re- ferred to, 505. "Non-Jurors," their view of the words " before the Table," 499 ; fixed the minister on the " North side," 500. Non-Communicants {8ee Communi- cants.) "Non- Jurors'" Liturgy: mixture of water "in view of people," 585; "before" to mean "North side," 594. " North part " : was the expression proposed in 1661 for " North side," 487. " North side " : supposed origin and meaning of the term, 246-48, 269, 270 ; proper place of Celebrant when consecrating, J. Com., H. and P., 271 ; to what extent it governs Position of Minister, 366 ; the place and direction in which the Table is to stand, 446 ; must be determined prior to the ques- tion of the, 451 ; controversy re- garding, in Grantham in 1627, 464; Sir H. J. Fust as to the Grantham controversy relating to, 465 ; Bishop WiUiams as to, 467 ; the question of, involved in that of the position and direction of the Table, 471 ; Hebbert and Pur- chas as to, 498 ; meaning of, 592 ; meaning when chiurch not built East and West, 593. Notices : no place for giving out assigned in Rub., 251. Oblong Table, an : has two ends and two sides, 484. Obsolete: whether this is meaning of " absolute " as used by Puritans at Savoy Conference, 168. 784 Index to the Proceedings, 8fc. Omnia rite acta: the principle ap- plied, 425. " Only " : not used in Advts. as to Surplice, referred to by J. Comee., 194. Orders, Letters of : Canon 1595 as to, 119. Ordinary's discretion as to place of Table, 603 ; exercised wrongly in allowing East end position of Table, if that rendered eastward position of minister lawful, 003- 604. Ornaments : definition of by J. Comee., (LiddeU v. Westerton), 207 ; Strype's account of destruc- tion of, 1559, legal and illegal, 333. Ornaments of Church and Minister : restored in 1559 bj'' Q. Elizabeth, 76-77 ; Proviso as to in Act, 1559, 103 ; had not been acted upon in 1571, shewn by letter of Grindal to Zanchius, 114; no Royal Com- mission by EHzabeth to destroy them, 192, 333. Ornaments of the Minister : tobe used under the first Relbrmed Prayer Book, 387 : eight Ornaments of the Minister .to be used under that Book, 387 ; Ornaments ot the 1st Book are not lawful in cases in which the Services to which they belonged have been removed, 438; result of the arguments as to, 444. Ornaments Rubric, the : Lord Pen- zance on the constructions of by J. Comee., 18-21 ; Sir J. Stephen on view taken of in Purchas Case, 71 ; not altered to meet Puritan objections in Savoy Conference, 74 ; in Statute and P. Bk. 1559, 75-76 : destruction and disuse of Ornts. temp. Eliz., not rehable " contemporanea expositio," 113 ; unaltered in latest Editions of Elizabethan P. Bk., 145 ; sub- stantial identity of 1559 and 1604, 153 ; exception to at Savoy Con- ference, and Answer of Bps., 166- 167 ; Hebbert v. Purchas as to, 169 ; form of, 1603, 172 ; Cosin's MS. alteration of, 173, 176 ; al- teration of wording not made to satisfy the Puritans, 177 ; list of " alterations " in Black Letter Bk. 1636, shews it was not altered, 182 ; Cosin's Notes on, 184-185 interpretation of by Dr. Lushing- ton and Sir J. Dodson, 205, 207 ; substitution of Ornaments referred to, for the words of reference, prove its mt?aning, 214-215 ; com- parative table of 1559-1662, 317; Cosin's alteration of in Durham Bk. 1619, 317 ; unambiguous, 320 ; differing constructions of by J. Comee., 321 ; only Elizabethan Statutory form of it at Revision in 1661, 321 ; no intention of re- casting it in 1666, 333 ; of 1669, quoted, 323 ; Baxter's requirement as to, 1668, 327; Cosin's Visit. Art., 1662, guide to its meaning (H. and P.) — the point discussed, 327-30 ; not recast, 331 ; retention of in 1662 did not repeal Adver- tisements, 658 ; how altered in 1662, 554-563. ' Other Order" : the 25th sec. of the Act of Uniformity of 1559 gave the Queen power to take, 894. "ParentaUa", the: Wren's defence of E. Position, 369. Parishioners, attendance of at Church : Injunctions of 1559 as to, 79 ; Literpretations of Injunc- tions as to, 82. Parker, Abp. : Correspondence of. Letter from Q. Elizabeth, Jan. 25, 1564-5, as to varieties of Service &c., 94-96 ;■ not an execu- tion of 1 Eliz. 2, sect. 25, 95 ; to Grindal, as to the Queen's letter, 96-97 ; letters to CecU, as to Ad- vertiseinents, 98-108; letter to Cecil as to lack of Surplices and Wafer-bread in City Churches, 112, 233 ; to Parkhurst as to Wafer-bread, 234; Visit. Art. 1663 and 1667 do not refer to the Advts. — 1569, do not assign them Q's authority, 338-9; letter to CecU, Jan. 8, 1570-1, as to Wafer- bread, 358-60 ; as to tlie authority of the Injunctions of 1659, 397 ; Ms Visitation Article in 1663 en- quired for the Surplice, 411 ; a Royal Commissioner, 413 ; no alb used at the Consecration of, 316 Queen Elizabeth's letter to, 420 as to the Advertisements, 426 Index to the Proceedings^ 6fc. 785 return from the Dean and Chapter of Canterbury to, in which the word " side " has a definite mean- ing as applied to the Communion Table, 480 ; Queen said that In- junction as to Wafer-bread was under the Proviso of Statute, 517 ; letter from Lords of Council to Parker, 523 ; Parker to Cecil as to Homilies, 538 ; as to Crowley, 530 ; Admonitions of, illustrates meaning of " public authority," 536 ; Queen's letter to, about new Lessons, 540 ; relies in this letter upon Queen's Warrant, 542 , Queen's letter to him as to pub- lishing Prayers &c., 548. Parkhurst, Bp. : Abp. Parker's reply to bim as to Wafer-bread, 334 ; refers to Injunctions for apparel when ministering, 517. Patrick, Bp. : as to seeing bread broken, 587. Pastoral Staff: to be used under the first Reformed Prayer Book, 387. Peacock's Church Furniture : evi- dence as to Roods, 35 ; quoted by J. Comee., Hebbert v. Purchas, to prove that Vestments &c. were destroyed under the Advertise- ments, 90 ; Mr. Peacock's dates prove the -contrary, 91-93; tabular digest of dates and articles de- stroyed, extracted from his book, 93, 316 ; proves the destruction of legal Ornaments, 334; shews that Chasubles and Albes were abolished, 400 ; that Albes were converted into Surplices,401; that Chasubles and Albes were removed from use, 405 ; proves the destruc- tion of Candlesticks and Crosses, 404; as to the Cope, 411 ; proves that the Pix was destroyed by authority in the first year of Queen Elizabeth, 439. Peck, Desiderata Curiosa: quoted as to Wafer-bread, 334-235. Pelagians : punishment of, 83. Penzance, Lord: his defence of his Court, 13-17, {See Court) ; his remarks on previous decisions of J. Com. upon charges against Mr. Eidsdale, 66-67; necessary to dispute before J. 0. his ruling as to Crucifix, 389 ; his Judgment quoted, 291 ; Crucifix not set up for Ceremonial purpose, 382 ; as to the association of the Crucifix with superstition, 513. Perry, Rev. T. W. : his " Lawful Church Ornaments ' quoted as to Rood, 35 ; as to Furniture of Bp. Andrews's Chapel, 561. PhnUmore, Sir Robert; his inter- pretation of Advertisements and Visitation Articles not accepted by J. C. in Purchas case, 90; question as to dates of Inven- tories, 92 ; as to " retained," 179 ; held that Inj., 1559, as to Wafer- bread, was a contemporaneous exposition of the Rubric, 231 ; question as to Order in Council about Wafer-bread, 334; as to Chancel in Rub. before Commn. Office, 345 ; his Eccl. Law quoted for Coronation Service, 264-5 ; question as to Faculty for Cruci- fix, 380 ; refers to questions in Court below as to breaking of the Wafer, 354; question as to "before the people," 374; as to date of Cosin's Visit. Art. cited by J. Com., 379; remark of, as to Copes referred to in 1573, 409 ; remark of, as to proceedings against Cosiu, 433 : remark of, as to the " other order " and Cosin's opinion, 435 ; as to NichoUs' Commentary on the Prayer Book, 506 ; as to Parker's imposition of Wafer- bread, 507 ; as to the Puritan ob- jection to Wafer-bread, 508 ; as to the Crucifix, 510. PhiUpotts, Bp. : decision as to Vest- ments in Helston ease, 315. PhUlpotts & Boyd : the case of, 512. Photoznicographed Book, the : 439 ; distinction between it, and the MS. Book of 1662, 479. Pierce, Bishop : required the Com- munion Table in Beckington to be removed to the East, 463. Pillows : as adjuncts of the Mass, destroyed by authority, 404. Pix, the : a lawful ornament of the first Book, now unlawful, 439. Pole, Cardinal : Visitation Articles of, as to Rood, 35. Pory, Archdeacon : Visitation Arti- cles of, assume churchwardens can see Manual Acts, 586. Position of the Celebrant : charge EEE 786 Index to the Proceedings, Sfc. as to, 238 ; no charge except as to Prayer of Consecration, 342 ; standing with back to people, during Consecration, not illegal, 242; not settled by M. & M., 274 ; " before the Table," shewn by Hist, of Rub., 366-8 ; Wheatly as to, 498. Prayer Book, 1552 :■ annexed to Stat., 322 ; alterations of it in 1559, 322. Prayer Book, 1559, the : latest Edns. of (1580, 1592) have Omts. Kub. unaltered, 145 ; Letter of K. James (1603-4) as to revision of, 148-149 ; Proclamation authorizing revised Bk., 150-151 ; editions of, 1580 & 1596, produced in Court, 216 ; not scheduled to Act, 821. Prayer Book, 1604, the : did not derive authority from Canons of 1604, 73-74; issued by Koyal Proclamation, 821 ; documents relating to, 343-7 ; had Statutory authority if Crown could take "further order" under Stat. 1559, 344-48 ; no changes in it bearing upon Argument as to Omts. Rub., 345. Prayer Book, Durham, 1619 : copy of Rubrics as altered by Cosin, 317 ; Rubric before P. of Consn., as altered by Cosin, 378. Prayer Book, 1636, Black Letter : MS. Notes for Revision, 1661, 181 ; fao simile of, 182 ; table of " alterations " in, proves that Ornaments Rubric was not con- sidered to have been altered, 182 ; Rubric as to Position of Cele- . brant, 239. Prayer Book, the : is the complete and sufficient guide of worship, 386 ; of 1549 prescribed eight Ornaments of the Minister, 387 ; by " the Vestment " the Chasuble is meant, 388 ; of 1549 permitted Sacrificial Vestments to avoid abruptness and offence in the change of service, 393 ; of 1549, an unsatisfactory compromise, 393 ; of 1552 left " neither Alb, Vestment, nor Cope," 394; Li- junctions issued in 1559 as to, 397 ; Visitation Article of Parker as to, 411 ; Cosin's Notes on, 432 ; the word "retained" introduced into the Ornaments Rubric in 1662, illustrated, 436 ; the Chrisom an ornament of the 1st P. Bk., be- came unlawful, 438; the Act of Uniformity of Queen Elizabeth, a part of, 441 ; preface to, as to the nullity of proceedings during the Commonwealth regarding the, 442 ; of 1549 not easy of access in 1662, 442 ; the position of the Table regulated by, 447 ; ambiguity of the Book of 1549, 448 ; distinc- tion between the MS. of the, annexed to the Act of Uniformity, and the photoznicographed Prayer Book, 479; of 1552 substituted Tables for Altars, 483; the Welsh and the word side, 487 ; Latin and Greek translations of, 502. Preaching : licenses for. Canons of 1575, 119 ; Advertisements, 135. Preface to the Prayer Book: sets forth that the acts of the Com- monwealth regarding it were null and void, 441 ; of 1662 to Prayer Book, 554-556. Priests, or Ministers : young, order of Advertisements as to, 134. Printers of Books : Injunctions of 1559 as to, 79. Proclamation : James L, for P. Bk., 1604, 347. PubUc authority : meaning of, 535. Public "Worship Regulation Act : its bearing upon Crucifix, 282, 285 ; Sect. 14, 288. Pullman, Mr. : his memorandum as to the MS. Prayer Book, 480. Purchas Case : not argued before Arches Court or J. Com., 68 ; state- ment of charge as to Wafer-bread, 227 ; charge as to Crucifix, not the same as against Appellant, 382. Puritan re- action : 1559 to 1562, 83; illustration of, 83-89. Queen Elizabeth: as to restoration of Images and Rood, {See Eliz- abeth) ; Act of Uniformity of, gave power to, to take " other order," 395 ; Clergymen prosecuted in the reign of, for not wearing the Sur- plice but not, for not wearing the Chasuble, 396; Injunctions of, 397; enquiries throughout the reign of, for concealed Chasubles, Index to the Proceedings^ Sfc. 787 &c., 406; the ceremonial in her chapel, 416 ; her letter to Parker, as to uniformity, 419 ; if she had not duly sanctioned the Adver- tisements, the Surplice as a eucharistic vestment is unlaw- ful, 425 ; the Injunctions of, and the position of the Table, 458. Real Presence : the doctrine of the, undecided under the first Re- formed Prayer Book, 386. Register book, of Privy Council : order of Advertisements as to keeping of, 135. Representation the : Charges in against Mr. Ridsdale, 1-5. Respondent, the: Answer of, 7-10. " Retained : " meaning of, in Omts. Rub., 177-179 ; to he construed by Act of 1559, 321 ; referred in 1559 to future, 323 ; force of the word introduced into the Rubric in 1662, 435 ; illustrated from the Preface to the Prayer Book, 436 ; the sense of, given by the Royal Commis- sioners in 1689, 436 ; acquired, in 1662, a new sense, 560. Revisers of Prayer Book : their opinion, of no weight, 99. Ritual of Rome, the : introduced by Mr. Ridsdale, 514. Rood, the : general use of, before the Reformation, 35 ; enquired for by Bonner and Pole, 35 ; destruc- tion of, after the Reformation, 36 ; restoration of it approved by Q. Elizabeth, 36 ; opposed by some of the Bishops, 36 ; office for adoration of, in Sarum Missal, 37, 303 ; explained, 509 ; adoration of, 511. Roodlofts, &o. : orders of Ecclesias- tical Commissioners, 1561, 543. Rock, Dr. : as to Adoration of Rood, 303 ; says, that the Tunicle is a vestment assigned to the Sub- deacon, 388; that the Cope is a processional vestment, 389 ; refers to the relation of Surplice and Alb, 390; his description of a superstitious Cope, 409; on the use of images, 511. Royal Commissions : were authorized to destroy Ornaments in 1559, &c., 192. Royal Commissioners : acting on the Injunctions of 1559, abolished the sacrificial vestments, 397. Rubric r 1552, 1559, 1604, as to Wafer-bread, 227-8; in Scotch P. Bk., as to Wafer-bread, 228 ; 1662, as to place of Table for H. Com., 239, 245 ; leaves some latitude as to position of Table, 248 ; " stand- ing as before " meaning of, 248- 50 ; silent as to place for reading Ep. and Gosp., 250, or Nicene Creed, or Notices, 251, or place of Sermon, or place after Sermon, 252, or offertory sentences, 253, or place of B. & W. before put on Altar, 253, or place for saying Oh. Mil. Prayer or Exhortations, 254 ; plain as to place of Celebrant when ordering B. & W., 258 ; as to bread for Communion, how it differs from Rub. 1559, 357-8 ; be- fore P. of Consecration, by whom prepared, 370; in Cosin's P. Bk., 378. Rubric before P. of Consecration: how altered in 1661, 239. Rubrics : effect of Canons of 1604 upon, 161 ; equally binding with Ornaments Rubric, aHke violated, yet law, 198 ; sequence of, in Com. office, 239-242. Sacrificial Vestments, the : are the Vestment (Chasuble,) the Alb, and the Tunicle, 388; non-sacrifi- cial, are the plain Cope, the Sur- plice, and the Hood, 388 ; the Book of 1549 made the distinction, 391 ; cannot be worn, with non- sacrificial, 392 ; destroyed as mon- uments of idolatry, 393 ; aboHshed in 1559, as adjuncts of the Mass, 395. Sanoroft, Abp. : Visit. Articles as to surplice in ministrations, 551. Sandys, Bishop : Letter as to Q. Elizabeth's opinion in favour of restoring the Rood, 36 ; one of the Royal Commissioners in 1559, 402 ; as to Copes, 417 ; described Copes as Papistical garments, 418. Sarum Missal, the : Office for adora- tion of the Rood, 87 ; the chief Service Book in the unreformed Church, 386 ; remained in force EEE 2 788 Index to the Proceedings, Sfc. till the first Act of Uniformity, 386 ; prescribed the Chasuble as the Vestment of the Celebrant in sacrifice, 392. Savoy Conference : Exception at, to to Ornts. Rubric, 165-166; reply of Bps. to, 167 ; Baxter's remarks upon, 189 ; exception of Puritans, and reply of Bps. at, as to " Min- ister's turning," 256 ; Liturgy pro- posed at, by Baxter, 374 ; the Surplice, the only vestment in question, at, 429 ; Commission for, 553 ; Liturgy presented by Puri- tans at, 576-578 ; Puritans' ob- jections, 576 ; and Bishops' "An- swer," 605. Scot, Bishop of Chester : in 1559, noticed the omission of the Manual Acts, 494; his oration against the bill of the Liturgy, 494 Scotch P. Bk., 1637 : Rubric in, as to Wafer-bread, 228 ; authoiized by Proclamation, 232. Seal, the Great : discussion as to, 120-124. Sedgefield: Churchwardens of, in 1567, were prosecuted for moving the Communion Table contrary to the Bishop's order, 453. Selbome, Lord : as to want of Great Seal to Advertisements, 121 ; as to P. Bk, 1604, 152; as to Bp. Cosin, 193 ; as to " all " in Orna- ments Rub. in Ed. of P. Bk. 1559, 217 ; question as to breaking Wafer-bread, 220 ; as to Chancel in Com. office, 245 ; as to Delegates decision, St. Margaret's, West., 310 ; question as to Proclamation for P. Bk., 1604, 344 ; remark of, as to the date of Parker's Conse- cration, 315 ; as to the Queen's letters preparatory to the Adver- tisements, 423 ; as to Cosin's notes, 434; question of, as to the Pix, 439 ; as to the word, " end," 484 ; as to the Welsh translation of the Prayer Book, 488 ; as to Cosin's notes, 493 ; as to Dr. Scot's speech, 494 ; as to the Welsh translation of " iDefore the people," 501. Sermon, the ; no place assigned for preaching it, in Rub. of Com. Service, 252. Service : in 1564, varieties of, 97 ; ■ order of Advertisements, as to manner of reading, 135. Shaw, Mr. B. : his Argument for the Respondents, 515-615. Shops, not to be opened on Sundays : ordered by Interpretations of In- junctions, 82; and by Advertise- ments, 138. Side : distinction between, and End, 485 ; Convocation of 1640 as to, 485. Signet, the : question as to, 335-6. Singitig-oakes : description of, 237. Smart, Peter : charge against Cosin as to E. position, 368 ; as to super- stitious Copes, 409. Smith, Bishop of Gloucester : never entered his Cathedral after the removal of the Table by Laud to the East end, 457. Soothsaying : Injunctions of 1559 as to, 79. St. Gregory's: Case of, 566. " Standing as before " : meaning of, 248-50. " Standing before the Table " : mean- ing of, 359; Martin v. Mac- konochie, 274-5 ; not criminal, 373; M. & M. as to, 374; the words introduced in 1662, 496. " Standing up " : altered in 1661 to " standmg before," &c., 263. State Papers : letter of Grindal to D. & C. of St. Paul's, 109 ; the, show, that the Advertisements were enforced on the authority of Queen Elizabeth, 424. Stations of the Cross, the : descrip- tion of, 41 ; an addition to Fabric and without Faculty, therefore contrary to P. W. R. Act, 42 ; decorations forbidden by Law, 42 ; similar to those used in R. C. Chm-ches for the Devotional pur- poses described in " The Crown of Jesus," and " The Key of Heaven," 42 ; some may be un- objectionable, and a Faculty may be apphed for as to them, the others being removed, 43 ; intro- duction of part of a system op- posed to the Acts of Uniformity, 514. Statutes referred to : (See also Acts.) 1st Act of Uniformity Edw. VT., (1549) the Sarum Missal re- mained in force tUl, 386. 3 & 4 Edw. VI., c. 10 : illustrate the force of the word " re- tained" in Ornaments Rubric, Index to the Proceedings, See. 789 436 ; required all images to be abolished, 512. 5 & fj WUliam IV., c. 54 : gave great weight to the Canons, as an interpretation of law and use, 443. 2nd Act of Uniformity of Edw.VI. : (1552) legalized the Surplice only, 410. Act of Uniformity of Elizabeth : (1559) : the alteration it made in P. Bk. 1552, 322; made special provision as to orna- ments of the Minister, 394 ; after the passing of, the con- secration of Parker was the first important religious ceremony, but thereat no Chasuble or Alb was used, 415 ; did by its own force abolish Chasuble and Alb, 424 ; Cosin's reference to, 434 ; as to position of the Table, 452. Act of Uniformity of Charles 2nd. (1662) : question as to bearing of Sect. 24 upon Act of 1549, 179 ; Sect. 24, satisfied by Acts of 1549 and 1559, 180 ; no evidence that the Communion Table generally stood altarwise be- tween the Restoration and the passing of, 476 ; made no al- teration as to the position of the Table, 478 ; the only ques- tion regarding is its literal con- struction, 482 ; made provision for the translation of the Prayer Book iato Welsh, 487; Ques- tion by the Lord Chancellor, as to translation of Prayer Book, 503. Public Worship Reg. Act : 37 & 38 Vict. 0. 85, 282. Stephen, Sir James : his argu- ment for the Appellant (Mr. Rids- dale), 65-316; four questions for Court, if Purohas Judgment on first three will be re-considered, viz., Vestments, Wafer-bread, Eastward Position, and Crucifix, 65 ; first three not argued before Lord Penzance, 66; answer to Ld. Chancellor as to distinction in Court below between Wafer and Bread, 354 ; as to the joint use of Surplice and Alb, 391; never attempted to prove that either Chasuble or Alb was legally in uie in any Parish since 1559, 403; his argument as to the destruction of crosses an- swered, 404 ; assigned 1561 as the date of the Interpretations, 412 ; his arguments from the use of the word " vestments " in a paper prepared for the Synod of 1562 answered, 417 ; his state- ment that the vestments were destroyed in a tumult, met, 427 ; as to the maximum and minimum theory, 431; as to Cosin's notes, the reply, 432 ; his contention that the Commonwealth left but a tabula rasa, answered, 441 ; failed to show any user from 1559 to the present time, 443 ; as to the efforts which were made to restore the Table to the place occupied by the Roman CathoKc Altar, 446 ; his Reply for the Appellant, 615-98. Stephens, Dr. A. J. : his Argument for the Respondents, 385-515. Strype : his account of the Interpre- tations of the Injunctions, 81-82 ; as to proposed disuse of Vest- ments, &c., in Synod of 1562, 86- 89 ; quotes return to Cecil, 1564, of varieties in Service, 97 ; first draft of Advertisements, 102; preface to Advertisements, 136; Wafer-bread used in Cant. Catb., 235 ; as to destruction of Orna- ments in 1559, 333 ; as to r.fusal of sanction to Advts., 336. Sundays: shops not to be opened on, &c., ordered by Interpreta- tions of Injunctions, 82 ; and by Advertisements, 133. Superstition: whether intellectual culture a guard against. Lord Penzance's opinion discussed, 307 ; whether a temptation to the labourer or the mob, 308 ; wholly improbable in reference to Crucifix at Folkestime, 309; not generally caused by works of Art, 311. SurpUoe: to be used alone, except in Lord's Supper, Interpretations, 83 ; disuse of, proposed in Synod of 1562, 86; lack of, in city churches, 1566, 112, 233; re- quirement of Advertisements as to, in Cathedrals and Parish 790 Index to the Proceedings, Sfc. Churches, 133 ; whether worn with Vestments, 138 ; cannot be worn with Alb and Tunicle, Hebbert v. Purchas, 139 ; the use of, not eucharistic, according to the first Reformed Prayer Book, 387; a non-sacrificial Vestment, 388 ; by the authority of Parlia- ment authorised for the first time in 1549, to be used with the Cope in the Holy Communion, 392 ; in the case of a Bishop allowed in 1549 in Communion as an alterna- tive in place of the Alb, 393; Clergymen have been prosecuted for not wearing it, but never for not wearing the Chasuble, 396 ; , required by the 30th sect, of the Injunctions of 1559, 411; the only Vestment in question in the Hampton Court Conference, 429. Synod of 1562 : proposal for, as to disuse of Vestments, &o., 86-89 ; as to Vestments, 417. Table, the : place of, at Communion time. Rub. as to, 239, 245 ; place of Priest at Consecration, Rub. as to, 239; several positions of, con- sistent with Rubric, 243; position of Church governs position of Table, 244 ; no direction as to position of, with reference to points of the Compass, 245 ; not illegal as usually placed, against wall of Chancel, 245 ; " north side'' of, the term supposed to have arisen from E. & W. posi- tion of Table — ^this open to ques- tion, 246 ; H. & P. as to, 246 ; if long side of, acquired name of " north side " when Table placed E. & W., name might remain when position changed, 247; if placed E. & W., some would be behiad Priest if he stood on long side. 249; Cosin, Laud, "Wren, stood in front of, 260 ; commonly placed against E. wall before 1662, 373 ; Inj. 1559 and Canons 1640, as to place of, 372 ; present position of the source of difficulty, 445 ; the Rubrics by which the place of, is governed, 446; must not be placed against the East wall in Communion time, 447 ; must be movable, 448 ; must be moved, 451; Injunction of 1559 as to, 452 ; charge against the Churchwardens of Sedgefield for its removal to the East, 453; Canon 82 as to the position of, 454; Sir H. J. Fust as to the movable character of, 455 ; Arch- bishop Bancroft as to the position of, 456 ; Order of the Dean and Chapter of Gloucester in 1616, directing the Table to be placed altarwise, 457 ; removal of, to the East in BecHngton by order of the Bishop of the Diocese, 462; Laud's modus operandi in moving the Table, 463 ; dispute in Gran- tham as to the position of, 464 letter of the Bishop of Lincoln (WiUiams) on the position of, 466 the first Communion Rubric re quires the Table to be moved, 471 unlawfully placed altarwise in 1641, 472 ; Order of the House of Lords in 1643 for the removal of, from the East end, 474; not altarwise between 1660 and 1663, 476; stood tablewise in 1662,477; proposed Rubric as to the position of, in MS. Prayer Book, 482; direction of, 483 ; ends and sides of, 484 ; illegal placing of, 488 ; Bloxam's Gothic Architecture illustrates the gradual change which was made in the placing of, 489 ; The Tracts for the Times revived the significance of the altarwise position of, 491 ; " Stand- ing before," meaning of the words, 496 ; and translation of, 502 ; before the (See " Before ") ; place of, 566, 599, 603. Temple Church : position of, 244. Toleration : proposal for, to Baxter, 326. Tracts for the Times : revived the doctrinal significance of the Altar- wise position of the Table, 491. Trent, Council of, the : on Adora- tion of Images, 32, 295 ; whether rightly applied by Lord Penzance as to Crucifix, 297. Trinity, the : superstitious Copes bore images of, 407. Tunicles : to be used imder the first Reformed Prayer Book, 387 ; are sacrificial vestments, 388 ; no ru- Index to the Proceedings, Sfc. 791 brical authority for wearing, with thfl Surplice, 391. " Turning to the people " : meaning of, a55. Tyndale : " take bread ... in sight of people," 579. Uniformity: Act of, 1559, Proviso as to Ornaments, 103 ; 1662, bearing of Sect. 24 upon Act of 1549, 179 ; how regarded, as to Ornaments, by J. C. in LiddeU v. Westerton, 209 ; earlier Acts re- ferred to in Act of 1662, 217 ; Act of, 1559, why put in P. B., 1559, 218 ; not until the Act of 1549, was the Cope used by the Cele- brant in the Holy Communion, 392 ; a Popish Priest for saying Mass was held to come under the 4th section of the Act of, 395 ; the Act of Elizabeth not repealed during the Commonwealth, 441 ; Manuscript Book annexed to, 479 ; Acts of, undermined by the introduction of the ritual of Rome, 515. Universities : . order of Advertise- ments as to beneficed persons studying there, 134. Upton, the parish of : the House of Lords in 1641 required Dr. Clarke to remove the Communion Table from its altarwise position in, 472. Usage : against Vestments, 552 ; as to Eastward position, 567-571, 607. User : no, of Chasuble or Alb since 1559,394; admitted by Sir James Stephen, 443 ; for a period of 318 years, 444. Varieties in Service: 1564, Return of the, 97. Vestment: an ambiguous expres- sion used in different senses, 388; as it occurs in the Book of 1549 it means the Chasuble, 389; meaning Chasuble, prohibited by the Book of 1552, 394 ; Sir James Stephen's fallacy from the am- biguity of the word, 417. Vestments, the : Lord Penzance on Decisions of J. Com. as to, 18- 22 ; argument thereon of Sir J. Stephen before J. Com., 69-218 ; question turns on Ornaments Rubric, 69 ; points as to, not dis- puted, 70 ; Syllogism as to, based upon Liddell v. Westerton, 70 ; destruction of, not caused by the Advertisements, 73 ; Rubric as to, m P. B., 1549, 1552, 1559, 75 ; proposal for disuse of. Synod of 1562, proves lawfulness tlien, 86 ; their disappearance, in 1559, due to rioters, 113 ; questions of Court as to what can be worn together, 139-141; order of P. Bk., 1549, as to, 140-142 ; Lords' Com. 1641 as to, 162 ; Authors, 1710- 1845, who held them to be legal, 188 ; no penalties for disuse for 180 years, held by J. Com. to be adverse to their legality, 195 ; but Copes also were not used, though ordered by Canon, 196 ; Canon 74 as to dress, is systematically violated, 197; rubrics, equally binding, broken, 198 ; not com- pulsory unless provided by parish, therefore no yoke upon those who do not wish for them, 315 ; their lawfulness, a question of plain meaning of Act of Parliament, 316; what prescribed in P. B. 1549, 330 ; undoubtedly legal when Advts. were issued, 384. Vesture : none prescribed for Litany in P. Bk. 1549, 330. Visitation : ecclesiastical, in 1559, 397 ; removed Chasubles and Albs from use, 400 ; Episcopal Articles of 1628, enquired for concealed vestures, 405 ; Articles of Parker and the Bishops enjoined the use of the Surplice in Euoharistio ministrations, a use which was illegal if the Rubric of 1549 had not been limited by Statue, 418 ; Articles of the Prelates given in the 2nd Ritual Report, recognised the Advertisements, 426 ; Articles of Laud, 430 ; Articles of the Bishop of Lincoln in 1641, 469. Visitation Articles : Cosin, 1662, 182, 192; Parker, 1563 and 1567, 338; Cox, 1570, 338; Parker and Wren, as to Com. Bread, 362-63. Wafer; definition of, 226; authori- ties as to meaning of, 378-9. 792 Index to the Proceedings, iije. Wafers: the word adopted as well as Wafer-bread, 220 ; whether admitted to have been used by Mr. Ridsdale, 608-9 : " supersti- tion " as to, refers to shape, 610 ; excluded by "it shall suffice," 611 ; Elizabethan Injunction as to, probably ultra vires, 612. Wafer Bread : lack of, in City Churches, 1566, 112, 233 ; charge as to, against Mr. Eidsdale, 318 ; admissions and evidence as to use of, 219-220; discussion as to whether it was broken, 220 ; charge copied from Hebbert v. Purchas, 224, 227 ; that charge bad, 224 ; three propositions as to, 225; Rubs. ofl552, 1559, 1604, as to, 227 ; Rub. of Scotch P. Bk., 1637,228; Elizabethan Injunction as to, 229 ; the Inj. and Rub. 1559, consistent, 231; Parker to Parkhurst, as to, 234 ; the P. C. to Bp. Ohaderton, as to, 234-235 ; used in Cant. Cath., 1569, 235 ; use of, in Bp. Cosin's time, 236 ; description of marks on, 237 ; one of several forms never held to be illegal, 315 ; question of Ld. Chan cellor as to distinction between Wafer and Bread, 353 ; Rubric as to, 357 ; Parker to Cecil, as to, 358-60 ; Wren proposed to men- tion it in Rubric, 362 ; " it shall suffice " can be pleaded for it, 364 ; is not usual bread, 504; round- ness of, objected, 505 ; great opposition to, in the reign of Elizabeth, 508. Walgrave's case : against a Popish Priest for saying Mass, which was an offence under the 3rd section of the Act of Unifoi-mity, 395. Webster's explanation of the word "end," 484. Welsh Prayer Book and the word " side," 487 ; " before," how used in, 601. Westminster : Wafer-bread used there tUl 17 Charles I, 236 ; St. Margaret's : Painted Window, 310. Wheatly, on the Position of the Minister, 493. Wbitgift, Abp.: Visit. Art. 1584, adverse to Q's. authority for Advts., 340; evidence from, as to the inaccessibility of the Books of 1549 and 1552 in his time, 442 ; dispute with Beale, 443. WiUes, Mr. Justice: as to Canon 1604, 155. WUliams, Bishop: on the North side, 467; his book, "Holy Table, Name and Thing," 484. Wilson, Bp. : " breaking bread to represent to the senses," 588. Winchester, Bishop of : mistake of, as to a tabula rasa during the Commonwealth, 440. Witchcraft: Injunctions of 1559 as to, 79. Work on Simdays: Interpretations of Injunctions as to, 82. Wren, Bishop : proposed alteration of Rubric as to Com. bread, 362 ; his enquiry for " fine white bread," 363 ; his defence when charged with using E. Position, 369 ; re- cognised the distinction between sides and ends, 485 ; as to Adver- tisements, 534; as to people seeing what minister did, 584. Zanchius : letter from Grindal to, 1571, shows that law as to Orna- ments had not been altered, 114. Zurich Letters, the : controversy as to Crucifix, 36. INDEX TO THE JUDGMENT OF THE JUDICIAL COMMITTEE. Abbott, Abp. : Visitation Articles, 1011, 714. Advertisements, the : were a "taking of order" under sec. 26, Stat. 1559, by Queen and Metropolitan, 707 ; Queen ordered their pre- paration, 708 ; no form required by Stat, for Q. to take order, 708 ; Grindal wrote to enforce them, 708 ; their authority recognised in 1583, 708; first draft of, ran in Queen's name, 709 ; some Articles of, omitted, 709 ; draft not approved, 710 ; Parker must have known Queen's pleasure as to them, 710 ; not " against no Law of the Realm" unless issued by Queen's authority, 711 ; ordered Font not to be removed, 712; vestures of ministers ordered by, 713 ; by ordering Surplice, made Albes and Chasubles un- lawful, 713 ; had the Queen's au- thority, see Parkhuist,Cox, Grin- dal and others, 715-16; their legal authority recognised in Canons of 1571 ; Canons of 1604 refer to and repeat their direction, 717 ; must have had Statutory force, or some Canons of 1604 could not have been consistent, 717 ; their Eoyal authority shown by Canons, 1640, 717 ; their legality not dis- puted in statement of Divines to Lords' Committee, 1641, 717 ; Hooker, Cosin, Wren, mention them as having Queen's authority, 718 ; were issued after destruction of Vestments mentioned by Mr. Peacock, 718 ; the order of, as to Vestures, how to be read, into 1 Eliz. 2, 25, 719; Bp. Sparrow, 1684, held them to represent the " Law as to Vestments, T29-30 ; prescribed Vesture for some offices not provided for by Rubrics, 1559-1662, 732; bearing of Cosiu's reference to their authority for Epistoler and Gospeller, 734; Dr. Bennett considered them authentic, 736 ; effect of, not considered by Dr. Lusbington or J. Committee in Westerton v. Liddell, 737. Alb, the : complaint of Mr. Rids- dale wearing, 702 ; made unlaw- ful by Advertisements, 713. Alterations, list of : in MS. Prayer Book, 1662, object of it, 726. Andrewes, Bp. : Visitation Articles, 714; 1619, 752. Arches Court : decree of, how varied, 758 ; Costs there, as to Position of Celebrant and Wafer Bread, to be paid by Respondent, 758. Articles : presented to Eliz., 1583, recognise her authority for Ad- vertisements, 708. Assessors, Episcopal : present at hearing of Appeal, 699. " At all times of their ministration : " force of, ia Rubric, 1662, 724-5 ; ' not justified unless read with Ad- vertisements, 733. Ayhaer, Bp. : Visitation Articles, 1577, 714. Babington, Bp. : Visitation Articles, 1607, 752. Bancroft, Bp. : Visitation Articles, 1601, 714; 1605, 752. Baxter : as to Puritan exceptions at Savoy Conference, 720. " Before the people : " equivalent to "in the sight of the people," 745. Bennett, Dr. Thomas : Paraphrase of Common Prayer, 1709, pub- lished before Cosin's Notes, 738 ; 794 Index to the Judgment held that Advertisements were "authentic limitations of the Rubric," 737. Bishops : their Vestures not con- sidered by Judicial Committee, 702 ; at Savoy Conference did not yield to Puritan Exceptions as to Ornaments Rubric, 721 ; but did not mean to abolish Surplice and restore Vestments, 721 ; their official acts for two centuries after 1662 inconsistent with supposed change of law, 727 ; those who " managed all things " at Savoy Conference after- wards only asked for Surplice, 729. Breaking the Bread: first introduced in Rubric, 1662, 744 ; possibly to meet Puritan suggestion, 745. Bum, Dr. : only follows Gibson as to force of Ornaments Rubric, 735. Campbell, Lord: as to usage in construction of Statutes, 731. Canons, 1571 : refer to Advertise- ments as of legal authority, 716. Canons, 1603-4 : refer to and repeat Advertisements as to Surplice, &c., 717 ; 24 and 25 considered by Convocation, which made them, consistent with 14, 16, and 56, therefore Advertisements must have had Statutory force, 717. Canons, 1640: evidence that the Advertisements had the Queen's authority, 717 ; 20th, as to Com- munion Bread, 752. Cardwell, Dr. : error as to Great Seal, m reference to Advertise- ments, 736. Cases cited : Gorham v. Bp. of Exeter, 731. Hebbert v. Purchas, 700-2, 718, 744. LiddeU v. Westerton, 737-40. Martin v. Mackonochie, 737, 740, 748. Pochin V. D.uncombe, 731. Westerton v. Liddell, 737-40. Cecil, Secretary : Letters of Abp. Parker to. {See Parker.) Celebrant, Position of the : {See Position of Celebrant.) Chaderton, Bp. : answer of P. Coun- cil to, 1580, touching. Communion bread, 751. Chasuble, the : complaint of Mr. Ridsdale wearing, 702 ; made un- lawful by Advertisements, 713. Churching of Women, the : no Ves- ture , prescribed for Minister, by Ornaments Rubric, 732. Commination Service, the : no Ves- ture prescribed for it, by Orna- ments Rubric, 732. Commission, 1689, to revise P. Bk. : only contemplated Surplice, 730. Communicants : intended to draw near Lord's Table, 742. Communion -bread : what consistent with Rubric, 749-52 ; " fine white bread" required by Visitation Articles, 752 ; practice as to, since 1662, 752. Communion Table, the : argument of Respondent as to its proper place, over-ruled, 741 ; not re- quired by Rubric to be removed for Celebration, 741 ; seldom re- moved in 1662 and since, 742. Comprehension, BUI of: only con- templated Surplice, 730. Confirmation Service, the : no Ves- ture prescribed for assistant Min- isters by Ornaments Rubric, 732. Convocation, 1604 : considered Canons 24 and 25 consistent with 14, 16, and 56 — they could not be if Advertisements not law, 717. Cosin : his Visitation Articles, as Bp., 1662, before P. Bk. 1662, 714; regards Advertisements as having Q's reserved authority, 718, 734 ; his MS. alteration in Ornaments Rubric, how to be re- garded, 723; remarks upon his Notes on C. Prayer, as to Vest- ments, 733-7 ; his Visitation Articles, 1627, require Surplice, 734. Costs : in Arches Court, as to Posi- tion of Celebrant and Wafer- bread, to be paid by Respondent ; none in the Appeal, 758. Cox, Bp. : Injunctions and Visita- tion Articles, 1570-74, regards the Advertisements as of Royal Au- thority, 715. Crucifix, the: on Chancel Screen, Judgment of Lord Penzance as of the Judicial Committee. 795 to, appealed from, 700 ; not cover- ed by Hebbert v. Purohas, 700 ; charge as to, 753 ; otber charges connected with it in Court below, not now before Court, 753 ; Lord Penzance's description of, quoted, 753 ; Faculty for Screen did not include it, 754 ; Faculty ought not to be granted for it, 754 ; its erection not justified by Liddell V. Westerton or Phillpotts v. Boyd, 754-5 ; distinguished from the Cross,755; notamereArchitectural Ornament, or set up only for Decoration, 755 ; held by Lord Penzance to be in danger of abuse, 755-7 ; the Court concurs in his observations, and selects them as the grounds of its Decision against it, 757. " East " or " Eastward " : not in Rubrics of Communion Office, 742. Elizabeth, Queen : her Act of Uni- formity prefixed to P. Bk. 1559, 706 ; did take " order " under sect. 25, 707 ; no form for " or der" prescribed by Stat., 708 some of her Ministers favourable to Puritans, 709 ; sent Eayal Commission to Oxford, 1573, to destroy Vestments, 714. Font, the: Advertisements ordered it not to be removed, 712. Gibson, Bp. : Ornaments Rubric in Prayer Book 1559, not inserted by authority of Parhament, 706 ; only follows Cosin as to force of Ornaments Rubric, 735. Grindal, Bp. : letter to Dean of St. Paul's to enforce Advertisements, 708; Abp., Visitation Articles 1571, 704; Visitation Articles 1576, evidence of Q's authority for Advertisements, 716. Hackett, Bp. : Visitation Articles, 1662, 727. Hebbert v. Purchas : covered three of charges appealed upon by Mr. Ridsdale,700; whether conclusive in all siimlar case, 700 ; reason for refusing re-hearing in that case, 701 ; grounds for not considering it fiaaal in this Appeal, 701-2; conclusion of Judicial Committee irresistible — that Advertisements had the force of Law under 1 EUz. 2, 25, 718 ; error of Judicial Committee as to date of destruc- tion of Vestments described by Mr. Peacock, 718; judgment of, as to Vestments affirmed, 741 ; the true Rule, if needful to find one, for position of Celebrant throughout, 744. Henchman, Bp. : Visitation Articles, 1662, 727-8; 1664, 728. Hereford Missal : Office for Adoration of the Rood, 757. Hooker : describes Advertisements as of Queen's authority, 718 ; as to diversity of practice about Communion Bread, 750-1. Injunctions,1559:whynot considered by Court, 707 ; as to Wafer Bread, consistent with Rubric 1552-1604, it regulated form not substance, 750. Interpretations of the Injunctions of 1559 : why not considered by Court, 707. Ironside, Bp. : Visitation Articles, 1662, 714. "It shall suffice'': might mean some- thing different from what is men- tioned, unless controlled by con- text, 749 ; here, context as to •' occasion of dissension " &c., excludes what is substantially different, 749-50. Judges, the : present at hearing of Appeal, 699. Judicial Committee: decisions of, made final by 2 & 3 Will. 4, c. 92, 701 ; Mr. Purchas's case heard ex parte, 702. Juxon, Bp. : Visitation Articles 1640, 714. King, Bp. : Visitation Articles 1612, 714. 796 Index to the Judgment Laud, Abp.: Visitation Articles 1637, 714. Law, the : as to Vestments, before Act of Uniformity 1662, 704. Liddell «. Westerton: had "nothing to do with the Ornaments of the Minister," 737 ; misconception as to the Judgment about Ornaments Rubric, 739. Litany, the : no Vesture prescribed for, by Ornaments Rubric, 732. Lords' Committee, 1641 : statement of Divines to, does not dispute legal authority of Advertisements, 718. Lushington, Dr. : as to usage in con- struction of Statutes, 731 ; did not consider Advertisements, &c., in Westerton v. Liddell, 737-8. Manual Acts, the : to be so done that in a reasonable and practical sense the Communicants may see them, 745. Marriage Service, the : no Vesture prescribed for, by Ornaments Rubric, 732. Martin v. Mackonochie : does not affect Vestments by referring to Liddell v. Westerton, 740 ; does not materially bear on Position of Celebrant, 748. Missals : Hereford and Sarum, Office for Adoration of the Rood, 756-7. Morley, Bp. : Visitation Articles, 1662, 714, 727-9. " North side " : implies a general Eastward position of Churches, 742-3 ; standing at, expressed or implied in Communion Office, 743 ; means next the North, in a Church standing East and West, 743 ; looking South would best fulfil requirements of aU the Rubrics, 744. Ornaments, the ; destruction of, at first illegal— disUke to them would suggest a law to efiect it, 718. Ornaments Rubric : 1662, not the only law as to Vestures of Clergy, as held by Appellant, 703; is a Rubric note which did not repeal previous law, 703 ; if the only law, it enjoins, not merely authorizes. Vestments, 703 ; qualifying Pro- viso as to in Stat., 1559, 705 ; of 1559, only a memorandum or refer- ence to the Stat., 1559, 706 ; not meant, in 1559, to be an enactment, claimed no intrinsic authority, 706-7; to be read in connexion with 1 EHz. 2, 25, and Advts. — understood in this sense from 1566 to 1662, 719 ; as altered in 1662, did not repeal what had been done under 1 Eliz. 2, 25, 719; Pmitan exception to, at Savoy Conference, and Baxter's treat- ment of it, 720 ; Bishops at Savoy Conference refused to alter it, 721 ; of 1662 only a memorandum or note of reference to 1 Eliz. 2, 25 ; prior to 1662 omitted " until other order," 723 ; Cosin's MS. alteration in, how to be under- stood, 723 ; not inconsistent with 1 Ehz. 2, 25, 727 ; of 1662 as to Vestures (Kke previous Rubric) must be read in connexion with 1 EHz. 2, 732 ; if read apart from it, no Vesture appointed for some Offices, 732 ; Dr. Bennett held it to be limited by Advertisements, 736-7 ; misconception of decision in LiddeU v. Westerton as to it, 739 ; Martin v. Mackonochie does not affect Vestments, 740. "Other Order": "until," not first, omitted in Rubric 1662, 723 ; con- sidered to be executed, by Bp. Sparrow, 729-30; Dr. Bennett, 786. Overall, Bp. : Visitation Articles, 7 14. Overton, Bp. : Injunction, 1584, as to Coromimion Bread, 752. Parker, Abp. : knew that he and the Ecclesiastical Commissioners alone could not take new " order " as to Ornaments, 709 ; must have known Queen's pleasure as to Advertisements, 710 ; audience with Queen, March 10, 1566, 710; letter to Grindal as to Advertise- ments, 710 ; to Cecil enclosing final form of Advertisements, 711 ; difficulty of enforcing Uniformity, 710 ; Advertisements " against no law of the Realm," 711 ; his con- duct as to Advertisements and letter of Nov. 15, 1673, imply they had the Queen's authority, 712 ; Visitation Articles, 1567, 714. of the Judicial Committee. 797 Parker Correspondence, the : can- not control legitimate inference from public acts and documents, 709; March 8, 1564-5, quoted, 710; March 12 and 28, 1565-6, April 12, 1566, 710. JParkhurst, Bp. : the Advertisements had Queen's authority, 715. Parliament : of 1662, passed revised Prayer Book almost sub sUsntio, 721. Pearson, Bp. : Visitation Articles, 1674, 728. Penzance, Lord : his Judgment con- demned Mr. Ridsdale on twelve charges, four of these appealed from, 700 ; his description of Screen and Crucifix quoted, 753 ; his Judgment in Court below, how varied, 758. Pollock, Chief Baron : as to usage in construction of Statutes, 731. Position of Celebrant : at Prayer of Consecration, Judgment of Lord Penzance as to, appealed from, 700, 741 ; Rubrics in Commu- nion Office the only authority upon, 741 ; if necessary to find a rule to govern it throughout, it would be that of Hebbert ;;. Purchas, 744 ; looking East, with back to people, lawful if not meant to hinder reasonable view of Manual Acts, 746 ; no evidence of penal charge against Appellant, 747 ; Martin v. Mackonochie does not materially bear on the point, 748. Practice : as to Vestments, since 1662, consistent with old law, 731. Prayer Book : Edw. VI., 1549 and 1552, difference of Rubric as to Vestments, 704-5; 2nd Book an- nexed to Statute 5 & 6 Edw. VL, c. 1, 705 ; Elizabethan, not an- nexed to Act of Uniformity, 1559, 705 ; alterations of Book of 1552, in 1559, 705 ; Preface to, 1662, declarations of, 722; MS. 1662, contains Eliz. Act of Uniformity, 722 ; MS. 1662, list of alterations in, 725 ; revision of, 1689, only contemplated Surplice, 730. Privy Council, the : directions to Bp. Chaderton about Communion Bread, 751. Procession : connected with Charge as to Crucifix, Monition as to, from Court below, obeyed, 753. "PubUc authority": means Queen's authority, 715. Puritan exceptions at Savoy Con- ference : to Ceremonies and Orna- ments, 720 ; " seemeth to bring back," how to be understood, 720. Rationale, Sparrow's : as to Ves- tures, 730. Rood, the: usual in Parish churches before the Reformation, the Cruci- fix a part of it, 755-6 ; letter of Bishop Sandy's, 1561, as to its removal, 756 ; office for Adoration of, in Sarum and Hereford Missals, 756-7. Royal Commission: 1573 Oxford, to destroy Vestments, 714 ; 1660, recited in Statute 1662, 721. Rubric : on Ornaments, 1559, not inserted by authority of ParUa- ment, Bp. Gibson, 706 ; Puritan Exception to, 720 ; efi'ect of altera- tion in 1662, 725 ; a Church, to be constantly acted upon, a sub- ject for exposition by usage, 732 ; 1559-1662 if read alone, does not provide a Vesture for some offices, 731 ; as to Communion Bread, construction of, 749 ; seems to contemplate ordinary bread, 750 ; 1552-1604 not contradicted by Ehz. Lijunctions, 750. Sancroft, Abp. : Visitation Articles, 1686, 729. Sandy's, Abp. : Visitation Articles, 1578, 714; Bp. as to taking down the Roods in 1561, 756. Sarum Missal : Office for Adoration of the Rood, 756. Savoy Conference : some Bps. who "managed" it afterwards, only asked for the SurpUcs, 729. Seal, the Great : error of CardweU as to, touching Advertisements, 736. " Shall be retained and be in use " : how to be understood, 723. Sheldon, Abp. : Visitation Articles, 1670, 729. " Standing before the Table " : the words satisfied by standing on North side or on West side, 746. 798 Index to the Judgment of the Judicial Committee. Stations of the Cross : connected with charge as to Crucifix, Moni- tion thereon, submitted to, 753. Statute: 2 and 3 Will. 4, c. 92, made decision of Judicial Committee definitive, 701; 1 EUz. 2, 705; 1 Eliz. 2, 25, to be read with Advertisements, 719; 1 Ehz. c. 2, put in Prayer Book, 1662, as an unrepealed and effective law, 72-2 ; 1 EUz. 2, one of the laws for establishing Prayer Book, 1662, 726 ; value of usage in construc- tion of, 731. Strype : Life of Pajrker, 709. Surplice, the : not included by Ju- dicial Committee in the term " Vestments," 703 ; required at Celebrations by Visitation Arti- cles and Injunctions, 1567-1662, 714; the only Vestment really in controversy at Savoy Conference, 720 ; to be used in Holy Commu- nion, shewn by Visitation Articles for 25 years after 1662, 727 ; only asked for after 1662, by Bishops who "managed all things " at the Savoy Conference, 729 ; alone contemplated by Commission of 1689, and Bill of Comprehension, 730 ; practice uniform as to, since 1662, 731. Thomborough, Bp. : Visitation Articles, 1603, Evidence of Q's. authority for Advertisements, 716. Uniformity, Acts of: 1549, 1652, & 1559, referred to, 704-5 ; Eliza- bethan, placed in Prayer Book 1662 as effective law, 722; 1 Eliz. 2, 25 not inconsistent with Ornaments Rubric, 727. Usage : value of contemporaneous and continual, as to law of Vest- ments, 731. Vestments, the : Judgment of Lord Penzance as to, appealed from, 700 ; the term used by the Court to distinguish Alb, Chasuble, and Cope, from Surphce, 703 ; Appel- lant's argument as to, summed up, 703 ; enjoined if Ornaments Rubric the only law, 703; not seriously contended that Alb and Chasuble could be worn with Surplice, 713; after 1566 treated as superstitious in official Acts of Bps. and others, 713 ; restoration of, not contemplated in 1662 — opposed to preamble of Act, 721 ; Bp. Sparrow's view of the Law as to, 730 ; Judgment of Hebbert v. Purchas as to, affirmed, 741. Vesture of Ministers: in 1549 and 1552, stated, 704-5 ; left open at Accession of Eliz., 705 ; ordered by Advertisements, 713 ; in 1662 to be ascertained by reading order of Advertisements into 1 EKz. 2, 25 ; none provided for some offices if Rubric alone relied on — the Ad- vertisements did provide them,732. Visitation Articles : 1571 to 1612 order destruction of Vestments, 714; 1567 to 1662 require .Sur- plice at Holy Communion, 714 ; for 25 years after 1662, prove that Surplice was to be used in Holy Communion, 727-9. Wafer : the term not used in Rubric, 749 ; as usually understood, not what the Rubric requires, 749 ; properly so-called, illegal if proved that Appellant used it, 752. Wafer-bread : Judgment of Lord Penzance as to, appealed from, 700, 748 ; form of charge same as in Purchas's case, 748 ; allegation as to, probably meant to test law- fulness of Wafer as distinct from usual Bread, 748 ; but no such averment, 748 ; the contention — that charge is as to shape not com- position — ^must prevail, 749 ; In- junction 1559 regulated form not substance, 750; dissension as to, temp. Elizabeth, 750-1; decision of Privy Council as to, 1580, 751. Whitgift, Abp. : Visitation Articles, 1584, evidence of Q's authority for Advertisements, 716. Wren, Bp. : Visitation Articles, 714; considered Advertisements " authorized by Law," 718. Writers : private opinions of, do not control legal interpretation of public documents, 733. PKINTED BY W. J. PEHUY, CUR3IT0K SIKEET. Prioe 128., 480 pp., NOTES ON THE JUDGMENT OF THE JttMnal €ommiiitz of 1§^£ ^riijg ^onmxl IN THE APPEAl HEBBERT v. PURCHAS, Delivered February 23, 1871. REV. THOMAS WALTBE PEKET, f Member of the Royal Commission on Ritual, 1867-1870.^ VICAR OF ST. MARY THE VIRGIN, ARDLEIGH, ESSEX. LONDON : J. MASTERS & Co., 78, NEW BOND STEEET. 1877. ^■^:^hivm^